Robert Glen Coe v. RICKY BELL, Warden

1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0130P (6th Cir.)
File Name: 00a0130p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
R OBERT GLEN C OE ,
Petitioner-Appellant,
v.
R ICKY BELL, Warden
Respondent-Appellee.
;>

1
No. 00-5419
Appeal from the United States District Court
for the Middle District of Tennessee at Nashville.
No. 00-00239—Aleta A. Trauger, District Judge.
Submitted: April 3, 2000
Decided and Filed: April 11, 2000
Before: BOGGS, NORRIS, and MOORE, Circuit Judges.
_________________
COUNSEL
ON BRIEF: Henry B. Martin, Paul R. Bottei, FEDERAL
PUBLIC DEFENDER’S OFFICE, Nashville, Tennessee, for
Appellant. Gordon W. Smith, Michael E. Moore, Glenn R.
Pruden, OFFICE OF THE ATTORNEY GENERAL,
CRIMINAL JUSTICE DIVISION, Nashville, Tennessee, for
Appellee.

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2 Coe v. Bell No. 00-5419
_________________
OPINION
_________________
KAREN NELSON MOORE, Circuit Judge. Robert Glen
Coe appeals the denial of habeas relief regarding the
Tennessee state courts’ determination that he is competent to
be executed pursuant to Ford v. Wainwright, 477 U.S. 399
(1986). Because we conclude that the Tennessee state courts’
proceedings assessing Coe’s Ford claims satisfy the
requirements of due process and do not involve an
unreasonable application of Supreme Court precedent, we
AFFIRM the district court’s denial of Coe’s application for
a writ of habeas corpus.
I. FACTS AND PROCEDURE
In 1981, Robert Glen Coe received the death sentence after
a Tennessee jury convicted him of first-degree murder. Once
Coe had exhausted all of his state and federal appeals of his
conviction and sentence, the Tennessee Attorney General
filed a motion before the Tennessee Supreme Court
requesting an execution date. On December 15, 1999, the
Tennessee Supreme Court set Coe’s execution date for March
23, 2000, and ordered a remand of the case to the Tennessee
trial court that had presided over Coe’s conviction for a
determination of his competency to be executed under Ford.
Coe v. State, 11 S.W.3d 118, 119-20 (Tenn. 1999). The trial
court determined that Coe was entitled to a hearing on this
issue because he had satisfied a threshold showing that there
existed a genuine disputed issue regarding his competency to
be executed. The hearing was held from January 24 to
January 28, 2000. The trial court then issued a finding on
February 2, 2000 that Coe is competent to be executed. The
Tennessee Supreme Court affirmed this finding on March 6,
2000. Coe v. State, No. W1999-01313-SC-DPE-PD, 2000
WL 246425 (Tenn. Mar. 6, 2000), cert. denied, -- S. Ct. --,
2000 WL 295230 (Mar. 22, 2000).

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No. 00-5419 Coe v. Bell 3
On March 16, 2000, Coe filed in federal district court an
application for a writ of habeas corpus challenging the
Tennessee courts’ determination that he is competent for
execution under Ford. In a thorough opinion examining
Coe’s several claims issued on March 29, 2000, the district
court refused to grant Coe’s application for habeas relief. Coe
filed a notice of appeal and sought a certificate of
appealability from the district court, which the district court
granted. The Tennessee Supreme Court on March 30, 2000
set Coe’s execution for April 5, 2000.
After we requested and received briefs from the parties on
April 3, 2000, we granted a stay of execution to evaluate fully
the merits and to prevent Coe’s scheduled April 5, 2000
execution from mooting his appeal. We directed the district
court to make its record available for our review and asked
the parties to designate particular parts of the record pertinent
to this appeal. Because of the ample briefing and record and
because of the inherent need for expedited review and
resolution of a Ford claim, further briefing and an appellate
oral argument are not necessary. See 6 TH C IR. R. 22(c)(7).
II. ANALYSIS
A. Adequacy of State Procedures
1. Ford v. Wainwright
This circuit has never been presented with the opportunity
to examine the adequacy of a state’s procedures to determine
whether a death-row prisoner is competent to be executed
pursuant to Ford v. Wainwright, 477 U.S. 399 (1986). In
Ford, the Supreme Court held that the Eighth Amendment
prohibits a state from executing a prisoner who is insane. See
477 U.S. at 409-10. A majority of the Justices did not reach
the issues of what constitutes insanity in this context or what
state procedures would adequately address a prisoner’s Ford
claim. Therefore, this court must look to the position taken
by Justice Powell, who concurred in the judgment on the most
narrow grounds, for the Court’s holding on these issues. See
Marks v. United States, 430 U.S. 188, 193 (1977) (“When a

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4 Coe v. Bell No. 00-5419
fragmented Court decides a case and no single rationale
explaining the result enjoys the assent of five Justices, ‘the
holding of the Court may be viewed as that position taken by
those Members who concurred in the judgments on the
narrowest grounds . . . .’” (quoting Gregg v. Georgia, 428
U.S. 153, 169 n.15 (1976)).
