                                                                                                                           Opinions of the United
1999 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-6-1999

Heidnik v. Horn
Precedential or Non-Precedential:

Docket 99-9004




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Recommended Citation
"Heidnik v. Horn" (1999). 1999 Decisions. Paper 191.
http://digitalcommons.law.villanova.edu/thirdcircuit_1999/191


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                                UNREPORTED-NOT PRECEDENTIAL

              IN THE UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT

                          No. 99-9004

                     MAXINE DAVIDSON WHITE,
                as next friend to GARY HEIDNIK,

                              Appellant

                                 v.

MARTIN HORN, Commissioner, Pennsylvania Department of Corrections;
GREGORY WHITE, Superintendent of the State Correctional Institution
      of Pittsburgh, and the COMMONWEALTH OF PENNSYLVANIA

        On Appeal from the United States District Court
            For the Eastern District of Pennsylvania

                  (D.C. Civ. No. 97-cv-02561)
       District Judge: Honorable Franklin S. VanAntwerpen

                      Argued July 6, 1999

       Before: NYGAARD, ALITO, and McKEE, Circuit Judges

                     (Filed     July 6, 1999)

                                      Billy H. Nolas, Esq. (ARGUED)
                                      Kathy Swedlow, Esq.
                                      Defender Association of Philadelphia
                                      Federal Court Division
                                      437 Chestnut Street, Suite 510
                                      Philadelphia, PA   19106

                                      Attorneys for Appellant

                                      Ronald Eisenberg (ARGUED)
                                      Christopher Diviny
                                      Office of District Attorney
                                      1421 Arch Street
                                      Philadelphia, PA   19102


PER CURIAM

     Before us are a motion for a certificate of appealability and for a
stay of execution
filed by petitioner/appellant, Maxine Davidson White, as "next friend"
for Gary Heidnik.
On July 3, 1999, the District Court issued an order that denied the
petitioner/appellant's
application for a stay of execution and a certificate of appealability and
dismissed her
petition for a writ of habeas corpus. The District Court's ruling was
predicated on its
conclusion that the petitioner/appellant lacked standing to bring an
action as "next friend"
to Gary Heidnik because she has not shown that he is "unable to litigate
his own cause
due to mental incapacity." Whitmore v. Arkansas, 495 U.S. 149, 165
(1990). The
District Court issued a comprehensive opinion explaining in detail its
analysis of the
numerous arguments presented to it.
     Because Heidnik is scheduled to be executed on the evening of
Tuesday, July 6,
we required the petitioner/appellant to file her brief on Sunday, July 4,
and we directed
the Commonwealth to file its response on Monday, July 5. The
petitioner/appellant filed
a Reply on July 5, and the Commonwealth submitted a Supplemental Response.
We
heard oral argument on the morning of July 6. We have considered all the
arguments
raised before us, as well as relevant portions of the record, and we
conclude that the
motion for a certificate of appealability and a stay of execution should
be denied.
     We are largely in agreement with the opinion of the District Court,
but we add the
following comments concerning the petitioner/appellant's argument that the
"next
friend" issue is controlled by Heidnik v. Horn, 112 F.3d 105 (3d Cir.
1997). This
decision, among other things, directed the District Court to issue a stay
of execution, but
the Supreme Court of the United States vacated that stay. Horn v. White,
520 U.S. 1183
(1997). The petitioner/appellant contends that, despite this order and
despite the
subsequent proceedings in state court, which resulted in a competency
hearing and state
court findings on the competency question, the prior panel decision
requires us, by virtue
of the law-of-the-case doctrine, to hold that she is entitled to "next
friend" status. We
reject this argument.
     Although we obviously cannot be certain of the basis for the Supreme
Court's
order, it seems most likely that it was based on the conclusion that the
prior panel's
handling of the "next friend" question was incorrect. But we need not
resolve this
question. Even if the Supreme Court's order was not based on the
conclusion that the
petitioner/appellant lacked standing, we still do not believe that the
prior panel decision
would control our consideration of the "next friend" issue at this
juncture. The prior
panel decision was based on a review of the record and findings of the
federal district
court. Now, however, the Pennsylvania courts have conducted a new
competency
hearing and rendered new findings, and the issue comes before us now on a
different
record and in a different procedural posture. The law-of-the-case
doctrine did not prevent
the Pennsylvania courts from taking these actions and did not compel the
Pennsylvania
courts to follow the prior panel decision. Under 28 U.S.C. 2254(e)(2),
the finding of the
Court of Common Pleas regarding Heidnik's competency is presumptively
correct and
must be accepted unless the petitioner/appellant can overcome them by
clear and
convincing evidence. Under 28 U.S.C.    2254 (d)(2), a federal writ may
not be issued
unless the state court made "an unreasonable determination of the facts in
light of the
evidence presented in the State court proceeding." This is a different
standard of review
than the standard applied by the prior panel when it ruled in 1997, and
for this reason the
prior panel's decision does not bind us here.
     We agree with the District Court that the state court factual
findings regarding
Heidnik's competency are adequately supported by the record, and we reject
the
petitioner/appellant's contention that they are not entitled to deference
due to alleged
procedural defects. We will therefore deny the application for a
certificate of
appealability and a stay of execution.

