The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
FINDINGS & RECOMMENDATIONS
With increasing frequency, at least from the undersigned's anecdotal experience, capital habeas petitioners seek to halt federal habeas proceedings they instituted, presumably when competent, on account of present incompetency. However, the right to do so is now well established in the Ninth Circuit. The parties' counsel have presented two starkly different reports of petitioner's competency from their experts. Petitioner's expert delivers a report which would undoubtedly give rise to a conclusion of incompetence; respondent's expert paints a picture of a person who could undoubtedly assist his counsel sufficiently such that there is no question these proceedings should continue. Petitioner's counsel, at the invitation of the undersigned, testified to his sometimes problems with petitioner.
The above evidence, for the most part, are snapshot pictures of petitioner on particular days at particular times. There exists no documented medical history at San Quentin, presented to the court, which would in any way suggest that petitioner suffers from a mental illness, of such present significance, that he cannot understand his habeas proceedings, or more importantly, assist his counsel in investigating issues in this case, as counsel could possibly be assisted in now investigating decades old events. Moreover, the undersigned would have been aided by reports whose examinations were videotaped in order that the eye could assist in this competency determination as well as the ear. Neither side presented such evidence.*fn1 Petitioner's counsel also chose not to present his client for any type of in-court testimony, or even videotaped deposition testimony.
In sum, although the undersigned accepts petitioner's counsel presentation that there are times in the recent past that petitioner was not able to rationally assist counsel due to his mental problems, insufficient evidence has been presented that these periods are sufficient in duration to have precluded counsel from acquiring the basic assistance that any sufficiently rational petitioner would be able to give about his now long-ago trial proceedings or life events. Insufficient evidence has been presented that petitioner was, at the time of the evidentiary competency hearing, incompetent. Without assigning a burden to either party, the undersigned finds that petitioner is not presently incompetent, and recommends that the case not be stayed.*fn2
There is no doubt in the Ninth Circuit that habeas proceedings must be stayed if the petitioner is determined to be incompetent to proceed. Rohan ex rel Gates v. Woodford, 334 F.3d 803 (9th Cir. 2003). The standards utilized are essentially the same as utilized for trials. At trial, competence is defined as the ability to understand the proceedings and to assist counsel in preparing a defense. Miles v. Stainer, 108 F.3d 1109, 1112 (9th Cir.1997). A competent defendant possesses "sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and a rational as well as factual understanding of the proceedings against him." Rohan, 334 F.3d at 808 (quoting Cooper v. Oklahoma, 517 U.S. 348, 354, 116 S.Ct. 1373, 134 L.Ed.2d 498 (1996)); see also Indiana v. Edwards, --- U.S. ----, 128 S.Ct. 2379, 2383, 171 L.Ed.2d 345 (2008) (noting distinction between defendants competent to be tried and defendants competent to defend themselves). As Rohan, Holmes and the above discussion make clear, competency to pursue federal habeas relief in a death penalty case requires that the petitioner possess essentially the same mental capacity that renders him competent to stand trial: the ability to understand and communicate rationally with counsel when necessary. See Rohan, 334 F.3d at 813; see also Holmes, 506 F.3d at 579; Mae C. Quinn, Reconceptualizing Competence: An Appeal, 66 Wash. & Lee L.Rev. 259, 301-02 (2009) (discussing Rohan and Holmes's approach to competence in post-conviction proceedings). With these fundamental principles in mind, we turn briefly to the evidence we have deemed sufficient to warrant a competency determination in similar contexts.
Nash v. Ryan, 581 F.3d 1048, 1057 (9th Cir. 2009) (competency on appeal case).*fn3 Petitioner need not prove prejudice if he is incompetent; proceeding when the petitioner is incompetent is structural error.
Conducting an entire habeas proceeding while a petitioner is incompetent is no different. If this error would be structural and thus fatal even if the government could prove absence of prejudice post hoc, it follows a fortiori that the petitioner need not prove prejudice ex ante.
Rohan, 334 F.3d at 818 (emphasis in original).
The problem encountered by the undersigned in this capital habeas proceeding (and probably many other proceedings) is that petitioner's competency is not static. Unlike death penalty trials, whose proceedings are relatively rapid compared to post-trial attack, state appellate and state/federal capital habeas proceedings are unable to be consummated for decades in California. There may well be periods of time when assistance with counsel is not possible; but there also may well be times when such assistance is available. One might presume that counsel can get all the assistance counsel requires during the "good times," and that after some period, there is simply no more assistance needed (or wanted). The undersigned is unaware of any answer to this question, and must presume that the Ninth Circuit requires a present ability to assist, whether or not assistance after so many years in the process seems practically necessary.
This case has encountered numerous motions and rulings on the merits of claims which need not be recounted here. The genesis of petitioner's motion to stay proceedings commenced with the motion for evidentiary hearing on certain remaining claims, which was heard by the undersigned on June 14, 2007. During that hearing the undersigned commented upon the lack of evidentiary support which would warrant an evidentiary hearing on mental health and other problems, and gave petitioner two weeks to file same. After an extension of time was granted, the first Declaration of Dr. Pablo Stewart was filed on August 9, 2007. On or about November 25, 2008, while working on adjudicating hearing issues, the undersigned noticed for the first time that the Stewart Declaration contained opinions of petitioner's present incompetency.*fn4 Petitioner was thereupon ordered to file a motion to stay the proceedings, or file a statement providing that petitioner was not challenging his competency to proceed.
