Carpenter v. Brown, et al

Filing 192

ORDER DENYING 184 MOTION FOR STAY OF COMPETENCY EVALUATION PENDING APPEAL. Signed by Judge Maxine M. Chesney on September 12, 2008. (mmcsec, COURT STAFF) (Filed on 9/12/2008)

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

United States District Court

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For the Northern District of California

DAVID J. CARPENTER, Petitioner, v. ROBERT L. AYERS, Jr., Acting Warden of California State Prison at San Quentin, Respondent.

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NOS. C 98-2444 MMC C 00-3706 MMC ORDER DENYING MOTION FOR STAY OF COMPETENCY EVALUATION PENDING APPEAL DEATH PENALTY CASES

INTRODUCTION Petitioner has filed a notice of appeal to the Ninth Circuit from the Protective Order filed by

20 the Court on August 21, 2008. In conjunction with his appeal, he has filed a motion to stay his 21 competency evaluation, currently scheduled for September 16, 17 and 18, 2008. Respondent 22 opposes petitioner's motion.1 23 24 25
For the following reasons, petitioner's motion is hereby DENIED. BACKGROUND On March 11, 2008, the Court ordered that petitioner's competency be determined in a

26 timely manner, pursuant to Rohan ex rel. Gates v. Woodford, 334 F.3d 803, 817, cert. denied, 540 27 U.S. 1069 (2003). Petitioner subsequently filed a motion to terminate the competency inquiry, 28
Petitioner and respondent have stipulated to a stay of the remainder of the issues pending appeal. It is only the scheduled competency evaluation that is at issue herein.
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1 which motion was denied on June 19, 2008. The Court based its determination that an examination 2 was required on the following factors: petitioner's claims of current incompetency; the fact that both 3 of his petitions contain the types of claims the Ninth Circuit has indicated cannot be litigated if a 4 habeas petitioner is incompetent, see Rohan, 334 F.3d at 818; petitioner's long-standing mental 5 health issues and history of psychiatric illness; and the report submitted by petitioner's expert on 6 petitioner's mental status.2 7
Petitioner and respondent subsequently stipulated to a single expert, Dr. Robert Roesch, to

8 examine petitioner. The parties also agreed that the examination would occur within 90 days of the 9 Court's approval of the stipulation. Thereafter, petitioner submitted a proposed protective order, to 10 which respondent filed certain objections. On August 21, 2008, the Court issued a Protective Order;

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11 the Protective Order contains some, but not all, of the language suggested by petitioner. The
For the Northern District of California

12 Protective Order adopted, inter alia, petitioner's suggested language that the evaluation would be 13 limited to petitioner's current competency and that any information gathered could not be used for 14 any purposes of retrial. Contrary to petitioner's suggested language, however, the Order did provide 15 that such information could be used to rebut or support other claims contained within the federal 16 habeas petition, but not for any other purposes. See, e.g., Bittaker v. Woodford, 331 F.3d 715, 72617 28(9th Cir. 2003) (en banc). It is this portion of the Protective Order that petitioner intends to 18 appeal. 19 20 I. 21
ANALYSIS Appealability of the Protective Order At the outset, the parties dispute whether the Protective Order is appealable. Petitioner

22 argues the Protective Order is appealable pursuant to 28 U.S.C. § 1291 and Cohen v. Beneficial 23 24 25 26 27 28
Dr. David V. Foster, M.D., a psychiatrist, was asked by petitioner's counsel to determine, inter alia, petitioner's mental status. In Dr. Foster's opinion: "[Petitioner's] delusional thinking, coupled with his manic behavior and memory impairments and other organic mental deficits, strongly contributed to his inability to cooperate with counsel during trial, and makes it difficult for [petitioner] to work with his current counsel now." See Foster Decl. ¶ 20. 2
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1 Indus. Loan Corp., 337 U.S. 541, 546 (1949).3 Under such authority, to be appealable as a matter of 2 right, an order "must conclusively determine the disputed question, resolve an important issue 3 completely separate from the merits of the action, and be effectively unreviewable on appeal." 4 Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978). 5
The Ninth Circuit has suggested that protective orders are interlocutory and not appealable

