Petition for Writ of Certiorari — Tahina Corcoran, as next friend on behalf of Joseph E. Corcoran, Petitioner v. Ron Neal, Warden

Supreme Court briefDec 17, 2024

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**THIS IS A CAPITAL CASE**

EXECUTION SET FOR

December 18, 2024 (from 12:01 am until Sunrise)

No. _______

_________________________________________

IN THE

SUPREME COURT OF THE UNITED STATES

_________________________________________

TAHINA CORCORAN, next friend for JOSEPH E. CORCORAN, Petitioner,

v.

RON NEAL,

Warden, Indiana State Prison, Respondent.

_________________________________________

On Petition for Writ of Certiorari

to the United States Court of Appeals for the Seventh Circuit

_________________________________________

APPENDIX

_________________________________________

LAURENCE E. KOMP, MO Bar

#40446

FAITH J. TAN, IL Bar #6342729

MICHELLE M. LAW, MO Bar #45487

Federal Public Defender

Western District of Missouri

1000 Walnut Street, Suite 600

Kansas City, MO 64106

816-675-0923

Laurence_Komp@fd.org

Faith_Tan@fd.org

Michelle_Law@fd.org

Attorneys for Petitioner-Appellant

APPENDIX INDEX

1. December 5, 2024, Indiana Supreme Court Order ……………………... 1a – 1a

2. December 10, 2024, Indiana Supreme Court Opinion ……...…………. 2a – 37a

3. December 13, 2024, Northern District of Indiana Opinion and

Order…………………………………………………………………….…… 38a – 68a

4. December 16, 2024, Seventh Circuit Opinion and Order ………….… 69a – 78a

5. Electronic Harassment: A Whistle-blower Report ……….…...……. 79a – 108a

6. December 17, 2024, Seventh Circuit Order Denying Rehearing En Banc

………………………………………………………………………………..… 109a - 109a

In the

Indiana Supreme Court

Joseph E. Corcoran,

Petitioner,

Supreme Court Case Nos.

02S00-0508-PD-350

24S-SD-222

v.

Trial Court Case No.

02D04-9707-CF-465

State of Indiana,

Respondent.

FILED

Dec 05 2024, 4:27 pm

CLERK

Indiana Supreme Court

Court of Appeals

and Tax Court

Published Order

On November 15, 2024, counsel for Joseph E. Corcoran filed two “Motion[s] for Stay of

Execution” and two petitions seeking permission from this Court to litigate on successive postconviction review: (1) whether Corcoran’s execution would violate the Eighth and Fourteenth

Amendments to the United States Constitution or Article One, Section 16 of the Indiana

Constitution; and (2) whether he is currently competent to be executed pursuant to Panetti v.

Quarterman, 551 U.S. 930 (2007) and Ford v. Wainwright, 477 U.S. 399 (1986). On November 26,

2024, the State filed a response in opposition to all of the motions and petitions filed by

Corcoran’s counsel. On December 3, 2024, the Court received an Affidavit from Corcoran,

postmarked November 22, 2024. That same day, Corcoran’s counsel filed a Reply in Support of

Motions to Stay and Motions for Permission to File Successive Petitions for Post-Conviction

Relief.

Having considered the matter before us, the “Motion[s] for Stay of Execution” and the

petitions seeking permission to litigate successive post-conviction relief claims are DENIED.

The Court will promptly issue a written opinion explaining its reasons.

12/5/2024

Done at Indianapolis, Indiana, on ___________

.

Loretta H. Rush

Chief Justice of Indiana

Massa, Slaughter, and Molter, JJ., concur.

Rush, C.J., and Goff, J., dissent.

1a

FILED

Dec 10 2024, 11:01 am

CLERK

Indiana Supreme Court

Court of Appeals

and Tax Court

IN THE

Indiana Supreme Court

Supreme Court Case Nos. 24S-SD-222, 02S00-0508-PD-350

Joseph E. Corcoran,

Petitioner,

–v–

State of Indiana,

Respondent.

Decided: December 10, 2024

On Successive Petitions for Post-Conviction Relief

and Motions to Stay in a Capital Case

Direct Appeal from the Allen Superior Court,

Case No. 02D04-9707-CF-465

Opinion by Justice Molter

Justices Massa and Slaughter concur.

Justice Goff dissents with separate opinion in which Chief Justice Rush joins.

2a

Molter, Justice.

A quarter century ago, an Allen County jury convicted Joseph Corcoran

of a quadruple murder, and the judge sentenced him to death as the jury

recommended. Since then, courts at every level of the state and federal

judiciary have been litigating whether the state and federal constitutions

prohibit Indiana from executing him. That litigation has included multiple

decisions from courts of last resort—five opinions from our Court and two

opinions from the United States Supreme Court. After both judiciaries

resolved all the issues before them, we set an execution date of December

18, 2024.

At this point, Corcoran doesn’t want to petition the courts to challenge

his execution. He recently wrote to us: “I am guilty of the crime I was

convicted of, and accept the findings of all the appellate courts.” Affidavit

at 2. He says “[t]he long drawn out appeal history has addressed all the

issues [he] wished to appeal, such as the issue of competency.” Id. And,

therefore, he does “not wish to proceed with more and/or endless

litigation.” Id. He confirms that he understands he “will then be put to

death for the heinous crime [he] committed,” and that his execution

“serves as both a punishment and a deterrent.” Id.

Contrary to Corcoran’s wishes, the State Public Defender filed two

motions for permission to file two separate successive petitions for postconviction relief and two accompanying motions to stay the execution

while those petitions are litigated. Those submissions argue that

Corcoran’s mental illness precludes his execution. But we can only

disregard Corcoran’s decision to waive post-conviction remedies if he

isn’t competent to make that decision, and our Court previously

concluded that he is. The State Public Defender again questions

Corcoran’s competency to waive post-conviction remedies, but she relies

on the same evidence we considered the last time, and the minimal new

evidence she identifies is offered only to confirm that Corcoran’s

condition is unchanged. Since Corcoran does not authorize the successive

petitions on his behalf, we cannot authorize them either.

Even setting aside the fact that Corcoran has not authorized the

requests for successive petitions, we still must deny the motions because

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there is no reasonable possibility that Corcoran is entitled to relief. The

State Public Defender has standing only to challenge Corcoran’s

competency to waive post-conviction remedies, and the remaining claims

in the first petition are procedurally defaulted anyway. The second

petition argues that Corcoran is not competent to be executed because he

does not have a rational understanding of why the State will execute him.

But we previously concluded he does; ample evidence, including his

recent affidavit, further illustrates that; and the State Public Defender has

not made the threshold substantial showing that anything has changed.

We therefore agree with the State that we must deny all four of the

State Public Defender’s motions.

Facts and Procedural History

I.

Prior State Court Proceedings

A. Corcoran’s Direct Appeal

Just over twenty-five years ago, an Allen County jury convicted Joseph

Corcoran of four murders. He had been “under stress because his sister’s

upcoming marriage would necessitate his moving out of her house,” and

“his brother said Corcoran could not move in with him.” Corcoran v. State,

774 N.E.2d 495, 497 (Ind. 2002). When he “awoke one afternoon to hear his

brother and others downstairs talking about him,” “he loaded his rifle and

went downstairs to intimidate them, but as Corcoran said later, ‘It just

didn’t happen that way.’” Id. Instead, “Corcoran killed his brother, his

sister’s fiancé, and two other men in the ensuing incident.” Id.

That same jury also recommended that Corcoran be sentenced to death

for the four murders, and the trial judge imposed that sentence. When

imposing the sentence, “the trial judge thoughtfully considered the nine

mitigating circumstances asserted by the defendant,” agreeing with many,

including that “the defendant was under the influence of a mental or

emotional disturbance at the time the murders were committed.” Corcoran

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v. State, 739 N.E.2d 649, 656 (Ind. 2000). But the judge gave each of the

mitigating factors “medium or low weight,” and she believed the

aggravating circumstances—multiple murders—outweighed the

mitigating circumstances. Id.

Corcoran didn’t appeal his conviction, but he appealed his sentence,

raising eight claims: four independent arguments that Indiana’s death

penalty statute violated the state and federal constitutions; an argument

that the prosecutor committed misconduct in the penalty phase closing

argument; an argument that the death penalty statute was ambiguous and

had to be construed against the State; an argument that the judge

improperly considered a non-statutory aggravator when sentencing; and

an argument that the death sentence in this case is manifestly

unreasonable. Id. at 651.

Our Court considered those arguments and unanimously rejected all

but one; we agreed with Corcoran that the judge may have considered

non-statutory factors when imposing a death sentence because she noted

his future dangerousness to the community, the innocence of the victims,

and the heinousness of the crime. Id. at 657. We remanded for

resentencing based on the evidence already presented. Id. Chief Justice

Shepard concurred with a separate opinion explaining that he agreed with

the remand “largely because meticulous attention to capital cases at an

early stage saves a good deal of effort later on.” Id. at 658 (Shepard, C.J.,

concurring). He read the trial judge’s sentencing statement as simply

elaborating on the statutory factor for committing multiple murders, and

he would have been willing to affirm on that basis. Id. But he nevertheless

agreed it was “worth clarifying now that only statutory aggravating

circumstances are being considered.” Id.

On remand, the trial court reimposed the death sentence after again

assigning “medium weight” to “the mitigating circumstance that

[Corcoran] was under the influence of a mental or emotional disturbance

at the time the murders were committed.” State v. Corcoran, No. 02D049707-CF-465, 2001 WL 36099910 (Allen Superior Ct. Sept. 30, 2001). It

based that conclusion on the opinions of court-appointed experts “that the

Defendant suffered from a personality disorder, either paranoid

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personality disorder, or schizotypal personality disorder.” Id. Corcoran

again appealed, and our Court affirmed in a 4-1 decision. Corcoran, 774

N.E.2d at 499. The majority rejected Corcoran’s arguments that the trial

judge again considered non-statutory aggravators, that the judge failed to

consider all proffered mitigators, and that the sentence was manifestly

unreasonable. Id. at 499, 500, 502.

As for the reasonableness of the sentence, Corcoran “argue[d]

vehemently that his mental health should be of utmost significance in

determining his sentence.” Id. at 501. Our Court acknowledged that

“[s]even qualified doctors analyzed Corcoran, and while they offered

varying opinions,” it seemed “the consensus was that Corcoran suffered

from schizotypal or paranoid personality disorder.” Id. (citations omitted).

But after carefully reviewing the evidence, our Court was “satisfied that

the trial court’s decision that a quadruple killing was weightier than the

proffered mitigation of Corcoran’s mental health led the trial court to an

appropriate sentence.” Id. at 502.

Justice Rucker dissented because, like the attorneys arguing before us

now, he did not “believe a sentence of death is appropriate for a person

suffering a severe mental illness.” Id. (Rucker, J., dissenting). As the

attorneys now argue again, he thought the Eighth Amendment’s ban on

“cruel and unusual” punishment forecloses executing mentally ill

prisoners like Corcoran for the same reasons the United States Supreme

Court has said the Eighth Amendment prohibits executing the

intellectually disabled. Even if the federal constitution didn’t prohibit

Corcoran’s execution, he concluded—like the attorneys here argue—that

Indiana’s Constitution did. Id. at 503 (“Because Indiana’s constitution

affords even greater protection than its federal counterpart, I would hold

that a seriously mentally ill person is not among those most deserving to

be put to death. To do so in my view violates the Cruel and Unusual

Punishment provision of the Indiana Constitution.”). Corcoran requested

rehearing, but we denied that request.

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B.

State Court Proceedings to Determine Corcoran’s

Competency to Waive Post-Conviction Remedies

Our rules permitted Corcoran to again challenge his sentence through

procedures for post-conviction remedies, but he elected not to. Corcoran v.

State, 820 N.E.2d 655, 656 (Ind. 2005), aff’d on reh’g, 827 N.E.2d 542 (Ind.

2005). However, the State Public Defender believed Corcoran was

incompetent to make that decision given his mental illness, so she

requested competency proceedings. Id. at 657. The trial court held a

hearing, and the State Public Defender offered “the testimony of three

mental health experts, each of whom concluded that Corcoran suffers

from paranoid schizophrenia.” Id. at 660 (footnote omitted).

They all said that symptomatic of Corcoran’s condition was that he had

“recurrent delusions that Department of Correction prison guards are

torturing him through the use of an ultrasound machine, causing him

substantial pain and uncontrollable twitching.” Id. Based on their

diagnosis, “all three experts concluded Corcoran was unable to make a

rational decision concerning the legal proceedings confronting him.” Id.

They thought “Corcoran’s decision to forgo post-conviction review of his

sentence, thereby hastening his execution, was premised on his desire to

be relieved of the pain that he believes he experiences as a result of his

delusions.” Id. In essence, they reasoned that “Corcoran’s decision to forgo

post-conviction review cannot be rational if based upon his delusions,

which are irrational.” Id.

As in the affidavit Corcoran recently submitted to our Court, in those

earlier proceedings he “spoke directly to his reasons for not pursuing

post-conviction review and the contention that his delusions were

prompting his actions.” Id. Just as he says now, he said then:

See, I want to waive my appeals because I am guilty of murder.

I think that I should be executed for what I have done and not

because I am supposedly tortured with ultrasound or

whatever. I am guilty of murder. I should be executed. That is

all there is to it. That is what I believe. I believe the death

penalty is a just punishment for four counts of murder, and I

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believe that I should be executed since I am guilty of four

counts of murder.

Id. Dr. George Parker, after evaluating Corcoran for the competency

hearing, explained:

He has a very clear awareness of the status of his case. He is

aware he has been sentenced to death. He is aware that he is in

the appeals process. He has a good memory of the events that

have taken place from the time of the offense to the trial, to the

sentencing phase, and then through the more extensive appeals

phase. He is aware of the attorneys’ positions and how, how

the attorneys have changed over the course of the trial and then

[the] appeals process. So, he has a good understanding of what

is at issue.

Id. at 661.

That was consistent with Dr. Robert Kaplan’s testimony, after

evaluating Corcoran, “that Corcoran was aware that by not continuing

with post-conviction review that he would be executed.” Id. Both the

State’s attorney and the presiding judge questioned Corcoran further and

confirmed his understanding of the legal proceedings and his legal

position. Id. That included the judge questioning “Corcoran with respect

to the entire history of his case,” and Corcoran’s answers reflecting that

“he was aware that he had been convicted of four capital crimes”; that “he

understood the purpose of his initial direct appeal to the Indiana Supreme

Court to review his death sentence and that his appeal had been

unsuccessful”; and that the post-conviction proceedings were his “last

attempt to review [the] case.” Id. He confirmed that he had courtappointed counsel whose judgment he trusted with one exception; he

disagreed with them challenging his competency to waive post-conviction

review. Id. at 662.

After an extensive review of the record, our Court concluded that

“[b]oth the State’s and post-conviction judge’s questioning of Corcoran

reaffirm the testimony of Dr. Parker that Corcoran was able to appreciate

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the gravity of his legal position and the consequences of his choice to

waive further post-conviction review.” Id. And other portions of the

record were “also sufficient evidence to support the post-conviction

court’s determination that Corcoran made his choice knowingly,

voluntarily, and intelligently.” Id. We explained:

Corcoran’s explicit denial that his delusions prompted him to

waive his right to post-conviction review and his reasoning

that his death sentence is commensurate with the crime he

committed (the conclusion to which both the original trial court

jury and judge came), makes it impossible for this Court to

conclude that the evidence is without conflict and leads only to

a conclusion contrary to the result of the post-conviction court.

Id. at 661 (brackets and quotations omitted).

The State Public Defender also raised two additional claims: (1) “the

Constitution and the Indiana death penalty statute required this Court’s

review of issues regarding Corcoran’s convictions even though he

affirmatively waived such review”; and (2) “it would be unconstitutional

to execute a severely mentally ill person, such as Corcoran.” Id. at 662

(quotations omitted). We rejected those claims because Corcoran did not

authorize the State Public Defender to make them, “and without his

authority, neither the trial court in this proceeding nor this Court has

jurisdiction to review claims for post-conviction relief.” Id. at 663. We

noted our acknowledgment and appreciation “that the State Public

Defender raises these claims in the sincere belief that Corcoran is

incompetent and did not knowingly, voluntarily, and intelligently waive

his right to post-conviction review,” but “that belief alone is not sufficient

to overcome the rule’s requirement” that Corcoran authorize the claim. Id.

We also noted that the claims were likely to fail anyway because “both

contentions appear to constitute free-standing claims of error that would

not be available for post-conviction review.” Id.

