dissenting:
I
Mrs. Elsie Brewer appeals the district court’s decision denying her standing to file a “next friend” petition for habeas corpus seeking to avoid her son’s execution principally on the ground that he is incompetent. She asks this court to issue a certificate of probable cause and a stay of his execution, now scheduled for March 3, 1993, at 12:01 a.m.
*1028On February 19, 1993, the day after she was finally denied relief from the state courts in Arizona, Mrs. Brewer filed a ha-beas petition with the district court. This is the first federal petition for relief that has been filed on behalf of this prisoner.
Ninth Circuit Rule 22-3 explicitly provides that a certificate of probable cause and a stay of execution shall be granted automatically on an appeal from the first federal habeas corpus petition filed in a death case. The Rule provides:
(a) Definitions. This rule shall apply to appellate proceedings involving a first petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 for a petitioner under a sentence of death. A “first petition” for habeas corpus shall mean: the original filing relating to a particular conviction or sentence, and a subsequent or amended filing if the original filing was not dismissed on the merits.
(c) Stays of Execution and Certificates of Probable Cause. On the first petition, if a certificate of probable cause and a stay of execution have not been entered by the district court or if the district court has issued a stay of execution that will not continue in effect pending the issuance of this court’s mandate, upon application of the petitioner a certificate of probable cause will be issued and a stay of execution will be granted by the special state death penalty panel pending the issuance of its mandate.
By the plain language of this rule, we have no authority to deny Mrs. Brewer’s request for a certificate of probable cause and a stay of her son’s execution.
The majority of this panel justifies its refusal to comply with the clear directive of this rule by reading language into the rule that does not appear. Under the majority’s interpretation, the automatic stay rule for first petitions does not apply to third-party petitioners when the panel decides that it can resolve the merits of petitioner’s claim in time to meet the scheduled execution date. The Rule says no such thing. The Rule plainly applies to all “first petitions] filed ... for a petitioner under a sentence of death.” This rule was adopted by the Court after considerable deliberation and comment. If the majority is dissatisfied with this particular rule, it may address its concerns to the Court and seek an amendment. The power to revise the Circuit Rules rests with the Court, not an individual panel.
Moreover, the majority’s amendment is fundamentally inconsistent with the purpose behind the automatic stay rule. The purpose of the automatic stay rule is to allow time for the appellate court to exercise reasoned judgment when it is faced, for the first time, with a death case. It requires us to exercise deliberate judgment at least once in a death case without the hydraulic pressure of an impending execution only days, or even hours, away.
The only gloss on Rule 22-3 that is even arguably justified is that we have no jurisdiction to consider the merits of Mrs. Brewer’s appeal if her standing claim is “wholly insubstantial.” See Bell v. Hood, 327 U.S. 678, 682-83, 66 S.Ct. 773, 776, 90 L.Ed. 939 (1946) (dismissal for want of jurisdiction is appropriate when the claim is “wholly insubstantial” or “patently without merit.”) The majority does not say that her standing claim is so insubstantial that it gives no jurisdiction to decide her appeal. Indeed, by reaching and deciding her claim on the merits, the majority holds that she has raised at least a colorable claim that she can establish standing. Moreover, the district court found that she had raised a colorable claim because it ruled that she was entitled to an evidentiary hearing on the question of her son’s competency. Unless the majority is willing to declare her claim to be frivolous, it must comply with Rule 22-3 by allowing the automatic stay of execution to issue to permit us to consider the merits of the standing claim without the pressure of an imminent execution.
The complexity of the issues raised in this case demonstrates the wisdom of our automatic stay rule. This is not a case of federal court delay. The case was filed in the district court for the first time less than three weeks ago. The notice of ap*1029peal to this court was filed exactly two weeks ago. As I write, Mr. Brewer’s scheduled execution is less than 24 hours away.
