A Cuban immigrant who came to Florida in the 1980 Mariel boatlift,
Sanchez-Velasco was convicted of the 1986 rape and murder of 11-year-old
Katixa "Kathy" Ecenarro, the daughter of his live-in girlfriend. He
confessed to the crime but later recanted.
In 1995, he stabbed to death two of his fellow Death Row inmates,
Edward Kaprat and Charles Street, and was given two 15-year
sentences for the killings. Sanchez-Velasco had been trying since
1994 to drop his appeals and quicken the pace of his execution.
After the execution, Sanchez-Velasco's attorney, Craig DeThomasis of
Gainesville, presented reporters with a statement Sanchez-Velasco
had written that morning - a statement in which he denied killing
Ecenarro but admitted committing other murders, an apparent
reference to the two 1995 prison killings.
Sanchez-Velasco v. State, 570 So. 2d 908 (Fla. 1990).
Sanchez-Velasco v. State, 702 So. 2d 224 (Fla. 1997).
Sanchez v. Wilson, 639 So. 2d 980 (Fla. 1994).
Sanchez-Velasco v. Secretary, (11th Cir. April 2, 2002)
Chicken fried rice, fish filets, avocado salad and cheesecake.
"I love you, everybody."
Governor Jeb Bush ordered the execution of death
row inmate Rigoberto Sanchez Velasco, who was condemned for the 1986
murder of a Hialeah girl. Sanchez, who has dropped his appeals, was
scheduled to be executed on Oct. 2.
Sanchez, 43, is condemned for the murder of 11-year-old
Katixa "Kathy" Ecenarro, who was raped and strangled in her home 16
years ago. Sanchez later killed 2 fellow inmates and has been
fighting to drop his appeals for more than 7 years.
In arguing against pursing a federal appeal,
Sanchez told his judge: "I hate people. I don't like them. I want to
kill people. You understand?"
Sanchez was part of the boatlift from Mariel,
Cuba, in 1980 and was sent to jail for a 1982 burglary and grand
theft in Broward County.
UPDATE: Sanchez-Velasco was visited in the hours
before his execution by a brother, two nephews and a priest. ''I
love you, everybody,'' Sanchez-Velasco said after he was strapped to
the execution table. His mouth trembled slightly before the
execution began at 9:31 a.m.
Man Executed for Rape-Murder of 11-year-old
AP - October 3, 2002
STARKE -- A man condemned for raping and killing
an 11-year-old girl and later convicted in the murders of two fellow
death row inmates was executed Wednesday, several years after
dropping his appeals.
Rigoberto Sanchez-Velasco, 43, had been
declared competent to make that decision by a state judge, a federal
judge and, most recently, three state-appointed psychiatrists who
interviewed him Tuesday.
The family of Katixa "Kathy" Ecenarro, the
Hialeah girl Sanchez-Velasco raped and strangled in December 1986,
witnessed the nine-minute execution by lethal injection. "They were
nine long minutes, but justice was done," said Celia Ecenarro,
stepmother of the child. "She was a nice little girl. … The thing
that is always in my mind is how innocent she was."
Police said Sanchez-Velasco confessed to Kathy's
murder after his arrest and also admitted the killing during his
trial for her death. But Wednesday, he denied it in a statement
issued by his lawyer after the execution. "I did not commit the
crime for which I will die. It does not matter who believes me and
who won't believe me," the statement said. "I cannot call myself
totally innocent because I have committed all kinds of sins,
including murder. I am receiving my punishment and I am proud to
receive my punishment for those lives I have taken." The statement
was written by Sanchez-Velasco during the night and handed to a
Roman Catholic priest who was among his final death row visitors,
said the lawyer, Craig DeThomasis of Gainesville.
DeThomasis said he didn't think Sanchez-Velasco
had previously gone public with the denial, and he said he himself
wasn't sure what to make of it. "I don't know that there is a case
to be made, that there was an innocent man who is executed,"
DeThomasis said. Ecenarro, who came from Spain with her husband to
witness the execution, called his final statement "foolish."
Sanchez-Velasco appeared calm during the
execution. "I love you, everybody," he said after being strapped in.
"He was at peace with his decision" to drop the appeals, DeThomasis
Gov. Jeb Bush issued temporary stays Monday for
Sanchez-Velasco and serial killer Aileen Wuornos, who has also
dropped all appeals and is set for execution Oct. 9, after questions
were raised about their competency. The stay for Sanches-Velasco was
lifted Tuesday after an exam by the three-member psychiatric panel.
Bush lifted the stay for Wuornos later Wednesday after a similar
panel found her competent.
Sanchez-Velasco was sentenced in 1988 for the
murder of the Hialeah girl. In 1995, he was convicted of fatally
stabbing fellow death row inmates Edward B. "Mike" Kaprat III and
Charles Street, and was given two 15-year sentences.
Susan Cary, a Gainesville attorney who works with
death row inmates, said Wednesday's execution and the scheduled
death of Wuornos were political moves by the governor. "These are
the only two people he could have hoped to kill by November," she
said. Bush faces a re-election vote Nov. 5.
The governor denied that politics were involved.
"The mother of the 11 year-old child that was raped and murdered,
think of her for a moment, think about her family," he said. "I hope
they get closure on this now. I put greater weight on that than all
this talk about politics." Sanchez-Velasco, who came to Miami from
Cuba in the 1980 Mariel boatlift, was the 52nd person executed in
Florida since the state resumed executions in 1976.
Florida has executed 247 inmates since 1924.
Cuban Refugee Executed; Police
say he confessed to raping and killing an 11-year-old girl, but
Rigoberto Sanchez-Velasco denied it just before his death sentence
was carried out
By Jamie Jones - St. Petersburg Times
October 3, 2002
STARKE -- In the end, Rigoberto Sanchez-Velasco
admitted he was a murderer and said he was ready to die for his
crimes. But not for the one for which he was strapped to a gurney at
the Florida State Prison and executed Wednesday.
Cuban refugee insisted he did not rape and strangle 11-year-old
Katixa "Kathy" Ecenarro of Hialeah in 1986, though police say he
confessed. "It does not matter who believes me and who won't believe
me," Sanchez-Velasco said in a statement released after his
execution. "I cannot call myself totally innocent because I have
committed all kinds of sins, including murder."
Sanchez-Velasco was pronounced dead at 9:39 a.m.
It was the state's execution since January 2001.
The execution happened four weeks before the Nov.
5 election, a fact that prompted death penalty opponents to accuse
Bush of playing politics. "This is a sideshow to the election," said
Abe Bonowitz, director of Floridians for Alternatives to the Death
Penalty. But Bush said Sanchez-Velasco deserved to die for his
crimes and that further delays would be irresponsible. "There was a
mother of the 11-year-old child who was raped and murdered," Bush
said. "Think about her for a moment. Think about her family. I hope
they get closure on this thing."
Katixa's stepmother traveled from Spain to
witness the execution. "They were nine long minutes, but justice was
done," said Celia Ecenarro. "And that is the truth. Justice was
done. I don't think he realized the amount of pain he caused."
Sanchez-Velasco also was convicted of killing two
fellow death row inmates, Edwin "Mike" Kaprat III, a Hernando County
serial killer, and Charles Street, a convicted cop killer. Sanchez-Velasco
had dropped his appeals, the state's fifth inmate to volunteer for
death since 1987.
Wednesday's execution took place after Sanchez-Velasco
had been declared competent by three state-appointed psychiatrists
who interviewed him Tuesday. Bush then lifted an execution stay he
had issued a day earlier. On Wednesday, Bush also lifted a stay he
had imposed for the execution of serial killer Aileen Wuornos after
questions were raised about their competency. Wuornos, who also has
dropped her appeals, is scheduled for execution next Wednesday.
Inside a small room at the prison, brown curtains
opened at 9:31 a.m. Sanchez-Velasco lay quietly on a gurney, his new
navy dress pants hidden beneath a white sheet. He looked out at the
26 people there to witness his execution. "Thank you," he mouthed to
the two people who wished him well, Father Fred Ruse and Craig
DeThomasis, his former attorney.
At 9:30 the night before, Sanchez-Velasco ate his
last meal -- chicken fried rice, fish filets, avocado salad and
cheesecake. After dinner, he met with his brother and two nephews.
He watched television from his cell and slept for 45 minutes. He
asked for Ruse, of St. Matthews Catholic Church in Winter Haven, who
arrived at 3:30 a.m. Sanchez-Velasco refused a Valium before the
His last words were: "I love you, everybody." As
chemicals flowed, Sanchez-Velasco blinked his eyes and his feet
twitched. After several minutes, his eyes began to close, and two
doctors pronounced him dead. DeThomasis of Gainesville said he
didn't think Sanchez-Velasco had denied the murder publicly before
and wasn't sure what to make of it. "I don't know that there is a
case to be made, that there was an innocent man who is executed,"
(The Associated Press contributed to this report.)
Inmate's Statement Admits to
By Tim Lockette - The Gainesville Sun
October 3, 2002
STARKE - To the end, Rigoberto Sanchez-Velasco
denied committing the crime that earned him the death penalty. But
before he was executed Wednesday morning at Florida State Prison, he
wrote a statement apparently confessing to two prison killings
committed after he was on Death Row. "I cannot call myself innocent
because I have committed all kinds of sins, including murder,"
Sanchez-Velasco wrote. "I am receiving my punishment and am proud to
receive punishment for the lives I have taken."
Sanchez-Velasco, 43, died by lethal injection at
the prison shortly after 9:30 a.m., years after he first tried to
drop his appeals and speed his own execution. A Cuban immigrant who
came to Florida in the 1980 Mariel boatlift, Sanchez-Velasco was
convicted in 1988 for the 1986 rape and murder of 11-year-old Katixa
"Kathy" Ecenarro, the daughter of his live-in girlfriend. He
confessed to the crime but later recanted.
In 1995, he stabbed to death two of his fellow
Death Row inmates, Edward Kaprat and Charles Street, and was given
two 15-year sentences for the killings. Sanchez-Velasco had been
trying since 1994 to drop his appeals and quicken the pace of his
After the execution, Sanchez-Velasco's attorney, Craig
DeThomasis of Gainesville, presented reporters with a statement
Sanchez-Velasco had written that morning - a statement in which he
denied killing Ecenarro but admitted committing other murders, an
apparent reference to the two 1995 prison killings. DeThomasis, who
defended Sanchez-Velasco in his trial for those killings, said his
client killed Kaprat and Street in self-defense after being attacked
by the prisoners.
Death penalty opponents said Sanchez-Velasco
wasn't mentally competent to fire his lawyers, and an Ohio woman
asked the Supreme Court on Monday to let her file an appeal on his
behalf. Gov. Jeb Bush imposed a temporary stay of execution Monday,
but lifted it after a panel of psychiatrists ruled Sanchez-Velasco
Prison officials say Sanchez-Velasco slept only
45 minutes on the night before his execution, spending much of the
morning in consultations with a Catholic priest from Winter Haven
and two prison chaplains. He appeared calm but red-eyed before his
execution, which began at 9:31 a.m. Strapped onto a gurney, wearing
the prison-issue white shirt and blue pants, Sanchez-Velasco mouthed
the words, "I love you" to his priest and DeThomasis. "I love you,
everybody," Sanchez-Velasco said when asked for his last statement.
