Don Jay Miller, by and Through Nancy Follin Jones v. Terry Stewart

231 F.3d 1248, 2000 Cal. Daily Op. Serv. 9046, 2000 Daily Journal DAR 11969, 2000 U.S. App. LEXIS 28009, 2000 WL 1683315

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 7, 2000
• Docket: 00-99017
• Status: Published

Opinions

OPINION

REINHARDT, Circuit Judge.

Nancy Follín Jones, an attorney with the Pima County Public Defenders Office (PCPD), appeals the denial of her motion to proceed as next friend and to stay the execution of Don Jay Miller, an Arizona prisoner under sentence of death who has declined to seek federal habeas relief and refused to be represented in doing so by Jones or PCPD. Miller’s execution is currently scheduled for November 8, 2000 at 3:00 p.m. The motion was filed November 5. On November 6, the district court found that Jones lacks the requisite standing to maintain this action as Miller’s next friend. Accordingly, it denied Jones’s motion to proceed as next friend and for a stay, and dismissed the petition for writ of habeas corpus filed by Jones for lack of jurisdiction. The court issued a certificate of appealability. Jones has appealed from the district court’s order, and requests a stay of execution pending our consideration of it. Having heard argument by telephone, we grant the stay, and remand for an evidentiary hearing.

Don Miller is what is known in the death penalty trade as “a volunteer.” He has stated that he wishes to be executed. The State insists that the federal courts must presume Miller is competent to make this choice, and that he does so voluntarily and intelligently, because the state superi- or court in a 1998 Faretta¹ hearing found Miller competent to represent himself in state post-conviction proceedings. The State acknowledges, however, that the Faretta hearing did not purport to determine Miller’s competence to choose to die or the voluntariness of that decision. Because no court has ever made the appropriate inquiry and because current evidence suggests that Miller may not be competent, we grant the motion for stay of execution and remand this matter to the district court for an evidentiary hearing.

Miller’s hearing in state court two years ago was on a far different matter. It was a Faretta hearing — a hearing on whether Miller was competent to elect to represent himself in his effort to defeat the State’s decision to execute him. In Faretta, the Supreme Court held that individuals have a constitutional right to represent themselves. See Faretta, 422 U.S. at 806, 95 S.Ct. 2525. In Miller’s case, all the state court determined was that he was able to meet the minimal standard necessary to exercise that constitutional right. See id. at 835, 95 S.Ct. 2525 (defendant must be “made aware of the dangers and disadvantages of self-representation, so that the record will establish that ‘he knows what he is doing and his choice is made with eyes open’ ”). A far different question, however, is raised when the issue posed is whether an individual is competent to choose to be executed — in short, to choose death, and whether he has made that choice voluntarily, knowingly, and intelligently. See Rees v. Peyton, 384 U.S. 312, 313, 86 S.Ct. 1505, 16 L.Ed.2d 583 (1966) (directing the district court to determine Rees’s mental competence “in the present posture of things, that is, whether he has the 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 in the premises”) (emphasis added). Whether someone is competent to waive counsel, and whether he has done so voluntarily, knowingly and intelligently, raises different questions and requires different findings than whether someone is competent to elect to die. See Faretta, 422 U.S. at 835, 95 S.Ct. 2525; cf. Rees, 384 U.S. at 313, 86 S.Ct. 1505. Because here the state court determination of competency and voluntariness stemmed from a different inquiry, in this case, unlike in Brewer2 and Baal,3 there is no competency determination to which federal courts must give deference.

The Faretta findings were made on October 26, 1998 at a time when Miller was confined in county jail and was still determined to fight his conviction and sentence. The State’s psychiatric expert, and the state court, found Miller competent to choose to represent himself when he was still fighting for his life. Dr. Morenz, a psychiatrist, expressly states that when he opined that Miller in 1998 was competent to represent himself, Morenz “placed great emphasis on [Miller’s] indication that he would be pursuing his federal appeals with counsel.” See Declaration by Barry Mor-enz, November 2, 2000; see also Morenz’s August 6, 1998 Psychiatric Evaluation of Miller.⁴ Now the States urges us to defer to that determination — that Miller was competent to choose to represent himself — for purposes of resolving the far different question of whether Miller is competent to choose to die.

Moreover, it is undisputed that Miller’s circumstances have changed drastically since the time of the 1998 Faretta hearing and even since the time of the subsequent reaffirmation of the state court order. Confined in maximum security and all but totally isolated in “SMU II” on Arizona’s death row, Miller has given up his fight for life. Yet no court has ever made any competency determination since this change.

