Mulder v. MCDANIEL et al

Filing 27

ORDER GRANTING Rs' 23 Motion for psychological examination. FURTHER ORD Rs shall designate expert(s) by 5/25/2010. FURTHER ORD Rs shall have their experts complete examination by 7/9/2010. FURTHER ORD GRANTING Rs' 25 Motion for extension of time : Rs' response to 18 / 19 Motion due by 8/8/2010; P's reply due 20 days thereafter. Signed by Judge Philip M. Pro on 5/10/2010. (Copies have been distributed pursuant to the NEF - DRM)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 vs. E.K. McDANIEL, et al., Respondents. MICHAEL JOSEPH MULDER, Petitioner, ) ) ) ) ) ) ) ) ) ) / UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

3: 0 9 - C V - 0 0 6 1 0 - P M P - R A M ORDER

In this action brought under 28 U.S.C. § 2254, petitioner, through counsel, has made a motion for a stay pursuant to Rohan ex rel. Gates v. Woodford, 334 F.3d 803 (9th Cir. 2003), which requires a court to stay capital habeas proceedings upon a showing that the petitioner is incompetent. Docket ##18/19. In relation to that motion, respondents have filed their own motion asking the court to issue an order permitting their mental health experts to conduct their own competency evaluation of Mulder and to conduct the tests they deem necessary for that purpose. Docket #23. Petitioner's counsel concedes that he cannot reasonably oppose respondents' motion, but asks the court to allow him to personally observe the respondents' psychological examination or, alternatively, to videotape the examination. Docket # 24. Petitioner's counsel further requests that respondents identify all mental health experts (accompanied by a curriculum vitae for each), as well as the prospective tests, protocols, and materials, they intend to use. Id. With petitioner's counsel agreeing that respondents should have an opportunity to conduct a

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psychological examination of the petitioner, respondents' motion for an order to that effect shall be granted. As to the requests from petitioner's counsel, the court is not convinced that Mulder, his counsel having initiated a Rohan-type inquiry, is entitled to have counsel present during the respondents' examination, or to otherwise impose conditions on how the examination is to be conducted. Respondents shall, however, identify the expert or experts who will examine the petitioner on their behalf and provide petitioner's counsel a copy of a curriculum vitae for each such expert. IT IS THEREFORE ORDERED that respondents' motion for order for psychological examination (docket #23) is GRANTED. IT IS FURTHER ORDERED that respondents shall have fifteen (15) days from the date this order entered within which to designate the expert or experts who will examine the petitioner on their behalf and to provide petitioner's counsel a copy of a curriculum vitae for each expert so designated. IT IS FURTHER ORDERED that respondents shall have sixty (60) days from the date this order entered within which to have their experts complete their examination of the petitioner. IT IS FURTHER ORDERED that respondents' motion for an extension of time within which to file and serve their response to petitioner motion to stay (docket #25) is GRANTED. Respondents shall have ninety (90) days from the date this order is entered within which to file their response to the motion (docket ##18/19). In their response, respondents shall indicate whether, in their view, an evidentiary hearing is necessary to resolve petitioner's motion to stay and, if so, the contested issues of fact that will need to be addressed. Petitioner shall thereafter have twenty (20) days within which to file a reply. DATED: May 10, 2010.

PHILIP M. PRO United States District Judge
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