Panetti v. Quarterman

(Slip Opinion) OCTOBER TERM, 2006 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

PANETTI v. QUARTERMAN, DIRECTOR, TEXAS

DEPARTMENT OF CRIMINAL JUSTICE, COR

RECTIONAL INSTITUTIONS DIVISION

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

No. 06–6407. Argued April 18, 2007—Decided June 28, 2007

Petitioner was convicted of capital murder in a Texas state court and

sentenced to death despite his well-documented history of mental ill

ness. After the Texas courts denied relief on direct appeal, petitioner

filed a federal habeas petition pursuant to 28 U. S. C. §2254, but the

District Court and the Fifth Circuit rejected his claims, and this

Court denied certiorari. In the course of these initial state and fed

eral proceedings, petitioner did not argue that mental illness ren

dered him incompetent to be executed. Once the state trial court set

an execution date, petitioner filed a motion under Texas law claim

ing, for the first time, that he was incompetent to be executed be

cause of mental illness. The trial judge denied the motion without a

hearing and the Texas Court of Criminal Appeals dismissed peti

tioner’s appeal for lack of jurisdiction.

He then filed another federal habeas petition under §2254, and the

District Court stayed his execution to allow the state trial court time

to consider evidence of his then-current mental state. Once the state

court began its adjudication, petitioner submitted 10 motions in

which he requested, inter alia, a competency hearing and funds for a

mental health expert. The court indicated it would rule on the out

standing motions once it had received the report written by the ex

perts that it had appointed to review petitioner’s mental condition.

The experts subsequently filed this report, which concluded, inter

alia, that petitioner had the ability to understand the reason he was

to be executed. Without ruling on the outstanding motions, the judge

found petitioner competent and closed the case. Petitioner then re

turned to the Federal District Court, seeking a resolution of his pend

2 PANETTI v. QUARTERMAN

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ing §2254 petition. The District Court concluded that the state-court

competency proceedings failed to comply with Texas law and were

constitutionally inadequate in light of the procedural requirements

mandated by Ford v. Wainwright, 477 U. S. 399, 410, where this

Court held that the Eighth Amendment prohibits States from inflict

ing the death penalty upon insane prisoners. Although the court

therefore reviewed petitioner’s incompetency claim without deferring

to the state court’s finding of competency, it nevertheless granted no

relief, finding that petitioner had not demonstrated that he met the

standard for incompetency. Under Fifth Circuit precedent, the court

explained, petitioner was competent to be executed so long as he

knew the fact of his impending execution and the factual predicate

for it. The Fifth Circuit affirmed.

Held:

1. This Court has statutory authority to adjudicate the claims

raised in petitioner’s second federal habeas application. Because

§2244(b)(2) requires that “[a] claim presented in a second or succes

sive . . . [§2254] application . . . that was not presented in a prior ap

plication . . . be dismissed,” the State maintains that the failure of pe

titioner’s first §2254 application to raise a Ford-based incompetency

claim deprived the District Court of jurisdiction. The results this ar

gument would produce show its flaws. Were the State’s interpreta

tion of “second or successive” correct, a prisoner would have two op

tions: forgo the opportunity to raise a Ford claim in federal court; or

raise the claim in a first federal habeas application even though it is

premature. Stewart v. Martinez-Villareal, 523 U. S. 637, 644. The

dilemma would apply not only to prisoners with mental conditions

that, at the time of the initial habeas filing, were indicative of incom

petency but also to all other prisoners, including those with no early

sign of mental illness. Because all prisoners are at risk of deteriora

tions in their mental state, conscientious defense attorneys would be

obliged to file unripe (and, in many cases, meritless) Ford claims in

each and every §2254 application. This counterintuitive approach

would add to the burden imposed on courts, applicants, and the

States, with no clear advantage to any. The more reasonable inter

pretation of §2244, suggested by this Court’s precedents, is that Con

gress did not intend the provisions of the Antiterrorism and Effective

Death Penalty Act of 1996 (AEDPA) addressing “second or succes

sive” habeas petitions to govern a filing in the unusual posture pre

sented here: a §2254 application raising a Ford-based incompetency

claim filed as soon as that claim is ripe. See, e.g., Martinez-Villareal,

supra, at 643–645. This conclusion is confirmed by AEDPA’s pur

poses of “further[ing] comity, finality, and federalism,” Miller-El v.

Cockrell, 537 U. S. 322, 337, “promot[ing] judicial efficiency and con

Cite as: 551 U. S. ____ (2007) 3

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servation of judicial resources, . . . and lend[ing] finality to state court

judgments within a reasonable time,” Day v. McDonough, 547 U. S.

198, 205–206. These purposes, and the practical effects of the Court’s

holdings, should be considered when interpreting AEDPA, particu

larly where, as here, petitioners “run the risk” under the proposed in

terpretation of “forever losing their opportunity for any federal re

view of their unexhausted claims,” Rhines v. Weber, 544 U. S. 269,

275. There is, finally, no argument in this case that petitioner pro

ceeded in a manner that could be considered an abuse of the writ. Cf.

Felker v. Turpin, 518 U. S. 651, 664. To the contrary, the Court has

suggested that it is generally appropriate for a prisoner to wait before

seeking the resolution of unripe incompetency claims. See, e.g., Mar

tinez-Villareal, supra, at 644–645. Pp. 9–15.

2. The state court failed to provide the procedures to which peti

tioner was entitled under the Constitution. Ford identifies the

measures a State must provide when a prisoner alleges incompetency

to be executed. Justice Powell’s opinion concurring in part and con

curring in the judgment in Ford controls, see Marks v. United States,

430 U. S. 188, 193, and constitutes “clearly established” governing

law for AEDPA purposes, §2254(d)(1). As Justice Powell elaborated,

once a prisoner seeking a stay of execution has made “a substantial

threshold showing of insanity,” 477 U. S., at 424, the Eighth and

Fourteenth Amendments entitle him to, inter alia, a fair hearing,

ibid., including an opportunity to submit “expert psychiatric evidence

that may differ from the State’s own psychiatric examination,” id., at

427. The procedures the state court provided petitioner were so defi

cient that they cannot be reconciled with any reasonable interpreta

tion of the Ford rule. It is uncontested that petitioner made a sub

stantial showing of incompetency. It is also evident from the record,

however, that the state court reached its competency determination

without holding a hearing or providing petitioner with an adequate

opportunity to provide his own expert evidence. Moreover, there is a

strong argument that the court violated state law by failing to pro

vide a competency hearing. If so, the violation undermines any reli

ance the State might now place on Justice Powell’s assertion that

“the States should have substantial leeway to determine what proc

ess best balances the various interests at stake.” Id., at 427. Under

AEDPA, a federal court may grant habeas relief, as relevant, only if a

state court’s “adjudication of [a] claim on the merits . . . resulted in a

decision that . . . involved an unreasonable application” of the rele

vant federal law. §2254(d)(1). If the state court’s adjudication is de

pendent on an antecedent unreasonable application of federal law,

that requirement is satisfied, and the federal court must then resolve

the claim without the deference AEDPA otherwise requires. See, e.g.,

4 PANETTI v. QUARTERMAN

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Wiggins v. Smith, 539 U. S. 510, 534. Having determined that the

state court unreasonably applied Ford when it accorded petitioner

the procedures in question, this Court must now consider petitioner’s

claim on the merits without deferring to the state court’s competency

finding. Pp. 15–21.

3. The Fifth Circuit employed an improperly restrictive test when

it considered petitioner’s claim of incompetency on the merits. Pp.

21–28.

(a) The Fifth Circuit’s incompetency standard is too restrictive to

afford a prisoner Eighth Amendment protections. Petitioner’s ex

perts in the District Court concluded that, although he claims to un

derstand that the State says it wants to execute him for murder, his

mental problems have resulted in the delusion that the stated reason

is a sham, and that the State actually wants to execute him to stop

him from preaching. The Fifth Circuit held, based on its earlier deci

sions, that such delusions are simply not relevant to whether a pris

oner can be executed so long as he is aware that the State has identi

fied the link between his crime and the punishment to be inflicted.

This test ignores the possibility that even if such awareness exists,

gross delusions stemming from a severe mental disorder may put

that awareness in a context so far removed from reality that the pun

ishment can serve no proper purpose. It is also inconsistent with

Ford, for none of the principles set forth therein is in accord with the

Fifth Circuit’s rule. Although the Ford opinions did not set forth a

precise competency standard, the Court did reach the express conclu

sion that the Constitution “places a substantive restriction on the

State’s power to take the life of an insane prisoner,” 477 U. S., at 405,

because, inter alia, such an execution serves no retributive purpose,

id., at 408. It might be said that capital punishment is imposed be

cause it has the potential to make the offender recognize at last the

gravity of his crime and to allow the community as a whole, including

the victim’s surviving family and friends, to affirm its own judgment

that the prisoner’s culpability is so serious that the ultimate penalty

must be sought and imposed. Both the potential for this recognition

and the objective of community vindication are called into question,

however, if the prisoner’s only awareness of the link between the

crime and the punishment is so distorted by mental illness that his

awareness of the crime and punishment has little or no relation to

the understanding shared by the community as a whole. A prisoner’s

awareness of the State’s rationale for an execution is not the same as

a rational understanding of it. Ford does not foreclose inquiry into

the latter. To refuse to consider evidence of this nature is to mistake

Ford’s holding and its logic. Pp. 21–28.

(b) Although the Court rejects the Fifth Circuit’s standard, it

Cite as: 551 U. S. ____ (2007) 5

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does not attempt to set down a rule governing all competency deter

minations. The record is not as informative as it might be because it

was developed by the District Court under the rejected standard,

and, thus, this Court finds it difficult to amplify its conclusions or to

make them more precise. It is proper to allow the court charged with

overseeing the development of the evidentiary record the initial op

portunity to resolve petitioner’s constitutional claim. Pp. 28–30.

448 F. 3d 815, reversed and remanded.

KENNEDY, J., delivered the opinion of the Court, in which STEVENS,

SOUTER, GINSBURG, and BREYER, JJ., joined. THOMAS, J., filed a dissent

ing opinion, in which ROBERTS, C. J., and SCALIA and ALITO, JJ., joined.

Cite as: 551 U. S. ____ (2007) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash

ington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 06–6407

_________________

SCOTT LOUIS PANETTI, PETITIONER v. NATHANIEL

QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF

CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS

DIVISION

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT

[June 28, 2007]

JUSTICE KENNEDY delivered the opinion of the Court.

“[T]he Eighth Amendment prohibits a State from carry

ing out a sentence of death upon a prisoner who is insane.”

Ford v. Wainwright, 477 U. S. 399, 409–410 (1986). The

prohibition applies despite a prisoner’s earlier competency

to be held responsible for committing a crime and to be

tried for it. Prior findings of competency do not foreclose a

prisoner from proving he is incompetent to be executed

because of his present mental condition. Under Ford, once

a prisoner makes the requisite preliminary showing that

his current mental state would bar his execution, the

Eighth Amendment, applicable to the States under the

Due Process Clause of the Fourteenth Amendment, enti

tles him to an adjudication to determine his condition.

These determinations are governed by the substantive

federal baseline for competency set down in Ford.

Scott Louis Panetti, referred to here as petitioner, was

convicted and sentenced to death in a Texas state court.

After the state trial court set an execution date, petitioner

2 PANETTI v. QUARTERMAN

Opinion of the Court

made a substantial showing he was not competent to be

executed. The state court rejected his claim of incompe

tency on the merits. Filing a petition for writ of habeas

corpus in the United States District Court for the Western

District of Texas, petitioner claimed again that his mental

condition barred his execution; that the Eighth Amend

ment set forth a substantive standard for competency

different from the one advanced by the State; and that

prior state-court proceedings on the issue were insufficient

to satisfy the procedural requirements mandated by Ford.

The State denied these assertions and argued, in addition,

that the federal courts lacked jurisdiction to hear peti

tioner’s claims.

We conclude we have statutory authority to adjudicate

the claims petitioner raises in his habeas application; we

find the state court failed to provide the procedures to

which petitioner was entitled under the Constitution; and

we determine that the federal appellate court employed an

improperly restrictive test when it considered petitioner’s

claim of incompetency on the merits. We therefore reverse

the judgment of the Court of Appeals for the Fifth Circuit

and remand the case for further consideration.

I

On a morning in 1992 petitioner awoke before dawn,

dressed in camouflage, and drove to the home of his es

tranged wife’s parents. Breaking the front-door lock, he

entered the house and, in front of his wife and daughter,

shot and killed his wife’s mother and father. He took his

wife and daughter hostage for the night before surrender

ing to police.

