        RECOMMENDED FOR FULL-TEXT PUBLICATION
             Pursuant to Sixth Circuit Rule 206
    ELECTRONIC CITATION: 2000 FED App. 0130P (6th Cir.)
                File Name: 00a0130p.06


UNITED STATES COURT OF APPEALS
               FOR THE SIXTH CIRCUIT
                 _________________


                                 ;
                                  
 ROBERT GLEN COE,
                                  
        Petitioner-Appellant,
                                  
                                  
                                      No. 00-5419
            v.
                                  
                                   >
 RICKY BELL, Warden               
         Respondent-Appellee. 
                                 1
      Appeal from the United States District Court
    for the Middle District of Tennessee at Nashville.
    No. 00-00239—Aleta A. Trauger, District Judge.
                Submitted: April 3, 2000
            Decided and Filed: April 11, 2000
Before: BOGGS, NORRIS, and MOORE, Circuit Judges.
                  _________________
                       COUNSEL
ON BRIEF: Henry B. Martin, Paul R. Bottei, FEDERAL
PUBLIC DEFENDER’S OFFICE, Nashville, Tennessee, for
Appellant. Gordon W. Smith, Michael E. Moore, Glenn R.
Pruden, OFFICE OF THE ATTORNEY GENERAL,
CRIMINAL JUSTICE DIVISION, Nashville, Tennessee, for
Appellee.



                            1
2    Coe v. Bell                                No. 00-5419

                   _________________
                       OPINION
                   _________________
  KAREN NELSON MOORE, Circuit Judge. Robert Glen
Coe appeals the denial of habeas relief regarding the
Tennessee state courts’ determination that he is competent to
be executed pursuant to Ford v. Wainwright, 477 U.S. 399
(1986). Because we conclude that the Tennessee state courts’
proceedings assessing Coe’s Ford claims satisfy the
requirements of due process and do not involve an
unreasonable application of Supreme Court precedent, we
AFFIRM the district court’s denial of Coe’s application for
a writ of habeas corpus.
             I. FACTS AND PROCEDURE
   In 1981, Robert Glen Coe received the death sentence after
a Tennessee jury convicted him of first-degree murder. Once
Coe had exhausted all of his state and federal appeals of his
conviction and sentence, the Tennessee Attorney General
filed a motion before the Tennessee Supreme Court
requesting an execution date. On December 15, 1999, the
Tennessee Supreme Court set Coe’s execution date for March
23, 2000, and ordered a remand of the case to the Tennessee
trial court that had presided over Coe’s conviction for a
determination of his competency to be executed under Ford.
Coe v. State, 11 S.W.3d 118, 119-20 (Tenn. 1999). The trial
court determined that Coe was entitled to a hearing on this
issue because he had satisfied a threshold showing that there
existed a genuine disputed issue regarding his competency to
be executed. The hearing was held from January 24 to
January 28, 2000. The trial court then issued a finding on
February 2, 2000 that Coe is competent to be executed. The
Tennessee Supreme Court affirmed this finding on March 6,
2000. Coe v. State, No. W1999-01313-SC-DPE-PD, 2000
WL 246425 (Tenn. Mar. 6, 2000), cert. denied, -- S. Ct. --,
2000 WL 295230 (Mar. 22, 2000).
No. 00-5419                                   Coe v. Bell      3

   On March 16, 2000, Coe filed in federal district court an
application for a writ of habeas corpus challenging the
Tennessee courts’ determination that he is competent for
execution under Ford. In a thorough opinion examining
Coe’s several claims issued on March 29, 2000, the district
court refused to grant Coe’s application for habeas relief. Coe
filed a notice of appeal and sought a certificate of
appealability from the district court, which the district court
granted. The Tennessee Supreme Court on March 30, 2000
set Coe’s execution for April 5, 2000.
   After we requested and received briefs from the parties on
April 3, 2000, we granted a stay of execution to evaluate fully
the merits and to prevent Coe’s scheduled April 5, 2000
execution from mooting his appeal. We directed the district
court to make its record available for our review and asked
the parties to designate particular parts of the record pertinent
to this appeal. Because of the ample briefing and record and
because of the inherent need for expedited review and
resolution of a Ford claim, further briefing and an appellate
oral argument are not necessary. See 6TH CIR. R. 22(c)(7).
                       II. ANALYSIS
A. Adequacy of State Procedures
  1. Ford v. Wainwright
   This circuit has never been presented with the opportunity
to examine the adequacy of a state’s procedures to determine
whether a death-row prisoner is competent to be executed
pursuant to Ford v. Wainwright, 477 U.S. 399 (1986). In
Ford, the Supreme Court held that the Eighth Amendment
prohibits a state from executing a prisoner who is insane. See
477 U.S. at 409-10. A majority of the Justices did not reach
the issues of what constitutes insanity in this context or what
state procedures would adequately address a prisoner’s Ford
claim. Therefore, this court must look to the position taken
by Justice Powell, who concurred in the judgment on the most
narrow grounds, for the Court’s holding on these issues. See
Marks v. United States, 430 U.S. 188, 193 (1977) (“When a
4    Coe v. Bell                                  No. 00-5419      No. 00-5419                                  Coe v. Bell    21

