HABEAS CORPUS Does Incompetency Entitle a Habeas Petitioner to Stay Indefinitely Collateral Proceedings?

CASE AT A GLANCE
Convicted of first degree murder, Ernest Gonzales was sentenced to death in Arizona state court. After unsuccessfully pursuing state court remedies, he sought a writ of habeas corpus in federal district court. Counsel for Gonzales then moved to stay his federal habeas proceedings based on Gonzaless alleged incompetency. The federal district court denied the motion to stay, noting that Gonzaless claims were purely legal and record based. Reading 18 U.S.C. 3599(a)(2) broadly, the Ninth Circuit reversed.

Ryan, Director, Arizona Department of Corrections v. Gonzales Docket No. 10-930 Argument Date: October 9, 2012 From: The Ninth Circuit
by Rachel K. Paulose

ISSUE
Does 18 U.S.C. 3599(a)(2) entitle an incompetent inmate to stay indefinitely federal habeas proceedings until and unless he is rendered competent, even if his habeas claims are strictly law or record based?

that Gonzaless assistance was essential to counsels pursuit of his claims. Two mental health experts examined Gonzales but came to conflicting diagnoses. The states expert concluded Gonzales was malingering, but recommended observation and medication. Gonzaless expert concluded Gonzales was incompetent and unlikely to recover even with the benefit of medication. After Gonzales was medicated at a state hospital, the supervising psychologist concluded Gonzales possessed a genuine psychotic disorder rendering him unable to communicate rationally. On April 23, 2008, the federal district court denied Gonzaless request for a stay and a determination of his competency, ruling that Gonzaless competence was irrelevant under Rohan where his claims were all record-based and/or resolvable as a matter of law, irrespective of [Gonzaless] capacity for rational communication with counsel. The district court found that the habeas proceedings could not benefit from [Gonzaless] personal input. The district court noted that the issue had not been decided by other circuit courts, though three other circuits had acknowledged Rohans holding but specifically declined to rule whether or not an incompetent inmate had a right to stay habeas proceedings. In Mines v. Dretke, 2004 WL 2913069 (5th Cir. Dec. 16, 2004), the Fifth Circuit dismissed Rohan as inapplicable where a habeas petitioner seeking a stay failed to allege sufficient facts showing he was incompetent, and the court affirmed the district courts denial of a stay. In Holmes v. Buss, 506 F.3d 576 (7th Cir. 2007), the Seventh Circuit remanded a case to allow the defense to cross-examine the states expert witness opining on the inmates competency to pursue a habeas petition. The Seventh Circuit declined to rule whether Rohan is right or wrong, in an effort to prevent a circuit split. In Clayton v. Roper, 515 F.3d 784 (8th Cir. 2008), the Eighth Circuit
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fACTS
In 1990, Ernest Gonzales killed Darrel Wagner and assaulted Deborah Wagner when the Wagners returned home from dinner to find Gonzales burglarizing their house. Gonzales was tried in Arizona state court for felony murder and other charges, but the jury hung, unable to reach a verdict. Gonzales unsuccessfully attempted to remove the trial judge after the proceedings, claiming judicial bias. Gonzales was convicted on all counts during his second trial. Gonzales again alleged judicial bias, and he again unsuccessfully moved to disqualify the trial judge prior to sentencing. Gonzales was sentenced to death in 1991. On direct appeal, Gonzales renewed his claim of judicial bias, among other purported grounds for reversal. The Supreme Court of Arizona affirmed his conviction and sentence in 1995, and the United States Supreme Court denied certiorari. Gonzales then filed state court petitions for postconviction relief, but his claims were rejected in 1999. On November 15, 1999, Gonzales sought federal habeas corpus review of his state court conviction under 28 U.S.C. 2254. On July 17, 2000, Gonzales filed a 237 page first amended petition raising sixty claims for relief. On February 23, 2006, Gonzaless counsel moved for a stay of federal habeas proceedings pending a competency determination. Citing the Ninth Circuits decision in Rohan v. Woodward, 334 F.3d 803 (9th Cir. 2003), counsel claimed both that Gonzales was incompetent to assist counsel due to his mental health infirmities and also

