Record and brief — Tibbals v. Carter
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No. 11-218
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SUPREME COURT
OF THE UNITED STATES
*** CAPITAL CASE ***
Terry Tibbals. Warden. Petitioner
V
Sean Carter
August 22, 2011
United States Court of Appeals for the Sixth Circuit
(08-4377)
Decision Date May 26, 201%
Questions
Presented
Aug 17 2011
Aug 17 2011
Sep 8 2011
Oct 28 2011
Oct 28 2011
Nov 7 2011
Nov 8 2011
Feb 22 2012
Mar 19 2012
Mar 19 2012
Apr 20 2012
Apr 20 2012
Apr 26 2012
May 8 2012
aemnemenenene Proceedings and Orders~~~~~~~~~~~~~~~~~~~~~
Petition for a writ of certiorari filed. (Response due September 21 2071)
Appendix of Terry Tibbals. Warden filed
Order extending time to file response to petition to and including October 31 2077
Brief of respondent Sean Carter in opposition filec
Motion for leave to proceed in forma pauperis filed by respondent
DISTRIBUTED for Conference of November 22, 2017
Reply of petitioner Terry Tibbals. Warden filed. (Distriouted)
DISTRIBUTED for Conference of March 16. 2012
Motion for leave to proceed in forma pauperis filed by respondent GRANTED
Petition GRANTED
The time to file the joint appendix and petitioner's brief on the merits is extended to and
including May 25, 2012
The time to file respondent's brief on the merits is extended to and including July 20
012
Motion to appoint counse! filed by respondent Sean Carter
Motion DISTRIBUTED for Conference of May 24. 2012
May 25 2012 Joint appendix filed (Statement of costs filed)
May 25 2012 Brief of petitioner Terry Tiobals, Warden filed
May 29 2012 Motion to appoint counse! filed by respondent GRANTED Scott Michelman. Esquire. of
Jun 1 2012
Jun 1 2012
Jul $2012
Jul 17 2012
Washington. D.C. is appointed to serve as counse! for the respondent in this case
Brief amicus curiae of the United States filed (also in 10-930)
Brief amici curiae of Utah, et al. filed (also in 70-930)
Consent to the filing of amicus curiae briefs, in support of either party or of neither party
received from counsel! for the respondent
Consent to the filing of amicus curiae briefs, in suport of either party or of neitner party
received from counsel! for petitioner
Jul 202012 Brief of respondent Sean Caner filed. (Distributed)
Jul 232012 SET FOR ARGUMENT ON Tuesday. October 9, 2012
Jul 242012 CIRCULATED.
Ju! 252012 Record received from U.S.C.A. for Sixth Circuit is electronic.
Jul 27 2012 Motion of the Solicitor Genera! for leave to oarticipate in oral argument as amicus curiae
and for divided argument filed. (also in 10-930)
Ju! 27 2012 Brief amici curiae of Retired Federal Judges filed VIDED. (Distributed)
Jul 27 2012 Brief amici curiae of American Psychiatric Association, et al filed. VIDED (Distributed)
Jul 27 2012 Brief amici curiae of American Civi! Liberties Union, et al. filed VIDED.
Jul 27 2012 Brief amicus curiae of American Bar Association filed (Distriputed)
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 Terry Tibbals. Warden filed. (Distriouted)
Aug 23 2012 Record from U.S.D.C. for Northern District of Ohio is electronic
Aug 28 2012 Record recieved from U.S.D.C. for Northern District of Ohio Eastern Division.
Transcripts and Exhibits. (6 Boxes)
Oct92012 Argued. For petitioner: Alexandra T. Schimmer. Solicitor Genera’, Columbus. Ohio. For
respondent Scott Michelman, Washington. D.C
Oct92012 Letter dated October 5. 2012 received from counse! for the respondent (Distridutea)
rn ET TT TE TT TT LT
PETITION
FOR
WRIT OF
CERTIORARI
FD ‘
a | ll U.S.
11-218 AUG 17 2011
No
OFFICE OF THE CLERK
3n the Supreme Court of the Hnited States
TERRY TIBBALS, Warden,
Petitioner,
Vv.
SEAN CARTER,
4 Respondent.
ON PETITION FOR WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
PETITION FOR WRIT OF CERTIORARI
MICHAEL DEWINE
Attorney General of Ohio
ALEXANDRA T. SCHIMMER*
Solicitor General
*Counsel of Record
DAVID M., LIEBERMAN
Deputy Solicitor
30 East Broad St., 17th Floor
Columbus, Ohio 43215
614-466-8980
alexandra.schimmer@
ohioattorneygeneral.gov
Counsel for Petitioner
Terry Tibbals, Warden
CAPITAL CASE—NO EXECUTION DATE SET
QUESTIONS PRESENTED
. Do capital prisoners possess a “right to
competence” in federal habeas proceedings under
Rees v. Peyton, 384 U.S. 312 (1966)?
2. Can a federal district court order an indefinite
stay of a federal habeas proceeding under Rees?
il
LIST OF PARTIES
The Petitioner is Terry Tibbals, the Warden of
the Mansfield Correctional Institution. Tibbals is
substituted for his predecessor, Margaret Bradshaw.
See Fed. R. Civ. P. 25(d).
The Respondent is Sean Carter, an inmate at
the Mansfield Correctional] Institution.
lll
TABLE OF CONTENTS
Page(s)
QUESTIONS PRESENTED ............ccccccsssoseccessesssoeees i
EE TE SS il
I ao cess ntisasinncneenanctesencesesscconss ili
Br I os ccncicvctesescssecssesessecesescoese Vv
PETITION FOR WRIT OF CERTIORAR1................ 1
a casmsnopmuabannesonetioe 1
JURISDICTIONAL STATEMENT......................0..065 1
STATUTORY PROVISIONS INVOLVED ................. 1
EEE Se oo 3
STATEMENT OF THE CASE ..............cccsscssserseceeecees 4
A. Carter raped and murdered his adoptive
SEES 4
B. A jury convicted Carter of murder and the
trial court imposed a death sentence.............. 5
C. The Ohio Supreme Court affirmed the
convictions and sentence, and the Ohio
courts denied post-conviction relief. ............... 7
D. The federal district court found Carter
incompetent and dismissed his habeas
petition without prejudice. ...................:eeeeee eens 8
E. The Sixth Circuit directed the district
court to stay Carter’s petition indefinitely
i a caripenncuecetesors 10
REASONS FOR GRANTING THE WRIT............... 11
iv
A. The significance of Rees v. Peyton is an
open and disputed question...................0.00ee 12
1. The Court has never clarified Rees......... 12
2. Most circuits interpret Rees to require
a competency hearing before a court
allows a prisoner to waive habeas
TT ssiccociecenpeinssticsindeshtiiidaiabeciesialiaiamicaihinliniepeiahimiali a tmnt 13
3. The Sixth Circuit interprets Rees to
establish a “right to competence” for
capital habeas petitioners. ...................... 15
B. The Sixth Circuit’s decision is in tension
with this Court’s habeas jurisprudence........ 17
1. The Sixth Circuit’s indefinite stay
REESE RE REE eas ee 17
2. The court’s decision supplants Ford uv.
TI scsciccenscsscininseihdiidiiuictiasapbeiiidcahinibidslclaiaeds 19
C. The Sixth Circuit's decision obstructs
Ohio’s capital litigation system..................... 20
IIIT cisccsesschinhetissisdnpessensiteiensetenticapdescnchisttistitmassibiiadeatandens 23
APPENDIX:
Appendix A: Opinion, United States Court of
Appeals for the Sixth Circuit, May 26, 2011............ la
Appendix B: Order of Dismissal, United
States District Court, Northern District of
Ohio, Eastern Division, Sept. 29, 2008................... 27a
Appendix C: Judgment Entry, United States
District Court, Northern District of Ohio,
Eastern Division, Sept. 29, 2008 .................cccceeeeee 55a
Vv
TABLE OF AUTHORITIES
CASES PAGE(S)
Awkal v. Mitchell,
othe [ 7 Yo || ane penrerenis 15
Awkal v. Mitchell,
560 F.3d 466 (6th Cir. 2008).............ccccccceccceceeess 15
Awkal v. Mitchell,
2006 U.S. App. Lexis 5984 (6th Cir. Mar. 8,
EELS TREE eine Oar ae TONY UO Te RAT STO SR 15
Bedford v. Collins,
| RR UR reece dan vane ey eee 13
Brewer v. Lewis,
989 F.2d 1021 (9th Cir. 1993)......... cee eee 13
Cullen v. Pinholster,
eR ee 4, 18, 22
Ford v. Wainwright,
er i passim
Harper v. Parker,
177 F.3d GOT (Gta Cit. 10GB)........ccccccccccccccccccscees 15
Henderson v. Haley,
353 F.3d 880 (11th Cir. 2003).........000.00000. 14, 17
Hill v. McDonough,
gf | ____ ERESERERIERIRMree eran NOY eee De NID 22
Michael v. Horn,
450 F.3e 411 (Sd Cir. 2006) .......cccccccoccscece.see 14, 17
Panetti v. Quarterman,
I ieeeabdaee 19
Rees v. Peyton,
I a 12
Rees v. Peyton,
ES ERNE ER ONE ai Carers rere passim
Rees v. Superintendent of the Va. State
Penitentiary,
EN a ae AES ee Re Te 12
Rhines v. Weber,
i cciennpeniasuinsadeds 18, 21
Rohan ex rel. Gates v. Woodford,
334 F.3d 803 (9th Cir. 2003).....................06 passim
Rumbaugh v. McCotter,
i aaleeieleabiiasesila 13
Rumbaugh v. Procunier,
TES F.Ba BOS (Gein Car. 19BB) q..cccccccccsccceccesescocceses 14
Sell v. United States,
I aa 22
Smith v. Armontrout,
s+} es § JT fe |) Renee 13
State v. Carter,
Py ee ee CI TO Dinincctcicnchciccciciescentccnsinenttnne 8
State v. Carter,
734 N.EB.2d 347 (Ohio BO0D).......c.cccccccccccccesses 4,5,7
State v. Carter,
2000 Ohio App. Lexis 5935 (Ohio Ct. App.
ESRC RAE Ne ee hh a eno ae 7
Whitmore v. Arkansas,
OR, i 13
STATUTES
RSS SERS on PRE Re teste RON So ae 9, 10, 14
FS ARERR tra terte ene anee eeee ener roms 1, 10, 16
a Ras Si I sie ices etieiesictibsbenemnseindiceiinineniapainonnamindiaiins 10
SEs TR III ic iciiicridaerietiaebaieeippnianianicnghodeaiies 2, 18, 19
PETITION FOR WRIT OF CERTIORARI
The Attorney General of Ohio, on behalf of
Terry Tibbals, Warden, respectfully petitions for a
writ of certiorari to review the judgment of the
United States Court of Appeals for the Sixth Circuit.
OPINIONS BELOW
The Sixth Circuit’s opinion, Carter v.
Bradshaw, 644 F.3d 329 (6th Cir. 2011), is
reproduced at App. la. The district court’s opinion,
Carter v. Bradshaw, 583 F. Supp. 2d 872 (N.D. Ohio
2008), is reproduced at App. 27a.
JURISDICTIONAL STATEMENT
The Sixth Circuit issued its opinion on May
26, 2011. The Warden files this petition and invokes
the Court’s jurisdiction under 28 U.S.C. § 1254(1).
STATUTORY PROVISIONS INVOLVED
Section 4241(a) of Title 18 provides:
At any time after the commencement of a
prosecution for an offense and prior to the
sentencing of the defendant, the defendant or
the attorney for the Government may file a
motion for a hearing to determine the mental
competency of the defendant. The court shall
grant the motion, or shall order such a hearing
on its own motion, if there is reasonable cause
to believ. that the defendant may presently be
suffering from a mental disease or defect
rendering him mentally incompetent to the
extent that he is unable to understand the
nature and consequences of the proceedings
against him or to assist properly in his
defense.
2
The Anti-Terrorism and Effective Death Penalty Act
of 1996 (““AEDPA”), Section 2254(d) of Title 28 of the
United States Code, provides:
An application for a writ of habeas corpus on
behalf of a person in custody pursuant to the
judgment of a State court shall not be granted
with respect to any claim that was adjudicated
on the merits in State court proceedings
unless the adjudication of the claim—
(1) resulted in a decision that was
contrary to, or involved an unreasonable
application of, clearly established
Federal law, as determined by the
Supreme Court of the United States.
(2) resulted in a decision that was based
on an unreasonable determination of
the facts in light of the evidence
presented in the State court proceeding.
3
INTRODUCTION
Alleging ineffective assistance of counsel, Sean
Carter seeks to overturn his conviction and death
sentence for the rape and murder of his adoptive
grandmother. The Ohio courts rejected the claim
eleven years ago, but the district court and the Sixth
Circuit refuse to act on Carter’s habeas petition.
The reason: The Sixth Circuit maintains that
capital prisoners have a “right to competence” in
federal habeas proceedings under Rees v. Peyton, 384
U.S. 312 (1966). Because Carter’s mental illness
“affect[s} his abilities to relay facts to his counsel and
communicate in detail,” App. 8a, the court ordered
an indefinite stay of his proceeding under Rees.
To this day, the Rees case is shrouded in
mystery. A capital prisoner attempted to withdraw
his petition for certiorari. After the district court
deemed him incompetent, this Court refused to act.
Without explanation, it let the petition sit on the
docket for three decades until the prisoner died.
The Court should grant review and resolve
two contradictory visions of Rees in the lower courts.
Most circuits adopt a narrow view of the case,
invoking it to evaluate the validity of a capital
prisoner’s request to withdraw his habeas petition.
But the Sixth Circuit divined a broad “right to
competence” from Rees: Courts should stay habeas
proceedings indefinitely whenever a_ capital
prisoner's mental condition renders him “unable to
communicate with his habeas attorneys.” App. 12a.
Certiorari is warranted for two other reasons.
First, the Sixth Circuit disregarded established
limits on its habeas authority. To justify its stay
4
order, the court explained that Carter is unable to
“provide . . . evidence in support of his claims” while
incompetent. App. 12a. But no new evidence can be
considered at this stage; AEDPA limits the prisoner
and his counsel to “the record that was before the
state court.” Cullen v. Pinholster, 131 S. Ct. 1388,
1398 (2011). The Sixth Circuit also disregarded this
Court’s carefully tailored framework for evaluating
claims of post-conviction incompetence—and its
requirements for exhaustion and __ state-court
deference. See Ford v. Wainwright, 477 U.S. 399
(1986).
Second, the Sixth Circuit’s decision is “an
anomalous monkey wrench thrown into the capital-
litigation process.” App. 26a (Rogers, J., dissenting).
The decision invites every capital prisoner to raise
similar claims of incompetence; it opens the door to
decades of collateral litigation; and it unnecessarily
(and in many cases, eternally) forestalls the State’s
ability to carry out its criminal judgments.
This case more than satisfies the well-worn
criteria for certiorari—lack of guidance from this
Court, manifest disagreement in the lower courts,
and a paramount State interest at risk. The Court
should grant review and reverse the judgment below.
STATEMENT OF THE CASE
A. Carter raped and murdered his adoptive
grandmother.
On September 13, 1997, Sean Carter snuck
into the home of his adoptive grandmother Veader
Prince. State v. Carter, 734 N.E.2d 345, 347 (Ohio
2000). Prince discovered Carter, asked him to leave
her house, and gave him a set of car keys. Id. at 348.
5
Carter departed, but returned later that day.
Finding the front door to Prince’s house locked, he
climbed in through a bedroom window. 7d. at 349-50.
Carter encountered Prince, who again
instructed him to leave. When Prince “tried to push
him out the door,” Carter “started to beat her.” Jd. at
350. He then raped Prince anally and stabbed her
with a kitchen knife. A later autopsy indicated that
Prince suffered eighteen stab wounds and blunt force
trauma to the face. Id. at 349.
To cover up the murder, Carter piled clothes
over Prince’s body, moved furniture to hide blood
stains, turned on the water in the bathroom, and
placed a chicken on a stove. He then changed his
bloody clothes, took $150 from Prince’s purse, and
stole a car from the driveway. Id. at 350.
On September 14, Prince’s daughter and son
visited the home, but could not find their mother.
Returning that evening, they located Prince’s dead
body in the basement and called police. /d. at 348.
On September 15, officers in Pennsylvania
located Carter sleeping in the stolen car. The officers
contacted Ohio authorities, who indicated that they
wanted Carter for questioning. Jd. at 349. After
waiving his Miranda rights, Carter confessed to
murdering Prince. He waived extradition and
returned to Ohio. Jd. at 349-50.
B. A jury convicted Carter of murder and
the trial court imposed a death sentence.
A grand jury indicted Carter for aggravated
murder, aggravated burglary, aggravated robbery,
and rape. See Carter, 734 N.E.2d at 350.
6
The trial court appointed an expert, Dr.
Stanley Palumbo, to examine Carter’s mental state.
“With reasonable scientific certainty,” Dr. Palumbo
concluded that “Carter [was] competent to stand
trial.” dd. at 355. He testified that “Carter
underst{ood] the nature of the proceedings against
him and d[id] not suffer any gross mental disorder
that would interfere with his ability to participate in
his defense.” Jd. In light of this report, the trial
court deemed Carter competent to stand trial. Jd.
Carter entered a plea of not guilty by reason of
insanity, and three experts examined his mental
state. The first, Dr. Stephen King, concluded that
Carter “exhibited bizarre behavior” and “was not
able to assist in his own defense” (although he
admitted that his diagnosis “was a close call”). Jd.
The second expert, Dr. Palumbo, reaffirmed his
earlier diagnosis: Carter was competent and
“express[ing] anger and _ irritability with his
attorneys.” Jd. at 356. A third expert, Dr. Robert
Alcorn, agreed with Dr. Palumbo’s conclusions. Id.
After examining the reports, the trial court
found Carter competent. Jd. The case proceeded to
trial and Carter absented himself from most of the
proceedings. Jd. at 350. The jury convicted Carter of
aggravated murder with death _ specifications,
aggravated robbery, rape, and criminal trespass.
After the penalty phase, the jury recommended a
death sentence, which the trial court imposed. 7d.
7
C. The Ohio Supreme Court affirmed the
convictions and sentence, and the Ohio
courts denied post-conviction relief.
