# Record and brief — Ryan v. Valencia Gonzales > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0673%3A0 ## Record - **Collection:** Supreme Court brief - **Document type:** Record and brief - **Published:** January 1, 2013 - **Citation:** 568 U.S. 57 ## Text ‘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. ——> SUMMARY OF ARGUMENT Indefinitely staying federal habeas corpus pro- ceedings based on the habeas corpus petitioner’s incompetence to assist counsel contravenes the States’ interest in the finality of their criminal convic- tions. The Ninth Circuit has improperly stayed Gonzales’s federal habeas proceedings, as well as his execution, notwithstanding the district court’s rea- soned conclusion that Gonzales’s pending claims do not require further factual development and do not require further input from Gonzales. The Constitution does not provide a right to be competent to assist counsel on federal habeas corpus review. The Ninth Circuit has nevertheless concluded that Congress gave death row inmates a statutory right to be competent to assist habeas corpus counsel and has extended that right to cases involving only a record-based review of legal] questions. The statute that the Ninth Circuit interpreted as creating a right to competency, 18 U.S.C. 3599(a)(2), does not provide such a right. Section 3599(a)(2) provides for the appointment of counsel for indigent 9 federal habeas corpus petitioners but does not ad- dress or otherwise provide for the inmate’s compe- tence. No reasoned basis supports the Ninth Circuit’s conclusion that Congress impliedly intended that death penalty habeas appeals could be stayed indefi- nitely based on the inmate’s alleged inability to assist counsel. The Ninth Circuit’s interpretation of Section 3599(a)(2) directly conflicts with this Court’s “next- friend” jurisprudence, which expressly recognizes that habeas cases can proceed notwithstanding the mental incapacity of petitioners. See Whitmore v. Arkansas, 495 U.S. 149, 165 (1990). The Ninth Cir- cuit’s interpretation also conflicts with Ford v. Wain- wright, 477 U.S. 399, 409-10 (1986), which imposes a standard for competency to be executed that requires only that the inmate understand he is being punished and why. Finally, the Ninth Circuit’s rationale cannot be reconciled with Congressional intent as evidenced by AEDPA, which was enacted to reduce delay in capital cases and to mandate greater deference to state court decisions. * ARGUMENT I. 18 U.S.C. 3599(A)(2) DOES NOT REQUIRE THAT AN INDIGENT FEDERAL HABEAS CORPUS PETITIONER BE COMPETENT TO ASSIST COUNSEL. Recognizing the Constitution does not establish a right to be competent to assist counsel, the Ninth 10 Circuit incorrectly interpreted 18 U.S.C. 3599(a)(2) as creating a right to competently assist statutorily- appointed counsel. Nothing in the text of the statute, however, supports that interpretation. Section 3599(a)(2) states only that “[iJn 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 neces- sary 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).” Section 3599(a)(2) does not reference competency. Indeed, the only reference to “competency” in Section 3599 is in subsection (e), which provides as follows: [EJach attorney so appointed shall represent the defendant throughout every subsequent stage of available judicial proceedings, in- cluding pretrial proceedings, trial, sentenc- ing, motions for new trial, appeals, applications for writ of certiorari to the Su- preme .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 proceed- ings for executive or other clemency as may be available to the defendant. (Emphasis added. ) ll The fact that Congress referenced counsel’s role in competency proceedings in subsection (e) demon- strates that representation does not depend upon the habeas petitioner’s competence. Congress cannot have intended to authorize counsel to represent an inmate in post-conviction competency proceedings only if the inmate is competent to assist counsel. Lacking textual support, the Ninth Circuit relied in Rohan on “common law tradition” for reading a competency requirement into subsection (a). See 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 compe- tence and its great practical significance in this context inform our interpretation of the statutes Congress has enacted.”). However, a court’s “task is to apply the text, not improve upon it.” Harbison v. Bell, 556 U.S. 180, 198-99 (2009) (quoting Pavelic & LeFlore v. Marvel Entertainment Group, Div. of Cadence Industries Corp., 493 U.S. 120, 126 (1989)). 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.” Connecticut Nat. Bank v. Germain, 503 U.S. 249, 253-54 (1992) (citations and internal quotation marks omitted). Thus, “[wjhen the words of a statute are unambiguous, then, this first canon is also the last: judicial inquiry is complete.” Jd. Because Section 3599 does not, by its terms, create a right to compe- tency to assist counsel, that should end the inquiry. 12 Il. THE NINTH CIRCUIT’S JUSTIFICA- TIONS FOR ITS RULE DO NOT WITH- STAND SCRUTINY. The Ninth Circuit’s reliance (in Rohan) on com- mon-law concepts of competency during and after trial is unpersuasive. Historically, the right to counsel has not been equated to a right to competency. While the trial right to counsel is found in the text of the Sixth Amendment, the right to competency at a criminal trial is derived from the Fourteenth Amendment’s Due Process Clause. Compare Gideon v. Wainwright, 372 U.S. 335, 343-45 (1963) (announcing a Sixth Amendment right to counsel] at trial) with Pate v. Robinson, 383 U.S. 375, 385 (1966) (a defen- dant is deprived of due process if state procedures are inadequate to protect against being tried or convicted while incompetent). The ability to collaterally attack a state-court judgment in federal court has no deep common-law roots or settled tradition. See Kuhlmann v. Wilson, 477 U.S. 436, 446-47 (1986) (plurality opinion) (de- tailing the history of federal habeas review). Like- wise, there are no deep common-law roots relating to post-conviction competency to assist counsel. In fact, this Court has declined to apply the common-law concept of trial competency in determining post-trial competency to be executed. See Ford, 477 U.S. at 422, n.3 (Powell, J., concurring in part and concurring in the judgment) (noting that the prevailing test in the States did not require competence to assist counsel as a prerequisite to carrying out a death sentence). 13 Thus, the Ninth Circuit’s reliance on “common law” is misplaced. Furthermore, regardless of common law relating to the right to counsel and the right to competency, “[s]tatutes should be interpreted consistently with the common law” only if the “statute ... clearly covers a field formerly governed by the common law.” Samatar v. Yousuf, 130 S. Ct. 2278, 2289 (2010). Here, a right- to-counsel statute and a common law right to compe- tency cover different fields and Congress gave no indication that by guaranteeing a right to post- conviction counsel, it intended to occupy the field in the area of competency as well. In Rohan, the Ninth Circuit also relied on Rees v. Peyton, 384 U.S. 312 (1996) (per curiam), as “sup- portling]” its interpretation of Section 3599(a). Rohan, 334 F.3d at 815. Rees, however, involved a death row inmate’s request to withdraw his federal habeas petition and forgo any further legal proceed- ings. After Rees’s counsel advised the Court that he could not conscientiously accede to Rees’s instructions because of Rees’s alleged incompetence, this Court ordered the district court to determine whether Rees had “capacity to appreciate his position and make a rational choice with respect to continuing or abandon- ing further litigation.” Jd. at 313. Because Rees did not involve competency to litigate a federal habeas petition, but rather compe- tency to withdraw a certiorari petition, its reasoning is inapplicable. A limited stay to assess competency 14 to withdraw is reasonable to move a case forward because, if the inmate is found competent, it will obviate the need for further proceedings. In contrast, a stay to assess competency to assist counsel will not move a case forward. Thus, unless an inmate’s input is essential to further the federal habeas corpus litigation, it is unreasonable to stay the proceedings. The Ninth Circuit’s conclusion that client input is essential in briefing record-based claims is similarly unpersuasive. In the appellate context, this Court has emphasized “the superior ability of trained counsel in the examination into the record, research of the law, and marshalling arguments on [the appellant’s] behalf.” Jones v. Barnes, 463 U.S. 745, 751 (1983) (quoting Douglas v. California, 372 U.S. 353, 358 (1963)). An inmate’s input will not change the record from which counsel must base his or her arguments. Thus, the Ninth Circuit’s finding in Nash that the inmate’s input was essential to the preparation of his Ninth Circuit appellate brief is unsupportable. So too, in the instant case, Gonzales’s input is not essential to the preparation of his district court merits brief. Under AEDPA, Gonzales’s merits brief- ing is limited to properly exhausted claims. See Rose v. Lundy, 455 U.S. 509 (1982) (federal habeas corpus proceedings are limited to consideration of claims that have already been presented and exhausted in state court proceedings); O’Sullivan v. Boerckel, 526 U.S. 838, 844 (1999) (state court is first forum to review claims and provide relief). And, under Cullen vu. Pinholster, 563 U.S. __, 131 S.Ct. 1388, 1398 15 (2011), review of claims (such as Gonzales’s judicial bias claim) that have been addressed on the merits in state court is limited to the record considered by the state court: Section 2254(d)(1) refers, in the past tense, to a state-court adjudication that “re- sulted in” a decision that was contrary to, or “involved” an unreasonable application of, established law. This backward-looking lan- guage requires an examination of the state- court decision at the time it was made. It fol- lows that the record under review is limited to the record in existence at that same time i.e., the record before the state court. 131 S.Ct. at 1398. Because review of Gonzales’s judicial-bias claim (as well as his other claims) is limited to the record developed in state court, the Ninth Circuit’s conclusion that Gonzales’s input is essential does not withstand scrutiny. Finally, accepting the Ninth Circuit’s reading of Section 3599 would result in disparate treatment of indigent and non-indigent defendants. Section 3599 applies only to indigent defendants. There is no corresponding provision relating to non-indigent defendants that would impliedly create a right to be competent to assist counsel. As a consequence, the Ninth Circuit’s approach compels the unjustifiable result that indigent and non-indigent death-row prisoners have different rights to be competent to assist counsel. 16 iil. THE NINTH CIRCUIT’S RULE IS INCON- SISTENT WITH THIS COURT’S NEXT- FRIEND JURISPRUDENCE. This Court has never required lower courts to stay a habeas corpus petitioner’s claims pending a finding of competency to consult with counsel. Rather, it has held that, if a petitioner is unable to litigate his own claims because of mental incapacity, a “next- friend” may pursue the litigation on his behalf. See Whitmore, 495 U.S. at 165. Congress codified that approach in 28 U.S.C. 2242, which allows a habeas petition to be filed “by someone acting” on behalf of the applicant. Thus, counsel and competence do not go hand in hand. “Next-friend” standing under Whitmore is a well- established practice. See, e.g., People v. Kelly, 822 P2d 385, 413 (Cal. 1992) (applying Whitmore and noting that an attorney representing a defendant can serve the same function as a “next-friend”); Com- monwealth v. Haag, 809 A.2d 271, 278 (Pa. 2002) (“Through a series of cases, which relied upon the reasoning of Whitmore, we recognized that our law permits a next-friend to bring a [post-conviction] action on behalf of a prisoner.”). To the extent Gonza- les has a viable claim for relief based on the existing state-court record, a stay delays relief he could oth- erwise obtain if counsel, acting essentially as a “next- friend,” briefs the issues raised in Gonzales’s pending federal habeas corpus petition. To the extent the existing record does not provide a basis for federal relief, however, the State of Arizona and Gonzales’s 17 crime victims are denied finality based solely on speculation that Gonzales is better situated than counsel to divine arguments that might justify relief. IV. THE NINTH CIRCUIT’S RULE CONTRA- VENES THIS COURT’S CASE LAW REGARDING COMPETENCY TO BE EXE- CUTED. This Court has limited a capital prisoner’s right to competency in post-conviction proceedings to an Eighth Amendment prohibition against “carrying out a sentence of death upon a prisoner who is insane.” Panetti v. Quarterman, 551 U.S. 930, 934 (2007) (quoting Ford, 477 U.S. at 409-10). Generally, this claim does not become ripe until after the first habeas corpus petition has been resolved. See Panetti, 551 U.S. at 947. The standard for competency to be exe- cuted requires only that the prisoner be aware “of the punishment [he is] about to suffer and why [he is] to suffer it,” not that he be able to assist in his own defense. 