Tried for capital murder in 1995, petitioner sought to

represent himself. The court ordered a psychiatric evalua

tion, which indicated that petitioner suffered from a frag

mented personality, delusions, and hallucinations. 1 App.

9–14. The evaluation noted that petitioner had been

Cite as: 551 U. S. ____ (2007) 3

Opinion of the Court

hospitalized numerous times for these disorders. Id., at

10; see also id., at 222. Evidence later revealed that doc

tors had prescribed medication for petitioner’s mental

disorders that, in the opinion of one expert, would be

difficult for a person not suffering from extreme psychosis

even to tolerate. See id., at 233 (“I can’t imagine anybody

getting that dose waking up for two to three days. You

cannot take that kind of medication if you are close to

normal without absolutely being put out”). Petitioner’s

wife described one psychotic episode in a petition she filed

in 1986 seeking extraordinary relief from the Texas state

courts. See id., at 38–40. She explained that petitioner

had become convinced the devil had possessed their home

and that, in an effort to cleanse their surroundings, peti

tioner had buried a number of valuables next to the house

and engaged in other rituals. Id., at 39. Petitioner never

theless was found competent to be tried and to waive

counsel. At trial he claimed he was not guilty by reason of

insanity.

During his trial petitioner engaged in behavior later

described by his standby counsel as “bizarre,” “scary,” and

“trance-like.” Id., at 26, 21, 22. According to the attorney,

petitioner’s behavior both in private and in front of the

jury made it evident that he was suffering from “mental

incompetence,” id., at 26; see also id., at 22-23, and the net

effect of this dynamic was to render the trial “truly a

judicial farce, and a mockery of self-representation,” id., at

26. There was evidence on the record, moreover, to indi

cate that petitioner had stopped taking his antipsychotic

medication a few months before trial, see id., at 339, 345,

a rejection of medical advice that, it appears, petitioner

has continued to this day with one brief exception, see

Brief for Petitioner 16–17. According to expert testimony,

failing to take this medication tends to exacerbate the

underlying mental dysfunction. See id., at 16, 18, n. 12;

see also 1 App. 195, 228. And it is uncontested that, less

4 PANETTI v. QUARTERMAN

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than two months after petitioner was sentenced to death,

the state trial court found him incompetent to waive the

appointment of state habeas counsel. See Brief for Peti

tioner 15, n. 10. It appears, therefore, that petitioner’s

condition has only worsened since the start of trial.

The jury found petitioner guilty of capital murder and

sentenced him to death. Petitioner challenged his convic

tion and sentence both on direct appeal and through state

habeas proceedings. The Texas courts denied his requests

for relief. See Panetti v. State, No. 72,230 (Crim. App.,

Dec. 3, 1997); Ex parte Panetti, No. 37,145–01 (Crim. App.,

May 20, 1998). This Court twice denied a petition for

certiorari. Panetti v. Texas, 525 U. S. 848 (1998); Panetti

v. Texas, 524 U. S. 914 (1998).

Petitioner filed a petition for writ of habeas corpus

pursuant to 28 U. S. C. §2254 in the United States District

Court for the Western District of Texas. His claims were

again rejected, both by the District Court, Panetti v. John

son, Cause No. A–99–CV–260–SS (2001), and the Court of

Appeals for the Fifth Circuit, Panetti v. Cockrell, 73 Fed.

Appx. 78 (2003) (judgt. order), and we again denied a

petition for certiorari, Panetti v. Dretke, 540 U. S. 1052

(2003). Among the issues petitioner raised in the course of

these state and federal proceedings was his competency to

stand trial and to waive counsel. Petitioner did not argue,

however, that mental illness rendered him incompetent to

be executed.

On October 31, 2003, Judge Stephen B. Ables of the

216th Judicial District Court in Gillespie County, Texas,

set petitioner’s execution date for February 5, 2004. See

First Order Setting Execution in Cause No. 3310; Order

Setting Execution in Cause No. 3310. On December 10,

2003, counsel for petitioner filed with Judge Ables a mo

tion under Tex. Code Crim. Proc. Ann., Art. 46.05 (Vernon

Supp. Pamphlet 2006). Petitioner claimed, for the first

time, that due to mental illness he was incompetent to be

Cite as: 551 U. S. ____ (2007) 5

Opinion of the Court

executed. The judge denied the motion without a hearing.

When petitioner attempted to challenge the ruling, the

Texas Court of Criminal Appeals dismissed his appeal for

lack of jurisdiction, indicating it has authority to review

an Art. 46.05 determination only when a trial court has

determined a prisoner is incompetent. Ex parte Panetti,

No. 74,868 (Jan. 28, 2004) (per curiam).

Petitioner returned to federal court, where he filed

another petition for writ of habeas corpus pursuant to

§2254 and a motion for stay of execution. On February 4,

2004, the District Court stayed petitioner’s execution to

“allow the state court a reasonable period of time to con

sider the evidence of [petitioner’s] current mental state.”

Order in Case No. A–04–CA–042–SS, 1 App. 113–114,

116.

The state court had before it, at that time, petitioner’s

Renewed Motion To Determine Competency To Be Exe

cuted (hereinafter Renewed Motion To Determine Compe

tency). Attached to the motion were a letter and a decla

ration from two individuals, a psychologist and a law

professor, who had interviewed petitioner while on death

row on February 3, 2004. The new evidence, according to

counsel, demonstrated that petitioner did not understand

the reasons he was about to be executed.

Due to the absence of a transcript, the state-court pro

ceedings after this point are not altogether clear. The

claims raised before this Court nevertheless make it nec

essary to recount the procedural history in some detail.

Based on the docket entries and the parties’ filings it

appears the following occurred.

The state trial court ordered the parties to participate in

a telephone conference on February 9, 2004, to discuss the

status of the case. There followed a court directive in

structing counsel to submit, by February 20, the names of

mental health experts the court should consider appoint

ing pursuant to Art. 46.05(f). See ibid. (“If the trial court

6 PANETTI v. QUARTERMAN

Opinion of the Court

determines that the defendant has made a substantial

showing of incompetency, the court shall order at least two

mental health experts to examine the defendant”). The

court also gave the parties until February 20 to submit

any motions concerning the competency procedures and

advised it would hold another status conference on that

same date. Defendant’s Motion To Reconsider in Cause

No. 3310, pp. 1–2 (Mar. 4, 2004) (hereinafter Motion to

Reconsider).

On February 19, 2004, petitioner filed 10 motions re

lated to the Art. 46.05 proceedings. They included re

quests for transcription of the proceedings, a competency

hearing comporting with the procedural due process re

quirements set forth in Ford, and funds to hire a mental

health expert. See Motion To Transcribe All Proceedings

Related to Competency Determination Under Article 46.05

in Cause No. 3310; Motion To Ensure That The Article

46.05 “Final Competency Hearing” Comports With The

Procedural Due Process Requirements of Ford in Cause

No. 3310 (hereinafter Motion to Ensure); Ex Parte Motion

for Prepayment of Funds To Hire Mental Health Expert

To Assist Defense in Article 46.05 Proceedings in Cause

No. 3310.

On February 20 the court failed to hold its scheduled

status conference. Petitioner’s counsel called the court

house and was advised Judge Ables was out of the office

for the day. Counsel then called the Gillespie County

District Attorney, who explained that the judge had in

formed state attorneys earlier that week that he was

cancelling the conference he had set and would appoint

the mental health experts without input from the parties.

Motion to Reconsider 2.

On February 23, 2004, counsel for petitioner received an

order, dated February 20, advising that the court was

appointing two mental health experts pursuant to Art.

§46.05(f). Order in Cause No. 3310, p. 1 (Feb. 26, 2004), 1

Cite as: 551 U. S. ____ (2007) 7

Opinion of the Court

App. 59. On February 25, at an informal status confer

ence, the court denied two of petitioner’s motions, indicat

ing it would consider the others when the court-appointed

mental health experts completed their evaluations. Mo

tion to Reconsider 3. On March 4, petitioner filed a motion

explaining that a delayed ruling would render a number of

the motions moot. Id., at 1. There is no indication the

court responded to this motion.

The court-appointed experts returned with their evalua

tion on April 28, 2004. Concluding that petitioner “knows

that he is to be executed, and that his execution will result

in his death,” and, moreover, that he “has the ability to

understand the reason he is to be executed,” the experts

alleged that petitioner’s uncooperative and bizarre behav

ior was due to calculated design: “Mr. Panetti deliberately

and persistently chose to control and manipulate our

interview situation,” they claimed. 1 App. 75. They main

tained that petitioner “could answer questions about

relevant legal issues . . . if he were willing to do so.” Ibid.

The judge sent a letter to counsel, including petitioner’s

attorney, Michael C. Gross, dated May 14, 2004. It said:

“Dear Counsel:

“It appears from the evaluations performed by [the

court-appointed experts] that they are of the opinion

that [petitioner] is competent to be executed in accor

dance with the standards set out in Art. 46.05 of the

Code of Criminal Procedure.

“Mr. Gross, if you have any other matters you wish

to have considered, please file them in the case papers

and get me copies by 5:00 p.m. on May 21, 2004.”

Petitioner responded with a filing entitled “Objections to

Experts’ Report, Renewed Motion for Funds To Hire Men

tal Health Expert and Investigator, Renewed Motion for

Appointment of Counsel, and Motion for Competency

Hearing” in Cause No. 3310 (May 24, 2004) (hereinafter

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Objections to Experts’ Report). In this filing petitioner

criticized the methodology and conclusions of the court-

appointed experts; asserted his continued need for a men

tal health expert as his own criticisms of the report were

“by necessity limited,” id., at 1; again asked the court to

rule on his outstanding motions for funds and appoint

ment of counsel; and requested a competency hearing.

Petitioner also argued, as a more general matter, that the

process he had received thus far failed to comply with Art.

46.05 and the procedural mandates set by Ford.

The court, in response, closed the case. On May 26, it

released a short order identifying the report submitted by

the court-appointed experts and explaining that “[b]ased

on the aforesaid doctors’ reports, the Court finds that

[petitioner] has failed to show, by a preponderance of the

evidence, that he is incompetent to be executed.” Order

Regarding Competency To Be Executed in Cause No. 3310,

1 App. 99. The order made no mention of petitioner’s

motions or other filings. Petitioner did not appeal the

ruling to the Court of Criminal Appeals, and he did not

petition this Court for certiorari.

This background leads to the matter now before us.

Petitioner returned to federal court, seeking resolution of

the §2254 petition he had filed on January 26. The Dis

trict Court granted petitioner’s motions to reconsider, to

stay his execution, to appoint counsel, and to provide

funds. The court, in addition, set the case for an eviden

tiary hearing, which included testimony by a psychiatrist,

a professor, and two psychologists, all called by petitioner,

as well as two psychologists and three correctional officers,

called by respondent. See 1 App. 117–135, 362–363; see

also id., at 136–336. We describe the substance of the

experts’ testimony in more detail later in our opinion.

On September 29, 2004, the District Court denied peti

tioner’s habeas application on the merits. It concluded

that the state trial court had failed to comply with Art.

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Opinion of the Court

46.05; found the state proceedings “constitutionally inade

quate” in light of Ford; and reviewed petitioner’s Eighth

Amendment claim without deferring to the state court’s

finding of competency. Panetti v. Dretke, 401 F. Supp. 2d

702, 706, 705–706 (WD Tex. 2004). The court nevertheless

denied relief. It found petitioner had not shown incompe

tency as defined by Circuit precedent. Id., at 712. “Ulti

mately,” the court explained, “the Fifth Circuit test for

competency to be executed requires the petitioner know no

more than the fact of his impending execution and the

factual predicate for the execution.” Id., at 711. The

Court of Appeals affirmed, Panetti v. Dretke, 448 F. 3d 815

(CA5 2006), and we granted certiorari, 549 U. S. ___

(2007).

II

We first consider our jurisdiction. The habeas corpus

application on review is the second one petitioner has filed

in federal court. Under the gatekeeping provisions of 28

U. S. C. §2244(b)(2), “[a] claim presented in a second or

successive habeas corpus application under section 2254

that was not presented in a prior application shall be

dismissed” except under certain, narrow circumstances.

See §§2244(b)(2)(A)–(B).

