Carter v. Bradshaw

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 11a0146p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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SEAN CARTER,
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Petitioner-Appellee,
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No. 08-4377
v.
,
>
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Respondent-Appellant. -
MARGARET BRADSHAW,
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Appeal from the United States District Court
for the Northern District of Ohio at Toledo.
No. 02-00524—Peter C. Economus, District Judge.
Argued: December 2, 2010
Decided and Filed: May 26, 2011
Before: MARTIN, COLE, and ROGERS, Circuit Judges.

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COUNSEL
ARGUED: Charles L. Wille, OFFICE OF THE OHIO ATTORNEY GENERAL,
Columbus, Ohio, for Appellant. Linda E. Prucha, OHIO PUBLIC DEFENDER’S
OFFICE, Columbus, Ohio, for Appellee. ON BRIEF: Charles L. Wille, Holly E.
LeClair, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for
Appellant. Linda E. Prucha, Rachel Troutman, OHIO PUBLIC DEFENDER’S OFFICE,
Columbus, Ohio, for Appellee.
MARTIN, J., delivered the opinion of the court, in which COLE, J., joined.
ROGERS, J. (pp. 12-18), delivered a separate dissenting opinion.
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OPINION
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BOYCE F. MARTIN, JR., Circuit Judge. In this habeas action where petitioner
Sean Carter is facing the death penalty according to his Ohio conviction, the district

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No. 08-4377 Carter v. Bradshaw Page 2

court found that Carter is incompetent, dismissed his petition without prejudice, and
equitably tolled the Antiterrorism and Effective Death Penalty Act statute of limitations
prospectively until he is competent to proceed. Respondent Warden Margaret Bradshaw
appeals that decision. For the following reasons, we AMEND the district court’s
judgment and REMAND the case to the district court for proceedings in accordance
with this opinion.

I. BACKGROUND

For a full description of the facts of this case, we point to the thorough order of
the district court. We detail here only the facts necessary for our discussion. After
Carter exhausted the Ohio state review processes for his conviction, he was housed in
a facility for prisoners with severe mental illnesses. His attorneys attempted to meet
with him there to discuss avenues for collateral appeal, but he refused to see them.
Worried that their client was incompetent and choosing to forego further appeals of his
conviction and sentence, the attorneys filed Carter’s habeas petition and a motion for a
pre-petition competency hearing.

The district court held a competency hearing on May 1, 2006 at which experts
for both parties agreed that Carter suffered from schizophrenia, personality disorder, and
hallucinations. They also agreed that he was not able to fully and articulately
communicate with his counsel, but they disagreed as to how well he could assist his
counsel in his case. Carter’s first expert, Dr. Robert Stinson, opined that Carter lacked
a factual understanding of the proceedings. He explained that Carter could not provide
details or elaboration, or engage in dialogue. Additionally, he explained that Carter did
not believe he could be executed unless he volunteered, and that Carter could not
accurately identify his attorneys, instead thinking that Bradshaw’s expert, Dr. Phillip
Resnick, was his attorney. Carter also called Dr. Michael Gelbort, a clinical
neuropsychologist, who testified that Carter could not accurately describe historical
events from his case and could not learn and retain new information. On the other hand,
Resnick testified that Carter could provide basic details to his counsel, albeit without
much elaboration. He also believed, based upon the opinion of a social worker who had
No. 08-4377 Carter v. Bradshaw Page 3

worked with Carter and not upon his own clinical examination, that Carter had accepted
that he would be executed if he lost his appeals.

Approximately two years later, Stinson provided the court with an updated
description of Carter’s condition. Stinson opined that Carter’s condition had become
“progressively worse, and despite treatment, he appears to have significant psychosis
and functional limitations even when he is at his expected baseline.” Based upon the
evidence presented at the hearing and Stinson’s update, the court concluded that Carter
was incompetent to understand his current position or to assist his habeas counsel. As
a result, the court dismissed the habeas petition without prejudice and prospectively
tolled the AEDPA statute of limitations until Carter regained competency.

