Brewer v. Lewis

989 F.2d 1021, 1993 WL 64278

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 2, 1993
• Docket: No. 93-99003
• Status: Published

Opinions

CYNTHIA HOLCOMB HALL, Circuit Judge:

Elsie Brewer seeks to appeal the district court’s denial of her petition for habeas corpus and motion for stay of execution filed on behalf of her son, John Brewer, who is scheduled to be executed on Wednesday, March 3, 1993.

I. FACTUAL BACKGROUND

A complete description of Brewer’s offense and the state court proceedings appears in State v. Brewer, 170 Ariz. 486, 826 P.2d 783 (1992). On November 19, 1987, Brewer was indicted for the murder of Rita Brier. In July 1988, Brewer expressed his desire to plead guilty to the charge. The trial court held a hearing to determine whether Brewer understood his rights and the consequences of his plea, and to determine if he was competent to ignore the advice of his attorney and plead guilty. The state trial court had before it the reports of Dr. Gerstenberger and Dr. Bayless stating that Brewer was competent to enter a plea. At the hearing, the trial judge questioned Brewer at length and heard from his trial attorney. The court concluded:

On the basis of the record I find that the defendant knowingly, intelligently and voluntarily enters into a plea of guilty to the charge of First Degree Premeditated Murder. That there is a factual basis for it.

I find that upon review of the psychological reports, the demeanor of the defendant, his responses to the court’s inquiries, his full understanding of consequences of the sentencing options available to the court, and there being only two, Mr. Brewer. Further in light of his education he has versed himself fairly in legal procedures and he does understand the complexities of this case.

Based upon all of the foregoing I hereby accept the plea of guilty.

The court, over Brewer’s objections, ordered Brewer’s trial counsel to present mitigation evidence at the sentencing hearing. At the sentencing hearing, the state presented evidence that the victim suffered great pain. Brewer’s attorney called the jail pastor to testify that originally Brewer expressed bewilderment and remorse for his actions. Brewer’s attorney also called Dr. Bayless to testify in mitigation. Dr. Bayless testified that Brewer was legally competent and has an IQ of 132. He stated that Brewer showed no signs of hallucinations or delusions. However, Dr. Bay-less stated that Brewer had a dependency on his mother and a phobia of being alone. He stated further that when Rita Brier told Brewer that she was going to leave him, Brewer’s willingness to look at reasonable solutions and to depend on himself became impaired, and he lashed out in anger and killed her. Dr. Bayless stated, though, that Brewer was oriented to reality and definitely had a capacity to appreciate the difference between right and wrong.

Brewer addressed the court at length, and said that he killed Rita Brier and that he believed execution was the only proper punishment for the premeditated murder of which he was guilty. The sentencing court found the aggravating factor that the murder was committed in an especially heinous, cruel and depraved manner, and that Brewer’s capacity to appreciate the wrongfulness of his conduct was not impaired. The court found that the evidence and argument in mitigation was insufficient to outweigh the aggravating circumstances, and imposed a sentence of death.

Brewer then filed a letter with the Arizona Supreme Court requesting that he be allowed to abandon all appeals. The Arizona Supreme Court denied his request because a direct appeal in a capital case is mandatory under Arizona law. Brewer, 170 Ariz. at 493, 826 P.2d at 790. The court affirmed Brewer’s conviction and sentence, stating with respect to Brewer’s competency that there was “sufficient evidence to conclude that [Brewer’s] ability to make rational choices and to understand the attendant consequences was not substantially impaired at the time of the guilty plea.” Id. 826 P.2d at 793.

Brewer’s attorney filed a petition for cer-tiorari without Brewer’s knowledge or consent. After the United States Supreme Court denied certiorari, — U.S. -, 113 S.Ct. 206, 121 L.Ed.2d 147 (1992), and pursuant to the Arizona Rules of Criminal Procedure, the clerk of the Arizona Supreme Court filed an automatic notice of post-conviction relief on November 6, 1992. Brewer then filed a motion to dismiss the post-conviction relief, and on November 23, 1992, the trial court held a hearing on Brewer’s motion.

