United States District Court, N.D. California
ORDER RE DETERMINATION OF COMPETENCY FOR EXECUTION
EDWARD M. CHEN, District Judge.
Petitioner is under a sentence of death. He has filed a motion for determination of competency for execution. After having reviewed the pleadings in this matter, and after oral argument from the parties, the Court hereby enters the following Order.
II. FACTUAL AND PROCEDURAL BACKGROUND
In 2011, this Court stayed proceedings in this matter pending a determination of Petitioner's competency to assist in the prosecution of his petition. Experts for both Petitioner and Respondent submitted reports, and both parties submitted statements regarding Petitioner's competency. (Doc. Nos. 102 & 103).
Both parties agreed that Petitioner is incompetent. (Doc. No. 102 at 3; Doc. No. 103 at 2). Dr. Amanda Gregory, a neuropsychologist retained by Petitioner, diagnosed Petitioner as suffering from Dementia Due to Head Trauma and possibly a Bipolar Disorder (Gregory Report at 14-15); see Am. Psychiatric Ass'n, Diagnostic and Statistical Manual of Mental Disorders (hereinafter DSM-IV-TR) 164, 382-401 (4th ed. text rev. 2000). Dr. Robert H. Hines, Jr., a psychiatrist also retained by Petitioner, diagnosed Petitioner with Dementia Due to Multiple Etiologies and provisionally a Bipolar Disorder. (Hines Report at 5); see DSM-IV-TR 170-71, 382-401. The diagnosis by Respondent's expert, forensic psychologist Dr. Daniel A. Martell, included Dementia Not Otherwise Specified and Schizoaffective Disorder, Bipolar Type. (Martell Report at 15); see DSM-IV-TR 171, 319-23. In short, Petitioner suffers from one or more severe and chronic psychiatric disorders including dementia, due at least in part to organic brain dysfunction caused by frontal-lobe encephalomalacia, and Petitioner is unable to make rational choices or to communicate rationally with counsel. (Doc. No. 102 at 2; Doc. No. 103 at 2.) "Furthermore, Respondent does not contest the opinion of [P]etitioner's expert psychiatrist, Dr. Robert Hines, that [P]etitioner has an extremely poor prognosis for return to competency, and Respondent does not seek compulsory treatment of any sort to be administered to [P]etitioner, " Doc. No. 102 at 2 (citation omitted); Doc. No. 103 at 2-3 (citation omitted). In other words, as this Court found and concluded in its Order of July 16, 2013, based on the expert reports and submissions of the parties, Petitioner is permanently incompetent and his competency cannot be restored. Additionally, the Court found that based on his permanent incompetency, Petitioner can never be retried, and Petitioner likely would remain a ward of the state for the rest of his life. Id. at 4.
At the time the competency proceedings commenced, this finding effectively would have ended litigation in this action, as the Court would have been required to enter a permanent stay of further proceedings. See Rohan ex. rel . Gates v. Woodford ("Gates"), 334 F.3d 803, 819 (9th Cir. 2003). More recently, however, the Supreme Court abrogated Gates and held that an incompetent capital prisoner has no right to an indefinite stay of habeas proceedings. Ryan v. Gonzales, ___ U.S. ___, 133 S.Ct. 706-09 (2013). The Supreme Court further held that while the decision to grant a temporary stay is within the discretion of the district court, an indefinite stay is inappropriate if there is no reasonable hope the petitioner will regain competence in the foreseeable future. Id. Accordingly, in that same Order of July 16, 2013, without making a determination that Petitioner was permanently incompetent to be executed, this Court lifted the stay for two specific purposes: 1) to determine whether Petitioner is incompetent to be executed; and 2) to pursue settlement proceedings.
During settlement proceedings, Petitioner's experts re-examined Petitioner, focusing on the question of Petitioner's competency to be executed. Petitioner's experts concluded, after subsequently examining Petitioner, that in addition to his diagnoses noted supra, Petitioner lacks any rational understanding of the death penalty, or what it would mean for him personally to be executed. Exhibits A-D, attached to Petitioner's Request for Determination of Competency for Execution.
Prior to and during settlement proceedings, Respondent asserted that settlement was not an option when there was no error in the state court judgment. Respondent refused the invitation for his expert to re-examine Petitioner on the question of whether Petitioner was competent to be executed, and requests that Petitioner be required to file a proper Petition for Writ of Habeas Corpus. Although the Court is not privy to the content of settlement discussions, the parties have made clear that no progress has been made regarding a potential settlement.
As a result, Petitioner now brings a motion requesting pursuant to Fed. R. Civ. Pro. 16(c)(2) that this Court determine whether Petitioner is permanently incompetent to be executed. Respondent opposes the motion.
III. APPLICABLE LAW
In Ford v. Wainwright, 477 U.S. 399, 416-18 (1986), the Supreme Court held that the Eighth Amendment's prohibition against cruel and unusual punishment prevents the execution "of one whose mental illness prevents him from comprehending the reasons for the penalty or its implications." The Supreme Court has since held that a Ford claim does not become ripe until execution is imminent. See Burton v. Stewart, 549 U.S. 147, 154-55 (2007) (stating that "the claim of a capital prisoner that he was insane and therefore could not be put to death was necessarily unripe until the State issued a warrant for his execution"). As a result, while the Supreme Court has assumed that Ford claims are habeas claims that ought to be included in a petition for writ of habeas corpus, Ford claims are not required to be included in initial habeas petitions. See Panetti v. Quarterman, 551 U.S. 930, 943, 946-47 (2007) (holding that Ford claims raised after rejection of initial habeas petitions do not constitute second or successive petitions); Stewart v. Martinez-Villareal, 523 U.S. 637, 645-46 (1998) (same).
Petitioner requests that the Court make a determination that he is permanently incompetent to be executed and grant relief on the Ford issue under the authority of Fed. R. Civ. Pro. 16(c)(2). Additionally, Petitioner requests that the Court moot all penalty phase claims and enter a case management order (if requested by either party) regarding the filing of a limited habeas petition on Petitioner's guilt phase claims. At this point, Petitioner has not filed a finalized capital habeas petition, and there is no Ford claim formally pending before the ...