Blair v. Martel

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JAMES NELSON BLAIR, 

Petitioner-Appellant, No. 01-99003

v. D.C. No.

MICHAEL MARTEL, Warden,  CV-99-06859-

California State Prison at San MRP-MC

Quentin, OPINION

Respondent-Appellee.



Appeal from the United States District Court

for the Central District of California

Mariana R. Pfaelzer, Senior District Judge, Presiding

Argued and Submitted

May 12, 2011—Pasadena, California

Filed July 20, 2011

Before: Stephen Reinhardt, Susan P. Graber, and

Johnnie B. Rawlinson, Circuit Judges.

Opinion by Judge Graber

9663

9666 BLAIR v. MARTEL

COUNSEL

Statia Peakheart and C. Pamela Gomez, Deputy Federal Pub-

lic Defenders, Los Angeles, California, for the petitioner-

appellant.

A. Scott Hayward, Deputy Attorney General, Los Angeles,

California, for the respondent-appellee.

OPINION

GRABER, Circuit Judge:

Petitioner James Nelson Blair seeks a writ of habeas cor-

pus. He argues that the California Supreme Court’s delay in

resolving the direct appeal from his murder conviction and

death sentence denied his right to due process under the Four-

teenth Amendment. Because no Supreme Court decision

clearly establishes such a right, we affirm the denial of the

writ.

I. Background

We described the facts that led to Petitioner’s conviction

and sentence in an earlier published order, and we will not

repeat those facts here. Blair v. Woodford, 319 F.3d 1087 (9th

Cir. 2003). That order stayed our consideration of Blair’s

habeas claim pending the outcome of Blair’s direct appeal to

the California Supreme Court, which by that point had finally

begun. Id. at 1088-89. In 2005, the California Supreme Court

rendered its decision affirming Blair’s conviction and sen-

tence in full. People v. Blair, 115 P.3d 1145 (Cal. 2005). We

then resumed our proceedings.

BLAIR v. MARTEL 9667

In a motion filed with us in 2005, while Petitioner’s appeal

from the district court’s denial of his petition was pending,

Petitioner asked for a hearing to determine whether he was

competent to continue pursuing habeas relief. See Rohan ex

rel. Gates v. Woodford, 334 F.3d 803 (9th Cir. 2003) (holding

that a death-sentenced state prisoner has a right to a compe-

tency determination in federal habeas proceedings). In an

unpublished order, we remanded the case to the district court

for the limited purpose of conducting a competency hearing,

and the district court since has determined that Petitioner is

competent. Petitioner now challenges that decision as clearly

erroneous.

In the meantime, we decided a habeas claim similar to Peti-

tioner’s in Hayes v. Ayers, 632 F.3d 500, 523 (9th Cir. 2011),

where we held that no clearly established Supreme Court pre-

cedent recognizes a due process right to a speedy appeal. The

state asks us to affirm the denial of the writ in this case, argu-

ing that Hayes forecloses relief as a matter of law. For the rea-

sons given below, we dismiss in part and affirm in part.

II. Discussion1

A. The district court erred when it placed the burden on

Petitioner to prove his incompetence.

[1] We begin with the competency issue. We addressed the

right of a death-sentenced state prisoner to be competent dur-

ing his federal habeas proceeding in Gates, 334 F.3d at 807-

17 and held that prisoners indeed enjoy such a right under the

statute granting them the services of counsel, id. at 817.

Unless such a prisoner “has the capacity to understand his

position and to communicate rationally with counsel,” the dis-

1

We review a district court’s competency determination for clear error,

Comer v. Schriro, 480 F.3d 960, 962 (9th Cir. 2007) (en banc) (per

curiam), and review de novo the district court’s denial of a petition for

habeas relief, Hayes, 632 F.3d at 507.

9668 BLAIR v. MARTEL

trict court must stay habeas proceedings until the prisoner

regains that capacity. Id. at 819.

The parties do not dispute Petitioner’s right to be compe-

tent while his habeas petition is adjudicated. But they do dis-

pute the proper procedures for determining Petitioner’s

competence. In particular, they quarrel about who bears the

burden of proving their respective points—whether Petitioner

bears the burden of proving his incompetence, or the state

bears the burden of proving Petitioner’s competence.

