FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

APRIL 2, 2002

THOMAS K. KAHN

CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

Nos. 01-13969

________________________

D.C. Docket No. 98-02967-CV-DMM

RIGOBERTO SANCHEZ-VELASCO,

 Petitioner-Appellant,

versus

SECRETARY OF THE DEPARTMENT 

OF CORRECTIONS,

 Respondent-Appellee.

__________________________

Appeal from the United States District Court for the

Southern District of Florida

_________________________

(April 2, 2002)

Before CARNES, HULL and WILSON, Circuit Judges.
2

CARNES, Circuit Judge:

Rigoberto Sanchez-Velasco is a Florida death row inmate. He is under

sentence of death for the brutal rape and murder of an eleven year old girl who had

been left in his care by her mother. While on death row for that crime, he has

murdered two inmates. As he explained to the district court in this proceeding: “I

hate people, I don’t like them, I want to kill people. You understand?” When

asked by an interviewer how he made the shank he used to kill his two fellow

inmates he declined to tell, explaining that he plans to make more shanks to use

against other inmates in the future. Professing that he will kill or attempt to kill

again in the future, Sanchez-Velasco insists that he wants his death sentence to be

carried out.

Todd Scher and the Capital Collateral Regional Counsel (CCRC) of Florida,

however, do not want Sanchez-Velasco’s death sentence to be carried out. CCRC

is an entity created by the Florida Legislature to provide post-conviction

representation to indigent death row inmates in that state, see Fla. Stat. §§ 27.701 -

27.708 (1990), and Todd Scher is the litigation director of that organization’s

South Florida office. In order to prevent the death sentence from being carried out,

Scher filed a 28 U.S.C. § 2254 petition in the district court without SanchezVelasco’s consent and without even telling him he was going to do it. In fact,
3

neither Scher nor anyone else from CCRC made any attempt to speak with

Sanchez-Velasco about his case until after he had learned of the petition they had

filed in his name and had sent the court a pro se motion to dismiss it. The district

court granted Scher limited standing to proceed, appointed an expert to examine

Sanchez-Velasco, and conducted an evidentiary hearing after which it concluded

that he was mentally competent to decide whether such a petition should be filed. 

As a result, the district court granted Sanchez-Velasco’s motion to dismiss the

petition that Scher had filed without his permission. This is Scher’s appeal from

that decision. 

Although we find no fault with the district court’s conclusion that SanchezVelasco is mentally competent to decide his own fate, we disagree with the court’s

ruling that Scher and CCRC, who are strangers to Sanchez-Velasco, have limited

standing to challenge his mental competency. We also disagree with the district

court’s decision to appoint an expert to examine Sanchez-Velasco again and to

conduct an evidentiary hearing on his mental competency, after the state courts had

already decided the issue. Those errors, however, did not harm Scher’s side of the

case but instead gave him more than he was entitled to receive. We affirm the

district court’s judgment dismissing the habeas petition that Scher filed.

I. PROCEDURAL HISTORY
4

A. The Trial and Sentence Proceedings

In August 1988, Sanchez-Velasco was tried and convicted for the murder,

sexual battery, and robbery of young Kathy Encenarro in December of 1986. 

Before trial, Sanchez-Velasco’s counsel requested that he be evaluated both for

competency to stand trial and for sanity at the time of the offense. The trial court

appointed six mental health experts – Drs. Riechenberg, Marina, Haber, Berglass,

Mutter, and Jaslow – to examine him; he was examined by each of them; and none

of them found him either insane at the time of the crime or incompetent to stand

trial. During the trial, after Sanchez-Velasco had interrupted the testimony of a

government witness with an outburst, his counsel asked that he be evaluated again

for competency to stand trial. He was examined by two new doctors – Drs.

Castiello and Jimenez – both of whom found him to be competent. At the

conclusion of the guilt phase of the trial, the jury found Sanchez-Velasco guilty of

murder, sexual battery, and theft. Sanchez-Velasco v. State, 570 So. 2d 908, 912

(Fla. 1990) (Sanchez-Velasco I).

 At the penalty phase of the trial, the defense presented the testimony of Dr.

Haber, who had examined Sanchez-Velasco before trial, and who testified that he

had an emotional disturbance but was legally sane. Sanchez-Velasco v. State, 702

So. 2d 224, 225-26 (Fla. 1997) (Sanchez-Velasco II). Sanchez-Velasco himself
1

Later, during Sanchez-Velasco’s post-conviction proceedings, Dr. Marina would reverse

her opinion and say that Sanchez-Velasco is incompetent, not on the basis of another

examination, but because of reading two reports by other experts who reached that conclusion. 

See footnotes 7 and 12 below. 

5

also made a statement to the jury, in which he denied that he was mentally ill,

emotionally disturbed, or unable to appreciate the criminality of his conduct. 

Sanchez-Velasco I, 570 So. 2d at 912. At the conclusion of the penalty phase, the

jury recommended the death penalty by an eight to four vote. At the sentence

proceeding that followed before the judge the defense, seeking again to establish

that Sanchez-Velasco’s mental condition should serve as a mitigating

circumstance, presented another psychiatrist. This one, Dr. Marina, who had

examined him before trial, testified that Sanchez-Velasco was mentally competent

but that he might be suffering from some sort of mental disturbance. SanchezVelasco II, 702 So. 2d 224 at 226.1 Ultimately, the court rejected the opinions the

two defense mental health experts had given during the penalty phase of the trial,

and concluded that Sanchez-Velasco, in addition to being undisputably competent,

had no extreme mental or emotional condition that might mitigate against a death

sentence, and it imposed one. Sanchez-Velasco I, 570 So. 2d at 910-13. 

Counting them up, from the pretrial through the sentencing stage SanchezVelasco was examined for competency by eight different experts, and each one
6

concluded he was mentally competent. Sanchez-Velasco II, 702 So. 2d at 226. 

There was no disagreement about that. 

B. The State Post-Conviction Proceedings

Sanchez-Velasco’s conviction and death sentence were affirmed on direct

appeal in 1990. Sanchez-Velasco I, 570 So. 2d at 916. In May of 1993, lawyers

representing him filed a motion pursuant to Florida Rule of Criminal Procedure

3.850 seeking to have his conviction and death sentence overturned. CCRC, which

generally handles the state post-conviction representation of inmates sentenced to

death in Florida, could not represent Sanchez-Velasco because of a conflict of

interest stemming from a CCRC attorney’s representation of a client in a case in

which Sanchez-Velasco was a witness. As a result, Sanchez-Velasco was

represented by lawyers from the Volunteer Lawyers Resource Center, and by

Michael Bowen, an attorney who handled the case pro bono. (The lawyers from

the VLRC eventually withdrew from their representation of Sanchez-Velasco in

the post-conviction proceeding, leaving just Mr. Bowen as his attorney.) In any

event, the Rule 3.850 motion was filed, and initially litigated, the old fashioned

way – with Sanchez-Velasco’s knowledge and consent.

