Don Jay Miller, by and Through Nancy Follin Jones v. Terry Stewart

FISHER, Circuit Judges.

OPINION REINHARDT, Judge. Circuit Nancy Jones, Follín an attorney with the Pima County Public Defenders Office (PCPD), appeals the denial of her motion in his effort himself stay the defeat friend as next proceed him. to execute Miller, Arizona decision an Jay the State’s Don execution in Faretta, who held Supreme of death Court sentence under prisoner habeas relief seek a constitutional declined to dividuals by doing so Faretta, represented to be 422 refused See themselves. is cur- execution Miller’s or PCPD. Jones 806, 2525. In 95 S.Ct. at U.S. 8, at 2000 November for rently scheduled was determined case, the state court all filed was November motion The p.m. 3:00 minimal the meet able to that he was 6, found court the district 5. On consti that necessary to exercise standard standing to requisite the lacks that Jones 835, 95 S.Ct. id. at right. See tutional friend. Miller’s next action this as maintain aware of (defendant “made be must 2525 to motion it denied Jones’s Accordingly, self-rep disadvantages dangers and stay, and for a and next friend proceed estab resentation, the record will that so of habeas for writ dismissed doing and he is knows ‘he what lish that jurisdic- lack of for by Jones corpus filed ”). A eyes open’ made with is his choice a certificate issued court tion. The however, raised is question, far different from appealed Jones appealability. an indi whether is posed the issue when order, requests and court’s the district execut to to choose be competent vidual is consider- our pending stay of execution death, whether short, choose and to ed—in argument Having heard ation of it. voluntarily, know that choice made he has remand stay, and grant the telephone, we Pey v. See Rees intelligently. and ingly, hearing. evidentiary for an 1505, 16 S.Ct. ton, 86 384 U.S. in the known is Miller is what Don (1966) (directing district L.Ed.2d 583 He “a volunteer.” trade penalty death compe mental Rees’s court determine executed. to be that he wishes has stated things, posture present “in the tence courts insists that The State capacity is, he has whether to make competent Miller is presume must a ration and make position appreciate voluntarily choice, does so that he this and continuing or respect with al choice superi- the state because intelligently, and or on litigation abandoning further hearing found a 1998 Faretta1 or court in suffering from he is whether other hand represent himself competent Miller disorder, disease, or defect The proceedings. post-conviction state capacity substantially may affect however, acknowledges, State added). Whether (emphasis premises”) to deter hearing purport did not Faretta counsel, competent to die someone is to choose competence mine Miller’s voluntarily, Be so he has done that decision. whether and or the voluntariness appro differ intelligently, made the has ever raises knowingly cause no and court evi find priate because inquiry different requires questions ent may not be Miller suggests competent dence whether someone ings than stay of for motion grant we competent, Faretta, at 422 U.S. die. See to elect to to the remand this matter execution Rees, 2525; U.S. 835, 384 S.Ct. 95 cf. hearing. evidentiary for an district court here Because 313, 86 S.Ct. competency determination state court two hearing state a differ from stemmed and voluntariness matter. a far different years ago was on case, Brewer2 unlike in in this inquiry, ent hearing hearing a Faretta It was —a deter- competency Baal,3 no there is elect competent to was whether Miller 731, Baal, U.S. 732- 495 v. 3. See Demosthenes 95 California, 422 v. U.S. 1. See Faretta (1990). L.Ed.2d 762 (1975). 110 S.Ct. S.Ct. 45 L.Ed.2d Lewis, 989 F.2d 2. See Brewer (9th Cir.1993).

mination to which give federal courts must determination since this deference. change. The Faretta findings were made on Oc- Here, the preliminary issue is tober 1998 at a time when Miller was standing. order establish standing, confined in county jail and was still deter- (1) the next friend must: provide an ade mined to fight his conviction and sentence. quate explanation as inaccessibility, —such The psychiatric State’s expert, mental incompetence, or other disability— court, found competent why the real party in interest ap cannot choose to represent himself when pear on his own behalf to prosecute the still Morenz, fighting his life. Dr. action; (2) truly be dedicated to the psychiatrist, expressly states that when he best interests of person on whose be opined that Miller in 1998 competent half he or she seeks to litigate and have represent himself, to Morenz “placed great significant some relationship with the real emphasis on [Miller’s] indication that he in party interest. No one questions Nancy would be pursuing his federal appeals with Jones’s dedication or significant relation counsel.” by See Barry Declaration Mor- ship with Miller. enz, 2, 2000; see also Morenz’s August 1998 Psychiatric Evaluation of In the of a prior absence state court Miller.4 Now the States urges us to defer finding defer, to which we we must look to to that determination —that Miller was the entire record. Mr. Miller’s history of competent to choose represent to him- depression and abuse are well-document- purposes self—for of resolving the far dif- ed. The record shows that Mr. Miller was ferent question of whether Miller is com- physically, sexually, and psychologically petent to choose to die. abused as a child. grew He up in an