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affirmed the district courts refusal to stay proceedings based on an inmates alleged incompetence and denial of a competency hearing where the district court found the inmate actually competent based on the totality of the record. Additionally, the Eleventh Circuit in Ferguson v. Secy for Dept of Corrections, 580 F.3d 1183 (11th Cir. 2009), and the Third Circuit in Pierce v. Blaine, 467 F.3d 362 (3d Cir. 2006), noted but declined to endorse or repudiate Rohan. After the district court denied Gonzaless motion for a stay pending a competency hearing, Gonzales filed another motion before the district court seeking permission to file an interlocutory appeal and stay proceedings pending such appeal. The district court denied this motion on June 18, 2008. Gonzales sought an emergency writ of mandamus and a stay of the federal district court proceedings from the U.S. Court of Appeals for the Ninth Circuit. The Ninth Circuit stayed the district courts proceedings as well as its own proceedings pending the resolution of a case it believed would prove on point, ultimately decided as Nash v. Ryan, 581 F.3d 1048 (9th Cir. 2009). On October 20, 2010, the Ninth Circuit issued its opinion in Gonzales v. Ryan, 623 F.3d 1242 (9th Cir. 2010). Rejecting the district courts determination that a stay of habeas proceedings was available only when the issues raised questions outside the record or law, the Ninth Circuit held instead that the test was whether a prisoners rational communication with counsel could aid his claims. Writing for the panel, Judge Reinhardt found that Gonzaless claim of judicial bias required his coordination with counsel. The court based its decision on a reading of Ninth Circuit precedent established in Rohan and Nash, which the court described as foreclosing the result the district court reached below as to Gonzales. The Ninth Circuit examined both Rohan and Nash extensively in determining Gonzales had a statutory right to a stay under its prior precedent. The Ninth Circuit in Rohan traced the common law tradition of a prisoners right to competence at trial, judgment, and execution. The Ninth Circuit also noted the Supreme Court had recognized a due process right to competence during the trial itself, which it described as the ability to assist counsel in ones defense. The Court also had barred under the Eighth Amendment the execution of insane persons, which Justice Powell described as those who are unaware of the punishment they are about to suffer and why they are to suffer it, in his opinion concurring in the judgment. Ford v. Wainwright, 477 U.S. 399 (1986). Yet, the Ninth Circuit acknowledged the issue in Rohan was narrower: We confront a question that falls somewhere between these two lines of authority: not competence to stand trial or competence to be executed, but competence to pursue collateral review of a state conviction in federal court. Must a district court stay habeas proceedings when a petitioner cannot assist counsel because he is incapable of rational communication? Ultimately, the Ninth Circuit in Rohan found such a mandate neither in the common law nor in the Constitution, but the court drew the inference from 3599. The Ninth Circuit in Rohan issued a
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broad holding: We hold 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. The Nash court extended Rohan to habeas appeals: While an appeal is record-based, that does not mean that a habeas petitioner in a capital case is relegated to a nonexistent role. Nash, decided after the district courts decision refusing to stay Gonzaless habeas proceedings, acknowledged that it, like Rohan, grounded its holding in the statutory right to counsel, 21 U.S.C. 848(q)(4)(b), now recodified at 18 U.S.C. 3599(a)(2). In making this finding, the Nash court also defined competency to require[] that the petitioner possess essentially the same mental capacity that renders him competent to stand trial: the ability to understand and communicate rationally with counsel when necessary. Further, the Nash court explicitly rejected any federal constitutional basis for its decision. In granting Gonzales a stay, the appellate court declared, Nash squarely controls this case. The Ninth Circuit wrote, Gonzaless claim of judicial bias centers on events regarding which counsel may need to communicate with Gonzales to understand fully the significance and context of key facts so that counsel can pursue the most persuasive arguments. The court therefore granted Gonzaless motion for an indefinite stay pending a competency determination, notwithstanding that Gonzaless claims were all record-based or legal in nature. Arizona filed a petition for a writ of certiorari on January 18, 2011, which Gonzales opposed in a brief filed April 25, 2011. Arizona filed a reply on May 9, 2011. On May 31, 2011, the Court invited the solicitor general to file a brief in the case, which the United States did on February 9, 2012. On March 19, 2012, the Supreme Court granted certiorari.

CASE ANALYSIS
Section 3599 The question in this case is straightforward: does 18 U.S.C. 3599(a)(2) grant an indigent inmate petitioning for federal habeas review the right to stay indefinitely proceedings he has initiated if he is incompetent to communicate with his counsel, even if he raises claims that may be adjudicated as a matter of law or record? 18 U.S.C. 3599(a)(2) reads in relevant part as follows: Counsel for financially unable defendants In any post conviction proceeding under section 2254 or 2255 of title 28, United States Code, seeking to vacate or set aside a death sentence, any defendant who is or becomes financially unable to obtain adequate representation or investigative, expert, or other reasonably necessary services shall be entitled to the appointment of one or more attorneys and the furnishing of such other services in accordance with subsections (b) through (f). In effect, 3599(a)(2) statutorily extends Gideon v. Wainwright, 372 U.S. 335 (1963), by granting indigent prisoners the right to counsel in federal habeas proceedings.

