Lead Opinion
MARTIN, J., delivered the opinion of the court, in which COLE, J., joined. ROGERS, J. (pp. 337-42), delivered a separate dissenting opinion.
OPINION
In this habeas action where petitioner Sean Carter is facing the death penalty according to his Ohio conviction, the district court found that Carter is incompetent, dismissed his petition without prejudice, and equitably tolled the Anti-terrorism and Effective Death Penalty Act statute of limitations prospectively until he is competent to proceed. Respondent Warden Margaret Bradshaw appeals that decision. For the following reasons, we AMEND the district court’s judgment and REMAND the case to the district court for proceedings in accordance with this opinion.
I. BACKGROUND
For a full description of the facts of this case, we point to the thorough order of the district court. We detail here only the facts necessary for our discussion. After Carter exhausted the Ohio state review processes for his conviction, he was housed in a facility for prisoners with severe mental illnesses. His attorneys attempted to meet with him there to discuss avenues for
The district court held a competency hearing on May 1, 2006 at which experts for both parties agreed that Carter suffered from schizophrenia, personality disorder, and hallucinations. They also agreed that he was not able to fully and articulately communicate with his counsel, but they disagreed as to how well he could assist his counsel in his case. Carter’s first expert, Dr. Robert Stinson, opined that Carter lacked a factual understanding of the proceedings. He explained that Carter could not provide details or elaboration, or engage in dialogue. Additionally, he explained that Carter did not believe he could be executed unless he volunteered, and that Carter could not accurately identify his attorneys, instead thinking that Bradshaw’s expert, Dr. Phillip Resnick, was his attorney. Carter also called Dr. Michael Gelbort, a clinical neuropsychologist, who testified that Carter could not accurately describe historical events from his case and could not learn and retain new information. On the other hand, Res-nick testified that Carter could provide basic details to his counsel, albeit without much elaboration. He also believed, based upon the opinion of a social worker who had worked with Carter and not upon his own clinical examination, that Carter had accepted that he would be executed if he lost his appeals.
Approximately two years later, Stinson provided the court with an updated description of Carter’s condition. Stinson opined that Carter’s condition had become “progressively worse, and despite treatment, he appears to have significant psychosis and functional limitations even when he is at his expected baseline.” Based upon the evidence presented at the hearing and Stinson’s update, the court concluded that Carter was incompetent to understand his current position or to assist his habeas counsel. As a result, the court dismissed the habeas petition without prejudice and prospectively tolled the AEDPA statute of limitations until Carter regained competency.
II. DISCUSSION
A. The Right to Competence in the Habeas Context
Federal habeas petitioners facing the death penalty for state criminal convictions do not enjoy a constitutional right to competence. However, the Supreme Court held long ago that they do have a statutory right to competence in certain situations. In Rees v. Peyton,
shall commit the defendant to the custody of the Attorney General. The Attorney General shall hospitalize the defendant for treatment in a suitable facility—
(1) for such a reasonable period of time, not to exceed four months, as is necessary to determine whether there is a substantial probability that in the foreseeable future he will attain the capacity to permit the proceedings to go forward; and
(2) for an additional reasonable period of time until—
(A) his mental condition is so improved that trial may proceed, if the court finds that there is a substantial probability that within such additional period of time he will attain the capacity to permit the proceedings to go forward; or
(B) the pending charges against him are disposed of according to law;
whichever is earlier.
Id. § 4241(d). Additionally, section 4241(d) explains that if the defendant’s mental condition does not improve, he may be institutionalized for a longer period of time according to 18 U.S.C. §§ 4246, 4248. Id.
By applying section 4241 to habeas actions, Rees addresses the situation where a habeas petitioner awaiting the death penalty may seek to forego any collateral attacks on his conviction or sentence, and defines a statutory right for the petitioner to be competent enough to (1) understand the nature and consequences of the proceedings against him, and (2) assist properly in his defense.
Furthermore, we have relied on Rees and held that federal habeas courts may conduct preliminary hearings to determine “whether there was ‘reasonable cause to believe that the defendant may presently be suffering from a mental disease or defect rendering him mentally incompetent’ to waive his right to further appeals.” Harper v. Parker;
In Harper, a psychiatrist had diagnosed a habeas petitioner as schizophrenic and opined that he was incompetent to assist in his defense. Id. at 568. The petitioner’s counsel moved for a pre-petition competency hearing because the petitioner wanted to waive all his remaining post-conviction proceedings. Id. at 568. We held that the district court properly conducted a section 4241 hearing to determine whether the petitioner was competent to proceed. Id. at 571. We also held that the district court did not abuse its discretion in holding that the petitioner was competent to proceed based upon the evidence presented and the petitioner’s participation in the hearing. Id. at 572.
