                                                                                                                           Opinions of the United
1997 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-18-1997

Heidnik v. Horn
Precedential or Non-Precedential:

Docket 97-9000




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        UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT
                 ____________

                    NO. 97-9000
                   _____________

                In re: Gary Heidnik

               MAXINE DAVIDSON WHITE,

                             APPELLANT

                        v.

           MARTIN HORN, COMMISSIONER,
     PENNSYLVANIA DEPARTMENT OF CORRECTIONS;
   GREGORY WHITE, SUPERINTENDENT OF THE STATE
  CORRECTIONAL INSTITUTION AT PITTSBURGH AND;
 JOSEPH P. MAZURKIEWICZ, SUPERINTENDENT OF THE
STATE CORRECTIONAL INSTITUTION AT ROCKVIEW AND;
          COMMONWEALTH OF PENNSYLVANIA

        (E.D. PA Civ. No. 97-cv-02561)
            _____________________

               Argued April 17, 1997
     Before:    BECKER, STAPLETON and COWEN,
                  CIRCUIT JUDGES.

               (Filed April 18, 1997)



                  Billy H. Nolas, Esq. (Argued)
                  Robert Brett Dunham, Esq.
                  Center For Legal Education, Advocacy &
                  Defense Assistance
                  437 Chestnut Street, Suite 501
                  Philadelphia, Pennsylvania 19106

                  Kathy Swedlow, Esq.
                  David Wycoff, Esq.
                  Defender Association of Philadelphia
                  Federal Court Division
                  437 Chestnut Street
                  Philadelphia, PA 19106

                       Counsel for Appellant

                  Ronald Eisenberg, Esq. (Argued)



                         1
                           Catherine Marshall, Esq.
                           Donna K. Zucker, Esq.
                           Office of the District Attorney
                           1421 Arch Street
                           Philadelphia, PA 19102

                                Counsel for Appellees


                     ___________________________

                         OPINION OF THE COURT
                     ____________________________


PER CURIAM.


     This is an appeal from an order of the district court

denying the motion of Maxine Davidson White and Betty Heidnik

requesting a stay of the execution of Gary Heidnik, appointment

of federal habeas corpus counsel on his behalf, and next friend

standing.1    The motion was filed in the district court just over

two days ago (April 15, 1997) and the order appealed from, which

followed marathon hearings lasting until midnight, was entered

the next day at 6:00 p.m.    We conducted extensive oral argument

yesterday afternoon.    This hectic pace, which is a continuum of a

similarly paced state court proceeding that commenced on April

11, 1997 and was concluded in the trial court on April 15, 1997

(the matter is presently pending in the Pennsylvania Supreme

Court), is a function of the fact that the Governor of
     1
      The motion was originally filed in the name of Gary
Heidnik, but, appended to the moving papers was the affidavit of
Maxine Davidson White, Heidnik’s daughter, who sought appointment
therein as next friend. After a careful review of the record,
and pursuant to our authority under Fed. R. App. P. 43, we have
substituted her as a party. Betty Heidnik has also claimed next
friend status, but because her relationship to Heidnik remains
unclear (she appears to be his ex-wife), it would not appear at
present that she qualifies.




                                  2
Pennsylvania has issued a warrant for Heidnik’s execution in the

Pennsylvania death chamber at the State Correctional Institution

at Rockview, which expires on April 19, 1997.     For the reasons

that follow, we vacate and remand with directions.

                  I.   FACTS AND PROCEDURAL HISTORY

     These proceedings have their origin in a series of heinous

crimes committed by Heidnik over a six month period in 1986-87.

According to the record of his convictions, Heidnik kidnapped and

tortured six women, murdering two of the victims by various forms

of physical abuse and starvation.     In 1988, a jury convicted

Heidnik of first degree murder and returned two sentences of

death.    Heidnik personally petitioned the state courts to conduct

no appellate review and to expedite his execution.     The state

supreme court, however, engaged in statutorily mandated review of

limited issues of state law and affirmed the judgment of

sentence. See Commonwealth v. Heidnik, 587 A.2d 687 (Pa. 1987).

