Jerry Stanley v. Robert Ayers, Jr.

Filing

FILED OPINION (WILLIAM A. FLETCHER, RICHARD C. TALLMAN and JAY S. BYBEE) AFFIRMED. Judge: WAF Authoring, FILED AND ENTERED JUDGMENT. [7629797]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GERALD F. STANLEY,
Petitioner-Appellant,
v.
VINCENT CULLEN,* Warden of San
Quentin State Prison,
Respondent-Appellee.





No. 08-99026
D.C. No.
2:95-CV-01500FCD-GGH
OPINION

Appeal from the United States District Court
for the Eastern District of California
Frank C. Damrell, Senior District Judge, Presiding
Argued and Submitted
July 16, 2010—San Francisco, California
Filed January 31, 2011
Before: William A. Fletcher, Richard C. Tallman and
Jay S. Bybee, Circuit Judges.
Opinion by Judge William A. Fletcher

*Vincent Cullen is substituted for his predecessor, Robert Ayers, as
Warden of San Quentin State Prison. Fed R. App. P. 43(c)(2).

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COUNSEL
Mark E. Olive, LAW OFFICES OF MARK E. OLIVE, Tallahassee, Florida, Tivon Schardl and Joseph Schlesinger, FEDERAL PUBLIC DEFENDER’S OFFICE, Sacramento,
California, for the petitioner-appellant.
Ward Allen Campbell and Jesse Noel Witt, OFFICE OF THE
CALIFORNIA ATTORNEY GENERAL, Sacramento, California, for the respondent-appellee.

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OPINION
W. FLETCHER, Circuit Judge:
Petitioner Gerald F. Stanley was convicted in California
state court of arson, burglary, and first degree murder of his
wife. The court and jury found true several special circumstances making Stanley eligible for the death penalty. Partway
through the penalty phase trial, Stanley’s counsel moved for
proceedings under California Penal Code § 1368 to determine
whether Stanley was competent to stand trial. The trial court
held a competency trial before a separate jury. The jury
returned a verdict that Stanley was competent. The court then
resumed the penalty phase before the original jury. That jury
returned a verdict of death. The California Supreme Court
affirmed the guilty verdict and death sentence on direct
appeal. The California courts have denied habeas relief.
Stanley’s amended habeas petition in federal district court
asserted claims arising out of both the guilt and penalty
phases of Stanley’s trial, including claims related to Stanley’s
competency to stand trial. The district court held that a biased
juror rendered invalid the verdict of the competency jury. The
district court remanded to the state court to allow that court
to determine whether it was feasible to conduct a retrial to
decide whether Stanley was competent during his penalty
phase trial. The district court then entered a partial judgment
under Federal Rule of Civil Procedure 54(b) denying all of
Stanley’s guilt phase claims and holding in abeyance his
remaining penalty phase claims.
Stanley appeals on several grounds. First, he contends that
the state trial court’s failure to institute competency proceedings sua sponte during the guilt phase violated his right to
procedural due process. Second, he contends that his trial
counsel were ineffective for failing to investigate or raise the
issue of his competency to stand trial during the guilt phase.
Third, he contends that the district court improperly denied an

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evidentiary hearing on a claim that counsel were ineffective
in failing to raise a diminished capacity defense during the
guilt phase. Fourth, he contends that the district court acted
improperly in remanding to the state court for a determination
whether a retrial to decide Stanley’s competency during the
penalty phase is feasible. Fifth, he contends that the district
court acted improperly in holding in abeyance his remaining
penalty phase claims pending the state court’s decision concerning the feasibility of a retrial, and possibly pending the
retrial itself, on remand. Finally, he asks us to consider an
uncertified claim that he was denied a full and fair hearing by
the state courts on his motions to suppress evidence.
For the reasons that follow, we affirm the district court on
all five certified claims. We decline to certify the uncertified
claim.
I.
A.