First, Justice Powell concluded that prisoners will be
considered insane for the purposes of competency to be
executed when they “are unaware of the punishment they are
about to suffer and why they are to suffer it.” Ford, 477 U.S.
at 422 (Powell, J., concurring). In Ford, a psychiatrist’s
findings showed that the death-row prisoner believed that he
would not be executed but rather understood the death penalty
to have been invalidated. This led Justice Powell to conclude
that “[i]f this assessment is correct, petitioner cannot connect
his execution to the crime for which he was convicted” as
required under the competency standard. Id. at 422-23
(Powell, J., concurring). It appears that the Supreme Court
has accepted this competency standard as the Ford holding.
See Penry v. Lynaugh, 492 U.S. 302, 333 (1989) (noting that
“under Ford v. Wainwright, someone who is ‘unaware of the
punishment they are about to suffer and why they are to suffer
it’ cannot be executed” (citation omitted)).
Second, Justice Powell determined that in evaluating a
prisoner’s competency-to-be-executed claim, the state must
comply with the Due Process Clause and that, under these
particular circumstances, the clause requires the state to
provide the prisoner with a “fair hearing.” Ford, 477 U.S. at
424 (Powell, J., concurring). In Ford, the Governor of
Florida was responsible for deciding a prisoner’s competency
to be executed and for appointing a panel of three
psychiatrists to evaluate the prisoner. The prisoner was not
given the opportunity to present any material for the Governor
to consider in making a competency determination. Justice
Powell noted that the opportunity to be heard is a
“fundamental requisite” of due process. Id. (Powell, J.,
concurring). The prisoner was not given this fundamental
opportunity to be heard, and the decision on his competency
No. 00-5419 Coe v. Bell 21
and sentenced for a capital offense, however, we see no
reason why a prisoner’s competency to be executed should be
treated more strictly than a criminal defendant’s competency
to stand trial for the purpose of due process. Therefore, the
Tennessee courts’ placement of the burden of proof on Coe to
establish his lack of competency to be executed comports
with the procedural protections of the Due Process Clause and
is not an unreasonable application of Supreme Court
precedent.
4. Other Procedural Claims
Finally, Coe raises a number of other challenges to the
procedures used by the Tennessee courts in deciding his
competency. Given Justice Powell’s opinion in Ford, we
believe that “[a]s long as basic fairness is observed” in a
prisoner’s competency-to-be-executed determination, a state
has “substantial leeway to determine what process best
balances the various interests at stake.” Ford, 477 U.S. at 427
(Powell, J., concurring). Accordingly, we must give the
Tennessee courts substantial discretion in fashioning the
procedures employed in Coe’s competency proceedings.
Where Coe was given an extensive hearing over several days
and was given the opportunity to present evidence and to
cross-examine the state’s mental health experts, it is not our
role to second guess all of the procedural decisions made by
the Tennessee courts. Moreover, we note that the district
court ably addressed Coe’s claims in a thorough 42-page
opinion denying habeas relief. It would serve no
jurisprudential purpose to discuss these claims any further.
III. CONCLUSION
Based on the foregoing, we AFFIRM the district court’s
denial of Coe’s application for a writ of habeas corpus. We
hereby lift the stay of execution.

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20 Coe v. Bell No. 00-5419
5We note that in his concurring opinion, Justice Powell states that “it
is the defendant and not the State who seeks to overcome the presumption
that he is sane.” Ford, 477 U.S. at 426 n.6 (Powell, J., concurring). This
statement, however, was made in the context of his conclusion that the
state “may require a substantial threshold showing of insanity merely to
trigger the hearing process.” Id. at 426 (Powell, J., concurring).
Although the Supreme Court has never established who
bears the burden of proof in a competency-to-be-executed
claim,5 it has held that a California statute requiring a
criminal defendant to prove by a preponderance of the
evidence that he is not competent to stand trial does not
violate due process. See Medina v. California, 505 U.S. 437,
449 (1992). The Court specifically rejected the use of the
Mathews v. Eldridge balancing test for evaluating the
adequacy of state procedures in this context because it “does
not provide the appropriate framework for assessing the
validity of state procedural rules which, like the one at bar,
are part of the criminal process.” Id. at 443. Rather, the
Court instructed that a state’s procedure regarding the burden
of proof in the criminal context will not be prohibited unless
“‘it offends some principle of justice so rooted in the
traditions and conscience of our people as to be ranked as
fundamental.’” Id. at 445 (quoting Patterson v. New York,
432 U.S. 197, 202 (1977) (quotations omitted)). After
examining the historical and modern treatment of the burden
of proof in competency proceedings and the requirements of
“fundamental fairness,” the Court concluded that placing this
burden on a criminal defendant satisfies due process. See id.
at 446-49.
