Coe v. Bell

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0130P (6th Cir.)
File Name: 00a0130p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
;

ROBERT GLEN COE,

Petitioner-Appellant,


No. 00-5419
v.

>
RICKY BELL, Warden 
Respondent-Appellee. 
1
Appeal from the United States District Court
for the Middle District of Tennessee at Nashville.
No. 00-00239—Aleta A. Trauger, District Judge.
Submitted: April 3, 2000
Decided and Filed: April 11, 2000
Before: BOGGS, NORRIS, and MOORE, Circuit Judges.
_________________
COUNSEL
ON BRIEF: Henry B. Martin, Paul R. Bottei, FEDERAL
PUBLIC DEFENDER’S OFFICE, Nashville, Tennessee, for
Appellant. Gordon W. Smith, Michael E. Moore, Glenn R.
Pruden, OFFICE OF THE ATTORNEY GENERAL,
CRIMINAL JUSTICE DIVISION, Nashville, Tennessee, for
Appellee.
1
2 Coe v. Bell No. 00-5419
_________________
OPINION
_________________
KAREN NELSON MOORE, Circuit Judge. Robert Glen
Coe appeals the denial of habeas relief regarding the
Tennessee state courts’ determination that he is competent to
be executed pursuant to Ford v. Wainwright, 477 U.S. 399
(1986). Because we conclude that the Tennessee state courts’
proceedings assessing Coe’s Ford claims satisfy the
requirements of due process and do not involve an
unreasonable application of Supreme Court precedent, we
AFFIRM the district court’s denial of Coe’s application for
a writ of habeas corpus.
I. FACTS AND PROCEDURE
In 1981, Robert Glen Coe received the death sentence after
a Tennessee jury convicted him of first-degree murder. Once
Coe had exhausted all of his state and federal appeals of his
conviction and sentence, the Tennessee Attorney General
filed a motion before the Tennessee Supreme Court
requesting an execution date. On December 15, 1999, the
Tennessee Supreme Court set Coe’s execution date for March
23, 2000, and ordered a remand of the case to the Tennessee
trial court that had presided over Coe’s conviction for a
determination of his competency to be executed under Ford.
Coe v. State, 11 S.W.3d 118, 119-20 (Tenn. 1999). The trial
court determined that Coe was entitled to a hearing on this
issue because he had satisfied a threshold showing that there
existed a genuine disputed issue regarding his competency to
be executed. The hearing was held from January 24 to
January 28, 2000. The trial court then issued a finding on
February 2, 2000 that Coe is competent to be executed. The
Tennessee Supreme Court affirmed this finding on March 6,
2000. Coe v. State, No. W1999-01313-SC-DPE-PD, 2000
WL 246425 (Tenn. Mar. 6, 2000), cert. denied, -- S. Ct. --,
2000 WL 295230 (Mar. 22, 2000).
No. 00-5419 Coe v. Bell 3
On March 16, 2000, Coe filed in federal district court an
application for a writ of habeas corpus challenging the
Tennessee courts’ determination that he is competent for
execution under Ford. In a thorough opinion examining
Coe’s several claims issued on March 29, 2000, the district
court refused to grant Coe’s application for habeas relief. Coe
filed a notice of appeal and sought a certificate of
appealability from the district court, which the district court
granted. The Tennessee Supreme Court on March 30, 2000
set Coe’s execution for April 5, 2000.
After we requested and received briefs from the parties on
April 3, 2000, we granted a stay of execution to evaluate fully
the merits and to prevent Coe’s scheduled April 5, 2000
execution from mooting his appeal. We directed the district
court to make its record available for our review and asked
the parties to designate particular parts of the record pertinent
to this appeal. Because of the ample briefing and record and
because of the inherent need for expedited review and
resolution of a Ford claim, further briefing and an appellate
oral argument are not necessary. See 6TH CIR. R. 22(c)(7).
II. ANALYSIS
A. Adequacy of State Procedures
1. Ford v. Wainwright
This circuit has never been presented with the opportunity
to examine the adequacy of a state’s procedures to determine
whether a death-row prisoner is competent to be executed
pursuant to Ford v. Wainwright, 477 U.S. 399 (1986). In
Ford, the Supreme Court held that the Eighth Amendment
prohibits a state from executing a prisoner who is insane. See
477 U.S. at 409-10. A majority of the Justices did not reach
the issues of what constitutes insanity in this context or what
state procedures would adequately address a prisoner’s Ford
claim. Therefore, this court must look to the position taken
by Justice Powell, who concurred in the judgment on the most
narrow grounds, for the Court’s holding on these issues. See
Marks v. United States, 430 U.S. 188, 193 (1977) (“When a
4 Coe v. Bell No. 00-5419 No. 00-5419 Coe v. Bell 21
fragmented Court decides a case and no single rationale and sentenced for a capital offense, however, we see no
explaining the result enjoys the assent of five Justices, ‘the reason why a prisoner’s competency to be executed should be
holding of the Court may be viewed as that position taken by treated more strictly than a criminal defendant’s competency
those Members who concurred in the judgments on the to stand trial for the purpose of due process. Therefore, the
narrowest grounds . . . .’” (quoting Gregg v. Georgia, 428 Tennessee courts’ placement of the burden of proof on Coe to
U.S. 153, 169 n.15 (1976)). establish his lack of competency to be executed comports
with the procedural protections of the Due Process Clause and
First, Justice Powell concluded that prisoners will be is not an unreasonable application of Supreme Court
considered insane for the purposes of competency to be precedent.
