2006 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-18-2006

Michael v. Horn

Precedential or Non-Precedential: Precedential

Docket No. 04-9002

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 04-9002

 

HUBERT L. MICHAEL,

Appellant

 v.

MARTIN HORN, Commissioner, Pennsylvania 

Department of Corrections; *DAVID DIGUGLIELMO,

Superintendent of the State Correctional Institution at

Graterford; JOSEPH P. MAZURKIEWICZ,

Superintendent of the State Correctional Institution 

at Rockview

* (Amended – See Clerk’s Order dated 1/6/05)

 

Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Civil Action No. 96-cv-01554)

District Judge: Honorable Thomas I. Vanaskie

 
2

Argued January 12, 2006

Before: AMBRO, GREENBERG

and NYGAARD, Circuit Judges.

(Filed August 18, 2006)

Joseph M. Cosgrove, Esquire (Argued)

1460 Wyoming Avenue

Forty Fort, PA 18704

Counsel for Appellant

Thomas W. Corbett, Jr.

 Attorney General

Richard A. Sheetz, Jr.

 Executive Deputy Attorney General

 Director, Criminal Law Division

Amy Zapp

 Chief Deputy Attorney General

 Appeals and Legal Services Section

Jonelle Harter Eshbach (Argued)

 Senior Deputy Attorney General

 Capital Litigation Unit

Office of Attorney General of Pennsylvania

Strawberry Square, 16th Floor

Harrisburg, PA 17120

Michael A. Farnan

Pennsylvania Department of Corrections
3

Office of Chief Counsel

55 Utley Drive

P.O. Box 598

Camp Hill, PA 17011

Counsel for Appellees

 

OPINION OF THE COURT

 

AMBRO, Circuit Judge:

After finding Hubert Michael competent to terminate his

habeas corpus petition in this death-penalty case, the District

Court dismissed that petition. The dismissal was appealed,

purportedly on Michael’s behalf. He later vacillated on his

desire to dismiss this appeal. We hold that the presumption of

continuing competency does not apply here because the

foundational expert for the District Court’s competency finding

has suggested a new evaluation. We therefore remand to the

District Court for another competency finding.

I. Factual Background and Procedural History

A. Michael’s homicide conviction and resulting

death sentence
4

Hubert Michael’s story is a long and convoluted one, so

we present only the facts most relevant to our decision. We

draw many of these facts directly from the District Court’s

opinion in Michael v. Horn, No. 3:CV-96-1554, 2004 WL

438678 (M.D. Pa. Mar. 10, 2004), which in turn drew many of

its facts from the Pennsylvania Supreme Court’s opinion

affirming Michael’s death sentence, Commonwealth v. Michael,

674 A.2d 1044 (Pa. 1996).

On July 12, 1993, Michael pulled up alongside

16-year-old Trista Eng, who was walking to her summer job at

a Hardee’s restaurant, and offered to drive her to work. She got

into the car, and Michael drove to the State Game Lands in York

County, Pennsylvania. He forced Eng out of the vehicle, shot

her three times with a .44 magnum handgun, and concealed her

body.

In late August 1993, Michael was charged with firstdegree murder. In September 1993, he was transferred to the

medical housing area of the Lancaster County Prison for “closer

observation” because he fell down the stairs in a possible suicide

attempt (though Michael has denied that he was trying to kill

himself). In November 1993, Michael assumed the identity of

an inmate who was about to be released, and he escaped from

prison. In the spring of 1994, he was apprehended in New

Orleans and returned to Pennsylvania.

In October 1994, jury selection on the murder charge
5

began in the Berks County, Pennsylvania, Court of Common

Pleas. Michael pled guilty to first-degree murder and

kidnapping. He tried to withdraw that plea six days later, but the

Court denied his plea-withdrawal request.

In March 1995, Michael waived his right to be sentenced

by a jury. He also stipulated to the existence of the two

aggravating circumstances alleged by the Commonwealth

(killing during the perpetration of a felony and a significant

history of felony convictions), and he stipulated that there were

no mitigating circumstances. After an extensive colloquy, the

Court accepted Michael’s waiver of a right to a jury sentence,

found that the aggravating circumstances outweighed the

mitigating circumstances, and imposed the death penalty. 

The Pennsylvania Supreme Court undertook an

independent review of the record and affirmed the conviction

and sentence. Michael, 674 A.2d at 1048. In July 1996,

Governor Thomas Ridge signed an execution warrant, and

Michael’s execution was scheduled for August 1996.

B. The District Court’s stay of Michael’s

execution

Approximately one week before the scheduled execution

date, the Defender Association of Philadelphia, Capital Habeas

Corpus Unit, moved for a stay of execution and an appointment

of counsel in the District Court for the Middle District of
 42 Pa. Cons. Stat. Ann. §§ 9541–9546. 1

6

Pennsylvania. That Court granted the stay and appointed the

Defender Association as Michael’s counsel. Michael then wrote

a letter dismissing the Defender Association from acting as his

counsel and requesting that Governor Ridge re-sign his

execution warrant “as soon as possible.” Michael, 2004 WL

438678, at *4.

In response, the Defender Association took the position

that Michael was not competent. The District Court directed the

Defender Association to confer with Michael. Following that

conference, attorney Billy Nolas submitted a declaration

describing Michael as “‘agitated, incoherent, irrational, sad,

unable to control h is v arying emotions, and

ultimately . . . catatonic and completely uncommunicative.’” Id.

at *5. The declaration also indicated that Michael had

authorized Nolas to litigate his Pennsylvania Post Conviction

Relief Act (PCRA) proceedings. The District Court then stayed 1

the federal habeas proceedings so that Michael’s PCRA claims

could be litigated. Our Court affirmed that stay by judgment

order in June 1997.

C. Michael’s PCRA Proceedings

As part of the PCRA proceedings, the Court of Common

Pleas of York County conducted evidentiary hearings

concerning Michael’s competence to plead guilty and to waive
 Michael indicated in the District Court that he had filed the 2

new affidavit “to speed the processing of his case because[,]

‘regardless if [he] did that or not [, the attorneys representing

him] were still going to try to push that through.’” Michael v.

Horn, No. 04-9002, 2005 WL 1606069, at *1 n.3 (3d Cir. July

7, 2005) (Greenberg, J., dissenting).

7

the presentation of mitigating circumstances. The

Commonwealth trial court denied relief on all claims, and

Michael, represented by the Defender Association, appealed to

the Pennsylvania Supreme Court. 

While the appeal was pending, Michael filed an affidavit

indicating that he did not wish the appeal to proceed. The

Pennsylvania Supreme Court remanded the matter to the trial

court to determine whether Michael was competent to

discontinue the PCRA appeal. The Court of Common Pleas

heard expert testimony and engaged in a colloquy with Michael.

It found Michael competent, and the case returned to the

Pennsylvania Supreme Court.