II. DISCUSSION

A. The Right to Competence in the Habeas Context

Federal habeas petitioners facing the death penalty for state criminal convictions
do not enjoy a constitutional right to competence. However, the Supreme Court held
long ago that they do have a statutory right to competence in certain situations. In Rees
v. Peyton, 384 U.S. 312, 313-14 (1966), a habeas petitioner facing death row petitioned
the Court for a writ of certiorari, but subsequently “directed his counsel to withdraw the
petition and forgo any further legal proceedings.” To the Court, “[w]hether or not [the
defendant] shall be allowed in these circumstances to withdraw his certiorari petition is
a question which it is ultimately the responsibility of this Court to determine, in the
resolution of which Rees’ mental competence is of prime importance.” Id. at 313. The
Court ordered the district court to “make a judicial determination as to Rees’ mental
competence and render a report on the matter” in order to “aid . . . the proper exercise
of th[e] Court’s certiorari jurisdiction.” Id. at 313-14. To accomplish this goal, the
Court directed the district court to apply 18 U.S.C. §§ 4244-4245, which has been
recodified as 18 U.S.C. § 4241. Id. at 314.

Section 4241 states that a district court may hold a competency hearing “if there
is reasonable cause to believe that the defendant may presently be suffering from a
No. 08-4377 Carter v. Bradshaw Page 4

mental disease or defect rendering him mentally incompetent to the extent that he is
unable to understand the nature and consequences of the proceedings against him or to
assist properly in his defense.” 18 U.S.C. § 4241 (2006) (emphasis added). If,
according to this standard, the district court concludes that a defendant is mentally
incompetent, the court:

shall commit the defendant to the custody of the Attorney General. The
Attorney General shall hospitalize the defendant for treatment in a
suitable facility--
(1) for such a reasonable period of time, not to exceed four
months, as is necessary to determine whether there is a
substantial probability that in the foreseeable future he will attain
the capacity to permit the proceedings to go forward; and
(2) for an additional reasonable period of time until--
(A) his mental condition is so improved that trial may
proceed, if the court finds that there is a substantial
probability that within such additional period of time he
will attain the capacity to permit the proceedings to go
forward; or
(B) the pending charges against him are disposed of
according to law;
whichever is earlier.

Id. § 4241(d). Additionally, section 4241(d) explains that if the defendant’s mental
condition does not improve, he may be institutionalized for a longer period of time
according to 18 U.S.C. §§ 4246, 4248. Id.

By applying section 4241 to habeas actions, Rees addresses the situation where
a habeas petitioner awaiting the death penalty may seek to forego any collateral attacks
on his conviction or sentence, and defines a statutory right for the petitioner to be
competent enough to (1) understand the nature and consequences of the proceedings
against him, and (2) assist properly in his defense.

Furthermore, we have relied on Rees and held that federal habeas courts may
conduct preliminary hearings to determine “whether there was ‘reasonable cause to
believe that the defendant may presently be suffering from a mental disease or defect
No. 08-4377 Carter v. Bradshaw Page 5

rendering him mentally incompetent’ to waive his right to further appeals.” Harper v.
Parker, 177 F.3d 567, 571 (6th Cir. 1999) (quoting 18 U.S.C. § 4241). A district court’s
determination whether there was “reasonable cause” is reviewed for abuse of discretion.
Id. at 571-72.

In Harper, a psychiatrist had diagnosed a habeas petitioner as schizophrenic and
opined that he was incompetent to assist in his defense. Id. at 568. The petitioner’s
counsel moved for a pre-petition competency hearing because the petitioner wanted to
waive all his remaining post-conviction proceedings. Id. at 568. We held that the
district court properly conducted a section 4241 hearing to determine whether the
petitioner was competent to proceed. Id. at 571. We also held that the district court did
not abuse its discretion in holding that the petitioner was competent to proceed based
upon the evidence presented and the petitioner’s participation in the hearing. Id. at 572.

Rees and Harper anticipate any situation where a capital habeas petitioner
chooses to forego seeking his habeas relief. They do not cabin the application of section
4241 to only scenarios where a petitioner chooses to terminate an appeal, or begin,
pause, or delay one for that matter. Anytime a capital habeas petitioner affirmatively
seeks to forego his habeas petition, whether by action or inaction, Rees and Harper hold
that a district court may employ section 4241. Additionally, Rees and Harper are clear
that this is a one-way street. Only the petitioner’s indication to forego his appeal may
trigger section 4241’s application. The state cannot forcibly activate section 4241.

