THOMAS, J., DISSENTING
PANETTI V. QUARTERMAN
551 U. S. ____ (2007)
SUPREME COURT OF THE UNITED STATES
NO. 06-6407
SCOTT LOUIS PANETTI, PETITIONER
v.
NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION
on writ of certiorari to the united states court of
appeals for the fifth circuit
[June 28, 2007]
Justice Thomas, with whom The
Chief Justice, Justice Scalia, and Justice Alito join,
dissenting.
Scott Panetti’s mental problems
date from at least 1981. While Panetti’s mental illness may make
him a sympathetic figure, state and federal courts have repeatedly
held that he is competent to face the consequences of the two
murders he committed. In a competency hearing prior to his trial in
1995, a jury determined that Panetti was competent to stand trial.
A judge then determined that Panetti was competent to represent
himself. At his trial, the jury rejected Panetti’s insanity
defense, which was supported by the testimony of two psychiatrists.
Since the trial, both state and federal habeas courts have rejected
Panetti’s claims that he was incompetent to stand trial and
incompetent to waive his right to counsel.
This case should be simple. Panetti brings a
claim under
Ford v.
Wainwright,
477 U. S. 399 (1986), that he is
incompetent to be executed. Presented for the first time in
Panetti’s second federal habeas application, this claim
undisputedly does not meet the statutory requirements for filing a
“second or successive” habeas application. As such, Panetti’s
habeas application must be dismissed. Ignoring this clear statutory
mandate, the Court bends over backwards to allow Panetti to bring
his
Ford claim despite no evidence that his condition has
worsened—or even changed—since 1995. Along the way, the Court
improperly refuses to defer to the state court’s finding of
competency even though Panetti had the opportunity to submit
evidence and to respond to the court-appointed experts’ report.
Moreover, without undertaking even a cursory Eighth Amendment
analysis, the Court imposes a new standard for determining
incompetency. I respectfully dissent.
I
The Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA) requires applicants to receive
permission from the court of appeals prior to filing second or
successive federal habeas applications. 28 U. S. C.
§2244(b)(3). Even if permission is sought, AEDPA requires courts to
decline such requests in all but two narrow circumstances.
§2244(b)(3)(C); §2244(b)(2).[
Footnote 1] Panetti raised his
Ford claim for the
first time in his second federal habeas application,
ante,
at 4–5, 9, but he admits that he did not seek authorization from
the Court of Appeals and that his claim does not satisfy either of
the statutory exceptions. Accordingly, §2244(b) requires dismissal
of Panetti’s “second … habeas corpus application.”
The Court reaches a contrary
conclusion by reasoning that AEDPA’s phrase “second or successive”
“takes its full meaning from our case law, including decisions
predating the enactment of [AEDPA].”
Ante, at 11 (citing
Slack v.
McDaniel,
529 U. S. 473, 486 (2000)). But the
Court fails to identify any pre-AEDPA case that defines, explains,
or modifies the phrase “second or successive.” Nor does the Court
identify any pre-AEDPA case in which a subsequent habeas
application challenging the same state-court judgment was
considered anything but “second or successive.”[
Footnote 2] To my knowledge, there are no such
cases.
Before AEDPA’s enactment, the phrase “second
or successive” meant the same thing it does today—any subsequent
federal habeas application challenging a state-court judgment that
had been previously challenged in a federal habeas application.
See,
e.g., Kuhlmann v.
Wilson,
477 U. S. 436, 451–452
(1986) (plurality opinion);
Barefoot v.
Estelle,
463 U. S. 880,
895 (1983). Prior to AEDPA, however, second or successive habeas
applications were not always dismissed. Rather, the pre-AEDPA abuse
of the writ doctrine allowed courts to entertain second or
successive applications in certain circumstances. See 28 U.
S. C. §2254(b) Rule 9(b) (1994 ed.) (“A second or successive
petition may be dismissed [when] new and different grounds are
alleged [if] the judge finds that the failure of the petitioner to
assert those grounds in a prior petition constituted an abuse of
the writ”);
McCleskey v.
Zant,
499 U. S. 467, 470
(1991);
Kuhlmann,
supra, at 451–452 (plurality
opinion);
Barefoot,
supra, at 895. Consistent
with this practice, prior to AEDPA, federal courts treated
Ford claims raised in subsequent habeas applications as
“second or successive” but usually allowed such claims to proceed
under the abuse of the writ doctrine.[
Footnote 3] See
Martin v.
Dugger, 686
F. Supp. 1523, 1528 (SD Fla. 1988) (permitting a
Ford
claim raised in a “second” habeas petition “[b]ecause
Ford
was a substantial change in constitutional law [and the prisoner]
was unaware of the legal significance of relevant facts”);
Barnard v.
Collins, 13 F. 3d 871, 875, 878
(CA5 1994);
Shaw v.