Justice Rucker again dissented. Like the State Public Defender argues

here, Justice Rucker disagreed with the weight the majority placed on

Corcoran’s explanations of his understanding of his rights and the

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proceedings and instead gave greater weight to the testimony of the three

mental health experts who concluded Corcoran was not competent. Id. at

666 (Rucker, J., dissenting). Justice Rucker acknowledged “that the

existence of delusions and a diagnosis of paranoid schizophrenia do not

necessarily preclude rational decision-making and competence.” Id. at 669.

But he believed there was more credence to the experts’ conclusion “that

Corcoran’s decision to welcome and hasten his own death is based on his

delusional perception of reality and has no basis in rational thought

whatsoever.” Id.

We affirmed our judgment on rehearing with a published opinion.

Corcoran v. State, 827 N.E.2d 542, 546 (Ind. 2005).

C. Corcoran’s Untimely Petition for Post-Conviction

Relief

While the appeal of Corcoran’s competency proceedings was pending,

he changed his mind and decided to pursue post-conviction relief. He

then filed a petition for post-conviction relief reflecting his authorization,

but that was after the deadline, so the post-conviction court dismissed his

petition, and we affirmed. Corcoran v. State, 845 N.E.2d 1019, 1020 (Ind.

2006). Only Justice Rucker dissented, this time without a separate opinion.

Our Court’s majority opinion emphasized that by that point, we had

“afforded Corcoran considerable review of his sentence[] and the postconviction court’s competency determination.” Id. (citations omitted). And

“[t]he public interest in achieving finality at [that] stage weigh[ed] heavily

against further review.” Id. at 1023.

II. Federal Court Proceedings

A. District Court Habeas Proceedings

Following those first six years of post-conviction litigation, review of

Corcoran’s conviction and sentence moved to the federal courts when he

filed a habeas corpus petition under 28 U.S.C. § 2254 in the Northern

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District of Indiana. The court began by noting the “unusual and more

convoluted than normal” procedural history. Corcoran v. Buss, 483 F. Supp.

2d 709, 712 (N.D. Ind. 2007), rev’d, 551 F.3d 703 (7th Cir. 2008), cert. granted,

judgment vacated sub nom. Corcoran v. Levenhagen, 558 U.S. 1, 130 S. Ct. 8,

175 L. Ed. 2d 1 (2009), and opinion reinstated sub nom. Corcoran v. Wilson, 651

F.3d 611 (7th Cir. 2011), and aff’d as modified sub nom. Corcoran v.

Levenhagen, 593 F.3d 547 (7th Cir. 2010), as amended on denial of reh’g and

reh’g en banc (Apr. 14, 2010), and aff’d in part, rev’d in part sub nom. Corcoran

v. Wilson, 651 F.3d 611 (7th Cir. 2011). As the citation for that statement

foreshadows, the procedural history only got more convoluted from there.

Turning to the claims, the district court felt “compelled to note at this

point that this habeas corpus petition is seriously untimely,” but it did not

dismiss because the respondent had not requested dismissal on that basis.

Id. at 716, 718. It then granted the petition in part. It agreed with Corcoran

that the State’s pretrial offer (which he rejected) to waive the death

penalty in exchange for Corcoran agreeing to a bench trial violated his

Sixth Amendment right to a jury trial, and the court ordered the case

remanded for resentencing without the option of reimposing the death

penalty. Id. at 725–26.

Given this holding, the court declined to address the remaining claims

that the trial judge made errors in the sentencing, that Indiana’s death

penalty statute was unconstitutional, that there was prosecutorial

misconduct during the penalty phase, and that Corcoran was incompetent

to be executed. Id. The court rejected the argument that Corcoran was not

competent to stand trial or waive his direct appeal because those claims

were procedurally defaulted. Id. at 728–29.

Corcoran’s counsel also challenged our Court’s conclusion that he was

competent to waive post-conviction proceedings, and after reviewing the

record, the district court concluded our determination was “neither an

unreasonable application of United State[s’] Supreme Court law nor an

unreasonable determination of the facts.” Id. at 733. The district court

noted that “[t]he state courts acknowledged that the petitioner suffers

from a mental illness and fully confronted this question,” but “[i]n the end

they determined that his mental illness did not substantially affect his

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capacity to appreciate his position as a death row inmate and that he

understood how and why he was there.” Id. And “[n]either did his mental

illness impact his understanding of his legal position vis-à-vis his appeals.”

Id. The court explained that while “philosophically one can question

whether it can ever be a rational choice to abandon appeals which are the

only means to avoid the death penalty, legally even [United States

Supreme Court precedent] leaves no doubt that it is possible to do so.” Id.

So, “[f]rom a legal perspective, the state court’s determination that the

petitioner made a rational choice [w]as not unreasonable.” Id. It concluded

that on this issue, “[t]he opinion of the Supreme Court of Indiana, as

presented above, is thorough, thoughtful, and reasonable,” so “no relief

can be granted on this ground.” Id. at 733–34.

B.

First Seventh Circuit Appeal

The respondent appealed, and the Seventh Circuit reversed the district

court’s decision granting partial habeas relief and affirmed the district

court’s decision regarding competency. Corcoran v. Buss, 551 F.3d 703, 704

(7th Cir. 2008), cert. granted, judgment vacated sub nom. Corcoran v.

Levenhagen, 558 U.S. 1, 130 S. Ct. 8, 175 L. Ed. 2d 1 (2009), and opinion

reinstated sub nom. Corcoran v. Wilson, 651 F.3d 611 (7th Cir. 2011). As for

our Court’s conclusion that the State’s offer not to pursue the death

penalty in exchange for Corcoran waiving a jury trial did not violate his

constitutional rights, the federal appellate court concluded our decision

“was neither incorrect nor unreasonable to warrant the district court’s

grant of [Corcoran’s] habeas petition.” Id. at 712.

Corcoran cross-appealed the district court’s holding that he was

competent to waive post-conviction proceedings. But the Seventh Circuit

affirmed, observing that our Court “gave careful consideration of all the

evidence presented at the post-conviction hearing.” Id. at 713. The court

recounted our acknowledgment “that the experts testified that Corcoran

suffered from paranoid schizophrenia and his resulting delusions caused

him to waive further review of his sentence, but [we] also found that

Corcoran had a clear awareness of the status of his case and what was at

risk if he waived further review.” Id. And we considered “Corcoran’s own

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conduct and testimony at the hearing, in which he stated that his decision

to waive further proceedings was based on his remorse for his crime, and

not on any ‘delusions’ he was said to have been experiencing.” Id. In the

end, while “experts believed otherwise, the Indiana Supreme Court was

entitled to accept Corcoran’s contention that his request to waive further

proceedings was based on his belief that death is a just punishment for his

crimes.” Id.

The court also noted our repeated conclusions that a defendant’s

acceptance of the death penalty is not necessarily irrational. Id. at 714

(citing Smith v. State, 686 N.E.2d 1264, 1273 (Ind. 1997) (considering a

defendant’s preference for death over life imprisonment, where there was

an indication of his desire not to spend the rest of his life in prison, and

concluding that to do so is not “per se irrational”). And it noted it had

reached that conclusion in the past too. Id. (citing Wilson v. Lane, 870 F.2d

1250, 1254 (7th Cir. 1989) (affirming a district court’s finding of a death

row inmate’s competency to waive further appeals even though the

inmate was ruled mentally incompetent after considering the inmate’s

unwavering testimony that he was aware of his position and of the federal

review options available to him, and that he based his decision not on the

conditions of his confinement, but on his belief that death was a better

option than life in prison)).

The court further found “no support for Corcoran’s contention that a

petitioner who has been diagnosed with a mental illness is not competent

to waive post-trial proceedings.” Id. As it explained, the question “is

whether a mental illness substantially affects the capacity to appreciate his

options and make a rational choice among them.” Id. The Seventh

Circuit’s “review of the transcripts and the evidence before the Indiana

Supreme Court reveals that it (as well as the two other courts that

considered Corcoran’s competency) thoroughly and conscientiously

examined Corcoran’s claims of incompetency, and its findings that he had

a ‘rational understanding of and [could] appreciate his legal position’ are

factually supported by the record.” Id. The court remanded with

instructions to deny habeas relief, leaving Indiana at liberty to reinstate

the death sentence. Id.

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Judge Williams dissented in part, disagreeing with the majority on the

competence issue. She saw the issue like Justice Rucker did. She explained

that “[n]o one contests that Corcoran suffers from a mental illness,” and

that “is clear from his delusion that prison guards torture him daily with

an ultrasound machine, his conversations with individuals who are not

there, and his delusion that he suffers from an involuntary speech

disorder.” Id. at 714–15 (Williams, J., concurring in part and dissenting in

part). Like Justice Rucker, Judge Williams placed great weight on the fact

that “[t]he three experts who testified in the competency hearing

unanimously concluded that Corcoran suffers from paranoid

schizophrenia that renders waiver of further appeal of his death sentence

impossible because the illness prevents him from making rational

decisions.” Id. at 715. Judge Williams didn’t believe the record supported

some of our Court’s factual statements, and she faulted the Court for

failing “to consider Corcoran’s testimony in light of his delusions.” Id. at

716.

C. First United States Supreme Court Review

The United States Supreme Court then granted certiorari and vacated

the Seventh Circuit’s decision in a per curiam opinion. Corcoran v.

Levenhagen, 558 U.S. 1, 3 (2009). It did not quarrel with the analysis of the

Seventh Circuit panel majority for the issues the panel considered, but

Corcoran had raised other issues too. So the Supreme Court remanded for

the Seventh Circuit either to consider the four other grounds for habeas

relief that Corcoran raised or to explain why consideration of those issues

was unnecessary. Id. at 2.

D. Seventh Circuit Remand

On remand, the Seventh Circuit concluded that “all of Corcoran’s

remaining habeas challenges are waived, and that three of them are

frivolous, but that one of the challenges nevertheless entitles him to a new

sentencing hearing.” Corcoran v. Levenhagen, 593 F.3d 547, 549 (7th Cir.), as

amended on denial of reh’g and reh’g en banc (Apr. 14, 2010), cert. granted,

judgment vacated sub nom. Wilson v. Corcoran, 562 U.S. 1, 131 S. Ct. 13, 178 L.

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Ed. 2d 276 (2010). That one issue was that the Seventh Circuit agreed with

Corcoran that the trial judge again relied on a non-statutory aggravator

when reimposing the death sentence because she said that her statements

about Corcoran’s future dangerousness, the victims’ innocence, and the

heinousness of the murders were part of the explanation for the weight

she gave to the statutory factor for multiple murders. Id. at 551. And, the

Seventh Circuit explained, “factor weighting is part of factor ‘balancing’,

the very process in which the trial court disclaimed reliance on nonstatutory aggravators.” Id.

E.

Second U.S. Supreme Court Review

The case then returned to the United States Supreme Court, and it again

issued a per curiam opinion reversing the Seventh Circuit. Wilson v.

Corcoran, 562 U.S. 1, 2 (2010). It explained that “[f]ederal courts may not

issue writs of habeas corpus to state prisoners whose confinement does

not violate federal law.” Id. The panel’s discussion of the sentencing

factors addressed a matter of state law, and “the panel’s opinion

contained no hint that it thought the violation of Indiana law it had

unearthed also entailed the infringement of any federal right.” Id. at 5.

F.

Second Seventh Circuit Remand

On remand to the Seventh Circuit, the federal appellate court

concluded that “[i]n hindsight [it] should have returned the case to the

district court after the first remand from the Supreme Court,” which it

went ahead and did on the second remand. Corcoran v. Wilson, 651 F.3d

611, 613 (7th Cir. 2011). It noted, “however, that neither of the Supreme

Court’s decisions casts doubt on [the Seventh Circuit’s] resolution of the

issues raised in the initial appeal, in which [the court] found no basis for

habeas relief on the claimed Sixth Amendment violation or on the issue of

Corcoran’s competency to waive post-conviction remedies.” Id. The court

therefore reinstated and incorporated by reference its earlier opinion in

Corcoran v. Buss, 551 F.3d 703, “to the extent that it (1) reversed the district

court’s judgment granting habeas relief on the basis of the claimed Sixth

Amendment violation; and (2) affirmed the district court’s conclusion that

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the Indiana courts did not mishandle the issue of Corcoran’s competence

to waive post-conviction remedies.” Corcoran, 651 F.3d at 613. The court

also reinstated Judge Williams’ dissent on the competency issue. Id. at

613–614. And it remanded to the district court to permit it to address

Corcoran’s remaining grounds for habeas relief. Id. at 614.

G. District Court Remand

On remand, the district court considered the remaining habeas claims.

While the habeas petition initially argued eight grounds for relief, only

two remained contested. Corcoran v. Buss, No. 3:05-CV-389, 2013 WL

140378, at *1 (N.D. Ind. Jan. 10, 2013), aff’d sub nom. Corcoran v. Neal, 783

F.3d 676 (7th Cir. 2015). Corcoran’s counsel claimed “that in imposing the

death penalty the trial court improperly considered non-statutory

aggravating circumstances and failed to consider mitigating evidence, all

in violation of the petitioner’s constitutional rights as secured by the

Eighth and Fourteenth Amendments.” Id. They also claimed “that

Indiana’s Death Penalty Statute is facially unconstitutional because it does

not distinguish between circumstances that warrant a sentence of death

and circumstances that warrant a sentence of life imprisonment without

parole.” Id. The district court rejected both claims, explaining that “[b]oth

claims were adjudicated on the merits by the Indiana Supreme Court,

which ruled in favor of the State,” and counsel had not demonstrated

error as required by 28 U.S.C. § 2254(d). Id.

H. Second Seventh Circuit Appeal

Corcoran again appealed to the Seventh Circuit, which affirmed.

Corcoran v. Neal, 783 F.3d 676, 677 (7th Cir. 2015). The court explained that

its earlier opinion disagreed with our Court’s assessment that the trial

judge did not in fact rely on nonstatutory aggravating factors, but that

vacated decision “did not adequately grapple with the deference owed to

state-court factual findings under the Antiterrorism and Effective Death

Penalty Act.” Id. After “[g]iving the matter a fresh look,” the court

concluded our “factual determination was not unreasonable.” Id. The

court further concluded that our Court “reasonably determined that the

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trial judge considered all proffered evidence in mitigation,” and “[t]he

sentencer’s obligation to consider mitigating evidence in a capital case

does not require that the evidence be credited or given any particular

weight in the final sentencing decision.” Id. at 677–78.

III. State’s Motion to Set Execution Date

At that point, there was no remaining litigation and no stay of

execution.

On June 26, 2024, the State filed a Verified Motion to Set Execution

Date. It explained that “Corcoran has completed state and federal review

of his convictions and sentence.” Mot. at 1, ¶ 2. And “[n]ow that the

federal courts have denied Corcoran’s federal habeas petition, no further

grounds for review of the validity of his convictions or sentence are

available.” Id. at 3, ¶ 3. Because “[t]his Court has the exclusive jurisdiction

to stay the execution of a death sentence as well as the duty to order a new

execution date when the stay is lifted,” the State requested that we set the

date for Corcoran’s execution. Id. at 3–4, ¶ 5.

The State Public Defender filed a Response to Motion to Set Execution

Date, which began by quoting the dissents from Justice Rucker and Judge

Williams, and then arguing that the Court should deny the motion

because “executing the unquestionably seriously mentally ill Appellant

would violate the Eighth Amendment to the United States Constitution

and Article I, § 16 of the Indiana Constitution.” Resp. at 1. The evidence on

which the State Public Defender relied came from the previous direct

appeal record and the previous competency proceedings record. See id. at

2 n.1, 18.

We granted the State’s motion, explaining our limited role given the

procedural posture. We acknowledged that “a petitioner can raise claims

involving previously undiscovered evidence through a written petition

under Section 35-50-2-9(k), raise constitutional claims through a successive

petition for post-conviction relief under Post-Conviction Rule 1(12), or

raise challenges to an execution protocol through a civil lawsuit.” Order at

2. But Corcoran had not pursued any such claims, and the evidence the

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State Public Defender cited in the response brief was not new. Id. We

therefore granted the State’s motion on September 11, 2024, and set an

execution date of December 18, leaving over three months for the State to

undertake preparations for an execution and for Corcoran to pursue any

remaining remedies he believed warranted.

IV. State Public Defender’s Current Motions for

Permission to File Successive Petitions

For most of that time, neither Corcoran nor anyone on his behalf

pursued any claims. But on November 15, 2024, the State Public Defender

filed four submissions in our Court: two motions (with proposed

petitions) seeking permission to file two successive post-conviction relief

petitions, and two motions to stay the execution (one motion for each

petition) while those petitions are litigated.