6 under 28 U.S.C. § 1291. See, e.g., KL Group v. Case, Kay & Lynch, 829 F.2d 909, 918 n. 5 (9th Cir. 7 1987) (noting "[t]he general rule is that discovery orders are interlocutory and nonappealable under 8 28 U.S.C. § 1291"; holding that "to consider [the] protective order [at issue therein] a final order 9 would be an unwarranted expansion of the collateral order doctrine") (citations omitted). Here, 10 although petitioner argues he is appealing the denial of the Protective Order, because the Protective

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11 Order did not include all of his suggested language, he cites to no authority supporting his right to
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12 do so.4 13
Even assuming the Protective Order is appealable and not interlocutory, petitioner has not

14 made the requisite showing under 28 U.S.C. § 1291 and Cohen. Although the Protective Order 15 appears to satisfy the first two requirements of the applicable test, in that it conclusively determines 16 a disputed question and resolves an important issue separate from the merits of the action, see, e.g., 17 Coopers & Lybrand, 437 U.S. at 468, it does not meet the third requirement. 18
Specifically, petitioner cannot demonstrate that any alleged error of the Court cannot be

19 remedied on appeal from the final judgment. To the extent petitioner is concerned that, subsequent 20 to the competency examination, respondent will use some of the information obtained thereby to 21 22 23 24 25 26 27 28
Petitioner has already filed a Notice of Appeal and is not seeking leave of this Court to file an appeal. He has also stated that, should the Ninth Circuit find he is not entitled to an appeal as of right, he intends to seek a writ of mandamus. Consequently, this Court is not required to address the question of whether the instant protective order is appealable. Because the parties have briefed the issue, however, the Court will consider it herein. Petitioner also suggests that this Court had earlier "indicated a willingness to issue" petitioner's proposed protective order in its entirety. Petitioner is mistaken. In its Order of June 19, 2008, the Court confirmed that petitioner was entitled to a protective order, but declined to enter a specific protective order at that time. The Court did not state it would adopt any protective order proposed by petitioner in its entirety; rather the Court specifically stated that "petitioner's counsel will be directed to draft, serve and submit a proposed protective order, after which respondent will be afforded an opportunity to submit objections." See June 19, 2008 Order at 9. 3
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1 successfully rebut one or more of petitioner's claims, such concerns do not warrant interlocutory 2 review of the Protective Order. In the event that petitioner's concerns are borne out, and if a 3 reviewing court finds the Protective Order was insufficiently broad in scope, any resulting error can 4 be corrected on appeal. As with other discovery violations, petitioner can seek reversal on appeal 5 and a remand to this Court to reconsider the affected claim or claims without reference to the 6 challenged information. Petitioner points to no potential harm that cannot be remedied by such 7 appeal. Accordingly, petitioner has not demonstrated he is entitled to appeal the subject order. 8 II. 9
Appropriateness of a Stay Even assuming the Court's Protective Order is properly appealable, petitioner has not

10 demonstrated he is entitled to a stay of the scheduled competency evaluation pending such appeal.

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For the Northern District of California

The Supreme Court has established four factors for a district court to consider when

12 determining whether or not a stay pending appeal is warranted: "(1) whether the stay applicant has 13 made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be 14 irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other 15 parties interested in the proceeding; and (4) where the public interest lies." Hilton v. Braunskill, 481 16 U.S. 770, 776 (1987). 17
First, petitioner has not made a strong showing that he is likely to succeed on the merits.

