Massie v. Woodford

• Decision Date: 25 March 2001
• Docket Number: No. 01-99002,01-99002
• Citation: 244 F.3d 1192
• Parties: (9th Cir. 2001) ROBERT LEE MASSIE, By and Through Michael A. Kroll, Next Friend, Petitioner-Appellant, v. JEANNE S. WOODFORD, Warden, Respondent-Appellee
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1192

244 F.3d 1192 (9th Cir. 2001)

ROBERT LEE MASSIE, By and Through Michael A. Kroll, Next Friend, Petitioner-Appellant, v. JEANNE S. WOODFORD, Warden, Respondent-Appellee.

No. 01-99002

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted by telephone March 25, 2001

Filed March 25, 2001

Gail R. Weinheimer, San Anselmo, California and Robert F. Kane, San Francisco, California for petitioner and next friend Michael A. Kroll.

Kirk C. Jenkins, Sedgwick, Detert, Moran & Arnold, San Francisco, California for petitioner Robert Lee Massie.

Bruce Ortega and Dane R. Gillette, San Francisco, California for respondent Jeanne Woodford.

Appeal from the United States District Court For the Northern District of California Charles A. Legge, District Judge, Presiding. D.C. No. C-01-1183-CAL N.D. Cal.

Before: SILVERMAN, GOULD, and TALLMAN, Circuit Judges

OPINION

PER CURIAM:

Michael A. Kroll appeals after the district court denied his motions to proceed as "next friend" for, and stay the execution of, Robert Lee Massie, a California prisoner whose execution is scheduled for March 27, 2001 at 12:01 a.m. After carefully reviewing all the papers before us and hearing oral argument by phone, we affirm the district court's judgment and deny a stay of execution.

Robert Lee Massie was convicted and sentenced to death for the January 3, 1979 murder of Boris Naumoff. See People v. Massie, 967 P.2d 29 (Cal. 1998). Whether Massie's conviction and sentence meet federal constitutional standards is not now before us. We focus solely on whether the district court erred when it concluded that Kroll lacked standing to appear as Massie's next friend. See Whitmore v. Arkansas, 495 U.S. 149, 164 (1990) (standing is jurisdictional and the burden is on the next friend to establish the propriety of his or her status).

In order to establish next friend standing, the putative next friend must show: (1) that the petitioner is unable to litigate his own cause due to mental incapacity, lack of access to court, or other similar disability; and (2) the next friend has some significant relationship with, and is truly dedicated to the best interests of, the petitioner. See Whitmore, 495 U.S. at 163-65. The district court concluded that Kroll lacked standing on the former ground. The district court's finding that Massie is competent is a factual determination, see Demosthenes v. Baal, 495 U.S. 731, 735 (1990), that we accept unless clearly erroneous.

A. Background

Massie initiated federal habeas proceedings in June of 1999. On May 15, 2000, represented by the same counsel who represented him on direct appeal and thereafter, Massie filed an amended petition asserting only four claims. In order to determine whether Massie was competent to waive all other potential claims, the district court conducted an evidentiary hearing where Massie appeared in person. Massie explained that it was his decision, not counsel's, that only claims that would lead to Massie's outright release would be raised because, in Massie's opinion, another retrial would lead only to the same result, another death sentence, or at best, a sentence of life without the possibility of parole. See Transcript of August 18, 1999 Hearing at 9-12. In response to direct questions by the district court, Massie testified that in the past ten years he has not seen a prison psychologist or psychiatrist, nor has he taken any medication for psychological or psychiatric matters. See id. at 6-7. Massie also stated expressly that he understood he was waiving all ineffective assistance of counsel claims, including the claim that present counsel was ineffective for previously failing to raise possibly meritorious issues. See id. at 15-16. The district court offered Massie the services of independent counsel with whom to consult, but Massie refused. See id. at 17. After extensive testimony by Massie, the district court found Massie competent under the standard of Rees v. Peyton, 384 U.S. 312, 313-14 (1966) (per curiam) (whether petitioner has the capacity to appreciate his position and make a rational choice with respect to continuing or abandoning further litigation or on the other hand whether he is suffering from a mental disease, disorder, or defect which may substantially affect his capacity in the premises). See District Court's Order of August 25, 1999 at 3.