The first proposed Successive Petition for Post-Conviction Relief

argues: (1) that Corcoran’s death sentence violates the ban on “cruel and

unusual” punishments in the Eighth Amendment to the U.S. Constitution

because he is severely mentally ill, and executing the severely mentally ill

is cruel and unusual; (2) Corcoran’s death sentence violates the ban on

“cruel and unusual punishments” in Article One, Section 16 of the Indiana

Constitution for the same reason; and (3) Corcoran’s death sentence

violates the Equal Protection Clause in the Fourteenth Amendment to the

U.S. Constitution because the State is treating the severely mentally ill

different than the intellectually disabled and juveniles, whom the State

will not execute. The second proposed Successive Petition for PostConviction Relief argues that “Corcoran is not currently competent to be

executed under Panetti v. Quarterman, 551 U.S. 930 (2007), and Ford v.

Wainwright, 477 U.S. 399 (1986),” because the State Public Defender does

not believe Corcoran can “rationally understand his execution or the

reason for it.” [Second] Successive Pet. for Post-Conviction Relief at 1–2,

15.

We have jurisdiction because of the death sentence, Ind. Appellate Rule

4(A)(1)(a), and we expedited briefing on the motions. That briefing closed

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on December 3, 2024, fifteen days before the execution date. Each member

of the Court reviewed the submissions as they were filed, and the Court

discussed the submissions at a conference after the briefing concluded. To

afford counsel the benefit of the remaining time before the execution date

to pursue any relief they believe appropriate in the federal courts, we

immediately issued an order reflecting the Court’s decision denying the

motions on December 5, with this opinion explaining the reasoning a few

days later.

Discussion and Decision

“Any person who has been convicted of, or sentenced for, a crime by a

court of this state,” Ind. Post-Conviction Rule 1(1)(a), ”has the right to

collaterally attack that conviction or sentence through a petition for postconviction relief.” Shaw v. State, 130 N.E.3d 91, 92 (Ind. 2019). “But a

second or successive post-conviction petition cannot be filed without prior

authorization from this Court (in capital appeals) or the Court of Appeals

(in all other appeals), either of which ‘will authorize the filing of the

petition if the petitioner establishes a reasonable possibility’ that the

petitioner is entitled to relief.” Id. (quoting P-C. R. 1(12)). “By permitting

successive post-conviction petitions only when the petitioner makes some

showing of merit, this appellate screening function reduces the burden on

trial courts.” Id.

“In deciding whether a petitioner has made the required showing, we

consider the applicable law, the successive post-conviction papers,

materials from the prior appeals and post-conviction proceedings

including the record, briefs and court decisions, and any other material we

deem relevant.” Wrinkles v. State, 915 N.E.2d 963, 965 (Ind. 2009). “Postconviction proceedings are not a ‘super-appeal’; rather, the grounds

enumerated in the Post-Conviction Rules are limited to issues that were

not known at the time of the original trial or that were not available on

direct appeal.” Shaw, 130 N.E.3d at 92–93 (quotations omitted). If we were

to authorize the successive post-conviction petitions proposed here,

Corcoran would have a right to appointed counsel, and the case would

return to the trial court for proceedings consistent with Post-Conviction

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Rule 1(12)(c). See Baird v. State, 833 N.E.2d 28, 30 (Ind. 2005), cert. denied,

546 U.S. 924 (2005).

Corcoran has informed us that he does not wish to assert any further

claims in the courts, including that he does not wish to file any successive

petitions for post-conviction relief. His affidavit states bluntly: “I, Joseph

Edward Corcoran, do not wish to litigate my case further.” Affidavit at

1—2, ¶ 3; id. (“I am hereby making this statement to the Court through

this affidavit: I do not wish to proceed with more and/or endless

litigation.”). The State Public Defender confirms that remains his wish.

[Second] Mot. for Stay of Execution at 6 (“Indeed, currently, Mr. Corcoran

wants to be executed . . . .”).

Nevertheless, the State Public Defender seeks permission to file two

successive post-conviction relief petitions on his behalf anyway. The State

argues we should not authorize the filings because Corcoran has not

signed them and does not authorize them, and even if he had signed or

authorized them, there is not a reasonable possibility that he is entitled to

post-conviction relief. We agree with the State that we must deny the State

Public Defender’s motions for two independently sufficient reasons.

First, Corcoran does not wish to pursue post-conviction relief. Our

Court has already concluded he is competent to make that decision, and a

key premise of the State Public Defender’s submissions is that nothing has

changed about Corcoran’s condition since then. Second, the submissions

do not demonstrate a reasonable possibility that Corcoran is entitled to

relief.

I.

Corcoran’s Competency to Waive Post-Conviction

Relief

As we held in the previous appeal of the post-conviction court’s

determination that Corcoran is competent to waive post-conviction

remedies, a petitioner seeking those remedies must authorize the petition

unless they are incompetent to do so. Corcoran v. State, 820 N.E.2d 655, 663

(Ind.), aff'd on reh'g, 827 N.E.2d 542 (Ind. 2005) (“Corcoran himself did not

authorize this proceeding within the timeframe required by Criminal Rule

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24(H) and without his authority, neither the trial court in this proceeding

nor this Court has jurisdiction to review claims for post-conviction

relief.”). The State Public Defender says that, for a couple reasons, it

doesn’t matter that Corcoran didn’t sign the two proposed petitions, but

we disagree with each.

First, the State Public Defender argues that “attorneys are agents of

their clients,” so they can always sign on their client’s behalf. Reply at 13.

This argument misses the more fundamental point: “It is the primary duty

of an agent to obey the instructions given by the principal,” and “[t]he

essence of an agency relation is the right of the principal to give directions

that the agent is under a duty to obey as long as they remain the agent.”

2A C.J.S. Agency § 295; see also Restatement (Third) of Agency § 8.09(2)

(Am. Law Inst. 2006) (“An agent has a duty to comply with all lawful

instructions received from the principal and persons designated by the

principal concerning the agent’s actions on behalf of the principal.”). So

even if the attorneys are Corcoran’s agents who can sign filings on his

behalf, he still has to authorize them to file the successive petitions unless

he is incompetent to waive post-conviction relief. Corcoran, 820 N.E.2d at

663.

That competency question has been thoroughly litigated in both state

and federal courts, which have concluded Corcoran is competent to waive

post-conviction remedies after reviewing the same extensive evidentiary

record that the State Public Defender relies on now. As the Seventh Circuit

described, our Court “gave careful consideration of all the evidence

presented at the post-conviction hearing” and then concluded Corcoran

“had a clear awareness of the status of his case and what was at risk if he

waived further review,” and that “his request to waive further

proceedings was based on his belief that death is a just punishment for his

crimes.” Corcoran v. Buss, 551 F.3d 703, 712 (7th Cir. 2008), cert. granted,

judgment vacated sub nom. Corcoran v. Levenhagen, 558 U.S. 1 (2009), and

opinion reinstated sub nom. Corcoran v. Wilson, 651 F.3d 611 (7th Cir. 2011).

Second, the State Public Defender argues it would be bad policy “to

deprive a mentally ill person access to the court to litigate competency

simply because they do not sign a petition.” Reply at 14. Depriving that

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access, the argument goes, would deny the person of “access to the courts

to evaluate their mental illness because of their mental illness.” Id. at 15.

But Corcoran’s competency to waive post-conviction relief has already

been litigated in state and federal courts. And the State Public Defender

does not claim Corcoran’s condition has changed such that while he was

previously competent to waive post-conviction remedies, he is no longer

competent. Instead, the State Public Defender confirmed Corcoran’s

condition is the same as it has been for decades. [Second] Successive Pet.

for Post-Conviction Relief at 14 (“As he has for twenty years, he experiences

auditory hallucinations, psychosis, and the ever-present delusions

. . . .”(emphasis added)).

Because our Court has concluded that Corcoran is competent to waive

post-conviction remedies and he has again elected to do so, we do not

authorize the successive petitions.

II. Appellate Screening

The State Public Defender’s motions fail for another reason: they do not

demonstrate a reasonable possibility that Corcoran is entitled to postconviction relief through either petition.

A. First Proposed Petition

The first proposed petition seeks relief based on arguments that

Corcoran’s death sentence violates: (1) the ban on “cruel and unusual”

punishments in the Eighth Amendment to the U.S. Constitution because

he is severely mentally ill, and executing the severely mentally ill is cruel

and unusual; (2) the ban on “cruel and unusual punishments” in Article

One, Section 16 of the Indiana Constitution for the same reason; and (3)

the Equal Protection Clause in the Fourteenth Amendment to the U.S.

Constitution because the State is treating the severely mentally ill different

than the intellectually disabled and juveniles, whom the State will not

execute. There is no reasonable possibility of success on this petition for at

least two threshold reasons.

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First, the State Public Defender lacks standing to make these

arguments. As we said the last time these arguments were made on

Corcoran’s behalf contrary to his wishes: “We hold that the State Public

Defender does not have standing to raise the other claims she presents

without Corcoran’s consent.” Corcoran v. State, 820 N.E.2d 655, 664–65

(Ind.), aff’d on reh’g, 827 N.E.2d 542 (Ind. 2005). We agreed with the State

that the State Public Defender’s standing was limited to litigating

Corcoran’s competency to waive post-conviction relief. Id. at 658.

Second, as we also observed in that opinion, these arguments “appear

to constitute free-standing claims of error that would not be available for

post-conviction review.” Id. at 663. “Indiana’s Post-Conviction Rule 1(8)

addresses res judicata and procedural default.” Isom v. State, 235 N.E.3d

150, 151 (Ind. 2024). That rule says: “All grounds for relief available to a

petitioner under this rule must be raised in his original petition.” P-C.R.

1(8). “The petitioner may raise new claims in a successive petition only if

the unraised claims ‘could not have been raised in earlier proceedings.’”

Isom, 235 N.E.3d at 152 (quoting Matheney v. State, 834 N.E.2d 658, 662

(Ind. 2005)).

“Unraised claims that are ‘knowingly, voluntarily and intelligently

waived . . . may not be the basis for a subsequent petition’ absent a

sufficient reason [they were] not asserted.’” Id. (quoting P-C.R. 1(8)).

“Unraised claims that should have been raised previously are waived or

‘procedurally defaulted.’” Id. (quoting Matheney, 834 N.E.2d at 662). “Our

res judicata doctrine bars relitigating post-conviction claims that have

already been decided.” Id. (cleaned up). Claims that it would be

unconstitutional for the State to execute Corcoran because of his mental

illness could have been, and indeed were, raised in the previous

proceedings. Corcoran, 820 N.E.2d at 657, 662 (rejecting the claim that “it

would be unconstitutional to execute a severely mentally ill person, such

as Corcoran” (quotations omitted)).

Because the State Public Defender lacks standing to raise these claims,

and procedurally defaulted claims have no chance of success anyway, the

State Public Defender has not demonstrated a reasonable possibility of

success with the first-filed petition.

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B.

Second Proposed Petition

The State Public Defender’s second Successive Petition for PostConviction Relief argues Corcoran is not competent to be executed.

Specifically, she argues that “Corcoran is not currently competent to be

executed under Panetti v. Quarterman, 551 U.S. 930 (2007), and Ford v.

Wainwright, 477 U.S. 399 (1986),” because, she says, Corcoran cannot

“rationally understand his execution or the reason for it.” [Second]

Successive Pet. for Post-Conviction Relief at 1–2. Like the first petition,

this petition does not demonstrate a reasonable possibility that Corcoran

is entitled to relief.

1.

Eighth Amendment Limitations

The Eighth Amendment to the U.S. Constitution prohibits “cruel and

unusual punishments,” U.S. Const. amend. VIII, and that prohibition is

applicable to the States through the Fourteenth Amendment, Jones v.

Mississippi, 593 U.S. 98, 105 (2021). The United States Supreme Court

interprets that bar on cruel and unusual punishments as prohibiting the

execution of a prisoner who has “lost his sanity” after sentencing, Ford,

477 U.S. at 406, which, in this context, means they “are unaware of the

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

422 (Powell, J., concurring); see also Timberlake v. State, 858 N.E.2d 625, 628–

29 (Ind. 2006) (explaining that “persons are incompetent to be executed if

they are insane; persons are insane if they are unaware of the punishment

they are about to suffer and why they are to suffer it”).

“The critical question is whether a prisoner’s mental state is so

distorted by a mental illness that he lacks a rational understanding of the

State’s rationale for his execution.” Madison v. Alabama, 586 U.S. 265, 269

(2019) (cleaned up). In other words, “the issue is whether a prisoner’s

concept of reality is so impaired that he cannot grasp the execution’s

meaning and purpose or the link between his crime and its punishment.”

Id. (cleaned up). Prisoners are “presumed to be” competent to be executed.

Timberlake, 858 N.E.2d at 628. And to litigate the question of competence to

be executed, the movant must make a “substantial threshold showing,”

Panetti, 551 U.S. at 949, that their mental illness prevents them from

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“‘rational[ly] understanding’ why the State seeks to impose” the death

penalty, Madison, 586 U.S. at 267.

A couple key considerations inspire the U.S. Supreme Court’s

understanding that the Eighth Amendment prohibits executing those who

lack a rational understanding of the execution even though their mental

illness does not excuse their crime and they were competent to be

convicted. One is “a moral intuition that killing one who has no capacity

to understand his crime or punishment simply offends humanity.” Id. at

268 (quotations omitted). And the other is “the lack of retributive value in

executing a person who has no comprehension of the meaning of the

community’s judgment.” Id.

2.

Corcoran’s Competency to be Executed

We agree with the State that the State Public Defender has not made the

substantial threshold showing that Corcoran’s mental illness prevents him

from rationally understanding why the State seeks to impose the death

penalty. To the contrary, Corcoran has demonstrated that he does have a

rational understanding. As he explained in his recent affidavit, he

“understand[s] that if this Court rejects [his] counsel’s petition the death

warrant will be carried out.” Affidavit at 2, ¶ 4. He “will then be put to

death for the heinous crime [he] committed,” and he understands the

“execution will end [his] life.” Id.

His rational understanding includes the State’s reason for executing

him. He explains: “I understand the execution, in the interest of judgment,

serves as both a punishment and a deterrent.” Id. He also has a

sophisticated, rational understanding of the proceedings. He says in his

affidavit: “I remind this Court that my competence to waive my appeals

has been adjudicated throughout the extensive appeal process.” Id. at 2,

¶ 5. And while he understands counsel’s strategy “to delay any and all

executions through endless litigation” with the “hope to set a precedent so

all future death penalty cases can be endlessly litigated effectively putting

an end to all executions,” id. at 1, ¶ 2, he does “not wish to litigate [his]

case further,” because he is “guilty of the crime [he] was convicted of,”

and he “accept[s] the findings of all the appellate courts,” id. at 1–2, ¶ 3.

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“The long drawn out appeal history has addressed all the issues [he]

wished to appeal.” Id.

That reaffirms what he has been saying for twenty years, and what

we’ve previously considered to be a rational understanding. In the

competency proceedings to evaluate whether he could waive postconviction review, the courts credited his testimony that he understood

that he was being executed “for what [he had] done,” and he agreed “the

death penalty is a just punishment for four counts of murder.” Corcoran,

820 N.E.2d at 660–61. He said the same thing to the federal courts,

explaining that “since [he is] guilty of murder,” he “should be executed.”

Ex. 2 to Resp. in Opp’n to Mots. at 1. And he still thought “the death

penalty is a just punishment for someone who is guilty of four counts of

murder.” Id.

The State Public Defender argues that while Corcoran has a factual

understanding that the State is going to execute him as punishment for his

crime, that doesn’t necessarily mean he has a rational understanding. And

the State Public Defender points to Panetti to illustrate the distinction. In

Panetti, the prisoner understood the state was saying that it wished to

execute him for his murders, but “he believe[d] in earnest that the stated

reason [was] a ‘sham’ and the State in truth want[ed] to execute him ‘to

stop him from preaching.’” 551 U.S. at 955. The U.S. Supreme Court

explained that “the principles set forth in Ford are put 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, as opposed to the

real interests the State seeks to vindicate.” Id. at 959 (citation omitted)

(emphases added). So if a prisoner is under the delusion that the State’s

stated reasons for punishment are a sham, then the prisoner is

incompetent even though they understand what the State is claiming are

the reasons.