II
In November of 1987, John George Brewer (“Brewer”) murdered his five-month pregnant girlfriend and immediately confessed and pled guilty. After a hearing, he was pronounced competent and sentenced to death. For the next four and a half years he languished on death row while the state courts of Arizona conducted various proceedings, notwithstanding Brewer’s refusal to challenge his death sentence and his repeated insistence that his execution be carried out. On November 23, 1992, the state trial court conducted another hearing and again pronounced him competent to dismiss counsel and to waive all post-conviction review. Finally, on February 18, 1993, the Arizona Supreme Court affirmed the state court proceedings.
On February 19, 1993, this case entered the federal court system for the first time when Brewer’s mother filed a “next friend” habeas petition challenging her son’s competency as well as the constitutionality of his sentence. On February 23, 1993, the federal district court, following an afternoon hearing, ruled that Mrs. Brewer had no standing to pursue a “next friend” habeas petition. On the same day she filed a notice of appeal and asked this court to issue a certificate of probable cause and a temporary stay of execution. Arizona has scheduled his execution for March 3, 1993 at 12:01 a.m.
Mrs. Brewer supported her habeas petition with new evidence not considered at the November 23rd state court competency hearing:1
(1) Two letters written by her son while he was on death row, discussing his belief in a planet called “Terracia,” which is ruled over by the God “Dantain.” The letters refer to a person called “Fro,” who appears to be Dantain’s child, and who lives on Terracia, but who also lived on earth, at which time she was Rita Brier, the girlfriend Brewer murdered.
(2) An affidavit by Dr. Michael Bayless, who, after reviewing Brewer’s letters along with other new materials, had a change of heart about the testimony that he gave at a 1988 state court hearing in which he concluded that Brewer was competent.2
In the first letter, written to a friend, Keith Lester, in early 1989, Brewer wrote in part as follows:
“I am the one who killed Fro, the savior of Terracia.”
Fro was to “become a man elf when we got to Terracia. However, I knew her ... only as a woman.”
“It is hard to explain what I understand Dantain’s teachings to be, and my reaction to them.”
"Dantain told me I would be executed in 1-7 years”
“I keep finding myself praying to Christ to forgive me worshipping other Gods.”
Brewer ends the letter with, “May the Blessings of Dantain, Our Lord God, and *1030Fro, His Holy Son — our savior be upon thee.”
See Dist.Ct. Exh. 5.
The second letter was written in early 1992, and states, “I killed Fro because she was going to follow Dantain’s command for me to live separate of (not from) her, and I didn’t want to.” See Dist.Ct. Exh. 6.
In addition to this new evidence, Mrs. Brewer also relied upon an affidavit by Brian McKee, a friend of her son’s from high school. McKee states that Brewer told him that he believed Dantain is the God of Terracia, and that when he dies he will go to Terracia where Rita is waiting for him. McKee also says Brewer claimed that Dantain would speak to Brewer and Rita through each other. See McKee Affidavit at 2-3.
At 6:00 p.m. on February 19, 1993, a Friday, the district court gave notice that it would conduct a hearing on Mrs. Brewer’s habeas petition on the afternoon of the following Tuesday, February 23, 1993. On the morning of the hearing, the court issued an order granting Mrs. Brewer a right to discovery of the notes and data on which the state-retained mental health experts based their opinion of Brewer’s competency, and a right to have Brewer examined by Dr. Bayless. After issuing the discovery order, the court proceeded with the hearing that afternoon, which, of course, rendered the discovery order meaningless for purposes of the afternoon’s hearing.
Ill
The questions raised by Mrs. Brewer’s appeal are the following:
A. Is the State Court’s Finding of Competence at the November 23, 1992 Hearing Entitled to a Presumption of Correctness?
The majority asserts that the state court’s finding on November 23, 1992 that Brewer was competent to dismiss his counsel and waive all post-conviction relief shoüld be entitled to a presumption of correctness on federal habeas review. I disagree.
A finding on the issue of competence is a finding of fact. A presumption of correctness attaches to state court findings of fact only when the court made its findings after a full, fair, and adequate hearing. 28 U.S.C. § 2254(d)(6). The November 23 hearing was neither full, fair nor adequate. The state court had before it an affidavit from Dr. Rollins, in which he stated that he was persuaded “to a reasonable degree of medical certainty that Mr. Brewer is not competent to participate in legal proceedings at the present time.” District Ct. Exh. B at 2. Yet the court rejected Dr. Rollins’ affidavit, even though it heard no testimony from any medical professionals on Brewer’s current mental status. The court’s finding on Brewer’s competence was based entirely on a brief colloquy with the prisoner and on the state court’s original determination made four years earlier that Brewer was competent.
