Stephen Michael West v. Ricky J. Bell, Warden , 242 F.3d 338 ( 2001 )

ORDER VACATING STAY

BOGGS, Circuit Judge.

Stephen Michael West is a Tennessee prisoner under a sentence of death for the 1986 rape and murder of two East Tennessee women. He held the state to its burden of proving a capital offense at trial and sentencing, strenuously argued his case on direct appeal through a petition for certio-rari in the United States Supreme Court, and filed for post-conviction relief, which the state courts ultimately denied on June 7, 2000. He did not petition for a writ of certiorari, the time for filing which expired on September 5, 2000. On November 7, 2000, the Tennessee Supreme Court entered an order setting March 1, 2001, as his execution date. No further action was taken by West or on his behalf until February 13, 2001, when West elected electrocution as the method of his execution. See TenmCode Ann. § 40-23-114(c). West instructed his attorneys not to file a petition for a writ of habeas corpus in federal court. See 28 U.S.C. § 2254.

On February 20, 2001, attorneys who represented West in his state post-conviction proceedings, some of whom had worked with West for more than five years, commenced litigation in the United States District Court for the Middle District of Tennessee by filing a motion for appointment of counsel and a stay of execution. The attorneys hoped to conduct an investigation of West’s mental health, arguing that Tennessee Formal Ethics Opinion No. 92-F-129 obligated them to determine whether West had knowingly, voluntarily, and competently waived his right to seek federal habeas. The district court conducted a hearing, during which Judge Campbell thrice asked West if he would like to address the court. Although Judge Campbell indicated that knowing whether West wanted counsel or wished to file a habeas petition would significantly aid the court’s resolution of the pending motions, West answered the court’s questions by saying “No, sir” twice and once gave no audible response.

On the authority of 21 U.S.C. § 848 and McFarland v. Scott, 512 U.S. 849, 114 S.Ct. 2568, 129 L.Ed.2d 666 (1994) (allowing a federal court to appoint counsel to help a prisoner prepare a habeas petition when the prisoner sought such counsel and could not prepare the petition himself), Judge Campbell granted the motion to appoint Roger W. Dickson as counsel “to represent Mr. West regarding any petition under § 2254 that will be filed or any decision by Mr. West not to file a petition,” but denied the request for a stay of execution. Judge Campbell immediately transferred the case to the Eastern District of Tennessee, where the underlying crime occurred.

Before Judge Collier of the Eastern District, the Warden renewed his argument that the district court lacked jurisdiction to enter a stay of execution. The court distinguished Steffen v. Tate, 39 F.3d 622 (6th Cir.1994), in which this court refused to permit a federal district court to stay an execution under the McFarland rule when the prisoner is able and ready though unwilling, for strategic reasons, to file a ha-beas petition. After noting that West has a right to decline to pursue federal habeas relief, Judge Collier declared that “[h]e also has a federal statutory right to a one-year period within which to make up his mind whether he wishes to pursue those remedies.” Judge Collier reasoned that, under McFarland, a federal court “may accept jurisdiction to preserve, in a meaningful way, Petitioner’s federal statutory rights.” Judge Collier did not make any findings of fact in connection with his ruling, instead stating:

Finally, the Court notes under most circumstances, as a society we assume a fully competent individual would wish to pursue every avenue of relief available to avoid execution. The fact West does not, when viewed in light of [evidence that West may be vacillating in his decision and perceives some of his treatment during incarceration as retaliatory] raises some concerns about his mental facility [sic]. Moreover when specifically asked whether he wished to pursue these avenues, instead [of] affirmatively saying “yes” or “no,” he refused to respond. This also raised some concern about whether West has made his decision with full knowledge and understanding of the consequences of that decision. On such a bare record, the Court is reluctant to allow the presently scheduled execution to proceed without an opportunity to determine more accurately West’s wishes and present mental condition.

