*1 dеference, that the Secre- and the distinction Chevron objective, governmental goal. is reason- statutory interpretation rationally tary’s related here Moreover, treatments their dental because able. procedure, to a covered ancillary not
were AFFIRMED. similarly to the situated not Appellants are “Evidence of they cite. “favored classes” groups unlike does of
different treatment claim,” protection equal support (quoting Thorn- Wright, 665 F.3d Helens, F.3d City St. ton v. of Cir.2005)). (9th conclude We of the Constitution’s no there is violation protection. of guarantee equal DEERE, Running AKA Lee Ronald Deer, Petitioner-Appellee,
VI v. illnesses, Syn- Sjogren’s Appellants’ disease, are graft-versus-host drome and Warden, CULLEN, Acting Vince serious, that these dis- and the conditions Respondent-Appellant. dental strongly require present eases 10-99013. No. patient’s maintain a health treatment The health risks. catastrophic against Appeals, of States Court United sympathetic, are Appellants of claims Ninth Circuit. coverage is understanda- for their desire 17, 2012. Sept. Argued and Submitted necessary ser- medically all But not ble. Medicare, and the covered vices are 3, 2013. Filed June coverage Secretary implemented has goals with the framework consistent be broad denial
Congress that there 'Although services. we coverage for dental statutory provi- have concluded is am- of dental services sion for exclusion diver- plausible sense that biguous we also urged, can be gent constructions Secretary’s interpreta- conclude that statute is reasonable. tion of the Sjogren’s Syn- underlying conditions are disease drome and graft-versus-host consequent need is complex, in the that are routine dental services not different from are sense others, is, commonly given services crowns, preparation application fillings. of this bridgework, light legislative com- specific comprehensive mand, primary broadly excludes which coverage, from Medicare
dental services both that Secre- we have concluded warrants tary’s statutory interpretation *2 (argued), S. Jacobson At- Deputy
.Lise torney California, General for the State of CA, Diego, San for Respondent-Appellant. Bolinas, CA; (argued), Michael Satris Samuelson, Francisco, and Diana CA, San for Petitioner-Appellee. SILVERMAN,
Before: BARRY G. FLETCHER, WILLIAM A. RAWLINSON, JOHNNIE B. Circuit Judges. SILVERMAN;
Opinion by Judge by Judge Dissent W. FLETCHER.
OPINION
SILVERMAN, Judge: Circuit every- Ronald kill Deere threatened to in Cindy family one Gleason’s if she were up ever to break with him. On March good Up- Deere made on his threat. him, Cindy set that had left Deere shot situation, judge accepted trial brother-in-law, Don Cindy’s killed daughters, plea. Davis, young guilty two Davis’s ages 7 and case, he ar habeas *3 present In Deere’s days later. a arrested few in lawyer Deere was was ineffective gues that his he lawyer, a having appointed After been a request to full-blown failing 1982 for plea his desire to expressed his withdraw today that hearing. hold competency We even plead guilty, to guilty of argument for the sake of assuming even could the death he knew he face though a requested lawyer should have that his entered, plea the Before was penalty. the hearing despite plenary competency — for him to be lawyer arranged Deere’s two health examin reports of the mental profession- by two mental health examined ers, counsel’s own observations despite psychi- in experience with physician als—a on his extensive interaction Deere based Both examiners psychologist. a atry, him, of the the observations despite with remarkably conclusions. to similar came judge, despite Deere’s and the prosecutor oriented reported that Both wanting plead to for rational reasons time, person. exam- place and Neither to no guilty nevertheless suffered —Deere thought a from found Deere to suffer iner competency from the lack of prejudice disorder. no reasonable hearing because there was found that he would have been probability the William psychologist,
Deere told As we said plead guilty. incompetent Jones, Ph.D., prefer a death that he would (9th Budge, v. 378 F.3d He also Dennis imprisonment. life sentence to Cir.2004), ... is not question make “The wheth penalty would the death said substantially affects people he er mental illness help feel better and the him disease, decision, a mental pleading guilty but whether He said hurt. spared substantially the the who would be disorder or defect affects protect others guilty op by pleading appreciate and that his prisoner’s capacity of a trial ordeal family from further choice.” Id. protect he would his and make a rational tions original) There is literal publicity. (Emphasis contemporaneous evidence ly no M.D., a Tommy Bolger, physician, The capacity to understand Deere lacked psychiatrist the California former staff and to make a rational options decision elsewhere, opined system and prison did. responsibility for what he accept illness. not suffer from mental did trial supports All evidence Jones, diag- However, like plea findings guilty court’s that Deere’s personality and Deere with severe nosed knowing, intelligent competent. Bolger con- abuse disorders. substance findings presumed are correct Those charges that Deere understood cluded con rebutted clear and have not been cooperat- capable him and was against Raines, Evans v. vincing See evidence. ing with counsel he wanted to. (9th Cir.1986). 884, 887 800 F.2d hours lawyer spent countless been after Deere’s case had change of leading up to his client by the Supreme remanded California Deere was lawyer attested that plea. presentation mitigating Court for of his deci- of the ramifications fully aware Deere once re-sentencing, evidence and competent plead legally and was sion Superior Court again before appeared collo- change-of-plea guilty. Following time, nei- Metheny. At that lucid, Judge Fred indisputably quy which lawyer lawyer, nor ther Deere’s own knowledge of and evidenced engaged, specially appointed ly as Mend-of-the-court be faulted failing to act upon gossip behalf, present mitigation on Deere’s passed was never along to him. prosecutor, any reviewing nor the nor Third, Supreme the California Court re- expressed any concern whatsoever viewed Metheny’s handling of the Judge Metheny’s compe about proceeding, toto, affirmed him in later, reviewing tence. Five found that was scrupulously fair and Judge Metheny’s transcript statements objective throughout the proceeding, and resentencing, at the 1986 the California carefully that he weighed and considered Supreme Court said this about the evidence. appellate This ruling dem- *4 record Metheny: “[T]he indicates that the First, things: onstrates two that Judge scrupulously trial court remained fair and Metheny impaired 1986; was not objective throughout the proceedings. It second, if the supreme state court had no weighed and carefully considered both the question Judge cause to Metheny’s mental aggravating mitigating evidence after status, neither did Deere’s counsel. Deere, they presented.” were People v. 705, 424, Cal.3d Cal.Rptr. P.2d Background I. (1991) (in bank). 1181, 1195 Califor The Cindy Gleason was Deere’s former girl- Supreme nia every Court affirmed one of friend and baby the mother of his daugh- Judge Metheny’s this, rulings. Despite ter. Don was Cindy’s Davis married to Deere now discovery seeks eviden- Kathy. sister Kathy and Don had two tiary hearing lawyer on his claim that his daughters, Michelle and Melissa. failing was ineffective 1986 for to move disqualify Judge Metheny due to the Cindy up broke with Deere around Feb- judge’s supposed senility. 26, ruary 1982. Some time on or after 1, March Deere took a .22 caliber single- today
We that hold the district court did action Ithaca rifle from the home of an not abuse its discretion in Deere’s denying acquaintance, Marc Nelson. request discovery hearing for and a on the First, issue. Deere came with no forward 2,1982, On March Kathy Deere told judge admissible evidence that was he was mad Don implying for that Ka- mentally impaired in 1986. The most thy was involved with Deere. Deere also Deere offered were anecdotes recounted Kathy told that he going was to do some- grand lawyers, total of three anec- thing that cause her to hate him. hearsay, dotes that are either that do But Deere wouldn’t be around for her to not light Judge Metheny’s shed mental Norton, hate. Bruce a friend Kathy’s, of status in or that reveal no more than present was during the conversation. Af- eccentricity as distinguished from demen- left, Kathy Norton, ter Deere told “I’m Tellingly, although tia. habeas Deere’s town, gonna got something leave but I’ve counsel had access to a stable mental only to do first.” Deere added that he health professionals, counsel furnished thought couple he’d get pris- nothing any mental health —zero—from on if he a couple people. killed Norton professional opining any of the stories appear testified Deere did not to be Judge Metheny about might be indicative intoxicated at the time. impairment or even that later, 4, 1982, days Two on March Deere Second, warrant further investigation. was seen around town either drunk or ain absolutely nothing there is to show that telephoned Cindy daze. Deere any of the around supposed incidents involving said, lawyers p.m. other 3:20 “I’m going were ever to be communicated lawyer. Deere’s lawyer hard- responsible today.” can what I do for to Soledad year, he transferred trailer, the same Davis broke to the walked then Prison, as a staff where he served Davis Davis to return. State and waited say through p.m. 4:00 from 1977 Cindy psychiatrist around called Soledad, Cindy in his trailer. Dr. Bol- resigned been from someone When and let her her back opened Davis to call a medi- asked ger Blythe, moved Davis nev- missing. anything was know and consulted practice cal/psychiatric evening Cindy back. Later er called and San Bernar- for Riverside psychiatrist of Davis and bodies Kathy found the in 1987.1 Bolger Dr. died dino Counties. trailer. in the Davis children two day Deere On March a .22 caliber rifle. shot with They had been arrested, Deere at Bolger interviewed 9, 1982, days after five March On an hour. a little over police station for camping murders, found police Bolger wrote that Deere day, next and arrested him. Blythe, near desert competеnt. Deere cooperative and officers, going “I to call told the that he was aware that acknowledged I would I was afraid be you out could be used he told Dr. anything *5 campsite, police found At Deere’s shot.” him court. against (later caliber rifle confirmed Nelson’s .22 history complete a Bolger Dr. obtained bullets, .22 caliber weapon), murder as the the interview. during from Cindy of taken glass pictures a and some being that he was held for Bolger told Dr. and letters written from the Davis trailer he of He said had three counts murder. family. Davis’s pickup his by Deere to Cindy, kill his common-law- threatened to adjacent in a ditch truck was found Cindy wife, Deere and had if she left him. Deere was where found. Cindy had another child. a six-month-old immediately re- Police officers Riverside relationship. previous a daughter from M.D., Tommy Bolger, that quested Don, Kathy, knew stated that he for Riverside Coun- consulting psychiatrist “well” because Michelle Melissa jail. Bolger Dr. ty, at the interview Deere Cindy’s Deere, daughter and Cindy, their Osteopathy of de- a had obtained Doctor with the daughter lived Davis other However, he was allowed in 1957. gree Kathy family Cindy until left Deere. was designation pursuant to use the “M.D.” claimed that he divorcing Don. Deere Act of 1962. Cal. Reunification California girls Michelle. loved Melissa and (1962); Cal. § & Prof.Code 2396 Bus. Bus. played who had with “real were sweeties” (2012). Bolger Dr. § 2275 & Prof.Code stated, “I don’t know his children. Deere doc- surgeon a and medical had worked as hope I that if I am convict- why I did this. at Patton psychiatry trained in tor and get gas chamber.” ed that will through Hospital State from Bolger he had been Deere also told Dr. In he was hired as Chief Medical classes, poorly did education special of Quentin. September In Officer San Bolger, spanned in a career that Bolger in this case he 1. In testified psychiatry misrepresented credentials in years, internal ever his a was board-certified résumé, a testimony any he testified in different medicine. In job application, or any March, 2007, not board-certified case that he was other occasion. course, speciality. possible, that Bol- It is died, stipulated Bolger parties after possi- ger intentionally in 1986. It is also lied board-certified, the ex- Bolger never transcription or error ble that there was deliberate planation for his 1986 statement —a explanation statement is some other mys- something else^—remains a or falsehood puzzling easily about this so refuted. What tery. any in the is the absence of evidence record history pain school and had self-mutilation sadness or to” family. He “had drug and alcohol and abuse. Deere stated done enough, and he going wasn’t to do things cut when he himself broke Second, anymore.” he wanted to show got “enraged.” he that he dignity morality. Third, Deere wanted take responsibility for his Bolger opined that Deere “answers actions because he had committed the appropriately.” He is “oriented crimes and believed in capital punishment. date,” place, time and and is not delusion- Bolger al. Dr. wrote that Deere is not Mr. testify Jones would later that at the ill, mentally personality but has “a severe outset of the representation he would not problem.” He “does understand the na- consent to Deere pleading guilty. But charges against ture and the him” and time,” “over that, Mr. Jones concluded al- certainly “was capable forming the in- though well-educated, Deere was not carrying tent and then out the action.” “very intelligent” “very articu- Finally, opined that Deere “is late.” As a result of their numerous con- capable cooperating with counsel in his versations, Mr. Jones had “absolutely no defense, if he feels it is to advantage.” doubt that Deere competent.” Mr. Dr. Bolger diagnosed “Dependent Jones stated: features, personality type, explosive discussions with [Deere’s] me were al- Alcohol drugs as factor” and an “Anti- ways vivid and intelligent, no indication personality type, social with borderline that he did not know what we were features, psychotic.” doing, with the consequences of what we *6 day Bolger provided
On the same Dr. were doing. He knew exactly what he report police, his to Glenn S. Jones was charged was with and what proceed- Jones, appointed to defend Deere. Mr. a ings were all just about. There were no Defender, County Riverside Public had hallmarks incompetency there at all. been admitted to the bar 1972. Before Mr. Jones also testified in 1998 that there Deere, representing Mr. Jones prac- had “was never a question in [his] mind” that ticed for 10 aas criminal defense Deere was able to assist with his defense: trial attorney, eight years with as an assis- He ability. had the It very was a rea- public tant defender. Mr. Jones had rep- soned decision he made as to what he resented in “a couple defendants of dozen” do, wanted to which why was the reason cases, murder prior with one penalty death way he acted the he did or said what he case. said or did what he did. Not because he initially pled Deere not guilty. Mr. was acting any under halluci- delusion or Jones testified in 1998 that he had re- fantasy any nation or or psychi- kind of peatedly discussed the case with Deere know, atric psychological, you or reason “dozens of times” for at a hours time. for his behavior. through From 1982 Deere consis- Mr. Jones that cooperated added Deere tently told Mr. that Jones he intended to by listening his defense to and dis- plead guilty, a jury request waive trial and cussing suggestions, Mr. Jones’s signing penalty. the death Mr. Jones said that releases, refusing never to talk to Mr. consistently gave Deere three reasons for Jones, interrupting and not or discussions wanting to plead guilty, even if it meant walking out. penalty. First, the death Deere was “con- friends, Mr. Jones also that family cerned about stated he “found no relationships.” indication that any- plead Deere “did not want desire to [Deere’s] thing any way done what would in bring guilty and obtain the penalty death degrees of decide the judge or wish with a death
