Record and brief — Ryan v. Valencia Gonzales
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‘WW SUPREME COURT
OF THE UNITED STATES
No. 10-930 *** CAPITAL CASE ***
Title Charles L. Ryan. Director. Arizona Department of Corrections. Petitioner
V
Ernest Valencia Gonzales
Docketed January 20, 2011
Lower Ct United States Court of Appeais for the Ninth Circuit
Case Nos. (08-72188)
Decision Date October 20 2010
Questions
Presented
~~~Date~~~ ~~~~~~~ Proceedings and Orders~~~~~~~~~~~~ ae
Jan 18 2014 Petition for a writ of certiorari filed. (Response due February 22 2077)
Feb 10 2011 Order extending time to file response to petition to and including April 25. 2011
Feb 212011 Brief amici curiae of Utah, et al. filea.
Apr 25 2011 Brief of respondent Ernest Valencia Gonzales in opposition filed
May 92011 Reply of petitioner Charles L. Ryan Director Arizona Department of Corrections filed
(Distributed)
May 10 2011 DISTRIBUTED for Conference of May 26. 2071
May 31 2011 The Acting Solicitor General is invited to file 2 brief in this case expressing tne views of
the United States.
Feb92012 Brief amicus curiae of United States filed.
Feb 20 2012 Supplemental brief of petitioner Charles L Ryan. Director Arizona Department of
Corrections filed (Distributed)
Feb 22 2012 DISTRIBUTED for Conference of March 16 2072
Mar 142012 Supplemental brief of respondent Ernest Valencia Gonzales filed (Distriputed)
Mar 192012 Petition GRANTED
Apr 20 2012 The time to file the joint appendix and petitioner's brief on the merits is extended to and
including May 25, 2012
. Apr 20 2012 The time to file respondent's brief on the merits is extended to and including July 20
2012
May 25 2012 Brief of petitioner Charies L Ryan. Director. Arizona Department of Corrections filed
May 25 2012 Motion to dispense with printing the joint appendix filed by petitioner Charlies L Ryan
Director, Arizona Department of Corrections.
May 31 2012 Brief amicus curiae of Arizona Voice for Crime Victims filed
Jun ‘12012 Brief amicus curiae of the United States filed (also in 17-218)
Jun 42012 Brief amici curiae of Utah, et al. filed (also in 77-218
Jun 11 2012
Jul 20 2012
Jul 23 2012
Jul 24 2012
Jul 25 2012
Ju! 26 2012
Jul 27 2012
Jul 27 2012
Jul 27 2012
Jul 27 2012
Jul 27 2012
Aug 2 2012
Motion to dispense with printing the joint appendix filed by petitioner GRANTED
Brief of respondent Ernest Valencia Gonzales filed. ‘Distrioutec)
SET FOR ARGUMENT ON Tuesday Octoder 9. 2012
CIRCULATED.
Consent to the filing of amicus curiae briefs. in support of eitner party or of neitner party
received from counse! for the respondent.
Record received from U.S.C.A for Stn Circuit. (7 box)
Motion of the Solicitor General for leave to participate in oral argument as amicus curiae
and for divided argument filed. (also in 11-278)
Brief amici curiae of Retired Federal Juages filed VIDED. (Distributed)
Brief amici curiae of American Psychiatric Association et al filed. VIDED (Distributed)
Brief amici curiae of American Civi! Liberties Union, et a. fled VIDED.
Brief amicus curiae of American Bar Association filec VIDED
Record received from U.S.D.C_ for District of Arizona (3 boxes)
Aug 13 2012 Motion of the Solicitor General for leave to participate in oral argument as amicus curiae
and for divided argument GRANTED
Aug 20 2012 Reply of petitioner Charies L. Ryan. Director. Arizona Department of Corrections filed
Oct 9 2012
(Distributed)
Argued. For petitioner. Thomas C. Horne. Attorney Genera!. Phoenix. Ariz For Unitec
States, as amicus curiae supporting petitioners in Nos. 14-218 & 10-930: Ann O'Connell,
Assistant to the Solicitor General. Department of Justice Washington D C For
respondent Leticia Marquez, Assistant Federal Public Defender Tucson. Ar
PETITION
FOR
WRIT OF
CERTIORARI
REGO) Supreme C
Fil oa vs.
No. 10-930 JAN 18 2011
IN THE OFFICE OF THE CLERK
SUPREME COURT OF THE UNITED STATES
CHARLES L. RYAN, WARDEN
ARIZONA DEPARTMENT OF CORRECTIONS,
Petitioner.
VS.
ERNEST VALENCIA GONZALES,
Respondent.
On Petition for Writ of Certiorari
to the United States Court of Appeals for the Ninth
Circuit
PETITION FOR WRIT OF CERTIORARI
THOMAS C. HORNE
Attorney General
MARY R. O'GRADY
Solicitor General]
KENT E. CATTANI
Chief Counsel
Capital Litigation Section
JOHN PRESSLEY TODD
Assistant Attorney Genera!
(Counsel of Record)
Capital Litigation Section
1275 W. Washington
Phoenix, Arizona 85007—2997
Telephone: (602) 542-4686
john.todd@azag.gov
rw
Lew 3 Weer
5 =e weeny
CAPITAL CASE
QUESTION PRESENTED
Several years after Gonzales’s counsel initiated
federal habeas proceedings and filed an exhaustive
petition seeking relief, counsel asserted that Gonzales
was incompetent to communicate rationally and the
proceedings should be indefinitely stayed pending
possible restoration of competency. Based on 18 U.S.C.
§ 3599(a)(2), the Ninth Circuit agreed, even though
Gonzales’s claims were record-based or purely legal.
Did the Ninth Circuit err when it held that 18
U.S.C. § 3599(a)(2)—-which provides that an indigent
capital state inmate pursuing federal habeas relief
“shall be entitled to the appointment of one or more
attorneys”’—impliedly entitles a death row inmate to
stay the federal habeas proceedings he initiated if he is
not competent to assist counsel?
i
TABLE OF CONTENTS
PAGE
QUESTION PRESENTED FOR REVIEW. .............. i
pr OB Ge it, +g Saree renee ili
ITE CRM A TARA BTS 3 Dec 1
STATEMENT OF JURISDICTION ...........0000.0000..... 1
RELEVANT STATUTORY PROVISIONS ............... 1
STATEMENT OF THI CAGES o.<ccccsccevccscesceeceseeseseess. 2
REASONS FOR GRANTING THE WRIT............... 7
CI i cccetins sitshesiecitinsiieneencicnciniiatai alec na ee as 20
APPENDIX A [OPINION RE: PETITION FOR
WRIT OF MANDAMUS} ....00........ cece ceeeeee cece A-l
APPENDIX B [ORDER RE: SUPPLEMENTAL
LAR MARTE REESE ES B-1
APPENDIX C [ORDER DENYING MOTION
FOR COMPETENCY DETERMINATION ]..C-1
APPENDIX D [NINTH CIRCUIT ADVISING OF
FILING OF PETITION FOR WRIT OF
PD seivscvininiconenntinnsninseiannmmmemamamas D-1
APPENDIX E [NINTH CIRCUIT GRANTING
TEMPORARY STAY OF DISTRICT COURT
PD sesrciescnscsconscsicurectatcnemnscananal E-1
PX, | Gk! renee esr F-1
APPENDIX G [AMENDED ORDER]................... G1
APPENDIX H [SECOND AMENDED ORDER] H-1
APPENDIX I [COA DOCKET]...................::cce00e0: I-1
APENDIX J [18 U.S.C.A. § 3599} 0.000.000... J-1
ill
TABLE OF AUTHORITIES
Cases
Adame v. Schriro, No. 07°-99018.......................-......... 6
Barefoot v. Estelle, 463 U.S. 880 (1983) ..........000....... 8
Calderon v. Thompson, 523 U.S. 538 (1998) ........... 19
Coleman v. Thompson, 501 U.S. 722 (1991)............ 15
Connecticut Nat. Bank v. Germain, 503 U.S. 249
ESS OS St ne 10
Demosthenes v. Baal, 495 U.S. 731 (1990).............. 14
Douglas v. California, 372 U.S. 353 (1963).............. 10
Evans v. Chavis, 546 U.S. 189 .......................-......... 18
Ford v. Wainwright, 477 U.S. 399
EES 9,17, 18, 19
Gates v Woodford, No. CV 88-02779-WHA................ 8
Gonzales v. Arizona, 516 U.S. 1052 (1996).............. 11
Gonzales v. Schriro, 617 ".Supp.2d 849 (D. Ariz.
SERENE SEDI, AS ES Ge 1
Gonzales v. Schriro, CV99-02016-PHX-SMM............ 4
Graham v. Collins, 506 U.S. 461 (1993) ......0.00........ 16
Gusik v. Schilder, 340 U.S. 128 (1950) .........0.......... 14
Harbison v. Bell, 556 U.S.__,
i. ccneneneneneenees 9, 10
Hill v. McDonough, 547 U.S. 573 (2006)..........00...... 18
Holmes v. Buss, 506 F.3d at 578........................ 12,17
Holmes v. Levenhagen, 600 F.3d at 762-63....... 12, 16
In re Blodgett, 502 U.S. 236 (1992)... eee. 18
In re Ernest Valencia Gonzales, 623 F.3d 1242 (9th
| cuniewetebuvensnacve 1
Jones v. Barnes, 463 U.S. 745 (1983)......0000.0000000000.. 11
Lockhart v. Fretwell, 506 U.S. 364 (1993)............... 16
1V
Munaf v. Geren, 553 U.S. 674 (1008)........0..0000000000.. 14
Nash v. Ryan, 581 F.3d 1048 (9th Cir. 2009) .1, 10-12
OED D. T, Be, Gi I octecencrccevcnvemceceecessscceess 6
Nelson v. Campbell, 541 U.S. 637 (2004) .....0.......... 19
O’Sullivan v. Boerckel, 526 U.S. 838 (1999)............ 13
Odah v. United States, 611 F.3d 8 (D.C ......000000...... 14
Pace v. DiGuglielmo, 544 U.S. 408 (2005)............... 13
Panetti v. Quarterman, 551 U.S. 930 (2007)........... 17
Pavelic & LeFlore v. Marvel Entertainment Group,
Div. of Cadence Industries Corp., 493 U.S. 120
ne rater arse ree a Ie ter PIO nase arenes 10
Pennsylvania v. Finley, 481 U.S. 551 (1987)............. 7
Penry v. Lynaugh, 492 U.S. 302 (1989) ..........0000..... 17
Rhines v. Weber, 544 U.S. 269 (2005)...........0.... 13, 18
Rohan ex rel. Gates, 334 F.3d 803
(Sth Cir. 2002)................ 1, 4, 6, 9, 10, 12, 13, 18, 19
Sawyer v. Smith, 497 U.S 227 (1990). ..........000000002.. 16
State v. Gonzales, 892 P.2d 838 (Ariz. 1995)....... 3,11
Vermont v. Brillon, 129 S. Ct. 1283 (2009).............. 15
Whitmore v. Arkansas, 495 U.S 149 (1990) ............ 14
Williams v. Taylor, 529 U.S. 420 (2000) .................. 13
Woodford v. Garceau, 538 U.S. 202 (2003) .......... 7,13
STATUTES
4 f | | LEER ase ree tee ee eee 1, 7,15
ne ee. -nisensneeeliaidiendaneiundinensdi 14
18 U.S.C. § 3660Ce)2)...................... 1, 2, 3, 7, 9, 12, 15
Re I ac resieitnlinbnienntlosieenenniint 9
I a enneeneiuenninanmeni 5
| ETT eave nner ea ns ee er mT 14
| TE eae ere TER amis Aer 9,15
ee, Se ED... a seen enesonieeeinnerseieniaeisionsdeds 13
i BI... ocsinciemplipinnncinnsiunnecunnaumendnnns 13
I aeciasatenblnaniailio’ 13
I eo ceaaeennodieiaea 15
S| Sa ae 9
|
PETITION FOR WRIT OF CERTIORARI
Charles L. Ryan, Director of the Arizona
Department of Corrections (ithe State), petitions for a
writ of certiorari to review the judgment of the United
States Court of Appeals for the Ninth Circuit (the
Ninth Circuit).
OPINION BELOW
The Ninth Circuit’s opinion is reported as Jn re
Ernest Valencia Gonzales, 623 F.3d 1242 (9% Cir.
2010). (Pet. App. A.) The district court’s unpublished
response to a Ninth Circuit Order is dated August 28,
2008. (Pet. App. B.) The district court’s order denying
a stay is published at Gonzales v. Schriro, 617
F.Supp.2d 849 (D. Ariz. 2008) (Pet. App. C.) Additional
Ninth Circuit unpublished orders are dated May 23,
2008 (Pet. App. D), June 19, 2008 (Pet. App. E), July 7,
2008 (Pet. App. F), amended order July 7, 2008 (Pet.
App. G), second amended order January 5, 2009 (Pet.
App. H). The Ninth Circuit docket (Pet. App. D.
“STATEMENT OF JURISDICTION
The Ninth Circuit entered judgment on October 20,
2010. The jurisdiction of this Court is timely invoked
under 28 U.S.C. § 1254(1).
RELEVANT STATUTORY PROVISIONS
The entire provisions of 18 U.S.C. § 3599 are set forth
in the last appendix, Appendix J. The relevant part on
which the Ninth Circuit relied, 18 U.S.C. § 3599(a)(2),
provides:
ty
,(2) In any post conviction proceeding
under section 2254 or 2255 of title 28,
United States Code, seeking to vacate
or set aside a death sentence, any
defendant who is or becomes financially
unable to obtain adequate
representation or investigative, expert,
or other reasonably necessary services
shall be entitled to the appointment of
one or more attorneys and the
furnishing of such other services in
accordance with subsections (b) through
().
STATEMENT OF THE CASE
Through 18 U.S.C. § 3599(a)(2), Congress provided
for the appointment of counsel for indigent defendants
in capital habeas proceedings. The Ninth Circuit has
essentially rewritten the statute to impliedly create
two additional nghts: to be competent to assist counsel
during a capital federal habeas proceeding and to
obtain a stay of the proceedings if the petitioner was
incompetent. Rohan ex rel. Gates, 334 F.3d 803, 819 cg" Cir.
2002) (holding that where a state capital prisoner could
“potentially benefit” from his ability to rationally
communicate with counsel, he is entitled to a stay of
his habeas proceedings). The Ninth Circuit extended
these two newly-discovered statutory mghts to apply in
an appeal from a denial of the habeas petition and to
have the case stayed pending a determination of
a
2
competency. Nash v. Ryan, 581 F.3d 1048 (9% Cir.
2009). '
In this case, the court similarly extended those
rights still further by holding that they apply in
district court even where the issues are record-based
and legal in nature. Pet. App.A, at 2.
The Ninth Circuit’s application of Section 3599(a)(2)
is untethered to the language of the statute and is
based on a flawed policy ground — that an indigent
capital defendant’s input can be essential even when
the habeas claims are record-based or legal in nature.
The consequence of this ruling is that capital
defendants in the Ninth Circuit now have a new means
of delaying their proceedings, contrary to Congress’s
stated imtent in enacting the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”) to
reduce delay in capital cases.
A. Relevant State Criminal Proceedings
Respondent Ernest Valencia Gonzales was
convicted of the February 1990 murder of Darrel
Wagner in Phoenix, Arizona, as well as related crimes,
and sentenced to death for the murder. State v.
Gonzales, 892 P.2d 838 (Ariz. 1995). His convictions
and death sentence became final on January 8, 1996.
Gonzales v. Arizona, 516 U.S. 1052 (1996). Gonzales
then exhausted his state-court post-conviction relief
opportunities.
‘ In Nash, the State sought certiorari review in this court, but the inmate’s
death mooted the case.
B. Federal District Court Habeas Proceedings
In November 1999, the federal court stayed
Gonzales’s execution when he initiated a post-AEDPA
federal habeas proceeding seeking relief from the state-
court judgment. Gonzales v. Schriro, CV99-02016-
PHX-SMM, at Docs. 1, 3. His counsel filed a 237-page
amended petition raising 60 claims for federa] habeas
relief. Pet. App. B, at 3. Gonzales returned to state
court in 2001 to pursue a successive state-court post-
conviction relief petition. Jd. In the state proceedings,
his post-conviction relief counsel raised the issue of
Gonzales’s competence to assist counsel, a claim that
the state court found not cognizable. Jd. Then, 3 years
after the appointment of habeas counsel, Gonzales
started to refuse visits from his attorneys. /d.
Following the case’s return to federal district
court, the court, in January 2006, found 31 of
Gonzales’s habeas claims were appropriate for merits
review. Jd. at 4. Because of the 6 years that had
elapsed since habeas counsel had filed Gonzales’s
amended petition, the district court provided an
opportunity for habeas counsel to file up-to-date legal
citations and argument in support of the properly
exhausted claims. Jd. “On the eve of the Court’s
deadline for [Gonzales’s} opening merits brief, counsel
filed a Rohan motion for a competency determination
and a stay.” Jd. at 5. Initially, the district court set the
matter for an evidentiary hearing, but vacated it so
Gonzales could be sent to the state hospital for further
5
evaluation. /d There Gonzales withdrew from a
regimen of anti-psychotic medication despite its
apparently positive effects. Jd.
After additional briefing, review of the mental
health information, the entire state court record and
the remaining habeas claims in light of the Rohan
decision, the district court concluded that Gonzales’s
claims were record-based and involved purely legal
issues and “therefore [Gonzales] would not potentially
benefit from his ability to communicate rationally with
counsel.” Jd. at & The district court declared that,
“lin sum, the Court has endeavored to follow Rohan.
In doing so, the Court accepted [Gonzales’s] contention
that he is not presently competent to communicate
rationally with counsel but found this fact irrelevant
because none of the claims remaining to be decided by
this Court are ones that ‘could benefit from his ability
to communicate rationally.” Jd. at 11 (quoting Rohan).
The district court therefore denied Gonzales’s Motion
for a Competency Determination and to Stay
Proceedings. Pet. App. C, at 27. It further denied
Gonzales’s request for an interlocutory appeal under 28
U.S.C. § 1292(b).
C. Proceedings in the Ninth Circuit
On May 23, 2008, Gonzales filed an emergency
petition for a writ of mandamus and an emergency
motion for a stay of the district court proceedings. In
an order filed June 19, 2008, a Ninth Circuit panel
(Judges Stephen Reinhardt, Marsha S. Berzon, and
Milan D. Smith) stayed the lower court proceedings.
Pet. App. D. The following month, the panel denied
Arizona’s motion for reconsideration. Pet. App. E, F.
6
Months later, in an order filed January 5, 2009, the
panel further stayed the case pending decisions in
Nash v. Schriro, No. 06°99007 and Adams v. Schriro,
No. 07-99018, because those cases involved “related
issues.” Pet. App. G.
Nearly 2 years after the grant of the temporary
stay, over 1 year after the decision in Nash, and nearly
6 months after Arizona filed a request for a ruling,
Judge Reinhardt issued the opinion in this case
granting the petition for a writ of mandamus.’ Pet.
