United States v. 2006-06-08 | 06-99004 | DAWSON VMAHONEY | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 DAVID THOMAS DAWSON, No. 06-99004
Petitioner-Appellant, D.C. No.
v. CV-89-00246-JDS  Montana (Billings)MICHAEL MAHONEY, Warden,
Respondent-Appellee. ORDER

Filed June 8, 2006
Before: William C. Canby, Jr., Thomas G. Nelson, and
Andrew J. Kleinfeld, Circuit Judges.
ORDER
Montana state prisoner David Thomas Dawson was con-
victed and sentenced to death in 1987 for three counts of
deliberate homicide. In 2004, Mr. Dawson moved to dis-
charge his federal habeas counsel, to waive further habeas
proceedings, and for the appointment of an independent
expert to determine his competency. The federal district court
appointed two independent mental health experts to evaluate
Mr. Dawson and ordered the parties to provide all relevant
materials to those experts. After considering the experts’
reports, the federal district court found that Mr. Dawson is
competent to waive further proceedings and has made that
decision knowingly, intelligently, and voluntarily. On Decem-
ber 12, 2005, the federal district court granted Mr. Dawson’s
motion to discharge his habeas counsel, Kathryn Ross and
William Hooks, and granted his motion to waive further
habeas proceedings. The federal district court later denied
habeas counsel’s motion for a certificate of appealability
(COA).
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On December 15, 2005, the Montana district court con-
ducted a competency hearing at which Mr. Dawson appeared
by video. After an extensive colloquy with Mr. Dawson, the
Montana district court found that Mr. Dawson is competent
and has a made a knowing, intelligent, and voluntary decision
to waive further habeas proceedings. On April 11, 2006, the
Montana Supreme Court granted Mr. Dawson’s motion to dis-
miss counsel Ross and Hooks and granted Mr. Dawson’s
motion to dismiss all appeals. On May 15, 2006, the Montana
district court set an execution date for August 11, 2006.1
On December 27, 2005, habeas counsel filed a notice of
appeal in federal district court. In this Court, habeas counsel
filed “Habeas Counsels’ Motion For Certificate of Appeala-
bility” (COA) and “Petitioner’s, Through Habeas Counsel,
Motion For Stay of Execution.” Mr. Dawson opposes “former
counsel’s” COA and stay motions, as does Respondent.
An appeal may not be taken from the final order in a habeas
corpus proceeding unless a COA is granted. See 28 U.S.C.
§ 2253(c)(1); see also 28 U.S.C. § 2253(c)(2) (a COA may
issue only if the applicant has made a substantial showing of
the denial of a constitutional right); Slack v. McDaniel, 529
U.S. 473, 484 (2000) (a substantial showing of the denial of
a constitutional right includes a showing that reasonable
jurists could debate whether the petition should have been
resolved in a different manner or that the issues presented
were adequate to deserve encouragement to proceed further),
citing Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983).
Both the federal district court and the Montana state courts
found Mr. Dawson competent and granted his motions to dis-
charge habeas counsel Ross and Hooks. Habeas counsel do
1We take judicial notice of the Montana state court orders and proceed-
ings. See Fed. R. Evid. 201(b),(c); see also United States ex rel. Robinson
Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir.
1992).
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not contend that Mr. Dawson has a mental disorder or mental
defect, nor do they dispute that Mr. Dawson has no history of
mental illness.2 Counsel, relying on Comer v. Stewart, 215
F.3d 910 (9th Cir. 2000), argue instead that Mr. Dawson’s
decision to waive further proceedings is involuntary due to
the combination of the harsh conditions on Montana’s death
row and his reaction to the suicides of two other inmates on
death row. See Comer, 215 F.3d at 917 (in addition to compe-
tency, the district court must also determine the separate ques-
tion of whether petitioner’s decision is voluntary); see id. at
918 (“The issue is whether Mr. Comer’s conditions of con-
finement constitute punishment so harsh that he has been
forced to abandon a natural desire to live”). Mr. Dawson,
however, in state and federal court has expressly disavowed
these explanations for his decision to waive further habeas
proceedings. See, e.g., December 15, 2005 Montana district
court RT at 19-25. Because there is no suggestion that Mr.
Dawson is not competent, the state court did not err in accept-
ing Mr. Dawson’s testimony that his decision to waive further
proceedings is not based on intolerable prison conditions nor
on the suicides of two inmates on death row.
Because there was not a shred of evidence proffered in fed-
eral district court or in the Montana state courts (or in this
Court) that Mr. Dawson is not competent to discharge his
counsel, no reasonable jurist would debate that the district
court did not err when it granted Mr. Dawson’s motions to
discharge his habeas counsel and to waive further proceed-
ings. See Demosthenes v. Baal, 495 U.S. 731, 736 (1990) (“In
the absence of any ‘meaningful evidence’ of incompetency,
. . . the District Court correctly denied petitioners’ motion for
2See Rees v. Peyton, 384 U.S. 312, 314 (1966) (the test for competency
to waive further proceedings is “whether [petitioner] has capacity to
appreciate his position and make a rational choice with respect to continu-
ing or abandoning further litigation or on the other hand whether he is suf-
fering from a mental disease, disorder, or defect which may substantially
affect his capacity in the premises”).
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a further evidentiary hearing on the question of Baal’s compe-
tence to waive his right to proceed”); see also Dennis ex rel.
Butko v. Budge, 378 F.3d 880, 891 (9th Cir. 2004); Wells By
and Through Kehne v. Arave, 18 F.3d 656, 658 (9th Cir.
1994).
Because Mr. Dawson has competently discharged his
habeas counsel, they lack standing to appeal on Mr. Dawson’s
behalf. We accordingly dismiss habeas counsel’s motions for
a COA and for a stay of execution. See Baal, 495 U.S. at 737
(stay improper absent substantial grounds upon which relief
might be granted), citing Barefoot, 463 U.S. at 895.
The Court has also received motions for clarification of sta-
tus and to submit further briefing from Assistant Federal
Defender Donahoe, who was appointed as special counsel in
the district court to assist Mr. Dawson. Mr. Dawson, however,
has informed this Court that Mr. Donahoe no longer repre-
sents Mr. Dawson. Accordingly, we dismiss Mr. Donahoe’s
motions for lack of standing.
Any motion for reconsideration must be filed by June 19,
2006. Any response is due June 26, 2006. Any reply is due
June 30, 2006.
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