18 Petitioner cites to no authority holding a protective order such as that entered by the Court is 19 impermissible. Although petitioner cites to two cases dealing with the fruits of a competency 20 evaluation, neither deals with the situation presented here. 21
In United States v. Nguyen, 962 F. Supp. 1221 (N.D. Cal. 1997), the district court considered

22 the question of whether statements made by a defendant during a competency inquiry could be used 23 against him in his pending criminal case. Relying on the defendant's Fifth Amendment protections, 24 the district court held that the prosecution could not use the competency report in the pending 25 criminal trial or sentencing unless it was first used by the defense. Id. at 1225. In Nguyen, however, 26 the Court was considering use of a competency report in a pending criminal trial, not a civil habeas 27 matter. Moreover, this Court's Protective Order confirmed that any information from the 28
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1 competency evaluation cannot be used in any future retrial. In short, the Court's Protective Order is 2 not inconsistent with the holding in Nguyen. 3
Petitioner also cites to Estelle v. Smith, 451 U.S. 454, 465, 468 (1981). In Estelle, a capital

4 case, statements made by the defendant during a court-ordered competency evaluation conducted 5 prior to trial were used against him at the penalty phase of the proceedings. The Supreme Court held 6 such use of the statements violated the defendant's Fifth Amendment privilege. Id. As in Nguyen, 7 the issue considered was the use of information in a criminal trial or sentencing, not on federal 8 habeas. As discussed above, the Protective Order at issue herein expressly states that any 9 information from the competency evaluation cannot be used at the time of retrial. Consequently, the 10 Protective Order is not inconsistent with the Supreme Court's decision in Estelle. See id.; see also,

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11 Bittaker, 331 F.3d at 726-28 (upholding federal habeas protective order that limited petitioner's
For the Northern District of California

12 implied waiver of attorney client privilege, arising from claim of ineffective assistance of counsel, to 13 use in litigation of federal habeas petition). 14
Petitioner states he also plans to address on appeal the Court's initial decision to order a

15 competency evaluation, which petitioner continues to argue is not warranted under Rohan and Rule 16 35 of the Federal Rules of Civil Procedure.5 While the Court had compelling reasons to order a 17 competency evaluation of petitioner, the Court acknowledges that the Ninth Circuit has not ruled on 18 whether a sua sponte competency evaluation is warranted under Rohan, and that the issue remains 19 an open question in this Circuit. Nevertheless, because the propriety of the Court's order is an open 20 question, petitioner cannot demonstrate he is likely to succeed on the merits of his argument on 21 appeal. 22
Second, petitioner will not be irreparably injured absent a stay. Petitioner has not suggested

23 he will be harmed in any manner by the examination itself; rather, as noted, he argues he may be 24 harmed if respondent is permitted, under the Protective Order in place, to use the examination results 25 to rebut other claims in the instant petitions. Given that petitioner and respondent have stipulated to 26 stay any other proceedings in these cases pending the appeal, there is no reasonable possibility that 27
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28 the competency evaluation.

It is unclear whether petitioner has the right to appeal this Court's earlier order regarding 5

1 the results of the competency examination will be used by respondent for the purpose of litigating 2 any claims in either petition pending the appeal. Rather, the examination will simply indicate 3 whether or not petitioner is competent under Rohan, a question this Court considers a critical matter 4 to resolve prior to moving forward with petitioner's remaining claims. In addition, the Court 5 reiterates, the focus of the competency examination is on protection of petitioner's rights and 6 interests. Accordingly, should the Ninth Circuit find this Court's Protective Order was issued in 7 error, petitioner will not have suffered irreparable harm because the remainder of the litigation will 8 have been stayed pending appeal. 9
As to the third and fourth factors, the Court finds such considerations are not seriously

10 implicated in this instance. Respondent argues that he and the public will be prejudiced by a stay of

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11 the examination because of the public's interest in assuring that petitioner's sentences are carried out
For the Northern District of California

12 in a timely manner. Respondent has stipulated, however, to a stay of petitioner's remaining claims 13 pending appeal. Consequently, irrespective of whether the competency examination goes forward 14 next week, petitioner's cases will not move forward in the district court, at least in any substantial 15 manner, until the Ninth Circuit renders a decision. 16 17
CONCLUSION For the foregoing reasons, petitioner's motion to stay his competency evaluation pending

18 appeal is hereby DENIED. The examination of petitioner by Dr. Roesch will proceed as scheduled 19 on September 16, 17 and 18. 20 21 22 23 24 25 26 27 28
6 IT IS SO ORDERED. DATED: September 12, 2008

MAXINE M. CHESNEY UNITED STATES DISTRICT JUDGE