The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
FINDINGS & RECOMMENDATIONS
It should come as no surprise, given the history of this case, that this very procedurally complicated capital case has become even more so. The precise issue here is whether exhaustion principles require that a state court retrospective competency determination, previously mandated by a federal court ruling on a habeas petition, must be exhausted at all available levels before return to federal court to contest that state court determination. Although petitioner's arguments in this rather infrequent procedural situation are not without color, the undersigned finds that petitioner may not return to federal court to contest the result of a retrospective competency hearing unless and until he has exhausted all available state court remedies.
Only the procedural facts pertinent to the retrospective competency hearing shall be set forth here. Those facts were well set forth in the Ninth Circuit opinion in this case addressing, in part, the entry of partial judgment and deferral of penalty phase claims.
Stanley's case was transferred to Butte County in 1982 where it was tried by retired Butte County Superior Court Judge Jean Morony. After a seven-month trial, the jury found Stanley guilty of arson, burglary, first degree murder, and the special circumstances that Stanley intentionally killed the victim while lying in wait and that Stanley killed the victim for the purpose of preventing her from testifying in a criminal proceeding. In a separate proceeding, the court and jury found true additional special circumstances. Judge Morony held a penalty phase trial beginning in August 1983. Defense counsel intended to present as mitigating evidence the testimony of psychiatrist Dr. David Axelrad and videotaped interviews of Stanley he conducted. Stanley changed his mind repeatedly over the course of several days and ultimately refused to waive his psychiatrist-patient and Fifth Amendment privileges in order to permit his attorneys to call Dr. Axelrad or present this evidence to the jury. Arguing that Stanley was interfering irrationally with their "entire mitigation strategy," defense counsel moved for competency proceedings under California Penal Code § 1368. Section 1368 provides that either counsel or the court may move for a hearing to determine whether a criminal defendant is competent to stand trial. Judge Morony denied the § 1368 motion twice, finding both times that there was insufficient doubt as to Stanley's competency to warrant a § 1368 hearing. When counsel made the motion a third time, Judge Morony finally granted it. He suspended the penalty phase trial and kept the jury on call pending a determination of Stanley's competency.
A month-long competency trial, with a separate jury, was held in Butte County before Superior Court Judge Reginald M. Watt. In November 1983, that jury returned a verdict that Stanley was competent within the meaning of California Penal Code §§ 1367 and 1368.
Judge Morony then resumed the penalty phase trial before the original jury. By this time, Stanley had changed his mind again. He permitted Dr. Axelrad to testify and allowed his counsel to play the tapes of the Axelrad interviews. On December 28, 1983, the original jury returned a verdict of death.
On April 10, 2007, Judge Hollows issued Findings and Recommendations ("F & R") recommending granting relief on Claim 21 of Stanley's amended petition. Claim 21 alleged that a juror in the competency trial had engaged in misconduct by failing to disclose facts during voir dire and by lying about her ability to be impartial. Judge Hollows found that the juror had engaged in misconduct that warranted invalidation of the competency verdict. Judge Hollows recommended that the district court remand to the state court to determine whether a retrial on the question of Stanley's penalty phase competency would be feasible. Judge Hollows also recommended that once the district court adjudicated Stanley's guilt phase claims, the remaining penalty phase claims be held in abeyance pending the state court's determination concerning the feasibility of a retrial.
District Judge Damrell adopted the F & R on the competency juror misconduct claim. Judge Damrell rejected Stanley's contention that the federal court, rather than the state court, should determine whether a retrial on competency is feasible. He concluded that the F & R's suggested remand procedure "makes practical sense and ensures the most efficient use of the court's resources."
On August 29, 2007, Judge Hollows issued an F & R recommending the denial of relief on all of Stanley's pretrial and guilt phase claims and the deferral of adjudication of the remaining penalty phase claims. The F & R recommended denying relief as to the following guilt phase issues relevant to this appeal.... Stanley v. Cullen, 633 F.3d 852, 857-859 (9th Cir. 2011).
Complex proceedings commenced in state court regarding the remand on competency issues; however, all the detail surrounding those proceedings, and alleged deficiencies therein, are not germane to the exhaustion question. Suffice it to say that the state court determined that a retrospective competency hearing was possible, and upon holding such a hearing, determined that petitioner Stanley was competent at the time of his penalty phase. No appeal or other review was sought by petitioner concerning the trial court's determination.
Stanley complains of certain deficiencies in the state court proceedings on remand, and made known to this court what his claims were in this regard. (Docket # 887.) The undersigned held a status conference on May 31, 2012, and inquired why no review, i.e., exhaustion, was sought for the claims regarding the recent competency ...