In accordance with the Supreme Court’s holding in Medina,
we conclude that the placement of the burden of proof on Coe
to prove by a preponderance of the evidence that he is
incompetent to be executed does not violate due process. We
recognize that determining the competency of a criminal
defendant facing trial involves different interests than
determining the competency of a prisoner facing execution.
In light of the fact that a prisoner on death row has previously
been found competent to stand trial and has been convicted
No. 00-5419 Coe v. Bell 5
1In an opinion joined by three other Justices, Justice Marshall
criticized the Florida procedure for failing to allow a prisoner to present
relevant material to the factfinder or to challenge the opinions of the state-
appointed experts and for placing the decision solely within the executive
branch. Id. at 413-16 (Marshall, J., plurality opinion). Although Justice
Marshall asserted that states should be left with the task of formulating
the proper procedures, he also stated that it is “important that the
adversary presentation of relevant information be as unrestricted as
possible” and that “the manner of selecting and using the experts
responsible for producing [the evidence] be conducive to the formation
of neutral, sound, and professional judgments as to the prisoner’s ability
to comprehend the nature of the penalty.” Id. at 417 (Marshall, J.,
plurality opinion). Justice Marshall explicitly stated that “We do not here
suggest that only a full trial on the issue of sanity will suffice to protect
the federal interests,” and he recognized that “legitimate pragmatic
considerations may also supply the boundaries of the procedural
safeguards that feasibly can be provided.” Id. at 416-17 (Marshall, J.,
plurality opinion). Thus, five justices agreed that a fair hearing but not
necessarily a full trial was required if a prisoner made a substantial
threshold showing of incompetency to be executed. See id. at 417
(Marshall, J., plurality opinion), 426 (Powell, J., concurring).
was made solely on the basis of the findings from the state-
appointed experts. Justice Powell stated that “[s]uch a
procedure invites arbitrariness and error by preventing the
affected parties from offering contrary medical evidence or
even from explaining the inadequacies of the State’s
examinations” and “does not, therefore, comport with due
process.” Id. (Powell, J., concurring).
Justice Powell cautioned, however, that he “would not
require the kind of full-scale ‘sanity trial’” he thought implied
in Justice Marshall’s opinion. Id. at 425 (Powell, J.,
concurring).1 Although a prisoner is entitled to due process
on a Ford claim, “[d]ue process is a flexible concept” and its
procedural protections may vary depending on the context of
a particular situation. Id. (Powell, J., concurring). A
competency-to-be-executed claim only raises the issue of
when a prisoner will be competent for execution and does not
challenge the validity of the prisoner’s conviction or sentence.
Although an important question, “it is not comparable to the
antecedent question whether [the prisoner] should be

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6 Coe v. Bell No. 00-5419
executed at all.” Id. (Powell, J., concurring). Therefore,
Justice Powell asserted that the heightened procedural
protections usually required in capital cases are not applicable
in this context. See id. (Powell, J., concurring). In addition,
because the prisoner necessarily was found competent to
stand trial in order to be convicted, Justice Powell concluded
that “[t]he State therefore may properly presume that
petitioner remains sane at the time sentence is to be carried
out, and may require a substantial threshold showing of
insanity merely to trigger the hearing process.” Id. at 426
(Powell, J., concurring) (footnote omitted). Finally, Justice
Powell noted that the competency determination requires a
“basically subjective judgment” based on “expert analysis in
a discipline fraught with ‘subtleties and nuances.’” Id.
(Powell, J., concurring) (quoting Addington v. Texas, 441
U.S. 418, 430 (1979)). Therefore, “ordinary adversarial
procedures – complete with live testimony, cross-
examination, and oral argument by counsel – are not
necessarily the best means of arriving at sound, consistent
judgments as to a defendant’s sanity.” Id. (Powell, J.,
concurring).
Accordingly, Justice Powell concluded that a state need not
carry out a formal trial to determine a prisoner’s competency.
At a minimum, he stated, “[t]he State should provide an
impartial officer or board that can receive evidence and
argument from the prisoner’s counsel, including expert
psychiatric evidence that may differ from the State’s own
psychiatric examination.” Id. at 427 (Powell, J., concurring).
However, “[b]eyond these basic requirements, the States
should have substantial leeway to determine what process best
balances the various interests at stake” as long as the states
observe the requirements of “basic fairness” under the Due
Process Clause. Id. (Powell, J., concurring).
