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. e du/thir dc ir c uit_1999/191UNREPORTED-NOT PRECED ENTIAL

IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

No. 99-9004

MAXINE DAVIDSON WHITE, as next friend to GARY HEIDNIK,

Appellant

v.

MARTIN HORN, Commissioner, Pennsylvania Department of Corrections; GREGORY WHITE, Superintendent of the State Correcti onal Institution of Pittsburgh, and the COMMONWEALTH OF PENNSY LVANIA

On Appeal from the United States District C ourt For the Eastern District of Pennsylvani a

(D.C. Civ. No. 97-cv-02561) District Judge: Honorable Franklin S. VanAnt werpen

Argued July 6, 1999

Before: NYGAARD, ALITO, and McKEE, Circuit J udges

(Filed July 6, 1999)

Billy H. Nolas, E sq. (ARGUED) Kathy Swedlow, Es q. Defender Associat ion of Philadelphia Federal Court Div ision 437 Chestnut Stre et, Suite 510 Philadelphia, PA 19106

Attorneys for App ellant

Ronald Eisenberg ( ARGUED) Christopher Diviny Office of District Attorney 1421 Arch Street Philadelphia, PA 19102

PER CURIAM

Before us are a motion for a certificate of ap pealability and for a stay of execution filed by petitioner/appellant, Maxine Davidson Whi te, as "next friend" for Gary Heidnik. On July 3, 1999, the District Court issued an order that denied the petitioner/appellant'sapplication for a stay of execution and a certifica te of appealability and

dismissed her petition for a writ of habeas corpus. The District Court's ruling was predicated on its conclusion that the petitioner/appellant lacked sta nding to bring an action as "next friend" to Gary Heidnik because she has not shown that he i s "unable to litigate his own cause due to mental incapacity." Whitmore v. Arkansas, 4 95 U.S. 149, 165 (1990). The District Court issued a comprehensive opinion expla ining in detail its analysis of the numerous arguments presented to it. Because Heidnik is scheduled to be executed on the evening of Tuesday, July 6, we required the petitioner/appellant to file her br ief on Sunday, July 4, and we directed the Commonwealth to file its response on Monday, Ju ly 5. The petitioner/appellant filed a Reply on July 5, and the Commonwealth submitted a Supplemental Response. We heard oral argument on the morning of July 6. We h ave considered all the arguments raised before us, as well as relevant portions of t he record, and we conclude that the motion for a certificate of appealability and a sta y of execution should be denied. We are largely in agreement with the opinion o f the District Court, but we add the following comments concerning the petitioner/appell ant's argument that the "next friend" issue is controlled by Heidnik v. Horn, 112 F.3d 105 (3d Cir. 1997). This decision, among other things, directed the District Court to issue a stay of execution, but the Supreme Court of the United States vacated tha t stay. Horn v. White, 520 U.S. 1183 (1997). The petitioner/appellant contends that, de spite this order and despite the subsequent proceedings in state court, which result ed in a competency hearing and state court findings on the competency question, the prio r panel decision requires us, by virtue of the law-of-the-case doctrine, to hold that she i s entitled to "next friend" status. We reject this argument. Although we obviously cannot be certain of the basis for the Supreme Court's order, it seems most likely that it was based on th e conclusion that the prior panel's handling of the "next friend" question was incorre ct. But we need not resolve this question. Even if the Supreme Court's order was no t based on the conclusion that thepetitioner/appellant lacked standing, we still do n ot believe that the

prior panel decision would control our consideration of the "next friend " issue at this juncture. The prior panel decision was based on a review of the record and findings of the federal district court. Now, however, the Pennsylvania courts have conducted a new competency hearing and rendered new findings, and the issue co mes before us now on a different record and in a different procedural posture. The law-of-the-case doctrine did not prevent the Pennsylvania courts from taking these actions a nd did not compel the Pennsylvania courts to follow the prior panel decision. Under 2 8 U.S.C.  2254(e)(2), the finding of the Court of Common Pleas regarding Heidnik's competenc y is presumptively correct and must be accepted unless the petitioner/appellant ca n overcome them by clear and convincing evidence. Under 28 U.S.C.  2254 (d)(2), a federal writ may not be issued unless the state court made "an unreasonable determ ination of the facts in light of the evidence presented in the State court proceeding." This is a different standard of review than the standard applied by the prior panel when i t ruled in 1997, and for this reason the prior panel's decision does not bind us here. We agree with the District Court that the stat e court factual findings regarding Heidnik's competency are adequately supported by th e record, and we reject the petitioner/appellant's contention that they are not entitled to deference due to alleged procedural defects. We will therefore deny the app lication for a certificate of appealability and a stay of execution.

