In the

United States Court of Appeals

For the Seventh Circuit ____________

Nos. 04-3549, 06-2905

ERIC D. HOLMES,

Petitioner-Appellant,

v.

EDWIN G. BUSS,

Respondent-Appellee.

____________

Appeals from the United States District Court

for the Southern District of Indiana, Indianapolis Division.

Nos. IP 00-1477-C-M/L, 1:05-CV-1763-LJM-WTL—

Larry J. McKinney, Chief Judge.

____________

ARGUED OCTOBER 11, 2007—DECIDED OCTOBER 30, 2007

____________

Before POSNER, FLAUM, and WOOD, Circuit Judges.

POSNER, Circuit Judge. In 1992 the petitioner, originally

named Eric Holmes but now going by the name Koor

An Nur of Katie Mary Brown, was convicted of a pair

of murders committed three years earlier, and in 1993

he was sentenced to death. After exhausting his state

remedies, he filed the first of the two petitions for federal

habeas corpus that are before us (only the first need be

discussed, as will become apparent). One of the issues he

raised was whether he was competent to assist his lawyer

in the habeas corpus proceeding. The district judge, re-
2 Nos. 04-3549, 06-2905

fusing to provide funds to enable the petitioner to hire a

psychologist or psychiatrist who would give evidence

concerning the petitioner’s mental condition, ruled in 2003

(after questioning the petitioner in an effort to form a

judgment about his competence) that he was competent,

and in the following year denied habeas corpus relief. The

petitioner appealed, and in August 2005, before taking up

any other issues presented by the appeal, we ordered a

limited remand to the district court to determine the

petitioner’s competence to proceed with the appeal, in

light of affidavits presented by his counsel suggesting

that his mental condition had deteriorated since the April

2003 hearing. We suggested that the judge, on remand,

consult experts, and he did so. He received and considered reports from two experts, one hired by the state

(Dr. Dan A. Olive), the other by the petitioner (Dr. Rahn K.

Bailey). And he again questioned the petitioner; but he denied the petitioner’s request that Dr. Olive, whose report

was equivocal, be made available for cross-examination.

The appeals in this court then resumed, with the parties

filing new briefs that repeated the original appellate

briefing on all issues except the petitioner’s competence,

concerning which his lawyer asks for a further hearing

in the district court to enable him to cross-examine Dr.

Olive, the state’s expert.

As a matter of first impression, we might doubt the

legal significance of a person’s lacking the mental competence to prosecute, or to assist his lawyer in prosecuting,

a federal habeas corpus proceeding. Technically, habeas

corpus is a civil proceeding rather than a criminal one.

Realistically, it is a stage in the criminal process, but it is

a stage initiated by the criminal defendant rather than

by the state; and it is odd to think that someone who
Nos. 04-3549, 06-2905 3

initiates a proceeding can then freeze it by claiming to be

mentally incompetent. An incompetent person can of

course have a legal claim, and it will be prosecuted by his

guardian or (in the antiquated legal phrase) his “next

friend,” but the fact of his incompetence will not be

allowed to interrupt or delay the proceeding. See the

helpful discussion in O.K. v. Bush, 344 F. Supp. 2d 44, 55-

57, n. 14 (D.D.C. 2004).

But in Rohan ex rel. Gates v. Woodford, 334 F.3d 803 (9th

Cir. 2003), the Ninth Circuit, in an exhaustive opinion by

Judge Kozinski, held that in a capital case a petitioner

for federal habeas corpus must be competent to assist

his counsel; if not, the proceeding must be stayed. Judge

Kozinski relied in part on a federal statute, 21 U.S.C.

§ 848(q)(4)(B), entitling a federal habeas corpus petitioner to counsel in a capital case, and the statute was

recently repealed—but it was promptly replaced by a

materially identical statute. 18 U.S.C. § 3599. Anyway,

his opinion places greater emphasis on other factors,

such as that a waiver of a legal right (concretely, the

right to seek postconviction relief) must, to be effective,

be knowing, implying mental competence. See also Mata

v. Johnson, 210 F.3d 324, 329 (5th Cir. 2000). And really

the presence or absence of counsel is a detail. If the petitioner doesn’t have counsel, the issue is his competence

to proceed without assistance of counsel. If he does have

counsel, the issue is his competence to provide such

assistance to counsel as is necessary to enable the claim

to habeas corpus relief to be prosecuted adequately by

his counsel.