2. Tennessee’s Ford Procedures
Invoking its inherent supervisory authority and with the
Ford decision as guidance, the Tennessee Supreme Court
recently adopted and set forth the procedures that a death-row
No. 00-5419 Coe v. Bell 19
4In support of his argument, Coe cites to Justice Marshall’s statement
in Ford that it is essential “that the manner of selecting and using the
experts responsible for producing [mental health evidence] be conducive
to the formation of neutral, sound, and professional judgments as to the
prisoner’s ability to comprehend the nature of the penalty.” Ford, 477
U.S. at 417 (Marshall, J., plurality opinion) (emphasis added). At no
other point in his opinion does Justice Marshall set forth what he
considers to be the proper standard for competency. We cannot conclude
that he meant to do so with this one statement. Moreover, even if we were
to agree that Coe must comprehend the nature of the death penalty, we
believe that the Tennessee Supreme Court correctly concluded that Coe
does indeed understand and comprehend the death penalty. The court
pointed out, for example, that Coe has chosen a method of execution and
has refused a sedative because he “think[s] there might be a God, and I’ve
got enough to deal with him, without being drunk on Valium.” Coe v.
State, No. W1999-01313-SC-DPE-PD, 2000 WL 246425, at * 25 (Tenn.
Mar. 6, 2000), cert. denied, -- S. Ct. --, 2000 WL 295230 (Mar. 22, 2000).
at 44. We conclude, however, that the Tennessee trial court
properly followed Justice Powell’s competency standard as
adopted and applied in Van Tran and determined that Coe is
aware of his imminent execution and the reason for it,
showing that Coe has made the requisite connection between
his crime and his punishment.4
3. Burden of Proof
Coe also argues that the Tennessee courts erred in
following Van Tran’s placement of the burden of proof on
Coe to prove his incompetency to be executed by a
preponderance of the evidence rather than placing this burden
on the state of Tennessee. To support his argument, Coe
asserts that “the burden of proof must reflect the allocation of
error under the circumstances” and cites to Addington v.
Texas, 441 U.S. 418 (1979), and Mathews v. Eldridge, 424
U.S. 319 (1976) for support. Memorandum of Law in
Support of Stay at 82. He also states that because his “mental
state fluctuates, it is not proper to require him to bear the
burden of proof.” Id. The Addington decision, however,
dealt with the proper standard for a civil commitment
proceeding not for a competency determination. See 441 U.S.
at 425.

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18 Coe v. Bell No. 00-5419
pleading guilty or for waiving the right to trial is the same as
the competency standard for standing trial. In a concurring
opinion, Justice Kennedy asserted, “[t]he Due Process Clause
does not mandate different standards of competency at
various stages of or for different decisions made during the
criminal proceedings.” Id. at 404 (Kennedy, J., concurring).
It appears from his opinion, however, that Justice Kennedy
was concerned that the same standard be applied from the
time of a defendant’s arraignment through his sentencing. See
id. at 404-05 (Kennedy, J., concurring). Because competency
to be executed involves different interests than competency to
stand trial in the first instance, we do not believe that a state
rigidly must apply the competency-to-stand-trial standard in
this context where it does not make sense in modern practice.
Moreover, the Supreme Court seems to have accepted
Justice Powell’s competency standard as the Ford holding.
See Penry v. Lynaugh, 492 U.S. 302, 333 (1989) (noting that
“under Ford v. Wainwright, someone who is ‘unaware of the
punishment they are about to suffer and why they are to suffer
it’ cannot be executed” (citation omitted)). Therefore, we
conclude that the Van Tran opinion’s adoption of Justice
Powell’s standard, that “only those who are unaware of the
punishment they are about to suffer and the reason they are to
suffer it are entitled to a reprieve,” satisfies due process and
is not an unreasonable interpretation of Supreme Court
precedent. Van Tran, 6 S.W.3d at 266 (adopting the
“cognitive” test).
We note that Coe also challenges the Tennessee trial court’s
application of the Van Tran standard in his case. In its ruling
on Coe’s competency, the trial court stated, “Petitioner
realizes he is facing execution, and that he knows it is because
he has been convicted of murdering a little girl.” Coe v. State,
No. B-73812, slip op. at 27 (Tenn. Crim. Ct. Feb. 2, 2000)
(emphasis added). Coe argues that the trial court
impermissibly relied on Coe’s knowledge that he is to be
executed for his murder conviction rather than Coe’s
comprehension of the sentence and its implications. See
Petition for Writ of Habeas Corpus / Complaint for Relief
No. 00-5419 Coe v. Bell 7
prisoner must follow to challenge his competency to be
executed. See Van Tran v. State, 6 S.W.3d 257, 265 (Tenn.
1999). First, the court adopted Justice Powell’s standard for
competency and held that “under Tennessee law a prisoner is
not competent to be executed if the prisoner lacks the mental
capacity to understand the fact of the impending execution
and the reason for it.” Id. at 266.