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Neither the Ninth Circuit nor the parties assert that 3599(a)(2) explicitly grants indigent incompetent prisoners the right to an indefinite stay based on an inmates incompetence. Indeed, the statute by its own terms says nothing at all about an inmates competence. However, in granting Gonzales an indefinite stay, the Ninth Circuit squarely based its holding on the implicit guarantees it found emanated from 3599(a)(2). The court further described its holding as a logical extension of its prior holdings in Rohan and Nash. In Rohan, the Ninth Circuit explained the derivation of its finding: Meaningful assistance of counsel is essential to secure federal constitutional rights. Counsels assistance, however, depends in substantial measure on the petitioners ability to communicate with him. And 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 Congresss mandate cannot be faithfully enforced unless courts ensure that a petitioner is competent. Both the United States and Arizona vigorously deny that 3599 should be interpreted to imply a prisoners right of competence during habeas proceedings, particularly, where, as here, the claims are record and law based. In its amici brief in support of petitioners, the Department of Justice declares, Section 3599 does not expressly create a right to be competent to assist counsel. Moreover, Had Congress intended for Section 3599 to create not only a new right to counsel, but also a new right of competency in the post conviction context, it would have said so expressly. Arizona echoes this argument: No reasoned basis supports the Ninth Circuits conclusion that Congress impliedly intended that death penalty habeas appeals could be stayed indefinitely based on the inmates alleged inability to assist counsel. Interestingly, Gonzales abandons a strict reliance on 3599(a)(2) as a basis for relief in his filings before the Supreme Court. Instead, Gonzales points to other sources of authority, none of which were cited by the Ninth Circuit in its decision below, to justify the grant of an indefinite stay of his habeas petition. U.S. Constitution The parties agree that there is no explicit constitutional right to a competency-based stay of habeas proceedings. However, Gonzales claims an implicit Fifth Amendment right to competency. Gonzales cites no direct precedent for such a reading of the Fifth Amendment. However, he urges the Court to use the Fifth Amendment as a vehicle to declare that the right to counsel encompasses the capacity to communicate. Gonzales argues a prisoners inability to communicate due to incompetence compromises the very integrity of habeas proceedings. The Ninth Circuit expressed skepticism that the U.S. Constitution, even under the due process clause, could be interpreted to guarantee an inmates right to competency during habeas proceedings. Both the United States and Arizona deny the U.S. Constitution grants a right to competency during habeas proceedings and reiterate that no court has ever so held. As Judge Rogers noted in dissent in Carter v. Bradshaw, 644 F.3d 329 (6th Cir. 2011), cert. granted sub nom. Tibbals v. Carter, 132 S. Ct. 1738 (2012), a case the Court will hear the same day as Gonzales, because a habeas petitioner 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. More generally, the broad view of incompetence adopted by Rohan and its progeny would graft constitutional standards onto a statutory provision, 18 U.S.C. 3599. Gonzales advocates for this standard in arguing that an inmate must be as competent during habeas proceedings as he is constitutionally entitled to be during trial. In effect, Gonzales asserts a right to work as an active participant in his own habeas petition. Even for his record-based and legal claims, Gonzales contends, No one but Mr. Gonzales could properly assist them in scouring the record, placing a first-hand gloss on it, and developing a full and complete picture of what happened. To this claim, both the United States and Arizona deny that a prisoner is in any position to litigate his habeas petition better than trained counsel. Moreover, both differentiate between the existence of a constitutionally guaranteed due process right to be sane at trial (for the purpose of assisting with the defense), the existence of a constitutionally guaranteed right under the Eighth Amendment to be sane at execution (for the purpose of understanding the punishment he is about to suffer and why he is to suffer it), and the absence of any constitutional right to competence during the habeas process. No constitutional provision grants Gonzales the right to competence during his civil collateral attack on his criminal sentence, asserts the government. Supreme Court Jurisprudence Both parties agree that no Supreme Court case controlled the cases result below. However, Gonzales argues that a right to competency may be inferred from the Supreme Courts prior case law. In particular, Gonzales follows the Ninth Circuit in relying on Rees v. Peyton, 384 U.S. 312 (1966), which the Ninth Circuit claimed stood for the general proposition that incompetence is grounds for staying habeas proceedings. The United States and Arizona point out that in Rees, a per curiam opinion, the Court only directed a district court to determine whether a prisoner was competent to terminate postconviction remedies, not to pursue such remedies by continuing litigation. The question of whether to cease litigation and finally forgo all further relief is markedly different from the question of how to strategically position a prisoners ongoing habeas action. Gonzales also asserts that the Ninth Circuits result is a natural byproduct of Supreme Court cases that establish a habeas prisoners right to counsel and counsels right to meaningfully research the prisoners claims, including Martel v. Clair, 132 S. Ct. 1276 (2012), and McFarland v. Scott, 512 U.S. 849 (1994). Gonzaless counsel argues the prisoners incompetence hampers counsels ability to adequately represent him. For example, Gonzales claims the client may have information that, although not available from the record itself, bears upon the relative strength of the claims or the manner in which they should be presented. The government responds with two arguments. First, it cites a long line of Supreme Court cases firmly establishing the right of a petitioners next friend or counsel to make arguments on behalf
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of a represented party, including Whitmore v. Arkansas, 495 U.S. 149 (1990). The government concludes thereby this Court has recognized the superior ability of trained counsel in the examination into the record, research of the law, and marshaling of arguments on behalf of a represented party. Next, the government asserts that by suggesting material outside the record may be relevant to a prisoners federal habeas petition, Gonzales undercuts the strictures of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) and the Courts own jurisprudence. These statutory and precedential authorities require state prisoners to limit their habeas petitions in federal court to the law and the record already developed in state court, with narrow exceptions not applicable in this case. The government points in particular to the Courts holding in Cullen v. Pinholster, 131 S. Ct. 1388 (2011), which decrees that a federal courts review of a state habeas claim is limited to the record that was before the state court that adjudicated the claim on the merits. Alternative Federal Statutory Authority Gonzales relies heavily on 28 U.S. 2251 in asserting district courts have broad authority to issue stays of habeas proceedings. Therefore, Gonzales asserts, incompetency cannot be ruled out as a basis on which to stay proceedings. The Ninth Circuit did not rely on 2251 in issuing its opinion, and the statute appears to have been invoked by Gonzales for the first time in his Supreme Court brief. In reply, Arizona points out that 2251 is entitled Stay of State Court Proceedings, and by its own terms does not apply to the federal proceeding at hand.