Notwithstanding his earlier consent to the filing of the Rule 3.850 motion, in

March and April of 1994 Sanchez-Velasco wrote two letters to the Governor of
2

Those three experts never did examine Sanchez-Velasco, because he withdrew his effort

to waive the post-conviction proceedings before they had an opportunity to evaluate him.

7

Florida asking that he be permitted to waive his right to challenge his conviction

and sentence in the ongoing post-conviction proceedings. The Governor

forwarded those letters to the state trial court, which appointed three experts to

examine Sanchez-Velasco and determine if he was mentally competent to waive

the post-conviction proceedings.2 Sanchez-Velasco’s brother then filed a next

friend petition with the Florida Supreme Court to stay all proceedings that would

expedite the execution. That petition was denied without elaboration. Sanchez v.

Wilson, 639 So. 2d 980 (Fla. 1994). In May of 1994, Sanchez-Velasco wrote a

letter to the state trial court withdrawing his request to waive his right to state postconviction proceedings, but he later renewed his waiver request in a letter to the

Governor dated June 20, 1995. In that letter, Sanchez-Velasco explained that he

had withdrawn his initial waiver request because his lawyers had surrounded him

with family who persuaded him not to drop his post-conviction proceedings. 

In October 1995, the state trial court held a colloquy with Sanchez-Velasco

about his request to forego any further attack on his conviction and sentence. 

When the court asked Sanchez-Velasco whether he wanted to waive his postconviction proceedings, he demanded “the right to explain himself” before he
8

would answer that question. The court told Sanchez-Velasco that he would have

an opportunity to explain but that he must first answer the question. When

Sanchez-Velasco repeatedly refused to answer before being allowed to explain, the

trial court concluded Sanchez-Velasco did not sincerely want to waive his state

post-conviction proceedings and therefore allowed the Rule 3.850 proceeding to go

forward. Eventually, the court set an evidentiary hearing on two of the claims

raised in the Rule 3.850 motion. 

One of those two claims for which the evidentiary hearing was scheduled

asserted that Sanchez-Velasco had been incompetent to stand trial and had been

erroneously determined to be competent because his evaluating psychologists and

psychiatrists had lacked information about his background and medical history. In

support of that claim, Sanchez-Velasco’s lawyers planned to introduce testimony

from two experts– Drs. Whyte and Herrera–who had at Sanchez-Velasco’s

lawyers’ request each evaluated Sanchez-Velasco twice, first in 1993 and again in

1994, and had concluded that he suffered from significant psychological disorders

that rendered him mentally incompetent. Sanchez-Velasco II, 702 So. 2d at 226. 

Copies of their 1993 reports had been attached to Sanchez-Velasco’s Rule 3.850

motion, and copies of their 1994 reports had been attached to the next-friend
3

In 1993, Drs. Whyte and Herrera’s reports were shown to Dr. Marina, one of the doctors

who had examined Sanchez-Velasco for competency prior to his trial and who had testified for

the defense during the penalty phase of the trial. On the basis of those reports and information

about Sanchez-Velasco’s background provided to her by his lawyers, but without having reexamined him, Dr. Marina wrote a letter in which she reversed her earlier opinion and said

Sanchez-Velasco was incompetent. A copy of this letter was before the state trial court during

the Rule 3.850 proceedings. Later, in 1994, when Sanchez-Velasco’s lawyers were compiling

expert opinions in support of Sanchez-Velasco’s brother’s petition to proceed as SanchezVelasco’s next friend, Dr. Marina wrote another letter confirming her changed opinion, which

was attached to the next-friend petition. 

9

petition Sanchez-Velasco’s brother had filed that year in the Florida Supreme

Court.3

On October 24, 1996, at the beginning of the evidentiary hearing, and before

any evidence was presented, Sanchez-Velasco moved to discharge his counsel, Mr.

Bowen, and again asked to be allowed to waive the post-conviction proceedings. 

The state trial court observed that Sanchez-Velasco “appears very intelligent” and

“appears to be very competent” but ordered a competency evaluation out of an

abundance of caution. Sanchez-Velasco II, 702 So. 2d at 226. The next day,

Sanchez-Velasco was evaluated by Dr. Sonia Ruiz, a clinical psychologist. She

concluded that he was mentally competent to participate in legal proceedings,

consult with his lawyer, and understand the consequences of his decisions. Id. at

226 - 27. She further found that he did not suffer from any major mental illness or

defect. Id. Dr. Ruiz was the twelfth expert who had examined Sanchez-Velasco
4

In addition to the eight experts whose examinations and conclusions have already been

described in this opinion and Dr. Ruiz, Dr. Richard Greer also examined Sanchez-Velasco in

connection with his trial for murdering two of his fellow inmates while he was death row and

found him competent to stand trial or plead guilty. That murder and Dr. Greer’s examination

occurred before the state post-conviction proceedings were completed in this case. SanchezVelasco II, 702 So.2d at 226. 

10

for mental competency for one purpose or another while his case was in the state

courts, and she was the tenth one to find him to be competent. Id. at 227-29.4

 After receiving Dr. Ruiz’s report, the state trial court held a hearing on

October 25, 1996, at which it conducted a detailed Faretta v. California, 422 U.S.

806, 95 S.Ct. 2525 (1975), type of inquiry to determine whether Sanchez-Velasco

was competent to waive the post-conviction attack on his conviction and sentence.

Sanchez-Velasco II, 702 So.2d at 227. It did so, because that is the procedure the

Florida Supreme Court has mandated in cases where death row inmates seek to

drop state post-conviction proceedings. See Durocher v. Singletary, 623 So. 2d

482, 485 (Fla. 1993). During its inquiry, the court asked Sanchez-Velasco if he

understood that: (1) by waiving his claims he would lose all right to future appeals

of his conviction and sentence; (2) if he prevailed on his claims he would receive a

new sentencing hearing; and (3) once his claims were waived he would not have

the right to reinstate them in the future. Sanchez-Velasco confirmed that he

understood each of those propositions, and when the court asked him again if he

wished to withdraw his appeal, he stated that he did. 
5

CCRC’s predecessor, the Capital Collateral Representative, had been prevented from

representing Sanchez-Velasco in the state court proceedings because of its representation of

another criminal defendant, in whose case Sanchez-Velasco was a witness. That is why SanchezVelasco was represented in those state proceedings by volunteer counsel from the Volunteer

Lawyers Resource Center and Michael Bowen. 

