Should Habeas Proceedings Be Stayed If the Petitioner Is Incompetent?

Last week, in Carter v. Bradshaw, the U.S. Court of Appeals for the Sixth Circuit held that habeas proceedings challenging a capital sentence should be stayed until the petitioner is competent to proceed. The opinion by Judge Martin, joined by Judge Cole, acknowledged that “federal habeas petitioners facing the death penalty for state criminal convictions do not enjoy a right to competence,” but nonetheless concluded that habeas petitioners “do have a statutory right to competence in some situations.” For example, only a competent habeas petitioner may terminate habeas proceedings once they have been initiated. By the same token, the court suggested, if a petitioner lacks the competency to assist the attorneys working on his behalf – perhaps by providing information necessary to prove an ineffective assistance of counsel claim – it is tantamount to the petitioner terminating the claim. On this basis, Judge Martin concluded that Carter’s habeas proceedings should be stayed until such time as Carter regains his competency.

Judge Martin’s opinion provoked a forceful dissent from Judge Rogers. Here is how begins:

Today the court allows habeas petitioners to prevent States from enforcing their judgments, potentially forever, on the grounds of a nonexistent right to competency in habeas proceedings. The asserted right has no basis in the Constitution or federal statutes. Civil suits can be brought by lawyers representing mentally incompetent plaintiffs, and habeas cases are no different. Nor are capital cases different in this respect.

In the concluding section, Judge Rogers writes:

Requiring competency on the part of capital habeas petitioners is not compelled by the right to competency at trial, the right to competency in waiving further habeas proceedings, or the right to be competent at the time of execution. The new ‘right’ is not provided by either the Constitution or any statute. It is instead an anomalous monkey wrench thrown into the capital-litigation process.

One point Judge Rogers stresses is the potential for the majority’s holding to create odd incentives and produce perverse results.

For practical purposes, the right will be asserted by capital petitioners but not by other petitioners. Capital petitioners gain something (delaying execution) from indefinitely delaying habeas proceedings, while the interests of convicts serving prison terms—whether competent or not—will almost always be served by the prompt litigation of habeas petitions, so as to advance the possibility of release. But acceptance of the right in concept might well require that it be applied to noncapital cases, where prosecutors could insist that habeas be indefinitely delayed. One might argue that noncapital defendants may waive the right, but by hypothesis such defendants are incompetent, and thus might be incapable of waiving the right. So recognition of a right to competency in habeas proceedings means either that prosecutors can for practical purposes insist on indefinite postponement of habeas proceedings where convicts are not competent (a counterintuitive result), or that the difference in punishment—capital vs. noncapital—somehow fundamentally changes the nature of how much a lawyer must have input from the client, such that the right is categorically available only for capital convicts (an anomalous result).

It is also anololous to have a system in which a civil litigant can go into court and instantly get the relief he seeks merely by showing that he is incompetent. In civil cases in our system, a plaintiff has to show a basis for relief, not merely that he is disable from making such a showing. While habeas convictions deal with criminal convictions, they are at bottom civil cases.

Given the Sixth Circuit’s recent record in habeas cases, I would not be surprised were the state of Ohio to file a petition for certiorari in this case. Douglas Berman agrees.