Rees and Harper anticipate any situation where a capital habeas petitioner chooses to forego seeking his habeas relief. They do not cabin the application of section 4241 to only scenarios where a peti
Based on Rees and Harper, the district court did not abuse its discretion in conducting a section 4241 competency hearing. Carter had refused to meet with his attorneys to discuss collateral attacks on his conviction, worrying them that he might not pursue his habeas petition. Carter’s attorneys also claimed that Carter could not understand the proceedings or assist counsel in his defense. At the hearing, the court heard expert testimony from both parties that Carter suffered from multiple psychological disorders affecting his abilities to relay facts to his counsel and communicate in detail. Carter’s experts believed that any discourse that Carter could engage in with his attorneys would be meaningless because of his complete lack of detailed communication. Furthermore, Carter’s experts testified that he was confused as to the identity of his counsel and that he believed he would not be executed unless he volunteered; an irreversibly dangerous false belief. While Resnick disagreed and opined that Carter had finally accepted that he would be executed unless he prevailed upon collateral appeal, Resnick did not make this finding himself, opting instead to adopt the nonscientific conclusion of a social worker who did not testify at the hearing.
The district court did not abuse its discretion in conducting a competency hearing. Carter’s refusal to meet with his attorneys to discuss collateral attacks on his conviction would have terminated any right to pursue a habeas writ if it extended beyond the AEDPA statute of limitations. The district court also did not abuse its discretion in finding that there was reasonable cause to believe that Carter was incompetent, and in further finding that he was incompetent to assist his counsel.
B. The Proper Remedy
1. The district court’s dismissal without prejudice and prospective tolling of the AEDPA statute of limitations
The district court dismissed Carter’s petition without prejudice and prospectively tolled the statute of limitations largely based on the holding in Hargrove v. Brigano,
However, the decision in Hargrove cannot be applied to Carter’s case for three reasons. First, it could potentially toll the AEDPA statute of limitations indefinitely. That result would be quite different than the thirty-day window in Hargrove that we noted would still allow the case to be re
Second, in Hargrove, the petitioner had the onus to act in order to preserve his petition, and the respondent had no burden besides defending against the petition. Here, however, the onus would shift to the respondent. An indefinite toll would prevent Bradshaw from defending against the petition unless she continually filed petitions seeking enforcement of the state conviction and sentence.
Finally, the petition in Hargrove was tolled so that the petitioner could exhaust his claims at the state level and quickly return to federal court instead of forcing him to file a new petition. This jurisdictional reason is far different from the issue of incompetency.
Furthermore, it does not appear that any case has ever held that the AEDPA statute of limitations may be equitably tolled prospectively because the petitioner was incompetent. The only published authority we have found where equitable tolling was applied in habeas cases because of the petitioner’s incompetence is from our sister circuits, and tolling was applied in those cases retrospectively. See Bolarinwa v. Williams,
Accordingly, it was improper for the district court to dismiss Carter’s petition and prospectively toll the AEDPA statute of limitations indefinitely.
2. Next friends
Bradshaw contends that the district court should appoint a next friend who can continue to litigate Carter’s petition on his behalf. Generally, next friends proceed in litigation on behalf of a party that cannot seek relief because of incompetence or inaccessibility. Whitmore v. Arkansas,
We find these qualifications for a next friend especially significant for Carter’s claims of ineffective assistance of counsel. Only Carter knows critical parts of the factual basis for these claims. As the district court noted, Carter alone has evidence of the interactions between him and his trial and appellate attorneys, and that evidence is inaccessible as long as he re
Where the factual basis for Carter’s claims is locked away exclusively in his memory, he faces the lonely certainty that no friends in this world could meaningfully be dedicated to his interests because they lack the benefit of his knowledge. Even Carter’s most ardent supporters might be subjectively dedicated to litigating on his behalf, but as long as they lack the facts that are vital to Carter’s claims, they cannot be dedicated in the sense necessary for a next friend to stand fully in Carter’s place litigating his claims as wholly as he can. It would be inappropriate to appoint a next friend for Carter’s ineffective assistance of counsel claims where the next friend would be forced to proceed through this action without the foundational facts that support Carter’s claims.
However, we recognize that Carter’s other claims might possibly be litigated without his assistance. Just because Carter might be able to contribute assistance to all his claims does not mean that his assistance is essential. The district court must determine whether it can fully and fairly adjudicate Carter’s other claims without evidence from Carter. Perhaps some claims require no evidence from Carter whatsoever. Perhaps others could benefit from it, but that evidence could be replicated by, or substituted with, other sources. If the district court determines that Carter’s assistance is not essential to the adjudication of these other claims, then the court should appoint a next friend to litigate them.
