## F I L E D United States Court of Appeals Tenth Circuit 

### JUN 24 1998 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JUDITH ANN NEELY,

Petitioner-Appellant,

v. TOM NEWTON, Warden; ATTORNEY GENERAL FOR THE STATE OF NEW MEXICO,

Respondents-Appellees, No. 97-2161

Appeal from the United States District Court for the District of New Mexico (D.C. No. CIV-95-0569-SC/RLP)

Thomas B. Jameson, Assistant Federal Public Defende r, Albuquerque, New Mexico, for Petitioner-Appellant. Patricia A. Gandert, Assistant Attorney General, St ate of New Mexico, Santa Fe, New Mexico, (Tom Udall, Attorney General, State of New Mexico, Santa Fe, New Mexico; Elizabeth Blaisdell, Assistant AttorneyGeneral, State of New Mexico, Santa Fe, New Mexico, with her on the brief), for RespondentsAppellees.

Before PORFILIO, LOGAN, and MURPHY, Circuit Judges.-2-

MURPHY , Circuit Judge.

Petitioner Judith Neely appeals from the district c ourt’s dismissal of her federal habeas corpus petition, brought pursuant to 28 U.S.C. § 2254, following her convictions, sentencing, and appeal in New Mexi co state courts. A jury found Neely guilty but mentally ill (“GBMI”) of first-deg ree murder, three counts of attempted murder, and two counts of aggravated batt ery. On appeal, Neely asserts (1) New Mexico’s GBMI statute deprives a mentally i ll defendant of due process and a fair trial, in violation of the Fourteenth Am endment; (2) New Mexico’s GBMI statute subjects a mentally ill defendant to c ruel and unusual punishment, in violation of the Eighth and Fourteenth Amendment s; and (3) the trial court’s restriction of voir dire and its refusal to instruc t the jury on the consequences of the not-guilty-by-reason-of-insanity (“NGRI”) and G BMI verdicts deprived her of due process and a fair trial. This court exercises jurisdiction pursuant to 28 U. S.C. § 2253. We construe Neely’s request for a certificate of appea lability as a request for a1 The certificate of appealability provisions of the Antiterrorism and

Effective Death Penalty Act of 1996 (AEDPA) contain ed in 28 U.S.C. § 2253(c) do not apply to petitioners who filed prior to AEDP A’s effective date of April 24, 1996. See United States v. Kunzman , 125 F.3d 1363, 1364 n.2 (10th Cir. 1997), cert. denied, 118 S. Ct. 1375 (1998). For Neely to appeal her p re-AEDPA claims, a certificate of probable cause under former 28 U.S .C. § 2253 is required. -3- certificate of probable cause, 1 grant it, and affirm the district court’s dismissa l of her petition.
I. BACKGROUND Neely has a long history of mental illness, includi ng schizophrenia and manic depression. During the ten years she was und er the care of her psychiatrist, she was hospitalized five times. In May 1989, appr oximately six weeks after her last hospitalization, Neely drove her car into a fa mily of four, killing one member and injuring two others. The sole issue at Neely’s trial was whether she was criminally insane at the time of the offenses. The jury, rejecting her insanity defense, found her guilty but mentally ill of the c harged offenses. The trial court sentenced her to life imprisonment plus twenty-seve n years. Neely appealed to the New Mexico Supreme Court, whi ch affirmed her convictions. See State v. Neely , 819 P.2d 249, 260 (N.M. 1991) [hereinafter Neely I ]. Among other things, the court held that New Mex ico’s GBMI statute does not violate a mentally ill defendant’s right t o due process and a fair trial; that the GBMI statute does not violate the Eighth A mendment’s proscription2 The majority decision sparked a strong dissent fromJustice Montgomery,

who argued the state’s GBMI verdict was “little mor e than a charade--a subterfuge that surreptitiously deprives defendants suffering from mental illness of the defense of insanity.” State v. Neely , 819 P.2d 249, 264 (N.M. 1991) [hereinafter Neely I

] (Montgomery, J., concurring in part and dissentin g in part). Another justice specially concurred, strongly sugge sting that in the future the jury be given appropriate instructions to disabuse them of any misconception they might have that the GBMI verdict has consequences d ifferent from a guilty verdict. See id. at 260 (Ransom, J., specially concurring).