Petitioner filed his motion to stay on January 30, 2009. After a number of granted extensions of time, respondent opposed the motion on the merits; an evidentiary hearing was held on October 21, 2009 in which Drs. Stewart and Ponath (for respondent) testified (out of order) as well as petitioner's counsel. By agreement at hearing, the parties desired their experts to confer after hearing to determine if the testimony given had changed either or both of the experts' opinions. After conferring, a statement was filed on October 30, 2009, which indicated no change whatsoever had taken place.
The initial Stewart declaration, which commenced the competency inquiry, provided that in the course of "ordinary" habeas investigation, petitioner was first evaluated by Dr. Stewart on March 11 and March 13, 2003. Dr. Stewart recounted that petitioner "demonstrated paranoid delusions, ideas of reference, loose associations, pressured speech, clanging associations, and inappropriate affect." Stewart Declaration (First) at 5. For example, petitioner "frequently used nonsensical clang associations such as 'Between 6 to 9, 9 to 6, 96, 69 I don't remember anything. I rolled up my six year old memories and I sit down and lose my memorization.'" Id. Further quotes certainly illustrated a disturbed individual who was in need of much assistance, and could give little, if any in return: "[Petitioner's] responses to my questions during the March 2003 evaluations reflected markedly grandiose and paranoid delusions. When I asked how he was doing, he responded in a conspiratorial and knowing manner, 'A guy came and asked me if I have coffee. A couple of days later he comes by and asks if I need coffee. So why is he doing that? Why is he asking? He's trying to get at me. He's trying to tell me I need to join or they're going to get me. Worse, me and mine, which isn't good for Meeny and Moe.'".... Declaration (First) at 6. "[Petitioner] was preoccupied with religious references that he explained in illogical terms, such as frequently discussing Eve and 'her ovulation, evolution. She is not ready for motherhood so there is no ovulation... She's not ready.
It's a mind thing. If I focus, somehow it infects Cain....'" Id.
No motion or other reference to the 2003 evaluations was made to the court at this time, 2004, 2005, or 2006. Dr. Stewart again evaluated petitioner on July 19, 2007: "On this occasion, [petitioner] exhibited signs of psychotic thought process while presenting as much improved from previous examinations. He appeared neat and well-groomed, his affect was less grandiose and he was not overtly preoccupied with frankly paranoid delusions as on the earlier occasions." Declaration (First) at 7. Dr. Stewart thought that petitioner was "guarding against appearing mentally ill, but marked by evident indications of psychotic ideation."
Dr. Stewart also gave petitioner MacCAT, a test to determine competence. Petitioner did poorly in 2003, but by 2007, "[petitioner's] score on the Understanding section...measured in the range of minimal to no impairment." The test also included a "Reasoning" section; petitioner's improvement from 2003 was again noted: "During later testing in July of this year, [petitioner] improved measurably, to a score of 10, on the Reasoning section, but was still in the mild impairment range." Despite these improvements, Dr. Stewart opined that petitioner "still lacks the ability rationally to assist his counsel." Declaration (First) at 12-13. Petitioner was declared by his expert as "not competent to stand trial." Declaration (First) at 14.
In preparation for counsel's required statement of position to the court in respect to petitioner's competency, Dr. Stewart penned another declaration on January 27, 2009 (Declaration (Second). This declaration spoke of a visit to petitioner in May, 2008 and January 22, 2009. Dr. Stewart noted his impression that "[petitioner's] overall presentation in both May 2008 and January of this year was very consistent with the clinical presentations noted during the previous assessments of his mental functioning," but he did not relate whether "previous" referenced 2003 or the improved 2007. Dr. Stewart focused on petitioner's inability to "self-direct" giving examples of petitioner's getting off track and stuck there when asked a question, and his inability to intelligently respond to questions. An example of his obsessiveness involved his belief that the former Surgeon General, C. Everett Koop, held the keys to a successful defense in this case. Stewart again opined that petitioner was incompetent at that time.
Respondent's expert, who himself practiced psychiatry full time at San Quentin, Roderick Ponath, gave a strikingly different picture of petitioner as of April 2009. Although he diagnosed petitioner with a mental disease of psychotic disorder, not otherwise specified, petitioner was characterized as a person with "residual aspects of a thought disorder which are currently manifested by mostly mild to occasionally moderate impairments with odd and eccentric ideations and a tendency to circumstantiality in his thought process associations, such that he does not become frankly disorganized, but does at times wander off the point, while responding to containment and redirection back." Ponath Report, Exhibit 1at 1.
Of most significance to the undersigned was the striking contrast in petitioner's ability to respond to specific questions about his habeas case without engaging in nonsensical syllogisms, an ability quite apparent from the trial transcript as well.
Mr. Lewis related his understanding of his position in the appeal process by referring to his original attorney at his trial, Russel Schwartz, then his first appeal attorney, Mark Stoleman, and his current attorney, Dave Senior. He identified each by name and role in his case. He added that there were also paralegals involved headed by Scarlet Nerad in an office in San Francisco, one of whom was Laura. (He gave me the office telephone number, permission to contact her, and the call rang directly to the intended party, whom I later learned was with Capital Appellate Project).
He said that he understood the appeal process took him from the state court to the state appeal court and to the state supreme court, with the need to exhaust appeal at each level, before it was turned over to the federal court. When asked to identify issues in his case which were being appealed, he listed three: 'I just went through them last night: Ineffective assistance of counsel by my original attorney at trial and then my first appeal attorney...Prosecutorial misconduct: they did not submit information to me that they should have for my defense...and Jury misconduct: they didn't answer truthfully in the voir ...