1999 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-6-1999

Heidnik v. Horn

Precedential or Non-Precedential:

Docket 99-9004

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Recommended Citation

"Heidnik v. Horn" (1999). 1999 Decisions. Paper 191.

http://digitalcommons.law.villanova.edu/thirdcircuit_1999/191
 UNREPORTED-NOT PRECEDENTIAL 

 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 Correctional Institution 

 of Pittsburgh, and the COMMONWEALTH OF PENNSYLVANIA 

 

 On Appeal from the United States District Court 

 For the Eastern District of Pennsylvania 

 

 (D.C. Civ. No. 97-cv-02561) 

 District Judge: Honorable Franklin S. VanAntwerpen 

 

 Argued July 6, 1999 

 Before: NYGAARD, ALITO, and McKEE, Circuit Judges 

 (Filed July 6, 1999) 

 Billy H. Nolas, Esq. (ARGUED) 

 Kathy Swedlow, Esq. 

 Defender Association of Philadelphia 

 Federal Court Division 

 437 Chestnut Street, Suite 510 

 Philadelphia, PA 19106 

 Attorneys for Appellant 

 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 appealability and for a 

stay of execution 

filed by petitioner/appellant, Maxine Davidson White, as "next friend" 

for Gary Heidnik. 

On July 3, 1999, the District Court issued an order that denied the 

petitioner/appellant's 
application for a stay of execution and a certificate 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 standing to bring an 

action as "next friend" 

to Gary Heidnik because she has not shown that he is "unable to litigate 

his own cause 

due to mental incapacity." Whitmore v. Arkansas, 495 U.S. 149, 165 

(1990). The 

District Court issued a comprehensive opinion explaining 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 brief on Sunday, July 4, 

and we directed 

the Commonwealth to file its response on Monday, July 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 have considered all the 

arguments 

raised before us, as well as relevant portions of the record, and we 

conclude that the 

motion for a certificate of appealability and a stay of execution should 

be denied. 

 We are largely in agreement with the opinion of the District Court, 

but we add the 

following comments concerning the petitioner/appellant'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 that stay. Horn v. White, 

520 U.S. 1183 

(1997). The petitioner/appellant contends that, despite this order and 

despite the 

subsequent proceedings in state court, which resulted in a competency 

hearing and state 

court findings on the competency question, the prior panel decision 

requires us, by virtue 

of the law-of-the-case doctrine, to hold that she is 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 the conclusion that the 

prior panel's 

handling of the "next friend" question was incorrect. But we need not 

resolve this 

question. Even if the Supreme Court's order was not based on the 

conclusion that the 
petitioner/appellant lacked standing, we still do not 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 comes 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 and did not compel the 

Pennsylvania 

courts to follow the prior panel decision. Under 28 U.S.C. 2254(e)(2), 

the finding of the 

Court of Common Pleas regarding Heidnik's competency is presumptively 

correct and 

must be accepted unless the petitioner/appellant can 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 determination 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 it 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 state court factual 

findings regarding 

Heidnik's competency are adequately supported by the 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 application 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 to GARY HEIDNIK, v. 

MARTIN HORN, Commissioner, Pennsylvania Department of Corrections; 

GREGORY WHITE, Superintendent of the State Correctional Institution of 

Pittsburgh; and the 

COMMONWEALTH OF PENNSYLVANIA 

McKee, Circuit Judge dissenting 

 Mr. Heidnik is clearly deserving of whatever sanction society 

reserves for its most 

heinous offenders. That, of course, is not the issue before us. That 

issue was presented to the 
jury that heard the nightmarish evidence and decided to impose a sentence 

of death after finding 

that Heidnik was guilty of the atrocities he had been charged with. 

 Rather, the sole issue before us is whether his 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. Heidnik] cannot appear on 

[his] own behalf to 

prosecute the action." Heidnik v. Horn, 112 F.3d 105, 108 (3rd Cir. 1997 

(per curiam) That 

inquiry, in turn, depends upon whether she has established that he is 

mentally incapable of 

deciding for himself to forego whatever claims he would otherwise be able 

to assert on appeal. 