Based on Rees and Harper, the district court did not abuse its discretion in
conducting a section 4241 competency hearing. Carter had refused to meet with his
attorneys to discuss collateral attacks on his conviction, worrying them that he might not
pursue his habeas petition. Carter’s attorneys also claimed that Carter could not
understand the proceedings or assist counsel in his defense. At the hearing, the court
heard expert testimony from both parties that Carter suffered from multiple
psychological disorders affecting his abilities to relay facts to his counsel and
communicate in detail. Carter’s experts believed that any discourse that Carter could
engage in with his attorneys would be meaningless because of his complete lack of
No. 08-4377 Carter v. Bradshaw Page 6

detailed communication. Furthermore, Carter’s experts testified that he was confused
as to the identity of his counsel and that he believed he would not be executed unless he
volunteered; an irreversibly dangerous false belief. While Resnick disagreed and opined
that Carter had finally accepted that he would be executed unless he prevailed upon
collateral appeal, Resnick did not make this finding himself, opting instead to adopt the
non-scientific conclusion of a social worker who did not testify at the hearing.

The district court did not abuse its discretion in conducting a competency
hearing. Carter’s refusal to meet with his attorneys to discuss collateral attacks on his
conviction would have terminated any right to pursue a habeas writ if it extended beyond
the AEDPA statute of limitations. The district court also did not abuse its discretion in
finding that there was reasonable cause to believe that Carter was incompetent, and in
further finding that he was incompetent to assist his counsel.

B. The Proper Remedy

1. The district court’s dismissal without prejudice and prospective
tolling of the AEDPA statute of limitations

The district court dismissed Carter’s petition without prejudice and prospectively
tolled the statute of limitations largely based on the holding in Hargrove v. Brigano, 300
F.3d 717 (6th Cir. 2002). In Hargrove, a petitioner filed a habeas petition asserting
claims that had not been exhausted at the state level. Id. at 718. The district court
dismissed the petition without prejudice and equitably tolled the AEDPA statute of
limitations prospectively upon the condition that the petitioner exhaust his claims at the
state level and return to federal court within thirty days. Id. The respondent argued that
a court cannot prospectively toll a statute of limitations because tolling is an issue that
should be presented to a court later in time after the statute has expired. Nevertheless,
we affirmed the district court’s decision, remarking that the court had basically achieved
a stay and abeyance and still ensured that the “case would move forward expeditiously.”
Id. at 721.

However, the decision in Hargrove cannot be applied to Carter’s case for three
reasons. First, it could potentially toll the AEDPA statute of limitations indefinitely.
No. 08-4377 Carter v. Bradshaw Page 7

That result would be quite different than the thirty-day window in Hargrove that we
noted would still allow the case to be resolved expeditiously. The result would not
resemble a stay and abeyance and could prevent either party from ever presenting its
case to the district court.

Second, in Hargrove, the petitioner had the onus to act in order to preserve his
petition, and the respondent had no burden besides defending against the petition. Here,
however, the onus would shift to the respondent. An indefinite toll would prevent
Bradshaw from defending against the petition unless she continually filed petitions
seeking enforcement of the state conviction and sentence.

Finally, the petition in Hargrove was tolled so that the petitioner could exhaust
his claims at the state level and quickly return to federal court instead of forcing him to
file a new petition. This jurisdictional reason is far different from the issue of
incompetency.

Furthermore, it does not appear that any case has ever held that the AEDPA
statute of limitations may be equitably tolled prospectively because the petitioner was
incompetent. The only published authority we have found where equitable tolling was
applied in habeas cases because of the petitioner’s incompetence is from our sister
circuits, and tolling was applied in those cases retrospectively. See Bolarinwa v.
Williams, 593 F.3d 226, 231 (2d Cir. 2010); Laws v. Lamarque, 351 F.3d 919, 923 (9th
Cir. 2003); Nara v. Frank, 264 F.3d 310, 320 (3d Cir. 2001) (overruled in part on other
grounds by Carey v. Saffold, 536 U.S. 214 (2002)); Fisher v. Johnson, 174 F.3d 710, 715
(5th Cir. 1999).

