Nash v. Ryan

• Decision Date: 11 September 2009
• Docket Number: No. 06-99007.,06-99007.
• Citation: 581 F.3d 1048
• Parties: Viva Leroy NASH, Petitioner-Appellant, v. Charles L. RYAN, Warden, Arizona State Prison, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

581 F.3d 1048

Viva Leroy NASH, Petitioner-Appellant, v. Charles L. RYAN, Warden, Arizona State Prison, Respondent-Appellee.

No. 06-99007.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 9, 2008.

Filed September 11, 2009.

Thomas J. Phalen, Jon M. Sands, Fed. Pub. Def., and Paula K. Harms, Phoenix, AZ, for petitioner-appellant Viva Leroy Nash.

Kent E. Cattani, Chief Counsel, Capital Litigation Section, Attorney General's Office, and Jeffrey A. Zick, Assistant Attorney General, Phoenix, AZ, for respondent-appellee Charles L. Ryan.

Appeal from the United States District Court for the District of Arizona, Mary H. Murguia, District Judge, Presiding. D.C. No. CV-97-01104-PHX-MHM.

Before: STEPHEN REINHARDT, SIDNEY R. THOMAS, and RICHARD A. PAEZ, Circuit Judges.

ORDER

PAEZ, Circuit Judge:

In Rohan ex rel. Gates v. Woodford, 334 F.3d 803 (9th Cir.2003), we held that a capital habeas petitioner's statutory right to counsel also encompassed the right to competence in habeas proceedings: the right of the petitioner to be competent during those proceedings so as to be able to advise and consult with his counsel regarding issues that might arise. Rohan occurred during the course of district court proceedings, and therefore we had no need to address explicitly whether that right extended to an appeal. Here, we confront that issue and decide whether the statutory right to competence that we recognized in Rohan applies to an appeal from denial of habeas relief. The State of Arizona ("State") argues that, given the record-based nature of an appeal, the statutory right to competence should not apply to an appeal.

We do not read Rohan as so limited. While an appeal is record-based, that does not mean that a habeas petitioner in a capital case is relegated to a nonexistent role. Meaningful assistance of appellate counsel may require rational communication between counsel and a habeas petitioner. Because petitioner Viva Leroy Nash ("Nash") has made a prima facie showing that he may be incompetent to assist counsel with this appeal, and because counsel has identified claims that could benefit from rational communication with Nash, we grant the pending motion for a limited remand. On remand, we direct the district court to conduct appropriate proceedings to determine whether Nash is competent to communicate rationally with his counsel for the purpose of prosecuting this appeal.

I. FACTUAL AND PROCEDURAL BACKGROUND

On May 25, 1983, Viva Leroy Nash ("Nash") was convicted in an Arizona superior court of first-degree murder, armed robbery, aggravated assault, and theft, and sentenced to death. State v. Nash, 143 Ariz. 392, 694 P.2d 222, 225-27 (1985). The Supreme Court of Arizona affirmed his conviction in 1985. Id. at 222. After filing several unsuccessful petitions for post-conviction relief in both state and federal court, Nash ultimately filed the amended habeas petition that is the subject of the pending appeal.¹ Nash's amended petition raised thirteen claims, alleging violations of various Fourth, Sixth, Eighth, and Fourteenth Amendment rights. After concluding that Nash was entitled to have 9 of his thirteen claims reviewed on their merits,² the district court denied the petition in a memorandum decision on July 7, 2006.

On October 4, 2006, Nash timely filed a notice of appeal from the district court's judgment denying his habeas petition. Before filing a brief on appeal, however, Nash filed a motion for a competency determination, requesting a stay of the appeal pending a ruling on the motion.³ Nash argued first that the statutory right to competence, embodied in 18 U.S.C. § 3599's right to counsel and recognized in Rohan, applies to an appeal. He further asserted that the progressive deterioration of his mental health rendered him incompetent to pursue an appeal, and that, accordingly, appellate proceedings should be stayed until he is found competent. The State opposed the motion. First, the State challenged Nash's assertion that the right to competence extended to an appeal from the denial of habeas relief in capital cases. The State also argued that, even if such a right exists, a competency determination is not warranted in this case.