477 U.S. at 422 & n.3. (Powell, J., concurring in part and concurring in the judgment); see Panetti, 551 U.S. at 949 (stating that Justice Powell’s concur- rence in Ford is the controlling opinion). The Ninth Circuit’s rulings in Rohan, Nash, and the instant case negate the Ford standard. There is no need to reach the Ford standard if an inmate can indefinitely stay his execution on the basis of a 18 standard that requires a higher degree of competency, i.e., competence to assist counsel. Had Congress intended for Section 3599 to create not only a right to counsel, but to also preempt or supersede this Court’s competency-to-be-executed jurisprudence, it would have said so expressly. Con- gress gave no indication that, by guaranteeing a right to federal habeas counsel, it intended to occupy the field in the area of competency. Vv. THE NINTH CIRCUIT’S RULE CON- FLICTS WITH CONGRESSIONAL INTENT AS EVIDENCED BY AEDPA. In enacting AEDPA changes to 28 U.S.C. 2254, Congress limited the power of a federal court to grant an application for a writ of habeas corpus on behalf of a state prisoner. Pinholster, 131 S.Ct. at 1398; see also Harrington v. Richter, 562 U.S. __, 131 S. Ct. 770, 786 (2011); Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam). To obtain relief under AEDPA, an inmate must establish that state court resolution of his claims were “contrary to” or “an unreasonable application of” this court’s precedents, or were “based on an unreasonable determination of the facts ... in light of the evidence presented in the State court proceedings.” 28 U.S.C. 2254(d\1)-(2). And, as noted previously, under AEDPA, federal review of claims addressed on the merits in state court is limited to the record before the state court. Pinholster, 131 S. Ct. at 1398. 19 One of AEDPA’s central purposes is to reduce delay in capital cases on habeas review. Schriro uv. Landrigan, 550 U.S. 465, 475 (2007); Rhines v. Weber, 544 U.S. 269, 276 (2005); Woodford v. Garceau, 538 U.S. 202, 206 (2003); see also 18 U.S.C. 3771(b) (recognizing a victim’s independent right to be free from unreasonable delay in a federal habeas proceed- ing). An indeterminate stay pending restoration of competency to assist counsel is thus inconsistent with AEDPA. Rhines, 544 U.S. at 276. This Court has noted that, although district courts retain authority to issue stays of habeas pro- ceedings, AEDPA “circumscribe(s]” that authority. Jd. A decision to stay a habeas proceeding “must ... be compatible with AEDPA’s purposes.” Jd. This Court has further noted that “not all peti- tioners have an incentive to obtain federal relief as quickly as possible. In particular, capital petitioners might deliberately engage in dilatory tactics to pro- long their incarceration and avoid execution of the death sentence.” Jd. at 277-78. The Ninth Circuit’s rule permits just such tactics. After initiating federal habeas proceedings, an in- mate need only demonstrate an inability to assist counsel to stay those proceedings, as well as his execution, at least as long as it takes to conduct competency proceedings and perhaps indefinitely if the inmate is found to be incompetent to assist coun- sel. 20 A stay based on speculation that an inmate might have information that he is currently unable to share with counsel is illogical and is clearly incompatible with AEDPA. If, prior to becoming incompetent to assist counsel, the inmate has not communicated information that establishes a colurable claim for relief in his federal habeas corpus proceeding, the evidence remains the same as when state court proceedings concluded. Thus, there is no reasoned basis for staying the inmate’s death sentence. Mere speculation does not create a colorable claim. If, for example, a testifying witness dies after trial without having ever indicated that the testimo- ny provided at trial was inaccurate, it would be illogical to stay federal habeas corpus proceedings on the basis that the testifying witness might have changed his or her testimony had he or she been given an opportunity to do so in federal court. It is similarly illogical to stay federal habeas corpus proceedings based solely on speculation that the petitioning inmate might remember something new if given an opportunity to do so. Some rare circumstances might justify a federal district court’s limited stay based on the inmate’s alleged incompetence. For example, in cases involving an assertion of actual innocence, a stay of federal habeas corpus proceedings could potentially prevent a clear and grave miscarriage of justice absent an 21 available state court remedy. See House v. Bell, 547 U.S. 518, 537-38 (2006); Schlup v. Delo, 513 U.S. 298, 327, 331-32 (1995); 28 U.S.C. 2244(b)\(2\B). It is difficult, however, to hypothesize any other type of claim that would warrant a stay based on the in- mate’s alleged incompetence given AEDPA’s re- strictions on the types of claims and the type of evidence that can be presented on federal collateral review. A federal court’s authority to issue a stay based on alleged incompetence to assist counsel should therefore be limited to cases where the peti- tioner’s personal knowledge is essential to establish- ing actual innocence, or where a stay may serve to advance, rather than indefinitely delay, the proceed- ings, aS in a case in which an inmate attempts to withdraw his federal habeas corpus petition. 2 CONCLUSION This Court should reject the Ninth Circuit’s interpretation of Section 3599 and find that an in- mate’s competency to assist counsel is not required to carry out the limited review available under AEDPA, particularly when the claims at issue are record- based and no further evidentiary development is permitted. Accordingly, this Court should lift the * In Arizona, a prisoner can raise claims of actual innocence at any time in state post-conviction relief proceedings without regard to the rules of preclusion. See Ariz. R. Crim. P. 32.1(h). 22 emergency stay imposed by the Ninth Circuit and remand the case to the district court to resolve Gon- zales’s claims on the merits. Respectfully submitted, THOMAS C. HORNE Attorney General DaviD R. COLE Solicitor General KENT E. CATTANI Division Chief Counsel JEFFREY A. ZICK Section Chief Counsel JOHN PRESSLEY TODD Assistant Attorney General (Counsel of Record) CAPITAL LITIGATION SECTION 1275 W. Washington Phoenix, Arizona 85007 John.todd@azag.gov Telephone: (602) 542-4686 RESPONDENT'S BRIEF Supreme Court, U6. FILED JUN 20 2012 OFFICE OF THE CLERK sal 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 Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit BRIEF FOR RESPONDENT JEFFREY T. GREEN QUIN M. SORENSON STEPHANIE P. HALES JOSHUA J. FOUGERE CLAYTON G. NORTHOUSE SIDLEY AUSTIN LLP 1501 K Street, N.W. Washington, D.C. 20005 (202) 736-8000 JON M. SANDS FEDERAL PUBLIC DEFENDER DALE A. BAICH LETICIA MARQUEZ* OFFICE OF THE FEDERAL PUBLIC DEFENDER FOR THE DISTRICT OF ARIZONA 407 West Congress Street Suite 501 Tucson, Arizona 85701 Leticia_Marquez@fd.org (520) 879-7614 Counsel for Respondent July 20, 2012 * Counsel of Record ee ee ee eee ee ee WILSON-EPES PRINTING Co., INC. — (202) 789-0096 -— WASHINGTON, D. C. 20002 CAPITAL CASE QUESTION PRESENTED Whether a district court has authority to stay capital habeas proceedings when a stay is deemed essential to ensure a capital habeas petitioner's ability to communicate with and assist his or her counsel, given that 28 U.S.C. § 2251 expressly confers that authority and 18 U.S.C. § 3599 guarantees a capital habeas petitioner’s right to appointed counsel. (i) ts TABLE OF CONTENTS QUESTION PRESENTED ..................cc:eeeeeeeeeeeees TABLE OF AUTHORITIES ......................ccseeeeeees it carctcidictennnsdonnésetnesosasccesexees STATEMENT OF THE CASE...................0.0.:::004. I. II. DISTRICT COURTS HAVE BROAD DISCRETION TO STAY HABEAS PROCEEDINGS AND TO ENSURE A CAPITAL HABEAS PETITIONER’S ABILITY TO COMMUNICATE WITH IIT achiiididsneidadadeniinsinsnsnienenessnaansnesescoss A STAY IS APPROPRIATE WHEN A CAPITAL HABEAS PETITIONER'S INCOMPETENCE PRECLUDES ESSENTIAL COMMCNICATION. .............. A. The District Court’s Discretion To Stay Habeas Proceedings Is Properly Assessed By An “Essential Communication” Standard. ...................... B. The District Court’s Discretion Cannot Be Artificially Constrained To Exclude Certain Categories Of Cases. ................... 1. That A Claim May Be Described As “Record-Based” Or “Lega) In Nature” Does Not Render Communication Between Counsel And Client Meaningless Or Non-Essential In All i cescdietesene 13 20 21 23 23 TABLE OF CONTENTS—Continued Page 2. That A “Next Friend” Might Be Appointed Does Not Render Communication Between Counsel And Client Meaningless Or Non- Essential In All Cases ........................-- 28 C. The “Essential Communication” Standard Is The Most Practical And Te eM ELT eA NEM 30 Ill. A STAY WAS PROPERLY ENTERED IN , Renee he ee re ee 35 SDE ‘cendensnicnnniasinininisanpnsncnincenimmiiainiiiniai 40 iV TABLE OF AUTHORITIES CASES Page Card v. Hardison, No. 1:93-cv-00030 (D. INI, IIE, SII ccs iicdndcsaegennbennasnnsounete 33 Centobie v. Campbell, 407 F.3d 1149 (11th ARERR nomen eR ae a ee serene 29 Cullen v. Pinholster, 131 S. Ct. 1388 REINER Eee sancc ee wee Me See RD Ae SOAS 24, 25 Dusky v. United States, 362 U.S. 402 ETERS Air rere ere eRe ene 21 Ferguson v. Secretary for Dep’t of Corr., 580 F.3d 1183 (11th Cir. 2009)................0.0.0... 33 Ford v. Wainwright, 477 U.S. 399 (1986)... 21, 22 Grant v. Workman, No. 5:10-cv-00171 (W.D. Okla. June 1, 2012).............0000000000.. 32 Hill v. Calderon, No. 4-94-CV-641 (N.D. PS SS eee em 32 Holmes v. Buss, 506 F.3d 576 (7th Cir. EN ane NaC NEE E NE aE ae 35, 36, 37 Holt v. Woodford, No. 1:97-cv-06210 (E.D. ly a aii csersnersicteninitaaitiaieacenaeaeaasiin 32, 33 Jones v. Barnes, 463 U.S. 745 (1983) .......... 27 Jones v. Wong, No. 2:97-cv-02167 (E.D. - REESE RS REUER ESC rue renmenmne 33 Lisle v. McDaniel, No. 2:03-CV-1005 (D. SI, SI TR i ieee ecenetrlaaiete 33 Martel vy. Clair, 132 S. Ct. 1276 esata lnaia ties inieiiiiteraiaiadiaieilaaa 1, 10, 11, 19 Martinez v. Ryan, 132 S. Ct. 1309 (2012)... 22, 25 McFarland v. Scott, 512 U.S. 849 (1994) 1, 10, 13, 14, 15, 16, 18, 19, 21, 23, 26, 28 McNally v. Hill, 293 U.S. 131 (1934)........... 17 McPeters v. Ayers, No. 1:95-cv-05108 (E.D. I 33 Miller v. Fenton, 474 U.S. 104 (1985).......... 27 Vv TABLE OF AUTHORITIES—continued Page Millwee v. Ayers, No. 2:99-cv-07220 (C.D. a aarti 33 Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272 (1998) (opinion of O’Connor, J.). 16 Panetti v. Quarterman, 551 U.S. 930 EET ES Een nner nema TEE 21, 22, 34 Paul vy. United States, 534 F.3d 832 (8th Sa TTI nsschaicssindnieetbhidinigesteiealiemeieimaeenebainaniniubinieteas 33 Pennsylvania vy. Finley, 481 U.S. 551 SETI ichesichdethiem eeliidaeheind tindilli cieataeiatonda 22 Rees v. Peyton, 384 U.S. 312 (1966)............ 19, 27 Rees v. Peyton, 386 U.S. 989 (1967)............. 14 Rhines _ v. Weber, 544 US. 269 SS Reeerenn ones ane nme nne 13, 18, 19, 27 Ring v. Arizona, 536 U.S. 584 (2002) .......... 5 Rogers v. McDaniel, No. 3:02-cv-0342, 2008 WL 820088 (D. Nev. Mar. 24, 2008)......... 34 Rohan ex rel. Gates v. Woodford, 334 F.3d DO I a elias 18, 29 Schriro v. Summerlin, 542 U.S. 348 (2004) 5 Sell v. United States, No. 02-5664, 2003 WL 176630 (U.S. Jan. 22, 2003)............... 32 Stanley v. Calderon, No. 2:95-cv-1500 (E.D. Rs a I cata iaciacienienaiiaieleiciabalaahat 33 Sullivan v. Louisiana, 508 U.S. 275 (1993) 37 Tumey v. Ohio, 273 U.S. 510 (1927)............ 37 White v. Ryan, No. 08-cv-08139 (D. Ariz. I I cea ahaa hace aia linlaicins 32 Whitmore v. Arkansas, 495 U.S. 149 (1990) 28 Wiggins v. Smith, 539 U.S. 510 (2008)........ 24 STATUTES 18 U.S.C. § 3599.0... 10, 13, 15, 18 vil TABLE OF AUTHORITIES—continued Page I na criciniaiasininaneelienens 21 28 U.S.C. § B251 ...........0000-..- 10, 14, 15, 28 28 U.S.C. § 2254(b)(1)(B)(il)......... 000. 25 Antiterrorism and Effective Death Penalty Act of 1996 (““AEDPA”), Pub. L. No. 104- hs EG. TIED cxcnnnesnosineiuninensensacbinuien 10 Pub. L. No. 109-177, 120 Stat. 192, 222 SIT intact igitataieiiditbonasiianedpdinadadubiegeniniadade 15, 18 LEGISLATIVE MATERIAL 141 Cong. Rec. H4086 (daily ed. Feb. 8, STITT iensiniatcieietaeiiiaatasiniiaiieniaiilldietetlinnendiidaitebenabeiedsin 19 H. R. Rep. No. 109-333 (2005) ..................... 15 OTHER AUTHORITIES 4 William Blackstone, Commentaries *24- ESSE ANE Sea ne Ae ene Oe 17 American Bar Association, Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases, 31 Hofstra L. Rev. 913 (2003)................... 26 American Bar Association, Model Code of Profil Conduct R. 1.4 (Communication).... 26 Gary B. Melton, et. al., Psychological Evaluations for the Courts: A Handbook for Mental Health Professionals and Lawyers (2d ed. 1997) ...........cccccscccsescecesees 33 L. Elizabeth Chamblee, Time for a Legislative Change: Florida’s Stagnant Standard Governing Competency for Execution, 31 Fla. St. U.L. Rev. 335 IESE SIRO TE TER SE DT PTTL LOOTED 33 vil TABLE OF AUTHORITIES—continued Page Report by U.S. Justice Dep’t Bureau of Justice Statistics, “Capital Punishment 2010: Statistical Tables” (Dec. 20, 2011).. 