fragmented Court decides a case and no single rationale            and sentenced for a capital offense, however, we see no
explaining the result enjoys the assent of five Justices, ‘the     reason why a prisoner’s competency to be executed should be
holding of the Court may be viewed as that position taken by       treated more strictly than a criminal defendant’s competency
those Members who concurred in the judgments on the                to stand trial for the purpose of due process. Therefore, the
narrowest grounds . . . .’” (quoting Gregg v. Georgia, 428         Tennessee courts’ placement of the burden of proof on Coe to
U.S. 153, 169 n.15 (1976)).                                        establish his lack of competency to be executed comports
                                                                   with the procedural protections of the Due Process Clause and
   First, Justice Powell concluded that prisoners will be          is not an unreasonable application of Supreme Court
considered insane for the purposes of competency to be             precedent.
executed when they “are unaware of the punishment they are
about to suffer and why they are to suffer it.” Ford, 477 U.S.       4. Other Procedural Claims
at 422 (Powell, J., concurring). In Ford, a psychiatrist’s
findings showed that the death-row prisoner believed that he         Finally, Coe raises a number of other challenges to the
would not be executed but rather understood the death penalty      procedures used by the Tennessee courts in deciding his
to have been invalidated. This led Justice Powell to conclude      competency. Given Justice Powell’s opinion in Ford, we
that “[i]f this assessment is correct, petitioner cannot connect   believe that “[a]s long as basic fairness is observed” in a
his execution to the crime for which he was convicted” as          prisoner’s competency-to-be-executed determination, a state
required under the competency standard. Id. at 422-23              has “substantial leeway to determine what process best
(Powell, J., concurring). It appears that the Supreme Court        balances the various interests at stake.” Ford, 477 U.S. at 427
has accepted this competency standard as the Ford holding.         (Powell, J., concurring). Accordingly, we must give the
See Penry v. Lynaugh, 492 U.S. 302, 333 (1989) (noting that        Tennessee courts substantial discretion in fashioning the
“under Ford v. Wainwright, someone who is ‘unaware of the          procedures employed in Coe’s competency proceedings.
punishment they are about to suffer and why they are to suffer     Where Coe was given an extensive hearing over several days
it’ cannot be executed” (citation omitted)).                       and was given the opportunity to present evidence and to
                                                                   cross-examine the state’s mental health experts, it is not our
  Second, Justice Powell determined that in evaluating a           role to second guess all of the procedural decisions made by
prisoner’s competency-to-be-executed claim, the state must         the Tennessee courts. Moreover, we note that the district
comply with the Due Process Clause and that, under these           court ably addressed Coe’s claims in a thorough 42-page
particular circumstances, the clause requires the state to         opinion denying habeas relief.           It would serve no
provide the prisoner with a “fair hearing.” Ford, 477 U.S. at      jurisprudential purpose to discuss these claims any further.
424 (Powell, J., concurring). In Ford, the Governor of
Florida was responsible for deciding a prisoner’s competency                           III. CONCLUSION
to be executed and for appointing a panel of three
psychiatrists to evaluate the prisoner. The prisoner was not         Based on the foregoing, we AFFIRM the district court’s
given the opportunity to present any material for the Governor     denial of Coe’s application for a writ of habeas corpus. We
to consider in making a competency determination. Justice          hereby lift the stay of execution.
Powell noted that the opportunity to be heard is a
“fundamental requisite” of due process. Id. (Powell, J.,
concurring). The prisoner was not given this fundamental
opportunity to be heard, and the decision on his competency
20       Coe v. Bell                                        No. 00-5419         No. 00-5419                                             Coe v. Bell         5