On direct appeal, Carter challenged the trial
court’s competency finding. The Ohio Supreme
Court rejected the claim: “The trial court’s findings
of fact fail to support Carter’s claim that the court’s
decision was unreasonable, arbitrary, or
unconscionable.” Carter, 734 N.E.2d at 356. The
court dismissed Carter’s other objections and
affirmed his convictions and death sentence.
Carter next sought post-conviction relief in the
Ohio courts, attacking the performance of his trial
counsel. He claimed that “his attorneys failed to
develop a complete record to show that he was
incompetent to stand trial because his paranoid
personality did not permit him to trust, or therefore
consult with and aid, his lawyers.” State v. Carter,
No. 99-T-133, 2000 Ohio App. Lexis 5935, at *10
(Ohio Ct. App. Dec. 15, 2000).
Carter submitted an affidavit by trial counsel,
who confirmed that Carter “would not cooperate” or
“discuss any aspects of the case or his personal life.”
Id. The affidavit also indicated that Carter “wanted
to kill his attorney,” that Carter’s “mother and uncle
were paranoid schizophrenics,” and that Carter
would appear in court only “if his attorneys bribed
him with candy.” Jd. at *11.
The trial court denied relief, and the Ohio
court of appeals affirmed. The appellate court
concluded that “[nJeither [Carter’s] petition for
postconviction relief nor his brief raise new grounds
or point to anything outside the record to
8
demonstrate that he is entitled to relief’ on his
ineffective assistance claim. Jd. at *13. The court
further observed that Carters “inability or
unwillingness to aid his attorneys in the defense of
his case [was] well-documented.” 7d.
The Ohio Supreme Court denied review. See
State v. Carter, 746 N.E.2d 612 (Ohio 2001).
D. The federal district court found Carter
incompetent and dismissed his habeas
petition without prejudice.
In 2002, Carter sought habeas relief. He
submitted a series of pleadings, culminating in 2005
with his third amended habeas petition. Also in
2005, Carter filed a “motion for competency
determination and to stay proceedings.” App. 28a.
The district court ordered a competency
hearing. Carter’s expert, Dr. Robert Stinson,
testified that Carter had “schizophrenia,” a
“depressive disorder,” and “a personality disorder.”
App. 30a. The condition, Dr. Stinson said, “distorts
his inferential thinking,” “affect(s] ... his language
and communication abilities,” and prevents him from
developing “a factual understanding of the
proceedings.” App. 30a-3la. Dr. Stinson agreed that
“Carter could communicate with his attorneys, but
indicated that “his schizophrenia renders him an
‘unreliable historian.”! App. 32a.
Carter’s second expert, Dr. Michael Gelbort,
agreed that Carter's “thinking skills are fragmented
and distracted”: Although Carter can provide “basic
1 Dr. Stinson filed an updated report two years later, indicating
that “Carter’s mental condition ha[d] deteriorated.” App. 35a.
9
assistance ... it’s not worth a whole lot of time or
effort on his attorneys’ part because his cognitive
capabilities are so limited.” App. 33a.
The Warden’s expert, Dr. Phillip Resnick,
agreed that Carter has “chronic undifferentiated
schizophrenia.” App. 34a. But Dr. Resnick testified
that Carter understood the nature of the murder
conviction and the punishment: “[I]n my view, he
meets the minimum standard because he can speak
rationally and convey information.” App. 35a. Dr.
Resnick further indicated that Carter “can convey
basic information, but... his illness does not permit
him to give a rich description.” Jd.
After reviewing this testimony, the district
court invoked Rohan ex rel. Gates v. Woodford, 334
F.3d 803 (9th Cir. 2003). App. 36a. In Rohan, the
Ninth Circuit indicated that capital prisoners
possess a “right to competence” in_ habeas
proceedings, rooted in their statutory right to
appointed counsel under 18 U.S.C. § 3599(a)(2).
Applying Rohan, the district court concluded
that several of Carter’s habeas claims—that he was
incompetent at his trial, and that his attorneys were
ineffective in pursuing the claim—“potentially could
benefit from Carter’s assistance.” App. 42a-43a. The
court then evaluated Carters mental state:
Although Carter’s capacity to understand his
position and the proceedings was “debatable” and “a
difficult decision,” his “diminished .. . ability to
communicate with counsel” was “clear-cut.” App.
45a. Under the Rohan standard, the district court
determined “that Carter [was] incompetent to
proceed with this federal habeas litigation.”
App.47a.
10
In light of that finding, the district court
“dismisse[d] without prejudice” the habeas petition
and “prospectively toll[ed] the one-year statute of
limitations set forth in 28 U.S.C. § 2244(d) ... until
such time as... Carter is competent to proceed with
his federal habeas litigation.” App 53a.
E. The Sixth Circuit directed the district
court to stay Carter’s petition
indefinitely due to incompetency.
On appeal, the Sixth Circuit agreed with the
district court’s bottom-line ruling, but not its specific
analysis or remedy. The court did not find a “right to
competence” under Rohan or 18 U.S.C. § 3599.
Instead, the Sixth Circuit held that Carter enjoyed a
right to competence under Rees v. Peyton, 384 U.S.
312 (1966) and 18 U.S.C. § 4241—the federal statute
discussing a criminal defendant’s competence at
trial. App.4a-5a.
In this case, Carter “refused to meet with his
attorneys to discuss collateral attacks on his
conviction” and he “suffered from multiple
psychological disorders affecting his abilities to relay
facts to his counsel.” App. 8a. Given those findings,
the Sixth Circuit affirmed the district court’s
competency determination. ld.
But the Sixth Circuit said “it was improper for
the district court to dismiss Carter’s petition and
prospectively toll the AEDPA statute of limitations
indefinitely.” App. lla. Instead, the Sixth Circuit
said the district court should have followed the Ninth
Circuit’s remedy in Rohan—‘“habeas proceedings
should be stayed until the petitioner is found to be
competent.” App. 14a.
11
The Sixth Circuit instructed the district court
to stay indefinitely its consideration of Carter’s
ineffective assistance claim. App. l5a. As to the
remaining habeas claims, the Sixth Circuit directed
the district court “to determine whether Carter’s
assistance is essential to their full and fair
adjudication.” Jd. If “Carter’s other claims might
possibly be litigated without his assistance,” App.
13a, the Sixth Circuit instructed the district court to
appoint a next friend to litigate on Carter’s behalf.
Judge Rogers dissented. He argued that the
majority's decision “allows habeas petitioners to
prevent States from enforcing their judgments,
potentially forever, on the grounds of a nonexistent
right to competency in habeas proceedings.” App.
15a-16a. That right, he said, “has no basis in the
Constitution or federal statues.” App. 16a.
REASONS FOR GRANTING THE WRIT
The Court should grant the Warden’s petition
for three reasons. First, the Sixth Circuit’s novel
interpretation of Rees v. Peyton, 384 U.S. 312
(1966)—that habeas petitioners have a “right to
competence”—is shared by no other circuit.
Second, the Sixth Circuit's decision runs
headlong into AEDPA and Ford v. Wainwright, 477
U.S. 399 (1986). The court ordered an indefinite stay
of a capital habeas proceeding—something that
AEDPA prohibits. And the court’s opinion
circumvents Ford’s procedural and_ substantive
limitations on post-conviction incompetency claims.
Third, this decision will improperly bring
Ohio’s capital litigation to a halt. Under the Sixth
Circuit’s extraordinarily loose standards, any
12
prisoner can make a minimal showing of
incompetence, demand a hearing, and secure an
indefinite stay of his habeas proceedings.
A. The significance of Rees v. Peyton is an
open and disputed question.
& The Court has never clarified Rees.
In Rees, a capital prisoner instructed his
attorney to withdraw his pending petition for
certiorari. 384 U.S. at 313. Counsel objected,
indicating that “he could not conscientiously accede
to these instructions without a_ psychiatric
evaluation.” Jd. This Court stated that “it [was]
ultimately the responsibility of this Court to
determine” “[w]hether or not Rees shall be allowed in
these circumstances to withdraw his certiorari
petition.” Jd. The Court then remanded the case to
the district court to determine “whether [the
prisoner] ha[d] capacity to appreciate his position
and make a rational choice with respect to
continuing or abandoning further litigation or...
whether he [was] suffering from a mental disease,
disorder, or defect which may substantially affect his
capacity in the premises.” /d. at 314.
After the district court found the prisoner
incompetent, this Court, in an unexplained order,
“held without action” the petition for certiorari. Rees
v. Peyton, 386 U.S. 989 (1967). Decades passed.
When the prisoner died in 1995, the Court finally
dismissed the petition. See Rees v. Superintendent of
the Va. State Penitentiary, 516 U.S. 802 (1995).
The Court has never again ordered such relief,
although others have requested it. Just last term, a
capital prisoner filed a petition for certiorari and
13
invoked Rees. Alleging incompetence, the prisoner
requested a competency determination and sought a
stay of the proceedings. The Court summarily
denied the request and the petition. See Bedford v.
Collins, 130 S. Ct. 2344 (2010).
In fact, the Court has shown very little
interest in Rees over the years. Despite the high
number of capital habeas petitions and incompetency
claims on the Court’s docket, the case makes only
one other appearance in the United States Reporter.
See Whitmore v. Arkansas, 495 U.S. 149, 166 (1990)
(citing Rees to deny standing to a “next friend” who
attempted to pursue an appeal on behalf of a capital
prisoner). Several dissenting opinions mention the
case, but only to reiterate the standard for reviewing
a prisoner’s request to terminate his habeas rights.
See, e.g., Rumbaugh v, McCotter, 473 U.S. 919, 919
(1985) (Marshall, J., dissenting) (“Rees specified the
findings necessary to a determination that one who
seeks to waive further review of a criminal conviction
is competent to make such a grave choice.”).
In short, the Court has never explained Rees
or the basis for its “hold without action” choice.
2. Most circuits interpret Rees to
require a competency hearing
before a court allows a prisoner to
waive habeas relief.
In most federal circuits, Rees is relied om in
one discrete situation—“where a death-row inmate
elects to abandon further legal proceedings.” Smith
v. Armontrout, 812 F.2d 1050, 1057 (8th Cir. 1987);
accord Brewer v. Lewis, 989 F.2d 1021, 1026 n.4 (9th
Cir. 1993) (Rees “state[s] the test for determining
14
whether a habeas petitioner is competent to waive
his right to federal review of his conviction and
sentence.”); Rumbaugh v. Procunier, 753 F.2d 395
398 (5th Cir. 1985) (same).
In those cases, Rees provides “the controlling
legal standard for assessing the validity of a death
row inmate’s choice to forego post-conviction review.”
Henderson v. Haley, 353 F.3d 880, 893 (11th Cir.
2003). “An appeal may not be withdrawn if the
prisoner is incompetent.” Michael v. Horn, 459 F.3d
411, 420 (3d Cir. 2006). If a court “ha[s] any doubts
about [the prisoner’s] competency,” Rees demands a
hearing. Jd.
The Ninth Circuit's take on Rees is
particularly revealing. Although the court affords
capital prisoners a “right to competence” in their
federal habeas proceedings, it does not ground that
right in Rees. Rather, the Ninth Circuit locates the
right in 18 U.S.C. § 3599, which supplies appointed
counsel to capital prisoners. See Rohan ex rel. Gates
v. Woodford, 334 F.3d 803, 813 (9th Cir. 2003).
To be sure, the Ninth Circuit’s reading of
§ 3599 is open to debate.2, See App. 20a (Rogers, J.,
dissenting) (criticizing Rohan because the provisions
of § 3599 “say nothing about the competency of the
petitioner”). But the court offered one significant
observation: Whether or not capital prisoners have a
right of “competence to pursue collateral review of a
state conviction in federal court . . . is an issue the
Supreme Court precedents do not conclusively
resolve.” Rohan, 334 F.3d at 810.
2 The State of Arizona is seeking review of Rohan’s holding.
See Pet’n for Cert., Ryan v. Gonzales, No. 10-930.
15
3. The Sixth Circuit interprets Rees to
establish a “right to competence”
for capital habeas petitioners.
For decades, the Sixth Circuit applied Rees
narrowly like its sister circuits do—to “cases where a
death row inmate seeks to forego further appeals.”
Harper v. Parker, 177 F.3d 567, 571 (6th Cir. 1999).
If a court “believe[s] that the defendant may be...
suffering from a mental disease or defect,” it should
conduct “a preliminary hearing” to discern whether
he is competent “to waive his right to further
appeals.” Id.
Recent proceedings illustrate this practice. In
Awkal v. Mitchell, a capital prisoner informed the
Sixth Circuit of his desire to withdraw his habeas
petition. Consistent with Rees, the court stayed its
proceeding and instructed the district court to
conduct a competency hearing. See Awkal uv.
Mitchell, No. 01-4728, 2006 U.S. App. Lexis 5984, at
*4 (6th Cir. Mar. 8, 2006).
After the district court found the prisoner
incompetent, a Sixth Circuit panel denied his request
to terminate the appeal and proceeded to issue a
decision on the merits, granting habeas relief. See
Awkal v. Mitchell, 559 F.3d 456 (6th Cir. 2009). The
en banc court then reversed that decision. See
Awkal v. Mitchell, 613 F.3d 629 (6th Cir. 2010) (en
banc), cert. denied, 131 S. Ct. 1002 (2011). Although
every member of the Sixth Circuit—the majority and
the dissenters—recognized the prisoner’s
incompetence, not one contemplated the need for an
indefinite stay under Rees.
16
The Sixth Circuit took the very opposite
approach here. The court announced that capital
habeas petitioners possess “a statutory right to
competence” because the Rees decision incorporated
the federal competency-to-stand-trial statute, 18
U.S.C. § 4241, into habeas proceedings. App. 4a-5a.
The Sixth Circuit further announced that Rees
may be invoked “by action or inaction.” App. 7a.
Unlike the Rees prisoner, who expressly sought to
“withdraw [his] petition and forgo any further legal
proceedings,’ 384 U.S. at 313, Carter has never
attempted to terminate this litigation. No matter,
the Sixth Circuit said, because district courts may
conduct competency hearings under Rees whenever
(1) the prisoner “refuse[s] to meet with his attorneys
to discuss collateral attacks”; and (2) his attorneys
express concern that the prisoner “[can]not
understand the proceedings or assist counsel in his
defense.” App. 8a.
The Sixth Circuit’s decision creates two clear
divisions in lower court authority. First, it held that
this Court established the “right to competence” on
federal habeas review “long ago” in Rees. App. 4a.
No other circuit adopts that view. To the contrary,
these others courts recognize that the issue of
competence in habeas proceedings is one that “the
Supreme Court precedents do not conclusively
resolve.” Rohan, 334 F.3d at 810 (emphasis added).
Second, the Sixth Circuit held that Rees may
be invoked in a variety of situations and absent a
request to terminate post-conviction proceedings.
Other circuits take a far more constrained view: The
standards in Rees are used only to “assess[] the
validity of a death row inmate’s choice to forego post-
17
conviction review.” Henderson, 353 F.3d at 893.
Where the prisoner does not “direct{] his counsel to
withdraw his petition .. . and to forgo any further
federal habeas proceedings,” Michael, 459 F.3d at
420, these circuits do not apply Rees.
The disagreement across the circuits is stark.
The Court should grant certiorari and resolve these
divergent approaches to Rees.
B. The Sixth Circuit’s decision is in tension
with this Court’s habeas jurisprudence.
Even without the circuit split, this case would
still be worthy of review because the decision below
is incompatible with AEDPA and Ford 0v.
Wainwright, 477 U.S. 399 (1986).
1. The Sixth Circuit’s indefinite stay
violates AEDPA.
After establishing a new pathway for
incompetency claims, the Sixth Circuit crafted an
exceptional remedy. Because the district court found
Carter incompetent, the Sixth Circuit ordered an
indefinite stay of his habeas proceeding.
According to the court, “Carter alone has
evidence of the interactions between him and his
trial and appellate attorneys, and that evidence is
inaccessible as long he remains unable _ to
communicate with his habeas attorneys.” App. 12a.
The only suitable response, the Sixth Circuit said,
was an indefinite stay: The district court could not
appoint a “next friend” to represent Carter in this
litigation because “the next friend would be forced to
proceed through this action without the foundational
facts that support Carter’s claims.” App. 13a.
18
The Sixth Circuit’s decision, premised on
Carter’s incompetence, is inconsistent with AEDPA.
See Rhines v. Weber, 544 U.S. 269, 276 (2005)
(‘AEDPA .. . circumscribe[s] the[] discretion” of
federal courts “to issue stays” in habeas proceedings).
The Sixth Circuit mistakenly assumed that a stay
was necessary to preserve Carter’s ability “to provide
... evidence in support of his claims.” App. 12a.
But Carter will never have the opportunity on
habeas review to offer evidence in support of his
claims, even if he regains competency. Under
AEDPA, “[t]he record under review is limited to...
the record before the state court.” Cullen uv.
Pinholster, 131 S. Ct. 1388, 1398 (2011). The federal
courts “are barred from considering . . . evidence”
extraneous to the state court record. Jd. at 1411
n.20. Therefore, any evidence that Carter might
“later introduce[] in federal court is irrelevant to
§ 2254(d)(1) review.”* Id. at 1400 (emphasis added).
Simply put, a capital prisoner’s incompetence
in no way obstructs his habeas attorneys’ ability to
advance, or the federal courts’ ability to adjudicate,
his habeas claims. For that reason, AEDPA
prohibits the issuance of an indefinite stay based on
a prisoner’s incompetence.
3 The Ninth Circuit made the same mistake in Rohan. Allowing
a habeas proceeding to go forward, the court feared, would
“prevent [the incompetent prisoner] from ever presenting th[e]
evidence [within his private knowledge] to a federal tribuna).”
334 F.3d at 818. If such evidence is not already included in the
state court record, AEDPA precludes its consideration.
19
2. The court’s decision supplants Ford
v. Wainwright.
The Sixth Circuit’s decision is monumental in
a second respect: It effectively puts an end to this
Court’s decision in Ford v. Wainwright, 477 U.S. 399,
410 (1986), which “prohibits the State from carrying
out a sentence of death upon a prisoner who is
insane.”
