Petition for Writ of Certiorari — Woodford, Warden v. Rohan Ex Rel. Gates

~ — en ee

FILED

03 427 SEP 17 2003

at ORAS 05 SHE CLERK

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IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 2003

JEANNE WOODFORD, Warden, California State Prison at San

Quentin, Petitioner,

V.

COLLEEN MARY ROHAN ex rel. OSCAR GATES, Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

BILL LOCKYER

Attorney General of the State of California

MANUEL M. MEDEIROS

: State Solicitor General

ROBERT R. ANDERSON

Chief Assistant Attorney General

GERALD A. ENGLER

Senior Assistant Attorney General

MORRIS BEATUS

Deputy Attorney General

[Counsel of Record]

455 Golden Gate Avenue, Suite 11000

San Francisco, CA 94102-7004

Telephone: (415) 703-5846

Fax: (415) 703-1234

Counsel for Petitioner

_————————————————————— =——$———====.

Se oe Baas

Paper es

CRANE IE ge He

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satiate’

QUESTIONS PRESENTED

Considering the limited purpose of federal habeas corpus

proceedings, and Congress’s policy of deference to state-court

determinations, does the statutory night to capital habeas counsel

under 21 U.S.C. § 848(q)(4)(B) entitle a petitioner to ari

indeterminate stay of habeas proceedings because of his present

mental incompetence, when his claims were fully exhausted in

state court and there has been no factual determination that his

present ability to communicate with counsel is essential to

present those claims in federal court?

TABLE OF CONTENTS

PETITION FOR WRIT OF CERTIORARI

OPINION OR JUDGMENT BELOW

STATEMENT OF JURISDICTION

RELEVANT STATUTORY PROVISION

STATEMENT OF THE CASE

REASONS FOR GRANTING CERTIORARI

I.

CERTIORARI IS REQUIRED TO MAKE

CLEAR THAT FEDERAL HABEAS

CORPUS PROCEEDINGS CANNOT BE

DELAYED BECAUSE OF THE HABEAS

PETITIONER’S PRESENT MENTAL

INCAPACITY, WITHOUT A

DETERMINATION THAT

PETITIONER’S APPOINTED COUNSEL

CANNOT PRESENT THE EXHAUSTED

CLAIMS FROM THE EVIDENCE AND

MATERIALS DEVELOPED AND

PRESENTED IN THE STATE COURTS

A. The Ninth Circuit’s Ruling Permits

Unreasonable Delay of Federal Habeas

Corpus Proceedings Under the Guise of a

Statutory Right to Competent

Representation That Falsely Assumes

Page

6

lil

TABLE OF CONTENTS (continued)

Page

Communication Needs of Appointed

Counsel in Federal Proceedings Are

Equivalent to Those of Trial Counsel or of

Counsel in State Post-conviction

Proceedings

The Ninth Circuit’s Ruling Undermines the

Proper Relationship Between State and

Federal Courts in Reviewing State

Convictions for Constitutional Infirmity

The Ninth Circuit’s Ruling Rests in Part on

an Unwarranted Interpretation of this

Court’s Summary Order in Rees v. Payton

CONCLUSION

. , ame ; |

iV

TABLE OF AUTHORITIES

Page

Cases

Anderson v. Harless,

459 U.S. 4 (1982) 13

Barefoot v. Estelle,

463 U.S. 880, 887 (1983) 7

Calderon v. Thompson,

523 U.S. 538 (1998) ~ 12

Calderon v. U.S. Dist. Court (Kelly),

163 F.5d 530 (9th Cir. 1998) 4

Cooper v. Oklahoma,

517 U.S. 348 (1990) 9

Edelman v. Jordan,

415 U.S. 651 (1974) 15

Felker v. Turpin,

518 U.S. 651 (1996) 7

Ford v. Wainwright,

477 U.S. 399 (1986) 13,14

Furman v. Georgia,

408 U.S. 238 (1972) 15

TABLE OF AUTHORITIES (continued)