Background

State Court Proceedings

In 1980, Stanley was charged in Lake County Superior
Court with arson, burglary, and first degree murder of his
fourth wife, Cindy Rogers Stanley. A description of the murder is contained in the opinion of the California Supreme
Court on direct appeal. People v. Stanley, 897 P.2d 481,
487-92 (Cal. 1995). At the time of the murder, Stanley was on
parole after serving time in California prison for killing his
second wife, Kathleen Rhiley Stanley. The Lake County
Superior Court appointed William Neill, a former Trinity
County prosecutor, to represent Stanley. Neill, together with
co-counsel Richard Petersen, represented Stanley during both
the guilt and penalty phases of his trial.
Stanley’s case was transferred to Butte County in 1982
where it was tried by retired Butte County Superior Court
Judge Jean Morony. After a seven-month trial, the jury found
Stanley guilty of arson, burglary, first degree murder, and the

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special circumstances that Stanley intentionally killed the victim while lying in wait and that Stanley killed the victim for
the purpose of preventing her from testifying in a criminal
proceeding. In a separate proceeding, the court and jury found
true additional special circumstances.
Judge Morony held a penalty phase trial beginning in
August 1983. Defense counsel intended to present as mitigating evidence the testimony of psychiatrist Dr. David Axelrad
and videotaped interviews of Stanley he conducted. Stanley
changed his mind repeatedly over the course of several days
and ultimately refused to waive his psychiatrist-patient and
Fifth Amendment privileges in order to permit his attorneys
to call Dr. Axelrad or present this evidence to the jury. Arguing that Stanley was interfering irrationally with their “entire
mitigation strategy,” defense counsel moved for competency
proceedings under California Penal Code § 1368. Section
1368 provides that either counsel or the court may move for
a hearing to determine whether a criminal defendant is competent to stand trial. Judge Morony denied the § 1368 motion
twice, finding both times that there was insufficient doubt as
to Stanley’s competency to warrant a § 1368 hearing. When
counsel made the motion a third time, Judge Morony finally
granted it. He suspended the penalty phase trial and kept the
jury on call pending a determination of Stanley’s competency.
A month-long competency trial, with a separate jury, was
held in Butte County before Superior Court Judge Reginald
M. Watt. In November 1983, that jury returned a verdict that
Stanley was competent within the meaning of California
Penal Code §§ 1367 and 1368.
Judge Morony then resumed the penalty phase trial before
the original jury. By this time, Stanley had changed his mind
again. He permitted Dr. Axelrad to testify and allowed his
counsel to play the tapes of the Axelrad interviews. On
December 28, 1983, the original jury returned a verdict of
death.

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Stanley appealed his conviction and sentence to the California Supreme Court, which denied relief on direct appeal on
July 6, 1995. People v. Stanley, 897 P.2d 481 (Cal. 1995). On
May 20, 1996, the United States Supreme Court denied Stanley’s petition for writ of certiorari. Stanley v. California, 517
U.S. 1208 (1996).
In August 1995, Stanley filed a pro se petition for writ of
habeas corpus in the Eastern District of California complaining about the conduct of his appellate counsel and of San
Quentin officials. See Stanley v. Ayers, No. 2:95-cv-1500FCD-GGH (E.D. Cal. filed Aug. 17, 1995). In January 1996,
the federal district court granted Stanley’s request for the
appointment of counsel and stayed Stanley’s execution. The
district court appointed federal public defenders to represent
Stanley. It stayed and held in abeyance Stanley’s federal
habeas petition while he exhausted his federal claims in state
court.
On July 17, 2002, the California Supreme Court denied
Stanley’s state habeas petition. It held that some of his claims
were procedurally barred as untimely. It denied his remaining
claims “on the merits” without a reasoned decision.
B.

Federal Court Proceedings

Stanley filed an amended federal habeas petition in district
court on September 30, 2002. The amended petition asserted
twenty-eight claims, including, inter alia, ineffective assistance of counsel (Claims 1, 23, 26); infringement of Stanley’s
right not to be tried while incompetent (Claims 1, 22, 24); a
constitutionally inadequate competency hearing (Claims 1-3);
denial of a full and fair hearing on Stanley’s Fourth Amendment motions to suppress (Claim 4); illegal searches and seizures by the State (Claim 5); juror misconduct (Claim 21);
and evidentiary and jury instruction errors during the guilt
(including special circumstances) and penalty phases (Claims
6-20, 24, 25, 27, 28).