Before the Supreme Court could review the Court of

Common Pleas’s competency finding, Michael filed a new

affidavit asking the Supreme Court to “decide the merits of his

PCRA appeal quickly, essentially repudiating his request to

withdraw the appeal.” Commonwealth v. Michael, 755 A.2d

1274, 1276 (Pa. 2000). The Court therefore addressed the 2

merits of the underlying PCRA appeal, concluding that
8

Michael’s trial counsel had not been ineffective in failing to

investigate and present indicia of his alleged incompetency. Id.

at 1279–80. It also held that Michael’s claims pertaining to the

failure to present mitigating evidence could not succeed,

because counsel was fulfilling an ethical duty to comply with

Michael’s directions. Id.

Reargument was sought, but Michael sent a letter to the

Pennsylvania Supreme Court claiming that the Defender

Association was not acting on his behalf. The Court denied

reargument. 

D. District Court proceedings after Michael’s

PCRA litigation

1. District Court proceedings leading up to

the dismissal order

Though the District Court stayed federal litigation

pending the outcome of the PCRA proceedings, Michael wrote

to the Court on three occasions (April 15, 1997; July 9, 1997;

and December 26, 2000) to express his wish that the Court

refrain from staying his execution. 

In September 2001, the Court ruled that the presumption

of correctness ordinarily attaching to state-court competency
See Demosthenes v. Baal, 495 U.S. 731, 735 (1990) (per 3

curiam).

The petition raised significant challenges to Michael’s 4

sentence. It claimed ineffective assistance of counsel in, inter

alia, (1) failing to investigate and present Michael’s

incompetency, (2) stipulating to the existence of aggravating

circumstances, (3) stipulating falsely that there were no

9

determinations should not be applied because the PCRA court’s 3

competency determination was not reviewed by the

Pennsylvania Supreme Court. The District Court accordingly

appointed Dr. Robert Wettstein, a board-certified psychiatrist

and clinical professor, to determine “‘(1) whether Mr. Michael

suffer[ed] from a mental disease, disorder or defect; (2) whether

a mental disease, disorder or defect prevent[ed] [him] from

understanding his legal position and the options available to

him; and (3) whether a mental disease, disorder or defect

prevent[ed] [him] from making a rational choice among his

options.’” Michael, 2004 WL 438678, at *10. Accord Hauser

v. Moore, 223 F.3d 1316, 1322 (11th Cir. 2000) (per curiam).

The Court also requested that Dr. Wettstein consider whether

Michael had sufficient ability to consult with his attorney with

a reasonable degree of rational understanding and the ability to

understand legal proceedings. 

In June 2001, though the competency issues had not been

resolved, the Defender Association filed a 146-page habeas

petition. In May 2002, Dr. Wettstein submitted his report, 4
mitigating circumstances, and (4) causing Michael to enter a

guilty plea. The petition also claimed (5) that the death penalty

was unconstitutional and that the trial court improperly (6)

allowed Michael to plead guilty, (7) denied the requests to

withdraw his guilty plea, and (8) denied his requests for

different counsel.

10

which was based on his review of the PCRA record, York

County Prison records, state prison records, Michael’s letters to

the District Court, Michael’s school records, an affidavit from

Michael’s sister, transcripts of an interview with Michael’s

brother, reports prepared by doctors who had testified at

Michael’s PCRA hearings, results of tests that Dr. Wettstein had

personally administered, and eight hours of interviews with

Michael. In the report Dr. Wettstein concluded, “with

reasonable psychiatric certainty,” that Michael (1) was not

suffering from any mental disease, disorder, or defect that

substantially and adversely affected his ability to make a

decision with regard to pursuing his appeals and (2) had the

ability to understand the legal proceedings and to consult with

his attorneys with a reasonable degree of understanding.

Michael, 2004 WL 438678, at *10.

In July 2002, the District Court appointed Joseph

Cosgrove, Esq., to represent Michael, and it scheduled an

evidentiary hearing on Dr. Wettstein’s report. At the September

2002 hearing, the Court’s colloquy with Michael revealed—in

the words of the District Court—“a rational understanding of
11

each inquiry” and his desire to terminate the proceeding. Id. at

*11. 

2. The District Court’s dismissal of the habeas

petition

The District Court relied heavily on Dr. Wettstein’s

report. Id. at *16 (“Dr. Wettstein’s report and testimony afford

an ample foundation for a conclusion that Mr. Michael ‘has the

capacity to appreciate his position and make a rational choice

with respect to continuing or abandoning further

litigation . . . .’” (omission in original)); see also id. at *13–16

(discussing Dr. Wettstein’s report and conclusions). The Court

accepted Dr. Wettstein’s conclusions and went on to find that

Michael’s decisions were “knowing, rational and voluntary.” Id.

at *20. It explained that Michael’s decision to end his legal

proceedings had been “consistently repeated to this Court over

a number of years. It is thus not the product of uncontrollable

impulsivity.” Id.

 On March 10, 2004, the Court dismissed Michael’s

habeas petition and dismissed all of Michael’s counsel,

including the Defender Association and Cosgrove. Id. at *24.

E. Proceedings in our Court

Following the dismissal of Michael’s habeas petition, the

Defender Association filed a notice of appeal from that
12

dismissal to our Court. Almost immediately began Michael’s

vacillation as to whether he wished to withdraw this appeal. His

first letter to our Court—on April 14, 2004—indicated that he

did not wish the appeal to proceed.

The Commonwealth moved for dismissal. On May 4,

2004, our Court conditionally granted this motion to dismiss, but

the entry of the order was suspended for ten days to afford

Michael an opportunity to indicate his desire to proceed with

federal review of his case. Michael filed his second letter the

next day—May 5—indicating instead his desire to proceed with

this appeal and his wish to have new counsel appointed in his

appeal. We deferred ruling on the motion to dismiss and

scheduled oral argument for June 2004. 

Five days before the oral argument, we received a letter

from Dr. Wettstein. It read in part as follows:

I have . . . been informed that Mr. Michael

represented to the Court of Appeals that he no

longer wishes to be executed, but wants the legal

issues in his case presented with the assistance of

new legal counsel. Based upon his recent change

of mind, it is my psychiatric opinion that Mr.

Michael’s mental state needs further exploration.

His representation that he wishes to litigate his

criminal conviction and death sentence should be

evaluated.
 Section § 848(q)(4)(B) provides that, “[i]n any post conviction 5

proceeding under section 2254 or 2255 of title 28, United States

Code, seeking to vacate or set aside a death sentence, any

defendant who is or becomes financially unable to obtain

adequate representation . . . shall be entitled to the appointment

of one or more attorneys . . . .” 21 U.S.C. § 848(q)(4)(B),

repealed by Terrorist Death Penalty Enhancement Act of 2005,

Pub. L. No. 109-177, tit. II, subtit. B, § 222(c), 120 Stat. 192,

232 (2006).

13

Following oral argument, we granted a Certificate of

Appealability (COA) on the question of whether the District

Court violated 21 U.S.C. § 848(q)(4)(B) in dismissing Michael’s

counsel and, if the District Court so erred, whether this error

was harmless. But we did not rule on the Commonwealth’s 5

motion to dismiss the appeal. 