Moreover, it undisputed is that environment of abuse and neglect. His mother, circumstances changed who at drastically times ran a “massage par- since the time of the lor” 1998 Faretta and at hearing other times was a stripper, and even since the time of the once subsequent chased him with a butcher knife and reaffirmation put state court cigarettes out order. body of one of his Confined in maximum security siblings. all He has a history documented totally isolated in II” on “SMU impulses, Arizona’s suicidal depression, alcohol row, death given Miller has up abuse, his fight for and physical injuries. Significantly, life. Yet no court has ever made in juvenile as a offender, he threat- report, In that .determining in harmless, Miller’s com- court could damental, procedural, be or fun- petence himself, represent to Dr. Miller relied may may or not result in his following on the facts: “Mr. Miller under- being conviction overturned. He indicates stood that he has been convicted of first- that his attorney primarily is interest- degree murder and sentenced to death. He ed having in his sentence reduced from the understood that attorneys his current penalty life.) were death to natural Mr. [¶] Miller Brian Nancy Metcalf and Jones. He indi- also understood that he had option an to cates attorneys that his will not raise some forego appeals further state begin to issues that he believes are relevant in his appeals process. Mr. Miller indicates appeal. He states that particu- these issues that he has been contact in with some federal larly have to do with the performance prior attorneys represent who will in the him feder- attorneys represented (Also, that have stage him. al process. of the appeals' He is com- he legal states there are other issues that his point fortable this with representing their attorneys do not feel are relevant that he him later on. also He continues consider Therefore, wishes to be raised. point, at this waiving appeals further going state di- he would prefer to rectly himself. Mr. appeals' stage. to the federal Mr. Mil- Miller indicated that he jury believed that the ler believes that he has a reasonable chance judge gave instructions that the at trial prevail were appeals. with his also He believes inadequate. He attorney's believes his clos- years appeals has several before the ing arguments inadequate. were also un- imposition He of the penalty death would actual- derstood that errors found the appellate ly place.” take part ground distinguished Comer he not be released

