Richard Allan Moran v. Salvador Godinez, Warden

57 F.3d 690

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 2, 1995
• Docket: 91-15609
• Status: Published

Opinions

Opinion by Judge THOMPSON; Dissent by Judge PREGERSON.

ORDER

The opinion filed November 15,1994, Moran v. Godinez, 40 F.3d 1567 (9th Cir.1994), is amended as follows:

1. At page 1572, the word “possible” in the first sentence of the first full paragraph in the righthand column is changed to “impossible”. With this change the sentence will read:

When a state court wrongfully fails to hold a competency hearing, “it often may be impossible to repair the damage retrospectively.”

2. At page 1572, the word “However” is inserted at the beginning of the second sentence in the first full paragraph in the right-hand column. With this change, the sentence will begin: “However, although retrospective competency hearings are disfavored,”.

3. At page 1572, the “But see ” signal and the citation to United States v. Aponte, 591 F.2d 1247 (9th Cir.1978) which follows this signal at the end of the third sentence in the second full paragraph in the righthand column are deleted, and the third sentence in that paragraph which begins: “He was ideally situated”, is changed to read:

His familiarity with the case made him well situated to adduce any additional evidence needed to determine Moran’s competency.

4. At page 1574, the phrase “substantive constitutional right” in the second sentence of the second full paragraph in the righthand column is changed to “substantive right”. The sentence will then read:

Only the denial or misapplication of state procedures that results in the deprivation of a substantive right will implicate a federally recognized liberty interest.

5. At page 1574, the phrase “substantive constitutional right” in the second sentence of the last paragraph in the righthand column is changed to read “substantive right”. With this change, the sentence will read:

This violation of state law, however, did not result in the deprivation of a substantive right, because the state provided Moran with constitutionally adequate procedures to evaluate his competency, see Drope [v. Missouri], 420 U.S. [162] at 172, 95 S.Ct. [896] at 904 [43 L.Ed.2d 103 (1975)], even with the burden of proof on Moran.

With the foregoing amendments, Judges Farris and Thompson voted to deny the petition for rehearing and to reject the suggestion for rehearing en bane. Judge Pregerson voted to grant the petition for rehearing and to accept the suggestion for rehearing en banc.

The full court was advised of the suggestion for rehearing en banc. An active judge requested a vote on whether to rehear the cause en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc rehearing. Fed.RApp.P. 35.

The petition for rehearing is denied and the suggestion for rehearing en banc is rejected. Judge Pregerson dissents from the refusal to hear this case en banc. His dissent is filed with this order.

The appellant’s motion to file a letter reply to the State’s response to the petition for rehearing is granted.