Accordingly, it was improper for the district court to dismiss Carter’s petition
and prospectively toll the AEDPA statute of limitations indefinitely.
No. 08-4377 Carter v. Bradshaw Page 8

2. Next friends

Bradshaw contends that the district court should appoint a next friend who can
continue to litigate Carter’s petition on his behalf. Generally, next friends proceed in
litigation on behalf of a party that cannot seek relief because of incompetence or
inaccessibility. Whitmore v. Arkansas, 495 U.S. 149, 162 (1990). The federal habeas
statute specifically anticipates that a petition may be filed by someone other than the
petitioner acting on the petitioner’s behalf. 28 U.S.C. § 2242. To that end, we have
recognized a district court’s ability to appoint a next friend for a habeas petitioner on
death row who is incompetent. See Martiniano ex rel. Reid v. Bell, 454 F.3d 616, 617
(6th Cir. 2006). However, before appointing a next friend to an incompetent habeas
petitioner, a court must find that the next friend is “truly dedicated to the best interests
of the person on whose behalf he seeks to litigate.” Whitmore, 495 U.S. at 163. “[T]he
writ of habeas corpus should [not] be availed of, as matter of course, by intruders or
uninvited meddlers, styling themselves next friends.” Id. at 164 (internal quotations and
citation omitted). Indeed, it is preferred, if not required, that a next friend “have some
significant relationship with the real party in interest.” Id. Importantly, the next friend
must have more than merely “a generalized interest in constitutional governance.” Id.

We find these qualifications for a next friend especially significant for Carter’s
claims of ineffective assistance of counsel. Only Carter knows critical parts of the
factual basis for these claims. As the district court noted, Carter alone has evidence of
the interactions between him and his trial and appellate attorneys, and that evidence is
inaccessible as long as he remains unable to communicate with his habeas attorneys.
Really, a next friend could no more than speculate as to the evidence that Carter may
know, and Carter “is better positioned than anyone” to provide that evidence in support
of his claim. Rohan ex rel. Gates v. Woodford, 334 F.3d 803, 818 (9th Cir. 2003).
Therefore, a next friend would be just as unable as Carter to assist Carter’s attorneys in
this respect. See id. (commenting that only the habeas petitioner’s “private knowledge”
could truly support his ineffective assistance claim because of his “unique position to
testify about the extent of his trial counsel’s efforts”); see also Holmes v. Buss, 506 F.3d
No. 08-4377 Carter v. Bradshaw Page 9

576, 580 (7th Cir. 2007) (noting that, unlike most cases, a habeas petitioner can
contribute to his attorney’s strategy concerning claims of ineffective assistance and
prosecutorial misconduct because he was present for the trial, his habeas counsel was
not, and he may retain “a better sense of the alleged misbehavior of the prosecutor and
of defense counsel than the trial transcript and other documentation provide”).

Where the factual basis for Carter’s claims is locked away exclusively in his
memory, he faces the lonely certainty that no friends in this world could meaningfully
be dedicated to his interests because they lack the benefit of his knowledge. Even
Carter’s most ardent supporters might be subjectively dedicated to litigating on his
behalf, but as long as they lack the facts that are vital to Carter’s claims, they cannot be
dedicated in the sense necessary for a next friend to stand fully in Carter’s place
litigating his claims as wholly as he can. It would be inappropriate to appoint a next
friend for Carter’s ineffective assistance of counsel claims where the next friend would
be forced to proceed through this action without the foundational facts that support
Carter’s claims.

However, we recognize that Carter’s other claims might possibly be litigated
without his assistance. Just because Carter might be able to contribute assistance to all
his claims does not mean that his assistance is essential. The district court must
determine whether it can fully and fairly adjudicate Carter’s other claims without
evidence from Carter. Perhaps some claims require no evidence from Carter whatsoever.
Perhaps others could benefit from it, but that evidence could be replicated by, or
substituted with, other sources. If the district court determines that Carter’s assistance
is not essential to the adjudication of these other claims, then the court should appoint
a next friend to litigate them.