Delo, 762 F. Supp. 853,
857–859 (ED Mo. 1991);
Johnson v.
Cabana, 661
F. Supp. 356, 364 (SD Miss. 1987). Still, though, at least one
court found a
Ford claim raised in a subsequent
application to be an abuse of the writ.
Rector v.
Lockhart, 783 F. Supp. 398, 402–404 (ED Ark.
1992).
When it enacted AEDPA, Congress “further
restrict[ed] the availability of relief to habeas petitioners” and
placed new “limits on successive petitions.”
Felker v.
Turpin,
518
U. S. 651, 664 (1996). Instead of the judicial discretion that
governed second or successive habeas applications prior to AEDPA,
Congress required dismissal of all second and successive
applications except in two specified circumstances. §2244(b)(2).
AEDPA thus eliminated much of the discretion that previously saved
second or successive habeas petitions from dismissal.
Stating that we “ha[ve] declined to interpret
‘second or successive’ as referring to all §2254 applications filed
second or successively in time,”
ante, at 11, the Court
relies upon
Stewart v.
Martinez-Villareal,
523 U. S. 637, 640, 645–646 (1998), in
which we held that a subsequent application raising a
Ford
claim could go forward. In that case, however, the applicant had
raised a
Ford claim in his initial habeas application, and
the District Court had dismissed it as unripe. 523 U. S., at 640.
Refusing to treat the applicant’s subsequent application as second
or successive, the Court simply held that the second application
renewed the
Ford claim originally presented in the prior
application:
“This may have been the second
time that respondent had asked the federal courts to provide relief
on his
Ford claim, but this does not mean that there were
two separate applications, the second of which was necessarily
subject to §2244(b). There was only one application for habeas
relief, and the District Court ruled (or should have ruled) on each
claim at the time it became ripe. Respondent was entitled to an
adjudication of all of the claims presented in his earlier,
undoubtedly reviewable, application for federal habeas relief.” 523
U. S., at 643.
In other words,
Martinez-Villareal held
that where an applicant raises a
Ford claim in an initial
habeas application, §2244 does not bar a second application once
the claim ripens because the second application is a continuation
of the first application. 523 U. S., at 643–645; cf.
Burton v.
Stewart, 549 U. S. ___, ___ (2007)
(slip op., at 7)
(per curiam) (“[U]nlike Burton, the
prisoner [in
Martinez-Villareal] had attempted to bring
this claim in his initial habeas petition”).
Martinez-Villareal does not apply here because Panetti did
not bring his
Ford claim in his initial habeas
application.[
Footnote 4]
The Court does not and cannot argue that any
time a claim would not be ripe in the first habeas petition, it may
be raised in a later habeas petition. We unanimously rejected such
an argument in
Burton v.
Stewart,
supra.
In
Burton, the petitioner filed a federal habeas petition
challenging his convictions but not challenging his sentence, which
was at that time still on review in the state courts. After the
state courts rejected his sentencing claims, the petitioner filed a
second federal habeas petition, this time challenging his sentence.
The Ninth Circuit held that Burton’s second petition was not
“second or successive” under AEDPA, “reason[ing] that because
Burton had not exhausted his sentencing claims in state court when
he filed the [first] petition, they were not ripe for federal
habeas review at that time.”
Id., at ___ (slip op., at 6)
(internal quotation marks omitted). The Ninth Circuit found that
the second petition was not foreclosed by AEDPA since the claim
would not have been ripe if raised in the first petition.
Ibid. We rejected the Ninth Circuit’s view and held that
AEDPA barred Burton’s second petition. In light of
Burton,
it simply cannot be maintained that Panetti is excused from §2244’s
requirements solely because his
Ford claim would have been
unripe had he included it in his first habeas application. Today’s
decision thus stands only for the proposition that
Ford
claims somehow deserve a special (and unjustified) exemption from
the statute’s plain import.
Because neither AEDPA’s text, pre-AEDPA
precedent, nor our AEDPA jurisprudence supports the Court’s
understanding of “second or successive,” the Court falls back on
judicial economy considerations. The Court suggests that my
interpretation of the statute would create an incentive for every
prisoner, regardless of his mental state, to raise and preserve a
Ford claim in the event the prisoner later becomes insane.
Ante, at 10, 13–14. Even if this comes to pass, it would
not be the catastrophe the Court suggests. District courts could
simply dismiss unripe
Ford claims outright, and habeas
applicants could then raise them in subsequent petitions under the
safe harbor established by
Martinez-Villareal. Requiring
that
Ford claims be included in an initial habeas
application would have the added benefit of putting a State on
notice that a prisoner intends to challenge his or her competency
to be executed. In any event, regardless of whether the Court’s
concern is justified, judicial economy considerations cannot
override AEDPA’s plain meaning. Remaining faithful to AEDPA’s
mandate, I would dismiss Panetti’s application as second or
successive.
