Lenhard v. Wolff, 603 F.2d 91 (9th Cir. 1979). · Go Syfert
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Lenhard v. Wolff, 603 F.2d 91 (9th Cir. 1979). Cases Citing This Book View Copy Cite
39 citation events (5 in the last 25 years) across 19 distinct courts.
Strongest positive: State v. Haugen (or, 2011-11-21)
Treatment trajectory · 1979 → 2026 · click a year to view as-of
1979 2002 2026
Top citers, strongest first. 20 distinct citers. How cited ↗
discussed Cited as authority (rule) State v. Haugen
Or. · 2011 · confidence medium
See Wright v. Thompson, 324 Or. 153, 157 , 922 P.2d 1224 (1996) (assuming, arguendo, that Oregon law may provide third-party standing to seek relief for an incompetent convicted defendant); Ford v. Haley, 179 F.3d 1342 (11th Cir.1999) (capital defendant's former lawyer retained standing to file appeal challenging district court's finding that capital defendant is mentally competent to discharge former counsel and its dismissal of habeas action); Mason by and through Marson v. Vasquez, 5 F.3d 1220, 1223 (9th Cir.1993) (for purpose of competency hearing, court permitted participation of lawyer t…
discussed Cited as authority (rule) United States v. Duncan
9th Cir. · 2011 · confidence medium
Indeed, we recognized that in some cases a lawyer bears an “ethical obligation, acting in the best interest of his client, to contest[his client’s] competency to dismiss his action.” Id. (citing Lenhard v. Wolff, 603 F.2d 91, 92-93 (9th Cir.1979) (per curiam)).
discussed Cited as authority (rule) Comer v. Stewart
D. Ariz. · 2002 · confidence medium
See Gilmore v. Utah, 429 U.S. 1012 , 97 S.Ct. 436 , 50 L.Ed.2d 632 (1976); Whitmore v. Arkansas, 495 U.S. 149, 165 , 110 S.Ct. 1717 , 109 L.Ed.2d 135 (1990)(“next friend” standing is not available if “an evidentiary hearing shows that the defendant has given a knowing, intelligent and voluntary waiver of his right to proceed, and his access to court is otherwise unimpeded”); see also Brewer v. Lewis, 989 F.2d 1021, 1027 (9th Cir.1993); Lenhard v. Wolff, 603 F.2d 91, 93 (9th Cir.1979).
discussed Cited as authority (rule) State v. Berry
Ohio · 1997 · confidence medium
Since he is mentally competent to decide for himself, “[t]o deny him that would be to incarcerate his spirit — the one thing that remains free and which the state need not and should not imprison.” Lenhard v. Wolff (C.A.9, 1979), 603 F.2d 91, 94 (Sneed, J., concurring).
discussed Cited as authority (rule) Durocher v. Singletary
Fla. · 1993 · confidence medium
To deny him that would be to incarcerate his spirit — the one thing that remains free and which the state need not and should not imprison. 603 F.2d at 94 (Sneed, J., concurring). [5] Therefore, because Durocher is apparently *485 competent to do so, we hold that he may waive representation by CCR and that CCR has no duty or right to represent a death row inmate without that inmate's permission.
discussed Cited as authority (rule) Baal ex rel. Baal v. Godinez
D. Nev. · 1990 · confidence medium
Therefore, under the authority of Gilmore v. Utah, 429 U.S. 1012 , 97 S.Ct. 436 , 50 L.Ed.2d 632 (1976), Whitmore v. Arkansas, — U.S. -, 110 S.Ct. 1717 , 109 L.Ed.2d 135 (1990), Evans v. Bennett, 440 U.S. at 1301, 99 S.Ct. at 1481 , and Lenhard v. Wolff, 603 F.2d 91, 93 (9th Cir.1979), the petitioners’ application for stay of execution is DENIED.
discussed Cited as authority (rule) BAAL ON BEHALF OF BAAL v. Godinez