3. Stay of the proceedings according to section 4241(d)

Instead of dismissing Carter’s petition without prejudice and prospectively
tolling the AEDPA statute of limitations, the district court should have followed the path
taken in Rohan, a similar case that the district court cited. In Rohan, 334 F.3d at 819,
the Ninth Circuit held that habeas proceedings should be stayed until the petitioner is
No. 08-4377 Carter v. Bradshaw Page 10

found to be competent to proceed. Every court has the incidental power to stay
proceedings and manage its docket as it sees fit. Landis v. N. Am. Co., 299 U.S. 248,
254 (1936). Furthermore, federal courts overseeing habeas actions have statutory
authority to stay state court proceedings for any matter relating to the habeas proceeding.
McFarland v. Scott, 512 U.S. 849, 857 (1994) (citing 28 U.S.C. § 2251). Staying
Carter’s habeas petition would fall in line with section 4241(d) whereby a court may
hospitalize incompetent defendants until they are competent to proceed, and we have
already applied section 4241(d) to habeas cases. See Hargrove, 300 F.3d at 721.
Moreover, in Hargrove, we favorably likened the temporary prospective tolling of the
statue of limitations to a stay and abeyance, hinting at our approval for such a course of
action. Id. Understandably, the district court may have wished to remove this case from
its docket instead of letting it linger, but dismissing the case inconveniences Bradshaw
by forcing her to lay aside Ohio’s execution of Carter until some unknown time in the
future. It also reduces the possibility that Carter’s petition will ever be considered by
the district court, thus dashing his hopes to establish his entitlement to habeas relief.
Staying the proceedings according to section 4241(d) would allow all parties to remain
actively involved and the court to monitor Carter’s on-going condition.

Accordingly, we amend the district court’s judgment. The district court should
not have dismissed Carter’s habeas petition without prejudice. Instead, Carter’s petition
should be stayed according to section 4241(d) with respect to his ineffective assistance
claims and any other claims that the district court determines essentially require his
assistance.

III. CONCLUSION

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
No. 08-4377 Carter v. Bradshaw Page 11

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.
No. 08-4377 Carter v. Bradshaw Page 12

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DISSENT
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ROGERS, J., dissenting. 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.

First of all, the Constitution, in a point conceded by the majority and all but
admitted by Carter’s counsel during oral argument, does not provide a right to
competency in habeas proceedings. As the Supreme Court explained in United States
v. MacCollom, 426 U.S. 317, 323 (1976), due process “certainly does not establish any
right to collaterally attack a final judgment of conviction.” Moreover, the Court held in
Pennsylvania v. Finley, 481 U.S. 551, 555 (1987), that there is no constitutional right to
counsel for habeas proceedings. If Carter has no constitutional right to a habeas
proceeding in the first place, and has no constitutional right to counsel at that
proceeding, he logically cannot have the right to be competent so as to communicate
with and/or assist counsel during his habeas proceeding. This conclusion is buttressed
by Whitmore v. Arkansas, 495 U.S. 149, 162-64 (1990), in which the Supreme Court
explicitly recognized that a “next friend” can be appointed to initiate and pursue claims
on behalf of a habeas petitioner who is mentally incapacitated. If the law permits a next
friend to be appointed in order to prosecute the claims of an incompetent habeas
petitioner, it cannot also require that a petitioner’s habeas proceeding be indefinitely
stayed if a court deems the petitioner incompetent.

This case does not involve the separate right of a condemned prisoner to be
competent at the time of execution. See Ford v. Wainwright, 477 U.S. 399 (1986). That
right has to do with the nature of the punishment, and little to do with whether a habeas
No. 08-4377 Carter v. Bradshaw Page 13

petition can proceed in order to determine whether the petitioner has been
constitutionally convicted.

This case also does not involve the constitutional right to competency during the
trial itself. See e.g., Cooper v. Oklahoma, 517 U.S. 348, 354 (1996). There is a world
of difference between trial and collateral attack. Assisting counsel in one’s defense at
trial is one thing, where the central issue is whether or not the defendant is guilty, and
where counsel is constitutionally required. Assisting one’s counsel in a habeas petition
is another thing, where the central issue is whether the defendant’s constitutional rights
were violated, and due process does not even require that counsel be provided.

The Constitution thus does not provide that capital habeas petitions be stayed
as long as the petitioner is not competent.