     Heidnik made no further effort to challenge his sentence,

but his execution was delayed by the decision of the former

Governor not to issue warrants of execution.     The current

Governor issued the presently outstanding warrant on March 20,

1997.    On April 11, 1997, attorneys seeking to represent Heidnik

filed a petition in the Philadelphia Court of Common Pleas

asserting that Heidnik was incompetent to be executed.    See Ford

v. Wainright, 477 U.S. 399 (1986).    The trial judge convened a

hearing on Monday, April 14.    When called to the stand, Heidnik

reaffirmed his previous position that he did not want to appeal

his sentence.   Counsel elicited from him his belief in various



                                  3
conspiracy theories, centering on his assertion that he was

innocent of the murders and had been framed by the victims and

corrupt police officers.

     Heidnik’s delusional beliefs are illustrated by excerpts of

his testimony before the state trial court.        Heidnik believes

that the kidnapped victims carried out the two killings of which

he was convicted:
I think they killed Ms. Lindsay -- it’s possible that they killed
     her because she was a lesbian. And I didn’t know that, and
     you know, up until that time.

                                  ***

The reason I mentioned this was because they killed her the next
     day, they killed her the next day, which suggests that they
     either killed her because she was a lesbian or this gave the
     excuse they were looking for.

                                  ***

Rivera was the brains behind it.         But Ms. Thomas I’m pretty sure
     did the actual killing.

                                  ***

And do you understand I’m guilty of everything but murder?               I
     didn’t murder those two women. Do you understand that?


He also believes that the FBI can establish his innocence:

[The FBI is needed so] I could prove I had not murdered these two
     women ...


     In fact, he has constantly sought to contact the FBI in this

regard for many years.       Additionally, because of his claimed

innocence,   Heidnik   believes   that    the   outrage   caused   by   his

execution will result in the end of capital punishment:
I say real or phony, they can execute me, because I am innocent
     and I can prove it. That is the end of capital punishment in
     this state.    When you execute an innocent man, knowingly
     execute an innocent man, you know there will be no more
     capital punishment in this state and possibly anywhere else



                                   4
      in this country. And you know I didn’t kill them two women.
       Go ahead and execute me. That’s going to be the last time
      you ever execute anybody in this country. That’s the end of
      capital punishment.


                                     ***

Yes, I want you to execute an innocent man so there will be no
     more capital punishment ....

                                     ***

I want to be executed because I want to be the last man in this
     country ever executes [sic], that’s the end of capital
     punishment ... You don’t do that shit, not in America. And
     you’re not going to do it anymore because I’m ending capital
     punishment.



      Petitioning counsel maintained that Heidnik’s protestations

of innocence demonstrated that he must be delusional and that his

willingness to be executed was a product of mental illness.               The

court thereupon arranged for a psychiatric examination by a member

of the court’s mental health unit, Dr. John O’Brien, a forensic

psychiatrist.    The examination, which lasted some 90 minutes, took

place in the presence of the stay petition attorneys and counsel

for the Commonwealth.      Dr. O’Brien also reviewed court records,

materials prepared by the Commonwealth, and affidavits prepared by

the   stay    petition   attorneys     on     the   question    of   Heidnik’s

competence.     The   hearing   then       reconvened   for    Dr.   O’Brien’s

testimony, which was to the effect that Heidnik understands that

he is to be executed, and why, and that he is able to make his own

decisions about his fate.

      The judge credited O’Brien’s testimony, and denied Heidnik’s

request for a stay.      An appeal to the Pennsylvania Supreme Court

is pending.     That court has stayed Heidnik’s execution, though it



                                       5
has indicated that it will act upon the matter by noon on April

18, 1997.

       Dr.     O’Brien       was   also    the   Commonwealth’s       key    (and   only)

witness at the proceedings in the district court.                           The district

court proceedings, however, addressed not the Ford v. Wainwright

issue presently before the state supreme court, which inquires

whether a defendant is capable of comprehending the reasons for

the penalty and its implications, but rather the issue framed by

Whitmore v. Arkansas, 495 U.S. 149 (1990), which asks whether the

putative next friend has provided an adequate explanation why the

real       party   in    interest     cannot     appear    on   her   own     behalf   to

prosecute the action.2              The petitioners adduced the testimony of

three psychiatrists, each of whom had examined Heidnik during his

incarceration           in   the    Pennsylvania    prison      system,      Dr.    Lawson

Frederick Bernstein, Jr., Dr. Stewart Wellman, and Dr. Clancy

McKenzie.