anything to do if the circumstances special behind impulse murder any suicidal there Rather, plead guilty.” accepted. Methe- to were guilty plea desire [Deere’s] strong a sense of facing “out of guilty he could be pled Deere ny advised Deere the death that he deserved he had justice pled guilty. if he penalty death prin- a moral statement it was penalty; that he discussed judge assured clear” to “It was accepted.” ciple prosecutor Mr. Jones. The his case with every “understood that Deere Mr. Jones the court en- before suggested then add- Mr. Jones proceeding.” aspect of plea, appoint it should change tertain hundreds, thousands ed, dealt with “I have compe- to psychiatrist examine any defendants, did not in and [Deere] plea sure that the just to make tence being me as impress form way, shape, just.” prosecutor recom- “proper incompetent.” “previously Dr. who had Bolger, mended Mr. eventually persuaded Jones agreed Mr. Jones examined” Deere. compe- guilty, was plead he wanted Judge Methe- Bolger’s appointment. Dr. prepared guilty and plead tent to Bolger Dr. to examine ny appointed then actions. for his responsibility take Deere. that he want- testified in 1998 Mr. Jones and tested Deere Bolger Dr. interviewed ca- insanity and diminished pursue ed to pro- hour and a half and for an additional in 1982. health defenses He pacity mental report dated June vided his second written mental health ex- funding for obtained found Deere “ex- Bolger Dr. psy- at least one intended hire perts, and alert.” Deere’s tremely cooperative hired and he chologist psychiatrist de- being “stable ... neither mood was (no Jones, Ph.D. re- William psychologist, unduly elated.” Deere denied nor pressed Jones), Deere for to evaluate to Mr. lation Dr. delusions hallucinations. re- defenses. Mr. Jones health organieity.” “no evidence of found general perform quested *7 that Deere no Bolger opined also showed Deere, not to of examination mental thinking or abnormal psychosis evidence of competency. His reason him for assess mentally ill. and was not first, he did two-fold: not for this was second, that competency; opined it Deere further doubt separate experts to practice his use He carry goal.” to his ideas to was “able and mental competency questions for “im- charges” was “well aware defenses. health pleading guilty.” Deere plications of and and was “aware been “well advised” discus- and Deere had several Mr. Jones the meaning the able to understand health defens- possible mental about sions trial.” He jury to a rights waiver of the But, consistently refused to “do Deere es. attorney to assist his adequately inconsistent with his ultimate was “able anything choice,” accept presentation for what responsibility to and the preparation the Mr. Deere convinced Jones a Finally, had done. Deere was he case.” aware any kind of part But, “he would have no sentence. he of a death probability defense.” the would knew that decide also having motivated to Deere was sentence. 18, 1982, moved to Deere On June ... possible a trial as since “as short Judge pleas Fred change guilty. guilty or pleading that either indicate[d] Deere’s case. Be- Metheny presided over probability in all result guilty would specify did not the Information cause murder, decision.” agreed the same parties degrees of At the Dr. Bolger same time was exam- the evidence have.” When asked Deere, ining pursuing were, Mr. Jones was charges what the responded, Deere separate “[tjhree mental health defense examina- counts of murder.” Methe- because, guilty tion Dr. Jones even if a ny Deere, then asked “what your under- accepted, were there would still plea be standing of the nature of charge?” degree trial to determine the of murder. Deere conferred Mr. with Jones and re- that, Mr. Jones testified after sponded, killings with “[i]ntentional mal- Deere, hours of discussion with Deere ice.” In response Metheny’s agreed meet with Dr. Jones. On June question of what Deere had done to be 23, 1982, Dr. Jones examined and tested charged murder, Deere stated: half one and a hours. 4th, 1982, On March at about 4:00 p.m. I later, 25, 1982, days Two on June shot, with intent to kill kill and did Don advised the court that he intended to plead Davis, Melissa, Davis, mean Michelle —I guilty to the three cоunts of murder. rifle, Melissa Davis. I used .22 caliber Judge Metheny appear- found that Deere’s shootings and the place took ance, actions, comments and conduct in Blythe, Davis’ home near Riverside court had established that Deere under- County, California. At the time of the charges “ready, willing stood the and was shootings, none of the three victims did to cooperate” and able with defense coun- anything provoke in any way. me Bolger’s report, sel. Dr. Judge Metheny When asked what sentence he facing, stated, judge’s had confirmed the observa- responded, prison.” “death or life in tions that competent. Deere was Mr. In response to question regarding agreed competent, Deere was using rifle, what sentence he faced for stating: Deere conferred with respond- counsel and I have seen no evidence in Mr. Deere ed, life, “anything know, you less than suggest any way that he’s in any would add two other sen- incompetent. I’ve reviewed with him tence.” Finally, Judge Metheny asked the report Bolger, of Dr. and I’d be Deere, you “who do believe will decide willing to stipulate at this time the Court your what sentence will be?” Deere re- may accept the and base rul- report its sponded, judge or jury.” “[t]he ings on report. judge When the asked Mr. Jones about prosecutor with Mr. “concur[ed] possibility insanity of an defense or Jones’ evaluation of Mr. Deere’s mental *8 defense, respond- mental states Mr. Jones stipulated state” and also that the court ed: Bolger’s report could consider Dr. honor, spent Your I have a great deal of charges, Deere was aware of the under- investigating possi- effort and time the stood his competent. waiver and was bility insanity of defense or some other The change plea of transcript estab- mentally my related defense. It is firm lucid, lishes that Deere was clearly under- defense; conclusion that there is no such stood the proceedings and consulted with were, and even if there Mr. Deere has counsel when he wanted to. Methe- he, advised me under no circum- ny extensively questioned Deere about the stances, plea will enter a guilty of rights waiving, Deere was and Deere re- insanity. reason of sponded appropriately. When asked to I explain understanding support any his find no evidence to de- right the to a jury trial, said, you fense that people, charges “twelve would reduce these to know, not, you’re guilty find out if manslaughter. case, he feels that and done this plea in the be concurred then
Mr. Jones what results taking and guilty pleading that Deere was belief and reaffirmed happens happens, justice; whatever plea: the to enter has competent jury trial. result of ... He knows the case, and Mr. Deere particular to this As if the happen would case He knows what discussing literally hours spent I have trial, he feels that the jury and case, went to literally ar- case, debating of a trial charade I of a circus or appropriate. expense about what guing him or for the communi- right a man’s for is not rather obvious think it’s rare. capital ty- case is in a pleading guilty case, I this didn’t began I And when open three guilty to pled Deere then my enter even didn’t even consider—it using to admitted of murder2 and counts consent to such mind that would Metheny found the gun. slowly has plea. And Mr. knowing, voluntary and were guilty pleas this is what he me that surely persuaded basis. by a factual supported do, competent to do he’s wishes change plea hear- days Five after the the full it, to take he’s prepared and with Dr. Jones for again met ing, Deere I can actions. And for his responsibility examination Mr. continuation basis, my experi- absolutely no find proceedings yet requested aid of Jones investigation of this ence, or the training degree of mur- to determine come not case, suggest he should which met with Dr. Jones penalty. der and he exactly what to do permitted be about the same Deere for and tested do, consequences knowing wants Dr. had met of time that length his act. Dr. Jones’s 1982 and tested Deere. court that Deere advised the Mr. Jones diagnoses findings, conclusions and were for three reasons given Mr. Jones Bolger’s. Dr. amazingly similar to First, Deere wanted pleading guilty. that “Deere was ori- opined his actions and responsibility take time, place, person” as to ented as a dignity amount small “maintain[ ] him.” charges against He “aware of the explained, “[h]e Mr. Jones being.” human cooperative.” “generally happened. change what knows that doesn’t in his com- thought “no obvious disorders change agony it He knows doesn’t memory “generally His munication.” survivors, but caused the the hurt that he’s hallucinations and adequate.” He denied that he can do to show it’s the one thing “within Deere’s tests were nor- delusions. Second, Deere responsibility.” take can visual mo- mal and did indicate limits” family the vic- protect
wanted to dysfunction. Dr. Jones neurological tor or publicized” tri- family “highly tims’ from cut himself to dis- opined that Deere also Third, Deere knew agony.” al and “more sympathy anger, get attention charge capital guilty, favored he would be found others. Jones con- manipulate and to willing justice. and was face punishment very was “a that the self-mutilation cluded explained: Mr. Jones *9 attention-getting device.” powerful debated the theo- Deere I have Mr. cooperated that he told Jones Deere He quite a bit. ry capital punishment him “told defense counsel because I capital punishment, in favor of eval- cooperation psychological lack this is an He case am not. thinks jeopardize his conviction.” might uation punishment, capital appropriate case and to guilty to “wished be found justice should Deere feels that simply and he proceeding. subsequent in a judge to decide for the degrees murder were left 2. The accept punishment you do, whatever the court what want to can’t see a impose.” Deere also told Dr. would Jones reason at this point doing something “willing accept” that he was the death different.”
penalty prefer and “indeed would it to life that, Mr. Jones testified though even imprisonment.” Deere stated that a death Deere didn’t like his position regarding better, sentence would make him “help feel murder, degree second agreed to let hurt,” people protect he has others Mr. Jones argue that the crimes were trial, participating protect from his fam- second, first, degree murder. ily keep the matter of the newspa- out The parties stipulated Judge Meth- pers. Pleading guilty, opined, Dr. Jones eny could preliminary consider the hearing “a very further extension of [Deere’s] testimony to determine the degrees of strong masochistic tendencies.” Again, murder. Deere was alert and en- diagnosed adjust-
Dr. Jones with At gaged. prosecutor’s request, Judge mood; depressed Metheny again ment disorder with advised Deere that a first disorder, degree mixed murder including finding require substance abuse alcohol, stimulants, penalty phase marijuana, abuse of and could result in a death responded sentence. Deere amphetamines; personality appropriately and borderline judge’s questions to the and waived his aspects. disorder anti-social In other words, rights. Bolger basically Dr. Jones and Dr. came to the same conclusions. Mr. Jones Judge Metheny When expressed con- testify
would later that none of the re- cern that the preliminary hearing testimo- ports, including reports from Dr. Bol- ny might not establish Deere’s state of ger, private Dr. Jones and the two investi- crimes, mind at the time of the Mr. Jones gators hired, gave Mr. Jones Mr. responded that given specific Deere had any information that would have instructions not regard- to offer evidence caused him to question compe- ing degrees of murder and asked to tence. continue the discussion chambers. chambers, Judge Metheny unsuccessfully 23, 1982, July parties
On returned to tried to convince Deere to allow Judge Metheny court for to determine the expert testimony. health Judge Metheny degrees of the three murders. Mr. Jones explained to Deere that state of mind evi- testified 1998 that he and Deere had dence would help establish first or second vigorously discussed the issue. Mr. Jones degree suggested murder. He that Deere go wanted to for a degree second murder Dr. Bolger testify. allow Deere re- conversations, finding. Like all their it sponded “agree upon that he didn’t all the “give and take:” judge doctors.” The Deere that advised wanted, always He knew what he and he testify, he would not have but asked going get get. what he wanted to agree Deere to testify. to let the doctors And we very civilly dealt with each other vigorous However, on all the points, so it wasn’t hearing, the next Mr. Jones simply him being absolutely uncoopera- advised that he would not be point tive with me at some offering Bolger’s testimony or not. because discussions, were always objected There and Deere having private family eventually when something we would do matters discussed in court. con- way, Ronnie, it “Okay, was because: agreed firmed that he with defense coun- this, obviously prosecutor we’ve discussed and its sel.3 The present declined to Honor, *10 degree. 3. MR. JONES: Your at this time we I've the matter with Mr. discussed any will not offer evidence on the issue of the refused to waive prosecutor But the that he reaffirmed and evidence additional mak- indicated his intention competent, right. Deere Deere was state’s that believed acting appropri- and to explained Mr. ing rational decisions himself. to absent agreed with the Metheny Judge ately. the court: assessment, again found prosecutor’s know, a death verdict. You he wants and rational. competent Deere was that And again. and over He said that over degree argued impede for first he may that that prosecutor any procedure The of, that the evidence showed any part because to have just murder want doesn’t days and murder for the planned Deere jury penalty trial on the he sees a shot the Deere plan. carried out his then resulting in a verdict possibly phase as wit- were argued, because girls, he that’s penalty. a death So other than second de- argued Mr. Jones nesses. rational, very It’s thinking. line of his that Deere murder, citing evidence gree basis for any possible I see don’t and intoxi- turmoil suffering emotional competent. His concluding that he’s not that addition, argued Mr. Jones cated. stem from cooperation doesn’t lack of trailer, and at the did not live the children disability. It stems from his any mental the could know way no Deere there decision about what very logical that after- with their father girls would be a result. wants as Thus, to them premeditation as noon. agreed to Ultimately, parties waive lacking. found judge again penalty jury. the kill- Metheny then that Judge found competent: degree children was ing of the two second you’re competent I think make Don Davis murder, killing but that listened to that decision decision. I’ve In a nuanced degree murder. was first now, I of times and haven’t for a number that Deere judge ruling, reasoned you have the slightest doubt that to kill the clearly and intended planned make that deci- ability right father, anticipated not but had sion. Because the present. be children would hearing, Deere penalty At the continued could be regarding the children evidence his that he wanted waive reaffirmed as first reasonably interpreted either penalty phase at the jury to a trial right murder, Metheny degree Judge second waiving. rights he was and understood the degree guilty second found prosecutor con- After Mr. Jones and the of the children. murder waiver, Metheny Judge curred in the that the mul- Metheny also found knowing waiver to be found Deere’s allegation was true: murder tiple voluntary. de- first and second multiple committed made Deere finding murders. This gree not Mr. Jones did request, At Deere’s eligible penalty. for the death Instead, present mitigation evidence. Metheny parties stipulated at- hearing, Deere penalty phase
At the already the evidence admit- jury trial. could consider right tempted to waive Deere, thing, and in- and that sort of he’s specific sisters and it is his instructions Bolger we are not to call Dr. Bolger. me reasons are structed we not call Dr. His witness; we Bolger and so at this time would personal. He knows that Dr. any offer evidence. revealing conversations he’s had be him, you want take it that’s what private. THE are And Dr. COURT: which he feels Deere; matters, do, right? discussing family Mr. will be THE Yes. brothers and DEFENDANT: childhood and Ronnie's
1135 degree hearing. at of murder appointed ted Different counsel for Deere Metheny made sure by that Deere con- supreme the state court for the auto waiving curred and understood that he was matic direct appeal argued that the trial right to confront witnesses and found court should have sponte conducted a sua knowing Deere’s waiver to be and volun- competency hearing because preliminary tary. hearing testimony that “shortly showed before the murders” Kathy Deere asked expressed
Deere
remorse for the crimes
him,
Davis to kill
had exhibited suicidal
and said that he deserved to die. Mr.
tendencies and had cut himself with a ra
Jones then commented that
ac-
zor
past
blade
frequently
“was
But,
“unprecedented.”
tions were
intoxicated.” Deere claimed that his
feelings
had communicated his
“steadfastly
guilty plea
jury
and waiver of a
trial
practically
day.”
since
the first
Deere had
Id.,
amounted to a suicide
“slowly
surely swayed”
attempt.
Mr.
222
Jones to
13,
permit
Cal.Rptr.
him
710 P.2d at
plead guilty,
spe-
admit the
927. The Califor
circumstances,
nia
jury
Supreme
rejected
claim,
cial
trials for
waive
Court
guilt
penalty phases
holding
and decline to
that the record did not show “sub
present mitigating evidence. Mr. Jones
stantial evidence” of
incompetence.