II
The Court also errs in holding
that the state court unreasonably applied “clearly established”
Supreme Court precedent by failing to afford Panetti adequate
procedural protections.
Ante, at 15. Panetti is entitled
to habeas relief only if the state-court proceedings “resulted in a
decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by
the Supreme Court of the United States.” 28 U. S. C.
§2254(d)(1). Even if Justice Powell’s concurrence in
Ford
qualifies as clearly established federal law on this point, the
state court did not unreasonably apply
Ford.[
Footnote 5]
A
The procedural rights described
in
Ford are triggered only upon “a substantial threshold
showing of insanity.” 477 U. S., at 426 (Powell, J., concurring in
part and concurring in judgment);
id., at 417 (plurality
opinion) (using the term “high threshold”). Following an
“independent review of the record,”
ante, at 17, the
majority finds that Panetti has made a satisfactory threshold
showing. That conclusion is insupportable.
Panetti filed only two exhibits
with his Renewed Motion to Determine Competency in the state court.
See Scott Panetti’s Renewed Motion to Determine Competency to Be
Executed in Cause No. 3310 (Gillespie Cty., Tex., 216th Jud. Dist.,
Feb. 4, 2004) (hereinafter Renewed Motion).[
Footnote 6] The first was a one-page letter from Dr.
Cunningham to Panetti’s counsel describing his 85-minute
“preliminary evaluation” of Panetti. Letter from Mark D.
Cunningham, Ph.D., to Michael C. Gross (Feb. 3, 2004), 1 App. 108.
Far from containing “pointed observations,”
ante, at 17,
Dr. Cunningham’s letter is unsworn, contains no diagnosis, and does
not discuss whether Panetti understood why he was being executed.
Ibid. Panetti’s other exhibit was a one-page declaration
of a
law professor who attended Cunningham’s 85-minute
meeting with Panetti. Declaration of David R. Dow (Feb. 3, 2004),
id., at 110. Professor Dow obviously made no medical
diagnosis and simply discussed his lay perception of Panetti’s
mental condition in a cursory manner.
Ibid. The Court
describes Dow as an “expert,”
ante, at 17, but law
professors are obviously not experts when it comes to medical or
psychological diagnoses.
Panetti’s Renewed Motion attached no medical
reports or records, no sworn testimony from any medical
professional, and no diagnosis of any medical condition. The Court
claims that Panetti referred “to the extensive evidence of mental
dysfunction considered in earlier legal proceedings.”
Ibid. But as the Federal District Court noted, Panetti
merely “outlined his mental health history for the time period from
1981 until 1997.” Order in Case No. A–04–CA–042–SS (Jan. 30, 2004),
p. 4. This evidence—previously rejected by the state and
federal courts that adjudicated Panetti’s other incompetency
claims—had no relevance to Panetti’s competency to be executed in
2004 when he filed his
Renewed Motion.
Ibid. In
addition to the utter lack of new medical evidence, no layperson
who had observed Panetti on a day-to-day basis, such as prison
guards or fellow inmates, submitted an affidavit or even a letter.
In short, Panetti supported his alleged incompetency with only the
preliminary observations of a psychologist and a lawyer, whose only
contact with Panetti was a single 85-minute meeting. It is absurd
to suggest that this quantum of evidence clears the “high
threshold,” entitling claimants to the procedural protections
described by the plurality and Justice Powell in
Ford. 477
U. S., at 417 (plurality opinion); see also
id., at 426
(Powell, J., concurring in part and concurring in
judgment).[
Footnote 7]
B
Having determined that Panetti’s
evidence exceeded the high threshold set forth in
Ford,
the Court asserts that
Ford requires that “a court allow a
prisoner’s counsel the opportunity to make an adequate response to
evidence solicited by the state court.”
Ante, at 19
(citing
Ford, supra, at 427 (Powell, J., concurring in
part and concurring in judgment)). Justice Powell’s concurrence
states that a prisoner has the right to present his or her evidence
to an impartial decisionmaker. In light of the facts before the
Court in
Ford, it becomes obvious that in this case Texas
more than satisfied any obligations Justice Powell described.
1
Under the Florida law at issue in
Ford, the Governor—not a court—made the final decision as
to the condemned prisoner’s sanity. 477 U. S., at 412 (plurality
opinion). The prisoner could not submit any evidence and had no
opportunity to be heard.
Id., at 412–413;
id., at
424 (Powell, J., concurring in part and concurring in judgment). In
other words, the Florida procedures required neither a neutral
decisionmaker nor an opportunity for the prisoner to present
evidence.
Id., at 412–413;
id., at 424.