11

On October 31, 1996, the state trial court entered an order finding that

Sanchez-Velasco was competent to discharge his counsel and dismiss the Rule

3.850 motion, and it dismissed the proceedings. Sanchez-Velasco’s former lawyer,

Bowen, appealed that order, but the Florida Supreme Court affirmed it in

December 1997. Sanchez-Velasco II, 702 So. 2d at 228. In doing so, the Florida

Supreme Court concluded that the procedures the trial court had used to determine

whether Sanchez-Velasco was competent to dismiss his collateral counsel and

post-conviction proceedings complied with the requirements it had set forth in

Durocher v. Singletary, 623 So. 2d 482 (Fla. 1993). The United States Supreme

Court denied certiorari review in October of 1998. See 525 U.S. 811, 119 S.Ct. 42.

C. The Federal Habeas Petition

In December 1998 Todd Scher, in his position as an attorney with CCRC,

filed a petition for a writ of habeas corpus in federal district court. The conflict of

interest that had previously prevented CCRC or its attorneys from representing

Sanchez-Velasco had been resolved.5

 However, there was another problem with

the filing of the petition. The problem was and is that neither Scher nor anyone else
12

from CCRC had Sanchez-Velasco’s permission to file the petition on his behalf or

to represent him in this or any other proceeding. They had not even bothered to talk

with Sanchez-Velasco about the matter before they purported to act on his behalf. 

He did not know they were going to do it. He did not know them at all. They were

complete strangers to him. 

Attempting to explain his actions, Scher’s brief to this Court says that he

“had spoken with several people, including attorneys, who had contact with

[Sanchez-Velasco] and who all indicated that [Sanchez-Velasco] wished to

challenge his conviction and sentence in federal court.” Apparently, that is not

entirely true, because when we pressed Scher at oral argument he admitted that the

conversations he claims to have had with those people had merely given him no

reason to believe that Sanchez-Velasco did not want him to file the petition. This

was also his position before the district court, where he stated that: “I did consult

with Mr. Sanchez-Velasco’s previous attorneys, I also consulted with people who

have seen and constantly visited Mr. Sanchez-Velasco, and had no reason to

believe . . . that he would not agree to have this petition filed on his behalf.” Scher

never explained to either the district court or to us why he thought that SanchezVelasco would have gone to such lengths to have his state post-conviction
6

In explaining why it was allowing Scher to challenge Sanchez-Velasco’s mental

competency, the district court referred to the fact that “the petition was filed in December 1998

and Petitioner did not move to withdraw the petition until March 2000.” Arguably implicit in

that statement is a finding that Scher mailed and Sanchez-Velasco received the petition soon

after it was filed. Whether that happened does not, in any event, affect our decision of any of the

issues in this case.

13

proceeding dismissed so his sentence could be carried out and then want a federal

habeas petition to be filed in an attempt to overturn that sentence. 

While admitting that he did not even attempt to talk with Sanchez-Velasco

before filing the federal habeas petition, Scher claims he did mail a copy of the

petition to Sanchez-Velasco after it was filed. Sanchez-Velasco denies that he ever

received a copy of the petition. It is not clear that the district court ever resolved

this factual dispute, but we will assume for present purposes that Scher did mail

and Sanchez-Velasco did receive a copy of the petition shortly after it was filed.6

The habeas petition Scher filed in Sanchez-Velasco’s name raised a number

of claims, including one that Sanchez-Velasco had been incompetent to waive his

state post-conviction appeals. No new affidavits or reports were submitted in

support of that claim. In its initial response to the habeas petition, the State of

Florida contested Scher’s standing to file the petition, but the district court

did not rule on that issue immediately. Instead, the court stayed any consideration

of that issue and of the petition itself until the Supreme Court’s released its

decision in Williams v. Taylor, 529 U.S. 420, 120 S.Ct. 1479 (2000), concerning
14

the scope of habeas review under the Antiterrorism and Effective Death Penalty

Act. During the time that the petition was pending, Scher made no attempt

whatever to visit Sanchez-Velasco, or to have someone from his office visit him. 

During that time CCRC and Scher had a number of other clients located at the

same prison as Sanchez-Velasco, and someone from CCRC visited the facility

about every week. Yet no one ever attempted to talk with Sanchez-Velasco about

the federal habeas petition that had been filed in his name. 

In March 2000, fourteen months after Scher had filed the habeas petition,

and while the State’s challenge to Scher’s standing was still pending, SanchezVelasco filed a pro se motion to “waive all my legal rights of appeals in any federal

and state court.” In that motion, Sanchez-Velasco asserted he had a constitutional

right “to choose not to be represented by any attorney” unless he had been shown

to be incompetent, and he argued that he had exercised his right to decline

representation by counsel when he withdrew his Rule 3.850 motion in state court

after having been found competent to do so. Sanchez-Velasco explained in the

motion he filed in this case that he wished to forego any appeal of his murder

conviction and death sentence for two reasons. First, he believed that the trial and

sentencing proceedings had been fair: “This petitioner was legally trialed and

convicted for the crime he was charged and he believe that he was fairly
15

represented on his trial.” Second, he felt he was a dangerous and violent person

who posed a threat to others as long as he remained alive: “This petitioner while

waiting for his sentence to be carryed out, he has killed two more human being and

hurted many others and he believes that the only way the Governor can asure that

he won’t be able to hurt or to take any more lifes is by carrying out the death

sentence that was giving to he by the court of law.” 

It was only at this point, after Sanchez-Velasco had filed his pro se motion to

withdraw his petition, that Scher finally made his first attempt to communicate

with the man he claimed to be representing. He went to see Sanchez-Velasco.

After meeting once with Scher, and on the same day of that meeting, SanchezVelasco filled out and signed a form indicating that he refused to meet any further

with Scher, with anyone from CCRC, or with any mental health expert working for

CCRC. He did not want to have anything to do with them or for them to have

anything to do with him.

The district court issued an order for Scher to show cause why SanchezVelasco’s motion to dismiss the habeas petition should not be granted. Scher’s

response argued that Sanchez-Velasco was not mentally competent to dismiss the

petition, and attached to it were a number of materials, including affidavits from

friends and family, psychological evaluations, and medical records from prison
7

There were three documents that had not been before the state trial court in the Rule

3.850 proceeding. Two of them were reports, one from Dr. Whyte and one from Dr. Herrera,

each from 1994 and each describing conclusions drawn after a 1994 examination following up

on an earlier 1993 examination and report by the same doctor. And there was Dr. Marina’s 1994

letter, in which she described how reading the 1994 reports of Drs. Whyte and Herrera had

confirmed her 1993 revised conclusion that Sanchez-Velasco was incompetent. See note 3

above. Although the 1994 documents were not before the state trial court in 1996 when it found

Sanchez-Velasco competent to waive his state post-conviction proceedings, each of them had

been submitted to the Florida Supreme Court when it considered Sanchez-Velasco’s brother’s

petition to proceed as next friend. See note 12 below.