The court’s deference to a four year old finding of fact is particularly troubling, because the question of competency is not a question of historical fact but a question that fluctuates over time. The relevant question for purposes of third-party standing is not whether Brewer was competent before he spent four years on death row waiting for Arizona to finish judicial proceedings Brewer did not want or seek, but whether he is competent now to waive his right to any further legal proceedings. Because the state court failed to adequately explore the question of current competency, the state court’s determination is not entitled to a presumption of correctness in federal court.3
*1031Finally, the majority relies on Demosthenes v. Baal, 495 U.S. 731, 737, 110 S.Ct. 2223, 2226, 109 L.Ed.2d 762 (1990) as authority for accepting the state court’s finding of competency, arguing that Baal and this case are indistinguishable. I believe the two cases are plainly distinguishable. The “next friend” petitioner in Baal relied on the same evidence that was considered at the state court competency hearing. Here, Mrs. Brewer produced several pieces of new evidence — specifically including Brewer’s letters and Dr. Bayless’ testimony concerning his change of heart on Brewer’s competency — that were never considered at the state court hearing.
B. Did the District Court Apply the Correct Standard of Proof?
The district court appears to have held Mrs. Brewer to the “clear and convincing” standard of proof on the competency issue. (“The Court’s obligation under the case law, as the Court understands it, is to view that evidence in the context of whether or not the petitioner, Elsie Brewer, has sustained her burden of proving by clear evidence that [Brewer is incompetent]. The Court finds that the petitioner has failed to sustain her burden.... ” Transcript of Dist.Ct.Hrg. at 112). This raises a question whether the court erred in not applying the much less rigorous preponderance of the evidence standard. Mrs. Brewer cites Groseclose ex rel. Harries v. Dutton, 594 F.Supp. 949, 953 (M.D.Tenn.1984) as authority that the correct standard is preponderance of the evidence. Neither the State nor Brewer cites any authority whatsoever on the issue. Under the time constraints of the execution schedule, I cannot be confident which is the right standard. But I'm inciined to think Mrs. Brewer is-correct that on a threshold jurisdictional question such as standing, the preponderance of the evidence standard is the appropriate one.
The majority’s reliance on Whitmore v. Arkansas, 495 U.S. 149, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990) for the proposition that a “clear evidence” test (presumably one higher than a preponderance of the evidence) is the correct standard to apply at a competency hearing is entirely misplaced. Whitmore did not address the standard of proof a district court should use in making a determination on the ultimate question of competency. In Whitmore, the third-party petitioner was a fellow prisoner who proffered no evidence whatsoever that would cast doubt on the state court’s determination of competency. Whitmore’s use of the words “meaningful evidence” refers to the threshold showing Mrs. Brewer would be required to make in order to get an evidentiary hearing on the issue of competence. Whitmore clearly did not involve the question of the standard of proof applicable at the hearing on competence granted to Mrs. Brewer by the district court. Finally, although the Court said a “next friend” petitioner has the burden “clearly to establish the propriety of his status,” it did not announce a standard of proof by which a prisoner’s incompetence should be judged. In fact, the Court cited with approval the case of Groseclose ex rel. Harries v. Dutton, supra—a case holding that a preponderance of the evidence is the proper standard to apply in determining the prisoner’s competence, and the only case cited to us on the issue.
If the district court applied the incorrect standard, which I believe it did, then the case should be remanded so the district court as the finder of fact can re-evaluate the evidence on competency under the correct standard of proof.
C. Even if the District Court Decided Brewer’s Competence Under the Proper Legal Standard, Was Mrs. Brewer Afforded a Full and Fair Hearing?