3 Justice Montgomery specially concurred, stating the Neely II court’s conclusion that the trial court lacked discretion t o sentence a mentally ill defendant convicted of first-degree murder to a men tal facility “severely undercuts the rationale of the majority’s opinion i n Neely I.” State v. Neely , 876 P.2d 222, 226 (N.M. 1994) [hereinafter Neely II ] (Montgomery, C.J., specially concurring). -4- against cruel and unusual punishment; and that Neel y was not entitled to a jury instruction on the consequences of the NGRI and GBM I verdicts nor was she entitled to question the venire panel concerning th ose consequences. 2 See id. at 251-57. Upon remand, Neely filed a motion asking the trial court to reconsider its sentence and requesting that the court sentence herto an appropriate mental facility where she could receive treatment for her mental illness. The trial court denied her motion, and Neely again appealed to the state supreme court. The state supreme court held that because she was convi cted of first-degree murder, the trial court lacked discretion to sentence her t o a mental facility. 3 See State v. Neely , 876 P.2d 222, 225 (N.M. 1994) [hereinafter Neely II ].4 Hardesty applied for leave to appeal to the Michiga n Supreme Court,

which denied his application. See People v. Hardesty , 424 Mich. 877, appeal dismissed, 477 U.S. 902 (1986). Hardesty thereafter properl y appealed to the Supreme Court pursuant to 28 U.S.C. § 1257(2) (amen ded 1988), which at the time provided that final judgments rendered by “the highest court of a State in which a decision could be had” may be appealed as o f right to the Supreme Court when the validity of a state statute is upheld in t he face of a federal constitutional challenge. -5- Neely next filed a petition for habeas corpus relie f in federal district court and raised the same issues resolved by the New Mexi co Supreme Court. The district court adopted the proposed findings and th e recommended disposition of the magistrate judge and dismissed the petition wit h prejudice. From this dismissal, Neely appeals.
II. DISCUSSION A. Applicability of Supreme Court Precedent Before addressing the merits of Neely’s due process challenge, this court must first determine the effect on this appeal of t he Supreme Court’s summary dismissal in Hardesty v. Michigan , 477 U.S. 902 (1986). Hardesty appealed to the Supreme Court from a decision of the Michigan Court of Appeals, 4 which, inter alia , rejected his federal constitutional challenge to Michigan’s GBMI

statute. See People v. Hardesty , 362 N.W.2d 787, 798 (Mich. Ct. App. 1984), appeal denied, 424 Mich. 877, appeal dismissed, 477 U.S. 902 (1986). The-6-

Supreme Court summarily dismissed his appeal for want of a substantial federal question. See Hardesty v. Michigan , 477 U.S. 902 (1986).
In Hicks v. Miranda , 422 U.S. 332 (1975), the Supreme Court held that summary affirmances and summary dismissals for wantof a substantial federal question are considered decisions on the merits, an d lower courts are thereby bound by the summary actions “‘unless and until the Supreme Court should instruct otherwise.’” Id. at 344 (quoting Port Auth. Bondholders Protective Comm. v. Port of New York Auth. , 387 F.2d 259, 263 n.3 (1967)). The Supreme Court noted that a lower court must first ascertain what issues were properly presented and declared by the Court to be without s ubstance in order to determine whether its summary action is controlling precedent

. See id. at 345 n.14. The Court recognized that “[a]scertaining the reach and content of summary actions may itself present issues of real substance.” Id. Two years after its decision in Hicks , the Supreme Court provided further guidance, stating that such actions “without doubt reject the specific challenges presented in the statement of jurisdiction and . . . leave undisturbed the judgment appealed from.” Mandel v. Bradley , 432 U.S. 173, 176 (1977) (per curiam). The Court further counseled that summary actions “preve nt lower courts from coming to opposite conclusions on the precise issues prese nted and necessarily decided by those actions.” Id. The Court cautioned, however, that the precedenti al5 Indeed, the Seventh Circuit, in upholding the const itutionality of Illinois’

GBMI statute, concluded that the Hardestydismissal controlled the issue of whether the Illinois statute created an impermissib le risk of jury compromise. See United States ex rel. Weismiller v. Lane , 815 F.2d 1106, 1113 (7th Cir. 1987). The court, however, independently rejected the chal lenge to the statute in the event that it “overstated the precedential effect o f Hardesty .” Id. -7- significance of a summary action “is to be assessed in light of all of the facts in that case.” Id. at 177. In his jurisdictional statement, Hardesty stated th e relevant issue for review as follows: Whether Michigan’s statutes allowing a verdict of g uilty but mentally ill unconstitutionally infringe on the rights to a fair jury trial and to present an insanity defense, where the trial judge instructed on the verdict over defense objection and the jury found Appellant Hardesty to be guilty but mentally ill on all seven counts. Jurisdictional Statement, Hardesty v. Michigan , No. 85-6850 (1986), at 1. In arguing the question presented was substantial, Har desty stated the “objective in creating the GBMI legislation is to induce ‘comprom ise’ guilty verdicts.” Id. at 19. He further argued that “some commentators have found that [the GBMI verdict] violates due process” because the verdict deprives legally insane defendants of their right to present an insanity de fense. Id. at 19-20. At first glance, the issue presented by Hardesty ap pears to be the same due process issue Neely presents to this court. 5 Delving further into Hardesty’s jurisdictional statement, however, two important di stinctions between Hardesty’s-8-