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On September 2, 2005, Magistrate Judge Hollows ordered
an evidentiary hearing on the following issues: ineffective
assistance of counsel (Claims 1(b), 1(e), 22, 23, 24), juror
misconduct (Claim 21), and prosecutorial suppression of
material information (Claim 27). In April 2006, Judge Hollows held an eleven-day evidentiary hearing.
On April 10, 2007, Judge Hollows issued Findings and
Recommendations (“F&R”) recommending granting relief on
Claim 21 of Stanley’s amended petition. Claim 21 alleged that
a juror in the competency trial had engaged in misconduct by
failing to disclose facts during voir dire and by lying about
her ability to be impartial. Judge Hollows found that the juror
had engaged in misconduct that warranted invalidation of the
competency verdict. Judge Hollows recommended that the
district court remand to the state court to determine whether
a retrial on the question of Stanley’s penalty phase competency would be feasible. Judge Hollows also recommended
that once the district court adjudicated Stanley’s guilt phase
claims, the remaining penalty phase claims be held in abeyance pending the state court’s determination concerning the
feasibility of a retrial.
District Judge Damrell adopted the F&R on the competency juror misconduct claim. Judge Damrell rejected Stanley’s contention that the federal court, rather than the state
court, should determine whether a retrial on competency is
feasible. He concluded that the F&R’s suggested remand procedure “makes practical sense and ensures the most efficient
use of the court’s resources.”
On August 29, 2007, Judge Hollows issued an F&R recommending the denial of relief on all of Stanley’s pretrial and
guilt phase claims and the deferral of adjudication of the
remaining penalty phase claims. The F&R recommended
denying relief as to the following guilt phase issues relevant
to this appeal: Claim 22, that the trial court violated Stanley’s
right to due process by not sua sponte conducting a compe-

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tency hearing during the guilt phase; Claim 1(3)(b), that
defense counsel provided ineffective assistance by not moving for a competency hearing during the guilt phase; Claim
24, that defense counsel provided ineffective assistance by not
investigating mental health defenses including diminished
capacity; and Claim 4, that Stanley did not receive a full and
fair opportunity to adjudicate his Fourth Amendment search
and seizure claims. The district court adopted the F&R on
March 17, 2008, and certified a partial judgment under Rule
54(b). Stanley filed a timely notice of appeal. The district
court granted a Certificate of Appealability (“COA”) as to the
five issues listed at the beginning of this opinion. The State
did not cross-appeal the district court’s grant of relief on the
issue of juror bias in the competency trial.
II.

Standard of Review

We have jurisdiction pursuant to 28 U.S.C. § 2253. We
review de novo a district court’s denial of a habeas petition.
Lopez v. Schriro, 491 F.3d 1029, 1036 (9th Cir. 2007). We
review a district court’s findings of fact for clear error. Bonin
v. Calderon, 59 F.3d 815, 823 (9th Cir. 1995).
The Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”) applies. AEDPA permits us to accord relief only
if the state court decision:
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the
Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d). “Clearly established federal law” consists of holdings of the Supreme Court at the time of the state

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court decision, Williams v. Taylor, 529 U.S. 362, 412 (2000),
but “circuit court precedent may be persuasive in determining
what law is clearly established and whether a state court
applied that law unreasonably.” Maxwell v. Roe, 606 F.3d
561, 567 (9th Cir. 2010) (internal quotation marks and citation omitted). A state court decision “based on a factual determination will not be overturned on factual grounds unless
objectively unreasonable in light of the evidence presented in
the state-court proceeding.” Davis v. Woodford, 384 F.3d 628,
638 (9th Cir. 2004) (as amended) (internal quotation marks
and citation omitted).
We review “the state court’s last reasoned decision.” Maxwell, 606 F.3d at 568. The California Supreme Court denied
Stanley’s habeas petition, stating only that some claims “are
procedurally barred as untimely,” and all other claims “are
denied on the merits.” The only other decisions from California courts on the issues certified for this appeal are rulings
from the trial judges at the time of the trial. To the extent we
can ascertain the trial judges’ reasoning from the trial transcript, we review the reasoning of the trial court. Where the
state court “reaches a decision on the merits but provides no
reasoning to support its conclusion,” we “independently
review the record.” Pirtle v. Morgan, 313 F.3d 1160, 1167
(9th Cir. 2002). In such instances “the habeas petitioner’s burden still must be met by showing there was no reasonable
basis for the state court to deny relief.” Harrington v. Richter,
562 U.S. ___, ___ (2011) (slip op., at 8). “When it is clear . . .
that the state court has not decided an issue, we review that
question de novo.” Reynoso v. Giurbino, 462 F.3d 1099, 1109
(9th Cir. 2006) (citation omitted).
III.
A.