But that isn’t the case here. The State Public Defender doesn’t claim,

and there is no substantial threshold showing that, Corcoran has a

delusional belief that the State has some reason for punishing him other

than the reasons the State claims. No doubt, the State Public Defender

points to evidence that some of Corcoran’s other beliefs are irrational, but

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his understanding of his execution is not. Virtually all the evidence the

State Public Defender cites is the evidence we previously considered when

determining Corcoran could waive post-conviction remedies. She does

identify minimal new evidence—Corcoran’s recent writings which reflect

continued delusional thinking. But that is offered only to demonstrate that

Corcoran’s condition remains the same, not that it has changed and he is

no longer competent to be executed. [Second] Successive Pet. for PostConviction Relief at 14 (“Now in 2024, Mr. Corcoran continues to suffer

the debilitating symptoms of his paranoid schizophrenia. As he has for

twenty years, he experiences auditory hallucinations, psychosis, and the

ever-present delusions . . . .”); id. at 15 (“In short, Mr. Corcoran’s

longstanding and documented mental illness continues to torment him as

it did at the time of the 1997 offense.” (emphasis added)).

Many capital cases involving prisoners with similar mental illnesses

illustrate that a prisoner can suffer from delusions that do not render them

incompetent for execution. For example, in Timberlake, our court rejected

the Ford claim even though Timberlake suffered from chronic paranoid

schizophrenia because he had “the mental capacity to understand that he

[was] about to be executed and why.” Timberlake, 858 N.E.2d at 626.

Timberlake suffered under “a paranoid delusional system resulting in his

belief that a secret machine, operated by the government, controls,

monitors and tortures people through their brains.” Id. at 629.

Nevertheless, Dr. George F. Parker—who also examined Corcoran,

Corcoran, 820 N.E.2d at 661—explained after examining Timberlake that

while it was “abundantly clear that Mr. Timberlake was severely mentally

ill, and suffers from essentially continuous auditory hallucinations,” he

“remained relatively organized regarding his legal status,” and he

“demonstrated an awareness that he had been convicted of the murder of

a state police officer and had been sentenced to death as a result of his

conviction.” Timberlake, 858 N.E.2d at 629. Thus, “despite abundant

evidence of psychotic systems, including constant auditory hallucinations

and a complex and organized paranoid delusional system, it was clear . . .

that Mr. Timberlake had the mental capacity to understand that he was

about to be executed and why he was to be executed.” Id. at 629–30. Based

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on that evidence, we denied the request for further review and set an

execution date. Id. at 630.

The State Public Defender has provided plenty of evidence that

Corcoran suffers from a mental illness. But despite his mental illness,

Corcoran has demonstrated he understands why he is being executed, and

the State Public Defender has not provided any evidence suggesting that

Corcoran’s understanding is irrational. When concluding that Corcoran

was competent to waive post-conviction remedies, we concluded that he

has a non-delusional understanding of these legal proceedings. And part

of what we relied on was his “reasoning that his death sentence is

commensurate with the crime he committed (the conclusion to which both

the original trial court jury and judge came).” Corcoran, 820 N.E.2d at 661.

We acknowledge, as the State Public Defender argues, that the inquiries

for competency to waive post-conviction remedies and competency to be

executed are not identical, and a claim challenging competency for

execution is not ripe until the execution is scheduled. But those inquiries

do overlap where it is relevant here. Our determination that Corcoran

could waive his post-conviction remedies included an analysis of whether

his mental illness interfered with his ability to understand why the State

was executing him. And now that a challenge to competency for execution

is ripe, there is no indication that Corcoran’s understanding of why he is

to be executed has changed. Every indication is that it remains the same.

At bottom, the State Public Defender’s arguments are rehashing the

debates between the majorities and the dissents in the previous state and

federal opinions evaluating Corcoran’s competency, and that is not an

adequate basis for further delaying the execution.

There is therefore no substantial threshold showing that Corcoran is not

competent to be executed.

III. Motions for Stay

The two pending motions seek a stay of execution so that the successive

petitions can be litigated. Because we do not authorize those petitions, we

deny both motions for stay.

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Conclusion

For these reasons, we decline to authorize the petitions for successive

post-conviction relief, and we deny the requests for a stay of execution.

Our rules permit—but do not require—a petition for rehearing. Rehearing

should not be sought if counsel intend to again make the arguments we

have already addressed. But if they do petition for rehearing, the petition

must be filed no later than 12:00 p.m. on Thursday, December 12, 2024.

The State’s response must be filed no later than 12:00 p.m. on Friday,

December 13, 2024. There will be no further responsive briefing, and no

extensions of time for filing will be granted.

Massa and Slaughter, JJ., concur.

Goff, J., dissents with separate opinion in which Rush, C.J., joins.

ATTORNEYS FOR PETITIONER

Amy E. Karozos

Public Defender of Indiana

Joanna L. Green

Laura L. Volk

Deputy Public Defenders

Indianapolis, Indiana

Laurence E. Komp

Federal Public Defender Office

Kansas City, Missouri

ATTORNEYS FOR RESPONDENT

Theodore E. Rokita

Attorney General of Indiana

Angela Sanchez

Chief Counsel of Appeals

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Tyler Banks

Deputy Attorney General

Indianapolis, Indiana

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Goff, J., dissenting.

There is no penalty more severe—more irrevocable—than death. So,

when reviewing cases imposing this penalty, justice demands not haste

but precision and care. Guaranteeing this demand constitutionally

requires ensuring a prisoner is competent to be executed.

A trio of decisions from the U.S. Supreme Court provides the proper

considerations. In Ford v. Wainwright, the Court held that the Eighth

Amendment prohibits executing prisoners “whose mental illness

prevents” them “from comprehending the reasons for the penalty or its

implications.” 477 U.S. 399, 417 (1986). The Court later clarified that the

question is whether the prisoner can “reach a rational understanding of

the reason for the execution.” Panetti v. Quarterman, 551 U.S. 930, 958

(2007). And, most recently, the Court recognized that execution “lacks

retributive purpose when a mentally ill prisoner cannot understand the

societal judgment underlying [their] sentence.” Madison v. Alabama, 586

U.S. 265, 279 (2019). To that end, “[a] prisoner’s awareness of the State’s

rationale for an execution is not the same as a rational understanding of

it.” Panetti, 551 U.S. at 959. When an evidentiary threshold showing is

made that a prisoner lacks this understanding, a hearing must be held to

evaluate competency. See id. at 949–50; Baird v. State, 833 N.E.2d 28, 29

(Ind. 2005). And this showing can be made through “observations by lay

persons, including a prisoner’s attorney, and older assessments by

experts.” Timberlake v. State, 858 N.E.2d 625, 627 (Ind. 2006).

The evidence submitted by Corcoran’s attorneys reveals a documented

history of severe mental illness, an inability to cooperate with counsel, and

a desire to be executed to escape prison—all of which raise substantial

questions about his current mental capacity. As a result, we should stay

Corcoran’s execution to allow his attorneys to seek successive postconviction relief to litigate his current competency. But at a minimum, we

should stay Corcoran’s execution and order a psychiatric examination.

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I. Evidence submitted by Corcoran’s attorneys

raises substantial questions about his

competency to be executed.

The critical question under the Eighth Amendment is whether

Corcoran’s “mental state is so distorted by a mental illness that he lacks a

rational understanding of the State’s rationale for his execution.” Madison,

586 U.S. at 269 (cleaned up). In other words, we must ask whether

Corcoran’s “concept of reality is so impaired that he cannot grasp the

execution’s meaning and purpose or the link between his crime and its

punishment.” Id. (cleaned up).

The evidence before us—consisting of prior expert evaluations and

contemporary accounts and reports—raise significant concerns about

whether Corcoran has the requisite rational understanding.

A. Every medical expert to have examined Corcoran has

found him to be seriously mentally ill.

At various points throughout Corcoran’s capital proceedings, at least

five different medical experts have found him incompetent. In 1999, two

psychiatrists—Dr. Philip Coons and Dr. Larry Davis—concluded that

Corcoran’s paranoid schizophrenia prevented “his ability to assist his

attorney in his defense,” effectively rendering him incompetent to stand

trial. Def.’s Pre-Sent. Memo., Supp. R. Vol. 1, pp. 23, 24. And at a 2003

post-conviction competency hearing, three experts—forensic psychiatrist

Dr. George Parker, clinical psychologist Dr. Robert Kaplan, and

neuropsychologist Dr. Edmund Haskins—testified to Corcoran’s

incompetency to waive his appeals. Post-Conviction Comp. Tr., pp. 13, 59,

66. According to these experts, Corcoran was not engaging in rational

decision-making but electing to avoid post-conviction review because of

his delusion that the prison was torturing him with an ultrasound

machine. Id. at 11–12, 14, 50, 53, 66–67.

To ignore these findings now and proceed with execution without a

current competency evaluation amounts to enabling his delusions—a

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state-sanctioned escape from suffering rather than a measured act of

justice. See Panetti, 551 U.S. at 960 (recognizing that “[t]he beginning of

doubt about competence . . . . is a psychotic disorder”).

B. Corcoran’s mental illness distorts his ability to

rationally engage with the legal process.

Corcoran has consistently displayed an inability to cooperate with

counsel and act rationally throughout his legal proceedings. His trial

counsel recently submitted affidavits confirming that Corcoran’s reasons

for rejecting the State’s plea offer “defied logic” and that they had

“difficulties . . . consulting with Corcoran in a rational or logical manner.”

Affidavit of Mark Thoma, pp. 1, 3; Affidavit of John Nimmo, p. 1. To those

points, Dr. Coons explained at trial that Corcoran’s “refusal to accept

either a plea bargain or a bench trial without the death penalty was a

product of his mental illness.” Def.’s Pre-Sent. Memo., Supp. R. Vol. 1, p.

24. As explained in Section I.A, evidence shows during post-conviction

proceedings that Corcoran continued to lack a rational understanding of

his decisions; the same was true during his federal habeas proceedings.

Corcoran’s Reply Br. at 3–4. And just last week, Corcoran’s attorneys

observed that he has never been able to “assist counsel with his defense”

or “make rational decisions about his case.” Id. at 4–5.

Corcoran’s persistent refusal to cooperate with counsel underscores his

impaired ability to assess and act on his own legal options. This is not a

tactical choice; it is the result of his mental illness, as documented by

expert testimony over decades. Allowing a person to “volunteer” for

execution—whether by choosing to withhold mitigating evidence at

sentencing, waiving the right to appellate review, or electing not to seek

post-conviction relief—threatens to undermine the state’s heightenedreliability interests in death-penalty cases, Anthony J. Casey, Maintaining

the Integrity of Death: An Argument for Restricting a Defendant’s Right to

Volunteer for Execution at Certain Stages in Capital Proceedings, 30 Am. J.

Crim. L. 75, 76–77, 97 (2002), and ultimately “threatens to diminish public

confidence in the integrity of the judicial system,” Wright v. State, 168

N.E.3d 244, 262 (Ind. 2021). Corcoran’s constant irrational behaviors raise

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constitutional red flags that demand scrutiny. See Richard J. Bonnie,

Mentally Ill Prisoners on Death Row: Unsolved Puzzles for Courts and

Legislatures, 54 Cath. U. L. Rev. 1169, 1181 (2005) (“The possibility,

however slim, that incompetent individuals may not be able to assist

counsel in reconstructing a viable factual or legal claim requires that

executions be barred under these circumstances.”).

Additionally, considering this Court previously recognized counsel’s

standing to litigate Corcoran’s competency to waive post-conviction relief

on his behalf without written consent, see Corcoran v. State, 820 N.E.2d 655,

658, 664–65 (Ind. 2005), I see no reason for depriving counsel of standing

to litigate the question of Corcoran’s current competency on his behalf.

C. Contemporaneous evidence reinforces Corcoran’s

attorneys’ incompetency claim.

Corcoran’s well-documented paranoid schizophrenia and delusions

have persisted for decades. In his world, he suffers from a speech disorder

that causes him to unintentionally disclose his innermost thoughts to

others as he sleeps. Compounding this paranoia, he believes prison

guards perpetually torture him with an ultrasound machine. So pervasive

are these delusions, Corcoran’s attorneys submit, that he simply “cannot

rationally understand the true reason for his execution.” Reply Br. at 7. In

his mind, Corcoran views execution not as punishment but as the only

path to escaping the torment from which he suffers.

Contemporaneous evidence bolsters these observations. In March 2024,

for example, medical records from the Department of Correction reported

an “observable concern” with Corcoran’s “expressed delusions,” noting

his belief that an “ultrasonic machine” perpetually controls his “thoughts,

sleep, voice, etc.” Memo. in Support of Successive PCR, Att. A, pp. 2, 3.

And in a recently published “whistle-blower report,” Corcoran, writing

under a pen name, perpetuates these delusions, describing the use of

“ultrasonic surveillance devices” by “correctional staff and other

individuals and/or agencies” and the effect these devices have on him and

other prisoners. JC Chase, A Whistle-blower Report: Electronic Harassment 18

(July 2024), Memo. in Support of Successive PCR, Att. B.

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II. Because ample evidence raises uncertainty over

Corcoran’s current competency, a short stay is

warranted for the necessary evaluation.

While “delusions come in many shapes and sizes . . . not all will

interfere with the understanding that the Eighth Amendment requires.”

Madison, 586 U.S. at 279. And here, Corcoran has made several statements

indicating that he understands the true meaning and purpose of his

execution. In a 2005 affidavit, he considered the death penalty “a just

punishment for someone who is guilty of four counts of murder.” State’s

Opp. Resp., Ex. 2. And in a letter to the district court the following year,

he insisted that he “intentionally killed four people knowing that such an

act was wrong,” adding that he “should be executed” for committing such

a crime. Id., Ex. 1. These statements align with sentiments he expressed in

a recently filed affidavit in which he attested to understanding the

execution “as both a punishment and a deterrent.” Affidavit of Joseph

Corcoran (Nov. 22, 2024), p. 2.

But these statements, according to Corcoran’s counsel, reflect only the

dissonance of someone attempting to mask their mental illness. Indeed,

much like his severe mental illness, Corcoran’s attempts to hide his

delusions are well-documented. Dr. Coons testified at trial that a “person

with paranoid schizophrenia generally minimizes their symptoms”—

behavior he found consistent with Corcoran’s attempts to minimize his

symptoms. R. Vol. 13, p. 2076; see also R. Vol. 11, p. 1658 (Dr. Eric Engum,

another trial expert, testifying to Corcoran’s “secretive” behavior, which

he found “consistent with the paranoia and suspiciousness”).

In any event, Corcoran’s statements do not negate the evidentiary

threshold showing that he is incompetent to be executed. They must be

weighed against two-plus decades of evidence apparently establishing

that his delusions about the ultrasound machine and sleep and speech

disorders were and are very real to him. So even if it seems that Corcoran

may understand why the State is seeking execution, the point is that we

simply do not know. Even a “prisoner’s awareness of the State’s rationale

for an execution,” his acknowledgment that “he will be executed,” and his

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

commission of the crimes in question” does not resolve the inquiry into

whether he has a “rational understanding of the reason for the execution.”

Panetti, 551 U.S. at 956–58. A competency evaluation is needed not

because Corcoran fails to acknowledge the facts of his case, but because

evidence shows that his mental illness distorts his ability to have the

requisite rational understanding.

Additionally concerning is that Corcoran’s writings reflect a desire to

be executed to avoid further imprisonment. In 2006, for example, he

expressed a desire to waive his appeals to “die and escape” prison, which

he characterized as benefit because he didn’t “want to live in prison for

the rest of [his] life.” State’s Opp. Resp., Ex. 1. And the recently filed

affidavit reflects a similar desire. See Affidavit of Joseph Corcoran (Nov.

22, 2024). The death penalty, however, is not a mechanism for granting

reprieve from suffering or a means to expedite escape from incarceration.

It is the gravest act the State can undertake, reserved for those who bear

the full weight of their moral culpability. And thus, honoring Corcoran’s

request undermines society’s interest “in not allowing the death penalty . .

. to be used as a means of state-assisted suicide.” Smith v. State, 686 N.E.2d

1264, 1275 (Ind. 1997). To accommodate Corcoran’s expressed desire and

authorize an execution sought to avoid continued incarceration violates

the dignity of both the defendant and the judicial process.