On November 26, 2004, we received Michael’s third

letter; we construed it as a pro se motion to withdraw his appeal

and to dismiss Cosgrove as his counsel. On December 3, we

entered an order directing counsel for all parties to file a

response to the pro se motion. In response, Cosgrove indicated

on December 20 that Michael was “anything but steadfast in his

desire to terminate this appeal or my representation of him.”

On January 5, 2005, in another attempt to ascertain

Michael’s position, the panel entered an order that warned

Michael as follows (emphasis in original):
14

If you dismiss this appeal you will waive

all further right to pursue this appeal. As a result

you may also be denied any further review of your

conviction and sentence by this or any other court.

Additionally, in the future, you may be legally

prohibited from filing a new habeas petition or

other petition for review. In short, your dismissal

of this appeal may terminate any further judicial

review of your conviction and sentence.

On February 22, 2005, Michael sent his fourth letter to

our Court. In it he indicated that he had read our January 5

order, and that he fully understood the consequences of his

waiver. Michael noted that he had consulted with counsel, and

that he nonetheless wished to withdraw his appeal. 

But the following day, after a meeting with Cosgrove, a

request was filed to defer any consideration of that letter for two

weeks so that Michael could further consult with counsel. We

deferred our decision to permit counsel time to meet once again

with Michael. 

On March 18, 2005, Cosgrove submitted a document,

entitled “Report of Counsel,” indicating that a litigation plan

was under development for Michael and asking us to proceed

with a resolution of the question presented in the COA. But 10

days later, Michael sent to us his fifth letter, indicating his desire

to dismiss his appeal. A sixth letter followed on May 23, 2005,
 Judge Greenberg dissented, stating that he would have 6

dismissed the appeal.

15

reiterating Michael’s request to dismiss his appeal. 

On June 2, our Court issued the following order:

Inasmuch as the petitioner is represented

by counsel, the pro se letters to withdraw the

appeal are denied. The District Court’s order

entered March 10, 2004, is vacated to the extent

that it dismissed Joseph M. Cosgrove, Esq., as

counsel, granted Michael’s motion to dismiss his

habeas corpus petition and vacated the stay of

execution. The matter is remanded for further

proceedings to determine whether habeas corpus

relief is warranted. We express no opinion on

such questions as whether Michael’s claims are

exhausted, procedurally barred or meritorious. In

the event that Michael files any further pro se

motions to dismiss his petition, we urge the

District Court to deny them summarily. See Smith

v. Armontrout, 865 F.2d 1515 (8th Cir. 1988); St.

Pierre v. Cowan, 217 F.3d 939, 949-950 (7th Cir.

2000).6

The Commonwealth filed a petition for panel rehearing

or rehearing en banc. We filed an order denying the petition on
 Judge Greenberg again dissented from the denial of panel

7

rehearing. Michael v. Horn, No. 04-9002, 2005 WL 1606069,

at *1–8 (3d Cir. July 7, 2005) (Greenberg, J., dissenting).

 Judge Greenberg concurred to emphasize that he viewed 8

whatever had happened in the District Court respecting

Michael’s vacillations as “beyond the scope of our certificate of

appealability.” Michael, 144 Fed. Appx. at 264 (Greenberg, J.,

concurring). Judge Nygaard dissented because he believed that

the June 2 order was correct and, to the extent it was ambiguous,

could be supplemented. Id. at 264–65 (Nygaard, J., dissenting).

16

July 7, 2005, and the mandate issued on July 8.7

The panel recalled the mandate on August 10, 2005, and

granted panel rehearing, explaining that the June 2 order “le[ft]

the District Court with little guidance in this complicated case

as to our reasons for remanding the case for further proceedings

and, indeed, [did] not identify what error (if any) the District

Court committed in connection with the decision appealed.”

Michael v. Horn, 144 Fed. Appx. 260, 263 (3d Cir. 2005).8

On September 19, 2005, Michael sent yet another letter

to our Court, stating the following: “After having recently

spoken to my attorney, Joseph Cosgrove, I am advising this

court that I wish for no further appeals regarding my sentence of

death.” 

Oral argument was scheduled for January 12, 2006. We
17

received a letter from Dr. Wettstein on January 4. He wrote,

among other things, the following:

I understand that the Circuit Court has

decided to reconsider the case of Hubert Michael,

whom I previously evaluated for the District

Court. The fact that Mr. Michael has again

vacillated as to whether he should continue with

his current appeal raises a concern as to whether

any waiver of his appeal of his death sentence is

valid and voluntary. My previous report to the

District Court was premised in part on his

apparent steadfastness which has now dissipated.

Accordingly, before any decision is made

regarding Mr. Michael’s waiver of his rights, a

further evaluation is warranted. 

Then, on January 10, we received another letter from

Michael (dated January 9). It read, “I want the Court to know

that Joseph Cosgrove is both my friend and my lawyer, and I

want him to remain my lawyer for the duration of this matter.”

Michael set a final letter on February 6. It read:

This letter is to inform the court that I,

Hubert L. Michael, Jr., wish for no further appeals

regarding my sentence of death. Please do not

misconstrue my last letter to this court where I
 A COA may issue only upon “a substantial showing of the 9

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). If a

“district court has rejected the constitutional claims on the

merits, the showing required to satisfy § 2253(c) is

straightforward: The petitioner must demonstrate that reasonable

18

stated that I would like Joseph Cosgrove to

continue to represent me.

Yes, I would like Joseph Cosgrove to

continue to represent me for as long as I am

before any court regarding any criminal

matter. . . . However, I ask for no further appeals

regarding my sentence of death.

Dr. Wettstein also sent a letter, referring to Michael’s

February 6 letter, in which Dr. Wettstein reiterated that he

“continue[s] to believe that further evaluation . . . is warranted

before any decision is made regarding a waiver of Mr. Michael’s

current appeal.”

II. Jurisdiction and Standard of Review

The District Court had jurisdiction under 28 U.S.C.

§§ 2241 and 2254. As noted, our Court granted a COA on

whether the District Court violated 21 U.S.C. § 848(q)(4)(B) by

dismissing Michael’s counsel, so we have appellate jurisdiction

under 28 U.S.C. §§ 1291 and 2253.9
jurists would find the district court’s assessment of the

constitutional claims debatable or wrong.” Slack v. McDaniel,

529 U.S. 473, 484 (2000). Where, as here, the District Court

has rejected the claims on procedural grounds, the prisoner must

establish “that jurists of reason would find it debatable whether

the petition states a valid claim of the denial of a constitutional

right and that jurists of reason would find it debatable whether

the district court was correct in its procedural ruling.” Id.

19

III. Discussion

A. Can we dismiss Michael’s appeal? 

Before we can even consider the merits in this case, we

must deal with whether we should dismiss Michael’s appeal

altogether, for Michael has indicated several times that he does

not wish his appeal to proceed. To recap, we have letters to this

effect dated April 14 and November 26 in 2004; February 22,

March 28, May 23, and September 19 in 2005; and February 6

in 2006. On the other hand, Michael expressed a desire for his

appeal to proceed on May 5, 2004. Cosgrove reported in

December 2004 that Michael was “anything but steadfast in his

desire to terminate this appeal,” and Michael made no effort to

have our June 2005 order (sending the case back to the District

Court) reconsidered or appealed. And his letter of January 9,

2006, suggested that he wanted Cosgrove to “remain [his]

lawyer for the duration of this matter.” 
It is also well settled that a defendant has a right to waive 10

representation. See Faretta v. California, 422 U.S. 806, 834–36

(1975) (establishing the right of criminal defendants to proceed

without counsel when they elect to do so voluntarily and

intelligently); see also United States v. Stubbs, 281 F.3d 109,

116 (3d Cir. 2002). 