Discussion

Due Process Claim

[1] Stanley contends that the state trial court violated his
due process rights by failing to initiate a competency hearing

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sua sponte during the guilt phase of his trial. The federal district court concluded that it was not unreasonable for the state
trial court to conclude that there was not enough evidence
before it to raise a doubt about Stanley’s competence such
that it should have acted sua sponte. We agree.
A defendant has a due process right not to be tried while
incompetent. See Drope v. Missouri, 420 U.S. 162, 172
(1975); Pate v. Robinson, 383 U.S. 375, 378 (1966). Competence to stand trial requires that a defendant have (1) “a rational as well as factual understanding of the proceedings against
him,” and (2) “sufficient present ability to consult with his
lawyer with a reasonable degree of rational understanding.”
Dusky v. United States, 362 U.S. 402, 402 (1960) (per
curiam). “Where the evidence before the trial court raises a
‘bona fide doubt’ as to a defendant’s competence to stand
trial, the judge on his own motion must conduct a competency
hearing.” Maxwell, 606 F.3d at 568. We are to consider
“whether a reasonable judge, situated as was the trial court
judge whose failure to conduct an evidentiary hearing is being
reviewed, should have experienced doubt with respect to
competency to stand trial.” de Kaplany v. Enomoto, 540 F.2d
975, 983 (9th Cir. 1976) (en banc).
[2] In evaluating a procedural incompetency claim, “evidence of a defendant’s irrational behavior, his demeanor at
trial, and any prior medical opinion on competence to stand
trial are all relevant in determining whether further inquiry is
required.” Drope, 420 U.S. at 180; see also Torres v. Prunty,
223 F.3d 1103, 1108-09 (9th Cir. 2000). Stanley insisted that
his attorneys pursue an alibi defense despite the overwhelming evidence against him. He repeatedly asked the court to
remove his attorneys. Each time, after delaying the proceedings for an in camera hearing, he retracted his requests. Further, some of Stanley’s interactions with defense counsel
Neill and Peterson outside the courtroom suggested mental
instability. Throughout the guilt phase, defense counsel Neill
and Petersen brought their difficulties with Stanley to the

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court’s attention. They explained that he was difficult to control, suffered from anxiety, and had at times exhibited what
they characterized as a “schizophrenic personality.” However,
each time defense counsel brought Stanley’s behavior to the
court’s attention, they assured the court that by taking measures such as getting Stanley the proper medication or communicating with him directly, they could ensure that he was
competent.
[3] On several occasions, counsel specifically informed the
trial court that they had no doubt about Stanley’s competency
to assist them. Trial counsel’s assurances to the court are relevant because “a defendant’s counsel is in the best position to
evaluate a client’s comprehension of the proceedings.” Hernandez v. Ylst, 930 F.2d 714, 718 (9th Cir. 1991); see also
Odle v. Woodford, 238 F.3d 1084, 1089 (9th Cir. 2001) (“We
do not dismiss lightly the fact that no one questioned Odle’s
competence over the course of two years of pre-trial proceedings and twenty-eight days of trial.”); United States v. Clark,
617 F.2d 180, 186 n.11 (9th Cir. 1980) (“The fact that [the
defendant’s] attorney apparently considered him competent is
significant evidence that he was competent.”). The Supreme
Court recognized in Drope that “judges must depend to some
extent on counsel to bring issues into focus.” 420 U.S. at
176-77. Neill and Petersen were unambiguous in asserting
their belief that Stanley was competent. For example, on one
occasion when Stanley’s anxiety temporarily prevented the
trial from going forward, Neill told the court, “I don’t want
to declare 1368, I don’t want to declare a present doubt as to
the defendant’s ability to cooperate . . . because I think his
current state can be immediately rectified by the proper medication.”
[4] There was also evidence before the trial court of Stanley’s competency that could have shaped the trial judge’s
“total experience and his evaluation of the testimony and
events of the trial.” United States v. Clark, 617 F.2d 180, 18586 (9th Cir. 1980). Throughout the guilt phase Stanley partici-