16

showing that while in prison Sanchez-Velasco had reported psychological

problems and had been administered psychiatric drugs in non-therapeutic doses. 

All of those materials had been considered by the state courts and virtually all of

them had been before the state trial court when it found Sanchez-Velasco

competent to dismiss his Rule 3.850 motion proceeding.7

The district court ruled that Scher had standing enough to challenge

Sanchez-Velasco’s mental competency to dismiss the federal habeas petition. The 

court also decided that an independent mental health expert should be appointed to

examine Sanchez-Velasco in order to determine his mental competence and that an

evidentiary hearing should be held on the issue after that examination. The State

filed a motion for reconsideration, again arguing that Scher lacked standing even to

challenge Sanchez-Velasco’s competency. The court denied that motion for

reconsideration. 
17

The court asked Scher and the State to agree upon a mental health expert or,

alternatively, to submit a list of experts from whom the court could choose one to

conduct the examination. Because Scher and the state could not agree on a mentalhealth expert, each submitted two names. In October 2000 the district court

appointed one of the experts the State had suggested, Dr. Richard Greer, Chief of

the Forensic Psychology Division at the University of Florida. Dr. Greer had

previously examined Sanchez-Velasco in November 1995 for competency to stand

trial for the murder of two fellow inmates, and he had found Sanchez-Velasco

competent to represent himself and enter a guilty plea in that case. SanchezVelasco II, 702 So. 2d at 226. 

In January 2001 Dr. Greer, accompanied by his student, Dr. Robert Stetson,

examined Sanchez-Velasco, and in February 2001 issued his report. In his report

Dr. Greer concluded Sanchez-Velasco did not suffer from any major mental illness

and was mentally competent to withdraw his habeas petition. He based this

conclusion on his examination of Sanchez-Velasco as well as his review of the

medical history and case file. Scher moved to strike Dr. Greer’s report and appoint

additional mental health experts, but the district court denied that motion. 

On May 15, 2001, the district court held an evidentiary hearing. Dr. Greer

was the only witness. He testified about his education, training, and experience,
18

his examination of Sanchez-Velasco, and his conclusion that Sanchez-Velasco was

competent. All parties, including Sanchez-Velasco himself, were given an

opportunity to question Dr. Greer. Scher neither submitted nor attempted to submit

any new testimony or other evidentiary material at the hearing. The State submitted

Sanchez-Velasco’s most recent prison medical records, which showed that he did

not currently suffer from any significant mental illness. The State also re-urged its

position that Scher did not have standing to even raise the issue of whether

Sanchez-Velasco was mentally competent. 

At the evidentiary hearing, after Dr. Greer had testified, the district court

spoke with Sanchez-Velasco about his desire to dismiss the petition. The court

asked him why he wanted to do that, and he told the court: that he had not filed the

petition; that he was competent; and that he wanted Scher and CCRC to stop “play

game with the system and the taxpayers’ money.” Sanchez-Velasco pointed out

that he already been found competent in state court to waive his post-conviction

proceeding there, and that he had again been found competent by Dr. Greer. The

court asked him whether he understood “what’s going to happen if you don’t have

an appeal, if you don’t have an appeal pending” and he answered: “Sure. My

sentence might be carried on sometime whenever the government decided to do

so.” He then added: 
19

And really it not a matter of whether my sentence be carried out

or not. The matter is that I won’t be able to hurt anybody no more. 

And meantime, while they’re playing with the system and using the

system to enrich they pockets, and I continue killing people. I haven’t

stopped kill people since I been in the DOC department under the

DOC supervising. I has killed people repeatedly, repeatedly,

repeatedly, even while being on death row. So I don’t see myself in

other way, is no choice I am making because I want to die . . . but

since I been all this year on death row and every year since then hurt

somebody or kill somebody, and I haven’t do anything, I don’t see

myself to change my life around. . . . 

I has been like that all my life and it is nothing I can do. So to

saving my time and saving the government time and saving other

people lives, I make my own choice. I have a constitutional right to

do so. The Constitution of the United States give me that right. 

And I am competent to do so. 

The court finally asked, point blank, whether Sanchez-Velasco understood that “if .

. .this petition is withdrawn, you will probably be executed,” to which SanchezVelasco replied “Yes, Your Honor.” 

After the hearing, the district court issued an order finding that Scher had

standing to raise the issue of Sanchez-Velasco’s mental competency to forego

filing a habeas corpus petition. It also found, however, that Sanchez-Velasco was

in fact mentally competent, which meant that Scher lacked standing to litigate the

habeas petition he had filed on behalf of Sanchez-Velasco. It was on that basis that

the district court dismissed the habeas petition. 

D. The Certificate of Appealability
20

Scher sought a certificate of appealability, but the district court denied one. 

Scher then sought one from this court, and we granted it, on the following three

issues: 

1) Whether the Capital Collateral Regional Counsel is “truly dedicated to

the best interests” of Sanchez-Velasco, as is required by the first

prong of the Whitmore v. Arkansas test for ‘next friend’ standing,

including whether being “truly dedicated to the best interests” requires

that the ‘next friend’ “have some significant relationship with the real

party in interest.” Whitmore v. Arkansas, 495 U.S. 149, 163, 110

S.Ct. 1717, 1727 (1990). 

2) Whether the district court employed adequate procedures to determine

if Sanchez-Velasco was competent to waive his habeas petition. Cf.

Mata v. Johnson, 210 F.3d 324 (5th Cir. 2000).

3) Whether, if the court did use adequate procedures, it clearly erred in

finding that Sanchez-Velasco was competent to waive his habeas

petition. 

II. DISCUSSION

Scher claims standing under the “next friend” doctrine, but the Supreme

Court has held that “next friend” standing “is by no means granted automatically to

whomever seeks to pursue an action on behalf of another.” Whitmore v. Arkansas,

495 U.S. 149, 163, 110 S. Ct. 1717, 1727 (1990). Instead, two requirements must

be met:

Decisions applying the habeas corpus statute have adhered to at least

two firmly rooted prerequisites for ‘next friend standing.’ First, a

‘next friend’ must provide an adequate explanation–such as
21

inaccessibility, mental incompetence, or other disability–why the real

party in interest cannot appear on his own behalf to prosecute the

action. Second, the “next friend” must be truly dedicated to the best

interests of the person on whose behalf he seeks to litigate, and it has

been further suggested that a “next friend” must have some significant

relationship with the real party in interest.