32 Richard Rogers, Clinical Assessment of Malingering and Deception (2d ed. 1997) 33 INTRODUCTION District courts have long held the authority, by statute and at common law, to stay proceedings on a pending petition for writ of habeas corpus, as well as related state judgments of sentence, to ensure the integrity of those proceedings and enable full and fair presentation of claims. Capital habeas petitioners likewise have long enjoyed an “enhanced” right to counsel, see Martel v. Clair, 132 S. Ct. 1276, 1284 (2012), which guarantees not only a right to an assigned attorney but also “necessarily includes a right for that counsel meaningfully to research and present a defendant’s habeas claims,” McFarland v. Scott, 512 U.S. 849, 858 (1994). The standard applied by the court of appeals in this case — that a stay of habeas proceedings is proper when a capital habeas petitioner's incompetence renders him or her incapable of _ essential communication with counsel — is a _ natural byproduct of these settled principles. It leaves discretion to enter a temporary stay with the district court, where it belongs, see McFarland, 512 U.S. at 858, and does not unduly hasten the incompetent habeas petitioner's death sentence when communication with counsel is vital to the presentation of his or her claims. Contrary to the characterization of Petitioner (hereafter “the State”), this limited and narrow standard is neither alarming nor revolutionary; it simply makes sense. It is the State’s proposed restriction that would work a radical restructuring of traditional habeas practice. That rule would broadly prohibit a district court from ever staying habeas _ proceedings, notwithstanding the court’s determination that a stay is warranted to ensure the capital habeas petitioner’s 2 right to counsel. Under the State’s proposed rule, merely because a claim may be deemed “record- based” or “legal in nature” or because a “next friend” might be appointed, the district court is categorically barred from exercising its discretion to issue a stay. There is no support, either in federal statutes or elsewhere, for these proposed restrictions, and they would in any event be wholly unworkable in application. Even if the State believes (without apparent reason) that constraining a district court’s discretion in this manner would somehow “improve upon” habeas practice, Pet. Br. 11, neither federal habeas law nor this Court’s precedent contemplate or permit such restrictions. Free from the distractions, this is a simple case. The court of appeals set forth the proper standard for whether a stay of habeas proceedings is warranted: when a capital habeas petitioner’s incompetence precludes communication with counsel that is “essential to counsel's ability to meaningfully prosecute a capital habeas claim.” Pet. App. A5 (emphasis added, internal quotation marks omitted). The court of appeals correctly applied that standard to find tuat a temporary stay (pending competency proceedings) was warranted because the capital habeas petitioner in this case, Ernest Valencia Gonzales, appeared to be incompetent and unable to engage in essential communication with his lawyers. Pet. App. Al-A9. There is no reason to question this straightforward application of the appropriate standard, and indeed, neither the State nor its amici offer any basis to do so. The decision below should be affirmed. 3 STATEMENT OF THE CASE For more than a decade, since November 1999, Mr. Gonzales and his counsel have sought to press his claims for habeas relief in the federal courts. Pet. App. A2-A4, B1-B7, C1-C7. In early 2006, following the conclusion of related state court proceedings, and after Mr. Gonzales had spent nearly 20 years in prison on death row, his mental health — which had been of serious concern since at least 2000 — deteriorated to the point that he could no longer communicate rationally with his appointed attorneys and could not provide to them “essential” information and insight regarding his claims.! Pet. App. A3, A5. Mr. Gonzales’s attorneys then moved for a temporary stay of proceedings to allow for a competency determination which would include a_ psychiatric assessment. Pet. App. A2-A3; Mot. for Competency Determination & to Stay Proceedings, Gonzales v. Schriro, No. 99-cv-02016 (D. Ariz. Apr. 17, 2006), ECF No. 102. The district court initially agreed to hold a competency hearing but later denied that request on the ground that it lacked authority to grant it. Pet. App. B9, C27-C28. That holding, later reversed by the Ninth Circuit, is at issue here. 1. Over the course of the state trial and sentencing proceedings, Mr. Gonzales had been represented by nearly a dozen different attorneys at different times. Pet. App. A5. For part of the trial 1 The district court asserted that Mr. Gonzales’s “incompetence arose several years after he had filed his amended petition.” Pet. App. C28. This is not the case. Rather, appointed federal habeas counsel raised concerns about Mr. Gonzales’s competence soon after representation commenced. See Mot. for Competency Determination & to Stay Proceedings & Attachments, Gonzales v. Schriro, No. 99-cv-02016 (D. Ariz. Apr. 17, 2006), ECF No. 102; Resp. Br. in Opp. 1; Pet. App. B3. 4 proceedings he had even represented himself — although the state courts later, in the post-conviction stage, determined that he was incompetent to do so based on a series of mental health reports from three different experts, one of them court-appointed, all indicating that Mr. Gonzales was psychotic and unable either to assist counsel or to represent himself. See Supp. Br. in Support of Pet. for Writ of Mandamus 38-40, Gonzales. v. Schriro, No. 08-72188 (9th Cir. July 31, 2008); Supp. Reply Br. in Support of Pet. for Writ of Mandamus 6, Gonzales. v. Schriro, No. 08-72188 (Sth Cir. Sept. 16, 2008) (quoting state court's finding that, “pursuant to [the court-appointed expert's] finding, [Mr. Gonzales] is incompetent and cannot represent himself in this [state post- conviction] proceeding”); see also Mot. for Competency Determination & to Stay Proceedings, supra. Ultimately, however, the state courts ruled that state law did not require a post-conviction capital habeas petitioner to be competent to proceed. See Resp. Br. in Opp. 1; Pet. App. B3. These habeas proceedings began after Mr. Gonzales was convicted of first-degree murder in 1991 and, thereafter, sentenced to death. Pet. App. A2. He appealed that judgment on a number of grounds, including a claim that the presiding trial judge had been biased against him. Pet. App. A5, C1-C2, C12- C16. The Supreme Court of Arizona affirmed the conviction and sentence in 1995. Resp. Br. in Opp. 1 (citing State v. Gonzales, 892 P.2d 838, 849 (Ariz. 1995)). Mr. Gonzales then filed state petitions for post-conviction relief, which were eventually denied 5 in 1999. Pet. App. B3. That same year, Mr. Gonzales initiated federal habeas proceedings.? In this period and thereafter, Mr. Gonzales experienced continuing decline in his mental] health. See Pet. App. A3. He no longer understood his legal situation, and particularly the impending sentence of death, and he grew increasingly and irrationally suspicious of his appointed counsel. See Pet. App. A3, C2; see also Supp. Br. in Support of Pet. for Writ of Mandamus, supra, at 30-36. From 2003 through 2006, Mr. Gonzales refused dozens of attempted visits from his counsel and their staff —- at one point accusing them of poisoning his food. Pet. App. C2; Emergency Pet. for Writ of Mandamus 24, Gonzales. v. Schriro, No. 08-72188 (9th Cir. May 22, 2008). He also sent numerous letters and petitions to both the state and federal 2 A request for appointment of habeas counsel was filed in the District Court for the District of Arizona in November 1999. Pet. App. Al, Cl. The district court appointed the Office of the Federal Public Defender to represent Mr. Gonzales soon thereafter, pursuant to 18 U.S.C. § 3599 (then 21 U.S.C. § 848(q)). Pet. App. C1. An amended habeas petition was filed in 2000 setting forth notice of the claims without addressing the merits, per court order. Gonzales v. Schriro, No. 99-cv-02016 (D. Ariz. July 17, 2000), ECF No. 28. The case was stayed to allow Mr. Gonzales to return to state court to exhaust some of the claims raised in the petition. Pet. App. A2, B3-B4. The district court eventually ruled that certain claims were procedurally barred before ordering briefing on the merits. This case (as well as other capital habeas cases pending in district court) was stayed pending litigation as a result of Ring v. Arizona, 536 U.S. 584 (2002), and Schriro v. Summerlin, 542 U.S. 348 (2004). The district court subsequently dismissed certain claims on procedural grounds, but the merits of Mr. Gonzales’s claims have not yet been addressed in pleadings or briefs. 6 courts starting in 2001,3 which evidence what one court-appointed mental health expert, Jack Potts, M.D., described as “delusion[{s] regarding electronic eavesdropping devices,” “paranoif[a] regarding his environment,” and “thought processes [that] are at times quite disordered.”4 See Supp. Br. in Support of Pet. for Writ of Mandamus, supra, at 38-40; see also Supp. Reply Br. in Support of Pet. for Writ of Mandamus & Attachments, supra, at 4-5. 3 See, e.g., Supp. Reply Br. in Support of Pet. for Writ of Mandamus, supra, at Attach. 1, Ex. H (“Petitioners Petition Requesting To Be A Member (people's) Of the Aztec etc., Tribe’s, customs, etc., and Recognized As the Same Within The United States in Addition to the U.S. Constitution”). As reflected in his written letters and petitions, Mr. Gonzales also believed he was “attached through science technology” and that “studies or projects [were] being held or conducted upon [him]” without his consent. Jd. at Ex. A at 1. He wrote that he had “been through 80 much pressure mentally with confusion, deception through very evil and wicked (twisted) ways,” id. at Ex. A at 2, and believed he was connected to the Department of Corrections through “a telephonic, science monitoring device, in which prisoners, attorneys, police, prison officials, civilians etc., are attached to [his] hearing daily,” id. at Ex. G at 2. He also believed his “thoughts, imaginations, [and] fantasies” were being stolen. Jd. at Ex. H. at 2. 4 Mr. Gonzales was identified with schizotypal traits more than 25 years ago by the Arizona Department of Corrections. It appears, however, that the State did not attempt to provide any treatment to Mr. Gonzales until 2007—more than 16 years after the date of his incarceration, and only after the district court had granted an evidentiary hearing in these habeas proceedings on the question of his competency. Emergency Pet. for Writ of Mandamus, supra, at 17; Reply Br. in Support of Pet. for Writ of Mandamus 15, Gonzales. v. Schriro, No. 08-72188 (9th Cir. June 16, 2008). Thus, the deterioration of Mr. Gonzales’s untreated condition over the past quarter-century, since the State first identified it, does not result from dilatory tactics or refusal. 7 2. In January 2006, after the Ring/Summerlin litigation was settled for Arizona capital habeas petitioners, see supra, note 2, the district court directed the parties to submit briefs on the merits of the claims. Soon thereafter, Mr. Gonzales’s counsel moved to stay the proceedings pending a competency determination. Pet. App. A2-A3. The motion recounted counsel’s efforts to communicate with Mr. Gonzales, and explained that counsel’s inability to speak with him — and his apparent inability to understand counsel — precluded counsel from addressing evidentiary and other issues essential to presentation of the claims. Pet. App. A2-A3; Resp. App. (1A-10A). Among others, the claims of judicial bias could not be fully assessed without information and insights from the trial environment, including off-the-record events and exchanges, that only Mr. Gonzales could offer. Pet. App. A5-A6. Both the State and the district court initially agreed that “obviously there are some [issues] that {counsel} need Mr. Gonzales to answer.” Transcript of Status Hearing Proceedings, Gonzales v. Schriro, No. 99-cv-02016 (D. Ariz. Oct. 23, 2007), ECF No. 166 (statement of the State)); see also Resp. Br. in Opp. 2 (district court recognizing there are “claims where [Mr. Gonzales) potentially will provide beneficial assistance during briefing of the remaining issues” (emphasis in original)). The court cited as an example Mr. Gonzales’s claim of judicial bias. See id. The district court, accordingly, ordered the parties to submit updated expert reports on Mr. Gonzales’s mental health and, when those reports disclosed “reasonable grounds” to suspect a _ psychiatric 8 problem, scheduled an evidentiary hearing.> Order, Gonzales v. Schriro, No. 99-cv-02016 (D. Ariz. Dec. 11, 2006), ECF No. 126; see also Pet. App. B5; Resp. Br. in Opp. 2. It also directed, at the State’s request, that Mr. Gonzales be transferred to a State hospital for an extended mental health evaluation. That evaluation resulted in a report concluding that Mr. Gonzales “[has}] suffered from 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.” Pet. App. A3, C4-C6. The scheduled competency hearing never occurred, however. While the district court credited the State hospital’s psychiatric report, it determined in a written order that it lacked discretion to grant a stay, even if Mr. Gonzales was incompetent, because Mr. Gonzales’s “properly-exhausted claims are record- based and/or resolvable as a matter of law.” Pet. App. A2, C27-C28. The district court therefore denied the stay request, and ordered proceedings to continue notwithstanding appointed counsel’s inability to communicate with Mr. Gonzales about his claims. Pet. App. C29; Resp. Br. in Opp. 2. 3. Counsel thereafter filed in the Ninth Circuit, on May 23, 2008, an emergency motion for stay of the district court's proceedings and an emergency petition for writ of mandamus. Pet. App. D1, [1. 5 The district court also denied the State’s subsequent motion for reconsideration, rejecting the State’s argument that Mr. Gonzales had not demonstrated that his assistance was necessary for counsel to complete the merits briefing on his remaining claims. State’s Mot. for Reconsideration, Gonzales v. Schriro, No. 99-cv-02016 (D. Ariz. Dec. 21, 2006), ECF No. 127; Order, Gonzales v. Schriro, No. 99-cv-02016 (D. Ariz. Jan. 17, 2007), ECF No. 128. 9 That motion requested an order directing the district court to issue a temporary stay of proceedings, hold a hearing, and make a finding on the issue of Mr. Gonzales’s competence — and then, if necessary, exercise its discretion to determine whether a stay should issue. See Emergency Pet. for Writ of Mandamus, supra. The court of appeals granted mandamus relief. Pet. App. A9. Rejecting the district court’s analysis, it held that federal courts have discretion tv siay habeas proceedings, notwithstanding that a claim may be described as “record-based,” and such discretion is properly exercised when a capital habeas petitioner becomes incompetent to communicate with his or her counsel and communication is “essential” to presentation of the claims. Pet. App. Al-A9. Because the record in this case supported a finding that Mr. Gonzales was incompetent, and it appeared that communication between him and his counsel would be essential to a full assessment and effective presentation of at least some of his claims — in particular, the claim of judicial bias® — the court of appeals determined that a temporary stay of proceedings, pending determination of Mr. Gonzales’s competency, should issue. Jd. 6 Although the court of appeals focused primarily on the judicial bias claim, habeas counsel also argued that Mr. Gonzales’s insight and institutional knowledge were necessary to address whether the trial court improperly permitted the victim to make a courtroom identification of Mr. Gonzales and to remain in the courtroom at key points in the trial, and whether the trial court improperly relied on pecuniary gain and the creation of grave risk of harm to another as aggravating factors. Brief on Implications of Present Incompetency on Rohan Proceedings, Gonzales v. Schriro, No. 99-cv-02016 (D. Ariz. Jan 10, 2008), ECF No. 184. 