dissenting.
Sagastegui was determined to be competent to make his own decisions in his ease after extensive psychiatric examination and judicial proceedings in the State of Washington courts in 1996, affirmed by the Supreme Court of Washington this April. State v. *1172Sagastegui, 135 Wash.2d 67, 954 P.2d 1311 (Wash.1998). Now we face last minute papers 1 to stay execution and enable Sagaste-gui’s mother to take over his defense. To succeed, she must show entitlement to act as “next friend,” that is, to take away from him control of his case. Because his competence to manage his case has been conclusively established, she must show that there is something new, some new reason why, because of his mental condition, he cannot competently decide how to proceed. There is nothing new of any significance.
Obviously Sagastegui is not a normal, healthy individual. A normal, healthy person would not rape, stab and drown a three year old boy, lie in wait for his mother, shoot her dead when she came home, and then shoot her friend and as she lay dying, tell her “hurry up and die.” That is what Sagastegui did. But there is no legal significance to whether Sagastegui is mentally normal. What matters, all that matters to the case before us, is whether his mental abnormalities render him incompetent to make the critical decisions in his case. There is no evidence, new or old, that they do.
Sagastegui has, from the time he got caught, known and clearly articulated exactly what he wants — to allow his execution to proceed. He insisted on representing himself, and rejected appointed counsel. The state commission that examined Sagastegui’s competency reported that he wanted to “override defense counsel’s plan to fight the death penalty by the prosecution with activists’ testimony from Seattle.” He has filed two sworn affidavits in the past few weeks, September 25 and October 6, saying, “[i]t is my desire that my execution scheduled for October 13, 1998, not be delayed.” He has been carefully examined by numerous physicians and psychologists to determine whether his choice to allow his execution to proceed is itself evidence that he is mentally incompetent to make that decision. The state compe*1173tency commission reported that “his request is not due to a desire to die, or a desire to be punished in the extreme, but rather that life imprisonment was more severe to him.”
The Supreme Court has set out precisely what must be established for one person to take over another’s case as “next friend.” Gilmore v. Utah, 429 U.S. 1012, 97 S.Ct. 436, 50 L.Ed.2d 632 (1976) is the first in a line of cases uniformly denying next Mend standing to persons seeking to prevent execution of inmates who wanted to allow their executions to proceed. Whitmore v. Arkansas, 495 U.S. 149, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990), established “two firmly rooted prerequisites for ‘next Mend’ standing:
First, a “next Mend” must provide an adequate explanation-such as inaccessibility, mental incompetence, or other disability-why the real party in interest cannot appear on his own behalf to prosecute the action. Second, the “next friend” must be truly dedicated to the best interests of the person on whose behalf he seeks to litigate, and it has been further suggested that a “next Mend” must have some significant relationship with the real party in interest.”
Whitmore, 495 U.S. at 163-64, 110 S.Ct. 1717. “The burden is on the ‘next friend’ clearly to establish the propriety of his status and thereby justify the jurisdiction of the court.” Id. at 164,110 S.Ct. 1717.
[Ojne necessary condition for “next Mend” standing in federal court is a showing by the proposed “next Mend” that the real party in interest is unable to litigate his own cause due to mental incapacity, lack of access to court, or other similar disability.
That prerequisite for “next Mend” standing is not satisfied where an eviden-tiary hearing shows that the defendant has given a knowing, intelligent, and voluntary waiver of his right to proceed, and his access to court is otherwise unimpeded.
Id. at 165,110 S.Ct. 1717.
Demosthenes v. Baal, 495 U.S. 731, 110 S.Ct. 2223, 109 L.Ed.2d 762 (1990) (per curiam), vacated a stay we had granted, where the prisoner wanted his execution to proceed, and his parents filed last minute next Mend papers to obtain a stay. We had held that the parents had made “some minimum showing of incompetence” and that evidence in the record provided “at least an arguable basis for finding that a full evidentiary hearing on competence should have been held by the district court.” The Court reversed our decision, because the state court determination of competency could not be overturned unless it was not fairly supported by the record. It was, so a federal court was bound by the state finding under 28 U.S.C. § 2254(d). Despite a new psychiatric affidavit asserting “reason to believe this person may not be competent,” the Supreme Court held that the district court had been correct in denying an evidentiary hearing, because the psychiatrist’s affidavit was not “ ‘meaningful evidence’ of incompetency” sufficient under Whitmore. Id. at 736, 110 S.Ct. 2223.