Collier Order at 5. In response to the Warden’s argument that the attorneys lacked standing to pursue a McFarland stay of execution on West’s behalf, Judge Collier resolved, “Based on the suggestion of West’s counsel that Petitioner’s actions may not be voluntary, and due to the time constraints and limited record before this Court, the Court finds the ‘issues concerning this aspect of jurisdiction may be underdeveloped to a degree that the court should exercise caution and treat the petition as one for which jurisdiction is proper.’ ” Collier Order at 6 (quoting Hamblen v. Dugger, 719 F.Supp. 1051, 1061 (M.D.Fla.1989)). Judge Collier entered a stay of execution and scheduled an eviden-tiary hearing on West’s competence to waive his right to seek federal habeas for June 13, 2001. The Warden promptly filed in this court a “Motion to Vacate Order of District Court Appointing Counsel and Staying Execution.... ”

Upon consideration of the papers, we hold that the stay of execution must be vacated. There is no proper proceeding before the district court that would permit the entering of a stay of execution. West has not brought such an action, and no one has qualified to so move on his behalf.

West is styled in the papers as the “petitioner,” although the papers are being filed, without his consent, by certain private lawyers who previously represented him. They will be referred to interchangeably as “counsel” and “putative next friends”; West, in his possible general interest in the proceeding will be referred to as “petitioner.”

The fundamental principle here is that federal courts are courts of limited jurisdiction. They are not generalized overseers of the state court systems, not even in death penalty cases. Rickman v. Bell, 131 F.3d 1150, 1165 (6th Cir.1997). Counsel’s fundamental error is shown in the many references in the papers to West’s “waiving his appellate rights.” We do not have general appellate jurisdiction over the Tennessee courts. Petitioner must invoke our jurisdiction, not simply fail to waive it.

There is no question that West can invoke the jurisdiction of the federal courts by filing a petition for habeas corpus. 28 U.S.C. § 2254. He has not chosen to do so. How, then, can a federal court get involved in this case? Supreme Court case law tells us that a “next friend” may sue in place of a death-sentenced prisoner only when that person clearly shows that the prisoner is not competent. Whitmore v. Arkansas, 495 U.S. 149, 164-66, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990); Rees v. Peyton, 384 U.S. 312, 314, 86 S.Ct. 1505, 16 L.Ed.2d 583 (1966). Those holdings were in the context of cases where a prisoner sought to withdraw proceedings already pending in federal court, where the court clearly had jurisdiction to consider the withdrawal.

In the rarer cases where there has been a failure to take any action in federal court, the basic principles have been the same. Harper v. Parker, 177 F.3d 567, 572 (6th Cir.1999). See also Lonchar v. Thomas, 58 F.3d 588, 589 (11th Cir.1995); Brewer v. Lewis, 989 F.2d 1021, 1025-26 (9th Cir.1993); Rumbaugh v. Procunier, 753 F.2d 395, 398 (5th Cir.1985). From these cases, it is clear that the burden is still on the putative “next friend” to demonstrate, not simply assert, the incompetence of the prisoner.

In our case, this clearly did not happen. At most, counsel have shown some conceivable difficulties in West’s mental health, but no evidence that, in the words of Rees, the prisoner does not have “capacity to appreciate his position and make a rational choice with respect to continuing or abandoning further litigation or ... suffer[s] from a mental disease, disorder, or defect which may substantially affect his capacity in the premises.” Rees, 384 U.S. at 314, 86 S.Ct. 1505.

Here, counsel disclaim that they are seeking, or have obtained, next friend status. Opposition to Motion to Vacate, at 10 n.6. They seek simply to have West’s execution stayed so that they may, apparently, undertake the process of qualifying as next friend, so that they can then contemplate the process of filing a petition for habeas corpus on West’s behalf. There is no authority for such a process. McFarland applies, at most, to a prisoner’s seeking counsel to file a habeas, or, perhaps, a qualified next friend seeking time to prepare a habeas petition. In re Parker, 49 F.3d 204, 208-11 (6th Cir.1993). Counsel have not pled or proved their entitlement under this rule.

Viewed on the merits, the basis of a grant of such status would be tenuous. Counsel have made many claims in their briefs before us, but they presented little evidence before the district court. Some material presented to us was docketed in the district court, but only minutes before Judge Collier actually ruled, and there is no indication in the judge’s order or in the record that he considered such material.

West was examined in 1986 and found competent to stand trial. He was examined extensively in 1995 in connection with his post-conviction processes, with examiners finding him to be of average or above average intelligence, though with some difficulties. One report stated: “Mr. West is typically quite passive, detached, avoidant, and almost schizoid. Mr. West is an individual who is subject to periods of detachment, depersonalization, and identity diffusion, particularly when under extreme stress.” That material was available to the lawyers, and some was submitted with the briefing in this court. There is no indication that the lawyers sought to have any current examination done in advance of filing this petition, or whether West did or would have objected to such an examination.

