In Re Enzler

Filing 3

ORDER STAYING CASE. Motion to proceed in forma pauperis is GRANTED. Signed by Magistrate Judge John Johnston on 11/14/2016. Mailed to Enzler. (TAG, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
HELENA DIVISION
In re GARY LEE ENZLER,

Cause No. CV 16-100-H-DLC-JTJ

Petitioner.

ORDER STAYING CASE

On October 26, 2016, Enzler filed with the Court a voluminous document
that is frequently illegible and incoherent. Enzler is a state prisoner proceeding pro
se. Because Enzler seems to allege his current custody is unconstitutional, the
Court filed the document as an application for writ of habeas corpus under 28
U.S.C. § 2254.
Enzler seeks forma pauperis status. See, e.g., Pet. (Doc. 1), “Petition(s) to
Proceed In Forma Pauperis.” Although he does not submit the appropriate
documentation, the Court takes judicial notice of the fact that he is represented by
the Office of the Appellate Defender in state court. Fed. R. Evid. 201(b)(2);
Trigueros v. Adams, 658 F.3d 983, 987 (9th Cir. 2011). His motion to proceed in
forma pauperis will be granted, subject to review if and when further proceedings
follow.
Enzler is in custody because he pled guilty to sexual assault and was
sentenced to a prison term. He moved the trial court for leave to withdraw his
guilty plea. The trial court denied the motion. Enzler’s appeal of that ruling is
currently pending in the Montana Supreme Court. See State v. Enzler, No. DA 151

0495 (Mont. filed Aug. 13, 2015). Enzler is represented by counsel in that appeal.
In the typical case, the Court would dismiss the federal petition without
prejudice. That is what happened the first time Enzler filed a habeas petition in
this Court. See Order (Doc. 6) at 2, Enzler v. Berkebile, No. CV 15-02-H-DLCJTJ (D. Mont. filed Mar. 13, 2015).
Enzler’s case, however, may not be typical. Whatever the ultimate merits of
his competency, there is at least a potentially serious issue about his competency to
represent himself. See generally Indiana v. Edwards, 554 U.S. 164, 177-78 (2008)
(distinguishing competency to assist in defense from competency to represent
oneself); see also Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983) (per
curiam). According to Enzler’s counsel in the state appeal, the trial court found
Enzler was not competent to proceed with his motion to withdraw his guilty plea.
A mental health professional has also testified that his condition may be getting
worse. See Appellant Br. at 6-8, Enzler, No. DA 15-0495 (Mont. filed Aug. 5,
2016).
If there is a realistic prospect that Enzler’s condition may continue to
decline, he may not have the wherewithal to file again in federal court for a third
time, after his state remedies are exhausted. Under the unusual circumstances here,
dismissing Enzler’s federal petition now may inadvertently prevent him from ever

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proceeding in federal court. Yet an incompetent person has the same right to
federal habeas review as anyone else.
A federal habeas petition may be stayed if three conditions are met. 1 See
Rhines v. Weber, 544 U.S. 269, 277-78 (2005). First, there must be good cause for
the petitioner’s failure to exhaust state remedies before filing the federal petition.
The trial court’s purported finding and the mental health professional’s purported
testimony provide a “concrete and reasonable excuse” for Enzler’s failure to
exhaust his state remedies before filing the federal petition—an excuse that will
not apply to every premature filer whose petition is hard to understand. See Blake
v. Baker, 745 F.3d 977, 983 (9th Cir. 2014). Second, at least one unexhausted
claim must be potentially meritorious. Based solely on Enzler’s appellate brief and
his submission to this Court, his claim that he did not know what he was doing
when he pled guilty appears to meet that very low standard. Third, there must not
be any indication that the petitioner has been using delaying tactics. If Enzler’s
competency is questionable, it is unlikely that he is engaging in tactical delay. The
three Rhines factors are met.
The Court recognizes that a petitioner has only a limited right to be
competent in federal habeas proceedings. See, e.g., Ryan v. Gonzales, __ U.S. __,
133 S. Ct. 696, 708-09 (2013). But here the stay is not imposed to allow Enzler to
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The petitioner is not required to show he has exhausted any claim for relief. See Mena
v. Long, 813 F.3d 907, 912 (9th Cir. 2016).

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become competent. It is imposed to allow Enzler to exhaust state remedies. A stay
will not delay a disposition on habeas or frustrate the State’s legitimate interest in
finality to any greater extent than any timely filed and timely decided federal
habeas petition. And, of course, unlike a capital case, here the execution of the
sentence is not affected by a stay.
“[T]he petitioner’s interest in obtaining federal review of his claims
outweighs the competing interests in finality and speedy resolution of federal
petitions.” Rhines, 544 U.S. at 278. The federal petition will be stayed pending
resolution of Enzler’s motion to withdraw his guilty plea in state court. If Enzler
obtains the relief he seeks there, the federal petition will be dismissed. But if he is
not successful in state court and wishes to proceed here, any lack of competency
will not prevent him from doing so.

Based on the foregoing, the Court enters the following:
ORDER
1. Enzler’s motion to proceed in forma pauperis is GRANTED. The clerk
shall waive payment of the filing fee.

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2. This matter is STAYED pending resolution of Enzler’s motion to
withdraw his guilty plea in state court.
DATED this 14th day of November 2016.

/s/ John Johnston
John Johnston
United States Magistrate Judge

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