But whether Rohan is right or wrong, we are not disposed to reject it, thereby creating an intercircuit conflict, when the State of Indiana has declined to challenge
4 Nos. 04-3549, 06-2905

it and as a result its validity has throughout these proceedings been assumed rather than litigated.

The most common claim of incompetence to participate

in a proceeding is a criminal defendant’s claim that he

is incompetent to stand trial—that because he is retarded

or insane he cannot understand the proceeding sufficiently to assist in his defense. If he prevails in his claim,

he avoids a conviction. But once he has been convicted

and imprisoned and seeks postconviction relief, he usually

has little to gain by claiming that he is incompetent to

conduct the postconviction proceeding or, if he has the

assistance of a lawyer, to assist in the lawyer’s conduct of

the proceeding. For if the proceeding is halted by a finding that he is incompetent, he just languishes in prison.

So we are not surprised to have found no noncapital

case in which such a claim has been made. But of course

in a capital case the petitioner may prefer to languish in

prison than to see his claims for postconviction relief

denied, opening the way to his execution, though this is

provided that his execution would be stayed until and

unless his postconviction proceeding could be completed.

Another reason that challenges to competence to conduct postconviction proceedings are so rare is that the

petitioner has a tougher row to hoe than when he is

challenging his competence to stand trial. The briefs in this

case duel over the proper standard for assessing incompetence in post-trial proceedings, including appeals

(including these appeals—appeals from denial of

postconviction relief). The state argues that it should be

a higher standard because the client’s role in assisting

his lawyer in a postconviction proceeding is more limited than if he is on trial. The petitioner argues that the

standard should be the same. No cases address the issue.
Nos. 04-3549, 06-2905 5

We do not think that creating different standards to

govern the issue of competence to litigate or assist in

litigation (as distinct from the competence that a defendant must be shown to have in order for him to be convicted of a crime or to be executed, see, e.g., Panetti v.

Quarterman, 127 S. Ct. 2842 (2007); Ford v. Wainwright, 477

U.S. 399 (1986)) is a fruitful approach. The multiplication of

rules and standards, carrying in its train as it does endless

debate over boundaries, is one of the banes of the American legal system, a source of its appalling complexity.

Whatever the nature of the proceeding, the test should

be whether the defendant (petitioner, appellant, etc.) is

competent to play whatever role in relation to his case is

necessary to enable it to be adequately presented.

The test is unitary but its application will depend on

the circumstances. They include not only the litigant’s

particular mental condition but also the nature of the

decision that he must be competent to make. If as in Rees

v. Peyton, 384 U.S. 312, 312-14 (1966) (per curiam),

the question is whether a petitioner for habeas corpus

who has been sentenced to death is competent to withdraw a petition for certiorari filed on his behalf challenging the denial of habeas corpus (see also Mata v. Johnson,

supra, 210 F.3d at 329-31), the answer is unlikely to require

that he understand more than that the withdrawal of his

petition will almost certainly terminate any legal challenge to his death sentence. Or suppose the proceeding

is an appeal and the only nonfrivolous issue that could

be raised turns on an esoteric legal point, incomprehensible to even a highly intelligent, perfectly sane defendant, that if accepted by the appellate court will terminate all proceedings against him. Assume further that

his lawyer is appointed rather than retained. Then all the
6 Nos. 04-3549, 06-2905

mental capacity his client would need in order to be able

to assist in the appeal would be the capacity to make a

rational decision whether to take an appeal that has no

downside. If instead, as is common, the issue for appeal

is whether there was error at sentencing and if the appeal is successful the case will be remanded for resentencing and the judge may give the defendant a heavier

sentence than the one appealed from, the defendant will

need a higher level of mental functioning to be able to

make a rational decision whether to pursue or forgo the

appeal.

Federal habeas corpus happens to be one of the most

complex areas of American law. With respect to many

of the issues that arise in habeas corpus cases, a lay person has nothing to contribute to his lawyer’s strategy. But

it can be different with respect to other issues, several

presented in this case, notably prosecutorial misconduct

at trial and ineffective assistance by trial counsel. The

petitioner was at his trial; his current lawyers were not.

