RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 11a0132p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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DANIEL LEE BEDFORD,
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Petitioner-Appellee,
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No. 11-3526
v.
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Respondent-Appellant. -
DAVID BOBBY, Warden,
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Appeal from the United States District Court
for the Southern District of Ohio at Cincinnati.
No. 11-00311—Algenon L. Marbley, District Judge.
Decided and Filed: May 16, 2011
Before: BOGGS, SUTTON and McKEAGUE, Circuit Judges.
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COUNSEL
ON BRIEF: Charles L. Wille, OFFICE OF THE OHIO ATTORNEY GENERAL,
Columbus, Ohio, for Appellant. Carol A. Wright, Erin G. Barnhart, FEDERAL PUBLIC
DEFENDER’S OFFICE, Columbus, Ohio, for Appellee.
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OPINION
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PER CURIAM. Daniel Lee Bedford is scheduled to be executed tomorrow,
May 17, 2011. Earlier today, the district court granted Bedford’s motion for a stay (filed
last Friday) to give Bedford additional time to prove that he is incompetent to be
executed, see Ford v. Wainwright, 477 U.S. 399 (1986), and additional time to obtain
review of the state trial court’s Ford ruling against him. We grant the State’s motion to
vacate the district court’s stay for two reasons: Bedford waited too long to file his Ford
claim, and he has no chance of success on the merits of his claim.
1
No. 11-3526 Bedford v. Bobby Page 2
I.
In 1984, twenty-seven years ago, an Ohio jury convicted Bedford of murder and
aggravated murder, and the trial court, on the jury’s recommendation, imposed a
sentence of death. The state courts rejected his direct appeals and post-conviction
petition, see State v. Bedford, 529 N.E.2d 913 (Ohio 1988); State v. Bedford, No. C-
099412, 1991 Ohio App. LEXIS 4252 (Ct. App. Sept. 11, 1991), and we rejected his
petition for federal habeas relief in 2009, see Bedford v. Collins, 567 F.3d 225 (6th Cir.
2009). The Supreme Court denied certiorari early last year. Bedford v. Collins, __ U.S.
__, 130 S. Ct. 2344 (2010).
On April 22, 2010, almost thirteen months ago, the State asked the Ohio Supreme
Court to set Bedford’s execution date. Bedford filed a memorandum in opposition,
claiming that mental incompetence prevented him from assisting his counsel in clemency
proceedings. Bedford asked the Court to dismiss the State’s motion to set an execution
date or hold it in abeyance for at least six months. Meanwhile, in August 2010, Bedford
filed a second post-conviction petition asserting an Atkins claim, arguing he was
mentally retarded when he committed the offense and therefore was ineligible for the
death penalty. See State v. Bedford, No. C-100735, 2011 WL 1642311, ¶ 3 (Ohio Ct.
App. Apr. 29, 2011) (per curiam). The state appellate courts rejected his Atkins claim
on timeliness grounds. Id.; Ohio v. Bedford, __ N.E.2d __, 2011-Ohio-0741 (Ohio May
10, 2011) (Table).
On February 8, 2011, the Ohio Supreme Court rejected his effort to delay the
setting of an execution date, scheduling the execution for May 17, 2011.
For three months, Bedford did not file any pleadings in state or federal court. On
May 9, 2011, one week ago, Bedford filed a notice in state court under Ohio Rev. Code
Ann. § 2949.28, which provides a procedure by which death-row inmates may raise
challenges to their competence to be executed under Ford. That same day, he filed a
motion for a stay of execution with the Ohio Supreme Court. On May 11, the Ohio
Supreme Court denied his motion for a stay. On May 13, the state trial court dismissed
his claim, explaining that there was “no probable cause to believe that [Bedford] is
No. 11-3526 Bedford v. Bobby Page 3
insane under R.C. 2949.28(A),” App’x 33, and declined to hold an evidentiary hearing.
Bedford appealed to the state intermediate appeals court on May 13 and filed a second
motion for a stay with the Ohio Supreme Court. Earlier today, on May 16, after the Ohio
Supreme Court denied his second motion for a stay, the state intermediate appellate court
rejected his appeal. Bedford immediately appealed the state appellate court’s ruling and
renewed his motion for a stay in the Ohio Supreme Court. The Ohio Supreme Court
declined to exercise jurisdiction over the appeal and denied his motion for a stay pending
appeal. State v. Bedford, __ N.E.2d __, 2011-Ohio-2355 (Ohio May 16, 2011) (Table).