       After       consideration      of   the   aforementioned       testimony,       the

district court filed a memorandum and order in which it denied all

requests for relief.               The court concluded that Ms. White had not

met her burden of proof with regard to Heidnik’s incompetence.                         It

accordingly held that she did not have standing before the court

and    denied her next friend status.                     We address the evidence

adduced before the district court and its findings in the next

section.
       2
      There is no dispute that Ms. White meets the second
qualification of Whitmore that the next friend must be truly
dedicated to the best interests of the person on whose behalf he
or she seeks to litigate.




                                             6
     The       court   noted     that   stay    petition      attorneys        also    had

presented an application under McFarland v. Scott, 114 S. Ct. 2568

(1994), for appointment of habeas counsel, but in view of its

denial    of    next    friend    status,      the   court    did    not       reach   the

McFarland issue.         Taking cognizance of the principle of habeas

corpus jurisprudence requiring the exhaustion of state remedies,

but referencing the stipulation of the parties that the court

could consider jurisdictional issues at any time, the court deemed

there to be a waiver of any exhaustion requirement with respect to

the issues before it.3           The court continued the temporary stay of

execution until such time as this Court ruled on any appeal.

                II.    THE DISTRICT COURT RECORD AND FINDINGS

     The testimony of the three witnesses for petitioners was

similar and consistent.          All three had seen Heidnik professionally

on a number of occasions while he was incarcerated at the State

Correctional      Institution      at   Pittsburgh,     and    Dr.    Bernstein        had

treated    Heidnik.        They     agreed      that   Heidnik       is    a    paranoid

schizophrenic with a well-developed paranoid delusional system.

In Bernstein’s view, Heidnik has a
series of fixed false beliefs which are patently absurd and
     inconsistent with reality, which are all-encompassing
     in nature and which color every aspect of his cognitive
     functioning.


Bernstein concluded that it was inconceivable that Heidnik could

“rationally understand the nature of the proceedings.” (emphasis

     3
      The district court also pointed out that the current habeas
statute, 28 U.S.C. § 2254(b)(2), provides that an application for
a writ may be denied on the merits even in the absence of
exhaustion. Accord Granberry v. Greer, 107 S. Ct. 1671 (1987).




                                          7
added).         This   was   because,     in    Bernstein’s    view,    Heidnik’s

perception of reality was so completely flawed that he could not

interact effectively with counsel.4                  He further observed that

there was no point of contact between Heidnik and the rational

world.

       Dr. Wellman, the chief psychologist of the State Correctional

Institution at Pittsburgh, testified that Heidnik’s delusions are

a function of his paranoid schizophrenia, and that the illness and

its underlying delusional content renders him incompetent.                      Dr.

McKenzie, a psychiatrist who evaluated Heidnik at the time of the

original trial proceedings, testified that Heidnik has been a

paranoid schizophrenic since 1963, that he is unable rationally to

appreciate the nature of the proceedings, and that he interprets

everything according to his fixed delusional beliefs.5

       All three psychiatrists appearing for petitioner agreed that

the    existence       of    delusions    and    a    diagnosis    of     paranoid

schizophrenia do not preclude rational conduct and competence.

However, all three opined that such was not the case with Heidnik.

 For       example,    Dr.    Wellman    explained     that,   although    in   the

       4
      Bernstein described Heidnik’s perceptions of reality as
being that

this entire event is a far reaching conspiracy in which he
     is the victim of the fact that the [victims] killed
     themselves and are now perpetrating a fraud against
     him, such that he will be executed for a crime that he
     did not commit.
       5
      Dr. McKenzie further testified that the sicker Heidnik
becomes the more he wants to commit suicide. Dr. McKenzie viewed
Heidnik’s express desire to be executed as consistent with the
desire for suicide.