He may—if mentally competent—be able to convey to

his lawyers a better sense of the alleged misbehavior of

the prosecutor and of defense counsel than the trial

transcript and other documentation provide. It is true

that our remand order required only a ruling on the

petitioner’s competence to appeal from the denial by the

district court of the relief he sought by petitioning for

habeas corpus. But the appeal also challenges his competence to have proceeded in the district court; and

to minimize the further protraction of the case, we think

it best to consider the issues together.

The district judge thought back in April 2003 that he

could determine the petitioner’s mental competence just

by questioning him. He didn’t think he needed to take
Nos. 04-3549, 06-2905 7

any psychological evidence. Taking the hint in our remand order, however, he commissioned expert reports;

but he seems to have given little weight to them and to

have relied again on his questioning of the petitioner, in

a hearing that the judge conducted on December 1, 2005.

It is easy to see why the judge found the expert reports unsatisfactory. Dr. Bailey, the petitioner’s expert, a

psychiatrist, while emphatic that the petitioner is schizophrenic, paranoid, and manic-depressive, seems to have

confused a habeas corpus proceeding with a trial, because

he said that the petitioner was incompetent to (among

other things) “identify pertinent witnesses,” “testify in

his own defense,” “refrain from irrational actions in

court,” and “tolerate the predictable stress of his impending trial.” Federal habeas corpus is usually and was here

based on the record of the criminal proceeding against

the petitioner, and only in rare cases is the district court

required to conduct its own evidentiary hearing. 28 U.S.C.

§ 2254 (e)(2); Ford v. Ahitow, 104 F.3d 926, 928 (7th Cir.

1997). The fault, however, was not that of Bailey but that

of the lawyer who hired him and evidently instructed

him to evaluate the petitioner’s competence to stand trial.

And despite this misstep, Bailey’s examination of the

petitioner was thorough (it lasted five hours, and in

addition Bailey reviewed hundreds of pages of medical

records and the transcripts of both of the hearings at

which the petitioner testified), and presents a prima

facie case that the petitioner is incompetent to assist in

the conduct of the habeas corpus proceeding.

Dr. Olive, the state’s witness, a psychologist, initially

declined, in a brief letter to the judge, to offer an opinion

on the petitioner’s competence. In his interview of the

petitioner it had taken Olive two hours to extract basic
8 Nos. 04-3549, 06-2905

background information because of the petitioner’s “rather

circumlocutory, rapid-fire style of communication.” When

Olive then tried to encourage him “to discuss some of

the alleged psychiatric symptomology, e.g., persecutory

delusions and auditory/visual hallucinations, he informed me that he no longer wished to participate in

the evaluation.” Olive found himself “unable to perform

a formal mental status examination or complete psychological testing that may have provided useful data regarding mental disease or mental defect, the likelihood of

malingering, etc.,” although he thought malingering a

“strong possibility.” “Unfortunately,” Olive concluded,

“based upon the aforementioned lack of cooperation,

I simply am unable to offer an opinion regarding mental

disease and, therefore, whether [the petitioner] has sufficient understanding of his legal position and the options available to him. On a more speculative level,

given the fact that this particular competency test focuses

more specifically on cognitive processes, i.e., rational

decision-making, I am not thoroughly convinced that

any psychiatric symptoms that [he] may be currently experiencing significantly compromise such capabilities.

Again, based on insufficient clinical data, my impressions

of [him] are necessarily speculative.”

After reading the transcript of the December 1 hearing,

however, Olive wrote the judge a second letter, similar

to the first but more favorable to the state. For in it he

said that the petitioner’s schizoid and paranoid symptoms do “not appear to compromise the particular competencies currently at issue . . . . I am of the opinion that

he does have the capacity to appreciate his position and

make a rational choice with respect to continuing or

abandoning further litigation. As was stated in the orig-
Nos. 04-3549, 06-2905 9

inal communication [Olive’s first letter, from which we

quoted in the preceding paragraph], this opinion is

based on significantly limited data.” It is unclear how

much of the extensive documentary material bearing on

the petitioner’s competence Dr. Olive reviewed, other

than the transcript of the December 1 hearing.

The district judge, while referring to the experts in

footnotes and even accepting Bailey’s conclusion that the

petitioner is a paranoid schizophrenic, based his judgment that the petitioner is nevertheless competent to

assist his attorney in the appellate phase of habeas

corpus proceedings on what the petitioner said at the

hearing.