At that hearing, the trial judge addressed Brewer personally, and after assuring himself that Brewer understood his right to have counsel, found Brewer competent to represent himself in the proceeding. Brewer’s former attorney requested that a competency hearing be held in light of an affidavit from a Dr. Rollins stating that Brewer was not competent to proceed. Dr. Rollins’s affidavit was not based on a personal examination of Brewer, was inconsistent with the opinions of two experts who had examined Brewer, was contrary to the trial court’s previous holding and the Arizona Supreme Court’s finding on appeal, and was not supported by any reports from the Arizona Department of Corrections, which is required by law to file a statement in state court if it determines Brewer has a psychological problem. The trial court ruled that Brewer’s competency “has already been determined. It has already been addressed by the Supreme Court of this state. I do not see sufficient information in the Affidavit of Dr. Rollins to change my position, nor do I suspect that the Supreme Court would change its position.” After extensively examining Brewer regarding his request to dismiss the state post-conviction relief proceedings, the trial court found Brewer competent to file the motion to dismiss and granted the motion. The Arizona Supreme Court then issued a warrant of execution for March 3, 1993.

Thereafter, Brewer’s mother filed her petition in the district court as next friend of Brewer, which we review herein. The district court, after hearing evidence, determined that Elsie Brewer

has failed to sustain her burden [of proving that she has standing] and thus the Court lacks jurisdiction to act on the motion for stay of execution and it lacks jurisdiction to act upon the petition for writ of habeas corpus on behalf of a person in state custody. And accordingly, the motion for stay and the petition for writ are denied.

Elsie Brewer then appealed to this court.¹

II. PETITIONER IS NOT ENTITLED TO AN AUTOMATIC STAY UNDER NINTH CIRCUIT RULE 22-3

We must first consider whether this case qualifies for an automatic stay of execution under our Circuit Rule 22-3(c), which provides:

On the first petition [for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 for a petitioner under a sentence of death],² if a certificate of probable cause and a stay of execution have not been entered by the district court ... upon application of the petitioner a certificate of probable cause will be issued and a stay of execution will be granted by this court pending the issuance of its mandate.

The issue here is whether petitioner Elsie Brewer, as purported next friend of John Brewer, qualifies as the “petitioner” for purposes of our rule prior to establishing her standing as a next friend. We hold that she does not. Until Elsie Brewer demonstrates that she has standing to bring a petition on behalf of her son, she may not obtain an automatic stay of the execution of Brewer over his strong objections. To interpret the rule as providing for the entry of a stay at the request of a “next friend’ without a showing that the defendant is unable to act on his own behalf would be inconsistent with the holding in Demosthenes v. Baal, 495 U.S. 731, 737, 110 S.Ct. 2223, 2226, 109 L.Ed.2d 762 (1990), that “[b]efore granting a stay, ... federal courts must make certain that an adequate basis exists for the exercise of federal power.”

The dissent to this order asserts that we are “reading language into the rule” on first petitions. We read nothing into the rule. We simply apply the rule in light of the fundamental principle of jurisdiction that a party must have standing to litigate in federal court. A grant of a stay is an exercise of judicial power, and we are not authorized to exercise such power on behalf of a party who has not first established standing. See Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 2204-05, 45 L.Ed.2d 343 (1975) (“In essence the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues.”). Standing determines the power of the court to entertain a suit. Id.

The dissent further contends that we have decided the “merits” of the petitioner’s claim, and that this indicates we acknowledge she has made a colorable claim of standing. We have simply decided under relevant Supreme Court authority that the district court correctly concluded that petitioner has failed to establish her standing to petition the federal courts. Standing is a jurisdictional question that must be addressed at the threshold of any case.

Finally, the dissent’s citation to Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946), does not support the argument that we have jurisdiction to consider petitioner’s appeal. That case did not concern standing but rather the question whether the plaintiff had stated a cognizable cause of action. The Supreme Court has never cited Bell for the proposition that a party has standing as long as her claim is not “wholly insubstantial.”

III. PETITIONER HAS FAILED TO ESTABLISH HER STANDING

The district court held a hearing on February 23, 1993, for the purpose of determining whether petitioner has standing as next friend of John Brewer, and correctly concluded she does not. The facts of the present case are closely analogous to those presented to the Supreme Court in Baal, 495 U.S. at 731, 110 S.Ct. at 2223. In Baal, the defendant’s parents filed a habeas petition in the district court hours before Baal’s scheduled execution. The only evidence the petitioners presented in support of their petition was the affidavit of a psychiatrist who had not examined Baal, and who opined that Baal “may not be competent to waive his legal remedies.” Id. 495 U.S. at 736, 66 S.Ct. at 2225 (emphasis in original). The district court then conducted a hearing, after which it concluded that petitioners failed to establish their standing as next friends. Id. at 733, 66 S.Ct. at 2224. Upon review of the record, the district court found that all the evidence, other than the newly submitted affidavit, established Baal’s legal competence, and that the affidavit was eonclusory and lacking in sufficient foundation to warrant additional examination of Baal. The Supreme Court ultimately held that because petitioners had not come forward with “meaningful evidence” of Baal’s incompetence, the district court correctly found that petitioners had not established standing, and correctly denied their request for a further evidentiary hearing on the question of Baal’s competence to waive his right to proceed. Id. at 736, 66 S.Ct. at 2225.