Page

In re Clark,

5 Cal. 4th 750

855 P.2d 720, 21 Cal.Rptr. 509 (1993) 11

Keeney v. Tamayo-Reyes,

504 U.S. 1 (1992) 12, 13

O'Sullivan v. Boerkel,

526 U.S. 838 (1999) 13

Patterson v. Illinois,

487 U.S. 285 (1988) 12

Penry v. Lynaugh,

492 U.S. 302 (1989) 14

People v. Gates,

43 Cal. 3d 1168 (1987) 2

Picard v. Connor,

404 U.S. 270 (1971) 13

Rees v. Payton,

384 U.S. 312, 314-15 (1966) 5, 15

Rees v. Payton,

386 U.S. 989 (1967) 5, 15

Rees v. Superintendent of Virginia State Penitentiary,

516 U.S. 802 (1995) 15

Rose v. Lundy,

455 U.S. 509 (1982) 9

eens ie

vi

TABLE OF AUTHORITIES (continued)

Page

Strickland v. Washington,

466 U.S. 668 (1984) 10

United States v. Cronic,

466 U.S. 648 (1984) 10

Vasquez v. Hillery,

474 U.S. 254 (1986) 13

Whitmore v. Arkansas,

495 U.S. 149 (1990) 16

Woodford v. Garceau,

__ US. _, 123 S.Ct. 1398, 155 L. Ed. 2d 363 (2003) 4

Statutes and Other Authorities

21 U.S.C. § 848(q)(4)(B) 2-4, 8-10, 13

28 U.S.C.

§ 1254(1) 2

§ 1292(b) 4

§ 2254(i)

§ 2261(e) 10

§ 2244(b)(2)

California Supreme Court Policies Regarding

Cases Arising From Judgments of Death, 1-1 11

Effective Death Penalty Act of 1996 (AEDPA),

Pub.L. 104-132, §§ 104, 110 Stat. 1218 7

IN THE SUPREME COURT OF THE UNITED STATES-

No.

JEANNE WOODFORD, Warden, California State Prison at San

Quentin, Petitioner,

Vv.

COLLEEN MARY ROHAN ex rel. OSCAR GATES, Respondent.

PETITION FOR WRIT OF CERTIORARI

Jeanne Woodford, Warden, California State Prison at San

Quentin, respectfully petitions for a writ of certiorari to review

the judgment of the United States Court of Appeals for the

Ninth Circuit.

OPINION OR JUDGMENT BELOW

The opinion of the Court of Appeals for the Ninth Circuit,

App. A, is reported at 334 F.3d 803 (9th Cir. 2003). The order

of the district court denying a stay of capital habeas corpus

proceedings and certifying the issue for interlocutory appeal is

unreported. App. B.

STATEMENT OF JURISDICTION

The judgment of the court of appeals was entered on

June 25, 2003. The jurisdiction of this Court is timely invoked

under 28 U.S.C. § 1254(1).

RELEVANT STATUTORY PROVISION

21 U.S.C. § 848(q)(4)(B) provides:

In any post conviction proceeding under section 2254

or 2255 of Title 28, seeking to vacate or set aside a

death sentence, any defendant who is or becomes

financially unable to obtain adequate representation

or investigative, expert, or other reasonably necessary

services shall be entitled to the appointment of one or

more attorneys and the furnishing of such other

services in accordance with paragraphs (5), (6), (7),

(8), and (9).

STATEMENT OF THE CASE

In 1979, Oscar Gates (“Gates”) committed a murder

during a robbery, by shooting two family members, one fatally,

at their home in Oakland, California. Evidence presented at the

penalty phase included prior convictions for robbery, rape, and

kidnaping, as well as an assault, robbery, and killing in Los

Angeles for which Gates was later convicted. Defense evidence

at the penalty phase showed that Gates was “good-natured” and,

according to a psychologist, “well adjusted.” Gates was

sentenced to death. App. A at 3. The judgment was affirmed

on direct appeal. People v. Gates, 43 Cal. 3d 1168 (1987).