Three critical limitations inure to Ford-based
incompetency claims. First, the test is demanding:
To halt an execution, a court must find that the
prisoner cannot. rationally understand “the
punishment [he is} about to suffer and why [he is] to
suffer it.” Panetti v. Quarterman, 551 U.S. 930, 957
(2007) (citation omitted). Second, the window to file
the claim is limited: The prisoner must wait until
his “execution is imminent.” Jd. at 946. Third, the
prisoner must abide by AEDPA. To secure federal
habeas relief, he must exhaust the Ford claim in
state court and, upon returning to federal court,
demonstrate that the state court’s ruling is “contrary
to” or “an unreasonable application” of clearly
established federal law. 28 U.S.C. §§ 2254(b)(1)(A),
(d)(1).
The Sixth Circuit’s decision here undoes those
constraints in several respects.
As a preliminary matter, the Sixth Circuit’s
definition of “incompetence” is looser than the Ford
standard. Rather than investigating the prisoner’s
ability to comprehend his death sentence, the Sixth
Circuit focuses on the prisoner’s capacity for effective
communication with his attorneys. Any mental
illness could trigger that minimal standard.
20
Also under the Sixth Circuit’s framework,
incompetency claims ripen much sooner, and stay
ripe for much longer, than Ford claims. Prisoners
like Carter (who are nowhere near execution) can
raise challenges at any point during their federal
habeas proceedings—from the initial filing until the
eve of certiorari review. No longer are they confined
to the period before their execution date.
Finally, these incompetency claims _ skirt
AEDPA. Under the Sixth Circuit’s decision, a
prisoner can bypass the state courts entirely, file his
claim in federal court, and secure de novo review. If
successful, the prisoner “prevent[s] [the] State{] from
enforcing {its] judgments, potentially forever.” App.
15a (Rogers, J., dissenting).
All told, the Sixth Circuit’s “right to
competence” displaces the Ford decision. The
decision below does everything that Ford does, but
on less rigorous terms—a lax definition of
“incompetence,” a long filing window, and no state
court deference. Because capital prisoners can now
litigate competency claims in this more favorable
forum, they will no longer have any use for Ford.
In short, the Sixth Circuit’s framework
impermissibly circumvents AEDPA and _ Ford.
Further review is therefore warranted.
Cc. The Sixth Circuit’s decision obstructs
Ohio’s capital litigation system.
Certiorari is necessary for a third reason. As
Judge Rogers observed below, the Sixth Circuit’s
decision is “an anomalous monkey wrench thrown
into the capital-litigation process.” App. 26a. It will
21
seriously and unnecessarily disrupt these
proceedings.
First, the “right to competence,” as defined by
the Sixth Circuit, is easily invoked. The district
court here ordered a hearing after “Carter
refused to meet with his attorneys” and his attorneys
expressed fear that “Carter could not understand the
proceedings or assist counsel.” App. 8a. Any capital
prisoner can replicate that scenario, request a
competency hearing under Rees, and seek an
immediate stay of proceedings. Cf. Rhines, 544 U.S.
at 277-78 (observing that “capital petitioners might
deliberately engage in dilatory tactics to prolong
their incarceration and avoid execution of the
sentence of death”).
Second, this process is quite protracted.
Carter filed his habeas petition in 2002 and his
competency motion in 2005. The district court issued
a determination in 2008 and the Sixth Circuit
affirmed that finding in 2010. Over eight years have
passed without any consideration of the merits of
Carter’s habeas petition. A capital prisoner
advancing a_ similar incompetency motion—no
matter how frivolous—can expect a similar delay.
Third, the Sixth Circuit’s decision gives birth
to all sorts of collateral litigation. Most immediate,
the Sixth Circuit instructed the district court to sort
through Carter’s remaining habeas claims and
“determine whether Carter’s assistance is essential
to their full and fair adjudication.” App. 15a. If the
district court allows any claims to go forward, Carter
will appeal. Next, the State will develop a
medication plan in an effort to restore Carter to
competency. Carter will presumably object to forced
22
medication, prompting another round of hearings
and appeals. See, e.g., Sell v. United States, 539 U.S.
166 (2003). Finally, if Carter’s condition improves,
the State will ask the district court to lift the stay.
As part of its new responsibility “to monitor Carter’s
on-going condition,” App. 14a, the district court will
appoint another coterie of experts, conduct another
competency hearing, and issue another set of
findings—and the displeased party will take yet
another appeal.
Fourth, “competency” is not a static condition.
A capital prisoner deemed competent at the start of
his habeas proceeding may claim that he has later
become incompetent. When habeas proceedings span
decades (as they often do in the Sixth Circuit), a
prisoner can seek several competency
determinations. Each request then restarts this
lengthy process.
And all these labors will be for naught:
Contrary to the Sixth Circuit’s assumption, see App.
12a-13a, prisoners like Carter (even if they regain
competency) may not submit new evidence in a
federal habeas proceeding. They must demonstrate
an entitlement to relief using only “the record that
was before that state court.” Pinholster, 131 S. Ct. at
1398.
At bottom, the Sixth Circuit’s “monkey
wrench” forestalls the conclusion of an untold
number of capital habeas proceedings and frustrates
“the State’s strong interest in enforcing its criminal
judgments.” Hill v. McDonough, 547 U.S. 573, 584
(2006). If such consequences are to be imposed on
the State and its citizens, they should occur only
after careful deliberation from this Court.
23
CONCLUSION
The Court should grant the petition for
certiorarl.
August 17, 2011
Respectfully submitted,
MICHAEL DEWINE
Attorney General of Ohio
ALEXANDRA T. SCHIMMER*
Solicitor General
*Counsel of Record
DAVID M. LIEBERMAN
Deputy Solicitor
30 East Broad St., 17th Floor
Columbus, Ohio 43215
614-466-8980
alexandra.schimmer@
ohioattorneygeneral.gov
Counsel for Petitioner
Terry Tibbals, Warden
APPENDIX
| veer & Vev.
—
~ PILED
Rae 11-218 AUG 17 2011
ae arhe No. __ OFFICE OF THE CLERK
3n the Supreme Court of the Anited States
TERRY TIBBALS, Warden,
Petitioner,
Vv.
SEAN CARTER,
Respondent.
ON PETITION FOR WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
APPENDIX
MICHAEL DEWINE
Attorney General of Ohio
ALEXANDRA T. SCHIMMER*
Solicitor General
*Counsel of Record
DAVID M. LIEBERMAN
Deputy Solicitor
30 East Broad St., 17th Floor
Columbus, Ohio 43215
614-466-8980
alexandra.schimmer@
ohioattorneygeneral.gov
Counsel for Petitioner
Terry Tibbals, Warden
Fenn es c . _ Aw oraed
Law Liorery
i
TABLE OF CONTENTS
Page
Appendix A: Opinion, United States Court of
Appeals for the Sixth Circuit, May 26, 2011............ la
Appendix B: Order of Dismissal, United
States District Court, Northern District of
Ohio, Eastern Division, Sept. 29, 2008................... 27a
Appendix C: Judgment Entry, United States
District Court, Northern District of Ohio,
Eastern Division, Sept. 29, 2008 ....................02c000ee 55a
la
APPENDIX A
RECOMMENDED FOR FULL-TEXT
PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 11a0146p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
No. 08-4377
SEAN CARTER,
Petitioner-Appellee,
v.
MARGARET BRADSHAW, Warden,
Respondent-Appellant.
Appeal from the United States District Court
for the Northern District of Ohio at Toledo.
No. 02-00524—Peter C. Economus, District Judge.
Argued: December 2, 2010
Decided and Filed: May 26, 2011
Before: MARTIN, COLE, and ROGERS,
Circuit Judges
COUNSEL
ARGUED: Charles L. Wille, OFFICE OF THE
OHIO ATTORNEY GENERAL, Columbus, Ohio, for
2a
Appellant. Linda Kk. Prucha, OHIO PUBLIC
DEFENDER’S OFFICE, Columbus, Ohio, for
Appellee. ON BRIEF: Charles L. Wille, Holly E.
LeClair, OFFICE OF THE OHIO ATTORNEY
GENERAL, Columbus, Ohio, for Appellant. Linda E.
Prucha, Rachel Troutman, OHIO PUBLIC
DEFENDER’S OFFICE, Columbus, Ohio, for
Appellee.
MARTIN, J., delivered the opinion of the
court, in which COLE, J., joined. ROGERS, J. (pp.
12-18), delivered a separate dissenting opinion.
OPINION |
BOYCE F. MARTIN, JR., Circuit Judge. In
this habeas action where petitioner Sean Carter is
facing the death penalty according to his Ohio
conviction, the district court found that Carter is
incompetent, dismissed his _ petition without
prejudice, and equitably tolled the Antiterrorism and
Effective Death Penalty Act statute of limitations
prospectively until he is competent to proceed.
Respondent Warden Margaret Bradshaw appeals
that decision. For the following reasons, we
AMEND the district court’s judgment and
REMAND the case to the district court for
proceedings in accordance with this opinion.
I. BACKGROUND
For a full description of the facts of this case,
we point to the thorough order of the district court.
We detail here only the facts necessary for our
3a
discussion. After Carter exhausted the Ohio state
review processes for his conviction, he was housed in
a facility for prisoners with severe mental illnesses.
His attorneys attempted to meet with him there to
discuss avenues for collateral appeal, but he refused
to see them. Worried that their client was
incompetent and choosing to forego further appeals
of his conviction and sentence, the attorneys filed
Carter’s habeas petition and a motion for a pre-
petition competency hearing.
The district court held a competency hearing
on May 1, 2006 at which experts for both parties
agreed that Carter suffered from schizophrenia,
personality disorder, and hallucinations. They also
agreed that he was not able to fully and articulately
communicate with his counsel, but they disagreed as
to how well he could assist his counsel in his case.
Carter’s first expert, Dr. Robert Stinson, opined that
Carter lacked a factual understanding of the
proceedings. He explained that Carter could not
provide details or elaboration, or engage in dialogue.
Additionally, he explained that Carter did not
believe he could be executed unless he volunteered,
and that Carter could not accurately identify his
attorneys, instead thinking that Bradshaw’s expert,
Dr. Phillip Resnick, was his attorney. Carter also
called Dr. Michael Gelbort, a clinical
neuropsychologist, who testified that Carter could
not accurately describe historical events from his
case and could not learn and retain new information.
On the other hand, Resnick testified that Carter
could provide basic details to his counsel, albeit
without much elaboration. He also believed, based
upon the opinion of a social worker who had worked
4a
with Carter and not upon his own clinical
examination, that Carter had accepted that he would
be executed if he lost his appeals.
Approximately two years later, Stinson
provided the court with an updated description of
Carter’s condition. Stinson opined that Carter’s
condition had become “progressively worse, and
despite treatment, he appears to have significant
psychosis and functional limitations even when he is
at his expected baseline.” Based upon the evidence
presented at the hearing and Stinson’s update, the
court concluded that Carter was incompetent to
understand his current position or to assist his
habeas counsel. As a result, the court dismissed the
habeas petition without prejudice and prospectively
tolled the AEDPA statute of limitations until Carter
regained competency.
Il. DISCUSSION
A. The Right to Competence in the Habeas
Context
Federal habeas petitioners facing the death
penalty for state criminal convictions do not enjoy a
constitutional right to competence. However, the
Supreme Court held long ago that they do have a
statutory right to competence in certain situations.
In Rees v. Peyton, 384 U.S. 312, 313-14 (1966), a
habeas petitioner facing death row petitioned the
Court for a writ of certiorari, but subsequently
“directed his counsel to withdraw the petition and
forgo any further legal proceedings.” To the Court,
“{w]hether or not [the defendant] shall be allowed in
these circumstances to withdraw his certiorari
petition is a question which it is ultimately the
responsibility of this Court to determine, in the
resolution of which Rees’ mental competence is of
prime importance.” Jd. at 313. The Court ordered
the district court to “make a judicial determination
as to Rees’ mental competence and render a report
on the matter” in order to “aid... the proper exercise
of th[e] Court’s certiorari jurisdiction.” Jd. at 313-14.
To accomplish this goal, the Court directed the
district court to apply 18 U.S.C. §§ 4244-4245, which
has been recodified as 18 U.S.C. § 4241. Id. at 314.
Section 4241 states that a district court may
hold a competency hearing “if there is reasonable
cause to believe that the defendant may presently be
suffering from a mental disease or defect rendering
him mentally incompetent to the extent that he is
unable to understand the nature and consequences of
the proceedings against him or to assist properly in
his defense.” 18 U.S.C. § 4241 (2006) (emphasis
added). If, according to this standard, the district
court concludes that a defendant is mentally
incompetent, the court:
shall commit the defendant to the custody of
the Attorney General. The Attorney General
shall hospitalize the defendant for treatment
in a suitable facility--
(1) for such a reasonable period of time,
not to exceed four months, as is
necessary to determine whether there is
a substantial probability that in the
foreseeable future he will attain the
capacity to permit the proceedings to go
forward; and
6a
(2) for an additional reasonable period
of time until--
(A) his mental condition is so
improved that trial may proceed,
if the court finds that there is a
substantial probability that
within such additional period of
time he will attain the capacity to
permit the proceedings to go
forward; or
(B) the pending charges against
him are disposed of according to
law;
whichever is earlier.
Id. § 4241(d). Additionally, section 4241(d) explains
that if the defendant’s mental condition does not
improve, he may be institutionalized for a longer
period of time according to 18 U.S.C. §§ 4246, 4248.
Id.
By applying section 4241 to habeas actions,
Rees addresses the situation where a_ habeas
petitioner awaiting the death penalty may seek to
forego any collateral attacks on his conviction or
sentence, and defines a statutory right for the
petitioner to be competent enough to (1) understand
the nature and consequences of the proceedings
against him, and (2) assist properly in his defense.
Furthermore, we have relied on Rees and held
that federal habeas courts may conduct preliminary
hearings to determine “whether there was
‘reasonable cause to believe that the defendant may
Ta
presently be suffering from a mental disease or
defect rendering him mentally incompetent’ to waive
his right to further appeals.” Harper v. Parker, 177
F.3d 567, 571 (6th Cir. 1999) (quoting 18 U.S.C.
§ 4241). A district court’s determination whether
there was “reasonable cause” is reviewed for abuse of
discretion. Jd. at 571-72.
In Harper, a psychiatrist had diagnosed a
habeas petitioner as schizophrenic and opined that
he was incompetent to assist in his defense. Id. at
568. The petitioner's counsel moved for a pre-
petition competency hearing because the petitioner
wanted to waive all his remaining post-conviction
proceedings. Jd. at 568. We held that the district
court properly conducted a section 4241 hearing to
determine whether the petitioner was competent to
proceed. /d. at 571. We also held that the district
court did not abuse its discretion in holding that the
petitioner was competent to proceed based upon the
evidence presented and the petitioner’s participation
in the hearing. Jd. at 572.
Rees and Harper anticipate any situation
where a capital habeas petitioner chooses to forego
seeking his habeas relief. They do not cabin the
application of section 4241 to only scenarios where a
petitioner chooses to terminate an appeal, or begin,
pause, or delay one for that matter. Anytime a
capital habeas petitioner affirmatively seeks to
forego his habeas petition, whether by action or
inaction, Rees and Harper hold that a district court
may employ section 4241. Additionally, Rees and
Harper are clear that this is a one-way street. Only
the petitioner’s indication to forego his appeal may
8a
trigger section 4241’s application. The state cannot
forcibly activate section 4241.
Based on Rees and Harper, the district court
did not abuse its discretion in conducting a section
4241 competency hearing. Carter had refused to
meet with his attorneys to discuss collateral attacks
on his conviction, worrying them that he might not
pursue his habeas petition. Carter’s attorneys also
claimed that Carter could not understand the
proceedings or assist counsel in his defense. At the
hearing, the court heard expert testimony from both
parties that Carter suffered from multiple
psychological disorders affecting his abilities to relay
facts to his counsel and communicate in detail.
Carter’s experts believed that any discourse that
Carter could engage in with his attorneys would be
meaningless because of his complete lack of detailed
communication. Furthermore, Carter’s experts
testified that he was confused as to the identity of his
counsel and that he believed he would not be
executed unless he volunteered; an _ irreversibly
dangerous false belief. While Resnick disagreed and
opined that Carter had finally accepted that he
would be executed unless he prevailed upon
collateral appeal, Resnick did not make this finding
himself, opting instead to adopt the non-scientific
conclusion of a social worker who did not testify at
the hearing.
The district court did not abuse its discretion
in conducting a competency hearing. Carter’s refusal
to meet with his attorneys to discuss collateral
attacks on his conviction would have terminated any
right to pursue a habeas writ if it extended beyond
Sa
the AEDPA statute of limitations. The district court
also did not abuse its discretion in finding that there
was reasonable cause to believe that Carter was
incompetent, and in further finding that he was
incompetent to assist his counsel.
B. The Proper Remedy
1. The district court’s dismissal
without prejudice and prospective
tolling of the AEDPA statute of
limitations
The district court dismissed Carter’s petition
without prejudice and prospectively tolled the
statute of limitations largely based on the holding in
Hargrove v. Brigano, 300 F.3d 717 (6th Cir. 2002).
In Hargrove, a petitioner filed a habeas petition
asserting claims that had not been exhausted at the
state level. Jd. at 718. The district court dismissed
the petition without prejudice and equitably tolled
the AEDPA statute of limitations prospectively upon
the condition that the petitioner exhaust his claims
at the state level and return to federal court within
thirty days. Jd. The respondent argued that a court
cannot prospectively toll a statute of limitations
because tolling is an issue that should be presented
to a court later in time after the statute has expired.
Nevertheless, we affirmed the district court’s
decision, remarking that the court had basically
achieved a stay and abeyance and still ensured that
the “case would move forward expeditiously.” Jd. at
721.
However, the decision in Hargrove cannot be
applied to Carter’s case for three reasons. First, it
10a
could potentially toll the AEDPA statute of
limitations indefinitely. That result would be quite
different than the thirty-day window in Hargrove
that we noted would still allow the case to be
resolved expeditiously. The result would not
resemble a stay and abeyance and could prevent
either party from ever presenting its case to the
district court.
Second, in Hargrove, the petitioner had the
onus to act in order to preserve his petition, and the
respondent had no burden besides defending against
the petition. Here, however, the onus would shift to
the respondent. An indefinite toll would prevent
Bradshaw from defending against the petition unless
she continually filed petitions seeking enforcement of
the state conviction and sentence.