At a minimum, to comply with constitutional due process

requirements, this Court should appoint a psychiatrist to conduct a

psychiatric examination of Corcoran to render an opinion on his current

mental state. In Timberlake v. State, the petitioner made a competence claim

like the one advanced here. See Timberlake v. State, No. 49S00-0606-SD235

(Ind. Sept. 18, 2006) (unpublished order for mental examination). While

we ultimately found that Timberlake failed to make the requisite showing,

we came to that conclusion only after we ordered contemporaneous

testing—which Corcoran’s attorneys have asked us to do. There is simply

no reason to refuse this request. To the contrary, given the “irreversibility”

of a death sentence, “we should err on the side of caution in carrying out

an execution.” Baird, 833 N.E.2d at 33 (Boehm, J., dissenting).

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Such caution is particularly warranted here. Twenty-five years elapsed

between Corcoran being sentenced to death and the State filing a petition

asking us to set his execution date. We received that request last June, and

now, less than six months later, Corcoran is scheduled to be executed with

threshold evidence of incompetency. We should reaffirm our commitment

to the Eighth Amendment and the principles it upholds by, at minimum,

ordering a psychiatric examination of Corcoran’s current mental status.

Doing so would ensure that this irrevocable punishment aligns with

moral culpability and that we are not conflating such punishment with

escape.

Conclusion

Corcoran has been diagnosed with paranoid schizophrenia by multiple

experts. Due to that diagnosis, he has persistently displayed an irrational

ability to assess and act on his own legal options. And, by his own words,

he wants to be executed to avoid being incarcerated for the rest of his life.

The bedrock of our constitutional order rests on the premise that

punishment must align with moral culpability. With the evidence before

us, executing Corcoran without first assessing his current mental

competence defies this foundational principle.

For these reasons, and for the reasons above, I dissent from the denial

of Corcoran’s motion to stay and motion to file a successive petition for

post-conviction relief.

Rush, C.J., joins.

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USDC IN/ND case 3:24-cv-00970-JD

document 20

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page 1 of 31

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

TAHINA CORCORAN,

Petitioner,

v.

CAUSE NO. 3:24-CV-970-JD

RON NEAL,

Respondent.

OPINION AND ORDER

Tahina Corcoran, by counsel and as a next friend on behalf of Joseph E.

Corcoran, filed a habeas petition challenging the timing of his execution in connection

with his conviction on four counts of murder in State v. Corcoran, Case No. 02D04-9707CF-465 (Allen Sup. Ct. filed July 31, 1997). Pursuant to Section 2254 Habeas Corpus Rule

4, the court must dismiss the petition “[i]f it plainly appears from the petition and any

attached exhibits that the petitioner is not entitled to relief in the district court.”1

The petition asserts a single claim that Corcoran is not competent to be executed,

citing Ford v. Wainwright, 477 U.S. 399 (1986), Panetti v. Quarterman, 551 U.S. 930 (2007),

and Madison v. Alabama, 586 U.S. 265 (2019). Before proceeding to the merits, the court

will briefly consider the procedural soundness of this claim. Under Indiana law,

individuals may raise Ford/Panetti claims by seeking authorization to pursue a

1 On December 12, 2024, the Warden filed a response to the habeas petition without prompting

from this court. ECF 17. Except for this footnote, the court prepared this opinion without reviewing the

Warden’s response. The court has now reviewed it but did not make any changes to this opinion based

on that review.

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successive post-conviction petition. Baird v. State, 833 N.E.2d 28, 29 (Ind. 2005) (A

[Wainwright claim] is among those that our post-conviction rule on successive postconviction petitions was designed to address.”). The record indicates that Corcoran has

pursued this avenue, so the court is satisfied that the claim is exhausted. ECF 1-1 at 16768. Panetti instructs that Ford/Panetti claims are not ripe until the execution date is set,

which typically occurs after the adjudication of an initial federal habeas petition. Id. at

943-48. Panetti further interprets the prohibition against unauthorized successive

petitions as not applying to claims that were not ripe at the time of the initial habeas

proceedings. Id. On September 11, 2024, the Indiana Supreme Court set the date of

execution for December 18, 2024. Corcoran v. State, 240 N.E.3d 701 (Ind. Sept. 11, 2024).

The court is thus satisfied that it is not allowing Corcoran to proceed on an

unauthorized successive petition or on an untimely claim.

Additionally, the court considers the related questions of whether Corcoran is

currently competent to litigate this case and whether a next friend is appropriate. These

questions are distinct from the question of whether he is currently competent to be

executed. See Whitmore v. Arkansas, 495 U.S. 149, 166 (1990) (requiring “meaningful

evidence that [the petitioner] was suffering from a mental disease, disorder, or defect

that substantially affected his capacity to make an intelligent decision” to demonstrate

that a habeas petitioner is incompetent). Perhaps more critically, the court is not

required to defer to the State courts under the Anti-Terrorism and Effective Death

Penalty Act of 1996 (AEDPA) to allow this case to proceed with a next friend. See 28

U.S.C. 2254(d). As a result, the court finds that Tahina Corcoran has adequately shown

2

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that she is a proper next friend for purposes of the preliminary stages of this habeas

case. Left remaining are the issue of procedural default and the merits of the claim,

which the court will address below.

PROCEDURAL HISTORY

The complete procedural history of Corcoran’s legal proceedings is lengthy and

was articulated by the Indiana Supreme Court one week ago in admirable detail.

Corcoran v. State, 2024 WL 5052384, 2-8 (Ind. Dec. 10, 2024). Indeed, this court has played

a substantial role in this procedural history by resolving Corcoran’s initial habeas

proceedings. Corcoran v. Buss, 2013 WL 140378 (N.D. Ind. Jan. 10, 2013). As a result, this

court will detail only the procedural history that is particularly relevant to resolving this

habeas petition.

In 1999, a jury convicted Corcoran on four counts of murder, and the Allen

Superior Court sentenced him to death after affording “medium or low weight” to the

mitigating factor of being under the influence of mental or emotional disturbances

during the crime. Corcoran v. State, 739 N.E.2d 649, 651, 656 (Ind. 2000). Corcoran

appealed the sentence, and the Indiana Supreme Court remanded because the Allen

Superior Court might have considered improper aggravating factors. Id. at 657-58. The

Allen Superior Court resentenced Corcoran to death but this time afforded “medium

weight” to the mitigating factor of being under the influence of mental or emotional

disturbances during the crime based on the expert opinions that he suffered paranoid

personality disorder or schizotypal personality disorder. Corcoran v. State, 774 N.E.2d

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495, 498-99 (Ind. 2002). The Indiana Supreme Court affirmed this sentence on appeal,

despite Corcoran’s emphasis on the significance of his mental health. Id. at 501-02.

The Indiana Supreme Court ordered Corcoran to file any petition for postconviction relief by September 9, 2003. Corcoran v. State, 820 N.E.2d 655, 657 (Ind. 2005).

Corcoran declined, but counsel requested competency proceedings on the basis that he

was incompetent to waive post-conviction proceedings. Id. The Allen Superior Court

held a hearing, and three mental health experts presented by Corcoran’s counsel,

including Dr. Parker and Dr. Kaplan, opined that Corcoran suffered from paranoid

schizophrenia. Id. at 660. According to the experts, Corcoran had recurring delusions

that correctional officials tortured him through the use of an ultrasound machine. Id.

They opined that he could not make a rational decision regarding legal proceedings and

that his decision to waive post-conviction proceedings was “premised on his desire to

be relieved of the pain that he believes he experiences as a result of his delusions.” Id.

They further opined that his decision to waive post-conviction review could not be

rational if it was based on his irrational delusions. Id. However, Dr. Parker also opined

that Corcoran was aware of the status of his case, his death sentence, the relevant

events, and the positions of counsel. Id. at 661. Further, Dr. Kaplan opined that

Corcoran was aware that waiving post-conviction review would result in his execution.

Id.

At this hearing, Corcoran testified:

See, I want to waive my appeals because I am guilty of murder. I think

that I should be executed for what I have done and not because I am

supposedly tortured with ultrasound or whatever. I am guilty of murder.

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I should be executed. That is all there is to it. That is what I believe. I

believe the death penalty is a just punishment for four counts of murder,

and I believe that I should be executed since I am guilty of four counts of

murder.

Id. at 660-61. The State attorney and the judge each questioned and confirmed his

understanding of the legal proceedings and his position, including that post-conviction

proceedings could be his last attempt to challenge his sentence. Id. at 661-62. The Allen

Superior Court found Corcoran sufficiently competent to waive post-conviction review.

Id. at 658.

On the appeal of the competency determination, the Indiana Supreme Court

found substantial evidence to support that Corcoran was “able to appreciate the gravity

of his legal position and the consequences of his choice to waive further post-conviction

review” and to support the “determination that Corcoran made his choice knowingly,

voluntarily, and intelligently.” Id. at 662. The Indiana Supreme Court found Corcoran’s

express denial that his delusions motivated him to waive post-conviction review and

his reasoning that his death sentence was appropriate for his crimes to be particularly

persuasive in declining to find that the Allen Superior Court’s determination was

clearly contradicted by the evidence. Id. at 661. During the pendency of this appeal,

Corcoran decided to pursue a petition for post-conviction relief, which the State courts

denied as untimely. Corcoran v. State, 845 N.E.2d 1019 (Ind. 2006); Corcoran v. State, 827

N.E.2d 542 (Ind. 2005).

In 2005, Corcoran initiated federal habeas proceedings in this court. Corcoran v.

Buss, 483 F. Supp. 2d 709, 716 (N.D. Ind. 2007). This court granted habeas relief on

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grounds not relevant here but rejected the argument that the State courts erred by

finding Corcoran competent to waive post-conviction review. Id. at 729-34. This court

noted that the Indiana Supreme Court applied the standard set forth in Dusky v. United

States, 362 U.S. 402 (1960) in which the U.S. Supreme Court held that a defendant is

competent to stand trial if “he has sufficient present ability to consult with his lawyer

with a reasonable degree of rational understanding—and has a rational as well as

factual understanding of the proceedings against him.” Id. at 729-30. It also noted

reliance on the standard in Rees v. Peyton, 384 U.S. 312 (1966), in which the U.S. Supreme

Court held that a capital defendant may withdraw a petition for certiorari only after it is

determined whether “he has capacity to appreciate his position and make a rational

choice with respect to continuing or abandoning further litigation or on the other hand

whether he is suffering from a mental disease, disorder, or defect which may

substantially affect his capacity in the premises.” Id. at 730. This court recounted the

evidence presented at the competency hearing and the Indiana Supreme Court’s

reasoning for affirming the competency finding. Id. at 729-33. This court found that

Corcoran’s arguments merely amounted to a request to reweigh the evidence. Id. at 733.

It concluded that the Indiana Supreme Court fully confronted the competency issue and

that its opinion was “thorough, thoughtful, and reasonable.” Id. at 733-34.

On appeal, the Seventh Circuit affirmed the ruling on the competency argument,

reiterating that the Indiana Supreme Court carefully considered the evidence from the

competency hearing. Corcoran v. Buss, 551 F.3d 703, 713-14. (7th Cir. 2008). It added that

preferring death to life imprisonment is not per se irrational. Id. Though the federal

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habeas case was appealed and remanded on multiple occasions thereafter, the Seventh

Circuit’s ruling on this argument remained intact. Corcoran v. Wilson, 651 F.3d 611, 613

(7th Cir. 2011); Corcoran v. Buss, 2013 WL 140378, at *6 (N.D. Ind. Jan. 10, 2013). The

initial habeas case concluded only when the U.S. Supreme Court denied certiorari in

March 2016. Corcoran v. Neal, 577 U.S. 1237 (2016).

Corcoran’s legal proceedings laid dormant for more than eight years when the

State of Indiana filed a motion to set an execution date with the Indiana Supreme Court

on June 26, 2024. Corcoran v. State, 240 N.E.3d 701 (Ind. 2024). Corcoran opposed an

execution date on the basis that he was not competent to be executed, but, on September

11, 2024, the Indiana Supreme Court set an execution date for December 18, 2024,

suggesting that Corcoran’s competency argument was more appropriately raised in a

successive petition for post-conviction relief. Id.

On November 15, 2024, Corcoran’s counsel2 filed a successive petition for postconviction relief, asserting that Corcoran was not competent to be executed. ECF 1-1 at

3-7. In the accompanying memorandum,3 counsel briefly addressed Corcoran’s mental

health before trial and at trial, and they recounted the evidence presented at the postconviction competency hearing in 2003. With respect to Corcoran’s mental condition at

the present date, counsel offered the following:

2 Given the disagreements between Corcoran and his counsel on whether to pursue a successive

petition, the court finds it necessary to distinguish between them at various points in this order.

3 In 24S-SD-222, Corcoran’s counsel filed two successive petitions for post-conviction relief each

asserting one claim with accompanying memoranda. Though they appear to have filed the wrong

memorandum in this habeas case (ECF 1-1 at 8-23), the relevant memorandum, quoted in the block text

below, is available on the State court docket.

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Now in 2024, Mr. Corcoran continues to suffer the debilitating symptoms

of his paranoid schizophrenia. As he has for twenty years, he experiences

auditory hallucinations, psychosis, and the ever-present delusions

regarding the ultrasound machine he believes the prison guards are

torturing him with and his sleep disorder. For instance, records from the

Department of Correction will establish that he has received psychotropic

medications to treat the symptoms of schizophrenia for two decades;

specifically, Geodon, Haldol, Navane, and Cogentin.

Although the Indiana Department of Corrections has attempted

medicating him, his illness has proven to be resistant to treatment, and

nothing during his incarceration has cured him of his paranoid

schizophrenia. As recently as March 1, 2024, treating correctional

personnel noted:

Patient then began sharing information about what he believes to be

an ultrasonic machine here at ISP that can control his and others

thoughts, sleep, voice, etc. Patient reports it is ‘top secret’ but it

bothers him ‘endlessly all day.’ Patient reports the machine does put

him to sleep at night. Patient stated ‘others’ think I’m delusional but

I know its here.’ Writer inquired if patient ever recognizes his own

thoughts as delusional, patient avoided the question. ...Patient

denies MH symptoms and the expressed delusions are the only

observable concern.”

In short, Mr. Corcoran’s longstanding and documented mental illness

continues to torment him as it did at the time of the 1997 offense.

As exhibits, counsel attached the four-page psychotherapy session record from

which they quoted and a thirty-page document, titled, “A Whistle-blower Report:

Electronic Harassment,” written by Corcoran in June 2024. ECF 1-1 at 170-99, 206-10. In

this book, Corcoran elaborates on a conspiracy theory that government officials use

secret technology to surveil and control individuals, including himself. Id. at 170-99. It

also includes sections in which Corcoran demonstrates his extensive knowledge of

electronics, explaining the frequency and modulation of radio waves, piezoelectric

effects, transducers, and oscillators. Id. In the reply brief to the Indiana Supreme Court,

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counsel also attached affidavits from trial counsel attesting that they received opinions

from medical experts in 1999 indicating that Corcoran was not competent to stand trial

but that they did not receive them in time to request a competency hearing. Id. at 200-05.

On November 22, 2024, Corcoran submitted a handwritten affidavit that he

prepared without assistance from counsel, which reads as follows:

1. I am the same Joseph Edward Corcoran who was convicted in Allen

County in 1999 of four counts of murder and sentenced to death. I am

the same Joseph Edward Corcoran who has a very extensive appeal

history. Having lost all appeals this Court has issued a death warrant

to be carried out December 18, 2024, before sunrise.

2. My assigned counsel has petitioned this Court on my behalf. They seek

to further litigate this case. Their goal, which was explained to me by

counsel, is to delay any and all executions through endless litigation.

They hope to set a precedent so all future death penalty cases can be

endlessly litigated effectively putting an end to all executions.

3. I, Joseph Edward Corcoran, do not wish to litigate my case further. I

am guilty of the crime I was convicted of, and accept the findings of all

the appellate courts. The long drawn out appeal history has addressed

all the issues I wished to appeal, such as the issue of competency.

Therefore, I am hereby making this statement to the Court through this

affidavit: I do not wish to proceed with more and/or endless litigation.

Thus, I urge this Court not to accept my counsel’s motion and petition

to litigate further.

4. I understand that if this Court rejects my counsel’s petition, the death

warrant will be carried out. I will then be put to death for the heinous

crime I committed. I understand that the execution will end my life. I

understand medically my heart will stop and all brain activity will

cease. I do not know, however, what will happen metaphysically. (But

neither does anyone else.) I understand the execution, in the interest of

judgment, serves as both a punishment and a deterrent.