10 SUMMARY OF ARGUMENT A stay of federal capital habeas proceedings is proper when a petitioner’s incompetence leaves him or her unable to communicate with counsel and such communication is essential to the prosecution of habeas claims. Neither the State nor its amici provide any basis for stripping a district court's authority to grant a stay if a claim might be described as “record-based” or “legal in nature,” or when a “next friend” might be appointed. Likewise, they offer no reason to doubt that a stay was warranted in this case based on the findings below. 1. District courts may exercise broad discretion to stay habeas proceedings including a state’s death sentence. 28 U.S.C. § 2251. Federal statutes likewise afford capital habeas petitioners an “enhanced” right to qualified legal counsel, Martel, 132 S. Ct. at 1284, which this Court has read to include “a right for that counsel meaningfully to research and present a defendant's habeas claims,” McFarland, 512 U.S. at 858; see also 18 U.S.C. § 3599. These two principles, taken together, leave no room for doubt that a district court has discretion to stay habeas proceedings when appropriate, in its view, to guarantee a capital habeas petitioner a “meaningful” right to counsel. McFarland, 512 U.S. at 858. Nothing in the Antiterrorism and Effective Death Penalty Act of 1996 (““AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214, compels, or even supports, a contrary result. That statute does not insist that concerns over finality and speedy resolution trump all other interests, as the State and its amici assert, and nowhere does it reveal an intent to undermine a district court’s traditional discretion to enter stays or a capital habeas petitioner's right to meaningful 11 assistance of counsel. Quite the opposite, given that AEDPA now renders a capital habeas petitioner’s first petition his or her singular opportunity to secure relief in federal court, it is all the more necessary, as this Court has recognized, to ensure that the petitioner's rights are fully protected. Respecting a courts traditional discretion to stay habeas proceedings “in the interests of justice” to protect the petitioner’s ability to communicate with counsel is fully consonant with that goal. See Martel, 132 S. Ct. at 1287. 2. Consistent with these principles, the court of appeals correctly held that a stay is proper if communication between the capital habeas petitioner and his or her counsel is impossible due _ to incompetence but would be “essential to counsel's ability to meaningfully prosecute’ [the] habeas claims.” Pet. App. A5. This standard comports with other competency-based protections afforded during trial and at the time of execution, and it strikes the right balance in the habeas context. The State, however, urges a rule that would do the opposite. It contends that district courts should be barred from exercising their discretion to enter a stay of habeas proceedings when claims may be described as merely “record-based” or “legal in nature,” or when a “next friend” might be appointed. Not one of these proposals is supported by statute or this Court’s precedent, and none is consistent with traditional habeas practice. Such restrictions would require courts to engage in artificial line-drawing that not only would be arbitrary, denying relief to similarly situated capital habeas petitioners merely because one individual’s claims might be deemed more “record-based” than another’s, but almost certainly would prove unworkable in practice. Such 12 distinctions — among them, for instance, questions of fact, questions of law, and mixed questions of law and fact — already frustrate litigants and courts in a wide variety of legal contexts. The standard applied below, permitting a stay when the district court deems that communication is essential between an incompetent capital habeas petitioner and his or her counsel, avoids these problems. It allows courts to take into account the unique circumstances of each case and exercise their discretion to issue or to deny a stay based upon all relevant considerations, which often include first- hand observation of the petitioner. Experience, moreover, dispels the State’s unfounded fears that the standard will pose a risk of abuse or indefinite delays in future cases, as the Solicitor General recognizes. 3. A stay was warranted in this case because Mr. Gonzales is incompetent and unable to communicate with counsel according to multiple psychiatric assessments — including court-appointed experts — and his participation is essential to the prosecution of his habeas claims. In particular, his claim of judicial bias depends especially upon his ability to communicate; his appointed federal habeas attorneys were new to the case, and no one but Mr. Gonzales could properly assist them in scouring the record, placing a first-hand gloss on it, and developing a full and complete picture of what happened. There is no basis, apart from the conclusory assertions of the State and the Solicitor General, to disturb this holding. Stays of capital habeas proceedings as a result of incompetence are sure to be infrequent both because of the high bar set in incompetency proceedings and the “essential communication” standard recognized 13 below. Here, however, the standard was satisfied, and temporary postponement was thus entirely proper. The decision below should be affirmed. ARGUMENT I. DISTRICT COURTS HAVE BROAD DISCRETION TO STAY HABEAS PROCEEDINGS AND TO ENSURE A CAPITAL HABEAS PETITIONER’S ABILITY TO COMMUNICATE WITH COUNSEL. The State and the Solicitor General argue that the federal habeas right-to-counsel provision, 18 U.S.C. § 3599(a)(2), should not be interpreted to create a “right to competence,” with an associated “right ... to a stay of [habeas] proceedings if [the capital habeas petitioner] is not competent to assist his counsel.” U.S. Br. 2; accord Pet. Br. 3-4. However, that is not the question presented in this case. The issue is whether courts have authority to issue a stay, not whether capital habeas petitioners enjoy a freestanding “right to competence,” or what the contours of such a right may be. The Court need not reach that question in order to uphold the discretionary, and temporary, stay of proceedings issued in this case. Accord McFarland, 512 U.S. at 858 (“This conclusion by no means grants capital defendants a right to an automatic stay of execution. Section 2251 does not mandate the entry of a stay, but dedicates the exercise of stay jurisdiction to the sound discretion of a federal court.”). 1. Federal courts indisputably have discretion to stay proceedings related to a pending petition for writ of habeas corpus, including a state sentence of death. That discretion, traditionally recognized as within a court’s inherent authority, e.g., Rhines v. Weber, 544 14 U.S. 269, 275 (2005) (citing Landis v. N. Am. Co., 299 U.S. 248, 257 (1936)); Rees v. Peyton, 386 U.S. 989 (1967), was codified by federal statute: A justice or judge of the United States before whom a habeas corpus proceeding is pending, may ... stay any proceeding against the person detained in any State court or by or under the authority of any State for any matter involved in the habeas corpus proceeding. 28 U.S.C. § 2251(a)(1) (emphasis added). This provision is the necessary starting point for any assessment of the scope of a district court’s discretion to stay habeas proceedings. Notably, it states no limitation on the court’s authority, either with respect to the nature of the case or reason for the stay, but instead “dedicates the exercise of stay jurisdiction to the sound discretion of a federal court.” McFarland, 512 U.S. at 858. The statute also expressly contemplates issuance of a stay to ensure that a capital habeas petitioner is afforded the benefit of consultation with counsel. While subsection (a)(1) of § 2251 authorizes issuance of a stay after a habeas petition has been filed and is pending, subsection (a)(3) extends that same authority to proceedings before a petition is filed in one particular circumstance: “[ijf a State prisoner sentenced to death applies for appointment of counsel pursuant to [18 U.S.C. §] 3599(a)(2) ... that court may stay execution of the sentence of death [for up to] 90 days after counsel is appointed...” 28 U.S.C. § 2251(a)(3). This provision establishes, beyond doubt, that the general stay jurisdiction conferred by 28 U.S.C. § 2251(a)(1) includes authority to issue a stay of execution to ensure that a capital habeas petitioner 15 has an adequate opportunity to obtain representation and that counsel, in turn, has a “meaningful[ }’ opportunity “to research and present a defendant's habeas claims.” McFarland, 512 U.S. at 857-58.’ There is no reason, and certainly no basis in the statute, to preclude a court from exercising this authority when the capital habeas petitioner's inability to consult with counsel arises not from financial indigence, as in McFarland, but rather from mental incapacity. 2. That district courts have discretion to stay proceedings in these situations is independently confirmed by 18 U.S.C. § 3599. That section, incorporated by reference in 28 U.S.C. § 2251(a)(3), “srants indigent capital defendants a mandatory right to qualified legal counsel.” McFarland, 512 U.S. at 854. It also sets forth specific qualifications that an appointed attorney must generally possess, including experience handling felony trials and appeals within the federal system. 18 U.S.C. § 3599(b)-(e). This Court held in McFarland that the provision of counsel pursuant to 18 U.S.C. § 3599 would be rendered largely inconsequential if it did not include “a mnght for that counsel meaningfully to research and 7 Subsection (a)(3) of 28 U.S.C. § 2251 was, in fact, enacted in response to McFarland. H. R. Rep. No. 109-333, at 109-10 (2005). That opinion interpreted the statute to authorize district courts to issue a pre-habeas petition stay of execution, even though the provision did not then explicitly provide such authority, in order to vindicate the capital habeas petitioner's right to counsel conterred by 18 U.S.C. § 3599(a)(2) (then 21 U.S.C. § 848(q)(4)(B)). See McFarland, 512 U.S. at 857-58. Subsection (a)(3) expressly conferred that authority, and imposed limitations on the length of the stay. See Pub. L. No. 109-177, 120 Stat. 192, 251 (2006). 16 present a defendant's habeas claims,” and therefore § 3599 must be interpreted to include that right. 512 U.S. at 858. The same must be said for counsel’s ability to communicate with his or her client. Appointment of counsel offers no real benefit to a capital habeas petitioner unless that counsel has a “meaningful[ ]” opportunity to communicate and consult with the client to develop and assess the claims to be presented on the client’s behalf in hight of the client’s insights and views. Jd. In other words, the right to counsel encompasses the capacity to communicate. ? When a capital habeas petitioner's incompetence renders that communication impossible, the right of representation expressly guaranteed by § 3599 is jeopardized, as are the fairness and integrity of the habeas proceedings. In those rare and limited circumstances, district courts can and should (subject to discretionary considerations discussed below, infra pp. 20-30) issue a stay of proceedings to fulfill the statutory promise of representation. Recognition of this authority is consonant with constitutional guarantees and common law practice. While the Sixth Amendment does not of its own force grant a general right to counsel in all post-conviction proceedings, other constitutional provisions — such as, among others, the Fifth Amendment — do offer some protection for capital habeas petitioners, and should at the least prohibit execution of a sentence against a petitioner who is arbitrarily denied safeguards otherwise available to similarly situated individuals. See, e.g., Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272, 289 (1998) (opinion of O’Connor, J.). Further, it was well recognized at common law that, if a person becomes insane after trial and judgment, and therefore unable to press a 17 claimed defense, execution must be stayed. See, e.g., 4 William Blackstone, Commentaries *24-25 (1769) (“{I]f, after judgment, he becomes of nonsane memory, execution shall be stayed: for peradventure, says the humanity of the English law, he might have alleged something in stay of judgment or execution.”).® Particularly in light of these constitutional and common law principles, it is eminently reasonable to construe the statutory provision for counsel in 18 U.S.C. § 3599 as warranting a stay of proceedings when the capital habeas petitioner’s incompetence renders communication impossible.® In fact, the State and Solicitor General concede this point. They agree that a stay may be appropriate when an “inmate’s input is essential to further the federal habeas corpus litigation.” Pet. Br. 14; U.S. 8 See also McNally v. Hill, 293 U.S. 131, 136 (1934) (“To ascertain its meaning and the appropriate use of the writ fof habeas corpus] in the federal courts, recourse must be had to the common law, from which the term was drawn, and to the decisions of this Court interpreting and applying the common law principles which define its use when authorized by the statute.”). 