Filed: Mar. 23, 2005
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS March 23, 2005 FOR THE FIFTH CIRCUIT _ Charles R. Fulbruge III Clerk No. 05-70012 _ STEVEN KENNETH STALEY, Petitioner - Appellee, versus DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION, Respondent - Appellant. _ Appeal from the United States District Court for the Northern District of Texas USDC No. 4:05-CV-185 _ Before JOLLY, HIGGINBOTHAM, and DAVIS, Circu
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS March 23, 2005 FOR THE FIFTH CIRCUIT _ Charles R. Fulbruge III Clerk No. 05-70012 _ STEVEN KENNETH STALEY, Petitioner - Appellee, versus DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION, Respondent - Appellant. _ Appeal from the United States District Court for the Northern District of Texas USDC No. 4:05-CV-185 _ Before JOLLY, HIGGINBOTHAM, and DAVIS, Circui..
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United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
March 23, 2005
FOR THE FIFTH CIRCUIT
_____________________ Charles R. Fulbruge III
Clerk
No. 05-70012
_____________________
STEVEN KENNETH STALEY,
Petitioner - Appellee,
versus
DOUG DRETKE, DIRECTOR, TEXAS
DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION,
Respondent - Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:05-CV-185
_________________________________________________________________
Before JOLLY, HIGGINBOTHAM, and DAVIS, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:*
In April 1991, Steven Kenneth Staley was convicted of capital
murder and sentenced to death for the murder of Robert Read during
an armed robbery in October 1989. The Texas Court of Criminal
Appeals affirmed his conviction and death sentence on direct appeal
in April 1994. Staley’s application for state habeas relief was
denied in September 1998. In May 2000, he filed a petition for
federal habeas relief. In September 2003, the district court
denied relief on three of the claims, and dismissed without
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
prejudice, as premature, Staley’s claim that he was then
incompetent to be executed.
On December 14, 2004, the state trial court entered an order
scheduling Staley’s execution for March 23, 2005. Anticipating
that Staley would probably claim that he was incompetent to be
executed, the State filed a request for an expert to examine
Staley, and the trial court granted the motion, appointing Dr.
Price. Staley’s counsel persuaded the trial court to informally
authorize the appointment of an expert, Dr. Cunningham, without
first having to make the threshold showing of incompetency required
under Article 46.05. Staley’s counsel also obtained the
cooperation of the district attorney and the trial court in having
Staley brought from death row to Tarrant County to facilitate
access to him by counsel and mental health experts. Staley
arrived in Tarrant County during the last week of February 2005.
The State’s expert attempted to examine Staley on February 28,
2005, but Staley initially refused. After speaking to his
attorney, he relented. Staley’s expert, Dr. Cunningham, examined
him on March 16, 2005. On March 17, 2005, less than a week before
his scheduled execution, Staley filed a motion in the state trial
court seeking an oral hearing to determine his competency to be
executed under Article 46.05 of the Texas Code of Criminal
Procedure.**
**
Article 46.05 provides, in pertinent part:
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The state court received evidence in the form of affidavits
and reports from the parties’ mental health experts. The State’s
expert, Dr. Price, examined Staley on February 28, 2005, and
concluded that Staley understands that he is to be executed, that
his execution is imminent, and the reason why he is to be executed.
The defense expert, Dr. Cunningham, interviewed Staley for
three hours on March 16, 2005. He testified in his affidavit that,
in his opinion, Staley knows that he is to be executed, that his
execution is imminent, and the reason for his execution. However,
he stated that it was “probable” that Staley will become more
psychotic in the week remaining before his execution and that there
“can thus be no assurance that the awareness he displayed regarding
(a) A person who is incompetent to be
executed may not be executed.
....
(d) On receipt of a motion filed under
this article, the trial court shall determine
whether the defendant has raised a substantial
doubt of the defendant’s competency to be
executed on the basis of:
(1) the motion, any attached documents,
and any responsive pleadings ....
....
(h) A defendant is incompetent to be
executed if the defendant does not understand:
(1) that he or she is to be executed and
that the execution is imminent; and
(2) the reason he or she is being
executed.
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his execution on 3-16-05 will be present at the time of his
execution.”
After considering the affidavits and reports submitted by the
parties’ mental health experts, the state trial court found that
the evidence showed that Staley understands that he is going to be
executed, that his execution is imminent, and that he knows the
reason for his execution. The trial court concluded that Staley
had failed to make a substantial showing that he was incompetent.
The trial court’s order was entered on March 17, the same day that
Staley filed his motion for a competency hearing.