Next the court established the procedures to be used in
Tennessee. After the State Attorney General moves the
Tennessee Supreme Court to set an execution date, the
prisoner must raise the issue of competency in his response to
the motion within the ten-day period for response. If such a
motion is made, and the Tennessee Supreme Court sets an
execution date, the prisoner’s competency claim will be
remanded to the trial court where the prisoner was originally
tried and sentenced. Within three days of the entry of the
remand order, the prisoner must file a petition with the trial
court setting forth the factual allegations of incompetence
along with supporting affidavits, records, or other materials
and a list of any mental health professionals who would be
available and willing to testify on the prisoner’s behalf. See
id. at 267-68. The district attorney general must file a
response within three days. Within four days the trial court
then must decide whether the prisoner has made the required
threshold showing of incompetence in order to receive a
hearing as suggested by the opinions of Justice Powell and
Justice Marshall. See id. at 268 (citing Ford, 477 U.S. at 417
(Marshall, J., plurality opinion); 477 U.S. at 426 (Powell, J.,
concurring)). Noting that the Supreme Court did not indicate
what would satisfy the threshold showing, the Tennessee
Supreme Court looked to Ake v. Oklahoma, 470 U.S. 68, 82-
83 (1985), cited favorably in Justice Powell’s concurring
opinion, in which the Court concluded that a defendant must
make a substantial showing of his insanity before due process
requires the state to appoint a defense psychiatrist at its
expense. It also examined its own cases, applying Ake, which
require that before a mental health expert will be appointed to
evaluate a defendant’s competency to stand trial, the
defendant must point to the facts and circumstances of his

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8 Coe v. Bell No. 00-5419
particular case which “warrant a belief that the defendant is
incompetent to stand trial.” Van Tran, 6 S.W.3d at 268.
Accordingly, the Tennessee Supreme Court held that the
burden is on the prisoner to present “affidavits, depositions,
medical reports, or other credible evidence sufficient to
demonstrate that there exists a genuine question regarding
petitioner’s present competency.” Id. at 269. The court also
emphasized that pursuant to the nature of a Ford claim, the
prisoner must submit some evidence from recent mental
evaluations or observations relating to his present
competency. See id.
If the prisoner satisfies this threshold showing for a hearing,
the trial court must appoint “at least one, but no more than
two, mental health professionals from each list submitted by
the respective parties.” Id. The experts then must submit
written reports to the trial court. Within ten days after the
filing of the mental health professionals’ reports, the trial
court is required to hold a hearing to determine competency.
No jury is impaneled. At the hearing, the prisoner has the
burden of proving by a preponderance of the evidence his
incompetency to be executed. See id. at 270-71. Adopting
the more stringent requirements in Justice Marshall’s opinion
in Ford, the Tennessee Supreme Court “emphasize[d] that the
strictures of due process must be observed at the hearing.” Id.
at 271. A “prisoner must be given notice that an evidentiary
hearing will be held” and “must be afforded an opportunity to
be heard and to present evidence relevant to the issue of
competency at an adversarial proceeding at which the prisoner
is entitled to cross-examine the State’s witnesses.” Id. In
order to satisfy Justice Marshall’s determination that a
prisoner should not be barred from presenting relevant
material for the factfinder’s consideration, the court stated
that “the rules of evidence should not be applied to limit the
admissibility of reliable evidence that is relevant to the issue
of the prisoner’s competency.” Id.
After the hearing, the trial court must file an order with
detailed findings of fact and conclusions of law granting or
denying the prisoner’s Ford petition. The Tennessee
No. 00-5419 Coe v. Bell 17
sense in modern practice. First, he noted that criminal
defendants are afforded broader constitutional guarantees than
at common law, including the right to effective assistance of
counsel at trial and on appeal and extensive judicial review
through direct appeal and state and federal collateral review.
“It is thus unlikely indeed that a defendant today could go to
his death with knowledge of undiscovered trial error that
might set him free.” Id. at 420 (Powell, J., concurring). In
addition, Justice Powell observed that “in cases tried at
common law execution often followed fairly quickly after
trial, so that incompetence at the time of execution was linked
as a practical matter with incompetence at the trial itself.” Id.
at 420-21 (Powell, J., concurring). Justice Powell then
concluded that “[t]he more general concern of the common
law – that executions of the insane are simply cruel – retains
its vitality.” Id. at 421 (Powell, J., concurring). Furthermore,
“one of the death penalty’s critical justifications, its
retributive force, depends on the defendant’s awareness of the
penalty’s existence and purpose.” Id. (Powell, J., concurring).
In order to achieve this justification, Powell instructed that
prisoners should be considered insane for the purpose of
execution if they “are unaware of the punishment they are
about to suffer and why they are to suffer it.” Id. at 422
(Powell, J., concurring).
We agree that a prisoner’s ability to assist in his defense is
not a necessary element to a determination of competency to
be executed. Moreover, Coe has not shown how a prisoner
could assist his counsel, a mental health professional, or the
trial judge in deciding on his competency when the prisoner’s
very competency is the matter at issue.
In arguing that the common law standard governing the
modern standard for competency to stand trial, which includes
the “assistance” inquiry, also applies in a competency-to-be-
executed proceeding, Coe asserts that the Supreme Court has
held that the standard for competency does not change
depending on the stage of the criminal proceedings. He cites
to Godinez v. Moran, 509 U.S. 389, 398 (1993), in which the
Supreme Court concluded that the competency standard for

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16 Coe v. Bell No. 00-5419
since the previous determination of competency was
made and the showing is sufficient to raise a substantial
question about the prisoner’s competency to be executed.