App. A, at 8. The court held that “Nash squarely
controls this case, foreclosing the district court’s
conclusion that a stay under Hohan is categorically
unavailable when a capital habeas petitioner’s claims
consist only of record-based or legal questions.” Jd. at 5
(citing Nash.)
The panel reasoned that because Gonzales had been
represented by several attorneys over the course of his
state-court proceedings, Gonzales’s judicial bias claim
could potentially benefit from the ‘first-hand insight
into the earlier proceedings’ that a competent
petitioner would be able to provide.” Jd. at 5-6 (citing
Nash). In reaching that conclusion, the court
disregarded the district court’s prior finding that “it is
clear from a review of the state court record that the
factual underpinnings of [the judicial bias] claim were
fully developed in state court and the record on the
issue is complete.” Pet. App. B, at 8.
2 Adams died waiting a decision in his case.
REASONS FOR GRANTING THE WRIT
The Ninth Circuit created a competency right out of
thin air. The Constitution does not provide a right to
counsel on federal habeas corpus review. Pennsylvania
v. Finley, 481 U.S. 551, 555 (1987). This Court has
likewise never found a federal right to be competent to
assist habeas counsel. The Ninth Circuit nonetheless
found that Congress created such a right, even when
the claims presented are entirely record-based or legal
in nature.
The statute upon which the court relied, however,
18 U.S.C. § 3599, does nothing of the sort. Section
3599(a)(2) does not address the defendant’s
competence, and there is no reasoned basis for
concluding that Congress intended that death penalty
habeas proceedings should be stayed, suspending
indefinitely enforcement of a presumptively valid state
court judgment based on a death-sentenced inmate’s
alleged inability to assist counsel.
Moreover, the Ninth Circuit’s line of cases (Rohan,
Nash, Gonzales), based on its interpretation of Section
3599(a)(2), directly undercuts Congress’s purpose in
enacting AEDPA to “reduce delays in the execution of
state and federal criminal sentences, particularly
capital cases.” Woodford v. Garceau, 538 U.S. 202, 206
(2003). Reading a competency requirement into the
statute, when the AEDPA statutory scheme provides
for no such requirement fosters unnecessary delays in
the resolution of capital cases. Furthermore, such a
requirement is inconsistent with this Court’s “next
friend” jurisprudence, which expressly recognizes that
habeas cases can proceed notwithstanding the mental
incapacity of petitioners. And, it creates a two-tiered
system under which indigent capital petitioners have a
statutory right to be competent to assist habeas
counsel while non-indigent capital petitioners do not.
There is no basis to believe Congress intended to create
such a regime.
Additionally, freezing the habeas proceeding
perhaps indefinitely defeats the purpose of federal
habeas review. If constitutional error occurred in the
state court proceedings, it should be identified and
relief granted; if not, the state’s judgment should not
be stymied. Long before enactment of AEDPA, this
Court admonished the lower courts that federal habeas
is not “a means by which a defendant is entitled to
delay an execution indefinitely.” Barefoot v. Estelle,
463 U.S. 880, 887 (1983). If not overruled, the Ninth
Circuit’s ruling will significantly delay capital
proceedings, and thereby frustrate the State’s interest
in proceeding with its judgments. This Court’s review
is necessary to halt further expanding this court-
created impediment to moving capital cases forward.
I. THE NINTH CIRCUIT’S DECISION ERRONEOUSLY
REWRITES A FEDERAL STATUTE TO GRANT HABEAS
PETITIONERS IN CAPITAL CASES A RIGHT TO STAY
PROCEEDINGS IF THEY ASSERT THEY ARE NOT COMPETENT
To ASSIST COUNSEL.
The Ninth Circuit, alone among the circuits, has
discovered a right to competence to assist habeas
9
counsel in 18 U.S.C. § 3599(a)(2) This subsection
declares:
In any post conviction proceeding under section
2254 or 2255 of title 28, United States Code,
seeking to vacate or set aside a death sentence,
any defendant who is or becomes financially
unable to obtain adequate representation or
investigative, expert, or other reasonably
necessary services shall be entitled to the
appointment of one or more attorneys ....
The provision does not mention competence to
assist counsel. Rather, it merely grants indigent
habeas petitioners under a sentence of death a right to
be represented by appointed counsel in a proceeding
under 28 U.S.C. §§ 2254 or 2255 and certain additional
post-conviction proceedings.‘ Nothing in the “plain
language” of the statute, see Harbison, 129 S. Ct. at
3 The source of the statutory right discovered in Rohan was 21
U.S.C. § 848(q)(4)(b), enacted 22 years earlier. Rohan, 334 F.3d at
814. That provision has been replaced, effective October 13, 2008,
by § 3599(a)(2), a “materially identical statute.” Nash, 581 F.3d at
1051 n.5; see also Harbison, 556 U.S.__, 129 S. Ct. 1481, 1486
(2009) (“recodified without change”).
“Under a straightforward reading of the statute, subsection
(a)(2) triggers the appointment of counsel for habeas petitioners,
and subsection (e) governs the scope of appointed counsel's
duties.” Harbison, 129 S. Ct. at 1486. Among other duties,
subsection (e) allows federally appointed counsel] to seek stays, to
represent habeas petitioner in a Ford v. Wainwright, 477 U.S. 399
(1986), competency to be executed hearing, or represent a habeas
petitioner in a state clemency proceeding. Like subsection (a)(2)
the scope of subsection (e) grants no rights beyond representation,
nor did the Ninth Circuit suggest that it did.
10
1486, requires that an indigent state prisoner under a
sentence of death be competent to assist counsel before
his federal habeas may proceed. And nothing in its
plain language provides any right to have the habeas
proceeding stayed when the petitioner might not be
able to communicate rationally with his counsel.
Lacking textual support, the Ninth Circuit instead
relied upon policy for reading a competency
requirement into the provision. See Rohan, 334 F.3d at
812-13 (“Congress has not explicitly required
competence in federal habeas proceedings, but the
common law tradition underlying the right to
competence and its great practical significance in this
context inform our interpretation of the statutes
Congress has enacted.”). Yet this Court has “stated
time and again that courts must presume that a
legislature says in a statute what it means and means
in a statute what it says there. When the words of a
statute are unambiguous, then, this first canon is also
the last: judicial inquiry is complete.” Connecticut
Nat. Bank v. Germain, 503 U.S. 249, 253-54 (1992)
(citations and internal quotation marks omitted). A
court’s “task is to apply the text, not improve upon it.”
Harbison, 129 S. Ct. at 1494 (quoting Pavelic &
LeFlore v. Marvel Entertainment Group, Div. of
Cadence Industries Corp., 493 U.S. 120, 126 (19839)).
The cases subsequent to Rohan have compounded
and extended the error. In Nash, the Ninth Circuit
extended the holding of Rohan to the right to be
competent in a habeas appea/ and to have the appeal
stayed if the appellant/petitioner claims to be no longer
able to communicate with appellate counsel. According
1]
to the Ninth Circuit, “[w]hile an appeal is record-based,
that does not mean that a habeas petitioner in a
capital case is relegated to a nonexistent role.
Meaningful assistance of appellate counsel may
require rational communication between counsel and a
habeas petitioner.” Jd. at 1050. In contrast, this Court
has emphasized that in appellate proceedings it is “the
superior ability of trained counsel in the examination
into the record, research of the law, and marshalling
arguments on [the appellant’s] behalf’ that benefits the
defendant. Jones v. Barnes, 463 U.S. 745, 751 (1983)
(quoting Douglas v. California, 372 U.S. 353, 358
(1963)). This Court has never held that an appellant’s
assistance is necessary to winnow out weaker
arguments on appeal and to focus on the ones more
likely to prevail. Rather, this has been understood to
be the role of counsel. Jones, 463 U.S. at 751-52.
In the instant case, the Ninth Circuit similarly
extended this non-existent statutory right to apply
“even though Gonzales’s exhausted claims are record
based or legal in nature.” Pet. App. A, at 2. The court
surmised that “Gonzales’s judicial bias claim could
potentially benefit from the ‘first-hand insight into the
earlier proceedings that a competent petitioner would
be able to provide.” Pet. App. A, at 5-6 (citing Nash,
581 F.3d at 1056). However, the court made no
attempt to explain, in light of the existing record, how
Gonzales’s “first-hand insight” might have any legal
significance. Under AEDPA, this is a record-based
claim based on a state-court change of judge for-cause
hearing, a claim that had been exhausted in Gonzales’s
direct appeal. Gonzales, 892 P.2d at 847-48.
12
Since Rohan was decided in 2002, no other federal
circuit has found that Section 3599(a)(2) provides a
death row petitioner with the general right to
rationally communicate with counsel while seeking
relief in a federal habeas proceeding and the right toa
stay of the proceedings if competency is questioned.®
That is hardly surprising, given that Congress did not
speak to competence in the provision. Nonetheless, the
7 states in the Ninth Circuit that impose the death
penalty are now subjected to a punishment-delaying
rule, purportedly decreed by Congress, but which
appears nowhere in the U.S. Code.
Il. THE NINTH CIRCUITS INTERPRETATION OF §
3599(a)(2) CONFLICTS WITH EXISTING LAW AND TREATS
SIMILARLY SITUATED MHABEAS’- PETITIONERS
DIFFERENTLY.
The Ninth Circuit’s decisions in Rohan, Nash, and
this case not only rewrite a federal statute; they
conflict with existing law and mandate a regime that
Congress could not possibly have intended.
A. The Ninth Circuit’s reading of § 3599(a)(2)
undermines Congress's purpose in enacting
AEDPA.
This Court has recognized the practical
considerations facing a habeas petitioner under a
state’s death sentence. Such petitioners “might
deliberately engage in dilatory tactics to prolong their
5 The Seventh Circuit in the case of Eric D. Holmes proceeded
as if such a right existed because the State of Indiana did not
challenge it. Holmes v. Buss, 506 F.3d 576, 578 (7% Cir. 2007); see
also Holmes v. Levenhagen, 600 F.3d 756 (7% Cir. 2010).
a
13
incarceration and avoid execution of the sentence of
death.” Rhines v. Weber, 544 U.S. 269, 277-78 (2005).
Thus, one of AEDPA’s purposes is to reduce the delays
in capital cases on habeas review. Jd. at 276; Garceau,
538 U.S. at 206. Congress designed it to “streamline
and simplify” federal habeas review. Pace v.
DiGuglielmo, 544 U.S. 408, 427 (2005). The Rohan line
of cases undercuts this Congressional purpose by
building into the Ninth Circuit’s habeas review an
unnecessary opportunity for death row prisoners to
stymie progress on the very habeas proceedings they
initiated.
Before a state prisoner may present a claim for
rehef on federal habeas, he must have first fairly
presented his federal claim to the state courts. 28
U.S.C. § 2254(b)(1); see, e.g., O'Sullivan v. Boerckel,
526 U.S. 838, 842 (1999). Under AEDPA, the merits
rulings of the state courts are reviewed only to see if
the state courts reasonably applied this Court's
precedent and if the state court’s decision was
reasonable given the “evidence presented in the State
court proceedings.” 28 U.S.C. § 2254(d). The ability to
expand the state-court record in the federal
proceedings is very limited. 28 U.S.C. § 2254(e)(2):;
Williams v. Taylor, 529 U.S. 420, 424 (2000). Thus,
Congress has created a scheme of federal review under
which there is rarely a need to seek information from
the state prisoner. Acourt-created right, that before a
habeas case can proceed, the death row inmate must be
able to rationally communicate with counsel markedly
undermines Congress’s attempt to streamline federal
review in capital cases.
14
B. The Ninth Circuit’s reading of § 3599(a)(2) conflicts
with this Court’s “next friend” jurisprudence.
In Whitmore v. Arkansas, 495 U.S 149, 165 (1990),
this Court acknowledged the availability of “next
friend” standing in limited circumstances if “the real
party in interest is unable to litigate his own cause due
to mental incapacity, lack of access to court, or other
similar disability.” (Emphasis added.) Implicit in that
decision, which addressed a request for “next friend”
standing to pursue a direct appeal in a capital case, is
the recognition that mental incapacity does not require
that an appeal be delayed indefinitely because of a
convicted defendant’s mental incapacity.
“Next friend” standing is a_ well-established
practice. See, e.g., 28 U.S.C. § 2242 (allowing a habeas
petition to be filed “by someone acting” on behalf of the
person seeking relief); Munaf v. Geren, 553 U.S. 674
(1008) (family members filed next-friend habeas
petitions); Demosthenes v. Baal, 495 U.S. 731 (1990)
(parents failed to establish inmate was not competent):
Gusik v. Schilder, 340 U.S. 128 (1950) (father brought
habeas petition on behalf of his minor son); Odah v.
United States, 611 F3d 8 (D.C. Cir. 2010)
(Guantanamo Bay prisoner challenged his custody
though his next friend). This accepted practice is
inconsistent with the Ninth Circuit’s decision to read a
competency mandate into Section 3599(a). The
practice next-friend recognizes that a habeas claim can
proceed even if the petitioner himself is unable to
participate.
15
C. The Ninth Circuit’s reading of § 3599(«)(2)
leads to disparate treatment of indigent and
non-indigent capital petitioners.
There is no constitutional right to the effective
assistance of counsel beyond the direct appeal stage of
a state criminal proceeding. See, e.g., Coleman v.
Thompson, 501 U.S. 722, 752 (1991). And 28 U.S.C. §
2254() expressly excludes “ineffectiveness or
incompetence” of federal habeas counsel as a grounds
for relief. Accordingly, there is no dispute that a non-
indigent capital petitioner has no right to effective
counsel and no right to be competent to assist counsel.
Under the Ninth Circuit’s reading of Section
3599(a)(2), however, indigent defendants have been
given that latter right. The Ninth Circuit’s decisions
thus lead to the odd result that indigent and non-
indigent capital petitioners have different rights to
competence and different abilities to obtain stays while
pursing relief in federal habeas.
There is no basis in AEDPA or Section 3599 to
beheve that Congress intended such a twortiered
approach to capital habeas cases. Cf Vermont v.
Brillon, 129 S. Ct. 1283, 1292 (2009) (“We see no
justification for treating defendants’ speedy-trial
claims differently based on whether their counsel is
privately retained or publicly assigned.”). The
provisions of 28 U.S.C. § 2254 apply to all “persons in
custody pursuant to the judgment of a State court,” not
just indigent petitioners. Congress intended Section
3599(a)(2) to place indigent capital petitioners on
comparable footing with non-indigent petitioners — not
to grant them new and superior rights.
16
Ill. THE NINTH CIRCUITS RULING DEFEATS THE
HABEAS GOAL OF CORRECTING UNCONSTITUTIONAL
STATE COURT DECISIONS AND UNDERMINES THE STATES’
INTEREST IN EXECUTING THEIR JUDGMENTS.
The Ninth Circuit’s rule undercuts the very purpose
of federal habeas review of state court judgments as
well as the States’ interest in finality by granting
capital petitioners another means — authorized neither
by the Constitution nor by statute — through which
they can freeze review of their claims. The purpose of
federal habeas review is to ensure that state courts
comply with the United States Constitution in
conducting criminal proceedings. Graham v. Collins,
506 U.S. 461, 467 (1993); Sawyer v. Smith, 497 U.S
227, 234 (1990). In pursuing federal habeas review,
the very purpose of the state prisoner is to overturn the
state-court judgment and thereby obtain relief.
Lockhart v. Fretwell, 506 U.S. 364, 373 (1993). Ifa
claim of incompetency is able to halt the federal review
and consign the habeas petitioner to “habeas corpus
limbo indefinitely” the purposes of federal habeas
review have been defeated. See Holmes v. Levenhagen,
600 F.3d at 762-63. “[I]magine a capital defendant who
has a slam-dunk habeas corpus claim that would not
merely get him a new trial, but an acquittal; but
because he is incompetent, he cannot communicate
effectively with his lawyers or they with him.” Jd. at
763. “The implication is profoundly unsatisfactory.”
Id. at 672. Moreover, as Judge Posner observed, it is
simply “odd to think that someone who initiates a
[federal habeas] proceeding can then freeze it by
claiming to be mentally incompetent.” Holmes v. Buss,
506 F.3d at 578.
17
The benefits of the competency and stay right the
Ninth Circuit read into Section 3599 are small. Under
AEDPA, federal review is very limited—generally
confined to federal exhausted record-based or legal
claims. And even when the record is supplemented
during federal habeas, it would be exceedingly unusual
for the state prisoner to be the sole source of
information, given the number of other actors involved
in the criminal justice process. Generally, the
prisoner’s trial attorneys, investigators, and mitigation
specialist are available, as are the prosecutors. Given
the complexity of habeas litigation, it is highly
improbable that the prisoner’s habeas counsel would
require the prisoner’s assistance in district court, much
less on appeal.
Moreover, Gonzales is protected from being
executed if he is found incompetent under the Ford v.
Wainwright, 477 U.S. 399, 409-10 (1986), standard.
Under Ford, inmates sentenced to death may not be
executed if “they are unaware of the punishment they
are about to suffer and why they are to suffer it... .”
Penry v. Lynaugh, 492 U.S. 302, 333 (1989) Gnternal
quotes and cite omitted). That standard applies to all
death row inmates and is universally applied
throughout the federal circuits as well as the state
courts. Because “[aJll prisoners are at risk of
deteriorations in their mental state,” a Ford claim is,
as a general matter, not ripe until an actual execution
is set. See Panetti v. Quarterman, 551 U.S. 930, 943
(2007). The AEDPA statutory bar against successive
habeas petitions does not apply to a Ford claim
brought when the claim is first ripe. /d at 947. Thus,
if Gonzales is incompetent under Ford, he will not be
18
executed. Requiring a higher level of competency
during his federal habeas proceedings adds an
unsupportable additional gloss to the Ford right, and
may deprive Gonzales of the opportunity to obtain
timely relief on a meritorious claim.
By contrast, the costs of the Ninth Circuit’s rule are
great. This Court has repeatedly acknowledged the
States’ strong interest in the timely review of their
death penalty cases in federal habeas. See, e.g., Hill v.
McDonough, 547 U.S. 573, 584 (2006); Mayle v. Felix,
545 U.S. 644, 657, 662 (2005). Nelson v. Campbell, 541
U.S. 637, 649-50 (2004); Calderon v. Thompson, 523
U.S. 538, 655-56 (1998); In re Blodgett, 502 U.S. 236,
239-40 (1992) (per curiam). But as this Court has also
recognized, capital petitioners have an incentive to
adopt delaying tactics to avoid execution. FRhines v.
Weber, 544 U.S. 269, 277-78 (2005); see also Evans v.
Chavis, 546 U.S. 189, 203 n.1 (Justice Stevens,
concurring in judgment). The practical effect of the
Ninth Circuit’s rule is to aid those tactics.