   Although the Supreme Court has never established who                         was made solely on the basis of the findings from the state-
bears the  burden of proof in a competency-to-be-executed                       appointed experts. Justice Powell stated that “[s]uch a
claim,5 it has held that a California statute requiring a                       procedure invites arbitrariness and error by preventing the
criminal defendant to prove by a preponderance of the                           affected parties from offering contrary medical evidence or
evidence that he is not competent to stand trial does not                       even from explaining the inadequacies of the State’s
violate due process. See Medina v. California, 505 U.S. 437,                    examinations” and “does not, therefore, comport with due
449 (1992). The Court specifically rejected the use of the                      process.” Id. (Powell, J., concurring).
Mathews v. Eldridge balancing test for evaluating the
adequacy of state procedures in this context because it “does                     Justice Powell cautioned, however, that he “would not
not provide the appropriate framework for assessing the                         require the kind of full-scale ‘sanity trial’” he thought implied
validity of state procedural rules which, like the one at bar,                  in Justice Marshall’s     opinion. Id. at 425 (Powell, J.,
are part of the criminal process.” Id. at 443. Rather, the                      concurring).1 Although a prisoner is entitled to due process
Court instructed that a state’s procedure regarding the burden                  on a Ford claim, “[d]ue process is a flexible concept” and its
of proof in the criminal context will not be prohibited unless                  procedural protections may vary depending on the context of
“‘it offends some principle of justice so rooted in the                         a particular situation. Id. (Powell, J., concurring). A
traditions and conscience of our people as to be ranked as                      competency-to-be-executed claim only raises the issue of
fundamental.’” Id. at 445 (quoting Patterson v. New York,                       when a prisoner will be competent for execution and does not
432 U.S. 197, 202 (1977) (quotations omitted)). After                           challenge the validity of the prisoner’s conviction or sentence.
examining the historical and modern treatment of the burden                     Although an important question, “it is not comparable to the
of proof in competency proceedings and the requirements of                      antecedent question whether [the prisoner] should be
“fundamental fairness,” the Court concluded that placing this
burden on a criminal defendant satisfies due process. See id.
at 446-49.                                                                          1
                                                                                       In an opinion joined by three other Justices, Justice Marshall
  In accordance with the Supreme Court’s holding in Medina,                     criticized the Florida procedure for failing to allow a prisoner to present
we conclude that the placement of the burden of proof on Coe                    relevant material to the factfinder or to challenge the opinions of the state-
                                                                                appointed experts and for placing the decision solely within the executive
to prove by a preponderance of the evidence that he is                          branch. Id. at 413-16 (Marshall, J., plurality opinion). Although Justice
incompetent to be executed does not violate due process. We                     Marshall asserted that states should be left with the task of formulating
recognize that determining the competency of a criminal                         the proper procedures, he also stated that it is “important that the
defendant facing trial involves different interests than                        adversary presentation of relevant information be as unrestricted as
determining the competency of a prisoner facing execution.                      possible” and that “the manner of selecting and using the experts
In light of the fact that a prisoner on death row has previously                responsible for producing [the evidence] be conducive to the formation
                                                                                of neutral, sound, and professional judgments as to the prisoner’s ability
been found competent to stand trial and has been convicted                      to comprehend the nature of the penalty.” Id. at 417 (Marshall, J.,
                                                                                plurality opinion). Justice Marshall explicitly stated that “We do not here
                                                                                suggest that only a full trial on the issue of sanity will suffice to protect
     5                                                                          the federal interests,” and he recognized that “legitimate pragmatic
       We note that in his concurring opinion, Justice Powell states that “it   considerations may also supply the boundaries of the procedural
is the defendant and not the State who seeks to overcome the presumption        safeguards that feasibly can be provided.” Id. at 416-17 (Marshall, J.,
that he is sane.” Ford, 477 U.S. at 426 n.6 (Powell, J., concurring). This      plurality opinion). Thus, five justices agreed that a fair hearing but not
statement, however, was made in the context of his conclusion that the          necessarily a full trial was required if a prisoner made a substantial
state “may require a substantial threshold showing of insanity merely to        threshold showing of incompetency to be executed. See id. at 417
trigger the hearing process.” Id. at 426 (Powell, J., concurring).              (Marshall, J., plurality opinion), 426 (Powell, J., concurring).
6     Coe v. Bell                                 No. 00-5419      No. 00-5419                                           Coe v. Bell      19

executed at all.” Id. (Powell, J., concurring). Therefore,         at 44. We conclude, however, that the Tennessee trial court
Justice Powell asserted that the heightened procedural             properly followed Justice Powell’s competency standard as
protections usually required in capital cases are not applicable   adopted and applied in Van Tran and determined that Coe is
in this context. See id. (Powell, J., concurring). In addition,    aware of his imminent execution and the reason for it,
because the prisoner necessarily was found competent to            showing that Coe has made the4 requisite connection between
stand trial in order to be convicted, Justice Powell concluded     his crime and his punishment.
that “[t]he State therefore may properly presume that
petitioner remains sane at the time sentence is to be carried        3. Burden of Proof
out, and may require a substantial threshold showing of
insanity merely to trigger the hearing process.” Id. at 426           Coe also argues that the Tennessee courts erred in
(Powell, J., concurring) (footnote omitted). Finally, Justice      following Van Tran’s placement of the burden of proof on
Powell noted that the competency determination requires a          Coe to prove his incompetency to be executed by a
“basically subjective judgment” based on “expert analysis in       preponderance of the evidence rather than placing this burden
a discipline fraught with ‘subtleties and nuances.’” Id.           on the state of Tennessee. To support his argument, Coe
(Powell, J., concurring) (quoting Addington v. Texas, 441          asserts that “the burden of proof must reflect the allocation of
U.S. 418, 430 (1979)). Therefore, “ordinary adversarial            error under the circumstances” and cites to Addington v.
procedures – complete with live testimony, cross-                  Texas, 441 U.S. 418 (1979), and Mathews v. Eldridge, 424
examination, and oral argument by counsel – are not                U.S. 319 (1976) for support. Memorandum of Law in
necessarily the best means of arriving at sound, consistent        Support of Stay at 82. He also states that because his “mental
judgments as to a defendant’s sanity.” Id. (Powell, J.,            state fluctuates, it is not proper to require him to bear the
concurring).                                                       burden of proof.” Id. The Addington decision, however,
                                                                   dealt with the proper standard for a civil commitment
  Accordingly, Justice Powell concluded that a state need not      proceeding not for a competency determination. See 441 U.S.
carry out a formal trial to determine a prisoner’s competency.     at 425.
At a minimum, he stated, “[t]he State should provide an
impartial officer or board that can receive evidence and
argument from the prisoner’s counsel, including expert                 4
                                                                         In support of his argument, Coe cites to Justice Marshall’s statement
psychiatric evidence that may differ from the State’s own          in Ford that it is essential “that the manner of selecting and using the
psychiatric examination.” Id. at 427 (Powell, J., concurring).     experts responsible for producing [mental health evidence] be conducive
However, “[b]eyond these basic requirements, the States            to the formation of neutral, sound, and professional judgments as to the
should have substantial leeway to determine what process best      prisoner’s ability to comprehend the nature of the penalty.” Ford, 477
balances the various interests at stake” as long as the states     U.S. at 417 (Marshall, J., plurality opinion) (emphasis added). At no
                                                                   other point in his opinion does Justice Marshall set forth what he
observe the requirements of “basic fairness” under the Due         considers to be the proper standard for competency. We cannot conclude
Process Clause. Id. (Powell, J., concurring).                      that he meant to do so with this one statement. Moreover, even if we were
                                                                   to agree that Coe must comprehend the nature of the death penalty, we
    2. Tennessee’s Ford Procedures                                 believe that the Tennessee Supreme Court correctly concluded that Coe
                                                                   does indeed understand and comprehend the death penalty. The court
  Invoking its inherent supervisory authority and with the         pointed out, for example, that Coe has chosen a method of execution and
                                                                   has refused a sedative because he “think[s] there might be a God, and I’ve
Ford decision as guidance, the Tennessee Supreme Court             got enough to deal with him, without being drunk on Valium.” Coe v.
recently adopted and set forth the procedures that a death-row     State, No. W1999-01313-SC-DPE-PD, 2000 WL 246425, at * 25 (Tenn.
                                                                   Mar. 6, 2000), cert. denied, -- S. Ct. --, 2000 WL 295230 (Mar. 22, 2000).
18    Coe v. Bell                                  No. 00-5419      No. 00-5419                                  Coe v. Bell     7