In my view, the district court did not afford Mrs. Brewer a full and fair hearing on her son’s competency. The record shows “there was not sufficient opportunity for proper psychiatric and psychological evaluation of [Mr. Brewer].” Hays v. Murphy, 663 F.2d 1004, 1011 (10th Cir.1981).
Whether the district court hearing was adequate turns mainly on whether the dis*1032trict court abused its discretion in failing to give petitioner a fair opportunity to make use of the court’s discovery order, particularly the opportunity for Dr. Bayless to examine Brewer. The lack of time to do anything with the discovery order rendered the hearing unfair for two reasons. First, it rendered Dr. Bayless unable to express a definitive medical opinion on the ultimate issue of Brewer’s competence. Without an opportunity to examine Brewer, Dr. Bay-less was only able to testify that, based on evidence not available to him when he testified in 1988 that Brewer was competent, he now had “serious questions” as to the validity of his original opinion. Second, without the assistance of an expert who had an opportunity to examine Brewer, counsel for petitioner was, as any lawyer would be, handicapped in his efforts to cross-examine the state’s mental health experts.
CONCLUSION
In conclusion, even without the automatic stay rule, I would issue a temporary stay on any one of the following grounds: (1) that the stay is necessary to preserve our jurisdiction by giving us a fair opportunity to resolve the standing issues raised by petitioner (see 28 U.S.C. § 1651); (2) that we should remand to the district court for a redetermination of the issue of competency under the preponderance of the evidence standard; and (3) that the case should be remanded to the district court to conduct a new competency hearing after Mrs. Brewer has a reasonable opportunity to have Dr. Bayless examine her son and engage in other discovery as authorized by the court’s discovery order.
The argument is made that we should not take a reasonable time to consider Mrs. Brewer’s appeal because any additional delay in her son’s execution would frustrate the state’s plan to execute him on March 3rd and would only add to Mr. Brewer’s anguish waiting for the death he says he wants. But to the extent this execution has been delayed, however, it is not the fault of the federal court system; the district court and appellate courts combined have had this case for less than three weeks. The blame, if any, rests with the State of Arizona, which, over Mr. Brewer’s continuous objection, has taken four and a half years to schedule his execution.
.A human life is at stake. I fail to understand the rush to judgment. This is not, after all, a successive petition, and no one suggests that in filing a first petition, Mrs. Brewer has abused the Great Writ.
ORDER
The petitioner’s request for a certificate of probable cause and stay of execution is GRANTED. .
. Mrs. Brewer presented much of this new evidence to the state courts promptly after he was found competent at the November 1992 hearing. Neither Arizona nor Mr. Brewer claims she had any obligation to seek "next friend” relief for her son before that competency determination was made.
. Dr. Alexander Don, who testified for the state at the district court hearing, formed his opinion that Mr. Brewer was competent without having read his letters. Dist.Ct. Transcript at 78. Interestingly, Dr. Don disagreed with Dr. Celia Drake, another doctor who submitted testimony for the state, on a significant element of her diagnosis. Id. at 68. Even though Dr. Drake concluded that Mr. Brewer was competent to be executed, she found that he had a "long history of emotional problems with a history of depression and suicide attempts that resulted in mental health intervention.” Drake Affidavit at 19, 21. Dr. Don cited a scholarly test "regarding the stressful experience on death row and the likelihood that an individual who is sentenced and is awaiting execution may well decompen-sate into a psychotic state,” but found no indication that this had happened in Mr. Brewer's case. Dist.Ct. Transcript at 62.
. The majority cites Lenhard v. Wolff, 603 F.2d 91 (9th Cir.1979) as authority for also giving the 1988 finding of competency a presumption of correctness. In Lenhard, however, the state court hearing was held in 1978 and the federal court hearing in 1979. Here, the elapsed time was over four years — four years on death row. Moreover, in Lenhard there was no new evidence indicating incompetence. Here the federal court was presented with new evidence not available at the 1988 hearing' — specifically, Brewer's letters, Dr. Bayless' recantation of his 1988 testimony, and Dr. Rollins' and Dr. Heller's *1031affidavits, all of which raised doubts about Brewer’s current mental status.