Subsequently in Brewer v. Lewis, 989 F.2d 1021 (9th Cir.1993), we held that a condemned prisoner’s mother was not entitled to an evidentiary hearing on her “next Mend” proceeding, despite two new doctors’ affidavits asserting incompetence, because the affidavits did not amount to “meaningful evidence” under Demosthenes and Whitmore. The doctors had not personally met the prisoner, and substantial medical evidence in the record from those who had examined him showed that, despite his personality disorder and strange notions of dead people being on another planet, he was competent.
In Wells v. Arave, 18 F.3d 656 (9th Cir.1994), we denied a certificate of probable cause for an appeal of denial of “next Mend” status. Wells was a diagnosed schizophrenic with active delusions. He had been determined to be competent anyway, and the family’s new affidavits about his delusions were held not to be “meaningful evidence” under Demosthenes and Whitmore. No evidentiary hearing was required, despite this new evidence, and despite absence of cross examination of the physicians whose reports had been the basis for the state determination of competence.
I do not think this case can be distinguished from this extensive line of authority going the other way. There is persuasive evidence that Sagastegui is not mentally *1174sound, but there is no evidence “meaningful” under the Demosthenes and Whitmore standard that he was or is incompetent by reason of that unsoundness to decide not to challenge his execution. The state court was concerned that Sagastegui might have a mental disorder that might affect his competence, subjected him to extensive psychiatric and psychological testing to find out, and concluded after extensive evidentiary proceedings that he did not.
The majority errs in failing properly to apply controlling precedent because of an implicit presupposition that one must either be mentally healthy or altogether non-fune-tional. Mental illness is not binary, such that either one is entirely healthy, or so insane that he can do nothing; it is a continuum, like physical illness, and one can be mentally quite ill yet competent in some respects. And like physical illness, mental illness may disable a person for some functions but not others. Everyone involved in Sagastegui’s case has, from the beginning, recognized that there is something wrong with the man. But the possibility that the things wrong with his mind disable him from deciding how to proceed in his case has been decisively refuted by overwhelming evidence.
It was striking, as I read the transcripts of the extensive proceedings in which Sagaste-gui participated, just how competent he was. He insisted on representing himself, because, as he explained, he wanted to control his defense to prevent his lawyer from bringing in “anti-death penalty advocates from Seattle.” He was given stand-by counsel to assist him, and he used standby counsel effectively and consulted frequently. He spoke appropriately, objected carefully and effectively to matters he wanted out, and made his positions and the reasons for them clear. His precision in making a limited waiver of his medical privilege, to allow access to some but not all of his medical history, showed his ability to conduct his own litigation.
At the preliminary hearing on November 21, 1995, Sagastegui expressed his desire to represent himself but the presiding judge appointed counsel anyway. When Sagaste-gui renewed his request for self-representation at his December 1 arraignment, the court expressed concern but allowed him to represent himself and made his counsel “stand-by” counsel instead. At hearings on December 15 and 18, the judge inquired again about his waiver of counsel and asked him numerous questions before determining that the waiver was knowing, voluntary, and intelligent.
On December 29, 1995, the state superior court judge referred Sagastegui for a 15 day evaluation at Eastern State Hospital before allowing him to represent himself and enter a plea. The hospital’s “sanity commission” determined that Sagastegui was competent to stand trial and noted in its report that Sagas-tegui said that “[h]e would rather be dead he thinks than spend his whole life in an 8x10 cell in prison.” He was acting “in a manner he believes is in his best interest.” In the discharge summary, Dr. Cressy noted that Sagastegui showed “no evidence whatsoever of any mental disorder of the nature of schizophrenia or bipolar disorder ... his major diagnosis appeared to be a marked antisocial personality disorder with narcissistic features ... we saw no evidence of depression.” In its letter to the judge, the “sanity commission” echoed that there was “no current evidence of thought or mood disorder or other major illness. Mr. Sagastegui. is clear and cogent in thinking, oriented in all spheres and goal directed in behavior.” The commission noted that he had explained his waiver of counsel “in terms of wanting ‘total control’ over decisions in his defense.” Charles Mcllroy, a psychologist on the “sanity commission” also noted that there was no evidence of any major mental illness but was a “soeiopathic individual who shows no remorse for the death of three people ... [who] freely admits that he enjoys killing and remains at extreme risk for further acts of violence ... he fully fits the diagnosis of antisocial personality disorder which I see as his primary diagnosis.” There is not much more significance to diagnoses of sociopathy or antisocial personality disorder than that the individual is an extraordinarily bad person, without conscience, empathy or remorse, ready to do the most horrible things to others for the slightest benefit to himself.