pleading guilty or for waiving the right to trial is the same as    prisoner must follow to challenge his competency to be
the competency standard for standing trial. In a concurring         executed. See Van Tran v. State, 6 S.W.3d 257, 265 (Tenn.
opinion, Justice Kennedy asserted, “[t]he Due Process Clause        1999). First, the court adopted Justice Powell’s standard for
does not mandate different standards of competency at               competency and held that “under Tennessee law a prisoner is
various stages of or for different decisions made during the        not competent to be executed if the prisoner lacks the mental
criminal proceedings.” Id. at 404 (Kennedy, J., concurring).        capacity to understand the fact of the impending execution
It appears from his opinion, however, that Justice Kennedy          and the reason for it.” Id. at 266.
was concerned that the same standard be applied from the
time of a defendant’s arraignment through his sentencing. See          Next the court established the procedures to be used in
id. at 404-05 (Kennedy, J., concurring). Because competency         Tennessee. After the State Attorney General moves the
to be executed involves different interests than competency to      Tennessee Supreme Court to set an execution date, the
stand trial in the first instance, we do not believe that a state   prisoner must raise the issue of competency in his response to
rigidly must apply the competency-to-stand-trial standard in        the motion within the ten-day period for response. If such a
this context where it does not make sense in modern practice.       motion is made, and the Tennessee Supreme Court sets an
                                                                    execution date, the prisoner’s competency claim will be
   Moreover, the Supreme Court seems to have accepted               remanded to the trial court where the prisoner was originally
Justice Powell’s competency standard as the Ford holding.           tried and sentenced. Within three days of the entry of the
See Penry v. Lynaugh, 492 U.S. 302, 333 (1989) (noting that         remand order, the prisoner must file a petition with the trial
“under Ford v. Wainwright, someone who is ‘unaware of the           court setting forth the factual allegations of incompetence
punishment they are about to suffer and why they are to suffer      along with supporting affidavits, records, or other materials
it’ cannot be executed” (citation omitted)). Therefore, we          and a list of any mental health professionals who would be
conclude that the Van Tran opinion’s adoption of Justice            available and willing to testify on the prisoner’s behalf. See
Powell’s standard, that “only those who are unaware of the          id. at 267-68. The district attorney general must file a
punishment they are about to suffer and the reason they are to      response within three days. Within four days the trial court
suffer it are entitled to a reprieve,” satisfies due process and    then must decide whether the prisoner has made the required
is not an unreasonable interpretation of Supreme Court              threshold showing of incompetence in order to receive a
precedent. Van Tran, 6 S.W.3d at 266 (adopting the                  hearing as suggested by the opinions of Justice Powell and
“cognitive” test).                                                  Justice Marshall. See id. at 268 (citing Ford, 477 U.S. at 417
                                                                    (Marshall, J., plurality opinion); 477 U.S. at 426 (Powell, J.,
  We note that Coe also challenges the Tennessee trial court’s      concurring)). Noting that the Supreme Court did not indicate
application of the Van Tran standard in his case. In its ruling     what would satisfy the threshold showing, the Tennessee
on Coe’s competency, the trial court stated, “Petitioner            Supreme Court looked to Ake v. Oklahoma, 470 U.S. 68, 82-
realizes he is facing execution, and that he knows it is because    83 (1985), cited favorably in Justice Powell’s concurring
he has been convicted of murdering a little girl.” Coe v. State,    opinion, in which the Court concluded that a defendant must
No. B-73812, slip op. at 27 (Tenn. Crim. Ct. Feb. 2, 2000)          make a substantial showing of his insanity before due process
(emphasis added).        Coe argues that the trial court            requires the state to appoint a defense psychiatrist at its
impermissibly relied on Coe’s knowledge that he is to be            expense. It also examined its own cases, applying Ake, which
executed for his murder conviction rather than Coe’s                require that before a mental health expert will be appointed to
comprehension of the sentence and its implications. See             evaluate a defendant’s competency to stand trial, the
Petition for Writ of Habeas Corpus / Complaint for Relief           defendant must point to the facts and circumstances of his
8     Coe v. Bell                                   No. 00-5419      No. 00-5419                                   Coe v. Bell     17

