Dennis ex rel. Butro v. Budge

• Decision Date: 30 July 2004
• Docket Number: No. 04-99003.,04-99003.
• Citation: 378 F.3d 880
• Parties: Terry Jess DENNIS, by and through Karla BUTKO, as Next Friend, Petitioner — Appellant, v. Michael BUDGE, Warden; Brian Sandoval, Attorney General of the State of Nevada, Respondents — Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 880

378 F.3d 880

Terry Jess DENNIS, by and through Karla BUTKO, as Next Friend, Petitioner — Appellant, v. Michael BUDGE, Warden; Brian Sandoval, Attorney General of the State of Nevada, Respondents — Appellees.

No. 04-99003.

United States Court of Appeals, Ninth Circuit.

Argued (by telephone) and Submitted July 26, 2004.

Decided July 30, 2004.

COPYRIGHT MATERIAL OMITTED

Michael Pescetta, Assistant Federal Public Defender, Las Vegas, Nevada, for petitioner-appellant.

Robert E. Wieland, Senior Deputy Attorney General, Reno, Nevada, for respondent-appellee.

Appeal from the United States District Court for the District of Nevada Philip M. Pro, Chief District Judge, Presiding. D.C. No. CV-S-04-0798-PMP.

Before: RYMER, BERZON, and CALLAHAN, Circuit Judges.

RYMER, Circuit Judge:

Karla Butko, a lawyer, appeals the district court's denial of her petition for writ of habeas corpus filed on behalf of her former client, Terry Dennis, a Nevada state prisoner, who is scheduled to be executed on August 12, 2004. She also asks for a stay of execution. The district court held that Butko lacks standing as Dennis's "next friend" and, consequently, dismissed the habeas petition. The district court also denied motions to proceed in forma pauperis, for appointment of counsel, and for stay of execution. The district court granted a Certificate of Appealability. We heard argument by telephone, and affirm dismissal of the petition. As Butko lacks standing, we also lack jurisdiction to stay the execution.

I

Terry Dennis was charged with first degree murder in the Nevada state district court in Washoe County on March 29, 1999, and the State of Nevada filed a notice of intent to seek the death penalty on April 14, 1999.¹ Dennis filed a guilty plea memorandum, was evaluated by a psychiatrist, was determined to be competent to stand trial, and entered a guilty plea. On April 16, 1999, the court found that Dennis understood the nature of the charges, the potential penalty of death, and was able to assist in his own defense. The court found that Dennis was competent to enter a guilty plea. At the penalty hearing, evidence was presented that Dennis suffered from mental illness — including bipolar disorder and post-traumatic stress disorder — that he had a long history of suicide attempts, and that he suffered abuse at the hands of his family. A three-judge panel sentenced Dennis to death. The Nevada Supreme Court affirmed the conviction and sentence. Dennis v. State, 116 Nev. 1075, 13 P.3d 434 (2000).

Dennis filed a petition for writ of habeas corpus in the state district court. Butko was appointed as habeas counsel on April 25, 2001. The state court dismissed the petition without an evidentiary hearing, and Dennis appealed to the Nevada Supreme Court. Before his appeal was heard, Dennis wrote letters to the state district court, the Washoe County District Attorney, and the Nevada Supreme Court expressing his desire to withdraw his appeal. The letter to the Nevada Supreme Court, dated September 9, 2003, stated that on September 4, 2003, "I met with Ms. Butko and informed her that I no longer wish to pursue any appeals and want my sentence to be carried out." However, on September 16, 2003, Butko filed an opening brief. Dennis then wrote the District Attorney on September 17, stating: "On 9-4-03 I informed Ms. Butko that I no longer wish to continue my appeals and I repeated the same to her on 9-16-03.... I don't know what I need to do to facilitate this so that's why I'm writing to you. Ms. Butko is doing all she can to delay things hoping I'll change my mind but I've been thinking this over for quite some time now and I assure you my mind's made up and I know what I'm doing." After receiving this letter, the District Attorney wrote to Butko that he assumed that she would move to dismiss the appeal because of Dennis's expressed desire. Butko responded that she would continue the appeal because she could not say Dennis is competent or "ready to make a knowing, intelligent and voluntary relinquishment of his right to appeal." The State filed a motion to remand the case to the state district court to conduct an evidentiary hearing to determine whether Dennis was competent to waive his appeal. On October 22, 2003, the Nevada Supreme Court granted the motion.