“argued quite vociferously Id.,
and Deere
13,
222 Cal.Rptr.
realizes what he has done and ‘This Supreme California Court also held only position you is the I can take to show that neither the plead guilty decision to ” am still a man and not an animal.’ jury nor the of a waiver trial established Judge Metheny then sentenced Deere to incompetence, reasoning that gave 15 to life for the murder of each of pleading guilty rational reasons for the children and to death for the first Id., 13, avoiding jury Cal.Rptr. trial. 222 degree of their murder father. 710 P.2d at great 927-28. He “felt re prepared morse for his offenses 31, 1985,
On December the California consequences judgment suffer the of a Supreme affirmed Court the convictions Id., 13, Cal.Rptr. death.” 710 P.2d special finding, circumstance but re People v. long versed He also didn’t want a drawn-out the death sentence. Deere, jury 41 Cal.3d trial. He didn’t want “to waste his Cal.Rptr. (1985). ‘yak’ P.2d trial listening time counsel about *12 1136 any doubt about cussed. I’ve never opposed to jurors were prospective
which ability to under- intelligence his not.” and which were penalty death think made his decision stand. I he’s at 928. 710 P.2d Id., Cal.Rptr. facts we’ve discussed fairly based on the Supreme Court the California Although morning. this sentences, and life affirmed the convictions add- hearing, Mr. Jones At the continued sentence, holding the death it reversed ed: mistaken, honest, belief that counsel’s with Mr. in detail evi I have discussed mitigating present not
that he should made them and he’s pres wish to Deere his desires of his client’s because dence change to me. He does very nevertheless denied Deere clear no evidence ent Id., previous- any matter. He position of counsel. his assistance effective to jury P.2d at 931-34. The case and continues ly waived trial Cal.Rptr. phase to penalty nothing for a new He wants jury waive trial. was remanded trial. And I believe jury trial. with the do way I’ve handled with the he’s satisfied Metheny convened the certainly noth- He’s indicated the case. lu- Again, Deere was phase trial. penalty any me that dissatisfied ing to he’s proceedings. cid and understood my perform- way, shape, or form jury trial consistently his reaffirmed ance. mitigating to evi- opposition waiver directly addressed Judge Metheny then Metheny found Deere com- dence.4 to makе sure that Deere understood knowing: waiver petent and the jury a right to and continued waive Very well.... THE COURT: trial: that Mr. find at this time court does originally THE You know COURT: the last time —com-
Deere —as did great through we went this before what we’ve dis- pletely understands assume, Deere, ... will be limited [The trial] THE COURT: I Mr. 4. THE COURT: you willing mitigating aggravating to have Mr. circum- are and want to the you— represent You know what that means. I'm stances. Yes. THE DEFENDANT: sure of that. again? here on out THE COURT:—from DEFENDANT: Yes. THE Yes. THE DEFENDANT: you right have a THE COURT: And —and you do understand THE COURT: what And Jones, attorney, get your will this set Mr. you Supreme ruling about Court's told right put up you on the will have — that we have to continue with to the effect testify you who individuals will trial? mitigating I will be circumstances. Yes, I have read THE DEFENDANT: particu- judge and the of fact on this finder one, report. too. I read it I have all. question whether the lar and issue as to really I don’t believe we’re THE COURT: outweigh ag- mitigating circumstances gentle- ready go today; you, to trial do gravating circumstances. men? position puts us in where the court That No, correct, Hon- JONES: that’s Your MR. responsibility to determine whether has the I’ve with Mr. Deere or ... desires, discussed imprison- or not the would be life sentence jury terms whether he wants a it would be the death ment or whether clearly He advised me trial or a court trial. possibility penalty, that there or there’s jury previous want a trial. His he does not could be some other conclusion. jury his desire. waiver of is still DEFENDANT: Yes. THE course, you THE COURT: Of understand youDo understand that? THE COURT: trial, jury you you right have a have the THE DEFENDANT: Yes. wish to have it. any you questions? THE COURT: Do have THE DEFENDANT: Yes. No. THE DEFENDANT: * * * you jury to the right exactly detail that knows what he’s doing. He *13 jury you right and had a have the knows what he did to be convicted of you guilty if of first decide were found these crimes and he knows—or he be- jury Then the degree justice murder. would lieves his heart that should be according aggravating to the and decide done. mitigating circumstances. You did repeated Mr. Jones that Deere did not you that. The time were in
waive last want a trial or evidence: here, just ago you a few weeks I asked He does not want any present- evidence I again. don’t mean to be facetious ed on his behalf because in his heart just about this. I want to have this private that is his bring life and to fairly. I can I you, done And assure and evidence into court would violate his re- this, want the record to reflect that I lationships everybody he holds dear up my yet haven’t made mind all. respects him, and in the world. And to going
I’m to have to listen to the relationships those important are more I you going evidence. can assure I’m else, than anything including his life. otherwise, be fair. If I felt I Although the judge threatened Mr. go any further with this case. Jones with if contempt present he didn’t now, Deere, I’m asking you right Mr. mitigation, Mr. Jones reaffirmed that con- you pick jury if want us to go back tempt would not change his mind. Mr. to the aggravating mitigating cir- again explained Jones that Deere had cumstances? “slowly surely but convinced” him not to
THE DEFENDANT: No. I’m satis- present evidence. He believed Deere had the itway right fied is now. I don’t consciously, “made his decisions temper- jury. awant ately, and not in passion, the heat of based on his true and sincere and honest prosecution only offered aggra- the beliefs about what right for him.” After vation evidence presented the first trial. again Mr. mitigat- Jones refused to admit the Despite fact that the case had been evidence, ing Judge Metheny found the remanded due to ineffective assistance of Riverside Public Defender’s Office and Mr. for Mr. counsel Jones’s failure to set forth in contempt and reinstated the evidence, mitigating again Mr. Jones re- penalty. death fused to put any mitigation. Mr. Jones said, during I indicated “[a]s the first trial later, Less than a month Judge Metheny day from one Ronnie Deere has told me stayed that appointed order and an attor- exactly how he wants this case to han- be Landau, ney, Jonathan aas friend of the changed dled. He’s never once.” Mr. court, and an investigator, Welby, Richard Jones also re-affirmed that Deere was investigate present mitigating evi- competent and rational: addition, to the dence court. the Cali-
He has convinced me that
Supreme
he knows
fornia
Court struck
“stayed”
doing.
crazy.
what he’s
He’s not
He’s
“having
death sentence as
been entered
not incompetent. He’s not insane.
through
He
inadvertence.”5 After the state
Judgment
private investigator,
investigate
5. A "Commitment
mitigat-
of Death” was
order,
April
ing
Citing May
filed
the Clerk of Court on
evidence.
14, 1986,
May
Judge Metheny stayed
subsequently
On
Supreme
California
Court
con-
mitigating
April
judgment
sentence to obtain
evidence
cluded that
inadvertence,
penalty hearing
"through
prematurely
scheduled a
for June
filed.”
order,
May
judgment
1986. In a
1986 minute
It ordered the
stricken
returned
Metheny appointed
Welby,
Richard
a licensed
to the trial
case
court.
I
THE DEFENDANT:
understand
penalty
the death
vacated
supreme
really
think
saying.
the con-
don’t
Metheny vacated
what
order, Judge
he’s
go-
life.
prison
about
He’s
tempt order.
knows much
I’m
to state
by hearsay.
going
ing
Mr.
hearing, now with
continued
At the
I’m
sure that
something
pretty
amicus,
reaf-
present
Landau
check
to check it out
can
they want
Mr. Landau dis-
jury waiver.
firmed
guards.
it out with the
evidence from
mitigation
cussed
*14
then
transcripts, and
for the
hearing
prison
your
for all
life
preliminary
Being
witnesses, includ-
mitigation
six
presented
think I with-
your life—don’t
do
rest of
Bolger opined
Bolger.
ing Dr.
I
the streets.
drink
the luxuries on
out
capacity
from diminished
Deere suffered
every Saturday
Friday night,
every
he was
the murders
time of
because
at the
everyday.
my weed
night.
I smoke
drugs,
or
influence of alcohol
under the
the rest
being
prison
me how
You tell
tes-
traumatized.
stressed and
I see
my
really
punishment.
life is
a
a hard time
that, although Deere had
tified
every
get
If I
mar-
my
lady
old
week.
remorse,
“extremely
he was
his
expressing
he
I
visits. So
get
ried then
contact
chil-
the death of the two
over
remorseful
is.
really
punishment
know what
doesn’t
influence that
this whole
and “the
dren”
a
I
yard
days
seven
goI
to
week.
daughter.” Dr.
upon
have
his
thing would
go
I’ll
got hangover,
if I
a
then
sit there
that Deere could be
Bolger also believed
out.
society spared
to himself
benefit
say
he
been
How can
never
—he’s
in-
imprisoned for life
penalty
death
talk-
know what he’s
there. He doesn’t
stead.
How does that
soci-
ing about.
benefit
Welby testified about his
Investigator
by
punishable
I
a crime
ety?
committed
had found
adding
he
investigation,
eye
an
for
looking
I’m not
at as
death.
mother and
cared about his
that Deere
the law.
law
eye.
an
I didn’t write
birthday
a
or holi-
forgot
never
father and
punishable
a crime
stated I committed
Deere had
day.
neighbor
A
testified that
for the rest
by
sitting
death. Not
there
sister
yard
with
work. Deere’s
helped her
taxpayers
which costs
a lot of
my
life
upset at the time
that Deere was
testified
money.
deteriorat-
murders because of his
I
sitting
doing
I’m
in there
what
did
Cindy.
with
Deere loved
ing relationship
everyday.
I smoke weed
You
out here.
protective
had been a
broth-
daughter,
They
any guards there.
will
can ask
violent. Deere’s
never been
er аnd had
out
is in
verify that. Whatever is
there
that she loved her son
mother testified
my
I
money
make
off
here.
I
artwork.
Finally,
him live.
Mr. Landau
wanted
my art-
make
of dollars off
thousands
art to show
piece
of Deere’s
introduced
pay
a bit to
It doesn’t hurt me
work.
accomplish
prison.
he could
work
drinking.
I live
money
drugs
life in
argued
Mr. Landau
After
comfortable.
punishment
more
than
prison would be
punishment,
think
then
If
that’s
sentence,
respond.
Deere asked
death
your
ahead and make
you go
decision
he
This is what
said:
I
a life
that.
from
can live
like
that.
to make a
DEFENDANT:
I’d like
THE
my
The rest of
life.
my
saying
about
due to
statement
Metheny responded
that would
prison
for life. That
being
When
you know.
punishment,
based upon
be
had to “make
decision
evidence,”
added:
you?
punishment
A
COURT:
THE
justice.
Kathy
I
I
has
appeared
believe
believe
record that defendant
be rational
intelligent.
justice.
I
look at
right
don’t
this as
I
think
eye
eye.
for an
don’t
two Id.
wrongs
right.
make a
I look at it as the
Supreme
The California
Court also af
punish-
I
a crime
law stated.
committed
sentence,
firmed the death
holding that
by
pun-
Judge Metheny “proceeded
able
death.
should have been
with a careful
analysis
and detailed
of the evidence rele
long
ago by
ished a
time
that law.
determination,
penalty
vant
to the
argued
Mr. Jones then
for a life sen-
specific reference to
statutory mitigat
aggrava-
tence because of the absence of
ing
aggravating
Id.,
factors.”
280 Cal.
ting circumstances and the stress Deere
Rptr.
808 P.2d at
listing
1190. After
at the time
was under
of the offenses.
all
of the evidence
considered
Judge Metheny weighed
mitigat-
all of the
Metheny,
the California Supreme Court
*15
held that “the record leaves
ing
aggravating
again
evidence and
no doubt that
sentencing
court’s
decision
guided
was
sentenced Deere to death.
by clear
proper
standards.” Id.
2, 1991,
May
Supreme
On
the California
petition
Deere filed his first
for writ of
Court affirmed the convictions and death
corpus
18,
habeas
in federal
May
court on
Deere,
424,
Cal.Rptr.
sentence.
280
808 1993,
petition
11,
and amended the
July
on
counsel,
appellate
P.2d at 1195. Different
1994, claiming, among
things,
other
that he
again appointed by
supreme
the state
incompetent
plead
to
guilty and that
appeal,
court for the automatic direct
ar Mr. Jones rendered ineffective assistance
gued that counsel was ineffective for fail of counsel in failing to establish his incom-
ing
investigate competence
light
to
of petence.
support
In
of
allegations,
these
the fact that Deere
Deere’s habeas
despondent,
had
counsel furnished a new
report from Dr.
report
Jones and the
Id.,
cut himself and was suicidal.
280 Cal.
Rosenthal, Ph.D., M.D.,
Frank
a psychia-
Rptr.
one to incompetence. any part of evidence guilty was pleading insistence there was no evi- Taylor of his concluded outgrowth and an compulsion require the trial court disturbances, irrational. before it was dence hearing. that Mr. Deere competence to me appear It not did knowing, volun- making a capable of newly- that the court held The district plead. decision to so tary, intelligent opinions, made mental health obtained ‡ $ ^ considered, trial, could years after be that Mr. sum, to me appeared it compel did opinions those on self-destruction so bent Deere was compe- finding of Deere’s rejection of the cooperating him from it disabled and Rosenthal Drs. Jones tence. Both way presentation with the meaningful they deemed opinions their on what based caused him to solicit of a defense decision not unreasonable to be Deere’s penalty. the death However, they agreed on a defense. put in the sense competent Woodford, 339 F.3d that Deere was v. I). (9th Cir.2003) (Deere pro- later the nature that he understood that Deere’s de fact that Deere desired deposition ceedings. at his testified crimes for his believed to be accept responsibility the doctors sire outcome reasoned, on the substantially irrational, based did not probably Judge Taylor “was *16 personality.” guilty. of his aspect incompetent plead self-destructive make Deere counsel, Dr. Rosenthal by habeas Hired Deere also petition, In his habeas in 1992 and examined on the scene came process denied due claimed that he was the convic- 10 after and tested Deere said, him- because, Judge Metheny was with Dr. Jones agreed Dr. Rosenthal tion. in mentally competent 1986. not self in “rationally” assist not that Deere could evidentiary discovery and an sought “compul- of his in 1982 because his defense The district court hearing point. on this penal- punished with the death sion to be claim, reasoning that the rec- this denied personality.6 ty” and self-destructive any evidence a whole did not show ord as incompetent, and Judge Metheny was Taylor) (Judge Gary The district Jones, not attorneys, not Mr. none of the petition, and did so habeas denied Deere’s Landau, who were prosecutor, not the Mr. evidentiary hearing. an holding without competence, position to assess the best court’s that the state trial The court held judge. Although to recuse the ever moved pre- competent was finding that Deere was an initial Metheny may have made by the supported correct and was sumed confronted with Mr. Jones’s misstep when that the attor- The court reasoned record. after the case mitigation prеsent refusal to judge trial experts health neys, mental exactly pur- been remanded for Bolger’s Dr. competent; all found Deere given any error was understandable pose, with the were consistent 1982 conclusions circumstances. nature of the Jones; the novel the crimes did report of Dr. incompetence.7 show mental be- This did not and Deere’s incompetence; not show sufficiency rejected a court also testify 7. The district did not about this 6. Dr. Rosenthal degree claim for the first of the evidence evidentiary hearing before report at the and related ineffective as- murder conviction it. Snyder he could not remember because Deere: of counsel claim because sistance that he could Rosenthal also testified great with the murder distance walked Mr. Deere question of whether “answer the wait for weapon, the house to broke into competent.” return, considered the Donald Davis pe- taken at face value The district court denied habeas and assumed to be entirety appealed. and Deere tition its true. case was before the first time this express opinion We no on how the
us,
evidentiary
we remanded it for
district court should weigh the evidence
question
compe-
of Deere’s
hearing on
hearing
after
it.
simply
We
hold that a
tency
plead guilty
prem-
and the claims
hearing
required.
remand to
We
wrote that:
ised on
issue. We
the district court with directions to hold
agree with Deere that he came
[W]e
hearing
on Deere’s claim that he was
at
forward with sufficient evidence
least
incompetent
plead guilty,
and to re-
was,
trigger
hearing
on whether he
petition
consider the
for writ of habeas
fact,
competent
pleaded
to have
corpus
premised
as to the claims
on that
guilty.
quarrel
do not
with the dis-
We
contention. This court will rule on the
that Dr.
trict court’s statement
Rosen-
other issues raised in petitioner’s appeal
thal’s “conclusions cannot be awarded
re-appealed.
and when the case is
much weight
given
as that
to Dr.
Deere,
stead, diagnosed have mild The state’s he would abuse, he depression. Ph.D., Alcohol severe did not meet with examine diagnose per- it difficult to opined, makes Deere, try. not he didn’t because Fa- According to Dr. sonality disorders. Judge Snyder or- parties stipulated, and vazza, fixed idea pathological Deere had “a dered, that Dr. Dietz would examine Deere must be killed.” This “fixed idea” that he cooper- refused to prison, at the but Deere cooperating with “prevented from [Deere] Dr. Dietz has been a board-certified ate. admitted, counsel.” Dr. Favazza psychiatrist specializes since 1979. He Diagnostic and Statistical though, that the psychiatry. agreed Dr. Dietz forensic IV, commonly known as the DSM Manual that Deere both Drs. Jones IV, recognize a mental illness of does personality anti-social had borderline and death wish. “pathological” “fixed” or personality dis- disorders. The borderline that he had been *18 Dr. Rosenthal testified supported by was diagnosis order Bolger’s qualifica- Dr. hired to evaluate himself; pattern of un- history cutting Based on Dr. Bol- procedures. tions and im- relationship; marked personal stable testimony a reports, his 1986 ger’s two frantic efforts to avoid real pulsivity; Dr. he deposition, Rosenthal testified abandonment; self-im- imagined unstable formally Bolger think Dr. didn’t abuse; self-mutilation; substance age; in trained or was otherwise well-trained in- instability inappropriate, emotional stated, Dr. Rosenthal psychiatry. “[Dr. personality anger. tense The anti-social board certified in Bolger] did claim be by similarly supported disorder was very transcripts which I find one of his disorder, personality record. Anti-social the letter in the files troubling because previously which would have labeled board, from provided that I was sociopath, psychotic is not a state. indicating Psychiatry Board of American that the 1982 and Dr. Dietz concluded never certified Bolger that Dr. been Jones, Therefore, Dr. defense did not 1986 observations of by that he board.”8 1, supra. See 8. Note case, any IV. In Dr. Dietz said that Dr. established DSM
counsel and in plead guilty competent symptoms support same the borderline opined: Specifically, Dr. Dietz personality diagnosed by disorder Drs. once, were not made Bolger. decisions [Deere’s] Jones and impulsive in an man- thinking, without with Dr. disagreed Dietz Jones’s They repeatedly were and consis- ner. opinion that Deere had “irrational of time where tently period made over compulsion” penalty. to seek the death points, alternative view he heard opined repeated Dr. Dietz that even sui- options, his had someone educated about attempts diagnosis do not warrant a cide him to persuade an effort to making the term in “compulsion” as is used action, and course of take different psychiatry. He said the evidence articu- during which Mr. Deere himself this case did not rise to the level of a acting lated his reasons for compulsion. personal his wishing. And articulated the basis for values and beliefs that were evidentiary hearing, the court After the impulsivity and his decision. That’s not “no found there was conclusive under- way per- that’s not even the borderline standing degree of the nature and decision when sonalities make their mental illness.” It then offered [Deere’s] they’re being symptomatic. opportunity provide Deere an additional evidence to establish that a mental illness stated that the “idea of execu- Dietz him peo- prevented assisting tion or death is undesirable” to most from his de- ple. But he added: Although parties agreed fense. Dietz, case, experts, two Drs. Stewart and that he
In Mr. Deere’s he indicated Deere, jointly again examine re- goals had other values and his Therefore, him eyes self-serving it to seek cooperate. made fused to and even desire that he be executed. ruled without the additional evidence. expressed desire Deere, And those included F.Supp.2d 1015-16. humanity, to demonstrate his his ex- granted The district court the habeas justice, expressed pressed sense petition grounds on the of ineffective assis- pain family to his spare desire to further counsel. The court held that Mr. tance of ex- family. and to his victims’ And his objective performed Jones had below the pressed accept responsibility desire to failing of reasonableness standard for his crimes. hearing request competency a full-blown ability If credit him with the we pled guilty. bеfore Deere Id. at 1029-30. espouse hold those values and to those Further, preju- it also held that Deere was goals living and to care more for there was a failing diced this because ways span in the brief until execu- those *19 that he would have probability reasonable itself, tion, than for the value of life then incompetent had Mr. Jones been found say we would have to his case issue at the time adequately developed the asserting goals is the service of at 1041. Nota- guilty plea. of Deere’s Id. him outweigh himself that to obvious basis, case on this bly, having decided the permitting function of self-destructive declined to “reach specifically the court oneself to executed. be incompetence.” actual Id. Deere’s claim of syn- Dr. Dietz said that “self-harm conclusion, the court coming In to this diagnosis is life-long drome” or death wish find- rejected Bolger’s opinions, 1982 by the Ameri- diagnosis recognized not a psychi- no formal ing Bolger in the that “Dr. Psychiatric can Association or listed 1144 whatsoever,9 The Antiterrorism and Effective Death misrepresented training
atric
certified,
that he was board
to the Court
Penalty
apply
Act does not
to this habeas
a prior
that he “had
and failed to disclose”
petition
original petition
because the
Deere’s father as his
relationship with
Williams,
filed in 1993.
