Charles Rumbaugh [white,
Texas] was a 17-year-old at the time of
a murder carried out during a robbery. He started criminal
activity at the age of six and at 12 had committed an armed
robbery. When he was executed by lethal injection on 11 September
1985, 10 years after his conviction, he was the first juvenile
offender for 21 years to be executed in the USA.
730 F.2d 291
Harvey and Rebecca RUMBAUGH, Individually,
and as Next
Friends acting on Behalf of Charles RUMBAUGH,
Dan V. McKASKLE, Acting Director, Texas Department of
United States Court of Appeals,
April 20, 1984.
Appeal from the United
States District Court for the Northern District of Texas.
Before CLARK, Chief Judge,
GOLDBERG and POLITZ, Circuit Judges.
POLITZ, Circuit Judge:
Presently pending before
this court is the appeal of Harvey and Rebecca Rumbaugh from
the decision of the district court, Rumbaugh v. Estelle, 558
F.Supp. 651 (N.D.Tex.1983), which denied their application
to present a next friend petition for a writ of habeas
corpus on behalf of their son, Charles Rumbaugh, a death-sentenced
Charles Rumbaugh refused
to seek federal habeas review of his conviction and sentence
and he has resisted the efforts of his parents to act on his
behalf. Harvey and Rebecca Rumbaugh contend that their son
lacks the mental competence to waive his legal rights, and
they maintain that he lacks the competence to decide whether
to pursue or waive the benefits of 28 U.S.C. Sec. 2254.
The trial court committed
Charles Rumbaugh to the federal prison in Springfield,
Missouri, under the authority of 18 U.S.C. Secs. 4241-45, "to
determine whether [he] has the 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."
After the examination the
district court held a hearing and received conflicting
expert testimony. The court continued the hearing and
directed that the psychiatrist from the Springfield facility
be summoned to testify in person to expand and explain his
At the conclusion of the
hearing, dramatically highlighted by Charles Rumbaugh's
effort to force the United States Marshal to shoot him to
death in the courtroom, the district judge found "that
Charles Rumbaugh has a realistic understanding of his
present position and of the choices available to him, and
that he is mentally competent to make a rational choice with
respect to continuing or abandoning further litigation."
Having reached that
conclusion, the district court held that Harvey and Rebecca
Rumbaugh lacked standing to pursue habeas relief for Charles
Rumbaugh. The district court accordingly dismissed their
petition and issued a certificate of probable cause for
On appeal, the essential
contention of the petitioners is that because of his mental
condition their son cannot make a rational choice to
continue or abandon legal proceedings. The gravamen of the
medical opinion in support of petitioners' position is that
Charles Rumbaugh is not able to countenance the delay
inherent in the continuation of legal proceedings and the
possible conversion of his death sentence to life
imprisonment. It is suggested that he does not have the
mental capability to elect to continue further judicial
examination of his conviction. That is the issue on appeal.
The court is now informed
that Charles Rumbaugh has filed a pro se Application for
Writ of Habeas Corpus in the state district court in Potter
County, Texas. Upon filing this application, Charles
Rumbaugh asked the state district judge to inform this court
of his action. At the threshold we must consider the effect
of that application on the pending appeal.
The unusual circumstances
of this case require that we fashion a special order, using
the authority granted by 28 U.S.C. Sec. 2106.
We are cognizant that the Texas courts will decline to
address a petition for writ of habeas corpus when the
petitioner has a writ application pending in federal court.
Ex Parte McNeil, 588 S.W.2d 592, 593 (Tex.Cr.App.1979); Ex
Parte Green, 548 S.W.2d 914 (Tex.Cr.App.1977). Charles
Rumbaugh has no pending federal application. The question
before us is whether we should permit his parents to act in
his stead and present such an application to the district
court. To date he has vigorously resisted those efforts.
If Charles Rumbaugh is
incompetent to waive his right to federal habeas review, his
parents have standing to evoke a next friend proceeding.
Gilmore v. Utah, 429 U.S. 1012, 97 S.Ct. 436, 50 L.Ed.2d 632
(1976) (Burger, C.J., concurring), citing Rosenberg v.
United States, 346 U.S. 273, 73 S.Ct. 1152, 97 L.Ed. 1607
(1953); Hays v. Murphy, 663 F.2d 1004 (10th Cir.1981); Weber
v. Garza, 570 F.2d 511 (5th Cir.1978). See also Lenhard v.
Wolf, 444 U.S. 1301, 100 S.Ct. 241, 62 L.Ed.2d 11 (1979)
(in-chambers opinion of Rehnquist, J.); Evans v. Bennett,
440 U.S. 1301, 99 S.Ct. 1481, 59 L.Ed.2d 756 (1979) (in-chambers
opinion of Rehnquist, J.).
The recently filed pro se
application of Charles Rumbaugh dramatically impacts on the
issue before us, specifically, whether he has competence to
make a rational choice to either pursue or abandon further
judicial review. The state filing mandates a deferral of our
To date the processing of
the application of Harvey and Rebecca Rumbaugh has been
time-consuming, costly, and exacting. The interests of
judicial economy dictate that we avoid any unnecessary
repetition of that which has been done previously, at both
the trial and appellate level. To that end, we remand this
case to the United States District Court for the Northern
District of Texas with instructions to monitor the progress
of the state habeas corpus proceedings initiated by Charles
Rumbaugh. All counsel in this case are directed to keep the
district court fully informed of the progress of that suit.
The district court is to
advise this court of the final disposition of Rumbaugh's
state habeas petition. Should any act or omission by Charles
Rumbaugh result in a conclusion of that state habeas suit
without an adjudication on the merits, the district court is
instructed to return the record to this court for further
disposition by this panel. Should that occur, no further
notice of appeal will be required and no further filings or
briefings will be necessary unless directed by this court.
And in that event, this panel will address and promptly
resolve the issue posed by the appeal of Harvey and Rebecca
Specially REMANDED with