*1175After the “sanity commission” issued its report, the case proceeded to trial on January 30, 1996. Sagastegui attempted to plead guilty to all three charges of aggravated first degree murder. A second state judge went over his statements on his guilty plea before accepting the plea- The penalty phase of the trial began on February 5,1996 and Sagaste-gui told the jury that he was not going to present mitigating evidence and that he committed the murders and said, “I liked it. I enjoyed it.” The judge conducted a conference in chambers to ensure that he understood that he had the right to present mitigating evidence to the jury. Sagastegui was then sentenced to death.
On March 11, 1996, the trial court held a hearing on Sagastegui’s request to waive his rights to a general appeal and to the assistance of counsel for any review of his sentence. The trial judge required Sagastegui to answer a seven page questionnaire to ensure that he fully understood the consequences of his decision and then questioned him thoroughly about his answers .to each written question. Sagastegui even discussed the possibility of giving a limited waiver of his medical records and the scope of the waiver he was willing to make (he limited it to disclosing the medications that he was currently using). The transcript of the hearing shows that Sagastegui was cogent, interactive with the court, and understood what was occurring. He rephrased questions posed to him to be sure he understood what was being asked, he asked people to repeat things he missed the first time, he went off record a few times to confer with stand-by counsel, and he asked the court reporter if she could “pick up nods.” When asked by the court to explain why he didn’t want counsel, in his own words, Sagastegui said:
other than the fact that it’s a right of mine, umm, a lawyer would have a separate and different agenda and goal from what I’m trying to accomplish ... with me giving up the attorney and with me giving up the direct appeal and the fact that I want to go through this as fast as possible ... having a lawyer and going through the direct appeal wouldn’t change any way that I would want to run this thing, my appeal. So, I would really appreciate it if I wasn’t forced to have an attorney and wasn t forced to go through the direct appeal.
Over the objection of Sagastegui that the witnesses were not competent to render an expert opinion, the sentencing court heard the testimony of all three members of the “sanity commission” who had evaluated Sa-gastegui for 15 days and determined that he was competent. One of the members testified that Sagastegui told her that he wanted the death penalty because he “did not under any circumstances want to be locked up for the rest of his life.” Dr. Cressy testified that Sagastegui was capable of rational decision-making regarding the death penalty and noted that Sagastegui’s decision “made good sense to me. In fact, I agreed with him. I would do the same thing.”
At the same hearing, Sagastegui also objected to referring to the commission as the “sanity commission” as this was a competency hearing, not a sanity hearing, and he objected to the presentation of more than one of the members of the commission as cumulative and beyond the scope of his waiver of confidentiality. He also argued that evidence of abuse while he was a child did not matter because of the scope of the Supreme Court review that would be made. In response to the testimony that Sagastegui suffered no mental illness and observation of his interaction with the court, the state court judge found him to be competent and to have made a knowing, voluntary, and intelligent waiver of his rights. The judge also found that Sagastegui was capable of rational decision-making and that his decision seeking the death penalty was not a suicidal desire.
On April 30, 1998, the Supreme Court of Washington reviewed the trial court record and sealed psychological reports and also determined that Sagastegui made a knowing, voluntary, and intelligent waiver. State v. Sagastegui, 135 Wash.2d 67, 954 P.2d 1311 (Wash.1998). Under 28 U.S.C. § 2254, we must defer to these factual findings as presumptively correct unless Vargas can rebut “the presumption of correctness by clear and convincing evidence.” See also, Demosthenes, 495 U.S. at 734, 110 S.Ct. 2223.
*1176The district court, and we, have gone through the record with great care in this case and I cannot see any meaningful evidence that would rebut the presumption of correctness. The only medical evidence that is new that supports Vargas’ motions is the declaration of Professor Steven Frankel, Ph. D., J.D., an expert on “dissociative identity disorder.” The other new evidence persuasively undermines the claim of incompetency. Dr. Frankel has never met Sagastegui. Dr. Frankel says, based on his reading a report of observations prepared by the Washington Department of Social and Health Service, that Sagastegui “could” have “dissociative identity disorder.” This is not meaningful evidence for three reasons: like the doctor in Brewer, Dr. Frankel never actually examined Sagastegui; Dr. Frankel says Sagastegui “could” have “dissociative identity disorder,” not that he does; and, Dr. Frankel does not say that Sagastegui would be incompetent to proceed in his litigation, even if he does have such a disorder.
