dissenting in part:
I agree with the majority that because real party in interest Kelly had not filed a habeas corpus petition by April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Chapter 153 of the AEDPA, including the newly-enacted statute of limitations for habeas petitions, 28 U.S.C. § 2254(d)(1), applies to him. See Lindh v. Murphy, — U.S. -, -, -, 117 S.Ct. 2059, 2061, 2069, 138 L.Ed.2d 481 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir.1997) (en banc). However, I cannot agree that this case does not present the “extraordinary circumstances” entitling Kelly to the tolling of the AEDPA’s statute of limitations. I therefore respectfully dissent from Part B of the majority opinion and from the judgment.
In my view, this case is squarely controlled by Calderon v. United States Dist. Court, 112 F.3d 386 (9th Cir.1997) (Beeler). In Beeler, we first held that § 2254(d)(1) was a statute of limitations and not a jurisdictional provision; thus, that it was subject to equitable tolling. Id. at 390-91. We then described the few cases which would be eligible for equitable tolling: “Equitable tolling will not be available in most cases, as extensions of time will only be granted if ‘extraordinary circumstances’ beyond the prisoner’s control make it impossible to file a petition on time.” Id. at 391 (quoting Alvarez-Machain v. United States, 107 F.3d 696, 701 (9th Cir.1997)). Finally, we held that the withdrawal of an attorney, who was aiding a putative habeas petitioner to prepare his petition, whose work product was “not usable” by replacement counsel, qualified as “extraordinary cir*788cumstances” which justified tolling the statute of limitations. Id. at 391-92.
Here, unfortunately, the district court’s order is not as clear as it could have been. Its operative provision, without any explanation or analysis, states tersely: “It is further Ordered that the filing deadlines of the Anti-terrorism and Effective Death Penalty Act of 1996 do not apply to this case.” However, “[w]e may affirm on any ground supported by the record even if it differs from the rationale of the district court.” Martinez-Villareal v. Lewis, 80 F.3d 1301, 1305 (9th Cir.), cert. denied, — U.S. -, 117 S.Ct. 588, 136 L.Ed.2d 517 (1996).
The record supports that Kelly has been having serious mental problems for many, many years. The State does not contend otherwise.1 In recognition of this fact, the district court has set a hearing to determine Kelly’s mental competency. Thus, a fair reading of the district court’s order, fully supported by the record, is that it has ordered the AEDPA’s statute of limitations to be tolled pending a determination of Kelly’s mental competency. What the district court will then decide to do, will obviously depend on the outcome of that hearing.
Beeler held that the additional time required by new counsel (although there is no constitutional right to counsel in a habeas proceeding) to prepare a habeas petition was an “extraordinary circumstance” which tolled the statute. It defies logic and is contrary to the holding of Beeler to hold, as the majority does, that proceedings to determine a putafive habeas petitioner’s own incompetency (a petitioner who has no right to counsel) is not an “extraordinary circumstance.”
The majority reaches its Draconian result-precluding Kelly from ever filing a first federal petition-by misreading the record, misapplying the law and defying our own binding precedent.
It is true, as the majority emphasizes, that these proceedings have been pending for several years.2 However, it is evident from the record that most of the delay has been caused by the district court’s attempts to grapple with Kelly’s mental problems. Moreover, what the majority overlooks is that, on January 9, 1995, as part of its order that Kelly be mentally evaluated and that a mental evaluation report be filed, the district court ordered “that all other aspects of this case be, and hereby are, Stayed pending a final determination by this Court of the Petitioner’s mental capacity to proceed.” That stay has never been lifted and Kelly’s mental capacity has never been determined.3 Thus, for Kelly’s counsel to proceed with the filing of a petition at any time after January 9, 1995, as the majority intimates they should have, would have been in direct violation of the stay.4 New things put the doing of an act so “clearly beyond the prisoner’s control,” as Beeler requires, as a court order prohibiting the doing of that act.
Even the State has recognized that a determination of Kelly’s competency is a necessary prerequisite to proceeding further:
*789Accordingly, given the fact that the Report [of the evaluating psychiatrist] has raised an issue as to Kelly’s incompetence, and because if Kelly is incompetent, his counsel cannot proceed unless a next friend representing Kelly’s interests is appointed, this Court should conduct a hearing to determine whether Kelly is in fact incompetent.