Were the petitioner content to have the issue of his

competence decided on the basis of the record compiled

to date, the judge’s ruling might well be sustainable,

although we do not have to decide that. The petitioner’s

lawyer is incorrect in arguing that mental competence is

an issue exclusively for psychiatrists and psychologists to

opine on, not a legal issue for judges to opine on. The

psychiatrist or psychologist is the expert on mental capabilities, but the judge is the expert on what mental capabilities the litigant needs in order to be able to assist in

the conduct of the litigation, and so there are cases in

which the district judge may properly find that a criminal defendant was competent even though the experts

on mental functioning disagree with him. E.g., Matheney

v. Anderson, 377 F.3d 740, 748-49 (7th Cir. 2004); United

States v. Bennett, 908 F.2d 189, 195 (7th Cir. 1990).

But the record is equivocal, leaving us perplexed as to

why the petitioner’s lawyer was not permitted to crossexamine Dr. Olive. That cross-examination, plus any

redirect examination, might not have extended the hear-
10 Nos. 04-3549, 06-2905

ing by more than an hour. One might have thought that

the judge would have wanted Dr. Bailey questioned as

well, to see how far his opinion might have been distorted

by his misunderstanding of the procedural setting. Both

reports left matters hanging in the air that could have

been brought down to earth at little cost in time. Notice

how Dr. Olive, in his revised report, said only that he

thought the petitioner competent to decide whether to

continue or abandon his habeas corpus proceeding, a

decision requiring less mentation than prosecuting the

case or assisting a lawyer in prosecuting it.

We cannot agree with the state that the transcript of

the December 1 hearing, taken together with the equivocal

expert reports, so plainly demonstrates the petitioner’s

competence that the district judge was entitled to truncate

the hearing by denying the petitioner’s counsel an opportunity to cross-examine Dr. Olive. There are lucid

intervals in the petitioner’s responses to the judge’s

questions, but there are also wild and whirling words,

which the judge seems to have ignored. We give a few

examples: “But you and I know a name means everything because you remember you asked me what the

meaning of Koor An Nur was. I wanted to effect it was

a dying man that was inherited by a royal family, Queen

of England, but I never did mention that Koor An Nur

the 93rd law. If you choose to call me by Katie Brown,

last name of my mother, Brown, I’m more than satisfied

with that.” The petitioner told the judge that he had

stopped reading documents relating to his case because

“I feel that somehow individuals are using spirits on me

to sit around and read what I read . . . . I don’t have to do

anything in life really anymore once I start getting attacked by spirits. I can shut everything down and just
Nos. 04-3549, 06-2905 11

lay in my bed at a particular angle taught in the Holy

Quran and hide the sun.”

He seemed obsessed with the fact that the state had at

one point moved to dismiss the charges against him,

though it had later moved to withdraw the motion, and

the motion was never granted. “Once we get by the Federal Court the next step, which is called the 7th Circuit,

is not really an appeal, it is an argument. And that argument is kind of like two individuals arguing it happened,

it didn’t happen, whereas a federal judge, you can sit and

say right here, you know, he signed this signature. And

every day I have like them over there, them prosecutors

and this attorney here, they have to put their name on a

document to you unless you are not going to find it to be

credible, because the first thing you are looking for is

that signature. So when that prosecutor signed his signature on that matter [presumably the motion to dismiss]

saying it was true everybody just—seemed like every

court, the post conviction court, the Indiana Supreme

Court, and then I got to you, and everybody seemed to

say that, well, I don’t see that signature, I don’t see

what happening on that document . . . . So once he signed

that signature it is my belief that he believed what was

entitled in the above information structure. So it is handwriting which is in pen, you know. If I forge a document,

you know, not only should I receive the death penalty

at that point, but, you know, maybe my hand should be

cut off for that, as well.”

When asked about his discussions with his lawyers, the

the petitioner said: “So what me and my attorney, we

just didn’t have a prescription, if you would, a metaphor,

or what I’m trying to express is that we just didn’t have

the medicine between us to bring into balance because
12 Nos. 04-3549, 06-2905

I was looking only at, hey, man, I’m sitting here with

illegal charges, and he may tell me . . . well, that issue,

I understand what you are saying, but you still got to

have more because that issue fails. You will go to the

grave. And once we go beyond that, to me it is like

I don’t know what to say about those issues because I

don’t see how we can get to—I just don’t understand

how we can go any further without us establishing

that, wait a minute, how we have a hearing knowing

that this injustice may be occurring . . . you know, fundamentally you cannot even ask me a question until it is

established that charges are existing properly . . . . So,

basically, I’m saying there is no charges and so I don’t

understand the question . . . . So, you know, in this place

I’m sitting right now, I’m getting what I asked for, which

is a hearing to argue there are no charges in my case.”