1145
reports
The
of both
ings against him.12
findings that
repeated
courts’
The state
experts
who examined
plead guilty
mental health
competent
was
presumed
are
and 1986
establish that Deere under-
trial
1982
1982
stand
fairly supported
are
able to
proceedings
to be correct
the
and was
stood
Baal,
v.
495
by the record. Demosthenes
reports of
with counsel. The
cooperate
2223,
731, 735,
109 L.Ed.2d
110 S.Ct.
U.S.
are
for
Bolger
Drs.
and Jones
remarkable
(1990);
Fulford, 462 U.S.
Maggio v.
762
Both
similarity of their conclusions.
the
2261,
116-17, 103
794
111,
76 L.Ed.2d
S.Ct.
the
opined that Deere understood
doctors
Evans,
(1983)
curiam);
at
800 F.2d
(per
time, place
oriented to
proceedings, was
evidentiary hearing is re
formal
887. No
person
thought
and was free of
disor-
apply.
presumption
for
the
quired
with
experts diagnosed
Both
ders.
545-46,
Mata,
101
764.
S.Ct.
449 U.S.
personality
substance abuse and
disorders
come
with clear
Deere must
forward
aspects. Dr. Jones also
with antisocial
presump
the
evidence to rebut
convincing
adjustment disorder. No men-
diagnosed
550, 101
764.
Id. at
S.Ct.
tion.
has ever found Deere to
expert
tal health
case
aspect
this
of the
question
on
delusional,
Dr.
paranoid
psychotic.
be
Deere suffered
to this: whether
boils down
capable
that Deere
Bolger
opined
also
was
a competen-
the lack of
any prejudice from
him
working with counsel if it benefitted
assuming for the sake of
cy hearing, even
to do so.
have
that Mr. Jones should
argument
2010,
Dr.
Judge Snyder
In
found that
way,
Put another
was
moved for one?
years
Bolger, who had died 23
earlier
that he
probability
there
reasonable
himself,
longer
no
around to defend
incompetent
would have been found
competent psychiatrist.
not a
Never
Washington,
v.
guilty? Strickland
plead
at a
Bolger
psychiatry
trained in
mind
668, 694, 104 S.Ct.
80
466 U.S.
years,
for several
was the
hospital
state
Cullen,
(1984); Stanley v.
633
L.Ed.2d 674
prison
at a state
for sev-
psychiatrist
staff
Cir.2011).
(9th
We review
F.3d
private psychi-
and had a
eral
more
a de novo basis.
question
this
that. Even if the
practice
atric
after
Williams,
carefully
at 586. After
384 F.3d
is entitled
finding
court’s
about
record, including the district
reviewing the
deference,
of little moment since
it is
findings
accept
that we
court’s factual
in almost com-
Bolger’s
opinions
were
true,
hold that there is no reasonable
we
opin-
plete lockstep with
Jones’s
that Deere would have been
probability
entirely consistent with the obser-
ions and
plea.
to enter his
incompetent
found
And
judge
of the
and counsel.
vations
Furthermore,
state court’s find
the
to this:
come down
those observations
in fact
is
competent
that Deere was
ing
doing
and had
Deere knew what
rebut
correct and has
been
presumed
doing
it.
rational reasons
convincing evidence. Ev
by clear and
ted
in-
Second,
Metheny
personally
First,
ans,
of the
F.2d at 887.
all
on numerous occa-
teracted with Deere
Johnny
experts,
health
even
repeatedly
every hearing and
sions at
eome-latelies, agree that Deere had the
proceed-
that Deere understood
found
actually
ability to understand and
under
counsel
cooperate
could
object
proceed-
ings
the nature and
stood
Godinez,
at 401 n.
explained in Godi
proceedings.
509 U.S.
Supreme
Court
As
Thus,
nez,
ability
expert opinions
competence
requires only
defense.
lucid,
open-
answered
appropriately
at 608.
un-
and established his
questions,
ended
Fourth,
prosecutor
the
believed that
and his
derstanding
proceedings
of the
and 1986.
competent
Deere was
1982
repeat,
counsel. To
ability to consult with
Fifth,
the facts of the crimes do not
finding that Deere was
the state court’s
suggest legal incompetence or someone out
only strongly supported
competent is not
reality.
repeatedly
touch with
Deere
evidence,
correct be-
by
presumed
but
Then,
Cindy’s family.
to kill
threatened
neces-
“competency
cause
determinations
him,
planned
after she left
he
murder
credibility
sarily involve assessments
days, again
Cindy
a few
and
for
warned
judge,
trial
by
and demeanor”
that murder.
then carried out
open
“competency may be examined
Evans,
F.2d
court on a full record.”
Sixth,
transcripts
guilty plea
of the
Judge Metheny repeatedly
ob-
actually
proceedings establish
Deere
competence
and evaluated Deere’s
served
going
understood what was
on. Deere
His observation that
1982 and 1986.
accurately
open-ended questions
answered
competent
presumed
is
correct
judge,
from the
consulted with his counsel
by
strongly supported
the record.
in court and demonstrated his understand-
Id.;
117-18,
Maggio,
ingly similar
words, that he had “the
guilty
other
—in
and was sentenced
capital murder
options
capacity
appreciate
leave
sought
granted
and was
He
death.
is not reason-
make a rational choice”—it
appeal.
Id.
his state habeas
to withdraw
ably probable that he would have been
federal habeas
A “next friend”
at 882-83.
incompetent
plead guilty
under
found
arguing that Dennis was
was filed
petition
standard,
proper legal
even his new-
have made these decisions
incompetent to
opined
competency
at a
experts
found
A
illness.
Id.
886-87.
due to mental
hearing
in 1982 as
do now. We re-
that Dennis “killed the
opined
psychiatrist
Snyder’s
granting a
Judge
verse
order
penalty as
seeking the death
victim and is
ground.13
this
corpus
writ of habeas
on
life,
way
and a
way out of
a convenient
by
turn to the order issued
We now
ultimately he will
assuring himself that
Taylor denying habeas relief on the
Nevertheless,
psy-
Id. at 883.
die.”
by Deere.
grounds
other
raised
that Dennis had sufficient
opined
chiatrist
to con-
understanding
proceedings
of the
judge’s
competency in
Trial
mental
IV.
a rational and
counsel and had
sult with
1986
understanding
proceedings.
of the
factual
argues
that the district
charges, the
fully aware of the
He was
by denying his re
sentence,
abused its discretion
legal
implications
evidentiary
discovery and an
quest
held:
available to him.
Id. We
options
claim that counsel was inef
hearing on his
...
not
question
The
whether
Judge Methe
decision,
challenging
fective for
substantially affects
illness
disease,
at the 1986
ny’s competency
preside
disorder
whether a mental
competence finding.
judge
stipulated to that
should
sel
Deere's claim that the trial
rely
was entitled to
The trial court
hearing
sponte
competency
have sua
held
competency
Wallace v. Stew-
determination.
evidence of
there was no
1982 fails because
Cir.1999).
art,
(9th
F.3d
judge.
incompetence
the trial
before
simply
judge
did not
the trial
record before
Metheny,
prosecutor and Mr. Jones
compe-
about Deere’s
raise a bona fide doubt
competent.
all believed that Deere was
hearing.
sponte
a sua
tence to warrant
court established that
Deere’s actions in
possi-
charges, understood the
understood the
actually incompe-
claim that he was
sentences,
extensively
discussed his
ble
guilty
trial fails be-
plead
and stand
tent to
counsel,
a factual basis
could state
multiple, repeated
case with
the state court's
cause
rights
plea,
he was
well-supported
for the
understood
competence findings are
evidence,
waiving
counsel. He
we
and could consult with
which
The new
the record.
disfavor,
guilty
pleading
provide the clear
gave
simply
rational reasons for
does not
also
necessary to
jury
convincing evidence
over-
waiving a
trial and his constitutional
establishing that
court-appointed psychia-
the evidence
rights. Finally, the
come all of
competent in
and 1986.
competent,
coun-
and both
trist found
*23
investigator
develop mitigation.
review the district
vate
penalty retrial. We
this,
evidentiary hearing
objected
ultimately
court’s denial of an
Mr. Jones
Williams, 384
Supreme
an abuse of discretion.
the California
Court struck the
district court must con-
F.3d at 586. The
order and returned the case to the trial
if
evidentiary hearing
the facts are
presentation
duct
court for the
of mitigating
alleged would entitle
disputed, the facts
evidence.14
the case went back to
When
relief,
true,
petitioner
to habeas
Judge Metheny,
Mr.
appointed
Landau
not receive a full and
petitioner
if the
did
mitigation
as a friend of the court and
develop the
opportunity
fair
facts
developed
presented.
argues
court. Id.
state
Judge Metheny’s ruling
that
is evidence of
error,
just
legal
impair-
but mental
that the district court did
We hold
ment.
in finding
not abuse its discretion
that
points
2. Deere also
to certain state-
with
Deere did not come forward
sufficient
Judge Metheny
ments
made at the time of
evidentiary hearing
evidence to warrant an
sentencing
impair-
as indicative of mental
on this issue.
ment.
argues
Judge Metheny
that
The
claim
essence of Deere’s
is that
“employed
reasoning” by compar-
bizarre
1986, Judge Metheny was senile and that
hits,15
ing Deere’s
mafia
murders to
sol-
Mr. Jones rendered ineffective assistance
shooting
during
diers
enemies
the war and
in failing
attempt
disquali-
of counsel
shooting judges.16
judge
individuals
fy him. Deere’s habeas counsel
that
admit
himself,
compared
noting
also
Deere to
enough proof
did not have
to sustain
angry
girlfriend
he was
when he lost a
claim,
they argue they
this
but
came for-
during the war.
enough
ward with
to entitle them to dis-
covery
evidentiary hearing. They
and an
3. Deere also furnished declarations
following:
offered the
lawyers. Taylor
from four
Huff signed a
public
declaration in 1993. He is a former
1.After
the case was remanded
defender in
copy
Indio. He furnished a
Supreme
presen-
California
Court for the
ruling Judge Metheny
made in
evidence,
1985 on a
tation mitigating
and after Mr.
to suppress
motion
that Huff
Jones
offered as
still refused Deere’s insistence to
proof
judge’s
mitigation, Judge Metheny
impairment.
offer
held Mr.
However,
in contempt
reimposed
explanation
there is no
of how
death
purported
ruling
sentence. He then
to the
evidenced mental impairment “stay”
appointed
the sentence and
pri-
way
even
what
it was
Huff
wrong.
Deere,
Cal.Rptr.
14.
Michael condition. County, furnished a decla- Bernardino San heard stating that he had in 1993
ration above, court noted the district denied As judge that the early as 1985 “rumors” as discovery preju- without request the Kenney states Alzheimer’s Disease. had dice,17balancing against this new evidence Deere was that 1988—two after Mr. fact that neither Jones nor the Mr. a Judge Metheny, saw resentenced —he moved to and the fact Landau ever recuse come down player, football college former re- Supreme that the Court California evidentiary objec- the bench after an from that the trial viewed the record and found tion, and chal- a football stance assume fair, carefully objective and judge was that Kennedy speculates lenge him. fac- mitigating aggravating weighed having a flashback to Metheny was Judge sentencing. tors at Evidence obtained After college player. football days as a sentencing, the the district years after Judge Metheny’s dis- Kennedy moved for reasoned, the would not establish court snap Metheny “appeared qualification, Although the judge’s competency 1986. apologetically present” into the back discovery denied without request for Kennedy had never himself. disqualified never renewed. request the prejudice, Metheny prior to Judge before appeared court denied the re- The district also 1988. evidentiary hearing for an because quest in 1993 that Mark declared Sullivan along when viewed proffered, the evidence Metheny “strange rul- Judge made record,” support did not “the entire in a civil case. remarks” ings and off-hand in- judge the allegation that presiding Judge Metheny was attorneys who None of competent. only claims that was appeal over a small Judge Metheny actually before appeared couple of hours. have taken supposed to Landau, Jones, Mr. in this case—Mr. days, three dragged it on for When counsel— appellate defense prosecutor exasperated, came Metheny, apparently mental judge’s questioned the trial ever bench, that both sides from the said down lawyers, the district These competence. people, good Christian were added, position to were in the best court he dis- dispute, and then settle the should In ad- judge’s behavior. the trial observe was reinstat- the case. The matter missed dition, Metheny may have although Judge stated Sullivan presiding judge. ed Mr. handling initially erred Metheny was not opinion, Judge in his mitigation, put refusal to Jones’s responsibilities competent to handle noted, all the fact that “the district judge since 1983. Performance Judicial Judge Metheny, with the Commission on depose Deere wanted to judge. subpoena against” the his medical records between 1982 obtain complaints lodged "any relevant records of breaking ground legitimate point new in this make the parties were he could pleads case ... It is rare that defendant empathize pain with Deere about the case, penalty in a and Peti- guilty death being jilted by girlfriend. He was also tioner created a novel dilemma when explaining that he to consider the facts any present mitigating declined to evi- of the crimes to determine sentence. judge parties dence.” Neither the nor making point He was com- situation. experience with the novel crime, mitted an emotional rather than a
We hold that the district court did not murder for hire.
though
And
even
denying
abuse its discretion
eviden-
upset,
Deere was intoxicated and
he had
tiary hearing
subject
on the
murder;
planned
nevertheless
it was
Metheny’s
competency
in 1986.
accident,
driving,
not an
like drunk
nor
*25
First,
respect
Judge Metheny’s
spur-of-the-moment killing.18
was it a
ruling
put
when Mr. Jones refused to
on
Although
lawyers argue
Deere’s
that
reversed,
mitigation,
ruling
a
later
there is
Judge Metheny’s remarks are evidence of
simply
ruling
no evidence—none—that this
impairment, conspicuously
mental
missing
legal
was other
than
error committed
from
anything
their submission is
from
judge
when the
was confronted with a
any
Despite having
of their doctors.
ac-
highly unusual situation. Mr. Jones re-
in
present mitigation
capital
fused to
a
to a
cess
veritable stable of mental health
case even after the case had been remand-
professionals who could have reviewed the
by
Supreme
ed
the California
Court for
Jones,
transcripts
Rosenthal,
—Dr.
very purpose,
pain
even on
of con-
Favazza,
Dr. Stewart —not one has
tempt.