Respondent’s Position Regarding Dr. Kessler’s Report at 16, filed Jun. 26,1995.
At least by January 9, 1995, when it appointed Dr. David Kessler to evaluate and determine Kelly’s mental competency, the district court appreciated that Kelly posed a potential problem in terms of his competency to proceed with the preparation and filing of his federal habeas petition. Dr. Kessler’s report was filed with the court within two- and-a-half months, by late March. Thereafter, for reasons not fully explained on the record, the district court did not set a competency hearing until one was requested by Kelly on March 20, 1997. The court granted Kelly’s motion, but instead of setting the hearing before the April 24 expiration of the ADEPA’s one-year period of limitation, it set the hearing for October 10, 1997, six months later.
In the meantime, apparently in response to the State’s position regarding Dr. Kessler’s report, the court appointed Kelly’s mother as his next friend. However, the circumstances of the appointment make it plain that the purpose of the appointment was to assist Kelly with the competency hearing and nothing more.5 This is necessarily so because a prerequisite to the appointment of a next friend for the purpose of filing a habeas petition is a finding that the putative petitioner is incompetent to verify and file the petition himself or herself. “In Whitmore v. Arkansas, 495 U.S., at 165, 110 S.Ct., at 1725, we held that ‘one necessary condition for “next friend” standing in federal court is a showing by the proposed “next friend” that the real party in interest is unable to litigate his own cause due to mental incapacity.’” Demosthenes v. Baal, 495 U.S. 731, 734, 110 S.Ct. 2223, 2225, 109 L.Ed.2d 762 (1990).
Because, under Whitmore, “next friend” standing is an Article III jurisdictional requirement, 495 U.S. at 162-64, 110 S.Ct. at 1726-28, where, as here, that showing has not been made, a “next friend” cannot be appointed to prosecute a habeas proceeding. Id. Thus, the record does not support the majority’s conclusion that a “next friend” was qualified and available to file a habeas petition on Kelly’s behalf, since no determination has yet been made that Kelly “is unable to litigate his own cause due to mental incapacity.”
Finally, the majority’s reliance on the California Supreme Court’s analysis of why incompeteney does not prevent a direct appeal from going forward is puzzling. See People v. Kelly, 1 Cal.4th 495, 546, 3 Cal.Rptr.2d 677, 706, 822 P.2d 385, cert. denied, 506 U.S. 881, 113 S.Ct. 232, 121 L.Ed.2d 168 (1992) (“The considerations that prohibit an incompetent person from being tried ... do not apply after the judgment. The issues on appeal are limited to the appellate record. An appeal involves only legal issues based on that record. Attorneys do not need to rely on the defendant himself to decide what issues are worthy of pursuit.”).
Whatever the validity of that reasoning on direct appeal, it has no place in a habeas proceeding. We have said, time and again, that because issues on direct appeal are confined to the record, many potential issues, including, for example, ineffective assistance of counsel claims, cannot be raised on direct appeal, but must be raised by collateral review. E.g., United States v. Houtchens, 926 F.2d 824, 828 (9th Cir.1991). The reason for this insistence is because “habeas proceedings permit the defendant to develop a record of ‘what counsel did, why it was done, and what if any, prejudice resulted.’ ” United States v. Daly, 974 F.2d 1215, 1218 (9th Cir.1992) (citations omitted).
Here, in fact, Kelly did make a claim of ineffective assistance on direct appeal. See Kelly, 1 Cal.4th at 519-23, 3 Cal.Rptr.2d at *790688-90, 822 P.2d 385. Thus, to suggest, by analogy to direct appeal, that a putative habeas petitioner’s personal participation is unnecessary to the preparation and prosecution of a habeas petition is simply mistaken. It renders superfluous and meaningless the requirement in the rules, see footnote 4, supra, that the petitioner personally verify the petition.