In October 2000, Massie moved to dismiss his federal petition. The district court conducted an evidentiary hearing on December 21, 2000. Massie, who again appeared in person, testified that he changed his mind because: (1) he was convinced in light of a recent court opinion that one of the claims he asserted would not lead to his release; and (2) it was not the conditions of confinement but the quality of life in prison that led him to change his mind and dismiss his petition, adding that "[s]ome people prefer to just go ahead and move on." See Transcript of December 21, 2000 Hearing at 17, 20. Massie confirmed that he had not received any medical or psychiatric care or taken any medications since the last hearing. See id. at 11. Massie stated he understood that he was under a sentence of death and that the dismissal of his petition would result in his death. See id. at 18-20. The district court also heard the sworn testimony of Massie's counsel, Fred Baker, who has represented Massie since 1993. Baker testified that Massie is "competent, highly intelligent, well-informed, and insightful with respect to the legal and the other issues involved in this case." See id. at 6. Asked by the court about the number of his communications with Massie concerning the subject of dismissing his petition, Baker testified that "there have been dozens of written communications," "at least a dozen telephone conversations," and "two in-person visits." See id. at 5. The district court found that Massie was competent to dismiss his petition and that his decision to do so was knowing, intelligent, and voluntary. See id. at 27. The district court gave Massie until January 8, 2001 to reconsider. See id. at 28. Having heard nothing from Massie, the district court later dismissed Massie's petition. See District Court's Order of January 8, 2001. The state courts thereafter set Massie's execution for March 27, 2001.

Three state medical doctors interviewed Massie for fifty-five minutes on February 22, 2001 and for forty-five minutes on March 7, 2001. Although these doctors did not specifically address the competency standard under Rees v. Peyton, each concluded that Massie understood that he was about to be executed and why.¹ California Department of Corrections Staff Psychiatrist S.C. Gibbs, M.D., submitted a report of his evaluation of Massie that took place on March 7, 2001. He reported that:

In interview inmate Massie was calm, and entirely appropriate in his behavior. He conversed in a rational manner and indicated a full understanding of his circumstances. He was fully oriented to time, person, and place. He discussed at length his viewpoint and the rationale behind it. At no point did he manifest evidence of any mental disorder or defect.

See March 7, 2001 7-Day Pre-Execution Report by S.C. Gibbs, M.D.

On or about March 20, 2001, Michael A. Kroll, a journalist who over the past fifteen years has corresponded, and at times met, with Massie, filed in the California Supreme Court essentially the same next friend petition that underlies this appeal. On March 22, 2001, Massie's counsel submitted a response to the next friend petition, which included a declaration signed by Massie on March 22, 2001. Massie opposed the next friend petition and asked the California Supreme Court not to file it. On March 23, 2001, the California Supreme Court denied the next friend petition because, inter alia, it failed to show that Massie was incompetent to elect not to seek habeas relief. See California Supreme Court Order of March 23, 2001.

In district court that same day, March 23, 2001, Kroll filed, on Massie's behalf, motions to file an amended petition and for stay of execution. The district court conducted a hearing late that afternoon and, for reasons stated orally from the bench, denied both motions early that evening. Kroll has appealed.

At oral argument in this Court, Massie, through counsel, opposed the next friend petition. We now review to determine whether Kroll can establish standing.

B. Kroll's Contentions

Kroll insists that Massie is now incompetent to waive his habeas proceedings. Kroll asserts, in the petition which he seeks to file on Massie's behalf, that Massie's underlying conviction for murder is invalid because, inter alia, the trial court failed sua sponte to order a competency hearing for Massie despite numerous indications that Massie may have been incompetent to stand retrial in 1989. Kroll maintains that Massie was also incompetent at his 1965 murder trial and therefore evidence of that conviction should not have been admitted for special circumstance and aggravating evidence purposes at his 1989 retrial. Kroll also contends that appellate counsel, who represented Massie in his direct appeal of his 1989 conviction and thereafter, rendered ineffective assistance of counsel because counsel acquiesced in Massie's suicidal wishes and only raised the claims that Massie wanted raised even though those claims purportedly are legally frivolous. Kroll further alleges that appellate counsel were civil lawyers, inexperienced in capital habeas litigation; that appellate counsel's opening brief was so deficient that the California Supreme Court instructed counsel to raise every arguable issue; and that despite this order, counsel filed a supplemental brief challenging the Supreme Court's order to force counsel to raise claims not desired by the client.

Kroll includes numerous documents that allegedly show that: Massie was abused and neglected as a child; Massie was twice gang-raped in prison as a young man; Massie has a...