Against this backdrop, Justice
Powell’s concurrence states that due process requires an impartial
decisionmaker and a chance to present evidence:
“The State should provide an impartial officer or
board that can receive evidence and argument from the prisoner’s
counsel, including expert psychiatric evidence that may differ from
the State’s own psychiatric examination.”
Id., at 427.
In setting forth these minimal procedural
protections, Justice Powell explained that “[b]eyond these basic
requirements, the States should have substantial leeway to
determine what process best balances the various interests at
stake.”
Ibid. Justice Powell stressed that “ordinary
adversarial procedures … are not necessarily the best means of
arriving at sound, consistent judgments as to a defendant’s
sanity.”
Id., at 426.
2
Because a court considered
Panetti’s insanity claim, the state clearly satisfied Justice
Powell’s requirement to “provide an impartial officer or board.”
Id., at 427. The sole remaining question, then, is whether
the state court “receive[d] evidence and argument from the
prisoner’s counsel, including expert psychiatric evidence that may
differ from the State’s own psychiatric examination.”
Ibid.
At the outset of its discussion,
the Court suggests that Texas is not entitled to “substantial
leeway” in determining what procedures are appropriate, see
Ford, supra, at 427 (Powell, J., concurring in part and
concurring in judgment), because Texas may have “violat[ed] the
procedural framework Texas has mandated for the adjudication of
incompetency claims.”
Ante, at 18. As its sole support for
that assertion, the Court states that there is “a strong argument
the court violated state law by failing to provide a competency
hearing.”
Ibid. But Article 46.05 of the Texas Code of
Criminal Procedure provides no right to a competency hearing: “The
determination of whether to appoint experts and conduct a hearing
[under Article 46.05] is within the discretion of the trial court.”
Ex parte Caldwell, 58 S. W. 3d 127, 130 (Tex. Crim.
App. 2000). Contrary to the Court’s statement,
ante, at
19, this discretion does not depend on whether a substantial
showing of incompetency has been made. See
Caldwell,
supra, at 130. Accordingly, there is no basis for denying
Texas the “substantial leeway”
Ford grants to States.
Texas law allows prisoners to submit
“affidavits, records, or other evidence supporting the defendant’s
allegations” “that the defendant is presently incompetent to be
executed.” Tex. Code Crim. Proc. Ann., Art. 46.05 (Vernon Supp.
Pamphlet 2006). Therefore, state law provided Panetti with the
legal right to submit whatever evidence he wanted. Here, it is
clear that the state court stood ready and willing to consider any
evidence Panetti wished to submit. The record of the state
proceedings shows that Panetti took full advantage of this
opportunity. For example, after the court-appointed experts
presented their report, the state court gave Panetti a chance to
respond, 1 App. 78, and Panetti filed a 17-page brief objecting to
the report and arguing that there were problems in its
methodology.[
Footnote 8]
Objections to Experts’ Report, 1 App. 79. No extensive
consideration of Panetti’s submitted evidence was necessary because
the submissions—the single-page statements of one doctor and one
lawyer—were paltry and unpersuasive. That the evidence presented
did not warrant more extensive examination does not change the fact
that Panetti had an unlimited opportunity to submit evidence to the
state court.
Based on Panetti’s evidence, the report by the
court-appointed experts, and Panetti’s objections to that report,
the state court found that “[d]efendant has failed to show, by a
preponderance of the evidence, that he is incompetent to be
executed.”
Id., at 99. Given Panetti’s meager evidentiary
submissions, it is unsurprising that the state court declined to
proceed further. The Court asserts that “the order issued by the
state court implied that its determination of petitioner’s
competency [improperly] was made solely on the basis of the
examinations performed by the psychiatrists it had appointed.”
Ante, at 18. However, the order’s focus on the report of
the court-appointed experts indicates only that the court found the
report to be persuasive. 1 App. 99. Supported by the persuasive
report of two neutral experts, the court reasonably concluded that
Panetti’s meager evidence deserved no mention. See Part II–A,
supra. In my view, the state court fairly implemented the
procedures described by Justice Powell’s opinion in
Ford—to “receive evidence and argument from the prisoner’s
counsel.” 477 U. S., at 427. At the very least, the state court did
not unreasonably apply his concurrence. See 28 U. S. C.
§2254(d)(1).
3
Because it cannot dispute that
Panetti had an unlimited opportunity to present evidence, the Court
argues that the state court “failed to provide petitioner with an
adequate opportunity to submit expert evidence in response to the
report filed by the court-appointed experts.”
Ante, at 18.
According to the Court, this opportunity was denied to Panetti
because the state court failed to rule explicitly on his motions
and failed to warn him that he would receive no evidentiary
hearing.[
Footnote 9] This
position has no factual basis. After the court-appointed experts
submitted their report, the state court made it clear that the case
was proceeding to conclusion and that Panetti’s counsel needed to
submit anything else he wanted the judge to consider:
“It appears from the evaluations
performed by Dr. Mary Anderson and Dr. George Parker that they are
of the opinion that Mr. Panetti is competent to be executed in
accordance with the standards set out in Art. 46.05 of the Code of
Criminal Procedure.