Appellant also argues that the psychiatric evaluation of Dr. David Grubb is meaningful evidence that Sagastegui is legally incompetent. Dr. Grubb evaluated Sagastegui prior to the state court competency hearing. Dr. Grubb gave as his impression that Sagaste-gui probably had bipolar disorder, but as of the time he examined him, Sagastegui “shows no psychosis, thought disorder, or paranoia ... would not seem to be in need of any medication.” Dr. Grubb was performing an initial mental health unit evaluation for the prison system, not evaluating Sagastegui for legal competency. All Dr. Grubb observed wrong with Sagastegui when he examined him was an inappropriate degree of “ironic cheerfulness.” Nowhere does Dr. Grubb suggest that Sagastegui was legally incompetent.
Appellant also argues that the May 8,1997 report of psychologist Gerry Weber and the May 7, 1998 report of psychologist Ronald Page support her claim that Sagastegui is incompetent. Dr. Weber’s evaluation had nothing to do with Sagastegui’s legal competency and did not speak to it. It was to determine “psychological factors which may have a bearing upon his request to live at the Special Housing Unit.” Dr. Weber said that Sagastegui was “oriented and displayed no signs of mental or emotional illness or of impaired contact with reality.” Dr. Weber told him that execution would be hard on Sagastegui’s family to which Sagastegui told him that “there is no umbilical cord attaching him to anyone else, that he must make the decisions which he feels are in his own best interests, and again said that his death would make for more compelling lessons to others.” Nothing in Dr. Weber’s report suggests incompetence.
Dr. Page’s May 7, 1998 evaluation of Sa-gastegui was “to assess possible psychosis and suicide potential.” He noted that Sagas-tegui had been prescribed Depakote and Thorazine to “reportedly decrease his tendency to affective lability and promote sedation, enabling him to sleep 16 hours per day.” He concluded that he posed “no imminent threat of suicidal potential” and appeared alert, well-oriented, and attentive. In a supplement to his report, Dr. Page listed his diagnosis as atypical psychosis, now in remission; alcohol abuse, now in remission; and “personality disorder NOS.” Nowhere did Page suggest that Sagastegui was legally incompetent. The modifiers “remission” and “atypical” mean that whatever kind of psychosis Sagastegui might have, he was not showing symptoms when examined, and it was not one of the ordinary forms of psychosis.
The only recent evaluation of Sagastegui by any physician who has examined him is the report of Dr. Christian Hams on Sep-' tember 26, 1998, less than two weeks ago. Dr. Harris specifically examined Sagastegui to determine his “competency with regard to his continuing to represent himself as his own attorney.” Dr. Harris could “find no evidence that this man’s mental disorders are impacting his decision making in the legal processes involved in his pleading guilty and his decision not to appeal his death sentence.” His diagnosis was antisocial personality. He found no evidence of “any hallucinatory deficit or delusional thinking” and noted that “his mental disorders do not seem to be the basis for his decision to not appeal his upcoming execution.” Dr. Harris eon-*1177eluded that Sagastegui “wishes to be executed rather than serving life in prison without parole.” He concluded by saying that he does not “consider that wanting to die is necessarily evidence that a person is demented or that a ‘mental disorder’ is necessarily causing the individual to wish for death.”
In a follow-up letter, Dr. Harris analyzed the reports of Dr. Grubb, Dr. Page, and Dr. Weber. Though he disagreed with some of their diagnostic impressions, what is more important is that Dr. Harris pointed out that none of their diagnostic impressions conflicted with the conclusion that Sagastegui was competent to make his own litigation decisions. Dr. Harris noted that the medical records showed no evidence that Sagastegui has “decompensated” or been “near psychosis.” Dr. Harris also disputed Dr. Grubb’s diagnosis of bipolar disorder with depressive episodes, because there was no evidence of manic episodes. He concluded that Dr. Grubb’s impression of “explosive disorder, probably related to bipolar disorder” and post-traumatic stress disorder, was not supported by their observations and evaluations. Dr. Harris pointed out that antisocial personality disorder has “nothing to do with the issue of ‘competence’ to act as his own attorney.”
Dr. Harris is the only physician to have evaluated Sagastegui for legal competency since the “sanity commission” did so in 1996. Everything in Dr. Harris’ report is consistent with the commission’s earlier finding that Sagastegui was and is legally competent and that his mental disorders do not render him incompetent. I can find no evidence, “meaningful” in the restrictive sense of Demosthenes, Whitmore, Brewer, and Wells, to the contrary.