The State maintains that, by direction of §2244, the

District Court lacked jurisdiction to adjudicate petitioner’s

§2254 application. Its argument is straightforward: “[Pe

titioner’s] first federal habeas application, which was fully

and finally adjudicated on the merits, failed to raise a

Ford claim,” and, as a result, “[his] subsequent habeas

application, which did raise a Ford claim, was a ‘second or

successive’ application” under the terms of §2244(b)(2).

Supplemental Brief for Respondent 1. The State contends,

moreover, that any Ford claim brought in an application

governed by §2244’s gatekeeping provisions must be dis

missed. See Supplemental Brief for Respondent 4–6

10 PANETTI v. QUARTERMAN

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(citing §§2244(b)(2)(A)–(B)).

The State acknowledges that Ford-based incompetency

claims, as a general matter, are not ripe until after the

time has run to file a first federal habeas petition. See

Supplemental Brief for Respondent 6. The State neverthe

less maintains that its rule would not foreclose prisoners

from raising Ford claims. Under Stewart v. Martinez-

Villareal, 523 U. S. 637 (1998), the State explains, a fed

eral court is permitted to review a prisoner’s Ford claim

once it becomes ripe if the prisoner preserved the claim by

filing it in his first federal habeas application. Under the

State’s approach a prisoner contemplating a future Ford

claim could preserve it by this means.

The State’s argument has some force. The results it

would produce, however, show its flaws. As in Martinez-

Villareal, if the State’s “interpretation of ‘second or suc

cessive’ were correct, the implications for habeas practice

would be far reaching and seemingly perverse.” 523 U. S.,

at 644. A prisoner would be faced with two options: forgo

the opportunity to raise a Ford claim in federal court; or

raise the claim in a first federal habeas application (which

generally must be filed within one year of the relevant

state-court ruling), even though it is premature. The

dilemma would apply not only to prisoners with mental

conditions indicative of incompetency but also to those

with no early sign of mental illness. All prisoners are at

risk of deteriorations in their mental state. As a result,

conscientious defense attorneys would be obliged to file

unripe (and, in many cases, meritless) Ford claims in each

and every §2254 application. This counterintuitive ap

proach would add to the burden imposed on courts, appli

cants, and the States, with no clear advantage to any.

We conclude there is another reasonable interpretation

of §2244, one that does not produce these distortions and

inefficiencies.

The phrase “second or successive” is not self-defining. It

Cite as: 551 U. S. ____ (2007) 11

Opinion of the Court

takes its full meaning from our case law, including deci

sions predating the enactment of the Antiterrorism and

Effective Death Penalty Act of 1996 (AEDPA), 110 Stat.

1214. See Slack v. McDaniel, 529 U. S. 473, 486 (2000)

(citing Martinez-Villareal, supra); see also Felker v.

Turpin, 518 U. S. 651, 664 (1996). The Court has declined

to interpret “second or successive” as referring to all §2254

applications filed second or successively in time, even

when the later filings address a state-court judgment

already challenged in a prior §2254 application. See, e.g.,

Slack, 529 U. S., at 487 (concluding that a second §2254

application was not “second or successive” after the peti

tioner’s first application, which had challenged the same

state-court judgment, had been dismissed for failure to

exhaust state remedies); see also id., at 486 (indicating

that “pre-AEDPA law govern[ed]” the case before it but

implying that the Court would reach the same result

under AEDPA); see also Martinez-Villareal, supra, at 645.

Our interpretation of §2244 in Martinez-Villareal is

illustrative. There the prisoner filed his first habeas

application before his execution date was set. In the first

application he asserted, inter alia, that he was incompe

tent to be executed, citing Ford. The District Court,

among other holdings, dismissed the claim as premature;

and the Court of Appeals affirmed the ruling. When the

State obtained a warrant for the execution, the prisoner

filed, for the second time, a habeas application raising the

same incompetency claim. The State argued that because

the prisoner “already had one ‘fully-litigated habeas peti

tion, the plain meaning of §2244(b) . . . requires his new

petition to be treated as successive.’ ” 523 U. S., at 643.

We rejected this contention. While the later filing “may

have been the second time that [the prisoner] had asked

the federal courts to provide relief on his Ford claim,” the

Court declined to accept that there were, as a result, “two

separate applications, [with] the second . . . necessarily

12 PANETTI v. QUARTERMAN

Opinion of the Court

subject to §2244(b).” Ibid. The Court instead held that, in

light of the particular circumstances presented by a Ford

claim, it would treat the two filings as a single application.

The petitioner “was entitled to an adjudication of all the

claims presented in his earlier, undoubtedly reviewable,

application for federal habeas relief.” 523 U. S., at 643.

Our earlier holding does not resolve the jurisdictional

question in the instant case. Martinez-Villareal did not

address the applicability of §2244(b) “where a prisoner

raises a Ford claim for the first time in a petition filed

after the federal courts have already rejected the pris

oner’s initial habeas application.” Id., at 645, n. Yet the

Court’s willingness to look to the “implications for habeas

practice” when interpreting §2244 informs the analysis

here. Id., at 644. We conclude, in accord with this prece

dent, that Congress did not intend the provisions of

AEDPA addressing “second or successive” petitions to

govern a filing in the unusual posture presented here: a

§2254 application raising a Ford-based incompetency

claim filed as soon as that claim is ripe.

Our conclusion is confirmed when we consider AEDPA’s

purposes. The statute’s design is to “further the principles

of comity, finality, and federalism.” Miller-El v. Cockrell,

537 U. S. 322, 337 (2003) (internal quotation marks omit

ted). Cf. Day v. McDonough, 547 U. S. 198, 205–206

(2006) (“The AEDPA statute of limitation promotes judi

cial efficiency and conservation of judicial resources, safe

guards the accuracy of state court judgments by requiring

resolution of constitutional questions while the record is

fresh, and lends finality to state court judgments within a

reasonable time” (internal quotation marks omitted)).

These purposes, and the practical effects of our holdings,

should be considered when interpreting AEDPA. This is

particularly so when petitioners “run the risk” under the

proposed interpretation of “forever losing their opportu

nity for any federal review of their unexhausted claims.”

Cite as: 551 U. S. ____ (2007) 13

Opinion of the Court

Rhines v. Weber, 544 U. S. 269, 275 (2005). See also Cas

tro v. United States, 540 U. S. 375, 381 (2003). In Rhines

“[w]e recognize[d] the gravity of [the] problem” posed when

petitioners file applications with only some claims ex

hausted, as well as “the difficulty [this problem has] posed

for petitioners and federal district courts alike.” 544 U. S.,

at 275, 276. We sought to ensure our “solution to this

problem [was] compatible with AEDPA’s purposes.” Id., at

276. And in Castro we resisted an interpretation of the

statute that would “produce troublesome results,” “create

procedural anomalies,” and “close our doors to a class of

habeas petitioners seeking review without any clear indi

cation that such was Congress’ intent.” 540 U. S., at 380,

381. See also Williams v. Taylor, 529 U. S. 420, 437

(2000); Johnson v. United States, 544 U. S. 295, 308–309

(2005); Duncan v. Walker, 533 U. S. 167, 178 (2001); cf.

Granberry v. Greer, 481 U. S. 129, 131–134 (1987).

An empty formality requiring prisoners to file unripe

Ford claims neither respects the limited legal resources

available to the States nor encourages the exhaustion of

state remedies. See Duncan, supra, at 178. Instructing

prisoners to file premature claims, particularly when

many of these claims will not be colorable even at a later

date, does not conserve judicial resources, “reduc[e] piece

meal litigation,” or “streamlin[e] federal habeas proceed

ings.” Burton v. Stewart, 549 U. S. ___, ___ (2007) (slip op.,

at 7) (per curiam) (internal quotation marks omitted).

AEDPA’s concern for finality, moreover, is not implicated,

for under none of the possible approaches would federal

courts be able to resolve a prisoner’s Ford claim before

execution is imminent. See Martinez-Villareal, supra, at

644–645 (acknowledging that the District Court was un

able to resolve the prisoner’s incompetency claim at the

time of his initial habeas filing). And last-minute filings

that are frivolous and designed to delay executions can be

dismissed in the regular course. The requirement of a

14 PANETTI v. QUARTERMAN

Opinion of the Court

threshold preliminary showing, for instance, will, as a

general matter, be imposed before a stay is granted or the

action is allowed to proceed.

There is, in addition, no argument that petitioner’s

actions constituted an abuse of the writ, as that concept is

explained in our cases. Cf. Felker, 518 U. S., at 664

(“[AEDPA’s] new restrictions on successive petitions con

stitute a modified res judicata rule, a restraint on what is

called in habeas corpus practice ‘abuse of the writ’ ”). To

the contrary, we have confirmed that claims of incompe

tency to be executed remain unripe at early stages of the

proceedings. See Martinez-Villareal, 523 U. S., at 644–

645; see also ibid. (suggesting that it is therefore appro

priate, as a general matter, for a prisoner to wait before

seeking resolution of his incompetency claim); Ford v.

Wainwright, 477 U. S. 399 (remanding the case to the

District Court to resolve Ford’s incompetency claim, even

though Ford had brought that claim in a second federal

habeas petition); Barnard v. Collins, 13 F. 3d 871, 878

(CA5 1994) (“[O]ur research indicates no reported decision

in which a federal circuit court or the Supreme Court has

denied relief of a petitioner’s competency-to-be-executed

claim on grounds of abuse of the writ”). See generally

McCleskey v. Zant, 499 U. S. 467, 489–497 (1991).

In the usual case, a petition filed second in time and not

otherwise permitted by the terms of §2244 will not survive

AEDPA’s “second or successive” bar. There are, however,

exceptions. We are hesitant to construe a statute, imple

mented to further the principles of comity, finality, and

federalism, in a manner that would require unripe (and,

often, factually unsupported) claims to be raised as a mere

formality, to the benefit of no party.

The statutory bar on “second or successive” applications

does not apply to a Ford claim brought in an application

filed when the claim is first ripe. Petitioner’s habeas

application was properly filed, and the District Court had

Cite as: 551 U. S. ____ (2007) 15

Opinion of the Court

jurisdiction to adjudicate his claim.

III

A

Petitioner claims that the Eighth and Fourteenth

Amendments of the Constitution, as elaborated by Ford,

entitled him to certain procedures not provided in the

state court; that the failure to provide these procedures

constituted an unreasonable application of clearly estab

lished Supreme Court law; and that under §2254(d) this

misapplication of Ford allows federal-court review of his

incompetency claim without deference to the state court’s

decision.

We agree with petitioner that no deference is due. The

state court’s failure to provide the procedures mandated

by Ford constituted an unreasonable application of clearly

established law as determined by this Court. It is uncon

tested that petitioner made a substantial showing of in

competency. This showing entitled him to, among other

things, an adequate means by which to submit expert

psychiatric evidence in response to the evidence that had

been solicited by the state court. And it is clear from the

record that the state court reached its competency deter

mination after failing to provide petitioner with this proc

ess, notwithstanding counsel’s sustained effort, diligence,

and compliance with court orders. As a result of this

error, our review of petitioner’s underlying incompetency

claim is unencumbered by the deference AEDPA normally

requires.

Ford identifies the measures a State must provide when

a prisoner alleges incompetency to be executed. The four-

Justice plurality in Ford concluded as follows:

“Although the condemned prisoner does not enjoy the

same presumptions accorded a defendant who has yet

to be convicted or sentenced, he has not lost the pro

tection of the Constitution altogether; if the Constitu

16 PANETTI v. QUARTERMAN

Opinion of the Court

tion renders the fact or timing of his execution contin

gent upon establishment of a further fact, then that

fact must be determined with the high regard for

truth that befits a decision affecting the life or death

of a human being. Thus, the ascertainment of a pris

oner’s sanity as a predicate to lawful execution calls

for no less stringent standards than those demanded

in any other aspect of a capital proceeding.” 477 U. S.,

at 411–412.

Justice Powell’s concurrence, which also addressed the

question of procedure, offered a more limited holding.

When there is no majority opinion, the narrower holding

controls. See Marks v. United States, 430 U. S. 188, 193

(1977). Under this rule Justice Powell’s opinion consti

tutes “clearly established” law for purposes of §2254 and

sets the minimum procedures a State must provide to a

prisoner raising a Ford-based competency claim.