His eyes closed slightly after the execution began. He was
pronounced dead at 9:39 a.m.
Ecenarro's stepmother, Celia Ecenarro, told The
Associated Press that she considered Sanchez-Velasco's remarks "foolish."
"They were nine long minutes but justice was done," she said. "And
that is the truth. Justice was done. I don't think he realized the
amount of pain he caused."
He was the 52nd person executed in Florida since
the state resumed the death penalty in 1976 and the eighth to die
from lethal injection. Florida has executed 247 inmates since 1924.
DeThomasis said that honoring Sanchez-Velasco's
decision to file no more appeals was "as difficult a thing I have
had to do in law in 20 years." "I think one of my students fresh out
law school could have filed a writ to stop this process," he said.
Susan Cary, a Gainesville death penalty opponent who knew Sanchez-Velasco,
said the inmate used the justice system to commit suicide. "He was a
person who was very tormented, who felt he had no reason to live,"
Cary was one of about two dozen death penalty
opponents who picketed in a field across the road from the prison.
No death penalty supporters picketed at the event.
Activists at the
protest said turnout for the gathering was lower than usual - due
partly to the fact that the execution was scheduled during the
workday. But prison officials say they expect to see a large number
of activists on both sides of the death penalty issue next week when
Aileen Wuornos, 46, one of the nation's first female serial killers,
is scheduled for execution. Like Sanchez-Velasco, she refused to
appeal her execution and was evaluated by psychiatrists earlier this
week. Wuornos was found mentally competent, the governor's office
announced Wednesday afternoon.
Sanchez-Velasco executed for 1986 slaying in
(AP) STARKE, Fla. - A man who killed an 11-year-old
girl and two fellow death row inmates was executed Wednesday after
he dropped his appeals and volunteered to die.
Rigoberto Sanchez-Velasco, 43, had been declared
competent to make that decision Tuesday after he was examined by
three state-appointed psychiatrists. He was pronounced dead from
lethal injection at 9:39 a.m., said Katie Muniz, spokeswoman for Gov.
Jeb Bush. After the psychiatrists' examination, Bush lifted a stay
of execution he had issued one day earlier. Bush had issued stays
for Sanchez-Velasco and serial killer Aileen Wuornos when an
attorney argued that Wuornos wasn't competent to drop her appeals.
Death penalty opponents said allowing the inmates
to drop their appeals is equivalent to state-assisted suicide.
Dianne Abshire, a member of the Florida Support Group, which
supplies emotional support to Florida death row inmates, has said
both Wuornos and Sanchez-Velasco are insane.
The death warrants for Wuornos and Sanchez-Velasco
were signed while the state Supreme Court continued to review
whether a ruling by the U.S. Supreme Court in an Arizona case would
apply to Florida's 369 death row inmates. The high court ruled that
only juries and not judges can sentence inmates to death. In
Florida, juries make a recommendation to the trial judge, who
imposed the sentence.
Sanchez-Velasco was visited in the hours before
his execution by a brother, two nephews and a priest. ''I love you,
everybody,'' Sanchez-Velasco said after he was strapped to the
execution table. His mouth trembled slightly before the execution
began at 9:31 a.m.
He was sentenced to death in 1988 after
confessing to the slaying of Katixa ''Kathy'' Ecenarro, the 11-year-old
daughter of his live-in girlfriend in Hialeah, near Miami.
While in prison awaiting execution, Sanchez-Velasco
was convicted in the 1995 stabbing deaths of two other death row
inmates -- Edward B. ''Mike'' Kaprat III and Charles Street. He was
given two 15-year sentences.
A psychiatric exam conducted Tuesday by doctors
ruled Sanchez-Velasco ``has no major psychiatric illness and
understands the nature and effect of the death penalty and why it is
being imposed upon him.'' Sanchez-Velasco was very calm and answered
all the questions put to him by the psychiatrists, said Baya
Harrison III, a lawyer appointed to represent the inmate. ''He made
it very clear to me that his mind is made up,'' Harrison said. ``He
was very coherent. He was cogent. He was courteous. He instructed me
not to interfere with his execution.''
Sanchez-Velasco had argued in a handwritten
filing with the Florida Supreme Court that he was legally convicted
and wants to die. ''I have killed people repeatedly, repeatedly,
repeatedly, even while being on death row,'' Sanchez-Velasco wrote.
Sanchez-Velasco, who came to Miami from his
native Cuba in the 1980 Mariel boatlift, was the 52nd person
executed in Florida since the state resumed executions in 1976 and
the eighth to die from lethal injection. Florida has executed 246
inmates since 1924.
Wuornos' execution, scheduled for Oct. 9, was
temporarily stayed Monday in the wake of allegations by a Fort
Lauderdale attorney that Wuornos wasn't competent to drop her
appeals. Wuornos, 46, one of the nation's first known female serial
killers, was convicted of fatally shooting six middle-aged men along
Florida highways in 1989 and 1990. Her story has been portrayed in
two movies, three books and an opera.
Gov. Bush Lifts Stay for
October 2, 2002
TALLAHASSEE (AP) -- Gov. Jeb Bush lifted a stay
of execution Tuesday for a convicted murderer after a panel of
psychiatrists concluded the man is mentally competent.
of triple killer Rigoberto Sanchez-Velasco was again set for
Wednesday. Sanchez-Velasco, who was condemned for the 1986 murder of
an 11-year-old girl and convicted in the deaths of two fellow
inmates while in prison, had dropped his appeals.
Bush signed the stay Monday after an Ohio woman
asked the Florida Supreme Court to let her appeal on the condemned
man's behalf. The state Supreme Court rejected the woman's request.
Three psychiatrists interviewed Sanchez-Velasco early Tuesday and
reported to the governor he was competent. Under Florida law, the
standard for competency is understanding that execution will result
in death and why the sentence is being imposed.
The governor also issued a temporary stay Monday
of the execution of serial killer Aileen Wuornos on Oct. 9 after an
attorney argued that Wuornos wasn't competent to drop her appeals.
Wuornos, one of the nation's first known female serial killers, was
convicted of fatally shooting six middle-aged men along Florida
highways in 1989 and 1990. Her story has been portrayed in two
movies, three books and an opera.
Death penalty opponents say allowing the inmates
to drop their appeals is equivalent to state-assisted suicide.
Dianne Abshire, a member of the Florida Support Group, which
supplies emotional support to Florida death row inmates, has said
both Wuornos and Sanchez-Velasco are insane.
Sanchez-Velasco, 43, came to Miami from Cuba in
the 1980 Mariel boatlift. He was sentenced to death for the murder
of the 11-year-old daughter of his live-in girlfriend. In 1995, he
fatally stabbed two other death row inmates.
Bush said in a statement Tuesday that "justice
will finally be served."
December 6, 1997 - FLORIDA:
A death row inmate pressing Gov. Lawton Chiles to
send him to the electric chair for raping and strangling an 11-year-old
girl can refuse a lawyer and drop his appeals, the state Supreme
Court ruled Thursday.
"Firing his attorney and skipping appeals must be
knowing, intelligent and voluntary" decisions, but Rigoberto Sanchez-Velasco,
38, of Hialeah met those requirements, the court said.
Even before his trial, Sanchez-Velasco told
police when he confessed to the 1986 slaying that he would rather be
executed than "rot in jail."
Although the Florida Supreme Court ruled in favor
of Sanchez-Velasco, his court-appointed attorney, Michael Bowen,
said he will try to talk the inmate into appealing the ruling to the
U.S. Supreme Court.
Without an appeal, Bowen said that "the next step
would be for the governor to sign a death warrant." Chiles had not
decided how to proceed. "This is a highly unusual case that the
governor will have to review and then move appropriately," spokesman
Ryan Banfil said. "I don't think it would be responsible to give
up," said Bowen, although he admitted he did not know if Sanchez-Velasco
would speak with him. "I do not know if he will talk to me. He does
not want me to represent him."
At a 1996 hearing on whether he could dismiss the
attorney, Sanchez- Velasco referred to Bowen as his enemy and asked
the judge to force him to stay at a distance "before a misfortune
could take place."
Sanchez-Velasco, who came to Miami-Dade County
from Cuba in the 1980 Mariel boatlift, was sentenced to death for
the slaying, on Dec. 12, 1986, of the daughter of his live-in
girlfriend, Marta Molina. The girl's body was found at Molina's
apartment. A medical examination indicated that she had been raped
and strangled. Sanchez-Velasco was gone, and gold chains and a fur
coat were missing.
When police apprehended him and questioned him,
Sanchez-Velasco confessed to robbery, rape and murder. He was
convicted and sentenced to death in 1988. The state Supreme Court
upheld the sentence and the U.S. Supreme Court refused to review it.
Sanchez-Velasco made several attempts to end
further appeals, including court motions and 3 letters to Chiles in
1994 and 1995 seeking to waive the appeals and have his death
warrant signed. "It's my right to represent myself and to withdraw
my...motion," he told a judge in 1996. "It's my own will, and I'm
competent to make my own decisions."
Bowen persisted "because I was the only game in
town," he said. "Had I not pursued it, this appeal would have lapsed
and he presumably would have been scheduled for execution a long
time ago." He told the court that Sanchez-Velasco's inconsistent
arguments proved he was not competent to represent himself. While
demanding to dismiss Bowen for ineffectiveness in pressing his
appeal, he also demanded to withdraw the appeal, the attorney said.
"We find that, to the extent such a contradiction
may exist, it does not in and of itself lead us to doubt Sanchez-Velasco's
competence in the face of at least 10 evaluations determining him to
be competent," the justices wrote. "We...find no reasonable basis
for any doubt concerning Sanchez-Velasco's competency to dismiss his
attorney and withdraw his post-conviction motion."
National Coalition to Abolish
the Death Penalty
Rigoberto Sanchez-Velasco(FL) Oct. 2, 2002 7:00
The state of Florida is scheduled to execute
Rigoberto Sanchez-Velasco – a foreign national from Cuba – Tuesday,
Oct. 2 for the 1986 murder and sexual assault of eleven-year-old
Two expert psychiatrists have deemed Sanchez-Velasco
mentally incompetent since his conviction, and one of the state’s
expert witnesses during the trial has reversed her court testimony
to concur with the those two opinions. Sanchez-Velasco has been
attempting to drop his appeals for several years, and outside
lawyers contend this attitude only further supports the argument
that he is mentally incompetent.
Gov. Jeb Bush set Sanchez-Velasco’s execution
date just two weeks after the state Supreme Court heard arguments
challenging the constitutionality of Florida’s death penalty statute.
This debate resulted from the U.S. Supreme Court’s June decision
concerning sentencing procedures in death penalty cases.
In Ring v. Arizona, the high court ruled that
juries, not judges, must hear the evidence and determine the
sentence during a capital trial’s punishment phase. Prior to Ring,
five states gave judges sole discretion in the sentencing process;
four others, including Florida, allowed juries to recommend
sentences, but saved the final word for judges. In the majority’s
decision, Justice Ruth Bader Ginsburg wrote: “the right to trial by
jury by the 6th Amendment would be senselessly diminished” if jurors
were not given the final say. The Ring decision will likely reduce
the number of death sentences nationwide, because jurors are less
likely than judges to choose execution.