20

Under Federal Rule of Appellate Procedure 42(b),

appeals “may be dismissed on the appellant’s motion on terms

agreed to by the parties or fixed by the court.” In United States

v. Hammer, we stated that we had “discretion to grant, or to

deny,” a defendant’s motion for dismissal. 226 F.3d 229, 234

(3d Cir. 2000).10

So we can dismiss Michael’s appeal. But we must first

address whether Michael is competent to withdraw his appeal.

B. Is Michael competent to dismiss his appeal?

The District Court found Michael competent in its 2004

opinion. Normally, we would presume that Michael’s

competency continues to the present. See, e.g., Lonchar v.

Thomas, 58 F.3d 588, 589 (11th Cir. 1995) (per curiam); Smith

v. Armontrout (Smith VII), 865 F.2d 1502, 1505 (8th Cir. 1988)

(en banc). But the presumption of continuing competency does

not hold if “some substantial reason to the contrary appears.”

Smith VII, 865 F.2d at 1505.
21

We believe that such a “substantial reason” appears here.

In the District Court proceedings, Dr. Wettstein’s role was

particularly important; his report and testimony were the bases

for the District Court’s competency finding. The Court

expressed high regard for Dr. Wettstein in its opinion, calling

him “exceptionally well-qualified,” and stating that “[t]here was

no evidence of possible bias on [his] part” and that “[t]here can

also be no dispute about [his] qualifications.” Michael, 2004

WL 438678, at *20. But Dr. Wettstein subsequently has thrice

taken the position that Michael should be reevaluated. As noted

above, after learning of Michael’s desire to pursue this appeal,

he wrote in June 2004 that “it is my psychiatric opinion that Mr.

Michael’s mental state needs further exploration. His

representation that he wishes to litigate his criminal conviction

and death sentence should be evaluated.” In January 2006, Dr.

Wettstein wrote again, stating that, because of Michael’s

vacillations, a concern had been raised “as to whether any

waiver of his appeal of his death sentence is valid and voluntary.

My previous report to the District Court was premised in part on

his apparent steadfastness[,] which has now dissipated.” He

wrote a third time—in February 2006—to suggest “further

evaluation.” This second-guessing by the expert who was the

foundation of the District Court’s competency finding

constitutes a “substantial reason” not to presume continuing

competency here.

The result in Smith VII is not to the contrary. There,

Smith had changed his mind about whether he wished to pursue
22

his habeas proceeding, apparently because he had gotten

married. Smith VII, 865 F.2d at 1504. The en banc Eighth

Circuit Court held that his change of position did not warrant

reopening proceedings for the purpose of holding an additional

competency hearing. Id. at 1506. The Court cited for support

the conspicuous absence of “any allegations of new psychiatric

examinations or new conduct by Smith, other than the facts of

his marriage and his changes of mind.” Id. at 1504. Although

affidavits from three psychiatrists supporting reassessment were

before the Court, these did not suffice either. None of these

psychiatrists had ever examined Smith, they had all used

language that was “carefully hedged and tentative,” and the

Court considered the dispositive issue to be “one of common

sense and good moral judgment” rather than “of medical

expertise.” Id. at 1505. 

But here Dr. Wettstein has examined Michael, and

thoroughly. Moreover, Michael’s previous steadfastness had

been a key basis for Dr. Wettstein’s conclusion of competence.

Dr. Wettstein has not now declared Michael incompetent, but he

has called for a new evaluation, in language that is neither

hedged nor tentative. The principal source for the District

Court’s competency finding has wavered based on Michael’s

post-evaluation conduct. We therefore do not apply the

presumption of continuing competency to the District Court’s

2004 finding.

An appeal may not be withdrawn if the prisoner is
23

incompetent. See id. at 1506–07 (“If someone decides that he

or she prefers to acquiesce in a presumptively lawful judgment

of a court, this decision should be respected, unless that person’s

mental condition is so abnormal that it does not meet accepted

legal requirements.”); cf. Rees v. Peyton, 384 U.S. 312, 313–14

(1966) (per curiam) (requiring a prisoner’s competency to be

determined before deciding whether to allow a prisoner to

withdraw his certiorari petition); Hammer, 226 F.3d at 232 &

n.2 (noting that we were satisfied with Hammer’s competency

before granting his motion to dismiss his appeal). In Rees v.

Peyton, the Supreme Court faced the question of how it should

proceed when Rees, who had been convicted of murder and

sentenced to death, directed his counsel to withdraw his petition

for certiorari and to forgo any further federal habeas

proceedings. 384 U.S. 312. Rees’s counsel advised the Court

that “he could not conscientiously accede to these instructions”

without Rees’s receiving a psychiatric evaluation. Id. at 313.

Rees was examined, but experts did not agree on whether he

was incompetent. Id. The Court concluded that the District

Court had to make a determination regarding Rees’s competency

before it could make a decision about the certiorari petition.

Because his “mental competence [was] of prime importance” to

the question of whether withdrawal would be allowed, the

District Court was directed to “make a judicial determination as

to Rees’ mental competence and render a report on the matter to

[the Supreme Court].” Id. at 313–14. The Court further

directed the District Court to determine whether Rees “ha[d]

capacity to appreciate his position and make a rational choice
As already mentioned, however, this section was repealed in 11

March 2006. Terrorist Death Penalty Enhancement Act of 2005,

24

with respect to continuing or abandoning further litigation or on

the other hand whether he [was] suffering from a mental

disease, disorder, or defect which may substantially affect his

capacity.” Id. at 314.

If we have any doubts about Michael’s competency, Rees

requires us to remand to the District Court for another

competency hearing before we dismiss his appeal. Dr.

Wettstein’s letters do give rise to doubts about Michael’s

competency; thus we remand to determine if Michael is

competent to make the decision to dismiss the appeal. Upon the

District Court’s making its determination, it should send us its

report on the issue setting forth its conclusion and the reasons

for it. If Michael is again found competent, and if he again

wishes to withdraw his appeal, then we must obey his wishes.

Cf. Jones v. Barnes, 463 U.S. 745, 751 (1983) (noting that an

“accused has the ultimate authority” to decide whether to “take

an appeal”).

* * * * *

We therefore remand this matter to the District Court for

another competency hearing. By doing so, we do not rule on

whether to dismiss this appeal or on the 21 U.S.C.

§ 848(q)(4)(B) issue. Michael has indicated that he wants 11
Pub. L. No. 109-177, tit. II, subtit. B, § 222(c), 120 Stat. 192,

232 (2006).

25

Cosgrove as his attorney, and Cosgrove’s continued

representation is permissible on remand without an order from

the District Court.

