Concurring:
Under Whitmore, the “prerequisite for ‘next friend’ standing is not satisfied where an evidentiary 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.” Whitmore v. Arkansas, 495 U.S. 149, 165, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990) (citing Gilmore v. Utah, 429 U.S. 1012, 1017, 97 S.Ct. 436, 50 L.Ed.2d 632 (1976) (Stevens, J., concurring)). The evidentiary hearing the Court reviewed in Whitmore addressed the specific question whether the defendant “had ‘the capacity to understand the choice between life and death and to knowingly and intelligently waive any and all rights to appeal his sentence.’ ” Id. (quoting Simmons v. State, 298 Ark. 193, 766 S.W.2d 422, 423 (1989)). The Court analyzed the Arkansas trial court proceedings as follows:
Simmons was questioned by counsel and the trial court concerning his choice to accept the death sentence, and his an*1253swers demonstrate that he appreciated the consequences of that decision. He indicated that he understood several possible grounds for appeal, which had been explained to him by counsel, but informed the court that he was “not seeking any technicalities.” In a psychiatric interview, Simmons stated that he would consider it “a terrible miscarriage of justice for a person to kill people and not be executed,” and there was no meaningful evidence that he was suffering from a mental disease, disorder, or defect that substantially affected his capacity to make an intelligent decision.
Id. at 165-66, 110 S.Ct. 1717 (citing Rees v. Peyton, 384 U.S. 312, 314, 86 S.Ct. 1505, 16 L.Ed.2d 583 (1966)).1
Similarly in Demosthenes v. Baal, 495 U.S. 731, 110 S.Ct. 2223, 109 L.Ed.2d 762 (1990), there had been a full evidentiary hearing following Baal’s decision to abandon his petition for postconviction relief regarding the specific question of his competency to do so. Again, the Court summarized the nature and substance of that hearing:
At that hearing, Baal testified that he did not want to continue any postconviction proceedings. He further testified that he knew the date he would be put to death, the reason he would be put to death, and that his waiver of postconviction relief would result in his death. A state psychiatrist testified that Baal was competent; a state prison official who had observed Baal also testified as to Baal’s competence. The court also reviewed the reports of three psychiatrists who had examined Baal and concluded that he was competent to stand trial. Based on this evidence, the court held that Baal was aware of his impending execution and of the reason for it, and thus was sane under the test set forth in Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986). The court further held that Baal was in control of his faculties, was competent to choose to decline to pursue an appeal, and had made an intelligent waiver of his right to pursue postconviction relief.
Id. at 732-33, 110 S.Ct. 2223.
This court applied Whitmore and Baal in Brewer v. Lewis, 989 F.2d 1021 (9th Cir.1993), denying next friend standing to petitioner because she had not presented meaningful evidence of incompetency sufficient to overcome two prior state trial court findings of competency, each based on a full hearing where the trial court questioned Brewer personally. Unlike these cases, I believe Miller’s state court competency hearings did not address the competency issue presented here. Accordingly, for the reasons set forth by Judge Reinhardt and as amplified below, I concur in the order of stay and remand.
There has not been a hearing focused on Miller’s competency to waive or abandon his right of appeal and to submit to execution. Rather, the state trial court hearings on October 26, 1998 and December 13, 1999 concerned Miller’s competency to represent himself and pursue his appeal. Although Judge Rymer cites to Miller’s statement that he “has been fighting for his execution since 1996,” the record of the hearings reflects an assumption that Miller was planning to challenge his conviction, not abandon it. Indeed, the two doctors who examined Miller’s competency in 1998 have stated they did not consider the impact of incarceration and proceeded on the assumption he was planning to appeal. Neither evaluated him for purposes of waiving his appeal rights. Moreover, the record of the December 13 hearing consists of a minute order and does not reveal *1254the contents of the court’s discussion with Miller. Accordingly, I do not believe the findings of Miller’s competency to be of the same character and weight as a determination focused and based on evidence directly relevant to voluntarily submitting to execution.
Absent such a state court determination, I believe Jones has presented sufficient meaningful evidence to raise a question of Miller’s competency to waive his appeal rights — -at least enough to warrant an evi-dentiary hearing as to Miller’s current competency. First, although Miller directly and through his advisory counsel insists that he is competent and his actions are voluntary, crediting his position begs the question of his competence.
Second, both Doctors Morenz and Morris qualify the nature and scope of their competency evaluations provided in 1998, stating they did not consider the impact on Miller of death row living conditions and concluding that “further evaluation of Miller is definitely warranted to ascertain whether his psychological conditions have deteriorated to the point that he is incompetent to be executed .... ” Admittedly, neither has seen or spoken to Miller directly since 1998, but they are not strangers to Miller, know his troubled history and their speculation as to the potential for adverse effects of incarceration in SMU II finds support in this court’s own assessment of that facility in Comer v. Stewart, 215 F.3d 910, 917-18 (9th Cir.2000).
Third, the two state doctors who evaluated Miller on October 18, 2000, although purporting to give Miller a clean bill of health, acknowledged that he had been suffering “temporary auditory hallucinations” — hearing voices — as a result of working on at hard labor. Moreover, his decision to abandon his appeals once he entered SMU II suggests the conditions of confinement may indeed have adversely affected his mental state.
In sum, there has never been a hearing focused on Miller’s competency to waive his appeal rights and submit to execution, the issue instead being litigated on affidavits and representations and arguments of counsel. On this record, I believe there is a substantial question as to Miller’s present competence sufficient to support this court’s jurisdiction to issue a- stay of execution pending an evidentiary hearing. If Miller is found currently incompetent, then Jones would have standing to file habeas proceedings as his next friend; otherwise, she would not. (Because the Arizona Supreme Court on November 6, 2000 granted Jones’ motion to appear as next friend, although denying her motion to stay execution, I am assuming she meets the second prong of the next-friend standing test of Whitmore.)
. In Rees v. Peyton, the Court reviewed a petitioner's request to withdraw, against the advice of his current counsel, a petition challenging his death sentence. Noting concerns about the petitioner's mental health and the absence of a prior judicial determination of competency, the Court declined to dismiss the petition and ordered the district court to conduct a hearing to determine "whether [the petitioner] has capacity to appreciate his position and make a rational choice with respect to continuing or abandoning further litigation. 384 U.S. at 314, 86 S.Ct. 1505.