                                          8
abstract a person can be schizophrenic and competent, it is the

content      of    a    particular        delusion     that   determines   whether    a

delusion affects competency.                In Dr. Wellman’s view, the nature of

Heidnik’s delusions renders him incompetent, “because he is seeing

people as something other than what they are and is likely to

interact with them based on an agenda dictated by his delusional

belief.”     Drs. Bernstein and Mackenzie essentially agreed.

      Dr. O’Brien, the sole witness for the Commonwealth, met with

Heidnik on only one occasion -- the examination arranged by the

state trial court.            Dr. O’Brien essentially testified that Heidnik

was not a paranoid schizophrenic, that he was not delusional, that

he was not mentally ill (at least at the time of his examination),

and   that    he       was   not    incompetent.        The   central   theme   of   Dr.

O’Brien’s     testimony            was   that   what   the    petitioner   viewed    as

Heidnik’s delusions -- primarily his belief that subsequent to his

execution there would be a widespread recognition of his innocence

and a consequent outcry against capital punishment and a process

undertaken to abolish it -- was not a delusion but rather “an

attempt on his part to recast what would otherwise be a rather

tragic end to an individual into something of social value.”                         He

continued
He maintains a belief in his innocence in the murders. He
     admitted to being guilty of all of the other associated
     crimes and believed that he had reasonable and
     scientific data to support his belief that he was
     innocent.    And, as I indicated in my testimony
     yesterday, I see many criminal defendants a week and at
     least half of the post-trial defendants I see assert
     their innocence when I see them.      I am not a fact
     finder, I’m an opinion renderer, and I cannot second-
     guess what the court has determined, the guilt or
     innocence to be, but it’s not at all uncommon for an
     individual who has been found guilty to represent to me



                                                9
     that they are in fact innocent. I don’t regard that as
     delusional and I don’t regard it as delusional in Mr.
     Heidnik’s situation either.


     The district court’s opinion turns heavily on [two passages

from] Dr. O’Brien’s testimony. They are as follows:
He recurrently demonstrated an awareness of his current
          circumstances     and    based    upon    the
          representations he made to me and also the
          transcript of his testimony in the hearing
          yesterday, it is my opinion that he is
          clearly knowingly waiving his rights to
          appeal, in the sense that he knows that
          appeals are possible at this point in time
          and he is knowing that information and that
          he is facing death without the appeal, and he
          is knowingly terminating or declining to
          pursue further appeals. I don’t think there
          is any dispute that he is intelligent in the
          sense that he has a great deal of innate
          intelligence.     And in my opinion it’s
          voluntary because I have not seen anything in
          the record or heard from Mr. Heidnik anything
          that would indicate that he is under duress
          of any sort, from external forces or internal
          forces, to give up his appeals.

Only that the vast majority of schizophrenics are law-
          abiding citizens who function from day to day
          and have clear, cognitive functioning.    And
          even if Mr. Heidnik does have paranoid
          schizophrenia, and I was seeing him during a
          moment in time when his symptoms were
          relatively quiescent, it doesn’t negate in
          any way my opinion that cognitively he’s
          intact, and he’s aware of his current
          situation and what he’s facing, and is able
          to make a decision regarding waiver of his
          further appeals.


     Although the Commonwealth’s position rests heavily upon Dr.

O’Brien’s   testimony,   the   district   court   clearly   rejected   the

central core of that testimony, for it found that Heidnik suffers

from paranoid schizophrenia.     Although the district court did not

say so in terms, it is also clear from its discussion that the

district court found Heidnik to be delusional.       Indeed there is no



                                   10
evidence    in    the     record,      with    the     exception          of   Dr.       O’Brien’s

discredited testimony, that he was anything other than delusional.

The linchpin of the district court’s opinion, then, has to be its

crediting of Dr. O’Brien’s testimony that even if Heidnik were

paranoid    schizophrenic,          he   is     still      able      to    make      a   decision

regarding waiver of his further appeals.                          It must be noted that

Dr. O’Brien focused on Heidnik’s ability to recognize and process

the factual circumstances attendant to that decision, but did not

address    whether        the   ultimate        decision         was      itself         rational.