We note that, if Michael is again found competent, he

will have one last opportunity to have his appeal heard.

Accordingly, the District Court, if Michael is found competent,

should ask him the following question: “Do you wish the Court

of Appeals to dismiss the appeal taken in your name from the

order entered in this Court dismissing the habeas corpus petition

filed in your case?” If the answer is yes, we shall abide by that

answer and dismiss the appeal.

GREENBERG, Circuit Judge, concurring.

I join in Judge Ambro’s opinion remanding this case to

the district court for the limited purposes of making another

determination regarding Michael’s competency before we

determine whether to dismiss this appeal and to ascertain if

Michael still wants us to dismiss the appeal. Nevertheless,

because I have reservations regarding what we are doing and

because in joining the opinion I am not being consistent with the

position I took twice earlier on this appeal, I write this

concurring opinion to explain why I am doing so. 
26

At the outset I want to point out that there are two

motions pending to dismiss the appeal: the respondents’ motion

and Michael’s constantly repeated pro se letter motion. I focus

on Michael’s motion because it is the key to this appeal

inasmuch as if he had wanted the appeal to be heard on the

merits it likely already would have been heard and decided. On

the other hand, unless constrained by Michael’s letter to us on

May 5, 2004, if he is competent to make the decision to ask us

to dismiss this appeal, I agree with Judge Ambro that we should

dismiss the appeal. I do not see how we could do otherwise

inasmuch, as I will explain below, Michael did not take this

appeal. See Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308,

3312 (1983) (“[T]he accused has the ultimate authority to make

[the] decision[ ] . . . whether to . . . take an appeal.”); see also

Faretta v. California, 422 U.S. 806, 834-36, 95 S.Ct. 2525,

2540-41 (1975).

The letter of May 5, 2004, which could prevent us from

satisfying the obligation that we otherwise would have to

dismiss this appeal, asked us to hear his appeal on the merits.

But if we decline to dismiss this appeal by reason of Michael’s

May 5, 2004 letter, which is his only communication to this

court requesting that we entertain the appeal, we would have to

disregard Michael’s request on six occasions after May 5, 2004,

that we dismiss his appeal. In my view, regardless of what

might be appropriate if an appellant repeatedly changes his

position on whether his case should be heard on the merits, or

has not repeatedly stated that he wants the appeal dismissed, see
27

St. Pierre v. Cowan, 217 F.3d 939, 949-50 (7th Cir. 2000);

Smith v. Armontrout, 865 F.2d 1515, 1516 (8th Cir. 1988),

inasmuch as Michael has not taken a seesaw approach on his

request that we dismiss the appeal, neither St. Pierre nor Smith

is a precedent that could support a decision to deny his motion

to dismiss this appeal. Rather, it is clear that if Michael is

competent and we do not dismiss this appeal we would not be

following the Supreme Court’s direction in Jones that a court

must recognize that the accused decides whether to take an

appeal. Thus, even though a court of appeals ordinarily

exercises discretion in determining whether to dismiss an

appeal, see United States v. Hammer, 226 F.3d 229, 234 (3d Cir.

2000), in this case it seems clear to me that we do not have

discretion to deny Michael’s request or, if we do, that we would

abuse our discretion if we did not grant his request.

It is highly significant, indeed remarkable, with respect

to the tenuous nature of these proceedings, that Michael did not

decide to take an appeal in this case in the first place and, in

fact, this case never should have reached this court. Thus, the

actual question before us is whether a defendant may cause an

appeal filed in his name without his authority by someone else

to be dismissed. In this case, the Capital Habeas Corpus Unit of

the Defender Association of Philadelphia, without Michael’s

authorization, filed the appeal from the district court’s order of

March 10, 2004, granting Michael’s motion to dismiss the

habeas corpus petition. Thus, this case truly is extraordinary

because the Capital Habeas Corpus Unit filed this unauthorized
The Capital Habeas Corpus Unit filed its notice of appeal solely on 12

behalf of Michael and did not recite in the notice of appeal that it was

appealing on behalf of itself. In accordance with our practice the

clerk of this court entered an order on April 13, 2004, appointing the

Capital Habeas Corpus Unit “to continue to represent” Michael on

this appeal, thus demonstrating that the clerk did not know that the

district court had dismissed the Capital Habeas Corpus Unit as

counsel for Michael. It is understandable that the clerk did not know

that the district court had dismissed the Capital Habeas Corpus Unit

inasmuch as the Capital Habeas Corpus Unit filed the notice of

appeal. In any event the clerk made the appointment after the Capital

Habeas Corpus Unit filed the appeal so the clerk’s order could not

have given it the authority to file the notice of appeal. The

appointment did not last long for a panel of this court revoked it on

May 4, 2004.

28

appeal in the name of an appellant whom the district court had

found to be competent, from an order that the appellant had

sought and obtained and from which, quite naturally, he did not

want to appeal. 

Moreover, there is yet another extraordinary fact about

this appeal. The Capital Habeas Corpus Unit filed the appeal

even though the district court in its March 10, 2004 order

dismissing the petition for habeas corpus also dismissed the

Capital Habeas Corpus Unit and all its attorneys as counsel for

Michael, Michael v. Horn, No. 3:CV-96-1554, 2004 WL

438678, at *24 (M.D. Pa. Mar. 10, 2004), and neither we nor the

district court ever has stayed that order. Accordingly, the 12

Capital Habeas Corpus Unit acted without authority when it
29

filed this appeal in an attempt to frustrate Michael’s wishes.

The reality of the situation could not be clearer. The Capital

Habeas Corpus Unit, rather than representing Michael, its

supposed client, was representing itself and advancing its own

agenda when it filed this appeal.

Michael made the situation clear to this court at the outset

of this appeal when he wrote an undated letter to Chief Judge

Scirica that this court received on April 14, 2004, stating as

follows:

My name is Hubert L. Michael, Jr. I recently had

my death warrant signed by the governor of

Pennsylvania. I am not appealing my sentence.

I was recently able to get the attorneys, with the

Defender Association of Philadelphia, dismissed

from trying to represent me in any capacity. This

was ordered by Judge Thomas Vanaskie of the

U.S. District Court.

I am now writing you because I know that the

courts had not heard the last of these attorneys

with the Capital Habeas Corpus Unit.

These attorneys are not authorized by me, or the

courts, to file any petitions, etc., on my behalf. I

ask this court to not recognize any petitions filed
I am uncertain when Michael found out that the Capital Habeas 13

Corpus Unit filed the appeal, and thus I am uncertain if he was aware

that it had filed the appeal before he wrote the April 14, 2004 letter.

I do know, however, from the certificate of service attached to the

notice of appeal that the attorney for the Capital Habeas Corpus Unit

served the notice of appeal solely on a Pennsylvania Assistant

Attorney General and that he did so by mail on April 8, 2004.

30

by these attorneys or any other individual.

I would also like to state for the record the I am

one-hundred percent mentally competent. As I

pled guilty to homicide, in the Courts of Common

Pleas, my mental state is the only avenue for these

attorneys to pursue.

Let’s stop this legal merry-go-round by these attorneys.