Meanwhile, on May 13, last Friday, Bedford filed a petition for habeas corpus
in federal district court, raising a Ford claim and arguing that Ohio’s competency
procedures denied him due process of law. Bedford also requested that the district court
stay his execution to allow the state courts more time to address his claims. At 4:00 pm
today, the district court issued an opinion granting the motion for a stay. The State filed
a notice of appeal and a motion to vacate the stay.
II.
When a “habeas corpus proceeding is pending,” federal courts have the authority
to stay an execution under 28 U.S.C. § 2251. We generally apply a four-factor test in
deciding whether to grant a stay: “1) whether there is a likelihood he will succeed on the
merits of the appeal; 2) whether there is a likelihood he will suffer irreparable harm
absent a stay; 3) whether the stay will cause substantial harm to others; and 4) whether
the injunction would serve the public interest.” Workman v. Bell, 484 F.3d 837, 839 (6th
Cir. 2007).
“A stay is an equitable remedy, and equity must take into consideration the
State’s strong interest in proceeding with its judgment.” Nelson v. Campbell, 541 U.S.
637, 649 (2004). “[T]here is a strong equitable presumption against the grant of a stay
where a claim could have been brought at such a time as to allow consideration of the
merits without requiring entry of a stay.” Id. at 650. “[T]he last-minute nature of an
application to stay execution” bears on the propriety of granting relief. Gomez v. U.S.
Dist. Court for N. Dist. of Cal., 503 U.S. 653, 654 (1992) (per curiam). We review the
No. 11-3526 Bedford v. Bobby Page 4
district court’s decision to grant a stay for an abuse of discretion. See Workman v.
Bredesen, 486 F.3d 896, 904–05 (6th Cir. 2007). “A district court abuses its discretion
when it relies on clearly erroneous findings of fact, or when it improperly applies the law
or uses an erroneous legal standard.” Tompkin v. Philip Morris USA, Inc., 362 F.3d 882,
891 (6th Cir. 2004).
III.
A.
Bedford’s first problem is that he waited far too long to bring this claim. Over
the last eighteen months, Bedford has had several opportunities to seek relief in the state
and federal courts on his Ford claim. He neglected every one of them—until seven days
ago.
In December 2009, he was interviewed by Dr. Doninger, the lead psychologist
in support of his Ford claim. Yet he did not file a Ford claim.
On April 22, 2010, after the United States Supreme Court denied his petition for
a writ of certiorari, Bedford, 130 S. Ct. 2344, the State moved to set an execution date.
He opposed the motion on the ground that his mental incompetence prohibited him from
assisting counsel in his clemency proceeding. Yet he did not file a Ford claim.
One week later, on April 30, 2010, Dr. Doninger prepared an affidavit attesting
to Bedford’s mental deterioration and memory loss. The affidavit indicated that Bedford
could not recall the specifics of the offense and had significant impairments. Yet he did
not file a Ford claim.
In May 2010, Bedford filed a motion to oppose the State’s request to set an
execution date, arguing that Bedford had “significant impairments in the areas of his
memory functioning, communicative abilities, comprehension skills, and reasoning
abilities.” App’x 45. Yet he did not file a Ford claim.
No. 11-3526 Bedford v. Bobby Page 5
In August 2010, Bedford filed an Atkins claim in state court, arguing he was
mentally retarded and was not eligible for the death penalty. Yet he did not file a Ford
claim.
In December 2010, the other psychologist testifying on behalf of Bedford, Dr.
Woods, interviewed Bedford. Yet Bedford did not file a Ford claim.
On February 8, 2011, the Ohio Supreme Court set his execution date for May 17,
2011. Yet he did not file a Ford claim.
In March 2011, Dr. Woods wrote a letter to the parole board about Bedford’s
incompetency, noting that his memory and adaptive skills were severely impaired and
that he was intellectually disabled. Yet Bedford did not file a Ford claim.
On May 9, 2011, three months after the Ohio Supreme Court set an execution
date and eight days before his execution, Bedford filed a Ford claim in state court.