case and Neely’s case emerge. First, Hardesty stat es the jury in his case was instructed on the consequences of both a NGRI verdi ct and a GBMI verdict. See id. at 14. In contrast, one of Neely’s arguments is p artially premised on the trial court’s refusal to instruct the jury on the consequ ences of the two verdicts. Second, Hardesty states in his jurisdictional state ment that a defendant found GBMI is “eligible for treatment of his mental illne ss in prison or a mental hospital while incarcerated.” Id. at 19. Neely, however, claims the trial court’s lack of discretion to commit her to a mental facili ty undermines the constitutionality of New Mexico’s GBMI statute. Th at the Michigan Court of Appeals in Hardestydid not explicitly rely on these two factors in up holding the state’s GBMI statute is of no consequence. The Sup reme Court has cautioned that for purposes of determining the binding effect of asummary action, the action should not be interpreted as adopting the rationale of the lower court, but rather as affirming only the judgment of that court. See Mandel , 432 U.S. at 176. The referenced differences between Hardesty’s and N eely’s cases compel the conclusion that the Supreme Court’s summary dis missal in Hardesty is not controlling precedent in this case. This court mus t therefore address Neely’s due process challenge. Cf. Lecates v. Justice of Peace Court No. 4 , 637 F.2d 898, 907 (3d Cir. 1980) (“To avoid our duty to decide a case properly before us by an unquestioning reliance on [the summary dismissal in ] Caulk, where critical6 See United States v. Hinckley , 672 F.2d 115 (D.C. Cir. 1982). -9- differences appear between the two cases, would ret ard the development of constitutional principles . . . .”). B. Due Process and Right to Fair Trial Neely argues that New Mexico’s GBMI statute violate s a mentally ill defendant’s right to due process and a fair trial. “A fair trial in a fair tribunal is a basic requirement of due process.” In re Murchison , 349 U.S. 133, 136 (1955). Whether the GBMI statute contravenes the United States Constitution is a question of law which this court reviews de novo. See Stephens v. Thomas , 19 F.3d 498, 500 (10th Cir. 1994). Unlike the insanity defense, which has its roots in ancient Judaic, Christian, and Roman law, the GBMI verdict first appeared in 1 975, when Michigan enacted its GBMI statute. See Ira Mickenberg, A Pleasant Surprise: The Guilty but Mentally Ill Verdict Has Both Succeeded in its Own Right and Successfully Preserved the Traditional Role of the Insanity Defe nse , 55 U. Cin. L. Rev. 943, 954, 987 (1987). It was not until 1982, however, w hen John Hinckley was found not guilty by reason of insanity for his attempt on President Reagan’s life, 6 that other states began to follow Michigan’s lead. See id. at 946-47; Mark A. Woodmansee, Comment, The Guilty but Mentally Ill Verdict: Political Expediency at the Expense of Moral Principle , 10 Notre Dame J.L. Ethics & Pub.7 These 13 states are Alaska, Alaska Stat. § 12.47.03 0; Delaware, Del. Code

Ann. tit. 11, § 401(b); Georgia, Ga. Code Ann. § 17 -7-131; Illinois, 725 Ill. Comp. Stat. Ann. 5/115-3(c), -4(j); Indiana, Ind. C ode Ann. § 35-36-2-3; Kentucky, Ky. Rev. Stat. Ann. §§ 504.120, .130; Mic higan, Mich. Comp. Laws Ann. § 768.36; Nevada, Nev. Rev. Stat. § 174.035; N ew Mexico, N.M. Stat. Ann. §§ 31-9-3 to -4; Pennsylvania, 18 Pa. Cons. Stat. A nn. § 314; South Carolina, S.C. Code Ann. § 17-24-20; South Dakota, S.D. Codif ied Laws § 23A-26-14; and Utah, Utah Code Ann. §§ 77-16a-103 to -104 (“guilty and mentally ill”).

8 The Illinois intermediate appellate court operates as a nonunitary system. Therefore, opinions of any one branch of the appell ate court, while binding on the circuit courts in Illinois, are not binding on the other branches of the appellate court. See Garcia v. Hynes & Howes Real Estate, Inc. , 331 N.E.2d 634, 636 (Ill. App. Ct. 1975). -10- Pol’y 341, 341-45 (1996). To date, thirteen states have enacted some form of GBMI legislation. 7 Despite mixed reviews by commentators, the judiciary has been largely unwilling to strike down GBMI statutes as unconstitutional. See, e.g. , United States ex rel. Weismiller v. Lane , 815 F.2d 1106, 1109-13 (7th Cir. 1987); Taylor
v. State , 440 N.E.2d 1109, 1111-13 (Ind. 1982); People v. Ramsey , 375 N.W.2d 297 (Mich. 1985); State v. Baker , 440 N.W.2d 284, 287-90 (S.D. 1989). Only an intermediate appellate court in Illinois has held t hat its GBMI statute deprives mentally ill defendants of due process. See People v. Robles , 682 N.E.2d 194, 205 (Ill. App. Ct.), appeal allowed, 686 N.E.2d 1170 (Ill. 1997). In reaching its conclusion, the Robles court rejected numerous decisions by other branche s of the appellate court upholding Illinois’ GBMI statute. 8 See id. at 206-07 (Thomas, J., dissenting) (collecting cases).9 To be considered “legally insane” under New Mexico law, the jury must