9 In failing to recognize a district court’s broad discretionary authority under 28 U.S.C. § 2251, the State argues that interpreting 18 U.S.C. § 3599 in this way “would result in disparate treatment of indigent and non-indigent [capital habeas petitioners].” Pet. Br. 15. The State’s argument rests on a fundamental misunderstanding of the district court's authority to issue stays. That authority derives not from § 3599 but from § 2251, which applies in proceedings involving all capital habeas petitioners—whether indigent or not. Section 3599 simply confirms that this discretion extends to circumstances in which counsel is appointed by the court. In any event, the point is entirely academic, as the State has cited no cases (nor could it) in which a condemned state prisoner, having initiated federal habeas proceedings, is represented by retained counsel. 18 Br. 29 (conceding that a stay may be appropriate “for a limited period to afford the prisoner the opportunity to regain his competence”). 3. Astay of proceedings in these circumstances is, moreover, fully consistent with AEDPA. The primary purpose of AEDPA was to reduce delays and promote finality, not to prevent a full and fair federal habeas hearing. Rhines, 544 U.S. at 276. Indeed, when AEDPA was passed, Congress preserved federal courts’ broad discretionary powers to _ stay proceedings pursuant to 28 U.S.C. § 2251. Given this express preservation of stay authority, it cannot be the case, as the State and its amici appear to contend, see Pet. Br. 19; U.S. Br. 27, that a stay may be deemed invalid merely because it delays resolution of the habeas petition and final execution of sentence. Congress also re-enacted, post-AEDPA and post- Rohan ex rel. Gates v. Woodford, 334 F.3d 803, 816 (9th Cir. 2003) (recognizing a district court’s discretion to stay proceedings where the capital habeas petitioner is incompetent to communicate with counsel), the statutory right to counsel at 18 U.S.C. § 3599. See Pub. L. No. 109-177, 120 Stat. 192, 222 (2006). That statute, this Court has said, reflects Congress’s recognition “that federal habeas corpus has a particularly important role to play in promoting fundamental fairness in the imposition of the death penalty.” McFarland, 512 U.S. at 859. While AEDPA was undoubtedly intended to advance “interests in finality and speedy resolution of federal [habeas litigation,]” it does nut do so at all costs. E.g., Rhines, 544 U.S. at 277-79. Rather, these interests must be balanced against others reflected in the statute, id., including the need — recognized in both 18 U.S.C. § 3599 and 28 U.S.C. § 2551 — to ensure that capital habeas petitioners have access to, 19 and can “meaningfully” benefit from, the assistance of qualified counsel. McFarland, 512 U.S. at 858. Far from honoring AEDPA’s purposes, a categorical bar against stays to address a petitioner's incompetence to communicate with counsel would violate the plain language of the statute, which “dedicates the exercise of stay jurisdiction to the sound discretion of a federal court,” McFarland, 512 U.S. at 857-58. A categorical bar would subvert Congress's overarching goal of guaranteeing “fundamental fairness in the imposition of the death penalty.” Martel, 132 S. Ct. at 1285 (quoting McFarland, 512 U.S. at 855). Capital habeas petitioners often have but one opportunity to pursue relief in the federal system.!° Recognizing a court’s authority to stay habeas proceedings, when appropriate to ensure that such opportunity is fully available, is entirely consistent with — and, indeed, effectively mandated by — AEDPA and this Court’s precedents. See, e.g., Martel, 132 S. Ct. at 1285; Rhines, 544 U.S. 278-79; McFarland, 512 U.S. at 858.!! 10 See, e.g., 141 Cong. Rec. H4086 (daily ed. Feb. 8, 1995) (“The bill before us today balances the need for finality and accountability with a firm regard for due process of law and full constitutional protections ... Convicted criminals, particularly murderers on death row, will generally get only one opportunity to raise their claims in Federal court using habeas corpus petitions.” (Statement of Rep. Bill McCollum (F1.))). 1! The Solicitor General incorrectly suggests that district courts lack authority to conduct competency hearings. U.S. Br. 22-23. In addition to a court’s inherent authority to conduct such examinations, this Court recognized in Rees v. Peyton, 384 U.S. 312, 312 (1966), that general federal competency statutes may be relied upon by district courts when competency issues arise in federal habeas litigation. 20 Il. A STAY IS APPROPRIATE WHEN A CAPITAL HABEAS PETITIONER’S INCOMPETENCE PRECLUDES' ESSEN- TIAL COMMUNICATION. Because district courts have authority to issue a stay of execution to ensure effective attorney-client communication, this case concerns only the standard by which that discretion should be exercised. But on that question, the parties in this case agree: A stay is properly granted when a capital habeas petitioner’s incompetence renders him or her incapable of communicating with counsel and such communication is “essential” to the prosecution of his claims. See Pet. Br. 14 (acknowledging that a stay is proper if capital habeas petitioners input is “essential”); accord U.S. Br. 29 (“crucial”). The parties diverge, however, on what this standard means in practice. Mr. Gonzales would leave the standard’s application to the district court’s discretion; the State and the Solicitor General would not. Instead, they argue that a district court must end the inquiry and cannot grant a stay if the claims might be described as “record-based” or “legal in nature” or when a “next friend” might be appointed, because, in those cases (they assert), communication between a capital habeas petitioner and counsel are never essential. But nothing in the statute or this Court’s precedents supports such _ categorical limitations, which would be unreasonable and unworkable in practice. 21 A. The District Court’s Discretion To Stay Habeas Proceedings Is Properly Assessed By An “Essential Communication” Standard. The rule urged by Mr. Gonzales fits comfortably within existing habeas practice and precedent. This Court has held, in McFarland v. Scott, that a stay of habeas and state execution proceedings should issue when necessary to ensure “that counsel fhas the opportunity] meaningfully to research and present a defendant’s habeas claims.” 512 U.S. at 858. That is precisely the situation here. When a capital habeas petitioner’s incompetence prevents communication with counsel and those communications are deemed essential to presentation of the claims, the capital habeas petitioner's inability to communicate deprives counsel of a “meaningful[]” opportunity to present his or her client’s case and thus warrants a stay. Id. The “essential communication” standard also comports with two competency-based safeguards that bookend a capital habeas petitioner's passage through the courts. First, at trial, both the Constitution and statute prevent the defendant from being tried if he or she lacks “sufficient present ability to consult with his lawyer” and cannot assist in his or her own defense. Dusky v. United States, 362 U.S. 402, 402 (1960); see also 18 U.S.C. § 4241(a). Later, at the conclusion of all proceedings, the Constitution forbids executing a condemned prisoner who is unable to understand the nature or reasons for his execution. Panetti v. Quarterman, 551 U.S. 9:30, 957-59 (2007); Ford v. Wainwright, 477 U.S. 399 (1986). The competency threshold for imposing a stay during federal habeas proceedings properly falls along this spectrum. Post-conviction habeas 22 proceedings do not implicate the same due process protections as those applied during an initial trial. See, e.g., Pennsylvania v. Finley, 481 U.S. 551, 555-57 (1987); see also Martinez v. Ryan, 132 S. Ct. 1309, 1315 (2012). But, at the same time, a capital habeas petitioner's statutorily conferred right to present a habeas petition in federal court and to assistance of counsel for that petition necessitate a broader standard for imposing a stay than is applied before execution, after all avenues of relief have been lost or abandoned. Cf. Ford, 477 U.S. at 422 & n.3 (Powell, J., concurring) (competency at execution need not include the “ab[ility] to assist in [one’s] own defense”). For this same reason, there is no tension between Mr. Gonzales’s position and Ford. Pet. Br. 17 (arguing that this Court has “limited a capital prisoners right to competency in post-conviction proceedings” to the right recognized in Ford); U.S. Br. 19 (same). Ford addresses a different doctrine (the Eighth Amendment), with different considerations (such as whether retribution is served, Panetti, 551 U.S. at 958), and at a different stage of the proceedings (execution). Here, by contrast, the integrity of the federal habeas proceedings is at issue. The structure and legislative history of AEDPA make clear that the integrity of these proceedings was a centerpiece of that legislation and of significant value to a Congress that recognized the risks in placing stringent limits on the prosecution of habeas claims in the federal courts. '? 12 The Solicitor General's concern that a holding authorizing a stay would “supersede” (U.S. Br. 20) questions arising under Ford is a wholly circular argument that there should be no stay because that would cause delay. In any event, a stay here would not change the Ford analysis once the proceeding has reached that stage. 23 In short, setting the standard at whether communication is essential for presentation of the claims readily conforms with other competency standards and strikes the appropriate balance, just as McFarland implicitly recognizes. B. The District Court’s Discretion Cannot Be Artificially Constrained To Exclude Certain Categories Of Cases. Despite acknowledging that a stay may be proper where a capital habeas petitioner's communication with counsel is “essential” or “crucial” to his or her claim, the State maintains that district courts should be categorically barred from staying any case where the claims can be described as merely “record-based” or “legal in nature” or where a “next friend” might be appointed. Pet. Br. 14; U.S. Br. 29. But these artificial constraints find no support in the pages of the United States Code or this Court’s decisions and are, in fact, flatly inconsistent with both. See, e.g., McFarland, 512 U.S. at 858. 1. That A Claim May Be Described As “Record-Based” Or “Legal In Nature” Does Not Render Communication Between Counsel And Client Meaningless Or Non- Essential In All Cases. The State rests much of its protest on the contention that a district court ought to be foreclosed from exercising its discretion to stay habeas proceedings whenever the claims may be labeled as “record-based” or “legal in nature.” Pet. Br. 14, 16; see also U.S. Br. 16, 31. This contention falls flat, however, because its premise — that communication between counsel and client is per se unnecessary in such circumstances — is demonstrably false. Even in 24 cases that can be so described, communication with counsel may still be essential to the presentation of a capital habeas petitioner’s claims in at least two ways. First, the client may have information that, although not available from the record itself, bears upon the relative strength of the claims or the manner in which they should be presented. Such information provides a gloss on the existing record that may well demonstrate, to the attorney if not the client, how best to proceed. Examples are easy to imagine. For starters, the decision whether to seek an evidentiary hearing in the first place — and thus whether a claim can fairly be called “record-based” — cannot always be made in a vacuum, without a full picture of what the client knows. See U.S. Br. 29. But even when the record is rightly deemed closed, a client's insight may still be essential to the proper consideration of his or her claims. Doctrines governing ineffective assistance of counsel or judicial bias claims, for instance, incorporate presumptions that regularly require ex post supposition about what may have motivated someone else’s decisions at trial. See, e.g., Cullen v. Pinholster, 131 S. Ct. 1388, 1407 (2011) (courts required to “entertain the range of possible ‘reasons” for counsel’s conduct). For such inquiries, the client is best positioned to assist counsel in rebutting hypotheses — for example, about supposed tactical reasoning — that he or she knows to be wrong, thereby helping the parties and the court to avoid an erroneous “post hoc rationalization of f[others’] conduct.” Wiggins v. Smith, 539 U.S. 510, 526-27 (2003). The rules of exhaustion are also illustrative. For example, where an attorney argued a claim in an 25 untranscribed proceeding, a capital habeas petitioner may have information showing that particular claims were actually exhausted in state court or that exhaustion should be excused, even though the existing record does not reflect those facts. Martinez, 132 S. Ct. at 1318, 1320 (noting that “[inJeffective assistance claims often depend upon evidence outside the trial record” and holding that “a procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the initial-review coliateral proceeding, there was no counsel or counsel in that proceeding was’ ineffective”); see also, 28 USC. § 2254(b)(1)(B)(Gii) (exhaustion may be excused where “circumstances exist that render such process ineffective to protect the rights of the applicant”). Such intelligence is particularly important when preparing or seeking to amend a habeas petition, or when deciding whether to seek a stay to exhaust remaining state claims under Rhines. That a district court’s consideration of § 2254(d)(1) claims is generally limited to the state-court record does not mean, as the State contends, that client participation is automatically meaningless even in those cases. Pet. Br. 14-15 (citing Pinholster, 131 S. Ct. 1398). The examples above describe just a few situations in which a client's communication with counsel