The concrete examples of Rohan and this case
illustrate the costs of the rule. Oscar Gates, the
petitioner in Rohan, filed his federal habeas petition in
July 1988. Gates v. Woodford, No. CV 88-02779-WHA
(N.D. Cal.), at Doc. 1. Following the 2002 Rohan
decision, additional litigation ensued until the case
was stayed indefinitely in September 2004. Jd at
Docs. 531-65. The last entry in the district court’s
docket is in January 2008. Jd. at Doc. 579. Although
the record does not reflect that Gates is incompetent
under Ford v. Wainwright, it does reflect he is
incompetent to assist counsel under Rohan (Doc. 565).
Thus, although there is no clear authority from this
19
Court precluding his execution for his 1979 California
murder, the State of California is effectively barred
from proceeding with its judgment that has never been
shown to be constitutionally infirmed.
In this case, more than 2 years elapsed while the
parties awaited a Ninth Circuit decision on mandamus
review of Gonzales’s incompetent-to-assist-habeas-
counsel claim. Should this Court deny certiorari, and
should Gonzales be found incompetent, another round
of litigation and appeals would Likely follow regarding
whether he can be forced to take medication that would
restore him to competency. All this litigation, delay
and expense are, of course, collateral to the purpose of
federal habeas review as envisioned by Congress. Yet
the case has now been under federal review for over a
decade with untold years of future litigation. And if
Gonzales is permitted to refuse medication, and if he
never regains his competency to assist habeas counsel
without such medication, the state will never be
permitted to impose its judgment upon Gonzales—even
if he would be permitted to be executed under the Jord
standard.
Whether or not that result would be tolerable if
Congress expressly mandated it, the result is
manifestly intolerable at present. Congress has
authorized counsel for indigent capital inmates seeking
federal habeas review. It has not imposed an
additional competency requirement backed by a stay of
proceedings. This Court should not tolerate the Ninth
Circuit's creation of that nght.
20
CONCLUSION
The petition for a writ of certiorari should be
granted.
Respectfu!l'y submitted
THOMAS C. HORNE
Attorney General
MArY R. O’GRADY
Solicitor Genera!
KENT E. CATTANI
Chief Counsel
Capital Litigation Section
JOHN PRESSLEY TODD
Assistant Attorney General
(Counsel of Record)
Capital Litigation Section
1275 W. Washington
Phoenix, Anzona 85007—2997
Telephone: (602) 542-4686
A-l
APPENDIX A
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: Ernest Valencia Gonzales,
)
)
)
)
Ernest Valencia Gonzales, No. 08-72188
Petitioner,
Vv. ) D.C. No.
United States District Court for ) CV-99-02016-SMM
The District of Arizona, )
Phoenix, )
Respondent, ) OPINION
)
Dora B. Schriro, )
Real-party-in-interest- )
Respondent. )
)
Petition for Writ of Mandamus
Filed October 20, 2010
Before: Stephen Reinhardt, Marsha S. Berzon and
Milan D. Smith, Jr., Circuit Judges
Opinion by Judge Reinhardt
OPINION
REINHARDT, Circuit Judge:
Ernest Valencia Gonzales seeks a writ of mandamus
A-2 i
to stay his district court federal capital habeas
proceedings under Rohan ex rel. Gates v. Woodford,
334 F.3d 803 (Sth Cir. 2003). There, we held that
when a capital habeas petitioner “raises claims that
could potentially benefit from his ability to
communicate rationally,” jd. at 819, his statutory right
to counsel includes the right to competence during
habeas proceedings. The district court denied
Gonzales’s motion for a competency determination
under Rohan because “[Gonzales’s] properly-exhausted
claims are record-based and/or resolvable as a matter
of law, irrespective of [his] capacity for rational
communication with counsel,” and therefore “cannot
benefit from [his] personal input.” Our recent decision
in Nash v. Ryan, 581 F.3d 1048 (9th Cir. 2009), is to
the contrary. In Nasd we held that the prosecution of
a habeas appeal that is record-based and resolvable as
a matter of law can benefit from communication
between client and counsel. Jd. at 1054-55. Because
we conclude that Nash controls this case, we hold that,
although Gonzales’s exhausted claims are record-based
or legal in nature, he is entitled to a stay pending a
competency determination.
I.
In 1991, Gonzales was convicted of first-degree
murder and sentenced to death. After pursuing state
remedies, he sought a writ of habeas corpus in federal
district court in November 1999. On February 23,
2006, after the district court had resolved the
procedural status of Gonzales’s claims and established
a deadline for his merits briefing of non-proceduraLlly
barred claims, Gonzales’s counsel moved to stay the
proceedings pending a competency determination
A-3
pursuant to Hohan, 334 F.3d at 814-15. Gonzales’s
attorneys indicated that their client’s assistance was
essential to a number of his remaining habeas claims,
and that due to a progressive deterioration in
Gonzales’s mental health he had lost the ability to
rationaliy communicate with his counsel and assist
them.
In response, the district court initiated proceedings to
determine Gonzales’s competency and ordered the
parties to submit expert reports on Gonzales’s mental
health. The district court granted the government’s
motion to transfer Gonzales to Arizona State Hospital
for an extended mental health assessment. The
product of that assessment, a report by supervising
psychologist Dr. James Seward, expressed
“reservations concerning the veracity of Mr. Gonzales’s
symptoms,” but concluded that he suffered from a
“genuine psychotic disorder” and was “currently .. .
unable to communicate rationally for any extended
period of time, such as would be required by a legal
proceeding.”
Gonzales’s attorneys submitted to the district court a
list of pending habeas claims that they contended could
benefit from rational communication with their client,
including a claim that Gonzales’s Sixth Amendment
rights were violated because the trial judge was openly
hostile toward Gonzales and refused to recuse himself.
The district court determined that Gonzales was not
entitled to a stay under Rohan even if he had a
psychotic condition rendering him incompetent to
confer with counsel. The district court held that
Gonzales’s claims, including his claim of judicial bias,
were all “record-based and/or resolvable as a matter of
A-4
law,” and accordingly could not benefit from his ability
to communicate rationally with counsel, as required by
Rohan. 334 F.3d at 818-19. Having so ruled, the
district court did not hold a hearing to determine
whether Gonzales was in fact incompetent to
communicate meaningfully with counsel for purposes
of a habeas proceeding.
Gonzales filed an emergency petition for a writ of
mandamus, and we ordered a temporary stay of the
district court’s proceedings to allow us to consider the
petition. We also stayed our own proceedings pending
the resolution of Nash. Having issued our decision in
Nash, we now lift the stay on our proceedings and
address the merits of Gonzales’s petition for
mandamus.
I.
[1] Nash held that the prosecution of a capital habeas
appeal, which is necessarily confined to the record,
could benefit from communication between client and
counsel. 581 F.3d at 1050 (“While an appeal is record-
based, that does not mean that a habeas petition in a
capital case is relegated to a nonexistent role.”).
Specifically, we concluded that Nash’s claim of
ineffective assistance of counsel could benefit from his
ability to communicate rationally with counsel even
though his appeal was record-based. 581 F.3d at 1055.
We held that
[tlhe need for rational communication here is
particularly important because Nash has been
assisted by several attorneys over the years....
The information that Nash possesses would
A-5
provide first-hand insight into the earlier
proceedings, insight that might be helpful in
ways that Nash’s current attorneys cannot
currently identify because of his alleged
incompetence.
Id. at 1055-56.
[2] Nash squarely controls this case, foreclosing the
district court’s conclusion that a stay under Rohan is
categorically unavailable when a capital habeas
petitioner’s claims consist only of record-based or legal
questions. Jd. at 1050. Rather than relying upon
categorical rules, Nash made clear that the “inquiry
should be whether rational communication with the
petitioner is essential to counsel's ability to
meaningfully prosecute” a capital habeas claim. Jd. at
1054. Had the district court undertaken the claim-
specific inquiry required by Nash, he would have been
compelled to conclude that “communication with
[Gonzales] is essential to counsel’s ability to
meaningfully prosecute” Gonzales’s habeasclaims. /d.
Gonzales, like Nash, “has been assisted by several
attorneys over the years” — in fact, he had eleven
different attorneys over the course of his trial and
sentencing, and was self-represented for part of that
time. Gonzales’s claim of judicial bias centers on
events regarding which “counsel may ... need to
communicate with [Gonzales] to understand fully the
significance and context” of key facts so that counsel
can pursue the most persuasive arguments. Nash, 581
F.3d at 1048. Thus, no less than Nash’s claim of
ineffective assistance of counsel, Gonzales’s judicial
bias claim could potentially benefit from the “first-
A-6
hand insight into the earlier proceedings” that a
competent petitioner would be able to provide. Nash,
581 F.3d at 1056.
[3] Nash thus compels the conclusions that Gonzales
has raised at least one claim that could potentially
benefit from rational communication with counsel and
that he is accordingly eligible for a stay under Rohan.
Il.
[4] We consider five factors when deciding whether to
grant mandamus relief: (1) whether the petitioner has
no other adequate means, such as direct appeal, to
secure relief; (2) whether he will suffer damage not
correctable on appeal from final judgment; (3) whether
the district court’s order is clearly erroneous as a
matter of law: (4) whether the order represents an oft-
repeated error by the district court; and (5) whether
the order raises new and important problems or legal
issues of first impression. See Bauman v. U.S. Dist.
Court, 57 F.2d 650, 654-55 (9th Cir. 1977). The five
Bauman factors “serve only as a useful starting point,”
rather than an exhaustive set of considerations. Jn re
Cement Antitrust Litig., 688 F.2d 1297, 1301 (9th Cir.
1982). We may also consider, for example, “whether
there are other compelling factors relating to the
efficient and orderly administration of the district
courts.” Jd.
Rarely if ever will there be a case in which every one
of the five Bauman factors indicates the same result or
is relevant or applicable. See Bauman, 557 F.2d at
655. For example, factors (4) and (5) are in direct
A-7
conflict with each other, and it would appear to be
impossible to meet both criteria in the same case.
Accordingly a showing of less than all of the Bauman
factors, indeed of only one, does not mandate denial of
the writ. See Cole v. United States Dist. Court, 366
F.3d 813, 817 (9th Cir. 2004). While the absence of
clear error ordinarily will defeat a petition for writ of
mandamus, DeGeorge v. United States District Court,
219 F.3d 930, 934 (9th Cir. 2000), when a mandamus
petition “raises an important issue of first impression
... a petitioner need show only ‘ordinary (as opposed to
clear) error.” San Jose Mercury News, Inc. v. United
States District Court, 187 F.3d 1096, 1100 (9th Cir.
1999); see also In re Cement Antitrust Litig., 688 F.2d
at 1307 (“[Wle see no legitimate reason for refraining
from exercising our supervisory authority where we
can determine that an error has been made but cannot,
for whatever reason, characterize the error as ‘clearly’
erroneous’).
[5] This is a supervisory mandamus case, presenting
an issue important to “proper judicial administration
in the federal system.” LaBuy v. Howes Leather Co.,
352 U.S. 249, 259-260 (1957). “Certain concepts
related to the traditional use of mandamus are not
necessarily applicable in supervisory mandamus cases,
or, at the least, are applied differently.” Jn re Cement
Antitrust Litig., 688 F.2d at 1301. Mandamus relief
may be appropriate in supervisory mandamus cases
even if Bauman’s second factor — that the error cannot
be corrected on appeal from the final judgment — is
absent. LaBuy, 352 U.S. at 254-55. “[I]n supervisory
mandamus cases involving questions of law of major
importance to the district courts, the purpose of our
A-8
review — and the reason for our correcting an error
made by a trial judge — is to provide necessary
guidance to the district courts and to assist them in
their efforts to ensure that the judicial system operates
in an orderly and efficient manner.” Jn re Cement
Antitrust Litig., 688 F.2d at 1307.
[6] We conclude that this is the type of case
compelling the exercise of our supervisory mandamus
power, because the district court’s erroneous refusal to
stay proceedings in this capital case raises the prospect
of months, if not years, of habeas proceedings that will
almost certainly be vacated or reversed. The Bauman
factors support this conclusion. As to the first Bauman
factor, it is not clear that Gonzales has any “other
adequate means, such as a direct appeal, to attain the
relief he .. . desires.” Bauman, 557 F.2d at 654.
Although Gonzales could appeal the district court’s
stay denial if his habeas petition were ultimately
denied, in order to succeed on such an appeal he would
have to establish his incompetency retrospectively.
The Supreme Court has emphasized that such
retrospective competency determinations are
inherently difficult even “under the most favorable
circumstances,” Drope v. Missouri, 420 U.S. 162, 183
(1975), and this court views them with disfavor. See,
e.g., Moran v Godinez, 57 F.3d 690, 696 (9th Cir. 1994)
(recognizing that when a court erroneously fails to hold
a contemporaneous competency hearing “it often may
be impossible to repair the damage retrospectively”)
(superseded on other grounds by statute as described
in McMurtrey v. Ryan, 539 F.3d 1112, 1119 (9th Cir.
A-9
2008).' Given the disfavored character of retrospective
competency evaluations, an appeal at the end of
Gonzales’s district court proceedings can hardly be
deemed an adequate alternative means of relief for
Gonzales. The second Bauman factor is satisfied for
similar reasons; while we can only speculate as'to how
the difficulties of retrospective evaluation would affect
Gonzales’s case, to force him to accept a disfavored and
inherently difficult retrospective competency
evaluation, rather than staying proceedings and
conducting a contemporaneous evaluation as required
by Rohan and Nash, would in itself serve to impose
upon him “damage not correctable on appeal.”
Bauman, 557 F.2d at 654. Third, because this is a
supervisory mandamus case, Gonzales need only show
that the district court has committed ordinary legal
error. Jn re Cement Antitrust Litig., 688 F.2d 1297 at
1301.
The petition for a writ of mandamus is GRANTED.
' We recognize that we have allowed retrospective competency
determinations in circumstances where, as here, contemporaneous
medical and psychiatric reports exist. See Moran, 57 F.3d at 696-
98; Odle v. Woodford, 238 F.3d 1084. 1089 (9th Cir. 2001) (citing
de Kaplan v. Enomoto, 540 F.2d 975. 986 & n.11 (9th Cir. 1976)).
But even in such cases, we have emphasized the limitations of
such for a contemporaneous determination.
B-1
APPENDIX B
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Ernest Valencia Gonzales,
No. CV-99-2016-
)
)
Petitioner, ) PHX-SMM
)
VS. ) DEATH PENALTY
) CASE
Dora B. Schriro, et al., )
)
Respondents. ) ORDER
)
Pursuant to the Ninth Circuit’s Amended Order
Filed July 17, 2008, in Case No. 08-72188, this Court
has prepared the attached Supplemental Response for
filing in the Ninth Circuit Court of Appeals.
IT IS THEREFORE ORDERED that the Clerk
of Court send the original and three copies of the
attached Supplemental Response to the Clerk of the
Ninth Circuit Court of Appeals, Attn: Pinky Argonza,
U.S. Court of Appeals, P.O. Box 193939, San Francisco,
CA 94119-3939.
DATED this 28* day of August, 2008.
s/
Stephen M. McNamee
United States District Judge
B-2
APPENDIX H
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ERNEST VALENCIA )
GONZALES, ) No. 08-72188
Petitioner, )
Vv. ) D.C. No. 2:99-ev-
) 02016-SMM
UNITED STATES DISTRICT ) D.Ariz.
COURT FOR THE DISTRICT )
OF ARIZONA, )
Respondent, ) DISTRICT COURTS
) SUPPLEMENTAL
) RESPONSE
) PURSUANT
DORA B. SCHRIRO, ) TO NINTH CIRCUIT
Real party in interest. ) AMENDED ORDER
) FILED JULY 17,
) 2008
)
Petitioner Ernest Valencia Gonzales has filed in
the Ninth Circuit Court of Appeals an Emergency
Petition for Writ of Mandamus challenging this Court’s
order of April 23, 2008, denying his motion for a
competency hearing pursuant to Rohan ex rel. Gates v.
Woodford, 334 F.3d 803 (9th Cir. 2003). At the
invitation of the Ninth Circuit Court of Appeals,
Respondent District Court submits the following
B-3
response to Petitioner’s Supplemental Brief to Fetition
for Mandamus. '
Vv a Oo
Petitioner was convicted of first-degree murder
in 1991 and sentenced to death in 1992. Following
affirmance on direct appeal Petitioner filed a petition
and a supplemental petition for post-conviction relief
(PCR), which were denied by the state courts.
Petitioner initiated this habeas proceeding in 1999 and
in 2000 filed a 237-page amended petition raising sixty
claims for habeas relief. (Dkt. 28.) In 2001, Petitioner,
having withdrawn a number of his habeas claims,
again sought state post-conviction relief. In these
proceedings, PCR counsel raised the issue of
Petitioner's competence to assist counsel, a claim
1 Although the Court questions applicability of the collateral
order doctrine to denial of a Rohan hearing, this Response does
not otherwise address the jurisdictional issues presented by
Petitioner's motion. However, the Court takes this opportunity to
note its view of the significance of the “final decision,” rule, under
which “a party is entitled to a single appeal, to be deferred until
final judgment has been entered, in which claims of district court
error at any stage of the litigation may be ventilated.” Digita/
Equipment Corp. v. Desktop Direct, Inc., 511 U.S. 863, 868 (1994).
In the Court’s estimation, taking into account case management
issues and the use of judicial resources, the final decision rule
fosters continuity and the efficient administration of justice by
preventing fragmentation of the case and piecemeal litigation.
This is especially true for Rohan related allegations where access
to the full district and state court records may be necessary to
resolve the disputed issues.
2 The Court set out a more detailed discussion of this
procedural history in its April 23 order. (Dkt. 187 at 16-18.)
B-4
which the state court rejected as not cognizable. (Dkt.
108, Exs. 2, 3.) In 2002, following the Supreme Court’s
decision in Ring v. Arizona, 536 U.S. 584 (2002), the
Court stayed Petitioner's sentencing-related claims
pending litigation in state court on applicability of
Ring to Petitioner’s case. In 2003, three years after the
appointment of habeas counsel, Petitioner began to
refuse visits from his attorneys. (Dkt. 102, Ex. A.) In
2004, the Supreme Court held in Summerlin v. Schriro,
542 U.S. 348 (2004), that Ring does not apply
retroactively to cases such as Petitioner’s that were
final when Ring was decided.
At the time Petitioner initiated this habeas
proceeding, the District’s practice for all capital cases
was to limit the State’s answer to procedural defenses
so that the Court could first assess whether any of
Petitioner’s claims were procedurally barred before
requiring an answer on the merits of the claims. After
the Supreme Court decided Summerlin, stays were
lifted -n a multitude of cases in this District and the
Court, in January 2006, determined the procedural
status of the claims raised in Petitioner's amended
petition, finding that only thirty-one were appropriate
for merits review. (Dkt. 97.) In view of the length of
time that had passed since Petitioner filed his
amended petition and the petition’s failure to identify
claims for which Petitioner believed further
evidentiary hearing was warranted, the Court provided
Petitioner the opportunity to file an opening merits
brief in which he was to (1) “specifically identify and
apply appropriate AEDPA standards of review” to each
claim for relief and (2) identify the claims requiring
further evidentiary development, the facts or evidence
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sought to be developed, and the reasons these facts
were not developed in state court. (/d. at 36.) The
Court’s intent was to simply provide an opportunity for
up-to-date legal citation and argument in support of
the properly exhausted claims raised in the then-six-
year-old petition, not to provide a second opportunity to
investigate the case in search of claims not raised in
the petition.’