Justice Powell’s opinion states the relevant standard as

follows. Once a prisoner seeking a stay of execution has

made “a substantial threshold showing of insanity,” the

protection afforded by procedural due process includes a

“fair hearing” in accord with fundamental fairness. Ford,

477 U. S., at 426, 424 (opinion concurring in part and

concurring in judgment) (internal quotation marks omit

ted). This protection means a prisoner must be accorded

an “opportunity to be heard,” id., at 424 (internal quota

tion marks omitted), though “a constitutionally acceptable

procedure may be far less formal than a trial,” id., at 427.

As an example of why the state procedures on review in

Ford were deficient, Justice Powell explained, the deter

mination of sanity “appear[ed] to have been made solely on

the basis of the examinations performed by state-

appointed psychiatrists.” Id., at 424. “Such a procedure

invites arbitrariness and error by preventing the affected

parties from offering contrary medical evidence or even

Cite as: 551 U. S. ____ (2007) 17

Opinion of the Court

from explaining the inadequacies of the State’s examina

tions.” Ibid.

Justice Powell did not set forth “the precise limits that

due process imposes in this area.” Id., at 427. He ob

served that a State “should have substantial leeway to

determine what process best balances the various inter

ests at stake” once it has met the “basic requirements”

required by due process. Ibid. These basic requirements

include an opportunity to submit “evidence and argument

from the prisoner’s counsel, including expert psychiatric

evidence that may differ from the State’s own psychiatric

examination.” Ibid.

Petitioner was entitled to these protections once he had

made a “substantial threshold showing of insanity.” Id., at

426. He made this showing when he filed his Renewed

Motion To Determine Competency—a fact disputed by no

party, confirmed by the trial court’s appointment of men

tal health experts pursuant to Article 46.05(f), and verified

by our independent review of the record. The Renewed

Motion included pointed observations made by two experts

the day before petitioner’s scheduled execution; and it

incorporated, through petitioner’s first Motion To Deter

mine Competency, references to the extensive evidence of

mental dysfunction considered in earlier legal proceedings.

In light of this showing, the state court failed to provide

petitioner with the minimum process required by Ford.

The state court refused to transcribe its proceedings,

notwithstanding the multiple motions petitioner filed

requesting this process. To the extent a more complete

record may have put some of the court’s actions in a more

favorable light, this only constitutes further evidence of

the inadequacy of the proceedings. Based on the materials

available to this Court, it appears the state court on re

peated occasions conveyed information to petitioner’s

counsel that turned out not to be true; provided at least

one significant update to the State without providing the

18 PANETTI v. QUARTERMAN

Opinion of the Court

same notice to petitioner; and failed in general to keep

petitioner informed as to the opportunity, if any, he would

have to present his case. There is also a strong argument

the court violated state law by failing to provide a compe

tency hearing. See Tex. Code Crim. Proc. Ann., Art.

46.05(k). If this did, in fact, constitute a violation of the

procedural framework Texas has mandated for the adjudi

cation of incompetency claims, the violation undermines

any reliance the State might now place on Justice Powell’s

assertion that “the States should have substantial leeway

to determine what process best balances the various inter

ests at stake.” Ford, supra, at 427. See also, e.g., Brief for

Respondent 16. What is more, the order issued by the

state court implied that its determination of petitioner’s

competency was made solely on the basis of the examina

tions performed by the psychiatrists it had appointed—

precisely the sort of adjudication Justice Powell warned

would “invit[e] arbitrariness and error,” Ford, supra, at

424.

The state court made an additional error, one that Ford

makes clear is impermissible under the Constitution: It

failed to provide petitioner with an adequate opportunity

to submit expert evidence in response to the report filed by

the court-appointed experts. The court mailed the experts’

report to both parties in the first week of May. The report,

which rejected the factual basis for petitioner’s claim, set

forth new allegations suggesting that petitioner’s bizarre

behavior was due, at least in part, to deliberate design

rather than mental illness. Petitioner’s counsel reached

the reasonable conclusion that these allegations war

ranted a response. See Objections to Experts’ Report 13,

and n. 1. On May 14 the court told petitioner’s counsel, by

letter, to file “any other matters you wish to have consid

ered” within a week. Petitioner, in response, renewed his

motions for an evidentiary hearing, funds to hire a mental

health expert, and other relief. He did not submit at that

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Opinion of the Court

time expert psychiatric evidence to challenge the court-

appointed experts’ report, a decision that in context made

sense: The court had said it would rule on his outstanding

motions, which included a request for funds to hire a

mental-health expert and a request for an evidentiary

hearing, once the court-appointed experts had completed

their evaluation. Counsel was justified in relying on this

representation by the court.

Texas law, moreover, provides that a court’s finding of

incompetency will be made on the basis of, inter alia, a

“final competency hearing.” Tex. Code Crim. Proc. Ann.,

Art. 46.05(k); see also Ex parte Caldwell, 58 S. W. 3d 127,

129, 130 (Tex. Crim. App. 2000) (confirming that the

“legislature codified the dictates of Ford by enacting [the

precursor to Art. 46.05]” and indicating that “[t]he deter

mination of whether to appoint experts and conduct a

hearing is within the discretion of the trial court” before a

petitioner has made a substantial showing of incompe

tency). Had the court advised counsel it would resolve the

case without first ruling on petitioner’s motions and with

out holding a competency hearing, petitioner’s counsel

might have managed to procure the assistance of experts,

as he had been able to do on a pro bono basis the day

before petitioner’s previously scheduled execution. It was,

in any event, reasonable for counsel to refrain from pro

curing and submitting expert psychiatric evidence while

waiting for the court to rule on the timely filed motions, all

in reliance on the court’s assurances.

But at this point the court simply ended the matter.

The state court failed to provide petitioner with a consti

tutionally adequate opportunity to be heard. After a

prisoner has made the requisite threshold showing, Ford

requires, at a minimum, that a court allow a prisoner’s

counsel the opportunity to make an adequate response to

evidence solicited by the state court. See 477 U. S., at 424,

427. In petitioner’s case this meant an opportunity to

20 PANETTI v. QUARTERMAN

Opinion of the Court

submit psychiatric evidence as a counterweight to the

report filed by the court-appointed experts. Id., at 424.

Yet petitioner failed to receive even this rudimentary

process.

In light of this error we need not address whether other

procedures, such as the opportunity for discovery or for

the cross-examination of witnesses, would in some cases

be required under the Due Process Clause. As Ford

makes clear, the procedural deficiencies already identified

constituted a violation of petitioner’s federal rights.

B

The state court’s denial of certain of petitioner’s motions

rests on an implicit finding: that the procedures it pro

vided were adequate to resolve the competency claim. In

light of the procedural history we have described, however,

this determination cannot be reconciled with any reason

able application of the controlling standard in Ford.

That the standard is stated in general terms does not

mean the application was reasonable. AEDPA does not

“require state and federal courts to wait for some nearly

identical factual pattern before a legal rule must be ap

plied.” Carey v. Musladin, 549 U. S. ___, ___ (2006) (slip

op., at 2) (KENNEDY, J., concurring in judgment). Nor does

AEDPA prohibit a federal court from finding an applica

tion of a principle unreasonable when it involves a set of

facts “different from those of the case in which the princi

ple was announced.” Lockyer v. Andrade, 538 U. S. 63, 76

(2003). The statute recognizes, to the contrary, that even

a general standard may be applied in an unreasonable

manner. See, e.g., Williams v. Taylor, 529 U. S. 362 (find

ing a state-court decision both contrary to and involving

an unreasonable application of the standard set forth in

Strickland v. Washington, 466 U. S. 668 (1984)). These

principles guide a reviewing court that is faced, as we are

here, with a record that cannot, under any reasonable

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Opinion of the Court

interpretation of the controlling legal standard, support a

certain legal ruling.

Under AEDPA, a federal court may grant habeas relief,

as relevant, only if the state court’s “adjudication of [a]

claim on the merits . . . resulted in a decision that . . .

involved an unreasonable application” of the relevant law.

When a state court’s adjudication of a claim is dependent

on an antecedent unreasonable application of federal law,

the requirement set forth in §2254(d)(1) is satisfied. A

federal court must then resolve the claim without the

deference AEDPA otherwise requires. See Wiggins v.

Smith, 539 U. S. 510, 534 (2003) (performing the analysis

required under Strickland’s second prong without defer

ring to the state court’s decision because the state court’s

resolution of Strickland’s first prong involved an unrea

sonable application of law); id., at 527–529 (confirming

that the state court’s ultimate decision to reject the pris

oner’s ineffective-assistance-of-counsel claim was based on

the first prong and not the second). See also Williams,

supra, at 395–397; Early v. Packer, 537 U. S. 3, 8 (2002)

(per curiam) (indicating that §2254 does not preclude relief

if either “the reasoning [or] the result of the state-court

decision contradicts [our cases]”). Here, due to the state

court’s unreasonable application of Ford, the factfinding

procedures upon which the court relied were “not adequate

for reaching reasonably correct results” or, at a minimum,

resulted in a process that appeared to be “seriously inade

quate for the ascertainment of the truth.” 477 U. S., at

423–424 (Powell, J., concurring in part and concurring in

judgment) (internal quotation marks omitted). We there

fore consider petitioner’s claim on the merits and without

deferring to the state court’s finding of competency.

IV

A

This brings us to the question petitioner asks the Court

22 PANETTI v. QUARTERMAN

Opinion of the Court

to resolve: whether the Eighth Amendment permits the

execution of a prisoner whose mental illness deprives him

of “the mental capacity to understand that [he] is being

executed as a punishment for a crime.” Brief for Peti

tioner 31.

A review of the expert testimony helps frame the issue.

Four expert witnesses testified on petitioner’s behalf in

the District Court proceedings. One explained that peti

tioner’s mental problems are indicative of “schizo-affective

disorder,” 1 App. 143, resulting in a “genuine delusion”

involving his understanding of the reason for his execu

tion, id., at 157. According to the expert, this delusion has

recast petitioner’s execution as “part of spiritual warfare

. . . between the demons and the forces of the darkness

and God and the angels and the forces of light.” Id., at

149. As a result, the expert explained, although petitioner

claims to understand “that the state is saying that [it

wishes] to execute him for [his] murder[s],” he believes in

earnest that the stated reason is a “sham” and the State in

truth wants to execute him “to stop him from preaching.”

Ibid. Petitioner’s other expert witnesses reached similar

conclusions concerning the strength and sincerity of this

“fixed delusion.” Id., at 203; see also id., at 202, 231–232,

333.

While the State’s expert witnesses resisted the conclu

sion that petitioner’s stated beliefs were necessarily in

dicative of incompetency, see id., at 240, 247, 304, particu

larly in light of his perceived ability to understand certain

concepts and, at times, to be “clear and lucid,” id., at 243;

see also id., at 244, 304, 312, they acknowledged evidence

of mental problems, see id., at 239, 245, 308. Petitioner’s

rebuttal witness attempted to reconcile the experts’ testi

mony:

“Well, first, you have to understand that when some

body is schizophrenic, it doesn’t diminish their cogni

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Opinion of the Court

tive ability. . . . Instead, you have a situation where—

and why we call schizophrenia thought dis

order[—]the logical integration and reality connection

of their thoughts are disrupted, so the stimulus comes

in, and instead of being analyzed and processed in a

rational, logical, linear sort of way, it gets scrambled

up and it comes out in a tangential, circumstantial,

symbolic . . . not really relevant kind of way. That’s

the essence of somebody being schizophrenic. . . . Now,

it may be that if they’re dealing with someone who’s

more familiar . . . [in] what may feel like a safer, more

enclosed environment . . . those sorts of interactions

may be reasonably lucid whereas a more extended

conversation about more loaded material would reflect

the severity of his mental illness.” Id., at 328–329.

See also id., at 203 (suggesting that an unmedicated indi

vidual suffering from schizophrenia can “at times” hold an

ordinary conversation and that “it depends [whether the

discussion concerns the individual’s] fixed delusional

system”). There is, in short, much in the record to support

the conclusion that petitioner suffers from severe delu

sions. See, e.g., 1 App. 157, 149, 202–203, 231–232, 328–

329, 333; see generally id., at 136–353.

The legal inquiry concerns whether these delusions can

be said to render him incompetent. The Court of Appeals

held that they could not. That holding, we conclude, rests

on a flawed interpretation of Ford.

The Court of Appeals stated that competency is deter

mined by whether a prisoner is aware “ ‘that he [is] going

to be executed and why he [is] going to be executed,’ ” 448

F. 3d, at 819 (quoting Barnard, 13 F. 3d, at 877); see also

448 F. 3d, at 818 (discussing Ford, 477 U. S., at 421–422

(Powell, J., concurring in part and concurring in judg

ment)). To this end, the Court of Appeals identified the

relevant District Court findings as follows: first, petitioner

24 PANETTI v. QUARTERMAN

Opinion of the Court

is aware that he committed the murders; second, he is

aware that he will be executed; and, third, he is aware

that the reason the State has given for the execution is his

commission of the crimes in question. 448 F. 3d, at 817.