On November 7, 2003, Butko moved for permission to withdraw because Dennis's desire to waive his appeal and proceed to execution was so repugnant to her that she could no longer represent him. The trial court granted the motion and appointed new counsel.

The state district court also appointed a psychiatrist, Dr. Thomas E. Bittker. Bittker examined Dennis on November 24, 2003, reviewed records, interviewed counsel, and prepared a report. The report states that Dennis had a history consistent with Attention Deficit/Hyperactivity Type and had been diagnosed with Bipolar Disorder, Alcohol and Drug dependence, Post-traumatic Stress Disorder by history, and Mixed Personality Disorder with Antisocial Cyclothymic, Borderline, and Schizoid Features. It indicates that Dennis's "thoughts were focused, there was no evidence of tangentiality and circumstantiality." The report states that it is consistent with Dennis's pattern as a dependent man consumed by self-hatred that he "both killed the victim and is seeking the death penalty as a convenient way out of life, and a way of assuring himself that ultimately he will die."

In response to questions posed by the court, Bittker opined:

1. The defendant does have sufficient present ability to consult with his attorney with a reasonable degree of factual understanding.

2. The defendant has a rational and factual understanding of the proceedings. He is fully aware of the charges that he confronts, the implication of the sentence, and has a full understanding of what is involved in the death penalty. He is also aware of the legal options available to him and the consequences of his not proceeding with these options.

3. The defendant is currently taking medications that are reasonable and consistent with the diagnosis of Bipolar Disorder, and his primary psychiatric problems, alcohol, amphetamine, and cocaine dependence, are contained by virtue of the total institutional control in his life.

4. The medications that he is taking are not having any unusual effect on the defendant's ability to make decisions in behalf of his own interest, and to cooperate with counsel or to participate in the court hearing.

Having acknowledged all of the above, on the other hand, the defendant has sustained over years episodes of suicidal ideation, suicide attempts, and self-destructive behavior, which heralded both the instant offense and his current legal strategy. I believe, with a reasonable degree of medical certainty, that the defendant's desire to both seek the death penalty and to refuse appeals in his behalf are directly a consequence of the suicidal thinking and his chronic depressed state, as well as his self-hatred.

Clearly, an alternative to consider is whether or not the defendant's view of himself is simply a realistic incorporation of society's view of his "monstrous" behavior. On the other hand, it is conceivable and, in my mind, likely that both the defendant's offense and his current court strategy springs from his psychiatric disorder and his substance abuse disorder, that he wishes to die and he wishes to be certain of a reasonably humane death. Consequently, the death penalty, as provided by the state, is quite congruent with both his intent and his psychiatric disorder.

On December 4, 2003, the state district court conducted a hearing at which Dennis was present. The State and Dennis agreed that testimony was not necessary from Bittker. However, the court engaged in a comprehensive colloquy with Dennis.

Dennis testified that he hadn't attempted suicide or felt suicidal in prison, and had not attempted suicide since he started taking medication in 1995. The court had Dennis re-read his initial habeas petition to make sure there was nothing he wanted revisited and the court reviewed with Dennis the assignments of error alleged in the petition. Dennis asserted his desire to give up his right to pursue each of these claims. In response to the court's inquiry as to what Dennis wanted to happen in the case, Dennis stated "Well, I'm not sure what the process is step by step, but in the end without, without getting into a biblical standard of an eye for an eye or anything like that, basically, I took a life and I'm ready to pay for that with mine." Dennis stated he understood that by giving up his appeal the death penalty will be imposed, this was what he wanted to occur, he wanted to give up the right to a hearing on his appeal, he did not want an opportunity to have more time to prepare, and he had enough time to speak with his lawyers. Regarding his lawyers, Dennis stated "we have spent beau-coup time talking about this. Between him and Karla [Butko] they about browbeat me to death, but no, I'm staunch in my decision." Dennis repeatedly affirmed that he understood the proceedings, he had not been threatened or coerced in any way, he understood his decision and the consequences, and he wanted to give up his appeal.

Dennis's attorney, Scott Edwards, asked whether Dennis was giving up his appeal because he was unhappy with the prison conditions. Dennis said "no, the conditions aren't any worse than one would expect." Responding to the question why he changed his mind after filing the appeal, Dennis said he decided that he "would rather not live than to continue to live and be a doddering old man in prison." The court asked why Dennis had not attempted suicide in prison, and Dennis responded that his previous suicide attempts were always linked to alcohol, but this was not an issue in prison. Dennis also stated he was not having any auditory or visual hallucinations and he was able to understand the discussions. He affirmed that he...