After his conviction and sentencing, Gates began acting

uncooperatively and irrationally, eventually filing more than a

hundred habeas petitions and asserting bizarre claims. App. A

at 3.

In 1988, Gates sought federal habeas corpus relief. The

district court appointed counsel in 1989 pursuant to 21 U.S.C.

§ 848(q)(4)(B), which authorizes the appointment of counsel for

a prisoner challenging a death penalty judgment on federal

habeas corpus. Since 1990, Gates’s mental competence has

been litigated in federal court. App. B at 33-34. In 1994, the

district court found Gates mentally incompetent and appointed

Respondent, Colleen Rohan (“Rohan”), an attorney, to serve as

Gates’s “next friend” for federal habeas proceedings and “to act

for Mr. Gates and make appropriate decisions on his behalf].}”

App. B at 36. Rohan filed an amended federal petition with

unexhausted claims in 1995. It led to a return to the California

Supreme Court, which denied habeas relief in 2000, and the

filing of a second amended habeas corpus petition in the federal

district court. In that federal habeas petition, Rohan sought to

stay federal habeas proceedings because Gates was mentally

incompetent. App. B at 34-35. In 2001, the district court

refused to stay proceedings, concluding:

[P]etitioner’s argument . . . appears to reflect an

attempt to import trial-level constitutional safeguards

— such as, the right to effective assistance of counsel

and competency to stand trial — into federal habeas

proceedings. The role of federal habeas review is not

to re-try the original trial, however, but instead is

limited to review for federal constitutional error... .

Ordinarily, the best evidence of any constitutional

error at trial will be the trial record itself. Thus, given

the more limited review of federal habeas, and the

fact that resolution of many claims will not

necessitate any input from the inmate, there is no

justification for staying federal habeas proceedings in

their entirety simply because the inmate cannot

ELE LEAT ET

4

communicate with federal habeas counsel and

possibly provide information that might strengthen

some of the claims in the petition or give rise to other

claims. [{] The Court invited a submission from

petitioner setting forth the claims where Mr. Gates’s

input would be material and describing the type of

information Mr. Gates might be available to provide.

On August 6, 2001, petitioner submitted such

information. Without revealing the content of that

submission, it can be described as fairly general.

Accordingly, at the present time, and on the present

record, the Court finds that a stay of these

proceedings is not warranted.

App. B at 46-47. The district court certified the issue for

interlocutory review under 28 U.S.C. § 1292(b). App. B at 51-

$2.

The Ninth Circuit Court of Appeals accepted jurisdiction

and, on June 25, 2002, reversed on the ground that petitioner’s

inability to rationally communicate with his attorney deprived

him of his right to assistance of counsel under 21 U.S.C. §

848(q)(4)(B). The court held that “where an incompetent

capital habeas petitioner raises claims that could potentially

benefit from his ability to communicate rationally, refusing to

stay proceedings pending restoration of competence denies him

his statutory right to assistance of counsel, whether or not

counsel can identify with precision the information sought.”

App. A at 26-27. The panel found that result “dictate[d]” by

Calderon v. U.S. Dist. Court (Kelly), 163 F.3d 530 (9th Cir.

1998) (en banc), overruled in unrelated part by Woodford v.

Garceau, US. __,123S.Ct. 1398, 155 L. Ed. 2d 363 (2003).

App. A at 29-30. In Kelly, the Ninth Circuit ruled a condemned

prisoner’s mental incompetence tolled the federal habeas corpus

statute of limitations because a petitioner’s statutory right to

counsel depends on his ability to communicate rationally, and

if mental incompetence prevents rational communication then

his statutory right to counsel would be “eviscerate[d],” and

effectively denied. App. A at 18-19, citing Kelly, 163 F.3d at

541.