executed when they “are unaware of the punishment they are
about to suffer and why they are to suffer it.” Ford, 477 U.S. 4. Other Procedural Claims
at 422 (Powell, J., concurring). In Ford, a psychiatrist’s
findings showed that the death-row prisoner believed that he Finally, Coe raises a number of other challenges to the
would not be executed but rather understood the death penalty procedures used by the Tennessee courts in deciding his
to have been invalidated. This led Justice Powell to conclude competency. Given Justice Powell’s opinion in Ford, we
that “[i]f this assessment is correct, petitioner cannot connect believe that “[a]s long as basic fairness is observed” in a
his execution to the crime for which he was convicted” as prisoner’s competency-to-be-executed determination, a state
required under the competency standard. Id. at 422-23 has “substantial leeway to determine what process best
(Powell, J., concurring). It appears that the Supreme Court balances the various interests at stake.” Ford, 477 U.S. at 427
has accepted this competency standard as the Ford holding. (Powell, J., concurring). Accordingly, we must give the
See Penry v. Lynaugh, 492 U.S. 302, 333 (1989) (noting that Tennessee courts substantial discretion in fashioning the
“under Ford v. Wainwright, someone who is ‘unaware of the procedures employed in Coe’s competency proceedings.
punishment they are about to suffer and why they are to suffer Where Coe was given an extensive hearing over several days
it’ cannot be executed” (citation omitted)). and was given the opportunity to present evidence and to
cross-examine the state’s mental health experts, it is not our
Second, Justice Powell determined that in evaluating a role to second guess all of the procedural decisions made by
prisoner’s competency-to-be-executed claim, the state must the Tennessee courts. Moreover, we note that the district
comply with the Due Process Clause and that, under these court ably addressed Coe’s claims in a thorough 42-page
particular circumstances, the clause requires the state to opinion denying habeas relief. It would serve no
provide the prisoner with a “fair hearing.” Ford, 477 U.S. at jurisprudential purpose to discuss these claims any further.
424 (Powell, J., concurring). In Ford, the Governor of
Florida was responsible for deciding a prisoner’s competency III. CONCLUSION
to be executed and for appointing a panel of three
psychiatrists to evaluate the prisoner. The prisoner was not Based on the foregoing, we AFFIRM the district court’s
given the opportunity to present any material for the Governor denial of Coe’s application for a writ of habeas corpus. We
to consider in making a competency determination. Justice hereby lift the stay of execution.
Powell noted that the opportunity to be heard is a
“fundamental requisite” of due process. Id. (Powell, J.,
concurring). The prisoner was not given this fundamental
opportunity to be heard, and the decision on his competency
20 Coe v. Bell No. 00-5419 No. 00-5419 Coe v. Bell 5
Although the Supreme Court has never established who was made solely on the basis of the findings from the state-
bears the burden of proof in a competency-to-be-executed appointed experts. Justice Powell stated that “[s]uch a
claim,5 it has held that a California statute requiring a procedure invites arbitrariness and error by preventing the
criminal defendant to prove by a preponderance of the affected parties from offering contrary medical evidence or
evidence that he is not competent to stand trial does not even from explaining the inadequacies of the State’s
violate due process. See Medina v. California, 505 U.S. 437, examinations” and “does not, therefore, comport with due
449 (1992). The Court specifically rejected the use of the process.” Id. (Powell, J., concurring).
Mathews v. Eldridge balancing test for evaluating the
adequacy of state procedures in this context because it “does Justice Powell cautioned, however, that he “would not
not provide the appropriate framework for assessing the require the kind of full-scale ‘sanity trial’” he thought implied
validity of state procedural rules which, like the one at bar, in Justice Marshall’s opinion. Id. at 425 (Powell, J.,
are part of the criminal process.” Id. at 443. Rather, the concurring).1 Although a prisoner is entitled to due process
Court instructed that a state’s procedure regarding the burden on a Ford claim, “[d]ue process is a flexible concept” and its
of proof in the criminal context will not be prohibited unless procedural protections may vary depending on the context of
“‘it offends some principle of justice so rooted in the a particular situation. Id. (Powell, J., concurring). A
traditions and conscience of our people as to be ranked as competency-to-be-executed claim only raises the issue of
fundamental.’” Id. at 445 (quoting Patterson v. New York, when a prisoner will be competent for execution and does not
432 U.S. 197, 202 (1977) (quotations omitted)). After challenge the validity of the prisoner’s conviction or sentence.
examining the historical and modern treatment of the burden Although an important question, “it is not comparable to the
of proof in competency proceedings and the requirements of antecedent question whether [the prisoner] should be
“fundamental fairness,” the Court concluded that placing this
burden on a criminal defendant satisfies due process. See id.