Van Tran, 6 S.W.3d at 272. This state procedure adequately
addresses the situation in which a prisoner’s competency
changes after the Tennessee state courts make their
competency determination by requiring the prisoner to
establish a substantial change in his competency. In light of
the fact that two state courts have already made a
determination of Coe’s competency to be executed, we
conclude that Tennessee’s requirement that he make a
threshold showing of a “substantial change” comports with
notions of basic fairness.
In sum, because the procedures followed by the Tennessee
courts in this case satisfy the requirements of due process, we
cannot conclude that they represent an unreasonable
application of the Ford opinion.
2. Standard of Competency
Coe also asserts that the Tennessee courts applied an
improper standard of competency in deciding his competency
to be executed. As discussed above in Part II.A.2 supra, in
Van Tran the Tennessee Supreme Court adopted the
competency standard advocated by Justice Powell’s
concurring opinion in Ford. In determining the proper
standard, Justice Powell looked for guidance in the common
law tradition and in the modern practice of prohibiting the
execution of the insane. He noted that there were differing
justifications at common law for not executing insane
criminals. One justification, also applied in the context of
competency to stand trial, was that a prisoner must be
competent to be executed so that he may assist in his defense.
See Ford, 477 U.S. at 419 (Powell, J., concurring) (“‘if after
judgment he become of non sane memory, his execution shall
be spared; for were he of sound memory he might allege
somewhat in stay of judgment or execution’” (quoting 1 M.
HALE , P LEAS OF THE C ROWN 35 (1736)). Justice Powell,
however, concluded that this justification does not make
No. 00-5419 Coe v. Bell 9
Supreme Court concluded that a prisoner’s competency to be
executed is a question of fact and therefore the trial court
must in its findings of fact “set out any undisputed facts,
explain its assessment of the credibility of the various expert
witnesses and their conflicting opinions, and include findings
as to the prisoner’s behavior during the hearing.” Id. The
Tennessee Supreme Court automatically reviews the trial
court’s competency determination, which as an issue of fact
is presumed correct “unless the evidence in the record
preponderates against the finding.” Id. at 272. If a prisoner
is found competent to be executed, he will not be allowed to
bring a subsequent Ford claim unless he provides to the
Tennessee Supreme Court “an affidavit from a mental health
professional showing that there has been a substantial change
in the prisoner’s mental health since the previous
determination of competency was made and the showing is
sufficient to raise a substantial question about the prisoner’s
competency to be executed.” Id.
In setting forth the procedures for handling a Ford claim,
the Tennessee Supreme Court properly followed the narrow
concurring opinion of Justice Powell in establishing the
standard for competency to be executed and by placing the
burden of proof on the prisoner to make a threshold showing
of incompetence for a hearing. The court then chose to
implement the views in the opinion of Justice Marshall,
which argued for more procedural protections than Justice
Powell’s opinion, to mandate an adversarial hearing in which
the prisoner is able to present all relevant material regarding
his competency and to cross-examine the state’s expert
witnesses. Therefore, the procedures identified in Van Tran
are generally adequate to protect a prisoner’s right to a fair
hearing of his Ford competency claim as required by due
process. To the extent that Coe challenges specific aspects of
the Van Tran procedures, we discuss them below in Part II.C.
B. Habeas Review
Coe filed his habeas application challenging the Tennessee
courts’ determination of his competency under Ford on

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10 Coe v. Bell No. 00-5419
March 16, 2000, and therefore the amendments to 28 U.S.C.
§ 2254 in the Antiterrorism and Effective Death Penalty Act
of 1996 (“AEDPA”) govern this court’s standard of review.
See Harpster v. Ohio, 128 F.3d 322, 326 (6th Cir. 1997), cert.
denied, 522 U.S. 1112 (1998). As amended, § 2254(d) states:
An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State
court shall not be granted with respect to any claim that
was adjudicated on the merits in State court proceedings
unless the adjudication of the claim –
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme
Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.
28 U.S.C. § 2254(d). In addition, “a determination of a
factual issue made by a State court shall be presumed to be
correct” and “[t]he applicant shall have the burden of
rebutting the presumption of correctness by clear and
convincing evidence.” 28 U.S.C. § 2254(e)(1).
Coe contends that AEDPA does not apply to his claims,
because applying AEDPA would impose impermissible
retroactive effects and thus violate this court’s decision in In
re Hanserd, 123 F.3d 922 (6th Cir. 1997). More specifically,
in response to the district court’s conclusion that Hanserd
only applies to AEDPA’s bar on second and successive
applications, he asserts:
Indeed, Hanserd makes clear that any impermissible
retroactive effect of the AEDPA, if not specifically
authorized by Congress, cannot apply to bar relief. It
does not seem plausible to conclude that Hanserd allows
the application of pre-AEDPA to allow consideration of
a claim, only to have the claim denied under the new law.