3. Stay of the proceedings according to section 4241(d)
Instead of dismissing Carter’s petition without prejudice and prospectively tolling the AEDPA statute of limitations, the district court should have followed the path taken in Rohan, a similar case that the district court cited. In Rohan,
Accordingly, we amend the district court’s judgment. The district court should not have dismissed Carter’s habeas petition without prejudice. Instead, Carter’s petition should be stayed according to section 4241(d) with respect to his ineffective assistance claims and any other claims that the district court determines essentially require his assistance.
III. CONCLUSION
The district court did not abuse its discretion in holding a pre-petition competency hearing or by concluding that Carter was incompetent. However, dismissing Carter’s petition and equitably tolling the AEDPA statute of limitations prospectively was an inappropriate disposition. Rather, with respect to Carter’s ineffective assistance claims, the habeas proceedings should be stayed until Carter is competent according to section 4241. The district court must examine the remainder of Carter’s claims to determine whether Carter’s assistance is essential to their full and fair adjudication. If not, the court should appoint a next friend to litigate those claims. Accordingly, we AMEND the district court’s judgment and REMAND the ease to the district court for proceedings in accordance with this opinion.
Dissenting Opinion
dissenting.
Today the court allows habeas petitioners to prevent States from enforcing their judgments, potentially forever, on the grounds of a nonexistent right to competency in habeas proceedings. The asserted right has no basis in the Constitution or federal statutes. Civil suits can be brought by lawyers representing mentally incompetent plaintiffs, and habeas cases are no different. Nor are capital cases different in this respect.
First of all, the Constitution, in a point conceded by the majority and all but admitted by Carter’s counsel during oral argument, does not provide a right to competency in habeas proceedings. As the Supreme Court explained in United States v. MacCollom,
This case does not involve the separate right of a condemned prisoner to be competent at the time of execution. See Ford v. Wainwright,
This case also does not involve the constitutional right to competency during the trial itself. See e.g., Cooper v. Oklahoma,
The Constitution thus does not provide that capital habeas petitions be stayed as long as the petitioner is not competent.
There is also no statutory basis for such a conclusion. Rees v. Peyton (Rees I),
Thus, Rees and Harper plausibly stand for the proposition that habeas petitioners must be competent in order to terminate a habeas proceeding. They do not stand for the very different proposition that habeas petitioners must be competent to assist counsel in the prosecution of their habeas petition. The distinction is crucial. When a habeas petitioner seeks to withdraw his habeas petition, he is choosing to end what is likely to be his only chance at reversing his conviction and regaining his freedom. This is a decision inherently to be made by the petitioner, and not while the petitioner is incompetent to do so. When a habeas petitioner files his petition and then becomes incompetent to assist his counsel in prosecuting it, however, there is no comparable client decision to be made.
Stated differently, the Rees precedent can be read to create an assumption that a habeas challenge to a death penalty will go
The statute referred to by the Supreme Court in Rees, 18 U.S.C. § 4241, provides for competency hearings for defendants in criminal proceedings, and cannot be read to extend to post-conviction proceedings. The Supreme Court took the standard from that statute and adopted it for the purpose of determining whether the habeas petitioner in Rees was competent to terminate the habeas proceedings. The Court’s adoption of the statutory standard for one required inquiry (competency to terminate proceedings) does not logically imply that another inquiry (competency to assist habeas counsel) needs to be made in the first place. Notably, the Ninth Circuit, in its lengthy opinion holding that incompetent habeas petitioners are entitled to a stay, does not rely on § 4241 as so providing. Rohan ex rel. Gates v. Woodford,
Instead, the Ninth Circuit’s holding is based on a different statute, one upon which the majority in this case wisely declines to rely. In Rohan, the district court held a competency hearing for a death row habeas petitioner and concluded that the petitioner was incompetent. Id. at 806. Nonetheless, the district court went on to deny the petitioner’s request for a stay of his habeas proceedings, holding that neither the Constitution nor the federal habeas statutes required that the proceedings be stayed, because the appointment of a “next friend” adequately protected the petitioner’s interests. Id. The Ninth Circuit reversed. The Ninth Circuit interpreted 21 U.S.C. § 848(q)(4)(B) (now recodified as 18 U.S.C. § 3599(a)(2)), which provides for appointed counsel in death penalty habeas proceedings, as implying a right to “meaningful” assistance of counsel, which itself depends on the petitioner’s ability to communicate rationally with counsel. Id. at 812-13. Hence, concluded the Ninth Circuit, Congress meant (though it never said) that a habeas petitioner has the right to be competent during his habeas proceedings. Id. at 813.
But the plain language of the statute provides for no such right, and none is ever mentioned. Instead, Congress provided a detailed list of instructions and specifications governing appointed counsel’s qualifications and experience in capital habeas proceedings. See 18 U.S.C. § 3599(b)-(e). These provisions in no way speak to the actual effectiveness of counsel’s performance during a habeas proceeding, they simply prescribe a minimum level of background knowledge for appointed counsel. In particular, they say nothing about the competency of the petitioner.