TO THE CLERK OF THE COURT:
     Please file the foregoing opinion.
No. 99-9004, MAXINE DAVIDSON WHITE, as next fried to GARY HEIDNIK, v.
MARTIN HORN, Commissioner, Pennsylvania Department of Corrections;
GREGORY WHITE, Superintendent of the State Correctional Institution of
Pittsburgh; and the
COMMONWEALTH OF PENNSYLVANIA

McKee, Circuit Judge dissenting

     Mr. Heidnik is clearly deserving of whatever sanction society
reserves for its most
heinous offenders. That, of course, is not the issue before us. That
issue was presented to the
jury that heard the nightmarish evidence and decided to impose a sentence
of death after finding
that Heidnik was guilty of the atrocities he had been charged with.
     Rather, the sole issue before us is whether his daughter has standing
under Whitmore v.
Arkansas, 495 U.S. 149 (1990). In order to resolve that question we must
decide "whether [she]
has provided an adequate explanation why [Mr. Heidnik] cannot appear on
[his] own behalf to
prosecute the action." Heidnik v. Horn, 112 F.3d 105, 108 (3rd Cir. 1997
(per curiam) That
inquiry, in turn, depends upon whether she has established that he is
mentally incapable of
deciding for himself to forego whatever claims he would otherwise be able
to assert on appeal.
     Much of the controversy before us now is focused on whether our
earlier decision still
binds us under the law of the case doctrine even though our stay was
subsequently vacated by the
United States Supreme Court. I doubt very much that we are still bound,
but the hectic and
hurried manner in which we have had to decide this incredibly intricate
inquiry into Supreme
Court procedure has not afforded me, at least, sufficient opportunity to
resolve that question with
enough certainty to allow it to govern my analysis now. However, even the
Commonwealth
concedes that the prior action of the United States Supreme Court does not
invalidate our prior
analysis of the record that was before us in 1997.    I find that analysis
compelling, and
persuasive. Heidnik is the same now as he was then. At the hearing before
the District Court, the
Commonwealth agreed that Heidnik's mental condition on June 30, 1999 was
the same that it
was in 1997 when we decided In re Heidnik and found that Heidnik was
Whitmore incompetent.
The following exchange occurred:
                     THE COURT: Has there been any change factually? Has
there
          been any    the plaintiff Petitioner says there's no real change
in
          Heidnik's condition?

                     [DISTRICT ATTORNEY]: Your Honor, I don't think that
there
            has been a change in Mr. Heidnik's condition according to their
            experts and according to our experts . . . .

                     THE COURT: So basically what I have even though we
have had
            this new hearing with different witnesses, there is no real
change in
            his condition.
N. T. 6/30/99 at 84 (Dist. Ct. Proceeding). In 1997, we reviewed a nearly
identical record to
determine Heidnik's competency to waive his appellate rights, and we
rejected the
District Court's finding that Heidnik's thought process was sufficiently
moored to reality
to allow him to knowingly, voluntarily, and intelligently execute such a
waiver. We
stated:
                     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
           [the Commonwealth's witness] 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 district court must be vacated.