 Much of the controversy before us now is focused on whether our 

earlier decision still 

binds us under the law of the case doctrine even though our stay was 

subsequently vacated by the 

United States Supreme Court. I doubt very much that 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, sufficient 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 change 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 condition 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 1997, we reviewed a nearly 

identical record to 

determine Heidnik's competency to waive his appellate rights, and we 

rejected the 

District Court's finding that Heidnik's thought process was sufficiently 

moored to reality 

to allow him to knowingly, voluntarily, and intelligently execute such a 

waiver. We 

stated: 

 In the final analysis the record reflects a situation 

in which a 

 paranoid schizophrenic suffering from broad-based delusional 

 perceptions has made a decision to die immediately rather 

 than pursue available judicial remedies that conceivably 

 might spare his life. The only explanation 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 rational basis. Dr. O'Brien 

 [the Commonwealth's witness] has simply failed to explain 

 how Heidnik's choice has a rational basis and is not based on 

 his delusional perception. 

 In short, the record does not support a rational 

explanation as 

 to why, even if Heidnik has rationalized to himself that he 

 was innocent, he could, despite his delusions, make a rational 

 decision to die. A psychiatric expert might have supplied this, 

 but O'Brien did not. In the absence of any effective counter, 

 the petitioner has met her Whitmore burden, and the order of 

 the district court must be vacated. 

In re Heidnik, 112 F.3d at 112. Accordingly, we ordered that the 

District Court to stay 

the then imminent execution and designate Maxine Davidson 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 Dr. 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 corroboration offered by Dr. 

Sadoff still fails to 
answer the fundamental inquiry we posed in 1997. It still "simply failed 

to explain how 

Heidnik's choice has a rational basis and is not based 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 competent to decide to forego 

his appellate 

rights. 

 The second thing that has changed since our decision in 1997 is the 

standard of our 

review. In 1997 we were reviewing the District Court'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 provisions 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 when we originally made 

the statement set 

forth above, Ms. White has cleared even the heightened bar of AEDPA, and 

should be 

granted next friend status. Given the volume of material referring to 

Heidnik's persisting 

delusional state, Ms. White has shown that the Court of Common Pleas' 

finding that 

Heidnik is sufficiently rational to knowingly and intelligently waive his 

appellate rights is 

"an unreasonable determination of the facts in light of the evidence 

presented in the State 

court proceeding." Although the standard is now different, see Matteo v. 

Superintendent, 

171 F.3d 877 (1999) (en banc), the conclusion is the same. Heidnik is "a 

paranoid 

schizophrenic suffering from broad-based delusional perceptions [who] has 

made a 

decision to die immediately rather than pursue available judicial remedies 

that 

conceivably might spare his life." His "decision" is inextricably 

intertwined with a belief 

structure that the Commonwealth concedes is genuine and not fabricated. 

That delusional 

belief structure is inextricably connected to his decision 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 was 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 evidence must 

 demonstrate either that the decision "was contrary to, or 
 involved 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 (1990); 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. Accordingly, 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 that are waiting in the 

wings until the 

Whitemore issue is decided would one day be presented to a court in a 

proper context, 

and denied. If that were to happen, Heidnik's execution would follow. 

But it would then 

be accomplished without the cloud of competency that now hangs over his 

pending 

execution. 

 Few, if any outside his family will mourn Heidnik'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 that 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 proceedings, allow his horrors 

to define our 

analysis. 

 It may well be that today we are writing the final chapter of the 

terror that was 

Heidnik. However, I share the thoughts so poignantly echoed by the Chief 

Justice of the 

Supreme Court of Pennsylvania when he recently wrote 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 suffering from mental 

 illness in the form of paranoid schizophrenia . . ., and in my 

 view, is insane, I cannot stand by and say nothing while an 

 insane person is put to death by the state 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 decision of my 

colleagues.