Dawson v. Mahoney

• Citation: 451 F.3d 550
• Decision Date: 08 June 2006
• Docket Number: No. 06-99004.,06-99004.
• Parties: David Thomas DAWSON, Petitioner-Appellant, v. Michael MAHONEY, Warden, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 550

451 F.3d 550 David Thomas DAWSON, Petitioner-Appellant,
v.
Michael MAHONEY, Warden, Respondent-Appellee. No. 06-99004. United States Court of Appeals, Ninth Circuit. June 8, 2006.

William F. Hooks, Esq., Helena, MT, Katherine Lund Ross, Esq., Mukilteo, WA, for Petitioner-Appellant.

Pamela P. Collins, Mike Mcgrath, Esq., Office of the Montana Attorney General, Helena, MT, for Respondent-Appellee.

Before WILLIAM C. CANBY, JR., THOMAS G. NELSON, and ANDREW J. KLEINFELD, Circuit Judges.

ORDER

Montana state prisoner David Thomas Dawson was convicted and sentenced to death in 1987 for three counts of deliberate homicide. In 2004, Mr. Dawson moved to discharge his federal habeas counsel, to waive further habeas proceedings, and for the appointment of an independent expert to determine his competency. The federal district court appointed two independent mental health experts to evaluate Mr. Dawson and ordered the parties to provide all relevant materials to those experts. After considering the experts' reports, the federal district court found that Mr. Dawson is competent to waive further proceedings and has made that decision knowingly, intelligently, and voluntarily. On December 12, 2005, the federal district court granted Mr. Dawson's motion to discharge his habeas counsel, Kathryn Ross and William Hooks, and granted his motion to waive further habeas proceedings. The federal district court later denied habeas counsel's motion for a certificate of appealability (COA).

Page 551

On December 15, 2005, the Montana district court conducted a competency hearing at which Mr. Dawson appeared by video. After an extensive colloquy with Mr. Dawson, the Montana district court found that Mr. Dawson is competent and has a made a knowing, intelligent, and voluntary decision to waive further habeas proceedings. On April 11, 2006, the Montana Supreme Court granted Mr. Dawson's motion to dismiss counsel Ross and Hooks and granted Mr. Dawson's motion to dismiss all appeals. On May 15, 2006, the Montana district court set an execution date for August 11, 2006.¹

On December 27, 2005, habeas counsel filed a notice of appeal in federal district court. In this Court, habeas counsel filed "Habeas Counsels' Motion For Certificate of Appealability" (COA) and "Petitioner's, Through Habeas Counsel, Motion For Stay of Execution." Mr. Dawson opposes "former counsel's" COA and stay motions, as does Respondent.

An appeal may not be taken from the final order in a habeas corpus proceeding unless a COA is granted. See 28 U.S.C. § 2253(c)(1); see also 28 U.S.C. § 2253(c)(2) (a COA may issue only if the applicant has made a substantial showing of the denial of a constitutional right); Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) (a substantial showing of the denial of a constitutional right includes a...