Under Circuit precedent this ends the analysis as a matter

of law; for the Court of Appeals regards these three factual

findings as necessarily demonstrating that a prisoner is

aware of the reason for his execution.

The Court of Appeals concluded that its standard fore

closed petitioner from establishing incompetency by the

means he now seeks to employ: a showing that his mental

illness obstructs a rational understanding of the State’s

reason for his execution. Id., at 817–818. As the court

explained, “[b]ecause we hold that ‘awareness,’ as that

term is used in Ford, is not necessarily synonymous with

‘rational understanding,’ as argued by [petitioner,] we

conclude that the district court’s findings are sufficient to

establish that [petitioner] is competent to be executed.”

Id., at 821.

In our view the Court of Appeals’ standard is too restric

tive to afford a prisoner the protections granted by the

Eighth Amendment. The opinions in Ford, it must be

acknowledged, did not set forth a precise standard for

competency. The four-Justice plurality discussed the

substantive standard at a high level of generality; and

Justice Powell wrote only for himself when he articulated

more specific criteria. Yet in the portion of Justice Mar

shall’s discussion constituting the opinion of the Court

(the portion Justice Powell joined) the majority did reach

the express conclusion that the Constitution “places a

substantive restriction on the State’s power to take the life

of an insane prisoner.” Ford, 477 U. S., at 405. The Court

stated the foundation for this principle as follows:

“[T]oday, no less than before, we may seriously ques

tion the retributive value of executing a person who

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Opinion of the Court

has no comprehension of why he has been singled out

and stripped of his fundamental right to life. . . .

Similarly, the natural abhorrence civilized societies

feel at killing one who has no capacity to come to grips

with his own conscience or deity is still vivid today.

And the intuition that such an execution simply of

fends humanity is evidently shared across this Na

tion. Faced with such widespread evidence of a re

striction upon sovereign power, this Court is com

pelled to conclude that the Eighth Amendment

prohibits a State from carrying out a sentence of

death upon a prisoner who is insane.” Id., at 409–410.

Writing for four Justices, Justice Marshall concluded by

indicating that the Eighth Amendment prohibits execution

of “one whose mental illness prevents him from compre

hending the reasons for the penalty or its implications.”

Id., at 417. Justice Powell, in his separate opinion, as

serted that the Eighth Amendment “forbids the execution

only of those who are unaware of the punishment they are

about to suffer and why they are to suffer it,” id., at 422.

The Court of Appeals’ standard treats a prisoner’s delu

sional belief system as irrelevant if the prisoner knows

that the State has identified his crimes as the reason for

his execution. See 401 F. Supp. 2d, at 712 (indicating that

under Circuit precedent “a petitioner’s delusional beliefs—

even those which may result in a fundamental failure to

appreciate the connection between the petitioner’s crime

and his execution—do not bear on the question of whether

the petitioner ‘knows the reason for his execution’ for the

purposes of the Eighth Amendment”); see also id., at 711–

712. Yet the Ford opinions nowhere indicate that delu

sions are irrelevant to “comprehen[sion]’ or “aware[ness]”

if they so impair the prisoner’s concept of reality that he

cannot reach a rational understanding of the reason for

the execution. If anything, the Ford majority suggests the

26 PANETTI v. QUARTERMAN

Opinion of the Court

opposite.

Explaining the prohibition against executing a prisoner

who has lost his sanity, Justice Marshall in the controlling

portion of his opinion set forth various rationales, includ

ing recognition that “the execution of an insane person

simply offends humanity,” id., at 407; that it “provides no

example to others,” ibid.; that “it is uncharitable to dis

patch an offender into another world, when he is not of a

capacity to fit himself for it,” ibid. (internal quotation

marks omitted); that “madness is its own punishment,”

ibid.; and that executing an insane person serves no re

tributive purpose, id., at 408.

Considering the last—whether retribution is served—it

might be said that capital punishment is imposed because

it has the potential to make the offender recognize at last

the gravity of his crime and to allow the community as a

whole, including the surviving family and friends of the

victim, to affirm its own judgment that the culpability of

the prisoner is so serious that the ultimate penalty must

be sought and imposed. The potential for a prisoner’s

recognition of the severity of the offense and the objective

of community vindication are called in question, however,

if the prisoner’s mental state is so distorted by a mental

illness that his awareness of the crime and punishment

has little or no relation to the understanding of those

concepts shared by the community as a whole. This prob

lem is not necessarily overcome once the test set forth by

the Court of Appeals is met. And under a similar logic the

other rationales set forth by Ford fail to align with the

distinctions drawn by the Court of Appeals.

Whether Ford’s inquiry into competency is formulated

as a question of the prisoner’s ability to “comprehen[d] the

reasons” for his punishment or as a determination into

whether he is “unaware of . . . why [he is] to suffer it,”

then, the approach taken by the Court of Appeals is incon

sistent with Ford. The principles set forth in Ford are put

Cite as: 551 U. S. ____ (2007) 27

Opinion of the Court

at risk by a rule that deems delusions relevant only with

respect to the State’s announced reason for a punishment

or the fact of an imminent execution, see 448 F. 3d, at 819,

821, as opposed to the real interests the State seeks to

vindicate. We likewise find no support elsewhere in Ford,

including in its discussions of the common law and the

state standards, for the proposition that a prisoner is

automatically foreclosed from demonstrating incompe

tency once a court has found he can identify the stated

reason for his execution. A prisoner’s awareness of the

State’s rationale for an execution is not the same as a

rational understanding of it. Ford does not foreclose

inquiry into the latter.

This is not to deny the fact that a concept like rational

understanding is difficult to define. And we must not

ignore the concern that some prisoners, whose cases are

not implicated by this decision, will fail to understand why

they are to be punished on account of reasons other than

those stemming from a severe mental illness. The mental

state requisite for competence to suffer capital punish

ment neither presumes nor requires a person who would

be considered “normal,” or even “rational,” in a layperson’s

understanding of those terms. Someone who is con

demned to death for an atrocious murder may be so cal

lous as to be unrepentant; so self-centered and devoid of

compassion as to lack all sense of guilt; so adept in trans

ferring blame to others as to be considered, at least in the

colloquial sense, to be out of touch with reality. Those

states of mind, even if extreme compared to the criminal

population at large, are not what petitioner contends lie at

the threshold of a competence inquiry. The beginning of

doubt about competence in a case like petitioner’s is not a

misanthropic personality or an amoral character. It is a

psychotic disorder.

Petitioner’s submission is that he suffers from a severe,

documented mental illness that is the source of gross

28 PANETTI v. QUARTERMAN

Opinion of the Court

delusions preventing him from comprehending the mean

ing and purpose of the punishment to which he has been

sentenced. This argument, we hold, should have been

considered.

The flaws of the Court of Appeals’ test are pronounced

in petitioner’s case. Circuit precedent required the Dis

trict Court to disregard evidence of psychological dysfunc

tion that, in the words of the judge, may have resulted in

petitioner’s “fundamental failure to appreciate the connec

tion between the petitioner’s crime and his execution.”

401 F. Supp. 2d, at 712. To refuse to consider evidence of

this nature is to mistake Ford’s holding and its logic.

Gross delusions stemming from a severe mental disorder

may put an awareness of a link between a crime and its

punishment in a context so far removed from reality that

the punishment can serve no proper purpose. It is there

fore error to derive from Ford, and the substantive stan

dard for incompetency its opinions broadly identify, a

strict test for competency that treats delusional beliefs as

irrelevant once the prisoner is aware the State has identi

fied the link between his crime and the punishment to be

inflicted.

B

Although we reject the standard followed by the Court of

Appeals, we do not attempt to set down a rule governing

all competency determinations. The record is not as in

formative as it might be, even on the narrower issue of

how a mental illness of the sort alleged by petitioner

might affect this analysis. In overseeing the development

of the record and in making its factual findings, the Dis

trict Court found itself bound to analyze the question of

competency in the terms set by Circuit precedent. It

acknowledged, for example, the “difficult issue” posed by

the delusions allegedly interfering with petitioner’s under

standing of the reason behind his execution, 401 F. Supp.

Cite as: 551 U. S. ____ (2007) 29

Opinion of the Court

2d, at 712, but it refrained from making definitive findings

of fact with respect to these matters, see id., at 709. See

also id., at 712 (identifying testimony by Dr. Mark Cun

ningham indicating that petitioner “believes the State is

in league with the forces of evil that have conspired

against him” and, as a result, “does not even understand

that the State of Texas is a lawfully constituted author

ity,” but refraining from setting forth definitive findings of

fact concerning whether this was an accurate characteri

zation of petitioner’s mindset).

The District Court declined to consider the significance

those findings might have on the ultimate question of

competency under the Eighth Amendment. See ibid.

(disregarding Dr. Cunningham’s testimony in light of

Circuit precedent). And notwithstanding the numerous

questions the District Court asked of the witnesses, see,

e.g., 1 App. 191–197, 216–218, 234–237, 321–323, it did

not press the experts on the difficult issue it identified in

its opinion, see ibid. The District Court, of course, was

bound by Circuit precedent, and the record was developed

pursuant to a standard we have found to be improper. As

a result, we find it difficult to amplify our conclusions or to

make them more precise. We are also hesitant to decide a

question of this complexity before the District Court and

the Court of Appeals have addressed, in a more definitive

manner and in light of the expert evidence found to be

probative, the nature and severity of petitioner’s alleged

mental problems.

The underpinnings of petitioner’s claims should be

explained and evaluated in further detail on remand. The

conclusions of physicians, psychiatrists, and other experts

in the field will bear upon the proper analysis. Expert

evidence may clarify the extent to which severe delusions

may render a subject’s perception of reality so distorted

that he should be deemed incompetent. Cf. Brief for

American Psychological Association et al. as Amici Curiae

30 PANETTI v. QUARTERMAN

Opinion of the Court

17–19 (discussing the ways in which mental health ex

perts can inform competency determinations). And there

is precedent to guide a court conducting Eighth Amend

ment analysis. See, e.g., Roper v. Simmons, 543 U. S. 551,

560–564 (2005); Atkins v. Virginia, 536 U. S. 304, 311–314

(2002); Ford, 477 U. S., at 406–410.

It is proper to allow the court charged with overseeing

the development of the evidentiary record in this case the

initial opportunity to resolve petitioner’s constitutional

claim. These issues may be resolved in the first instance

by the District Court.

* * *

The judgment of the Court of Appeals is reversed, and

the case is remanded for further proceedings consistent

with this opinion.

It is so ordered.

Cite as: 551 U. S. ____ (2007) 1

THOMAS, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

No. 06–6407

_________________

SCOTT LOUIS PANETTI, PETITIONER v. NATHANIEL

QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF

CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS

DIVISION

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT

[June 28, 2007]

JUSTICE THOMAS, with whom THE CHIEF JUSTICE,

JUSTICE SCALIA, and JUSTICE ALITO join, dissenting.

Scott Panetti’s mental problems date from at least 1981.

While Panetti’s mental illness may make him a sympa

thetic figure, state and federal courts have repeatedly held

that he is competent to face the consequences of the two

murders he committed. In a competency hearing prior to

his trial in 1995, a jury determined that Panetti was

competent to stand trial. A judge then determined that

Panetti was competent to represent himself. At his trial,

the jury rejected Panetti’s insanity defense, which was

supported by the testimony of two psychiatrists. Since the

trial, both state and federal habeas courts have rejected

Panetti’s claims that he was incompetent to stand trial

and incompetent to waive his right to counsel.

This case should be simple. Panetti brings a claim

under Ford v. Wainwright, 477 U. S. 399 (1986), that he is

incompetent to be executed. Presented for the first time in

Panetti’s second federal habeas application, this claim

undisputedly does not meet the statutory requirements for

filing a “second or successive” habeas application. As

such, Panetti’s habeas application must be dismissed.

Ignoring this clear statutory mandate, the Court bends

2 PANETTI v. QUARTERMAN

THOMAS, J., dissenting

over backwards to allow Panetti to bring his Ford claim

despite no evidence that his condition has worsened—or

even changed—since 1995. Along the way, the Court

improperly refuses to defer to the state court’s finding of

competency even though Panetti had the opportunity to

submit evidence and to respond to the court-appointed

experts’ report. Moreover, without undertaking even a

cursory Eighth Amendment analysis, the Court imposes a

new standard for determining incompetency. I respect

fully dissent.