There is also no statutory basis for such a conclusion. Rees v. Peyton (Rees I),
384 U.S. 312 (1966), cited by the majority, cannot be read to extend a statutory right to
competency to the circumstances of the instant case. In Rees, the district court rejected
a death row inmate’s habeas petition, the court of appeals affirmed, and the inmate’s
counsel then filed a petition for certiorari with the Supreme Court. Id. at 312-13. Soon
after, the inmate directed his counsel to withdraw his petition for certiorari. Id. at 313.
The Court ordered the district court to conduct a competency determination of the inmate
and retained jurisdiction of the certiorari petition pending the results of the hearing. Id.
at 314. Following a hearing in which the district court found the inmate incompetent,
the Supreme Court issued a summary order stating, “This case is held without action on
the petition until further order of the Court.” Rees v. Peyton (Rees II), 386 U.S. 989
(1967). This court also applied Rees in Harper v. Parker, 177 F.3d 567, 571 (6th Cir.
1999), where we held that district courts may conduct preliminary hearings to determine
“whether there was ‘reasonable cause to believe that the defendant may presently be
suffering from a mental disease or defect rendering him mentally incompetent’ to waive
his right to further appeals.” Id. (quoting 18 U.S.C. § 4241).

Thus, Rees and Harper plausibly stand for the proposition that habeas petitioners
must be competent in order to terminate a habeas proceeding. They do not stand for the
No. 08-4377 Carter v. Bradshaw Page 14

very different proposition that habeas petitioners must be competent to assist counsel in
the prosecution of their habeas petition. The distinction is crucial. When a habeas
petitioner seeks to withdraw his habeas petition, he is choosing to end what is likely to
be his only chance at reversing his conviction and regaining his freedom. This is a
decision inherently to be made by the petitioner, and not while the petitioner is
incompetent to do so. When a habeas petitioner files his petition and then becomes
incompetent to assist his counsel in prosecuting it, however, there is no comparable
client decision to be made.

Stated differently, the Rees precedent can be read to create an assumption that
a habeas challenge to a death penalty will go forward unless the petitioner competently
terminates it. Such an assumption cannot logically require that the habeas proceeding
will not go on—or indeed that it will be resolved in petitioner’s favor—merely because
the petitioner is not competent to terminate it.

The statute referred to by the Supreme Court in Rees, 18 U.S.C. § 4241, provides
for competency hearings for defendants in criminal proceedings, and cannot be read to
extend to post-conviction proceedings. The Supreme Court took the standard from that
statute and adopted it for the purpose of determining whether the habeas petitioner in
Rees was competent to terminate the habeas proceedings. The Court’s adoption of the
statutory standard for one required inquiry (competency to terminate proceedings) does
not logically imply that another inquiry (competency to assist habeas counsel) needs to
be made in the first place. Notably, the Ninth Circuit, in its lengthy opinion holding that
incompetent habeas petitioners are entitled to a stay, does not rely on § 4241 as so
providing. Rohan ex rel. Gates v. Woodford, 334 F.3d 803 (9th Cir. 2003).

Instead, the Ninth Circuit’s holding is based on a different statute, one upon
which the majority in this case wisely declines to rely. In Rohan, the district court held
a competency hearing for a death row habeas petitioner and concluded that the petitioner
was incompetent. Id. at 806. Nonetheless, the district court went on to deny the
petitioner’s request for a stay of his habeas proceedings, holding that neither the
Constitution nor the federal habeas statutes required that the proceedings be stayed,
No. 08-4377 Carter v. Bradshaw Page 15

because the appointment of a “next friend” adequately protected the petitioner’s
interests. Id. The Ninth Circuit reversed. The Ninth Circuit interpreted 21 U.S.C.
§ 848(q)(4)(B) (now recodified as 18 U.S.C. § 3599(a)(2)), which provides for appointed
counsel in death penalty habeas proceedings, as implying a right to “meaningful”
assistance of counsel, which itself depends on the petitioner’s ability to communicate
rationally with counsel. Id. at 812-13. Hence, concluded the Ninth Circuit, Congress
meant (though it never said) that a habeas petitioner has the right to be competent during
his habeas proceedings. Id. at 813.