The timing of this litigation shows that it is not the State of Tennessee that is seeking to manipulate the time constraints of the law. After the Tennessee Supreme Court denied a petition for rehearing on June. 7, 2000, in West’s appeal of the denial of post-conviction relief, West did not seek certiorari. Counsel should have known that a potential problem with West’s willingness to seek federal court review existed at that time. Tennessee did not set an execution date for five more months, and then set that date 113 days in the future. Knowing that West had still not authorized any habeas petition, the putative next friends were certainly on notice that time was running. Even when West, on February 13, took the unusual step of affirmatively choosing death by electrocution (lethal injection is the default option in Tennessee), counsel still did nothing. Only on February 20, less than nine days before the scheduled execution, did counsel seek to raise before the federal courts a desire to investigate West’s competence to make his own decisions.

This history contrasts starkly with the actions of counsel in our somewhat comparable case of Harper, 177 F.3d at 568-69. There, counsel moved for next friend status in federal court 8 days after the denial of certiorari after the termination of state post-conviction processes. This was even before an execution date had been set. Seven days later, Kentucky set an execution date only 35 days in the future. Counsel pressed their motion, and within two days the district court began proceedings to determine, in accordance with Whitmore, whether next friend status should be given. It is not Tennessee that has caused this case to be handled on a very tight schedule, nor is it Tennessee who chose what evidence to present and when.

It may properly be noted that in Harper the prisoner had affirmatively stated, by letter and then in open court, that he did not wish to pursue any further court proceedings. But that only goes to the substantive correctness of the district court’s decision there, not to the standards to be applied or the burden on those who purport to speak for West.

It is true that West has not affirmatively waived any rights. However, he never invoked the right to file a habeas so that it would be necessary to waive it. Unless the standards of Whitmore are met, West is entitled to be free from being dragged about for mental examinations, hearings, and the like, in processes that he has not invoked, even if purportedly for his benefit. Finally, it should be noted that neither statute nor case law indicate that AEDPA gives a death-sentenced prisoner a free one-year period in which state execution processes cannot touch him. If this argument were correct, an extension of AEDPA’s window to 2 years (which some have argued for) would concomitantly act as a stay of execution for the 2 years, and the pre-AEDPA rule that a habeas could be filed at any time would have meant that a prisoner could never be executed, because it might cut off a prospective future habeas filing. There simply is no such rule.

It is true that this case occasions some unease. It is conceivable that West has a meritorious habeas claim, should he wish to bring it. There are some factors in West’s record that could conceivably support a claim of incompetence, though the books are replete with cases where stronger claims, with histories of depression, suicide attempts, and bad childhoods have been found insufficient (See, e.g., Harper, 177 F.3d at 569-70; Rumbaugh, 753 F.2d at 397; see also Hamilton v. Texas, 497 U.S. 1016, 1019 n. * 110 S.Ct. 3262, 111 L.Ed.2d 772 (1990) (Brennan & Marshall, JJ., dissenting); Demosthenes v. Baal, 495 U.S. 731, 740, 110 S.Ct. 2223, 109 L.Ed.2d 762 (1990) (Brennan & Marshall, JJ., dissenting); Schornhorst v. Anderson, 77 F.Supp.2d 944, 953 (S.D.Ind.1999)). But these facts cannot provide what counsel has failed to provide — -a jurisdictional basis for us to assume control of the state’s processes. In the absence of an adequate finding of incompetence, West is a responsible human being entitled to enter or stay out of federal court. Even at this late hour, he need only choose to invoke the court’s jurisdiction and it will attach.

Contrary to Judge Collier’s statement that, “as a society we assume a fully competent individual would wish to pursue every avenue ... to avoid execution,” an infinite desire to thwart the just processes of the law is not the only sign of mental competence. We must not assume that it is impossible for even a death-sentenced prisoner to recognize the justice of his sentence and to acquiesce in it. If there is a case to the contrary, under our precedents it is up to the putative next friends to make that case. They have not done so, and the district court erred in granting a stay without the jurisdiction prerequisites necessary for that action.

The stay of execution granted on February 23 is vacated, and the underlying proceeding should be dismissed as there is no one with standing to proceed with it.