The Ninth Circuit concluded that if Gates is incompetent

and habeas proceedings are not stayed, he would be unable to

rationally communicate any “private knowledge” to counsel to

support or corroborate existing claims. App. A at 26. The

panel also noted an inability to disclose information could affect

“an entirely new claim,” given the statutory limitations on

second or successive petitions, 28 U.S.C. § 2244(b)(2), which

might prevent habeas counsel’s use of that information in a

future, second petition. App. A at 16. For its holding that a stay

was required, the panel looked to this Court’s per curiam

decision in Rees v. Payton, 384 U.S. 312, 314-15 (1966) (Rees

/), and the subsequent summary order in Rees v. Payton, 386

U.S. 989 (1967) (Rees II), staying habeas proceedings in a

~ capital case in which a condemned habeas petitioner had sought

to withdraw a certiorari petition against the advice of his

attorneys. App. A at 20-21.

In deciding to stay proceedings, the court of appeals

rejected the district court’s conclusion that Gates’s counsel

needed to offer more than a “fairly general” submission about

the areas requiring Gates’s rational participation. App. A at 24.

The Ninth Circuit ruled: “Requiring counsel to identify with

particularity what petitioner would tell them were he competent,

rather than merely the general areas where he could potentially

assist, sets an unrealistically high bar under the circumstances.”

App. A at 24-25.

REASONS FOR GRANTING CERTIORARII.

CERTIORARI IS REQUIRED TO

MAKE CLEAR THAT FEDERAL

HABEAS CORPUS PROCEEDINGS

CANNOT BE DELAYED BECAUSE

OF THE HABEAS PETITIONER’S

PRESENT MENTAL INCAPACITY,

WITHOUT A DETERMINATION

THAT-PETITIONER’S APPOINTED

COUNSEL CANNOT PRESENT THE

EXHAUSTED CLAIMS FROM THE

EVIDENCE AND MATERIALS

DEVELOPED AND PRESENTED IN

THE STATE COURTS

Oscar Gates, who is acting through a next friend, has been

found by the district court to be unable to communicate

rationally with his appointed attorney in this capital federal

habeas corpus proceeding. No factual determinations were ever

made that Gates’s mental incompetence impairs the presentation

of exhausted federal habeas claims or that his current ability to

communicate with his attorney is essential te present those

claims. Indeed, the district court found to the contrary. App. A

at 5-6.

Nevertheless, the Ninth Circuit ordered the federal habeas

proceedings stayed during Gates’s incompetency, suspending

indefinitely a presumptively valid state conviction for murder

and sentence of death. The court’s ruling threatens to freeze

similar federal habeas proceedings everywhere in the Ninth

Circuit, in every case where the habeas petitioner is presently

unable to communicate with counsel — without regard to the

fact that the petitioner’s claims have already been fully

exhausted in state court post-conviction proceedings, and

without any evidentiary determination that the current appointed

counsel is unable to present those same claims based on the

investigation, evidence, and other materials that were developed

in the state-court proceedings. The decision creates confusion

about the scope of federal habeas corpus, suggesting it acts as

a forum for the discovery and development of information not

previously known or presented to the state courts. Finally, the

decision creates another stage of capital federal habeas corpus

litigation: a mental competency determination on whether to

stay proceedings, regardless of whether petitioner’s competency

is in fact necessary to resolve pending, exhausted claims. The

court of appeal’s decision thus undermines this Court’s

admonition that federal habeas is not “a means by which a

defendant is entitled to delay an execution indefinitely.”

Barefoot v. Estelle, 463 U.S. 880, 887 (1983).

Accordingly, this Court should provide guidance about the

effect of a capital petitioner’s mental incompetence on the scope

and function of federal habeas review.’

1. The federal habeas corpus petition in this case was

filed before enactment of the Antiterrorism and Effective Death

Penalty Act of 1996 (AEDPA), Pub.L. 104-132, §§ 104, 110

Stat. 1218. Although the terms of the AEDPA do not govern

this case, its objectives “inform” this Court’s review. See

Calderon v. Thompson, 523 U.S. at 554, 558 (regardless

whether statute governs, court of appeals must exercise its

discretion “in a manner consistent with” the AEDPA’s

objectives; AEDPA’s provisions “‘certainly inform our

consideration’” of whether appellate court abused its discretion)

(quoting Felker v. Turpin, 518 U.S. 651, 663 (1996)).