No. 00-5419 Coe v. Bell 15
the procedural protections identified in the opinions of Justice
Marshall and Justice Powell in a meaningful way in the
moments before execution; a state could not make a sound
decision in accordance with due process regarding a
prisoner’s competency to be executed at this time.
Nevertheless, a state must make its determination when
execution is imminent. See Stewart v. Martinez-Villareal,
523 U.S. 637, 644-45 (1998). Whether the competency
determination is made in the week or the month before the
prisoner’s scheduled execution, the state is entitled to exercise
discretion in creating its own procedures “[a]s long as basic
fairness is observed.” Ford, 477 U.S. at 427 (Powell, J.,
concurring).
In the present case, on December 15, 1999, the Tennessee
Supreme Court remanded the issue of Coe’s competency to
the Tennessee trial court after setting Coe’s execution for
March 23, 2000. The trial court held an evidentiary hearing
on Coe’s competency in late January 2000 and issued its
decision on February 2, 2000. The Tennessee Supreme Court
affirmed the trial court’s decision on March 6, 2000. We
conclude that the Tennessee courts’ determination was made
while Coe’s execution, less than two months away, was
imminent. The Tennessee courts’ use of the phrase “present
competency” did not constitute a misunderstanding of the
proper issue under Ford of whether Coe is competent to be
executed at his imminently scheduled execution date.
We acknowledge Coe’s argument that, due to the special
nature of his claimed DID affliction, he will degenerate as the
execution looms and his condition will significantly worsen.
The Tennessee Supreme Court expressly set forth a procedure
in Van Tran to deal with this type of situation. The court
stated,
If a prisoner is found to be competent, subsequent Ford
claims will be disallowed unless the prisoner, by way of
motion for stay, provides this Court with an affidavit
from a mental health professional showing that there has
been a substantial change in the prisoner’s mental health

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14 Coe v. Bell No. 00-5419
or so arbitrary, as to indicate that it is outside the universe of
plausible, credible outcomes.” Id. at 362 (quotations
omitted).
C. Coe’s Habeas Application
1. Entitlement to Relief Under Ford
Coe argues that the Tennessee courts erred in deciding his
competency to be executed because they evaluated his present
competency rather than determining his future competency at
the moment of execution. The thrust of Coe’s argument is
that, he claims, he suffers from Dissociative Identity Disorder
(“DID”), which causes him to dissociate under stress, and that
he will thus dissociate as his execution grows near and will
not have the requisite competency at the time of his
execution.
In Ford, the Supreme Court held that the Eighth
Amendment prohibits the execution of a prisoner who is
insane. See 477 U.S. at 409-10. If taken to its logical
extreme, as suggested by Coe, a state would be obligated to
determine whether a prisoner is competent to be executed at
the exact moment of execution in order to comply with Ford.
Justice O’Connor acknowledged that this problem is due to
the nature of a competency-to-be-executed claim in her
opinion in Ford:
By definition, [a Ford claim] can never be conclusively
and finally determined: Regardless of the number of prior
adjudications of the issue, until the very moment of
execution the prisoner can claim that he has become
insane sometime after the previous determination to the
contrary.
Id. at 429 (O’Connor, J., concurring in the result in part and
dissenting in part).
We do not believe that the Supreme Court in Ford meant to
require a state to determine a prisoner’s competency at the
exact time of his execution. It would be impossible to follow
No. 00-5419 Coe v. Bell 11
The whole point of retroactivity analysis is that Robert
Coe has been unfairly trapped by a change in the law. If
he knew that the AEDPA would cut off his right to relief
on a Ford claim, he certainly would have raised the claim
in his first petition, which clearly would have been
governed by the pre-AEDPA law. Lindh v. Murphy, 521
U.S. 320 (1997). It is for this reason that the AEDPA
does not apply, because the retroactive effect which has
occurred is the new effect of Robert Coe’s filing of
claims in his first petition – not only the cutting off of his
right to file the claim, but the prospect of being denied
relief under the new standards of the AEDPA.
Petitioner’s Memorandum in Support of Motion for Stay at
70-71.
In Hanserd, we concluded that where AEDPA’s
gatekeeping provision prohibiting second or successive
habeas applications prevents a prisoner from bringing a Bailey
claim under § 2255 but where the claim could have been
raised in a subsequent application under the pre-AEDPA law,
AEDPA’s gatekeeping provision has an impermissible
retroactive effect and is not applicable to the Bailey claim.