Judge Metheny
in
sailing
un- opined that Judge Metheny’s statements
procedure
chartered waters. His
of reim-
mind,
are evidence of a disordered
or even
posing
penalty,
the death
and then staying
warrant
inquiry.
further
mitigation
it for further
was error. After
lawyers
The declarations of the
recount-
appeal,
this error was corrected on
the
ing anecdotes
provide
also do not
a basis
Judge Metheny
case was remanded to
hearing. Taylor
for a
Huffs declaration
it proceeded to conclusion without further
personal
boils down to his
opinion that
ado and it was affirmed
appeal. Legal
on
error,
Judge Metheny
difficulty
“had
especially
grasping”
in
highly
the context of
circumstances,
legal
unusual
in
concepts
is not evidence of
involved
a 1985 mo-
senility.
suppress.
certainly
tion to
Huff is
entitled
opinion,
proof
but it is not
excerpts
Judge
out-of-context
judge’s
impairment,
especially
Metheny’s remarks at Deere’s 1986 sen-
since
specific explanation
there is no
tencing prove only that Judge Metheny
problem supposеdly
what the
Judge
was.
was not the most articulate of men. How-
Metheny’s
ever,
ruling attached to Huffs decla-
Judge Metheny’s
when
remarks are
face,
ration
read in context
not in
is unremarkable on
snip-
isolated
its
pets,
apparent
it is
that he
trying
to there is not
allegation
even an
that it was
(but
Deere) argues
18. The
prosecutor) expressed
dissent
not
confusion about
Judge Metheny
request
sought
exhibited “mental
incom-
this
clarification of what
petence”
penalty phase
by
at the
really seeking basically,
as evidenced
defense counsel was
—
a
ruling
aggravating
discussion
which defense counsel re-
a
that the
evidence was
quested
judge
aggrava-
Judge
rule that the
insufficient as a matter of
Methe-
law—
ting
"outweighed”
mitigating
ny
request
evidence
required
pres-
ev-
denied the
idence,
any mitigating
mitigation,
all before
ruling
evidence was
entation of
not disturbed
(and
presented.
Judge Metheny
appeal.
even
After
accuse Mr.
habeas counsel
Deere’s
Huffs
erroneous.
legally
to be
found
ever
of counsel
assistance
hearing.
of ineffective
not warrant
does
declaration
disqualify Judge
move to
failing
speaks
Kennedy’s declaration
Michael
whatsoever
evidence
Metheny, yet offer no
Metheny
Judge
about
he’d heard
“rumors”
ever
Huff, Kennedy or Sullivan
not warrant
do
Rumors
1985.
around
Metheny
Judge
opinions
shared their
incident occurred
football
hearing. The
along
gossip
passed
with Mr. Jones
sentencing.
1988—two
after
their declara
they included in
and rumors
light on
incident sheds
best, the football
At
Jones, we look to
evaluating Mr.
time,
In
tions.
at that
Metheny’s status
Judge
Strickland, 466
in 1986.
he knew
fact, Kennedy says
never what
1986.
Metheny
689, 104
until
2052.
Judge
S.Ct.
before
U.S.
appeared
even
years after
two
observations
His
2,May
importantly, on
Finally, and most
do not warrant
question
time
af
Supreme Court
the California
hearing.
dissent,
Metheny’s
firmed,
without
speaks of
declaration
Sullivan’s
Mark
pro
proceeding
the 1986
handling of
—the
identified,
otherwise
rulings,” not
“strange
by
affected
argues
now
ceeding Deere
Metheny in a civil case
made
only
Not
impairments.
judge’s mental
*26
inexplicable
It also recounts
toto,
in
Metheny affirmed
but
Judge
was
jury
made
the
judge
that the
statement
ob
specifically
even
Supreme
the
Court
had com-
wife
effect that Sullivan’s
the
that the
“the record indicates
served that
stay-
judge about Sullivan’s
to the
plained
fair and
scrupulously
trial
remained
transcript
No
night.
late
ing out too
It
throughout
proceedings.
the
objective
furnished,
to tell
impossible
it is
so
was
both
carefully weighed and considered
attempt at
anwas
this statement
whether
after
mitigating evidence
aggravating
confusion, or
humor,
of
some-
product
Deere, 280 Cal.
presented.”
they were
event,
stray
one
any
this
thing else.
only did
424,
1195. Not
808 P.2d at
Rptr.
in a 1984
remark,
any context
without
any
express
fail
Court
Supreme
hearing. The
trial,
not warrant
does
statements
Metheny’s
Judge
over
concern
abruptly
judge
in which
event
1986
him
behavior,
explicitly
it
commended
was
appeal
claims
a small
dismissed
case. This
handled the
way he
on the
hours,
a few
just
to have taken
supposed
Judge
the conclusion
compels
alone
judge
days, shows
for three
went on
pre
when he
impaired
Metheny was
and blew
exasperated
who became
1986,
that Mr.
in
this case
over
sided
impa-
is evidence
Although this
stack.
failing to seek
in
not ineffective
Jones was
how or
tience,
understand
it
not hard to
is
disqualification.
again,
Once
happened.
incident
why the
majority holds
sаys, “The
The
anything from
dissent
furnish
failed to
Deere has
may
dementia
suffering from
experts
judge
health
any of his several
hold no
this
We
a man to death.”
significance to
sentence
ascribing any clinical
really hold is
thing. What we
such
incident.
many years
up
drummed
the anecdotes
Diana Samuelson’s
The substance
support
do not
question
time in
after
who identi-
the woman
quoting
declaration
Metheny
im-
Judge
the claim
in
Metheny’s wife
Judge
herself as
fied
of the
1986,
light
in
particularly
in
paired
weren’t, the
if it
hearsay. Even
is
laudatory af-
Supreme Court’s
California
Judge
only to
speak
statements
woman’s
Metheny’s supposedly-
Judge
firmance
1993,
February
Metheny’s condition
rulings.
impaired
in 1986.
status
nothing about his
say
V. Conclusion
Supreme
California
Court affirmed. Peo
(Deere II),
ple
v. Deere
53 Cal.3d
grant
REVERSE the district court’s
We
(1991).
Cal.Rptr.
AFFIRMED IN REVERSED The attorneys describe Metheny as IN PART AND REMANDED. incompetent report that his incom- petence general knowledge in the FLETCHER, W. Circuit Judge, The courthouse. record of Deere’s resen- dissenting: tencing also shows Metheny’s in- majority The holds that a judge suffer- competence. ing may from dementia sentence a man to I the evidence believe already disagree. death. record sufficient to demonstrate that A severely disturbed Ronnie Deere shot Judge Metheny was mentally incompetent and killed Don Davis and Davis’s two when he resentenced Deere to death
young daughters.
remorseful,
Deeply
1986, but that
question
is not the
before us
Deere convinced deputy public defender
today.
question
now before us is
Glenn
help
Jones to
him
obtain
death much easier: Should the district court
sentence for his crimes. Deere pled
*27
granted
have
evidentiary
an
hearing on
guilty and
waived
penalty-phase jury.
Judge Metheny’s mental
competence?
presented
Jones
no mitigating evidence.
majority
The
holds that such a hearing
Superior Court Judge Fred R. Metheny was not required.
I disagree.
sentenced Deere to death in 1982. The
It
open
is an
secret that
judges
some
Supreme
California
Court reversed and
stay on the bench too long.
proce-
Formal
remanded, holding that a death sentence
dures
for removing
exist
judges,
senile
imposed
not be
could
presen
without the
they
rarely employed.
are
Attorneys hesi-
mitigating
tation of
People
evidence.
v.
tate to challenge judges they appear be-
(Deere I),
853,
Deere
41 Cal.3d
222 Cal.
fore, and judges hesitate to blow the whis-
13,
(1985).
Rptr.
1153
have
court should
the district
hold
petition.
with
have dealt
judges
trict
on whether
evidentiary hearing
peti-
granted
Taylor denied
Judge
District
appeal
challenge
failing
On
in
to
in 2001.
entirety
provided IAC
in its
Jones
tion
Deere
denial,
we wrote
1986.
competence
Metheny’s
from
Judge
at
evidence
sufficient
with
Snyder,
forward
Third,
Judge
agreeing
“c[o]me
whether
hearing on
to trigger
least
provided ineffective
that Jones
hold
fact,
pleaded
to have
was,
competent
investigate Deere’s
failing
to
assistance
F.3d
Woodford, 339
v.
guilty.”
guilty
1982.
competence
plead
to
Cir.2003).
(9th
held
We
1086
a real
‘“create[d]
declarations
two
Metheny’s Competence
Judge
II.
competen-
to Deere’s
doubt’
substantial
in 1986
at
taken
[were]
cy
plead guilty,
to
Incompetence
A. Evidence
at
true.” Id.
to be
and assumed
face value
Raines, 769 F.2d
Boag v.
(quoting
Metheny first sentenced
Judge
Cir.1985)).
(9th
remanded
We
Supreme
The California
in 1982.
death
that he
Deere’s claim
hearing “on
because
death sentence
reversed the
Court
guilty, and
plead
incompetent
mitigating
present
had refused
claims
... as to the
petition
reconsider
Metheny
imposed
Judge
evidence
did
Id. We
that contention.”
on
premised
to do
requiring Jones
without
sentence
issues,
including
any other
reach
not
I,
Cal.Rptr.
P.2d
so.
in 1986.
competence
Metheny’s
sen
for a new
remanded
Court
Judge Snyder conducted
District
sen
holding that a
tencing hearing,
death
forty-
In a careful
on remand.
hearing
absence
imposed
not be
could
tence
order,
that Jones
concluded
she
nine-page
Id.
evidence.
mitigating
of counsel
assistance
provided ineffective
resen-
conducted two
Judge Metheny
fell below
(“IAC”).
that Jones
held
She
theAt
after remand.
tencing hearings
of reasonableness
objective standard
“an
21, 1986, Jones
April
hearing,
first
held
professional
below
performed
mitigating evi-
present
again refused
time”
community at the
in his
standard
require
Metheny did
*28
dence.
com-
Deere’s
investigate
to
when
failed
Deere
and sentenced
evidence
mitigating
She held
guilty.
plead
to
petence
14, Judge
May
day. On
death the next
to
was a
there
because
prejudiced
Deere
new death sentence
“stayed” Metheny
that, but for coun-
probability
“reasonable
stayed, the
though
Even
order.
by minute
errors,”
would
unprofessional
sel’s
ap-
an automatic
triggered
sentence
death
incompetent.
found
have been
On
Supreme Court.
California
peal
Snyder’s deci-
Judge
appeals
The State
9,
judgment
struck the
the Court
June
Judge
appeal
continues
sion.
supe-
case]
[the
and “returned
death
re-
majority
panel
decision.
Taylor’s
proceedings.”
further
rior
decision, affirms
Snyder’s
Judge
verses
decision,
1986,
Metheny ap-
Judge
and denies
Judge Taylor’s
June
On
ma-
pres-
with the
disagree
I
Landau
petition.
attorney
Deere’s
Jonathan
pointed
jority on
issues.
behalf
three
mitigating evidence
ent
resen-
A second
court.
a friend
First,
the district
I
hold that
18, 1986,
July
held on
hearing
tencing
evidentiary
granted
have
court should
evi-
mitigating
presented
which Landau
at
Metheny was
Judge
hearing on whether
Metheny sentenced
Judge
dence.
sentenced
when he
mentally competent
day. The California
the same
Second,
death
I would to
death
1986.
Deere to
II,
Supreme Court affirmed. Deere
we were
our third
day
testimony
Cal.Rptr.