5. I, Joseph Edward Corcoran, give this affidavit to the Court of my own

free will. I was not coerced into making this statement, nor was I

promised anything. I remind this Court that my competence to waive

my appeals has been adjudicated throughout the extensive appeal

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process. Therefore, of my own free will and completely voluntarily,

without coercion or promise of anything, being adjudicated competent,

withdraw the motion counsel filed on my behalf. I do not wish to

litigate further. However, if this Court refuses to withdraw the motion

outright, I ask this Court to reject it on the basis that I, the appellant,

have no desire nor wish to engage in further appeals or litigation

whatsoever.

Id. at 163-66.

On December 10, 2024, the Indiana Supreme Court denied Corcoran

authorization to pursue a successive post-conviction petition. Corcoran v. State, 2024 WL

5052384 (Ind. Dec. 10, 2024). The Indiana Supreme Court noted that successive petitions

required authorization from an appellate court before they could be litigated in the

lower courts and that such authorization would be granted “if the petitioner establishes

a reasonable possibility that the petitioner is entitled to relief.” Id. at 9. The Indiana

Supreme Court first considered whether the petition was properly before it given that

Corcoran refused to sign it. Id. at 10-11. Under Indiana law, the petitioner must

authorize a post-conviction petition unless they are incompetent to do so. Id. at 10. The

Indiana Supreme Court noted that Corcoran’s counsel substantially relied on the

evidence considered at the 2004 competency hearing and argued that Corcoran

remained as incompetent now as he was then. Id. The Indiana Supreme Court observed

that it had already found Corcoran competent to waive post-conviction review on this

evidence and that the Seventh Circuit had described its analysis as careful. Id. Because

Corcoran competently declined to authorize a successive petition, so too did the Indiana

Supreme Court. Id. at 11.

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The Indiana Supreme Court also considered the merits of the claim that Corcoran

was not competent to be executed and found that counsel had not made a substantial

threshold showing that his mental illness prevented him from rationally understanding

the reason for his impending execution. Id. at 12-15. The Indiana Supreme Court cited

Corcoran’s recent affidavit and found it consistent with Corcoran’s statements and the

other evidence presented at the 2004 competency hearing. Id. at 12-13. The Indiana

Supreme Court noted that counsel had submitted new evidence only for the purpose of

showing that Corcoran remained as incompetent as he was in 2004. Id. at 13. The

Indiana Supreme Court distinguished Corcoran’s understanding of his execution from

the Panetti petitioner’s understanding by observing that Panetti believed that the

Texas’s stated reason was a sham. Id. It found that, while some evidence suggested that

Corcoran was irrational and delusional in certain respects, no evidence suggested that

Corcoran was delusional with respect to his execution. Id.

As an analogous case, the Indiana Supreme Court relied on Timberlake v. State,

858 N.E.2d 625 (Ind. 2006), in which Timberlake similarly sought to demonstrate his

incompetency for execution based on his schizophrenic delusions that the government

controlled, monitored, and tortured people through a secret machine. Corcoran, 2024

WL 5052384 at 14. The Indiana Supreme Court noted that Dr. Parker, the same expert

who testified in Corcoran’s competency hearing in 2004, testified that, though

Timberlake was delusional and severely mentally ill, he had the mental capacity to

understand his imminent execution and the reasons for it. Id. Based on this testimony,

the Indiana Supreme Court denied Timberlake leave to pursue a successive petition. Id.

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The Indiana Supreme Court found that counsel had similarly established Corcoran’s

severe mental illness but fell short of demonstrating that his understanding of his

execution was irrational. Id.

The Indiana Supreme Court further acknowledged that the standards for

waiving post-conviction review and for competency to be executed are not identical but

noted that their 2005 decision affirming the post-conviction competency determination

included a finding that Corcoran’s mental ability did not interfere with his ability to

understand the reasons for his execution. Id. The Indiana Supreme Court found no

evidence suggesting that Corcoran’s understanding had changed and found no

substantial threshold showing of incompetency to be executed. Id.

PROCEDURAL DEFAULT

The court considers whether the Indiana Supreme Court’s rejection of the

successive petition for lack of authorization by Corcoran constitutes procedural default.

“[A] procedural default [bars] consideration of a federal claim on either direct or habeas

review [when] the last state court rendering a judgment in the case clearly and

expressly states that its judgment rests on a state procedural bar.” Harris v. Reed, 489

U.S. 255, 263 (1989). “Accordingly, [the court] will not entertain questions of federal law

in a habeas petition when the state procedural ground relied upon in the state court is

independent of the federal question and adequate to support the judgment.” Lee v.

Foster, 750 F.3d 687, 693 (7th Cir. 2014). “An independent state ground will be found

when the court actually relied on the procedural bar as an independent basis for its

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disposition of the case.” Id. “A state law ground is adequate when it is a firmly

established and regularly followed state practice at the time it is applied.” Id.

Here, the Indiana Supreme Court expressly denied authorization to pursue a

successive petition because Corcoran, who it found competent, did not authorize it. The

verification requirement on which the Indiana Supreme Court relied is set forth in

Section 3 of the Indiana Rules of Post-Conviction Remedies. As acknowledged by the

Indiana Supreme Court and Corcoran here, the standard for competency to waive postconviction review is a separate, though potentially overlapping, question than the

standard for competency to be executed.

The court is also aware of a single instance in which the Indiana Supreme Court

allowed a petitioner to proceed without complying with the verification requirement:

Isom v. State, 170 N.E.3d 623, 632 (Ind. 2021). Though the Indiana Supreme Court issued

only a summary order in January 2017, Isom’s petition is distinguishable from

Corcocan’s successive petition; Isom initially signed but did not verify his petition due

to mere inadvertence, his subsequent refusal to verify was a consequence of his desire

for new counsel, and he consistently disavowed any intent to waive post-conviction

review. Isom v. State, 45S00-1508-PD-508 (Ind. filed Aug. 31, 2015).4 Isom credibly

argued that his initial offering substantially complied with the verification requirement,

but the same cannot be said for Corcoran. The failure to verify the post-conviction

4 For these details, the court relies on Isom’s appellate brief filed on September 27, 2016.

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petition thus appears to be an adequate and independent State ground for procedural

bar.

Further, the Indiana Supreme Court’s consideration of the merits of the

competency to be executed claim does not undermine the lack of verification as a basis

for procedural default. See Harris, 489 U.S. at 264 n.10 (“[A] state court need not fear

reaching the merits of a federal claim in an alternative holding. By its very definition,

the adequate and independent state ground doctrine requires the federal court to honor

a state holding that is a sufficient basis for the state court’s judgment, even when the

state court also relies on federal law.”). Moreover, “a federal habeas court is not the

proper body to adjudicate whether a state court correctly interpreted its own

procedural rules, even if they are the basis for a procedural default.”5 Johnson v. Foster,

786 F.3d 501, 508 (7th Cir. 2015). That said, this court and the Seventh Circuit carefully

reviewed the Indiana Supreme Court’s analysis in the prior habeas case and found it to

be more than adequate. The Indiana Supreme Court’s most recent analysis incorporated

its earlier analysis and reasonably found that the new evidence offered by Corcoran’s

counsel was merely consistent with its earlier understanding of Corcoran’s mental

condition. Therefore, the court cannot grant habeas relief because the claim that

5 Johnson further noted exceptions to this rule in instances of “obvious subterfuge to evade

consideration of a federal issue” or a record where it was “clear that the claim had been properly raised.”

786 F.3d at 508 n.7. But, here, the Indiana Supreme Court considered the underlying federal claim, and

while Corcoran’s counsel reasonably argued that they had properly raised the Ford/Panetti claim, his

competency to waive the opportunity to seek authorization for a successive petition was reasonably

disputed by the State.

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Corcoran is incompetent to be executed is procedurally defaulted. Nevertheless, for the

sake of completeness, the court will consider the merits of the claim.

STANDARD OF REVIEW

“Federal habeas review . . . exists as a guard against extreme malfunctions in the

state criminal justice systems, not a substitute for ordinary error correction through

appeal.” Woods v. Donald, 575 U.S. 312, 316 (2015).

An application for a writ of habeas corpus on behalf of a person in

custody pursuant to the judgment of a State court shall not be granted

with respect to any claim that was adjudicated on the merits in State court

proceedings unless the adjudication of the claim—

(1) resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented in the

State court proceeding.

28 U.S.C. § 2254(d).

[This] standard is intentionally difficult to meet. We have explained that

clearly established Federal law for purposes of §2254(d)(1) includes only

the holdings, as opposed to the dicta, of this Court’s decisions. And an

unreasonable application of those holdings must be objectively

unreasonable, not merely wrong; even clear error will not suffice. To

satisfy this high bar, a habeas petitioner is required to show that the state

court’s ruling on the claim being presented in federal court was so lacking

in justification that there was an error well understood and

comprehended in existing law beyond any possibility for fairminded

disagreement.

Woods, 575 U.S. at 316. To warrant relief, a state court’s decision must be more than

incorrect or erroneous; it must be objectively unreasonable. Wiggins v. Smith, 539 U.S.

510, 520 (2003). “A state court’s determination that a claim lacks merit precludes federal

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habeas relief so long as fairminded jurists could disagree on the correctness of the state

court’s decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011).

However, “[w]hen 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.” Panetti v. Quarterman, 551 U.S. 930, 953 (2007). “A federal court

must then resolve the claim without the deference AEDPA otherwise requires.” Id.

PRECEDENTIAL SUPREME COURT CASES

As detailed above, to obtain habeas relief, Corcoran must demonstrate that the

State court decision “was contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the Supreme Court of the United

States.” 28 U.S.C. § 2254(d)(1). Consequently, the court will detail the Ford/Panetti line of

opinions issued by the Supreme Court.

Ford v. Wainwright, 477 U.S. 399 (1986)

In 1974, Ford was sentenced to death. In 1982, Ford began to experience

delusions while in prison. Id. at 401. Ford sought the assistance of a psychiatrist, who

evaluated Ford for fourteen months and concluded in 1983 that Ford suffered from a

mental condition resembling paranoid schizophrenia that substantially affected his

“present ability to assist in the defense of his life.” Id. at 402-03. Another physician

examined Ford, who made statements such as, “I know there is some sort of death

penalty, but I’m free to go whenever I want because it would be illegal and the

executioner would be executed,” and, ““I can’t be executed because of the landmark

case. I won. Ford v. State will prevent executions all over.” Id. at 403. The physician

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concluded that Ford did not understand that he was being executed or the connection

between his offense of murder and the death penalty. Id.

Ford initiated the Florida procedure for competency determinations for

condemned inmates. Id. Pursuant to that procedure, the Governor appointed three

psychiatrists, who jointly interviewed Ford for thirty minutes and concluded that Ford

understood the death penalty and the reasons for imposing it on him. Id. at 403-04. In

April 1984, the Governor, without explanation, signed a death warrant for Ford. Id. at

404. Though Ford also submitted written materials, the Governor did not indicate that

he had considered them. Id. Ford unsuccessfully sought an evidentiary hearing in State

court before filing a federal habeas petition. Id.

On habeas appeal, the Supreme Court examined the common law and invoked

the evolving standards of decency to hold, “The Eighth Amendment prohibits the State

from inflicting the penalty of death upon a prisoner who is insane.” Id. at 406-10. It then

considered the adequacy of the Florida procedure used to safeguard this constitutional

right. Id. at 413-16. The Supreme Court found the procedure to be deficient because: (1)

it “preclude[d] the prisoner or his counsel from presenting material relevant to his

sanity or bar[red] consideration of that material by the factfinder;” (2) it failed “to afford

the prisoner’s representative any opportunity to clarify or challenge the state experts’

opinions or methods;” and (3) Florida placed “the decision wholly within the executive

branch.” Id.

In closing, the Supreme Court disavowed any suggestion that the Constitution

required a “full trial on the issue of sanity” but left it to the States to develop

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appropriate procedures. Id. at 416-18. It further observed that “[i]t may be that some

high threshold showing on behalf of the prisoner will be found a necessary means to

control the number of nonmeritorious or repetitive claims of insanity.” Id. In his

concurrence,6 Justice Powell echoed these sentiments as follows:

Second, petitioner does not make his claim of insanity against a neutral

background. On the contrary, in order to have been convicted and

sentenced, petitioner must have been judged competent to stand trial, or

his competency must have been sufficiently clear as not to raise a serious

question for the trial court. The State therefore may properly presume that

petitioner remains sane at the time sentence is to be carried out, and may

require a substantial threshold showing of insanity merely to trigger the

hearing process.

Finally, the sanity issue in this type of case does not resemble the basic

issues at trial or sentencing. Unlike issues of historical fact, the question of

petitioner’s sanity calls for a basically subjective judgment. And unlike the

determination of whether the death penalty is appropriate in a particular

case, the competency determination depends substantially on expert

analysis in a discipline fraught with “subtleties and nuances.” This

combination of factors means 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.

We need not determine the precise limits that due process imposes in this

area. In general, however, my view is that a constitutionally acceptable

procedure may be far less formal than a trial. 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 psychiatric examination. Beyond these basic

requirements, the States should have substantial leeway to determine

what process best balances the various interests at stake. As long as basic

fairness is observed, I would find due process satisfied, and would apply

the presumption of correctness of § 2254(d) on federal habeas corpus.

Id. at 425-27.

6 In Panetti, the Supreme Court characterized Justice Powell’s concurrence as the controlling

opinion in Ford. 551 U.S. 930, 949 (2007).

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Panetti v. Quarterman, 551 U.S. 930 (2007)

In 1995, Panetti was sentenced to death. Id. at 936. Before trial, he was assessed

with “fragmented personality, delusions, and hallucinations,” but the trial court found

him competent to stand trial and to waive counsel. Id. Two months after sentencing, he

was found incompetent to waive appointment of State habeas counsel, which suggested

that his mental condition had deteriorated. Id. at 937. In October 2003, a county court set

his execution for February 2004. Id. Counsel moved to initiate a competency

determination proceeding, but the county court denied the motion without a hearing,

and the Texas appellate court dismissed the appeal for lack of jurisdiction. Id. at 938.

Panetti then filed a federal habeas petition, and the district court stayed

execution to allow the Texas courts to consider evidence of Panetti’s mental state. Id.

The county court selected two mental health experts without input from Panetti, and

these experts concluded that he understood that he would be executed and had the

ability to understand the reasons for it. The county court granted Panetti one week to

file a response and then issued a short order finding that Panetti had failed to

demonstrate his incompetency. Id. at 939-41. The federal district court denied habeas

relief on the basis that “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 941-42.

The Supreme Court disagreed, concluding that the failure to provide Panetti

with the procedures set forth in Ford was an unreasonable application of clearly

established Supreme Court law and declined to apply AEDPA deference to the Texas

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court decision. Id. at 948. In so concluding, the Supreme Court noted, “It is uncontested

that petitioner made a substantial showing of incompetency.”7 Id. It then reasoned that

the Texas court deprived Panetti of any means “to submit expert psychiatric evidence in

response to the evidence that had been solicited by the state court.” Id.

The Supreme Court also found that the Fifth Circuit’s standard for competency

was too restrictive on the basis that it treated a delusional belief system as irrelevant “if

the prisoner knows the State has identified his crimes as the reason for his execution.”

Id. at 958. The Supreme Court implied that a proper standard should require an

understanding of “the real interests the State seeks to vindicate” rather than merely “the

State’s announced reason” or “the fact of an imminent execution.” Id. at 959. Put

another way, “[a] prisoner’s awareness of the State’s rationale for an execution is not the

same as a rational understanding of it.” Id. The Supreme Court explained, “The critical

question is whether a prisoner’s mental state is so distorted by a mental illness that he

lacks a rational understanding of the State’s rationale for his execution. Or similarly put,

the issue is whether a prisoner’s concept of reality is so impaired that he cannot grasp

the execution’s meaning and purpose or the link between his crime and its

punishment.” Madison v. Alabama, 586 U.S. 265, 269 (2019) (articulating the Panetti

competency standard).

7 Later in the opinion, the Supreme Court found that Panetti had satisfied the substantial

threshold showing, relying on two experts the day before the execution date and evidence of mental

dysfunction considered in prior litigation. Panetti v. Quarterman, 551 U.S. 930, 950 (2007).