On the eve of the Court’s deadline for
Petitioner's opening merits brief, counsel filed a Rohan
motion for a competency determination and a stay.
Initially, based primarily on counsel’s avowals in the
motion, the Court set the matter for an evidentiary
hearing. (Dkt. 131.) The hearing was vacated when
the Court granted Respondents’ unopposed motion to
3 Petitioner asserts in his supplemental brief that “to go
forward without the capacity for rational communication would
lead to an adjudication of the federal petition that does not include
all material facts or meritorious claims that might entitle
Petitioner to relief or spare him from execution.” (Pet.’s Supp. Br.
at 32-33.) However, the merits brief is not the place to raise new
facts or claims. Rather, Petitioner was obligated under this
Court’s 1999 order, citing McCleskey v. Zant, 499 U.S. 467, 498
(1991), as well as Rule 2 of the Rules Governing Section 2254
Cases, to set forth in his amended petition “every known
constitutional error,” including the legal and factual basis for each
ground for relief. (Dkt. 17.) Counsel subsequently filed an
exhaustive amended petition and at no point indicated that
communication difficulties with Petitioner inhibited this effort. In
light of Petitioner’s opportunities in both state and federal court to
raise claims (prior to the allegation of incompetency in 2001),
there is a strong probability he is foreclosed at this point both
under state law and the AEDPA statute of limitations from raising
any new claims based on facts within his personal knowledge. See
Ariz. R. Crim. P. 32.1 & 32.2; 28 U.S.C. § 2244(d).
B-6
transfer Petitioner to the Arizona State Hospital for
further evaluation. (Dkt. 147.) Thereafter, the issue of
forced medication arose when Petitioner withdrew
from a regimen of anti-psychotic medication despite
the apparently positive effects of that medication. (See
Dkt. 164.) Following the evaluation period, the Court
held status conferences on October 15 and December 3,
2007; the Court then ordered additional briefing,
including on the issue of Rohan’s applicability to
Petitioner's properly-exhausted habeas claims. (Dkt.
180.) Upon reviewing the parties’ briefs and all of the
mental health information, the Court further reviewed
the entire state court record to determine whether,
according to the principles set forth in Rohan, a
competency determination and stay were necessary.
Petitioner complains that the Court executed a
“rapid about-face” when it asked for additional briefing
and failed to reset the competency hearing. (Pet.’s
Supp. Br. at 22.) The Court’s course of action was
dictated by several concerns. First, it was apparent
after the evaluation period that the experts had
reached a tentative consensus regarding Petitioner’s
mental health — z.e., that in the absence of medication
he was largely incapable of communicating rationally
with counsel. Having received such information, the
Court reconsidered the potential utility of holding an
evidentiary hearing, determining that the value of
such a hearing was significantly diminished,
particularly when balanced against the expenditure of
scarce judicial resources. In addition, on October 30,
2007, the Seventh Circuit issued its opinion in Holmes
v. Buss, 506 F.3d 576 (7th Cir. 2007), which provided
further guidance on the application of the Rohan
standard.
The court in Holmes, proceeding on the
assumption that Rohan was correctly decided, echoed
the Ninth Circuit’s distinction between claims that
could potentially benefit from a habeas petitioner's
input and those to which “a lay person has nothing to
contribute.” 506 F.3d at 579. With these
developments in mind and assuming Petitioner's
incompetency, the Court refocused on the nature of
Petitioner's claims and the way they fit into the
framework sketched out in Rohan, a process that
included most significantly, a close review of both
Petitioner’s remaining claims and the state court
record. The Court then issued its order denying a
competency hearing, finding that Petitioner’s claims
were record-based and involved purely legal issues and
therefore would not potentially benefit from his ability
to communicate rationally with counsel. (Dkt. 187.)
Application of Rohan
In Rohan the Ninth Circuit determined that a
prisoner “has a statutory right to competence in his
federal habeas proceedings.” 334 F.3d at 817. The
“relevant question” in determining competence in the
federal habeas context is “whether [the petitioner] now
has the capacity to understand his position and to
communicate rationally with counsel.” Jd at 819.
Thus, “where an incompetent capital habeas petitioner
raises claims that could benefit from his ability to
communicate rationally, refusing to stay proceedings
pending restoration of competence denies him his
statutory right to assistance of counsel, whether or not
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counsel can identify with precision the information
sought.” Jd. (emphasis added).
This Court’s April 23 order was based upon its
understanding of that holding and informed by the few
cases that have interpreted and applied Fodan,
primarily Holmes. As just noted, these cases
distinguish between claims that might potentially
benefit from a habeas petitioners ability to
communicate rationally and those that are “record-
based or non-factual,” Rohan, 334 F.3d at 819 n.11,
and do not implicate a petitioner’s “private knowledge”
or “personal history,” id. at 818. As an example of the
former category of claims, Rohanand Holmes note that
allegations of imeffective assistance of counsel,
particularly in the gathering of mitigation information,
often depend on information outside the record for
which the petitioner might be the only source. Jd. at
818; see Holmes, 506 F.3d at 579-80.
In response to this Court’s orders, Petitioner’s
counse! twice have identified the claims to which they
believe the holding in Rohan apples — 7.e., those which
might benefit from Petitioner’s ability to communicate
rationally. (Dkts. 102, 184.) With one possible
exception, all of these claims are record-based or
involve purely legal issues, such as claims challenging
Arizona’s death penalty statute or the sufficiency of
evidence with respect to aggravating factors; there are
no allegations of ineffective assistance that could
benefit from Petitioner’s personal input, and Petitioner
withdrew his claim of ineffective assistance of counsel
at sentencing. (Dkt. 43.)
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The single exception is Petitioner’s claim of
judicial bias. See Holmes, 506 F.3d at 580
(prosecutorial misconduct claim could potentially
benefit from Petitioner's competence because he may
“be able to convey to his lawyers a better sense of the
alleged misbehavior of the prosecutor and of defense
counsel than the trial transcript and other
documentation provide”). However, as the Court
discussed extensively in its April 23 order, it is clear
from a review of the state court record that the factual
underpinnings of that claim were fully developed in
state court and the record on the issue is complete.
(See Dkt. 187 at 7-11.)
The Court believes that its analysis receives
additional support from the recent holding in United
States v. Paul, No. 05-3431, 2008 WL 2796725 (8* Cir.
Jul. 22, 2008), a § 2255 case in which the Eighth
Circuit denied a certificate of appealability on the issue
of a habeas petitioner’s statutory right to competence.*
4 No other Circuit has adopted the holding in Rodan, and in
Paul the Eighth Circuit expressed skepticism about the existence
of a statutory right to competence for habeas petitioners, noting
that its reaction to the claim is similar to that of the Seventh
Circuit in Holmes:
As a matter of first impression, we might doubt the legal
significance of a person’s lacking the mental competence
to prosecute, or to assist his lawyer in prosecuting, a
federal habeas corpus proceeding. Technically, habeas
corpus is a civil proceeding rather than a criminal one.
Realistically, it is a stage imitiated by the criminal
defendant rather than by the state; and it is odd to think
that someone who initiates a proceeding can then freeze it
by claiming to be mentally incompetent.
(Continued)
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The Eighth Circuit explained:
At least on the facts of this case, we are not
persuaded that the certificate of appealability
should be expanded to encompass Paul's claim of
a statutory right to competence. Paul alleges
that his incompetence arose after his attempted
suicide in November 2003. As of that date,
however, Paul already had filed his 344-page
habeas corpus motion and a 514-page, two-
volume appendix on December 17, 2002. The
government had responded on June 2, 2003, and
the court issued its decision based on those
lengthy pleadings. To the extent counsel needed
assistance from Paul in developing facts outside
the record, that work was completed before
November 2003.
This is not a situation, therefore, where
counsel must speculate about what the
petitioner might have told him if the petitioner
had been competent when the post-conviction
arguments were formulated. Cf Rohan, 334
F.3d at 818. If there is a statutory right to
competency in post-conviction proceedings, the
scope of the right must correspond to what
menta! capabilities the litigant needs to assist
in the conduct of the litigation. See Holmes v.
Buss, 506 F.3d 576, 581 (7th Cir. 2007). Once a
habeas corpus motion is submitted to the court,
(Continued).
Paul, 2008 WL 2796725 at *13 (quoting Holmes, 506 F.3d at
578.
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and the parties are merely awaiting a decision,
there is no need for rational communication
between counsel and client in furtherance of the
motion.
Id. at *12 (footnote omitted).
In Petitioner’s case, eight years passed between
his conviction and sentencing and the filing of his
amended habeas petition in 2000. The request for a
competency determination was not filed until 2006.
During this fourteen-year period, Petitioner,
represented by counsel, proceeded through the direct
appeal and post-conviction processes in state court and
filed a lengthy habeas petition. Based upon this
record, it is difficult to posit the existence of additional
factual allegations or new legal claims which are
dependent upon Petitioner's ability to communicate
rationally with counsel. Like the petitioner in Paul,
Petitioner’s “alleged incompetence did not bar [him]
from presenting his ... claims.” Paul, 2008 WL
2796725 at *12.
In sum, the Court has endeavored to follow
Rohan. In doing so, the Court accepted Petitioner's
contention that he is not presently competent to
communicate rationally with counsel but found this
fact irrelevant because none of the claims remaining to
be decided by this Court are ones that “could benefit
from his ability to communicate rationally.” Rohan,
334 F.3d at 819. In light of that determination, the
Court concluded that there was no valid reason for
delaying resolution of Petitioner’s claims.
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The Court is mindful that the issue of
Petitioner's competency may ultimately need to be
addressed. Thus, if Petitioner fails to obtain relief on
his pending claims, he is not precluded from seeking
relief from his capital sentence pursuant to Ford v.
Wainwright, 477 U.S. 399 (1986), as that claim was
expressly dismissed by the Court as premature in its
January 2006 order (Dkt. 97 at 33). See Martinez-
Villareal v. Stewart, 118 F.3d 628, 634 (9th Cir. 1997),
affd, 523 U.S. 637 (1998) (Ford claim raised and
dismissed as premature in first petition may be re-
raised in second or successive petition). Therefore, to
the extent that a final determination concerning
Petitioner's competence is not foreclosed, no prejudice
will accrue to Petitioner from the Court’s handling of
the Rohan issue.
DATED this 28th day of August, 2008.
s/
Stephen M. McNamee
United States District Judge
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A hard copy of this Response was mailed on this
date to the Clerk of Court for the Ninth Circuit, Office
of the Clerk, U.S. Court of Appeals, P.O. Box 193939,
San Francisco, CA 94119-3939.
Electronic service was provided to the following
parties through the District of Arizona’s ECF System:
JON SANDS
Federal Public Defender
LETICIA MARQUEZ
TIMOTHY GABRIELSON
Assistant Federal Public Defender
407 West Congress Street, Suite 501
Tucson, Arizona 85701-1310
Attorney for Petitioner
JOHN PRESSLEY TODD
Office of the Attorney General
Capital Litigation Section
1275 W Washington St
Phoenix, AZ 85007-2997
602-542-8590
Attorney for Respondents
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APPENDIX C
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Ernest Valencia Gonzales,
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. CV-99-2016-
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8
Petitioner,
VS.
Dora B. Schriro, et al.,
Respondents.
Before the Court is Petitioner’s Motion for
Competency Determination and to Stay Proceedings.
(Dkt. 102.): For the reasons set forth herein, the
motion is denied.
BACKGROUND
On November 15, 1999, Petitioner, an Arizona
inmate sentenced to death, commenced these
proceedings by filing a petition for a writ of habeas
corpus. (Dkt. 1.) The Court appointed the Federal
Public Defender’s Office to represent Petitioner. (Dkt.
8.) On December 21, 1999, the Court issued a case
management order setting a deadline for the filing of
} “Dkt.” Refers to the documents in this Court’s file.
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an amended petition. (Dkt. 17.) Citing Rule 2 of the
Rules Governing § 2254 Cases, the order required the
amended petition to “include every known
constitutional error or deprivation entitling Petitioner
to habeas relief’ and to “set forth, in a clear and
concise fashion, the legal and factual basis for each
ground for relief. The factual basis shall include full
citations to the appropriate portions of the record.”
(Jd.) On July 17, 2000, Petitioner filed a 237-page first
amended petition raising sixty claims. (Dkt. 28.)
Petitioner subsequently withdrew thirteen
unexhausted claims from the amended petition so that
he could pursue them in state court. (Dkt. 43.) The
parties thereafter completed briefing on the procedural
status of the remaining claims. (See Dkts. 47,48, 54,
59.)
On January 12, 2006, the Court entered its
order regarding the procedural status of the claims
submitted in the amended petition. (Dkt. 97.) The
Court dismissed certain claims and established a
deadline for Petitioner to submit briefing on the merits
of the remaining claims. (/d.) On February 23, 2006,
prior to the deadline for filing his merits brief, counsel
for Petitioner moved to stay this action pursuant to
Rohan ex rel. Gates v. Woodford, 334 F.3d 803 (9th Cir.
2003), contending that Petitioner was no longer
capable of rationally communicating with or assisting
habeas counsel. (Dkt. 102.) The motion indicated that
since October 2003 Petitioner had refused some
twenty-six attempted visits from habeas counsel and
support staff, who wished to “discuss these upcoming
proceedings, including merits briefing and requests for
evidentiary development.” (qd. at 5-6.) Counsel
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indicated that they needed Petitioner’s assistance in
order to brief the merits of a number of claims. (Dkts.
102, 108.) Following Petitioner's Rohan motion, and
based upon the Court’s initial review of the allegations
and evidence concerning Petitioner’s mental state, the
Court allowed an evaluation of Petitioner’s competence
to proceed, and each party enlisted a mental health
expert. (Dkt. 111.)
The parties’ experts, both psychiatrists, reached
conflicting conclusions. Respondents’ expert, Dr. Anna
Scherzer, performed an independent psychiatric
consultation, which included an eight-hour interview
and the administration of a number of assessment
instruments, and prepared a detailed thirty-page
report. (Dkt. 124.) Dr. Scherzer concluded to a
reasonable degree of medical/psychiatric certainty that
Petitioner “has the capacity to understand his legal
position” and “has the capacity to communicate in a
comprehensible manner.” (Jd. at 1.) She noted that
“[als the interview progressed, Mr. Gonzales
demonstrated periods of reflection, normal speech
pattern, conversationally appropriate amplitude and
logical appreciation of the reality of his circumstances,
... demonstrateling] awareness of the central issue of
when the government would carry out the already
imposed death penalty.” (/d. at 29.) Dr. Scherzer also
explained that the results of the instruments she
administered were “consistent with volitional feigning
and malingered exaggeration of symptom [sic] of
mental illness” and “were not consistent with expected
patterns of known psychiatric disorders.” (/d. at 2-3.)
Furthermore, according to Dr. Scherzer, Petitioner
acknowledged that “he has volitionally chosen not to
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communicate with his attorney,” and “he verbalized his
desire to be found incompetent, (and thereby delay or
avoid death by lethal gas).” (Dkt. 124 at 2.) However,
while in Dr. Scherzer’s professional opinion Petitioner
“is knowingly choosing to present himself as severely
mentally ill, this does not exclude the presence of a
psychiatric disorder.” (/d. at 29.) Dr. Scherzer
recommended a period of “locked mental health
observation” to determine if Petitioner’s symptoms
were indeed feigned and, if the symptoms persisted,
treatment with “atypical neuroleptics and mood
stabilizing psychotropic medication.” (Jd. at 30.)
Petitioner’s expert, Dr. Raphael Morris, after
conducting a two-hour “psychiatric interview” and
reviewing various records, diagnosed Petitioner with
Schizophrenia, Disorganized Type and concluded that
he “lacks the capacity to rationally communicate with
counsel due to a disorganized thought process and a
pressured and non-redirectable pattern of speech. In
addition his current grandiose delusions interfere with
his capacity to appreciate his current legal
predicament.” (Dkt. 125 at 2, 10.) Dr. Morris found,
contrary to Dr. Scherzer, that Petitioner “is unable to
have a coherent discussion about even the most benign
topics much less provide input towards the defense
team’s investigations.” (ad at 10.) Dr. Morris
recommended a course of anti-psychotic medication but
characterized Petitioner’s “prognosis for restoration of
competency” as “guarded at best.” (/d. at 2-3, 12).
After receiving the reports from Drs. Scherzer
and Morris, the Court scheduled an evidentiary
hearing. (Dkt. 131.) Prior to the hearing, however,
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Respondents filed a motion requesting that Petitioner
be transferred to the Arizona State Hospital (“ASH”)
for an extended mental health assessment; the Court
granted the motion. (Dkts. 138, 147.) On October 10,
2007, at the end of the ninety-day assessment period,
the supervising psychologist, Dr. James Seward,
submitted a final report. Dr. Seward indicated that he
“continueld] to have reservations concerning the
veracity of Mr. Gonzales’s symptoms” and that
“malingering cannot be ruled out.” (Dkt. 160 at 1, 3.)
Nevertheless, he concluded that Petitioner has a
“genuine psychotic disorder” and is “currently unable
to communicate rationally for any extended period of
time, such as would be required by a legal proceeding.”
(id. at 2). Dr. Seward became persuaded that
Petitioner’s symptoms were genuine after observing an
improvement in Petitioner’s capacity for rational
thought during the brief period when Petitioner was
compliant with a regimen of the antipsychotic
medication, Aripiprazole, which was prescribed by his
treating psychiatrist, Dr. Qureshi. (/d. at 2-3.) Despite
the observations of Drs. Seward and Qureshi, and
Petitioner's self-report that he had experienced “some
benefit .. . regarding his thought processes,” Petitioner
asked to be taken off the medication, complaining of
side effects such as back pain and restlessness.? (/d. at
2 According to Dr. Seward, “full benefit from antipsychotic
medication is expected within four to six weeks after initiation of
treatment.” Petitioner took Aripiprazole for approximately three
weeks before discontinuing treatment. (Dkt. 160 at 3.)
Dr. Seward noted that in his most recent session with
Petitioner, possibly as a result of the antipsychotic mediation,
Petitioner “demonstrated more capacity for rational thought than
he has in our previous meetings.” (/d.) “For the first 30 minutes
(Continued)
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-
2.) Upon receiving Dr. Seward’s report and being
informed that Petitioner had discontinued treatment
with this potentially beneficial medication, the Court
ordered briefing on the issue of involuntary
administration of antipsychotic medication. (Dkt. 164.)
On October 15 and December 3, 2007, the Court
held status hearings to address these latest
developments. At the hearings, the discussion focused
on the holdings in two cases. In Rohan, 334 F.3d at
819, the Ninth Circuit held that capital habeas
proceedings must be stayed, “pending restoration of
competence,” where a petitioner is unable to
communicate rationally with counsel regarding claims
that could benefit from such communication. In Sel/ v.