Obsessed with the issue of the (he thinks) dismissed

charges, the petitioner seemed unable to focus on any

other issues. Although when asked by the judge whether

he was willing to discuss other theories with his lawyers

he said “yes,” when then asked whether he considered

himself “competent to help them to continue this prosecution of this case” he launched into a diatribe about the

supposed dismissed charges: “I’m only as competent as

the knowledge to know that . . . there are no valid charges

against me in my case.”

He did say he wasn’t hearing voices “right now,” but

that turned out to be the introduction to a long ramble

about how “my mental state is that I’m careful because

I never know who I’m talking to because, as the Quran

teaches, that I have been talking about the jinn being,

the invisible force . . . . I never know who I’m talking to

anymore because they [the jinn beings] could manifest and
Nos. 04-3549, 06-2905 13

beat me up . . . . They are in the cell with me. I see like a

little midget looking, a couple of them, one white and

one black. The little black one just beat me up, and

I wanted to throw some punches, but it is kind of like a

force field . . . . Even at the apex of their anger they

always come back because you levitate. You know, because you levitate, and that is something they interested in.”

There is a further problem with the district judge’s

ruling. In support of the motion to remand, the petitioner’s lawyer had referred us to evidence that his

client’s mental condition had deteriorated since the

April 2003 hearing. So one might have expected the district judge on remand to compare the petitioner’s testimony at the new hearing with the transcript of his testimony at the 2003 hearing. Apparently he did not do so,

for if he had, he could not have failed to notice that

the petitioner’s testimony at the earlier hearing was far

more lucid, compact, and responsive than his testimony

at the later hearing. This deterioration is pertinent to his

condition both in December 2005 and today, 22 months

later.

It is 18 years since the murders, 15 years since the trial,

and 14 years since the petitioner was sentenced to

death, and the end of the legal proceedings is not yet

in sight. We therefore direct that the limited further

remand that we are ordering be conducted with dispatch.

Whether the judge should receive additional evidence

beyond live testimony by the experts will doubtless

depend on the results of that examination, and so we

neither direct nor forbid such further evidence gathering.

If the judge decides that the petitioner is incompetent,

he may wish to reexamine his April 2003 ruling that the
14 Nos. 04-3549, 06-2905

petitioner was competent to participate in the earlier

stages of the habeas corpus proceeding, since the petitioner’s role in assisting counsel would be larger in the

district court than in the court of appeals, though as

we said that the transcript of the earlier hearing is less

suggestive of serious mental illness than the transcript of

the December 2005 hearing. The fact that no expert evidence was presented at the earlier hearing would make

it difficult to assess his condition then, but not necessarily impossible, since his psychiatric records go back

many years.

We do not prejudge the remand. As the petitioner’s

lawyer concedes, the fact that a litigant is psychotic does

not mean that he cannot assist in his case, United States

v. Teague, 956 F.2d 1427, 1432 (7th Cir. 1992); Eddmonds

v. Peters, 93 F.3d 1307, 1314 (7th Cir. 1996); Smith v.

Armontrout, 865 F.2d 1502, 1506 (8th Cir. 1988) (en banc),

especially at the appellate level. United States v. Roberts,

915 F.2d 889, 891-92 (4th Cir. 1990). Much of the time,

even at the December hearing, the petitioner was lucid,

even articulate. He has a good memory, at least a rudimentary familiarity with the legal process, knows who

he is, where he is, etc.; and we take seriously the possibility voiced by Dr. Olive that the petitioner is malingering. If he is not malingering, however, he seems insanely

preoccupied with a frivolous ground of appeal and oblivious to the other, more substantial, grounds that his lawyers

wish to press, as well as severely distracted by fear of

diabolical beings who are scheming against him, preventing him from reading any documents relating to his case.

These matters require further exploration in the district

court, pending which the appeals will remain on our

docket.

REMANDED.
Nos. 04-3549, 06-2905 15

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-02-C-0072—10-30-07