The district court to its credit recognized that “undue delay” bears on whether to
grant a stay in this case. D. Ct. Op. at 5. Yet its reasons for excusing the delay, with all
due respect, are not convincing—and one of them no longer applies.
That a Ford claim does not become ripe until an execution is imminent offers no
excuse for waiting to raise the claim for the first time in any court—state or
federal—until eight days before the execution date. There is nothing in Bedford’s
medical history or in any of the affidavits that would provide a cognizable basis for
justifying this delay—such as a recent medical incident that exacerbated his condition
or a recent examination showing that what had once been a modest mental infirmity had
suddenly become a more serious one. And a frequent prerequisite to obtaining relief on
the claim—a hearing in which the trial court hears evidence about the issue—is
positively undermined by waiting until the eleventh hour and nearly the fifty-ninth
minute for bringing the claim. Indeed, it is puzzling to maintain that the state courts’
Ford procedure violates due process while simultaneously giving the state courts just
eight days to handle the claim (with no explanation for imposing such a timetable).
No. 11-3526 Bedford v. Bobby Page 6
That Bedford was evaluated in September 2009, December 2009 and December
2010 does not show that he exercised “due diligence” in bringing this claim. D. Ct. Op.
at 5. If anything, it cuts the other way. The delay from the latest of these evaluations
(December 2010) until eight days before the May 17 execution date is nowhere
mentioned or explained in the district court’s opinion. Nor does the district court cite
any evidence explaining what examination changed the diagnosis, if indeed a change
ever occurred, from an issue of initial mental infirmity to Ford-level incompetence.
That Bedford was pursuing relief through clemency during the last several
months also is of no moment. The two forms of relief are not mutually exclusive. And
the only reason we can fathom why an inmate facing an execution date would pursue just
one of these avenues of relief during the several months before his scheduled execution
does not help Bedford.
That the Ohio statute for implementing Ford has no time requirement does not
help Bedford either. The absence of a limitations period is just as it should be given the
nature of a Ford claim. But merely because an inmate might be able to provide a reason
for filing an eleventh-hour Ford claim does not mean that Bedford has any such reason.
He does not.
That a Ford claim is not treated as a successive petition does not automatically
entitle Bedford to a stay. In arguing to the contrary, Bedford invokes Lonchar v.
Thomas, 517 U.S. 314 (1996), but that decision involved a general claim for first federal
habeas relief, which this claim assuredly is not.
That Bedford is seeking a stay “not necessarily for a ruling on the merits of his
Ford claim . . . but for time to return to the state courts to complete his appeal” from the
state trial court’s ruling against his Ford claim, D. Ct. Op. at 6, also does not help him.
The state courts, including both state appellate courts, have now rejected Bedford’s Ford
claim on the merits. No doubt, the state trial court’s ruling was “summary,” id., and so
too perhaps were the rulings of the two state appellate courts. But that takes us back to
the central point: Bedford has offered no cognizable reason for waiting to bring this
claim in state court seven days ago and in federal court just three days ago. On this
No. 11-3526 Bedford v. Bobby Page 7
ground alone, the motion for a stay should have been denied, and the district court
abused its discretion in concluding otherwise.
B.
The second problem with Bedford’s claim is that he has no chance of success on
the merits, and that too by itself suffices to vacate the district court’s stay order as an
abuse of discretion. See Workman, 486 F.3d at 911. The Antiterrorism and Effective
Death Penalty Act (AEDPA), as the district court seemed to agree, see D. Ct. Op. at 6,
9, governs our review of Bedford’s petition for habeas corpus. Under AEDPA, we may
grant the writ with respect to claims “adjudicated on the merits in State court
proceedings” only if the state court adjudication “(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). The state trial court
adjudicated Bedford’s claims on the merits, and the state appellate courts have refused
to overturn that decision.
The Ford claim arises under the Eighth (and Fourteenth) Amendment, and at
least in one sense is clearly established: “the Eighth Amendment prohibits a State from
carrying out a sentence of death upon a prisoner who is insane.” Ford, 477 U.S. at
409–10; see Panetti v. Quarterman, 551 U.S. 930, 949, 957 (2007). “Once a prisoner
seeking a stay of execution has made ‘a substantial threshold showing of insanity,’ the
protection afforded by procedural due process includes a ‘fair hearing’ in accord with
fundamental fairness.” Panetti, 551 U.S. at 949. Bedford believes the state courts
misapplied these principles and that we should stay his execution to enable further
consideration of two claims: (1) that the state court unreasonably applied federal law
when it concluded he did not make a “substantial showing” of incompetence and denied
him a full evidentiary hearing, and (2) that the State’s competency procedures denied
him due process of law.