United States, 539 U.S. 166, 169 (2003), the Supreme
Court addressed the question “whether the
Constitution permits the Government to administer
antipsychotic drugs involuntarily to a mentally ul
criminal defendant — in order to render that defendant
competent to stand trial for serious, but nonviolent,
crimes.” The Court held that in limited circumstances
forcible medication was permissible and established
the analytical framework under which such
determinations are made. Jd.
In briefing completed prior to the December 3
status conference, Petitioner maintained that he was
(Continued).
of this contact he primarily related in a socially appropnate,
rational, and coherent manner, with minimal disorganized and
illogical thoughts.” (/d. at 2.) However, for reasons Dr. Seward
cannot explain, Petitioner then became hostile and irrational.
Ud.)
C-7
incompetent under Hohan and that, pursuant to the
criteria set forth in Se/l/, he could not be restored to
competency through involuntary medication. (Dkt.
177.) Noting that the issue involved - whether a
habeas petitioner, convicted of a violent crime, could
prevent action on his own petition by refusing to be
restored to competence — was one of first impression,
the Court ordered additional briefing on a number of
questions. (Dkt. 180.) The initial question asked
Petitioner to identify the specific claims and types of
assistance “needed from Petitioner — beyond that
already provided and submitted as part of the
Amended Petition — to complete preparation of the
merits brief and any requests for evidentiary
development,” explaining that such “information is
necessary for any determination regarding Petitioner’s
ability to communicate rationally wiih counsel as
required under Rohan. (id. at 2.) That briefing has
been completed. (Dkts. 184, 185, 186.)
DISCUSSION
1. Rohan holding
As noted above, the Ninth Circuit in Rohan
determined that a prisoner “has a statutory right to
competence in his federal habeas proceedings.” 334
F.3d at 817. The “relevant question” in determining
competence in the federal habeas context is “whether
[the petitioner] now has the capacity to understand his
position and to communicate rationally with counsel.”
Id. at 819. Thus, “where an incompetent capital
habeas petitioner raises claims that could benefit from
his ability to communicate rationally, refusing to stay
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proceedings pending restoration of competence denies
him his statutory right to assistance of counsel,
whether or not counsel can identify with precision the
information sought.” Jd Accordingly, in such a
situation, federal habeas proceedings “must be stayed
until [the petitioner] is competent.” Jd. Finally, the
Ninth Circuit was careful to note that “the mere fact
that [a petitioner] does not communicate rationally
does not mean that he is incapabie of doing so.” Jd.
Other circuits have acknowledged the holding in
Rohan, but have not been called upon to approve or
reject it. See Holmes v. Buss, 506 F.3d 576, 578 (7th
Cir. 2007); Mines v. Dretke, 118 Fed.Appx. 806, 812-13
(5th Cir. 2004); see also Clayton v. Roper, 515 F.3d
784, 790 n.2 (8th Cir. 2008). These cases distinguish
between claims for which a petitioner’s personal input
may be beneficial and those that are “record-based or
non-factual,” Rohan, 334 F.3d at 819 n.11, or are
otherwise not susceptible to the contributions of a lay
person. In Rohan, for example, the Ninth Circuit noted
that an ineffective assistance of counsel claim, which
“depends in large measure on facts outside the record,”
could “potentially benefit from [the petitioner’s]
assistance.” 334 F.3d at 818. The court specifically
noted that ineffective assistance claims challenging
counsel’s performance with respect to a defendant’s
competence to stand trial or the gathering of
mitigating evidence may be supported by information
in the petitioner’s “private knowledge” or from his
“personal history.” Jd.; see Hill v. Ayers, No. 4-94-CV-
641-CW, 2008 WL 683422 (N.D. Cal Mar. 10,
2008)(noting that the petitioner “has ‘raised claims
that could benefit from his ability to communicate
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rationally,’ such as claims of innocence and ineffective
assistance of counsel in presenting mitigating evidence
at the penalty phase of his trial”)(quoting Rohan, 334
F.3d at 818). In Holmes, the Seventh Circuit drew a
similar distinction between claims requiring a
petitioner's input and those for which his assistance is
unnecessary:
Federal habeas corpus happens to be one of
the most complex areas of American law. With
respect to many of the issues that arise in
habeas corpus cases, a lay person has nothing to
contribute to his lawyer’s strategy. But it can be
different with respect to other issues, several
presented in this case, notably prosecutorial
misconduct at trial and ineffective assistance by
trial counsel. The petitioner was at his trial; his
current lawyers were not. He may —if mentally
competent — be able to convey to his lawyers a
better sense of the alleged misbehavior of the
prosecutor and of defense counsel than the trial
transcript and other documentation provide.
506 F.3d at 579-80.
II. Claims to which Petitioner contends Rohan
applies
Petitioner argues that Claims 9, 13, 17, 29, 30,
and 34 may potentially benefit from his ability to
communicate rationally with counsel because each are
based on extra-record information that is within his
personal knowledge. (Dkt. 184 at 10-15.) Petitioner
also contends that there are unexhausted claims,
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including the thirteen claims withdrawn from his
amended habeas petition (see Dkt. 43), as well as
potential new claims that are not presently before this
Court, for which his ability to assist habeas counsel] is
required. (Dkt. 184 at 8-9, 15-16.)
Claim 9
Petitioner alleges that his Sixth and Fourteenth
Amendment rights were violated because the trial
judge, who was openly hostile toward Petitioner,
refused to recuse himself. (Dkt. 28 at 62-64.)
Background
Petitioner's first trial ended in a hung jury.
Before his second trial, Petitioner, acting pro se, moved
to disqualify the trial judge, Judge Joseph Howe,
arguing that he was biased and prejudiced against
Petitioner. (ROA 104, 105.)3 Petitioner cited adverse
rulings issued by Judge Howe, particularly the denial
of expert assistance on the issue of eyewitness
identification and on-the-record comments made to
Petitioner by the judge. (ROA 105.) Judge Howe
initially denied the motions (RT 3/25/91 at 7, 9) but
thereafter vacated his ruling (ME 3/25/91). The matter
3 “ROA” refers to the four-volume record on appeal from
trial, including minute entries (“ME”), prepared for Petitioner's
direct appeal to the Arizona Supreme Court (Case No. CR-92-
0154-AP). “RT” refers to the court reporter's transcript. The
original trial transcripts, a certified copy of the record on appeal,
and a set of appellate briefs were provided to this Court by the
Arizona Supreme Court. (Dkt. 23.)
C-1}
was then assigned to Judge Rufus Coulter, who held a
hearing at which Petitioner explained his position:
[Judge Howe] is prejudicing me in a lot of
motions that I bring forward. He just keeps
denying all my motions. And I just feel there is
going to be a big effect in this next trial because
he was present, and he made a lot of decisions in
my last trial. And there was a lot of prejudicial
remarks that he has stated to me in court on
previous hearings on my motions, and he just —
he just keeps determining to just take me to
trial in front of him. He has stated this to me,
that he will not let me go to no other judge, just
in front of him And I’ve made many attempts
to get a change of judge, but he just calls me a
fool. He don’t want to listen to me, whatever I
have to present to him. He says I’m just a
stubborn brat. And I’m just being prejudiced.
There ain’t no way I’m going to get a fair trial
with Judge Howe anymore.
(RT 5/15/91 at 3.) The prosecutor acknowledged that
“there is some type of attitude problem between Judge
Howe and the defendant. I’m not sure why it started,
how it started or what effect it has had on this trial.
Every time we appear in court, they snap and snarl at
each other. And I have no position, nor do I have any
indication as to whether or not that behavior will
deprive the defendant of a fair trial.” (/d. at 4.) Judge
Coulter denied the motion, explaining, “I snap and
snarl at a lot of attorneys, but I simply don’t — it
doesn't mean it’s prejudice. Based on what has been
presented, it will be ordered denying the
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disqualification of Judge Howe.” (/d.)
After his conviction in the second trial, and prior
to sentencing, Petitioner filed another pro se motion
seeking to disqualify Judge Howe. (ROA 150.)
Petitioner again cited adverse rulings and the judge’s
disparaging courtroom comments; in addition to these
criticisms, Petitioner noted that he had now filed a
complaint against Judge Howe with the Judicial
Conduct Commission. (ROA 150.) Judge Ronald
Reinstein denied the motion, finding that the previous
allegations of bias had been ruled on and that the
filing of a complaint against a judge is not a basis for
removal. (ME 10/1/91.)
On direct appeal, Petitioner’s appellate counsel
raised the issue of judicial bias, alleging that
“[tlhroughout the proceedings in this matter, he trial
judge’s impartiality [sic] and bias were apparent” and
citing a number of testy courtroom exchanges between
Judge Howe and Petitioner. (Opening Br. at 56.) The
Arizona Supreme Court rejected Petitioner’s claim,
finding that the reported exchanges between Petitioner
and Judge Howe did not indicate bias:
Gonzales points to several exchanges that he
claims demonstrate the judge’s animosity
toward him, and argues that he was denied a
fair trial and sentencing. But Gonzales was a
difficult litigant, amd while the judge
understandably became impatient with him,
particularly while he was acting pro per, none of
the exchanges would support Gonzales’s claim of
bias. Nor did any of the exchanges take place in
C-13
front of the jury. Other than pointing to the
motions the judge denied and the sentence he
imposed, Gonzales has not shown how he was
prejudiced. See Liteky v. United States, 510
U.S. 540, ----, 114 S.Ct. 1147, 1157, 127 L.Ed.2d
474 (1994) (“Not establishing bias or partiality,
however, are expressions of impatience,
dissatisfaction, annoyance, and even anger, that
are within the bounds of what imperfect men
and women... sometimes display.”) We find
that Judge Coulter properly denied Gonzales’s
motion for disqualification of Judge Howe.
State v. Gonzales, 181 Ariz. 502, 511-12, 892 P.2d
838, 847-48 (1995).
Analysis
In support of his contention that Claim 9 is
subject to Rohan because it could benefit from his
ability to communicate rationally with counsel,
Petitioner asserts that his “substantive judicial bias
claim depends on facts [outside] the record, to wit, the
interaction between Petitioner and the trial court and
Petitioners observations of the trial _ court’s
interactions with others.” [Dkt. 184 at 11.) The Court
disagrees.
Under the AEDPA,* Petitioner is entitled to
habeas relief on Claim 9 only if the Arizona Supreme
Court’s rejection of the claim constituted an
* The Antiterrorism and Effective Death Penalty Act of
1996.
C-14
unreasonable application of clearly established federal
law, or if it was “based upon an unreasonable
detg®inination of the facts in light of the evidence
presented in the State court proceeding.” 28 U.S.C.
§2254(d); see Williams v. Taylor, 529 U.S. 362, 407
(2000).
The record regarding ibis claim is complete. It
includes all of the comments made by Judge Howe that
Petitioner contended, in his trial motions for
disqualification and on direct appeal, were indicative of
judicial bias. Nevertheless, habeas counsel contend
that Petitioner is entitled to further development of
this claim, for which Petitioner’s input is required.
The Court disagrees. The state court record, which
details the litigation of the judicial bias claim, contains
no suggestion that additional incidents occurred in
which Petitioner made personal observations of the
judge’s behavior; Petitioner’s recusal motions cited only
judicial rulings and on-the-record comments that are
present in the trial transcript.5
In an attempt to demonstrate that he was
5 As the Arizona Supreme Court noted, the record also
reveals that Petitioner was a contentious, even manipulative,
litigant. It further shows, despite the verbal jousting between
Petitioner and the court, that Judge Howe demonstrated
impartiality and concern for the fairness of the trial, both in his
rulings, including his decision that Petitioner's confession was
inadmissible (RT 1/16/91 at 83), and in many of his comments to
Petitioner reiterating the perils of proceeding without counsel. At
the conclusion of a three-day hearing on Petitioner's pro se motion
for a new trial, Judge Howe praised Petitioner for his thoroughly-
researched and well-organized presentation. (RT 12/17/91 at 128.)
C-15
diligent in developing the factual basis of this claim in
state court (and thus 1s entitled to a federal evidentiary
hearing on the claim), Petitioner directs the Court’s
attention to a supplemental petition filed during state
post-conviction (“PCR”) proceedings. (ROA-PCR 500.)
In this document, Petitioner now contends, PCR
counsel “alleged that there were additional facts not of
record that required development with respect to a
claim of judicial bias, and he requested an evidentiary
hearing.” (Dkt. 184 at 10.)
This contention is not well taken. First, the
claim raised in the supplemental PCR petition alleged
that Arizona law failed to provide Petitioner the means
of proving a claim of judicial bias through voir dire of
the judge (ROA-PCR 500 at 2-5), an allegation he re-
urges in habeas Claim 41 (Dkt. 28 at 129-30). Second,
in supporting the claim in state court Petitioner did
not, as he now asserts, “allege[} that there were
additional facts not of record that required
development with respect to a claim of judicial bias.”
(Dkt. 184 at 10.) Instead, Petitioner cited, as he did in
all his previous judicial bias motions, on-the-record
comments indicating antagonism between Petitioner
and the judge, as well as the fact that Judge Howe
presided over the first trial and might therefore have
been biased against Petitioner on retrial. (ROA-PCR
500 at 4.) To the extent that Petitioner alleged the
existence of additional supporting evidence, it was not
information gleaned from his alleged private
observations of or interactions with the judge, but
rather Judge Howe’s feelings toward Petitioner: that is
why the claim alleged a violation of Petitioner’s rights
based upon the lack of an opportunity to voir dire
C-16
Judge Howe.* Under these circumstances, Petitioner
was not diligent in developing this claim in state court.
See Alley v. Bell, 307 F.3d 380, 390-91 (6th Cir. 2002)
(lack of diligence because petitioner knew of and raised
claims of judicial bias in state court, but failed to
investigate all the factual grounds for such claims).
Petitioner's consistent failure to allege the
existence of additional facts in support of his judicial
bias claim, despite adequate opportunities to do so,
convinces the Court that the record is fully developed
and that additional, relevant facts do not exist that are
within Petitioner's private knowledge. In any event,
due to the lack of diligence in state court, Petitioner is
not entitled to further development of the factual basis
of this claim. 28 U.S.C. § 2254(e)(2); Williams v.
Taylor, 529 U.S. 420, 437 (2000).
The Court therefore concludes that this claim
cannot potentially benefit from Petitioner’s ability to
communicate rationally and is not subject to the
holding in Rohan. Habeas counsel are m a position to
argues the merits of this claim without further input
from Petitioner.
6 The claim was denied, without an evidentiary hearing, on
the grounds that “Arzona law does provide such an effective
means, which was used by this defendant, including the
opportunity, not used, of ‘voir dire’ of the judge in front of another
judge who holds, and in this case held, a hearing on the claim.”
(ME 4/21/98 at 10.)
C-17
Claims 13 and 17
Claim 13 alleges that Petitioner’s rights under
the Sixth and Fourteenth Amendments were violated
by Deborah Wagner’s presence in the courtroom during
jury selection and after her testimony.’ (Dkt. 28 at 70-
71.) Claim 17 alleges that his rights were violated by
the admission of Ms. Wagner’s in-court identification of
Petitioner, which Petitioner claims was tainted by her
exposure to him during the first trial. Ud. at 76-78.)
In support of his argument that further input from
Petitioner is necessary regarding these claims,
Petitioner indicates only that “[i]f evidence is taken at
an evidentiary hearing on Mrs. Wagner’s courtroom
behavior, Petitioner’s presence and competence will be
required because he was an eyewitness to her presence
in the courtroom and to her reactions toward him and
her interactions with others there. Petitioner must be
competent to perform that role.” (Dkt. 184 at 13.)
Claim 13
At Petitioner’s second trial, Ms. Wagner was
present for voir dire, seated in the back of the
courtroom. (See 5/28/91 at 8.) Subsequently, after the
jury had been selected, defense counsel asked the court
to inquire of the jurors whether they had been tainted
by their exposure to Ms. Wagner’s presence. (/d.) the
court declined, explaining that asking such questions
would “do more damage” than good and finding that
7 Ms. Wagner was present when her husband was stabbed
to death. She was seriously injured while struggling with the
assailant in the courtyard of the couple's townhouse.
C-18
there was no evidence of misconduct and that Ms.
Wagner had a right under the Arizona Constitution to
be present. (/d. at 8, 11.) The prosecutor indicated
that, with respect to the remainder of the proceedings,
Ms. Wagner, who had relocated to Colorado, intended
to be present only for the opening statements and her
own testimony — and that she would be the State’s first
witness. (/d. at 10.) Over the prosecutor’s objection,
however, the court did bar Ms. Wagner from the
courtroom during opening statements but ruled that
she could be present after her testimony. (/d. at 13.)
Petitioner raised this claim on direct appeal.
(Opening Br. at 54.) The claim was based upon the
assumption that Ms. Wagner was present in the
courtroom after her testimony — an assumption that,
Petitioner conceded, was supported by nothing in the
record. (Ud at n.19.) The Arizona Supreme Court
rejected the claim:
Gonzales argues that Deborah [Wagner’s]
presence in the courtroom during jury selection
and her possible presence during trial after she
testified prejudiced him and denied him the
right to a fair trial. This argument is without
merit. Deborah had a constitutional right to
attend all criminal proceedings that Gonzales
had the right to attend. Ariz. Const. art. 2,
§ 2.1(A)(3); Rule 9.3(a), Ariz.R.Crim.P. Deborah,
on her own initiative, attended jury selection.
She sat in the back row of the courtroom, and |
neither the court nor counsel knew she was
there until several days later. Nor is there any
evidence that prospective jurors noticed
C-19
Deborah or knew who she was during jury
selection. Gonzales has not shown that
Deborah’s presence during jury selection was
prejudicial. There is no evidence that Deborah
intended to or did remain in the courtroom after
she testified, and therefore we consider the
matter no further. State v. Ethington, 121 Ariz.
572, 574, 592 P.2d 768, 770 (1979).
Gonzales, 181 Ariz. at 512, 892 P.2d at 848.
Petitioner is entitled to relief on Claim 13 only if
the Arizona Supreme Court’s rejection of the claim was
contrary to or based on an unreasonable application of
clearly established federal law or was based upon an
unreasonable determination of the facts in light of the
evidence presented in state court. 28 U.S.C. § 2254(d).
It is not apparent what information Petitioner could
potentially provide that would be relevant to this
determination. His personal input is not necessary to
determine whether Ms. Wagner in fact continued to
attend the second trial after giving her testimony, or to
describe her conduct during voir dire. The record
indicates, for example, that at the time of the defense
request to question the jury, neither the court nor the
parties, all of whom were aware of Ms. Wagner's
presence during voir dire, suggested that her behavior
was inappropriate.
Claim 17
At Petitioner’s first trial, Ms. Wagner testified
C-20
on direct examination that she thought her attacker
was in the courtroom and pointed out Petitioner. (RT
1/21/91 at 61.) On cross-examination, however, she
suggested that her identification of Petitioner had
become more certain, explaining, “I didn’t get any kind
of feelings until I come into this courtroom yesterday
and looked at the man you're trying to defend.” (RT
1/22/91 at 23.) On redirect examination, Ms. Wagner
did not hesitate when asked how certain she was that
Petitioner was the attacker: “That man is the man that
was in our house and killed us (sic).” (/d. at 28.) The
first trial ended in a hung jury. Prior to the second
trial, defense counsel moved to dismiss the charges,
citing the change in the strength of Ms. Wagner's
identification of Petitioner during the first trial] and his
concern that she was “obviously going to identify
[Petitioner] as the perpetrator” at the next trial. (RT
3/25/91 at 3-4.) The court denied the motion. (/d. at 8.)