1. Affidavits people in his courtroom were Christians attorneys Three appeared who before church, and attended and remarked Judge Metheny in provided the 1980s upon inability our to settle the case. He sworn support affidavits in of Deere’s 1993 then ordered Op- the case dismissed. petition. state habeas Those affidavits posing I reported counsel and this to the were provided later to the district court in presiding judge, Judge Noah Ned support of Deere’s federal petition. habeas Jamin informed us that he would be Attorney Mark Sullivan wrote: retrying entirety, the case in its which is
I came to know Metheny Fred what he did. presided 1983when he over criminal ... years passed, As the it seemed as case wherein I represented the defen- if his condition worsened considerably. dant. experience That unwilling left me appeared It ifas he would float in and liberty to risk the my of another of reality. out of He would not recognize clients in his hands. I resolved never to people whom he years. had known for permit him to be involved in another situation, It a very sad because I am criminal case of mine. very told that he was once a likeable ... In a jury civil trial in Ohls- man. Phillips, son v. opposing counsel I Attorney Taylor Huff wrote: found ourselves many bewildered I have worked [public Indio Judge Metheny’s strange rulings approximately defender’s] office since off-hand remarks to jury. For ex- March of I appeared before ample, despite the fact my wife and Metheny Fred between five and any had never personal relation- *29 ten times from 1985 until his retirement ship Judge whatsoever with Metheny, he 1989, in but did not any conduct criminal jurors told in my the case that wife trials before him.... constantly complained to him that I I did have appear occasion to before stayed out night. too late at This was Judge Metheny pretrial for out I of the blue motions. and not connected to recall anything lengthy suppression one transpired. hearing that had which was held 1985 in the case of ... By only the matter of mine People Dyer. v. It became which I obvious to me agree to Judge allow during hearing that that Metheny judge to the McCready hear was had v. Moore, a Superior difficulty grasping trial the legal concepts Court de novo of in- volved; a small claims action. This matter was and his ruling written ... con- supposed hours, to last a couple of my opinion firmed of his slipping grasp. When I dеclined parking lot. into the phase penalty the aware of ... I was judge then Su- the position,” the the by California “assume ordered retrial Deere, Mr. v. as People accompany that I got up Court and insisted preme Jones, by Glenn represented Deere was could knock lot so he parking him to the I Indio office. in the deputy believe, another had, imagined I around. He me In proceedings. of these part observed State, where at Nebraska he was back for appropriate not it was opinion, my '40’s in the player football he was a star reassigned to case to be capital this one of his That was thereabouts. or he was not Metheny; I do believe Judge any- by regressions, witnessed common of a judgment to sit competent then before to take a case enough one foolish complex or other serious case capital him.... criminal matters. judge presiding I met with Kennedy wrote: Attorney Michael ac- judge, who calendar the criminal attorney in district deputy I was a outrageousness knowledged in 1983 Blythe Indio, Springs, and Palm antics, they re- Metheny’s Judge criminal private and entered and 1984 to the not take the matter that I quested areas 1985. in those practice defense judicial on commission press or Judge Superior Court heard of I had appeared that it given performance, among Metheny’s reputation Fred retiring within would be Metheny Judge bars and defense prosecution local these I chastised weeks.... several judi- appropriate render being unable to so far letting things get judges two as about long ago services as cial they, and judge who hand out of I specifi- prosecutor. I was while still of han- capable not everyone, knew then-Assis- my supervisor, cally recall serious job, to the detriment dling ... Thomas Attorney District tant in the bal- hang liberties those whose anxi- Jr., commenting on his Douglass, it was a difficult They conceded ance. evidentia- having complicated about ety appeared with and matter to deal Metheny by Judge ry issues heard on for so gone things regret im- However, my it was about was that problem It long. seems not D.A.’s office did pression verge always Metheny away Judge Judge from cases want to shunt so no Metheny’s retirement, years, Judge for several ... because Metheny (about agent F.B.I. distin- as an hurt an otherwise background one wanted always regaled litigants were twilight which in the public servant guished in- him to judge) caused by the length serially promised, those But career. Peo- on the side stinetually err material- never impending retirements ple.... ized .... I not until about 1988 It was I on what opinion, based my ... Judge Methe- before appear occasion experienced, heard what ... proceedings, During those ny.... to handle competent Metheny was bench, fol- off the Metheny came matter, much less any serious criminal me, evidentiary objection lowing an I believe case, nor *30 in do capital on the stance three-point assumed of events knew of the anyone that who me courtroom, ordered open in the floor competent him days considered those (to him opposite floor on the get down time before for some undefined spectators, on-looking the horror of Press-Enter- The In November client), and my and personnel, circula- newspaper general of a local way prise, out all the knock me threatened to tion, judges on rated the Riverside County justify a finding aggravation.” Jones Superior survey Court based on a of law- had made the same motion at first yers and court staff. Judge Metheny was sentencing hearing in and Judge judge rated the “worst” on the Riverside Metheny Now, however, it. denied by a margin. bench pa- considerable The Judge Metheny did not understand the per reported, question “His detractors his motion. responded: He intelligence clarity thought.” I don’t I’m in position think right paper continued: grant now to the motion or deny the complete “He is fog,” wrote one motion, think, either one. I assuming attorney criminal law with six arguendo, all the evidence to be Superior Court. “Doesn’t know what’s introduced Attorney District has on, going decision, can’t make only been offered. If this were the end of it wants to talk about World War II and shot, this were the last it be a would playing football for Nebraska.” different position for me to view from respondent One wrote that Judge Metheny than if you I go allow ahead and simply “has been in the trenches too long”; produce all the evidence that is available another Judge stated that Metheny “ap- you feel is necessary and proper and peared] to have little grasp go- of what’s supportive, then there’s an opportunity ing on.” again comes back prosecution to the right and their produce additional
2. Record in Deere’s 1986 evidence. Resentencing replied, Jones “I disagree don’t if the de- Judge Metheny’s incompetence evidence, fendant offers but we got haven’t painfully during obvious Deere’s 1986 stage yet.” Judge Metheny then resentencing. may It be seen in ex- denied Jones’s motion prejudice. without changes courtroom, in the in particu- Jones again: tried lar instances of inappropriate behavior. I Honor, Your give will examples respect I both. would ask the Court to articulate the factual find- A lengthy exchange place took during ings that permits the Court to come to the first of post-remand the two sentenc- the decision that there are ag- sufficient ing hearings, on April 1986. The gravating point circumstances at this State’s attorney, Dunn, began Robert justify a finding of aggravating circum- hearing by transcripts introducing and ex- stances. from hibits the 1982 sentencing hearing. evidence,
This view, State’s Metheny showed still did not understand: aggravating circumstances warranting the Well, Yes. think I there’s a conflict. penalty. death submitting After the evi- you If say could it generally without dence, said, Dunn people “[A]nd the doing two or days three research rest.” Metheny accepted the evi- matter, this may necessary, which be dence shortly stated, thereafter “You hope but I not. I think we’re still look- yet.” haven’t rested repeated, Dunn “And ing at this proposition. looking I’m going we’re to rest at this time.” right the case now although this is the
Jones then moved for a first time ruling that I’ve been through it. ha- I State’s evidence was insufficient to ven’t had an support yet opportunity to review a finding aggravation. said, all “I’m dumped evidence in. asking the Court to ruling make a think it dumped good for a rea- what Mr. Dunn has you offered does not son. It’s in now. It’s been in. allowed *31 fact that finding a to make of I the Court as The evidence me to review. It’s for is insuffi- evidence aggravating I have re- their it, I haven’t—and and recall law, support a cient, is avail- to files, I think as a what matter my viewed that what feeling the finding aggravating to circumstances. come able. I’ve a here is all is that first of we discussed Metheny responded: Judge more had to matter, case that do a this were that. But if I I will do will. talking we’re I think than one murder. this was around and all first time the timе, but at the same murders about you right into evidence now put partic- this murders in were three there now your ruling right to asked me make aggravating be that would case and ular look, a chance I haven’t hey say, I’d my up I haven’t made apply. if it does I yet. don’t all this evidence go to over trial a new this is that because mind on I am I memory, although guess have a circum- mitigating aggravating for most than a bit smarter probably quite stances. here, I don’t around but judges consider- to take into thing Another memory isn’t My it. brag to like about hei- particularly involves is murder ation implicit. that Now, atrocious, nous, and cruel actions. review recess to a brief suggested Jones in on to come going think that’s I don’t evidence, Metheny said: Judge concerned. far as that’s the evidence me to do asking You’re yet. way It isn’t case Say this was my just of time. That’s things ahead say I’d time around. first handled the really don’t I the side. on comment every go over I want a minute. wait now. right mind enough my have go over of these exhibits one actually what find out
transcripts and hear we’ll on it. have a lot possibility There is a didn’t happened. We Mr. Deere transcript the effect lot of the evidence didn’t have We victim waiting, pursuing there and spent a bit We except argument. final possibility. That’s a lying in wait. while another you give If me of time there. ask me you how can IBut don’t see more feel much I would hours or two so me you what want me to state force now any make I want to don’t comfortable. evidence. you produce the until to state it not for I want do mistakes. more on evi- that decision got to make I’ve I can’t justice. for but or for myself you the wild it out of make I can’t dence. you right now. tell yonder. blue a recess. again suggested Jones Mr. my position, you Do understand Upon for lunch. Metheny then recessed Jones? Metheny said: reconvening, more: tried once was abso- thought Iwhat I have done I do Honor, respect, in all due Your review necessary and is lutely that, saying for apologize not. so again review the file the evidence and as if we analogy, using an it’s end what up-to-date as I’m caught People trial and in a criminal are happening. what is happened has and the just defendant have rested A motion? we? were Where in- upon judgment making motion Metheny con- reminded, Judge being After are now sufficiency evidence. We tinued: have rested People penalty trial. point this the situation As I look at I’m aggravating evidence. offering their evidence time, to balance if I were asking evidence making a motion *32 which, course, proper isn’t the thing preme Court had unambiguously told him now, to, to do I would have based on the not to do. evidence, deny the motion. Judge Metheny also inappropri- behaved again Jones asked Judge Metheny for ately during post-remand Deere’s resen- “articulate for the record what it finds in tencing. examples Two illustrate this this justifies] case which finding ag- point. gravation. my That’s point been all First, Judge Metheny decided important along.” Judge Metheny gave neither issues without Jones or being pres- requested articulation provided nor a rea- 14, 1986, ent. May On Judge Metheny son doing for not so. “stayed” April Deere’s 22 death sentence After Judge Metheny motion, denied his appointed an investigator to look for Jones provide refused to evidence in miti- mitigating evidence. The minute in- order gation. District Dunn Attorney sug- then prosecutor dicates that the and Jones were gested that Judge.Metheny hold Jones in present in the courtroom during prоceed- contempt. emphasized Dunn to Judge ings leading entry to the of the order. Metheny that required he was to hear day, The next Jones wrote letter re- mitigating evidence before sentencing questing that the minute order be changed Deere, and that sentencing him without to reflect fact that he had not been that evidence would be pointless. present. may, fact, There have been no Metheny did not hold Jones in contempt open courtroom proceedings leading to the and did nothing else to presen- secure the minute order. Despite effort, extensive no tation of mitigating evidence. transcript May 14 has been located. day, next without having heard any Judge Metheny may decided, have without evidence, mitigating Judge Metheny sen- notice or hearing, stay Deere’s death tenced Deere to death. After sentencing sentence to appoint investigator; Deere, Judge Metheny informed him that may or he have held a hearing off the
he sixty days had to appeal. Jones re- record without either Jones or Deere be- minded Judge Metheny penal- death ing present. Judge Metheny held another ty appeal is automatic. hearing a later, month and a half on June When Judge Metheny resentenced 27, 1986, at which appointed Jonathan Deere to death in April he did not Landau to supervise the investigation, understand what the Supreme California present evidence, mitigation and act as a Court told him to do. In friend-of-the-court at a new sentencing to present refused mitigating evi hearing. Judge Metheny also established dence, Metheny had sentenced procedures, various withdrew the order of I, to death. In Deere the California contempt against Jones, and affirmed that Supreme Court reversed and remanded Jones would continue representing Deere. for resentencing, specifically holding that a Deere was present courtroom, death sentence could not imposed be with and there was no waiver of his presence. out the presentation of mitigating evi Second, Judge Metheny dence. made direct April 21, 1986, On off- Jones refused to present the-record contacts with mitigating evidence, witnesses. just Dur- as he had ing done four 27 hearing June earlier. On which April 22, Judge Metheny present, was not Judge Metheny stated, sentenced Deere to death without having “But, heard mitigating as I evidence, situation, understand the we just as he had done in is, 1982. That have mighty been successful with Mr. Judge Metheny precisely did what the Su family. I have contacted them
1159 quotation in the block is italicized who lies people number of other directly and a majori- the way Justice In the of testify appears the below. view happy to be would Judge testify.” important them to “most ]” wants this sentence is the ty, Mosk contacted to have appears Metheny compels also the conclusion “This alone factor. Judge for point, father at some Deere’s impaired[.]” not Judge Metheny was second re- during Deere’s Metheny stated majority takes the The Op. at 1151. father Mr. Deere’s “I think sentencing, The out of context. sentence Court’s Mr. I don’t think him about it. talked argument that responding was Court as I do I as much knows that know im- Metheny had not been Judge in 1986 this case.” about the death sentence was and that partial, Judge “mockery.” The Court wrote: is direct evidence There therefore and mother interviewed Deere’s Metheny record indicates contrary, the On the the record at off chambers two sisters scrupu- the trial court remained moth- retrial. Deere’s penalty the second throughout the lously objective fair and presented in a declaration er stated weighed and It proceedings. carefully habeas courts: the state and federal both aggravating the considered both Kar- my daughters Jeannie Me and pre- they were mitigating evidence after trial, penalty the to the second en went Indeed, counsel defense neither sented. it.... [W]e trial I think called appointed was [who nor Mr. Landau in his chambers. judge the talked to mitigating ev- presenting of purpose the All I re- if I testified. remember can’t of challenged impartiality the idence] judge’s into the was going member during the point at any the trial court if asking us we and him chambers proceedings. rehabilitated. Ronnie could be thought II, 808 P.2d Cal.Rptr. also re- DeLeon sister Jeannie 1195. stated her the She incident. membered clear, makes the passage full As the declaration: Metheny’s ruling Judge not on Court testified, us to judge asked the After we Indeed, the issue competence. mental Ron- to talk about into his chambers go never Metheny’s Judge competence things about us lot of He asked nie. appeal to Court. in the direct raised Ronnie, kind of life Ronnie what about Instead, just passage quoted, in the was over- lead sentence Metheny’s im- Judge ruling on Court emotional back It was real turned. correctly Judge Taylor District partiality. there. scope of the Cali- the limited understood Majority’s Response statement. He Supreme Court’s fornia wrote: recognize majority panel refuses made on findings were Court’s] [The of the evidence strength the extent ‘ambigu- [wa]s that “the incompetence. claims record Metheny’s Judge the trial the evidence which to the standards According majority, ous’ as eccentricity.” Op. determining penalty, no more than applied “reveal[s] constitu- at 1127. thus that the sentence unreliable,” that the resen- tionally First, single on a majority focuses II, “mockery.” [Deere tencing was a Supreme Court’s in the California sentence at 1194.] P.2d Cal.Rptr. addresses opinion II of mental claim Thus, in terms the evidence. Metheny’s consideration trial part incompetency majority re- upon which The sentence judge, findings these factual do pre- an “inexplicable statement” without pro- clude relief. viding a transcript; and recounts an “event” in judge 1986 that “shows a who Second, majority writes that *34 exasperated became and blew his stack.” Metheny sailing in “unchartered wa- Id. at 1151. I disagree. The affidavits of present ters” when Jones refused to miti- Huff, Kennedy, and Sullivan are serious 21, gating April evidence on and when by professionals. assessments serious Judge Metheny sentenced Deere to death Huff, Kennedy, day. practiced the next at and Sullivan Op. major- 1149-50. The be- “[Tjhere writes, ity simply Judge is fore Metheny, directly no evi- observed the ruling dence—none—that this was other they describe, behavior knew than legal error judge committed when the Judge Metheny’s reputation in the court- highly confronted with a unusual situ- All house. of them Judge concluded that ation.” Id. at majority 1150. The is Metheny was incompetent. These attor- wrong. The hardly waters were unchart- neys’ casual, offhand, affidavits are not ed. What in happened April 1986 was a unsupported They are, evaluations. in- precise repeat happened of what had in stead, terrifying window into Judge 1982, legal and the issue 1986 was the Metheny’s courtroom. precise issue that the Supreme California Fifth, majority faults Deere for not Court decided Deere I. The conclusion providing any medical Judge evaluations of is inescapable Judge Metheny’s men- Metheny’s competence mental to serve as disability tal April was so severe in 1986 judge writes, 1986. The majority simply could not understand the “Despite having access to a veritable sta- holding Court’s clear in Deere I. ble of mental professionals health who Third, majority Judge contends that could have reviewed transcripts —Dr. Metheny’s odd merely statements are Jones, Rosenthal, Dr. Favazza, “out-of-context excerpts.” Id. at 1150. Stewart —not one opined has that Judge majority inadvertently has put its fin- Metheny’s statements are evidence of a ger part problem. Many of Op. disordered mind.” at 1150. I do not Judge Metheny’s comments are indeed out Jones, fault Deere asking for not Drs. They context. oddly are irrelevant com- Rosenthal, Favazza and Stewart to evalu- ments that come out of the blue. More Judge ate Metheny’s mental competence. important, majority fails to take into They were retained for specific pur- account Judge Metheny’s in-context re- pose of evaluating Deere’s competence to marks. The excerpts from the 21 April plead guilty in 1982. hearing, quoted at length above in order to context, provide Moreover, show in excruciating attorneys de- because judges tail degree to which Judge Metheny are trained to legal understand rules and mentally impaired. legal reasoning, they respects are some better able than medical professionals to
Fourth,
majority
belittles the affida-
assess competence to serve as a judge.
presented
vits
by
Huff,
attorneys
Kenne-
The question now before us is whether the
dy, and Sullivan.
In the view of the ma-
district court should have
an in-
jority, attorney
allowed
Huffs “declaration boils
vestigation and evidentiary
down to his personal opinion.”
hearing con-
Op. at
cerning
1150. Attorney Kennedy’s
competence
the mental
Judge
“declaration
”
speaks of
Attorney
Metheny.
‘rumors.’
Id.
At
point, may
Sulli-
some
it
become
van’s
speaks
“declaration
‘strange
necessary
rul-
to have the evaluation of a de-
ings,’
identified”;
not otherwise
recounts
veloped
professionals,
record
medical
(9th Cir.1995)
(quoting
an 52 F.3d
such
not believe
do
emphatically
stage.
Vasquez, 974 F.2d
this
v.
required
is
Hendricks
evaluation
(9th Cir.1992)) (internal quotation marks
Related to
B. Habeas Claims
omitted);
Woodford,
v.
see also Stankewitz
Competence
Metheny’s Mental
(9th Cir.2004).
It
365 F.3d
of the dis-
holdings
two
reverse
I would
requested an evi-
undisputed that Deere
Metheny’s
court related
trict
concern-
dentiary hearing on
habeas
state
First, I would hold
competence.
and that
Metheny’s competence
ing Judge
refusing
erred
district court
that the
denied. Deere thus satis-
request was
*35
concerning
evidentiary hearing
an
grant
criterion, as the district
the second
fied
Second, I
competence.
Metheny’s
Judge
disputed ques-
correctly
court
held. The
in
court erred
that the district
would hold
the first
whether Deere
tion is
satisfied
hearing
evidentiary
grant an
refusing to
criterion.
fail-
by
committed IAC
on whether Jones
Metheny
Judge
alleged
Deere has
Metheny
Judge
recusal of
ing to seek
in 1986 that he
mentally impaired
sowas
incompetence.
on his
based
capital
over his
incompetent
preside
Hearing
Judge
jury,
Evidentiary
waived a
sentencing.
Because
Deere
Metheny’s Competence
required to
Metheny himself was
Judge
live or die.
Deere
whether
would
decide
process violations
law on due
The case
the
incompetence of
from mental
resulting
only alleged facts that
has not
The
but clear.
sparse
decisionmaker
relief. He has
him to habeas
entitle
unequivocally,
has
Supreme Court
stated
sup-
in
substantial evidence
provided
also
that a defen-
has recognized
“This Court
court
allegations.
district
port of his
The
impar-
both
right
to ‘a tribunal
dant has
evidentiary
denied
nonetheless
to afford a
mentally competent
tial and
concluded,
judge
hearing. The district
”
States, 483
United
hearing.’
Tanner v.
whole,
con-
judge’s
the trial
as a
“Viewed
2739,
107, 126,
L.Ed.2d
107
97
U.S.
S.Ct.
during
proceed-
the
statements
duct
added)
(1987)
(quoting Jor-
(emphasis
support Peti-
in
and 1986 do not
ings
176,
Massachusetts,
167,
225 U.S.
v.
dan
(To
clear, I
not
be
do
allegations.”
tioner’s
(1912)).