Finally, the petition in Hargrove was tolled so
that the petitioner could exhaust his claims at the
state level and quickly return to federal court instead
of forcing him to file a new petition. This
jurisdictional reason is far different from the issue of
incompetency.
Furthermore, it does not appear that any case
has ever held that the AEDPA statute of limitations
may be equitably tolled prospectively because the
petitioner was incompetent. The only published
authority we have found where equitable tolling was
applied in habeas cases because of the petitioner’s
incompetence is from our sister circuits, and tolling
was applied in those cases retrospectively. See
Bolarinwa v. Williams, 593 F.3d 226, 231 (2d Cir.
2010); Laws v. Lamarque, 351 F.3d 919, 923 (9th Cir.
2003); Nara v. Frank, 264 F.3d 310, 320 (3d Cir.
lla
2001) (overruled in part on other grounds by Carey uv.
Saffold, 536 U.S. 214 (2002)); Fisher v. Johnson, 174
F.3d 710, 715 (5th Cir. 1999).
Accordingly, it was improper for the district
court to dismiss Carter’s petition and prospectively
toll the AEDPA statute of limitations indefinitely.
2. Next friends
Bradshaw contends that the district court
should appoint a next friend who can continue to
litigate Carter’s petition on his behalf. Generally,
next friends proceed in litigation on behalf of a party
that cannot seek relief because of incompetence or
inaccessibility. Whitmore v. Arkansas, 495 U.S. 149,
162 (1990). The federal habeas statute specifically
anticipates that a petition may be filed by someone
other than the petitioner acting on the petitioner’s
behalf. 28 U.S.C. § 2242. To that end, we have
recognized a district court’s ability to appoint a next
friend for a habeas petitioner on death row who is
incompetent. See Martiniano ex rel. Reid v. Bell, 454
F.3d 616, 617 (6th Cir. 2006). However, before
appointing a next friend to an incompetent habeas
petitioner, a court must find that the next friend is
“truly dedicated to the best interests of the person on
whose behalf he seeks to litigate.” Whitmore, 495
U.S. at 163. “[T]he writ of habeas corpus should
[not] be availed of, as matter of course, by intruders
or uninvited meddlers, styling themselves next
friends.” Jd. at 164 (internal quotations and citation
omitted). Indeed, it is preferred, if not required, that
a next friend “have some significant relationship
with the real party in interest.” Jd. Importantly, the
“
next friend must have more than merely “a
12a
generalized interest in constitutional governance.”
Id.
We find these qualifications for a next friend
especially significant for Carter’s claims of ineffective
assistance of counsel. Only Carter ‘nows critical
parts of the factual basis for these claims. As the
district court noted, Carter alone has evidence of the
interactions between him and his trial and appellate
attorneys, and that evidence is inaccessible as long
as he remains unable to communicate with his
habeas attorneys. Really, a next friend could no
more than speculate as to the evidence that Carter
may know, and Carter “is better positioned than
anyone” to provide that evidence in support of his
claim. Rohan ex rel. Gates v. Woodford, 334 F.3d
803, 818 (9th Cir. 2003). Therefore, a next friend
would be just as unable as Carter to assist Carter’s
attorneys in this respect. See id. (commenting that
only the habeas petitioner’s “private knowledge”
could truly support his ineffective assistance claim
because of his “unique position to testify about the
extent of his trial counsel’s efforts”); see also Holmes
v. Buss, 506 F.3d 576, 580 (7th Cir. 2007) (noting
that, unlike most cases, a habeas petitioner can
contribute to his attorney’s strategy concerning
claims of ineffective assistance and prosecutorial
misconduct because he was present for the trial, his
habeas counsel was not, and he may retain “a better
sense of the alleged misbehavior of the prosecutor
and of defense counse! than the trial transcript and
other documentation provide’).
Where the factual basis for Carter’s claims is
locked away exclusively in his memory, he faces the
13a
lonely certainty that no friends in this world could
meaningfully be dedicated to his interests because
they lack the benefit of his knowledge. Even Carter’s
most ardent supporters might be _ subjectively
dedicated to litigating on his behalf, but as long as
they lack the facts that are vital to Carter’s claims,
they cannot be dedicated in the sense necessary for a
next friend to stand fully in Carter’s place litigating
his claims as wholly as he can. It would be
inappropriate to appoint a next friend for Carter's
ineffective assistance of counsel claims where the
next friend would be forced to proceed through this
action without the foundational facts that support
Carter’s claims.
However, we recognize that Carter’s other
claims might possibly be litigated without his
assistance. Just because Carter might be able to
contribute assistance to all his claims does not mean
that his assistance is essential. The district court
must determine whether it can fully and fairly
adjudicate Carter’s other claims without evidence
from Carter. Perhaps some claims require no
evidence from Carter whatsoever. Perhaps others
could benefit from it, but that evidence could be
replicated by, or substituted with, other sources. If
the district court determines that Carter’s assistance
is not essential to the adjudication of these other
claims, then the court should appoint a next friend to
litigate them.
3. Stay of the proceedings according
to section 4241(d)
Instead of dismissing Carter’s petition without
prejudice and prospectively tolling the AEDPA
l4a
statute of limitations, the district court should have
followed the path taken in Rohan, a similar case that
the district court cited. In Rohan, 334 F.3d at 819,
the Ninth Circuit held that habeas proceedings
should be stayed until the petitioner is found to be
competent to proceed. Every court has the incidental
power to stay proceedings and manage its docket as
it sees fit. Landis v. N. Am. Co., 299 U.S. 248, 254
(1936). Furthermore, federal courts overseeing
habeas actions have statutory authority to stay state
court proceedings for any matter relating to the
habeas proceeding. McFarland v. Scott, 512 U.S.
849, 857 (1994) (citing 28 U.S.C. § 2251). Staying
Carter’s habeas petition would fall in line with
section 4241(d) whereby a court may hospitalize
incompetent defendants until they are competent to
proceed, and we have already applied section 4241(d)
to habeas cases. See Hargrove, 300 F.3d at 721.
Moreover, in Hargrove, we favorably likened the
temporary prospective tolling of the statue of
limitations to a stay and abeyance, hinting at our
approval for such a course of action. Id.
Understandably, the district court may have wished
to remove this case from its docket instead of letting
it linger, but dismissing the case inconveniences
Bradshaw by forcing her to lay aside Ohio’s
execution of Carter until some unknown time in the
future. It also reduces the possibility that Carter’s
petition will ever be considered by the district court,
thus dashing his hopes to establish his entitlement
to habeas relief. Staying the proceedings according
to section 4241(d) would allow all parties to remain
actively involved and the court to monitor Carter's
on-going condition.
l5a
Accordingly, we amend the district court’s
judgment. The district court should not have
dismissed Carter’s habeas petition without prejudice.
Instead, Carter’s petition should be stayed according
to section 4241(d) with respect to his ineffective
assistance claims and any other claims that the
district court determines essentially require his
assistance.
[1l. CONCLUSION
The district court did not abuse its discretion
in holding a pre-petition competency hearing or by
concluding that Carter was incompetent. However,
dismissing Carter’s petition and equitably tolling the
AEDPA statute of limitations prospectively was an
inappropriate disposition. Rather, with respect to
Carter’s ineffective assistance claims, the habeas
proceedings should be stayed until Carter is
competent according to section 4241. The district
court must examine the remainder of Carter’s claims
to determine whether Carter’s assistance is essential
to their full and fair adjudication. If not, the court
should appoint a next friend to litigate those claims.
Accordingly, we AMEND the district court’s
judgment and REMAND the case to the district
court for proceedings in accordance with this opinion.
DISSENT
ROGERS, J., dissenting. Today the court
allows habeas petitioners to prevent States from
enforcing their judgments, potentially forever, on the
grounds of a nonexistent right to competency in
16a
habeas proceedings. The asserted right has no basis
in the Constitution or federal statutes. Civil suits
can be brought by lawyers representing mentally
incompetent plaintiffs, and habeas cases are no
different. Nor are capital cases different in this
respect.
First of all, the Constitution, in a point
conceded by the majority and all but admitted by
Carter’s counsel during oral argument, does not
provide a right to competency in habeas proceedings.
As the Supreme Court explained in United States v.
MacCollom, 426 U.S. 317, 323 (1976), due process
“certainly does not establish any right to collaterally
attack a final judgment of conviction.” Moreover, the
Court held in Pennsylvania v. Finley, 481 U.S. 551,
555 (1987), that there is no constitutional right to
counsel for habeas proceedings. If Carter has no
constitutional right to a habeas proceeding in the
first place, and has no constitutional right to counsel
at that proceeding, he logically cannot have the right
to be competent so as to communicate with and/or
assist counsel during his habeas proceeding. This
conclusion is buttressed by Whitmore v. Arkansas,
495 U.S. 149, 162-64 (1990), in which the Supreme
Court explicitly recognized that a “next friend” can
be appointed to initiate and pursue claims on behalf
of a habeas petitioner who is mentally incapacitated.
If the law permits a next friend to be appointed in
order to prosecute the claims of an incompetent
habeas petitioner, it cannot also require that a
petitioner’s habeas proceeding be indefinitely stayed
if a court deems the petitioner incompetent.
17a
This case does not involve the separate right of
a condemned prisoner to be competent at the time of
execution. See Ford v. Wainwright, 477 U.S. 399
(1986). That right has to do with the nature of the
punishment, and little to do with whether a habeas
petition can proceed in order to determine whether
the petitioner has been constitutionally convicted.
This case also does not involve’ the
constitutional right to competency during the trial
itself. See e.g., Cooper v. Oklahoma, 517 U.S. 348,
354 (1996). There is a world of difference between
trial and collateral attack. Assisting counsel in one’s
defense at trial is one thing, where the central issue
is whether or not the defendant is guilty, and where
counsel is constitutionally required. Assisting one’s
counsel in a habeas petition is another thing, where
the central issue is whether the defendant’s
constitutional rights were violated, and due process
does not even require that counsel be provided.
The Constitution thus does not provide that
capital habeas petitions be stayed as long as the
petitioner is not competent.
There is also no statutory basis for such a
conclusion. Rees v. Peyton (Rees JI), 384 U.S. 312
(1966), cited by the majority, cannot be read to
extend a statutory right to competency to the
circumstances of the instant case. In Rees, the
district court rejected a death row inmate’s habeas
petition, the court of appeals affirmed, and the
inmate’s counsel then filed a petition for certiorari
with the Supreme Court. Jd. at 312-13. Soon after,
the inmate directed his counsel to withdraw his
petition for certiorari. Jd. at 313. The Court ordered
18a
the district court to conduct a competency
determination of the inmate and_é£iretained
jurisdiction of the certiorari petition pending the
results of the hearing. Jd. at 314. Following a
hearing in which the district court found the inmate
incompetent, the Supreme Court issued a summary
order stating, “This case is held without action on the
petition until further order of the Court.” Rees v.
Peyton (Rees IT), 386 U.S. 989 (1967). This court also
applied Rees in Harper v. Parker, 177 F.3d 567, 571
(6th Cir. 1999), where we held that district courts
may conduct preliminary hearings to determine
“whether there was ‘reasonable cause to believe that
the defendant may presently be suffering from a
mental disease or defect rendering him ment.ully
incompetent’ to waive his right to further appeals.”
Id. (quoting 18 U.S.C. § 4241).
Thus, Rees and Harper plausibly stand for the
proposition that habeas petitioners must be
competent in order to terminate a habeas proceeding.
They do not stand for the very different proposition
that habeas petitioners must be competent to assist
counsel in the prosecution of their habeas petition.
The distinction is crucial. When a habeas petitioner
seeks to withdraw his habeas petition, he is choosing
to end what is likely to be his only chance at
reversing his conviction and regaining his freedom.
This is a decision inherently to be made by the
petitioner, and not while the _ petitioner is
incompetent to do so. When a habeas petitioner files
his petition and then becomes incompetent to assist
his counsel in prosecuting it, however, there is no
comparable client decision to be made.
19a
Stated differently, the Rees precedent can be
read to create an assumption that a habeas challenge
to a death penalty will go forward unless the
petitioner competently terminates it. Such an
assumption cannot logically require that the habeas
proceeding will not go on—or indeed that it will be
resolved in petitioner’s favor—merely because the
petitioner is not competent to terminate it.
The statute referred to by the Supreme Court
in Rees, 18 U.S.C. § 4241, provides for competency
hearings for defendants in criminal proceedings, and
cannot be read to extend to _ post-conviction
proceedings. The Supreme Court took the standard
from that statute and adopted it for the purpose of
determining whether the habeas petitioner in Rees
was competent to terminate the habeas proceedings.
The Court’s adoption of the statutory standard for
one required inquiry (competency to terminate
proceedings) does not logically imply that another
inquiry (competency to assist habeas counsel) needs
to be made in the first place. Notably, the Ninth
Circuit, in its lengthy opinion holding that
incompetent habeas petitioners are entitled to a stay,
does not rely on § 4241 as so providing. Rohan ex rel.
Gates v. Woodford, 334 F.3d 803 (9th Cir. 2003).
Instead, the Ninth Circuit’s holding is based
on a different statute, one upon which the majority
in this case wisely declines to rely. In Rohan, the
district court held a competency hearing for a death
row habeas petitioner and concluded that the
petitioner was incompetent. Jd. at 806. Nonetheless,
the district court went on to deny the petitioner's
request for a stay of his habeas proceedings, holding
20a
that neither the Constitution nor the federal habeas
statutes required that the proceedings be stayed,
because the appointment of a “next friend”
adequately protected the petitioner’s interests. Id.
The Ninth Circuit reversed. The Ninth Circuit
interpreted 21 U.S.C. § 848(q)(4)(B) (now recodified
as 18 U.S.C. § 3599(a)(2)), which provides for
appointed counsel in death penalty habeas
proceedings, as implying a right to “meaningful”
assistance of counsel, which itself depends on the
petitioner’s ability to communicate rationally with
counsel. Jd. at 812-13. Hence, concluded the Ninth
Circuit, Congress meant (though it never said) that a
habeas petitioner has the right to be competent
during his habeas proceedings. /d. at 813.
But the plain language of the statute provides
for no such right, and none is ever mentioned.
Instead, Congress provided a_ detailed list of
instructions and specifications governing appointed
counsel’s qualifications and experience in capital
habeas proceedings. See 18 U.S.C. § 3599(b)-(e).
These provisions in no way speak to the actual
effectiveness of counsel's performance during a
habeas proceeding, they simply prescribe a minimum
level of background knowledge for appointed counsel.
In particular, they say nothing about the competency
of the petitioner.
The Rohan court relied in part on the
implication of a right to competency from a right to
counsel from other contexts, such as_ the
constitutional right to competency at trial. Rohan,
334 F.3d at 813. But trial and post-conviction
proceedings are different, and in any event the
2la
inference as a_ statutory matter is directly
contradicted by a_ specific statutory provision.
AEDPA forecloses claims on collateral] attack for
ineffective assistance of habeas counsel: “The
ineffectiveness or incompetence of counsel during
Federal oor State collateral post-conviction
proceedings shall not be a ground for relief in a
proceeding arising under section 2254.” 28 U.S.C.
§ 2254(i); see Benner v. Coyle, No. 99-3570, 1999 WL
33453848, at *1 (6th Cir. Nov. 1, 1999). If an
underlying right to effective assistance of habeas
counsel cannot be implied from 18 U.S.C. § 3599,
then the derivative right to be competent in habeas
proceedings so as to assist counsel cannot be implied
either.
There is in short no legal basis whatsoever for
inferring a right to competency of the petitioner in
habeas proceedings. It is a right created out of whole
cloth.
It is also a right that is anomalous in its very
nature. For practical purposes, the right will be
asserted by capital petitioners but not by other
petitioners. Capital petitioners gain something
(delaying execution) from indefinitely delaying
habeas proceedings, while the interests of convicts
serving prison terms—whether competent or not—
will almost always be served by the prompt litigation
of habeas petitions, so as to advance the possibility of
release. But acceptance of the nght in concept might
well require that it be applied to noncapital cases,
where prosecutors could insist that habeas be
indefinitely delayed. One might argue that
noncapital defendants may waive the right, but by
22a
hypothesis such defendants are incompetent, and
thus might be incapable of waiving the right. So
recognition of a right to competency in habeas
proceedings means either that prosecutors can for
practical purposes insist on indefinite postponement
of habeas proceedings where convicts are not
competent (a counterintuitive result), or that the
difference in punishment—capital vs. noncapital—
somehow fundamentally changes the nature of how
much a lawyer must have input from the client, such
that the right is categorically available only for
capital convicts (an anomalous result).
It is also anomalous to have a system in which
a civil litigant can go into court and instantly get the
relief he seeks merely by showing that he is
incompetent. In civil cases in our system, a plaintiff
has to show a basis for relief, not merely that he is
disabled from making such a showing. While habeas
cases deal with criminal convictions, they are at
bottom civil cases.
Finally, the very ways in which competency is
said to be necessary for habeas petitioners would
apply just as strongly to the competency of witnesses
in habeas proceedings. A key witness in a habeas
proceeding—one whose input or testimony might
make all the difference—might become incompetent
or be unable to testify. But no one would argue that
a habeas proceeding therefore could not proceed.
The parties just have to do the best that is possible
with the witnesses and testimony that are available,
subject to the rules of evidence.
These concerns are reflected in the facts of this
case. Although the district court found that several
23a
of Carter’s habeas claims could potentially benefit
from his assistance, at least three of these claims
plainly do not require any input from Carter for their
successful prosecution. Thus, even recognizing a
right to competency does not prevent the district
court from resolving the merits of at least these
habeas claims. These include Carter’s claims that:
(1) he was incompetent to stand trial; (2) his trial
counsel was ineffective for failing to pursue the issue
of his competency; and (3) his appellate counsel was
ineffective for not appealing the trial court’s failure
to ensure that he was competent. As for the first of
these three claims, Carter’s competency is a question
of fact, see Thompson v. Keohane, 516 U.S. 99, 111
(1995), and he has the burden of rebutting the
presumption that the state court’s factual findings
were correct, see 28 U.S.C. § 2254(e)(1); McAdoo uv.