During her testimony at Petitioner’s retrial, Ms.
Wagner positively identified Petitioner. (RT 5/28/91 at
59.)
Petitioner raised the allegations contained in
Claim 17 on direct appeal, citing Nez/ v. Biggers, 409
U.S. 188 (1972), and Manson v. Braithwaite, 432 U.S.
98 (1977). (Opening Br. at 25-26.) The Arizona
8 Pnor to trial, the court held a so-calied Desserau/t hearing
and determined that Ms. Wagner's exposure to a newspaper
photograph was insufficient to taint her in-court identification of
Petitioner. (RT 1/15/91 at 22-27.)
9 Biggers and Brathwaite establish the framework for
evaluating whether an in-court identification has been irreparably
tainted by a pretrial encounter between a witness and an accused.
A court must determine whether the challenged pretrial
(Contunued)
C-2]
Supreme Court held that the claim was waived
because Petitioner did not object prior to trial and
finding, in the alternative, that the fact that Petitioner
sat at the defense table during the prior trial was not
“unduly suggestive.” Gonzales, 181 Ariz. at 510, 892
P.2d at 846.
This is a record-based claim centering on the
reasonableness of the Arizona Supreme Court's
decision. Petitioner does not explain how his proposed
input —i.e., his personal observations of Ms. Wagner’s
courtroom behavior — is relevant to this Court’s
assessment ofthe Arizona Supreme Court's application
of the principles announced in Biggersand Brathwaite.
Petitioner now speculates, however, that a
Brady violation occurred, with the withheld
information explaining why Ms. Wagner was able to
positively identify Petitioner at the second trial.'°
(Dkt. 184 at 12-13.) This contention is meritless. First,
as already noted, Ms. Wagner ultimately made a
positive courtroom identification of Petitioner during
the first trial (RT 1/22/91 at 28), so any contention that
her testimony changed from the first trial to the second
is factually inaccurate. Next, Claim 17, as properly
(Continued).
encounter was suggestive and then examine the totality of the
circumstances, including several specific factors, to determine
whether the witness’s in-court identification is nonetheless
reliable. Brathwaite, 432 U.S. at 114 (citing Biggers, 409 U.S. at
199-200).
10 Under Brady v. Maryland, a defendant's due process
rights are violated if the prosecution fails to disclose evidence that
is “material either to guilt or to punishment.” 373 U.S. 83, 87
(1963).
C-22
exhausted, alleges only that Ms. Wagner's
identification of Petitioner was tainted and unreliable
“{blecause of the suggestive position of [Petitioner]
during the first trial, seated next to defense counsel”
(Dkt. 28 at 77); it does not assert that the real
explanation for Ms. Wagner’s courtroom identification
of Petitioner in the second trial is contained in
material withheld by the State in violation of Brady.
There is no Brady claim before the Court. Finally,
even if, contrary to the legal and factual bases upon
which Claim 17 relies, the Court were to agree that the
claim somehow incorporates an allegation of a Brady
violation, there is no indication that Petitioner's
participation is required to identify or locate
exculpatory material related to this issue. Therefore,
the claim would not potentially benefit from
Petitioner’s competence.
Claims 29, 30, and 34
Claims 29 and 30 challenge the sufficiency of the
evidence supporting the two aggravating factors —
grave risk of harm to others and pecuniary gain —
found by the trial court and affirmed by the Arizona
Supreme Court." (Dkt. 28 at 100-03.) These are
clearly record-based claims. Further evidence,
including personal input from Petitioner, is not
necessary because there is nothing that can be added
to the facts upon which the state courts’ findings were
11 The claums also assert that Petitioner's constitutional
nghts were violated because the factors were found by the court
rather than a jury. (See Dkt. 28 at 101-03.) That challenge is
foreclosed by Schriro v. Summerlin, 542 U.S. 348, 358 (2004).
C-23
based. See Lewis v. Jeffers, 497 U.S. 764, 780 (1990)
(articulating standard for habeas review of state
court’s application of aggravating factor —i.e., whether
any rational factfinder could have determined that the
factor was proved); Jackson v. Virginia, 443 U.S. 319,
322 (1979) (this type of claim almost never necessitates
an evidentiary hearing); Bashor v. Risley, 730 F.2d
1228, 1233 (9th Cir. 1984) (“Whether the evidence was
sufficient ... must be determined from a review of the
evidence in the record in the state proceedings. No
evidentiary hearing was required.”)
Claim 34, which asserts that Arizona’s statutory
death penalty scheme unconstitutionally precludes the
sentencer from considering all mitigating evidence,
consists of an exclusively legal issue, for which input
from a layperson is not potentially beneficial. (/d. at
108-09.)
Unexhausted claims and claims not yet raised
Petitioner contends that the Court, in
considering whether to stay the case based on
Petitioner's incompetence under Rohan, should take
into account Petitioner's capacity to assist counsel with
the thirteen unexhausted claims withdrawn from his
amended petition as well as potential and unnamed
new claims. The Court disagrees.
Background
After Petitioner voluntarily withdrew the
unexhausted claims from his habeas petition, he
returned to state court and initiated successive PCR
C-24
proceedings. The state court appointed counsel to
represent Petitioner; however, before a petition was
filed, Petitioner, acting pro se, requested that his
second state PCR proceeding be withdrawn and his
counsel dismissed so that he could proceed pro se in
federal court. The state court ordered a mental health
examination to determine whether Petitioner was
competent to waive counsel. (See Dkt. 102, Ex. 3.) The
court-appointed expert, Dr. Jack Potts, examined
Petitioner and concluded that he was paranoid and
delusional and incompetent to waive counsel. (/d, Ex.
4 at 3.) Dr. Potts also reported that Petitioner refused
to cooperate with him; had Petitioner cooperated, Dr.
Potts’s “opinion would quite possibly have been
different.” (/d.) Based on Dr. Potts’s conclusions, the
court found Petitioner incompetent to waive counsel
and represent himself. U/d., Ex. 9.)
On the day Petitioner’s successive PCR petition
was due, counsel filed a motion to hold the case in
abeyance until Petitioner became competent to assist
counsel in the successive PCR proceeding. (Dkt. 102,
Ex. 11.) The court denied the motion, finding that
there was no right to a competency determination, that
the claim of legal incompetency at the time of trial and
sentencing was not “cognizable in a second PCR
proceeding in this particular case” under Rules 32.1(e)
and (h) and 32.2(b) of the Arizona Rules of Criminal
Procedure, and that even if the claim was cognizable,
counsel had not set forth “sufficient reasons for not
raising the claim in a previous petition or in a timely
manner or demonstrated why defendant’: competency
is essential to filing the prospective second Rule 32
proceeding.” (d., Ex. 12.)
Despite this ruling, in February 2002 counsel for
Petitioner filed a successive PCR petition asserting
four claims, including claims that Petitioner had a
right to assist counsel in a second PCR proceeding,
that he was entitled to an evidentiary hearing to
determine his current competency, and that he was
incompetent at the time of trial and sentencing. (Dkt.
108, Ex. 1.) Counsel did not raise any of the claims
withdrawn from the amended habeas petition. Cd.)
The state court again denied the petition, explaining,
with respect to the third claim, that Petitioner had
failed to present a “colorable claim .. . that newly
discovered evidence shows defendant was iscompetent
to stand trial.” (Id., Ex. 3.) Counsel filed a petition for
review, which the Arizona Supreme Court denied. (/d,,
Ex. 6.)
Analysis
As an initial matter, it is clear that a number of
the thirteen withdrawn claims are record-based and
resolvable as a matter of law, while others, ike Claims
37, 56, and 58, are plainly meritless or non-cognizable.
All of the claims, including those to which a Rohan
analysis may be applicable ~— e.g., Claim 52, alleging
ineffective assistance of counsel at sentencing — remain
unexhausted because they have never presented to the
state court.
Petitioner argues, pursuant to 28 U.S.C.
§ 2254(b)(1(B), that Arizona’s “corrective process
proved to be futile because of Petitioner’s incompetence
in that forum and the state court’s failure to stay the
C-26
proceedings until Petitioner was restored,” and that his
“incompetence should serve to forgive the failure to
exhaust in state court and permit Petitioner to
supplement the amended petition with the withdrawn
claims.”” (Dkts. 184 at 4, 186 at 15.) The Court
disagrees.
Petitioner was not prevented from raising in
state court the thirteen claims withdrawn from his
habeas petition. He noticed the claims but then failed
to raise them in his second PCR petition, which instead
set forth a different set of claims. Thus, counsel could
have pursued and exhausted the withdrawn claims
during Petitioner’s successive PCR proceedings. At
this point, in addition to being unexhausted, the claims
are no longer before this Court. Consequently,
Petitioner's competency to assist counsel with the
claims is irrelevant.
Finally, counsel for Petitioner speculate that
unknown evidence exists that might “support[] a
colorable claim of actual innocence.”'3 (Dkt. 184 at 16.)
12 The Court notes that Petitioner has not moved to amend
his habeas petition to include the withdrawn claims or the new
claims raised in his successive PCR proceedings.
13 Petitioner has not raised an actual innocence claim. Given
the facts of the case, which include Petitioner's suppressed
confession, eyewitness accounts of the attack and of his presence
near the Wagner home, and circumstantial evidence of guilt,
including physical evidence linking him to the crime scene and
reports that, in the immediate aftermath of the attack, Petitioner
returned home with various injuries and in possession of a purse
matching Ms. Wagner’s, the potential for successfully bringing
(Continued)
C-27
In support of this assertion, they argue that Rohan
stands for the proposition that habeas proceedings
must be stayed whenever a petitioner is incompetent,
because a competent petitioner might have information
in support of a claim of actual innocence. (/d.) The
Court rejects this reading, which is inconsistent with
the holdings of both Rohan, 334 F.3d at 819, and
Holmes v. Buss, 506 F.3d at 579-80, each of which
conditions the right to competence on the presence of
claims that can benefit from the petitioner’s ability to
communicate rationally. This analytical framework
would be a nullity under the interpretation advanced
by Petitioner's counsel because any habeas petitioner
found to be incompetent would be entitled to a stay, no
matter the nature of his claims, simply by asserting
that additional, hypothetical information exists that
the petitioner is presently unable to share with
counsel.
CONCLUSION
Claims 9, 13, 17, 29, 30, and 34 are
distinguishable from the claims discussed in Rohan in
that their presentation in these habeas proceedings
cannot benefit from Petitioner’s personal input.
Petitioner's properly-exhausted claims are record-
based and/or resolvable as a matter of law, irrespective
(Continued).
such a claim is minimal. Similarly, taking into account the
volume of the record, the nearly decade-long period between the
trial and Petitioner's claims of incompetence, and the
thoroughness of the amended petition, the Court views with
skepticism the possible existence of undiscovered constitutional
violations.
C-28
of Petitioner’s capacity for rational communication
with counsel.
In addition, as Respondents note, this case is
different from Aohan in that Petitioner’s claim of
incompetence arose several years after he had filed his
amended petition, which set forth the factual bases for
all of his claims; it is also, unlike Rohan, a post-
AEDPA case, so that Petitioner’s claims are subject to
a “substantially higher threshold for habeas relief.”
Schriro v. Landrigan, 127 S. Ct. 1933, 1939-40 (2007).
While these factors are not dispositive, see Aull v.
Ayers, 2008 WL 683422, the Court believes that they
support its decision not to stay these proceedings.
Finally, while the Court has found it
unnecessary to determine whether Petitioner is
unable, as opposed to unwilling, to communicate
rationally with counsel, the Court notes that its review
of the record, including the reports from Petitioner's
recent stay at ASH, shows that Petitioner possesses at
least a limited capacity for rational communication."
Further, the likelihood exists that this capacity can be
maximized through the use of anti-psychotic
medication. Petitioner at one point availed himself of
the opportunity to enhance his capacity for rational
thought and communication through the use of such
'* While Petitioner refused to meet with counsel] in order to
facilitate the progress of these proceedings, he did agree to meet
with mental health experts in support of his motion to determine
competency and stay the proceedings. As discussed above,
Petitioner was at times able to communicate rationally with Drs.
Scherzer and Seward.
C-29
medication. He may choose to do so again. A contrary
decision will not, however, for the reasons set forth
above, forestall these proceedings.
Based on the foregoing,
IT IS HEREBY ORDERED that Petitioner’s
Motion for Competency Determination and to Stay
Proceedings (Dkt. 102) is DENIED.
IT IS FURTHER ORDERED that Petitioner
shall file his Merits Memorandum (see Dkt. 97) no
later than June 20, 2008.
IT IS FURTHER ORDERED that if, pursuant to
LRCiv 7.2(g), Petitioner or Respondents file a Motion
for Reconsideration of this Order, such motion shall be
filed within fifteen (15) days of the filing of this Order.
The filing and disposition of such motion does not toll
the time for the filing of the Merits Memorandum.
DATED this 23" day of April, 2008.
/s/
Stephen M. McNamee
United States District Judge
D-|
APPENDIX D
Molly C. Dwyer 415-355-8000
Clerk of Court
Office of the Clerk
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
95 Seventh Street
Post Office Box 193939
San Francisco, California 94119-3939
May 23, 2008
No. 08-72188 Ernest Gonzales v. USDC-AZP
A petition for writ of mandamus and/or
prohibition has been received in the Clerk’s Office of
the United States Court of Appeals for the Ninth
Circuit. The U.S. Court of Appeals docket number
shown above has been assigned to this case. Always
indicate this docket number when corresponding with
this office about your case.
If the U.S. Court of Appeals docket fee has not
yet been paid, please make immediate arrangements to
do so. If you wish to apply for in forma pauperis
status, you must file a motion for permission to proceed
in forma pauperis with this court.
Pursuant to Rule 21(b), FRAP, no answer to a
petition for writ of mandamus andor prohibition may
be filed unless ordered by the Court. If such an order
is issued, the answer shall be filed by the respondents
within the time fixed by the Court.
D-2
A copy of the docket sheet case title page is
attached. Please take special note of the case caption,
as it may differ from that shown on the paper
submitted for filing. Pursuant to Circuit Rule 21-2, an
application for writ of mandamus and/or prohibition
shall not bear the name of the district court judge
concerned. Rather, the appropriate district court shall
be named as respondent.
Very truly yours,
Molly C. Dwyer
Clerk of Court
E-1
APPENDIX E
FILED
JUN 19 2008
Molly C. Dwyer, Clerk
U.S. Court of Appeals
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ERNEST VALENCIA )
GONZALES, ) No. 08-72188
Petitioner, )
Vv ) D.C. No.
UNITED STATES DISTRICT )
COURT FOR THE DISTRICT ) CV-99-02016-SMM
OF ARIZONA, ) D. Aiz.
Respondent, )
DORA B. SCHRIRO,
Real-party-in-interest.
ORDER
ee ee ad
Before: REINHARDT, BERZON, and M. SMITH,
Circuit Judges
The State’s expert has agreed that Petitioner,
unmedicated, is incompetent. In hght of the serious
legal issue raised and the hardships tipping sharply in
Petitioner's favor, we grant a temporary stay of the
district court’s proceedings pending resolution of
Petitioner's emergency motion for stay of the district
court’s proceedings and an emergency petition for writ
E-2
of mandamus, filed on May 23, 2008.
By July 18, 2008, Petitioner shall file a
supplemental brief, not to exceed 8400 words,
addressing, inter alia, (a) whether this Court has
collateral order jurisdiction to review the district
court’s April 23, 2008 order and, if so, (b) whether the
district court erred in denying a competency hearing
and denying a stay. Real Party in Interest shall, and
the district court may, file a supplemental response of
no more than 8400 words by August 18, 2008.
Petitioner's supplemental reply, not to exceed 4200
words, is due August 29, 2008.
John Pressley Todd, Esq.
ARIZONA ATTORNEY GENERAL'S OFFICE
1275 W. Washington Street
Phoenix, AZ. 85007
F-]
APPENDIX F
FILED
JU1 17 2008
Molly C. Dwyer, Clerk
U.S. Court of Appeals
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ERNEST VALENCIA )
GONZALES, ) No. 08-72188
Petitioner, )
v. ) D.C. No. 2:99-cev-
) 02016-SMM
UNITED STATES DISTRICT ) D Ariz.
COURT FOR THE DISTRICT _ )
OF ARIZONA, )
Respondent, )
)
DORA B. SCHRIRO, ) ORDER
Real-party-in-interest. )
)
)
Before: REINHARDT, BERZON, and M. SMITH,
Circuit Judges
Today, we file contemporaneously with this order,
an “Amended Order,” amending our June 19, 2008
order to add citations to two cases; to state that it was
Dr. Seward, he supervising psychologist at the Arizona
State Hospital where Petitioner was transferred at the
State's request for an extended mental health
F-2
assessment, who found that Petitioner, unmedicated,
is incompetent; and to extend the supplemental
briefing due dates by the number of days the State’s
motion for reconsideration was pending. With these
changes to our June 19, 2008 order, we deny the
State’s motion for reconsideration of our order granting
a temporary stay of district court proceedings.
G-1
APPENDIX G
FILED
JU] 17 2008
Molly C. Dwyer, Clerk
U.S. Court of Appeals
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ERNEST VALENCIA )
GONZALES, ) No. 08-72188
Petitioner, )
v. ) D.C. No. 2:99-cv-
) 02016-SMM
UNITED STATES DISTRICT ) D.Ariz.
COURT FOR THE DISTRICT )
OF ARIZONA, )
Respondent, )
) AMENDED
DORA B. SCHRIRO, ) ORDER
Real-party-in-interest. )
)
)
Before: REINHARDT, BERZON, and M. SMITH,
Circuit Judges
We replace our June 19, 2008 order with this
amended order:
Dr. Seward, the supervising psychologist at the
Anzona State Hospital where Petitioner was
transferred at the State’s request for an extended
G-2
mental health assessment, found that Petitioner,
unmedicated, is incompetent.
In hight of the serious legal issues raised and the
hardships tipping sharply in Petitioner's favor, we
grant a temporary stay of the district court’s
proceedings pending resolution of Petitioner’s
emergency motion for stay of the district court’s
proceedings and an emergency petition for writ of
mandamus, filed on May 23, 2008. See Lopez v.
Heckler, 713 F.2d 1432, 1435 (9% Cir. 1983) (the
standard for granting a stay is a continuum; at one end
of the continuum, a stay is warranted if the moving
party demonstrates that serious legal questions are
raised and the balance of hardships tips sharply in its
favor); see also Golden Gate Restaurant Association v.
City and County of San Francisco, 512 F.3d 1112,
1115-16 (9% Cir. 2008).