Id. at 163-64, 110 S. Ct. at 1727 (internal citations omitted); see also Lonchar v.

Zant, 978 F.2d 637, 641 (11th Cir. 1992). 

The district court in this case referred to the second prong of the Whitmore

test as whether Scher had “standing to even challenge Petitioner’s mental

competency,” and concluded that he did. The court also found, however, that

Sanchez-Velasco was mentally competent, which means that Scher failed to meet

the first prong of the Whitmore test. The result is that the district court granted

Sanchez-Velasco’s motion to dismiss the habeas petition that Scher had filed. For

the reasons that follow, we think that the district court reached the right result and

was correct about Sanchez-Velasco’s mental competency, but that it was wrong

about Scher having what the court described as limited standing to litigate whether

Sanchez-Velasco was mentally competent. In our view, Scher failed to satisfy

either of the two Whitmore requirements. 

A. The Dedication to Best Interests Prong

Throughout this proceeding, the State of Florida has contested Scher’s

standing to litigate the issue of whether Sanchez-Velasco can decide for himself
22

about filing a federal habeas petition. From the beginning, the State has contended

not only that Sanchez-Velasco is mentally competent to make his own decisions

but also that Scher has no right to even litigate that question. The State has, in

other words, contended all along that Scher has failed to establish not only the first

prong or adequate explanation requirement, but also the second prong or

dedication to best interests requirement. That is the position the State took in its

initial response to the habeas petition, the position it took in the motion for

reconsideration that it filed after the district court had ordered an evidentiary

hearing on Sanchez-Velasco’s mental competency, and the position it took at the

evidentiary hearing. Nothing if not consistent and persistent, the State has also

taken that position in its brief and oral argument to this Court.

 Despite the State’s pertinacity in pursuing the prong-two point, Scher

contends that we should not consider the issue of whether he has standing to

litigate Sanchez-Velasco’s mental competency – whether he meets the second

Whitmore prong – because the State failed to cross-appeal the district court’s

ruling against it on that question. We disagree. 

An appellee may, without cross-appealing, urge in support of a result that

has been appealed by the other party any ground leading to the same result, even if

that ground is inconsistent with the district court’s reasoning. See El Paso Natural
23

Gas Co. v. Neztsosie, 526 U.S. 473, 479, 119 S. Ct. 1430, 1434-35 (1999); accord

Blum v. Bacon, 457 U.S. 132, 137 n.5, 102 S. Ct. 2355, 2359 n.5 (1982) (“It is

well accepted, however, that without filing a cross-appeal or cross-petition, an

appellee may rely upon any matter appearing in the record in support of the

judgment below.”). In addition, because standing issues resonate with Article III

concerns we are under an obligation to consider standing at every step in the

judicial process even if the parties do not press it or have acted or failed to act in a

way that would have waived some other issue. United States v. Hays, 515 U.S.

737, 742, 115 S.Ct. 2431, 2435 (1995); FW/PBS, Inc. v. Dallas, 493 U.S. 215,

230-31, 110 S.Ct. 596, 607-08 (1990). 

Turning now to the question of whether Scher has established the dedication

to the best interests prong, we begin by reiterating the Supreme Court’s precise

language. It said: “the ‘next friend’ must be truly dedicated to the best interests of

the person on whose behalf he seeks to litigate, and it has been further suggested

that a ‘next friend’ must have some significant relationship with the real party in

interest.” Whitmore, 495 U.S. at 163-64, 110 S. Ct. at 1727. 

As to that latter part, about “some significant relationship,” we have

previously indicated that it may not be an additional, independent requirement but

instead may be one means by which the would-be next friend can show true
24

dedication to the best interests of the person on whose behalf he seeks to litigate. 

See Lonchar v. Zant, 978 F.2d 637, 641 (11th Cir. 1992) (“Then, the next friend

must show some relationship or other evidence that would suggest that the next

friend is truly dedicated to the interests of the real party in interest.”). We have

concluded that “some significant relationship” does exist when the would-be next

friend has served in a prior proceeding as counsel for the real party in interest and

did so with his consent. That was the situation in the Ford case, where the

attorney who was acting as next friend for the inmate had represented him with his

consent for years in prior litigation challenging his conviction and death sentence.

See Ford v. Haley, 195 F.3d 603, 605 & n.1 (11th Cir. 1999), and Ford v. Haley,

179 F.3d 1342, 1344-45 (11th Cir. 1999); see also Hauser ex rel. Crawford v. 

Moore, 223 F.3d 1316, 1322 (11th Cir. 2000) (“The most logical ‘next friend’ is

Hauser’s court-appointed counsel” from prior proceedings). We have also

indicated that “some significant relationship” exists and the second Whitmore

prong is satisfied where a close relative acts as next friend. See Lonchar, 978 F.2d

at 641 (“The district court held and no one disputes that Kellogg, as Lonchar's

sister, is sufficiently dedicated to the interests of her brother.”); but see Hauser, 223

F.3d at 1322 (expressing reservations about whether the inmate’s biological
25

mother, who gave him up for adoption, was dedicated to his best interests for nextfriend purposes).

Neither of those situations exist here. Sanchez-Velasco’s brother attempted

to act in a next-friend capacity and pursue state court remedies on his behalf, but

he has not done that in federal court. Scher is not related to Sanchez-Velasco. He

has never represented him before. Prior to filing the federal habeas petition (and

for more than a year afterwards) Scher had never met Sanchez-Velasco. He had

never spoken with him. He had never even attempted to do so. Scher was, in

short, a total stranger to Sanchez-Velasco. He had no relationship at all with him, 

much less a significant one.

Nor has Scher shown in any other way that he is “truly dedicated to the best

interests of the person on whose behalf he seeks to litigate” within the meaning of

that Whitmore requirement. Scher, as a CCRC attorney, does have state law

authority to represent death row inmates who consent to the representation, but he

has no more authority than any other attorney to represent an unconsenting inmate.

That is true as a matter of federal law under the Whitmore decision, and it is true as

a matter of state law as well, see Durocher v. Singletary, 623 So. 2d 482, 485 (Fla.

1993) (“[W]e hold that . . . CCR [CCRC’s predecessor] has no duty or right to

represent a death row inmate without that inmate’s permission.”); cf. Faretta v.
26

California, 422 U.S. 806, 821, 95 S. Ct. 2525, 2534 (1975) (“An unwanted counsel

‘represents’ the defendant only through a tenuous and unacceptable legal fiction.”). 