We, accordingly, must determine first whether the statutory right to competence in habeas proceedings, established in Rohan, applies to an appeal.⁴ We hold that it does. We next examine the claims in Nash's habeas petition and conclude that, because several of them could potentially benefit from meaningful communication with counsel, Nash is entitled to a stay of the appeal if he is found to be incompetent. Last, we consider the evidence of Nash's alleged incompetence, and conclude that it is sufficient to warrant a competency determination. Accordingly, we grant Nash's motion, and because the district court is in the best position to make such a determination, we grant a limited remand with instructions to make a competency determination.

II. ANALYSIS

A. Whether the Statutory Right to Competence in Federal Habeas Capital Cases Extends to an Appeal

First, Nash argues that this court's decision in Rohan, which arose during the course of district court habeas proceedings, applies to an appeal. We agree.

Rohan involved 21 U.S.C. § 848(q)(4)(b),⁵ which provided for the right to counsel to petitioners in capital habeas proceedings filed under 28 U.S.C. § 2254 or § 2255. We held that the statutory right to counsel in such cases implies a statutory right to competence during those proceedings.⁶ Rohan, 334 F.3d at 817.

In examining the contours of the statutory right to competence, we first considered the due process right to competence at trial. We observed that this right was derived from principles of competence recognized at common law, and that it remains closely tied to the capacity for rational communication, either to defend oneself, or to assist counsel in one's defense. Id. at 808-09. We contrasted the right to competence at trial with the Eighth Amendment's bar against execution of the insane, which focuses less on the possibility that an incompetent defendant could "go to his death with knowledge of undiscovered trial error that might set him free," and more on the prisoner's "[a]ware[ness] of the punishment [he is] about to suffer and why [he is] to suffer it." Id. at 809-810 (quoting Ford v. Wainwright, 477 U.S. 399, 422 n. 3, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986)). We noted that in Rohan, we were "confront[ed with] a question that falls somewhere between the[] two lines of authority: not competence to stand trial or competence to be executed, but competence to pursue collateral review of a state conviction in federal court." Id. at 810. We concluded that because a capital habeas petitioner's incompetence could prevent him from "communicating information that he alone possesses," rational communication could still play an important role in a habeas proceeding. Id. at 816. In reaching this conclusion, we reasoned that although "[t]he constitutional requirement of competence to stand trial certainly does not imply a coordinate requirement on collateral review[,]" id. at 810, "[c]ounsel's assistance ... depends in substantial measure on the petitioner's ability to communicate with him." Id. at 813. "[I]f," therefore, "meaningful assistance of counsel is essential to the fair administration of the death penalty and capacity for rational communication is essential to meaningful assistance of counsel, it follows that Congress's mandate [in 21 U.S.C. § 848(q)(4)(b)] cannot be faithfully enforced unless courts ensure that a petitioner is competent." Id. at 813. Noting that "[o]ur own case law all but dictates the result" we reached,⁷ we concluded that the statutory right to counsel in capital habeas cases also guaranteed a right to competence during district court habeas proceedings. Id. at 814.

Although there are fundamental differences between district and appellate court proceedings, there is one aspect of the entire process that remains the same: the statutory right to assistance of counsel. We fail to see why that statutory right does not also encompass "meaningful assistance" on appeal. And, just as the capacity for rational communication is essential to meaningful assistance of counsel in the district court, counsel's ability to communicate rationally with a petitioner may in some cases be essential to the successful prosecution of an appeal.

For example, where—as was the case in Rohan—a petitioner challenges the constitutional validity of his conviction or sentence on the basis of ineffective assistance of counsel, such claims—both in the district court and on appeal—may depend heavily on facts outside of the state court record. See id. at 818 (concluding that where petitioner's principal claim was incompetency to stand trial and counsel's failure to pursue a competency hearing, "[a]t least some of the claims in [the] petition could potentially benefit from[petitioner's] assistance" because their success would "depend[] in large measure on facts outside the record"). Although extra-record facts would be documented in the district court record, counsel may nonetheless need to communicate with his client to understand fully the significance and context of those facts so that he may pursue the most persuasive arguments on appeal. As we recognized in Rohan, a claim that trial counsel presented inadequate mitigating evidence during the penalty phase implicates petitioner's ability to communicate with counsel. This same concern exists for appellate proceedings, because the petitioner "is better positioned than anyone to identify aspects of his personal history that should have been, but were not, elicited . . . [and] is in a unique position to [provide information] about the extent of his trial counsel's efforts to elicit that mitigating evidence from him." Id.

The ability to elicit information from a petitioner may be critical to the...