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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2003
- **Citation:** 540 U.S. 1069

## Text

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FILED

03 427 SEP 17 2003

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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

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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

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_2147%3A1. Public record. Not legal advice.