ened should suicide sought with- that there the defendant from confinement. here the application while draw habeas affidavits, psychiat- both of In recent one. con- declined file We defendant for pur- ric who examined experts legal analysis the same clude that hearing state Faretta poses of the 1998 is in both circum- applicable their examinations adamantly state that stances. of deter- purpose for the sole were made competent Mr. Miller was mining whether narrow circumstance this counsel, purpose for the court has ever determined Mr. which no compe- Miller is determining whether Mr. die competency to choose to or the experts Both tent choose to die. decision, there is suffi voluntariness of accepted conditions such that it is well require an in the record to cient evidence II in the where present those evidentiary hearing compe as to Miller’s psychological can cause Miller is housed es tency. Such evidence sufficient to point that individu- decompensation jurisdiction purpose for that tablish Both may incompetent. ex- als become and to federal courts mandate to Mr. Miller’s back- perts note due Estelle, this See v. 463 U.S. case. Barefoot to highly susceptible ground, he 3383, 880, 77 L.Ed.2d 1090 103 S.Ct. isolation on death row. physical effects (1983). permit It to next is also sufficient that Miller’s com- expert Neither believes evidentiary proceed status for the friend make the to die should petency to decision ings. point. at this be assumed Stay Granted; for Remanded Further it that a significant In this case we deem Proceedings in Conformance with this question has been raised re- substantial Opinion. to garding changes recent Miller’s mental noted, who pre- the doctors condition. As FISHER, Judge, Circuit Concurring: to competent him waive viously found questions re- counsel now raise serious Whitmore, the for “prerequisite Under to make the garding competency his deci- standing ‘next friend’ is not satisfied where addition, Hall, In sion to die. Julie counsel evidentiary hearing an shows that the de- Capital Representation for Arizona given knowing, intelligent, has fendant Project, has submitted declaration stat- voluntary pro- waiver his willing her ing that told he was ceed, and his access court is otherwise escape life pay with his the conditions of Arkansas, v. 495 unimpeded.” Whitmore Hall, has in regular SMU II. who been 149, 165, 1717, 110 S.Ct. 109 L.Ed.2d U.S. Miller, attests that communication with (1990) Utah, (citing 135 Gilmore v. 429 declined, has Miller’s mental state he has 1012, 1017, 436, 97 50 L.Ed.2d U.S. S.Ct. depressed, and increasingly become he (1976) J., (Stevens, concurring)). The 632 dying. July of resigned himself to this evidentiary hearing the reviewed Court year, auditory Miller suffered hallucina- question the specific Whitmore addressed Finally, recog- tions. this court in Comer capacity “had ‘the whether defendant nized the harsh conditions of death row in to understand the choice between life possible Arizona and its effects those knowingly intelligently and to death there, who on that basis live ordered rights appeal his waive and all evidentiary hearing. v. an See Comer ” (quoting sentence.’ Id. Simmons Cir.2000) (9th Stewart, 910, 215 F.3d 916 State, 423 298 Ark. S.W.2d (“we recognized and other courts have (1989)). analyzed The the Arkansas Court prison remarkably similar to conditions proceedings as follows: trial court Mr. his descriptions Comer’s questioned by counsel and Simmons can affect adversely per- confinement health”). concerning the trial court choice son’s Mr. also mental Comer was sentence, and his an- accept II. district death confined The swers demonstrate that appreciated Ford v. Wainwright, 477 U.S. the consequences of that decision. He S.Ct. (1986). 91 L.Ed.2d 335 The indicated that he understood several court further held that Baal inwas con- possible grounds for appeal, which had trol faculties, of his was competent to been explained counsel, to him by choose to decline to pursue an appeal, informed the court that he was “not and had made an intelligent waiver of seeking any technicalities.” In a psychi- his right to pursue postconviction relief. interview, atric Simmons stated that he Id. 732-33, 110 S.Ct. 2223. would it consider “a miscarriage terrible This court applied Whitmore and Baal justice person for a people kill Lewis, Brewer v. 989 F.2d 1021 executed,” not be and there was no Cir.1993), denying next friend standing to meaningful evidence he was suffer- petitioner because she had presented ing from a disease, disorder, or meaningful evidence of incompetency suffi defect that substantially affected his ca- cient to overcome two prior state trial pacity to an intelligent make decision. court findings of competency, each based 165-66, 110 Id. at S.Ct. (citing Rees v. on a full hearing where the trial court Peyton, 384 U.S. 1505, 16 86 S.Ct. questioned Brewer personally. Unlike (1966)).1 L.Ed.2d 583 cases, these I believe Miller’s state court Similarly in Baal, Demosthenes v. 495 competency hearings did not address the U.S. 110 S.Ct. 109 L.Ed.2d 762 presented issue here. Accord (1990), there had been a full evidentiary ingly, for the reasons set forth by Judge hearing following Baal’s decision to aban- Reinhardt and amplified below, I concur don postconviction relief order of and remand. regarding specific question of his com- There has not been a hearing focused on petency to do so. Again, the Court sum- Miller’s competency to or waive abandon the marized nature and substance of that his of appeal and to submit to execu- hearing: Rather, tion. the state trial court hearings At that Baal hearing, testified that he on October 1998 and December did not want to continue postconvic- 1999 concerned Miller’s competency to tion proceedings. He further testified pursue himself and his appeal. that he knew the date he would be put Although Rymer Judge death, cites to to Miller’s the reason he put would be to statement death, that he “has been fighting for and that his postconvic- waiver of his 1996,” execution since tion the relief record of the result in would his death. A hearings reflects an psychiatrist assumption state that Miller testified that Baal was was planning to competent; a challenge conviction, his prison state who official not Indeed, had abandon it. observed Baal the also two testified doctors toas who competence. Baal’s examined Miller’s The court competency also re- reports viewed the of have stated psychiatrists they did not three consider im- the who had examined pact of Baal and incarceration and proceeded concluded on the that he was competent assumption to stand trial. he was planning to appeal. evidence, Based this the court Neither held evaluated him for purposes of that Baal was aware of waiving his impending his rights. appeal Moreover, the execution and it, of reason for and record of the December 13 hearing con- thus was sane under the set test forth in sists of a minute order and does not reveal Peyton, Rees the Court petition reviewed a and ordered the district court to con petitioner's withdraw, request to against the a hearing duct to determine "whether [the counsel, advice of his current a chal- petitioner] capacity appreciate has to posi his lenging his death Noting sentence. concerns and tion amake rational respect choice with petitioner's about the mental health and the to continuing abandoning litigation. or further prior of judicial absence of determination U.S. at 86 S.Ct. 1505. competency, the Court to declined dismiss of arguments and representations vits and with discussion court’s of the contents record, is there I believe this On counsel. not believe I do Accordingly, Miller. pres- Miller’s as to question be of a substantial to competency Miller’s of findings this support to sufficient competence a deter- as ent weight character the same execu- a- of to issue jurisdiction on evidence court’s and based focused mination If hearing. evidentiary submitting an voluntarily pending to tion directly relevant then currently incompetent, found Miller is execution. to habeas to file standing have would Jones determination, court state such a Absent otherwise, friend; next as his proceedings sufficient presented Jones I believe (Because Su- the Arizona not. she would question raise to meaningful evidence 6, 2000 granted on November preme Court appeal his competency friend, next appear motion to Jones’ evi- an warrant enough to least rights —-at stay exe- her motion although denying hearing as dentiary sec- meets assuming she cution, I am direct- First, although Miller competency. standing test the next-friend prong ond insists advisory counsel through ly and Whitmore.) are his actions competent is that he begs position crediting his voluntary, dissenting. RYMER, Judge, Circuit competence. of his question view unprecedented from the I dissent Mor Morenz and Doctors Second, both of constitutional ais difference that there of their scope nature qualify ris majority what between magnitude provided evaluations competency choose “competency characterizes impact not consider they did stating decision,” of his voluntariness die or living conditions row of death Miller make maj. op. Mil “further evaluation concluding that the voluntariness decisions and legal to ascertain definitely warranted ler including the decision those conditions psychological whether decisions— of death incom under sentence that he is point prisoner to the deteriorated ” A court. Admittedly, relief for habeas .... file be executed petent di to Miller spoken determined or has seen neither strang knowingly and they intelligently, are not rectly competent since history himself. troubled Miller, know his chose to voluntarily ers potential the that his evidence speculation no substantial and their There II in SMU ration- ability of incarceration to make effects or adverse mental condition assess own this court’s evi- in All of the support changed. finds has al decisions Stewart, facility in Comer court’s ment of the state contrary: to the dence is Cir.2000). 910, 917-18 F.3d and reaffirmation in 1998 determination 1999; own statements Miller’s December evalu- who Third, doctors two state want does not currently, that he then, although October ated Miller seek lawyers who by the represented of clean bill to be aMiller give purporting friend,” not that he does “next had been his he to be health, acknowledged that (now for set of execution auditory warrant hallucina- want suffering “temporary suspended, of to be p.m.) a result at 3:00 voices—as hearing tions”— Moreover, consequences; his understands the hard labor. he on at and that working of once Correc- appeals Department his aof report to abandon decision of ex- the conditions who suggests psychologist II psychiatrist entered tion adversely and found may indeed confinement in October Miller amined illness. state. mental major his mental affected of no evidence “next Jones, putative Nancy Follín As hearing a sum, never been has In there evi- meaningful no produced friend” focused I would incompetence, execution, dence and submit appeal rights court. district affirm the on affida- litigated being instead the issue Miller, As set State v. forth detail the state court dismissed post- 186 Ariz. (1996), 921 P.2d 1151 conviction petition on ground that the was convicted degree of first murder and involuntary confession claim had been de- kidnaping, sentenced to death. Fol- cided on appeal. He did not seek review lowing the Supreme Arizona Court’s denial in the Supreme Arizona Court. appeal, Miller’s direct he filed a pro per sought PCPD to intervene and filed a post-conviction notice of relief in trial motion for reconsideration, but Miller’s ad- court. The court appointed the Pima visory counsel informed the court that Mil- County (PCPD), Public Defender who had ler opposed PCPD’s intervention, did not represented Miller on appeal, to prepare want delays further case, and want- supplemental post-conviction petition. ed a warrant of execution to issue. The However, Miller sought to represent him- court found that PCPD lacked standing self. challenged PCPD his ability to waive and denied the motion. When PCPD counsel, and the trial court authorized an sought special action relief in the Arizona examination by expert, Larry PCPD’s Dr. Supreme Court, Miller filed an affidavit Morris. After receiving report, Morris’s pro per stating that he did not wish to PCPD present chose not to evidence of pursue issues regarding incompetency. sentencing in a The trial court ap- then Rule 32 petition, pointed Barry Dr. that he requested Morenz to Mil- evaluate ler report warrant of issued, to the court. execution Morenz be noted that Miller had that he did recently been moved to the wish the warrant to be prison’s Special Management suspended. Unit II As he explained: “I chose not (SMU II), which Miller described as “very issue, raise the fully understanding the oppressive,” and that Miller was enjoying potential consequences my decision.” On greater “slightly measure freedom” as September 26 the Supreme Arizona Court a result of being temporarily housed at the declined to accept jurisdiction of spe- time at the Pima County Jail. Miller was cial petition action and granted the State’s diagnosed with polysubstance dependence motion for a warrant of execution. PCPD (in remission) and, provisionally, an antiso- filed a for certiorari to the United cial personality opinion, disorder. Supreme States Court and a motion for Miller was “competent to make informed execution, which are still pending. choices,” legal including the choice to On October the Federal Public De- waive counsel. (FPD) fender filed motion in district The trial court conducted a hearing on court requesting a limited appointment of Miller’s motion proceed pro per on Oc- counsel for purpose of meeting with tober and found that Miller explain Miller to habeas review knowingly, intelligently and voluntarily process. Miller indicated that he did not waived right his post-convic- counsel in wish pursue review, federal habeas but tion proceedings and granted his motion said he object did not to the FPD’s visits. for self-representation. The ap- court The district court denied the motion for pointed Harriette Levitt advisory coun- appointment limited granted but visitation sel. rights. 13, On 1999, December the state court Miller was 18, examined on October held another hearing at which it reaffirm- by 2000 a psychologist and a psychiatrist ed Miller’s competency him- employed the Arizona Department of self and a 13, set firm March 2000 deadline Corrections after for issuance of the filing pending a post-conviction petition. Al- of warrant though They execution. found no evi- Miller filed a request for early dence any major relief on of his mental involuntary claim, confession illness. Their he failed report to file further notes that pleadings Miller after the has no made re- court him ordered to file potential quests all for mental health or for services claims simultaneously. 31, On March 2000 1993, treatment since his incarceration in

