D.C. No. CV-99-02016-SMM.
The opinion of the court was delivered by: Reinhardt, Circuit Judge
Petition for Writ of Mandamus
Before: Stephen Reinhardt, Marsha S. Berzon and Milan D. Smith, Jr., Circuit Judges.
Ernest Valencia Gonzales seeks a writ of mandamus to stay his district court federal capital habeas proceedings under Rohan ex rel. Gates v. Woodford, 334 F.3d 803 (9th Cir. 2003). There, we held that when a capital habeas petitioner "raises claims that could potentially benefit from his ability to communicate rationally," id. at 819, his statutory right to counsel includes the right to competence during habeas proceedings. The district court denied Gonzales's motion for a competency determination under Rohan because "[Gonzales's] properly-exhausted claims are record-based and/or resolvable as a matter of law, irrespective of [his] capacity for rational communication with counsel," and therefore "cannot benefit from [his] personal input." Our recent decision in Nash v. Ryan, 581 F.3d 1048 (9th Cir. 2009), is to the contrary. In Nash we held that the prosecution of a habeas appeal that is record-based and resolvable as a matter of law can benefit from communication between client and counsel. Id. at 1054-55. Because we conclude that Nash controls this case, we hold that, although Gonzales's exhausted claims are record-based or legal in nature, he is entitled to a stay pending a competency determination.
In 1991, Gonzales was convicted of first-degree murder and sentenced to death. After pursuing state remedies, he sought a writ of habeas corpus in federal district court in November 1999. On February 23, 2006, after the district court had resolved the procedural status of Gonzales's claims and established a deadline for his merits briefing of nonprocedurally barred claims, Gonzales's counsel moved to stay the proceedings pending a competency determination pursuant to Rohan, 334 F.3d at 814-15. Gonzales's attorneys indicated that their client's assistance was essential to a number of his remaining habeas claims, and that due to a progressive deterioration in Gonzales's mental health he had lost the ability to rationally communicate with his counsel and assist them.
In response, the district court initiated proceedings to determine Gonzales's competency and ordered the parties to submit expert reports on Gonzales's mental health. The district court granted the government's motion to transfer Gonzales to Arizona State Hospital for an extended mental health assessment. The product of that assessment, a report by supervising psychologist Dr. James Seward, expressed "reservations concerning the veracity of Mr. Gonzales's symptoms," but concluded that he suffered from a "genuine psychotic disorder" and was "currently . . . unable to communicate rationally for any extended period of time, such as would be required by a legal proceeding."
Gonzales's attorneys submitted to the district court a list of pending habeas claims that they contended could benefit from rational communication with their client, including a claim that Gonzales's Sixth Amendment rights were violated because the trial judge was openly hostile toward Gonzales and refused to recuse himself. The district court determined that Gonzales was not entitled to a stay under Rohan even if he had a psychotic condition rendering him incompetent to confer with counsel. The district court held that Gonzales's claims, including his claim of judicial bias, were all "record-based and/or resolvable as a matter of law," and accordingly could not benefit from his ability to communicate rationally with counsel, as required by Rohan. 334 F.3d at 818-19. Having so ruled, the district court did not hold a hearing to determine whether Gonzales was in fact incompetent to communicate meaningfully with counsel for purposes of a habeas proceeding.
Gonzales filed an emergency petition for a writ of mandamus, and we ordered a temporary stay of the district court's proceedings to allow us to consider the petition. We also stayed our own proceedings pending the resolution of Nash. Having issued our decision in Nash, we now lift the stay on our proceedings and address the merits of Gonzales's petition for mandamus.
 Nash held that the prosecution of a capital habeas appeal, which is necessarily confined to the record, could benefit from communication between client and counsel. 581 F.3d at 1050 ("While an appeal is record-based, that does not mean that a habeas petitioner in a capital case is relegated to a nonexistent role."). Specifically, we concluded that Nash's claim of ineffective assistance of counsel could benefit from his ability to communicate rationally with counsel even though his appeal was record-based. 581 F.3d at 1055. We held that
[t]he need for rational communication here is particularly important because Nash has been assisted by several attorneys over the years . . . . The information that Nash possesses would provide first-hand insight into the earlier proceedings, insight that might be helpful in ways that Nash's ...