Now many current death row inmates claim that the
sentencing problem the court addressed and changed in the Ring
ruling unjustly led to their death sentences. Sanchez-Velasco has a
legitimate case for the Florida court to retroactively enforce the
decision; his jury handed the judge a hesitant 8-4 recommendation
for the death penalty. However, as previously stated, Sanchez-Velasco,
although competent according to the law, has given up his appeals.
Sanchez-Velasco’s situation in regard to the Ring
decision has further prompted accusations concerning political
motivations in Florida’s application of the death penalty. Gov. Bush
faced immediate criticism that this death warrant – signed amidst
the court’s debate over sentencing procedures – was purely a
political tactic. Critics claim the governor, who is up for re-election
in November, used Sanchez-Velasco to show off his tough stance on
crime and punishment.
With no lawyer and no willingness to contest his
own execution, Sanchez-Velasco is at high risk of being executed.
However, this only makes it more imperative for the government to
carefully consider every last aspect of the case. This includes the
Florida Supreme Court’s pending ruling regarding juries and judges
in the sentencing phase. Please write the state of Florida to
request a stay for Rigoberto Sanchez-Velasco.
RIGOBERTO SANCHEZ-VELASCO, Appellant,
STATE OF FLORIDA, Appellee.
December 4, 1997
An Appeal from the Circuit Court in and for Dade County,
Victoria Platzer, Judge - Case No. F86-37102
Michael Bowen, special appointed post-conviction
counsel for Rigoberto Sanchez-Velasco, files this appeal of the trial
court's order discharging Bowen and dismissing Sanchez-Velasco's
Florida Rule of Criminal Procedure 3.850 challenge. We have
jurisdiction. Art. V, § 3(b)(1), (7), Fla. Const. For the reasons
expressed, we affirm the order of the trial court. In so holding, we
do not mean to imply any improper conduct or ineffective assistance by
Bowen as pro bono counsel in this matter. It is clear he has proceeded
in an ethical and professional manner in his representation of Sanchez-Velasco.
A thorough discussion of the underlying facts of
this case is contained in Sanchez-Velasco v. State, 570 So. 2d
908 (Fla. 1990), cert. denied, 500 U.S. 929 (1991).
In summary, Sanchez-Velasco resided with Marta
Molina in Hialeah. On December 12, 1986, Molina left her eleven-year-old
daughter in the care of Sanchez-Velasco. Molina returned home from
work that evening to find that her daughter had been murdered. Sanchez-Velasco
was not at the apartment. The victim's face was swollen, and she was
naked and bleeding from her vagina. A medical examination concluded
that the victim was raped and that strangulation was the cause of her
death. Missing from Molina's apartment were the victim's gold chains,
her identification bracelet, and Molina's fur coat. Sanchez-Velasco
was located by the police and questioned about the murder.
Following proper Miranda
warnings, Sanchez-Velasco confessed to robbery, rape, and murder.
Sanchez-Velasco also remarked that he would prefer to be executed
immediately rather than "rot in jail." The jury found Sanchez-Velasco
guilty of first-degree murder, sexual battery of a victim under twelve
years of age, and theft as a lesser included offense of grand theft.
Upon the conclusion of the penalty phase, the jury recommended the
death penalty by a vote of eight to four, and the judge imposed a
sentence of death for the first-degree murder conviction.
In his sentencing order, the trial judge found the
following two aggravating circumstances: (1) the capital felony was
especially heinous, atrocious, or cruel, and (2) the capital felony
was committed while the defendant was engaged in the commission of a
sexual battery. The judge found no statutory or nonstatutory
mitigating circumstances. The judge explained in his order why he did
not find Sanchez-Velasco's mental condition to be a mitigating
circumstance. Following his trial, this Court affirmed the convictions
and death sentence and the United States Supreme Court denied
Sanchez-Velasco's competency to stand trial and
waive certain rights was evaluated numerous times during the
proceedings below. A pretrial mental health examination demonstrated
that Sanchez-Velasco was competent at the time of the crime and
competent to stand trial. A competency evaluation ordered by the trial
judge during the trial again demonstrated that Sanchez-Velasco was
competent to stand trial. During the penalty phase, a defense
psychiatrist testified that Sanchez-Velasco suffered from an emotional
disturbance, but was legally sane.
Prior to sentencing, a second defense psychiatrist
testified that Sanchez-Velasco possibly suffered from a
neuropsychological dysfunction, but was legally competent at the time
of the examination. By the conclusion of the trial, Sanchez-Velasco
had been examined by no less than eight mental health experts, all of
whom found him to be competent to proceed.
After his convictions and sentences were affirmed,
Sanchez-Velasco filed a rule 3.850 motion for post-conviction relief,
challenging his convictions and sentences on sixteen grounds. Sanchez-Velasco
also underwent additional competency evaluations. In support of the
rule 3.850 motion, the defense retained Dr. Jorge Herrera and Dr. Alec
Whyte to evaluate Sanchez-Velasco. Drs. Herrera and Whyte determined
that Sanchez-Velasco suffered from significant psychological disorders.
The defense planned to present the doctors' testimony at the rule
3.850 hearing to rebut the previous competency determinations. During
this same time period, Sanchez-Velasco underwent a competency
evaluation by Dr. Richard Greer in connection with a separate murder
trial in Broward County. Dr. Greer found Sanchez-Velasco competent in
that case to represent himself and enter a guilty plea.
On August 29, 1996, a hearing was held before a new
trial judge on Sanchez-Velasco's rule 3.850 motion and the judge
ordered an evidentiary hearing on two of the claims raised in the
motion. On October 24, 1996, Sanchez-Velasco moved to discharge his
post-conviction counsel, Michael Bowen. Sanchez-Velasco claimed that
Bowen could not effectively represent him because Bowen had only
minimal contact with him, was not familiar with Florida law, and
primarily practiced civil law. Sanchez-Velasco referred to Bowen as
his "enemy," and asked the judge to force Bowen to stay at a distance
from him "before a misfortune could take place." Sanchez-Velasco also
sought to have his rule 3.850 motion withdrawn and his execution
expedited. This was not the first time Sanchez-Velasco had sought to
end his post-conviction appeals.
On March 31, 1994, and again on April 28, 1994,
Sanchez-Velasco wrote to Governor Lawton Chiles, requesting that no
further appeals be undertaken on his behalf. On June 20, 1995, Sanchez-Velasco
wrote to the Governor a third time seeking to have his post-conviction
appeals waived and his death warrant signed. Sanchez-Velasco's own
attorneys endeavored to ensure that none of the requests were honored.
Immediately following Sanchez-Velasco's motion, the
trial judge questioned Bowen and determined that he was not
ineffective in his representation. The judge then told Sanchez-Velasco
that she would not appoint another attorney to represent him, and that
he could either represent himself or continue with Bowen as his
attorney. Sanchez-Velasco responded, "The reason I'm here right now is
because I don't need an attorney. I don't want him, nor do I want any
other attorney, nor have I asked the Court for another attorney." The
judge stated, "He appears very intelligent to me," but ordered an
emergency competency evaluation before she ruled on whether Sanchez-Velasco
could represent himself and waive his appeals. The next day, Dr. Sonia
Ruiz personally interviewed and evaluated Sanchez-Velasco. She then
issued a four-page, single-spaced report to the judge. Dr. Ruiz did
not personally testify as to her conclusions. Her conclusions are
summarized in the report as follows:
It is this evaluator's opinion that this defendant
is fully competent to proceed. He has a factual and rational
understanding of the proceedings. He has sufficient present ability to
consult with his lawyer with a reasonable degree of rational
understanding. He appreciates the possible consequences of his
decisions. He has the ability to manifest appropriate courtroom
behavior. He has the capacity to testify relevantly in his behalf.
There is no major mental illness noted. No overt thought disorder was
present at the time of this examination. The defendant does not appear
to suffer from a major mood disorder, such as major depression. He has
no cognitive deficits. There are no apparent neurological deficits.
His thoughts are clear and related in a coherent fashion. He did not
express any suicidal or homicidal ideations. His affect and mood were
deemed to be appropriate. No major mental illness or defect is deemed
to be present that could interfere with his capacity to reasonably
assist counsel or himself in his defense. No psychiatric interventions
are deemed to be necessary at this time.
On October 25, 1996, the trial judge questioned
Sanchez-Velasco to determine if he understood the consequences of
waiving his post-conviction counsel and proceedings. The judge
explored Sanchez-Velasco's age, education and employment history. The
judge asked if Sanchez-Velasco understood that if he prevailed on the
rule 3.850 motion he would be entitled to a new sentencing hearing.
Sanchez-Velasco replied that he understood. The judge explained that
by withdrawing the rule 3.850 motion his right to any further appeals
would be forever lost, and again recommended that he represent himself
or allow Bowen to represent him. Sanchez-Velasco stated that he
understood the judge would not appoint another attorney for him, and
that he did not want Bowen to serve as his attorney. Sanchez-Velasco
then told the judge, "It's my right to represent myself and to
withdraw my 3.850 motion. And I hope that you grant it. It's my own
will, and I'm competent to make my own decisions, and that I'm
thankful for your consent, but it's my decision."
On the basis of Dr. Ruiz's evaluation, the 1995
evaluation by Dr. Greer, and the colloquy, the trial judge found
Sanchez-Velasco competent to dismiss his counsel and withdraw his rule
3.850 motion. The judge's order concluded as follows:
The Court finds that the Defendant is well-aware
and fully understands the consequences of his actions. The Court
further finds that the Defendant has sufficient mental capacity,
education and life experience to appreciate the nature of the
proceedings and the consequences of withdrawing the Rule 3.850 and in
The Court finds the Defendant has freely,
voluntarily, knowingly and intelligently waived his right to counsel
for his collateral appeal. The Court further finds the Defendant,
representing himself, has intelligently and knowingly moved to
withdraw his Motion for Post-Conviction Relief and that the Defendant
has the "right to control his own destiny to whatever extent remains."
Durocher v. Singletary, 623 So. 2d 482 (Fla. 1993) at 484.
Bowen, Sanchez-Velasco's former counsel, now
appeals the trial judge's order. Bowen claims that Dr. Ruiz's
competency evaluation, upon which the trial judge's order was based in
part, was facially deficient and Sanchez-Velasco was actually
incompetent to represent himself and withdraw his rule 3.850 motion.
Bowen asserts that Sanchez-Velasco's competency was placed in
legitimate doubt at the hearing of October 24, 1996, when he
simultaneously demanded to (1) dismiss Bowen due to ineffectiveness in
pressing his post-conviction appeal and to (2) withdraw his post-conviction
appeal. Bowen contends that Sanchez-Velasco's incompetence is
demonstrated by the fact that his two demands are in diametric
contradiction. Bowen claims it was this contradiction that likely
prompted the trial judge to order Sanchez-Velasco's competency
evaluation. Bowen asserts that the report submitted by Dr. Ruiz was
insufficient because it failed to discuss or analyze this evidence of
Sanchez-Velasco's incompetency. Bowen concludes that the order of the
trial court cannot be sustained because it is based in part on the
deficient competency report. We disagree that Dr. Ruiz's report was
deficient and find no reasonable basis for any doubt concerning
Sanchez-Velasco's competency to dismiss his attorney and withdraw his
A waiver of collateral counsel and proceedings must
be knowing, intelligent, and voluntary. Boykin v. Alabama, 395
U.S. 238 (1969); Durocher v. Singletary, 623 So. 2d 482, 485 (Fla.