By August 1, 2008, Petitioner shall file a
supplemental] brief, not to exceed 8400 words,
addressing, inter alia, (a) whether this Court has
collateral order jurisdiction to review the district
court’s April 23, 2008 order and, if so, (b) whether the
district court erred in denying a competency hearing
and denying a stay. Real Party in Interest shall, and
the district court may, file a supplemental response of
no more than 8400 words by September 5, 2008.
Petitioner’s supplemental reply, not to exceed 4200
words, is due September 16, 2008.
H-]
APPENDIX H
FILED
JAN 5 2009
Molly C. Dwyer, Clerk
U.S. Court of Appeals
UNITED STATES COURT OF APPEALS
Real party in interest.
FOR THE NINTH CIRCUIT
ERNEST VALENCIA )
GONZALES, ) No. 08°72188
Petitioner, )
v. ) D.C. No. 2:99-cev-
) 02016-SMM
UNITED STATES DISTRICT ) D Ariz.
COURT FOR THE DISTRICT )
OF ARIZONA, )
Respondent, ) SECOND
) AMENDED
DORA B. SCHRIRO, ) ORDER
)
)
)
Before: REINHARDT, BERZON, and M. SMITH,
Circuit Judges
The district court’s independent medical expert
found that Petitioner, unmedicated, is incompetent. In
light of the serious legal issues raised and the
hardships tipping sharply in Petitioner’s favor, we
grant a temporary stay of the district court’s
proceedings pending resolution of Petitioner's
H-2
emergency motion for stay of the district court’s
proceedings and an emergency petition for wrt of
mandamus, filed on May 23, 2008. See Lopez v.
Heckler, 713 F.2d 1432, 1435 (9% Cir. 1983) (the
standard for granting a stay is a continuum; at one end
of the continuum, a stay is warranted if the moving
party demonstrates that serious legal questions are
raised and the balance of hardships tip sharply in its
favor); see also Golden Gate Restaurant Association v.
City and County of San Francisco, 512 F.3d 1112,
1115-16 (9% Cir. 2008).
Because NasA& v. Schriro, No. 06-99007, and Adams
v. Schriro, No. 07-99018, involve related issues that
are likely to affect our decision in the present case, the
proceeding in the Court of Appeals are stayed pending
resolution of Nash and Adams.
IL-1
APPENDIX I
Court of Appeals Docket #: 08-72188 Docketed: |
05/23/2008 |
| Ernest Gonzales v. USDC-AZP Termed: |
10/20/2010 |
| Appeal From: U.S. District Court for |
| Arizona, Phoenix
Fee Status: IFP Pending In COA
| Case Type Information:
} 1) original proceeding
2) mandamus/prohibition
3) null
ee
| 05/23/2008 §~ FILED EMERGENCY PETITION |
| : FOR WRIT OF MANDAMUS AND |
APPENDIX 1-24. DOCKETED |
| CAUSE AND ENTERED |
|
2 pg. 129.96 KB
APPEARANCES OF COUNSEL.
NOTIFIED REAL PARTIES IN
INTEREST OF FILING.--[Edited
05/23/2008 by BY] (BY)
—_
| 05/23/2008 r| | Filed Petitioner Ernest Valencia
a Gonzales emergency motion for
| stay of District Court proceedings
| pending determination of
| emergency petition for writ of
|
|
{
‘
|
|
mandamus asserting incompetent |
Capital Petitioner cannot proceed |
in Habeas Under Rohan ex rel.
Gates v. Woodford; served on
05/22/2008. (BY) |
05/23/2008 J~ Ly Filed Petitioner Ernest Valencia
3 Gonzales motion to proceed In
Forma Pauperis. Served on
I-2
|
06/11/2008 f-
|
| 06/12/2008 [-
06/16/2008 [-
06/19/2008 [-
2 pg. 29.11 KB
|
|
|
|
|
05/22/2008. (BY)
Received Petitioner Ernest
Valencia Gonzales supplement to
emergency petition for writ of
mandamus and emergency motion
for stay of district court
proceedings pending
determination of emergency
petition for writ of mandamus and
notice of distrcit court's denial of
permission to appeal. Served on
06/10/2008 (MT)
Filed Real Party in Interest Dora
B. Schnro 's response opposing
Emergency Motion to stay lower
court action. Served on 06/12/2008.
(PA)
Filed Petitioner Ernest Valencia
Gonzales's (Electronic and Fax)
Reply to Respondent's Response to
Emergency Petition for Writ of
Mandamus; served on 06/16/2008.
(DP-Staff/Atty) (PA)
Filed order (STEPHEN R.
REINHARDT, MARSHA S.
BERZON and MILAN D. SMITH,
JR.) The State's expert has agreed
that Petitoner, unmedicated, is
incompetent. in light of the serious
legal issues raised and the
hardships tipping sharply in
Petitioner's favor, we grant a
temporary stay of the district
court's proceedings pending
resolution of Petitioner's
emergency motion for stay of the
district court's proceedings and an
_
I-35
ee Se
07/03/2008 [-
07/03/2008 [~
07/17/2008 f-
1 pg. 24 KB
emergency petition for writ of
mandamus, filed on 5/23/08......
(See
ORDER){Faxed/Served/Phoned
Csl] (PA)
Deleted Incorrect Docket Entry.
(MT)
ENTRY UPDATED. Filed
Respondent USDC-AZP motion for
reconsideration. (DP-Staff/Atty).
Served on 07/02/2008.--[Edited
07/14/2008 by HH]: ENTRY
UPDATED to reflect the
respondent is Dora B. Schriro.
(MT)
Filed order (STEPHEN R.
REINHARDT, MARSHA S.
BERZON and MILAN PD SMITH,
JR.)Today, we file
contemporaneously with this
order, an "Amended Order,”
amending our June 19, 2008 order
to add citations to two cases; to
state that it was Dr. Seward, the
supervising psychologist at the
Arizona State Hospital where
Petitioner was transferred at the
State's request for an extended
mental health assessment, who
found that Petitioner,
unmedicated, is incompetent; and
to extend the supplemental
briefing due dates by the number
of days the State's motion for
reconsideration was pending. With
these changes to our June 19, 2008
order, we deny the State's motion
for reconsideration of our order
1-4
— oon
granting a temporary stay of
district court proceedings.
(Phoned/Faxed/Served Csi) (PA)
07/17/2008 f,- Filed AMENDED order
Li (STEPHEN R. REINHARDT,
MARSHA S. BERZON and MILAN
D. SMITH) We replace our June
19, 2008 order with this amended
order: Dr. Seward, the supervising
psychologist at the Arizona State
Hospital where Petitioner was
transferred at the State's request
for an extended mental health
assessment, found that Petitioner,
unmedicated, is incompetent. In
hght of the serious legal issues
raised and the hardships tipping
sharply in Petitioner's favor, we
grant a temporary stay of the
district court's proceedings
pending resolution of Petitioner's |
emergency motion for stay of the |
district court's proceedings and an
emergency petition for writ of
mandamus, filed on May 23, 2008.
See Lopez v. Heckler, 713 F.2d
1432, 1435 (9th Cir. 1983) (the
standard for granting a stay is a
continuum: at one end of the
continuum, a stay 1s warranted if
the moving party demonstrates |
that serious legal questions are |
raised and the balance of |
hardships taps sharply in its favor); |
see also Golden Gate Restaurant
Association v. City and County of |
San Francisco, 512 F.3d 1112, |
4
2 pg. 35.33 KB
1115-16 (9th Cir. 2008). By August
1, 2008, Petitioner shall file a
1-5
a ote = oy
= ee
ee ----- + — —_——-~. 2
supplemental brief, not to exceed
8400 words, addressing, inter alia, |
(a) whether this Court has
collateral order jurisdiction to
review the district court's April 23, |
2008 order and, if so, (b) whether
the district court erred in denying
a competency hearing and denying
a stay. Real Party in Interest shall,
and the district court may, file a
supplemental response of no more
than 8400 words by September 5,
2008. Petationer's supplemental
reply, not to exceed 4200 words, is
due September 16, 2008.
(phone/faxe/served csl) (PA)
07/18/2008 [- Received Petitioner Ernest
12 Valencia Gonzales supplemental
bnef with appendix. Served on
07/17/2008. (Per Petitioner's Csl on
7/18/08, DOCUMENT IS
DISREGARDED [see 7/17/08
Amended Order]}) (PA)
08/0/2008 [~ Filed origmal and 4 copies of
13 Petitoner Ernest Valencia
Gonmeales's supplmental brief of 36 |
pages or 8,389 words with attached
exhibits. Served on 7/31/08. (DP-
Staff/Arny) (Pa)
OB/28/2008 [~ Filed @rigmmal and copies of
! TS Respondent USDC-AZP
supplmental response bnef of 10
pages pursuant to Court's Order
filed on 7/17/08. Served
electronically om @8/28/2008. (Orag
and copies to be followed by mail.)-
(9/8/08 Rev'd Ong amd additional
copies. of USDC's Supplemental
ee me ee + ee ee ue aaa s oo
a ee = ee meen ce
= _)
1-6
09/05/2008 f-
09/16/2008 [- an
123 pg. 2.7 MB
01/05/2009 [-
Response Brief} (PA)
Filed original and 15 copies of
Respondent -RPI's supplmental
brief of 30 pages or 6692 words in
Opposition to Petiion for Writ of
Mandamus. Served on 09/04/2008.
(DP-Staff/Atty) (PA)
Submitted (ECF) Reply brief for
review and filed Motion to file
oversized bref. Submitted by
Petitioner Ernest Valencia
Gonzales. Date of service:
09/16/2008. [6647684] (LM)
Filed order (STEPHEN R.
REINHARDT, MARSHA S.
BERZON and MILAN D. SMITH,
JR.)The district court's
inéependent medical expert found
that Petitioner, unmedicated, is
imconmmpetent. In hight of the serious
legal issues raised and the
hardships tipping sharply in
Petitioner's favor, we grant a
temporary stay of the district
court's proceedings pending
resolution of Petitioner's
emergency motion for stay of the
district court's proceedings and an
emergency petition for writ of
mandamus. filed on May 23, 2008.
See Lopez v. Heckler, 713 F.2d
1432, 1435 (9th Cir. 1983) (the
standard for granting a stay is a
continuum: at one end of the
continuum, a stay is warranted if
the moving party demonstrates
that serious legal questions are
raised and the balance of
—
J-7
ques eee
- a
04/28/2010 ;~-
5 pg, 39.38 KB
05/11/2010 [-
19
4 pg. 1205 KB
| 10/20/2010 ¢-
14 pg, 428 69 KB
hardships tap sharply in its favor);
see also Golden Gate Restaurant |
Association v. City and County of
San Francisco, 512 F.3d 1112,
1115-16 (9th Cir. 2008). Because
Nash v. Schriro, No. 06-99007, and
Adams v. Schniro, No. 07-99018,
involve related issues that are
hkely to affect our decision in the
present case, the proceedings 1n
the Court of Appeals are stayed
pending resolution of Nash and
Adams. (PA)
Filed (ECF) Respondent Dora B.
Schriro Correspondence: Request
for a Ruling on the Pending 2008
Writ of Mandamus. Date of service:
04/28/2010 [7317441] (JPT)
Filed (ECF) Petitioner Ernest
Valencia Gonzales response to
motion (). Date of service:
05/11/2010. [7332598] (LM)
FILED OPINION (STEPHEN R.
REINHARDT, MARSHA S.
BERZON and MILAN D. SMITH,
JR.) The petition for a writ of
mandamus is GRANTED. FILED
AND ENTERED JUDGMENT.
[7515279] (RP)
tittiidiperarementeinmmseenenntiiieimanlials
J-]
APPENDIX J
18 U.S.C.A. § 3599
(a)(1) Notwithstanding any other provision of law to
the contrary, in every criminal action in which a
defendant is charged with a crime which may be
punishable by death, a defendant who is or becomes
financially unable to obtain adequate representation or
investigative, expert, or other reasonably necessary
services at any time either--
(A) before judgment: or
(B) after the entry of a judgment imposing a sentence
of death but before the execution of that judgment:
shall be entitled to the appointment of one or more
attorneys and the furnishing of such other services in
accordance with subsections (b) through (f).
(2) In any post conviction proceeding under section
2254 or 2255 of title 28, United States Code, seeking to
vacate or set aside a death sentence, any defendant
who is or becomes financially unable to obtain
adequate representation or investigative, expert, or
other reasonably necessary services shall be entitled to
the appointment of one or more attorneys and the
furnishing of such other services in accordance with
subsections (b) through (f).
(b) If the appointment is made before judgment, at
least one attorney so appointed must have been
admitted to practice in the court in which the
J-2
prosecution is to be tried for not less than five years,
and must have had not less than three years
experience in the actual trial of felony prosecutions in
that court.
(c) If the appointment is made after judgment, at least
one attorney so appointed must have been admitted to
practice in the court of appeals for not less than five
years, and must have had not less than three years
experience in the handling of appeals in that court in
felony cases.
(d) With respect to subsections (b) and (c), the court, for
good cause, may appoint another attorney whose
background, knowledge, or experience would otherwise
enable him or her to properly represent the defendant,
with due consideration to the seriousness of the
possible penalty and to the unique and complex nature
of the litigation.
(e) Unless replaced by similarly qualified counsel upon
the attorney’s own .wwotion or upon motion of the
defendant, each attorney so appointed shall represent
the defendant throughout every subsequent stage of
available judicial proceedings, including pretrial
proceedings, trial, sentencing, motions for new trial,
appeals, applications for writ of certiorari to the
Supreme Court of the United States, and all available
post-conviction process, together with applications for
stays of execution and other appropriate motions and
procedures, and shall also represent the defendant in
such competency proceedings and proceedings for
executive or other clemency as may be available to the
defendant.
(f) Upon a finding that investigative, expert, or other
services are reasonably necessary for the
representation of the defendant, whether in connection
with issues relating to guilt or the sentence, the court
may authorize the defendant's attorneys to obtain such
services on behalf of the defendant and, if so
authorized, shall order the payment of fees and
expenses therefor under subsection (g). No ex parte
proceeding, communication, or request may be
considered pursuant to this section unless a proper
showing is made concerning the need for
confidentiality. Any such proceeding, communication,
or request shall be transcribed and made a part of the
record available for appellate review.
(g)(1) Compensation shall be paid to attorneys
appointed under this subsection at a rate of not more
than $125 per hour for in-court and out-of-court time.
The Judicial Conference is authorized to raise the
maximum for hourly payment specified in the
paragraph up to the aggregate of the overall average
percentages of the adjustments in the rates of pay for
the General Schedule made pursuant to section 5305 of
title 5 on or after such date. After the rates are raised
under the preceding sentence, such hourly range may
be raised at intervals of not less than one year, up to
the aggregate of the overall average percentages of
such adjustments made since the last raise under this
paragraph.
(2) Fees and expenses paid for investigative, expert,
and other reasonably necessary services authorized
under subsection (f) shall not exceed $7,500 in any
J-4
case, unless payment in excess of that limit is certified
by the court, or by the United States magistrate judge,
if the services were rendered in connection with the
case disposed of entirely before such magistrate judge,
as necessary to provide fair compensation for services
of an unusual character or duration, and the amount of
the excess payment is approved by the chief judge of
the circuit. The chief judge of the circuit may delegate
such approval authority to an active or senior circuit
judge.
(3) The amounts paid under this paragraph for services
in any case shall be disclosed to the public, after the
disposition of the petition.
OPPOSITION
BRIEF
No. 10-930
_—_ —_
IN THE
Supreme Court of the United States
CHARLES L. RYAN, Director,
Arizona Department of Corrections,
Petitioner,
v.
ERNEST VALENCIA GONZALES,
Respondent.
On PETITION FOR A Writ OF CERTIORARI TO THE UNITED
States Court oF APPEALS FOR THE NINTH CIRCUIT
BRIEF IN OPPOSITION
Jon M. Sanps
FEDERAL PUBLIC DEFENDER
LETICIA MARQUEZ*
Trmotrnuy M. GABRIELSEN
OFFICE OF THE FEDERAL PUBLIC DEFENDER
FOR THE DISTRICT OF ARIZONA
407 West Congress Street, Suite 501
Tucson, Arizona 85701
(520) 879-7614
Leticia_ Marquez@fd.org
Counsel for Respondent
*Counsel of Record
<<
se ae nema em eS ore eran een
g
COUNSEL PRESS
(800) 274-3321 * (B00) 859-6859
i
QUESTIONS PRESENTED FOR REVIEW
Whether certiorari should be denied where the
Petition for Writ of Certiorari overlooks this Court’s
precedent and the Common Law and only seeks error
correction of an interlocutory decision, the foundation of
which is Judge Kozinski’s methodical Rohan* decision,
with which no circuit has disagreed.
* Rohan ex. rel. Gates v. Woodford, 334 F.3d 803 (9th Cir.
2003)
22
TABLE OF CONTENTS
QUESTIONS PRESENTED FOR REVIEW ....
pe es eee
py) OF he Ny 4)) ® - Ree
TABLE OF CITED AUTHORITIES ...........
STATEMENT OF THE CASE ................
A. District Court Proceedings..............
B. Circuit Court Proceedings............ or
SUMMARY OF THE ARGUMENT............
REASONS FOR DENYING THE PETITION ...
I. THE CASE DOES NOT MEET
THIS COURT’S STANDARDS FOR
REVIEW UNDER SUPREME
COURT RULES 10, 11,AND15.........
A. This case is not ripe for review .......
B. Petitioner does not present compelling
SE I UE 5 ccc cccccseccdeces
C. Respondent’s claims are not record-
based; this is merely a factual dispute. .
II.
Ill.
i120
Table of Contents
THE OPINION BELOW IS NOT IN
CONFLICT WITH ANY FEDERAL
STATUTES, DECISIONS OF THIS
COURT, DECISIONS OF THE
COURTS OF APPEALS OR OTHER
LONG-STANDING PRECEDENT,
INCLUDING THE COMMON LAV .....
A. The Circuit’s Opinion is consistent
with this Court’s precedent.........
1. Rees v. Peyton, 384 U.S. 312
(1966) (Rees J) and Rees v. Peyton,
386 U.S. 989 (1967) (Rees IT) .....
2. Ford v. Wainwright, 477 U.S. 399
a exbtreekaccceweussensnss
B. There is no conflict in the circuits.....
C. The Opinion is consistent with the
INL bc ctevensecéeeeesancs
D. The Opinion does not undermine the
AEDPA or 18 U.S.C. § 3599(a)(2) .....
PETITIONER’S CLAIM THAT THE
CIRCUIT COURT’S OPINION HAS
CAUSED SIGNIFICANT DELAYS
ACROSS THE CIRCUITS IS LEGALLY
AND FACTUALLY ERRONEOUS ......
Page
iv
Table of Contents
IV. CERTIORARI SHOULD NOT BE
GRANTED BECAUSE PETITIONER
FAILED TO RAISE SEVERAL POLICY
ARGUMENTS IN THE LOWER
COURT; NONETHELESS THOSE
ARGUMENTS ARE MERITLESS ...... 29
A. Petitioner’s failure to raise arguments
PE SE i kkcceccdcdéenceues 29
B. The Opinion does not create an
equal protection dilemma........... 30
C. The Opinion does not undermine
the “Next Friend” practice .......... 31
GED 6064-00 adh éeeedescisnencocenses 34
Vv
TABLE OF APPENDICES
APPENDIX A
Petitioner’s Motion for Competency
Determination and to Stay Proceedings, No.