651,
L.Ed. 1038
32 S.Ct.
incompe-
Metheny was
Judge
contend
Jordan,
that it would vio-
held
the Court
he was
only
I
in 1982.
contend
tent
person were
process if an insane
late due
1986.)
court did
district
incompetent
The
jury in a criminal
to sit on a
permitted
affidavits, nor
attorneys’
describe the
Jordan,
at
32 S.Ct.
225 U.S.
case.
record, in
in the
any
the other evidence
of
process
due
held
651. The Court
The district
its conclusion.
explaining
only
the state
violated
because
not been
was not enti-
that Deere
concluded
hearing, had
court,
evidentiary
after an
attorneys
hearing
because
tled
of the evi-
preponderance
concluded
to raise the
in the case failed
involved
was sane.
juror
question
that the
dence
incompetence.
Judge Metheny’s
issue of
view. world, all judges would retire before their There was considerable evidence of mental faculties deteriorate point to the Judge Metheny’s incompetence that they where are longer competent no district court declined describe. I have perform judges. world, In that we summarized that In my evidence above. would not be faced with the prob difficult view, evidence, believed, enough is lem forcing, or encouraging, our col to support a determination Judge retire, leagues to or with equally diffi Metheny was so mentally impaired he problem cult of dealing with cases decided not, could consistent with process, due pre- by were, judges who might been, have side over Deere’s resentencing in 1986. incompetent. minimum, At a bare Deere was entitled on federal corpus habeas to a But this is hearing perfect on his not a world. Some claim that Judge Metheny was incompe- judges stay on long. They too decide tent in 1986. At such a hearing, Deere cases when are no longer competent
1163
successfully moved in 1986
If
Jones
credible evidence
There is
so.
to do
Metheny
on incom
Judge
based
before
to recuse
in the record
incompetence
would not have
Judge Metheny
fishing
petence,
on a
has not embarked
us.
Deere. A
permitted
evi-
resentence
hopes to find
been
in which he
expedition
on a
ob
violation based
valid
already
process
has
He
due
incompetence.
dence
sitting judge is structural error
jection to a
evidence,
may
There
be
a lot of it.
such
vacation of the
found,
reversal or
but Deere
such
evidence still
be
more
is automatic.
judgment
order or
judge’s
enough to warrant
already presented
has
Ohio,
510, 535, 47
273 U.S.
S.Ct.
Turney v.
hearing.
(1927);
v.
437,
Greenway
judge, well aware of Judge Metheny’s personality ten, tion and problems. ageAt state, promptly reassigned the case I.Q. Deere had a full-scale which and retried it himself. If presiding placed him in percentile. the sixth When judge willing reassign 1986 to this old, Deere was ten or eleven relatively inconsequential case because of grabbed bare electrical wires and re- Judge Metheny’s incompetence, there can mained in contact with the current hardly any be doubt that he would have several minutes. The shock adversely af- reassigned capital case fected his began coordination. Deere cut- sought recusal. ting by age himself eleven. began He I therefore concludе that the district running away by age from home twelve. refusing court erred in to hold an eviden- dropped out of school in eighth tiary hearing on whether Jones committed grade. He was committed to the Califor- in failing IAC to seek recusal of nia Youth Authority at age thirteen or Metheny. fourteen. Deere continued to cut himself in his Competence III. Deere’s in 1982 adulthood, leaving long deep all scars We remanded 2003 for an evidentiary over body. repeatedly asked hearing on issues related to Deere’s com- Lyon, Alice the mother of his first daugh- petence plead guilty in 1982. After an *38 ter, Once, kill to him. after he had seri- extensive hearing, the district court con- ously hand, cut his police he asked officers cluded that Jones committed in failing IAC to let him occasion, die. On another when challenge to competence Deere’s to plead police found Deere bleeding from six-inch guilty. cuts on both arms and a smaller cut on his agree I with the district court that there chest, Deere refused medical attention. that, is a reasonable probability had attor- frequently Deere came to the attention of ney properly investigated, Deere police local for conduct including alcohol- would have been incompetent found to offenses, related disturbing peace, plead guilty. cow, stealing a possessing a concealed weapon. Background A. Deere had a relationship tumultuous
Deere was born in 1954. He is of Creek Cindy Gleason, the mother of his and Seminole heritage through his father. second daughter. In the Deere six months be- eight was one of very children in a murders, fore the poor family. Deere’s Deere’s self-mutilation father was a violent increased, alcoholic who and he drank abused his wife a fifth of and beat his vodka day. Cindy children until each bled. Deere’s left Deere in January mother sometimes beat him. family taking baby The their moved to to her mother’s Blythe, California, from Oklahoma so that house. began Deere threatening Cindy parents Deere’s could work as farm labor- family, and her including threatening to The supervising psychologist. him and the same Cindy left family members kill Cindy told to set away permanently. supervising psychologist baby took the On the afternoon up appointment. Cindy 12, 1982, Deere and January On 4, Cindy’s former brother-in-law March Erickson Virginia worker met with social up daughters, his two picked Don Davis a seven- noticed Tiernan Tiernan. nieces, Cindy’s for visitation. Witnesses told arm. Deere cut on Deere’s eight-inch evening at a reported seeing Deere himself, he not cut that if he did Tiernan market, local drunk or a daze. That con- Tiernan others. would hurt ill and Cindy and her sister drove mentally night, Deere was cerned that local mental- go that he to the suggested and found the bodies Davis’s trailer at the An intake center. worker health girls. two Davis and the prob- Deere with marital diagnosed center later, days police found Deere Five abuse, person- lems, and antisocial alcohol desert, missing his shirt and shoe. ality disorder. living he had been on police Deere told the Cindy February birds. He had with ditch water and raw separated. again but briefly reconciled Cindy him notes he had addressed and substance Deere’s self-mutilation .22 rifle with Police found a parents. increased, began again abuse “if into the wood stock: writing scratched family. In the Cindy and her threatening got doctor I end the you gone have murders, Cindy and before the two weeks Kathy mean Ronnie I wish understood — two or three called Tiernan her mother now love her —Now live help kill them she asked regularly Tiernan night. times each Shorty you killed them with it for to— life— po- sheriff, department, and probation hurt like me how dose [Cindy] you [sic] threats help, reporting Deere’s lice for feel.” family. Cindy and her against 22, 1982, Cindy called February On Proceedings Leading to B. help. Tiernan asking for Tiernan twice Guilty Plea Cindy get “into advised 9, 1982, of March after theOn afternoon get next day and tried the health” appointment before Deere’s arrest psychiatric on a 72-hour Deere placed counsel, Tommy Bolger inter- defense de- probation advice of the hold. On the jail. at the viewed Deere mental- returned to partment, training. psychiatric formal never received February health center *39 of degree Doctor He had received Deere’s noticed a cut on intake worker be- in 1957 and had Osteopathic Medicine “no there was forearm, but noted that in 1962 as a result Doctor come a Medical and any “danger to self’ indication” Act. Dr. Reunification ap- California keep his Deere to normal instructed working in most of his career Bolger spent next week. for the pointment From prison system. state the California 3, 1982, po- Cindy called On March classifi- under the he worked 1965 to called help. Cindy’s mother lice to for ask II” at Pat- Surgeon and “Physician cation at the mental- supervising psychologist as a He then worked Hospital. ton State center, Cindy’s mother who told health Quentin at San Medical Officer” “Chief and Deere unless she that he not see could and Sur- “Physician and a in prison through proper “the channels.” Cindy went 1975 to 1977. prison from geon” at Soledad for department Cindy probation called a “Staff as received a classification He The March day, next help the vol- in 1977. He at Soledad Psychiatrist” Cindy to call department told probation untarily resigned from state service the recommendation of the prosecutor, the Blythe, where he 1979 and moved to appointed court Dr. Bolger evaluate County as a “medical worked Riverside competence taking before psychiatric consultant.” guilty plea. prosecutor represented The Bolger to the court that Dr. awas board- for an Bolger spoke Dr. with Deere hour psychiatrist. Bolger certified Dr. himself prepared report He and five minutes. stated, represented sometimes police in “His he was a for the which adjudged a nor- capacity psychiatrist, intellectual is dull board-certified though even mal,” “Judgement is narrowed and It appears he was not. to have been com- Bolger provided constricted.” Dr. what he knowledge community mon in the that Dr. “1) “diagnostic impression”: called a Not Bolger qualified psychiatrist. was not a 2) mentally Dependant personality ill[.] Jones, psychologist Dr. William features, type, explosive Alcohol and attorney Jones later retained to evaluate 3) drugs personality factor. Antisocial defenses, Deere for mental health testified features, type, psy- with borderline in the attorney district Dr. Bolger chotic.” concluded: Bolger characterized Dr. sort of a mentally Mr. Deere is not ill. He has a hack. go Blythe, No one else would personality problem. severe He does so him in that used area. It was understand the nature and [sic] psychiatric someone who had no formal against him charges certainly and was training whatsoever[.] forming capаble of the intent and then Dr. Bolger interviewed Deere for about carrying out the action. He is capable 19, 1982, an hour and a half on June cooperating with Counsel his de- fense, if advantage. report he feels it is to his submitted a short to the court on Bolger June 21. Dr. wrote that Deere had Dr. Bolger had interviewed Deere a given intelligence been two tests. In his year earlier connection with treatment earlier report police, Bolger to the Dr. had of Deere’s father for seizures and mental written that Deere’s capacity intellectual problems health linked to alcoholism. At normal,” was “dull and that he had “nar- time, Dr. Bolger had concluded that judgment. rowed and constricted” But in by statements “merely Deere were court, attempt report Bolger June to the Dr. problems [Deere’s] blame his on someone else.” Dr. Bolger reported did not intelligent Deere was report police disclose to the that he good judgment. wrote: previously interviewed and formed an given “He is verbal Wechsler and verbal impression of Deere. He testified in 1986 intelligence] 0[fficer] T[est] scores that he knowledge had had no of Deere adequately in high percentile range.” jail before the 1982 interview. “Judgement as tested verbal skills testing aforementioned verbal day jail after Deere’s excel- interview with Bolger, appointed I.Q. the court lent. ... deputy adjudged His would be to be *40 public defender represent Glenn Jones to high range of normal.” There is no Deere. Deere told Jones that he did not indication in the Bolger’s record that Dr. trial, defense, want a did not want a and report police earlier to the was ever sub- wanted to be executed. Deere to refused to Bolger mitted the court. Dr. did not discuss the facts of the case with Jones report reveal in his to the court that he and on pleading guilty. insisted prepared report police had a for the or initially pled guilty,
Deere but he had interviewed and formed an later change moved to plea guilty. impression to On a year of Deere earlier. Dr. the 7th tested at gence court Scale-Revised” report to the in his concluded retarded. guilty. borderline plead percentile, to competent that Deere I.Q.” tested “at “verbal Deere’s Wechsler to three pled guilty Deere On June also in the borderline percentile, the 6th special admitted a murder and counts (Recall Bolger reported that Dr. range.” the time of At allegation. circumstance “in the court that Deere had scored to the request- attorney Jones plea, Deere’s this same Wech- high range” on percentile psychological a yet had not received ed but test.) further, showed, The tests sler had seen the Attorney Jones evaluation. reading recognition at about Deere had on Deere’s wounds of self-inflicted scars level, percentile in the fifth grade the sixth recog- arms, chest, He had and abdomen. fourth age; spelling persons mental illness possible signs nized level, percentile; in the first grade to from the court funds requested (Jones level, in the grade ulti- arithmetic at the third experts. mental-health retain $5,000 $1,696.86 only percentile. fifth mately spent purpose.) awarded for this the court having an diagnosed Dr. Jones Jones, Ph.D. Dr. William Jones contacted mood, adjustment depressed disorder (no relation), psychologist, and a licenced disorder, bor- abuse mixed substance general psychologiсal a him to do asked with anti-so- personality derline disorder of Deere. evaluation Dr. wrote that Deere aspects. cial Jones to see Dr. Jones. initially refused killed, long-standing desire to be had had a only on the to see Jones agreed He pled guilty and that he so that the State Attorney allow him to Jones condition fulfill this desire: interviewed Deere guilty. Dr. Jones plead forgiven, cannot be He feels that suicide two place took The first interview twice. permissible it for someone but that is The sec- pled guilty. days before Consequently, kill him. he states else to later. place took week ond interview frequently asked others to that he has half, an hour and a first interview took paid kill him and stab him. He has even psy- and a half hours of followed two ap- occasion money for this and on one The second interview chological testing. parently was stabbed. Dr. Jones tes- only thirty minutes. lasted that he does Presently Deere states Mr. re- court that Deere tified in the district happens to slightest in the what not care the second interview complete fused to given is he him. He states not able to deal with because “he was accept it willing penalty death discussing the crime or emotions” impris- it to life prefer indeed would penalty. death would make He thinks this onment. Attorney did not ask Jones better, he is unclear as him feel competence plead Deere’s evaluate if he were would feel better how he in the district Dr. Jones testified guilty. dead. procedure it was standard evidentiary at the Dr. Jones testified give opin- not to profession he had court that hearing in the district unless asked to do so. competence ion on competence, been concerned about that Deere report wrote in his Dr. Jones orally expressed his concerns and had hurting cut himself to avoid frequently attorney Jones: others, very major alcohol abuse “has talked ei- that we I have recollection major drug abuse problem,” “ha[s] *41 on person in or person in believe ther full- that Deere’s reported He problem.” —I I the re- prepared before telephone Intelli- I.Q. Adult on the “Wechsler scale having person’s multiple a—this conversa- work. But if there are port. I recall my vividly in mind more than issues, tion sticks multiple expertise areas of this case. The issue anything else about documents, extensive we’ll often involve hand, my that he on one reservations experts additional on the case. [attorney and on was so self-destructive in high- Dr. Dietz has testified a number of opting ... hand the idea Jones’s] profile criminal cases federal and state was, fact, penalty for the death percent court. In somewhere between 80 for Mr. Deere to do at the thing rational cases, percent to 90 of the Dr. Dietz has fact, not, something re- time and a— prosecution. testified for the flecting incompetence. Dr. Dietz did not interview Deere. He evidentiary hearing When asked at the testified that his declaration and his testi- incompe- in 1982 he had “felt Deere was mony primarily were based on the obser- tent” had “in essence ... told [attor- that,” attorney vations of Jones and to some ney replied, Dr. Jones “Yes.” Jones] reports degree Bolger. on the of Dr. Dr. Proceedings C. District Court declaration, Dietz concluded in his “Mr. conducted The district court extensive was, in my judgment, competent proceedings after our 2003 remand. The court,” by each time he was examined State and Deere both introduced evidence [sic], including the occasion on “6/25/92 concerning competence in 1982. when Mr. Deere advised the court that it change plea was his wish to his from not 1. The Evidence State’s all guilty guilty counts.” Dr. Dietz The State’s evidence consisted of Dr. history symp- testified that Deere’s Bolger’s reports report and testi- “proof’ toms were he had “a border- mony by Dr. Park Dietz. Dr. personality testified, line disorder.” He by died the time of the district court hear- “Mr. personality Deere’s borderline disor- ing, reports so the State relied on the two in my incompe- der did not view make him prepared both of which are tent to enter into the decisions he did in described above. 1982.” Dr. Dietz is a board-certified psychia- diagnosis Dr. Dietz relied for sub- trist, patients but he has not treated since part stantial on a number of statements 1988. He testified that he is the “head” of by attorney made example, Jones. For two corporations, provides one of which expert psychiatric testimony quoted saying, in criminal Dr. Dietz Jones as “He firm employs cases. This a substantial consequences every knows the decision staff of experts disciplines.” “from various made, consequences he’s as well as the Dr. Dietz described the manner in which rational, They his criminal acts.... are prepares firm cases: intelligent decisions a man who realizes