Elo, 365 F.3d 487, 494 (6th Cir. 2004). Carter’s
competency claim thus depends entirely on the
evidence available to the state trial court. The trial
court in this case held two competency hearings
before trial and found Carter competent after both.
Carter’s counsel can, as they have already done in
his habeas petition, point out any errors in the trial
court’s assessment of Carter’s competency so as to
prove that the state-court decision was contrary to or
an unreasonable application of federal law or was
based on an unreasonable determination of the facts.
See 28 U.S.C. § 2254(d). They can clearly do so
without the need for information available only to
Carter.
The same is true for the other two claims. As
noted, the record for this case already contains
extensive evidence concerning Carter’s competency.
24a
The record also sufficiently reflects Carter’s trial
counsel’s efforts to prove that he was incompetent
and how his appellate counsel handled _ the
competency issue on appeal. No information
available only to Carter would alter the merits of
these claims for purposes of the habeas standard.
Perhaps recognizing this, the majority fashions the
particularly anomalous remedy of remanding the
case in part, for the district court to identify those
claims that do not require Carter’s assistance and
then to appoint a next friend to litigate those claims
on Carter’s behalf. This “remedy,” however,
necessarily has the incongruous effect of staying part
of the case indefinitely while allowing another part of
the case to go forward, with the scope of the latter
part to be determined wholly by the district court.
This compounds the hobbling of the State’s
legitimate interests in finality and execution of its
judgments.
Two of the remaining claims identified by the
district court—Carter’s removal from the trial
proceedings and the ineffective assistance of his trial
counsel during mitigation—could potentially benefit
from Carter’s assistance. In the first place, it is
questionable whether, under the evidentiary
limitations imposed by AEDPA, Carter’s counsel
could introduce new evidence on habeas review in
support of these claims, even if Carter were
competent.!' More fundamentally, however, any
1 For the claim concerning Carter’s removal from the
trial proceedings, Carter first raised this as an instance of
ineffective assistance of appellate counsel in his Ohio Rule of
25a
assistance that Carter could give would be
conceptually indistinguishable from that of a
witness. The assistance, if any, from Carter would
be the provision of information that could be used to
support the claims. But that is exactly what a
witness provides. The incompetency of witnesses
does not stop civil proceedings, and it is anomalous
that the incompetency of a plaintiff should stop
Appellate Procedure 26(B) application to reopen his direct
appeal. Carter’s Rule 26(B) application, however, did not
include an affidavit from Carter concerning whether he wanted
to be in the courtroom for his trial and sentencing. Under the
Ohio Rules, Carter’s application to reopen his direct appeal
needed to contain a sworn statement of the basis for his claim of
ineffective assistance of appellate counsel, any parts of the
record available to him, and all supplemental affidavits upon
which he relied. Ohio R. App. P. 26(B)(2); Morgan v. Eads, 818
N.E.2d 1157, 1159 (Ohio 2004). Ohio courts hold that the
failure to support an ineffective-assistance-of-appellate-counsel
claim with material outside the record is grounds for dismissal
of a Rule 26(B) application. See State v. Griffie, 658 N.E.2d 764,
765 (Ohio 1996); State v. Dillon, 657 N.E.2d 273, 277 (Ohio
1995). Carter therefore failed to develop the factual basis for
his removal-from-trial claim, and the claim does not meet the
requirements of 28 U.S.C. § 2254(e)(2) since it is not based on a
new constitutional right and does not involve evidence that he
was actually innocent. See 28 U.S.C. § 2254(e)(2)(A), (B). With
respect to his ineffective-assistance-during-mitigation claim,
Carter requested an evidentiary hearing when he filed his state
post-conviction petition, but he failed to submit any evidentiary
documents in support of the claim. See Ohio Rev. Code
§ 2953.21(C); State v. Jackson, 413 N.E.2d 819, 822 (Ohio 1980).
Hence, Carter also failed to develop the factual basis of this
claim, and the claim also is not based on a new constitutional
right and does not involve evidence that Carter is actually
innocent. See 28 U.S.C. § 2254(e)(2)(A), (B).
26a
proceedings entirely because the party cannot act as
a witness.
Requiring competency on the part of capital
habeas petitioners is not compelled by the right to
competency at trial, the right to competency in
waiving further habeas proceedings, or the right to
be competent at the time of execution. The new
“right” is not provided by either the Constitution or
any statute. It is instead an anomalous monkey
wrench thrown into the capital-litigation process.
The district court’s order should be reversed,
and the case remanded in full so that the habeas
proceeding can go forward on all of Carter’s claims.
27a
APPENDIX B
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
Case No. 3:02CV524
Judge Peter C. EKconomus
SEAN CARTER,
Petitioner,
V.
MARGARET BRADSHAW, WARDEN,
Respondent.
ORDER OF DISMISSAL
Filed: September 29, 2008
This matter is before the Court upon
Petitioner, Sean Carters (“Carter”) Motion for
Competency Determination and to Stay Proceedings,
(Dkt. #132) (“Motion for Competency
Determination”). After conducting an evidentiary
hearing and reviewing several experts’ reports, the
Court finds Carter to be incompetent and therefore
unable to litigate grounds for relief one, two, five,
and six raised in the petition. Accordingly, the Court
DISMISSES the instant action WITHOUT
PREJUDICE. The Court prospectively tolls the
statute of limitations set forth in 28 U.S.C. § 2244(d).
28a
I. PROCEDURAL BACKGROUND
Carter was convicted and sentenced to death
in a Trumbull County Court of Common Pleas for the
aggravated murder, aggravated robbery, and rape of
Veader Prince. After exhausting his state court
appeals, he initiated the instant federal habeas
corpus proceeding on March 19, 2002. Also on that
date, Carter filed a Suggestion of Incompetence.
(Dkt. #1). Carter obtained permission to depose trial
counsel on December 17, 2003. (Dkt. #99). After
filing an initial petition and two amended petitions,
Carter sought and received permission to obtain
psychological and neurological experts to examine
him.
He thereafter filed a third amended petition
on October 3, 2005, (Dkt. #129), to which the
Respondent filed an amended return of writ. (Dkt.
#138). In this petition, Carter asserted, inter alia,
that his right to a fair trial was violated when he was
removed from it because of his disruptive behavior.
He also contended that defense counsel did not
pursue the competency issue diligently and that they
failed to investigate and present adequate mitigating
evidence during the penalty phase of trial.
Concurrent with the third amended petition,
Carter filed a Motion for Competency Determination
and to Stay Proceedings. (Dkt. #132). On November
29, 2005, the Court granted the Motion for
Competency Determination, staying the proceedings
pending a competency determination, and setting a
competency hearing date for December 16, 2005.
(Dkt. #139). After two continuances, the Court held
a competency hearing on May 1, 2006. (Dkt. #169-
70). It thereafter issued an Order granting the
29a
parties’ joint request for post-hearing briefing.
Additionally, it ordered Carter’s counsel to arrange
for the Respondent’s experts to observe Carter's
interaction with habeas counsel. (Dkt #171).
Carter filed an Objection with the Court,
asserting that permitting the State’s experts to
observe his interaction with counsel would violate
the attorney-client privilege. (Dkt. #173). After the
Court denied the Objection, Carter filed a Motion for
Certification of Appeal under 28 U.S.C. § 1292(b),
asking the Court to stay the habeas proceeding and
notifying the Court that it would seek a writ of
mandamus if the Court were to deny the Motion.
(Dkt. #179). The Court denied the Motion on
February 1, 2007. (Dkt. #184).
Carter sought mandamus relief in the Sixth
Circuit Court of Appeals from the Court’s Order on
February 28, 2007. (Dkt. #185). After accepting
briefs on this issue, the Sixth Circuit granted Carter
mandamus relief on November 5, 2007. (Dkt. #186).
Thereafter, Carter filed a Motion for Records,
requesting that the Court permit him to procure
from the Ohio Department of Rehabilitation and
Correction his medical records produced since the
May 1, 2006, evidentiary hearing. (Dkt. #190). The
Court granted the motion, allowing both parties to
review the records and submit supplemental briefs
by September 5, 2008.
Il. EVIDENTIARY HEARING &
POST-HEARING
As noted above, the Court held an evidentiary
hearing regarding Carter’s competency to proceed
with his habeas litigation on May 1, 2006. On that
30a
date, Carter called Dr. Robert Stinson to testify on
his behalf. Dr. Stinson first testified about Carter’s
childhood and mental health history. He stated that
Carter’s mother was diagnosed with schizophrenia
prior to his birth. Children’s Services removed
Carter from her custody at age two when he was
discovered tied to a couch and suffering from
malnutrition.
After being placed in foster care, Carter was
adopted. That adoption ended abruptly when
Children’s Services became aware of verbal and
physical abuse in the home. Carter thereafter was
adopted by the Carter family. He lived with them
until age 16 when he was placed in the custody of the
Department of Youth Services. Records from as far
back as age two indicate that Carter’s intellectual
functioning placed him in the mild mental
retardation range. By age six, one report indicated
that Carter was schizoid-prone and at high risk of
becoming detached from reality.
Based on these records and his examinations
of Carter, Dr. Stinson diagnosed Carter with
schizophrenia, undifferentiated type, continuous
course with prominent negative symptoms, as well as
depressive disorder not specified, a personality
disorder, and substance dependence that is in
remission. He stated that Carter experiences
hallucinations that lead to problems in perception.
The schizophrenia also distorts his inferential
thinking. Dr. Stinson concluded that deficits in
Carter’s behavioral monitoring manifests in poor
physical hygiene, spontaneous laughter, and
unpredictable agitation.
3la
Most significantly, Dr. Stinson observed, were
the disease’s affect on his language= and
communication abilities. When speaking to Carter,
Dr. Stinson observed that, “[Carter] lacks
spontaneity, lacks elaboration. His discussion is void
of detail. He doesn’t engage in dialogue and provides
a lot of empty responses.” (Dkt. #172, at 17).
Dr. Stinson opined that Carter does not have a
factual understanding of the proceedings. For
example, Dr. Stinson testified, Carter held the false
belief that he could not be executed unless he
volunteered. Additionally, when Dr. Stinson asked
Carter to supply him with the name of one of his
habeas attorneys, Carter responded with the name of
one of his trial attorneys and Dr. Phillip Resnick, the
examining psychiatrist for the State. His prognosis
for Carter’s return to lucidity was poor. Upon
observing that, even with powerful anti-psychotic
medication Carter still experienced several
symptoms of schizophrenia, Dr. Stinson concluded
that Carter likely will continue to experience severe
symptoms of schizophrenia unless and/or until a new
medication arrives that could more aggressively
arrest his disease. Id. at 30.
On cross-examination, the Respondent first
queried on what standard Dr. Stinson based his
opinion. Dr. Stinson replied that he used the
standard set forth in Rohan v. Woodford, 334 F.3d
803 (9th Cir. 2003), when assessing whether Carter
understood the nature of the proceedings against
him. Specifically, he questioned whether Carter
knew he had been sentenced to death, whether he
understood he could be executed, whether he
understood the appeals process, and whether he
32a
knew who his attorneys were and what their goals
were. (Dkt. #172, at 45).
The Respondent also questioned Dr. Stinson
about Carter’s belief that he could not be executed
without volunteering. She queried whether this false
belief derived from Carter’s being housed near a
death-row inmate who previously had waived all
further appeals and was thereafter executed. After
explaining that this was Carter’s only contact with a
fellow inmate who was executed, she questioned
whether Carter’s belief was rational and based on
observances he made.
Dr. Stinson replied that Carter’s inability to
comprehend that he could be executed was referred
to in psychological terms as a “fixed false belief,” Le.,
an inaccurate perception that does not change even
after attempts to educate the individual to the
contrary. (Dkt. #172, at 74). Consequently, Dr.
Stinson determined, Carter would continue to
internalize the belief that he could not be executed
without volunteering regardless of how many
occasions others attempted to dissuade him from this
belief. Dr. Stinson concluded that, based in part on
this false belief, Carter does not truly understand the
adversarial nature of the proceedings. Id. at 89.
Although Dr. Stinson conceded on cross-examination
that Carter could communicate with his attorneys,
he concluded that the severity of his schizophrenia
renders him an “unreliable historian,” requiring
collateral records to corroborate his responses. Id. at
98.
Carter next called Dr. Michael M. Gelbort, a
clinical neuropsychologist, to testify. After
examining Carter, Dr. Gelbort stated that Carter’s
33a
thinking skills are fragmented and _ distracted,
primarily due to his distraction from to internal
stimuli. He noted that in instances other than
receiving straightforward, concrete’ information,
Carter would have trouble responding. Dr. Gelbort
opined that Carter’s capacity to learn new
information and retain it was poor. When asked
whether Carter could assist his attorney, Dr. Gelbort
responded as folloys:
-
Will he be able to provide anything other than
a seemingly basic assistance, to be able to
consider what you present to him if it’s other
than very basic questions? While he may do
so in many ways, it’s not worth a whole lot of
time or effort on his attorneys’ part because
his cognitive capabilities are so limited based
on the test results, that what he will produce
or give back to you is going to be of limited
benefit ....
I know from my experience trying to
elicit history, he is judged to be a very, very
poor historian. Not that he’s unwilling, but
just simply to ask him questions does not elicit
information from him that if he does know, he
will recognize as being’ important or
significant or relevant. And there are many
times when, because of his poor memory, he
doesn’t have that information available to him
at all, even though you would think that he
would.
(Dkt. #172, at 112-13).
The State called the final witness of the
hearing, psychiatrist Dr. Phillip Resnick. Dr.
34a
Resnick diagnosed Carter with chronic
undifferentiated schizophrenia, substance abuse, and
a personality disorder. He noted that at the time he
evaluated Carter, he did not appear to be suffering
from any delusions. Dr. Resnick assessed Carter’s
mental prognosis as fair to poor.
During the course of his evaluation, Dr.
Resnick testified that Carter was able to converse
with him about the specific charges of which he was
convicted, the victim, his adopted grandmother, and
that he was sentenced to death. Additionally, Carter
relayed to Dr. Resnick that if his appeals were not
successful, he would receive a lethal injection. (Dkt.
#172, at 145). Although Dr. Resnick initially had
reservations about whether Carter actually
understood that he could be executed without
volunteering, he allayed these concerns’ upon
speaking to a social worker who confirmed that, after
repeatedly attempting to educate Carter that he
could be executed without volunteering, he had
retained that information. Accordingly, Dr. Resnick
satisfied himself that Carter no longer possessed this
false belief.
When the Respondent questioned Dr. Resnick
about his ability to assist habeas counsel, he
responded that Carter could respond to his attorneys
but, “due to his illness, [could] not elaborate fully.”
Id. at 152. He described Carter’s condition as
follows:
So if asked a question, he would give
kind of a simple answer, a direct answer. You
ask him how many sisters he has. He can give
you an answer. But if you ask, would you
describe each sister and explain what her
35a
personality is like, he would give a simple
answer like she’s nice, and would not be able
to elaborate.
So in my view, he meets the minimum
standard because he can speak rationally and
convey information. But I would defer to the
Court as to what is sufficient with respect to
elaboration.
(Dkt. #172, at 152). When questioned about Carter’s
ability to reliably convey relevant information, Dr.
Resnick replied, “I think he can convey the basic
information, but if you’re asking for rich details in
his recollection of the trial or his description of
family members, his illness does not permit him to
give a rich description.” Id. at 156. Dr. Resnick
concluded that while Carter’s disease is chronic, it
currently was not in an acute phase.
Attached to his supplemental brief submitted
to the Court on June 23, 2008, is Dr. Stinson’s
updated report regarding Carter’s mental condition.
Dr. Stinson opined that Carter’s mental condition
has deteriorated since the evidentiary hearing
approximately two and a half years ago. He
observed that from November 29, 2007, until
December 20, 2007, Carter was transferred to
Oakwood Correctional Facility, a psychiatric prison
facility, because of his declining mental condition
Upon reviewing the notes from Oakwood, Dr.
Stinson observed that Carter continues to experience
hallucinations. Moreover, he has been disoriented
and unable to comprehend or_ respond _ to
communications from others. His daily functioning,
while previously restricted, also has deteriorated
36a
with extremely poor personal hygiene and lack of
consistent sleep habits due to nightly, persistent
screaming and laughing. From these records, Dr.
Stinson concluded that Carter’s condition has become
“progressively worse, and despite treatment, he
appears to have significant psychosis and functional
limitations even when he is at his expected baseline.”
(Dkt. #194-2, Exh. A, at 20).
Il. STANDARD OF REVIEW
In its November 29, 2005 Order granting
Carter’s request for an evidentiary hearing, the
Court adopted the reasoning in Rohan v. Woodford,
334 F.3d 803 (9th Cir. 2003), in concluding that a
petitioner has the right to be competent during
federal habeas proceedings. (Dkt. #139, at 12). The
Court now reviews the Rohan reasoning and
holdings as well as subsequent cases in which courts
were presented with this issue. As is discussed
below, the Court concludes that, while Rohan does
not supply the Court with binding precedent, it
remains the standard by which the Court should
review Carter’s competence.
A. Rohan v. Woodford
In Rohan, the Ninth Circuit determined
whether a petitioner possessed the right to be
competent during federal habeas proceedings by
conducting a review of decisional law supporting the
right to competence after a criminal trial. In that
case, the district court had appointed a “next friend”
to file a petition on the petitioner’s behalf when he
appeared to be unable to do so. The petitioner’s
“next friend” notified the district court that she was
unable to proceed without the benefit of obtaining
37a
information from the petitioner. Although the
district court found that the petitioner’s mental
condition would “impede his’ attorneys from
protecting his rights,” Rohan, 334 F.3d at 806, it
nevertheless held that the habeas litigation could
continue because a petitioner had no right to be
competent during habeas proceedings.
The Ninth Circuit disagreed. It noted that in
Ford v. Wainwright, 477 U.S. 399 (1986), Justice
Powell set forth the standard by which courts could
determine whether an insane individual was
competent to be executed. He concluded that
executions should be barred for individuals who were
“unaware of the punishment they are about to suffer
and why they are to suffer it.” Id. at 422. While
Justice Powell’s separate opinion in Ford was non-
binding dicta, courts subsequently adopted it as the
standard. Rohan, 334 F.3d at 809-10).