1256 presently is not Miller that argues Jones significant of observations have nor voluntary knowing, making a of capable made been distress or emotional mental to coun- his of intelligent waiver and when Mil- July 2000 exception one with a right to seek his court in federal and sel a hard- work from ler was stressed habeas a writ of and of execution crew. labor confine- of conditions the corpus because adviso- Finally, on II Prison’s SMU Arizona State at the ment on her based a declaration filed ry counsel of the time at the considered never were It Miller. with conversation recent most determination. court “the con- that states Miller that represents Stewart, 215 v. upon Comer relies She his II and in SMU of incarceration ditions Cir.2000), to contend 910, 917-18 F.3d nothing have or depression health specif- prison of the effect that conditions — further Miller this decision.” with to do consid- II —must be in SMU ically those his fighting he has been that states the volun- into inquiry separate aas ered years before two since execution to a addition of such waiver. tariness only reason II, that the and to SMU move records, submitted Jones of older number he fact that is the appeal up his gave declaration, by Julie a declaration own her prison. old grow not wish does counsel) questions (Jones’s Hall mo- other several FPD filed and Jones actions, and of Miller’s voluntariness are visitation, these regarding tions ex- physicians who of the two declarations appeal.1 of this disposition relevant that 1998, to demonstrate inMiller amined serious, long-term friend’ clear ‘next onis suffers from “The burden post-traumatic his status of propriety depression history establish ly to him to suc- of the caused jurisdiction that thereby justify the disorder stress 164, 110 confinement Whitmore, solitary at U.S. effects of cumb to the court.” II. clearly to establish abuse at In order S.Ct. “mean present must standing, petitioner her forth belief sets declaration Jones’s petitioner] that [the evidence