“Mr. Gross, if you have any other matters you
wish to have considered, please file them in the case papers and
get me copies by 5:00 p.m. on May 21, 2004.” Letter from District
Judge Stephen B. Ables in Cause No. 3310 (May 14, 2004), 1 App.
77–78.
Panetti’s counsel got the
message. Far from assuming that there would be a hearing,
ante, at 19–20, counsel renewed his motion requesting a
competency hearing and his motion seeking state funding for a
mental health expert. 1 App. 96–98. Panetti’s filing indicates that
he understood that no hearing was currently scheduled and that if
he wanted to convince the state court not to deny relief, he needed
to do so immediately. See
id., at 80–95. The record
demonstrates that what Panetti actually sought was not the
opportunity to submit additional evidence—because, at that time, he
had no further evidence to submit—but state funding for his pursuit
of more evidence. See Ex Parte Motion for Prepayment of Funds to
Hire Mental Health Expert to Assist Defense in Article 46.05
Proceedings in Cause No. 3310 (Feb. 19, 2004),
id., at 54;
Ex Parte Motion for Prepayment of Funds to Hire an Investigator to
Assist Defense Counsel in Cause No. 3310 (Feb. 19, 2004);
Defendant’s Motion for Appointment of Counsel to Assist Him in
Article 46.05 Proceedings in Cause No. 3310 (Feb. 19, 2004),
id., at 45; Panetti’s Response to Show Cause Order in Case
No. A–04–CA–042–SS (June 3, 2004), p. 5; cf. Order in Case No.
A–04–CA–042–SS (Jan. 30, 2004), p. 4. This Court has never
recognized a constitutional right to state funding for counsel in
state habeas proceedings—much less for experts—and Texas law grants
no such right in
Ford proceedings.
E.g., Ex parte
Caldwell, 58 S. W. 3d 127, 130 (Tex. Crim. App. 2000)
(holding that funding for counsel or experts in Article 46.05
proceedings is at the discretion of the district court);
Coleman v.
Thompson,
501 U. S. 722, 755
(1991) (noting that there is no constitutional right to
state-funded counsel in state habeas cases).
In short, there is nothing in the record to
suggest that Panetti would have submitted any additional evidence
had he been given another opportunity to do so. Panetti never
requested more time to submit evidence and never told the court
that he wanted to submit additional evidence in the event that his
requests for fees were denied. Panetti’s track record of submitting
no new evidence in his first Article 46.05 motion,
supra,
at 8, n. 6, and only two insubstantial exhibits in his second,
Part II–A,
supra, suggests that it was highly unlikely
that Panetti planned to present anything else. Accordingly, the
state-court proceedings to evaluate Panetti’s insanity claim were
not “contrary to, or … an unreasonable application of, clearly
established Federal law,” 28 U. S. C. §2254(d)(1).[
Footnote 10]
C
Because the state court did not
unreasonably apply Justice Powell’s procedural analysis, we must
defer to its determination that Panetti was competent to be
executed. See §2254(d)(1). Thus, Panetti is entitled to federal
habeas relief only if the state court’s determination that he is
competent to be executed “was contrary to, or involved an
unreasonable application of” Supreme Court precedent or “was based
on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.” §2254(d). Not
even Panetti argues that this standard is met here.
Applying Justice Powell’s
substantive standard for competency, the state court determined
that Panetti was competent to be executed, 1 App. 99; see also Tex.
Code Crim. Proc. Ann., Art. 46.05(h), a factual determination that
is “presumed to be correct.” §2254(e)(1). That factual
determination was based on an expert report by two doctors with
almost no evidence to the contrary. See Part II–A,
supra.
Hence, Panetti is not entitled to federal habeas relief under
§2254.
III
Because we lack jurisdiction
under AEDPA to consider Panetti’s claim and because, even if
jurisdiction were proper, the state court’s decision constitutes a
reasonable application of federal law, I will not address whether
the Court of Appeals’ standard for insanity is substantively
correct. I do, however, reject the Court’s approach to answering
that question. The Court parses the opinions in
Ford to
impose an additional constitutional requirement without undertaking
any Eighth Amendment analysis of its own. Because the Court
quibbles over the precise meaning of
Ford’s opinions with
respect to an issue that was not presented in that case, what
emerges is a half-baked holding that leaves the details of the
insanity standard for the District Court to work out. See
ante, at 28–30. As its sole justification for thrusting
already muddled
Ford determinations into such disarray,
the Court asserts that
Ford itself compels such a result.
It does not.