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Madison v. Alabama, 586 U.S. 265 (2019)

After Madison killed a police officer in 1985, he was convicted of murder and

sentenced to death. Id. at 269. In 2015 and 2016, Madison suffered major strokes and

developed vascular dementia. Id. Madison then asked the county court for a stay of

execution because he no longer understood the facts of his case or the nature of his

conviction or sentence. Id. at 269-70. The county court heard from dueling experts, and

Madison’s expert opined that he understood execution as an abstract concept but did

not comprehend the reason behind Alabama’s effort to execute him. Id. at 270. He

further opined that vascular dementia caused significant cognitive decline and that

Madison had no independent recollection of the murder. Id. By contrast, Alabama’s

expert opined that Madison appeared to understand his legal situation and found no

evidence of psychosis, paranoia, or delusion. Id. at 270-71. At a hearing, Alabama

emphasized that Madison did not experience psychotic episodes or delusions, which

the county court found persuasive in concluding that Madison had not demonstrated

that he did not have a rational understanding of his execution or the reasons for it. Id.

at 271. The county court also credited the testimony of the Alabama expert. Id. at 271-72.

Madison then filed a federal habeas petition, which the Supreme Court applied AEDPA

deference to the Alabama court decision and affirmed the denial of habeas relief on the

basis that “neither Panetti nor Ford clearly established that a prisoner is incompetent to

be executed because of a simple failure to remember his crime.” Id. at 272.

In 2018, Alabama set an execution date, and Madison initiated another challenge

in State court, contending that he had suffered further cognitive decline and that the

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Alabama expert had since been suspended from practicing psychology. Id. at 273. The

Alabama court declared him mentally competent, finding no substantial threshold

showing of insanity. Id. at 273-74. Madison then appealed directly to the Supreme

Court, allowing for de novo consideration of his claims rather than consideration

subject to AEDPA deference. Id. at 274.

The Supreme Court considered: (1) “whether Panetti prohibits executing

Madison merely because he cannot remember committing his crime;” and (1) “whether

Panetti permits executing Madison merely because he suffers from dementia, rather

than psychotic delusions.” Id. at 274-75. It answered no to both questions, reasoning that

“[w]hat matters is whether a person has the rational understanding Panetti requires—

not whether he has any particular memory or any particular mental illness.” Id. The

Supreme Court held that “[i]n evaluating competency to be executed, a judge must

therefore look beyond any given diagnosis to a downstream consequence.” Id. at 279. It

explained that “a delusional disorder can be of such severity—can so impair the

prisoner’s concept of reality—that someone in its thrall will be unable to come to grips

with the punishment’s meaning. But delusions come in many shapes and sizes, and not

all will interfere with the understanding that the Eighth Amendment requires.” Id.

The Supreme Court found the brief State court order to be ambiguous as to its

reasoning and that the circumstances suggested that the State court had applied the

incorrect standard for assessing competency. Id. at 280-83. The Supreme Court vacated

the judgment of the State court and remanded for further proceedings, advising that the

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sole competency question before the State court was “whether he can reach a rational

understanding of why the State wants to execute him.” Id. at 283.

DISCUSSION

Corcoran argues that he is entitled to habeas relief because he is incompetent to

be executed. Corcoran contends that the AEDPA deference should not apply in this case

because the Indiana courts required him to present his claim in a successive petition for

post-conviction relief and because he must obtain authorization from the Indiana

Supreme Court to further pursue it. He argues that this procedure allowed the Indiana

Supreme Court to improperly conflate the standard for waiving post-conviction review

with the standard for competency to be executed.

The court is not persuaded by this argument. The Indiana Supreme Court

acknowledged that these standards were distinct and explained why it found its

competency determination in 2005 relevant to its threshold determination this month.

This explanation and its assessment of the new evidence were not unreasonable.

Further, there is no reason to suspect that an assertion of incompetency would not have

been similarly challenged if the Indiana courts had allowed him to file a successive

petition without authorization from an appellate court. Additionally, no U.S. Supreme

Court opinion clearly establishes that the threshold determination must be held in a

particular manner or in a particular type of proceeding. This court also sees no

inconsistency with the relevant U.S. Supreme Court opinions; to the contrary, the

authorization requirement to pursue successive petitions is effectively a vehicle for

threshold determinations where the petitioner must demonstrate that his claim has

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some merit before he is allowed to proceed. At base, the court perceives no difference of

constitutional magnitude between making this threshold determination before the

Indiana Supreme Court or the Allen Superior Court. Nor does the court perceive such a

difference between the State requirement that a petitioner show a reasonable possibility

that the petitioner is entitled to relief or the constitutional requirement that petitioner

make a substantial threshold showing of insanity. Moreover, the Indiana Supreme

Court framed its ultimate conclusion using the constitutional standard rather than the

State standard for successive petitions.

It also strikes the court that the standards used to adjudicate Corcoran’s

competency to waive post-conviction are more demanding than the standard for

competency to be executed. Recall that the Indiana Supreme Court articulated the

competency to waive post-conviction review standard as follows: “an individual is

competent for purposes of trial if he has sufficient present ability to consult with his

lawyer with a reasonable degree of rational understanding—and has a rational as well

as factual understanding of the proceedings against him.” Corcoran v. State, 820 N.E.2d

655, 658-59 (Ind. 2005). It seems likely that, as a general matter, greater competency is

required to understand ongoing criminal proceedings on serious charges than it is to

understand the reasons for punishment. And even if the trial competency standard does

not subsume the competency to be executed standard in every instance, it does so here.

As the Indiana Supreme Court noted, it specifically found that Corcoran understood the

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reasons for his execution in finding that Corcoran was competent to waive postconviction review.8

Corcoran also argues that the Indiana Supreme Court unreasonably determined

that counsel had not made a substantial threshold showing of insanity and made

improper credibility determinations at the threshold stage. A more accurate

characterization is that the Indiana Supreme Court acknowledged its prior credibility

determinations in connection with its prior competency determination and found the

new evidence consistent with those determinations. The U.S. Supreme Court has not

delineated how a threshold determination should be made, but, to Corcoran’s point, it

logically follows that a threshold determination is something other than a hearing

where credibility determinations are ordinarily made. But the Indiana Supreme Court

here did not blatantly violate this principle by, for example, resolving a full-scale battle

of the experts or a straightforward “he said she said” dispute based entirely on evidence

that had been submitted for judicial review for the first time. Consequently, the court

cannot find that the Indiana Supreme Court unreasonably applied clearly established

federal law by making credibility determinations.

The court also cannot find that the Indiana Supreme Court unreasonably

determined that counsel had not made a substantial threshold showing of insanity on

8 Corcoran argues that the State court concocted barriers based on State-specific standards to

“circularly deny” him an opportunity to present his competency claim to the lower courts. However,

given the history of Corcoran’s legal proceedings, the court does not find that the State court engaged in

circular reasoning by requiring him to provide more compelling evidence to demonstrate his

incompetency to waive post-conviction review and to be executed, such as a recent expert report that

spoke directly to the Corcoran’s competency or recent medical records showing mental deterioration.

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behalf of Corcoran. As mentioned above, the U.S. Supreme Court has not instructed the

lower courts on precisely how this standard should be applied by providing a list of

elements or factors for consideration or by otherwise expounding on it. Instead, the U.S.

Supreme Court has provided three examples of showings that satisfy this threshold

determination: (1) in Ford v. Wainwright, the Supreme Court found that Florida should

have provided Ford with a hearing because he had evidence that his mental condition

had deteriorated in recent years and a recent evaluation in which an expert concluded

that Ford did not understand his execution of the reasons for it; (2) in Panetti v.

Quarterman, the Supreme Court found that Texas should have provided Panetti with a

hearing because the fact that he had made a threshold showing was undisputed, but it

further found Panetti had made the threshold showing based on the earlier finding that

he was incompetent to waive appointment of State habeas counsel and recently

obtained expert opinions; and (3) in Madison v. Alabama, the Supreme Court remanded

the case for “renewed consideration of Madison’s competency” because the Alabama

threshold determination did not consider that a lack of rational understanding could be

caused by dementia rather than delusions. In reaching this ruling, the Supreme Court

considered evidence that Madison had recently suffered major strokes and been

recently inflicted with vascular dementia and a recent expert report that Madison did

not understand the reasons for his execution.

Unlike the petitioners in these cases, Corcoran has never been adjudicated

incompetent; to the contrary, he was found competent in 2004 based on evidence that is

substantially similar to the evidence presented to the Indiana Supreme Court this year.

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Counsel did not provide evidence that Corcoran’s mental condition has deteriorated

since 2004, nor has he presented a recent expert assessment as to whether Corcoran

understands his execution or the reasons for it; instead, Corcoran, on his own accord,

submitted an affidavit attesting that he did have such an understanding. Further, there

is no indication that the Indiana Supreme Court misconstrued “insanity” as defined by

Panetti and clarified by Madison; instead, it squarely addressed the argument that

Corcoran was only aware of the stated reasons for execution but did not rationally

understand it.

Counsel also faults the Indiana Supreme Court for relying on Corcoran’s

affidavit due to his delusional behavior, but they cite no U.S. Supreme Court case

suggesting that an individual’s own statements should not be considered for purposes

of competency. Counsel essentially argues that Corcoran knows precisely what to say in

order to persuade courts that he is rational but that he does not truly believe it due to

his delusional beliefs. However, assuming that Corcoran is merely imitating rationality,

counsel concedes that it is an especially good imitation, so it is difficult to characterize

the Indiana Supreme Court as unreasonable for relying on it. This is particularly true

when no statement made by Corcoran this decade and no expert finding directly

undermines Corcoran’s rationality toward his execution.9 Moreover, even this

9 As mentioned above, it is not clear that the Indiana Supreme Court credited his affidavit for

purposes of resolving the competency to be executed claim rather than merely assessing the newly

submitted evidence. But, to the extent the Indiana Supreme Court did make a credibility determination,

Corcoran’s counsel has not provided clear and convincing evidence suggesting that this determination

was incorrect, nor have they described what evidence they might present at an evidentiary hearing. The

court considers the other relevant evidence submitted by counsel below.

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purported imitation would have some probative value because persuasively imitating

rationality for the purpose of influencing others itself requires a certain degree of

rationality.

The court also cannot find that the State court acted unreasonably by considering

the 2004 competency hearing as part of the threshold determination of insanity. In

Panetti, the U.S. Supreme Court specifically noted that a State court had previously

found Panetti incompetent, signaling that prior competency hearings are relevant to the

question of whether an individual is competent to be executed. That seems even more

true here, where substantial litigation occurred regarding that prior competency

determination and when the new evidence and counsel’s arguments indicate that

Corcoran’s mental condition has remained the same. It was not unreasonable to find

that the evidence from the prior competency hearing was insubstantial given that it had

already been considered and found insufficient.

Similarly, it was not unreasonable to conclude that the newly submitted evidence

was insubstantial in terms of its volume and its significance. As new evidence, counsel

submitted a four-page psychotherapy session record and a thirty-page document, titled,

“A Whistle-blower Report: Electronic Harassment,” written by Corcoran in June 2024,

as well as two affidavits from trial counsel. The affidavits concern Corcoran’s mental

state at and shortly after trial and so predate the 2004 competency hearing. The

psychotherapy record and Corcoran’s writing were offered for the express purpose of

establishing that Corcoran’s mental condition remained as impaired as it was in 2004.

The court further observes that, as far as conspiracy theories go, Corcoran’s writing is

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remarkably cogent and a reasonable effort at presenting an irrational theory in a

rational way. His explanation of difficult-to-grasp electricity-related concepts further

reinforces that he is not delusional or irrational in every respect.

The court also considers the psychiatric report completed by Angeline Stanislaus,

M.D., on December 10, 2024. ECF 1-1 at 250-62. Because it was not submitted to the State

courts, it is unclear whether this psychiatric report is properly before this court. See

Shinn v. Ramirez, 596 U.S. 366, 382-84 (2022); 28 U.S.C. § 2254(e)(2). Setting that aside, the

most relevant portion of the report reads as follows:

[Corcoran’s] DOC therapy records from 2023 and 2024 indicates that he is

still very delusional and has no insight into his illness. His book published

in 2024 clearly describes his delusional system which consists of being

controlled by the DOC ultrasound machine, the voices and the torture

from muscle spasms. Therefore, he currently remains seriously mentally

ill due to his untreated psychotic symptoms. Due to his severe paranoid

beliefs and his belief that mental health professionals will diagnose him

with psychiatric illness due to their ignorance of the electronic

surveillance system that exists, he will not cooperate with an evaluation

from a psychiatrist of other mental health professional. He minimizes and

covers up his symptoms.

In the affidavit he filed in 2006 to the court, he denies all mental health

symptoms and eloquently describes them as “stories” he made up. His

writings are organized and well written. His ability to write and speak

eloquently has served him well to cover up his mental health symptoms

and psychosis. Dr. Parker noted in his testimony that in brief interviews

he could easily cover up the symptoms and present as logical. However,

when we look at the full picture longitudinally, we see the signs and

symptoms of schizophrenia, which has influenced his illogical decision

making.

With regards to his November 2024 affidavit, he makes it sound like his

decision to forgo any further litigation is logical. He states that in

execution his heart will stop, and all brain activity will cease. This again

ties into his delusion of the ultrasonic machine inserting and broadcasting

his thoughts from his brain.

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ECF 1-1 at 261. Notably, the expert report offers no conclusions that directly address the

credibility of Corcoran’s recent affidavit or whether he currently has a rational

understanding of his execution. Dr. Stanislaus posits that one of Corcoran’s attestations

“ties” into his delusions, but this accurate statement about what will happen to his body

when he dies does not materially undermine that Corcoran understands the reasons for

his execution.

In sum, the court finds that the sole habeas claim that Corcoran is incompetent to

be executed is procedurally defaulted and without merit. Therefore, the court will deny

the habeas petition pursuant to Rule 4 of the Section 2254 Rules Governing Habeas

Cases. Corcoran also filed a motion to stay execution, which the court will deny as moot

in light of this Rule 4 dismissal.

CERTIFICATE OF APPEALABILITY

Pursuant to Section 2254 Habeas Corpus Rule 11, the court must grant or deny a

certificate of appealability. To obtain a certificate of appealability under 28 U.S.C. §

2253(c), the petitioner must make a substantial showing of the denial of a constitutional

right by establishing “that a reasonable jurist could debate whether (or, for that matter,

agree that) the petition should have been resolved in a different manner or that the

issues presented were adequate to deserve encouragement to proceed further.” Slack v.

McDaniel, 529 U.S. 473, 484 (2000). Because this case involves the death penalty, the

court will grant a motion for a certificate of appealability on the issue of whether the

State court unreasonably determined that Corcoran or his counsel had failed to

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demonstrate a substantial threshold showing of insanity as required by Panetti v.

Quarterman, 551 U.S. 930 (2007). The court will also grant a motion for leave to appeal in

forma pauperis.

For these reasons, the court DENIES the motion to stay execution (ECF 3);

DENIES the habeas corpus petition (ECF 1); GRANTS a certificate of appealability

pursuant to Section 2254 Habeas Corpus Rule 11; GRANTS leave to appeal in forma

pauperis; and DIRECTS the clerk to enter judgment in favor of the Respondent and

against the Petitioner.

SO ORDERED on December 13, 2024

s/ Jon E. DeGuilio

JUDGE

UNITED STATES DISTRICT COURT

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United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted December 16, 2024

Decided December 16, 2024

Before

MICHAEL B. BRENNAN, Circuit Judge

THOMAS L. KIRSCH II, Circuit Judge

JOHN Z. LEE, Circuit Judge

No. 24-3259

TAHINA CORCORAN, as next friend on

behalf of JOSEPH E. CORCORAN,

Petitioner-Appellant,

Appeal from the United States District

Court for the Northern District of

Indiana, South Bend Division.

v.

No. 3:24-CV-970-JD

RON NEAL,

Respondent-Appellee.

Jon E. DeGuilio,

Judge.

ORDER

Joseph E. Corcoran was convicted of quadruple murder and sentenced to death

in 1999. Before us is an appeal of the district court order denying a petition for a writ of

habeas corpus under 28 U.S.C. § 2254(d), and a motion to stay his December 18, 2024,

execution. This order assumes familiarity with:

the district court’s December 13, 2024, opinion and order denying the habeas

petition and the motion to stay execution;

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the Indiana Supreme Court’s December 10, 2024, opinion declining to authorize

the petitions for successive post-conviction relief and denying the requests for

stay of execution; and

the previous decisions of this court, district courts that have ruled on Corcoran’s

cases, and other previous rulings by the Indiana state courts.

I.

Standing

The habeas statutes provide for next-friend standing. 28 U.S.C. § 2242. But a next

friend may not file a petition for writ of habeas corpus on behalf of a detainee if that

detainee could file the petition himself. Wilson v. Lane, 870 F.2d 1250, 1253 (7th Cir. 1989)

(citation omitted). Citing various behaviors and writings of Corcoran, his wife submits

that he is not competent to sign an application for habeas corpus and that she and his

attorneys have standing as Corcoran’s next friend.