In re Heidnik, 112 F.3d at 112.   Accordingly, we ordered that the
District Court to stay
the then imminent execution and designate Maxine Davidson Heidnik's next
friend, and
appoint counsel for her.
     Our decision was, of course, rendered without the benefit of the
testimony of Dr.
Sadoff. His testimony supports the Commonwealth's argument that Heidnik's
choice is
rooted in his attempt to derive some social meaning from his death, and
therefore a
rational decision. That position was asserted by Dr. O'Brien before, and
we rejected it.
This does not, of course, mean that the subsequent corroboration of Dr.
O'Brien's
testimony can be ignored. However, the corroboration offered by Dr.
Sadoff still fails to
answer the fundamental inquiry we posed in 1997. It still "simply failed
to explain how
Heidnik's choice has a rational basis and is not based on his delusional
perception."
White, 112 F.3d at 112.    Without an answer to that question, I do not
think that Heidnik
can reasonably be found to be sufficiently competent to decide to forego
his appellate
rights.
     The second thing that has changed since our decision in 1997 is the
standard of our
review. In 1997 we were reviewing the District Court's findings based
upon testimony
elicited when it held a Whitmore hearing. Now, of course we, must review
the finding of
the state court. That review is governed the provisions of the
Antiterrorism and Effective
Death Penalty Act of 1996, 28 U.S.C.    2254(d) ("AEDPA"). However, I
believe that
based on the record as it now stands, as well as when we originally made
the statement set
forth above, Ms. White has cleared even the heightened bar of AEDPA, and
should be
granted next friend status.    Given the volume of material referring to
Heidnik's persisting
delusional state, Ms. White has shown that the Court of Common Pleas'
finding that
Heidnik is sufficiently rational to knowingly and intelligently waive his
appellate rights is
"an unreasonable determination of the facts in light of the evidence
presented in the State
court proceeding." Although the standard is now different, see Matteo v.
Superintendent,
171 F.3d 877 (1999) (en banc), the conclusion is the same. Heidnik is "a
paranoid
schizophrenic suffering from broad-based delusional perceptions [who] has
made a
decision to die immediately rather than pursue available judicial remedies
that
conceivably might spare his life." His "decision" is inextricably
intertwined with a belief
structure that the Commonwealth concedes is genuine and not fabricated.
That delusional
belief structure is inextricably connected to his decision to forego an
appeal.   Moreover,
the record establishes that the contrary finding of the Court of Common
Pleas is simply
not a reasonable assessment of the evidence that was presented there. As
the district court
correctly notes, under 28 U.S.C.    3354(e)(1)
                     This presumption of correctness can be overcome only
by
          clear and convincing evidence. The evidence must
          demonstrate either that the decision "was contrary to, or
          involved an unreasonable application of, clearly established
          federal law," or that it "was based on an unreasonable
          determination of the facts." 28 U.S..    2254(d)(1)-(2). The
          state court determination of a defendant's competency is
          entitled to the statutory presumption of correctness. See
          Demosthenes v. Baal, 495 U.S. 731, 736 (1990); Miller v.
          Fenton, 4874 U.S. 104, 113.

Dist. Ct. Op. at 24.    In my opinion, Ms. White has overcome the
presumption of
correctness by clear and convincing evidence. Accordingly, the District
Court incorrectly
allowed the state court's findings to determine the outcome in the
District Court.
     It may of course be that all of the claims that are waiting in the
wings until the
Whitemore issue is decided would one day be presented to a court in a
proper context,
and denied. If that were to happen, Heidnik's execution would follow.
But it would then
be accomplished without the cloud of competency that now hangs over his
pending
execution.
     Few, if any outside his family will mourn Heidnik's execution. His
crimes are
etched into the collective memories of everyone who is a member of this
community, and
his lunacy made everyone feel less human to think that anyone could do
what he did to
another human being. Nevertheless, as I said at the outset, the legal
inquiry we are forced
to undertake does not, at this stage of the proceedings, allow his horrors
to define our
analysis.
     It may well be that today we are writing the final chapter of the
terror that was
Heidnik. However, I share the thoughts so poignantly echoed by the Chief
Justice of the
Supreme Court of Pennsylvania when he recently wrote in a concurring
opinion involving
an issue other than the one now before us:
           although I believe the record, state and federal, demonstrates
           that Gary Heidnik, . . . is presently suffering from mental
           illness in the form of paranoid schizophrenia . . ., and in my
           view, is insane, I cannot stand by and say nothing while an
           insane person is put to death by the state contrary to the mores
           of civilized society.

Heidnik v. White, 554 Pa. 177, 191(1998) (Flahery, C.J. Concurring)
(internal quotation
marks omitted).
     Accordingly, I respectfully dissent from the decision of my
colleagues.