particular case which “warrant a belief that the defendant is        sense in modern practice. First, he noted that criminal
incompetent to stand trial.” Van Tran, 6 S.W.3d at 268.              defendants are afforded broader constitutional guarantees than
Accordingly, the Tennessee Supreme Court held that the               at common law, including the right to effective assistance of
burden is on the prisoner to present “affidavits, depositions,       counsel at trial and on appeal and extensive judicial review
medical reports, or other credible evidence sufficient to            through direct appeal and state and federal collateral review.
demonstrate that there exists a genuine question regarding           “It is thus unlikely indeed that a defendant today could go to
petitioner’s present competency.” Id. at 269. The court also         his death with knowledge of undiscovered trial error that
emphasized that pursuant to the nature of a Ford claim, the          might set him free.” Id. at 420 (Powell, J., concurring). In
prisoner must submit some evidence from recent mental                addition, Justice Powell observed that “in cases tried at
evaluations or observations relating to his present                  common law execution often followed fairly quickly after
competency. See id.                                                  trial, so that incompetence at the time of execution was linked
                                                                     as a practical matter with incompetence at the trial itself.” Id.
   If the prisoner satisfies this threshold showing for a hearing,   at 420-21 (Powell, J., concurring). Justice Powell then
the trial court must appoint “at least one, but no more than         concluded that “[t]he more general concern of the common
two, mental health professionals from each list submitted by         law – that executions of the insane are simply cruel – retains
the respective parties.” Id. The experts then must submit            its vitality.” Id. at 421 (Powell, J., concurring). Furthermore,
written reports to the trial court. Within ten days after the        “one of the death penalty’s critical justifications, its
filing of the mental health professionals’ reports, the trial        retributive force, depends on the defendant’s awareness of the
court is required to hold a hearing to determine competency.         penalty’s existence and purpose.” Id. (Powell, J., concurring).
No jury is impaneled. At the hearing, the prisoner has the           In order to achieve this justification, Powell instructed that
burden of proving by a preponderance of the evidence his             prisoners should be considered insane for the purpose of
incompetency to be executed. See id. at 270-71. Adopting             execution if they “are unaware of the punishment they are
the more stringent requirements in Justice Marshall’s opinion        about to suffer and why they are to suffer it.” Id. at 422
in Ford, the Tennessee Supreme Court “emphasize[d] that the          (Powell, J., concurring).
strictures of due process must be observed at the hearing.” Id.
at 271. A “prisoner must be given notice that an evidentiary            We agree that a prisoner’s ability to assist in his defense is
hearing will be held” and “must be afforded an opportunity to        not a necessary element to a determination of competency to
be heard and to present evidence relevant to the issue of            be executed. Moreover, Coe has not shown how a prisoner
competency at an adversarial proceeding at which the prisoner        could assist his counsel, a mental health professional, or the
is entitled to cross-examine the State’s witnesses.” Id. In          trial judge in deciding on his competency when the prisoner’s
order to satisfy Justice Marshall’s determination that a             very competency is the matter at issue.
prisoner should not be barred from presenting relevant
material for the factfinder’s consideration, the court stated           In arguing that the common law standard governing the
that “the rules of evidence should not be applied to limit the       modern standard for competency to stand trial, which includes
admissibility of reliable evidence that is relevant to the issue     the “assistance” inquiry, also applies in a competency-to-be-
of the prisoner’s competency.” Id.                                   executed proceeding, Coe asserts that the Supreme Court has
                                                                     held that the standard for competency does not change
  After the hearing, the trial court must file an order with         depending on the stage of the criminal proceedings. He cites
detailed findings of fact and conclusions of law granting or         to Godinez v. Moran, 509 U.S. 389, 398 (1993), in which the
denying the prisoner’s Ford petition. The Tennessee                  Supreme Court concluded that the competency standard for
16   Coe v. Bell                                 No. 00-5419      No. 00-5419                                  Coe v. Bell     9