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pated in the necessary colloquies with the court. Stanley also
testified coherently and at length during an evidentiary suppression hearing and, later, in his own defense during the guilt
phase. That a defendant is “alert, unafraid to address the
court, and able to use somewhat technical legal terms appropriately” is a factor suggesting that a competency hearing is
not required. United States v. Lewis, 991 F.2d 524, 528 (9th
Cir. 1993).
[5] Both of the state court judges who dealt with Stanley
during the guilt phase proceedings indicated that his demeanor in the courtroom did not raise a doubt as to his competency. Judge Patton, who conducted the preliminary hearing
and pretrial proceedings, stated that he had not “seen or
observed anything about the defendant in the course of the
many days of proceedings in which he has been before the
court which would indicate to me that there is any doubt as
to his mental ability or present capacity to stand trial.” When
Stanley withdrew his insanity plea, Judge Morony stated his
finding that Stanley “is mentally competent, is intelligent and
understands the proceedings; he is presently sane and presently competent.” These factual findings are entitled to deference under AEDPA unless they are unreasonable. See Mendez
v. Knowles, 556 F.3d 757, 771 (9th Cir. 2009).
[6] Finally, the trial court had very little clinical or psychiatric evidence before it regarding Stanley’s mental health history. Cf. Drope, 420 U.S. at 164 n.1 (noting that the trial court
had a psychiatric report stating that defendant “had difficulty
in participating well” and “was markedly circumstantial and
irrelevant in his speech”); Maxwell, 606 F.3d at 570 (finding
it significant that “the trial judge was aware of Maxwell’s
mental health history”). The sole expert opinion on Stanley’s
mental state was given by Dr. Axelrad during a pretrial
Miranda hearing. Dr. Axelrad testified at that hearing only
that Stanley suffered from alcohol withdrawal, sedative intoxication, alcohol dependence, and amphetamine abuse at the
time he gave statements to the police. Later, during the pen-

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alty phase, Dr. Axelrad testified to additional psychiatric diagnoses, but there is no evidence in the record that suggests
these diagnoses were known or discussed during the guilt
phase.
[7] On this record, the trial judges were not unreasonable
in concluding that there was insufficient evidence of incompetency to warrant a sua sponte order for a competency hearing,
and the California Supreme Court was not unreasonable in
denying Stanley’s due process claim.
B.

Ineffective Assistance of Counsel Claim

[8] Stanley also challenges trial counsel’s failure to move
for competency proceedings during the guilt phase. The district court held that the state court was not unreasonable in
holding that Neill and Petersen did not provide ineffective
assistance of counsel in failing to move for such proceedings.
We agree.
Under Strickland v. Washington, 466 U.S. 668 (1984), an
ineffective assistance of counsel claim has two components.
“First, the defendant must show that counsel’s performance
was deficient.” Id. at 687. This requires showing that “counsel’s representation fell below an objective standard of reasonableness.” Id. at 688. There is a “strong presumption that
counsel’s conduct falls within the wide range of reasonable
professional assistance.” Id. at 689. “Second, the defendant
must show that the deficient performance prejudiced the
defense. This requires showing that counsel’s errors were so
serious as to deprive the defendant of a fair trial, a trial whose
result is reliable.” Id. at 687.
[9] Counsel’s failure to move for a competency hearing
violates the defendant’s right to effective assistance of counsel when “there are sufficient indicia of incompetence to give
objectively reasonable counsel reason to doubt the defendant’s competency, and there is a reasonable probability that

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the defendant would have been found incompetent to stand
trial had the issue been raised and fully considered.” Jermyn
v. Horn, 266 F.3d 257, 283 (3d Cir. 2001).
The question is not whether a federal court believes
the state court’s determination under the Strickland
standard was incorrect but whether that determination was unreasonable — a substantially higher
threshold. And, because the Strickland standard is a
general standard, a state court has even more latitude
to reasonably determine that a defendant has not satisfied that standard. See Yarborough v. Alvarado,
541 U.S. 652, 664 (2004) (‘[E]valuating whether a
rule application was unreasonable requires considering the rule’s specificity. The more general the rule,
the more leeway courts have in reaching outcomes in
case-by-case determinations.’).
Knowles v. Mirzayance, 129 S. Ct. 1411, 1420 (2009) (one
citation and one set of internal quotation marks omitted).
[10] The record shows that defense counsel Neill and
Petersen were intimately familiar with Stanley’s mental difficulties and that they paid careful attention to Stanley’s ability
to participate in his defense. Defense counsel were well aware
that Stanley relied on medication to manage his anxiety. Dr.
Axelrad told counsel that with proper medication and careful
monitoring, Stanley would be able to assist in his defense.
When problems with Stanley’s medication arose, counsel
interrupted the proceedings to resolve them.
[11] Neill and Petersen repeatedly consulted with Dr.
Axelrad, who had had a “continuing diagnostic relationship”
with Stanley during the pretrial phase. Dr. Axelrad never
expressed an opinion during this time that Stanley was not
competent. When the state trial court held a competency trial
during the penalty phase, Dr. Axelrad testified that he had not
believed Stanley to be incompetent during the guilt phase, and