The district court gave three reasons for finding that Scher had met the

second prong of the Whitmore test, none of which we find persuasive. First, it

said that in this case Scher had “followed [CCRC’s] standard procedures in filing

the habeas petition on Petitioner’s behalf.” If that is so, then CCRC’s standard

procedures should be changed. They should be changed because they are contrary

to Florida law, which is that CCRC has no right to represent a death row inmate

without that inmate’s permission. Durocher, 623 So. 2d at 485. CCRC’s standard

procedures, if this is what they are, ought to be changed because no attorney should

ever file a habeas petition in the name of an inmate he has not even bothered to

speak with, much less obtain permission from, and omit from the petition the

critical fact that the inmate has not consented to the filing. See Fla. Stat. Bar R. 4-

1.2(a) (“A lawyer shall abide by a client’s decisions concerning the objectives of

representation...and shall consult with the client as to the means by which they are

to be pursued.”); id. at 4-8.4(c) (“A lawyer shall not engage in conduct involving ...

misrepresentation. . . ”). Nowhere in the two-pound, 272-page habeas petition

Scher filed did he disclose to the court that he had not obtained Sanchez-Velasco’s
27

permission to file the petition. Regardless of whether CCRC followed its standard

procedures in this case, or whether those procedures ought to be changed, its

practices or procedures cannot trump the requirements of federal law; they cannot

take the place of the showing Whitmore requires that the would-be next friend be

dedicated to the best interests of the inmate. 

The second reason that the district court gave for concluding that Scher

could proceed to litigate Sanchez-Velasco’s mental competency is that “the

petition was filed in December 1998 and Petitioner did not move to withdraw the

petition until March 2000,” which the court described as being at a “late stage.” 

But there were no earlier stages because nothing happened in the case, which was

held in abeyance pending a decision from the Supreme Court in Williams v.

Taylor, 529 U.S. 420, 120 S. Ct. 1479 (2000), during the interval between Scher’s

filing of the petition and Sanchez-Velasco’s filing of the motion to dismiss, except

the State’s response which also asked the court to dismiss because Scher could not

show the prerequisites for next-friend standing. Besides, we are not aware of any

doctrine which would entitle a stranger to control the legal affairs of another party

after that party protested based upon nothing more than the lateness of the protest. 
8

This is not a case in which counsel who had been representing an inmate with consent in

prior proceedings assumed the inmate would want to continue with the relationship as the legal

challenge moved to another court. Even in that situation, we would think the attorney would

want to communicate with the inmate before filing a new petition in a different court, although

we do not mean to imply that is required. All we address are the facts before us in this case.

9

We do not mean to say that a district court must decide the second Whitmore prong

before it decides the first one, or that it must address both prongs where one of them is not met.

See Hauser ex rel. Crawford v. Moore, 223 F.3d 1316, 1321 (11thCir. 2000) (disposing of the

case on the first prong without reaching the second one). A court can consider pragmatic

considerations in deciding how to proceed. But what a court should not do is rule that the

second Whitmore prong is met because it “makes good sense” to rule that way even if the

requirements of that prong are not met. If the district court had skipped over the second prong

because the first one was not met, that would have been fine. Likewise, if it had held that neither

prong was met, that would have been fine. What we disagree with is what we understand to be

the district court’s ruling that the second prong was actually met in this case. It was not.

28

It is not as though the doctrine of laches applies to next-friend standing, and even if

it did the requirements of that doctrine would not be met in this case.8

The third reason the district court gave for allowing Scher to challenge

Sanchez-Velasco’s mental competency is that “since this is a capital case, and

similar issues related to Petitioner’s mental competency could be raised potentially

by a third party prior to execution, it makes additional good sense to allow CCRC

to litigate Petitioner’s mental competency to withdraw his habeas petition.” This

reason at least has the virtue of being pragmatic, but there is no pragmatic

exception to the requirements of next-friend standing. If we were to sanction the

district court’s reasoning, it would be tantamount to writing the second prong out

of the Whitmore test, something we cannot do, because the Supreme Court wrote

it in.9
29

Scher offers no better reasons than the district court did for why we should

find that he has met the second prong of the Whitmore test by showing that he is

dedicated to the best interests of Sanchez-Velasco. Attempting to excuse his

failure to ask for Sanchez-Velasco’s permission before filing the petition in his

name, Scher says he was busy drafting the petition before the statute of limitations

ran out. That assertion is both incredible, and beside the point. It is incredible,

because Scher admits that he or others from his CCRC office visit the prison where

Sanchez-Velasco was being held each week, and obviously the phone lines run to

and from the prison. Yet during all the time Scher was compiling the mammoth

petition and appendices to file, Scher never once attempted to contact his purported

client about the fundamental question of whether he wanted to be Scher’s client. 

Not only that, but even after the petition was filed Scher made no attempt to visit

or talk with Sanchez-Velasco until fourteen months had passed, and he only went

to see him then because Sanchez-Velasco had filed a motion to dismiss the petition

as unauthorized. Scher’s assertion about being busy is also beside the point,

because there is no “too busy” exception to the second Whitmore requirement. 

Scher has not established that he is dedicated to Sanchez-Velasco’s best

interests. To the contrary, he appears to be pursing his own interests in opposing

the imposition of the death penalty. See Hauser, 223 F.3d at 1322 (noting that the
30

would-be next-friends in that case “appear to be motivated solely by their own

desires to block imposition of the death penalty in an attempt to define justice as

they see fit” (internal quotation marks omitted)). To allow him to proceed in

Sanchez-Velasco’s name would run counter to one of the central purposes of the

requirements of next-friend-standing, which is to keep out “intruders or uninvited

meddlers, styling themselves next friends.” Whitmore, 495 U.S. at 164, 110 S. Ct.

at 1728 (quotation marks and citation omitted). 

The district court should not have ruled that Scher had made the showing

required by Whitmore’s second prong, that he had, in the district court’s words, 

“limited standing” to litigate Scher’s mental competency to decide whether to

proceed with the federal habeas petition that Scher had filed without permission. 

Scher’s failure to meet the second prong requirement alone is sufficient reason to

affirm the dismissal of the habeas petition. 

This case does not present the issue of how the second Whitmore

requirement should be applied when there is no one who can meet that requirement

and there are serious questions about the mental competency of the inmate that

have not been addressed by any court. Sanchez-Velasco’s mental competency to

forego further legal challenges was fully and completely litigated in the state

courts. His brother had previously filed a petition on his behalf in the state courts,
31

and counsel who represented Sanchez-Velasco in the state collateral proceedings

began that representation with his consent. Unlike Scher, the brother and prior

counsel have a “significant relationship with the real party in interest” and under

our precedent would be considered to be sufficiently “dedicated to the best

interests” of Sanchez-Velasco to meet Whitmore’s second requirement for nextfriend standing. If there is a “last resort” exception to that second requirement, this

is not a case where it would apply. 