The four-Justice plurality in
Ford did not define insanity or create a substantive
standard for determining competency. See 477 U. S., at 418 (Powell,
J., concurring in part and concurring in judgment) (stating that
“[t]he Court’s opinion does not address” “the meaning of in-
sanity”).[
Footnote 11] Only
Justice Powell’s concurrence set forth a standard:
“[No state] disputes the need to require that those
who are executed know the fact of their impending execution and the
reason for it.
“Such a standard appropriately defines the
kind of mental deficiency that should trigger the Eighth Amendment
prohibition. If the defendant perceives the connection between his
crime and his punishment, the retributive goal of the criminal law
is satisfied. And only if the defendant is aware that his death is
approaching can he prepare himself for his passing. Accordingly, I
would hold that the Eighth Amendment forbids the execution only of
those who are unaware of the punishment they are about to suffer
and why they are to suffer it.”
Id., at at 422.
Because the issue before the Court in
Ford
was actual knowledge, not rational understanding,
ibid.,
nothing in any of the
Ford opinions addresses what to do
when a prisoner knows the reason for his execution but does not
“rationally understand” it.
Tracing the language of Justice Powell’s
concurrence, the Court of Appeals held that Panetti needed only to
be “ ‘aware’ of” the stated reason for his execution.
Panetti v.
Dretke, 448 F. 3d 815, 819 (CA5
2006). Implicitly, the Court of Appeals also concluded that the
fact that Panetti “disbelieves the State’s stated reason for
executing him,”
Panetti v.
Dretke, 401
F. Supp. 2d 702, 708 (WD Tex. 2004), does not render him
“unaware” of the reason for his execution. The Court challenges
this approach based on an expansive interpretation of Justice
Powell’s use of the word “aware.”
Ante, at 27–28. However,
the Court does not and cannot deny that “awareness” is undefined in
Ford and that
Ford does not discuss whether
“delusions [that] so impair the prisoner’s concept of reality that
he cannot reach a rational understanding of the reason for the
execution” affect awareness in a constitutionally relevant
manner.[
Footnote 12]
Ante, at 26. Nevertheless, the Court cobbles together
stray language from
Ford’s multiple opinions and asserts
that the Court of Appeals’ test is somehow inconsistent with the
spirit of
Ford. Because that result does not follow
naturally from
Ford, today’s opinion can be understood
only as holding for the first time that the Eighth Amendment
requires “rational understanding.”
Although apparently imposing a new substantive
Eighth Amendment requirement, the Court assiduously avoids applying
our framework for analyzing Eighth Amendment claims. See
Ford,
supra, at 405 (first analyzing whether execution of the insane
was among “those modes or acts of punishment that had been
considered cruel and unusual at the time that the Bill of Rights
was adopted” in 1791);
Roper v.
Simmons,
543 U. S. 551, 560–561
(2005) (considering also whether the punishment is deemed cruel and
unusual according to modern “standards of decency”);
Atkins v.
Virginia,
536 U. S. 304, 312
(2002) (looking for “objective evidence of contemporary values,”
the “clearest and most reliable” of which is the “legislation
enacted by the country’s legislatures” (internal quotation marks
omitted)). The Court likely avoided undertaking this analysis
because there is no evidence to support its position.[
Footnote 13] See,
e.g., id., at
340–342 (Scalia, J., dissenting) (discussing the demanding standard
employed at common law to show that a prisoner was too insane to be
executed). The Court of Appeals at least took an approach based on
what
Ford actually says, an approach that was far from
frivolous or unreasonable. By contrast, the Court’s approach
today—settling upon a preferred outcome without resort to the
law—is foreign to the judicial role as I know it.
* * *
Because the Court’s ruling
misinterprets AEDPA, refuses to defer to the state court as AEDPA
requires, and rejects the Court of Appeals’ approach without any
constitutional analysis, I respectfully dissent.
Footnote 1
Section 2244(b)(2) states:
“A claim presented in a second or successive habeas corpus
application under section 2254 that was not presented in a prior
application shall be dismissed unless—
“(A) the applicant shows that the claim relies on a new rule of
constitutional law, made retroactive to cases on collateral review
by the Supreme Court, that was previously unavailable; or
“(B)(i) the factual predicate for the claim could not have been
discovered previously through the exercise of due diligence;
and
“(ii) the facts underlying the claim, if proven and viewed in
light of the evidence as a whole, would be sufficient to establish
by clear and convincing evidence that, but for constitutional
error, no reasonable factfinder would have found the applicant
guilty of the underlying offense.”
Footnote 2
The Court identifies two post-AEDPA cases.
Ante, at 11 (citing
Slack v.
McDaniel,
529 U. S. 473 (2000);
Stewart
v.
Martinez-Villareal,
523 U. S. 637 (1998)). Because these
cases were decided after AEDPA, they do not establish the pre-AEDPA
meaning of “second or successive.” Moreover, these cases do not
apply here. The inapplicability of
Martinez-Villareal is
discussed below.
