Friday, October 22, 2010

In re Gonzales, 623 F.3d 1242 (9th Cir. 2010): Pet. for Cert. Filed

Possibly worrying that the Supreme Court is aware of the usual "ineffective counsel" excuse the Ninth Circuit has used for the last decade in granting habeas corpus in state court cases, a three judge panel has discovered another method of delay for inmates in capital cases. In in re Gonzales, the panel held that the U.S. District Court must hold a hearing to determine whether the petitioner can communicate with counsel. According to the petition submitted by the eleventh attorney to participate in state and federal post trial proceedings, the legally incompetent petitioner cannot effectively communicate with counsel. The District Court had held an earlier hearing and the doctor agreed to the questionable veracity of Gonzales (who had been convicted of murder in 1991). The remedy: Mandamus to the trial court to hold another competency hearing. The Ninth Circuit panel concedes that habeas corpus is based entirely on the record, and an appellate court is bound by the trial court proceedings. What can the inmate possibly communicate? The records are the the only documents available for appeal, as the District Court ruled in denying the petition. Time for rehearing en banc. This is not the first case the Ninth Circuit in which has used this device and it cites as precedent only its own decision on record anywhere; Nash v. Ryan, 581 F.3d 1048, (9th Cir. 2009).

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