B. The Adequate Explanation Prong

An independently adequate alternative reason for affirming the district

court’s dismissal of the petition is that Scher also failed to satisfy the first

Whitmore prong, which requires “an adequate explanation–such as inaccessibility,

mental incompetence, or other disability–why the real party in interest cannot

appear on his own behalf to prosecute the action.” Whitmore, 459 U.S. at 163,

110 S. Ct. at 1727. The usual explanation proffered is mental incompetency, and

that is the theory on which Scher staked his claim to third-party standing. After

appointing an expert to examine Sanchez-Velasco and holding an evidentiary

hearing on the issue, the district court correctly concluded that Scher had failed to

establish that Sanchez-Velasco is mentally incompetent, but it could and should
32

have reached that conclusion without having an expert examine Sanchez-Velasco

and holding an evidentiary hearing.

The district court failed to give the state courts’ determination that SanchezVelasco was mentally competent to decide for himself whether to pursue further

challenges to his conviction and death sentence the presumption of correctness it

was entitled to under Demosthenes v. Baal, 495 U.S. 731, 735, 110 S. Ct. 2223,

2225 (1990). The Demosthenes decision requires a federal court to presume that a

state court finding of competency is correct. Id.; see also Hauser, 223 F.3d at

1323 (“These subsidiary findings, and the ultimate decision [of the state court] 

that Hauser is competent, are factual in nature and are entitled to a presumption of

correctness.”); 28 U.S.C. § 2254(e)(1). The presumed correctness of the state

court finding can be overcome only if the party challenging the inmate’s mental

competency comes forward with evidence that clearly and convincingly establishes

incompetency. Hauser, 223 F.3d at 1323 (“In order to rebut these findings, CCRC

. . . must present clear and convincing evidence that Hauser is incompetent.”). In

this case, a state trial court adjudged Sanchez-Velasco competent to waive further

legal proceedings. That finding was made in October 1996, and it was affirmed by

the Florida Supreme Court in December 1997. 
33

The filing of the federal habeas petition in this case came two years and two

months after the state trial court had found Sanchez-Velasco mentally competent,

and one year after the Florida Supreme Court had affirmed that finding. That is

substantially more time than had elapsed between the state court findings and the

filing of the federal habeas proceeding in Demosthenes and Hauser, but it is not so

much time as to remove the presumption of correctness, at least where no evidence

is offered that the inmate’s mental condition has changed in the interval. Cf. Mata

v. Johnson, 210 F.3d 324, 332 (5th Cir. 2000) (holding the district court erred in

basing a competency determination on a twelve-year-old finding from state trial

proceedings when there was extensive new evidence of incompetency).

In the face of a state court determination that the real party in interest inmate

is mentally competent, in order to be entitled to a federal evidentiary hearing on the

issue a would-be next-friend must proffer evidence that does one of two things. 

The proffered evidence either must clearly and convincingly establish that the state

court finding was erroneous when made, or it must show that even though the state

court finding was correct when made the mental condition of the inmate has

deteriorated to the point that he is no longer mentally competent. Scher did 

proffer some evidence in the two-and-a-half pounds of documents appended to the

habeas petition, but none of that evidence clearly and convincingly established that
10By the time that the district court decided to appoint an expert to examine SanchezVelasco and to conduct an evidentiary hearing, Scher had submitted only three pieces of

evidence that had not been considered by the state trial court when it found Sanchez-Velasco

competent to waive his state post-conviction proceedings. These were the 1994 reports of Drs.

Whyte and Herrera, and the 1994 letter of Dr. Marina. See note 7 above. Each of those

documents was considered by the Florida Supreme Court in 1994 before it rejected the petition

of Sanchez-Velasco’s brother to proceed as next friend, and, more importantly, each one in large

part duplicated a 1993 report by the same expert that was before the state trial court in 1996

when it found Sanchez-Velasco competent to waive his state post-conviction proceedings. 

34

the state court’s finding about mental competency was erroneous. Nor did any of it

show a change in Sanchez-Velasco’s condition since the state court findings were

made. In fact, the vast majority of the evidence in those documents was before the

state trial court when it found that Sanchez-Velasco was mentally competent.10

In these circumstances, the district court should not have appointed another

expert to examine Sanchez-Velasco yet again, it should not have conducted an

evidentiary hearing into the issue, and it should not have made its own independent

finding regarding the mental competence issue. Instead, the district 

court should have accepted as correct the state court finding that Sanchez-Velasco

is mentally competent to decide his legal fate. 

Alternatively, even if Scher had been entitled to have the district court make

its own determination of Sanchez-Velasco’s mental condition after appointing

another expert to examine him and conducting an evidentiary hearing on the issue,

that is what the court did. Scher says the district court made a number of errors
35

tainting its own finding that Sanchez-Velasco was mentally competent, but we are

not convinced by his arguments. 

First, Scher argues that the district court abused its discretion in choosing the

expert it did to examine Sanchez-Velasco and in failing to appoint an additional

expert picked by Scher. The court had asked Scher and the State to agree on an

expert to do the examination, or failing that, to submit names from which the court

could choose one. They could not agree, so Scher and the State each submitted two

names. The court chose Dr. Richard Greer, one of the experts whose name the

State had submitted. His qualifications were beyond question. Dr. Greer was

Chief of the Forensic Psychology Division of the University of Florida Medical

School, where he was professor of neurology and psychiatry, and he had extensive

experience in making competency evaluations. He was also familiar with the

specific subject matter – Sanchez-Velasco’s mind – having conducted an

examination as a court-appointed expert in November of 1995 to determine if

Sanchez-Velasco was mentally competent to stand trial for the murder of two

inmates. (He had found that Sanchez-Velasco was competent at that time to stand

trial or plead guilty.) 

Scher does not quarrel with Dr. Greer’s qualifications. Instead, he argues

that, because Dr. Greer was one of the two experts Florida had suggested, the
11Scher also argues that the fact Dr. Greer was accompanied during the examination by

one of his students, Dr. Stetson, tainted the process, but none of his arguments in that respect

merit further discussion except to say that if those arguments are not frivolous they border on it. 