The hearing which the district court below held on February 23, 1993, was analogous to the hearing which the district court held in Baal. The hearings in both cases provided the petitioners an opportunity to attempt to establish their standing. The district courts in both instances found that the petitioners had not presented sufficient evidence to establish standing. In Baal, the Supreme Court held that because the petitioners had not supplied the “meaningful evidence” necessary to support their claim of standing, they were not entitled to a further evidentiary hearing to explore the question of the defendant’s competence. In the present case, because Ms. Brewer has likewise not presented such “meaningful evidence,” she was not entitled to a further evidentiary hearing on her son’s competence, and therefore the district court did not abuse its discretion by denying her additional time to examine Brewer or conduct other discovery.³

The district court determined that petitioner did not meet her “burden of proving by clear evidence” that the defendant is incompetent to waive his appellate rights.⁴ The standard which the district court applied in reaching its determination is consistent with the Supreme Court’s declaration in Whitmore v. Arkansas, 495 U.S. 149, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990), that the “burden is on the ‘next friend’ clearly to establish the propriety of his status and thereby justify the jurisdiction of the court.” Id. at 164, 110 S.Ct. at 1727-28 (emphasis added). In order to clearly establish standing, a petitioner must present “meaningful evidence that [the defendant] was suffering from a mental disease, disorder, or defect that substantially affected his capacity to make an intelligent decision.” Id. at 166, 110 S.Ct. at 1728-29. The Court reiterated this requirement in Baal. 495 U.S. at 736, 110 S.Ct. at 2225-26.

The district court did not err in determining that Ms. Brewer failed to clearly establish her standing, because the record shows that she did not provide the meaningful evidence which Whitmore and Baal demand. The evidence which she submitted is indistinguishable from that which the petitioners submitted in Baal, and which the Supreme Court found insufficient. In Baal, the petitioners presented an affidavit of a psychiatrist who had reviewed and disagreed with reports of experts who had examined Baal and found him competent, but who had never personally observed Baal. Id. at 735-36, 110 S.Ct. at 2225-26. Here, petitioner has submitted brief affidavits of two doctors who have never met Brewer, as well as an affidavit of Dr. Bay-less, who examined Brewer and found him competent in 1988. Dr. Bayless speculates, based on information not available to him at that time, that Brewer’s mental condition may have deteriorated during his incarceration, and that Brewer may now suffer from a major depressive disorder.⁵ As in Baal, this conclusory evidence is insufficient to outweigh the substantial evidence in the record demonstrating the defendant’s competence. Within the last two and one-half months, no less than four psychological experts have personally examined and tested Brewer and found him competent.⁶

IV. THE ARIZONA STATE COURT’S DETERMINATIONS OF BREWER’S COMPETENCE ARE ENTITLED TO A PRESUMPTION OF CORRECTNESS

Our conclusion that Elsie Brewer has not established standing as next friend of John Brewer is bolstered by our obligation to accord a presumption of correctness to the state court’s determinations of his competence. The Supreme Court has held that a state court’s conclusion regarding a defendant’s competence is due such a presumption where it is “fairly supported by the record.” Baal, 495 U.S. at 735, 110 S.Ct. at 2225; Maggio v. Fulford, 462 U.S. 111, 117, 103 S.Ct. 2261, 2264, 76 L.Ed.2d 794 (1983).

The state court’s July 1988 determination that Brewer was competent to plead guilty is without question supported by the record. The state court’s conclusion was based upon psychological reports from Dr. Bayless and Dr. Gerstenberger which evaluated Brewer’s competence to stand trial as well as his mental condition at the time of the offense. Furthermore, the state court conducted an in court colloquy with Brewer concerning his desire to plead guilty and his understanding of his circumstances.