The district court found that Corcoran’s wife and his attorneys have next-friend

standing to bring this habeas challenge on his behalf. We are somewhat uncomfortable

with that conclusion.

The standard for competency to waive habeas proceedings is that the detainee

“has capacity to appreciate his position and make a rational choice with respect to

continuing or abandoning further litigation or on the other hand whether he is suffering

from a mental disease, disorder, or defect which may substantially affect his capacity in

the premises.” Rees v. Peyton, 384 U.S. 312, 314 (1966) (per curiam).

Corcoran has submitted a detailed sworn notarized affidavit that articulately sets

forth his desire not to pursue federal relief. 1 His composition and filing of that affidavit

undercuts an assertion of incompetency to pursue a habeas petition. We seriously

question whether Corcoran’s wife and attorneys have proved that he is incompetent to

litigate himself. If not, next-friend status is not proper for him.

This affidavit is dated November 21, 2024, is reproduced on pp. 9–10 of the

district court’s opinion and order, and is Attachment F of the appendix to the habeas

petition as DE 1 in the district court.

1

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Still, given the expedited manner in which we consider this appeal, 2 we think it

prudent to reach the petition’s merits.

II.

A.

Merits

Habeas Corpus Petition

The habeas petition under 28 U.S.C. § 2254(d) on Corcoran’s behalf centers on his

competency to be executed. The district court reviewed the evidence as to Corcoran’s

mental condition, both earlier in this case and recently submitted. Dist. Ct. DE 20 at 7–

10. This evidence includes, among other items, a booklet written by Corcoran with

conspiratorial theories about the government surveilling and controlling him, 3 as well

as Corcoran’s handwritten affidavit referenced above.

Title 28 U.S.C. § 2254(d) provides:

An application for a writ of habeas corpus on behalf of a person in

custody pursuant to the judgment of a State court shall not be granted

with respect to any claim that was adjudicated on the merits in State court

proceedings unless the adjudication of the claim—

(1) resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented in the

State court proceeding.

We conclude that Corcoran by his next friend has not satisfied either of these

subsections.

This appeal was docketed three days ago on December 13, 2024. The parties

submitted expedited briefing on December 14 and 15, 2024, and we issue this order on

December 16, 2024.

3 This booklet is Attachment H of the appendix to the habeas petition as DE 1 in

the district court.

2

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First, the Indiana Supreme Court’s decision was not contrary to clearly

established federal constitutional law. Its decision correctly identified the governing

rule that the Eighth Amendment prohibits the execution of a prisoner who has lost his

sanity after sentencing. Its decision also was not contrary to the requirement of

competency elucidated in Ford v. Wainwright, 477 U.S. 399 (1986), Panetti v. Quarterman,

551 U.S. 930 (2007), and Madison v. Alabama, 586 U.S. 265 (2019).

Corcoran’s next friend tries to show a “contrary-to” application by arguing that

federal courts have not required competency-to-be-executed claims to be subject to the

successive-petition-authorization procedure, yet Indiana courts require successivepetition authorization to proceed to a full evidentiary hearing on a claim under Ford.

But we are not persuaded by this reasoning, as Indiana courts are not required to adopt

federal collateral review procedures.

We do not conclude that the Indiana Supreme Court in its December 10, 2024,

decision unreasonably applied controlling law about incompetency to be executed. That

court correctly identified the governing legal rule. So, the petitioner must show that the

court applied that rule unreasonably to the facts. Yet, Corcoran’s next friend has not

met this requirement. The Indiana Supreme Court’s decision (including at pp. 24–27)

did not unreasonably apply Supreme Court law when holding that the petition did not

make a substantial threshold showing under Ford. We also are not persuaded by an

argument that Corcoran is merely imitating rationality, and thus fails the competency

requirement elucidated in Ford, Panetti, and Madison. The Indiana Supreme Court is not

unreasonable for relying on Corcoran’s affidavit and reaching the conclusions that it

did. The district court correctly recognized this in its well-reasoned opinion and order

at pp. 23–30.

Second, the Indiana Supreme Court’s decision did not rest on an unreasonable

determination of the facts. Our review of the state court’s factual findings is highly

deferential.

The next friend argues about the weight they believe the state court should have

given certain evidence, whether it is Corcoran’s November 2024 affidavit or a new

expert report by Dr. Angeline Stanislaus. But arguments as to weight are properly made

under 28 U.S.C. § 2254(d)(1), not (d)(2). See Lopez v. Smith, 574 U.S. 1, 8 (2014).

Under 28 U.S.C. § 2254(e)(1), a determination of a factual issue is presumed

correct. The petitioner must rebut that presumption by clear and convincing evidence.

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Corcoran’s next friend has not done so here. Corcoran was found competent in 2004,

and he has not ever been adjudicated incompetent. The record does not show evidence

of Corcoran’s mental competency degrading since that earlier finding of competency.

There is also not a recent evaluation that Corcoran does not understand the reasons for

his execution. Indeed, Corcoran’s affidavit attests that he does understand his execution

and the reasons for it. The state court made no unreasonable factual determinations.

Because there has not been an unreasonable application of federal law as

determined by the Supreme Court of the United States, and not been an unreasonable

determination of the facts in light of the evidence presented in this lengthy litigation,

we agree with the district court that the habeas petition should be denied.

B.

Motion to Stay

To be granted a stay, Corcoran’s next friend must have made a strong showing

that he is likely to succeed on the merits, that Corcoran will be irreparably injured

absent a stay, that the issuance of the stay will not substantially injure the other parties

interested in the proceeding, and that granting a stay is in the public interest. Nken v.

Holder, 556 U.S. 418, 434 (2009). We review the district court’s decision on a motion to

stay for an abuse of discretion. Bourgeois v. Watson, 977 F.3d 620, 628 (7th Cir. 2020)

(citation omitted). The Supreme Court has repeatedly emphasized that “[l]ast-minute

stays [of execution] should be the extreme exception, not the norm.” Bucklew v. Precythe,

587 U.S. 119 (2019).

In reviewing the district court’s decision to deny the motion to stay, we focus

largely on the first factor. As the stay’s proponent, Corcoran’s next friend must make a

“strong showing” of a likelihood of success on the merits of the underlying claim. Nken,

556 U.S. at 434. We have described above the reasons why Corcoran’s next friend has

failed to make that strong showing in this petition. Corcoran’s next friend obviously

satisfies the second stay factor of irreparable harm, but the third and fourth factors are

more in equipoise. We do note that on the third factor, “equity must be sensitive to the

State’s strong interest in enforcing its criminal judgments without undue interference

from the federal courts.” Hill v. McDonough, 547 U.S. 573, 584 (2006). And on the fourth

factor, all share in the timely enforcement of Corcoran’s sentence.

Under the Nken factors, we agree with the district court that a stay is not

warranted.

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***

We agree in material part with the district court’s decision here to deny the

habeas corpus petition. That court and the Indiana Supreme Court decisions have

correctly resolved the questions raised by Corcoran’s next friend.

For these reasons, the district court’s judgment is AFFIRMED, and the motion to

stay execution is DENIED.

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LEE, Circuit Judge, dissenting. A federal court may grant habeas relief only if the

state court’s adjudication of the merits of the claim resulted in a decision that is: (1)

“contrary to, or involved an unreasonable application of, clearly established Federal

law, as determined by the Supreme Court of the United States”; or (2) “based on an

unreasonable determination of the facts in light of the evidence presented in the State

court proceeding.” 28 U.S.C. § 2254(d). Because the Indiana Supreme Court

unreasonably applied the well-established standard governing competency-forexecution articulated in Ford v. Wainwright, 477 U.S. 399 (1986); Panetti v. Quarterman,

551 U.S. 930 (2007); and Madison v. Alabama, 586 U.S. 265 (2019), I respectfully dissent.

Given the time constraints, I will briefly summarize my reasons below.

The Indiana Supreme Court premised its ruling on Joseph Corcoran’s

competency to be executed on two grounds: (1) its 2005 decision affirming the state trial

court’s determination that Corcoran was competent to waive post-conviction relief; and

(2) Corcoran’s statements in his affidavit filed on November 21, 2024. See Corcoran v.

State, – N.E.3d –, 2024 WL 5052384, at *12–14 (Ind. Dec. 10, 2024). In doing so, the court

violated Ford and Panetti in two ways.

First, the court believed it had already decided Corcoran’s competency for

execution in 2005. See id. at *14 (“When concluding that Corcoran was competent to

waive post-conviction remedies [in 2005], we concluded that he has a non-delusional

understanding of these legal proceedings. And part of what we relied on was his

‘reasoning that his death sentence is commensurate with the crime he committed (the

conclusion to which both the original trial court jury and judge came).’”) (citing

Corcoran v. State, 820 N.E.2d 655, 661 (Ind. 2005)). But the competency standard the

court used in 2005 was based on Dusky v. United States, 362 U.S. 402 (1960), and Rees v.

Peyton, 384 U.S. 312 (1966), which considers a defendant’s “capacity to appreciate his

position and make a rational choice with respect to continuing or abandoning further

litigation.” Rees, 384 U.S. at 314. This is markedly different from the standard governing

a prisoner’s competency to be executed, which asks “whether a prisoner’s mental state

is so distorted by a mental illness that he lacks a rational understanding of the State’s

rationale for his execution.” Madison, 586 U.S. at 269 (cleaned up). “Or similarly put, the

issue is whether a prisoner’s concept of reality is so impaired that he cannot grasp the

execution’s meaning and purpose or the link between his crime and its punishment.” Id.

(cleaned up).

In 2005, the Indiana Supreme Court held that “Corcoran’s awareness of his legal

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conviction review make him competent to waive such review under either Rees or

Dusky.” Corcoran, 820 N.E.2d at 662. By treating its 2005 decision as conclusive here, the

Indiana Supreme Court effectively substituted the Rees standard in place of the

Ford/Panetti standard.

The court’s error is perhaps most apparent in the following statement: “Our

determination that Corcoran could waive his post-conviction remedies included an

analysis of whether his mental illness interfered with his ability to understand why the

State was executing him. And now that a challenge to competency for execution is ripe,

there is no indication that Corcoran’s understanding of why he is to be executed has

changed.” Corcoran, 2024 WL 5052384, at *14. In Panetti, however, the United States

Supreme Court was careful to note that “[a] prisoner’s awareness of the State’s rationale

for an execution is not the same as a rational understanding of it.” 551 U.S. at 959. In

Panetti’s parlance, the Indiana Supreme Court determined in 2005 that Corcoran had the

capacity to understand the rationale for his execution, but it did not inquire (because it

had no reason to) whether Corcoran had a rational understanding of it. And, indeed, to

date, no court has conducted such an inquiry.

Putting aside the differing standards, the relevance of Corcoran’s 2003

competency finding to the current inquiry is at best questionable. Twenty years have

passed since that evaluation, and, as the Supreme Court had recognized, “[p]rior

findings of competency do not foreclose a prisoner from proving he is incompetent to

be executed because of his present mental condition.” Panetti, 551 U.S. at 934. The

Indiana Supreme Court, on the other hand, assumed that Corcoran’s condition had not

changed in the last two decades. Corcoran, 2024 WL 5052384, at *13 (“Virtually all the

evidence the State Public Defender cites is the evidence we previously considered when

determining Corcoran could waive post-conviction remedies.”). But Petitioner has

offered new evidence that Corcoran’s severe paranoid schizophrenic delusions not only

continue but also cause him to hide his condition from the world and feign sanity. 1

For example, in his recently published book, Electronic Harassment: A Whistleblower Report, Corcoran states that he wants to show that his belief that prison officials

are using an ultrasound machine to control him and others “is not a nut job conspiracy

theory, but is basic electronics.” DE 1, Appendix, Attachment H at 13 (181a). Later, he

continues, “If a credentialled medical person says a man is mentally ill, but he says that

he is the victim of electronic harassment, who would people be more likely to believe?

So because of this the victimizer’s cover is not seemingly backed up by medical

science.” Id. at 20 (188a).

1

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This leads to the second point. To support its belief that Corcoran is competent to

be executed and nothing has changed, the Indiana Supreme Court placed much stock in

the statements Corcoran made in his November 21, 2024, affidavit. See id. at *12–14. But,

because Corcoran filed his affidavit after briefing had concluded, the Indiana Supreme

Court did so without providing defense counsel an opportunity to respond to it. This is

precisely the lack of due process the Supreme Court condemned in Ford and Panetti. See

Ford, 477 U.S. at 415 (noting that the state procedure did not allow a defendant to

challenge or impeach the opinion of the state-appointed psychiatrists who deemed him

competent); Panetti, 551 U.S. at 948 (noting that the state court reached its competency

determination after failing to provide petitioner with “an adequate means by which to

submit expert psychiatric evidence in response to the evidence that had been solicited

by the state court”).

The Indiana Supreme Court’s reliance on Corcoran’s untested affidavit is

particularly troubling given that defense counsel’s entire theory is premised on

Corcoran’s inability to rationally comprehend the reasons behind his execution and his

efforts to hide his true motivations for seeking the death penalty. Indeed, the Supreme

Court has found the law “clearly established” that “[o]nce 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.” Panetti, 551 U.S. at 949 (quoting 28 U.S.C. § 2254 and Ford, 477

U.S. at 426). 2

For these reasons, I believe that the Indiana Supreme Court unreasonably

applied the standard the Supreme Court announced in Ford and Panetti for evaluating a

prisoner’s competency to be executed. Given Corcoran’s long, undisputed history of

severe mental illness and the pervasiveness of his continuing delusions, as evidenced

by his book and recent medical records, Corcoran is entitled to have at least one court

assess his competency to be executed under the proper Ford/Panetti framework.

Turning to Petitioner’s motion for a stay of execution, courts evaluating a stay

must consider an applicant’s likelihood of success on the merits and potential for

irreparable injury, as well as injury to other parties and the public interest. See Nken v.

It bears mentioning that Corcoran has recanted similarly unequivocal

attestations of waiver. See Corcoran, 820 N.E.2d at 657. Because death is irrevocable, this

history should lead us to view his current statements with a skeptical eye.

2

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Holder, 556 U.S. 418, 434 (2009). Here, Petitioner has established a likelihood of success

on her claim that the state court failed to provide an adequate hearing to determine

Corcoran’s competency to be executed. The record contains undisputed and extensive

expert evidence of Corcoran’s paranoid schizophrenia and the resultant pervasive

delusions from which he has long suffered. When recognizing that gross delusions may

render a prisoner incompetent to be executed, the Supreme Court in Panetti accepted

observations by two experts and similarly “extensive evidence of mental dysfunction

considered in earlier legal proceedings” to conclude that “the state court failed to

provide petitioner [there] with the minimum process required by Ford.” Panetti, 551 U.S.

at 950. Here, too, Petitioner is likely to demonstrate a substantial threshold showing of

insanity mandating a fair hearing under Ford.

Additionally, in a death-penalty case like this one, the equities of irreparable

harm tip strongly in Petitioner’s favor. While the harm to the State and the victims may

be delay in the duly imposed sentence (a valid interest), the potential harm to Corcoran

is experiencing the “barbarity of … mindless vengeance,” which serves no public

interest. See Ford, 477 U.S. at 410. Accordingly, I would grant Petitioner’s motion for a

stay so that the state court can evaluate Corcoran’s competency to be executed as

required by Ford and Panetti. 3

For these reasons, I respectfully dissent.

A couple of additional issues warrant mention. Regarding the district court’s

ruling as to procedural default, as I see it, the Indiana Supreme Court’s determination

regarding Corcoran’s competency to waive post-conviction relief depends primarily on

federal law or is interwoven with federal law. Accordingly, it does not rest on an

independent and adequate state law ground. See Richardson v. Lemke, 745 F.3d 258, 269

(7th Cir. 2014). As to standing, the district court properly found that Tahina Corcoran

has adequately shown that she is a proper next friend for the purposes of the

preliminary stages of this habeas case. My colleagues’ reliance on Corcoran’s recent

affidavit is problematic for the reasons I have explained. Thus, I would affirm that

finding.

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ELECTRONIC HARRASSMENT

A Whistle-blower Report

J.C.Chase

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© 2024 J.C.Chase

July 2024

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Contents

Introduction

7

A Little Background

8

How Does it Work?

9

Beyond the Science

17

Some Thoughts on Human Psychology

18

For the Victims

19

A Final Plea

21

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Introduction

At the outset I am going to bring to your mind several publicly known and published events. See

if you can guess what this short list has in common:

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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