Lenhard v. Wolff
| Decision Date | 24 August 1979 |
| Docket Number | No. 79-2632,79-2632 |
| Citation | 603 F.2d 91 |
| Parties | CA 79-3171 Kirk B. LENHARD and George E. Franzen, Clark County Deputy Public Defenders, Individually and as next friends acting on behalf of Jesse Walter Bishop, Petitioners, v. Charles WOLFF, Warden, Nevada State Prison System, and Richard Lippold, Warden, Maximum Security Unit, Respondents. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Anthony G. Amsterdam, Stanford, Cal., argued, for petitioners.
Edwin E. Taylor, Jr., Carson City, Nev., argued, for respondents.
Appeal from the United States District Court for the District of Nevada.
Before WRIGHT, SNEED and HUG, Circuit Judges.
The emergency application for a stay of execution of the sentence of death imposed upon Jesse Walter Bishop presently set for Monday, August 27, 1979 is denied and the appeal from the denial of the writ of habeas corpus is dismissed. Messrs. Lenhard and Franzen, Deputy Public Defenders of Clark County, Nevada, attempting to appear as next friend acting on behalf of Bishop, filed the application for the stay and the appeal.
Jesse Bishop, proceeding in propria persona, pleaded guilty to nine felony charges including murder and was sentenced to death in the Eighth Judicial District Court, Clark County, Nevada on February 10, 1978. During the course of the arraignment, Bishop moved to dismiss his court appointed counsel, the public defender, making it known that he desired to plead guilty to all charges. The court ordered a psychiatric evaluation of his competence to do so. He was then examined by three psychiatrists and on January 23, 1978, based upon their conclusions, he was found to be competent to enter a guilty plea, to discharge his attorneys and to represent himself. The trial court therefore permitted Bishop to act as his own counsel. The two attorneys who had represented him were ordered to stand by to render any assistance Bishop requested.
Bishop pleaded guilty to all counts and after a penalty hearing before a three-judge panel, appointed pursuant to the Nevada statute, he was sentenced to death.
On his mandatory appeal to the Nevada Supreme Court, Bishop at first consented to being represented by the public defender and thereafter changed his mind and sought to have the appeal dismissed. The Nevada Supreme Court, however, declined to dismiss and ruled on the merits affirming the conviction with one dissenting vote.
The petitioners herein were the court appointed counsel for Bishop who were discharged at Bishop's request but ordered by the court to stand by for consultation. They have since been discharged of responsibility but filed the petition for writ of habeas corpus and for stay of execution in the United States District Court for the District of Nevada as next friends of Bishop, acting under ethical and moral obligations arising from their past representations of Bishop. The district judge denied the petitions on the grounds that the petitioners had no standing as next friend.
Bishop himself has steadfastly maintained that he does not wish to seek relief in the federal courts and refuses to authorize any petition for habeas corpus or stay of execution to be filed on his behalf. Most recently he appeared in open court at the hearing before the district court on August 23, 1979 and declared that he believes he has a constitutional right to waive any rights to a federal appeal and desires to do so. He maintained he was intelligently and competently exercising his right to refrain from seeking relief from the federal courts.
The petitioners concede that if Bishop is competent he may indeed refuse to pursue relief in the federal courts, acknowledging that this is in accord with the holding of Gilmore v. Utah, 429 U.S. 1012, 97 S.Ct. 436, 50 L.Ed.2d 632 (1976). The issue as framed by the petitioners is that the execution should be stayed until a competency hearing can be held to determine Bishop's competence to waive possible relief in the federal courts. Petitioners contend this is mandated by Rees v. Peyton, 384 U.S. 312, 86 S.Ct. 1505, 16 L.Ed.2d 583 (1966), wherein the Supreme Court remanded for such a hearing. In Rees, however, there was conflicting psychiatric evidence concerning the competence of Rees. In that case Rees had been found by one psychiatrist to be mentally incompetent.
In this case, in contrast, there has been no showing of Bishop's incompetence. He was found to be competent by three psychiatrists to plead guilty, discharge his counsel and proceed with his own defense at the time of his trial in January of 1978. It is true that time has elapsed since, but there has been no showing of evidence which indicates incompetence. He has refused to be examined by a psychiatrist chosen by the petitioners...
To continue reading
Request your trial
-
Wilson v. Lane
...Evans v. Bennett, 440 U.S. 1301, 99 S.Ct. 1481, 59 L.Ed.2d 756 (April 5, 1979) (Rehnquist, J., Opinion in Chambers); Lenhard v. Wolff, 603 F.2d 91 (9th Cir. 1979), on applications for stay of execution, 443 U.S. 1306 (Sept. 7, 1979) (Rehnquist, J., Opinion in Chambers), 444 U.S. 807 (Octobe......
-
Franklin v. Francis
...87 L.Ed.2d 668 (1985) (Marshall, J. and Brennan, J., dissenting); Rumbaugh v. McKaskle, 730 F.2d 291 (5th Cir.1984); Lenhard v. Wolff, 603 F.2d 91 (9th Cir., 1979), on applications for stay of execution, 443 U.S. 1306, 100 S.Ct. 3, 61 L.Ed.2d 885 (Sept. 7, 1979) (Rehnquist, J., Opinion in C......
-
Comer v. Stewart, CV-94-1469-PHX-ROS.
...proceed, and his access to court is otherwise unimpeded"); see also Brewer v. Lewis, 989 F.2d 1021, 1027 (9th Cir.1993); Lenhard v. Wolff, 603 F.2d 91, 93 (9th Cir.1979). In Smith v. Armontrout, 812 F.2d 1050, 1056 (8th Cir.1987), the Eighth Circuit rejected the contention that Rees barred ......
-
Singleton v. Lockhart
...before it, this Court is without power to stay the execution." A similar problem was dealt with by the Ninth Circuit in Lenhard, et al. v. Wolff, 603 F.2d 91 (1979), where an appeal was taken from the district court's denial of a writ of habeas corpus and of an emergency application for sta......