1993). In Durocher, in a similar situation, we said:
Competent defendants have the constitutional right
to refuse professional counsel and to represent themselves, or not, if
they so choose. Faretta v. California, 422 U.S. 806, 95 S. Ct.
2525, 45 L. Ed. 2d 562 (1975); Hamblen v. State, 527 So. 2d 800
(Fla. 1988). If the right to representation can be waived at trial, we
see no reason why the statutory right to collateral counsel cannot
also be waived.
623 So. 2d at 483. Under Durocher, when a
defendant expresses a desire to dismiss his or her collateral counsel
and proceedings, the trial judge must conduct a Faretta-type evaluation to determine that the defendant understands the
consequences of his or her request. Id. at 485. If the
Faretta-type evaluation raises a doubt in the judge's mind as to
the defendant's competency, the judge may order a mental health
evaluation and determine competency thereafter. Id. If the
Faretta-type evaluation raises no doubt in the judge's mind as to
the defendant's competency, no mental health evaluation is necessary
for the competency determination. Id.
The trial judge fully followed the procedure
outlined in Durocher in determining Sanchez-Velasco's
competency to proceed. Following Sanchez-Velasco's motion, the judge
thoroughly explored his education and experience, and repeatedly
stressed the implications of dismissing his collateral appeal. The
judge determined that Sanchez-Velasco appeared to be "very intelligent"
and "very competent." The record discloses that the judge then ordered
the competency evaluation, not because she had a reasonable doubt as
to Sanchez-Velasco's competency, but in an abundance of caution
because Sanchez-Velasco was requesting to be put to death. The
evaluation conducted by Dr. Ruiz was comprehensive and responsive to
the needs of the trial court. Dr. Ruiz inquired about Sanchez-Velasco's
childhood, education, employment history, religious beliefs, criminal
history, relationship with his attorney, and decision to expedite his
execution. Dr. Ruiz concluded in the report:
Overall, this defendant presents as an individual
who is fully competent to proceed with legal matters. There is no
major mental disorder noted. There is no thought disorder, nor any
major mood disorder evidenced at this time. He is able to reason
properly, without any mental illness or defect interfering with his
capacity to assist counsel or himself in his defense.
Upon receiving the report, the judge stated that
Dr. Ruiz's findings and conclusions supported her own belief that
Sanchez-Velasco was competent to make his own legal decisions. Dr.
Ruiz's evaluation was consistent with nine other competency
determinations. The judge's determination of competency was also
supported by the fact that Sanchez-Velasco arrived at the hearing with
a presumption of competence attributable to the previous
determinations of his competency. See Whitmore v. Arkansas,
495 U.S. 149 (1990); Hunter v. State, 660 So. 2d 244 (Fla.
1995); Durocher, 623 So. 2d at 484. The judge then discharged
Bowen as Sanchez-Velasco's counsel and dismissed the rule 3.850 motion.
Bowen argues that Dr. Ruiz's report failed to
expressly address the alleged contradictions between Sanchez-Velasco's
claim that his counsel was ineffective in pressing his appeal and his
request to withdraw his appeal. We find that, to the extent such a
contradiction may exist, it does not in and of itself lead us to doubt
Sanchez-Velasco's competence in the face of at least ten evaluations
determining him to be competent. Our decision in Durocher
requires a mental health evaluation only when the Faretta-type
evaluation leaves the judge with doubts as to the defendant's
competency. Here, the record discloses that the judge had no such
doubts but merely ordered the evaluation in an abundance of caution.
In effect, she was making certain her conclusions were correct as well
as consistent with prior competency determinations.
Our decision in Durocher controls the issues
in this appeal. Accordingly, we affirm the order of the trial court
discharging Sanchez-Velasco's post-conviction counsel and dismissing
his rule 3.850 motion.
It is so ordered.
KOGAN, C.J., and OVERTON, SHAW, HARDING and WELLS,
JJ., and GRIMES, Senior Justice, concur.
ANSTEAD, J., recused.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED.
1.Miranda v. Arizona, 384 U.S. 436 (1966).
2.Sanchez-Velasco was initially represented by
Bowen and two attorneys from the Volunteer Lawyer's Resource Center (VLRC).
The VLRC attorneys withdrew from the case prior to the hearing on
Sanchez-Velasco's motion to discharge Bowen and withdraw his post-conviction
3.Faretta v. California, 422 U.S. 806
IN THE UNITED STATES COURT OF APPEALS
For the Eleventh Circuit
RIGOBERTO SANCHEZ-VELASCO, Petitioner-Appellant,
SECRETARY OF THE DEPARTMENT OF CORRECTIONS, Respondent-Appellee.
D.C. Docket No. 98-02967-CV-DMM
Appeal from the United States District Court for the
Southern District of Florida
April 2, 2002
Before CARNES, HULL and WILSON, Circuit Judges.
CARNES, Circuit Judge:
Rigoberto Sanchez-Velasco is a Florida death row
inmate. He is under sentence of death for the brutal rape and murder
of an eleven year old girl who had been left in his care by her mother.
While on death row for that crime, he has murdered two inmates. As he
explained to the district court in this proceeding: "I hate people, I
don't like them, I want to kill people. You understand?" When asked by
an interviewer how he made the shank he used to kill his two fellow
inmates he declined to tell, explaining that he plans to make more
shanks to use against other inmates in the future. Professing that he
will kill or attempt to kill again in the future, Sanchez- Velasco
insists that he wants his death sentence to be carried out.
Todd Scher and the Capital Collateral Regional
Counsel (CCRC) of Florida, however, do not want Sanchez-Velasco's
death sentence to be carried out. CCRC is an entity created by the
Florida Legislature to provide post-conviction representation to
indigent death row inmates in that state, see Fla. Stat. §§
27.701 - 27.708 (1990), and Todd Scher is the litigation director of
that organization's South Florida office. In order to prevent
the death sentence from being carried out, Scher filed a 28 U.S.C. §
2254 petition in the district court without Sanchez-Velasco's consent
and without even telling him he was going to do it.
In fact, neither Scher nor anyone else from CCRC
made any attempt to speak with Sanchez-Velasco about his case until
after he had learned of the petition they had filed in his name and
had sent the court a pro se motion to dismiss it. The district
court granted Scher limited standing to proceed, appointed an expert
to examine Sanchez-Velasco, and conducted an evidentiary hearing after
which it concluded that he was mentally competent to decide whether
such a petition should be filed. As a result, the district court
granted Sanchez-Velasco's motion to dismiss the petition that Scher
had filed without his permission. This is Scher's appeal from that
Although we find no fault with the district court's
conclusion that Sanchez-Velasco is mentally competent to decide his
own fate, we disagree with the court's ruling that Scher and CCRC, who
are strangers to Sanchez-Velasco, have limited standing to challenge
his mental competency. We also disagree with the district court's
decision to appoint an expert to examine Sanchez-Velasco again and to
conduct an evidentiary hearing on his mental competency, after the
state courts had already decided the issue. Those errors, however, did
not harm Scher's side of the case but instead gave him more than he
was entitled to receive. We affirm the district court's judgment
dismissing the habeas petition that Scher filed.
I. PROCEDURAL HISTORY
A. The Trial and Sentence Proceedings
In August 1988, Sanchez-Velasco was tried and
convicted for the murder, sexual battery, and robbery of young Kathy
Encenarro in December of 1986. Before trial, Sanchez-Velasco's counsel
requested that he be evaluated both for competency to stand trial and
for sanity at the time of the offense. The trial court
appointed six mental health experts - Drs. Riechenberg, Marina, Haber,
Berglass, Mutter, and Jaslow - to examine him; he was examined by each
of them; and none of them found him either insane at the time of the
crime or incompetent to stand trial.
During the trial, after Sanchez-Velasco had
interrupted the testimony of a government witness with an outburst,
his counsel asked that he be evaluated again for competency to stand
trial. He was examined by two new doctors - Drs. Castiello and Jimenez
- both of whom found him to be competent. At the conclusion of
the guilt phase of the trial, the jury found Sanchez-Velasco guilty of
murder, sexual battery, and theft. Sanchez-Velasco v. State,
570 So. 2d 908, 912 (Fla. 1990) (Sanchez-Velasco I).
At the penalty phase of the trial, the defense
presented the testimony of Dr. Haber, who had examined Sanchez-Velasco
before trial, and who testified that he had an emotional disturbance
but was legally sane. Sanchez-Velasco v. State, 702 So. 2d 224,
225-26 (Fla. 1997) (Sanchez-Velasco II). Sanchez-Velasco
himself also made a statement to the jury, in which he denied that he
was mentally ill, emotionally disturbed, or unable to appreciate the
criminality of his conduct. Sanchez-Velasco I, 570 So. 2d at
At the conclusion of the penalty phase, the jury
recommended the death penalty by an eight to four vote. At the
sentence proceeding that followed before the judge the defense,
seeking again to establish that Sanchez-Velasco's mental condition
should serve as a mitigating circumstance, presented another
psychiatrist. This one, Dr. Marina, who had examined him before trial,
testified that Sanchez-Velasco was mentally competent but that he
might be suffering from some sort of mental disturbance. Sanchez-Velasco
II, 702 So. 2d 224 at 226.1
Ultimately, the court rejected the opinions
the two defense mental health experts had given during the penalty
phase of the trial, and concluded that Sanchez-Velasco, in addition to
being undisputably competent, had no extreme mental or emotional
condition that might mitigate against a death sentence, and it imposed
one. Sanchez-Velasco I, 570 So. 2d at 910-13.
Counting them up, from the pretrial through the
sentencing stage Sanchez-Velasco was examined for competency by eight
different experts, and each one concluded he was mentally
competent. Sanchez-Velasco II, 702 So. 2d at 226. There was no
disagreement about that.
B. The State Post-Conviction Proceedings
Sanchez-Velasco's conviction and death sentence
were affirmed on direct appeal in 1990. Sanchez-Velasco I, 570
So. 2d at 916. In May of 1993, lawyers representing him filed a motion
pursuant to Florida Rule of Criminal Procedure 3.850 seeking to have
his conviction and death sentence overturned. CCRC, which
generally handles the state post-conviction representation of inmates
sentenced to death in Florida, could not represent Sanchez- Velasco
because of a conflict of interest stemming from a CCRC attorney's
representation of a client in a case in which Sanchez-Velasco was a
witness. As a result, Sanchez-Velasco was represented by lawyers from
the Volunteer Lawyers Resource Center, and by Michael Bowen, an
attorney who handled the case pro bono. (The lawyers from the VLRC
eventually withdrew from their representation of Sanchez-Velasco in
the post-conviction proceeding, leaving just Mr. Bowen as his attorney.)
In any event, the Rule 3.850 motion was filed, and initially litigated,
the old fashioned way - with Sanchez-Velasco's knowledge and consent.