As anyone can see, and as can be said with respect to all of

Michael’s correspondence to this court, the letter was

completely clear and coherent and was not the product of an

incompetent or mentally disturbed author. Quite to the contrary,

Michael demonstrated in his April 14, 2004 letter that he had an

excellent grasp of the situation confronting him as the Capital

Habeas Corpus Unit already had filed its unauthorized appeal.13

Accordingly, it is clear that from the very time that Capital

Habeas Corpus Unit filed this appeal, the proceedings in this
31

court have been irregular as the appeal never should have been

taken.

It is important to remember that the appeal followed

district court proceedings in which the court dismissed the

petition at Michael’s request only after the most meticulous

consideration of his competency. The court started its opinion

dismissing the petition by indicating that “[a]t issue is this

matter is whether death-sentenced Hubert Michael is competent

and has knowingly, rationally, and voluntarily chosen to waive

. . . a collateral challenge to his state court conviction and

sentence.” Michael v. Horn, No. 3:CV-96-1554, 2004 WL

438678, at *1 (M.D. Pa. Mar. 10, 2004). The court ended its

opinion explaining as follows:

To determine whether Mr. Michael is

competent to decide to dismiss counsel and this

habeas corpus proceeding, this Court sought to

provide ‘a constitutionally adequate fact-finding

inquiry to make a reliable determination . . . .’

Mata v. Johnson, 210 F.3d 324, 327 (5th Cir.

2000). That process included (1) a current

examination by a highly qualified expert [Dr.

Robert Wettstein], (2) an opportunity for the

parties to present pertinent evidence, and (3) an

examination of Mr. Michael in open court

concerning his decision to waive further

proceedings. For purposes of this proceeding,
32

Mr. Michael was also appointed independent

counsel.

Throughout these proceedings, Mr.

Michael has maintained the consistent position

that he does not seek federal court intervention

with respect to his conviction and sentence.

Having found, without hesitation, that Mr.

Michael is competent, and has made a knowing,

rational and voluntary decision, this Court has no

choice but to honor that decision.

As did the death-sentenced inmate in

Comer [v. Stewart, 230 F. Supp. 2d 1016 (D.

Ariz. 2002)], Mr. Michael ‘has made a competent

and free choice, which “is merely and example of

doing what you want to do, embodies in the word

liberty.”’ 230 F. Supp. 2d at 1072. Also worth

reiterating here is the Eleventh Circuit’s

admonition in Sanchez-Velasco v. Sec’y of the

Dep’t of Corr., 287 F.3d 1015, 1033 (11th Cir.

2002), affirming a district court’s finding that a

defendant competently, knowingly and voluntarily

waived federal court collateral review:

[W]e should not forget the values

that motivated the Supreme Court’s

Whitmore [v. Arkansas, 495 U.S.
33

149, 110 S.Ct. 1717, 109 L. Ed. 2d

135 (1990)] decision and what is

really at stake in this kind of case.

These cases are about the right of

self-determination and freedom to

make fundamen tal choices

affecting one’s life . . . . [A] death

row inmate . . . 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 . .

. . He has never asked [the

attorneys] 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.

Likewise, this Court has no choice but to enforce

Mr. Michael’s knowing, rational and voluntary

directive that legal challenges to his conviction

and sentence cease.
34

Id. at *23.

In considering this appeal we also should keep in mind

that Michael is in an unusual position with respect to his

attorney on the appeal, Joseph M. Cosgrove. Michael wants

Cosgrove to represent him, and thus he does not view Cosgrove

in the negative way he views the Capital Habeas Corpus Unit.

Yet as I explained in my dissent from the order denying

rehearing on July 7, 2005, “Cosgrove and Michael are working

at cross-purposes as it is clear that Cosgrove does not want us to

dismiss Michael’s appeal but Michael does.” Michael v. Horn,

No. 04-9002, 2005 U.S. App. LEXIS 13463, at *15 (3d Cir. July

7, 2005).

Why then do we not dismiss this appeal at this time as

Michael repeatedly has asked us to do? After all, it might be

thought that if he was competent to dismiss the petition for

habeas corpus surely he must be competent to dismiss the

appeal. The reason is that Dr. Robert Wettstein, on whom the

district court relied in finding Michael competent, since has

expressed some words of caution regarding Michael’s

competency. Five days before we heard a preliminary oral

argument in this case on June 22, 2004, and thus before we

issued our limited certificate of appealability in this case dealing

only with the discharge of his attorneys in the district court’s

March 10, 2004 order, we received a letter that had been signed

by Dr. Wettstein indicating:
35

I have . . . been informed that Mr. Michael

represented to the Court of Appeals that he no

longer wishes to be executed, but wants the legal

issues in his case presented with the assistance of

new legal counsel. Based upon his recent change

of mind, it is my psychiatric opinion that Mr.

Michael’s mental state needs further exploration.

His representation that he wishes to litigate his

criminal conviction and death sentence should be

evaluated.

Later Dr. Wettstein wrote a letter dated January 4, 2006,

explaining that “a further evaluation is warranted” because

Michael had “again vacillated” with respect to continuing his

appeal. At that time Dr. Wettstein said that he would be willing

to make the evaluation. He reiterated that position in another

letter about a month later. It appears that he wrote these letters

as a result of contact between him and Cosgrove. 

Regardless of the etymology of these letters, obviously

they should have caused us to pause before we dismissed the

appeal, and they did have that effect. Yet we should consider

the letters within the context of the actual history of this appeal.

 As Judge Ambro points out in his opinion, Michael wrote this

court on April 14, 2004; November 26, 2004; February 22,

2005; March 28, 2005; May 23, 2005; September 19, 2005; and

February 6, 2006, indicating that he does not want the appeal to

proceed. The only time he took a contrary position was on May
The only ways Michael could have challenged the June 2, 2005 14

order was to petition for a rehearing or for certiorari.

36

5, 2004, when he requested that the appeal proceed. 

It is true, as Judge Ambro also points out, that Michael

“made no effort to have our June [2, 2005] order (sending the

case back to the District Court) reconsidered or appealed,” but

neither Dr. Wettstein nor anyone else can draw any inference

from that inaction. After all, could anyone really expect a

litigant represented by counsel to file a pro se petition for

rehearing or a petition for certiorari? Moreover, when the 14

respondents petitioned for rehearing of the June 2, 2005 order,

Michael did not oppose that petition and ask us to adhere to the

June 2, 2005 order. If his failure to seek a reversal of the June

2, 2005 order can give rise to an inference that he did not object

to the remand, then his failure to object to the respondents’

petition for rehearing or to our August 10, 2005 order granting

rehearing of the June 2, 2005 order and recalling the mandate

issued following the June 2, 2005 order would require that we

draw the reverse inference that he did not want the matter

remanded as provided in the June 2, 2005 order. 

It is also evident that the fact that he wants Cosgrove to

be his attorney does not mean that Michael wants his appeal to

be heard and cannot in any way suggest that he is vacillating

with respect to that question. Michael clearly wants Cosgrove

as his attorney at the same time that he wants his appeal to be
Actually my opinion already makes it obvious that I have 15

reservations about the remand so my explanation of the reasons for

the reservations at this point merely expands on what I have said.