at 446-49. 1
In an opinion joined by three other Justices, Justice Marshall
In accordance with the Supreme Court’s holding in Medina, criticized the Florida procedure for failing to allow a prisoner to present
we conclude that the placement of the burden of proof on Coe relevant material to the factfinder or to challenge the opinions of the state-
appointed experts and for placing the decision solely within the executive
to prove by a preponderance of the evidence that he is branch. Id. at 413-16 (Marshall, J., plurality opinion). Although Justice
incompetent to be executed does not violate due process. We Marshall asserted that states should be left with the task of formulating
recognize that determining the competency of a criminal the proper procedures, he also stated that it is “important that the
defendant facing trial involves different interests than adversary presentation of relevant information be as unrestricted as
determining the competency of a prisoner facing execution. possible” and that “the manner of selecting and using the experts
In light of the fact that a prisoner on death row has previously responsible for producing [the evidence] be conducive to the formation
of neutral, sound, and professional judgments as to the prisoner’s ability
been found competent to stand trial and has been convicted to comprehend the nature of the penalty.” Id. at 417 (Marshall, J.,
plurality opinion). Justice Marshall explicitly stated that “We do not here
suggest that only a full trial on the issue of sanity will suffice to protect
5 the federal interests,” and he recognized that “legitimate pragmatic
We note that in his concurring opinion, Justice Powell states that “it considerations may also supply the boundaries of the procedural
is the defendant and not the State who seeks to overcome the presumption safeguards that feasibly can be provided.” Id. at 416-17 (Marshall, J.,
that he is sane.” Ford, 477 U.S. at 426 n.6 (Powell, J., concurring). This plurality opinion). Thus, five justices agreed that a fair hearing but not
statement, however, was made in the context of his conclusion that the necessarily a full trial was required if a prisoner made a substantial
state “may require a substantial threshold showing of insanity merely to threshold showing of incompetency to be executed. See id. at 417
trigger the hearing process.” Id. at 426 (Powell, J., concurring). (Marshall, J., plurality opinion), 426 (Powell, J., concurring).
6 Coe v. Bell No. 00-5419 No. 00-5419 Coe v. Bell 19
executed at all.” Id. (Powell, J., concurring). Therefore, at 44. We conclude, however, that the Tennessee trial court
Justice Powell asserted that the heightened procedural properly followed Justice Powell’s competency standard as
protections usually required in capital cases are not applicable adopted and applied in Van Tran and determined that Coe is
in this context. See id. (Powell, J., concurring). In addition, aware of his imminent execution and the reason for it,
because the prisoner necessarily was found competent to showing that Coe has made the4 requisite connection between
stand trial in order to be convicted, Justice Powell concluded his crime and his punishment.
that “[t]he State therefore may properly presume that
petitioner remains sane at the time sentence is to be carried 3. Burden of Proof
out, and may require a substantial threshold showing of
insanity merely to trigger the hearing process.” Id. at 426 Coe also argues that the Tennessee courts erred in
(Powell, J., concurring) (footnote omitted). Finally, Justice following Van Tran’s placement of the burden of proof on
Powell noted that the competency determination requires a Coe to prove his incompetency to be executed by a
“basically subjective judgment” based on “expert analysis in preponderance of the evidence rather than placing this burden
a discipline fraught with ‘subtleties and nuances.’” Id. on the state of Tennessee. To support his argument, Coe
(Powell, J., concurring) (quoting Addington v. Texas, 441 asserts that “the burden of proof must reflect the allocation of
U.S. 418, 430 (1979)). Therefore, “ordinary adversarial error under the circumstances” and cites to Addington v.
procedures – complete with live testimony, cross- Texas, 441 U.S. 418 (1979), and Mathews v. Eldridge, 424
examination, and oral argument by counsel – are not U.S. 319 (1976) for support. Memorandum of Law in
necessarily the best means of arriving at sound, consistent Support of Stay at 82. He also states that because his “mental
judgments as to a defendant’s sanity.” Id. (Powell, J., state fluctuates, it is not proper to require him to bear the
concurring). burden of proof.” Id. The Addington decision, however,
dealt with the proper standard for a civil commitment
Accordingly, Justice Powell concluded that a state need not proceeding not for a competency determination. See 441 U.S.
carry out a formal trial to determine a prisoner’s competency. at 425.