A. The Ninth Circuit’s Ruling Permits Unreasonable

Delay of Federal Habeas Corpus Proceedings

Under the Guise of a Statutory Right to

Competent Representation That Falsely Assumes

Communication Needs of Appointed Counsel in

Federal Proceedings Are Equivalent to Those of

Trial Counsel or of Counsel in State Post-

conviction Proceedings

The Ninth Circuit unreasonably equated the kind of

communication needed by appointed counsel under 21 U.S.C.

§ 848(q)(4)(B) with the kind of communication needed by trial

counsel or by counsel in state post-conviction proceedings. The

appellate court thus created a standard of “competence” for the

assistance of federal habeas counsel that is measured according

to the needs of trial counsel or state post-conviction counsel to

investigate and develop evidence. That standard finds no

justification in the limited purpose of federal habeas corpus

proceedings.

Acknowledging that there is no Sixth Amendment right to

assistance of counsel in federal habeas corpus proceedings,

“effective or otherwise,” App. A at 12, the court of appeals

nevertheless concluded that considerations of due process favor

inferring a right to competent assistance of capital habeas

counsel from Congress’s creation of the statutory right to

counsel in 21 U.S.C. § 848(q)(4)(B). App. A at 17. The court

determined that, as a matter of law, the assistance of counsel in

federal habeas corpus proceedings cannot be said to be

“competent” or “meaningful” unless the petitioner and his

attomey can engage in rational communication:

[1]f 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’ mandate cannot be faithfully enforced

unless courts ensure that a petitioner is competent.

App. A at 17.

But the reasoning is unsound, given the court’s false

premise that the “capacity for rational communication is

essential to meaningful assistance of counsel” in federal habeas

proceedings. Unlike a trial, federal habeas corpus proceedings

are limited to consideration only of claims that have already

been presented and exhausted in state-court post-conviction

proceedings. Rose v. Lundy, 455 U.S. 509 (1982).

Accordingly, in the absence of proof that counsel appointed

under 21 U.S.C. § 848(q)(4)(B) cannot meaningfully present

fully exhausted claims — despite the avrilability of all of the

evidence, arguments, and materials developed during the state-

court appeal and post-conviction proceedings — it cannot be

said as a matter of law that the habeas petitioner’s present

capacity for rational communication is essential to meaningful

assistance of counsel in federal habeas corpus proceedings.

The court of appeals reached a contrary position based on

its own circuit law, which holds that a Capital petitioner’s

mental incapacity to rationally communicate with habeas

counsel tolls the habeas corpus statute of limitations because,

absent tolling, his statutory right to counsel would be denied.

App. A at 18-19 (citing Kelly V, 163 F.3d at 541). The

underlying premise is that without the ability to rationally

communicate with counsel, regardless of any factual

determination about the subject matter or the need for the

communication, petitioner would be deprived of the effective

assistance of counsel to which he is entitled. See App. A at 9

(citing Cooper v. Oklahoma, 517 U.S. 348, 354 (1996)).

Congress, however, implicitly rejected so broad a view by

precluding ineffective assistance of habeas counsel as a basis for

10

delaying enforcement of a state capital judgment. Under 28

U.S.C. § 2261(e): “The inetfectiveness or incompetence of

counsel during State or Federal post-conviction proceedings in

a capital case shall not be ground for relief in a proceeding

arising under section 2254.” (Emphasis added.) Whereas

counsel’s ineffectiveness at trial is a basis of relief under the

Sixth Amendment, see United States v. Cronic, 466 U.S. 648,

658 (1984); Strickland v. Washington, 466 U.S. 668, 688-89

(1984), Congress barred relief for ineffective assistance in

federal capital habeas proceedings. Congress clearly did so to

prevent having habeas counsel’s performance used to

undermine the finality of the state judgment. Indefinitely

suspending a death judgment, as the Ninth Circuit has done in

this case, solely because the petitioner could not rationally

communicate with counsel during habeas proceedings,

regardless of whether a communication might be essential to

present his exhausted claims, undermines finality no less.