D. Nev. · 1990 · confidence medium
Therefore, under the authority of Gilmore v. Utah, 429 U.S. 1012 , 97 S.Ct. 436 , 50 L.Ed.2d 632 (1976), Whitmore v. Arkansas, ___ U.S. ___, 110 S.Ct. 1717 , 109 L.Ed.2d 135 (1990), Evans v. Bennett, 440 U.S. at 1301, 99 S.Ct. at 1481 , and Lenhard v. Wolff, 603 F.2d 91, 93 (9th Cir.1979), the petitioners' application for stay of execution is DENIED.
discussed Cited as authority (rule) Robert L. Streetman v. James A. Lynaugh, Director, Texas Department of Corrections, Respondent
5th Cir. · 1988 · confidence medium
Rees v. Peyton, 384 U.S. 312 , 86 S.Ct. 1505 , 16 L.Ed.2d 583”), cert. denied, 465 U.S. 1085 , 104 S.Ct. 1458 , 79 L.Ed.2d 906 (1984); Lenhard v. Wolff, 603 F.2d 91, 93 (9th Cir.1979) (“Some minimum showing of incompetence must appear before a hearing is necessary”). 14 .Morgan, 559 F.2d at 398 ; see also Partin, 552 F.2d at 636 .
discussed Cited as authority (rule) Smith by and Through Smith v. Armontrout
W.D. Mo. · 1985 · confidence medium
In considering a motion to proceed as “next friend” in a habeas corpus proceeding, the crucial issue is “whether [Gerald Smith] has capacity to appreciate his position and make a rational choice with respect to continuing or abandoning further litigation or on the other hand whether he is suffering from a mental disease, disorder, or defect which may substantially affect his capacity in the premises.” Rees v. Peyton, 384 U.S. 312, 314 , 86 S.Ct. 1505, 1506 , 16 L.Ed.2d 583 (1966) (per curiam); see, e.g., Lenhard v. Wolff, 443 U.S. 1306, 1311-12 , 100 S.Ct. 3, 6-7 , 61 L.Ed.2d 885 (1979…
discussed Cited as authority (rule) Groseclose Ex Rel. Harries v. Dutton
M.D. Tenn. · 1984 · confidence medium
Evans v. Bennett, 440 U.S. 1301, 1304 , 99 S.Ct. 1481 , 1483, 59 L.Ed.2d 756 (1979); Gilmore v. Utah, 429 U.S. 1012, 1014 , 97 S.Ct. 436, 437 , 50 L.Ed.2d 632 (1976); Lenhard v. Wolff, 603 F.2d 91, 93 (9th Cir.), aff’d, 444 U.S. 807 , 100 S.Ct. 29 , 62 L.Ed.2d 20 (1979); Weber v. Garza, 570 F.2d 511, 513-14 (5th Cir.1978). 3 Under the Rees standard, the petitioners must present the medical opinion of qualified experts based upon “sufficient opportunity for proper psychiatric and psychological evaluation.” Hays v. Murphy, 663 F.2d 1004, 1011 (10th Cir.1981).
cited Cited "see" Mason ex rel. Marson v. Vasquez
9th Cir. · 1993 · signal: see · confidence high
See Lenhard v. Wolff, 603 F.2d 91, 92-93 (9th Cir.1979) (per curiam).
discussed Cited "see" David Edwin Mason, by and Through Charles C. Marson v. Daniel E. Vasquez, Warden of the California State Prison at San Quentin, David Edwin Mason, Randy Alana, Patrick Tafoya and Lee Terry Farmer, as Next Friends of David E. Mason, Applicants in Intervention/appellants v. Daniel B. Vasquez, Warden of the California State Prison at San Quentin
9th Cir. · 1993 · signal: see · confidence high
See Lenhard v. Wolff, 603 F.2d 91, 92-93 (9th Cir.1979) (per curiam). 21 On the other hand Mason as the petitioner is entitled to guide the course of his litigation, including dismissing his action either on his own or through an attorney of his choice, provided he is mentally competent to do so.
cited Cited "see" Brewer v. Lewis
9th Cir. · 1993 · signal: see · confidence high
See Lenhard v. Wolff, 603 F.2d 91, 93 (9th Cir.1979) (a determination of competence remains valid where, even though time has elapsed, there has been no showing of incompetence).
discussed Cited "see" Brewer v. Lewis