On November 23, 1992, the state trial court again found Brewer competent, in a hearing on Brewer’s motion to dismiss an automatic notice of post-conviction relief. At this hearing, the court itself extensively examined Brewer concerning his reasons for wishing to forego post-conviction relief proceedings. In light of Brewer’s statements in court, and based upon its review of the entire record, the state court concluded that it found no reason to change its previous finding that Brewer was competent to act on his own behalf. Hearing of Nov. 23, 1992, R.T. at 45. The court found further that an affidavit of Dr. Rollins submitted by Brewer’s former counsel was insufficient to raise questions concerning Brewer’s competence. Id. at 25. The two and a half page affidavit suggests in a conclusory fashion that further psychological examination of Brewer is needed to determine his competence. Considering the complete absence of contrary evidence, we must conclude that the state court’s determination of Brewer’s competence at the November 1992 hearing was fairly supported by the record, and therefore entitled to a presumption of correctness. See Lenhard v. Wolff, 603 F.2d 91, 93 (9th Cir.1979) (a determination of competence remains valid where, even though time has elapsed, there has been no showing of incompetence).

We note further that additional evidence of Brewer’s psychological condition gathered within the last two and a half months corroborates the state court’s determinations. Four psychological experts who have personally examined Brewer have determined that he is competent, and this evidence has been presented in various filings with the Arizona courts, the district court below, and this court on appeal.

Because we presume that the state court correctly determined Brewer to be competent, and because petitioner has not come forward with meaningful evidence to undermine that determination, we must conclude that she has failed to “provide an adequate explanation” why Brewer cannot appear on his own behalf. Whitmore, 495 U.S. at 163, 110 S.Ct. at 1727.

V. CONCLUSION

Accordingly, we affirm the judgment of the district court and dismiss Ms. Brewer’s appeal for lack of jurisdiction. The application for certificate of probable cause and the motion for stay of execution are denied.

1 . The court also held Ms. Brewer lacks individual standing to move for a stay of her son’s execution. Ms. Brewer does not appear to raise this argument on appeal, and we are not aware of any authority that would support her claim to individual standing, as distinguished from standing as "next friend" based on her son's incompetence. See Whitmore v. Arkansas, 495 U.S. 149, 165, 110 S.Ct. 1717, 1728, 109 L.Ed.2d 135 (1990) ("one necessary condition for 'next friend’ standing in federal court is a showing by the proposed 'next friend’ that the real party in interest is unable to litigate his own cause due to mental incapacity..."); Gilmore v. Utah, 429 U.S. 1012, 1014, 97 S.Ct. 436, 437-38, 50 L.Ed.2d 632 (1976) (Burger, C.J., concurring) ("The only possible exception to this conclusion [that Mrs. Gilmore does not have standing] would be if the record suggested ... that [her son] was incompetent to waive his right of appeal.”).

2 . Circuit Rule 22-3(a) provides that the automatic stay rule "shall apply to appellate proceedings involving a first petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 for a petitioner under a sentence of death. A 'first petition’ for habeas corpus shall mean: the original filing relating to a particular conviction or sentence, and a subsequent or amended filing if the original filing was not dismissed on the merits."

3 . Rule 6 of the Rules Governing Section 2254 Cases in the United States District Courts explicitly leaves the decision whether to permit discovery to the discretion of the district court.

4 . The Supreme Court stated the test for determining whether a habeas petitioner is competent to waive his right to federal review of his conviction and sentence in Rees v. Peyton, 384 U.S. 312, 314, 86 S.Ct. 1505, 1506-07, 16 L.Ed.2d 583 (1966):

whether he has capacity to appreciate his position and make a rational choice with respect to continuing or abandoning further litigation or on the other hand whether he is suffering from a mental disease, disorder, or defect which may substantially affect his capacity....

5 . Dr. Alexander Don, an independent psychiatrist retained by the state, examined Brewer in early February 1993, and specifically concluded that Brewer evidenced very little mental deterioration due to his five-year incarceration and "does not manifest any signs of a psychotic illness.”

6 . The only evidence that the state’s experts did not consider was two letters written by Brewer in which he appears to assert a belief that Rita Brier is now living on another planet, and that he will join her there after his execution. During Dr. Don's examination of him, Brewer specifically denied that he believes in the existence of this planet, although he admitted his religious beliefs are unusual. Dr. Don did not review Brewer’s letters, but testified at the district court hearing that Brewer's belief that he would join Brier in an afterlife was not "indicative of any mental instability or problem.” These religious beliefs, including the existence of the planet Terracia, did not emerge for the first time in the two letters, but had been a part of Brewer’s discussions and beliefs long prior to the murder.

Ms. Brewer also presented affidavits from several friends and family members, all of whom agreed Brewer had a difficult childhood and showed signs of mental disorder from an early age. These statements do not contradict the district court's findings. The four experts who examined Brewer determined he suffers from a personality disorder, but all agreed that Brewer is competent.