Cole v. Roper

GRUENDER, Circuit Judge,

concurring,

with whom Judge BEAM joins.

I concur in Judge Beam’s opinion for the court. I write separately to add the following observations.

By erroneously concluding that the Supreme Court of Missouri unreasonably applied Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986), and Panetti v. Quarterman, 551 U.S. 930, 127 S.Ct. 2842, 168 L.Ed.2d 662 (2007), the district court abused its discretion in granting a stay of execution. See Middleton v. Roper, 759 F.3d 833, 835 (8th Cir.2014) (per curiam). In order for Cole to be entitled to relief, the Supreme Court of Missouri’s adjudication must have (1) “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States” or (2) “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). In considering whether a state court unreasonably applied clearly established Federal law, our court has explained that “[a] state court decision may be incorrect, yet still not unreasonable, and we will grant relief only if the state court decision is both incorrect and unreasonable.” Cole v. Roper, 623 F.3d 1183, 1187 (8th Cir.2010).

“Under Ford, once a prisoner makes the requisite preliminary showing that his current mental state would bar his execution, the Eighth Amendment ... entitles him to an adjudication to determine his condition.” Panetti, 551 U.S. at 934-35, 127 S.Ct. 2842. However, “a constitutionally acceptable procedure may be far less formal than a trial.” Id. at 949, 127 S.Ct. 2842 (quoting Ford, 477 U.S. at 427, 106 S.Ct. 2595 (Powell, J., concurring in part and concurring in the judgment)). Panetti instructs that the “basic requirements” of due process include “an opportunity to submit ‘evidence and argument from prisoner’s counsel, including expert psychiatric evidence that may differ from the State’s own psychiatric examination.’ ” Id. at 950, 127 S.Ct. 2842 (quoting Ford, 477 U.S. at 427, 106 S.Ct. 2595 (Powell, J., concurring in part and concurring in the judgment)). The processes employed in Panetti and Ford ran afoul of these basic requirements.

Both Panetti and Justice Powell’s concurrence in Ford left open the question of whether, in an appropriate case, additional procedures beyond the “basic requirements” of due process may be constitutionally required. Panetti, 551 U.S. at 952, 127 S.Ct. 2842; Ford, 477 U.S. at 426-27, 106 S.Ct. 2595 (Powell, J., concurring in part and concurring in the judgment). However, Justice Powell remarked that “ordinary adversarial procedures — complete with live testimony, cross-examination, and oral argument by counsel — are not necessarily the best means of arriving at sound, consistent judgments as to a defendant’s sanity.” Ford, 477 U.S. at 426, 106 S.Ct. 2595 (Powell, J., concurring in part and concurring in the judgment). And the Panetti Court reiterated Justice Powell’s statement from Ford that, “a State ‘should have substantial leeway to determine what process best balances the various interests at stake’ once it has met *713the ‘basic requirements’ required by due process.” 551 U.S. at 949-50, 127 S.Ct. 2842 (quoting Ford, 477 U.S. at 427, 106 S.Ct. 2595 (Powell, J., concurring in part and concurring in the judgment)).

It was not an unreasonable application of Ford and Panetti for the Supreme Court of Missouri to reach the merits of Cole’s competency claim on the basis of Cole’s submissions, the state’s response, and Cole’s reply.' The Supreme Court of Missouri noted that, when Cole filed his state petition, “he submitted his counsel’s argument and his own evidence, including expert psychiatric evidence.” Moreover, after the state responded with argument and evidence of its own, “Mr. Cole had the further opportunity to respond to the state’s evidence with his counsel’s argument and evidence.” In particular, Dr. Logan, a psychiatrist who had examined Cole, offered further opinions about Cole’s competency in response to the state’s evidence. Furthermore, at this time, Cole also submitted a report prepared in 2002 by Dr. Michael Stacy, a psychologist who examined him, as well as the affidavit of another attorney. In light of Cole’s two opportunities to present evidence and arguments, it was not an unreasonable application of Ford and Panetti to conclude, as the state court did, that “Mr. Cole has not been deprived of an opportunity to be heard.”1 As the Panetti Court explained, the “basic requirements” of due process include “an opportunity to submit ‘evidence and argument from the prisoner’s counsel, including expert psychiatric evidence that may differ from the State’s [evidence].”’ 551 U.S. at 950, 127 S.Ct. 2842 (quoting Ford, 477 U.S. at 427, 106 S.Ct. 2595 (Powell, J., concurring in part and concurring in the judgment)). Cole twice had such an opportunity.