TO THE CLERK OF THE COURT: Please file the foregoing opinion. No. 99-9004, MAXINE DAVIDSON WHITE, as next fried t o GARY HEIDNIK, v. MARTIN HORN, Commissioner, Pennsylvania Department of Corrections; GREGORY WHITE, Superintendent of the State Correcti onal Institution of Pittsburgh; and the COMMONWEALTH OF PENNSYLVANIA

McKee, Circuit Judge dissenting

Mr. Heidnik is clearly deserving of whatever s anction society reserves for its most heinous offenders. That, of course, is not the iss ue before us. That issue was presented to thejury that heard the nightmarish evidence and decide d to impose a sentence

of death after finding that Heidnik was guilty of the atrocities he had be en charged with. Rather, the sole issue before us is whether hi s daughter has standing under Whitmore v. Arkansas, 495 U.S. 149 (1990). In order to resolve that question we must decide "whether [she] has provided an adequate explanation why [Mr. Heidn ik] cannot appear on [his] own behalf to prosecute the action." Heidnik v. Horn, 112 F.3d 1 05, 108 (3rd Cir. 1997 (per curiam) That inquiry, in turn, depends upon whether she has esta blished that he is mentally incapable of deciding for himself to forego whatever claims he w ould otherwise be able to assert on appeal. Much of the controversy before us now is focus ed on whether our earlier decision still binds us under the law of the case doctrine even th ough our stay was subsequently vacated by the United States Supreme Court. I doubt very much tha t we are still bound, but the hectic and hurried manner in which we have had to decide this incredibly intricate inquiry into Supreme Court procedure has not afforded me, at least, suff icient opportunity to resolve that question with enough certainty to allow it to govern my analysis now. However, even the Commonwealth concedes that the prior action of the United States Supreme Court does not invalidate our prior analysis of the record that was before us in 1997. I find that analysis compelling, and persuasive. Heidnik is the same now as he was then. At the hearing before the District Court, the Commonwealth agreed that Heidnik's mental condition on June 30, 1999 was the same that it was in 1997 when we decided In re Heidnik and found that Heidnik was Whitmore incompetent. The following exchange occurred: THE COURT: Has there been any c hange factually? Has there been any the plaintiff Petitioner says there's no real change in Heidnik's condition?

[DISTRICT ATTORNEY]: Your Honor , I don't think that there has been a change in Mr. Heidnik's condit ion according to their experts and according to our experts . .

. .

THE COURT: So basically what I have even though we have had this new hearing with different witnesses , there is no real change in his condition.N. T. 6/30/99 at 84 (Dist. Ct. Proceeding). In 199 7, we reviewed a nearly

identical record to determine Heidnik's competency to waive his appell ate rights, and we rejected the District Court's finding that Heidnik's thought pro cess was sufficiently moored to reality to allow him to knowingly, voluntarily, and intelli gently execute such a waiver. We stated: In the final analysis the recor d reflects a situation in which a paranoid schizophrenic suffering from bro ad-based delusional perceptions has made a decision to die immediately rather than pursue available judicial remedies t hat conceivably might spare his life. The only explanati on he has advanced for having chosen immediate death is that after his death the public will become convinced that he was an innocent victim of a conspiracy and that the realization that he has been executed though innocent will end capital punishment once and for all. Petitioners' three experts unanimously concluded that Heidnik's death decision is based on his delusional perception of reality--and has no rationa l basis. Dr. O'Brien [the Commonwealth's witness] has simply f ailed to explain how Heidnik's choice has a rational basis and is not based on his delusional perception.

In short, the record does not s upport a rational explanation as to why, even if Heidnik has rationalized to himself that he was innocent, he could, despite his delus ions, make a rational decision to die. A psychiatric expert mi ght have supplied this, but O'Brien did not. In the absence of a ny effective counter, the petitioner has met her Whitmore burde n, and the order of the district court must be vacated.