The Rohan Court also noted the Supreme
Court’s holding in Rees v. Peyton, 384 U.S. 312
(1966), in which the Supreme Court ordered a
competency determination when a petitioner sought
to withdraw his habeas appeals. Thus, while the
Rohan Court observed that the Supreme Court had
never adjudicated on the specific issue of whether a
habeas petitioner has the right to be competent
during habeas proceedings, it had recognized the
right of individuals to be competent even after
criminal trials.
The Rohan Court next observed the statutory
limitations imposed on a petitioner who attempts to
file a second habeas petition. It concluded that if a
petitioner were not competent to convey relevant
information when presenting the first habeas
38a
petition, he or she would face substantial obstacles in
presenting new claims in a second petition based on
information a habeas petitioner might later be able
to convey upon becoming competent. Finally, the
Rohan Court noted Congress’s recognition of federal
habeas as an important part of a defendant’s appeal
process by creating a statutory right to counsel
during those proceedings. Id. at 813 (citing 21
U.S.C. § 848(q)(4)(B), superceded by 18 U.S.C.
§ 3599(a)(2)). It held that, implicit in the statutory
right to meaningful counsel was a habeas petitioner's
right to communicate with counsel. It reasoned that,
‘if meaningful assistance of counsel is essential to
the fair administration of the death penalty and
capacity for rational communication is essential to
meaningful assistance of counsel, it follows that
Congress’s mandate cannot be faithfully enforced
unless courts ensure that a petitioner is competent.”
Rohan, 334 F.3d at 813. Upon finding that a
petitioner possesses the right to be competent during
federal habeas proceedings, the Rohan Court next
adopted the competency standard by which habeas
courts should review these claims, Le., whether a
petitioner understands his or her position and
whether the petitioner can assist habeas counsel. Id.
at 819.
The Ninth Circuit focused closely on this
second prong of the competency test. It observed
that certain claims the petitioner raised in the case
required the petitioner to provide counsel with
information that he alone possessed. For example,
one claim the petitioner raised was that he was
incompetent to stand trial. The Ninth Circuit
recognized that vital information from the petitioner
was necessary to pursue this claim. It opined, “[the
39a
petitioner’s] own testimony about his former state of
incompetence, for example, would (to the extent
credited by the court) support his position. He could
also direct counsel to circumstantial evidence of his
incompetence at the time.” Id. at 818.
The Rohan Court cautioned that habeas courts
should not require habeas counsel to state with
specificity what information they might require to
bolster their claims. It held, “Requiring an
incompetent petitioner’s counsel to identify precisely
what the petitioner would tell him were he able
seems more likely to elicit the response, ‘Well, if I
knew that, I wouldn’t have to ask!” Id. at 818.
Accordingly, habeas counsel need only identify
specific claims that require a petitioner’s personal
knowledge for full development.
Finally, not every instance of a _ habeas
petitioner’s incompetence would require a halt in the
habeas proceedings. ‘The Rohan Court recognized
that a petitioner's incompetence may not hinder
counsel from presenting a petition that includes
claims based solely on evidence contained in the
habeas record. Id. at 816. Because the Rohan
petitioner had _ raised claims’ requiring’ the
petitioner’s personal knowledge, however, the Court
stayed the habeas proceedings and remanded for the
district court to hold a new competency hearing, if
necessary. Id. at 819.
B. Post-Rohan Decisions
Since the Rohan decision, no court has reached
the issue of whether a petitioner must be competent
to litigate in habeas proceedings. Instead, courts
have held, on disparate grounds, that the particular
40a
circumstances presented in the case did not require
the court to adjudicate on the issue. In several
circuit opinions, for example, the courts have
presumed, without deciding, that the Rohan
standard applies. In those opinions, the courts have
found that the petitioner failed to set forth sufficient
evidence to support a finding of incompetence. See
Clayton v. Roper, 515 F.3d 784, 790 (8th Cir. 2008)
(assuming without deciding that Rohan standard
applicable but finding petitioner failed’ to
demonstrate incompetence); Holmes _v. Buss, 506
F.3d 576, 583 (7th Cir. 2007) (assuming without
deciding Rohan’s applicability when state declined to
challenge it); Mines v. Dretke, 118 Fed. Appx. 806,
813 (5th Cir. 2004) (finding petitioner set forth
insufficient evidence to support showing of
incompetence regardless of whether Rohan correctly
decided).
Most recently, a district court reviewing the
competency issue found that, unlike in the Rohan
decision, many of the petitioner’s claims were based
on evidence contained within the habeas record.
Gonzalez v. Schriro, No. 99-2015-PHX-SMM, 2008
WL 1836743 (D. Ariz. Apr. 23, 2008). The Gonzalez
court then determined that the claims that could
conceivably require the petitioner’s assistance were
unexhausted and therefore unripe for habeas review.
Id. at *11. Consequently, the Gonzalez court never
reached the competency issue.
Based on the above review, it appears that no
court has rejected the Rohan holding outrightly.
While the Sixth Circuit has yet to decide the
competency issue, it has determined, albeit in an
unpublished opinion, that a petitioner must be
4la
competent to waive habeas appeals and submit to
execution. In Awkal v. Mitchell, 174 Fed. Appx. 248
(6th Cir. Mar. 8, 2006), the Sixth Circuit held that a
habeas court must determine whether a capital
habeas petitioner who wished to forego further
appeals was competent to do so.
Applying the Supreme Court’s holding in Rees
v. Peyton, 384 F.3d 312 (1966), the Awkal Court
remanded the case to the district court for a
determination on whether the petitioner had “the
capacity to appreciate his position and make a
rational choice with respect to continuing or
abandoning further litigation or on the other hand
whether he is suffering from a mental disease,
disorder, or defect which may substantially affect his
capacity in the premises.” Awkal, 174 Fed. Appx. at
249 (quoting Rees, 384 U.S. at 314). Thus, while the
Sixth Circuit has not specifically held that a
petitioner has the right to be competent to proceed
with his or her habeas litigation, it has found the
right to be competent when a habeas petitioner
chooses not to proceed.
Finally, as the Seventh Circuit has observed,
the Rohan holding does not have far-reaching
consequences. In Holmes v. Buss, 506 F.3d 576 (7th
Cir. 2007), the Court observed that the Rohan
holding would not benefit non-capital habeas
petitioners because it would only serve to delay the
adjudication of their habeas claims indefinitely. Id.
at 578. It noted that it could find no non-capital
cases where a competency claim had been raised.
Because the Rohan holding remains intact
and, if Awkal is any indication, may actually be
adopted by the Sixth Circuit, the Court sees no
42a
reason to depart from its earlier conclusion that the
Rohan holding is the standard of review here.
Accordingly, the Court will subject Carter’s claims of
incompetence to the Rohan test.
IV. ROHAN ANALYSIS
A. Preliminary Issues
Prior to determining whether Carter is
competent pursuant to the Rohan test, the Court
first must ascertain whether any claims raised in the
petition require Carter’s assistance to develop. Upon
identifying any such claims, the Court then must
determine whether these claims are exhausted and
ripe for federal habeas review.
The Rohan Court identified certain types of
claims that can benefit from a petitioner’s assistance.
It observed that the petitioner raised issues of his
incompetence during trial and that trial counsel were
ineffective for failing to pursue a competency
hearing. The court reasoned that claims based on
off-the-record communications between the
defendant and counsel, such as ineffective assistance
of counsel claims, were also subject to development
by the petitioner’s personal recollections. Rohan, 334
F.3d 803, 818 (9th Cir. 2003).
A review of the amended petition reveals that
of Carter’s nine grounds for relief, grounds one
(incompetence to stand trial and removal from the
trial proceedings); two (ineffective assistance of
counsel during mitigation); five (ineffective
assistance of counsel for failure to pursue
competency issue); and six (ineffective assistance of
appellate counsel for failure to raise trial counsel’s
failure to pursue competency issue) potentially could
43a
benefit from Carter’s assistance.! As Carter asserts
in his post-hearing memoranda, he alone is in the
position to inform habeas counsel what he actually
observed during trial and his recollection of
communications with defense counsel regarding his
family and social background to develop mitigating
evidence.
The Court next must determine whether these
claims are exhausted and therefore ripe for federal
habeas review. In the amended return of writ, the
Respondent does not assert that any of the claims
enumerated above are unexhausted. Accordingly,
this Court cannot dismiss the competency issue, as
did the Gonzalez court, on the grounds that no
unexhausted issue requiring the petitioner’s
assistance 1s properly before it.”
! Although Carter also asserted in the eighth ground for
relief that he is mentally retarded and therefore ineligible for
execution, those types of claims, while typically requiring
mental evaluations, do not require a habeas petition’s lucid
assistance for development. See e.g., Stallings v. Bradshaw,
No. 5:05-CV-722, slip op. at 90-94 (N.D. Ohio Mar. 31, 2008)
(adjudicating Atkins claim based on experts’ testimony in state
court evidentiary hearing).
2 While the Respondent asserts that some of the issues
listed above are partially procedurally defaulted, that issue
does not alter the Court’s findings. First, because Carter has
not submitted an amended traverse, the Court has no means to
determine whether Carter can avail himself to an excuse for
failing to comply with the State’s procedural rules, i.e., whether
he can establish cause and prejudice to excuse any procedural
default. Moreover, because the Respondent concedes that some
of the claims listed above were properly preserved for this
Court’s review, the potentially defaulted status of others is of no
consequence.
44a
B. Competency Determination
Having determined that Carter raises claims
that both require his assistance and are ripe for
federal habeas’ review, the Court must now
determine whether Carter currently is competent to
litigate those claims as set forth in Rohan. Thus, the
Court must determine whether Carter comprehends
his current position and whether he is able to assist
his attorneys in litigating claims raised in the
petition. For the following reasons, the Court finds
that Carter is not competent.
The question of whether Carter understands
his current position is a close one. At the evidentiary
hearing, counsel for both parties questioned the
experts extensively on the issue. Both Carter’s and
the State’s experts testified at the hearing that
Carter suffers from schizophrenia that impairs his
thought processes. (Dkt. #172 at 15;142). One
specific example of this impairment that both parties
explored was Carter’s ability to understand whether
he could be executed without volunteering. As noted
above, Dr. Stinson opined that Carter’s “fixed false
belief’ that he could not be executed without
volunteering would persist. Consequently, he
concluded that Carter does not truly understand the
adversarial nature of the proceedings. (Dkt. #172, at
89).
Conversely, Dr. Resnick testified that Carter
was able to speak with him about the specific
charges of which he was convicted, the victim, and
that he was sentenced to death. Additionally, Carter
relayed to Dr. Resnick that if his appeals were not
successful, he would receive a lethal injection. (Dkt.
#172, at 145). Although Dr. Resnick initially had
45a
reservations about whether Carter agtually
understood that he could be executed without
volunteering, he allayed these concerns upon
speaking to a social worker who confirmed that, after
repeatedly attempting to educate Carter that he
could be executed without volunteering, he had
retained that information. Accordingly, Dr. Resnick
satisfied himself that Carter no longer possessed this
false belief.
Because of the opposing opinions of the
experts, the Court finds the question of whether
Carter understands his current position is debatable.
If the Court were pressed to issue its opinion based
solely on the evidentiary hearing testimony, it would
be a difficult decision. Because the Court has before
it the updated records indicating that Carter's
mental status has deteriorated since the hearing, the
Court is inclined to credit Dr. Stinson’s conclusion
that Carter’s mental illness prevents him from truly
comprehending the nature of the habeas proceedings.
The Court’s decision to find that Carter cannot
assist habeas counsel is more clear-cut. Each mental
health expert that testified during the hearing found
that Carter’s illness diminished his ability to
communicate with counsel. Dr. Stinson concluded
that the severity of Carter’s schizophrenia renders
him an “unreliable historian,” requiring collateral
records to corroborate his responses. Id. at 98.
Echoing Dr. Stinson’s findings, Dr. Gelbort noted
that Carter was not uncooperative but that, “simply
to ask him questions does not elicit information from
him that if he does know, he will recognize as being
important or significant or relevant.” (Dkt. #172, at
113).
46a
Even the State’s expert, Dr. Resnick, conceded
that, because of the schizophrenia, Carter does not
have the ability to “elaborate.” Id. at 152. Dr.
Resnick concluded that Carter could be of little
assistance in providing information to habeas
counsel. While he could provide basic information,
Carter could provide no detail. As noted above, Dr.
Resnick provided an example of his findings:
So if asked a question, he would give
kind of a simple answer, a direct answer. You
ask him how many sisters he has. He can give
you an answer. But if you ask, would you
describe each sister and explain what her
personality is like, he would give a simple
answer like she’s nice, and would not be able
to elaborate.
So in my view, he meets the minimum
standard because he can speak rationally and
convey information. But 1 would defer to the
Court as to what is sufficient with respect to
elaboration.
(Dkt. #172, at 152). While Dr. Resnick found Carter
could respond to questions, he acknowledged that
Carter's mental disease prevented him from
providing counsel with detailed responses.
Significantly, Dr. Resnick conceded during the
hearing that Carter could not provide habeas counsel
with specific information regarding what occurred
during trial or provide habeas counsel with details
regarding potential mitigating information to
develop an ineffective assistance of counsel for failing
to present mitigating evidence claim. When
questioned about Carter’s ability to reliably convey
47a
relevant information, Dr. Resnick replied, “I think he
can covey the basic information, but if you’re asking
for rich details in his recollection of the trial or his
description of family members, his illness does not
permit him to give a rich description.” Id. at 156.
Carter clearly cannot assist habeas counsel in
developing the removal from trial, competency, and
ineffective assistance of counsel claims raised in the
petition. As is apparent from the experts’ testimony,
Carter could not reasonably be expected to recall and
describe how well he was able to view the trial once
he was removed from it. Moreover, he would be
unable to elaborate on conversations he had with
defense counsel regarding his competency. He also
does not have the present capability to judge and
express to habeas counsel what mitigating evidence
from his social and family background defense
counsel should have introduced during the
sentencing phase of trial because of his limited
capacity to recall and convey the details about any
such events. Accordingly, the Court finds that
Carter is incompetent to proceed with this federal
habeas litigation.
While the Court believes the hearing
testimony and subsequent medical records regarding
Carter dictate this result, it observes that its finding
does not invite a flood-gate of habeas petitioners
asserting similar claims of incompetence. As the
Seventh Circuit noted in Holmes v. Buss, 506 F.3d
576, 578 (7th Cir. 2007), the Rohan holding would
not benefit non-capital habeas petitioners because it
would only serve to delay the adjudication of their
habeas claims. Additionally, the requirement that
capital habeas petitioners must demonstrate that the
48a
claims raised in the petition are properly exhausted
and based on evidence outside the record that
require the petitioner’s assistance to develop would
further hinder the filing of these claims. Because of
the strict statutory limitations on filing successive
habeas petitions, moreover, habeas petitioners
seeking to assert their incompetence likely must
raise any competency issues in their initial petition.
Finally, to obtain a stay in their federal habeas
proceedings, future habeas petitioners will have to
demonstrate, as Carter does here, that they are
incompetent pursuant to the Rohan test. These
multiple hurdles are unsurmountable for the vast
majority of habeas petitioners.
V. DISPOSITION
Having decided that Carter is incompetent to
litigate his federal habeas claims, the Court now
must determine the best course to proceed. One
option would be to stay this matter until Carter
regains competency. Federal habeas courts clearly
have the inherent power to stay cases and hold them
in abeyance. Int'l Bhd. Of Elec. Workers v. AT & T
Network Sys., 879 F.2d 864 (Table), at *8 (6th Cir.
July 17, 1989)(citing Landis v. N. Am. Co., 299 U.S.
248, 255 (1936)). In Rhines v. Weber, -- U.S. -- , 125
S.Ct. 1528 (2005), the United States Supreme Court
held that the better course for a habeas court to
choose when confronted with a “mixed” petition of
exhausted and unexhausted claims is to stay the
case, rather than dismiss it, and permit the
petitioner to return to state court. Id. at 1535.
The Sixth Circuit also has stayed a capital
habeas corpus case so that the petitioner could
return to state court to determine whether he is
49a
mentally retarded under the holding in Atkins v.
Virginia, 536 U.S. 304 (2002). Hill v. Anderson, 300
F.3d 679 (6th Cir. 2002). In that case, the Court
found that, because the state of Ohio had not
conceded that the petitioner was mentally retarded,
a factual dispute existed with respect to the
petitioner's ability to rely upon Atkins in his effort to
avoid the death penalty. The Sixth Circuit held that
“Ohio should have the opportunity to develop its own
procedures for determining whether a_ particular
claimant is retarded and ineligible for death.” Id. at
682.
While the Hill decision to hold the case in
abeyance provides this Court with some guidance as
to what options a federal habeas court may utilize
when faced with an incompetent petitioner, it is by
no means dispositive of this issue. In fact, because it
deals only with exhaustion’ rather’ than
incompetency, the Hill Court is silent regarding any
consideration of the length of time an action might
remain pending on the district court’s docket if a
habeas petitioner cannot be restored to competency.
While the Sixth Circuit suggested one course
of action in Hill, it has approved alternative
approaches as well. In Hargrove v. Brigano, 300
F.3d 717 (6th Cir. 2002), the Sixth Circuit affirmed a
district court’s decision to dismiss a mixed petition
accompanied by an order prospectively tolling the
statute of limitations under 28 U.S.C. § 2244(d).
In that case, the Sixth Circuit held that the
district court’s decision to prospectively toll the
statute of limitations was reasonable, particularly in
light of the fact that the court’s decision to equitably
toll the statute of limitations was premised on the
50a
petitioner’s expeditious filing in state court and
anticipated timely return to federal court. id. at 720.
Thus, the Hargrove Court has provided district
courts another option to prevent habeas petitioners
from incurring prejudice in their attempts to exhaust
state remedies. Since the Hargrove decision, courts
have recognized the use of prospective equitably
tolling of the statute of hmitations to safeguard a
petitioner’s federal habeas claims. See Griffin v.
Rogers, 399 F.3d 626, 635 (6th Cir. 2005) (observing
that the Hargrove holding “permits a re-filing [of a
habeas petition] that would have been available had
the case been conditionally stayed rather than
dismissed.”); Smith v. Bell, No. 07-CV-10749, 2008
WL 251890 (E.D. Mich. Jan. 29, 2008) (prospectively
tolling § 2244(d) to permit habeas petitioner to
exhaust claims in state court).