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that he believed Stanley became incompetent only in the
period leading up to, and during, the penalty phase. Even
Stanley’s post-conviction psychiatric expert, Dr. George
Woods, Jr., testified before the magistrate judge that he could
not conclude “to a medical certainty” that Stanley was incompetent during the guilt phase.
[12] We conclude that there was insufficient evidence of
Stanley’s incompetence during the guilt phase to justify a
conclusion that defense counsel were ineffective in failing to
move for competency proceedings. The California Supreme
Court was not objectively unreasonable in denying this Sixth
Amendment claim.
C.

Diminished Capacity Claim

Claim 24 of Stanley’s amended petition is that “because of
Petitioner’s mental condition, . . . he is not guilty of the
offenses for which he was convicted.” The magistrate judge
construed this claim as one of ineffective assistance of counsel for failing to present a diminished capacity defense at trial.
Stanley contends that the magistrate judge erroneously denied
him an evidentiary hearing on this claim. The magistrate
judge indicated in his F&R that he had ordered an evidentiary
hearing on this claim, but that Stanley failed to produce any
evidence at the evidentiary hearing to demonstrate that he suffered from diminished capacity at the time of the offense. The
district court disagreed, concluding that the magistrate judge
actually denied Stanley an evidentiary hearing on Claim 24.
The district court nonetheless affirmed the denial of this claim
because Stanley failed to proffer enough evidence to justify
holding an evidentiary hearing on this issue. We review for
abuse of discretion a district court’s decision whether to hold
an evidentiary hearing. Davis, 384 F.3d at 638.
[13] The portion of Claim 24 at issue in this appeal is the
claim that counsel were ineffective for failing to raise a
diminished capacity defense. The record is somewhat ambigu-

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ous on whether the magistrate judge ordered an evidentiary
hearing on this portion of the claim. However, even if we
agreed with Stanley that the magistrate judge denied an evidentiary hearing, the magistrate judge would have acted properly in so doing, for Stanley failed to proffer sufficient
evidence to justify such a hearing.
D.

Rule 54(b) Judgment and Remand to the State Court

Stanley challenges the procedure recommended by the
magistrate judge and adopted by the district court for providing relief on the granted claim and for adjudicating the
remainder of Stanley’s case. First, Stanley challenges the
decision to remand to the state court for a determination
whether it is feasible to conduct a retrial on the question of
Stanley’s competency during the penalty phase. Second, Stanley challenges the district court’s decision to stay the remaining competency and penalty phase claims pending possible
state court proceedings on remand.
1.

Remand to the State Court

The district court granted Claim 21 of Stanley’s habeas
petition, concluding that a biased juror rendered the penalty
phase competency verdict invalid. The district court remanded
to the state trial court for that court to determine whether a
retrial on Stanley’s competency during the penalty phase was
feasible, and, if so, for that court to conduct such a retrial.1
Stanley contends that the remedy devised by the district court
was improper because (1) the feasibility question should be
decided by a federal court and (2) a retrial should not be held
on the record of the initial competence trial because that
record is “wholly unreliable” and tainted by constitutional
1

The parties’ supplemental briefs filed June 25, 2010, inform us that no
hearing has yet been held in state court to consider whether such a retrial
is feasible. The district court’s conditional writ asking for a such a determination has not been stayed during the appeal to us.