No. 11-3526 Bedford v. Bobby Page 8
The state courts reasonably rejected Bedford’s first claim. In the context of an
inmate’s competence to be executed, the inquiry is whether the prisoner can rationally
understand “the reasons for his punishment” or “whether he is unaware of why he is to
suffer it.” Panetti, 551 U.S. at 959. The Court has yet to “set forth a precise standard
for competency,” id. at 957, though “a psychotic disorder” would suffice, id. at 960.
That “a concept like rational understanding is difficult to define,” id. at 959, hurts
Bedford’s cause because it suggests a range of reasonable applications of the standard.
“[E]valuating whether a rule application was unreasonable requires considering the
rule’s specificity. The more general the rule, the more leeway courts have in reaching
outcomes in case-by-case determinations.” Yarborough v. Alvarado, 541 U.S. 652, 664
(2004). That is Bedford’s key problem on the merits.
The state courts reasonably decided that Bedford had not made “a substantial
threshold showing” that he lacked a rational understanding of “the punishment [he is]
about to suffer and why [he is] to suffer it.” Panetti, 551 U.S. at 949, 957. Bedford has
no documented prior history of a significant mental illness. And the evidence presented
to the state courts at most suggests he does not recall a series of details about the murder
or his life’s history. Even without considering the State’s contrary evidence, here are the
highlights of what Bedford’s experts have said:
Bedford’s memory is severely impaired. Pet. 68.
[He] lacks intact memories of events and easily confuses memories he
does have or that others attempt to remind him about. Pet. 74; see Pet.
13, 68.
In responding to inquiries about the perceived justice of his conviction,
Mr. Bedford stated “guess if I said I did it, I did it.” Pet. 14.
Bedford’s condition has . . . deteriorated . . . with the onset of a
dementia[-]form illness. Pet. 78. Bedford suffers from essential
hypertension, the foundation for multi-infarct dementia. Pet. 79.
Bedford also meets the clinical definition of mental retardation (also
termed intellectual disability). Pet. 79. [He has] significant limitations
in intellectual functioning, Pet. 80, and significant limitations in adaptive
functioning, Pet. 81.
No. 11-3526 Bedford v. Bobby Page 9
[He] is impaired on measures of . . . cognitive abilities that enable an
individual to engage in appropriate, socially responsible, goal directed
conduct and to modify behavior in response to environmental changes.
Pet. 23.
[P]rison officials . . . reported problems with . . . Bedford’s speech and
walking. Pet. 77.
Even on their own terms, the statements in these affidavits do not establish that
Bedford does not understand the reasons for his conviction or the nature of his
punishment, much less make it unreasonable to conclude to the contrary (as the state
courts did). The Supreme Court has never held, much less suggested, that the failure to
recall precise facts of an offense amounts to the kind of incompetence that prohibits the
execution of a defendant. Were it otherwise, that would hardly help death-row inmates,
as it would provide an incentive to carry out executions in fewer than 27 years after a
murder.
There is also much to say for the state court’s determination that Bedford did not
make a “substantial” showing of incompetence. Consider other details in Bedford’s
psychologists’ affidavits before the state court: Bedford could explain that if someone
were “on death row, they killed somebody” and “offered shallow reasons for why there
may be different levels of punishment for the same criminal act.” Pet. 14. He even
“suggested that different sentences may be handed down depending on the manner in
which the victim was killed and their identity or relationship with the perpetrator.” Id.
He understood he had received the death penalty for killing Gwen Toepfert and a life
sentence for killing John Smith. Pet. 15. Bedford also knew how the execution would
be carried out (by lethal injection) and the consequences of the execution (he would die
and, he hoped, wake up in a better place). Pet. 15–16. A state court could reasonably
conclude that all of this establishes Bedford’s “rational understanding of the State’s
reason for his execution.” Panetti, 551 U.S. at 956.