But the plain language of the statute provides for no such right, and none is ever
mentioned. Instead, Congress provided a detailed list of instructions and specifications
governing appointed counsel’s qualifications and experience in capital habeas
proceedings. See 18 U.S.C. § 3599(b)-(e). These provisions in no way speak to the
actual effectiveness of counsel’s performance during a habeas proceeding, they simply
prescribe a minimum level of background knowledge for appointed counsel. In
particular, they say nothing about the competency of the petitioner.

The Rohan court relied in part on the implication of a right to competency from
a right to counsel from other contexts, such as the constitutional right to competency at
trial. Rohan, 334 F.3d at 813. But trial and post-conviction proceedings are different,
and in any event the inference as a statutory matter is directly contradicted by a specific
statutory provision. AEDPA forecloses claims on collateral attack for ineffective
assistance of habeas counsel: “The ineffectiveness or incompetence of counsel during
Federal or State collateral post-conviction proceedings shall not be a ground for relief
in a proceeding arising under section 2254.” 28 U.S.C. § 2254(i); see Benner v. Coyle,
No. 99-3570, 1999 WL 33453848, at *1 (6th Cir. Nov. 1, 1999). If an underlying right
to effective assistance of habeas counsel cannot be implied from 18 U.S.C. § 3599, then
the derivative right to be competent in habeas proceedings so as to assist counsel cannot
be implied either.

There is in short no legal basis whatsoever for inferring a right to competency of
the petitioner in habeas proceedings. It is a right created out of whole cloth.
No. 08-4377 Carter v. Bradshaw Page 16

It is also a right that is anomalous in its very nature. For practical purposes, the
right will be asserted by capital petitioners but not by other petitioners. Capital
petitioners gain something (delaying execution) from indefinitely delaying habeas
proceedings, while the interests of convicts serving prison terms—whether competent
or not—will almost always be served by the prompt litigation of habeas petitions, so as
to advance the possibility of release. But acceptance of the right in concept might well
require that it be applied to noncapital cases, where prosecutors could insist that habeas
be indefinitely delayed. One might argue that noncapital defendants may waive the
right, but by hypothesis such defendants are incompetent, and thus might be incapable
of waiving the right. So recognition of a right to competency in habeas proceedings
means either that prosecutors can for practical purposes insist on indefinite
postponement of habeas proceedings where convicts are not competent (a
counterintuitive result), or that the difference in punishment—capital vs.
noncapital—somehow fundamentally changes the nature of how much a lawyer must
have input from the client, such that the right is categorically available only for capital
convicts (an anomalous result).

It is also anomalous to have a system in which a civil litigant can go into court
and instantly get the relief he seeks merely by showing that he is incompetent. In civil
cases in our system, a plaintiff has to show a basis for relief, not merely that he is
disabled from making such a showing. While habeas cases deal with criminal
convictions, they are at bottom civil cases.

Finally, the very ways in which competency is said to be necessary for habeas
petitioners would apply just as strongly to the competency of witnesses in habeas
proceedings. A key witness in a habeas proceeding—one whose input or testimony
might make all the difference—might become incompetent or be unable to testify. But
no one would argue that a habeas proceeding therefore could not proceed. The parties
just have to do the best that is possible with the witnesses and testimony that are
available, subject to the rules of evidence.

These concerns are reflected in the facts of this case. Although the district court
found that several of Carter’s habeas claims could potentially benefit from his assistance,
No. 08-4377 Carter v. Bradshaw Page 17

at least three of these claims plainly do not require any input from Carter for their
successful prosecution. Thus, even recognizing a right to competency does not prevent
the district court from resolving the merits of at least these habeas claims. These include
Carter’s claims that: (1) he was incompetent to stand trial; (2) his trial counsel was
ineffective for failing to pursue the issue of his competency; and (3) his appellate
counsel was ineffective for not appealing the trial court’s failure to ensure that he was
competent. As for the first of these three claims, Carter’s competency is a question of
fact, see Thompson v. Keohane, 516 U.S. 99, 111 (1995), and he has the burden of
rebutting the presumption that the state court’s factual findings were correct, see 28
U.S.C. § 2254(e)(1); McAdoo v. Elo, 365 F.3d 487, 494 (6th Cir. 2004). Carter’s
competency claim thus depends entirely on the evidence available to the state trial court.
The trial court in this case held two competency hearings before trial and found Carter
competent after both. Carter’s counsel can, as they have already done in his habeas
petition, point out any errors in the trial court’s assessment of Carter’s competency so
as to prove that the state-court decision was contrary to or an unreasonable application
of federal law or was based on an unreasonable determination of the facts. See 28
U.S.C. § 2254(d). They can clearly do so without the need for information available
only to Carter.

