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May 26, 2011

Does a state capital defendant have a "right to competency" for federal habeas proceedings?

The intereseting and intricate question in the title of this post is at the heart of a dispute within a Sixth Circuit panel in a ruling today in Carter v. Bradshaw, No. 08-4377 (6th Cir. May 26, 2011) (available here).  Though the Carter case is not easily summarized, the conclusion of the majority opinion for the panel explains the essential issues:

The district court did not abuse its discretion in holding a pre-petition competency hearing or by concluding that Carter was incompetent.  However, dismissing Carter’s petition and equitably tolling the AEDPA statute of limitations prospectively was an inappropriate disposition.  Rather, with respect to Carter’s ineffective assistance claims, the habeas proceedings should be stayed until Carter is competent according to section 4241. The district court must examine the remainder of Carter’s claims to determine whether Carter’s assistance is essential to their full and fair adjudication. If not, the court should appoint a next friend to litigate those claims.  Accordingly, we AMEND the district court’s judgment and REMAND the case to the district court for proceedings in accordance with this opinion.

Judge Rodgers, writing in dissent, thinks this panel ruling is all washed up, as highlighted by this first paragraph of his dissent in Carter:

Today the court allows habeas petitioners to prevent States from enforcing their judgments, potentially forever, on the grounds of a nonexistent right to competency in habeas proceedings.  The asserted right has no basis in the Constitution or federal statutes.  Civil suits can be brought by lawyers representing mentally incompetent plaintiffs, and habeas cases are no different.  Nor are capital cases different in this respect.

I would expect an en banc and/or cert petition may follow, and it will be interesting to see if the question posed by the title of this post and by the capital defendant in Carter gets significant further consideration in the months and years ahead.

May 26, 2011 at 10:45 AM | Permalink


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A similar case was on today's SCOTUS conference list. See SCOTUSblog's Petitions to Watch list. The results of the conference will be announced Tuesday.

Posted by: Kent Scheidegger | May 26, 2011 11:27:14 AM

all fellow bloggers:

is it my imagination or does Martin and Merritt sit on the vast majority of death cases at the 6th?

Posted by: DaveP | May 26, 2011 11:37:50 AM

In addition to my earlier post, does Reinhardt sit on almost every death case in the 9th Circuit's jurisdiction?

Posted by: DaveP | May 26, 2011 11:44:46 AM


My take would be that I don't think he sits on many more than any other active judge, as the assignment process is random, but he almost certainly sits on a disproportional number of those where the writ is granted/upheld... and those are the ones that get the lion's share of the attention, which is probably why he seems to be on such a high percentage.

I guess it is also true at the margins that he may make some decisions that result on him staying on more death cases. For example, judges occasionally have to drop off of a panel for personal reasons, and he may be more reluctant to do that where the panel has a capital case. Or, panels sometimes have leeway about whether to retain jurisdiction over subsequent appeals in the same case, and he may be more likely to choose to do so than other judges. (Although I'd hope most panels would retain jurisdiction in a death case because the investment of resources in learning the case is so large that it makes institutional sense for it to stay with a single panel.) He also may just make himself available for more panels than other judges (there is a minimum number of sitting days for active judges, amounting to around 6.5 sitting weeks, I think, but some judges will agree to do a full 7 weeks, or maybe even more), increasing his proportional representation on all kinds of cases. But the initial assignment is random, and I think that these other factors would have only a minor effect.

Posted by: Anon | May 26, 2011 12:03:44 PM

it just seems that almost every time I read an opinion from the 9th Circuit, Reinhardt is the author and of course, he sides with the defense. That also means that he usually convinces one or two judges to join in.

A newspaper reporter in Ohio did a special report a couple of years back about the panels on the 6th Circuit and how they disposed of death cases. An interesting article.

Posted by: DaveP | May 26, 2011 6:59:53 PM

I wish Reinhardt DID sit on every capital case in the Ninth Circuit! May he have long life to 120!! Es lebe die Freiheit; es lebe der Wein!

Posted by: anon1 | May 26, 2011 7:22:14 PM


in your dreams. I am going to do some research and find out just how many Reinhardt does sit on.

Posted by: DaveP | May 26, 2011 7:25:40 PM

Rogers' dissent seems to have, by far, the better of the argument.

Posted by: federalist | May 26, 2011 9:39:33 PM

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