Petitioner relies for his position on our opinion in Mason

ex rel. Marson v. Vasquez, 5 F.3d 1220, 1225 (9th Cir. 1993),

which involved a death-sentenced state prisoner who wanted

to abandon his federal habeas petition during the course of

those proceedings. His lawyer challenged his competency to

do so. Id. at 1224. The district court convened a competency

hearing and found that the petitioner competently had decided

to withdraw his habeas petition. Id. The issue then came to us

on appeal. Of the procedures to be used in determining some-

one’s competence during habeas proceedings, we wrote:

When a habeas petition has been filed in the federal

district court, appropriately invoking the court’s

jurisdiction and the mental competency of the peti-

tioner is reasonably questioned, it is the obligation of

the court to determine the petitioner’s mental compe-

tence. Initially sufficient evidence must be presented

to cause the court to conduct an inquiry. After that

point it is no one’s burden to sustain, rather it is for

the court to determine by a preponderance of the evi-

dence whether the petitioner is mentally competent

to withdraw his petition.

Id. at 1225. Applying Mason here, the question for the district

court would be whether a preponderance of the evidence

established Petitioner’s competence. If it did not, then Mason

compels a finding of incompetence.

BLAIR v. MARTEL 9669

[2] As the state points out, however, that direction differs

from Congress’ instructions with respect to competency hear-

ings held during federal criminal trials. Under 18 U.S.C.

§ 4241(d), a district court must find a criminal defendant

incompetent when “the court finds by a preponderance of the

evidence that the defendant is presently suffering from a men-

tal disease or defect rendering him mentally incompetent.”

Those instructions apply “[a]t any time after the commence-

ment of a prosecution for an offense and prior to the sentenc-

ing of the defendant, or at any time after the commencement

of probation or supervised release and prior to the completion

of the sentence.” Id. § 4241(a). Using Congress’ rule, the

question for the district court would be whether a preponder-

ance of the evidence established Petitioner’s incompetence.

Otherwise, § 4241(d) compels a finding of competence.

[3] The district court chose to apply the competency stan-

dard for federal criminal trials, rather than the standard

required by Mason for habeas petitioners and put Petitioner to

the task of proving his incompetence. Finding this “a close

case” in which “[c]onsideration of the standard and burden

. . . is of great consequence,” the court decided that Petitioner

failed to carry his burden and found him to be competent. We

cannot agree with its decision to apply the standards in

§ 4241(d). By its own terms, § 4241 does not apply unless a

federal criminal defendant is on trial or is released on proba-

tion. Petitioner has been convicted and sentenced in state

court. He has not been released on probation or otherwise. As

Petitioner’s circumstances plainly do not fall within the terms

of § 4241(a), the procedures in § 4241(d) do not apply. The

district court erred when it held otherwise.

The state nevertheless urges us to confine Mason to its

facts. According to the state’s reading of Mason, we spoke

only to the situation in which a possibly incompetent peti-

tioner decides to abandon a habeas petition. That is, the state

argues, Mason says nothing about a situation in which a pos-

sibly incompetent petitioner initiates or continues to pursue a

9670 BLAIR v. MARTEL

habeas petition. That reading leaves us free, according to the

state, to adopt the well-reasoned standards set out in § 4241,

even if Congress did not intend for § 4241 to apply in these

particular circumstances.

We find the state’s reading of Mason to be unduly narrow.

Although Mason addressed a petitioner who wanted to aban-

don his petition, we did not qualify our holding to that limited

situation. To the contrary, we framed our holding broadly,

referring to any time “[w]hen a habeas petition has been filed

in the federal district court, appropriately invoking the court’s

jurisdiction.” Mason, 5 F.3d at 1225. And we understood that

our formulation of the burden of proof in the habeas context

differed from the permissible burden in the context of a crimi-

nal trial, in which the Supreme Court has upheld a state’s

decision “to place upon the party claiming incompetence the

burden of proving by a preponderance of the evidence that the

defendant is incompetent.” Id. (citing Medina v. California,

505 U.S. 437 (1992)). Despite that difference, we thought that

our formulation of the burden better fit the special context of

federal habeas proceedings.

[4] In addition to noting the fact that the text of our hold-

ing in Mason applies in the present context, we observe that

the logic of Mason applies here as well. Petitioner’s decision

to start or continue a federal habeas case is essentially equiva-

lent to a decision to withdraw a federal habeas case, once

begun; similarly, determining which claims to bring in a

habeas petition and which to leave out requires no less com-

petency than determining whether to withdraw a habeas peti-

tion. The same competency rule logically extends to both.

[5] We therefore hold that, when deciding whether Peti-

tioner possessed the mental competence required under Gates,

the district court had to use the procedure and apply the bur-

den of proof that we prescribed in Mason. Not having done

so, the court erred.

