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Habeas corpus – stay of proceeding due to petitioner’s incompetence

Ryan v. Gonzales, USSC No. 10-930; Tibbals v. Carter, USSC No. 11-218, 1/8/13

United States Supreme Court decision, reversing In re Gonzalez, 623 F.3d 1242 (9th Cir. 2010), and reversing and remanding Carter v. Bradshaw, 644 F.3d 329 (6th Cir. 2011)

These two cases present the question whether the incompetence of a state prisoner requires suspension of the prisoner’s federal habeas corpus proceedings. We hold that neither 18 U. S. C. § 3599 nor 18 U. S. C. § 4241 provides such a right and that the Courts of Appeals for the Ninth and Sixth Circuits both erred in holding that district courts must stay federal habeas proceedings when petitioners are adjudged incompetent. (Slip op. p. 1).

The statutory provisions relied on by the circuit courts of appeal involved a statutory right to counsel for federal habeas petitioners on death row (§3599) and the process for competency evaluations for federal criminal defendants before sentencing (§4241). In its rejection of § 3599 as a basis for a right to competency during the proceedings, the Court also explicitly rejects the conclusion that the right to counsel implies a right to competence because it “is difficult to square with our constitutional precedents”: “we have never said that the right to competence derives from the right to counsel.” (Slip op. pp. 6-7).

The Court also rejects the lower courts’ reliance on Rees v. Peyton, 384 U.S. 312 (1966) (per curiam), further proceedings, 386 U.S. 989 (1967), where the Court “held without action” the certiorari petition of an incompetent death row habeas petitioner who tried to withdraw the petition. The Court said Rees provides “no clear answer” to the question whether an incompetent petitioner could or could not withdraw the petition, and “the unique, one-sentence order [holding the petition without action] offered no rationale for the decision to hold Rees’ petition. As a result, Rees offers no support for federal habeas petitioners seeking to stay district court proceedings….” (Slip op. pp. 9-11).

The Court did, however, agree that district courts “have the equitable power to stay proceedings when they determine that habeas petitioners are mentally incompetent,” but that power is left to the sound discretion of the judge. (Slip op. pp. 14-15). Without determining “the precise contours” of the judge’s discretion, the Court states that a stay is not generally warranted because most habeas proceedings are limited to the record that was before the state court that adjudicated the claim on the merits, and “[c]ounsel can read the record” without needing to consult the petitioner. (Slip op. 15-16). But, “[i]f a district court concludes that the petitioner’s claim could substantially benefit from the petitioner’s assistance, the district court should take into account the likelihood that the petitioner will regain competence in the foreseeable future. Where there is no reasonable hope of competence, a stay is inappropriate and merely frustrates the State’s attempts to defend its presumptively valid judgment.” (Slip op. pp. 16-18).

This decision will be of interest to anyone handling federal habeas cases, but immediately affects only those with an incompetent client. The Ninth Circuit decision effectively overruled by the Court is Rohan ex rel. Gates v. Woodford, 334 F.3d 803 (9th Cir. 2003). The Seventh Circuit relied on Rohan in ordering a stay in Holmes v. Buss, 506 F.3d 576, 578 (7th Cir. 2007), further review after remand, Holmes v. Levenhagen, 600 F.3d 756 (7th Cir. 2010) (see previous post here). (We say “relied on,” not “adopted,” because after finding it curious a petitioner could stay his or her own case, the court said “whether Rohan is right or wrong, we are not disposed to reject it … when the State of Indiana has declined to challenge it and as a result its validity has throughout these proceedings been assumed rather than litigated.”) With Rohan no longer good law, stays issued in Holmes and on its authority now survive only if they pass muster as an appropriate exercise of discretionary power as outlined by the Court in this case. Finally, it is worth noting Rohan and Holmes were limited to capital cases, but there is no indication in the Supreme Court’s decision that the discretionary power to stay proceedings is so limited.

Given its focus on federal statutory provisions and the equitable power of federal district judges, the decision has no direct application to state law. Our process for collateral attack of a conviction under Wis. Stat. § 974.06 differs significantly from federal habeas. No published case addresses what should happen in the event a § 974.06 petitioner is incompetent, though State v. Debra A.E., 188 Wis. 2d 111, 523 N.W.2d 727 (1994), addresses a defendant’s competence to proceed during direct appeal proceedings under Wis. Stat. § 809.30. Even though Debra A.E. explicitly limits itself to direct appeals, a litigator faced with an incompetent § 974.06 petitioner should look to Debra A.E. as the best source under state law for guidance on handling the issue.

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