FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: ERNEST VALENCIA GONZALES,
ERNEST VALENCIA GONZALES,
Petitioner, No. 08-72188
v. D.C. No.
CV-99-02016-SMM
UNITED STATES DISTRICT COURT FOR
THE DISTRICT OF ARIZONA, PHOENIX, OPINION
Respondent,
DORA B. SCHRIRO,
Real-party-in-interest-Respondent.
Petition for Writ of Mandamus
Filed October 20, 2010
Before: Stephen Reinhardt, Marsha S. Berzon and
Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge Reinhardt
17293
IN RE GONZALES 17295
OPINION
REINHARDT, Circuit Judge:
Ernest Valencia Gonzales seeks a writ of mandamus to stay
his district court federal capital habeas proceedings under
17296 IN RE GONZALES
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 pro-
ceedings. The district court denied Gonzales’s motion for a
competency determination under Rohan because “[Gon-
zales’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 con-
trary. In Nash we held that the prosecution of a habeas appeal
that is record-based and resolvable as a matter of law can ben-
efit 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.
I.
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 non-
procedurally barred claims, Gonzales’s counsel moved to stay
the proceedings pending a competency determination pursu-
ant to Rohan, 334 F.3d at 814-15. Gonzales’s attorneys indi-
cated 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 abil-
ity to rationally communicate with his counsel and assist
them.
In response, the district court initiated proceedings to deter-
mine Gonzales’s competency and ordered the parties to sub-
IN RE GONZALES 17297
mit 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 assess-
ment. The product of that assessment, a report by supervising
psychologist Dr. James Seward, expressed “reservations con-
cerning the veracity of Mr. Gonzales’s symptoms,” but con-
cluded 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. Hav-
ing so ruled, the district court did not hold a hearing to deter-
mine 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 manda-
mus, 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.
17298 IN RE GONZALES
II.
[1] Nash held that the prosecution of a capital habeas
appeal, which is necessarily confined to the record, could ben-
efit 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 partic-
ularly important because Nash has been assisted by
several attorneys over the years . . . . The informa-
tion that Nash possesses would provide first-hand
insight into the earlier proceedings, insight that
might be helpful in ways that Nash’s current attor-
neys cannot currently identify because of his alleged
incompetence.
Id. at 1055-56.
[2] Nash squarely controls this case, foreclosing the district
court’s conclusion that a stay under Rohan is categorically
unavailable when a capital habeas petitioner’s claims consist
only of record-based or legal questions. Id. at 1050. Rather
than relying upon categorical rules, Nash made clear that the
“inquiry should be whether rational communication with the
petitioner is essential to counsel’s ability to meaningfully
prosecute” a capital habeas claim. Id. at 1054. Had the district
court undertaken the claim-specific inquiry required by Nash,
he would have been compelled to conclude that “communica-
tion with [Gonzales] is essential to counsel’s ability to mean-
ingfully prosecute” Gonzales’s habeas claims. Id. Gonzales,
like Nash, “has been assisted by several attorneys over the
years” — in fact, he had eleven different attorneys over the
IN RE GONZALES 17299
course of his trial and sentencing, and was self-represented for
part of that time. Gonzales’s claim of judicial bias centers on
events regarding which “counsel may . . . need to communi-
cate with [Gonzales] to understand fully the significance and
context” of key facts so that counsel can pursue the most per-
suasive arguments. Nash, 581 F.3d at 1048. Thus, no less than
Nash’s claim of ineffective assistance of counsel, Gonzales’s
judicial bias claim could potentially benefit from the “first-
hand insight into the earlier proceedings” that a competent
petitioner would be able to provide. Nash, 581 F.3d at 1056.
[3] Nash thus compels the conclusions that Gonzales has
raised at least one claim that could potentially benefit from
rational communication with counsel and that he is accord-
ingly eligible for a stay under Rohan.
III.
[4] We consider five factors when deciding whether to
grant mandamus relief: (1) whether the petitioner has no other
adequate means, such as direct appeal, to secure relief; (2)
whether he will suffer damage not correctable on appeal from
final judgment; (3) whether the district court’s order is clearly
erroneous as a matter of law; (4) whether the order represents
an oft-repeated error by the district court; and (5) whether the
order raises new and important problems or legal issues of
first impression. See Bauman v. U.S. Dist. Court, 557 F.2d
650, 654-55 (9th Cir. 1977). The five Bauman factors “serve
only as a useful starting point,” rather than an exhaustive set
of considerations. In re Cement Antitrust Litig., 688 F.2d
1297, 1301 (9th Cir. 1982). We may also consider, for exam-
ple, “whether there are other compelling factors relating to the
efficient and orderly administration of the district courts.” Id.
Rarely if ever will there be a case in which every one of the
five Bauman factors indicates the same result or is relevant or
applicable. See Bauman, 557 F.2d at 655. For example, fac-
tors (4) and (5) are in direct conflict with each other, and it
17300 IN RE GONZALES
would appear to be impossible to meet both criteria in the
same case. Accordingly a showing of less than all of the Bau-
man factors, indeed of only one, does not mandate denial of
the writ. See Cole v. United States Dist. Court, 366 F.3d 813,
817 (9th Cir. 2004). While the absence of clear error ordinar-
ily will defeat a petition for writ of mandamus, DeGeorge v.
United States District Court, 219 F.3d 930, 934 (9th Cir.
2000), when a mandamus petition “raises an important issue
of first impression . . . a petitioner need show only ‘ordinary
(as opposed to clear) error.’ ” San Jose Mercury News, Inc. v.