In sum, the circumstances here which temporarily rendered Kelly unable to file a habeas petition are at least as extraordinary as in Beeler. Kelly may be incompetent to proceed without the assistance of a “next friend.” However, whether or not he is, thus qualifying him for such assistance, has not yet been determined by the district court. It is inequitable and unjust to impute to Kelly, as the majority does, the district court’s delay in acting on this issue, especially when the court has stayed all proceedings, except the competency determination. That stay has been in existence during the entire period since the AEDPA has become effective.-
As indicated above, the district court has already set a hearing to determine Kelly’s competency for October 10. I would hold that § 2254(d)(l)’s one-year period of limitations is tolled, due to extraordinary circumstances, until a reasonable period after the district court makes a prompt determination of whether or not Kelly is competent. If he is competent, he should be given a short, but reasonable period to file his petition. If he is incompetent, a “next friend” to file the petition on his behalf, based on his incompetency, should be appointed and that “next friend,” likewise, should be given a short, but reasonable period within which to file a petition on Kelly’s behalf.
That Kelly’s possible incompetency requires the statute of limitations temporarily to be tolled, is not an undue interference with the State’s interest. After all, that interest must be balanced, at least minimally, against a state prisoner’s constitutional right to petition for the Great Writ. In these circumstances, I submit that the State’s interest in insisting that the proceeding go forward immediately is not entitled to great weight. The State has no interest in executing an insane person. Ford v. Wainwright, 477 U.S. 399, 410, 106 S.Ct. 2595, 2602, 91 L.Ed.2d 335 (1986) (“The Eighth Amendment prohibits the State from inflicting the penalty of death upon a prisoner who is insane.”).6 Thus, tolling the statute of limitations while Kelly’s competency is being determined interferes only minimally with the interest of the State. Consequently, the State’s interest in executing the sentence of death is an insufficient reason, contrary to the majority’s intimation,' not to toll the statute of limitations for a reasonable period of time.
The majority errs in focusing its wrath on Kelly’s “desires,” rather than its analysis on the proper scope to be accorded to the district court’s order in light of the record: “Kelly desires to turn the procedure for obtaining counsel before an application for habeas corpus is filed into a source of sempiternal delay of all state and federal proceedings against him.” As I have emphasized throughout this dissent, an appropriate tolling period would be far from “sempiternal,” but only temporary, until Kelly’s competency to proceed has been determined. Thus, the majority posits a false choice: Either Kelly cannot ever be required to file a habeas petition because the statute of limitations will be tolled forever, or the statute cannot be tolled at all and he must be prevented from filing a first federal petition and subjected immediately to an order of execution.
Because I would deny the writ, I respectfully dissent.
.A 1995 examining psychiatrist’s report concludes, in part:
[Bjeginning in January 1990 he [Kelly] has been repeatedly diagnosed as suffering from a psychotic disorder, with such symptoms as delusions, hallucination, inappropriate affect, social withdrawal, bizarreness, fragmentation of thinking, and incoherence. As recently as August 1992 several members of the psychiatric staff at San Quentin evaluated the Petitioner, and concluded that they were unable to ascertain that he was sane.
The report further concluded:
[H]e is now suffering form [sic.] a psychotic mental disorder of such severity that it precludes his capacity to appreciate his current legal position and make rational choices with respect to the current court proceedings.
. Most of this time, of course, was before the AEDPA became effective, when there was no statute of limitations for habeas petitions.
. Unable to dispute that the district court has imposed such a stay and that it is still in effect, the majority falls back on the perplexing argument that, despite its plain meaning, the district court's order does not mean what it says. Unfortunately, the parties are unable so easily to ignore the order's plain meaning and the record demonstrates that they have abided by the stay.
. A habeas petition is also required to be verified personally by the petitioner, Rule 2(c), Rules Governing § 2254 Cases in the U.S. Dist. Courts (“The petition ... shall be signed under penalty of perjury by the petitioner.”), a requirement which the district court has not yet determined that Kelly is able to fulfill.
. The order originally did contain provisions regarding the next friend acting on Kelly's behalf with regard to internal prison matters, but those provisions were deleted by the district court after the State objected.
. Even before Ford v. Waimvright, California had enacted procedures to insure that it does not execute insane persons. See 477 U.S. at 408 n. 2, 106 S.Ct. at 2601 n. 2; see also Cal.Penal Code §§ 3701 (providing procedure to inquire into capital prisoner's sanity), 3703 (providing for confinement of insane capital prisoner in medical facility until sanity is restored).