At a minimum, he stated, “[t]he State should provide an
impartial officer or board that can receive evidence and
argument from the prisoner’s counsel, including expert 4
In support of his argument, Coe cites to Justice Marshall’s statement
psychiatric evidence that may differ from the State’s own in Ford that it is essential “that the manner of selecting and using the
psychiatric examination.” Id. at 427 (Powell, J., concurring). experts responsible for producing [mental health evidence] be conducive
However, “[b]eyond these basic requirements, the States to the formation of neutral, sound, and professional judgments as to the
should have substantial leeway to determine what process best prisoner’s ability to comprehend the nature of the penalty.” Ford, 477
balances the various interests at stake” as long as the states U.S. at 417 (Marshall, J., plurality opinion) (emphasis added). At no
other point in his opinion does Justice Marshall set forth what he
observe the requirements of “basic fairness” under the Due considers to be the proper standard for competency. We cannot conclude
Process Clause. Id. (Powell, J., concurring). that he meant to do so with this one statement. Moreover, even if we were
to agree that Coe must comprehend the nature of the death penalty, we
2. Tennessee’s Ford Procedures believe that the Tennessee Supreme Court correctly concluded that Coe
does indeed understand and comprehend the death penalty. The court
Invoking its inherent supervisory authority and with the pointed out, for example, that Coe has chosen a method of execution and
has refused a sedative because he “think[s] there might be a God, and I’ve
Ford decision as guidance, the Tennessee Supreme Court got enough to deal with him, without being drunk on Valium.” Coe v.
recently adopted and set forth the procedures that a death-row State, No. W1999-01313-SC-DPE-PD, 2000 WL 246425, at * 25 (Tenn.
Mar. 6, 2000), cert. denied, -- S. Ct. --, 2000 WL 295230 (Mar. 22, 2000).
18 Coe v. Bell No. 00-5419 No. 00-5419 Coe v. Bell 7
pleading guilty or for waiving the right to trial is the same as prisoner must follow to challenge his competency to be
the competency standard for standing trial. In a concurring executed. See Van Tran v. State, 6 S.W.3d 257, 265 (Tenn.
opinion, Justice Kennedy asserted, “[t]he Due Process Clause 1999). First, the court adopted Justice Powell’s standard for
does not mandate different standards of competency at competency and held that “under Tennessee law a prisoner is
various stages of or for different decisions made during the not competent to be executed if the prisoner lacks the mental
criminal proceedings.” Id. at 404 (Kennedy, J., concurring). capacity to understand the fact of the impending execution
It appears from his opinion, however, that Justice Kennedy and the reason for it.” Id. at 266.
was concerned that the same standard be applied from the
time of a defendant’s arraignment through his sentencing. See Next the court established the procedures to be used in
id. at 404-05 (Kennedy, J., concurring). Because competency Tennessee. After the State Attorney General moves the
to be executed involves different interests than competency to Tennessee Supreme Court to set an execution date, the
stand trial in the first instance, we do not believe that a state prisoner must raise the issue of competency in his response to
rigidly must apply the competency-to-stand-trial standard in the motion within the ten-day period for response. If such a
this context where it does not make sense in modern practice. motion is made, and the Tennessee Supreme Court sets an
execution date, the prisoner’s competency claim will be
Moreover, the Supreme Court seems to have accepted remanded to the trial court where the prisoner was originally
Justice Powell’s competency standard as the Ford holding. tried and sentenced. Within three days of the entry of the
See Penry v. Lynaugh, 492 U.S. 302, 333 (1989) (noting that remand order, the prisoner must file a petition with the trial
“under Ford v. Wainwright, someone who is ‘unaware of the court setting forth the factual allegations of incompetence
punishment they are about to suffer and why they are to suffer along with supporting affidavits, records, or other materials
it’ cannot be executed” (citation omitted)). Therefore, we and a list of any mental health professionals who would be
conclude that the Van Tran opinion’s adoption of Justice available and willing to testify on the prisoner’s behalf. See
Powell’s standard, that “only those who are unaware of the id. at 267-68. The district attorney general must file a
punishment they are about to suffer and the reason they are to response within three days. Within four days the trial court
suffer it are entitled to a reprieve,” satisfies due process and then must decide whether the prisoner has made the required
is not an unreasonable interpretation of Supreme Court threshold showing of incompetence in order to receive a
precedent. Van Tran, 6 S.W.3d at 266 (adopting the hearing as suggested by the opinions of Justice Powell and