United States District Court, 187 F.3d 1096, 1100 (9th Cir.
1999); see also In re Cement Antitrust Litig., 688 F.2d at 1307
(“[W]e see no legitimate reason for refraining from exercising
our supervisory authority where we can determine that an
error has been made but cannot, for whatever reason, charac-
terize the error as ‘clearly’ erroneous”).
[5] This is a supervisory mandamus case, presenting an
issue important to “proper judicial administration in the fed-
eral system.” LaBuy v. Howes Leather Co., 352 U.S. 249,
259-260 (1957). “Certain concepts related to the traditional
use of mandamus are not necessarily applicable in supervisory
mandamus cases, or, at the least, are applied differently.” In
re Cement Antitrust Litig., 688 F.2d at 1301. Mandamus relief
may be appropriate in supervisory mandamus cases even if
Bauman’s second factor — that the error cannot be corrected
on appeal from the final judgment — is absent. LaBuy, 352
U.S. at 254-55. “[I]n supervisory mandamus cases involving
questions of law of major importance to the district courts, the
purpose of our review — and the reason for our correcting an
error made by a trial judge — is to provide necessary guid-
ance to the district courts and to assist them in their efforts to
ensure that the judicial system operates in an orderly and effi-
cient manner.” In re Cement Antitrust Litig., 688 F.2d at
1307.
[6] We conclude that this is the type of case compelling the
exercise of our supervisory mandamus power, because the
IN RE GONZALES 17301
district court’s erroneous refusal to stay proceedings in this
capital case raises the prospect of months, if not years, of
habeas proceedings that will almost certainly be vacated or
reversed. The Bauman factors support this conclusion. As to
the first Bauman factor, it is not clear that Gonzales has any
“other adequate means, such as a direct appeal, to attain the
relief he . . . desires.” Bauman, 557 F.2d at 654. Although
Gonzales could appeal the district court’s stay denial if his
habeas petition were ultimately denied, in order to succeed on
such an appeal he would have to establish his incompetency
retrospectively. The Supreme Court has emphasized that such
retrospective competency determinations are inherently diffi-
cult even “under the most favorable circumstances,” Drope v.
Missouri, 420 U.S. 162, 183 (1975), and this court views
them with disfavor. See, e.g., Moran v. Godinez, 57 F.3d 690,
696 (9th Cir. 1994) (recognizing that when a court errone-
ously fails to hold a contemporaneous competency hearing “it
often may be impossible to repair the damage retrospective-
ly”) (superseded on other grounds by statute as described in
McMurtrey v. Ryan, 539 F.3d 1112, 1119 (9th Cir. 2008).1
Given the disfavored character of retrospective competency
evaluations, an appeal at the end of Gonzales’s district court
proceedings can hardly be deemed an adequate alternative
means of relief for Gonzales. The second Bauman factor is
satisfied for similar reasons: while we can only speculate as
to how the difficulties of retrospective evaluation would affect
Gonzales’s case, to force him to accept a disfavored and
inherently difficult retrospective competency evaluation,
rather than staying proceedings and conducting a contempora-
neous evaluation as required by Rohan and Nash, would in
itself serve to impose upon him “damage not correctable on
1
We recognize that we have allowed retrospective competency determi-
nations in circumstances where, as here, contemporaneous medical and
psychiatric reports exist. See Moran, 57 F.3d at 696-98; Odle v. Woodford,
238 F.3d 1084, 1089 (9th Cir. 2001) (citing de Kaplany v. Enomoto, 540
F.2d 975, 986 & n.11 (9th Cir. 1976)). But even in such cases, we have
emphasized the limitations of such hearings and have never suggested that
they are full substitutes for a contemporaneous determination.
17302 IN RE GONZALES
appeal.” Bauman, 557 F.2d at 654. Third, because this is a
supervisory mandamus case, Gonzales need only show that
the district court has committed ordinary legal error. In re
Cement Antitrust Litig., 688 F.2d at 1307. This requirement
is, without question, satisfied here, as the district court’s
refusal to issue a stay is in direct conflict with the principles
established by Rohan and Nash. Finally, the fifth Bauman fac-
tor also somewhat supports mandamus, as the question of
whether a capital habeas petitioner in district court whose
claims are entirely legal or record-based is entitled to a stay
pending a competency determination is an important legal
question of first impression in this circuit, albeit one we con-
clude is governed by our opinion in Nash.
[7] Moreover, this is an appropriate case for exercise of the
supervisory mandamus power because in requiring the district
court to conduct a competency determination prior to any fur-
ther proceedings on the merits of Gonzales’s habeas petition,
we “provide necessary guidance to the district courts,” In re
Cement Antitrust Litig., 688 F.2d at 1307, as to how they
should proceed in capital habeas cases in which the petitioner
may be incompetent but the petition has already been filed
and presents only record-based claims or claims that can be
decided as a matter of law. Such a decision will help to “assist
the [district courts] in their efforts to ensure that the judicial
system operates in an orderly and efficient manner.” Id. It will
do so by preventing district courts from wasting considerable
resources on capital habeas proceedings in which a petitioner
is incapable, as a result of incompetency, of availing himself
of the assistance of counsel. Granting the writ in this case thus
directly serves the fundamental purpose of supervisory man-
damus — promoting the efficiency of the judicial system. See
In re Cement Antitrust Litig., 688 F.2d 1297 at 1301.
The petition for a writ of mandamus is GRANTED.