In reaching a contrary conclusion, the district court opined that Panetti “made clear that an actual hearing, which must include notice and the opportunity to present evidence in addition to that of the ‘threshold showing,’ was required.” In Panetti the petitioner initially submitted a “letter and a declaration from two individuals, a psychologist and a law professor, who had interviewed [him] while on death row.” 551 U.S. at 938, 127 S.Ct. 2842. The state trial court then appointed two experts, who opined that Panetti was competent to be executed. Id. at 939-40, 127 S.Ct. 2842. The court subsequently issued an order finding Panetti competent that “implied that its determination of petitioner’s competency was made solely on the basis of the examinations performed by the psychiatrists it had appointed.” Id. at 951, 127 S.Ct. 2842. In response to this process, the Panetti court reasoned as follows: “After a prisoner has made the requisite threshold showing, Ford requires, at a minimum, that a court allow a prisoner’s counsel the opportunity to make an ade*714quate response to evidence solicited by the state court.” Id. at 952, 127 S.Ct. 2842 (emphasis added).

Cole makes much of the two-step nature of this process — in particular, the Panetti Court’s statement that a petitioner’s opportunity to be heard comes “[a]fter” he makes a threshold showing. Id. However, it was not unreasonable to refuse Cole a third opportunity to present evidence and arguments. See Cole, 623 F.3d at 1187 (“A state court decision may be incorrect, yet still not unreasonable, and we will grant relief only if the state court decision is both incorrect and unreasonable.”). Panetti does not clearly establish that a petitioner is entitled to an opportunity to present evidence and argument even if he already has had two such chances. As the Panetti Court emphasized, a state “ ‘should have substantial leeway to determine what process best balances the various interests at stake’ once it has met the ‘basic requirements’ required by due process.” 551 U.S. at 949-50, 127 S.Ct. 2842 (quoting Ford, 477 U.S. at 427, 106 S.Ct. 2595 (Powell, J., concurring in part and concurring in the judgment)) (emphasis added). In light of the “substantial leeway” left to the states, I cannot say that the Supreme Court of Missouri’s refusal to give Cole a third opportunity to present evidence and argument “involved an unreasonable application of[] clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). Moreover, I note that affording a petitioner the opportunity to be heard avoids a process that “invites arbitrariness and error by preventing the affected parties from offering contrary medical evidence or even from explaining the inadequacies of the State’s examinations.” Ford, 477 U.S. at 424, 106 S.Ct. 2595 (Powell, J., concurring in part and concurring in the judgment). Because Cole offered his own evidence and argument and responded to the state’s submissions, such a concern is not present here.2

In addition, it was a reasonable application of Ford and Panetti not to grant Cole additional procedures beyond the basic requirements of due process. It is true that the Panetti Court and Justice Powell’s concurrence in Ford left open'the possibility that further process could be constitutionally required in an appropriate case. However, declining to extend Ford and Panetti to require additional process, as the state court did, does not an unreasonable application make. See White v. Woodall, 572 U.S. -, 134 S.Ct. 1697, 1706, 188 L.Ed.2d 698 (2014) (“Section 2254(d)(1) provides a remedy for instances in which a state court unreasonably applies this Court’s precedent; it does not require a state court to extend that precedent or license federal courts to treat the failure to do so as error.”). Ford and Panetti do not clearly establish that additional process is required.

. Although, as the dissent notes, Justice Powell’s opinion in Ford and the Panetti Court stated that a "fair hearing” is required, these decisions do not define the parameters of such a hearing. Rather, they only clearly establish that (1) something more than the processes provided there are constitutionally required and (2) a constitutionally acceptable hearing “may be far less formal than a trial.” See Ford, 477 U.S. at 424, 426-27, 106 S.Ct. 2595 (Powell, J., concurring in part and concurring in the judgment); Panetti, 551 U.S. at 949-52, 127 S.Ct. 2842. Neither Ford nor Panetti clearly establishes that providing Cole two opportunities to present evidence and argument, as the Supreme Court of Missouri did, is constitutionally inadequate. See Ford, 477 U.S. at 426, 106 S.Ct. 2595 (Powell, J., concurring in part and concurring in the judgment) ("[Ojrdinary adversarial procedures' — complete with live testimony, cross-examination, and oral argument by counsel— are not necessarily the best means of arriving at sound, consistent judgments as to a defendant's sanity.”).

. Cole suggests that he would have offered further evidence of his incompetency had he been afforded another opportunity to present evidence. However, Cole’s brief does not identify this evidence beyond speculating that he could have obtained “other expert analyses.” Moreover, Cole had strong incentives to put forth his best evidence in his first two submissions before the Supreme Court of Missouri.