In reaching a contrary conclusion, the district court relied on Panetti. But that
decision hardly shows that the state courts acted unreasonably. Above all, neither party
in Panetti disputed that Panetti had made a substantial threshold showing of
No. 11-3526 Bedford v. Bobby Page 10
incompetence. 551 U.S. at 950. Nor could they. Panetti had been hospitalized
numerous times for psychiatric disorders, including fragmented personality, delusions
and hallucinations. Id. at 936. He had numerous psychotic episodes and became
convinced the devil possessed his home. Id. Nothing of the sort is true here. What
explains Panetti is the reality that the court of appeals did not believe Panetti’s delusions
were relevant to his competence to be executed, which is what prompted the Supreme
Court to step in. Bedford has no similar indications of a comparatively serious mental
defect.
The district court also thought that “[o]nce the paper record presented conflicts
of fact and credibility, Ford and Panetti required an evidentiary hearing.” D. Ct. Op. at
9. That is not true. That different doctors reach different conclusions about an
individual’s mental health does not itself prove that any one of the doctors has shown a
cognizable basis for granting a Ford hearing.
The district court questioned not only the substance of the state court’s
determinations but also its procedures. The court thought that the state trial court’s
procedures were “questionable” because it based its ruling on a “paper review” of the
expert reports. D. Ct. Op. at 8. But nothing about what the state court did was
unreasonable under clearly established Supreme Court law. Justice Powell’s
concurrence in Ford, which lays out the clearly established law for AEDPA purposes,
see Panetti, 551 U.S. at 949, rejected a threshold determination that was “made solely
on the basis of the examinations performed by state-appointed psychiatrists” where the
defendant was “prevent[ed] . . . from offering contrary medical evidence.” 477 U.S. at
424. In this case, the state court considered Bedford’s submissions in making its
threshold determination. As long as the state court “receive[d] evidence and argument
from the prisoner’s counsel,” which the court did, it enjoys “substantial leeway to
determine what process best balances the various interests at stake.” Id. at 427.
Contrary to the district court’s reading, nothing in Justice Powell’s concurrence requires
a full hearing as part of a threshold determination of probable cause of insanity.
Otherwise, there would be no point in having a bifurcated process.
No. 11-3526 Bedford v. Bobby Page 11
A claimant is entitled to additional procedures once he has made a “substantial”
showing of insanity, id. at 426, not merely because he has shown a conflict in the record.
The evidence presented by Bedford and the government at any rate does not present a
stark contrast in facts but a disagreement about what legal conclusion to draw from the
facts. The district court focused on the fact that the State’s experts had not interviewed
Bedford themselves. But this goes to show only that there was no factual conflict
because the State’s experts relied on Bedford’s own evidence. And this takes the case
further from Ford because the court did not rely “solely” on the State’s experts, but if
anything it relied mainly on Bedford’s experts.
The district court also believed that a stay was appropriate on the ground that
Bedford should be given a chance to complete review of his Ford claim in the state
courts. But he now has had that chance, as the state courts have rejected all of these
claims.
Precedent forecloses Bedford’s other merits claim—that Ohio’s Ford procedures
fail to satisfy due process. Ford establishes that once a prisoner has made the requisite
showing of incompetence, he is entitled to due process protections including a fair
hearing. Panetti, 551 U.S. at 949. “This protection means a prisoner must be accorded
an opportunity to be heard, though a constitutionally acceptable procedure may be far
less formal than a trial.” Id. Due process requires more than a determination based
“solely on the . . . the examinations performed by state-appointed psychiatrists.” Ford,
477 U.S. at 424 (Powell, J., concurring). Ohio’s regime of requiring a prisoner to show
probable cause of incompetence, we have already held, comports with the standards
established in Ford. See Scott v. Mitchell, 250 F.3d 1011, 1014–15 (6th Cir. 2001).
Ohio’s procedures “afforded [Bedford] the basic fairness that Ford requires; namely the
opportunity to be heard.” Id. at 1014. In denying Bedford’s claim, the state court
“considered the pleadings of both parties,” Pet. 126, and reasonably concluded Bedford
had not made a substantial threshold showing of incompetence that would entitle him to
additional process, see Panetti, 551 U.S. at 949.
No. 11-3526 Bedford v. Bobby Page 12
IV.
For these reasons, we grant the State’s motion to vacate the district court’s stay
of execution.