Accordingly,       the    district       court       made       no   findings        about       the

rationality of Heidnik’s choices.

                                  III.        DISCUSSION

       The appeal before us is primarily that of a putative next

friend seeking to establish that the death row inmate was unable

to proceed on his own behalf.                 Whitmore places the burden of proof

on the putative next friend to establish by clear evidence the

inability of the death row inmate to appear on his own behalf to

prosecute the action.           Brewer v. Lewis, 989 F.2d 1021, 1026 (9th

Cir.     1993).         That    prerequisite          is    not      satisfied           when    an

evidentiary hearing demonstrates that “the defendant has given a

knowing,    intelligent,         and     voluntary         waiver         of   his       right   to

proceed,    and     his     access       to    court       is    otherwise         unimpeded.”

Whitmore, 495 U.S. at 165.                Our review of the district court’s

finding that petitioner did not meet this burden is for clear

error.    See     In re: Zettlemoyer, 53 F.3d 24 (3d Cir. 1995).

       To fully understand the Whitmore standard, we must examine

two earlier Supreme Court cases.                   In Rees v. Payton, 384 U.S. 312



                                              11
(1966), the Court stated in the context of a party’s ability to

waive his right to further appeals that:
The court must determine whether [the petitioner] has
          the capacity to appreciate his position and
          make a rational choice with respect to
          continuing or abandoning further litigation
          or on the other hand whether he is suffering
          from a mental disease, disorder, or defect
          which may substantially affect his capacity
          in the premises.


(emphasis added).            In terms highly relevant here, the Whitmore

standard is further illuminated by the Court’s opinion in Dusky v.

United States, 362 U.S. 402 (1960) (per curiam), in which the

Court considered the standard for determining competency to stand

trial.      There the Court stated that the “test [for competency]

must be whether he has sufficient present ability to consult with

his lawyer with a reasonable degree of rational understanding --

and whether he has a rational as well as factual understanding of

the proceedings against him.”            Id. at 402 (emphasis added).6

      The district court’s conclusion that the petitioner had not

clearly established that Heidnik lacked the capacity to make a

knowing,     intelligent,       and   voluntary       waiver     with   respect   to

continuing or abandoning habeas corpus proceedings turns upon its

crediting    of    O’Brien’s     testimony     that   Heidnik     “is   cognitively

intact, aware of his current situation and what he is facing, and

is   able   to    make   a    decision   regarding      waiver    of    his   further
      6
      Although Whitmore was decided after Dusky and Rees, we do
not read Whitmore’s reference to knowing, intelligent, and
voluntary waiver to be divorced from the fundamental concept that
underlies any notion of competency -- that of rationality. See
Lafferty v. Cook, 949 F.2d 1546 (10th Cir. 1991). Lafferty is in
accord with our distinction between factual and rational
understanding.




                                          12
appeals.”     But, given the district court’s finding that Heidnik is

a   delusional     paranoid   schizophrenic,          that   testimony        is,   as   a

matter of law, insufficient to support a finding of competence as

understood in light of Rees and Dusky.                 While there is no dispute

as to Heidnik’s considerable intelligence and expressive powers, a

factor that obviously influenced O’Brien, and it may be that the

evidence would support a finding that Heidnik could make some or

other decision regarding waiver of further appeals, there is no

evidence, and no finding, that Heidnik could make a rational

decision in that regard.

       This is not a mere matter of semantics or of a witness or

judge leaving out a key term because of the pressure of last

minute proceedings.         Rather there is a fundamental flaw in the

record as developed as is demonstrated by O’Brien’s proffer of

what   the    Commonwealth      suggested       at    argument     was    a     rational

explanation        of    Heidnik’s     conduct         --    the     social         value

rationalization         explanation    we       described     in    setting         forth

O’Brien’s testimony at p.9 supra.                 That is because, as we have

also explained, the district court rejected that testimony when it

found that Heidnik was a delusional paranoid schizophrenic; a

finding   that     is   supported     in    the   record     and   is     not   clearly

erroneous.