Notwithstanding his earlier consent to the filing
of the Rule 3.850 motion, in March and April of 1994 Sanchez-Velasco
wrote two letters to the Governor of Florida asking that he be
permitted to waive his right to challenge his conviction and sentence
in the ongoing post-conviction proceedings. The Governor forwarded
those letters to the state trial court, which appointed three experts
to examine Sanchez-Velasco and determine if he was mentally competent
to waive the post-conviction proceedings.2
Sanchez-Velasco's brother then filed a next friend petition with the
Florida Supreme Court to stay all proceedings that would expedite the
execution. That petition was denied without elaboration. Sanchez v.
Wilson, 639 So. 2d 980 (Fla. 1994).
In May of 1994, Sanchez-Velasco wrote a letter to
the state trial court withdrawing his request to waive his
right to state post-conviction proceedings, but he later renewed his
waiver request in a letter to the Governor dated June 20, 1995.
In that letter, Sanchez-Velasco explained that he had withdrawn his
initial waiver request because his lawyers had surrounded him with
family who persuaded him not to drop his post-conviction proceedings.
In October 1995, the state trial court held a
colloquy with Sanchez-Velasco about his request to forego any further
attack on his conviction and sentence. When the court asked Sanchez-
Velasco whether he wanted to waive his post-conviction proceedings, he
demanded "the right to explain himself" before he would answer that
question. The court told Sanchez-Velasco that he would have an
opportunity to explain but that he must first answer the question.
When Sanchez-Velasco repeatedly refused to answer before being allowed
to explain, the trial court concluded Sanchez-Velasco did not
sincerely want to waive his state post-conviction proceedings and
therefore allowed the Rule 3.850 proceeding to go forward. Eventually,
the court set an evidentiary hearing on two of the claims raised in
the Rule 3.850 motion.
One of those two claims for which the evidentiary
hearing was scheduled asserted that Sanchez-Velasco had been
incompetent to stand trial and had been erroneously determined to be
competent because his evaluating psychologists and psychiatrists had
lacked information about his background and medical history.
In support of that claim, Sanchez-Velasco's lawyers
planned to introduce testimony from two experts- Drs. Whyte and
Herrera-who had at Sanchez-Velasco's lawyers' request each evaluated
Sanchez-Velasco twice, first in 1993 and again in 1994, and had
concluded that he suffered from significant psychological disorders
that rendered him mentally incompetent. Sanchez- Velasco II,
702 So. 2d at 226. Copies of their 1993 reports had been attached to
Sanchez-Velasco's Rule 3.850 motion, and copies of their 1994 reports
had been attached to the next-friend petition Sanchez-Velasco's
brother had filed that year in the Florida Supreme Court.3
On October 24, 1996, at the beginning of the
evidentiary hearing, and before any evidence was presented, Sanchez-Velasco
moved to discharge his counsel, Mr. Bowen, and again asked to be
allowed to waive the post-conviction proceedings. The state trial
court observed that Sanchez-Velasco "appears very intelligent" and "appears
to be very competent" but ordered a competency evaluation out of an
abundance of caution. Sanchez- Velasco II, 702 So. 2d at 226.
The next day, Sanchez-Velasco was evaluated by Dr.
Sonia Ruiz, a clinical psychologist. She concluded that he was
mentally competent to participate in legal proceedings, consult with
his lawyer, and understand the consequences of his decisions. Id.
at 226 - 27. She further found that he did not suffer from any
major mental illness or defect. Id. Dr. Ruiz was the twelfth
expert who had examined Sanchez-Velasco for mental competency for one
purpose or another while his case was in the state courts, and she was
the tenth one to find him to be competent. Id. at 227- 29.4
After receiving Dr. Ruiz's report, the state trial
court held a hearing on October 25, 1996, at which it conducted a
detailed Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525
(1975), type of inquiry to determine whether Sanchez-Velasco was
competent to waive the post-conviction attack on his conviction and
sentence. Sanchez-Velasco II, 702 So.2d at 227. It did so,
because that is the procedure the Florida Supreme Court has mandated
in cases where death row inmates seek to drop state post-conviction
proceedings. See Durocher v. Singletary, 623 So.
2d 482, 485 (Fla. 1993).
During its inquiry, the court asked Sanchez-Velasco
if he understood that: (1) by waiving his claims he would lose all
right to future appeals of his conviction and sentence; (2) if he
prevailed on his claims he would receive a new sentencing hearing; and
(3) once his claims were waived he would not have the right to
reinstate them in the future. Sanchez-Velasco confirmed that he
understood each of those propositions, and when the court asked him
again if he wished to withdraw his appeal, he stated that he did.
On October 31, 1996, the state trial court entered
an order finding that Sanchez-Velasco was competent to discharge his
counsel and dismiss the Rule 3.850 motion, and it dismissed the
proceedings. Sanchez-Velasco's former lawyer, Bowen, appealed that
order, but the Florida Supreme Court affirmed it in December 1997.
Sanchez-Velasco II, 702 So. 2d at 228. In doing so, the Florida
Supreme Court concluded that the procedures the trial court had used
to determine whether Sanchez-Velasco was competent to dismiss his
collateral counsel and post-conviction proceedings complied with the
requirements it had set forth in Durocher v. Singletary, 623
So. 2d 482 (Fla. 1993). The United States Supreme Court denied
certiorari review in October of 1998. See 525 U.S. 811, 119
C. The Federal Habeas Petition
In December 1998 Todd Scher, in his position as an
attorney with CCRC, filed a petition for a writ of habeas corpus in
federal district court. The conflict of interest that had previously
prevented CCRC or its attorneys from representing Sanchez- Velasco had
been resolved.5 However, there was
another problem with the filing of the petition. The problem was and
is that neither Scher nor anyone else from CCRC had Sanchez- Velasco's
permission to file the petition on his behalf or to represent him in
this or any other proceeding. They had not even bothered to talk with
Sanchez-Velasco about the matter before they purported to act on his
behalf. He did not know they were going to do it. He did not know them
at all. They were complete strangers to him.
Attempting to explain his actions, Scher's brief to
this Court says that he "had spoken with several people, including
attorneys, who had contact with [Sanchez-Velasco] and who all
indicated that [Sanchez-Velasco] wished to challenge his conviction
and sentence in federal court." Apparently, that is not entirely true,
because when we pressed Scher at oral argument he admitted that the
conversations he claims to have had with those people had merely given
him no reason to believe that Sanchez-Velasco did not want him to file
the petition. This was also his position before the district court,
where he stated that: "I did consult with Mr. Sanchez-Velasco's
previous attorneys, I also consulted with people who have seen and
constantly visited Mr. Sanchez-Velasco, and had no reason to believe .
. . that he would not agree to have this petition filed on his behalf."
Scher never explained to either the district court or to us why he
thought that Sanchez-Velasco would have gone to such lengths to have
his state post- conviction proceeding dismissed so his sentence could
be carried out and then want a federal habeas petition to be filed in
an attempt to overturn that sentence.
While admitting that he did not even attempt to
talk with Sanchez-Velasco before filing the federal habeas petition,
Scher claims he did mail a copy of the petition to Sanchez-Velasco
after it was filed. Sanchez-Velasco denies that he ever received a
copy of the petition. It is not clear that the district court ever
resolved this factual dispute, but we will assume for present purposes
that Scher did mail and Sanchez-Velasco did receive a copy of the
petition shortly after it was filed.6
The habeas petition Scher filed in Sanchez-Velasco's
name raised a number of claims, including one that Sanchez-Velasco had
been incompetent to waive his state post-conviction appeals. No new
affidavits or reports were submitted in support of that claim. In its
initial response to the habeas petition, the State of Florida
contested Scher's standing to file the petition, but the district
did not rule on that issue immediately. Instead,
the court stayed any consideration of that issue and of the petition
itself until the Supreme Court's released its decision in Williams
v. Taylor, 529 U.S. 420, 120 S.Ct. 1479 (2000), concerning the
scope of habeas review under the Antiterrorism and Effective Death
Penalty Act. During the time that the petition was pending,
Scher made no attempt whatever to visit Sanchez-Velasco, or to have
someone from his office visit him. During that time CCRC and Scher had
a number of other clients located at the same prison as Sanchez-Velasco,
and someone from CCRC visited the facility about every week. Yet no
one ever attempted to talk with Sanchez-Velasco about the federal
habeas petition that had been filed in his name.
In March 2000, fourteen months after Scher had
filed the habeas petition, and while the State's challenge to Scher's
standing was still pending, Sanchez-Velasco filed a pro se
motion to "waive all my legal rights of appeals in any federal and
state court." In that motion, Sanchez-Velasco asserted he had a
constitutional right "to choose not to be represented by any attorney"
unless he had been shown to be incompetent, and he argued that he had
exercised his right to decline representation by counsel when he
withdrew his Rule 3.850 motion in state court after having been found
competent to do so.
Sanchez-Velasco explained in the motion he filed in
this case that he wished to forego any appeal of his murder conviction
and death sentence for two reasons. First, he believed that the trial
and sentencing proceedings had been fair: "This petitioner was legally
trialed and convicted for the crime he was charged and he believe that
he was fairly represented on his trial." Second, he felt he was a
dangerous and violent person who posed a threat to others as long as
he remained alive: "This petitioner while waiting for his sentence to
be carryed out, he has killed two more human being and hurted many
others and he believes that the only way the Governor can asure that
he won't be able to hurt or to take any more lifes is by carrying out
the death sentence that was giving to he by the court of law."
It was only at this point, after Sanchez-Velasco
had filed his pro se motion to withdraw his petition, that
Scher finally made his first attempt to communicate with the man he
claimed to be representing. He went to see Sanchez-Velasco. After
meeting once with Scher, and on the same day of that meeting, Sanchez-
Velasco filled out and signed a form indicating that he refused to
meet any further with Scher, with anyone from CCRC, or with any mental
health expert working for CCRC. He did not want to have anything to do
with them or for them to have anything to do with him.
The district court issued an order for Scher to
show cause why Sanchez-Velasco's motion to dismiss the habeas petition
should not be granted. Scher's response argued that Sanchez-Velasco
was not mentally competent to dismiss the petition, and attached to it
were a number of materials, including affidavits from friends and
family, psychological evaluations, and medical records from prison
showing that while in prison Sanchez-Velasco had reported
psychological problems and had been administered psychiatric drugs in
non-therapeutic doses. All of those materials had been considered by
the state courts and virtually all of them had been before the state
trial court when it found Sanchez-Velasco competent to dismiss his
Rule 3.850 motion proceeding.7
The district court ruled that Scher had standing
enough to challenge Sanchez-Velasco's mental competency to dismiss the
federal habeas petition. The court also decided that an independent
mental health expert should be appointed to examine Sanchez-Velasco in
order to determine his mental competence and that an evidentiary
hearing should be held on the issue after that examination. The State
filed a motion for reconsideration, again arguing that Scher lacked
standing even to challenge Sanchez-Velasco's competency. The court
denied that motion for reconsideration.
The court asked Scher and the State to agree upon a
mental health expert or, alternatively, to submit a list of experts
from whom the court could choose one to conduct the examination.
Because Scher and the state could not agree on a mental-health expert,
each submitted two names. In October 2000 the district court appointed
one of the experts the State had suggested, Dr. Richard Greer, Chief
of the Forensic Psychology Division at the University of Florida. Dr.
