Michael B. Ross, by next friend Gerard A. Smyth, v. Theresa Lantz, No. 05-8900 (2d Cir. Jan. 25, 2005) (Sack, Katzmann, and Hall) (per curiam)
FACTS: Michael Ross, convicted of murder in Connecticut, was scheduled to be executed on Wednesday, January 26, 2005, at 2 a.m. Ross (a so-called death penalty “volunteer”) has declined to challenge his death sentence, but lawyers from the state public defender’s office filed a habeas petition pursuant to 28 U.S.C. § 2254 on his behalf as “next friend.” The public defender’s office contends that Ross is not mentally competent to surrender his post-conviction rights. It presented testimony to Chief Judge Chatigny (of the District of Connecticut) from a psychiatrist indicating that Ross may not have been competent when he decided to forgo further challenges to his conviction and sentence due to years of seclusion on death row.
Yesterday, January 24th, Chief Judge Chatigny granted a stay of execution in order to hear more evidence concerning Ross’s competency. Connecticut immediately asked the Second Circuit to vacate that stay. The Circuit heard oral argument at 2 p.m. today, January 25th, and issued an opinion within 3 hours.
HELD: The Court dismissed Connecticut’s appeal and refused to vacate the stay, remanding the case back to Judge Chatigny for further proceedings to determine whether the state public defender qualified as Ross’s “next friend” (and thus had standing to file the 2254 petition). The Circuit concluded that it did not have an adequate basis to review the standing question based on the record before it.
The determination of whether the state public defender’s office qualified as “next friend”, in turn, hinges primarily on whether “Ross is in fact not competent to forgo his right to bring habeas corpus proceedings.” Slip Op. at 3; see Whitmore v. Arkansas, 495 U.S. 149, 163-64 (1990) (“next friend” must show, inter alia, that “the real party in interest cannot appear on his own behalf to prosecute the action” because of “inaccessibility, mental incompetence, or other disability”). Thus, the real effect of the Court’s decision is the affirmation of Judge Chatigny’s stay of execution pending a final determination of mental competency. As the Court concluded, “such proceedings on Ross’s competence are appropriate as part of the district court’s effort properly to decide the issues of standing and jurisdiction.” Slip op. at 3.
In sum, because the standing question and the merits question both depend on Ross’s competence, the Second Circuit’s decision to remand for further factfinding on the standing question has the ultimate effect of upholding Judge Chatigny’s decision to stay execution pending a final determination on Ross’s competence. The Court “urge[d]” Judge Chatigny to “conduct such proceedings as expeditiously as reasonably practicable.” Slip op. at 4.
UPDATE 1: On Thursday, January 27th, the Supreme Court, w/out comment but by a 5-4 vote, granted Connecticut’s request to vacate the stay.
A new execution date has been set — 2:01 a.m. on Saturday, January 29th (i.e., late this evening). However, Judge Chatigny apparently had also entered a 10-day TRO, which would prevent the execution. Thus, the case is now back before the Second Circuit, which will hear argument today (Friday, January 28th) on whether to dissolve the TRO.
UPDATE 2: Today, Friday, January 28th, the 2nd Circuit heard oral argument on whether the TRO issued by Judge Chatigny in the case brought by Ross’s father should be dissolved. Shortly after the argument, the Court issued a decision vacating that TRO. The sole apparent basis for the decision was the fact that the Supreme Court had vacated the district court’s stay of execution on Thursday, and there was no reason to believe that it wouldn’t do the same regarding the TRO. (Of course, since the Superme Court gave no explanation for why it vacated the stay, this is just speculation).
In any event, the Circuit stayed its decision / order dissolving the TRO “until Sunday, January 30, 2005, at 12:01 A.M., in order to permit Plaintiff-Appellee Ross to seek such further review as he may deem warranted.” Thus, unless Connecticut asks the Supreme Court to vacate this stay, the current execution date (2:01 a.m. on Saturday, January 29th) will have to be moved back. However, because Monday, January 31st is the final date on which the state can execute Ross on the current death warrant, only a short delay is likely — unless of course the Supreme Court upholds the TRO.