This is not to say that Congress expressed an indifference

to ineffective assistance of counsel. It imposed standards of

professional experience to qualify an attorney for appointment

as capital habeas counsel. 21 U.S.C. § 848(q)(5)-(7). Insofar as

either the district court, the petitioner, or petitioner’s appointed

next friend is dissatisfied with counsel’s performance, different

counsel can be appointed “‘at any phase of the State or Federal

post-conviction proceedings on the basis of the ineffectiveness

or incompetence of counsel.” 28 U.S.C. § 2261(e). Those

statutory provisions provide the sole remedy for ineffectiveness

during federal habeas proceedings. See also 28 U.S.C. §

2254(i) (no ineffective assistance of collateral counsel claims

available in non-capital federal habeas proceedings).

Accordingly, it is assumed that counsel is qualified and is

effectively representing petitioner; and if there is dissatisfaction

with counsel’s performance, the sole remedy is replacement.

Given the need for finality, and the limited, secondary nature of

Bila chicske cite. Sie

11

:

the proceedings, such safeguards are sufficient to create a

conclusive presumption of effective assistance in federal habeas

proceedings. Congress did not intend the scope of

representation to be what is expected at trial — that is, the

communication and development of speculative “private

information” from a defendant. Because federal habeas corpus

proceedings are limited to review of exhausted claims based on

the record made in the state courts, the duties of appointed

counsel under 21 U.S.C. § 848(q)(4)(B) are more like those of

appellate counsel than trial counsel. Congress recognized this

important distinction in describing the qualifications of

appointed habeas counsel: “If the appointment is made after

judgment, at least one attorney so appointed must have been

admitted to practice in the court of appeals for not less than five

years, and must have had not less than three years experience

in the handling of appeals in that court in felony cases.” .21

U.S.C. § 848(q)(4)(B) (emphasis added).”

2. In contrast, consistent with the primary function of

state courts as the forum in which to develop evidence,

California rules and practice provide that a condemned prisoner

is entitled to appointment of habeas corpus counsel “to

investigate factual and legal grounds for the filing of a petition

for writ of habeas corpus.” California Supreme Court Policies

Regarding Cases Arising From Judgments of Death, 1-1. These

state post-conviction proceedings are the vehicle by which the

prisoner, represented by counsel, brings forth any newly

discovered evidence casting fundamental doubt on the accuracy

or reliability of the proceedings leading to his conviction. See

In re Clark, 5 Cal. 4th 750, 766, 855 P.2d 720, 21 Cal.Rptr. 509

(1993).

B. The Ninth Circuit’s Ruling Undermines the

Proper Relationship Between State and Federal

Courts in Reviewing State Convictions for

Constitutional Infirmity

- By threatening unreasonably to delay presumptively valid

state judgments, the court’s decision undermines core principles

of finality, comity, and federalism. See Calderon v. Thompson,

523 U.S. 538, 555-56 (1998) (‘“Finality is essential to both the

retributive and the deterrent functions of cnminal law... .

[T]he power of a State to pass laws means little if the State

cannot enforce them’’) (internal quotation marks and citations

omitted); Keeney v. Tamayo-Reyes, 504 U.S. 1, 9 (1992) (“The

state court is the appropriate forum for resolution of factual

issues in the first instance, and creating incentives for the

deferral of factfinding to later federal-court proceedings can

only degrade the accuracy and efficiency of judicial

proceedings”). The Ninth Circuit’s refusal to distinguish

between the role of trial counsel and the role of counsel in state

post-conviction proceedings, on the one hand, and the role of

counsel in federal habeas corpus proceedings, on the other,

fosters continuing disregard for the lisnited nature of federal

habeas review of state convictions.

Indeed, to justify its stay of proceedings here, the court of

appeals baldly suggested that new, previously undisclosed

evidence might later be introduced for the first time to support

a claim of ineffective assistance of trial counsel. App. A at 26

(suggesting that when Gates regains his competence, he may

disclose to counsel “private knowledge” conceming his mental

cap: ity during trial and the competence of his trial counsel).