Infra, at 5–6. Like
Martinez-Villareal, the narrow exception described in
Slack is akin to a renewal of an initial application. 529
U. S., at 486–487; see
infra, at 5–6 (discussing
Martinez-Villareal). Even the Court does not maintain that
Slack applies to Panetti’s claim.
Footnote 3
If, as the Court asserts, “second or
successive” were a pre-AEDPA term of art that excepted
Ford claims, it would be difficult to explain why,
immediately following AEDPA’s passage, Courts of Appeals uniformly
considered subsequent applications raising
Ford claims to
be “second or successive” under §2244. See
In re
Medina, 109 F. 3d 1556, 1563–1565 (CA11 1997)
(per
curiam); In re Davis, 121 F. 3d 952,
953–955 (CA5 1997); see also
Martinez-Villareal v.
Stewart, 118 F. 3d 628, 630–631, 633–634 (CA9 1997)
(per curiam) (finding §2244 applicable but allowing a
Ford claim to proceed where it was presented in the
initial habeas application).
The Courts of Appeals uniformly continue to hold that §2244
applies to successive habeas applications raising
Ford
claims when the initial application failed to do so. See,
e.g.,
Richardson v.
Johnson, 256
F. 3d 257, 258–259 (CA5 2001);
In re Provenzano, 215
F. 3d 1233, 1235 (CA11 2000);
Nguyen v.
Gibson,
162 F. 3d 600, 601 (CA10 1998)
(per curiam).
Footnote 4
The Court claims that
Martinez-Villareal “suggest[s] that it is … appropriate,
as a general matter, for a prisoner to wait before seeking
resolution of his incompetency claim.”
Ante, at 14. But
Martinez-Villareal “suggest[s]” no such thing. 523 U. S.,
at 645. To the contrary, as the Court admits,
Martinez-Villareal does not determine whether a prisoner
would even be
allowed to bring a
Ford claim if he
waits to bring it in a second petition.
Ante, at 12
(citing
Martinez-Villareal, supra, at 645, n.).
Footnote 5
To reach the tenuous conclusion that Justice
Powell’s opinion constitutes clearly established federal law,
ante, at 16, the Court ignores the tension between Justice
Powell’s concern that adversarial proceedings may be
counterproductive and the plurality’s position that adversarial
proceedings are required. Compare
Ford v.
Wainwright,
477 U. S. 399, 426 (1986) (Powell, J.,
concurring in part and concurring in judgment) (stating that
“ordinary adversarial procedures—complete with live testimony,
cross-examination, and oral argument by counsel—are not necessarily
the best means of arriving at sound, consistent judgments as to a
defendant’s sanity”), with
id., at 415, 417 (plurality
opinion) (discussing the importance of adversarial procedures,
including cross-examination). Given these contradictory statements,
it is difficult to say that Justice Powell’s opinion is merely a
narrower version of the plurality’s view. See
Marks v.
United States,
430 U. S. 188, 193
(1977).
Footnote 6
This application was itself Panetti’s second
bite at the apple in the state court on the question of his
competency to be executed. Panetti had previously presented a
Ford claim in state court, but the documents that
accompanied that filing contained “nothing … that relate[d] to his
current mental state.” Order in Case No. A–04–CA–042–SS (WD Tex.,
Jan. 28, 2004), p. 4;
id., at 4 (Jan. 30, 2004)
(same). As a result, the state court denied relief without a
hearing,
ante, at 5, and the Federal District Court found
no error in this determination, Order in Case No. A–04–CA–042–SS
(Jan. 30, 2004), p. 4.
Footnote 7
The Court argues that “the trial court’s
appointment of mental health experts pursuant to Article 46.05(f)”
“confirmed” that Panetti had made a threshold showing.
Ante, at 17. But the state court made no such finding and
may have proceeded simply in an abundance of caution, perhaps to
humor the Federal District Court, which had “stay[ed] the execution
[for 60 days to] allow the state court a reasonable period of time
to consider the evidence of Panetti’s current mental state.” Order
in Case No. A–04–CA–042–SS (Feb. 4, 2004), p. 3, 1 App. 116.
In any event, the question today is not whether Panetti met Texas’
threshold but whether he met the constitutional one. The Court
cannot avoid answering that question by relying on a related
state-law determination.
Footnote 8
The Court states that Panetti’s “counsel
reached the reasonable conclusion that these allegations warranted
a response.”
Ante, at 19. But the Court fails to note that
the 17-page brief
was the response. Apart from his
motions, Panetti never requested the opportunity to respond
further.