BLAIR v. MARTEL 9671

B. Nonetheless, in the circumstances, we need not remand

the competency issue.

In the usual case, we would reverse an erroneously ana-

lyzed competency determination and remand the matter so

that the court could apply the correct legal standard to the evi-

dence. See generally San Diego Police Officers’ Ass’n v. San

Diego City Emps.’ Ret. Sys., 568 F.3d 725, 741 (9th Cir.

2009) (recognizing that, when reviewing for clear error, we

usually must reverse if the district court applied incorrect

legal standards to reach its findings). Here, however, we need

not reverse and remand because, for the reasons that we dis-

cuss below, even if we assume Petitioner’s incompetence, it

cannot matter to the outcome of this appeal on the sole legal

issue presented.

In Gates, 334 F.3d at 807-17, we surveyed the common

law, Supreme Court precedents, federal statutes, and our own

case law, looking for guidance on whether a right to compe-

tence exists for a capital habeas petitioner. In each of those

places, we saw a common concern: that a condemned prisoner

may, even after trial, “ ‘allege[ ] something in stay of judg-

ment or execution.’ ” Id. at 808 (quoting 4 William Black-

stone, Commentaries *24-25 (1769)). That concern explains

the importance of having adequate post-conviction proceed-

ings, which, we observed in Gates, have come to subsume

other traditional means of giving voice to capital prisoners’

claims. Id. at 811.

We also observed that Congress has acknowledged the

importance of adequate post-conviction review by providing

a right to counsel to all capital prisoners who challenge their

convictions or sentences in federal court. See McFarland v.

Scott, 512 U.S. 849, 859 (1994) (“Congress has recognized

that federal habeas corpus has a particularly important role to

play in promoting fundamental fairness in the imposition of

the death penalty.”). In light of those observations, we rea-

soned that, “if meaningful assistance of counsel is essential to

9672 BLAIR v. MARTEL

the fair administration of the death penalty and capacity for

rational communication is essential to meaningful assistance

of counsel, it follows that Congress’s mandate cannot be

faithfully enforced unless courts ensure that a petitioner is

competent.” Gates, 334 F.3d at 813.

[6] But that rationale only goes so far. When the law fore-

closes a petitioner’s habeas claim no matter what arguments

he might make, we see no benefit that could come from the

petitioner’s communications with his lawyer, rational or oth-

erwise. For that reason, we qualified our holding in Gates to

circumstances in which a capital habeas petitioner “raises

claims that could potentially benefit from his ability to com-

municate rationally.” Id. at 819. We therefore hold that,

whether a habeas petitioner has the competence to assist his

lawyer or not, a habeas petition raising only claims for relief

that fail as a matter of law must be denied. In those circum-

stances, a district court has no obligation to inquire into the

petitioner’s competency, even if some evidence suggests that

the petitioner may be incompetent.2 We therefore need not

remand the competency issue here, even though the district

court applied an incorrect legal standard.

C. Because no Supreme Court case clearly establishes a

due process right to a speedy appeal, Petitioner’s

habeas claim must be denied.

We turn, finally, to the merits of Petitioner’s habeas claim.

When this appeal began, Petitioner alleged that he was being

denied due process by the California Supreme Court’s delay

in processing his direct appeal. He asked that we order that

court to give him the appellate process due him under Califor-

nia law. In making that request, Petitioner raised two distinct

claims. The first alleged a present harm: The delay that he

2

At the time we remanded this case for a competency determination, in

2005, Hayes lay six years in the future and the law was in flux. Were the

same situation to arise today, no remand would be required.

BLAIR v. MARTEL 9673

was experiencing amounted to a deprivation of his state-

created right to an appeal. The second alleged a future harm:

The delay would cause prejudice in the future to his ability to

secure a reversal of his conviction on appeal, or a fair trial on

remand. We take each of those claims in turn.

1. The Request for an Order to Speed Up Petitioner’s

State Appeal

[7] We dismiss this claim for two independent reasons.

First, the claim became moot when the California Supreme

Court heard and decided Petitioner’s appeal on the merits. We

cannot now order that court to do something faster that it has

done already. See generally Church of Scientology of Cal. v.

United States, 506 U.S. 9, 12 (1992) (“[I]f an event occurs

while a case is pending on appeal that makes it impossible for

the court to grant any effectual relief whatever to a prevailing

party, the appeal must be dismissed.” (internal quotation

marks omitted)).