find the defendant “‘as a result of disease of the mind . . . (a) did not know the nature and quality of the act or (b) did not know t hat it was wrong or (c) was incapable of preventing himself from committing it. ’” Neely I, 819 P.2d at 254 (ellipses in original) (quoting State v. Dorsey , 603 P.2d 717, 719 (N.M. 1979)).

10 The term “mentally ill” is defined as a substantial disorder of thought, mood or behaviorwhich afflicted a person at the time of the commission of the offense and which impaired that person’s judgment, but not to the ext ent that he did not know what he was doing or understand the consequenc es of his act or did not know that his act was wrong or could not pr event himself from committing the act. N.M. Stat. Ann. § 31-9-3(A). -11- Under the New Mexico GBMI scheme, if a defendant as serts a defense of insanity, the trial court provides the jury with a special verdict form of GBMI and instructs the jury that it may return a verdict of GBMI instead of a verdict of guilty or not guilty. See N.M. Stat. Ann. § 31-9-3(E). The jury may return a verdict of GBMI only if it finds beyond a reasonabl e doubt that the defendant (1) committed the charged offense, (2) was not lega lly insane 9 at the time of the commission of the offense, and (3) was mentally ill at the time of the commission of the offense. 10 See id. Unlike a defendant found legally insane, a defend ant found GBMI is held criminally responsible for her c onduct. See id. § 31-9-3(A). In sentencing a defendant found GBMI, the court mayimpose any sentence that could be imposed on a defendant found guilty of the same offense. See id. § 31- 9-4. If the mentally ill defendant is incarcerated , the corrections department is required to “examine the nature, extent, continuanc e and treatment of the-12-

defendant’s mental illness and . . . provide psychi atric, psychological and other counseling and treatment for the defendant as it de ems necessary.” Id. In support of her argument that New Mexico’s GBMI s tatutory scheme deprives mentally ill defendants of due process, Ne ely contends the verdict infringes on her interest in a fair determination o f whether she was guilty or not guilty by reason of insanity. According to Neely, the GBMI verdict falsely promises a middle ground between an absolute guiltyverdict and a NGRI verdict, leading to compromise verdicts. She further argues the GBMI statute does not serve a legitimate state interest.
In Neely I, the New Mexico Supreme Court determined there wer e legitimate purposes for the GBMI statute. First, t he court stated the statute “increases the likelihood that the jury will return a verdict in accordance with the appropriate legal standards--and it is a legitimate state interest to see juries return verdicts that accord with the law.” Neely I, 819 P.2d at 252

. According to the court, the GBMI verdict “clarifies for the jury the distinction between a defendant who is not guilty by reason of insanity and one who is mentally ill yet not criminally insane and, therefore, is criminally lia ble.” Id. Thus, the verdict may “reduce the number of improper or inaccurate insani ty acquittals.” Id. Neely, on the other hand, argues the GBMI statute i ncreases verdict inaccuracy rather than verdict accuracy. In support of her argument, Neely-13-

contends the GBMI verdict is illusory and is design ed to divert the jury’s attention from deciding the ultimate issue of guiltor innocence, thus leading juries to improperly convict defendants who are leg ally insane. Neely also relies on data that few defendants even raise the issue of insanity and those who do are rarely successful. This court agrees with the Neely I court that New Mexico has a legitimate interest in ensuring its juries decide cases in acc ordance with the law. See id. ; see also Weismiller , 815 F.2d at 1112. We also agree that the GBMI ve rdict may assist a jury presented with an insanity defense in determining the culpability of the defendant. See Neely I, 819 P.2d at 252-53 (citing Weismiller , 815 F.2d at 1112). Admittedly, the addition of another possibl e verdict in an insanity trial may complicate the jury’s task. See Ramsey , 375 N.W.2d at 301. The GBMI verdict, however, may actually serve to clarify the jury’s duty by disclosing gradations of criminal responsibility: a defendant who is mentally ill, but not insane, at the time of the commission of the offens e must be held responsible for her conduct. See Neely I, 819 P.2d at 252-53 (citing Weismiller , 815 F.2d at 1112); Baker , 440 N.W.2d at 288. Importantly, before finding a defendant GBMI, the j ury must first find beyond a reasonable doubt that the defendant was no t legally insane. See N.M. Stat. Ann. § 31-9-3(E). Neely offers no independen t evidence to support her-14-