I

The Antiterrorism and Effective Death Penalty Act of

1996 (AEDPA) requires applicants to receive permission

from the court of appeals prior to filing second or succes

sive federal habeas applications. 28 U. S. C. §2244(b)(3).

Even if permission is sought, AEDPA requires courts to

decline such requests in all but two narrow circumstances.

§2244(b)(3)(C); §2244(b)(2).1 Panetti raised his Ford claim

for the first time in his second federal habeas application,

ante, at 4–5, 9, but he admits that he did not seek authori

zation from the Court of Appeals and that his claim does

not satisfy either of the statutory exceptions. Accordingly,

§2244(b) requires dismissal of Panetti’s “second . . . habeas

——————

1 Section 2244(b)(2) states:

“A claim presented in a second or successive habeas corpus applica

tion under section 2254 that was not presented in a prior application

shall be dismissed unless—

“(A) the applicant shows that the claim relies on a new rule of consti

tutional law, made retroactive to cases on collateral review by the

Supreme Court, that was previously unavailable; or

“(B)(i) the factual predicate for the claim could not have been discov

ered previously through the exercise of due diligence; and

“(ii) the facts underlying the claim, if proven and viewed in light of

the evidence as a whole, would be sufficient to establish by clear and

convincing evidence that, but for constitutional error, no reasonable

factfinder would have found the applicant guilty of the underlying

offense.”

Cite as: 551 U. S. ____ (2007) 3

THOMAS, J., dissenting

corpus application.”

The Court reaches a contrary conclusion by reasoning

that AEDPA’s phrase “second or successive” “takes its full

meaning from our case law, including decisions predating

the enactment of [AEDPA].” Ante, at 11 (citing Slack v.

McDaniel, 529 U. S. 473, 486 (2000)). But the Court fails

to identify any pre-AEDPA case that defines, explains, or

modifies the phrase “second or successive.” Nor does the

Court identify any pre-AEDPA case in which a subsequent

habeas application challenging the same state-court judg

ment was considered anything but “second or successive.”2

To my knowledge, there are no such cases.

Before AEDPA’s enactment, the phrase “second or suc

cessive” meant the same thing it does today—any subse

quent federal habeas application challenging a state-court

judgment that had been previously challenged in a federal

habeas application. See, e.g., Kuhlmann v. Wilson, 477

U. S. 436, 451–452 (1986) (plurality opinion); Barefoot v.

Estelle, 463 U. S. 880, 895 (1983). Prior to AEDPA, how

ever, second or successive habeas applications were not

always dismissed. Rather, the pre-AEDPA abuse of the

writ doctrine allowed courts to entertain second or succes

sive applications in certain circumstances. See 28 U. S. C.

§2254(b) Rule 9(b) (1994 ed.) (“A second or successive

petition may be dismissed [when] new and different

grounds are alleged [if] the judge finds that the failure of

the petitioner to assert those grounds in a prior petition

——————

2 The Court identifies two post-AEDPA cases. Ante, at 11 (citing

Slack v. McDaniel, 529 U. S. 473 (2000); Stewart v. Martinez-Villareal,

523 U. S. 637 (1998)). Because these cases were decided after AEDPA,

they do not establish the pre-AEDPA meaning of “second or successive.”

Moreover, these cases do not apply here. The inapplicability of Marti

nez-Villareal is discussed below. Infra, at 5–6. Like Martinez-Villareal,

the narrow exception described in Slack is akin to a renewal of an

initial application. 529 U. S., at 486–487; see infra, at 5–6 (discussing

Martinez-Villareal). Even the Court does not maintain that Slack

applies to Panetti’s claim.

4 PANETTI v. QUARTERMAN

THOMAS, J., dissenting

constituted an abuse of the writ”); McCleskey v. Zant, 499

U. S. 467, 470 (1991); Kuhlmann, supra, at 451–452 (plu

rality opinion); Barefoot, supra, at 895. Consistent with

this practice, prior to AEDPA, federal courts treated Ford

claims raised in subsequent habeas applications as “sec

ond or successive” but usually allowed such claims to

proceed under the abuse of the writ doctrine.3 See Martin

v. Dugger, 686 F. Supp. 1523, 1528 (SD Fla. 1988) (permit

ting a Ford claim raised in a “second” habeas petition

“[b]ecause Ford was a substantial change in constitutional

law [and the prisoner] was unaware of the legal signifi

cance of relevant facts”); Barnard v. Collins, 13 F. 3d 871,

875, 878 (CA5 1994); Shaw v. Delo, 762 F. Supp. 853, 857–

859 (ED Mo. 1991); Johnson v. Cabana, 661 F. Supp. 356,

364 (SD Miss. 1987). Still, though, at least one court

found a Ford claim raised in a subsequent application to

be an abuse of the writ. Rector v. Lockhart, 783 F. Supp.

398, 402–404 (ED Ark. 1992).

When it enacted AEDPA, Congress “further restrict[ed]

the availability of relief to habeas petitioners” and placed

new “limits on successive petitions.” Felker v. Turpin, 518

U. S. 651, 664 (1996). Instead of the judicial discretion

——————

3 If, as the Court asserts, “second or successive” were a pre-AEDPA

term of art that excepted Ford claims, it would be difficult to explain

why, immediately following AEDPA’s passage, Courts of Appeals

uniformly considered subsequent applications raising Ford claims to be

“second or successive” under §2244. See In re Medina, 109 F. 3d 1556,

1563–1565 (CA11 1997) (per curiam); In re Davis, 121 F. 3d 952, 953–

955 (CA5 1997); see also Martinez-Villareal v. Stewart, 118 F. 3d 628,

630–631, 633–634 (CA9 1997) (per curiam) (finding §2244 applicable

but allowing a Ford claim to proceed where it was presented in the

initial habeas application).

The Courts of Appeals uniformly continue to hold that §2244 applies

to successive habeas applications raising Ford claims when the initial

application failed to do so. See, e.g., Richardson v. Johnson, 256 F. 3d

257, 258–259 (CA5 2001); In re Provenzano, 215 F. 3d 1233, 1235 (CA11

2000); Nguyen v. Gibson, 162 F. 3d 600, 601 (CA10 1998) (per curiam).

Cite as: 551 U. S. ____ (2007) 5

THOMAS, J., dissenting

that governed second or successive habeas applications

prior to AEDPA, Congress required dismissal of all second

and successive applications except in two specified circum

stances. §2244(b)(2). AEDPA thus eliminated much of the

discretion that previously saved second or successive

habeas petitions from dismissal.

Stating that we “ha[ve] declined to interpret ‘second or

successive’ as referring to all §2254 applications filed

second or successively in time,” ante, at 11, the Court

relies upon Stewart v. Martinez-Villareal, 523 U. S. 637,

640, 645–646 (1998), in which we held that a subsequent

application raising a Ford claim could go forward. In that

case, however, the applicant had raised a Ford claim in his

initial habeas application, and the District Court had

dismissed it as unripe. 523 U. S., at 640. Refusing to

treat the applicant’s subsequent application as second or

successive, the Court simply held that the second applica

tion renewed the Ford claim originally presented in the

prior application:

“This may have been the second time that respon

dent had asked the federal courts to provide relief on

his Ford claim, but this does not mean that there were

two separate applications, the second of which was

necessarily subject to §2244(b). There was only one

application for habeas relief, and the District Court

ruled (or should have ruled) on each claim at the time

it became ripe. Respondent was entitled to an adjudi

cation of all of the claims presented in his earlier, un

doubtedly reviewable, application for federal habeas

relief.” 523 U. S., at 643.

In other words, Martinez-Villareal held that where an

applicant raises a Ford claim in an initial habeas applica

tion, §2244 does not bar a second application once the

claim ripens because the second application is a continua

tion of the first application. 523 U. S., at 643–645; cf.

6 PANETTI v. QUARTERMAN

THOMAS, J., dissenting

Burton v. Stewart, 549 U. S. ___, ___ (2007) (slip op., at 7)

(per curiam) (“[U]nlike Burton, the prisoner [in Martinez-

Villareal] had attempted to bring this claim in his initial

habeas petition”). Martinez-Villareal does not apply here

because Panetti did not bring his Ford claim in his initial

habeas application.4

The Court does not and cannot argue that any time a

claim would not be ripe in the first habeas petition, it may

be raised in a later habeas petition. We unanimously

rejected such an argument in Burton v. Stewart, supra. In

Burton, the petitioner filed a federal habeas petition chal

lenging his convictions but not challenging his sentence,

which was at that time still on review in the state courts.

After the state courts rejected his sentencing claims, the

petitioner filed a second federal habeas petition, this time

challenging his sentence. The Ninth Circuit held that

Burton’s second petition was not “second or successive”

under AEDPA, “reason[ing] that because Burton had not

exhausted his sentencing claims in state court when he

filed the [first] petition, they were not ripe for federal

habeas review at that time.” Id., at ___ (slip op., at 6)

(internal quotation marks omitted). The Ninth Circuit

found that the second petition was not foreclosed by

AEDPA since the claim would not have been ripe if raised

in the first petition. Ibid. We rejected the Ninth Circuit’s

view and held that AEDPA barred Burton’s second peti

tion. In light of Burton, it simply cannot be maintained

that Panetti is excused from §2244’s requirements solely

——————

4 The

Court claims that Martinez-Villareal “suggest[s] that it is . . .

appropriate, as a general matter, for a prisoner to wait before seeking

resolution of his incompetency claim.” Ante, at 14. But Martinez-

Villareal “suggest[s]” no such thing. 523 U. S., at 645. To the contrary,

as the Court admits, Martinez-Villareal does not determine whether a

prisoner would even be allowed to bring a Ford claim if he waits to

bring it in a second petition. Ante, at 12 (citing Martinez-Villareal,

supra, at 645, n.).

Cite as: 551 U. S. ____ (2007) 7

THOMAS, J., dissenting

because his Ford claim would have been unripe had he

included it in his first habeas application. Today’s deci

sion thus stands only for the proposition that Ford claims

somehow deserve a special (and unjustified) exemption

from the statute’s plain import.

Because neither AEDPA’s text, pre-AEDPA precedent,

nor our AEDPA jurisprudence supports the Court’s under

standing of “second or successive,” the Court falls back on

judicial economy considerations. The Court suggests that

my interpretation of the statute would create an incentive

for every prisoner, regardless of his mental state, to raise

and preserve a Ford claim in the event the prisoner later

becomes insane. Ante, at 10, 13–14. Even if this comes to

pass, it would not be the catastrophe the Court suggests.

District courts could simply dismiss unripe Ford claims

outright, and habeas applicants could then raise them in

subsequent petitions under the safe harbor established by

Martinez-Villareal. Requiring that Ford claims be in

cluded in an initial habeas application would have the

added benefit of putting a State on notice that a prisoner

intends to challenge his or her competency to be executed.

In any event, regardless of whether the Court’s concern is

justified, judicial economy considerations cannot override

AEDPA’s plain meaning. Remaining faithful to AEDPA’s

mandate, I would dismiss Panetti’s application as second

or successive.

II

The Court also errs in holding that the state court un

reasonably applied “clearly established” Supreme Court

precedent by failing to afford Panetti adequate procedural

protections. Ante, at 15. Panetti is entitled to habeas

relief only if the state-court proceedings “resulted in a

decision that was contrary to, or involved an unreasonable

application of, clearly established Federal law, as deter

mined by the Supreme Court of the United States.” 28

8 PANETTI v. QUARTERMAN

THOMAS, J., dissenting

U. S. C. §2254(d)(1). Even if Justice Powell’s concurrence

in Ford qualifies as clearly established federal law on this

point, the state court did not unreasonably apply Ford.5

A

The procedural rights described in Ford are triggered

only upon “a substantial threshold showing of insanity.”

477 U. S., at 426 (Powell, J., concurring in part and con

curring in judgment); id., at 417 (plurality opinion) (using

the term “high threshold”). Following an “independent

review of the record,” ante, at 17, the majority finds that

Panetti has made a satisfactory threshold showing. That

conclusion is insupportable.