“cognitive” test). Justice Marshall. See id. at 268 (citing Ford, 477 U.S. at 417
(Marshall, J., plurality opinion); 477 U.S. at 426 (Powell, J.,
We note that Coe also challenges the Tennessee trial court’s concurring)). Noting that the Supreme Court did not indicate
application of the Van Tran standard in his case. In its ruling what would satisfy the threshold showing, the Tennessee
on Coe’s competency, the trial court stated, “Petitioner Supreme Court looked to Ake v. Oklahoma, 470 U.S. 68, 82-
realizes he is facing execution, and that he knows it is because 83 (1985), cited favorably in Justice Powell’s concurring
he has been convicted of murdering a little girl.” Coe v. State, opinion, in which the Court concluded that a defendant must
No. B-73812, slip op. at 27 (Tenn. Crim. Ct. Feb. 2, 2000) make a substantial showing of his insanity before due process
(emphasis added). Coe argues that the trial court requires the state to appoint a defense psychiatrist at its
impermissibly relied on Coe’s knowledge that he is to be expense. It also examined its own cases, applying Ake, which
executed for his murder conviction rather than Coe’s require that before a mental health expert will be appointed to
comprehension of the sentence and its implications. See evaluate a defendant’s competency to stand trial, the
Petition for Writ of Habeas Corpus / Complaint for Relief defendant must point to the facts and circumstances of his
8 Coe v. Bell No. 00-5419 No. 00-5419 Coe v. Bell 17
particular case which “warrant a belief that the defendant is sense in modern practice. First, he noted that criminal
incompetent to stand trial.” Van Tran, 6 S.W.3d at 268. defendants are afforded broader constitutional guarantees than
Accordingly, the Tennessee Supreme Court held that the at common law, including the right to effective assistance of
burden is on the prisoner to present “affidavits, depositions, counsel at trial and on appeal and extensive judicial review
medical reports, or other credible evidence sufficient to through direct appeal and state and federal collateral review.
demonstrate that there exists a genuine question regarding “It is thus unlikely indeed that a defendant today could go to
petitioner’s present competency.” Id. at 269. The court also his death with knowledge of undiscovered trial error that
emphasized that pursuant to the nature of a Ford claim, the might set him free.” Id. at 420 (Powell, J., concurring). In
prisoner must submit some evidence from recent mental addition, Justice Powell observed that “in cases tried at
evaluations or observations relating to his present common law execution often followed fairly quickly after
competency. See id. trial, so that incompetence at the time of execution was linked
as a practical matter with incompetence at the trial itself.” Id.
If the prisoner satisfies this threshold showing for a hearing, at 420-21 (Powell, J., concurring). Justice Powell then
the trial court must appoint “at least one, but no more than concluded that “[t]he more general concern of the common
two, mental health professionals from each list submitted by law – that executions of the insane are simply cruel – retains
the respective parties.” Id. The experts then must submit its vitality.” Id. at 421 (Powell, J., concurring). Furthermore,
written reports to the trial court. Within ten days after the “one of the death penalty’s critical justifications, its
filing of the mental health professionals’ reports, the trial retributive force, depends on the defendant’s awareness of the
court is required to hold a hearing to determine competency. penalty’s existence and purpose.” Id. (Powell, J., concurring).
No jury is impaneled. At the hearing, the prisoner has the In order to achieve this justification, Powell instructed that
burden of proving by a preponderance of the evidence his prisoners should be considered insane for the purpose of
incompetency to be executed. See id. at 270-71. Adopting execution if they “are unaware of the punishment they are
the more stringent requirements in Justice Marshall’s opinion about to suffer and why they are to suffer it.” Id. at 422
in Ford, the Tennessee Supreme Court “emphasize[d] that the (Powell, J., concurring).
strictures of due process must be observed at the hearing.” Id.
at 271. A “prisoner must be given notice that an evidentiary We agree that a prisoner’s ability to assist in his defense is
hearing will be held” and “must be afforded an opportunity to not a necessary element to a determination of competency to
be heard and to present evidence relevant to the issue of be executed. Moreover, Coe has not shown how a prisoner
competency at an adversarial proceeding at which the prisoner could assist his counsel, a mental health professional, or the
is entitled to cross-examine the State’s witnesses.” Id. In trial judge in deciding on his competency when the prisoner’s
order to satisfy Justice Marshall’s determination that a very competency is the matter at issue.