claim that the addition of the GBMI verdict distrac ts a jury from making that determination. Cf. Weismiller , 815 F.2d at 1112 (rejecting defendant’s argument that availability of GBMI verdict leads to compromi se verdicts and noting empirical data “casts doubt” on the argument); Ramsey , 375 N.W.2d at 302 (finding defendant’s compromise verdict claim to be speculative and noting argument presumes jury compromise anytime multiple verdicts are submitted to the jury). Finally, even if erroneous insanity acquittals are not a significant problem in New Mexico, the state legislature may still act to remedy what it perceives to be a problem. This court does not judge the wisdom of the legislature’s enactment of the GBMI statute. See Bensing v. United States , 551 F.2d 262, 265 (10th Cir. 1977) (“A court must be ever alert to re fuse to sit as a super-legislature to weigh the wisdom of legislation, or to invoke th e Due Process Clause so as to strike down laws or regulations simply because the Court may believe that they are unwise or improvident.”). The second state interest identified by the New Mex ico Supreme Court is that the GBMI statute “may assist in identification of convicted defendants in need of psychiatric treatment.” Neely I, 819 P.2d at 252. According to the court, the GBMI verdict allows the “jury to signal to the sentencing court and the-15-

department of corrections that in its judgment afte r having considered the facts presented the defendant is a person in need of eval uation.” Id. at 253. Neely argues the court’s reasoning is defective bec ause the jury is not instructed on the consequences of the NGRI and GBMI verdicts and, indeed, is expressly told not to consider the consequences of its verdict. The jury need not be informed of the consequences of a GBMI verdict i n order for the verdict to have the effect of signaling to the sentencing court or the corrections department that the defendant may be in need of psychiatric tr eatment. The jury accomplishes this purpose simply by finding the def endant mentally ill. Neely also argues the GBMI verdict is an ineffectiv e method of identifying defendants presently in need of treatment because t he jury evaluates the defendant’s mental state at the time of the commiss ion of the offense, rather than the defendant’s mental state at the time of trial. The asserted purpose of the verdict, however, is to identify those defendants w ho will likely need treatment, not to make a clinical determination of whether the defendant’s mental condition at the time of trial necessitates treatment. By fi nding a defendant mentally ill, the jury ensures that those who are qualified to make s uch a determination will further evaluate the defendant. See N.M. Stat. Ann. § 31-9-4 (providing that if defendant is found GBMI and is sentenced to the cus tody of the corrections department, the department “shall examine the natur e, extent, continuance and11 The third state interest identified by the Neely I court was that the GBMI statute may “facilitate just sentencing of mentally ill defendants.” 819 P.2d at 252. In Neely II, however, the New Mexico Supreme Court concluded the sentencing court does not have discretion to modifya mentally ill defendant’s mandatory life sentence. See 876 P.2d at 223. -16- treatment of the defendant’s mental illness”); see also Weismiller , 815 F.2d at 1111 (“[I]t cannot be said that the state is not as sisted in its obligation to provide treatment to those who need it by a statute which i dentifies a class which is most likely to need it.”). While the New Mexico Supreme Court in Neely I identified a third state interest underlying the GBMI statute, 11 this court need not address this interest in light of our agreement that legitimate state intere sts are furthered by the statute. Moreover, this court rejects Neely’s argument that the GBMI statute infringed on her interest in a fair determination of her guilt o r innocence. Consequently, we reject her argument that New Mexico’s GBMI statute violates a mentally ill defendant’s due process rights and right to a fair trial.
C. Cruel and Unusual Punishment Neely next argues New Mexico’s GBMI statute subject s mentally ill defendants such as Neely to cruel and unusual punis hment, in violation of the Eighth and Fourteenth Amendments. She also argues that her specific sentence constitutes cruel and unusual punishment. This cou rt reviews her arguments de

novo. See Lustgarden v. Gunter , 966 F.2d 552, 553 (10th Cir. 1992).-17-

Relying on the Supreme Court’s decision in Thompson v. Oklahoma , 487 U.S. 815 (1988) (plurality opinion), Neely first ar gues that because mentally ill defendants are less able to control their conduct, they should not be held to the same level of criminal liability and sentencing sta ndards as defendants who are not mentally ill. Thompson , however, addressed the narrow issue of whether a capital sentence imposed on a defendant who was onl y fifteen years old at the time he committed his offense violated the Eighth A mendment. See id. at 818-19 (plurality opinion). The plurality concluded that “contemporary standards of decency confirm our judgment that such a young pers on is not capable of acting with the degree of culpability that can justify the ultimate penalty.” Id. at 823 (plurality opinion). “[T]he [Supreme] Court has held again and again that the death penalty is a unique punishment that requires special analysis wh en determining whether its imposition in a particular case passes constitution al muster.” Baker v. Cowley , 931 F.2d 1394, 1395 (10th Cir. 1991). Given the un ique circumstances and issues involved in Thompson , the Court’s rationale cannot be extended to inval idate a life sentence imposed on an adult convicted of firs t-degree murder. By finding a defendant such as Neely GBMI and therefore rejectin g that defendant’s insanity defense, the jury finds that she understood the con sequences of her conduct, knew12 Defendants convicted of a capital felony may also b e sentenced to death.