would be essential notwithstanding Pinholster’s holding that evidentiary hearings are available in only limited circumstances. Further, the prospect of obtaining an evidentiary hearing remains open. See Pinholster, 131 S. Ct. at 1411 n.20. An evidentiary hearing might be warranted in order to assess the substantive validity of the claims once § 2254(d) has been found to be satisfied. See id. at 1412 (Breyer, J., concurring in part and dissenting in 26 part) (giving examples). A client’s participation, it practically goes without saying, will be essential to at least some such hearings and cases. This is not to say that a district court must issue a stay upon finding the capital habeas petitioner incompetent and communication between capital habeas petitioner and counsel are essential. See McFarland, 512 U.S. at 858 (“Section 2251 does not mandate the entry of a stay, but dedicates the exercise of stay jurisdiction to the sound discretion of a federal court.”). For example, if a capital habeas petitioner has a history of voluntarily taking medication but refuses that medication during the course of habeas proceedings for the purpose and with the express intention of manipulating the process and preventing final adjudication, a stay could be properly denied as an exercise of discretion. See also infra at pp. 27-30 (proper appointments of a next friend). Second, the positions of the State and the Solicitor General ignore the fundamentals of the attorney- client relationship. Rules of professional conduct obligate attorneys to consult broadly and frequently with their clients and expressly as to strategic and tactical matters. See, e.g., American Bar Association, Model Code of Profl Conduct R. 1.4 (Communication); American Bar Association, Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases, 31 Hofstra L. Rev. 913, 1008 (2003) (“[There is an] obligation of counsel at every stage of the case to keep the client informed ... and to consult with the client on strategic and tactical matters. Some decisions require the client’s knowledge and agreement [but even those that do not] should nonetheless be fully discussed with the client beforehand.”). 27 Such consultation may be required, for example, before counsel decides: whether to drop a particular claim that appears baseless (cf. Rees v. Peyton, 384 U.S. 312 (1966)); whether to seek a stay to further exhaust certain claims (e.g., Rhines, 544 U.S. 269); or whether to seek an appeal or a certificate of appealability (e.g., Jones v. Barnes, 463 U.S. 745, 751 (1983)). A bright-line rule that would, in many cases, require an attorney to proceed without ethically mandated client consultation undermines these basic canons of professional responsibility. Congress should not be assumed to have intended such a seemingly irrational result sub silentio. The point for these purposes is not to delineate all possible instances in which client communication may be essential even though the claims could also be considered “record-based” or “legal in nature,” but only to show that the categories are not mutually exclusive. The State’s groupings do not establish that client communication would be necessarily meaningless for all cases that fall within them, and, as such, they provide no basis for restricting a district court’s discretion ex ante. Such a standard also would be unworkable in practice. Courts already struggle mightily to decide when a question is one of “law” or “fact,” or “mixed.” See, e.g., Miller v. Fenton, 474 U.S. 104, 113-14 (1985) (noting “the practical truth that the decision to label an issue a ‘question of law,’ a ‘question of fact,’ or a ‘mixed question of law and fact’ is sometimes as much a matter of allocation as it is of analysis”). The State’s proposed line-drawing merely imports those difficulties into yet another context and, contrary to the State’s own wishes, promises inevitable satellite litigation as to these complex questions. The better and more workable approach is the one that Congress 28 already reflected in the statute — namely, to leave the detision whether to impose a stay of habeas proceedings to the district court’s discretion. See 28 U.S.C. § 2251; accord McFarland, 512 U.S. at 858. 2. That A “Next Friend” Might Be Appointed Does Not Render Communication Between Counsel And Client Meaningless Or Non- Essential In All Cases. The State and the Solicitor General also point to the potential appointment of a “next friend” as another cure-all for any incompetent capital habeas petitioner's inability to communicate with counsel. Pet. Br. 16-17 (citing Whitmore v. Arkansas, 495 U.S. 149 (1990)); U.S. Br. 25, 27, 30-31. The upshot of this position — that the mere existence of “next friend” standing as a concept renders communication between counsel and client meaningless or non- essential in all cases — is simply wrong. First, there will be many circumstances in which a “next friend” is unavailable. As this Court has explained, “next friend’ standing is by no means granted automatically” and requires, among other things, that one be “truly dedicated to the best interests of the person on whose behalf he seeks to litigate ... [and] have some significant relationship with the real party in interest.” Whitmore, 495 U.S. at 163-64. These requirements should be all the more difficult to meet in situations where a capital habeas petitioner’s incompetence prevents effective communication not just to assist counsel but with everyone, including persons with whom he has a “significant relationship.” Second, until a “next friend” is actually appointed, a stay may still be necessary to ensure that counsel 29 has a meaningful opportunity to present the claims. A “next friend” may be permitted to make many of the strategic decisions otherwise left to the client, but, until appointment, counsel has no authority to make those decisions on his or her own. See supra § II.B.1. Finally, even if a “next friend” is appointed, it may remain necessary to communicate with the capital habeas petitioner personally because “he alone possesses” essential information relevant to the claims. Rohan ex rel. Gates, 334 F.3d at 816. Indeed, because a next friend “cannot get inside [an incompetent client’s] head any more than his counsel can,” it is “difficult to see what purpose appointing fone] even serves in this context.” Id. For his part, the Solicitor General does not expressly join the State’s attempt to stretch the “next friend” doctrine to resolve this case. Instead, the Solicitor General offers an inventive proposal of his own: Counsel can serve as a sort of de facto “next friend,” either permanently or at least temporarily while another is located, by making decisions and strategic choices for the client in the interim. U.S. Br. 30-31. This suggestion fares no better than the State’s. The attorney-client relationship does not, by itself, satisfy the prerequisites for “next friend” status, particularly when, as here, counsel is appointed and lacks any pre-existing relationship with the client. See, e.g., Centobie v. Campbell, 407 F.3d 1149 (llth Cir. 2005). The Solicitor General’s sheer speculation that counsel might find ways to “establish facts outside the record that bear on a potentially meritorious claim” without the client’s input, U.S. Br. 30, could be a factor in deciding whether to issue a stay, but it is certainly not an 30 across-the-board substitute for potentially essential input from the client himself.' None of this is to say that potential appointment of a “next friend” is not an option to be considered or that it would have no bearing on the stay issue. Appointment of a “next friend” is one of several options, along with a stay of proceedings, that a court might consider when faced with an incompetent capital habeas petitioner. And, if a “next friend” is appointed and that appointment does in fact render further communication between the client and counsel non-essential, nothing would prevent the district court from properly lifting the stay. At bottom, the focus remains on whether client-counsel communication is essential, but not feasible. If so, “next friend” appointments are not a panacea; they are but another option in the district court’s tool box. C. The “Essential Communication” Stan- dard Is The Most Practical And Workable. The only other objection offered against the standard applied in this case is that it will encourage false claims of incompetency and result in “indefinite [delays] and protracted litigation in federal habeas cases [across the nation].” States Amicus Br. 2; see also Pet. Br. 19. These concerns are dramatically overblown. Far from “widespread,” States Amicus Br. ‘3 The Solicitor General's supporting contention that defense counsel might call the chient’s former attorneys or others to testify as to the client’s knowledge or preferences, U.S. Br. 30, creates more questions than it answers. Those persons would likely be prohibited from testifying, especially in front of the State, because of attorney-client privilege, and in any event would not necessarily have knowledge of the present facts and current preferences of the client. 31 6, and far from causing “lengthy delays,” id., claims of incompetency are in fact infrequently raised — even in those circuits which expressly allow them — and are often quickly resolved. Although potentially available in any circuit,'4 incompetency claims of the type presented in this case are quite rare, as the Solicitor General has acknowledged. U.S. Cert. Br. 18. From June 2003 (when these claims were first recognized) until September 2010, federal courts handled 701 capital habeas cases. Resp. Supp. Br. 3 _ n.3. Yet, incompetency claims were raised in only 34 of those cases — less than five percent. Jd. These claims are not only few in number but also rarely result in a stay; all told, only 1.5% of all capital habeas cases nationwide were stayed as a result of incompetency claims. Further, in a survey of the fourteen States that joined the merits amicus brief in support of the State, only one such stay (from Alabama) was granted in over seven years — representing a mere 0.65% of all capital habeas cases in those States over that period.'® In fact, incompetency claims of this type have never been filed in nine of those fourteen States. And, the four states with the largest death row populations —- whose criminal systems would seem to face the greatest threat from these potential claims 14 All circuits that have confronted the issue have either expressly held or implicitly assumed this is the case, or have at least declined to hold that it is not. U.S. Cert. Br. 18. ‘6 From June 2003 through September 2010, there were 153 capital habeas cases filed in these States, and in only nine of those cases did the capital habeas petitioner seek a stay based on incompetency. Furthermore, those stays were sought in only five (Utah, Nevada, Oklahoma, Alabama, and Arkansas) of the fourteen States. 32 — are conspicuously absent from the States’ Amicus Brief on the merits. !6 These stays are, moreover, not “indefinite,” as the State and the Solicitor General suggest. To the contrary, they are by nature temporary — only in effect during the period of incompetency. Courts monitor petitioners under these stays through periodic status reports and (in appropriate cases) treatment directives. E.g., Holt v. Woodford, No. 1:97-cv-06210 (E.D. Cal. Nov. 21, 2008); see also White v. Ryan, No. 08-cv-08139 (D. Ariz. Sept. 29, 2010). In fact, these court-ordered treatment plans have facilitated competence restoration to avoid an indefinite stay;'!? when a capital habeas petitioner regains the ability to communicate with counsel, the stay is properly lifted, as courts have not hesitated to do. See, e.g., Mot. to Amend Pet., Grant v. Workman, No. 5:10-cv-00171 (W.D. Okla. June 1, 2012); Hill v. Calderon, No. 4-94-CV-641 (N.D. Cal. Jan. 6, 2012). ‘6 As of 2010, California (683), Florida (390), Texas (330), and Pennsylvania (218) not only individually have the largest death row populations, but combined they house more than half of all death row prisoners in the United States. See Report by U.S. Justice Dep’t Bureau of Justice Statistics, “Capital Punishment 2010: Statistical Tables” (Dec. 20, 2011). Three of these states (Florida, Texas, and Pennsylvania) joined the amicus brief in support of certiorari, but none subsequently joined the amicus brief in support of the State here. The fourth state (California) joined neither the amicus brief in support of certiorari nor the amicus brief on the merits. ‘7 Antipsychotic medications are an accepted, often essential treatment for many psychoses including delusional disorder and schizophrenia. See American Psychiatric Association et al. Amicus Br. 9-10, Sell v. United States, No. 02-5664, 2003 WL 176630 (U.S. Jan. 22, 2003). The newer antipsychotic drugs have proven effective for many more people and have even more favorable side-effect profiles. See id. 33 Courts also have access to numerous procedural tools to mitigate any delay. In at least half of the total 34 competency claims brought nationwide between June 2003 and September 2010, judges made a competency determination without a full hearing, based on psychiatric reports or other available evidence. E.g., Paul v. United States, 534 F.3d 832, 853 (8th Cir. 2008). In addition, both parties sometimes stipulate to the incompetence of the capital habeas petitioner.'® Even the State recently stipulated to the incompetence of a capital habeas petitioner who was then granted a stay. See White, No. 08-cv-08139. What is more, courts can dismiss claims on procedural grounds or on a finding of dilatory or improper purpose, without need for any competency determination. E.g., Lisle v. McDaniel, No. 2:03-CV- 1005 (D. Nev. July 19, 2006); Stanley v. Calderon, No. 2:95-cv-1500 (E.D. Cal. Mar. 1, 2006). Courts also have significant leeway to assess malingering and can deny motions for competency hearings upon a finding of malingering. E.g., id.; Ferguson v. Secretary for Dep't of Corr., 580 F.3d 1183, 1221 (11th Cir. 2009). Indeed, courts are well-equipped to identify malingering.'