9th Cir. · 1993 · signal: see · confidence high
See Lenhard v. Wolff, 603 F.2d 91, 93 (9th Cir.1979) (a determination of competence remains valid where, even though time has elapsed, there has been no showing of incompetence). 28 We note further that additional evidence of Brewer's psychological condition gathered within the last two and a half months corroborates the state court's determinations.
discussed Cited "see" Charles L. Singleton v. A.L. Lockhart, Director, Arkansas Department of Correction
8th Cir. · 1992 · signal: see · confidence high
See Lenhard v. Wolff, 603 F.2d 91 (9th Cir.1979); Hays v. Murphy, 663 F.2d 1004 (10th Cir.1981); Autry v. McKaskle, 727 F.2d 358 (5th Cir.), cert. denied, 465 U.S. 1085 , 104 S.Ct. 1458 , 79 L.Ed.2d 906 (1984); Rumbaugh v. Procunier, 753 F.2d 395 (5th Cir.), cert. denied, 473 U.S. 919 , 105 S.Ct. 3544 , 87 L.Ed.2d 668 (1985); Felde v. Blackburn, 795 F.2d 400 (5th Cir.1986), ce rt. denied, 484 U.S. 873 , 108 S.Ct. 210 , 98 L.Ed.2d 161 (1987).
discussed Cited "see" Hamblen v. Dugger (2×)
M.D. Fla. · 1989 · signal: see · confidence high
See Lenhard v. Wolff, 603 F.2d 91, 92-93 (9th Cir.), temporary stay issued, 443 U.S. 1306 , 100 S.Ct. 3 , 61 L.Ed.2d 885 (Rehnquist, Circuit Justice), stay vacated by fall Court, 444 U.S. 807 , 100 S.Ct. 28 , 62 L.Ed.2d 20 (1979); but see id. at 94 (Sneed, J., concurring).
discussed Cited "see, e.g." United States v. Jackson
6th Cir. · 2006 · signal: see also · confidence medium
United States v. Davis, 93 F.3d 1286, 1290 (6th Cir.1996) (holding that the district court erred by ordering a competency examination without first finding reasonable cause to believe the defendant was incompetent); see also Lenhard v. Wolff, 603 F.2d 91, 93 (9th Cir.1979) *932 (“Some minimum showing of incompetence must appear before a hearing is necessary.”).
discussed Cited "see, e.g." Eddie Lee Harper, Jr. v. Phil Parker, Warden
6th Cir. · 1999 · signal: see also · confidence medium
An order under 18 U.S.C. § 4241 requiring psychiatric or psychological examination calls for “ ‘an exercise of judicial discretion to determine if there is “reasonable cause to believe” that the defendant may be incompetent.’ ” Further, the “determination of reasonable cause is left in large part to the discretion of the district court” and reviewable for “abuse of such discretion.” Id. at 1525-26 (footnote omitted); see also Lenhard v. Wolff, 603 F.2d 91, 93 (9th Cir.1979) (“Some minimum showing of incompetence must appear before a hearing is necessary.”).
discussed Cited "see, e.g." State v. Keith
Mont. · 1988 · signal: see also · confidence low
See also, Lenhard v. Wolff (9th Cir. 1979), 603 F.2d 91 ; stay temporarily granted (1979), 443 U.S. 1306 , 100 S.Ct. 3 , 61 L.Ed.2d 885 , stay denied (1979) 444 U.S. 807 , 100 S.Ct. 29 , 62 L.Ed.2d 20 .
cited Cited "see, e.g." State v. Keith
Mont. · 1988 · signal: see also · confidence low
See also, Lenhard v. Wolff (9th Cir. 1979), 603 F.2d 91 ; stay temporarily granted (1979), 443 U.S. 1306 ; stay denied (1979) 444 U.S. 807 .
Retrieving the full opinion text from the archive…
Ca 79-3171 Kirk B. Lenhard and George E. Franzen, Clark County Deputy Public Defenders, Individually and as Next Friends Acting on Behalf of Jesse Walter Bishop
v.
Charles Wolff, Warden, Nevada State Prison System, and Richard Lippold, Warden, Maximum Security Unit
79-2632.
Court of Appeals for the Ninth Circuit.
Aug 24, 1979.
603 F.2d 91
Published