The Sixth Circuit also has determined that
once exhaustion has occurred, any petition filed
thereafter cannot be deemed a second or successive
petition under 28 U.S.C. § 2244(b). In Carlson v.
Pitcher, 137 F.3d 416 (6th Cir. 1998), the Sixth
Circuit held that a petitioner whose federal habeas
petition initially was dismissed without prejudice to
exhaust state remedies can return to federal court
after state exhaustion without fear that the second
federal habeas petition will be construed as a
successive one. Noting that all other circuits
deciding this issue have held similarly, the Court
found that, if the district court dismisses solely for
exhaustion purposes, then no federal court has
rendered a decision on the merits. Id. at 419.
Consequently, the Sixth Circuit adopted the findings
of other circuit courts, holding that the second
petition is not a successive one, but rather “[i]t is one
5Sla
challenge with multiple stages . ” Id. (quoting
Benton v. Washington, 106 F.3d 162, 164 (7th Cir.
1996)).
While the Sixth Circuit has yet to
prospectively toll the statute of limitations on
grounds of incompetency, the Ninth Circuit has
utilized this’ practice, albeit under different
circumstances. In Calderon v. U. S. District Court
(Kelly V), 163 F.3d 530 (9th Cir. 1998), overruled on
other grounds by Woodford v. Garceau, 538 U.S. 202
(2003), the Ninth Circuit held that a _ prisoner’s
incompetence is grounds to equitably toll the statute
of limitations. There, the petitioner sought to file an
untimely habeas petition. The Ninth Circuit tolled
the one-year limitations provision finding, “[w]hen a
putative habeas petitioner’s mental competency is at
issue, and the record discloses a genuine basis for
concern, it is appropriate to toll the AEDPA’s time
bar until a reasonable time period after the district
court makes a competency determination.” Id. at 541
(citations omitted).
Although the Ninth Circuit was presented
with the circumstance of a petitioner who sought a
tolling of the statute prior to the filing of the petition,
its authority lends support to this Court’s conclusion
that it must dismiss this matter without prejudice
and prospectively toll the statute of lmitations.
Unlike the exhaustion cases outlined above, Carter’s
absence from federal court could prove indefinite. As
Dr. Stinson concluded, Carter’s prognosis is poor
because of his lmited response to anti-psychotic
medication. He opined that Carter likely will
continue to experience sever symptoms. of
52a
schizophrenia until a new medication arrives that
could control his disease. (Dkt. #172, at 30).
Because of the potentially lengthy time that
may transpire until Carter can be restored to
competency, the Court finds the better course for it
to take is to dismiss the matter without prejudice
and prospectively toll the statute of limitations
under the authority of Hargrove. This outcome
permits Carter to preserve the right to an
adjudication on the merits of his federal habeas
claims while considering the length of time this
claim might remain pending on the district court’s
docket while Carter is restored to competency.*
Finally, while the Court understands that its
decision today may have the effect of indefinitely
staying Carter’s execution, it notes that, the
Supreme Court has accepted such a result in
instances where a petitioner’s mental capabilities are
at issue. Atkins v. Virginia, 536 U.S. 304 (2002);
%’ Although finding Brigano’s authority persuasive in
this matter, the Court acknowledges that in a recent opinion, it
refrained from extending its application. Bozsik v. Bagley, No.
1:03-CV-1625, 2008 WL 4191141 (N. D. Ohio Sept. 8, 2008).
The Bozsik case, however, is easily distinguishable. There,
another judge on this Court had dismissed a habeas petition
without prospectively tolling the statute of limitations. While
his claims were still pending in state court, the petitioner
returned to federal court, seeking assurances pursuant to the
Hargrove holding that he could re-file the petition at a later
date. The Court held that such a motion was premature. Id. at
*6. Thus, the Court’s decision not to extend the Hargrove
holding to Bozsik was based on the premature filing of the
motion to reinstate the habeas petition, an issue which is
obviously different from what the Court encounters here.
53a
Ford v. Wainwright, 477 U.S. 399 (1986). The Court
also recognizes its decision affects the Respondent’s
ability to promptly enforce its criminal judgments.
Because the Supreme Court has countenanced this
result regarding a petitioner’s ability to be executed,
the Court’s sees no significant departure from that
precedent by applying it earlier in the capital
appeals process.
VI. CONCLUSION
For the foregoing reasons, the Court
DISMISSES WITHOUT PREJUDICE the instant
matter. In so doing, it prospectively tolls the one-
year statute of limitations set forth in 28 U.S.C.
§ 2244(d), pursuant to the authority of Hargrove v.
Brigano, 300 F.3d 717 (6th Cir. 2002), until such
time as the Petitioner, Sean Carter, is competent to
proceed with his federal habeas litigation.‘
4 If the State were to conclude that Carter’s competence
is restored at any point in the future, it would not have to wait
for Carter to re-file a habeas petition to proceed. With no
litigation pending in either state or federal court, the State can
move the Ohio Supreme Court to set a date for Carter's
execution. If that circumstance were to occur, Carter would
then be subject to the holding in Ford and the competency test
attendant thereto. If the state courts were to adjudicate Carter
competent, he could then return to federal court in pursuit of
habeas relief. Thus, the State has the opportunity to enforce its
judgment should it believe Carter has been restored to
competency and Carter also has the opportunity to litigate his
federal habeas claims.
54a
IT IS SO ORDERED.
s/Peter C. Economus — 9/29/08
PETER C. ECONOMUS
UNITED STATES DISTRICT JUDGE
55a
APPENDIX C
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
Case No. 3:02CV524
Judge Peter C. Economus
SEAN CARTER,
Petitioner,
Vv.
MARGARET BRADSHAW, WARDEN,
Respondent.
JUDGMENT ENTRY
Filed: September 29, 2008
For the reasons set forth in this Court’s Order
of Dismissal issued September 29, 2008, the Court
dismisses this matter without prejudice and without
a decision on the merits. The Court prospectively
tolls the statute of imitations set forth in 28 U.S.C.
§ 2244(d). The Court certifies, pursuant to 28 U.S.C.
§ 1915(a)(3), that an appeal in forma pauperis would
not be frivolous and can be taken in good faith.
IT IS SO ORDERED.
s/Peter C. Economus — 9/29/08
PETER C. ECONOMUS
UNITED STATES DISTRICT JUDGE
OPPOSITION
BRIEF
No. 11-218
IN THE
Supreme Court of the United States
TERRY TIBBALS, WARDEN,
Petitioner,
v.
SEAN CARTER,
Respondent.
On Petition for a Writ of Certiorari to the
United States Court of Appeals for the Sixth Circuit
RESPONDENT'S BRIEF IN OPPOSITION
OFFICE OF THE OHIO PUBLIC DEFENDER
Linda Prucha
Supervisor, Death Penalty Division
Counsel of Record
Rachel Troutman
Assistant State Public Defender
250 East Broad Street
Suite 1400
Columbus, Ohio 43215
(614) 466-5394
(614) 644-0708 - Fax
Linda. Prucha@opd.ohio.gov
Rachel. Troutman@opd.ohio.gov
Counsel for Respondent Sean Carter
CAPITAL CASE
QUESTION PRESENTED
Did the Sixth Circuit err in staying the adjudication of a capital habeas
petitioner's ineffective assistance of counsel claims where experts
agreed and the court found that (1) the petitioner is incompetent and
(2) allowing those claims to proceed would be equivalent to allowing
the petitioner to withdraw those claims?
TABLE OF CONTENTS
SRE ID ann See a ROUT AM eS AEA SERS MR OM dN ES: i
Cg ER MUR IR RL ON IPS DD CSE MRE NE NM ll
I a A a il
RSET TE LE Selle oe Mek EAS AONE A LEER oe OF, Mes ]
ER EET RIL PSR LS TN TSN NIELS A SCPE IEE Ae AE l
SEPT GEY SUPE GUMDETRRDUD WOME WONT ccccicccconinesvossesinsnsssckesonssedehenstistrmisntssnsnccassesenn 4
I. The Decision Below is Narrow and Fact-bound. ..c....o---c-cccssoesessssssssssesesessvvee 4
II. No Conflict Exists Among the Lower Courts. ......0....0.0cc.ccccccccccsecececceseseenesecaeees 5
Ill. The Decision Below is Consistent With this Court's
F_UN nL eee Mad roe ENEMA NORTE rs ees REE Nt ce RRA 7
RFR TSA Ae RAL nO ARR ra WANE RIE TANTO MEN Sepa aie e, 8
UT RT deiioaeidiieed 10
TABLE OF AUTHORITIES
CASES =
Brewer v. Lewis, 989 F.2d 1021 (Sth Cir. 1998).................-cccssossssssssscsssessesesesssenees 6
ares ae Re I te, Gi Te oils eichceicccsseccstndceuttcctdsnesosicodicccansat 8
Ford vu. Wainwright, 477 U.S. 300 (1986) ........0.c.0scsesscss.serersecessseeseecesosseessesesrerereees 8
Harper v. Parker, 177 F.3d 567 (Gth Cir. 1999)...............cocsssssssrsssssssererssesssesssrenes 7
Hauser ex. rel. Crawford v. Moore, 223 F.3d 1316 (11th Cir. 2000) 0.00000... 6
Henderson v. Campbell, 353 F.3d 880 (11th Cir, 2008) occ cececeeeseseeenneeneneees 6
Martiniano ex rel. Reid v. Bell, 454 ¥.3d 616 (6th Cir. 2006) .......00..0.00e cee 3
Michael v. Hora, 469 F.3d 411 (Bd Cir, 2006)..............cccrcssrccsssrsscesessssseoscesscssessesses 6
Panetti v. Quarterman, 551 U.S. 930 (2007) .......0000ccccceeececeee ees siebidiadendeadiaadd 8
Rees v. Peyton, 384 U.S. 312 (19G6) .............eccsecsssserssssreesesersesssecsssenceersessese By Oy Oy 7
Rees v. Superintendent of Va. State Penitentiary, 516 U.S. 802
Rt EET AE es A oe AOE SOE ETN A ER ET PES iol
eek gE Ea ee eer ety ea 7
Rumbaugh v. Procunier, 753 F.2d 395 (5th Cir, 1985) ........ ccc eeeeeeeeeeteeenece ees 6
Smith v. Armontrout, 812 F.2d 1050 (8th Cir, L987) 0... cc ccceceeesceceesceeeeeeeeeeee 6
i
INTRODUCTION
The courts below found and the experts for both parties agreed that the federal
habeas petitioner, Sean Carter, suffers from mental illnesses, rendering him
incompetent and unable to communicate information that is essential to nis habeas
counsel presenting his ineffective assistance of counsel claims. The court of appeals
determined that Carter's incompetence so undermined his ability to pursue those
claims that requiring him to adjudicate them now would be equivalent to him
withdrawing those portions of his petition. It therefore stayed the habeas
proceedings as to those claims and remanded the case so that the district court
could adjudicate Carter's other claims. This fact-bound judgment is consistent with
the holdings of the courts of appeals and this Court and with the petition’s
characterization of the law. It does not warrant review.
STATEMENT
Sean Carter was convicted and sentenced to death under Ohio law. In his state
habeas proceedings, he exhausted claims that his trial counsel was ineffective for
failing to demonstrate his incompetence to stand trial and develop mitigation
evidence. Pet. App. 43a. Carter's counsel raised those same claims in his federal
habeas petition, which also alleged that Carter was incompetent and asxed the
court to stay the federal habeas proceedings. /d. at 28a, 42a-43a.
The district court held a competency hearing. The State's only witness, Dr.
Phillip Resnick, testified that Carter suffered from schizophrenia and personality
disorder. Id, at 34a. As a result, the State's expert testified, Carter could respond to
direct questions with “simple answer{s!” but could not elaborate on those answers.
Id. at 46a. Accordingly, “Dr. Resnick concluded that Carter could be of little
assistance in providing information to habeas counsel.” /d. In particular, “Carter
could not provide habeas counsel with specific information” necessary to present his
ineffective assistance of counsel claims to the federal courts. Jd.
Carter's experts testified similarly. Dr. Michae] Gelbort stated that other than
providing “straightforward, concrete information, Carter would have trouble
responding” to questions. Jd. at 33a. Dr. Robert Stinson testified that, as a result of
his mental illnesses, Carter did not “engage in dialogue,” “provide[d] a lot of empty
responses,” and “lack[ed]’ the ability to “elaborat{e].” Jd. at 31a. Dr. Stinson later
provided an updated report on Carter's condition, explaining that since his initia!
evaluation of Carter, Carter’s condition had “deteriorated.” Jd. at 35a. In fact, for
part of the intervening period, prison officials had transferred Carter to a state
psychiatric prison facility “because of his declining mental condition.” Jd. Notes
provided by that facility indicated that Carter was “disoriented and unable to
comprehend or respond to communications from others.” /d.
In light of the consistent testimony of both parties’ experts, the district court
found Carter incompetent. Jd. at 44a. It also found that “Carter clearly cannot
assist habeas counse! in developing” his ineffective assistance of counsel claims. Jd.
at 47a. Therefore, it dismissed Carter's habeas petition and tolled the statute of
limitations for re-filing. Id. at 53a.
The Sixth Circuit, in a 2-to-l panel decision, amended the judgment and
remanded. The court of appeals explained that “[f]lederal habeas petitioners facing
the death penalty for state criminal convictions do not enjoy a constitutional night to
competence.” Pet. App. 4a. Indeed, it cited binding circuit precedent establishing
that a “next friend” may be appointed to represent the interests of an incompetent
habeas petitioner in federal habeas proceedings. /d. at lla. (citing Martiniano ex
rel. Reid v. Bell, 454 F.3d 616, 617 (6th Cir. 2006)). Nonetheless, relying on Rees v.
Peyton, 384 U.S. 312 (1966), the court stated that capital habeas petitioners have a
“right to competence” when they seek “to withdraw the petition and forgo any
further legal proceedings.” Pet. App. 4a (quoting Rees, 384 U.S. at 313-14).
Accordingly, the court of appeals concluded that the district court did not abuse
its discretion in conducting a competency hearing or determining that Carter “was
incompetent to assist his counsel.” Jd. at 8-9a. The court of appeals further
concluded, however, that the district court erred in dismissing Carter's petition. Jd.
at 9a. The evidence and findings below demonstrated that Carter's incompetence
effectively “terminated [his) right to pursue a habeas writ” based on his claims of
ineffective assistance of counsel. /d. at 8a-lla. Regarding these claims, “Carter
alone has evidence” that is “essential” to “assist[ing] [his] attorneys” in
understanding the nature of the allegations and developing a “strategy,” “and that
evidence is inaccessible as long as [Carter] remain{s]” in his present condition. Jd. at
12a-13a. Because Carter's incompetence would effectively result in him
withdrawing those claims. the court held that adjudicating those claims would be
improper. /d. At the same time, the court reiterated, Carter does not possess a
general right to be competent during his habeas proceedings. /d. at 13a. Therefore.
the district court was required to appoint a “next friend” and adjudicate all claims
for which Carter's assistance is not “essential.” Jd.
The court of appeals reinstated the petition, stayed the adjudication of Carter's
ineffective assistance of counsel claims, and remanded so that the district court
could adjudicate the claims for which Carter's assistance is not “essential.” Jd. at
15a. It further indicated that the district court should “monitor Carter's on-going
condition” so that it could litigate the ineffective assistance of counse) claims as
expeditiously as possible. Jd. at 14a.
REASONS FOR DENYING THE WRIT
I. The Decision Below is Narrow and Fact-bound.
The court of appeals rendered a narrow fact-bound decision. It stayed only those
claims for which the evidence demonstrated that Carter’s assistance is so essential
that forcing him to present those claims while he is incompetent would be
equivalent to him withdrawing those claims. Further, it indicated that the partial
stay would remain in effect only until Carter can meaningfully communicate with
his counsel. The court based its decision on the undisputed testimony of both the
State and Carter's experts, who agreed that Carter suffers from schizophrenia and
personality disorder, and, as a result, is unable to communicate with counsel.
The narrowness of the court of appeals’ holding is reinforced by the fact that it
reversed the district court's dismissal of the petition and remanded so that the
district court could appoint a “next friend” and adjudicate all of Carter's claims for
which his assistance is not essential. Moreover, the court of appeals instructed the
district court to monitor Carter's condition to ensure that the parties litigate
Carter’s stayed claims as soon as feasible.
This fact-specific decision has no broad implications for the “capital-litigation
process.” Pet. 20.
II, No Conflict Exists Among the Lower Courts.
In Rees v. Peyton, this Court stated:
Whether or not [the capital habeas petitioner] Rees shall be allowed .. .
to withdraw his certiorari petition is a question which it is ultimately the
responsibility of this Court to determine, in the resolution of which Rees’
mental competence is of prime importance. We have therefore determined
that, in aid of the proper exercise of this Court's certiorari jurisdiction, the
Federal] District Court in which this proceeding commenced should upon due
notice to the State and all other interested parties make a judicial
determination as to Rees’ mental competence and render a report on the
matter to us.
384 U.S. 312, 313-14 (1966). The district court judged Rees incompetent and this
Court then held the case “without action,” Rees v. Peyton, 386 U.S. 989 (1967), until
Rees died, at which point the Court dismissed the case without opinion, Rees v.
Superintendent of Va. State Penitentiary, 516 U.S. 802 (1995).
The court below performed a straightforward application of Rees. It recognized
that it was its responsibility to ensure that Carter was competent before allowing
him effectively to withdraw his ineffective assistance of counsel claims. As in Rees,
it stayed those claims until Carter can provide the necessary assistance.
The Petition characterizes the other circuits’ applications of Rees in precisely the
same way: Rees requires federal courts to assure the competence of capital habeas
petitioners before allowing them to “abandon further legal proceedings.” Pet 13
(quoting Smith v. Armontrout, 812 F.2d 1050, 1057 (8th Cir. 1987)) (internal
quotation marks omitted). For example, as the petition highlights, the Third Circuit
has explained that “Rees demands” a capital habeas petitioner “may not” be allowed
to withdraw his petition “if [he] is incompetent.” Pet. 14 (quoting Michael v. Horn,
459 F.3d 411, 420 (3d Cir. 2006)) (internal quotation marks omitted).
The other cases cited in the petition articulate Rees’ holding similarly.