37

dismissed, and there is no reason why this representation should

not be permitted inasmuch as Cosgrove has agreed to be his

attorney. Though I can understand why it might seem surprising

that Michael still wants Cosgrove as his attorney inasmuch as

they have different attitudes about whether we should dismiss

the appeal, I also understand why he would want Cosgrove as

his attorney as they frequently have conferred, and Cosgrove has

visited him quite often. Plainly they have had a significant

relationship. Indeed, in a letter to this court dated January 9,

2006, Michael described Cosgrove as his lawyer and “friend.”

Now that I have given the background of the case as

germane to the remand we are ordering, I will explain why I

have reservations about the remand but nevertheless agree to

it. I first will explain why I have reservations focusing on Dr. 15

Wettstein’s letters and then explain my more general

reservations regarding a remand. My first problem with Dr.

Wettstein’s letters is that I really do not know if he had been

given the full picture before he wrote them. After all, as he

explained in his June 2004 letter, he was basing his opinion on

what he had been “informed,” so that in assessing his letters it

would be significant to know what information he had when he

wrote them. In this regard I want to point out that in Dr.

Wettstein’s January 4, 2006 letter he said that a further
38

evaluation is warranted because Michael had “again vacillated.”

Yet the factual basis for the statement is questionable because

even if we treat Michael’s February 5, 2005 letter asking for two

weeks to reconsider his decision to have this appeal dismissed,

to which Judge Ambro refers in his opinion, as reflecting

vacillation, on March 28, 2005, he made it clear that he wanted

the appeal to be dismissed and he has adhered to that position

ever since. Thus, from March 28, 2005, until January 4, 2006,

Michel simply had not vacillated.

But I do not want to protract these proceedings any

longer by suggesting that we remand the case for the district

court to ascertain what information Dr. Wettstein had when he

wrote his letters as a preliminary step before we determine

whether we should remand the case for a further evaluation of

Michael’s competency. I reject this idea of a preliminary

remand because a study of the record in this case shows that

actually Michael has been quite consistent in his wish that we

dismiss this appeal. Moreover, Dr. Wettstein has not repudiated

the conclusion he stated to the district court that Michael at that

time was competent to make the decision to dismiss the habeas

corpus proceedings. He has suggested only that Michael be

evaluated further. It seems clear to me that Michael has been

consistent because Michael’s only real inconsistency with

respect to his wish to dismiss this appeal was on May 5, 2004,

when he asked that we hear the case. It is true that, as Judge

Ambro has explained, and I already have indicated, on February

5, 2005, Michael asked for two weeks more to consider whether
Sometimes a separate proceeding is required for determination of 16

the sentence to be imposed. In fact, that was the situation in

Michael’s prosecution.

39

he wanted the appeal dismissed following which on March 28,

2005, he said he wanted it dismissed. It would be a stretch, but

I suppose that a person asking for time to think over a decision

could be characterized as vacillating.

In considering whether Michael’s hesitation, which at the

latest ended 16 months ago, can be regarded as indicating that

he has been vacillating to such a degree as to reflect on his

competency, we should remember what every judge and attorney

knows, i.e., litigation whether criminal or civil does not go

forward in a straight line, and litigants whose competency

cannot be questioned and, in fact, is not questioned change their

minds regarding critical issues during the course of litigation.

I will give two examples known to everyone familiar with

judicial proceedings.

Federal Rule of Criminal Procedure 11(b) sets forth a

detailed list of requirements that a court must follow before

accepting a plea of guilty, and state courts have similar

procedures. One might suppose that when courts follow those

rules, as they almost always do, and the defendant pleads guilty,

that he quite conclusively has waived his right to a trial at least

with respect to whether he is guilty of the offense for which he

has been charged. Yet there is an extensive body of case law 16
40

dealing with motions by defendants to withdraw pleas of guilty.

See, e.g., United States v. Jones, 336 F.3d 245 (3d Cir. 2003).

Obviously a defendant making such a motion has changed his

mind and can be said to have vacillated but can anyone believe

that merely because he does so that the court should order that

a competency evaluation be made of him?

It often correctly is said that the parties resolve most civil

litigation through settlement agreements. But, as judges and

attorneys know, a settlement does not always resolve the

controversy at hand. That circumstance has give rise to much

litigation dealing with enforcement of settlements, frequently

because parties have changed their minds and reject settlements

they earlier approved. See, e.g., Commc’n Workers of Am. v.

N.J. Dep’t of Personnel, 41 Fed. Appx. 554 (3d Cir. 2002) (per

curiam) (“The National . . . notified the district court that the

National no longer consented to the proposed settlement.”).

Should we conduct competency evaluations of civil litigants

who reject settlements to which they have agreed?

In the context of what is involved in this case, I regard

Michael’s hesitation about this appeal going forward as not

reflecting on his competency at all. For him this case has not

involved money or even liberty. Rather, this litigation involves

the ultimate question of life or death. If faced with his choice,

the most competent and stable person might hesitate or vacillate

before dismissing an appeal in an action that, if continued,

surely would delay the execution of a death sentence, as it
Michael was aware of similar possibilities if he kept the district 17

court proceedings going, but he elected not to do so. Michael v.

Horn, 2004 WL 438678, at *11.

41

already has with respect to Michael, or, even if the chance of

success may seem remote, actually preclude it. Moreover, as 17

I have explained, his actual degree of vacillation has been quite

minimal. Thus, inasmuch as Dr. Wettstein has predicated his

call for Michael’s further evaluation on Michael’s vacillation I

have serious questions about the efficacy of Dr. Wettstein’s

suggestion. Accordingly, I have two problems with Dr.

Wettstein’s letters. First, I do not know that they reflect what

actually happened with respect to Michael’s vacillation.

Second, I doubt that Michael’s vacillation can be regarded as so

significant with respect to his competency that it casts doubt on

the prior unassailable determination of the district court that he

was competent to decide whether this litigation should go

forward. 

As I said earlier, in addition to questioning whether

Michael’s minimal vacillation calls for his further evaluation,

there are two more general reasons not specifically dealing with

Michael’s competency why I am agreeing with reluctance to a

remand for a further evaluation. To start with there is no doubt

about Michael’s guilt. He did, after all, plead guilty. While I

am aware that a defendant sometimes will plead guilty to a

crime he has not committed, that did not happen here. After

Michael murdered Trista Eng, he concealed her body in a
42

wooded area. The body was not found until he confessed to his

brother more than a month later that he murdered her and told

him where he had concealed the body. His brother and other

family members searched for and found the body and only then

notified the Pennsylvania state police about the situation.

Clearly, only the murderer could have known where the body

could be found. Thus, this is not a case in which there is even

a remote possibility that an innocent defendant has been

convicted.

The second general reason not specifically related to

Michael’s competency why I have reservations regarding the

remand concerns Trista Eng herself as well as her family. I

realize that it sometimes seems that the criminal law is more

concerned with defendants than victims. I regret this fact, but

it is inevitable as a prosecution and trial focus on what the

defendant did and the procedures that must be followed with

respect to his plea and, depending on his plea, to his trial. Yet

this imbalance has caused concern among legislative bodies and

it is good to be able to note that they have taken steps to redress

the imbalance such as by passing victims’ rights statutes.