? '8 See, e.g., Jones v. Wong, No. 2:97-cv-02167 (E.D. Cal. Aug. 28, 2009); Holt, No. 1:97-cv-06210; Millwee v. Ayers, No. 2:99-cv- 07220 (C.D. Cal. Nov. 21, 2008); McPeters v. Ayers, No. 1:95-cv- 05108 (E.D. Cal. Sept. 18, 2007); Card v. Hardison, No. 1:93-cv- 00030 (D. Idaho Oct. 20, 2006). 19 For a review of common techniques used to identify malingering in judicial proceedings and their efficacy, see Gary B. Melton, et. al., Psychological Evaluations for the Courts: A Handbook for Mental Health Professionals and Lawyers, at 54 (2d ed. 1997); see also Richard Rogers, Clinical Assessment of Malingering and Deception, at 131 (2d ed. 1997); L. Elizabeth 34 When a competency hearing is actually held, the claims are generally resolved without substantial difficulty or delay. See, e.g., Rogers v. McDaniel, No. 3:02-cv-0342, 2008 WL 820088 (D. Nev. Mar. 24, 2008). Even in the cases cited by the States as presenting particularly egregious examples of “[clompetency litigation,” the lengthiest delay was less than three years and, in any event, was not attributable solely to the incompetency claim. States Amicus Br. 7-9. There is, in short, simply no evidence that the mere availability of these claims has resulted in “generating lengthy competency litigation ... across the nation.” Jd. at 2. That is hardly surprising in light of the judiciary’s experience with claims under Ford v. Wainwright. While many predicted that those claims would overwhelm the federal courts, resulting in lengthy or indefinite delays of every execution, experience has shown that they are raised rarely and have caused no material disruption in the federal process or undue delays in execution. See Panetti, 551 U.S. at 934-935, 948-949 (noting that “a State ‘should have substantial leeway to determine what process best balances the various interests at stake” (quoting Ford, 477 U.S. at 427 (Powell, J., concurring))). The same is true of incompetency claims of the type at issue here as they are both infrequent and essential to guarantee the integrity of habeas proceedings. They should and must be available to address the few true cases of incompetence. Chamblee, Time for a Legislative Change: Florida’s Stagnant Standard Governing Competency for Execution, 31 Fla. St. U.L. Rev. 335, 363-367 (2004). 35 Ill. A STAY WAS PROPERLY ENTERED IN THIS CASE. Under the standard set forth above — the same applied by the court of appeals — a stay of proceedings was plainly appropriate in this case. 1. The court of appeals properly concluded that a temporary stay should issue pending a determination of competency by the district court. Moreover, on the current record, the State cannot seriously contest that Mr. Gonzales was “incompetent” and unable to communicate rationally with his counsel. A neutral psychiatric expert from the State hospital, tasked with conducting an extended evaluation of Mr. Gonzales, concluded that Mr. Gonzales “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.” Pet. App. C5. The district court itself, although it did not make a formal finding of incompetence (because it incorrectly concluded that it lacked discretion to grant the stay in any event), assumed in the proceedings below that Mr. Gonzales was in fact incompetent, and in a submission to the court of appeals described the “consensus” opinion of reviewing psychiatrists (albeit “tentative”) as “that in the absence of medication [Mr. Gonzales] was largely incapable of communicating rationally with counsel.” See Pet. App. B6. Notably, neither the State nor the Solicitor General argues to the contrary.” 20 While the district court did note that “the record indicate|s] [that Mr.] Gonzales possesses a limited capacity for rational communication[s,]” U.S. Br. 6 (citing App. C28 n.14), these flashes of coherence were temporary in nature and were not deemed sufficient to render him “competent” as a general matter or, more specifically, capable of communicating with his counsel. See Pet. App. C6; cf. Holmes v. Buss, 506 F.3d 576, 581 (7th Cir. 36 Thus, the record in this case strongly supports the lower court’s determination that at least a prima facie showing in this regard had been made. Particularly given the dearth of contrary evidence or argument on this point, the court of appeals properly concluded that Mr. Gonzales should for that reason be presumed incompetent on appeal, pending further proceedings before the district court. 2. Communication between Mr. Gonzales and his attorneys was also properly deemed essential by the court of appeals. Mr. Gonzales’s counsel in the federal habeas proceeding, who had not previously represented him, could not be expected to fully assess the merits of Mr. Gonzales’s claims for relief based solely on the cold record, and without his participation. Nor was there any person with whom they might have consulted to gain insights into his perspective or any additional information he might have had. Mr. Gonzales “had eleven different attorneys over the course of his trial and sentencing, and was self-represented for part of that time.” Pet. App. A5. Thus, there was no individual — other than Mr. Gonzales himself —- who would be expected to have a thorough and complete understanding of the factual issues relevant to the claims. Cf. Holmes v. Buss, 506 F.3d 576, 580 (7th Cir. 2007) (“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 or other documentation provide.”). 2007) (“There are lucid intervals in the petitioner's responses to the judge’s questions, but there are also wild and whirling words, which the judge seems to have ignored.”). 37 Direct communication with Mr. Gonzales is particularly necessary with respect to his claim of judicial bias, a serious claim that implicates due process and, if successful, constitutes a structural error affecting the entire proceeding.?! While the factual predicate of that claim is grounded in statements made by the state court judge on the record, that transcript does not and cannot reflect other aspects of the proceedings — for example, the conduct of prosecutors and the judge, and their off- the-record remarks — that would also bear on the claim. This information is highly relevant in this case, and perhaps pivotal, given the ambiguous reference to an “indication” in the state record that the judge was “antagonistic” to Mr. Gonzales throughout those proceedings. See Pet. App. C10- C13. Even the prosecutor in Mr. Gonzales’s trial 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.” Pet. App. C-11. Mr. Gonzales’s current counsel have no way to obtain corroborative or other’ crucial information other than through their client. This fact alone is sufficient to establish, as other courts have recognized in similar situations, see, e.g., Holmes, 506 21 See, e.g., Sullivan v. Louisiana, 508 U.S. 275, 283 (1993) (distinguishing an instructional error from “[structural] errors such as judicial bias or denial of counsel” (medifications in original) (quoting Rose v. Clark, 478 U.S. 570, 579 n.7 (1986))); Tumey v. Ohw, 273 U.S. 510, 514-15 (1927). 38 F.3d at 579-80, that client communication is essential to full and fair adjudication of the habeas petition.2? Apart from a single, unsupported assertion that client communication was not essential in this case, neither the State nor the Solicitor General offers any real argument on this point or any reasoned explanation for why the court of appeals was incorrect in its analysis. Instead, both attempt to mischaracterize the opinion below, arguing that the decision was “based on speculation” and _ that communication need only “potentially benefit” counsel. Pet. Br. 20; U.S. Br. 31. But this ignores what the panel actually held: “communication with [Gonzales] is essential to counsel’s ability to meaningfully prosecute Gonzales’s habeas claims.” Pet. App. A5 (internal quotation marks omitted, emphasis added); see also td. (“counsel may ... need to communicate with [Gonzales] to understand fully the significance and context of key facts”) (internal quotation marks omitted, emphasis’ added). Notwithstanding their bald assertions that this conclusion was error, the State and the Solicitor General offer no basis to disturb it.24 3. No other factors identified by the district court militated against entry of a stay. The district court did not find, for instance, that Mr. Gonzales had somehow abused the habeas process. To deny a stay in this situation — where all relevant considerations 22 Indeed, because these claims may depend on information outside the existing record, they cannot properly be described as “record-based,” and a stay would be appropriate even under the standard suggested by the Solicitor General. 23 In earlier proceedings in this case, the State acknowledged that “obviously there are some [issues] that [counsel] need Mr. Gonzales to answer.” See Resp. Br. in Opp. 2 n.1. 39 point in favor of a stay — would necessarily have constituted an abuse of discretion, as the court of appeals recognized. Indeed, the district court expressly refused to exercise its discretion at all. It concluded, rather, that a stay is “categorically unavailable” (Pet. App. A5) when a capital habeas petitioner’s claim may be described as “record-based” or “resolvable as a matter of law.” Pet. App. A2. That conclusion, as discussed earlier, reflects a material misunderstanding of the statutory discretion committed to courts to stay habeas proceedings and of the standard on which that discretion should be exercised — t.e., the “essential communication” standard. “Had the district court undertaken the [proper] ... inquiry,” the court of appeals correctly noted, it “would have been compelled to conclude that ‘communication with [Gonzales] is essential to counsel’s ability to meaningfully prosecute’ Gonzales’s habeas claims.” Pet. App. A5 (modification in original) (internal citation omitted). This case squarely presents the rare circumstance where a capital habeas petitioner’s inability to communicate deprives counsel of a meaningful opportunity to present the case. Because such communication is essential to fair adjudication of at least one of Mr. Gonzales’s claims, moving forward with the proceedings despite the current breakdown in communication would frustrate the intent of Congress under 18 U.S.C. § 3599, jeopardize fulfillment of counsel’s fundamental professional ethics obligations, and undermine the integrity of the federal habeas process. A temporary stay was 40 appropriately directed by the court of appeals, and that decision should be affirmed.?4 CONCLUSION The decision of the court of appeals should be affirmed. Respectfully submitted, JEFFREY T. GREEN JON M. SANDS QUIN M. SORENSON FEDERAL PUBLIC DEFENDER STEPHANIE P. HALES DALE A. BAICH JOSHUA J. FOUGERE LETICIA MARQUEZ* CLAYTON G. NORTHOUSE OFFICE OF THE FEDERAL SIDLEY AUSTIN LLP PUBLIC DEFENDER FOR THE 1501 K Street, N.W. DISTRICT OF ARIZONA Washington, D.C. 20005 407 West Congress Street (202) 736-8000 Suite 501 Tucson, Arizona 85701 Leticia_Marquez@fd.org (520) 879-7614 Counsel for Respondent July 20, 2012 * Counsel of Record 24 If the Court agrees with the “essential communication” standard, but cannot adopt the Ninth Circuit’s analysis under that standard, the Court should vacate the judgment below with instructions to remand to the district court. The district court indisputably did not apply the proper standard in assessing the stay request and should decide in the first instance whether, as an appropriate exercise of its discretion, a stay is warranted under that standard. No. 10-930 AUG 2 0 2012 Sn The Supreme Court of the Anited States CHARLES L. RYAN, DIRECTOR, ARIZONA DEPARTMENT OF CORRECTIONS. Petitioner. vs. ERNEST VALENCIA GONZALES, Respondent. + On Writ Of Certiorari To The United States Court Of Appeals For The Ninth Circuit o REPLY BRIEF + THOMAS C. HORNE Attorney General DAVID R. COLE Solicitor General KENT E. CATTANI Division Chief Counsel JEFFREY A. ZICK Section Chief Counsel JOHN PRESSLEY TODD Assistant Attorney General] (Counsel of Record) CAPITAL LITIGATION SECTION 1275 W. Washington Phoenix, Arizona 85007-2997 john.todd@azag.gov cadocket@azag.gov Telephone: (602) 542-4686 COCKLE LAW BRIEF PRINTING CO. (81) 225-6904 OR CALL COLLECT (402) 242-2871 i TABLE OF CONTENTS Page TABLE OF AUTHORITIES .....................:0scesecceeees il SE GI FE BIO UIO vaccccccctscccsocccsescesesecsossesses 1 EN sekbinciievticiieisne Mcinctinnietsitinsisdisaesacisimannsiniuntinienmadeiios 5 I 18 U.S.C. § 3599(a(2) DOES NOT RE- QUIRE THAT AN INDIGENT FEDERAL HABEAS CORPUS PETITIONER BE COM- PETENT TO ASSIST COUNSEL ............... 5 Il. GONZALES’S ALTERNATIVE GROUNDS FOR UPHOLDING THE NINTH CIR- CUIT’S RULING ARE UNPERSUASIVE.... 8 See IEEE ciinicnencevastcivninvnidniastesaedeoninbicnabdnieeen 23 APPENDIX ee ee Oe IE atiiniincstnniniinnniiiiinsinnsninsnnanisaiilennnishiiniiiben A-1 i TABLE OF AUTHORITIES Page CASES Barefoot v. Estelle, 463 U.S. 880 (1983) .................... 21 Centobie v. Campbell, 407 F.3d 1149 (11th Cir. STINET inant cx dacsigeasa siatapdesunatedameieimampéceadamanaaeliapnaieeia 19 Connecticut Nat. Bank v. Germain, 503 U.S. SIT IIIIIITID «61s sa eecsdiacatennminaneorentnasenedenmemtaneiaiaaeeds 1,6 Council v. Catoe, 359 S.C. 120, 597 S.E.2d 782 Sa iccerisniitcsesiieisued bieabhegsapcanaaiciseidekiaonsimibabacuasadaaar 13 Cullen v. Pinholster, 563 U.S. __, 131 S. Ct. SENTINEL 5. 5c hccntasmmenchaneamewencecheinabicatieied 2, 11, 12, 21 Ford v. Wainwright, 477 U.S. 399 (1986)...........0..... 7,8 Gonzales v. Stewart, CIV 99-2016-PHX-SMM IE GI SII soins iccuiscoulichsncienmuendcesetdielnemnteddamigndes 21 Holmes v. Buss, 506 F.3d 576 (7th Cir. 2007)............ 15 Holmes v. Levenhagen, 600 F.3d 756 (7th Cir. SPE sccdaitidiinspsnaidnilinekecccsetakesdisncubdidadebmamninnnetoogbien 16 Jones v. Barnes, 463 U.S. 745 (1983)................... 17, 18 Liteky v. United States, 510 U.S. 540 (1994) ............ 