The same is true for the other two claims. As noted, the record for this case
already contains extensive evidence concerning Carter’s competency. The record also
sufficiently reflects Carter’s trial counsel’s efforts to prove that he was incompetent and
how his appellate counsel handled the competency issue on appeal. No information
available only to Carter would alter the merits of these claims for purposes of the habeas
standard. Perhaps recognizing this, the majority fashions the particularly anomalous
remedy of remanding the case in part, for the district court to identify those claims that
do not require Carter’s assistance and then to appoint a next friend to litigate those
claims on Carter’s behalf. This “remedy,” however, necessarily has the incongruous
effect of staying part of the case indefinitely while allowing another part of the case to
go forward, with the scope of the latter part to be determined wholly by the district court.
This compounds the hobbling of the State’s legitimate interests in finality and execution
of its judgments.
No. 08-4377 Carter v. Bradshaw Page 18

Two of the remaining claims identified by the district court—Carter’s removal
from the trial proceedings and the ineffective assistance of his trial counsel during
mitigation—could potentially benefit from Carter’s assistance. In the first place, it is
questionable whether, under the evidentiary limitations imposed by AEDPA, Carter’s
counsel could introduce new evidence on habeas review in support of these claims, even
if Carter were competent.1 More fundamentally, however, any assistance that Carter
could give would be conceptually indistinguishable from that of a witness. The
assistance, if any, from Carter would be the provision of information that could be used
to support the claims. But that is exactly what a witness provides. The incompetency
of witnesses does not stop civil proceedings, and it is anomalous that the incompetency
of a plaintiff should stop proceedings entirely because the party cannot act as a witness.

Requiring competency on the part of capital habeas petitioners is not compelled
by the right to competency at trial, the right to competency in waiving further habeas
proceedings, or the right to be competent at the time of execution. The new “right” is
not provided by either the Constitution or any statute. It is instead an anomalous
monkey wrench thrown into the capital-litigation process.

The district court’s order should be reversed, and the case remanded in full so
that the habeas proceeding can go forward on all of Carter’s claims.

1
For the claim concerning Carter’s removal from the trial proceedings, Carter first raised this as
an instance of ineffective assistance of appellate counsel in his Ohio Rule of Appellate Procedure 26(B)
application to reopen his direct appeal. Carter’s Rule 26(B) application, however, did not include an
affidavit from Carter concerning whether he wanted to be in the courtroom for his trial and sentencing.
Under the Ohio Rules, Carter’s application to reopen his direct appeal needed to contain a sworn statement
of the basis for his claim of ineffective assistance of appellate counsel, any parts of the record available
to him, and all supplemental affidavits upon which he relied. Ohio R. App. P. 26(B)(2); Morgan v. Eads,
818 N.E.2d 1157, 1159 (Ohio 2004). Ohio courts hold that the failure to support an ineffective-assistance-
of-appellate-counsel claim with material outside the record is grounds for dismissal of a Rule 26(B)
application. See State v. Griffie, 658 N.E.2d 764, 765 (Ohio 1996); State v. Dillon, 657 N.E.2d 273, 277
(Ohio 1995). Carter therefore failed to develop the factual basis for his removal-from-trial claim, and the
claim does not meet the requirements of 28 U.S.C. § 2254(e)(2) since it is not based on a new
constitutional right and does not involve evidence that he was actually innocent. See 28 U.S.C.
§ 2254(e)(2)(A), (B). With respect to his ineffective-assistance-during-mitigation claim, Carter requested
an evidentiary hearing when he filed his state post-conviction petition, but he failed to submit any
evidentiary documents in support of the claim. See Ohio Rev. Code § 2953.21(C); State v. Jackson, 413
N.E.2d 819, 822 (Ohio 1980). Hence, Carter also failed to develop the factual basis of this claim, and the
claim also is not based on a new constitutional right and does not involve evidence that Carter is actually
innocent. See 28 U.S.C. § 2254(e)(2)(A), (B).