# Record and brief — Tibbals v. Carter > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0738%3A0 ## Record - **Collection:** Supreme Court brief - **Document type:** Record and brief - **Published:** January 1, 2012 - **Citation:** 566 U.S. 1020 ## Text cuir 4 > “ ey. No. 11-218 Title Docketed Lower Ct Case Nos ‘ . & 3% P, “'t i. Pi y ois “s 7 ‘ 4 oa 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0738%3A0. Public record. Not legal advice.