Panetti filed only two exhibits with his Renewed Motion

to Determine Competency in the state court. See Scott

Panetti’s Renewed Motion to Determine Competency to Be

Executed in Cause No. 3310 (Gillespie Cty., Tex., 216th

Jud. Dist., Feb. 4, 2004) (hereinafter Renewed Motion).6

——————

5 Toreach the tenuous conclusion that Justice Powell’s opinion consti

tutes clearly established federal law, ante, at 16, the Court ignores the

tension between Justice Powell’s concern that adversarial proceedings

may be counterproductive and the plurality’s position that adversarial

proceedings are required. Compare Ford v. Wainwright, 477 U. S. 399,

426 (1986) (Powell, J., concurring in part and concurring in judgment)

(stating that “ordinary adversarial procedures—complete with live

testimony, cross-examination, and oral argument by counsel—are not

necessarily the best means of arriving at sound, consistent judgments

as to a defendant’s sanity”), with id., at 415, 417 (plurality opinion)

(discussing the importance of adversarial procedures, including cross-

examination). Given these contradictory statements, it is difficult to

say that Justice Powell’s opinion is merely a narrower version of the

plurality’s view. See Marks v. United States, 430 U. S. 188, 193 (1977).

6 This application was itself Panetti’s second bite at the apple in the

state court on the question of his competency to be executed. Panetti

had previously presented a Ford claim in state court, but the docu

ments that accompanied that filing contained “nothing . . . that re

late[d] to his current mental state.” Order in Case No. A–04–CA–042–

SS (WD Tex., Jan. 28, 2004), p. 4; id., at 4 (Jan. 30, 2004) (same). As a

result, the state court denied relief without a hearing, ante, at 5, and

Cite as: 551 U. S. ____ (2007) 9

THOMAS, J., dissenting

The first was a one-page letter from Dr. Cunningham to

Panetti’s counsel describing his 85-minute “preliminary

evaluation” of Panetti. Letter from Mark D. Cunningham,

Ph.D., to Michael C. Gross (Feb. 3, 2004), 1 App. 108. Far

from containing “pointed observations,” ante, at 17, Dr.

Cunningham’s letter is unsworn, contains no diagnosis,

and does not discuss whether Panetti understood why he

was being executed. Ibid. Panetti’s other exhibit was a

one-page declaration of a law professor who attended

Cunningham’s 85-minute meeting with Panetti. Declara

tion of David R. Dow (Feb. 3, 2004), id., at 110. Professor

Dow obviously made no medical diagnosis and simply

discussed his lay perception of Panetti’s mental condition

in a cursory manner. Ibid. The Court describes Dow as

an “expert,” ante, at 17, but law professors are obviously

not experts when it comes to medical or psychological

diagnoses.

Panetti’s Renewed Motion attached no medical reports

or records, no sworn testimony from any medical profes

sional, and no diagnosis of any medical condition. The

Court claims that Panetti referred “to the extensive evi

dence of mental dysfunction considered in earlier legal

proceedings.” Ibid. But as the Federal District Court

noted, Panetti merely “outlined his mental health history

for the time period from 1981 until 1997.” Order in Case

No. A–04–CA–042–SS (Jan. 30, 2004), p. 4. This evi

dence—previously rejected by the state and federal courts

that adjudicated Panetti’s other incompetency claims—

had no relevance to Panetti’s competency to be executed in

2004 when he filed his Renewed Motion. Ibid. In addition

to the utter lack of new medical evidence, no layperson

who had observed Panetti on a day-to-day basis, such as

prison guards or fellow inmates, submitted an affidavit or

——————

the Federal District Court found no error in this determination, Order

in Case No. A–04–CA–042–SS (Jan. 30, 2004), p. 4.

10 PANETTI v. QUARTERMAN

THOMAS, J., dissenting

even a letter. In short, Panetti supported his alleged

incompetency with only the preliminary observations of a

psychologist and a lawyer, whose only contact with Pa

netti was a single 85-minute meeting. It is absurd to

suggest that this quantum of evidence clears the “high

threshold,” entitling claimants to the procedural protec

tions described by the plurality and Justice Powell in

Ford. 477 U. S., at 417 (plurality opinion); see also id., at

426 (Powell, J., concurring in part and concurring in

judgment).7

B

Having determined that Panetti’s evidence exceeded the

high threshold set forth in Ford, the Court asserts that

Ford requires that “a court allow a prisoner’s counsel the

opportunity to make an adequate response to evidence

solicited by the state court.” Ante, at 19 (citing Ford,

supra, at 427 (Powell, J., concurring in part and concur

ring in judgment)). Justice Powell’s concurrence states

that a prisoner has the right to present his or her evidence

to an impartial decisionmaker. In light of the facts before

the Court in Ford, it becomes obvious that in this case

Texas more than satisfied any obligations Justice Powell

described.

——————

7 The Court argues that “the trial court’s appointment of mental

health experts pursuant to Article 46.05(f)” “confirmed” that Panetti

had made a threshold showing. Ante, at 17. But the state court made

no such finding and may have proceeded simply in an abundance of

caution, perhaps to humor the Federal District Court, which had

“stay[ed] the execution [for 60 days to] allow the state court a reason

able period of time to consider the evidence of Panetti’s current mental

state.” Order in Case No. A–04–CA–042–SS (Feb. 4, 2004), p. 3, 1 App.

116. In any event, the question today is not whether Panetti met

Texas’ threshold but whether he met the constitutional one. The Court

cannot avoid answering that question by relying on a related state-law

determination.

Cite as: 551 U. S. ____ (2007) 11

THOMAS, J., dissenting

1

Under the Florida law at issue in Ford, the Governor—

not a court—made the final decision as to the condemned

prisoner’s sanity. 477 U. S., at 412 (plurality opinion).

The prisoner could not submit any evidence and had no

opportunity to be heard. Id., at 412–413; id., at 424 (Pow

ell, J., concurring in part and concurring in judgment). In

other words, the Florida procedures required neither a

neutral decisionmaker nor an opportunity for the prisoner

to present evidence. Id., at 412–413; id., at 424.

Against this backdrop, Justice Powell’s concurrence

states that due process requires an impartial decision-

maker and a chance to present evidence:

“The State should provide an impartial officer or

board that can receive evidence and argument from

the prisoner’s counsel, including expert psychiatric

evidence that may differ from the State’s own psychi

atric examination.” Id., at 427.

In setting forth these minimal procedural protections,

Justice Powell explained that “[b]eyond these basic re

quirements, the States should have substantial leeway to

determine what process best balances the various inter

ests at stake.” Ibid. Justice Powell stressed that “ordi

nary adversarial procedures . . . are not necessarily the

best means of arriving at sound, consistent judgments as

to a defendant’s sanity.” Id., at 426.

2

Because a court considered Panetti’s insanity claim, the

state clearly satisfied Justice Powell’s requirement to

“provide an impartial officer or board.” Id., at 427. The

sole remaining question, then, is whether the state court

“receive[d] evidence and argument from the prisoner’s

counsel, including expert psychiatric evidence that may

differ from the State’s own psychiatric examination.” Ibid.

12 PANETTI v. QUARTERMAN

THOMAS, J., dissenting

At the outset of its discussion, the Court suggests that

Texas is not entitled to “substantial leeway” in determin

ing what procedures are appropriate, see Ford, supra, at

427 (Powell, J., concurring in part and concurring in judg

ment), because Texas may have “violat[ed] the procedural

framework Texas has mandated for the adjudication of

incompetency claims.” Ante, at 18. As its sole support for

that assertion, the Court states that there is “a strong

argument the court violated state law by failing to provide

a competency hearing.” Ibid. But Article 46.05 of the

Texas Code of Criminal Procedure provides no right to a

competency hearing: “The determination of whether to

appoint experts and conduct a hearing [under Article

46.05] is within the discretion of the trial court.” Ex parte

Caldwell, 58 S. W. 3d 127, 130 (Tex. Crim. App. 2000).

Contrary to the Court’s statement, ante, at 19, this discre

tion does not depend on whether a substantial showing of

incompetency has been made. See Caldwell, supra, at

130. Accordingly, there is no basis for denying Texas the

“substantial leeway” Ford grants to States.

Texas law allows prisoners to submit “affidavits, re

cords, or other evidence supporting the defendant’s allega

tions” “that the defendant is presently incompetent to be

executed.” Tex. Code Crim. Proc. Ann., Art. 46.05 (Vernon

Supp. Pamphlet 2006). Therefore, state law provided

Panetti with the legal right to submit whatever evidence

he wanted. Here, it is clear that the state court stood

ready and willing to consider any evidence Panetti wished

to submit. The record of the state proceedings shows that

Panetti took full advantage of this opportunity. For ex

ample, after the court-appointed experts presented their

report, the state court gave Panetti a chance to respond, 1

App. 78, and Panetti filed a 17-page brief objecting to the

report and arguing that there were problems in its meth

Cite as: 551 U. S. ____ (2007) 13

THOMAS, J., dissenting

odology.8 Objections to Experts’ Report, 1 App. 79. No

extensive consideration of Panetti’s submitted evidence

was necessary because the submissions—the single-page

statements of one doctor and one lawyer—were paltry and

unpersuasive. That the evidence presented did not war

rant more extensive examination does not change the fact

that Panetti had an unlimited opportunity to submit

evidence to the state court.

Based on Panetti’s evidence, the report by the court-

appointed experts, and Panetti’s objections to that report,

the state court found that “[d]efendant has failed to show,

by a preponderance of the evidence, that he is incompetent

to be executed.” Id., at 99. Given Panetti’s meager evi

dentiary submissions, it is unsurprising that the state

court declined to proceed further. The Court asserts that

“the order issued by the state court implied that its deter

mination of petitioner’s competency [improperly] was

made solely on the basis of the examinations performed by

the psychiatrists it had appointed.” Ante, at 18. However,

the order’s focus on the report of the court-appointed

experts indicates only that the court found the report to be

persuasive. 1 App. 99. Supported by the persuasive re

port of two neutral experts, the court reasonably con

cluded that Panetti’s meager evidence deserved no men

——————

8 The Court states that Panetti’s “counsel reached the reasonable

conclusion that these allegations warranted a response.” Ante, at 19.

But the Court fails to note that the 17-page brief was the response.

Apart from his motions, Panetti never requested the opportunity to

respond further.

Panetti criticized the court-appointed experts for visiting him only

once, for not conducting psychological testing, for failing to review

collateral information adequately, for failing to take into account his

history of mental problems, and for the abbreviated nature of their

conclusions. Objections to Experts’ Report, Renewed Motion for Funds

to Hire Expert and Investigator, Renewed Motion for Competency

Hearing in Cause No. 3310 (Gillespie Cty., Tex., 216th Jud. Dist., May

21, 2004), 1 App. 82–95 (hereinafter Objection to Experts’ Report).

14 PANETTI v. QUARTERMAN

THOMAS, J., dissenting

tion. See Part II–A, supra. In my view, the state court

fairly implemented the procedures described by Justice

Powell’s opinion in Ford—to “receive evidence and argu

ment from the prisoner’s counsel.” 477 U. S., at 427. At

the very least, the state court did not unreasonably apply

his concurrence. See 28 U. S. C. §2254(d)(1).

3

Because it cannot dispute that Panetti had an unlimited

opportunity to present evidence, the Court argues that the

state court “failed to provide petitioner with an adequate

opportunity to submit expert evidence in response to the

report filed by the court-appointed experts.” Ante, at 18.

According to the Court, this opportunity was denied to

Panetti because the state court failed to rule explicitly on

his motions and failed to warn him that he would receive

no evidentiary hearing.9 This position has no factual

——————

9 The Court does not assert that Panetti actually had a constitutional

right to an evidentiary hearing or to have any of his 10 motions

granted. As discussed above, Justice Powell’s concurrence specifically

rejected the Ford plurality’s contention that an adversarial proceeding

was constitutionally required or even appropriate. Part II–B–1, supra.

Even a cursory look at Panetti’s motions shows that the state court did

not err in refusing to grant them. This Court has never recognized a

right to state-provided experts or counsel on state habeas review. Cf.

Ex Parte Motion for Prepayment of Funds to Hire Mental Health

Expert to Assist Defense in Article 46.05 Proceedings in Cause No.