The “scope of the right to counsel” is defined by “a

pragmatic assessment of the usefulness of counsel to the

accused at the particular proceeding, and the dangers to the

accused of proceeding without counsel.” Patterson v. Illinois,

13

487 U.S. 285, 288 (1988). The ultimate question in determining

the role of counsel is what purpose can “a lawyer serve at the

particular stage of the proceedings in question[.]” Jd. A Capital

habeas petitioner does not need, and is not entitled to, the same

type of representation accorded a presumptively innocent

criminal defendant who must defend against charges which

require his ability to rationally consult with his attorney.

Federal habeas corpus is not a device to raise new factual claims

or, for the first time, substantial facts supporting old claims.

See O'Sullivan v. Boerkel, 526 U.S. 838, 844 (1999) (state court

is first forum to review claims and provide relief); Keeney v.

Tamayo-Reyes, 504 U.S. at 9-10; Anderson v. Harless, 459 U.S.

4, 6 (1982); Picard v. Connor, 404 U.S. 270, 275-77 (1971);

compare Vasquez v. Hillery, 474 U.S. 254, 260-61 (1986).

Certiorari is warranted, therefore, to preserve the carefully

crafted allocation of state-federal responsibilities from erosion

under the guise of a need to ensure trial-type representation by

counsel appointed under 21 U.S.C. § 848(q)(4)(B).

Ignoring core principles of comity and finality, the Ninth

Circuit instead looked to the evolution of common law over the

past three centuries in protecting a mentally incapacitated

prisoner from execution. Particularly important in its analysis

was the development of modern-day collateral proceedings as

explained by Justice Powell in his concurrence in Ford vy.

Wainwright, 477 U.S. 399, 422 (1986) (Powell, J., concurring).

App. A at 10-13.

In that concurrence, Justice Powell formulated the test for

determining competence of a prisoner to be executed. Ford v.

Wainwright at 422. As later adopted by this Court, the

execution standard requires only the prisoner’s awareness of the

punishment to be suffered and why he is suffering it. That

standard for execution is lower than the trial standard, which

requires an ability to consult with counsel with a reasonable

degree of rational understanding, along with a rational and

factual understanding of the proceedings. Penry v. Lynaugh,

492 U.S. 302, 333 (1989). Justice Powell explained that the

execution standard should be lower because, historically, the

condemned prisoner needed the ability to rationally

communicate up to the last minute to prevent unjust execution,

but as the legal process evolved, a prisoner received “more

extensive review of convictions and sentences” than at common

law, “including not only direct appeal but ordinarily both state

and federal collateral review,” with the “right to effective

assistance of counsel at trial and on appeal . . . . It is thus

unlikely indeed that a defendant today could go to his death

with knowledge of undisclosed trial error that might set him

free.” Ford v. Wainwright, 477 U.S. at 420 (Powell, J.,

concurring; emphasis in original).

The Ninth Circuit misinterpreted Justice Powell’s words to

mean that the process as it has evolved requires a condemned

prisoner to rationally communicate, apparently. without

limitation, in collateral proceedings for the same reasons the

common law had required rational communication before the

prisoner could be executed in the Ei ghteenth Century. App. A

at 13. (“‘Indeed, Justice Powell specifically relied on the efficacy

of collateral review among the reasons to discard the common

law rational communication requirement at execution. . . . If

anything, Ford reinforces the importance of competence to

pursue collateral review because it removes common law

safeguards at later stages of the process”). Justice Powell

actually stated the opposite: He explained that in past times the

execution occurred relatively soon after trial, and a defendant

who was unable to communicate at execution was also likely to

have been incompetent to stand trial. Because a defendant

“must be competent to stand trial, . . . the notion that a

defendant must be able to assist in his defense is largely

provided for [at trial].” Ford at 421 (Powell, J., concurring).