The majority suggest that we need another hearing, because the last one was 2 1/2 years ago. I do not see a basis for that in the authorities. Though Brewer mentioned that there had been a recent evidentiary hearing, it did not say that such a hearing was necessary. In this case, the district court gave careful consideration to all the medical reports, new and old, submitted by Sagastegui, and there is no apparent reason why an evidentiary hearing would differ from the argument and consideration of extensive written evidence in this case.
Appellant argues that because Sagastegui does not wish to avoid the death penalty, he must be incompetent. The conclusion does not follow. Sagastegui repeatedly told his doctors that his reason for wanting to allow the execution to proceed was to get out of prison. He showed an understanding of the significance, and fearsomeness, of execution. The manager of the correctional housing unit where Sagastegui is kept filed an affidavit that said when Sagastegui had learned of the Washington Supreme Court’s decision affirming his death sentence, Sagastegui “shook, his lip was quivering, and he commented about only having 120 days to live.” This shows that he understands and fears death. Sagastegui faces a choice between death and life imprisonment, and it is not evidence of craziness to the point of incompetence that a, 27 year old man facing this choice thinks death to be the less miserable alternative. His behavior reinforces the pri- or state court findings of competency. Dr. Cressy of the “sanity commission” testified that “I would do the same thing.”
This is not to say we should let Sagastegui die because he wants to. He forfeited his right to do what he wants when he murdered three people. His death will not be suicide. It will be punishment for the anal rape, stabbing and drowning of a three year old boy for whom he was babysitting, the murder of the boy’s mother, and the murder of her friend. The state is entitled to execute him for these horrible crimes, and he is entitled to control his defense or the lack of it unless he is incompetent to do so.
. As I revise my draft, at 10:27 A.M. Alaska time Sunday October 11 (I wrote the rough draft yesterday afternoon), I have not been able to read the majority opinion, because it has not yet been received in my chambers. This case, like all eve of execution death penalty cases, suffers from the defects of deliberation caused by last-minuteness. We received faxes of the several reams of papers Thursday afternoon, read the record and precedents as best we could Friday, and heard oral argument and conferred Saturday morning. I indicated a tentative inclination to dissent, but said I might (as I have been before) be persuaded by the majority opinion and choose not to dissent. But the possibility of reading each others' views, articulated more carefully and extensively than is possible in conference, does not exist, because of last-minuteness. This morning when I came into chambers a fax was waiting for me from Judge Reinhardt, presiding, with a date line saying that it had been sent at 1:56 A.M., and that the majority opinion, with which he concurred, would be filed at noon Pacific time (11:00 A.M. my time). This requires me to dissent in ignorance of what the majority says, though I hope to receive and be able to skim the majority opinion before sending this dissent for filing. My dissent may therefore be unresponsive to whatever turns out to be in the majority opinion (which I have not yet seen), and deprives me of the opportunity to read the majority opinion carefully before deciding whether to dissent. It also deprives the majority of the opportunity to read my dissent before committing itself.
This failure of the deliberative process is a necessary consequence of the fact that the proposed next friend participation was not initiated at the end of 1995, when Sagastegui announced his intentions, but instead during the days immediately preceeding his execution.
The Supreme Court has held that "A court may consider the last-minute nature of an application to stay execution in deciding whether to grant equitable relief.” Gomez v. United States District Court, 503 U.S. 653, 112 S.Ct. 1652, 118 L.Ed.2d 293 (1992). Last-minuteness should indeed raise the bar, not only because it may reflect on the petitioner, but also because it impairs a court’s ability properly to review the record and deliberate. The characteristic of death penalty cases, that they typically last for decades, results from the combination of last-minuteness and Zeno’s Paradox (that a moving body can never reach the end of a line, because it must first cover half the line, then half the remainder, and so on ad infinitum). Last-minuteness makes mistakes in death penalty cases, in which mistakes are most intolerable, more likely to occur.
This case is a striking illustration of Zeno's Paradox in operation. The state trial court did everything right. So did the state supreme court. The process of doing everything right took time. Because it necessarily took time, there was an interval of time between the mental examinations the state courts considered and the scheduled execution. That opened the door, as it necessarily does in any death penalty case, to an affidavit from an expert witness that something had occurred, or might have occurred, in the time interval. There is no logical end to the process.