Basically, we seek to obtain all the rele- says, what he has done and ‘This is the vant documents that we can foresee or only position you can take to that I show ” that the client allows us to know exists. am still a man and not an animal.’ typically So we send a list documents Dr. Dietz also testified that he trusted requesting.... we’re And then de- Bolger’s “observations”: case, pending complexity on the Bolger’s report enough contains de- the quantity of the documents some- scriptive Bolger’s information of Dr. ob- expert times more than one will work on support opinion servations to simple it. On a case with a small stack he of- just report. judged by documents often will be one fers in this And *42 self-aware, that the sufferer is him- average it was an such day, standards competency evaluation. average self aware that his actions are “excessive or above or unreasonable.” had Bolger that Dr. Dr. Dietz admitted “estimating” Deere’s in made a mistake Dr. two obvious mistakes in Dietz made in I.Q. He wrote his declaration: First, Dr. testimony. his Dietz stated stan- by faulted Bolger Dr. could be Bolger forgiven merely Dr. could be for estimating Mr. day of the dards I.Q. “estimating” any Deere’s “without IQ high (“high range of Deere’s as too told, Dr. Dietz had not been or testing.” normal”) and for report in his of 6/21/82 remember, that Dr. Bol- perhaps did laudatory writing skill. less than merely “estimated” Deere’s ger had not added.) described in Dr. Dietz (Emphasis Rather, Bolger Dr. intelligence. per- testimony thought how he his district-court separate intelligence formed two tests. “estimate” Bolger had arrived his Dr. report Dr. had stated to the I.Q. “high range was in the that Deere’s given court: “He verbal Wechsler normal”: intelligence] 0[fficer] T[est] verbal Well, impressionistic did was an what he adequately high percentile in the scores intelligence, which was evaluation range.” many people then and fairly common Second, impor- Dr. Dietz minimized the give it which is an off-the-cuff still do Bolger’s tance of Dr. mistaken “estimate” they think someone is of whether idea I.Q. ground on the that there of Deere’s average without average above or below “objective was no evidence” thаt Deere that. And his off-the-cuff any testing of “mentally retarded.” Dr. Dietz had wrong. finding told, perhaps did not remem- not been added.) attorney (Emphasis ber, objective that there was indeed evi- Bolger’s mis- Dr. Dietz whether asked of mental retardation. dence I.Q. of Deere’s take in his “estimate” that he report had stated in his report in his that makes “a fatal error verbal tested Deere’s full-scale and replied, Dr. Dietz conclusion erroneous?” found that Deere was bor- I.Q.s, and had way it could be is it only “No. The turned, derline retarded. that Mr. by objective out evidence (Emphasis mentally retarded.” Deere was
added.) Evidence 2. Deere’s had concluded 1982 that Dr. Jones at the district court Deere’s evidence incompetent plead guilty be- Deere was primarily of evidentiary hearing consisted long compulsion felt a to seek cause he had Jones, by four doctors—Dr. evaluations death, kill wrong it for him to had felt that Rosenthal, Favaz- Dr. Armando Dr. Fred himself, killed and had desired to be za, Dr. Pablo Stewart. Two profes- else. Deere’s three other someone interviewed personally doctors had four agreed Dr. Jones’s sional witnesses All of them concluded Deere. four illnesses conclusion that Deere’s mental plead guilty competent Deere was not to die and thus his compulsion drove his guilty. Dr. Dietz disa- plead decision to above, interviewed noted Dr. Jones As that Deere had a greed with the conclusion just just before and Deere twice However, his to seek death. “compulsion” guilty, prepared pled after Deere a narrow tech- disagreement was based on wrote report. Dr. Jones contemporaneous that re- “compulsion” nical definition of in a 1993 declaration: of the disorder to be quires the sufferer *43 compulsion okay ... had a to be would be Mr. Deere someone else killed view, punished penalty with the death and did him.... In my wanting his anyone to interfere with that. want penalty just death ... an kind of pleading guilty Mr. Deere’s insistence on amount of extreme masochistic behavior compulsion part out- self-destruction, destroy efforts to disturbances; growth of his mental it strongly himself. He was motivated Mr. was irrational.... Deere was ex- that direction at that time. tremely begin self-destructive to my Dr. Jones testified further “that was throughout and teetered his life on the conclusion, 1982,] that [in some of his act- suicide, as edge of evidenced most dra- ing quite prov[o]cative out behavior was matically by history his of self-mutila- others, my towards belief was that he sum, appeared tion. ... In it to me that desired ... to be killed.” Jones testi- Mr. Deere was so bent on self-destruc- him fied that Deere told that he had even it him cooperat-
tion that disabled from paid others to kill him. way in a ing meaningful presen- with the Dr. Rosenthal is a psy- board-certified tation of a defense and caused him to chiatrist. He examined Deere twice in penalty.... solicit the death Mr. December 1992 prepared a declaration personality was one of denial early Rosenthal concluded inadequacies, ability about his and his incompetent Deere was in 1982. He correctly perceive reality was limited. wrote his declaration: It would been have naive to take Mr. purported Mr. Deere a guilty enter Deere at face value because he was not plea, but arrived at that decision under thinking logically. compulsion pressure and substantial Dr. Jones concluded: person from a on whom he was extreme- In my opinion, which I hold to a reason- ly dependent. solitary He was held degree professional able certainty, confinement constantly and made aware Mr. competent Deere was not to aid and against by of threats his persons life- assist counsel in the of a conduct de- jail. inside and outside the He was re- fense in a rational manner due to his peatedly interrogated, including three disabilities, mental compelled which him interviews his former common-law to seek death. Mr. simply wife, Gleason, Cindy and he was re- logical not able to make judgments peatedly told that he defense; had committed the rather, about his crimes and compulsion deserved to die. punished to be with the penalty death anyone and did not want There is substantial evidence that his to interfere with that. Mr. Deere’s in- thought processes illogical were and dis- on pleading guilty sistence was an irra- during period turbed of his incarcer- tional part compulsion of that and an example, ation. For he continued to outgrowth of his mental disturbances. Gleason, Cindy proclaiming write to her, love despite repeated her insis- Dr. Jones testified the district court tence he deserved to die and was to the same effect as his 1993 declaration. than a man.... less emphasized He that Deere had wanted someone to kill him long before the mur- my professional opinion, which I ders: degree hold to a reasonable of medical certainty, multiple Mr. Deere’s reported
[Deere] that he had asked oth- people er kill him impairments, by pressures before. He did not exacerbated suicide, believe in but he it girlfriend believed from his former and the condi- abuse, confinement, depression, possible rendered him substance tions *44 rationally comprehend him organic damage brain rendered incom- incompetent or to aid and assist proceedings trial petent. Dr. Stewart’s assessment of in the conclu- at trial. concur counsel competence matched that of Drs. Deere’s Jones, Ph.D., who exam- of sion William Jones, Favazza. Rosenthal and He testi- plea, the time of his ined Mr. Deere at fied: he was not com- and would have advised record, totality Based on the of the it is trial.
petent to stand my opinion pleading [Deere’s] not been able to Because the State had guilty wishing and to be executed was 1982, after and because examine Deere independent not an decision but rather might concern that it therefore there was by, by[,] affected and was a re- colored testimony Dr. unfair to allow about be underlying psychiatric sult of his condi- Deere, 1992 Rosenthal’s examination tion. his inter- Dr. Rosenthal did not describe testi- with Deere his district-court views 3. District Court Decision However, Dr. Rosenthal’s 1998 mony. requires Ineffective assistance counsel into the district- was entered declaration showing performance a of both deficient record. Washington, v. prejudice. Strickland Favazza is a board-certi- Dr. Armando 668, 687, 2052, 104 466 U.S. S.Ct. 80 expert He is an on the psychiatrist. fied (1984). L.Ed.2d 674 The State does not cut people who themselves. psychology deficiently. dispute performed that Jones personal Dr. Favazza reviewed only It that there was a lack of contends records, noting Deere’s trou- history and Prejudice requires that there prejudice. family history, alcohol bled violent probability” be a “reasonable coun- abuse, depression, “prodigious” and his performance sel’s deficient affected Favazza concluded Dr. self-mutilation. wrote in outcome of the case. The Court incompetent 1982 be- that Deere was Strickland, believe that a defendant “[W]e “pathological fixed possessed cause he con- need not show that counsel’s deficient Dr. Favazza idea that he must be killed.” likely than not altered the out- duct more idea, formulat- that Deere’s fixed testified The defendant must come in the case.... early ined childhood probability show that there is reasonable very day him to this remained with that, er- unprofessional for counsel’s core, central, idea and pathological is a rors, proceeding the result preventing cooperating is him from proba- A reasonable have been different. die, and just counsel. He wants to to under- bility probability is a sufficient right now perfect he’s in a situation outcome.” Id. at mine confidence him, kill he can have the state because added). 693-94, (emphasis 2052 104 S.Ct. and this is what he wants. 419, Kyles Whitley, v. 514 U.S. See also Dr. Pablo Stewart board-certified 1555, L.Ed.2d 490 S.Ct. He is also an examiner with psychiatrist. Clark, (1995); 608 F.3d Howard v. Psychiatry the American Board Cir.2010). (9th certifica- Neurology, grants which board that Deere court held estab- district psychiatrists. Dr. Stewart also tion Dr. Jones IAC Jones. Because lished history and rec- personal reviewed Deere’s who only professional qualified was the that Post-Traumatic ords. He concluded exami- contemporaneous performed primary con- Disorder was Deere’s Stress nation, heavily on Dr. dition, court relied most with Deere’s and that its interaction relied, question. fundamentally, More Dr. Bol- conclusion. The court also Jones’s the conclusion of though heavily, ger’s less and Dr. Jones’s conclusions about Rosenthal, Dr. who examined Deere strikingly Deere’s mental state were dif- on the conclusions of Drs. Favaz- Indeed, Bolger ferent. Dr. wrote two re- za The district court dis- and Stewart. ports, whose conclusions are themselves Bolger’s conclusion on the counted strikingly different. ground unqualified that Dr. was an (which Bolger’s report police to the *45 qualifications. evaluator who lied about his court) may not have been submitted to the The court considered Dr. Dietz’s conclu- “diagnostic contained a impression” sion, contrary weighed against it “[ajntisocial had, alia, per- inter an Jones, Rosenthal, Fa- conclusions of Drs. features, sonality type, with borderline not
vazza and The court held that Stewart. psychotic.” It having assessed Deere as that, probability there was a reasonable capacity,” “dull normal” “intellectual attorney adequately developed Jones having judg- “narrowed and constricted” the record Deere would have been Bolger’s report ment. Dr. to the court guilty. incompetent plead found The very described a different mental state. gave forty- its reasons in a careful Bolger Dr. stated that Deere had scored nine-page agree order. with the district “in high percentile range” I.Q. on two court. tests, one of which was the Wechsler Ver- further, I.Q. Bolger bal test. Dr. wrote Majority’s Disagreement
D. “Judgement by as tested verbal skills with the District Court testing aforementioned is excel- verbal majority disagrees with the district I.Q. lent. ... adjudged His would be to be unconvincing. court. Its reasons are high range Bolger of normal.” Dr. First, majority heavily relies on Dr. displays concluded: “He no evidence of Bolger’s compe- conclusion that Deere was psychosis or thinking abnormal and of It mightily Bolger tent. tries to make Dr. course no mental illness is evident.” into something unqualified other than an Dr. provided single report, Jones imposter, repeatedly referring to Dr. Bol- based on two testing. interviews and Dr. ger “psychiatrist” refusing provided Jones a more extensive admit that Dr. discus- Bolger lied when he background sion of Deere’s testimony family claimed sworn that he was his- psychiatry. tory board-certified in than Op. Bolger’s reports. at 1125- either of Dr. However, 1127-28 and n. 1145-46. Bolger, provided only Unlike Dr. who parties jointly stipulated in the district a “diagnostic impression” in his first re- court: “Dr. was never certi- board port “diagnosis” and no at all in his second fied, and his educational credentials did report, provided diag- Dr. Jones a formal qualify him for board certification.” “Adjustment nosis: disorder with de- mood[;] pressed Mixed substance abuse
Second, majority contends that Dr. disorder, alcohol, including abuse of mari- Bolger and Dr. Jones came to the same juana, stimulants, etc.[;] a[m]phetamines, conclusions about competence Deere’s personality Borderline anti- disorder with atOp. 1145-46. This is not true. aspects.” Bolger, social Also unlike Dr. matter, preliminary As a I note the obvi- reported who had in his report first Bolger’s report responded ous: Dr. to the average intelligence, Deere had above Dr. question court’s whether Deere com- petent plead reported Jones guilty. Dr. Jones’s 1982 Deere was borderline report purport did not to answer that retarded. layperson may pick up things suggest Dr. important, provided Jones
Most that was analysis competency. of Deere’s mental state there’s some doubt about It Bolger’s either of Dr. entirely lacking rely from be a layper- mistake on the described Deere’s reports. Jones judgment son’s to assess whether some- desire to die at someone long-standing body competent competent.” is or not hand, desire to else’s which had led to his professional Deere’s witnesses cautioned wrote, “He feels plead guilty. against being taken in apparent forgiven, but that it that suicide cannot be rationality. Dr. Rosenthal testified that for someone else to kill him. permissible taking says “what the client at face value” he states that he has fre- Consequently, trap. can be real Because one of the others to kill him and stab quently asked problems understanding of not much paid money him. He has even for this and way pres- about mental illness and the it apparently occasion was stabbed.” on one you get people telling ents is that can *46 Dr. wrote in the last two sentences Jones you very that things legitimate look report: “There are self-destructive his they’re really not and reasonable when inclinations, ex- they but are blocked from person operating entirely the is in an acting out pression suicide. Some of his you’re in. different world from the one may get have been an effort to behavior agreed. Dr. Favazza He concluded that kill others to him.” attorney Deere tricked Jones into believ- Third, majority the relies on the obser- that Dr. ing his decision was rational. Jones, Judge Metheny, attorney vations of testified, you “I did not think that Jones that prosecutor. emphasizes and the It take Mr. Deere at face He—I could value. opportunities to observe people these thinking don’t think he used his rational Deere, and that none of them concluded life, doing anything much of his but he incompetent plead guilty. that he was fact would offer rationalizations after the I periоd The relevant time so do at times.” Judge Metheny’s not discount observations Fourth, majority contends ground incompetent. on the that he was transcripts facts of the crimes and the opportunities I that the But do note guilty plea proceedings Deere’s show that by Judge Metheny observation and the reality,” he was not “out of touch with prosecutor limited. were “actually go- understood what was important, More mental illness is often majority miss- ing Op. on.” at 1146. The by lay person. detectable Dr. Stew- not Jones, Rosenthal, point. Drs. Fa- es mentally who ill art testified that those are vazza, and Stewart did conclude “people and that symptoms, often “mask” plead guilty incompetent Deere was justice system go to in the criminal will reality from based on a disconnection severity hide the of men- great lengths to understanding him from what prevented fact, where, tal illness their behavior is Rather, they concluded “going on.” way but it’s not seen that incompetent, his that Deere’s mental illnesses drove it illness.” cause don’t see as mental hand of some- strong desire to die further that “the fact Dr. Stewart testified long predated This desire his one else. bailiffs[,] counsel, judge, all crime, him to strongly compelled and so people thought compe- these other he was prevented that he was from plead guilty tent, help way that doesn’t me one or the a rational choice. making also testified that a other.” Rosenthal writes, majority “Eleven Finally, based competency determination cannot be pled guilty, habeas coun- “I think the after Deere layperson’s on a view: don’t investigate competence plead Deere’s newly-obtained forward with sel came plea that Deere’s was guilty to the effect in 1982. opinions put irrational desire to be by motivated emphatically dissent. respectfully death, incompetent him rendering Op. dispar- at 1146. plea invalid.” opin- “these belated aging what it calls
ions,” re- majority ignores Jones’s at 1147. Dr. Op. in 1982.
port, prepared report long- in his described by to be killed someone standing desire else, seeking penalty the death such that being fulfill that Far from desire. contemporane- opinion,” “belated this is CORRO-BARRAGAN, Elisned Carine only qualified profes- opinion ous Petitioner, who examined Deere sional professional other wit- Deere’s three v. Dr. Jones. All four agreed nesses HOLDER, Jr., Attorney Eric H. thing testified to the same witnesses —that General, Respondent. impairments Deere suffered from mental *47 compulsion to seek death at producing No. 08-74697. else, plea that a the hand of someone satisfy guilty followed execution would Appeals, United States Court of need, deep-seated and irrational Ninth Circuit. prevented compulsion and that Deere’s making him from a rational choice. March Submitted 2013.* Favazza, just words of Dr. “He wants to die, right in a situation Decided June 2013. perfect and he’s him, can state kill now because he have the
and this what he wants.”
Conclusion greater judicial responsibili- There is no ty deciding person than whether shall live or at the hands of the state. The die
majority grievous holding makes a error hearing required that no on the com- Metheny to petence sentence majority The Deere to death similarly holding hearing errs that no required as to whether Jones was failing disqualify ineffective to seek to Judge Metheny. Finally, majority holding
errs in that Jones did not commit in failing ineffective assistance of counsel * 34(a)(2). panel unanimously R.App. concludes this case is See Fed. P. argument. without oral suitable for decision