603 F.2d 91

CA 79-3171 Kirk B. LENHARD and George E. Franzen, Clark
County Deputy Public Defenders, Individually and
as next friends acting on behalf of
Jesse Walter Bishop, Petitioners,
v.
Charles WOLFF, Warden, Nevada State Prison System, and
Richard Lippold, Warden, Maximum Security Unit, Respondents.

No. 79-2632.

United States Court of Appeals,
Ninth Circuit.

Aug. 24, 1979.

Anthony G. Amsterdam, Stanford, Cal., argued, for petitioners.

Edwin E. Taylor, Jr., Carson City, Nev., argued, for respondents.

Appeal from the United States District Court for the District of Nevada.

Before WRIGHT, SNEED and HUG, Circuit Judges.

PER CURIAM:

[*~91]1

The emergency application for a stay of execution of the sentence of death imposed upon Jesse Walter Bishop presently set for Monday, August 27, 1979 is denied and the appeal from the denial of the writ of habeas corpus is dismissed. Messrs. Lenhard and Franzen, Deputy Public Defenders of Clark County, Nevada, attempting to appear as next friend acting on behalf of Bishop, filed the application for the stay and the appeal.

2

Jesse Bishop, proceeding in propria persona, pleaded guilty to nine felony charges including murder and was sentenced to death in the Eighth Judicial District Court, Clark County, Nevada on February 10, 1978. During the course of the arraignment, Bishop moved to dismiss his court appointed counsel, the public defender, making it known that he desired to plead guilty to all charges. The court ordered a psychiatric evaluation of his competence to do so. He was then examined by three psychiatrists and on January 23, 1978, based upon their conclusions, he was found to be competent to enter a guilty plea, to discharge his attorneys and to represent himself. The trial court therefore permitted Bishop to act as his own counsel. The two attorneys who had represented him were ordered to stand by to render any assistance Bishop requested.

3

Bishop pleaded guilty to all counts and after a penalty hearing before a three-judge panel, appointed pursuant to the Nevada statute, he was sentenced to death.

4

On his mandatory appeal to the Nevada Supreme Court, Bishop at first consented to being represented by the public defender and thereafter changed his mind and sought to have the appeal dismissed. The Nevada Supreme Court, however, declined to dismiss and ruled on the merits affirming the conviction with one dissenting vote.

5

The petitioners herein were the court appointed counsel for Bishop who were discharged at Bishop's request but ordered by the court to stand by for consultation. They have since been discharged of responsibility but filed the petition for writ of habeas corpus and for stay of execution in the United States District Court for the District of Nevada as next friends of Bishop, acting under ethical and moral obligations arising from their past representations of Bishop. The district judge denied the petitions on the grounds that the petitioners had no standing as next friend.

6

Bishop himself has steadfastly maintained that he does not wish to seek relief in the federal courts and refuses to authorize any petition for habeas corpus or stay of execution to be filed on his behalf. Most recently he appeared in open court at the hearing before the district court on August 23, 1979 and declared that he believes he has a constitutional right to waive any rights to a federal appeal and desires to do so. He maintained he was intelligently and competently exercising his right to refrain from seeking relief from the federal courts.

7

The petitioners concede that if Bishop is competent he may indeed refuse to pursue relief in the federal courts, acknowledging that this is in accord with the holding of Gilmore v. Utah, 429 U.S. 1012, 97 S.Ct. 436, 50 L.Ed.2d 632 (1976). The issue as framed by the petitioners is that the execution should be stayed until a competency hearing can be held to determine Bishop's competence to waive possible relief in the federal courts. Petitioners contend this is mandated by Rees v. Peyton, 384 U.S. 312, 86 S.Ct. 1505, 16 L.Ed.2d 583 (1966), wherein the Supreme Court remanded for such a hearing. In Rees, however, there was conflicting psychiatric evidence concerning the competence of Rees. In that case Rees had been found by one psychiatrist to be mentally incompetent.