The Rohan court relied in part on the implication of a right to competency from a right to counsel from other contexts, such as the constitutional right to competency at trial. Rohan,
There is in short no legal basis whatsoever for inferring a right to competency of the petitioner in habeas proceedings. It is a right created out of whole cloth.
It is also a right that is anomalous in its very nature. For practical purposes, the right will be asserted by capital petitioners but not by other petitioners. Capital petitioners gain something (delaying execution) from indefinitely delaying habeas proceedings, while the interests of convicts serving prison terms — whether competent or not — will almost always be served by the prompt litigation of habeas petitions, so as to advance the possibility of release. But acceptance of the right in concept might well require that it be applied to noncapital cases, where prosecutors could insist that habeas be indefinitely delayed. One might argue that noncapital defendants may waive the right, but by hypothesis such defendants are incompetent, and thus might be incapable of waiving the right. So recognition of a right to competency in habeas proceedings means either that prosecutors can for practical purposes insist on indefinite postponement of habeas proceedings where convicts are not competent (a counterintuitive result), or that the difference in punishment — capital vs. non-capital — somehow fundamentally changes the nature of how much a lawyer must have input from the client, such that the right is categorically available only for capital convicts (an anomalous result).
It is also anomalous to have a system in which a civil litigant can go into court and instantly get the relief he seeks merely by showing that he is incompetent. In civil cases in our system, a plaintiff has to show a basis for relief, not merely that he is disabled from making such a showing. While habeas cases deal with criminal convictions, they are at bottom civil cases.
Finally, the very ways in which competency is said to be necessary for habeas petitioners would apply just as strongly to the competency of witnesses in habeas proceedings. A key witness in a habeas proceeding — one whose input or testimony might make all the difference — might become incompetent or be unable to testify. But no one would argue that a habeas proceeding therefore could not proceed. The parties just have to do the best that is possible with the witnesses and testimony that are available, subject to the rules of evidence.
These concerns are reflected in the facts of this case. Although the district court found that several of Carter’s habeas claims could potentially benefit from his assistance, at least three of these claims plainly do not require any input from Carter for their successful prosecution. Thus, even recognizing a right to competency does not prevent the district court from resolving the merits of at least these habeas claims. These include Carter’s claims that: (1) he was incompetent to stand trial; (2) his trial counsel was ineffective for failing to pursue the issue of his competency; and (8) his appellate counsel was ineffective for not appealing the trial court’s failure to ensure that he was competent. As for the first of these three claims, Carter’s competency is a question of fact, see Thompson v. Keohane,
The same is true for the other two claims. As noted, the record for this case already contains extensive evidence concerning Carter’s competency. The record also sufficiently reflects Carter’s trial counsel’s efforts to prove that he was incompetent and how his appellate counsel handled the competency issue on appeal. No information available only to Carter would alter the merits of these claims for purposes of the habeas standard. Perhaps recognizing this, the majority fashions the particularly anomalous remedy of remanding the case in part, for the district court to identify those claims that do not require Carter’s assistance and then to appoint a next friend to litigate those claims on Carter’s behalf. This “remedy,” however, necessarily has the incongruous effect of staying part of the case indefinitely while allowing another part of the case to go forward, with the scope of the latter part to be determined wholly by the district court. This compounds the hobbling of the State’s legitimate interests in finality and execution of its judgments.
Two of the remaining claims identified by the district court — Carter’s removal from the trial proceedings and the ineffective assistance of his trial counsel during mitigation — could potentially benefit from Carter’s assistance. In the first place, it is questionable whether, under the evidentiary limitations imposed by AEDPA, Carter’s counsel could introduce new evidence on habeas review in support of these claims, even if Carter were competent.
Requiring competency on the part of capital habeas petitioners is not compelled by the right to competency at trial, the right to competency in waiving further habeas proceedings, or the right to be competent at the time of execution. The new “right” is not provided by either the Constitution or any statute. It is instead an anomalous monkey wrench thrown into the capital-litigation process.
The district court’s order should be reversed, and the case remanded in full so that the habeas proceeding can go forward on all of Carter’s claims.
Notes
. For the claim concerning Carter’s removal from the trial proceedings, Carter first raised this as an instance of ineffective assistance of appellate counsel in his Ohio Rule of Appellate Procedure 26(B) application to reopen his direct appeal. Carter’s Rule 26(B) application, however, did not include an affidavit from Carter concerning whether he wanted to be in the courtroom for his trial and sentencing. Under the Ohio Rules, Carter's application to reopen his direct appeal needed to contain a sworn statement of the basis for his claim of ineffective assistance of appellate counsel, any parts of the record available to him, and all supplemental affidavits upon which he relied. Ohio R.App. P. 26(B)(2); Morgan v. Eads,