21 Martinez v. Court of Appeal of Cal., Fourth Appellate Dist., 528 U.S. 152 (2000)...................... 22 Mayle v. Felix, 545 U.S. 644 (2005) ....................... 14 McFarland v. Scott, 512 U.S. 849 (1994) ............... 9, 21 Nash v. Ryan, 581 F.3d 1048 (9th Cir. 2009)......... 3, 15 Rhines v. Weber, 544 U.S. 269 (2005) .............. 9,10, 11 Pe TABLE OF AUTHORITIES ~— Continued Page Rohan ex rel. Gates v. Woodford, 334 F.3d 803 AR ha a 6 Whitmore v. Arkansas, 495 U.S. 149 (1990).......... 4,18 Woodford v. Garceau, 538 U.S. 202 (2003)................. 11 STATUTES Se ns a al 10 ig Fa STARA SIA re A ch eee mA 1,5, 6,8 a EE Ree enone Ee ENT Nee: 4,5 Se RNAs Se MEE hid isla vecnsninaheisngakenalebacsitentkine 1, 4, 8, 9, 10 Re Sy NIE Biv biivinlcdditbnidaclicncdvintiesctusd caste: 8,9 | TN et SOR A ete mE LAR TTT ae, 9 ee AF A. IE PUD acisiveisedececsdceuciceodackassscscedevasecs, 9 ee ae Ue ii eT 4,8, 13,14 i aa OE RCRD Lee ETSY 21 Rf SERRA SRE eam eT ae eRe NPRM 21 FE Eee ee eae IMA IE SOS eT: 2 RULES en I, TO I ils ko 17, 18 Sn ie I ne a 14 iv TABLE OF AUTHORITIES — Continued Page OTHER AUTHORITIES ABA Model Rules of Professional Conduct................ 17 REPLY OF THE PETITIONER Respondent Gonzales’s Brief in Opposition aban- dons the rationale proffered by the Ninth Circuit that 18 U.S.C. § 3599 implicitly guarantees the right of competence to assist counsel. Gonzales instead posits that 28 U.S.C. § 2251, a statute not addressed by the Ninth Circuit and that simply provides that a district court has discretionary authority to (temporarily) stay state court proceedings, justifies the Ninth Cir- cuit’s conclusion that the district court erred by re- jecting Gonzales’s request to indefinitely stay his federal habeas proceedings.’ Gonzales’s abandonment of the Ninth Circuit's rationale is understandable because the court of ap- peals’ reasoning does not withstand scrutiny. Sec- tion 3599 does not address or otherwise provide for the inmate’s competence to assist counsel. When the words in a statute are unambiguous, further judicial inquiry is unnecessary. Congress says in the statute what it means. Connecticut Nat. Bank v. Germain, 503 U.S. 249, 253-54 (1992). Furthermore, the Ninth Circuit’s holding, that pursuant to § 3599, a stay must issue where the petitioner is not competent to assist counsel and ’ The Ninth Circuit relied entirely on 18 U.S.C. § 3599, but Gonzales now asserts that interpretetion of § 3599 “is not the question presented in this case.” Gonzales Br. 13. Again, at page 17, n.9, Gonzales argues that the authority to issue a stay “de- rives not from § 3599 but from § 2251... .” 2 communication by the prisoner “could potentially benefit” counsel, is directly contrary to this Court’s decision in Cullen v. Pinholster, 563 U.S. __, 131 S. Ct. 1388, 1398 (2011), when the merits of the claims were addressed in state court. In Pinholster, this Court held that “the record under review is limited to the record in existence at that same time i.e., the record before the state court.” 131 S. Ct. at 1398. If the record under review is limited to the record before the state court, there is no possible way that the state prisoner’s communication with counsel could be essential to counsel’s ability to meaningfully prosecute the claim. If there is something in the record before the State Court to support the claim, counsel will be able to read that in the record. Coun- sel is more capable of doing that than the state pris- oner. Gonzales states that the defendant can help counsel in “scouring the record.” Gonzales Br. 12. Counsel does not need the state prisoner’s help in “scouring the record.” Counsel can read the record. On the other hand, if the state prisoner’s ability to communicate with counsel is alleged to be essential because the prisoner knows of something not in the record that supports the claim, that is irrelevant, because the record under review is limited to the record before the state court. There are two excep- tions, which are not applicable here, where there can be an evidentiary hearing in Federal District Court, as set forth in 28 U.S.C. § 2254(e)(2). These are (i) a new retroactive ruling by this Court; (ii) a factual 3 predicate that could not have been discovered through the exercise of due diligence. Here, the District Court analyzed Gonzales’s claims in detail, and found they were all known to him prior to the state post convic- tion proceeding and that on the main claim (judicial bias) “the record regarding this claim is complete.” (Pet. App. C14.) Gonzales’s misunderstanding is clear in his dis- cussion of the specifics of this case: “the claims of judicial bias could not be fully assessed without in- formation and insights from the trial environment, including off-the-record events and exchanges, that only Mr. Gonzales could offer.” Gonzales Br. 7 (em- phasis added). “Off-the-record events and exchanges” cannot be part of the claim, because the claim is limited to “the record before the State Court.” In fact, the Ninth Circuit recognized that a cap- ital habeas claim was “necessarily confined to the record,” but reached the illogical conclusion that the claim could still benefit from communication between client and counsel. Citing its prior decision in Nash v. Ryan, 581 F.3d 1048, 1050 (9th Cir. 2009), the Ninth Cireuit noted that it had previously held that “the prosecution of a capital habeas appeal, which is nec- essarily confined to the record, could benefit from communication between client and counsel.” (Empha- sis added.) The Ninth Circuit drew the illogical conclusion that even though the claim is “necessarily confined to the record,” communication between the defendant 4 and the attorney could still be essential. If “off-the- record events and exchanges” are excluded, because the claim is limited to “the record before the State Court,” then the lawyer is perfectly capable of reading that record, and communications from the defendant are irrelevant. The Ninth Circuit’s ruling conflicts with this Court’s “next-friend” jurisprudence, which recognizes that habeas cases can proceed notwithstanding the mental incapacity of petitioners. See Whitmore v. Arkansas, 495 U.S. 149 (1990). Additionally, the Ninth Circuit’s ruling thwarts Congressional intent as evidenced by the Antiterrorism, and effective Death Penalty Act of 1996 (AEDPA), which was enacted to reduce delay in capital cases and to man- date greater deference to state court decisions. Gonzales’s reliance on § 2251 is unavailing. Sec- tion 2251, which is entitled “Stay of State Court Pro- ceedings,” authorizes the federal courts to stay state court proceedings during resolution of pending federal § 2254 proceedings or a pending request for appoint- ment of counsel under § 3599(a)(2). Even if § 2251 applied to a federal court proceeding that would simply mean that in the appropriate case the federal court could stay proceedings (which it has general power to do in any case), but that fact does not an- swer whether such a stay is appropriate. It should not be appropriate based on incompetence of the state prisoner to help counsel, where the appeal is record- based, and the lawyer can read the record. | 5 Gonzales fails to recognize that this case involves a civil proceeding that he initiated. A petitioner who initiates federal habeas review should pursue relief based on claims of which he and his counsel are aware: it should be dismissed if the basis for the pe- tition is mere speculation regarding claims of which the petitioner and his counsel are currently unaware. If an incompetent petitioner regains competence and is able to provide additional relevant information, he can seek leave to amend his petition. Thus, a stay is not warranted based on a habeas petitioner’s incom- petence. Finally, even assuming a temporary discretionary stay could be justified in some context based on the inmate’s incompetence, such a stay would not be ap- propriate in this case because, as the district court correctly concluded, the claims at issue are record based. Gonzales’s input is clearly not essential to ad- dress claims for which there has been a merits ruling in state court and for which further evidentiary development is precluded. ARGUMENTS I. 18 U.S.C. § 3599(a)(2) DOES NOT REQUIRE THAT AN INDIGENT FEDERAL HABEAS CORPUS PETITIONER BE COMPETENT TO ASSIST COUNSEL. Gonzales makes little effort to justify the Ninth Circuit’s holding that § 3599 requires that an indigent 6 federal habeas corpus petitioner be competent to assist counsel. In fact, notwithstanding the Ninth Circuit’s reliance on § 3599 as creating a right to be competent to assist counsel, Gonzales asserts that the interpretation of § 3599 “is not the question presented in this case,” and that “(t]he issue is whether courts have authority to issue a stay, not whether capital habeas petitioners enjoy a freestanding ‘right to competence,’ or what the contours of such a right may be.” Gonzales Br. 13. Relying on Rohan ex rel. Gates v. Woodford, 334 F.3d 803 (9th Cir. 2003), and Nash, the Ninth Circuit held in the instant case that an indigent capital prisoner has a “statutory right to competence in his federal habeas proceedings.” Pet. App. A2. Gonzales’s only attempt to incorporate the Ninth Circuit’s analysis of § 3599 as creating a statutory right to be competent to assist counsel is his assertion that “it is eminently reasonable to construe the stat- utory provision for counsel in 18 U.S.C. § 3599 as warranting a stay of proceedings when the capital habeas petitioner’s incompetence renders communi- cation impossible.” Gonzales Br. 17. But where the statute is not ambiguous, the court will not add provisions. Connecticut Nat. Bank, 503 U.S. at 254. Gonzales’s retreat from the Ninth Circuit’s ra- tionale is understandable, because the Ninth Circuit’s ruling does not withstand scrutiny. The text of § 3599 does not support the Ninth Circuit's ruling. If Con- gress had intended for § 3599 to create a right to be 7 competent te assist counsel in the federal habeas con- text, it would have said so expressly. Gonzales posits that § 3599 should be considered in light of the common-law understanding that a cli- ent must be competent to assist counsel. Gonzales Br. 16-17. But that common-law precept is more appro- priately applied to trial proceedings that occur before a defendant's conviction becomes final. The common law did not include a right to an appeal or to federal collateral review, which is a proceeding beyond what was necessary law to protect a defendant’s rights to due process. Furthermore, this Court adopted a standard for competence to be executed that does not include a right to competence to assist counsel. This Court’s decision in Ford v. Wainwright, 477 U.S. 399 (1986), requires only that the prisoner be aware “of the pun- ishment [he is] about to suffer and why [he is] to suffer it,” not that he be “able to assist in his own defense.” See id. at 422 n.3 (Powell, J., concurring in part and concurring in the judgment) (noting that the “prevailing test” in the States did not require compe- tence to assist counsel as a prerequisite to carrying out a death sentence). The Ford standard would be rendered meaning- less if a capital prisoner has a right to be competent to assist counsel. That is because inmates would pre- sumably be entitled to be competent to assist counsel in arguing that he is Ford incompetent. That would automatically change the Ford standard from being 8 aware “of the punishment [he is] about to suffer and why [he is] to suffer,” to he is “able to assist in his own defense.” The Ford standard was in place when Congress enacted § 3599 (in 1988), yet Congress gave no indication that it was legislatively overruling Ford or otherwise attempting to preempt the field in the area of competence to be executed. Accordingly, § 3599 should not be interpreted to require competency to assist ee. - Il. GONZALES’S ALTERNATIVE GROUNDS FOR UPHOLDING THE NINTH CIRCUIT'S RUL- ING ARE UNPERSUASIVE. Gonzales relies on § 2251 as providing the dis- trict courts with the authority to stay capital § 2254 proceedings. Gonzales Br. 10, 13-15, 17 n.9, 18, 28. This reliance on § 225i as authority to indefinitely stay his federal habeas proceedings is puzzling be- cause § 2251, which is entitled “Stay of State court proceedings,” expressly relates to state court, rather than federal habeas, proceedings. The text of the statute grants federal courts the power to “stay any proceeding against the person detained in any State court or by or under the authority of any State for any matter involved in the habeas corpus proceeding.” 28 U.S.C. § 2251(aX1) (emphasis added). Notably, nei- ther the Ninth Circuit nor Respondent Carter cited to * The entire text of 28 U.S.C. § 2251 is contained in the Ap- pendix to this Reply. 9 § 2251 or otherwise suggested that it provides a ra- tionale for indefinitely staying federal habeas pro- ceedings when a state prisoner is incompetent to assist counsel. Moreover, post-AEDPA amendments to § 2251 re- duced the federal courts’ authority to stay even state court proceedings. In 1994, this Court held that § 2251 provided jurisdiction for the federal courts to stay state court proceedings once a capital prisoner invoked his statutory right to appointed counsel. McFarland v. Scott, 512 U.S. 849, 858 (1994). In 2006, Congress amended § 2251 to permit only a 90-day stay of state proceedings upon appointment of counsel for a capital prisoner. PL 109-177, March 9, 2006, 120 Stat. 192 amending 28 U.S.C. § 2251(b)(2)(3). Congress also altered the holdimg of McFarland, adding that “(flor purposes of this section, a habeas corpus proceeding is not pendimg umti] the application is filed.” 28 U.S.C. § 2251(aN2). Thes, umiess a habeas application is filed within 90 days of the appeintment of capital counsel, the federal courts are wathout jurisdiction to Stay the state-court proceedings. Gonzales’s reliance on $ 2251 as authority for staying hes fede [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0673%3A0. Public record. Not legal advice.