More than 13 years have passed since Michael murdered

16-year old Trista Eng who was a total stranger to him. He

encountered her when she was on her way to work at a Hardees

restaurant where she had a summer job. In a wanton and

senseless act, he murdered her because he faced rape charges

involving another woman that he felt were not justified. He
43

pleaded guilty to murdering Trista Eng, and the Pennsylvania

Supreme Court upheld his conviction on a mandatory appeal,

Commonwealth v. Michael, 674 A.2d 1044 (Pa. 1996), and later

affirmed the trial court’s denial of post-conviction relief.

Commonwealth v. Michael, 755 A.2d 1274 (Pa. 2000). Then,

at Michael’s own request at a time that he undoubtedly was

competent, the district court dismissed the habeas corpus

proceedings started in his name. There can be no doubt that

Michael was competent when he asked the district court to

dismiss the habeas corpus proceedings. Indeed, when we issued

the certificate of appealability in this case we did not even

mention a competency question, and thus even if we did not

dismiss the appeal we could not review the district court’s

determination that Michael was competent to cause the habeas

corpus proceedings to be dismissed.

I cannot help but think that the proceedings in this case

must be torturing the family of Trista Eng. Her family knows

what everyone who is familiar with this case knows, i.e.,

Michael murdered her, and though he has been sentenced to die

and the Pennsylvania courts have upheld his conviction and

sentence both on direct appeal and on a collateral review, the

sentence has not been carried out. Though no one can say for

sure how Trista Eng’s life would have unfolded, I can say that

if Michael had not murdered her she would now be a 29-year old

woman and would have had an opportunity to live her life and

to marry and have her own family. Michael deprived her of that

opportunity. 
44

Indeed, I cannot help but wonder whether Michael has

sought to terminate these proceedings because he recognizes the

harm that he has done to Trista Eng and her family and has been

trying to terminate the judicial proceedings knowing that if he

does so he will make amends so far as he now can do. I say this

because surely he must have felt remorse after he murdered

Trista Eng for I can discern no other reason why he confessed to

his brother that he had murdered her. Thus, it seems that,

notwithstanding the crime that Michael committed, he plainly

differs from the remorseless defendants that courts sometimes

see who exalt in what they have done. 

I ask this question: Does not the court system owe

anything to Trista Eng and her family and, so far as it can do so,

while acting consistently with the law, should it not bring her

family’s torture to an end, particularly when the person

responsible for her murder wants it ended? I know that with

respect to criminal punishments death is different. See Furman

v. Georgia, 408 U.S. 238, 306-07, 92 S.Ct. 2726, 2760 (1972)

(Stewart, J., concurring). But cannot the same thing be said with

respect to the effect of the crime of murder on the victim and her

family as compared to all other crimes? Is our law so one sided

that at a trial and on appeals only the defendant is of any

importance?

Anyone who reads my opinion might wonder why,

instead of joining in Judge Ambro’s opinion, I am not dissenting

and voting to dismiss this appeal. Moreover, in this regard a
If I had written the majority opinion, in some respects it would have 18

differed from what Judge Ambro wrote. But it is always true that

even though judges agree on the appropriate outcome of a case, they

would not write identical opinions.

45

reader could point to my dissent from the June 2, 2005 order

remanding the case in which I said that I would dismiss the

appeal and my dissent from the order denying the petition

seeking a rehearing of the June 2, 2005 order in Michael v.

Horn, 2005 U.S. App. LEXIS 13463, at *26, in which I

indicated that I believed that “the panel should grant rehearing,

vacate the June 2, 2005 order, and dismiss the appeal.” Indeed,

a reader reasonably could assert that by joining in Judge

Ambro’s opinion I am vacillating. 

But in the end there are three reasons why I am not

dissenting and instead am joining in Judge Ambro’s opinion.

First, of course, I believe that regardless of the considerations I

have set forth, Judge Ambro’s opinion is correct and I cannot

allow my personal view of a case to trump my obligation to

follow the law. Second, at the time of the June 2, 2005 order 18

remanding the case and at the time of the denial of the petition

seeking rehearing of that order the situation was different than

it is now because the panel was remanding the matter to the

district court “for further proceedings to determine whether

habeas corpus relief is warranted,” thus opening up the entire

case in the district court in complete disregard of the limitations

in our certificate of appealability, and the panel was adhering to
46

that position when denying rehearing. I thought that these

orders were not justified. Now the panel is taking what seems

to me to be the more reasonable and nuanced position that

Michael be reevaluated. Thus, the choice I face now is different

from that which I faced a year ago. 

Third, I have reconsidered the district court’s opinion in

this matter in the light of Judge Ambro’s opinion and have taken

particular note that the district court indicated that in considering

Michael’s competency its “process included . . . a current

examination by a highly qualified expert,” i.e., Dr. Wettstein.

Indeed, the district court listed Dr. Wettstein’s examination as

the first step in its three-step competency inquiry. Now that that

highly qualified expert believes there should be a further

evaluation, whatever my reservations, I think that it is

appropriate to accede to his suggestion. 

In closing I want to comment on the limited scope of our

remand. We are remanding the case for the district court to

determine if Michael is competent to dismiss this appeal. If he

is and he adheres to his decision to dismiss the appeal, we will

do so and the appeal will be over. In that event it will not matter

whether the determinations that the district court made leading

to its order of March 10, 2004, dismissing his habeas corpus

petition were correct or incorrect as we cannot review them. 

On the other hand, if Michael is not competent to dismiss

the appeal or if he is competent to do so but asks us to
47

adjudicate it on the merits we will not dismiss the appeal.

Rather, we will decide the appeal. In that event we will have

jurisdiction to answer only the single two-part question on

which we granted a certificate of appealability on June 30, 2004,

“whether the District Court violated 21 U.S.C. § 848(q)(4)(B) by

dismissing counsel for Hubert Michael and, if the District Court

so erred, whether the error was harmless.” See Miller v.

Dragovich, 311 F.3d 574, 577 (3d Cir. 2002).

I make the foregoing point so that it should be clear that

the proceedings on the remand need not be protracted. The

district court on the remand will not be dealing with a quasimotion for reconsideration of its March 10, 2004 decision and

order and will not be reexamining its original determinations

including, in particular, its determination that Michael was

competent to cause the habeas corpus proceeding to be

dismissed and that he had made “a knowing, rational and

voluntary decision” to cause it to be dismissed which the court

was obliged to honor. It will be dealing with his competency

now to dismiss this appeal. Thus, any reference to Michael’s

competency during the period this case was pending in the

district court or to the evidence on that issue can be germane on

the remand only insofar as it may have bearing on his

competency now.

For all the reasons that I have stated and notwithstanding

my reservations, I join in Judge Ambro’s opinion ordering a

remand in this case for the limited purposes that the district
48

court determine Michael’s competency to dismiss the appeal and

for the district court to ask Michael whether he still wants us to

dismiss the appeal.