Henderson v. Campbell, 353 F.3d 880, 893, 894 (11th Cir. 2003) (“Language from
the Supreme Court’s decision in Rees v. Peyton has consistently been cited as setting
forth the controlling legal standard for assessing the validity of a death row
inmate’s choice to forego post-conviction review”: For the decision to be valid the
court must ina that the petitioner understands “he must continue to engage in the
review process or be executed.” (citation omitted) (quoting Hauser ex. rel. Crawford
v. Moore, 223 F.3d 1316, 1323 (11th Cir. 2000)); Brewer v. Lewis, 989 F.2d 1021,
1026 n.4 (Sth Cir. 1993) (‘The Supreme Court stated the test for determining
whether a habeas petitioner is competent to waive his right to federal review of his
conviction and sentence in Rees v. Peyton: ‘whether he has capacity to appreciate his
position and make a rational choice with respect to continuing or abandoning
further litigation... .” (citation omitted) (quoting Rees, 384 U.S. 314)); Rumbaugh
v. Procunier, 753 F.2d 385, 396, 398 (5th Cir. 1985) (explaining that under Rees, a
capital habeas petitioner who “resist[{ed] the efforts” of others to secure habeas relief
on his behalf should be allowed to “forgo further appeals and collateral attack!s]
upon his conviction and sentence” only if he is not suffering from a mental disease
that “prevent(s] him from making a rational choice” about whether and how to
pursue his claims).
At bottom, the petition seeks to fashion a conflict not based on the courts’ of
appeals articulations of Rees, but because this case involves an effective withdrawal
rather than an affirmative withdrawal of habeas claims. Pet. 13-17. At the same
time, the petition concedes that the Sixth Circuit’s binding precedent is “like [that
of] its sister circuits.” Pet. 15 (citing Harper v. Parker, 177 F.3d 567, 571 (6th Cir.
1999)). And it cites no case contrary to the decision below. This fact-specific
application of Rees does not satisfy any of the Court’s criteria for review.
III. The Decision Below is Consistent With this Court's Jurisprudence.
The petition (at 18-20) briefly argues that the decision below is inconsistent with
several of this Court's cases. None address the issue presented here.
First, the petition cites Rhines v. Weber, 544 U.S. 269 (2005), in which this Court
considered whether federal courts may stay consideration of a habeas petition so
that the petitioner can exhaust claims in the state courts. Rhines did not address
whether or when a court should stay proceedings on an incompetent individual's
habeas petition, and it held that, under the Antiterrorism and Effective Death
Penalty Act, federal courts retain their “ordinar[y]” power to issue stays. Id. at 276.
Rhines is not pertinent here.
Second, the petition suggests an inconsistency with Cullen v. Pinholster, 131 S.
Ct. 1388 (2011), which held “that review under § 2254(d)(1) is limited to the record
that was before the state court that adjudicated the claim on the merits.” /d. at
1398. The issue here, however, is not whether the essential information Carter's
incompetence prevents him from providing could be used to supplement the record.
Instead, the question is whether Carter's undisputed mental illness required the
lower court to stay Carter's ineffective assistance of counsel claims, in light of the
court of appeals’ determination—based in part on the State's own expert—that
Carter is incapable of providing the communication essential to the pursuit of those
claims.
Finally, the petition relies on Ford v. Wainwright, 477 U.S. 399 (1986), and
Panetti v. Quarterman, 551 U.S. 930 (2007), which address when the state may
execute an individual who claims te be incompetent. That issue is not presented
here.
CONCLUSION
For the foregoing reasons, the petition for a writ of certiorari should be denied.
Respectfully submitted,
OFFICE OF THE OHIO PUBLIC DEFENDER
Linda Prucha
Supervisor, Death Penalty Division
Copeysel of Recor
Rachel Troutman
Assistant State Public Defender
250 East Broad Street
Suite 1400
Columbus, Ohio 43215
(614) 466-5394
(614) 644-0708
Linda.Prucha@opd.ohio. gov
Rache]. Troutman@opd.ohio. gov
Counsel for Respondent Sean Carter
October 2011
WORD COUNT CERTIFICATION
As requred by Supreme Court Rule 33.1(h), I certify that the document
contains 2,021 words, excluding the parts of the document that are exempted by
Supreme Court Rule 33.1(d).
I declare under penalty of perjury that the foregoing is true and correct.
Executed on October 28th, 2011.
Linda Prucha
Supervisor, Death Penalty Division
354277
10
REPLY
BRIEF
e° == = @o
No. 11-218 Pediat ie
Jn the Supreme Court of the United States - - -- 7.
TERRY TIBBALS, Warden,
Petitioner,
Vv.
SEAN CARTER,
Respondent.
ON PETITION FOR WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
REPLY IN SUPPORT OF
PETITION FOR WRIT OF CERTIORARI
MICHAEL DEWINE
Attorney General of Ohio
ALEXANDRA T. SCHIMMER*
Solicitor General
*Counsel of Record
DAVID M. LIEBERMAN
Deputy Solicitor
30 East Broad St., 17th Floor
Columbus, Ohio 43215
614-466-8980
alexandra.schimmer@
ohioattorneygeneral.gov
Counsel for Petitioner
Terry Tibbals, Warden
TABLE OF CONTENTS
Page
ee ITE serine cicn-sasdetasesitsnnicnnnpninaepaininmannnniainini i
TABLE OF AUTHORITIBS..................... ccc cecee eee eees li
REPLY OF THE PETITIONER........................cceseeeee 1
A. This Court has never addressed whether
capital prisoners have a “right to
competence” in habeas proceedings. ............... 2
B The circuits have diverged on this issue......... 4
C. The Sixth Circuit’s decision to. stay
indefinitely Carter's habeas proceeding
Ne SIE siirsadeniaicnnncoscsisiduisieaianaiondbenacimeas 6
D. The Sixth Circuit’s decision’ disrupts
Ohio’s capital punishment scheme. ................ 8
| _____ In Rene TTT eT eT TT NE TE NTE 11
nl
TABLE OF AUTHORITIES
Cases Page(s)
Bedford v. Collins,
as Cis I I ciisntiiciibisciadini tase iatbetidingi dimes 2,3
Cullen v. Pinholster,
I a ata 7
Ford v. Wainwright,
BEES ISIE. oe Seen eee sO 8,9
Henderson v. Haley,
363 F.3d SBD (11th Cir. BOOB)......cccccccccsccccccccscceess 4
Mata v. Johnson,
PB RE DL ee eneeee 4
Michael v. Horn,
460 F.3G 411 (3G Cir. BODOG) ...cccccocccccccccocccscccsees 4,5
Mines v. Dretke,
2004 U.S. App. Lexis 26259 (5th Cir. Dec.
Soa, SEITE nictichenissdehitinaida icant cinteaiiaslaiitibdauiinininbadinlenitindadieioe 3
Panetti v. Quarterman,
I I 10
Rector v. Bryant,
EE Ne ee Cm n Emon men aa™ 2
Rector v. Clark,
ee ae ee ee NS. I iitiscinibnissncinsnineeaniccenandan 5
Rees v. Peyton,
I I i a passim
Rhines v. Weber,
I I 6, 10
Rohan ex rel. Gates v. Woodford,
BOS F.BG GOS COE Caw. BODE) ..cccscscccccscscccesccsscscccecs 4
ill
Smith v. Armontrout,
BES Fe BOGS GEER CE. BBBT) ices ccscccccccsescncccsesccss :
STATUTES
I, SO ea
Fe IG SII sche t cit da Sas ae se
REPLY OF THE PETITIONER
The unique facts of this case and Respondent
Carter's mental condition are not at issue. The
Warden’s petition for certiorari raises only discrete
questions of law—whether a capital prisoner
possesses a “right to competence” under Rees uv.
Peyton, 384 U.S. 312 (1966), and whether that
decision permits an indefinite stay of the prisoner’s
habeas proceeding.
Carter’s Opposition does nothing to undermine
the Warden’s request: The Court has never
recognized a “right to competence” in federal habeas
proceedings—a point that Carter has repeatedly
stressed in this case; the federal appellate courts
diverge sharply in their applications of Rees; and the
Sixth Circuit’s decision—permitting an indefinite
stay of an incompetent prisoner’s habeas case—runs
headlong into AEDPA.
Finally, the Sixth Circuit’s decision will bring
capital habeas litigation to a halt. Now, any Ohio
prisoner may invoke Rees by “refus{ing] to meet with
his attorneys,” “relay facts,” or “communicate in
detail.” App. 8a. A district court must then stay all
proceedings, authorize multiple psychological exams,
conduct a hearing, render a decision on competency,
and permit several rounds of appeal. After nine
years of such litigation in this case, the district court
is still no closer to reviewing the merits of Carter’s
habeas claims.
The Court issued its cryptic opinion in Rees
forty-five years ago. Because the Sixth Circuit’s
novel and sweeping interpretation of that decision
threatens Ohio’s capital punishment scheme, the
Court should grant review and clarify its precedent.
2
A. This Court has never addressed whether
capital prisoners have a “right to
competence” in habeas proceedings.
The Sixth Circuit identified “a statutory right
for the [habeas] petitioner to be competent enough to
(1) understand the nature and consequences of the
proceedings against him, and (2) assist properly in
his defense.” App. 6a. The court and Carter both
portray this holding as “a __ straightforward
application of Rees.” Opp. to Cert. at 5.
They are wrong. Rees says nothing of the sort.
And in the years after Rees, several prisoners have
asked this Court to realize the same “right to
competence.” Each time, the Court refused to
consider the question.
For instance, in Rector v. Bryant, 501 U.S. 1239
(1991), mental examiners concluded that a capital
habeas’ petitioner “would have _ considerable
difficulty .. . work[ing} in a collaborative, cooperative
effort with an attorney” and “he would not be able to
recognize or understand facts which might be related
to his case.” Jd. at 1240 (Marshall, J., dissenting
from denial of certiorari). Despite those limitations,
the Court denied his petition for certiorari. Jd. at
1239.
Twenty years later, another capital petitioner
alleged that he suffered “substantial impairments in
{his} mental capacity,” that he “c[ould] not assist
counsel,” and that he “cfould}] not communicate
accurate information to counsel.” Pet’n for Cert.,
Bedford v. Collins, No. 09-8671, at 12-14 (U.S. Jan.
15, 2010). The prisoner invoked his “rights to
meaningful representation” under Rees = and
3
requested a remand to the district court. Jd. at 12.
Again, the Court denied certiorari without comment.
See Bedford v. Collins, 130 S. Ct. 2344 (2010).
If Rees recognized a “right to competence,” then
these prisoners were entitled to an indefinite stay of
proceedings pending their restoration to competency.
The Court’s summary denial of their claims supports
the opposite proposition: That Rees did not address
this issue.
In fact, Carter has repeatedly acknowledged the
dearth of Supreme Court authority in support of his
position. In his initial request for a competency
hearing, Carter claimed a “right to competence for all
proceedings, including proceedings seeking collateral
relief.” Mot. for Comp. Det. and to Stay Proceedings,
Carter v. Bradshaw, No. 3:02-cv-524, at 2 (N.D. Ohio
Oct. 3, 2005) (Doc. 132). But he conceded that “[t]he
United States Supreme Court has not determined
whether such a right exists.” Jd. at 2n.1. In a later
pleading, Carter again admitted that “Supreme
Court precedents do not conclusively resolve th[e]
issue” of whether “a requirement of rational
communication [exists] between Petitioner and his
attorney during federal habeas proceedings.” Reply
to Warden’s Mem., Carter v. Bradshaw, No. 3:02-cv-
524, at 2 (N.D. Ohio Oct. 31, 2005) (Doc. 136).
The federal appellate courts have also noted this
lack of guidance. In Mines v. Dretke, No. 03-11137,
2004 U.S. App. Lexis 26259 (5th Cir. Dec. 16, 2004),
a capital prisoner asserted a “right to communicate
with and assist his counsel effectively in a habeas
proceeding.” Jd. at *15. The Fifth Circuit observed
that “[nJeither the Supreme Court nor this court
ha[s]} determined whether such a right exists.” Jd.
4
The Ninth Circuit made a similar comment in Rohan
ex rel. Gates v. Woodford, 334 F.3d 803, 810 (9th Cir.
2003): Whether “a district court [must] stay habeas
proceedings when a petitioner cannot assist counsel
because he is incapable of rational communication . .
. is an issue the Supreme Court precedents do not
conclusively resolve.”!
No evidence supports the Sixth Circuit’s
contrary conclusion—that Rees “long ago”
established a right to competence in federal habeas
proceedings. App. 4a.
B. The circuits have diverged on this issue.
Lacking clarification, four circuits apply Rees to
a narrow category of cases where the prisoner “elects
to abandon further legal proceedings.” Smith v.
Armontrout, 812 F.2d 1050, 1057 (8th Cir. 1987).
For these courts, the rationale of Rees is applied only
to the “determination [whether] a petitioner was
competent to abandon collateral review of his .. .
capital murder conviction and death sentence.”
Mata v. Johnson, 210 F.3d 324, 328 (5th Cir. 2000);
accord Michael v. Horn, 459 F.3d 411, 420 (3d Cir.
2006); Henderson v. Haley, 353 F.3d 880, 893 (11th
Cir. 2003).
As Carter recognizes, these cases all involved
“an affirmative withdrawal of habeas claims.” Opp.
1 The Ninth Circuit in Rohan instead located a “right to
competence” in 18 U.S.C. § 3599, which supplies appointed
counsel to indigent capital prisoners. (The State of Arizona is
seeking review of that decision. See Pet’n for Cert., Ryan v.
Gonzales, No. 10-930.) The Sixth Circuit did not ground its
decision in § 3599, and Carter’s Opposition does not rely on
Rohan as an alternative basis to defend the judgment below.
5
to Cert. at 7 (emphasis added). After the prisoner
expressed a desire to terminate his proceeding, the
courts consulted Rees to assess his competency to
make that choice.
But Carter has not sought to terminate his
habeas proceeding. To the contrary, Carter has
indicated that he “does not wish to die and wants to
avoid being executed.” Merit Br. of Appellee, Carter
v. Bradshaw, No. 08-4377, at 35-36 (6th Cir. June 2,
2009).
The Sixth Circuit is the first court to apply Rees
to this situation, finding that the decision was “not
cabin[ed] . . . to only scenarios where a petitioner
chooses to terminate an appeal.” App. 7a. Rather,
the Sixth Circuit indicated, Rees is triggered
whenever a_ prisoner’s “psychological disorders
affect[] his abilities to relay facts to his counsel and
communicate in detail.” App. 8a.
What is more, the Sixth Circuit’s decision sets
up a direct conflict with the Eighth Circuit. After
unsuccessfully attempting suicide, the capital
prisoner in Rector v. Clark, 923 F.2d 570, 571 (8th
Cir. 1991), underwent a lobotomy. Due to “organic
deficits,” doctors concluded that the prisoner “would
have considerable difficulty ... in being able to work
in a collaborative, cooperative effort with an
attorney,” and that “he would not be able to
recognize or understand facts which might be related
to his case.” Id. at 572.
The Eighth Circuit rejected this “ability-to-
assist-counsel” deficiency as a reason to delay the
federal habeas proceeding. Jd. at 572-73. The court
6
then evaluated and dismissed the prisoner’s habeas
claims on their merits. Jd. at 573.
Simply put, the disagreement among the lower
courts is stark. The Eighth Circuit has said that a
prisoner’s incompetence will not justify suspension of
the habeas proceeding. And at least four circuits
limit Rees to cases where the prisoner “direct[s] his
counsel to withdraw his petition .. . and to forgo any
further federal habeas proceedings,’ Michael, 459
F.3d at 420. But the Sixth Circuit takes a different
view: An expansive “right to competence” exists in
post-conviction proceedings under Rees, even where
the prisoner has not attempted to withdraw his
petition. And a district court must stay indefinitely
the habeas proceeding if it finds the prisoner to be
incompetent.
The Court should grant review and resolve this
confusion.
C. The Sixth Circuit’s decision to _ stay
indefinitely Carter’s habeas proceeding
violates AEDPA.
The judgment below warrants review for an
additional reason: The Sixth Circuit’s stay order
violates AEDPA.
Carter asserts, and the Warden agrees, that
“federal courts retain their ‘ordinary’ power to issue
stays” in habeas proceedings. Opp. to Cert. at 7
(alteration omitted). But while “AEDPA does not
deprive district courts of that authority .. . it does
circumscribe their discretion.” Rhines v. Weber, 544
U.S. 269, 276 (2005). A federal court’s decision to
stay a habeas proceeding “must . . . be compatible
with AEDPA’s purposes.” 7d.
7
In defending the need for an indefinite stay, the
Sixth Circuit stressed Carter’s present inability to
communicate with his attorneys about his habeas
petition: “Only Carter knows critical parts of the
factual basis for these claims . .. and Carter ‘is
better positioned than anyone’ to provide that
evidence.” App. 12a (citation omitted). Because “the
factual basis for Carter’s claims is locked away
exclusively in his memory,” the Sixth Circuit
concluded that “[iJt would be inappropriate .. . to
proceed through this action without’ thfose]
foundational facts.” App. 12a-13a.
Carter’s Opposition repeats this justification:
His habeas proceedings must come to a halt because
he is currently “incapable of providing’ the
communication essential to the pursuit of [his]
claims.” Opp. to Cert. at 8.
This rationale rests on a mistaken premise: It
assumes that, but for his mental illness, Carter
might be able to identify some yet-to-be-unearthed
evidence, information, or fact for this habeas
proceeding. That is wrong. Because Carter’s habeas
claims “w[ere] adjudicated on the merits in State
court proceedings,” 28 U.S.C. § 2254(d), “the record
under review is limited to .. . the record before the
state court.” Cullen v. Pinholster, 131 S. Ct. 1388,
1398 (2011) (emphasis added). “[E]vidence later
introduced in federal court is irrelevant to
§ 2254(d)(1) review”; the courts “are barred from
considering {it].” Jd. at 1400, 1411 n.20.
Carter’s habeas proceeding therefore turns “on
the record that was before the state court.” Jd. at
1400. Any new information that Carter might
communicate in the future to his attorneys, were his
condition to improve, would not alter’ the
proceeding’s outcome. For that reason, the Sixth
Circui
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