36

district court should have also appointed an expert of Scher’s choosing to evaluate

Sanchez-Velasco. Of course, while the State put Dr. Greer’s name on the list, it

did not select him, the district court did. Given Dr. Greer’s sterling qualifications

and prior related work involving Sanchez-Velasco, the court had every reason for

doing so. Due process did not require the appointment of two experts in these

circumstances.11

In contesting the fairness of the examination and evidentiary hearing Scher

also argues that Dr. Greer’s subsequent arrest for possession of cocaine on

September 17, 2001, eight months after the examination, seven months after the

report, and three months after he had testified at the hearing, potentially tainted his

expert opinion. Scher maintains the case should be remanded to the district court

with instructions that it consider the information about Dr. Greer’s arrest and

reweigh his testimony in light of it. Of course, an arrest without a conviction, or

the conduct leading to it, cannot be proven by extrinsic evidence. See F.R.E.

608(b). So far as we know and the parties can tell us, Dr. Greer has not been

convicted of the crime for which he was arrested. Nor could Scher even crossexamine Dr. Greer about the conduct or arrest unless “in the discretion of the court,
37

[it is] probative of . . . [Dr. Greer’s] untruthfulness.” Id. Scher’s main argument is

that the subsequent arrest would show that Dr. Greer was untruthful when he

testified at the evidentiary hearing because the arrest is probative of his bias at the

time. The theory, as we understand it, is that the district court could infer from the

fact of Dr. Greer’s arrest that he had slanted his report seven months earlier and his

testimony three months earlier in favor of the State position’s in order to curry

favor in anticipation of a possible future arrest. The theory depends upon each of

the following conjectures: first, that Dr. Greer had begun using drugs before the

time he issued his report and gave his testimony in this case; second, that at the

time he wrote the report and gave the testimony he anticipated getting caught; and,

third, he thought that there was a reasonable possibility that having written a report

and given testimony consistent with the State’s position in an unrelated proceeding

in the past would lead to more lenient treatment for him after his anticipated arrest.

That conjectural chain is sufficiently unlikely that any finding based upon it would

be clearly erroneous. For that reason, no remand is necessary.

In a recent case we approved the Florida Supreme Court’s conclusion that

evidence of government witnesses’ collateral criminal conduct occurring at the

time of their testimony is inadmissible to show that the witnesses had slanted their

testimony in order to curry favor with the state. Breedlove v. Moore, 279 F.3d 952
38

(11th Cir. 2002). The Florida Supreme Court had considered the bias argument,

but rejected it “[b]ecause the detectives’ criminal conduct was completely

unrelated to the charges against Breedlove and because the detectives had not been

indicted or convicted of any crime at the time of Breedlove’s trial . . .” Breedlove, 

279 F.3d at 963 (quoting Breedlove v. State, 580 So. 2d 605, 609 (Fla. 1991)). 

Because inquiry into the witnesses’ criminal conduct would have done nothing

more than “‘raise the possibility that [the detectives] had engaged in bad acts,” it

was not permitted. Id. (quoting Breedlove v. State, 580 So. 2d at 609). Similarly,

in this case, because Dr. Greer’s arrest is unrelated to the issue of SanchezVelasco’s competency, and for the additional reason that it had not occurred at the

time of his report and testimony, evidence of it would be inadmissible. 

There were no procedural flaws in the appointment of Dr. Greer, in his

examination and report, or in his testimony at the hearing, and there is no reason to

do any of it over. Nor are there any flaws in any other aspect of the proceeding

that are adverse to Scher’s side of the case. Scher had the opportunity to question

Dr. Greer, and he also had the opportunity to present new evidence challenging

Sanchez-Velasco’s competency, but he failed to do so. 

The district court conducted an extended colloquy with Sanchez-Velasco to

determine whether he was mentally competent and truly wished to waive his rights
39

to federal habeas review. During that colloquy, the court asked Sanchez-Velasco

why he had moved to dismiss the petition, and whether he understood that doing

so meant he likely would be executed. The court asked whether Sanchez-Velasco

wanted to pursue habeas relief, but not with Scher and CCRC as his lawyers. It

reminded him that in the state proceedings he had changed his mind about waiving

his post-conviction rights, and asked whether he was confident that he would not

change his mind about this waiver request. To all of these questions, SanchezVelasco answered in a way that indicated he knew what he was doing and truly

wished to do it. 

 Finally, the district court’s finding that Sanchez-Velasco was competent

was not clearly erroneous. The court had before it an unbroken string of state

court determinations that Sanchez-Velasco was competent: at the time of the crime,

immediately before trial, during trial, and at the time he sought to waive his Rule

3.850 petition. It had before it an overwhelming majority of mental health

professionals who had determined Sanchez-Velasco was competent at various

times while his state court proceedings were pending. It had before it Dr. Greer’s

fresh report and expert testimony at the hearing to the same effect. The court had

no evidence before it to indicate that Sanchez-Velasco was not competent, other

than evidence that had already been presented to and considered by the state courts. 
40

 Finally, the court had the evidence of Sanchez-Velasco’s answers to the court’s

questions during the colloquy. In light of all of this evidence, the district court’s

finding that Sanchez-Velasco was mentally competent was not even close to

erroneous, much less clearly erroneous.

III. CONCLUSION

Scher has failed to convince us that the district court should not have granted

Sanchez-Velasco’s motion to dismiss the federal habeas petition filed in his name

without his consent. On its way to dismissing the petition, the district court made

some errors but all of them wrongly favored Scher. Scher has failed to satisfy

either of the two Whitmore requirements for next-friend standing. He has not

shown that he is truly dedicated to the best interests of the real party in interest, nor

has he shown an adequate explanation for why the real party cannot appear in his

own behalf. In light of the state court proceedings and his failure to proffer

sufficient evidence to warrant another inquiry in federal court, Scher was not

entitled to a re-determination of the mental competency question in federal court,

but he got one. And the one he received was not tainted by procedural or other

errors, nor is the finding the district court reached clearly erroneous. 

That concludes our technical analysis or explanation in legal terms of why

we are affirming the district court’s decision to grant Sanchez-Velasco’s motion to
41

dismiss the federal habeas petition that had been filed in his name. But we should

not forget the values that motivated the Supreme Court’s Whitmore decision and

what is really at stake in these kind of cases. These cases are about the right of selfdetermination and freedom to make fundamental choices affecting one’s life. As a

death row inmate, Sanchez-Velasco does not have many choices left. One choice 

the law does give him is whether to fight the death sentence he is under or accede

to it. Sanchez-Velasco, who is mentally competent to make that choice, has

decided not to contest his death sentence any further. He has the right to make that

choice. Todd Scher and CCRC are strangers to Sanchez-Velasco. He has never

asked them to represent him or consented to have them do so. He has directed

them to leave his case alone, and the law will enforce that directive. 

AFFIRMED.