ingful a mental under operating Miller “is that disorder, disease, a mental suffering from seeking relief him prevents disability that substantially affected that or defect She courts.” behalf his own intelligent decision.” make an capacity long of life result it is “the that states . 166, 110S.Ct. 1717 Id. depres- in severe that has resulted trauma post-traumatic symptoms sion pre- Jones whether turns on appeal This psycho- with combined disorder stress meaningful evidence sented solitary conditions disabling logically since deteriorated mental condition by Dr. The declarations confinement.” state trial when the December say the same Dr. Morenz un- Morris and competence reaffirmed evaluations, nei- in their thing; failing consequences derstanding of impact what to consider ther was asked (originally relief post-conviction pursue may of confinement 1998). the conditions pre- We October determined counsel; decision on Miller’s court’s had the trial correctness sume regarding read information Baal, each has Demosthenes determination. total virtual living conditions daily 2223, 109 L.Ed.2d 110 S.Ct. U.S. at row inmates of death isolation curiam). physical not does (1990) Jones (per well-accepted II; upon that based find, any SMU the district court did nor suggest, effects on the studies psychological that conclude upon which basis under subjects kept isolation physical fairly supported. not finding was court’s granting "next its order sequently clarified issued 1. In an order ruling purpose of only for friend” status granted Jones’s mo- Supreme Court Arizona for a Supreme Court motion on her her denied "next friend” appear as tion to stay of execution. Court sub- stay execution. The for motion conditions akin to tion). those of death in- row As in Brewer, Baal and this conclu-' at II, mates such conditions can sory evidence is insufficient to outweigh cause psychological decompensation in cer- the state court’s determination and the tain individuals to point those October 2000 examination and report. individuals are comprehend unable to their I therefore agree with the court, district life situations may be incom- that Jones has not met the threshold petent; that each has an understanding showing of standing as “next friend” to that Miller suffers from symptoms typical- support jurisdiction federal court to issue a ly associated with post-traumatic stress stay. Accordingly, I would affirm dismiss- history suggests prob- has had al of and dismiss the request lems with depression throughout; that in- as moot. dividuals similar circumstance are sus- ceptible to the effects of physical isolation

