Samayoa v. Hickman

Opinion

1 2 3 4 5 6 7 10 11 RICHARD SAMAYOA, Case No.: 00cv2118-W (AJB)

12 Petitioner, ORDER DISCHARGING ORDER TO 13 v. SHOW CAUSE AND GRANTING PETITIONER’S MOTION TO 14 RONALD DAVIS, Warden, AUTHORIZE AZ FPD TO 15 Respondent. REPRESENT PETITIONER IN STATE COURT HABEAS 16 PROCEEDINGS RE COMPETENCY 17 18 Pending before the Court is Petitioner’s September 23, 2022, motion to authorize the 19 Office of the Federal Public Defender for the District of Arizona (“AZ FPD”) to represent 20 him in state court habeas proceedings to challenge his competency to be executed under 21 Ford v. Wainwright (1986) 477 U.S. 399. (ECF No. 129.) On October 5, 2022, the Court 22 issued an Order to Show Cause why the motion should not be denied without prejudice as 23 premature and requested a brief no longer than five pages in length from Petitioner on the 24 matter. (ECF No. 130.) On October 6, 2022, Petitioner submitted a five page brief 25 accompanied by 128 pages of exhibits. (ECF No. 131.) Upon review of the brief and 26 supporting exhibits, the Court DISCHARGES the Order to Show Cause and GRANTS 27 Petitioner’s motion to authorize the AZ FPD to represent him in state court habeas 28 proceedings on the requested competency matter. 1 Discussion 2 In the September 23, 2022, motion to authorize the AZ FRD to represent him in state 3 court habeas proceedings, Petitioner asserted the Court previously granted Petitioner’s 4 motion requesting the appointment of AZ FPD as co-counsel to assist with a Ford petition 5 and “[f]or the Court’s prior order appointing the FPD to help litigate a Ford claim to have 6 its full effect, it should be extended to authorize the FPD to litigate the Ford claim in state 7 court.” (Id. at 3-4.) Petitioner noted: “Although the Court has already formally appointed 8 the FPD as ‘co-counsel for clemency proceedings,’ it has not specifically authorized the 9 FPD to appear as co-counsel in other state collateral proceedings related to Petitioner’s 10 execution, such as his anticipated Ford incompetency petition,” and asserted because the 11 AZ FPD developed the claim, retained the expert, and could use its budget to litigate the 12 claim in state court, the AZ FPD is “best suited” to litigate the claim. (Id. at 4.) 13 Yet, as Petitioner appears to acknowledge, the Court previously granted co-counsel 14 and specifically designated the AZ FPD as co-counsel for “clemency proceedings” without 15 mention of other potential claims or issues to be litigated. (See ECF No. 124.) That said, 16 the Court acknowledges Petitioner’s original request for appointment of additional counsel 17 mentioned developing a Ford claim, among other tasks counsel expected to be explored 18 and pursued (see ECF No. 111 at 4), and recognizes Petitioner’s indication that the 19 prospective Ford claim was developed during preparation for state clemency hearings. 20 (ECF No. 129 at 2.) The Court also appreciates 18 U.S.C. § 3599(e) provides in relevant 21 part that “each attorney so appointed . . . shall also represent the defendant in such 22 competency proceedings and proceedings for executive or other clemency as may be 23 available to the defendant.” Additionally, given the Court specifically authorized the AZ 24 FPD to serve as co-counsel for clemency proceedings, the Ford claim was apparently 25 developed during the course of that preparation, and AZ FPD retained the pertinent expert 26 and developed the claim, it appears reasonable for Petitioner to request the AZ FPD to 27 represent him on state habeas in pursuing the Ford claim. 28 /// 1 On October 5, 2022, raising concerns about the ripeness of the motion, the Court 2 issued an Order to Show Cause why the motion should not be denied as premature, noting: 3 Of primary concern to the Court is Petitioner’s failure to explain how a Ford claim of incompetency to be executed, whether raised in state or federal 4 court, is currently ripe for review or could even be entertained given there is 5 no indication an execution date has been set or execution is somehow imminent. See Stewart v. Martinez-Villareal, 523 U.S. 637, 644-45 (1998) 6 (explaining that Martinez-Villareal’s “Ford claim was [previously] dismissed 7 as premature, . . . because his execution was not imminent and therefore his competency to be executed could not be determined at that time.”); see also 8 People v. Leonard, 40 Cal. 4th 1370, 1430 (2007) (“But the question whether 9 a defendant is mentally competent to be executed is not determined until the defendant’s execution date has been set. (§ 3700.5.) No date has been set for 10 defendant’s execution. Thus, his claim that he cannot be executed because he 11 is insane is rejected as premature.”), citing People v. Kelly,1 Cal. 4th 495, 545 fn.11 (1992). It appears to the Court that authorizing the AZ FPD to pursue a 12 claim which may not be ripe for review does not appear an efficient use of 13 judicial resources. Accordingly, the Court concludes it would be appropriate to provide Petitioner an opportunity to explain why this request should be 14 considered at the present time. 15 16 (ECF No. 130 at 2.) 17 On October 6, 2022, Petitioner submitted a brief explaining in part that on September 18 29, 2022, the Governor of California signed AB 2657 which “codifies the right of death 19 row inmates whose sentences have been affirmed on direct appeal and their counsel to seek 20 to vacate their death sentences based upon permanent incompetence to be executed at any 21 time prior to the setting of an execution date.” (ECF No. 131 at 2) (emphasis in original.) 22 Petitioner reiterates “he has been diagnosed with dementia and a neuropsychologist has 23 determined he cannot rationally understand the reasons for his execution” and “the same 24 neuropsychologist has determined that Petitioner’s incompetence is permanent.” (Id. at 3.) 25 In addition to referencing three cases in which California state courts have adjudicated 26 competency claims prior to the passage of AB 2657 (see id. at 4), Petitioner notes: “Now 27 that the legislature has expressly codified a prisoner’s right to bring a claim of permanent 28 incompetence to be executed, Petitioner intends to file a state habeas petition asserting his 1 ||incompetence to be executed pursuant to AB 2657.” (d. at 3.) A review of these recent 2 ||revisions to the California Penal Code reflect the following addition to be of particular 3 ||relevance: “At any time prior to the setting of an execution date, an incarcerated person 4 || whose judgment and sentence of death has been affirmed on direct appeal may file a 5 || petition alleging the incarcerated person’s permanent incompetence to be executed.” Cal. 6 || Penal Code § 3701(b). 7 Based on the arguments presented by Petitioner and in particular the recent 8 legislative action which has taken place since the filing of Petitioner’s motion, the Court 9 agrees the matter does not appear unripe for review and that it appears a reasonable use of 10 || judicial resources for the AZ FPD to represent Petitioner in state court habeas proceedings 11 |/on the incompetency claim the AZ FPD developed during the course of their clemency 12 || preparation. 13 Conclusion and Order 14 For the reasons discussed above, the Court DISCHARGES the Order to Show 15 || Cause and GRANTS Petitioner’s motion to authorize the AZ FPD to represent him in state 16 || court habeas proceedings to challenge his competency to be executed (ECF No. 129). 18 Dated: October 7, 2022 \ 19 [pe Dor 20 Hn. 1 omas J. Whelan 1 United States District Judge 22 23 24 25 26 27 28