99-CV-02016 (D. Ariz. February 23, 2006)... ..
APPENDIX B
Order Denying Motion for Reconsideration, No.
99-CV-02016 (D. Ariz. January 17, 2007).......
APPENDIX C
Status Conference Transcript, No. 99-CV-
02016, (D. Ariz. October 15, 2007) ............
APPENDIX D
Order Denying Permission to Appeal,
No. 99-CV-02016 (D. Ariz. June, 10, 2008). .....
Page
vi
TABLE OF CITED AUTHORITIES
CASES
Awkal v. Mitchell,
174 Fed. Appx. 248 (6th Cir. 2006) ............
Anderson v. Commonwealth,
ee Pe GG Es ove oesccctecececss
Anderson v. Kentucky,
ee ED 6 65 SA w RCA dead onwseeeks nas
Anderson v. Kentucky,
ee SIE é-Lccbawuceeusaseesseas
Astoria Federal Sav. & Loan Association v.
Salimino,
I a Cn De 8 a Saal nae
Brotherhood of Locomotive Firemen and
Enginemen v. Bangor & Aroostock R.R. Co.,
PI 6 oGducsbenvceacuracescess
Bolarinwa v. Williams,
ee ee ee ee Gn Ic oo ccc cctecccensess
Bracy v. Gramley,
oe nh I
California v. Rooney,
ND di i i aU aie
vit
Cited Authorities
Carter v. Bradshaw,
583 F. Supp. 2d 872 (N.D. Ohio 2008)......
Clayton v. Roper,
515 F.3d 784 (8th Cir. 2008) ..............
Crawford v. Washington,
SED We PE < occccccceoseseccesses
Cunningham v. California,
BP Ss GED ocr cccctuccceceeceses
Deck v. Missouri,
BOS UE, Ga Ge «ccc cccccsvocvcceses
Ferguson v. Sec’y for Department of Correct.,
580 F.3d 1183 (11th Cir. 2009) ............
Ford v. Wainwright,
Gee SEED ove seecuwvecscocscces
Gillespie v. U.S. Steele Corp.,
PP a DEP sok onececncessicseses
In re Gonzales,
623 F.3d 1242 (9th Cir. 2010).............
Holland v. Florida,
130 S. Ct. 2649 (2010)... cece eee eeee
viii
Cited Authorities
Holmes v. Buss,
506 F.3d 576 (7th Cir. 2007).............
Holmes v. Levenhagen,
600 F.3d 756 (7th Cir. 2010) .............
Irwin v. Department of Veterans Affairs,
GB Us SGD < ccc cccccsccccccncess
Martinez-Villareal v. Stewart,
118 F.3d 625 (9th Cir. 1997), affd,
SED Welds Ge CURD ccc ccc ccccccccccces
Mata v. Johnson,
210 F.3d 324 (5th Cir. 2000) .............
Mines v. Dretke,
118 Fed. Appx. 806 (5th Cir. 2004) .......
Murray v. Giarratano,
gO Tere ee
Nash v. Ryan,
581 F.3d 1048 (9th Cir. 2009)............
Pace v. DiGuglielmo,
BOG Uh, GE GI oc cc cccccvccccnceess
Paul v. United States,
534 F.3d 832 (8th Cir. 2008).............
ae
Cited Authorities
Pierce v. Blaine,
467 F.3d 362 (3d Cir. 2006)...............
Pollard v. United States,
ee SE OED 6 own decisis cnseeesiaane
Porter v. Singletary,
49 F.3d 1483 (ilth Cir. 1995) .............
Rees v. Peyton,
ee es ED 96 6600 6 Ki wee w an nde’s
Rees v. Peyton,
ee POD hans cand Uasécdn sowie
Rees v. Superintendent of Virginia State
Penitentiary,
Se EEE 96 Se bd sed dacawnndeaes
Rohan ex. rel. Gates v. Woodford,
334 F.3d 803 (9th Cir. 2003), cert denied,
OEP Wis BOR GED och cp cececksccessasis
Ross v. Moffitt,
Gee ED feo K cdRR ie iWadecsedéas
Rumbaugh v. Procunier,
753 F.2d 395 (5th Cir. 1985)..............
Slack v. McDaniel,
St Se OP ED 8 Ss. wh ecw de wedvaseneds
x
Cited Authorities
Page
State v. Gonzales,
EE | re ee 1
United Brotherhood of Carpenters & Joiners of
America v. United States,
GR SE Pr ee 30
Ward v. Norris,
S77 F.3d 925 (6th Cir. 2009)... .....cccccccess 19
Whitmore v. Arkansas,
a a ne weeee 31
Youakim v. Miller,
de i ce cushion eueeeaws 30
DOCKETED CASES
Blair James Nelson) v. Cullen,
No. CV 99-6859, 2010 WL 5563896
ae Gs I ceca ebucaesence 27
Gonzales v. Schriro,
No. CV-99-02016 (D. Ariz.) ............00005- 28
Hill v. Ayers, .
No. 4-94-CV-641, 2008 WL 683422
(N.D. Cal. Mawel 10, S008)... 0. ccc cccwccccece 27-28
Holt v. Woodford,
1:97-CV-06210 (B.D. Cal. Nov. 21, 2008) ....... 29
xi
Cited Authorities
Page
Jones v. Wong,
2:97-C V-02167 (E.D. Cal. Aug. 28, 2009) ....... 29
Lewis v. Ayers,
No. CIV S-02-0013, 2010 WL 364504
Se ee IS 6.6 6 6 ke hawk dec ueakes 27
McPeters v. Ayers,
1:95-CV-05108 (E.D. Cal. Sept. 18, 2007)....... 29
Millwee v. Ayers,
2:99-CV-07220 (C.D. Cal. Nov. 21, 2008) ....... 29
Rogers v. McDaniel,
No. 3:02-CV-0342, 2008 WL 820088
Se Se I I sd ch cdcescwxeenass 27
STATUTES
i ioe Sie et he ee bedeetua passim
Antiterrorism and Effective Death Penalty Act of
1996 (AEDPA), Pub. L. No. 104-132, 110 Stat.
IEP OTT ETS ee eer oes 23, 24, 25
RULES
a Ferrer ee Ter re rere Ter 5, 7, 8
RET ETEE. k a cndsanacdueeeencicucsseacentedy 5, 6
PECAN 64040 6cck Kenaccedcouandesb an ean 5, 10
rrr
Cited Authorities
Page
MISCELLANEOUS
1 Sir Matthew Hale, The History Of The
Pleas Of The Crown, 34-35 (Prof’l
ED so cae ceecueseacews 22
4 Sir William Blackstone, Commentaries
on the Laws of England, 24-25,
SE on ccc cuca ccueemennes 22
Sir John Hawles, Remarks on the Trial of Mr.
Charles Bateman (1719), reprinted in 11 State
Trials 473, 476 (T.B. Howell ed., 1811) ......... 22
]
STATEMENT OF THE CASE
Introduction And Summary Of Procedural History
A. District Court Proceedings.
Respondent was convicted of first degree murder
and sentenced to death in 1992. State v. Gonzales, 892
P.2d 838, 849 (Ariz. 1995). The Office of the Federal
Public Defender has represented Respondent since
November 30, 1999. Since that time, Respondent’s ability
to communicate rationally with counsel has incrementally
declined to the point where it has become non-existent.
While the case sat idle in the district court for a number
of years, counsel regularly attempted communication with
Respondent with little or no success.
During this time, state habeas was sought to
exhaust claims for the habeas proceedings. Pet. App. B
at 3. On April 19, 2001, the state post-conviction court
ordered an evaluation to determine whether Respondent
was competent to proceed in his state post-conviction
proceedings. Pet. App. B at 3. Ultimately, the state court
ruled that state law did not require a post-conviction
petitioner to be competent to proceed. Pet. App. B at 3.
The district court then ordered merits briefing and
evidentiary development on a number of issues the court
found were properly exhausted. Pet. App. B at 4-5. At
that point, based on their knowledge and understanding
of Respondent’s condition, habeas counsel] for Respondent
had no choice but to move for a determination of
competency pursuant to Rohan ex rel. Gates v. Woodford,
334 F.3d 803 (9th Cir. 2003). Resp’t. App. A.
2
Initially, the district court and Petitioner conceded
that Respondent had in fact “identified claims where
[Respondent] potentially will provide beneficial assistance
during briefing of the remaining issues and cited,” a claim
of judicial] bias.'! Resp’t. App. B at 12A, Resp’t. App. C at
15A.
Shortly before a Rohan hearing was to be held,
Respondent was ordered moved by the district court,
at the urging of Petitioner, to a state mental hospital
for an extensive evaluation. Pet. App. A at 3. The state
doctors agreed with Respondent’s counsel’s expert that
Respondent suffered from psychosis and was “unable to
communicate rationally for any extended period of time,
such as would be required by a legal proceeding.” Pet.
App. A at 3 (emphasis added). The district court then
inexplicably ordered additional briefing and reversed its
finding that Respondent’s claims could potentially benefit
from his assistance. Pet. App. C at 27-8. The district court
also ordered merits briefing of Respondent’s additional
claims. Pet. App. C at 29.
Respondent moved the district court for a stay of the
merits briefing and permission to appeal its decision, and
the district court denied both. Resp’t. App. D.
B. Circuit Court Proceedings.
With a merits briefing date approaching, Respondent
moved the Circuit Court for an emergency stay of the
1. Petitioner made that concession at an October 15, 2007,
hearing (“... and obviously there are some [issues] that they need
Mr. Gonzales to answer...”). Resp’t. App. C.
3
merits briefing and filed an Emergency Petition for Writ of
Mandamus requesting review of the district court’s order.
Pet. App. at I-l1. The request for a writ of mandamus
arose from a series of inconsistent district court rulings
that culminated in the denial of Respondent’s request
for a determination of competency, as set forth above.
Rather than proceeding as a nominal party, the district
court personally filed its own opposition to Respondent’s
emergency stay petition. Pet. App. H.
Citing the state hospital’s assessment that Respondent
is incompetent when unmedicated, the Circuit Court
granted Respondent’s request for a temporary stay of
the merits briefing and ordered supplemental briefing.
Pet. App. G. Respondent’s proceedings were then stayed
pending the outcome of two cases raising Rohan claims
which were later consolidated. Pet. App. F. After the
consolidated case was decided, the Circuit Court issued
the decision in this matter. Pet. App. A.
SUMMARY OF THE ARGUMENT
{Note: Although the Circuit Court cited Nash
v. Ryan, 581 F.3d 1048 (9th Cir. 2009), in its
limited decision to remand Respondent for a
determination of competency, the basis for its
decision is Judge Alex Kozinski’s unanimous
opinion in Rohan ex. rel. Gates v. Woodford,
334 F.3d 803 (9th Cir. 2003). Because Petitioner
is using this case to attack the Rohan decision
and refers to Rohan and the instant case
interchangeably, Respondent will address the
Rohan decision in this Brief in Opposition.
The Nash Opinion is inapt and nonetheless
4
irrelevant, as it addresses only the limited issue
of competency on appeal.]
Petitioner seeks to have the Court correct what it
perceives to be a legal error in an interlocutory appeal.
Yet, a final judgment could obviate the need for review, as
Respondent’s competency has yet to be determined. As is
evidenced by Petitioner’s Petition for Writ of Certiorari,
the true object of his rancor is the Rohan decision itself,
a case in which this Court has already denied review.
Woodford v. Rohan, 540 U.S. 1069 (2003).
Petitioner accuses Judge Kozinski of basing Rohan
on “flawed policy grounds, creating a right out of thin air”
that aids delay tactics, and causing disparate treatment
of the financially stable habeas petitioner. Pet. at 3, 7, 18.
Nothing however could be further from the truth. This
case involves a straight-forward application of the prior
decisions of this Court, including Rees v. Peyton, 384 U.S.
312 (1966) (Rees J), Rees v. Peyton, 386 U.S. 989 (1967)
(Rees I), and Ford v. Wainwright, 477 U.S. 399 (1986).
Petitioner presents no compelling reasons warranting
this Court’s review. In finding a right to be competent
at habeas corpus, Judge Kozinski faithfully applied well-
settled principles of habeas corpus jurisprudence and the
Common Law. The unanimous Rohan Opinion neither
conflicts with the precedent of this Court nor with the
decisions of other circuits. In addition, the impact of the
Rohan decision on capital habeas proceedings has proven
to be minimal. The Petition for Writ of Certiorari should
therefore be denied.
5
REASONS FOR DENYING THE PETITION
I. THE CASE DOES NOT MEET THIS COURT’S
STANDARDS FOR REVIEW UNDER SUPREME
COURT RULES 10, 11, AND 15.
A. This case is not ripe for review.
This Court should not accept jurisdiction because
of the possibility that Respondent may be incompetent,
without the district court first determining that question.
The Court is being asked to decide a claim that is not yet
ripe.
The Circuit Court granted Respondent’s emergency
petition for writ of mandamus and lifted the temporary
stay it had ordered of the district court’s proceedings. Pet.
App. A. (dn re Gonzales, 623 F3d. 1242 (9th Cir. 2010)).
The district court must now hold a competency hearing
to determine whether Respondent can meaningfully
communicate with counsel. No final order has been issued
in this case.
This Court very rarely grants review of a non-
final order because doing so may induce inconvenience,
litigation costs, and delay in determining ultimate justice.
Gillespie v. U.S. Steele Corp., 379 U.S. 148, 152-53 (1964).
Petitioner failed to address why this Court should take the
exceptional step of granting certiorari review of a non-
final order. Certiorari is only appropriate if a case “is of
such imperative public importance as to justify deviation
from normal appellate practice and to require immediate
determination in this Court.” Sup. Ct. R. 11; see also Bhd.
of Locomotive Firemen and Enginemen v. Bangor &
6
Aroostock R.R. Co., 389 U.S. 327, 328 (1967) (per curiam)
(denying certiorari where petitioner sought review of an
adverse court of appeals’ ruling because the case had
been remanded to the district court and therefore, was
not ripe for review). Review is also unnecessary because
this case is not far-reaching enough to be of “imperative
public importance.” Sup. Ct. R. 11.
Petitioner fears that if Respondent is incompetent that
will result in an indefinite stay of proceedings. However,
Respondent has yet to be determined incompetent. If
Respondent were found competent in the district court,
habeas proceedings would continue and this would
negate the need for any action by this Court. Not only
has Respondent not been determined incompetent, but
the district court noted that the mental health reports
offered in that court were conflicting with respect to
competency. Pet. App. at C-3. Even if Respondent is
found incompetent, review is further premature because
he would not be entitled to a permanent, indefinite stay
of proceedings. Respondent was already treated with
psychotropic medication at the state hospital, with some
success. This may indicate that even if found incompetent,
Respondent may later regain competency, allowing the
habeas proceedings to continue. Therefore, Petitioner’s
request for certiorari is based on speculation and
hypotheticals.
In sum, the specter of an indefinite stay, argued by
Petitioner, is simply too far removed from the present
litigation to justify immediate intervention by this Court.
Petitioner’s fear of an indefinite stay will only come to
fryition if Respondent is found incompetent; if the district
eourt and the Circuit Court choose not to pursue the
7
appointment of a next friend; and, if Respondent does not
regain competency. “Too many ‘ifs’ must come to pass
before this Court’s review is appropriate. California v.
Rooney, 483 U.S. 307, 313 (1987) (per curiam) (dismissing
review as improvidently granted because the State
argued too many “ifs” and “(elven if everything the
prosecution fears comes to bear, the State will still have
the opportunity to appeal such an order, and this Court
will have the chance to review it”).
The issues raised in Petitioner’s request for certiorari
are not, and may never be, ripe. Because no final order
has issued, and because the issues Petitioner now appeals
may disappear entirely once a final order is issued, this
Court’s review is premature.
B. Petitioner does not present compelling reasons
for review.
Petitioner does not present any compelling reason for
this Court to grant certiorari. Judge Kozinski’s Rohan
Opinion, upon which this decision is based, applied well-
settled principles of habeas corpus jurisprudence and the
Common Law, and did not create a conflict with decisions
frem other circuits or contravene the precedent of this
Court, or otherwise involve a question of exceptional
importance. See Sup. Ct. R. 10.
Thus, the case has not so far departed from “the
accepted and usual course of judicial proceedings” as to
call for this Court’s exercise of its supervisory power.
Sup. Ct. R. 10(a). In fact, the Rohan Opinion relied on
jurisprudence extending back to the English Common
Law for support on judicial practice in capital cases, and
8
found that the right to be competent was crucial to allow
a defendant to defend himself where the punishment was
the death penalty. 334 F.3d at 807-09.
Petitioner has presented no sound reason to distinguish
this case from the many capital cases where state officials
request error correction from this Court based solely on
their disagreement with the conclusion of a lower court.
This Court’s burden and responsibilities are too great to
review and correct every alleged misstep made by a lower
court. See Sup. Ct. R. 10. (This Court will rarely grant
review where the lower court has arguably misapplied
“a properly stated rule of law”). Otherwise, the Court
becomes just another court of appeals, contrary to its
mission. “[{This Court’s] review is discretionary and
depends on numerous factors other than the perceived
correctness of the judgment we are asked to review.” Ross
v. Moffitt, 417 U.S. 600, 616-17 (1974).
Finally, the Court need not accept this appeal because
it fails to concern an important matter of federal law that
“has not been, but should be, settled by this Court.” Sup.
Ct. R. 10(c). As set forth in Argument III infra, there are
not enough decided cases in the lower federal courts for
this claim to rise to the level of broad national significance.
C. Respondent’s claims are not record-based; this
is merely a factual dispute.
The Circuit Court ruled that although Respondent’s
claims were “record-based or legal in nature, he [was]
entitled to a stay pending a competency determination”
under Rohan. Pet. App. at A-2. The court specifically
found, at a minimum, that Respondent’s counsel could
9
benefit from Respondent’s “first-hand insight into the
earlier proceedings,” which only a competent petitioner
would be able to provide. Pet. App. at A-5. The Circuit
Court identified Respondent’s judicial bias claim as one
requiring rational communication between attorney
and client because Respondent, like Nash, had been
represented by many attorneys over time, including 11 at
trial and sentencing, he represented himself for a portion
of that time, and he was needed to explain events so
counsel would understand their “significance and context.”
Pet. App. at A-5
Regrettably, while the Circuit Court stated that federal
habeas counsel could benefit from rational communication
with Respondent with respect to his claims, all of which
the court described as “record-based or legal in nature,”
not all of Respondent’s claims fall into that category. As
noted in the Statement of the Case, supra, Respondent
demonstrated to the satisfaction of the district court
that his judicial bias claim was not solely record-based, a
point conceded by Petitioner in the district court but not
addressed in the Petition for Writ of Certiorari. Resp’t.
App. B
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