[*~92]8

In this case, in contrast, there has been no showing of Bishop's incompetence. He was found to be competent by three psychiatrists to plead guilty, discharge his counsel and proceed with his own defense at the time of his trial in January of 1978. It is true that time has elapsed since, but there has been no showing of evidence which indicates incompetence. He has refused to be examined by a psychiatrist chosen by the petitioners. At the request of the State he has been examined by a licensed psychiatrist, Jerry Howle, ph.D. and M.D. practicing in Reno, Nevada, on August 21, 1979, who found him to be competent, "having the capacity to appreciate his position and make a rational choice with respect to continuing or abandoning further litigation." Petitioners correctly point out that this information was only supplied by an affidavit of Dr. Howle and was not equivalent to a finding of competence after a judicial hearing. However, this does serve to emphasize the lack of any evidence of incompetence which would justify the asserted standing of the petitioners to proceed as next friends. Some minimum showing of incompetence must appear before a hearing is necessary. See de Kaplany v. Enomoto, 540 F.2d 975 (9th Cir. 1976) (en banc). Petitioners assert that certain statements of Bishop's in the transcripts and in newspaper reports indicate incompetence. We find that these statements are equally consistent with rational thought processes and do not furnish sufficient evidence to justify a hearing.

9

Bishop was found to be competent at the time of trial by three psychiatrists; he was observed by the panel of three judges during the penalty hearing; he was observed in a subsequent proceeding before the trial court on July 25, 1979; he appeared personally before the United States District Court on August 23, 1979; and he was examined by a licensed psychiatrist on August 21, 1979. On none of these occasions was there an indication to those responsible persons that he was incompetent. We find that there has been no evidence of incompetence sufficient to warrant a hearing on the issue.

10

It is clear from the testimony of Bishop before the district court that he does not authorize and in fact contests the right of these petitioners to bring the writ of habeas corpus or to request stay of execution. Therefore, under the holding of Gilmore v. Utah, 429 U.S. 1012, 97 S.Ct. 436, 50 L.Ed.2d 632 (1976), petitioners lack standing to bring the writ or request the stay.

11

The application for stay of execution is denied and the appeal from the denial of a writ of habeas corpus is dismissed.

SNEED, Circuit Judge (concurring):

12

I fully concur in the court's opinion. As I see it, Rees v. Peyton is not controlling because there exists on the record now before us no evidence that causes us to experience doubt concerning Bishop's "capacity to appreciate his position and make a rational choice with respect to continuing or abandoning further litigation." Nor does the record suggest that Bishop suffers from a mental disease, disorder, or defect which could affect his capacity to choose not to pursue his federal remedies with respect to the sentence of death imposed by Nevada. 384 U.S. at 314, 86 S.Ct. at 1506. Cf. de Kaplany v. Enomoto, 540 F.2d 975, 983 (9th Cir. 1976). Put briefly, the record reflects that Bishop is competent to forego these remedies.

13

That being the case, Messrs. Lenhard and Franzen, albeit fine lawyers attempting to avoid what they perceive to be a miscarriage of justice, have no standing to initiate this proceeding and the district court had no jurisdiction to consider it. Our evaluation of the record to determine whether a Rees hearing is necessary is required to ascertain whether jurisdiction exists.

[*~93]14

I am convinced that Bishop is sane and that he has made a knowing and intelligent choice to forego his federal remedies. It is difficult for me to imagine that I would make a similar choice were I in his position. What I might do, however, is not the test. Bishop is an individual who, for reasons I can fathom only slightly, has chosen to forego his federal remedies. Assuming his competence, which on this record I must, he should be free to so choose. To deny him that would be to incarcerate his spirit the one thing that remains free and which the state need not and should not imprison.