like II; the conditions of SMU and based

on information concerning the conditions

of confinement and the expressed concerns Comer, the court in further evaluation

of Miller is warranted to ascertain whether

his psychological conditions have deterio-

rated to point that he is incompetent to

be executed or able to waive all appeals. UNITED America, STATES of

These declarations Plaintiff-Appellee, are meaningful not evidence that Miller is not currently com petent. Nor they do show that Miller’s Jalal RAHSEPARIAN, also forgo decision to known further proceedings not Jack Rahseparian, product “the aof free Defendant- and deliberate Comer, Appellant. choice.” 215 F.3d at 917.2 Nei ther Dr. Morris nor Dr. Morenz has exam No. 99-6031. ined Miller since 1998 and their statements about possible deterioration of his United States Court of Appeals, during condition at incarceration Tenth Circuit. II purely SMU are speculative. See Brew Nov. 2000. Lewis, er v. 989 F.2d Cir. 1993) (opinions by doctors who never met petitioner and by physician who examined

and found him competent years several but speculates,

before based informa

tion time, not available that condi may

tion have deteriorated is inconclusory

and insufficient to outweigh substantial ev demonstrating

idence competence). While may

Jones him, seen she is

physician and her views supported are not

by any objective evidence in the record. Vargas, (new 159 F.3d at 1170 evidence Cf.

of illnesses not previously diagnosed and

medications not previously required tends prove that mental condition has deterio

rated prior since a competency determina- assume, decide, I without needing to decision not lile a federal habeas decision (from partially dissented) Comer I ap- distinguished from a decision to withdraw plies to this case petitioner's which involves a a pending appeal.

Case Details

Case Name: Don Jay Miller, by and Through Nancy Follin Jones v. Terry Stewart

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Nov 7, 2000

Citation: 231 F.3d 1248

Docket Number: 00-99017

Court Abbreviation: 9th Cir.