prisoner should not be barred from presenting relevant
material for the factfinder’s consideration, the court stated In arguing that the common law standard governing the
that “the rules of evidence should not be applied to limit the modern standard for competency to stand trial, which includes
admissibility of reliable evidence that is relevant to the issue the “assistance” inquiry, also applies in a competency-to-be-
of the prisoner’s competency.” Id. executed proceeding, Coe asserts that the Supreme Court has
held that the standard for competency does not change
After the hearing, the trial court must file an order with depending on the stage of the criminal proceedings. He cites
detailed findings of fact and conclusions of law granting or to Godinez v. Moran, 509 U.S. 389, 398 (1993), in which the
denying the prisoner’s Ford petition. The Tennessee Supreme Court concluded that the competency standard for
16 Coe v. Bell No. 00-5419 No. 00-5419 Coe v. Bell 9
since the previous determination of competency was Supreme Court concluded that a prisoner’s competency to be
made and the showing is sufficient to raise a substantial executed is a question of fact and therefore the trial court
question about the prisoner’s competency to be executed. must in its findings of fact “set out any undisputed facts,
explain its assessment of the credibility of the various expert
Van Tran, 6 S.W.3d at 272. This state procedure adequately witnesses and their conflicting opinions, and include findings
addresses the situation in which a prisoner’s competency as to the prisoner’s behavior during the hearing.” Id. The
changes after the Tennessee state courts make their Tennessee Supreme Court automatically reviews the trial
competency determination by requiring the prisoner to court’s competency determination, which as an issue of fact
establish a substantial change in his competency. In light of is presumed correct “unless the evidence in the record
the fact that two state courts have already made a preponderates against the finding.” Id. at 272. If a prisoner
determination of Coe’s competency to be executed, we is found competent to be executed, he will not be allowed to
conclude that Tennessee’s requirement that he make a bring a subsequent Ford claim unless he provides to the
threshold showing of a “substantial change” comports with Tennessee Supreme Court “an affidavit from a mental health
notions of basic fairness. professional showing that there has been a substantial change
in the prisoner’s mental health since the previous
In sum, because the procedures followed by the Tennessee determination of competency was made and the showing is
courts in this case satisfy the requirements of due process, we sufficient to raise a substantial question about the prisoner’s
cannot conclude that they represent an unreasonable competency to be executed.” Id.
application of the Ford opinion.
In setting forth the procedures for handling a Ford claim,
2. Standard of Competency the Tennessee Supreme Court properly followed the narrow
concurring opinion of Justice Powell in establishing the
Coe also asserts that the Tennessee courts applied an standard for competency to be executed and by placing the
improper standard of competency in deciding his competency burden of proof on the prisoner to make a threshold showing
to be executed. As discussed above in Part II.A.2 supra, in of incompetence for a hearing. The court then chose to
Van Tran the Tennessee Supreme Court adopted the implement the views in the opinion of Justice Marshall,
competency standard advocated by Justice Powell’s which argued for more procedural protections than Justice
concurring opinion in Ford. In determining the proper Powell’s opinion, to mandate an adversarial hearing in which
standard, Justice Powell looked for guidance in the common the prisoner is able to present all relevant material regarding
law tradition and in the modern practice of prohibiting the his competency and to cross-examine the state’s expert
execution of the insane. He noted that there were differing witnesses. Therefore, the procedures identified in Van Tran
justifications at common law for not executing insane are generally adequate to protect a prisoner’s right to a fair
criminals. One justification, also applied in the context of hearing of his Ford competency claim as required by due
competency to stand trial, was that a prisoner must be process. To the extent that Coe challenges specific aspects of
competent to be executed so that he may assist in his defense. the Van Tran procedures, we discuss them below in Part II.C.
See Ford, 477 U.S. at 419 (Powell, J., concurring) (“‘if after
judgment he become of non sane memory, his execution shall B. Habeas Review
be spared; for were he of sound memory he might allege
somewhat in stay of judgment or execution’” (quoting 1 M. Coe filed his habeas application challenging the Tennessee
HALE, PLEAS OF THE CROWN 35 (1736)). Justice Powell, courts’ determination of his competency under Ford on
however, concluded that this justification does not make
10 Coe v. Bell No. 00-5419 No. 00-5419 Coe v. Bell 15
March 16, 2000, and therefore the amendments to 28 U.S.C. the procedural protections identified in the opinions of Justice
§ 2254 in the Antiterrorism and Effective Death Penalty Act Marshall and Justice Powell in a meaningful way in the
of 1996 (“AEDPA”) govern this court’s standard of review. moments before execution; a state could not make a sound
See Harpster v. Ohio, 128 F.3d 322, 326 (6th Cir. 1997), cert. decision in accordance with due process regarding a
denied, 522 U.S. 1112 (1998). As amended, § 2254(d) states: prisoner’s competency to be executed at this time.
Nevertheless, a state must make its determination when
An application for a writ of habeas corpus on behalf of a execution is imminent. See Stewart v. Martinez-Villareal,
person in custody pursuant to the judgment of a State 523 U.S. 637, 644-45 (1998). Whether the competency
court shall not be granted with respect to any claim that determination is made in the week or the month before the
was adjudicated on the merits in State court proceedings prisoner’s scheduled execution, the state is entitled to exercise
unless the adjudication of the claim – discretion in creating its own procedures “[a]s long as basic
fairness is observed.” Ford, 477 U.S. at 427 (Powell, J.,
(1) resulted in a decision that was contrary to, or concurring).
involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme In the present case, on December 15, 1999, the Tennessee
Court of the United States; or Supreme Court remanded the issue of Coe’s competency to
the Tennessee trial court after setting Coe’s execution for
(2) resulted in a decision that was based on an March 23, 2000. The trial court held an evidentiary hearing
unreasonable determination of the facts in light of the on Coe’s competency in late January 2000 and issued its
evidence presented in the State court proceeding. decision on February 2, 2000. The Tennessee Supreme Court
affirmed the trial court’s decision on March 6, 2000. We
28 U.S.C. § 2254(d). In addition, “a determination of a conclude that the Tennessee courts’ determination was made
factual issue made by a State court shall be presumed to be while Coe’s execution, less than two months away, was
correct” and “[t]he applicant shall have the burden of imminent. The Tennessee courts’ use of the phrase “present
rebutting the presumption of correctness by clear and competency” did not constitute a misunderstanding of the
convincing evidence.” 28 U.S.C. § 2254(e)(1). proper issue under Ford of whether Coe is competent to be
executed at his imminently scheduled execution date.
Coe contends that AEDPA does not apply to his claims,
because applying AEDPA would impose impermissible We acknowledge Coe’s argument that, due to the special
retroactive effects and thus violate this court’s decision in In nature of his claimed DID affliction, he will degenerate as the
re Hanserd, 123 F.3d 922 (6th Cir. 1997). More specifically, execution looms and his condition will significantly worsen.
in response to the district court’s conclusion that Hanserd The Tennessee Supreme Court expressly set forth a procedure
only applies to AEDPA’s bar on second and successive in Van Tran to deal with this type of situation. The court
applications, he asserts: stated,
Indeed, Hanserd makes clear that any impermissible If a prisoner is found to be competent, subsequent Ford
retroactive effect of the AEDPA, if not specifically claims will be disallowed unless the prisoner, by way of
authorized by Congress, cannot apply to bar relief. It motion for stay, provides this Court with an affidavit
does not seem plausible to conclude that Hanserd allows from a mental health professional showing that there has
the application of pre-AEDPA to allow consideration of been a substantial change in the prisoner’s mental health
a claim, only to have the claim denied under the new law.
14 Coe v. Bell No. 00-5419 No. 00-5419 Coe v. Bell 11
or so arbitrary, as to indicate that it is outside the universe of The whole point of retroactivity analysis is that Robert
plausible, credible outcomes.” Id. at 362 (quotations Coe has been unfairly trapped by a change in the law. If
omitted). he knew that the AEDPA would cut off his right to relief
on a Ford claim, he certainly would have raised the claim
C. Coe’s Habeas Application in his first petition, which clearly would have been
governed by the pre-AEDPA law. Lindh v. Murphy, 521
1. Entitlement to Relief Under Ford U.S. 320 (1997). It is for this reason that the AEDPA
does not apply, because the retroactive effect which has
Coe argues that the Tennessee courts erred in deciding his occurred is the new effect of Robert Coe’s filing of
competency to be executed because they evaluated his present claims in his first petition – not only the cutting off of his
competency rather than determining his future competency at right to file the claim, but the prospect of being denied
the moment of execution. The thrust of Coe’s argument is relief under the new standards of the AEDPA.
that, he claims, he suffers from Dissociative Identity Disorder
(“DID”), which causes him to dissociate under stress, and that Petitioner’s Memorandum in Support of Motion for Stay at
he will thus dissociate as his execution grows near and will 70-71.
not have the requisite competency at the time of his
execution. In Hanserd, we concluded that where AEDPA’s
gatekeeping provision prohibiting second or successive
In Ford, the Supreme Court held that the Eighth habeas applications prevents a prisoner from bringing a Bailey
Amendment prohibits the execution of a prisoner who is claim under § 2255 but where the claim could have been
insane. See 477 U.S. at 409-10. If taken to its logical raised in a subsequent application under the pre-AEDPA law,
extreme, as suggested by Coe, a state would be obligated to AEDPA’s gatekeeping provision has an impermissible
determine whether a prisoner is competent to be executed at retroactive effect and is not applicable to the Bailey claim.