See N.M. Stat. Ann. § 31-18-14(A). -18- her conduct was wrong, and could have prevented her self from committing the offense. See N.M. Stat. Ann. § 31-9-3(A) (defining “mentally il l”). The New Mexico legislature has imposed a mandatory minimum life sentence on all defendants found guilty of a capita l felony, 12 including those defendants found GBMI of such felonies. See id. §§ 31-9-3(A), 31-18-14(A); Neely II, 876 P.2d at 223 (holding sentencing court does no t have discretion to modify a mentally ill defendant’s mandatory life se ntence). As this court has previously recognized, “the responsibility for fixi ng prison terms is properly within the province of legislatures, not courts.” Scrivner v. Tansy , 68 F.3d 1234, 1240 (10th Cir. 1995). This court cannot say the i mposition of a life sentence upon a defendant found GBMI of first-degree murder offends the constitutional prohibition against cruel and unusual punishment. See, e.g. , People v. Gindorf , 512 N.E.2d 770, 780-81 (Ill. App. Ct. 1987) (reject ing mentally ill defendant’s Eighth Amendment challenge to life sentence); cf. Baker , 931 F.2d at 1395 (“[W]e know of no cases . . . that forbid the mandatory imposition of a life prison sentence.”). Neely next argues that New Mexico’s GBMI statute vi olates the Eighth Amendment because it does not serve the social purp ose of deterrence.-19-

According to Neely, mentally ill defendants are notlikely to “weigh the prolix distinctions and consequences of ultimately being f ound mentally ill as opposed to being found insane.” To the contrary, the GBMI ver dict reflects the “jury’s determination that the defendant was criminally res ponsible [and] [d]espite her illness, . . . appreciated the wrongfulness of her actions and possessed the ability to conform her conduct to the law; thus deterrence is an appropriate consideration.” Neely I, 819 P.2d at 256. Neely also argues that “[b]y holding that the GBMI statute leaves any treatment of guilty but mentally ill inmates to the unfettered discretion of prison authorities, the [Neely I court] essentially construed it to excuse those au thorities from their constitutional duty to provide minimally adequate medical care to such inmates.” The GBMI statute provides that if a ment ally ill defendant is incarcerated, the corrections department is require d to “examine the nature, extent, continuance and treatment of the defendant’ s mental illness and . . . provide psychiatric, psychological and other counse ling and treatment for the defendant as it deems necessary.” N.M. Stat. Ann. § 31-9-4. Although the statute leaves the treatment of incarcerated mentally ill d efendants to the discretion of the corrections department, that discretion is not unfettered. The Supreme Court has held the states have an obligation to provide m edical care to inmates. See Estelle v. Gamble , 429 U.S. 97, 103 (1976). If the state fails in i ts duty to13 Failure to provide medical care does not, however, render the defendant’s

conviction invalid. See, e.g. , People v. Tenbrink, 287 N.W.2d 223, 225 (Mich. Ct. App. 1979). -20- provide such medical care, the inmate may bring a s eparate suit to compel

treatment. 13 See id. ; Weismiller , 815 F.2d at 1111; Neely I, 819 P.2d at 256 n.11. The department’s discretion is therefore subject to an independent judicial check. Finally, Neely asserts that in light of her his tory of mental illness and the jury’s conclusion that she was mentally ill, her Ei ghth Amendment rights have been violated because she has not been allowed to s erve her sentence in a mental facility. As the federal district court noted, how ever, Neely “does not contend that she has been denied appropriate medical treatm ent or that the Corrections Department is unwilling or unable to provide such treatment as she requires.” There is no evidence in the record concerning Neely ’s current mental state or her current treatment program. “In order to state a co gnizable [Eighth Amendment] claim, a prisoner must allege acts or omissions suf ficiently harmful to evidence deliberate indifference to serious medical needs.” Gamble , 429 U.S. at 106. Neely has made no such allegation. Cf. Baker , 440 N.W.2d at 289-90 (rejecting defendant’s argument that GBMI verdict violated his Eighth Amendment rights because record did not reflect that he needed or wa s denied treatment). The jury’s finding of mental illness also does not support Neely’s argument that she must be allowed to serve her sent ence in a mental facility. By-21-