Second, under current Supreme Court law, we lack habeas

jurisdiction to consider Petitioner’s request for an order com-

pelling a state court to process his appeal. In two recent cases,

Wilkinson v. Dotson, 544 U.S. 74 (2005), and Skinner v. Swit-

zer, 131 S. Ct. 1289 (2011), the Court has made clear that an

action brought under 42 U.S.C. § 1983 is the proper course

for a constitutional claim such as the one that Petitioner origi-

nally filed here. Those decisions distinguish between claims

that necessarily imply the invalidity of a conviction, which

must be brought in the context of a habeas petition, and

claims for constitutional violations that do not necessarily

spell speedier release and thus do not lie at the core of habeas

corpus, which may be brought, if at all, under § 1983. Skin-

ner, 131 S. Ct. at 1298-99 & n.13.

[8] Under Skinner in particular, a prisoner, like Petitioner,

who wants to compel the processing of an appeal to which

state law entitles him, may not file a habeas petition to obtain

9674 BLAIR v. MARTEL

that result. A due process claim of that sort does not “neces-

sarily imply the invalidity of [a] conviction.” Id. at 1298

(emphasis added). In fact, it says nothing about the validity of

the conviction because it raises an issue of process, not sub-

stance. Neither does the claim “necessarily spell speedier

release,” id. at 1299 n.13 (emphasis added), because, as hap-

pened here, the state court might affirm the prisoner’s convic-

tion and sentence, leaving him in custody. We therefore

conclude that a request for an order directing a state court to

hasten its consideration of an appeal belongs in a § 1983 com-

plaint, not a habeas petition.3

Because we lack jurisdiction over Petitioner’s first claim,

we dismiss it.

2. The Due Process Claim

The second claim brings us to the heart of Petitioner’s case.

Petitioner argues that the California Supreme Court unreason-

ably applied federal law when it rejected his claim that the

delay in his direct appeal violated his due process right under

the Fourteenth Amendment. See Blair, 115 P.3d at 1190-91

(rejecting Petitioner’s claim that the delay in processing his

direct appeal violated his federal constitutional rights).

[9] Under the now familiar provisions of the Antiterrorism

and Effective Death Penalty Act of 1996 (“AEDPA”), we

may not grant a writ of habeas corpus unless the state court’s

decision under review was “contrary to, or involved an unrea-

sonable application of, clearly established Federal law, as

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

U.S.C. § 2254(d)(1). As an initial matter, Petitioner argues

that § 2254(d) does not apply to his petition because the Cali-

fornia Supreme Court did not adjudicate Petitioner’s exces-

3

We express no view on the merits of such a § 1983 claim or on what

relief, if any, might be available if the claim were pleaded in the proper

place and at the proper time.

BLAIR v. MARTEL 9675

sive delay claim “on the merits” when he first brought this

claim to the California Supreme Court’s attention in a petition

for state habeas relief filed in 1998, while his direct appeal

was pending. See Harrington v. Richter, 131 S. Ct. 770, 780

(2011) (recognizing that § 2254(d), by its own terms, applies

only to “claims previously ‘adjudicated on the merits’ in

state-court proceedings”). The court denied that petition in a

brief but vague order. We need not decide whether that order

demonstrates that the court decided Blair’s due process claim

“on the merits,” however, because Blair’s appellate-delay

claim clearly was “adjudicated on the merits in State court

proceedings” in 2005, when the California Supreme Court

considered the issue among Blair’s other grounds for appeal.

28 U.S.C. § 2254(d); see Blair, 115 P.3d at 1190-91. That

state-court decision suffices to trigger AEDPA’s standard of

review here.

[10] Because § 2254(d) applies, our recent decision in

Hayes forecloses relief on Petitioner’s due process claim. In

Hayes, 632 F.3d at 523, we addressed strikingly similar cir-

cumstances. The petitioner’s appointed lawyers took eleven

years to file the petitioner’s direct appeal in the California

Supreme Court: four years to complete the record, at least two

years to work on the brief, and another five years of unex-

plained delay. The petitioner sought federal habeas relief,

arguing that “the nearly eleven-year delay between his sen-

tencing and the filing of his opening brief on direct appeal . . .

violated his right to due process on appeal.” Id. We rejected

that claim under § 2254(d), holding that “no clearly estab-

lished Federal law, as determined by the Supreme Court of

the United States recognizes a due process right to a speedy

appeal.” Id. (internal quotation marks omitted).

That holding is the law of this circuit. Because no Supreme

Court decision clearly establishes the right that Petitioner

claims California violated, AEDPA requires that we deny the

remainder of his habeas petition.

DISMISSED in part and AFFIRMED in part.