Greer had previously examined Sanchez-Velasco in November 1995 for
competency to stand trial for the murder of two fellow inmates, and he
had found Sanchez- Velasco competent to represent himself and enter a
guilty plea in that case. Sanchez-Velasco II, 702 So. 2d at
In January 2001 Dr. Greer, accompanied by his
student, Dr. Robert Stetson, examined Sanchez-Velasco, and in
February 2001 issued his report. In his report Dr. Greer concluded
Sanchez- Velasco did not suffer from any major mental illness and was
mentally competent to withdraw his habeas petition. He based this
conclusion on his examination of Sanchez-Velasco as well as his review
of the medical history and case file. Scher moved to strike Dr.
Greer's report and appoint additional mental health experts, but the
district court denied that motion.
On May 15, 2001, the district court held an
evidentiary hearing. Dr. Greer was the only witness. He testified
about his education, training, and experience, his examination of
Sanchez- Velasco, and his conclusion that Sanchez-Velasco was
competent. All parties, including Sanchez-Velasco himself, were given
an opportunity to question Dr. Greer. Scher neither submitted nor
attempted to submit any new testimony or other evidentiary material at
the hearing. The State submitted Sanchez-Velasco's most recent prison
medical records, which showed that he did not currently suffer from
any significant mental illness. The State also re-urged its position
that Scher did not have standing to even raise the issue of whether
Sanchez-Velasco was mentally competent.
At the evidentiary hearing, after Dr. Greer had
testified, the district court spoke with Sanchez-Velasco about his
desire to dismiss the petition. The court asked him why he wanted to
do that, and he told the court: that he had not filed the petition;
that he was competent; and that he wanted Scher and CCRC to stop "play
game with the system and the taxpayers' money." Sanchez- Velasco
pointed out that he already been found competent in state court to
waive his post-conviction proceeding there, and that he had again been
found competent by Dr. Greer. The court asked him whether he
understood "what's going to happen if you don't have an appeal, if you
don't have an appeal pending" and he answered: "Sure. My sentence
might be carried on sometime whenever the government decided to do
so." He then added:
And really it not a matter
of whether my sentence be carried out or not. The matter is that I
won't be able to hurt anybody no more. And meantime, while they're
playing with the system and using the system to enrich they pockets,
and I continue killing people. I haven't stopped kill people since I
been in the DOC department under the DOC supervising. I has killed
people repeatedly, repeatedly, repeatedly, even while being on death
row. So I don't see myself in other way, is no choice I am making
because I want to die . . . but since I been all this year on death
row and every year since then hurt somebody or kill somebody, and I
haven't do anything, I don't see myself to change my life around. .
I has been like that all my
life and it is nothing I can do. So to saving my time and saving the
government time and saving other people lives, I make my own choice.
I have a constitutional right to do so. The Constitution of the
United States give me that right.
And I am competent to do so.
The court finally asked, point blank, whether
Sanchez-Velasco understood that "if . . .this petition is withdrawn,
you will probably be executed," to which Sanchez-Velasco replied "Yes,
After the hearing, the district court issued an
order finding that Scher had standing to raise the issue of Sanchez-Velasco's
mental competency to forego filing a habeas corpus petition. It also
found, however, that Sanchez-Velasco was in fact mentally competent,
which meant that Scher lacked standing to litigate the habeas petition
he had filed on behalf of Sanchez-Velasco. It was on that basis that
the district court dismissed the habeas petition.
D. The Certificate of Appealability
Scher sought a certificate of appealability, but
the district court denied one. Scher then sought one from this court,
and we granted it, on the following three issues:
1)Whether the Capital
Collateral Regional Counsel is "truly dedicated to the best
interests" of Sanchez-Velasco, as is required by the first prong of
the Whitmore v. Arkansas test for `next friend' standing,
including whether being "truly dedicated to the best interests"
requires that the `next friend' "have some significant relationship
with the real party in interest." Whitmore v. Arkansas, 495
U.S. 149, 163, 110 S.Ct. 1717, 1727 (1990).
2)Whether the district court
employed adequate procedures to determine if Sanchez-Velasco was
competent to waive his habeas petition. Cf. Mata v.
Johnson, 210 F.3d 324 (5th Cir. 2000).
3)Whether, if the court did
use adequate procedures, it clearly erred in finding that Sanchez-Velasco
was competent to waive his habeas petition.
Scher claims standing under the "next friend"
doctrine, but the Supreme Court has held that "next friend" standing "is
by no means granted automatically to whomever seeks to pursue an
action on behalf of another." Whitmore v. Arkansas, 495 U.S.
149, 163, 110 S. Ct. 1717, 1727 (1990). Instead, two requirements must
Decisions applying the
habeas corpus statute have adhered to at least two firmly rooted
prerequisites for `next friend standing.' First, a `next friend'
must provide an adequate explanation-such as inaccessibility, mental
incompetence, or other disability-why the real party in interest
cannot appear on his own behalf to prosecute the action. Second, the
"next friend" must be truly dedicated to the best interests of the
person on whose behalf he seeks to litigate, and it has been further
suggested that a "next friend" must have some significant
relationship with the real party in interest.
Id. at 163-64, 110 S. Ct. at 1727 (internal
citations omitted); see also Lonchar v. Zant, 978
F.2d 637, 641 (11th Cir. 1992).
The district court in this case referred to the
second prong of the Whitmore test as whether Scher had "standing
to even challenge Petitioner's mental competency," and concluded that
he did. The court also found, however, that Sanchez-Velasco was
mentally competent, which means that Scher failed to meet the first
prong of the Whitmore test. The result is that the district
court granted Sanchez-Velasco's motion to dismiss the habeas petition
that Scher had filed. For the reasons that follow, we think that the
district court reached the right result and was correct about Sanchez-Velasco's
mental competency, but that it was wrong about Scher having what the
court described as limited standing to litigate whether Sanchez-
Velasco was mentally competent. In our view, Scher failed to satisfy
either of the two Whitmore requirements.
A. The Dedication to Best Interests Prong
Throughout this proceeding, the State of Florida
has contested Scher's standing to litigate the issue of whether
Sanchez- Velasco can decide for himself about filing a federal habeas
petition. From the beginning, the State has contended not only that
Sanchez-Velasco is mentally competent to make his own decisions but
also that Scher has no right to even litigate that question. The State
has, in other words, contended all along that Scher has failed to
establish not only the first prong or adequate explanation requirement,
but also the second prong or dedication to best interests requirement.
That is the position the State took in its initial response to the
habeas petition, the position it took in the motion for
reconsideration that it filed after the district court had ordered an
evidentiary hearing on Sanchez-Velasco's mental competency, and the
position it took at the evidentiary hearing. Nothing if not consistent
and persistent, the State has also taken that position in its brief
and oral argument to this Court.
Despite the State's pertinacity in pursuing the
prong-two point, Scher contends that we should not consider the issue
of whether he has standing to litigate Sanchez-Velasco's mental
competency - whether he meets the second Whitmore prong -
because the State failed to cross-appeal the district court's ruling
against it on that question. We disagree.
An appellee may, without cross-appealing, urge in
support of a result that has been appealed by the other party any
ground leading to the same result, even if that ground is inconsistent
with the district court's reasoning. See El Paso Natural Gas
Co. v. Neztsosie, 526 U.S. 473, 479, 119 S. Ct. 1430, 1434-35
(1999); accord Blum v. Bacon, 457 U.S. 132, 137 n.5, 102
S. Ct. 2355, 2359 n.5 (1982) ("It is well accepted, however, that
without filing a cross-appeal or cross-petition, an appellee may rely
upon any matter appearing in the record in support of the judgment
below."). In addition, because standing issues resonate with Article
III concerns we are under an obligation to consider standing at every
step in the judicial process even if the parties do not press it or
have acted or failed to act in a way that would have waived some other
issue. United States v. Hays, 515 U.S. 737, 742, 115 S.Ct.
2431, 2435 (1995); FW/PBS, Inc. v. Dallas, 493 U.S. 215,
230-31, 110 S.Ct. 596, 607-08 (1990).
Turning now to the question of whether Scher has
established the dedication to the best interests prong, we begin by
reiterating the Supreme Court's precise language. It said: "the `next
friend' must be truly dedicated to the best interests of the person on
whose behalf he seeks to litigate, and it has been further suggested
that a `next friend' must have some significant relationship with the
real party in interest." Whitmore, 495 U.S. at 163-64, 110 S.
Ct. at 1727.
As to that latter part, about "some significant
relationship," we have previously indicated that it may not be an
additional, independent requirement but instead may be one means by
which the would-be next friend can show true dedication to the best
interests of the person on whose behalf he seeks to litigate. See
Lonchar v. Zant, 978 F.2d 637, 641 (11th Cir. 1992) ("Then, the
next friend must show some relationship or other evidence that would
suggest that the next friend is truly dedicated to the interests of
the real party in interest.").
We have concluded that "some significant
relationship" does exist when the would-be next friend has served in a
prior proceeding as counsel for the real party in interest and did so
with his consent. That was the situation in the Ford case,
where the attorney who was acting as next friend for the inmate had
represented him with his consent for years in prior litigation
challenging his conviction and death sentence. See Ford v.
Haley, 195 F.3d 603, 605 & n.1 (11th Cir. 1999), and Ford v.
Haley, 179 F.3d 1342, 1344-45 (11th Cir. 1999); see also
Hauser ex rel. Crawford v. Moore, 223 F.3d 1316, 1322 (11th Cir.
2000) ("The most logical `next friend' is Hauser's court-appointed
counsel" from prior proceedings).
We have also indicated that "some significant
relationship" exists and the second Whitmore prong is satisfied
where a close relative acts as next friend. See Lonchar,
978 F.2d at 641 ("The district court held and no one disputes that
Kellogg, as Lonchar's sister, is sufficiently dedicated to the
interests of her brother."); but see Hauser, 223 F.3d at
1322 (expressing reservations about whether the inmate's biological
mother, who gave him up for adoption, was dedicated to his best
interests for next-friend purposes).
Neither of those situations exist here. Sanchez-Velasco's
brother attempted to act in a next-friend capacity and pursue state
court remedies on his behalf, but he has not done that in federal
court. Scher is not related to Sanchez-Velasco. He has never
represented him before. Prior to filing the federal habeas petition (and
for more than a year afterwards) Scher had never met Sanchez-Velasco.
He had never spoken with him. He had never even attempted to do so.
Scher was, in short, a total stranger to Sanchez-Velasco. He had no
relationship at all with him, much less a significant one.
Nor has Scher shown in any other way that he is "truly
dedicated to the best interests of the person on whose behalf he seeks
to litigate" within the meaning of that Whitmore requirement.
Scher, as a CCRC attorney, does have state law authority to represent
death row inmates who consent to the representation, but he has no
more authority than any other attorney to represent an unconsenting
inmate. That is true as a matter of federal law under the Whitmore
decision, and it is true as a matter of state law as well, see
Durocher v. Singletary, 623 So. 2d 482, 485 (Fla. 1993) ("[W]e
hold that . . . CCR [CCRC's predecessor] has no duty or right to
represent a death row inmate without that inmate's permission.");
cf. Faretta v. California, 422 U.S. 806, 821, 95 S. Ct.