finding Neely GBMI, the jury made a factual determi nation that she was mentally ill, but not insane, at the time of the commission of her offense. Mental illness is not a static condition. A person who was mentally ill at the time she committed an offense may not require treatment at the later d ate of incarceration. See Weismiller , 815 F.2d at 1111. Furthermore, the jury is not c apable of making a clinical determination of a defendant’s need for ps ychiatric treatment. The GBMI verdict, while signaling that Neely should be furth er evaluated, does not necessarily mean she was in need of treatment at th e time of her sentencing. This court therefore rejects Neely’s argument that her E ighth Amendment rights have been violated because she has not been allowed to s erve her sentence in a mental facility. D. Jury Voir Dire and Jury Instructions Neely’s final argument is that the trial court’s re striction of voir dire and its refusal to instruct the jury on the consequences of the NGRI and GBMI verdicts deprived her of due process and a fair trial. This court’s review of the state trial court’s voirdire is “limited to enforcing the commands of the United States Constitution.” Mu’Min v. Virginia , 500 U.S. 415, 422 (1991). In conducting this revie w, we are deferential to the trial court’s determination of what questions shoul d be asked. See id. at 424. “To be constitutionally compelled, . . . it is not enou gh that such questions might be14 When asked specifically what questions he intended to ask during voir

dire, the following exchange occurred between Neely ’s counsel, Mr. Bustamante, and the trial judge:

Mr. Bustamante: Well, Judge, just asking them if t hey have any fear about it, first of all. If they have any fear about finding Ms. Neely not guilty by reason of insanity. Ask them w hy you have that feeling. That would be the starting point. The Court: Don’t you think a more appropriate ques tion might be if the facts show that she was insane at the tim e, could you follow the instructions and find her not guilty by reason of insanity? Mr. Bustamante: That would be a proper question. Judge, I think a follow-up question would be, if showed thatand you think you could fairly follow the evidence and if you tho ught that she could walk out the door. I mean that is the proble m. -22- helpful. Rather, the trial court’s failure to ask [tendered] questions must render the defendant’s trial fundamentally unfair.” Id. at 425-26. Neely sought to question the venire panel about the ir understanding of the consequences of the NGRI and GBMI verdicts. 14 The trial court denied her request on the grounds that in a non-death penalty case, the jury is not to consider the consequences of its verdict. The court did, ho wever, allow Neely to inquire generally into the panel’s feelings about the insan ity defense and whether they had the ability to find her NGRI if the facts so wa rranted. In response to Neely’s questions, one prospective juror called the NGRI de fense a “cop-out” that “put[s] people right back out [on the streets] again.” Sev eral others expressed concern about whether the defense should excuse a criminal act. Another asked what would happen if Neely was found “guilty with the in sanity plea.” The court-23-

responded that “the jury can’t concern themselves w ith the consequences as to what punishment might be.” Although all these pros pective jurors were ultimately excused, Neely argues the trial court’s failure to correct their misconceptions or explain the consequences of the i nsanity verdict violated her constitutional rights. Neely’s contentions must be considered in light of the underlying purposes of voir dire: to seat an impartial jury and to faci litate the appropriate exercise of peremptory challenges. See id. at 431. “‘[A] suitable inquiry is permissible in order to ascertain whether the juror has any bias, opinion, or prejudice that would affect or control the fair determination by him of the issues to be tried.’” Id. at 422 (alteration in original) (quoting Connors v. United States , 158 U.S. 408, 413 (1895)).
In Lujan v. Tansy , 2 F.3d 1031 (10th Cir. 1993), this court rejected an argument similar to that advanced by Neely. In that case, the defendant argued the trial judge’s failure to instruct the jury abou t the consequences of the NGRI verdict “was particularly egregious because a prosp ective juror, later removed from the panel, expressed concern in front of the e ntire venire during voir dire that if [the defendant] were found not guilty by re ason of insanity, he would be released, posing great danger to the community.” Id. at 1037 n.5. In response to the comment, the trial judge stated that what happe ned to the defendant was-24-

“‘none of [the jury’s] business.’” Id. The court concluded that the “incident does not . . . elevate the alleged instructional error t o one of constitutional dimension.” Id. Although Neely was not allowed to question the ve nire panel about their understanding of the consequences of the NGRI and G BMI verdicts, she was given latitude in questioning the panel about theirbeliefs regarding the insanity defense. She therefore had the opportunity to disc over any biases on the part of the potential jurors concerning the insanity defens e which could affect their deliberations. In light of Lujan and the purposes of voir dire, Neely has not met her burden of showing her trial was rendered fundam entally unfair by the trial court’s refusal to allow her to question the venire panel about their understanding of the NGRI and GBMI verdicts. See id. at 1037 & n.5; see also State v. Poindexter , 431 S.E.2d 254, 255 & n.2 (S.C. 1993) (holding th at purposes of voir dire do not require that venire panel be informed o f consequences of NGRI and GBMI verdicts). Neely also argues the trial court’s refusal to inst ruct the jury on the consequences of the NGRI and GBMI verdicts violatedher constitutional rights. A habeas defendant challenging a state court judgme nt based on an erroneous jury instruction bears a difficult burden. See Maes v. Thomas , 46 F.3d 979, 984 (10th Cir. 1995). To prevail, Neely must establish the a llegedly erroneous instruction-25-