Panetti criticized the court-appointed experts for visiting him
only once, for not conducting psychological testing, for failing to
review collateral information adequately, for failing to take into
account his history of mental problems, and for the abbreviated
nature of their conclusions. Objections to Experts’ Report, Renewed
Motion for Funds to Hire Expert and Investigator, Renewed Motion
for Competency Hearing in Cause No. 3310 (Gillespie Cty., Tex.,
216th Jud. Dist., May 21, 2004), 1 App. 82–95 (hereinafter
Objection to Experts’ Report).
Footnote 9
The Court does not assert that Panetti
actually had a constitutional right to an evidentiary hearing or to
have any of his 10 motions granted. As discussed above, Justice
Powell’s concurrence specifically rejected the
Ford
plurality’s contention that an adversarial proceeding was
constitutionally required or even appropriate. Part II–B–1,
supra. Even a cursory look at Panetti’s motions shows that
the state court did not err in refusing to grant them. This Court
has never recognized a right to state-provided experts or counsel
on state habeas review. Cf. Ex Parte Motion for Prepayment of Funds
to Hire Mental Health Expert to Assist Defense in Article 46.05
Proceedings in Cause No. 3310 (Feb. 19, 2004), 1 App. 54;
Defendant’s Motion for Appointment of Counsel to Assist Him in
Article 46.05 Proceedings (Feb. 19, 2004),
id., at 45; Ex
Parte Motion for Prepayment of Funds to Hire an Investigator to
Assist Defense Counsel in Cause No. 3310 (Feb. 19, 2004). There is
likewise no right to transcribed court proceedings, videotaped
examinations, or any other specific protocols for conducting
competency evaluations. Cf. Motion to Videotape All Competency
Examinations of Scott Panetti Conducted by Court-Appointed Mental
Health Experts in Cause No. 3310 (Feb. 19, 2004); Motion to
Transcribe All Proceedings Related to Competency Determination
Under Article 46.05 in Cause No. 3310 (Feb. 19, 2004); Motion
Seeking Order Setting Out Protocol for Conducting Competency
Evaluations of Scott Panetti in Cause No. 3310 (Feb. 19, 2004). And
as discussed above, Panetti has no clearly established
constitutional right to a formal, oral hearing, Part II–B–1,
supra, much less a right to discovery. Cf. Defendant’s
Motion for Discovery in Cause No. 3310 (Feb. 19, 2004); Motion to
Ensure that the Article 46.05 “Final Competency Hearing” Comports
with the Procedural Due Process Requirements of
Ford in
Cause No. 3310 (Feb. 19, 2004), 1 App. 49.
Footnote 10
Because the Court fails to identify any bona
fide constitutional violation, it provides a laundry list of
perceived deficiencies in the state-court proceedings.
Ante, at 18 (“[I]t appears the state court on repeated
occasions conveyed information to petitioner’s counsel that turned
out not to be true; provided at least one significant update to the
State without providing the same notice to petitioner; and failed
in general to keep petitioner informed as to the opportunity, if
any, he would have to present his case”). The state court did
request the name of mental health experts from the parties but
ultimately chose experts without input from the parties.
Ante, at 5–7. It canceled a status conference and failed
to give Panetti notice.
Ante, at 6. It also never
explicitly ruled on Panetti’s motions despite its statements that
it would do so later.
Ante, at 7–8. But Panetti does not
argue that the court-appointed experts were not impartial nor does
he explain how the canceled status conference caused him any harm.
Finally, although it might have been better for the state court to
rule explicitly on Panetti’s outstanding motions, it implicitly
denied them by dismissing his claim. As for the state court’s
“failure to keep petitioner informed,” after the court-appointed
experts’ report was issued, the judge sent a letter to counsel that
made it clear that Panetti had one last chance to submit
information. 1 App. 77–78. In short, none of these perceived
deficiencies qualifies as a violation of any “clearly established”
federal law.
Footnote 11
Justice Marshall’s plurality opinion in
Ford did not even go so far as to state that there should
be a uniform national substantive standard for insanity. It is thus
an open question as to how much discretion the States have in
setting the substantive standard for insanity.
Footnote 12
The Court points out that “the
Ford
opinions nowhere indicate that delusions are irrelevant to
‘comprehen[sion]’ or ‘aware[ness]’ if they so impair the prisoner’s
concept of reality that he cannot reach a rational understanding of
the reason for the execution.”
Ante, at 26. By the same
token, nowhere in the
Ford opinions is it suggested that
“comprehen[sion]” or “aware[ness]” is necessarily affected when
delusions impair a prisoner. The Court refuses to acknowledge that
Ford simply does not resolve this question one way or the
other.
Footnote 13
Contrary to the Court’s suggestion, the state
of the factual record is not a genuine impediment to analyzing the
constitutional question. See
ante, at 28–30. Our Eighth
Amendment framework requires relatively academic, abstract
analysis. Specific facts regarding Panetti’s condition are simply
irrelevant to what the Eighth Amendment requires.
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