2525, 2534 (1975) ("An unwanted counsel `represents' the defendant
only through a tenuous and unacceptable legal fiction.").
The district court gave three reasons for finding
that Scher had met the second prong of the Whitmore test, none
of which we find persuasive. First, it said that in this case Scher
had "followed [CCRC's] standard procedures in filing the habeas
petition on Petitioner's behalf." If that is so, then CCRC's standard
procedures should be changed. They should be changed because they are
contrary to Florida law, which is that CCRC has no right to represent
a death row inmate without that inmate's permission. Durocher,
623 So. 2d at 485. CCRC's standard procedures, if this is what they
are, ought to be changed because no attorney should ever file a habeas
petition in the name of an inmate he has not even bothered to speak
with, much less obtain permission from, and omit from the petition the
critical fact that the inmate has not consented to the filing. See
Fla. Stat. Bar R. 4-1.2(a) ("A lawyer shall abide by a client's
decisions concerning the objectives of representation...and shall
consult with the client as to the means by which they are to be
pursued."); id. at 4-8.4(c) ("A lawyer shall not engage in
conduct involving ... misrepresentation. . . "). Nowhere in the two-pound,
272-page habeas petition Scher filed did he disclose to the
court that he had not obtained Sanchez-Velasco's permission to file
the petition. Regardless of whether CCRC followed its standard
procedures in this case, or whether those procedures ought to be
changed, its practices or procedures cannot trump the requirements of
federal law; they cannot take the place of the showing Whitmore
requires that the would-be next friend be dedicated to the best
interests of the inmate.
The second reason that the district court gave for
concluding that Scher could proceed to litigate Sanchez-Velasco's
mental competency is that "the petition was filed in December 1998 and
Petitioner did not move to withdraw the petition until March 2000,"
which the court described as being at a "late stage." But there were
no earlier stages because nothing happened in the case, which was held
in abeyance pending a decision from the Supreme Court in Williams
v. Taylor, 529 U.S. 420, 120 S. Ct. 1479 (2000), during the
interval between Scher's filing of the petition and Sanchez-Velasco's
filing of the motion to dismiss, except the State's response which
also asked the court to dismiss because Scher could not show the
prerequisites for next- friend standing. Besides, we are not aware of
any doctrine which would entitle a stranger to control the legal
affairs of another party after that party protested based upon nothing
more than the lateness of the protest. It is not as though the
doctrine of laches applies to next-friend standing, and even if it did
the requirements of that doctrine would not be met in this case.8
The third reason the district court gave for
allowing Scher to challenge Sanchez-Velasco's mental competency is
that "since this is a capital case, and similar issues related to
Petitioner's mental competency could be raised potentially by a third
party prior to execution, it makes additional good sense to allow CCRC
to litigate Petitioner's mental competency to withdraw his habeas
petition." This reason at least has the virtue of being pragmatic, but
there is no pragmatic exception to the requirements of next-friend
standing. If we were to sanction the district court's reasoning, it
would be tantamount to writing the second prong out of the Whitmore
test, something we cannot do, because the Supreme Court wrote it in.9
Scher offers no better reasons than the district
court did for why we should find that he has met the second prong of
the Whitmore test by showing that he is dedicated to the best
interests of Sanchez-Velasco. Attempting to excuse his failure to ask
for Sanchez-Velasco's permission before filing the petition in his
name, Scher says he was busy drafting the petition before the statute
of limitations ran out. That assertion is both incredible, and beside
the point. It is incredible, because Scher admits that he or others
from his CCRC office visit the prison where Sanchez-Velasco was being
held each week, and obviously the phone lines run to and from the
prison. Yet during all the time Scher was compiling the mammoth
petition and appendices to file, Scher never once attempted to contact
his purported client about the fundamental question of whether he
wanted to be Scher's client. Not only that, but even after the
petition was filed Scher made no attempt to visit or talk with Sanchez-Velasco
until fourteen months had passed, and he only went to see him then
because Sanchez-Velasco had filed a motion to dismiss the petition as
unauthorized. Scher's assertion about being busy is also beside the
point, because there is no "too busy" exception to the second
Scher has not established that he is dedicated to
Sanchez- Velasco's best interests. To the contrary, he appears to be
pursing his own interests in opposing the imposition of the death
penalty. See Hauser, 223 F.3d at 1322 (noting that the
would-be next-friends in that case "appear to be motivated solely by
their own desires to block imposition of the death penalty in an
attempt to define justice as they see fit" (internal quotation marks
omitted)). To allow him to proceed in Sanchez-Velasco's name would run
counter to one of the central purposes of the requirements of next-friend-standing,
which is to keep out "intruders or uninvited meddlers, styling
themselves next friends." Whitmore, 495 U.S. at 164, 110 S. Ct.
at 1728 (quotation marks and citation omitted).
The district court should not have ruled that Scher
had made the showing required by Whitmore's second prong, that
he had, in the district court's words, "limited standing" to litigate
Scher's mental competency to decide whether to proceed with the
federal habeas petition that Scher had filed without permission.
Scher's failure to meet the second prong requirement alone is
sufficient reason to affirm the dismissal of the habeas petition.
This case does not present the issue of how the
second Whitmore requirement should be applied when there is no
one who can meet that requirement and there are serious questions
about the mental competency of the inmate that have not been addressed
by any court. Sanchez-Velasco's mental competency to forego further
legal challenges was fully and completely litigated in the state
courts. His brother had previously filed a petition on his behalf in
the state courts, and counsel who represented Sanchez- Velasco in the
state collateral proceedings began that representation with his
consent. Unlike Scher, the brother and prior counsel have a "significant
relationship with the real party in interest" and under our precedent
would be considered to be sufficiently "dedicated to the best
interests" of Sanchez- Velasco to meet Whitmore's second
requirement for next-friend standing. If there is a "last resort"
exception to that second requirement, this is not a case where it
B. The Adequate Explanation Prong
An independently adequate alternative reason for
affirming the district court's dismissal of the petition is that Scher
also failed to satisfy the first Whitmore prong, which requires
"an adequate explanation-such as inaccessibility, mental incompetence,
or other disability-why the real party in interest cannot appear on
his own behalf to prosecute the action." Whitmore, 459 U.S. at
163, 110 S. Ct. at 1727. The usual explanation proffered is mental
incompetency, and that is the theory on which Scher staked his claim
to third-party standing. After appointing an expert to examine Sanchez-Velasco
and holding an evidentiary hearing on the issue, the district court
correctly concluded that Scher had failed to establish that Sanchez-Velasco
is mentally incompetent, but it could and should have reached that
conclusion without having an expert examine Sanchez-Velasco and
holding an evidentiary hearing.
The district court failed to give the state courts'
determination that Sanchez-Velasco was mentally competent to decide
for himself whether to pursue further challenges to his conviction and
death sentence the presumption of correctness it was entitled to under
Demosthenes v. Baal, 495 U.S. 731, 735, 110 S. Ct. 2223, 2225
(1990). The Demosthenes decision requires a federal court to
presume that a state court finding of competency is correct. Id.;
see also Hauser, 223 F.3d at 1323 ("These subsidiary
findings, and the ultimate decision [of the state court] that Hauser
is competent, are factual in nature and are entitled to a presumption
of correctness."); 28 U.S.C. § 2254(e)(1).
The presumed correctness of the state court finding
can be overcome only if the party challenging the inmate's mental
competency comes forward with evidence that clearly and convincingly
establishes incompetency. Hauser, 223 F.3d at 1323 ("In order
to rebut these findings, CCRC . . . must present clear and convincing
evidence that Hauser is incompetent."). In this case, a state trial
court adjudged Sanchez-Velasco competent to waive further legal
proceedings. That finding was made in October 1996, and it was
affirmed by the Florida Supreme Court in December 1997.
The filing of the federal habeas petition in this
case came two years and two months after the state trial court had
found Sanchez-Velasco mentally competent, and one year after the
Florida Supreme Court had affirmed that finding. That is substantially
more time than had elapsed between the state court findings and the
filing of the federal habeas proceeding in Demosthenes and
Hauser, but it is not so much time as to remove the presumption of
correctness, at least where no evidence is offered that the inmate's
mental condition has changed in the interval. Cf. Mata v.
Johnson, 210 F.3d 324, 332 (5th Cir. 2000) (holding the
district court erred in basing a competency determination on a twelve-year-old
finding from state trial proceedings when there was extensive new
evidence of incompetency).
In the face of a state court determination that the
real party in interest inmate is mentally competent, in order to be
entitled to a federal evidentiary hearing on the issue a would- be
next-friend must proffer evidence that does one of two things. The
proffered evidence either must clearly and convincingly establish that
the state court finding was erroneous when made, or it must show that
even though the state court finding was correct when made the mental
condition of the inmate has deteriorated to the point that he is no
longer mentally competent. Scher did proffer some evidence in the two-
and-a-half pounds of documents appended to the habeas petition, but
none of that evidence clearly and convincingly established that the
state court's finding about mental competency was erroneous. Nor did
any of it show a change in Sanchez-Velasco's condition since the state
court findings were made. In fact, the vast majority of the evidence
in those documents was before the state trial court when it found that
Sanchez-Velasco was mentally competent.10
In these circumstances, the district court should
not have appointed another expert to examine Sanchez-Velasco yet again,
it should not have conducted an evidentiary hearing into the issue,
and it should not have made its own independent finding regarding the
mental competence issue. Instead, the district
court should have accepted as correct the state
court finding that Sanchez-Velasco is mentally competent to decide his
Alternatively, even if Scher had been entitled to
have the district court make its own determination of Sanchez-Velasco's
mental condition after appointing another expert to examine him and
conducting an evidentiary hearing on the issue, that is what the court
did. Scher says the district court made a number of errors tainting
its own finding that Sanchez-Velasco was mentally competent, but we
are not convinced by his arguments.
First, Scher argues that the district court abused
its discretion in choosing the expert it did to examine Sanchez-
Velasco and in failing to appoint an additional expert picked by Scher.
The court had asked Scher and the State to agree on an expert to do
the examination, or failing that, to submit names from which the court
could choose one. They could not agree, so Scher and the State each
submitted two names.
The court chose Dr. Richard Greer, one of the
experts whose name the State had submitted. His qualifications were
beyond question. Dr. Greer was Chief of the Forensic Psychology
Division of the University of Florida Medical School, where he was
professor of neurology and psychiatry, and he had extensive experience
in making competency evaluations. He was also familiar with the
specific subject matter - Sanchez-Velasco's mind - having conducted an
examination as a court-appointed expert in November of 1995 to
determine if Sanchez-Velasco was mentally competent to stand trial for
the murder of two inmates. (He had found that Sanchez- Velasco was
competent at that time to stand trial or plead guilty.)
Scher does not quarrel with Dr. Greer's
qualifications. Instead, he argues that, because Dr. Greer was one of
the two experts Florida had suggested, the district court should have
also appointed an expert of Scher's choosing to evaluate Sanchez-Velasco.