rendered her trial fundamentally unfair. See id. It is not sufficient to show that “‘the instruction is undesirable, erroneous, or eve n universally condemned.’” Henderson v. Kibbe , 431 U.S. 145, 154 (1977) (quoting Cupp v. Naughten , 414 U.S. 141, 146 (1973)). Rather, Neely must establis h the instruction “‘so infected the entire trial that [her] resulting conviction vi olates due process.’” Id. (quoting Naughten , 414 U.S. at 147). Moreover, Neely’s burden is we ighted further because her challenge is premised on the failure to give an instruction rather than the rendering of an erroneous one. See id. at 155. The Neely I court held that state law did not entitle Neely to an instruction on the consequences of the NGRI and GBMI verdicts. See 819 P.2d at 256. According to the court, an instruction on the conse quences of the verdicts “would present an irrelevant issue to the jury.” Id. That holding is consistent with the Supreme Court’s recent opinion in Shannon v. United States , 512 U.S. 573 (1994). In Shannon , the Court held that a federal district court is n ot required to instruct the jury on the consequences of a NGRI ver dict. See id. at 575. In reaching its conclusion, the Court noted the well-e stablished principle that “when a jury has no sentencing function, it should be adm onished to ‘reach its verdict without regard to what sentence might be imposed.’” Id. at 579 (footnote omitted) (quoting Rogers v. United States , 422 U.S. 35, 40 (1975)).-26-

Neely distinguishes Shannon by arguing the jury in her case served a sentencing function. Because one of the asserted p urposes of the GBMI verdict is to identify those defendants in need of treatment, Neely argues the jury played a role in sentencing. As discussed above, however, the jury need not be informed of the consequences of the GBMI verdict in order fo r the verdict to have the intended effect of identifying those defendants in need of further evaluation. Neely further argues that “[i]n a first-degree felo ny case, where a life sentence in prison is mandatory, the jury’s verdict. . . determines the sentence.” Under Neely’s reasoning, any jury whose verdict lea ds to a mandatory sentence would be considered to serve a sentencing function. As Shannon recognized, however, “jurors [generally] are not informed of ma ndatory minimum or maximum sentences, nor are they instructed regardin g probation, parole, or the sentencing range accompanying a lesser included off ense.” Id. at 586-87; see also United States v. Parrish , 925 F.2d 1293, 1299 (10th Cir. 1991) (holding jury instruction about mandatory minimum sentences was p roperly omitted). “The jury’s function is to find the facts and to de cide whether, on those facts, the defendant is guilty of the crime charged .” Shannon , 512 U.S. at 579. In this case, the jury made a factual finding that Nee ly was GBMI of first-degree murder. The New Mexico legislature, not the jury, determined the appropriate sentence. We therefore reject Neely’s argument that the jury in her case served a-27-

sentencing function and thus should have been instructed on the consequences of the possible verdicts. Neely also argues that a jury instruction regarding the consequences of the GBMI and NGRI verdicts was necessary to correct jur ors’ misconceptions about the verdicts. The Court in Shannon specifically rejected this argument. See id. at 584-87. Like the jurors in this case, the jurors i n Shannon were not told the consequences of a NGRI verdict but were rather instructed to disregard the consequences of their verdict. See id. at 585. The Court concluded that although it may be difficult for jurors to set aside the pot ential consequences of their verdict, jurors are presumed to follow their instru ctions. See id. ; see also United States v. Castillo , 140 F.3d 874, 884 (10th Cir. 1998) (“A central as sumption of our jurisprudence is that juries follow the instruc tions they receive.”). As previously indicated, Neely bears an especially heavy burden in challenging her conviction based on the trial court ’s refusal to instruct the jury on the consequences of the NGRI and GBMI verdicts. Sh e must show the omission rendered her trial so fundamentally unfair as to de ny her a fair trial and due process of law. She has failed to do so. See Lujan , 2 F.3d at 1037 (rejecting defendant’s habeas claim that he was denied due pro cess because of trial court’s refusal to instruct on consequences of NGRI verdict ); see also Poindexter , 431-28-

S.E.2d at 255 (holding jury need not be informed of consequences of NGRI and GBMI verdicts).
III. CONCLUSION Neely’s request for a certificate of appealability, construed as a request for a certificate of probable cause, is GRANTED . The district court’s denial of her petition for a writ of habeas corpus is AFFIRMED

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