       The Commonwealth and the district court do have a fall-back

position:    Dr.    O’Brien’s    alternative         testimony     that    Heidnik       is

competent even if he is delusional.                  However, O’Brien offered no

explanation as to the content of the delusion that would enable a

determination whether the delusion affected Heidnik’s competency,



                                           13
see supra p. 9, so as to explain why his conduct was rational.

The Commonwealth seeks to fend this by pointing out that O’Brien

testified that Heidnik had acted knowingly, intelligently, and

voluntarily, thus satisfying Whitmore.                     But this testimony is not

linked    to    any    explanation        of    Heidnik’s      conduct    and    does   not

address       the    critical    distinction         between    factual    and   rational

decision making.

        In the final analysis the record reflects a situation in

which     a     paranoid        schizophrenic         suffering     from    broad-based

delusional perceptions has made a decision to die immediately

rather than pursue available judicial remedies that conceivably

might spare his life.             The only explanation he has advanced for

having chosen immediate death is that after his death the public

will    become       convinced     that    he       was   an   innocent    victim   of   a

conspiracy and that the realization that he has been executed

though innocent will end capital punishment once and for all.

Petitioners’ three experts unanimously concluded that Heidnik’s

death decision is based on his delusional perception of reality--

and has no rational basis.                     Dr. O’Brien has simply failed to

explain how Heidnik’s choice has a rational basis and is not based

on his delusional perception.

        In short, the record does not support a rational explanation

as to why, even if Heidnik has rationalized to himself that he was

innocent,       he    could,     despite       his    delusions,    make    a    rational

decision to die.          A psychiatric expert might have supplied this,

but O’Brien did not.            In the absence of any effective counter, the

petitioner has met her Whitmore burden, and the order of the



                                               14
district court must be vacated.7

                               IV.   CONCLUSION

     In view of the exigent procedural posture of the matter,

created by the outstanding death warrant, we must be precise as to

the terms of our judgment.       We will order as follows:

     1.      To the extent that a certificate of appealability is

necessary, it is granted on the sole issue presented by this

appeal.

     2.   The order of the district court of April 16, 1997 is

hereby vacated and the case remanded to the district court with

directions    forthwith   to    designate    Maxine   Davidson   White   as

Heidnik’s next friend, and to appoint counsel for her.

     3.      The district court is directed forthwith to enter an
     7
      We note that in his concurring opinion in Ford v.
Wainwright, 477 U.S. 399, 426 (1986), Justice Powell stated that
once a defendant is found competent to stand trial, as Heidnik
was, the state is entitled to presume that the defendant remains
sane when the sentence is carried out. See also Demosthenes v.
Baal, 495 U.S. 731, 735 (1990)(state court finding that defendant
had given a knowing, intelligent, and voluntary waiver of his
right to review was entitled to a presumption of correctness
under then 28 U.S.C §2254(d), now § 2254(e)). We are aware that
the state court recently rejected a Ford claim that petitioner is
not competent to be executed. In that proceeding, however,
petitioner was not permitted to call a psychologist, Dr. Levitt,
on the basis that he had not made a sufficient proffer even
though counsel pointed out that Dr. Levitt had been present
during Dr. O'Brien's examination. Commonwealth v. Heidnik,
4/14/97 Tr. p. 134-141. Another of petitioner's proposed
witnesses, Dr. Bernstein, who was available by telephone, was not
called for reasons that are not entirely clear. At all events,
the findings by the state court are currently under review by the
Pennsylvania Supreme Court. Under these circumstances, the
presumption would not appear to be operative. Moreover, as our
discussion of the evidence presented in the district court
demonstrates, the petitioner has rebutted this presumption here
by clear and convincing evidence as required by 28 U.S.C. §
2254(e)(1).




                                      15
order continuing its stay of execution, pending action upon the

McFarland petition which has been filed with the district court.

While we are aware of no factors that might give rise to an

exception to the normal presumption in favor of appointing counsel

and granting a stay under McFarland, the record on this point is

not developed and the Commonwealth may wish to be heard.

                      _________________________




                                16