  since the previous determination of competency was              Supreme Court concluded that a prisoner’s competency to be
  made and the showing is sufficient to raise a substantial       executed is a question of fact and therefore the trial court
  question about the prisoner’s competency to be executed.        must in its findings of fact “set out any undisputed facts,
                                                                  explain its assessment of the credibility of the various expert
Van Tran, 6 S.W.3d at 272. This state procedure adequately        witnesses and their conflicting opinions, and include findings
addresses the situation in which a prisoner’s competency          as to the prisoner’s behavior during the hearing.” Id. The
changes after the Tennessee state courts make their               Tennessee Supreme Court automatically reviews the trial
competency determination by requiring the prisoner to             court’s competency determination, which as an issue of fact
establish a substantial change in his competency. In light of     is presumed correct “unless the evidence in the record
the fact that two state courts have already made a                preponderates against the finding.” Id. at 272. If a prisoner
determination of Coe’s competency to be executed, we              is found competent to be executed, he will not be allowed to
conclude that Tennessee’s requirement that he make a              bring a subsequent Ford claim unless he provides to the
threshold showing of a “substantial change” comports with         Tennessee Supreme Court “an affidavit from a mental health
notions of basic fairness.                                        professional showing that there has been a substantial change
                                                                  in the prisoner’s mental health since the previous
  In sum, because the procedures followed by the Tennessee        determination of competency was made and the showing is
courts in this case satisfy the requirements of due process, we   sufficient to raise a substantial question about the prisoner’s
cannot conclude that they represent an unreasonable               competency to be executed.” Id.
application of the Ford opinion.
                                                                     In setting forth the procedures for handling a Ford claim,
  2. Standard of Competency                                       the Tennessee Supreme Court properly followed the narrow
                                                                  concurring opinion of Justice Powell in establishing the
   Coe also asserts that the Tennessee courts applied an          standard for competency to be executed and by placing the
improper standard of competency in deciding his competency        burden of proof on the prisoner to make a threshold showing
to be executed. As discussed above in Part II.A.2 supra, in       of incompetence for a hearing. The court then chose to
Van Tran the Tennessee Supreme Court adopted the                  implement the views in the opinion of Justice Marshall,
competency standard advocated by Justice Powell’s                 which argued for more procedural protections than Justice
concurring opinion in Ford. In determining the proper             Powell’s opinion, to mandate an adversarial hearing in which
standard, Justice Powell looked for guidance in the common        the prisoner is able to present all relevant material regarding
law tradition and in the modern practice of prohibiting the       his competency and to cross-examine the state’s expert
execution of the insane. He noted that there were differing       witnesses. Therefore, the procedures identified in Van Tran
justifications at common law for not executing insane             are generally adequate to protect a prisoner’s right to a fair
criminals. One justification, also applied in the context of      hearing of his Ford competency claim as required by due
competency to stand trial, was that a prisoner must be            process. To the extent that Coe challenges specific aspects of
competent to be executed so that he may assist in his defense.    the Van Tran procedures, we discuss them below in Part II.C.
See Ford, 477 U.S. at 419 (Powell, J., concurring) (“‘if after
judgment he become of non sane memory, his execution shall        B. Habeas Review
be spared; for were he of sound memory he might allege
somewhat in stay of judgment or execution’” (quoting 1 M.           Coe filed his habeas application challenging the Tennessee
HALE, PLEAS OF THE CROWN 35 (1736)). Justice Powell,              courts’ determination of his competency under Ford on
however, concluded that this justification does not make
10   Coe v. Bell                                  No. 00-5419      No. 00-5419                                   Coe v. Bell     15