the exact moment of execution in order to comply with Ford. See Hanserd, 123 F.3d at 929-34. This court subsequently
Justice O’Connor acknowledged that this problem is due to limited its holding in Hanserd to the particular claim in that
the nature of a competency-to-be-executed claim in her case and concluded that “while Hanserd is not strictly limited
opinion in Ford: to claims arising under Bailey, apart from that class of claims,
there will be few other cases ‘in which the difference matters’
By definition, [a Ford claim] can never be conclusively and on which the gatekeeping requirements of AEDPA will
and finally determined: Regardless of the number of prior thus have an impermissibly retroactive effect.” In re
adjudications of the issue, until the very moment of Sonshine, 132 F.3d 1133, 1135 (6th Cir. 1997) (quoting
execution the prisoner can claim that he has become Hanserd, 123 F.3d at 934 n.21). It is clear that the
insane sometime after the previous determination to the circumstances presented in this appeal differ significantly
contrary. from those presented in Hanserd. Coe raises a Ford
competency claim rather than a Bailey claim, and this court
Id. at 429 (O’Connor, J., concurring in the result in part and previously has determined that Coe’s application is not barred
dissenting in part). by AEDPA’s prohibition on second or successive habeas
We do not believe that the Supreme Court in Ford meant to applications because Coe’s Ford competency claim was not
require a state to determine a prisoner’s competency at the ripe until his execution was imminent and thus was not ripe
exact time of his execution. It would be impossible to follow when his initial habeas application was filed. Thus AEDPA’s
12 Coe v. Bell No. 00-5419 No. 00-5419 Coe v. Bell 13
gatekeeping provision does not have an impermissible entitled to a presumption of correctness that may be rebutted
retroactive effect on his Ford habeas claim. In light of our only by clear and convincing evidence. In addition, for
Sonshine decision, we cannot accept Coe’s interpretation of questions of fact a federal court may grant habeas relief “only
the Hanserd decision as holding that AEDPA has an if the state court’s decision ‘was based on an unreasonable
impermissible retroactive effect whenever AEDPA’s standard determination of the facts in light of the evidence presented in
of review, applied to an application filed after AEDPA’s the State court proceeding.’” Harpster, 128 F.3d at 326
effective date, results in a decision that would have been (quoting § 2254(d)(2)). If competency is a mixed question of
different under the pre-AEDPA standard of review. fact and law, however, then § 2254(d)(1) will apply and we
Nevertheless, we note that even if we were to apply the pre- must determine whether the state courts’ decision “was
AEDPA standard of review to Coe’s habeas application, our contrary to, or involved an unreasonable application of,
determination would not be different.2 clearly established Federal law, as determined by the Supreme
Court of the United States.” 28 U.S.C. § 2254(d)(1); see
In reviewing Coe’s challenge to the Tennessee courts’ Harpster, 128 F.3d at 326-27.
determination of his competency to be executed, we are faced
with the question of whether competency is a question of fact For purposes of our review, we will apply the standard of
or a mixed question of fact and law. In Van Tran, the review that is most favorable to Coe, without deciding if that
Tennessee Supreme Court concluded that the determination standard of review is mandatory. Because the state courts’
of competency to be executed is a question of fact. See 6 decision is entitled to a presumption of correctness under the
S.W.3d at 271. Although this court has never examined the standard of review for questions of fact, we will apply the3
nature of this type of competency determination, we have more lenient standard for mixed questions of fact and law.
treated a defendant’s competency to plead guilty and to be Where a mixed question is fact-intensive and the Supreme
recommitted as a mixed question of fact and law. See Court has not established a clear “rule” requiring a certain
Cremeans v. Chapleau, 62 F.3d 167, 169 (6th Cir. 1995), result, this court has concluded that the “unreasonable
cert. denied, 516 U.S. 1096 (1996); Levine v. Torvik, 986 application” prong of § 2254(d)(1) applies. See Nevers v.
F.2d 1506, 1514 (6th Cir.), cert. denied, 509 U.S. 907 (1993). Killinger, 169 F.3d 352, 360 (6th Cir.), cert. denied, 119 S.
If competency to be executed is a question of fact, under Ct. 2340 (1999). Because competency to be executed is a
§ 2254(e)(1) the state courts’ competency determination is fact-intensive inquiry and because the Supreme Court has not
established a clear rule on what particular circumstances will
constitute incompetence to be executed, we will apply the
2 “unreasonable application” prong in this case. Under this test,
Under the pre-AEDPA analysis, this court reviews a district court’s a state court’s decision will be considered an unreasonable
refusal to grant a writ of habeas corpus de novo, but reviews the district application of clearly established Supreme Court precedent if
court’s factual findings for clear error. See Combs v. Coyle, -- F.3d --,
2000 WL 201970, at *6 (6th Cir. Feb. 23, 2000). A state court’s factual it is not “debatable among reasonable jurists” or is “so
findings “are entitled to complete deference if supported by the evidence.” offensive to existing precedent, so devoid of record support,
Id. Under this presumption of correctness, a petitioner has the burden of
“establish[ing] by convincing evidence that the factual determination by
the state court is erroneous.” McQueen v. Scroggy, 99 F.3d 1302, 1310 3
(6th Cir. 1996), cert. denied, 520 U.S. 1257 (1997). This “presumption If we were to view this appeal as presenting a factual issue only, we
only applies to basic, primary facts, and not to mixed questions of law and would conclude, both under pre-AEDPA and post-AEDPA law, that the
fact” and “also applies to implicit findings of fact, logically deduced district court’s denial of habeas relief was appropriate. Coe has not
because of the trial court’s ability to adjudge the witnesses’ demeanor and shown that the state courts’ determination of his competency was clearly
credibility.” Id. erroneous or unreasonable.