3310 (Feb. 19, 2004), 1 App. 54; Defendant’s Motion for Appointment of

Counsel to Assist Him in Article 46.05 Proceedings (Feb. 19, 2004), id.,

at 45; Ex Parte Motion for Prepayment of Funds to Hire an Investigator

to Assist Defense Counsel in Cause No. 3310 (Feb. 19, 2004). There is

likewise no right to transcribed court proceedings, videotaped examina

tions, or any other specific protocols for conducting competency evalua

tions. Cf. Motion to Videotape All Competency Examinations of Scott

Panetti Conducted by Court-Appointed Mental Health Experts in

Cause No. 3310 (Feb. 19, 2004); Motion to Transcribe All Proceedings

Related to Competency Determination Under Article 46.05 in Cause

No. 3310 (Feb. 19, 2004); Motion Seeking Order Setting Out Protocol

for Conducting Competency Evaluations of Scott Panetti in Cause No.

Cite as: 551 U. S. ____ (2007) 15

THOMAS, J., dissenting

basis. After the court-appointed experts submitted their

report, the state court made it clear that the case was

proceeding to conclusion and that Panetti’s counsel needed

to submit anything else he wanted the judge to consider:

“It appears from the evaluations performed by Dr.

Mary Anderson and Dr. George Parker that they are

of the opinion that Mr. Panetti is competent to be exe

cuted in accordance with the standards set out in Art.

46.05 of the Code of Criminal Procedure.

“Mr. Gross, if you have any other matters you wish

to have considered, please file them in the case papers

and get me copies by 5:00 p.m. on May 21, 2004.” Let

ter from District Judge Stephen B. Ables in Cause No.

3310 (May 14, 2004), 1 App. 77–78.

Panetti’s counsel got the message. Far from assuming

that there would be a hearing, ante, at 19–20, counsel

renewed his motion requesting a competency hearing and

his motion seeking state funding for a mental health

expert. 1 App. 96–98. Panetti’s filing indicates that he

understood that no hearing was currently scheduled and

that if he wanted to convince the state court not to deny

relief, he needed to do so immediately. See id., at 80–95.

The record demonstrates that what Panetti actually

sought was not the opportunity to submit additional evi

dence—because, at that time, he had no further evidence

to submit—but state funding for his pursuit of more evi

dence. See Ex Parte Motion for Prepayment of Funds to

Hire Mental Health Expert to Assist Defense in Article

——————

3310 (Feb. 19, 2004). And as discussed above, Panetti has no clearly

established constitutional right to a formal, oral hearing, Part II–B–1,

supra, much less a right to discovery. Cf. Defendant’s Motion for

Discovery in Cause No. 3310 (Feb. 19, 2004); Motion to Ensure that the

Article 46.05 “Final Competency Hearing” Comports with the Proce

dural Due Process Requirements of Ford in Cause No. 3310 (Feb. 19,

2004), 1 App. 49.

16 PANETTI v. QUARTERMAN

THOMAS, J., dissenting

46.05 Proceedings in Cause No. 3310 (Feb. 19, 2004), id.,

at 54; Ex Parte Motion for Prepayment of Funds to Hire

an Investigator to Assist Defense Counsel in Cause No.

3310 (Feb. 19, 2004); Defendant’s Motion for Appointment

of Counsel to Assist Him in Article 46.05 Proceedings in

Cause No. 3310 (Feb. 19, 2004), id., at 45; Panetti’s Re

sponse to Show Cause Order in Case No. A–04–CA–042–

SS (June 3, 2004), p. 5; cf. Order in Case No. A–04–CA–

042–SS (Jan. 30, 2004), p. 4. This Court has never recog

nized a constitutional right to state funding for counsel in

state habeas proceedings—much less for experts—and

Texas law grants no such right in Ford proceedings. E.g.,

Ex parte Caldwell, 58 S. W. 3d 127, 130 (Tex. Crim. App.

2000) (holding that funding for counsel or experts in Arti

cle 46.05 proceedings is at the discretion of the district

court); Coleman v. Thompson, 501 U. S. 722, 755 (1991)

(noting that there is no constitutional right to state-funded

counsel in state habeas cases).

In short, there is nothing in the record to suggest that

Panetti would have submitted any additional evidence had

he been given another opportunity to do so. Panetti never

requested more time to submit evidence and never told the

court that he wanted to submit additional evidence in the

event that his requests for fees were denied. Panetti’s

track record of submitting no new evidence in his first

Article 46.05 motion, supra, at 8, n. 6, and only two insub

stantial exhibits in his second, Part II–A, supra, suggests

that it was highly unlikely that Panetti planned to present

anything else. Accordingly, the state-court proceedings to

evaluate Panetti’s insanity claim were not “contrary to, or

. . . an unreasonable application of, clearly established

Federal law,” 28 U. S. C. §2254(d)(1).10

——————

10 Because the Court fails to identify any bona fide constitutional

violation, it provides a laundry list of perceived deficiencies in the state-

court proceedings. Ante, at 18 (“[I]t appears the state court on repeated

Cite as: 551 U. S. ____ (2007)

17

THOMAS, J., dissenting

C

Because the state court did not unreasonably apply

Justice Powell’s procedural analysis, we must defer to its

determination that Panetti was competent to be executed.

See §2254(d)(1). Thus, Panetti is entitled to federal ha

beas relief only if the state court’s determination that he is

competent to be executed “was contrary to, or involved an

unreasonable application of” Supreme Court precedent or

“was based on an unreasonable determination of the facts

in light of the evidence presented in the State court pro

ceeding.” §2254(d). Not even Panetti argues that this

standard is met here.

Applying Justice Powell’s substantive standard for

competency, the state court determined that Panetti was

competent to be executed, 1 App. 99; see also Tex. Code

Crim. Proc. Ann., Art. 46.05(h), a factual determination

that is “presumed to be correct.” §2254(e)(1). That factual

determination was based on an expert report by two doc

tors with almost no evidence to the contrary. See Part II–

——————

occasions conveyed information to petitioner’s counsel that turned out

not to be true; provided at least one significant update to the State

without providing the same notice to petitioner; and failed in general to

keep petitioner informed as to the opportunity, if any, he would have to

present his case”). The state court did request the name of mental

health experts from the parties but ultimately chose experts without

input from the parties. Ante, at 5–7. It canceled a status conference

and failed to give Panetti notice. Ante, at 6. It also never explicitly

ruled on Panetti’s motions despite its statements that it would do so

later. Ante, at 7–8. But Panetti does not argue that the court-

appointed experts were not impartial nor does he explain how the

canceled status conference caused him any harm. Finally, although it

might have been better for the state court to rule explicitly on Panetti’s

outstanding motions, it implicitly denied them by dismissing his claim.

As for the state court’s “failure to keep petitioner informed,” after the

court-appointed experts’ report was issued, the judge sent a letter to

counsel that made it clear that Panetti had one last chance to submit

information. 1 App. 77–78. In short, none of these perceived deficien

cies qualifies as a violation of any “clearly established” federal law.

18 PANETTI v. QUARTERMAN

THOMAS, J., dissenting

A, supra. Hence, Panetti is not entitled to federal habeas

relief under §2254.

III

Because we lack jurisdiction under AEDPA to consider

Panetti’s claim and because, even if jurisdiction were

proper, the state court’s decision constitutes a reasonable

application of federal law, I will not address whether the

Court of Appeals’ standard for insanity is substantively

correct. I do, however, reject the Court’s approach to

answering that question. The Court parses the opinions

in Ford to impose an additional constitutional require

ment without undertaking any Eighth Amendment analy

sis of its own. Because the Court quibbles over the precise

meaning of Ford’s opinions with respect to an issue that

was not presented in that case, what emerges is a half-

baked holding that leaves the details of the insanity stan

dard for the District Court to work out. See ante, at 28–

30. As its sole justification for thrusting already muddled

Ford determinations into such disarray, the Court asserts

that Ford itself compels such a result. It does not.

The four-Justice plurality in Ford did not define insan

ity or create a substantive standard for determining com

petency. See 477 U. S., at 418 (Powell, J., concurring in

part and concurring in judgment) (stating that “[t]he

Court’s opinion does not address” “the meaning of in-

sanity”).11 Only Justice Powell’s concurrence set forth a

standard:

“[No state] disputes the need to require that those

who are executed know the fact of their impending

execution and the reason for it.

——————

11 JusticeMarshall’s plurality opinion in Ford did not even go so far

as to state that there should be a uniform national substantive stan

dard for insanity. It is thus an open question as to how much discretion

the States have in setting the substantive standard for insanity.

Cite as: 551 U. S. ____ (2007) 19

THOMAS, J., dissenting

“Such a standard appropriately defines the kind of

mental deficiency that should trigger the Eighth

Amendment prohibition. If the defendant perceives

the connection between his crime and his punishment,

the retributive goal of the criminal law is satisfied.

And only if the defendant is aware that his death is

approaching can he prepare himself for his passing.

Accordingly, I would hold that the Eighth Amendment

forbids the execution only of those who are unaware of

the punishment they are about to suffer and why they

are to suffer it.” Id., at at 422.

Because the issue before the Court in Ford was actual

knowledge, not rational understanding, ibid., nothing in

any of the Ford opinions addresses what to do when a

prisoner knows the reason for his execution but does not

“rationally understand” it.

Tracing the language of Justice Powell’s concurrence,

the Court of Appeals held that Panetti needed only to be

“ ‘aware’ of” the stated reason for his execution. Panetti v.

Dretke, 448 F. 3d 815, 819 (CA5 2006). Implicitly, the

Court of Appeals also concluded that the fact that Panetti

“disbelieves the State’s stated reason for executing him,”

Panetti v. Dretke, 401 F. Supp. 2d 702, 708 (WD Tex.

2004), does not render him “unaware” of the reason for his

execution. The Court challenges this approach based on

an expansive interpretation of Justice Powell’s use of the

word “aware.” Ante, at 27–28. However, the Court does

not and cannot deny that “awareness” is undefined in Ford

and that Ford does not discuss whether “delusions [that]

so impair the prisoner’s concept of reality that he cannot

reach a rational understanding of the reason for the exe

cution” affect awareness in a constitutionally relevant

manner.12 Ante, at 26. Nevertheless, the Court cobbles

——————

12 The Court points out that “the Ford opinions nowhere indicate that

delusions are irrelevant to ‘comprehen[sion]’ or ‘aware[ness]’ if they so

20 PANETTI v. QUARTERMAN

THOMAS, J., dissenting

together stray language from Ford’s multiple opinions and

asserts that the Court of Appeals’ test is somehow incon

sistent with the spirit of Ford. Because that result does

not follow naturally from Ford, today’s opinion can be

understood only as holding for the first time that the

Eighth Amendment requires “rational understanding.”

Although apparently imposing a new substantive

Eighth Amendment requirement, the Court assiduously

avoids applying our framework for analyzing Eighth

Amendment claims. See Ford, supra, at 405 (first analyz

ing whether execution of the insane was among “those

modes or acts of punishment that had been considered

cruel and unusual at the time that the Bill of Rights was

adopted” in 1791); Roper v. Simmons, 543 U. S. 551, 560–

561 (2005) (considering also whether the punishment is

deemed cruel and unusual according to modern “standards

of decency”); Atkins v. Virginia, 536 U. S. 304, 312 (2002)

(looking for “objective evidence of contemporary values,”

the “clearest and most reliable” of which is the “legislation

enacted by the country’s legislatures” (internal quotation

marks omitted)). The Court likely avoided undertaking

this analysis because there is no evidence to support its

position.13 See, e.g., id., at 340–342 (SCALIA, J., dissent

ing) (discussing the demanding standard employed at

common law to show that a prisoner was too insane to be

executed). The Court of Appeals at least took an approach

——————

impair the prisoner’s concept of reality that he cannot reach a rational

understanding of the reason for the execution.” Ante, at 26. By the

same token, nowhere in the Ford opinions is it suggested that “compre

hen[sion]” or “aware[ness]” is necessarily affected when delusions

impair a prisoner. The Court refuses to acknowledge that Ford simply

does not resolve this question one way or the other.

13 Contrary to the Court’s suggestion, the state of the factual record is

not a genuine impediment to analyzing the constitutional question. See

ante, at 28–30. Our Eighth Amendment framework requires relatively

academic, abstract analysis. Specific facts regarding Panetti’s condi

tion are simply irrelevant to what the Eighth Amendment requires.

Cite as: 551 U. S. ____ (2007) 21

THOMAS, J., dissenting

based on what Ford actually says, an approach that was

far from frivolous or unreasonable. By contrast, the

Court’s approach today—settling upon a preferred out

come without resort to the law—is foreign to the judicial

role as I know it.

* * *

Because the Court’s ruling misinterprets AEDPA, re

fuses to defer to the state court as AEDPA requires, and

rejects the Court of Appeals’ approach without any consti

tutional analysis, I respectfully dissent.