March 16, 2000, and therefore the amendments to 28 U.S.C.          the procedural protections identified in the opinions of Justice
§ 2254 in the Antiterrorism and Effective Death Penalty Act        Marshall and Justice Powell in a meaningful way in the
of 1996 (“AEDPA”) govern this court’s standard of review.          moments before execution; a state could not make a sound
See Harpster v. Ohio, 128 F.3d 322, 326 (6th Cir. 1997), cert.     decision in accordance with due process regarding a
denied, 522 U.S. 1112 (1998). As amended, § 2254(d) states:        prisoner’s competency to be executed at this time.
                                                                   Nevertheless, a state must make its determination when
  An application for a writ of habeas corpus on behalf of a        execution is imminent. See Stewart v. Martinez-Villareal,
  person in custody pursuant to the judgment of a State            523 U.S. 637, 644-45 (1998). Whether the competency
  court shall not be granted with respect to any claim that        determination is made in the week or the month before the
  was adjudicated on the merits in State court proceedings         prisoner’s scheduled execution, the state is entitled to exercise
  unless the adjudication of the claim –                           discretion in creating its own procedures “[a]s long as basic
                                                                   fairness is observed.” Ford, 477 U.S. at 427 (Powell, J.,
  (1) resulted in a decision that was contrary to, or              concurring).
  involved an unreasonable application of, clearly
  established Federal law, as determined by the Supreme              In the present case, on December 15, 1999, the Tennessee
  Court of the United States; or                                   Supreme Court remanded the issue of Coe’s competency to
                                                                   the Tennessee trial court after setting Coe’s execution for
  (2) resulted in a decision that was based on an                  March 23, 2000. The trial court held an evidentiary hearing
  unreasonable determination of the facts in light of the          on Coe’s competency in late January 2000 and issued its
  evidence presented in the State court proceeding.                decision on February 2, 2000. The Tennessee Supreme Court
                                                                   affirmed the trial court’s decision on March 6, 2000. We
28 U.S.C. § 2254(d). In addition, “a determination of a            conclude that the Tennessee courts’ determination was made
factual issue made by a State court shall be presumed to be        while Coe’s execution, less than two months away, was
correct” and “[t]he applicant shall have the burden of             imminent. The Tennessee courts’ use of the phrase “present
rebutting the presumption of correctness by clear and              competency” did not constitute a misunderstanding of the
convincing evidence.” 28 U.S.C. § 2254(e)(1).                      proper issue under Ford of whether Coe is competent to be
                                                                   executed at his imminently scheduled execution date.
  Coe contends that AEDPA does not apply to his claims,
because applying AEDPA would impose impermissible                     We acknowledge Coe’s argument that, due to the special
retroactive effects and thus violate this court’s decision in In   nature of his claimed DID affliction, he will degenerate as the
re Hanserd, 123 F.3d 922 (6th Cir. 1997). More specifically,       execution looms and his condition will significantly worsen.
in response to the district court’s conclusion that Hanserd        The Tennessee Supreme Court expressly set forth a procedure
only applies to AEDPA’s bar on second and successive               in Van Tran to deal with this type of situation. The court
applications, he asserts:                                          stated,
  Indeed, Hanserd makes clear that any impermissible                 If a prisoner is found to be competent, subsequent Ford
  retroactive effect of the AEDPA, if not specifically               claims will be disallowed unless the prisoner, by way of
  authorized by Congress, cannot apply to bar relief. It             motion for stay, provides this Court with an affidavit
  does not seem plausible to conclude that Hanserd allows            from a mental health professional showing that there has
  the application of pre-AEDPA to allow consideration of             been a substantial change in the prisoner’s mental health
  a claim, only to have the claim denied under the new law.
14    Coe v. Bell                                   No. 00-5419      No. 00-5419                                    Coe v. Bell     11

or so arbitrary, as to indicate that it is outside the universe of     The whole point of retroactivity analysis is that Robert
plausible, credible outcomes.” Id. at 362 (quotations                  Coe has been unfairly trapped by a change in the law. If
omitted).                                                              he knew that the AEDPA would cut off his right to relief
                                                                       on a Ford claim, he certainly would have raised the claim
C. Coe’s Habeas Application                                            in his first petition, which clearly would have been
                                                                       governed by the pre-AEDPA law. Lindh v. Murphy, 521
  1. Entitlement to Relief Under Ford                                  U.S. 320 (1997). It is for this reason that the AEDPA
                                                                       does not apply, because the retroactive effect which has
  Coe argues that the Tennessee courts erred in deciding his           occurred is the new effect of Robert Coe’s filing of
competency to be executed because they evaluated his present           claims in his first petition – not only the cutting off of his
competency rather than determining his future competency at            right to file the claim, but the prospect of being denied
the moment of execution. The thrust of Coe’s argument is               relief under the new standards of the AEDPA.
that, he claims, he suffers from Dissociative Identity Disorder
(“DID”), which causes him to dissociate under stress, and that       Petitioner’s Memorandum in Support of Motion for Stay at
he will thus dissociate as his execution grows near and will         70-71.
not have the requisite competency at the time of his
execution.                                                              In Hanserd, we concluded that where AEDPA’s
                                                                     gatekeeping provision prohibiting second or successive
  In Ford, the Supreme Court held that the Eighth                    habeas applications prevents a prisoner from bringing a Bailey
Amendment prohibits the execution of a prisoner who is               claim under § 2255 but where the claim could have been
insane. See 477 U.S. at 409-10. If taken to its logical              raised in a subsequent application under the pre-AEDPA law,
extreme, as suggested by Coe, a state would be obligated to          AEDPA’s gatekeeping provision has an impermissible
determine whether a prisoner is competent to be executed at          retroactive effect and is not applicable to the Bailey claim.
the exact moment of execution in order to comply with Ford.          See Hanserd, 123 F.3d at 929-34. This court subsequently
Justice O’Connor acknowledged that this problem is due to            limited its holding in Hanserd to the particular claim in that
the nature of a competency-to-be-executed claim in her               case and concluded that “while Hanserd is not strictly limited
opinion in Ford:                                                     to claims arising under Bailey, apart from that class of claims,
                                                                     there will be few other cases ‘in which the difference matters’
  By definition, [a Ford claim] can never be conclusively            and on which the gatekeeping requirements of AEDPA will
  and finally determined: Regardless of the number of prior          thus have an impermissibly retroactive effect.” In re
  adjudications of the issue, until the very moment of               Sonshine, 132 F.3d 1133, 1135 (6th Cir. 1997) (quoting
  execution the prisoner can claim that he has become                Hanserd, 123 F.3d at 934 n.21). It is clear that the
  insane sometime after the previous determination to the            circumstances presented in this appeal differ significantly
  contrary.                                                          from those presented in Hanserd. Coe raises a Ford
                                                                     competency claim rather than a Bailey claim, and this court
Id. at 429 (O’Connor, J., concurring in the result in part and       previously has determined that Coe’s application is not barred
dissenting in part).                                                 by AEDPA’s prohibition on second or successive habeas
  We do not believe that the Supreme Court in Ford meant to          applications because Coe’s Ford competency claim was not
require a state to determine a prisoner’s competency at the          ripe until his execution was imminent and thus was not ripe
exact time of his execution. It would be impossible to follow        when his initial habeas application was filed. Thus AEDPA’s
12       Coe v. Bell                                       No. 00-5419        No. 00-5419                                           Coe v. Bell      13