released, would keep imprisoned a person who may be entitled to go free. The Ninth Circuits ruling would prevent counsel or a next friend from pursuing an incompetent inmates claims on his behalf, when it may in fact be in the inmates best interest to allow proceedings that would vindicate him to go forward, even without the inmates input. Regardless, the Courts decision will elucidate what, if any, other rights flow from an indigent inmates statutory right to counsel during federal habeas proceedings. If the Court determines a habeas petitioner has a right to competence, this case also gives the Court the opportunity to define competence in postconviction proceedings and sets forth the process by which to examine a prisoners claims of incompetence.

Rachel K. Paulose is a graduate of Yale Law School. She worked as an associate at Williams & Connolly LLP. She has also served extensively in government, including as a law clerk to Eighth Circuit Court of Appeals Judge James B. Loken; trial attorney in the Voting Section, Civil Rights Division of the U.S. Department of Justice; assistant U.S. attorney; and a United States Attorney. She may be reached at rkpaulose@hotmail.com. PREVIEW of United States Supreme Court Cases, pages 2629. 2012 American Bar Association.

ATTORNEYS fOR THE PARTIES

for Petitioner Charles L. Ryan, Director, Arizona Department of Corrections (John Pressley Todd, 602.542.4686) for Respondent Ernest Valencia Gonzales (Leticia Marquez, 520.879.7614)

SIGNIfICANCE
The Gonzales decision will determine whether a defendant in habeas proceedings, particularly one raising strictly legal or recordbased challenges, is nothing more than a potted plant, to borrow a quote from the legendary attorney Brendan V. Sullivan Jr. If the Court reverses the Ninth Circuit, it would suggest that the primary actor responsible for protecting an inmates legal rights in habeas proceedings is counsel, not the inmate himself. At the other end of the spectrum, if the Court affirms the Ninth Circuit, it could set in motion a process that might suspend habeas proceedings indefinitely. This would give death row inmates the strong incentive to claim incurable incompetence, preventing both federal and state authorities from enforcing the death penalty, ever. As Judge Posner wrote in Holmes: It is odd to think that someone who initiates a proceeding can then freeze it by claiming to be mentally incompetent. We are not surprised to have found no noncapital case in which such a claim has been made. But of course in a capital case the petitioner may prefer to languish in prison than to see his claims for post conviction relief denied, opening the way to his execution. One irony of Gonzaless position is that staying proceedings for an incompetent inmate, assuming the inmate has grounds to be

AMICUS BRIEfS
In Support of Petitioner Arizona Voice for Crime Victims (Todd Feltus, 480.990.6211) United States (Solicitor General Donald B. Verrilli Jr., 202.514.2217) State of Utah and 13 Other States (Utah Assistant Attorney General Thomas B. Brunker, 801.366.0180) In Support of Respondent American Bar Association (William T. Robinson III, 312.988.5000) American Civil Liberties Union and the National Association of Federal Defenders (Brian W. Stull, 919.682.9469) American Psychiatric Association and American Academy of Psychiatry and the Law (Aaron M. Panner, 202.326.7900) Retired Federal Judges (Matthew S. Hellman, 202.639.6000)

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