Here, the preliminary issue is standing. In order to establish standing, the next friend must: (1) provide an adequate explanation — such as inaccessibility, mental incompetence, or other disability— why the real party in interest cannot appear on his own behalf to prosecute the action; and (2) be truly dedicated to the best interests of the person on whose behalf he or she seeks to litigate and have some significant relationship with the real party in interest. No one questions Nancy Jones’s dedication or significant relationship with Miller.

In the absence of a prior state court finding to which we defer, we must look to the entire record. Mr. Miller’s history of depression and abuse are well-documented. The record shows that Mr. Miller was physically, sexually, and psychologically abused as a child. He grew up in an environment of abuse and neglect. His mother, who at times ran a “massage parlor” and at other times was a stripper, once chased him with a butcher knife and put out cigarettes on the body of one of his siblings. He has a documented history of suicidal impulses, depression, alcohol abuse, and physical injuries. Significantly, in 1982, as a juvenile offender, he threatened suicide should he not be released from confinement.

In recent affidavits, both of the psychiatric experts who examined Miller for purposes of the 1998 state Faretta hearing adamantly state that their examinations were made for the sole purpose of determining whether Mr. Miller was competent to waive counsel, not for the purpose of determining whether Mr. Miller is competent to choose to die. Both experts state that it is well accepted that conditions such as those present in the SMU II where Miller is housed can cause psychological decompensation to the point that individuals may become incompetent. Both experts note that due to Mr. Miller’s background, he is highly susceptible to the effects of physical isolation on death row. Neither expert believes that Miller’s competency to make the decision to die should be assumed at this point.

In this case we deem it significant that a substantial question has been raised regarding recent changes to Miller’s mental condition. As noted, the doctors who previously found him competent to waive counsel now raise serious questions regarding his competency to make the decision to die. In addition, Julie Hall, counsel for the Arizona Capital Representation Project, has submitted a declaration stating that Miller told her he was willing to pay with his life to escape the conditions of SMU II. Hall, who has been in regular communication with Miller, attests that Miller’s mental state has declined, he has become increasingly depressed, and he has resigned himself to dying. In July of this year, Miller suffered auditory hallucinations. Finally, this court in Comer recognized the harsh conditions of death row in Arizona and its possible effects on those who live there, and on that basis ordered an evidentiary hearing. See Comer v. Stewart, 215 F.3d 910, 916 (9th Cir.2000) (“we and other courts have recognized that prison conditions remarkably similar to Mr. Comer’s descriptions of his current confinement can adversely affect a person’s mental health”). Mr. Comer was also confined in SMU II. The district court distinguished Comer in part on the ground that there the defendant sought to withdraw a habeas application while here the defendant declined to file one. We conclude that the same legal analysis as to competency is applicable in both circumstances.

In this narrow circumstance in which no court has ever determined Mr. Miller’s competency to choose to die or the voluntariness of his decision, there is sufficient evidence in the record to require an evidentiary hearing as to Miller’s competency. Such evidence is sufficient to establish jurisdiction for that purpose in the federal courts and to mandate a stay in this case. See Barefoot v. Estelle, 463 U.S. 880, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983). It is also sufficient to permit next friend status for the evidentiary proceedings.

Stay Granted; Remanded for Further Proceedings in Conformance with this Opinion.

1 . See Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).

2 . See Brewer v. Lewis, 989 F.2d 1021, 1027 (9th Cir.1993).

3 . See Demosthenes v. Baal, 495 U.S. 731, 732-33, 110 S.Ct. 2223, 109 L.Ed.2d 762 (1990).

4 . In that report, in .determining Miller’s competence to represent himself, Dr. Miller relied on the following facts: “Mr. Miller understood that he has been convicted of first-degree murder and sentenced to death. He understood that his current attorneys were Brian Metcalf and Nancy Jones. He indicates that his attorneys will not raise some issues that he believes are relevant in his appeal. He states that these issues particularly have to do with the performance of prior attorneys that have represented him. (Also, he states there are other legal issues that his attorneys do not feel are relevant that he wishes to be raised. Therefore, at this point, he would prefer to represent himself. Mr. Miller indicated that he believed that the jury instructions that the judge gave at trial were inadequate. He believes his attorney's closing arguments were also inadequate. He understood that errors found by the appellate court could be harmless, procedural, or fundamental, which may or may not result in his conviction being overturned. He indicates that his current attorney is primarily interested in having his sentence reduced from the death penalty to natural life.) [¶] Mr. Miller also understood that he had an option to forego further state appeals and to begin a federal appeals process. Mr. Miller indicates that he has been in contact with some federal attorneys who will represent him in the federal stage of the appeals' process. He is comfortable at this point with their representing him later on. He also continues to consider waiving further state appeals and going directly to the federal appeals' stage. Mr. Miller believes that he has a reasonable chance to prevail with his appeals. He also believes that he has several years of appeals before the imposition of the death penalty would actually take place.”