See Hanserd, 123 F.3d at 929-34. This court subsequently
limited its holding in Hanserd to the particular claim in that
case and concluded that “while Hanserd is not strictly limited
to claims arising under Bailey, apart from that class of claims,
there will be few other cases ‘in which the difference matters’
and on which the gatekeeping requirements of AEDPA will
thus have an impermissibly retroactive effect.” In re
Sonshine, 132 F.3d 1133, 1135 (6th Cir. 1997) (quoting
Hanserd, 123 F.3d at 934 n.21). It is clear that the
circumstances presented in this appeal differ significantly
from those presented in Hanserd. Coe raises a Ford
competency claim rather than a Bailey claim, and this court
previously has determined that Coe’s application is not barred
by AEDPA’s prohibition on second or successive habeas
applications because Coe’s Ford competency claim was not
ripe until his execution was imminent and thus was not ripe
when his initial habeas application was filed. Thus AEDPA’s

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12 Coe v. Bell No. 00-5419
2Under the pre-AEDPA analysis, this court reviews a district court’s
refusal to grant a writ of habeas corpus de novo, but reviews the district
court’s factual findings for clear error. See Combs v. Coyle, -- F.3d --,
2000 WL 201970, at *6 (6th Cir. Feb. 23, 2000). A state court’s factual
findings “are entitled to complete deference if supported by the evidence.”
Id. Under this presumption of correctness, a petitioner has the burden of
“establish[ing] by convincing evidence that the factual determination by
the state court is erroneous.” McQueen v. Scroggy, 99 F.3d 1302, 1310
(6th Cir. 1996), cert. denied, 520 U.S. 1257 (1997). This “presumption
only applies to basic, primary facts, and not to mixed questions of law and
fact” and “also applies to implicit findings of fact, logically deduced
because of the trial court’s ability to adjudge the witnesses’ demeanor and
credibility.” Id.
gatekeeping provision does not have an impermissible
retroactive effect on his Ford habeas claim. In light of our
Sonshine decision, we cannot accept Coe’s interpretation of
the Hanserd decision as holding that AEDPA has an
impermissible retroactive effect whenever AEDPA’s standard
of review, applied to an application filed after AEDPA’s
effective date, results in a decision that would have been
different under the pre-AEDPA standard of review.
Nevertheless, we note that even if we were to apply the pre-
AEDPA standard of review to Coe’s habeas application, our
determination would not be different.2
In reviewing Coe’s challenge to the Tennessee courts’
determination of his competency to be executed, we are faced
with the question of whether competency is a question of fact
or a mixed question of fact and law. In Van Tran, the
Tennessee Supreme Court concluded that the determination
of competency to be executed is a question of fact. See 6
S.W.3d at 271. Although this court has never examined the
nature of this type of competency determination, we have
treated a defendant’s competency to plead guilty and to be
recommitted as a mixed question of fact and law. See
Cremeans v. Chapleau, 62 F.3d 167, 169 (6th Cir. 1995),
cert. denied, 516 U.S. 1096 (1996); Levine v. Torvik, 986
F.2d 1506, 1514 (6th Cir.), cert. denied, 509 U.S. 907 (1993).
If competency to be executed is a question of fact, under
§ 2254(e)(1) the state courts’ competency determination is
No. 00-5419 Coe v. Bell 13
3If we were to view this appeal as presenting a factual issue only, we
would conclude, both under pre-AEDPA and post-AEDPA law, that the
district court’s denial of habeas relief was appropriate. Coe has not
shown that the state courts’ determination of his competency was clearly
erroneous or unreasonable.
entitled to a presumption of correctness that may be rebutted
only by clear and convincing evidence. In addition, for
questions of fact a federal court may grant habeas relief “only
if the state court’s decision ‘was based on an unreasonable
determination of the facts in light of the evidence presented in
the State court proceeding.’” Harpster, 128 F.3d at 326
(quoting § 2254(d)(2)). If competency is a mixed question of
fact and law, however, then § 2254(d)(1) will apply and we
must determine whether the state courts’ decision “was
contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme
Court of the United States.” 28 U.S.C. § 2254(d)(1); see
Harpster, 128 F.3d at 326-27.
For purposes of our review, we will apply the standard of
review that is most favorable to Coe, without deciding if that
standard of review is mandatory. Because the state courts’
decision is entitled to a presumption of correctness under the
standard of review for questions of fact, we will apply the
more lenient standard for mixed questions of fact and law.3
Where a mixed question is fact-intensive and the Supreme
Court has not established a clear “rule” requiring a certain
result, this court has concluded that the “unreasonable
application” prong of § 2254(d)(1) applies. See Nevers v.
Killinger, 169 F.3d 352, 360 (6th Cir.), cert. denied, 119 S.
Ct. 2340 (1999). Because competency to be executed is a
fact-intensive inquiry and because the Supreme Court has not
established a clear rule on what particular circumstances will
constitute incompetence to be executed, we will apply the
“unreasonable application” prong in this case. Under this test,
a state court’s decision will be considered an unreasonable
application of clearly established Supreme Court precedent if
it is not “debatable among reasonable jurists” or is “so
offensive to existing precedent, so devoid of record support,

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