In re Heidnik, 112 F.3d at 112. Accordingly, we o rdered that the District Court to stay the then imminent execution and designate Maxine Da vidson Heidnik's next friend, and appoint counsel for her. Our decision was, of course, rendered without the benefit of the testimony of Dr. Sadoff. His testimony supports the Commonwealth's argument that Heidnik's choice is rooted in his attempt to derive some social meaning from his death, and therefore a rational decision. That position was asserted by D r. O'Brien before, and we rejected it. This does not, of course, mean that the subsequent corroboration of Dr. O'Brien's testimony can be ignored. However, the corroborati on offered by Dr. Sadoff still fails toanswer the fundamental inquiry we posed in 1997. I t still "simply failed

to explain how Heidnik's choice has a rational basis and is not ba sed on his delusional perception." White, 112 F.3d at 112. Without an answer to that question, I do not think that Heidnik can reasonably be found to be sufficiently competen t to decide to forego his appellate rights. The second thing that has changed since our de cision in 1997 is the standard of our review. In 1997 we were reviewing the District Cou rt's findings based upon testimony elicited when it held a Whitmore hearing. Now, of course we, must review the finding of the state court. That review is governed the provi sions of the Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C.  2254(d) ("AEDPA"). However, I believe that based on the record as it now stands, as well as wh en we originally made the statement set forth above, Ms. White has cleared even the heighte ned bar of AEDPA, and should be granted next friend status. Given the volume of m aterial referring to Heidnik's persisting delusional state, Ms. White has shown that the Cou rt of Common Pleas' finding that Heidnik is sufficiently rational to knowingly and i ntelligently waive his appellate rights is "an unreasonable determination of the facts in ligh t of the evidence presented in the State court proceeding." Although the standard is now di fferent, see Matteo v. Superintendent, 171 F.3d 877 (1999) (en banc), the conclusion is th e same. Heidnik is "a paranoid schizophrenic suffering from broad-based delusional perceptions [who] has made a decision to die immediately rather than pursue avai lable judicial remedies that conceivably might spare his life." His "decision" i s inextricably intertwined with a belief structure that the Commonwealth concedes is genuine and not fabricated. That delusional belief structure is inextricably connected to his d ecision to forego an appeal. Moreover, the record establishes that the contrary finding of the Court of Common Pleas is simply not a reasonable assessment of the evidence that wa s presented there. As the district court correctly notes, under 28 U.S.C.  3354(e)(1) This presumption of correctness can be overcome only by clear and convincing evidence. The evide nce must demonstrate either that the decision "was contrary to, orinvolved an unreasonable application of, clearly established

federal law," or that it "was based on an unreasonable determination of the facts." 28 U.S..  2254(d)(1)-(2). The state court determination of a defendant' s competency is entitled to the statutory presumption of correctness. See Demosthenes v. Baal, 495 U.S. 731, 736 (1 990); Miller v. Fenton, 4874 U.S. 104, 113.

Dist. Ct. Op. at 24. In my opinion, Ms. White has overcome the presumption of correctness by clear and convincing evidence. Acco rdingly, the District Court incorrectly allowed the state court's findings to determine the outcome in the District Court. It may of course be that all of the claims tha t are waiting in the wings until the Whitemore issue is decided would one day be present ed to a court in a proper context, and denied. If that were to happen, Heidnik's exec ution would follow. But it would then be accomplished without the cloud of competency tha t now hangs over his pending execution. Few, if any outside his family will mourn Heid nik's execution. His crimes are etched into the collective memories of everyone who is a member of this community, and his lunacy made everyone feel less human to think t hat anyone could do what he did to another human being. Nevertheless, as I said at the outset, the legal inquiry we are forced to undertake does not, at this stage of the proceed ings, allow his horrors to define our analysis. It may well be that today we are writing the f inal chapter of the terror that was Heidnik. However, I share the thoughts so poignant ly echoed by the Chief Justice of the Supreme Court of Pennsylvania when he recently wrot e in a concurring opinion involving an issue other than the one now before us: although I believe the record, state and federal, demonstrates that Gary Heidnik, . . . is presently suf fering from mental illness in the form of paranoid schizophr enia . . ., and in my view, is insane, I cannot stand by and s ay nothing while an insane person is put to death by the stat e contrary to the mores of civilized society.

Heidnik v. White, 554 Pa. 177, 191(1998) (Flahery, C.J. Concurring) (internal quotation marks omitted). Accordingly, I respectfully dissent from the d ecision of my colleagues.