Accordingly, “a standard that focused on the defendant's ability

to assist in his defense [in a collateral proceeding] would give

hi bk ee tk pi eine

too little weight to the State’s interest in finality, since it implies

a constitutional right to raise new challenges to one’s criminal

conviction until sentence has run its course. Such an implication

is false... .” Jd. at 420-21, and n. 2.

C. The Ninth Circuit’s Ruling Rests in Part on an

Unwarranted Interpretation of this Court’s

Summary Order in Rees v. Payton

The Ninth Circuit found “persuasive” support in this

Court’s summary order in Rees v. Payton, 386 U.S. 989 (1967)

(Rees II) for its conclusion that capital habeas corpus

proceedings must be stayed where the condemned prisoner is

found to be mentally incompetent. App. A at 21. The Rees J]

order followed upon this Court’s decision and remand in Rees

v. Payton, 384 U.S. 312 (1966) (Rees J).

As a summiary order, Rees J] has dubious precedentia!

value for any rule of law. Cf, Edelman v. Jordan, 415 U.S. 651,

670-71 (1974). Itis also factually distinguishable. This Court’s

earlier reasoned opinion in Rees J did not address the question

presented below of whether a “next friend” and attorney can

competently prosecute federal relief on behaif of a mentally

incompetent condemned prisoner when the prisoner chooses to

seek such relief. Rees never had a “next friend,” as there is

here, who would have had standing to pursue the certiorari

3. The order states as follows: “This case is held

without action on the petition until further order of the Court.”

Rees II at 989. In 1995, this Court issued a final order

dismissing Rees’s petition for writ of certiorari. Rees v.

Superintendent of Virginia State Penitentiary, 516 U.S. 802

(1995). By that time, the death judgment had been void for 23

years in light of Furman v. Georgia, 408 U.S. 238 (1972), and

Rees himself was already dead. App. A at 21 n. 8.

16

petition on behalf of a mentally incompetent prisoner. Years

later, in Whitmore v. Arkansas, 495 U.S. 149 (1990), this Court

looked to Rees J for the test that a next friend must meet for

standing to act on behalf of a condemned prisoner. In the death

penalty post-judgment context, the Court ruled that under the

standards of Rees J, anext friend could be appointed by showing

that the condemned prisoner was suffering from a mental

disease, disorder or defect that substantially affected his

capacity to make an intelligent decision. Whitmore at 165-66.

That test was met here in appointing Rohan as the next frend to

pursue habeas proceedings on behalf of the mentally

incompetent Gates. The court of appeals, however, using the

summary order in Rees JJ, has turned Rees J on its head by

finding that habeas proceedings cannot go forward because

Gates is incompetent, thereby using the reason why a next friend

was appointed to go forward as the reason to stay habeas

proceedings.

In sum, the Ninth Circuit’s decision freezes indefinitely

presumptively valid state death penalty judgments whenever a

condemned prisoner is found mentally incompetent in federal

court proceedings, whether or not the petitioner’s mental

incapacity impairs the presentation of pending, exhausted

claims. Ignored in the Ninth Circuit’s decision are the purpose

and function of state law and procedure, through tnal, appeal,

and post-judgment habeas review. Yet, absent the district

court’s factual determination that the petitioner’s ability to

rationally communicate with habeas counsel is essential to

present exhausted federal claims, a stay of federal habeas

proceedings adds nothing to the adequacy or purpose of federal

habeas review. The Ninth Circuit’s novel imposition of an

unlimited mental competency requirement for federal habeas

relief gravely undermines comity and finality. It is essential for

this Court to intervene and provide the federal habeas courts

with clear direction on this important question.

17

CONCLUSION

For the reasons stated above, the petition for certiorari

should be granted.

Dated: September 17, 2003

Respectfully submitted,

BILL LOCKYER

Attorney General of the

State of California

MANUEL M. MEDEIROS

State Solicitor General

ROBERT R. ANDERSON

Chief Assistant Attorney General

GERALD A. ENGLER

Senior Assistant Attorney General

MORRIS BEATUS

Deputy Attorney General

{Counsel of Record]

Counsel for Petitioner

MB/‘/cfl

SF2001XF0002