gatekeeping provision does not have an impermissible                          entitled to a presumption of correctness that may be rebutted
retroactive effect on his Ford habeas claim. In light of our                  only by clear and convincing evidence. In addition, for
Sonshine decision, we cannot accept Coe’s interpretation of                   questions of fact a federal court may grant habeas relief “only
the Hanserd decision as holding that AEDPA has an                             if the state court’s decision ‘was based on an unreasonable
impermissible retroactive effect whenever AEDPA’s standard                    determination of the facts in light of the evidence presented in
of review, applied to an application filed after AEDPA’s                      the State court proceeding.’” Harpster, 128 F.3d at 326
effective date, results in a decision that would have been                    (quoting § 2254(d)(2)). If competency is a mixed question of
different under the pre-AEDPA standard of review.                             fact and law, however, then § 2254(d)(1) will apply and we
Nevertheless, we note that even if we were to apply the pre-                  must determine whether the state courts’ decision “was
AEDPA standard of review to Coe’s habeas    application, our                  contrary to, or involved an unreasonable application of,
determination would not be different.2                                        clearly established Federal law, as determined by the Supreme
                                                                              Court of the United States.” 28 U.S.C. § 2254(d)(1); see
   In reviewing Coe’s challenge to the Tennessee courts’                      Harpster, 128 F.3d at 326-27.
determination of his competency to be executed, we are faced
with the question of whether competency is a question of fact                    For purposes of our review, we will apply the standard of
or a mixed question of fact and law. In Van Tran, the                         review that is most favorable to Coe, without deciding if that
Tennessee Supreme Court concluded that the determination                      standard of review is mandatory. Because the state courts’
of competency to be executed is a question of fact. See 6                     decision is entitled to a presumption of correctness under the
S.W.3d at 271. Although this court has never examined the                     standard of review for questions of fact, we will apply the3
nature of this type of competency determination, we have                      more lenient standard for mixed questions of fact and law.
treated a defendant’s competency to plead guilty and to be                    Where a mixed question is fact-intensive and the Supreme
recommitted as a mixed question of fact and law. See                          Court has not established a clear “rule” requiring a certain
Cremeans v. Chapleau, 62 F.3d 167, 169 (6th Cir. 1995),                       result, this court has concluded that the “unreasonable
cert. denied, 516 U.S. 1096 (1996); Levine v. Torvik, 986                     application” prong of § 2254(d)(1) applies. See Nevers v.
F.2d 1506, 1514 (6th Cir.), cert. denied, 509 U.S. 907 (1993).                Killinger, 169 F.3d 352, 360 (6th Cir.), cert. denied, 119 S.
If competency to be executed is a question of fact, under                     Ct. 2340 (1999). Because competency to be executed is a
§ 2254(e)(1) the state courts’ competency determination is                    fact-intensive inquiry and because the Supreme Court has not
                                                                              established a clear rule on what particular circumstances will
                                                                              constitute incompetence to be executed, we will apply the
     2                                                                        “unreasonable application” prong in this case. Under this test,
      Under the pre-AEDPA analysis, this court reviews a district court’s     a state court’s decision will be considered an unreasonable
refusal to grant a writ of habeas corpus de novo, but reviews the district    application of clearly established Supreme Court precedent if
court’s factual findings for clear error. See Combs v. Coyle, -- F.3d --,
2000 WL 201970, at *6 (6th Cir. Feb. 23, 2000). A state court’s factual       it is not “debatable among reasonable jurists” or is “so
findings “are entitled to complete deference if supported by the evidence.”   offensive to existing precedent, so devoid of record support,
Id. Under this presumption of correctness, a petitioner has the burden of
“establish[ing] by convincing evidence that the factual determination by
the state court is erroneous.” McQueen v. Scroggy, 99 F.3d 1302, 1310             3
(6th Cir. 1996), cert. denied, 520 U.S. 1257 (1997). This “presumption              If we were to view this appeal as presenting a factual issue only, we
only applies to basic, primary facts, and not to mixed questions of law and   would conclude, both under pre-AEDPA and post-AEDPA law, that the
fact” and “also applies to implicit findings of fact, logically deduced       district court’s denial of habeas relief was appropriate. Coe has not
because of the trial court’s ability to adjudge the witnesses’ demeanor and   shown that the state courts’ determination of his competency was clearly
credibility.” Id.                                                             erroneous or unreasonable.