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errors. We do not agree with Stanley’s first claim that the feasibility question should have been determined by the federal
courts. Accordingly, we do not consider Stanley’s second
claim. Whether a retrial is feasible, and on what record, is a
question that may be properly addressed by the state court.
We recognize that rather than remanding to the state court
we have sometimes determined for ourselves whether an
after-the-fact competency hearing in state court would be feasible or appropriate. See, e.g., Odle, 238 F.3d at 1089-90
(concluding that the state court could conduct an after-the-fact
competency hearing). However, we have sometimes left the
decision to the state court whether to hold such a hearing or
trial. For example, in Miles v. Stainer, 108 F.3d 1109, 1114
(9th Cir. 1997), we made no finding on feasibility and
remanded to the district court “with instructions to grant the
writ unless the state trial court conducts a hearing within 60
days to determine whether Miles was competent at the time
he pled guilty.”
[14] We see no reason why in this case the state court is
not as well qualified as the district court to determine whether
it would be feasible for the state court to conduct a retrial to
decide Stanley’s competency during the penalty phase of his
trial. It was not an abuse of discretion for the district court to
remand to the state court for that purpose.
2.

Rule 54(b) Certification

The district court certified partial judgment under Federal
Rule of Civil Procedure 54(b), denying Stanley’s guilt phase
claims, granting Stanley’s penalty phase competency juror
bias claim, and staying all remaining penalty phase claims
pending state court proceedings on the remanded competency
claim. Stanley contends on appeal, as he did before the district
court, that (1) the district court’s adjudication of the guilt
phase claims independent of the remaining claims led to the
erroneous rejection of the guilt phase claims; (2) staying the

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remaining claims will lead to piecemeal litigation and
appeals; and (3) delaying adjudication of the penalty phase
claims prejudices Stanley’s efforts to obtain relief on those
claims.
[15] To determine whether Rule 54(b) certification is
appropriate, the district court “must first determine that it is
dealing with a ‘final judgment.’ ” Curtiss-Wright Corp. v.
General Elec. Co., 446 U.S. 1, 7 (1980). It then “must go on
to determine whether there is any just reason for delay.” Id.
at 8. “It is left to the sound judicial discretion of the district
court to determine the ‘appropriate time’ when each final
decision in a multiple claims action is ready for appeal.” Id.
The district court considered the applicable standards and
concluded that Rule 54(b) certification was appropriate
because it “makes practical sense and ensures the most efficient use of the court’s resources.”
We must:
scrutinize the district court’s evaluation of such factors as the interrelationship of the claims so as to
prevent piecemeal appeals in cases which should be
reviewed only as single units. But once such juridical concerns have been met, the discretionary judgment of the district court should be given substantial
deference, for that court is the one most likely to be
familiar with the case and with any justifiable reasons for delay.
Id. at 10 (internal citation and quotation marks omitted). A
reviewing court may reverse the district court’s assessment of
the equities “only if it can say that the judge’s conclusion was
clearly unreasonable.” Id.
[16] In Blazak v. Ricketts, 971 F.2d 1408, 1413 (9th Cir.
1992), we instructed that the important Rule 54(b) question in
habeas cases is whether a judgment resolves “all of the

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alleged constitutional infirmities arising from the relevant set
of operative facts.” The district court’s granting of relief on
Stanley’s competency juror bias claim arises from its own set
of operative facts. The relevant facts in that claim concern the
misconduct of a single juror. It is true that if the district court
were later to grant relief on another claim, any competency
retrial in the state court could be rendered irrelevant. However, this does not make the claims so interrelated that they
must be adjudicated together.
[17] Further, the district court’s denial of Stanley’s guilt
phase claims relied on a largely independent set of operative
facts. These claims were necessarily time-limited to the
months comprising the guilt phase. The evidence indicating
that Stanley might have been incompetent, revealed only during the penalty phase, had limited relevance to the district
court’s evaluation of his competence at the guilt phase. We
conclude that the alleged constitutional infirmities during the
guilt phase were appropriately considered and rejected first,
and that it was a sound exercise of discretion by the district
court to certify partial judgment on those claims.
E.

Uncertified Claim

[18] We decline to certify Stanley’s uncertified claim that
he was denied a “full and fair” opportunity to litigate his
Fourth Amendment search and seizure claims during the pretrial phase of his trial. See Stone v. Powell, 428 U.S. 465
(1976). Stanley has not made a substantial showing of the
denial of a constitutional right in that claim. 28 U.S.C.
§ 2253(c)(2).
Conclusion
For the foregoing reasons, we AFFIRM the district court’s
Rule 54(b) judgment in all respects.