That same day, Staley filed in the district court a motion for
a stay of execution and for the appointment of counsel to prepare
a habeas petition seeking relief on the ground that he is presently
incompetent to be executed. On the afternoon of March 22, Staley
filed a supplement to his motion for stay of execution, in which he
argued that he is entitled to a stay of execution pending the
decision in another case in which the district court granted a
certificate of appealability on the question whether a condemned
inmate must have a rational, as well as factual, understanding of
the reason for his execution. Panetti v. Dretke, No. A-04-CA-042-
SS (W.D. Tex. Sept. 29, 2004) (unpublished).
Later in the afternoon of March 22, the district court entered
an order granting Staley’s motions for stay of execution and for
appointment of counsel. Citing McFarland v. Scott, 512 U.S. 849,
858 (1994), the district court found that Staley had not
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“inexcusably ignored his procedural opportunities for review of his
mental competency, or flouted available processes”, because the
state court did not deny Staley’s request for a competency hearing
until March 17, 2005, the same day that Staley filed his motions in
federal district court. (The district court failed to note,
however, that Staley did not request a competency hearing in the
state court until March 17, 2005.) Therefore, the district court
concluded that the requested stay was necessary for appointed
counsel to meaningfully research and prepare a federal habeas
petition presenting the claim that Staley is presently incompetent
to be executed.
Early this morning, March 23, the State appealed and filed a
motion to vacate the stay of execution. Staley has filed a
response in opposition to the State’s motion, arguing that he is
entitled to the stay under McFarland.
The only matter before this court is the appeal of the stay.
The district court granted the stay in order to give Staley’s
counsel time to meaningfully research and prepare a federal habeas
petition presenting his claim that he is presently incompetent to
be executed. Thus, the question presented to us is whether the
district court abused its discretion by granting the stay. See
McFarland, 512 U.S. at 858. We find that the district court abused
its discretion by granting the stay for the following reasons:
1. As Staley’s counsel explicitly stated in paragraph 5 of
his motion for stay of execution filed in the district court, the
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only claim sought to be presented in a federal habeas petition is
the claim that Staley is presently incompetent to be executed.
Therefore, all that is before us is also all that we are told will
be forthcoming in a habeas petition.
2. Staley’s court-appointed counsel has appeared in this case
since 1999. As he sets out in his response in opposition to the
State’s motion to vacate the stay, he has been actively involved in
this immediate proceeding since the state court scheduled the
execution date on December 14, 2004.
3. Counsel has diligently pursued the question of whether
Staley is competent to be executed, including reviewing over 1,500
pages of prison medical records, reviewing and updating the
documentary evidence in support of the claim, persuading the state
trial court to informally authorize the appointment of experts,
without first having to make a threshold showing of incompetency
under Article 46.05, conferring with the experts concerning their
evaluations of Staley, filing a motion in state court for a
competency hearing, and filing a motion for stay of execution in
federal court the same day that the state trial court denied the
Article 46.05 motion. In short, counsel has performed with
diligence and thoroughness in examining and presenting the only
claim at issue -- the competency of Staley to be executed.
4. In support of the motion for stay of execution filed in
the district court, counsel asserted that a stay was warranted
because it was impossible for the mental health experts appointed
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by the court to evaluate Staley to complete their examinations and
prepare their reports before the scheduled execution; and it was
impossible for counsel for both sides to adequately prepare for a
competency hearing in state court, including subpoenaing witnesses,
consulting with experts, preparing briefs, and presenting a case to
a state district judge in a final competency hearing contemplated
by Article 46.05. The experts have completed their examinations
and reports, and the state court has determined that Staley failed
to make a threshold showing of incompetency sufficient to require
a hearing under Article 46.05. Thus, these grounds do not support
the issuance of a stay of execution.
5. In a supplemental motion for stay of execution filed in
the district court, counsel argued that a stay should be granted
until this Court decides in Panetti v. Dretke the question whether
a death row inmate must have a rational, as well as a factual,
understanding of the reason for his execution. The affidavits of
the mental health experts who have examined Staley indicate that
there is no basis for a claim that he lacks a rational
understanding of the reason for his execution. Therefore, the
pendency of Panetti provides no basis for a stay of execution in
this case.
6. It should be noted that the experts in this case, for the
State and for Staley, respectively, have arrived at expressed
opinions, as a result of their examinations of Staley, that
demonstrate as a matter of law that he is competent to be executed
7
under the standard announced in Ford v. Wainwright, 477 U.S. 399
(1986): he understands that he is to be executed, that his
execution is imminent, and the reason for his execution.
For the foregoing reasons, the motion to vacate the stay of
execution is GRANTED, and the order staying the execution in this
case is hereby VACATED.
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