Of course, while the State put Dr. Greer's name on the list, it did
not select him, the district court did. Given Dr. Greer's sterling
qualifications and prior related work involving Sanchez-Velasco, the
court had every reason for doing so. Due process did not require the
appointment of two experts in these circumstances.11
In contesting the fairness of the examination and
evidentiary hearing Scher also argues that Dr. Greer's subsequent
arrest for possession of cocaine on September 17, 2001, eight months
after the examination, seven months after the report, and three months
after he had testified at the hearing, potentially tainted his expert
opinion. Scher maintains the case should be remanded to the district
court with instructions that it consider the information about Dr.
Greer's arrest and reweigh his testimony in light of it. Of course, an
arrest without a conviction, or the conduct leading to it, cannot be
proven by extrinsic evidence. See F.R.E. 608(b). So far as we
know and the parties can tell us, Dr. Greer has not been convicted of
the crime for which he was arrested. Nor could Scher even
cross-examine Dr. Greer about the conduct or arrest unless "in the
discretion of the court, [it is] probative of . . . [Dr. Greer's]
Scher's main argument is that the subsequent arrest
would show that Dr. Greer was untruthful when he testified at the
evidentiary hearing because the arrest is probative of his bias at the
time. The theory, as we understand it, is that the district court
could infer from the fact of Dr. Greer's arrest that he had slanted
his report seven months earlier and his testimony three months earlier
in favor of the State position's in order to curry favor in
anticipation of a possible future arrest. The theory depends upon each
of the following conjectures: first, that Dr. Greer had begun using
drugs before the time he issued his report and gave his testimony in
this case; second, that at the time he wrote the report and gave the
testimony he anticipated getting caught; and, third, he thought that
there was a reasonable possibility that having written a report and
given testimony consistent with the State's position in an unrelated
proceeding in the past would lead to more lenient treatment for him
after his anticipated arrest. That conjectural chain is sufficiently
unlikely that any finding based upon it would be clearly erroneous.
For that reason, no remand is necessary.
In a recent case we approved the Florida Supreme
Court's conclusion that evidence of government witnesses' collateral
criminal conduct occurring at the time of their testimony is
inadmissible to show that the witnesses had slanted their testimony in
order to curry favor with the state. Breedlove v. Moore, 279
F.3d 952 (11th Cir. 2002). The Florida Supreme Court had considered
the bias argument, but rejected it "[b]ecause the detectives' criminal
conduct was completely unrelated to the charges against Breedlove and
because the detectives had not been indicted or convicted of any crime
at the time of Breedlove's trial . . ." Breedlove, 279 F.3d at
963 (quoting Breedlove v. State, 580 So. 2d 605, 609 (Fla.
1991)). Because inquiry into the witnesses' criminal conduct would
have done nothing more than "`raise the possibility that [the
detectives] had engaged in bad acts," it was not permitted. Id.
(quoting Breedlove v. State, 580 So. 2d at 609). Similarly, in
this case, because Dr. Greer's arrest is unrelated to the issue of
Sanchez- Velasco's competency, and for the additional reason that it
had not occurred at the time of his report and testimony, evidence of
it would be inadmissible.
There were no procedural flaws in the appointment
of Dr. Greer, in his examination and report, or in his testimony at
the hearing, and there is no reason to do any of it over. Nor are
there any flaws in any other aspect of the proceeding that are adverse
to Scher's side of the case. Scher had the opportunity to question Dr.
Greer, and he also had the opportunity to present new evidence
challenging Sanchez-Velasco's competency, but he failed to do so.
The district court conducted an extended colloquy
with Sanchez- Velasco to determine whether he was mentally competent
and truly wished to waive his rights to federal habeas review. During
that colloquy, the court asked Sanchez-Velasco why he had moved to
dismiss the petition, and whether he understood that doing so meant he
likely would be executed. The court asked whether Sanchez-Velasco
wanted to pursue habeas relief, but not with Scher and CCRC as his
lawyers. It reminded him that in the state proceedings he had changed
his mind about waiving his post-conviction rights, and asked whether
he was confident that he would not change his mind about this waiver
request. To all of these questions, Sanchez-Velasco answered in a way
that indicated he knew what he was doing and truly wished to do it.
Finally, the district court's finding that Sanchez-Velasco
was competent was not clearly erroneous. The court had before it an
unbroken string of state court determinations that Sanchez- Velasco
was competent: at the time of the crime, immediately before trial,
during trial, and at the time he sought to waive his Rule 3.850
petition. It had before it an overwhelming majority of mental health
professionals who had determined Sanchez-Velasco was competent at
various times while his state court proceedings were pending. It had
before it Dr. Greer's fresh report and expert testimony at the hearing
to the same effect. The court had no evidence before it to indicate
that Sanchez-Velasco was not competent, other than evidence that had
already been presented to and considered by the state courts. Finally,
the court had the evidence of Sanchez-Velasco's answers to the court's
questions during the colloquy. In light of all of this evidence, the
district court's finding that Sanchez-Velasco was mentally competent
was not even close to erroneous, much less clearly erroneous.
Scher has failed to convince us that the district
court should not have granted Sanchez-Velasco's motion to dismiss the
federal habeas petition filed in his name without his consent. On its
way to dismissing the petition, the district court made some errors
but all of them wrongly favored Scher. Scher has failed to satisfy
either of the two Whitmore requirements for next- friend
standing. He has not shown that he is truly dedicated to the best
interests of the real party in interest, nor has he shown an adequate
explanation for why the real party cannot appear in his own behalf. In
light of the state court proceedings and his failure to proffer
sufficient evidence to warrant another inquiry in federal court, Scher
was not entitled to a re-determination of the mental competency
question in federal court, but he got one. And the one he received was
not tainted by procedural or other errors, nor is the finding the
district court reached clearly erroneous.
That concludes our technical analysis or
explanation in legal terms of why we are affirming the district
court's decision to grant Sanchez-Velasco's motion to dismiss the
federal habeas petition that had been filed in his name. But we should
not forget the values that motivated the Supreme Court's Whitmore
decision and what is really at stake in these kind of cases. These
cases are about the right of self-determination and freedom to make
fundamental choices affecting one's life. As a death row inmate,
Sanchez-Velasco 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. Todd Scher and CCRC are strangers
to Sanchez- Velasco. He has never asked them 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.
Later, during Sanchez-Velasco's post-conviction
proceedings, Dr. Marina would reverse her opinion and say that Sanchez-Velasco
is incompetent, not on the basis of another examination, but because
of reading two reports by other experts who reached that conclusion.
See footnotes 7 and 12 below.
Those three experts never did examine Sanchez-Velasco,
because he withdrew his effort to waive the post-conviction
proceedings before they had an opportunity to evaluate him.
In 1993, Drs. Whyte and Herrera's reports were
shown to Dr. Marina, one of the doctors who had examined Sanchez-Velasco
for competency prior to his trial and who had testified for the
defense during the penalty phase of the trial. On the basis of those
reports and information about Sanchez-Velasco's background provided to
her by his lawyers, but without having re-examined him, Dr. Marina
wrote a letter in which she reversed her earlier opinion and said
Sanchez-Velasco was incompetent. A copy of this letter was before the
state trial court during the Rule 3.850 proceedings. Later, in 1994,
when Sanchez-Velasco's lawyers were compiling expert opinions in
support of Sanchez-Velasco's brother's petition to proceed as Sanchez-Velasco's
next friend, Dr. Marina wrote another letter confirming her changed
opinion, which was attached to the next-friend petition.
In addition to the eight experts whose
examinations and conclusions have already been described in this
opinion and Dr. Ruiz, Dr. Richard Greer also examined Sanchez-Velasco
in connection with his trial for murdering two of his fellow
inmates while he was death row and found him competent to stand trial
or plead guilty. That murder and Dr. Greer's examination occurred
before the state post-conviction proceedings were completed in this
case. Sanchez-Velasco II, 702 So.2d at 226.
CCRC's predecessor, the Capital Collateral
Representative, had been prevented from representing Sanchez-Velasco
in the state court proceedings because of its representation of
another criminal defendant, in whose case Sanchez-Velasco was a
witness. That is why Sanchez-Velasco was represented in those state
proceedings by volunteer counsel from the Volunteer Lawyers Resource
Center and Michael Bowen.
In explaining why it was allowing Scher to
challenge Sanchez-Velasco's mental competency, the district court
referred to the fact that "the petition was filed in December 1998 and
Petitioner did not move to withdraw the petition until March 2000."
Arguably implicit in that statement is a finding that Scher mailed and
Sanchez-Velasco received the petition soon after it was filed. Whether
that happened does not, in any event, affect our decision of any of
the issues in this case.
There were three documents that had not been
before the state trial court in the Rule 3.850 proceeding. Two of them
were reports, one from Dr. Whyte and one from Dr. Herrera, each from
1994 and each describing conclusions drawn after a 1994 examination
following up on an earlier 1993 examination and report by the same
doctor. And there was Dr. Marina's 1994 letter, in which she described
how reading the 1994 reports of Drs. Whyte and Herrera had confirmed
1993 revised conclusion that Sanchez-Velasco was
incompetent. See note 3 above. Although the 1994 documents were not
before the state trial court in 1996 when it found
Sanchez-Velasco competent to waive his state post-conviction
proceedings, each of them had been submitted
to the Florida Supreme Court when it considered Sanchez-Velasco's
brother's petition to proceed as next friend. See note 12 below.
This is not a case in which counsel who had
been representing an inmate with consent in prior proceedings assumed
the inmate would want to continue with the relationship as the legal
challenge moved to another court. Even in that situation, we would
think the attorney would want to communicate with the inmate before
filing a new petition in a different court, although we do not mean to
imply that is required. All we address are the facts before us in this
We do not mean to say that a district court
must decide the second Whitmore prong before it decides the
first one, or that it must address both prongs where one of them is
not met. See Hauser ex rel. Crawford v. Moore, 223 F.3d
1316, 1321 (11th Cir. 2000) (disposing of the case on the first prong
without reaching the second one). A court can consider pragmatic
considerations in deciding how to proceed. But what a court should not
do is rule that the second Whitmore prong is met because it "makes
good sense" to rule that way even if the requirements of that prong
are not met. If the district court had skipped over the second prong
because the first one was not met, that would have been fine. Likewise,
if it had held that neither prong was met, that would have been fine.
What we disagree with is what we understand to be the district court's
ruling that the second prong was actually met in this case. It was not.
By the time that the district court decided to
appoint an expert to examine Sanchez-Velasco and to conduct an
evidentiary hearing, Scher had submitted only three pieces of evidence
that had not been considered by the state trial court when it found
Sanchez-Velasco competent to waive his state post-conviction
proceedings. These were the 1994 reports of Drs. Whyte and Herrera,
and the 1994 letter of Dr. Marina. See note 7 above. Each of those
documents was considered by the Florida Supreme Court in 1994 before
it rejected the petition of Sanchez-Velasco's brother to proceed as
next friend, and, more importantly, each one in large part duplicated
a 1993 report by the same expert that was before the state
trial court in 1996 when it found Sanchez-Velasco competent to waive
his state post-conviction proceedings.
Scher also argues that the fact Dr. Greer was
accompanied during the examination by one of his students, Dr. Stetson,
tainted the process, but none of his arguments in that respect merit
further discussion except to say that if those arguments are not
frivolous they border on it.