                              In the
 United States Court of Appeals
                For the Seventh Circuit
                           ____________

Nos. 04-3549, 06-2905
ERIC D. HOLMES,
                                               Petitioner-Appellant,
                                  v.

EDWIN G. BUSS,
                                               Respondent-Appellee.
                           ____________
             Appeals from the United States District Court
      for the Southern District of Indiana, Indianapolis Division.
          Nos. IP 00-1477-C-M/L, 1:05-CV-1763-LJM-WTL—
                    Larry J. McKinney, Chief Judge.
                           ____________
    ARGUED OCTOBER 11, 2007—DECIDED OCTOBER 30, 2007
                           ____________


  Before POSNER, FLAUM, and WOOD, Circuit Judges.
  POSNER, Circuit Judge. In 1992 the petitioner, originally
named Eric Holmes but now going by the name Koor
An Nur of Katie Mary Brown, was convicted of a pair
of murders committed three years earlier, and in 1993
he was sentenced to death. After exhausting his state
remedies, he filed the first of the two petitions for federal
habeas corpus that are before us (only the first need be
discussed, as will become apparent). One of the issues he
raised was whether he was competent to assist his lawyer
in the habeas corpus proceeding. The district judge, re-
2                                      Nos. 04-3549, 06-2905

fusing to provide funds to enable the petitioner to hire a
psychologist or psychiatrist who would give evidence
concerning the petitioner’s mental condition, ruled in 2003
(after questioning the petitioner in an effort to form a
judgment about his competence) that he was competent,
and in the following year denied habeas corpus relief. The
petitioner appealed, and in August 2005, before taking up
any other issues presented by the appeal, we ordered a
limited remand to the district court to determine the
petitioner’s competence to proceed with the appeal, in
light of affidavits presented by his counsel suggesting
that his mental condition had deteriorated since the April
2003 hearing. We suggested that the judge, on remand,
consult experts, and he did so. He received and con-
sidered reports from two experts, one hired by the state
(Dr. Dan A. Olive), the other by the petitioner (Dr. Rahn K.
Bailey). And he again questioned the petitioner; but he de-
nied the petitioner’s request that Dr. Olive, whose report
was equivocal, be made available for cross-examination.
The appeals in this court then resumed, with the parties
filing new briefs that repeated the original appellate
briefing on all issues except the petitioner’s competence,
concerning which his lawyer asks for a further hearing
in the district court to enable him to cross-examine Dr.
Olive, the state’s expert.
  As a matter of first impression, we might doubt the
legal significance of a person’s lacking the mental com-
petence to prosecute, or to assist his lawyer in prosecuting,
a federal habeas corpus proceeding. Technically, habeas
corpus is a civil proceeding rather than a criminal one.
Realistically, it is a stage in the criminal process, but it is
a stage initiated by the criminal defendant rather than
by the state; and it is odd to think that someone who
Nos. 04-3549, 06-2905                                     3

initiates a proceeding can then freeze it by claiming to be
mentally incompetent. An incompetent person can of
course have a legal claim, and it will be prosecuted by his
guardian or (in the antiquated legal phrase) his “next
friend,” but the fact of his incompetence will not be
allowed to interrupt or delay the proceeding. See the
helpful discussion in O.K. v. Bush, 344 F. Supp. 2d 44, 55-
57, n. 14 (D.D.C. 2004).
  But in Rohan ex rel. Gates v. Woodford, 334 F.3d 803 (9th
Cir. 2003), the Ninth Circuit, in an exhaustive opinion by
Judge Kozinski, held that in a capital case a petitioner
for federal habeas corpus must be competent to assist
his counsel; if not, the proceeding must be stayed. Judge
Kozinski relied in part on a federal statute, 21 U.S.C.
§ 848(q)(4)(B), entitling a federal habeas corpus peti-
tioner to counsel in a capital case, and the statute was
recently repealed—but it was promptly replaced by a
materially identical statute. 18 U.S.C. § 3599. Anyway,
his opinion places greater emphasis on other factors,
such as that a waiver of a legal right (concretely, the
right to seek postconviction relief) must, to be effective,
be knowing, implying mental competence. See also Mata
v. Johnson, 210 F.3d 324, 329 (5th Cir. 2000). And really
the presence or absence of counsel is a detail. If the peti-
tioner doesn’t have counsel, the issue is his competence
to proceed without assistance of counsel. If he does have
counsel, the issue is his competence to provide such
assistance to counsel as is necessary to enable the claim
to habeas corpus relief to be prosecuted adequately by
his counsel.
   But whether Rohan is right or wrong, we are not dis-
posed to reject it, thereby creating an intercircuit con-
flict, when the State of Indiana has declined to challenge
4                                      Nos. 04-3549, 06-2905

it and as a result its validity has throughout these proceed-
ings been assumed rather than litigated.
  The most common claim of incompetence to participate
in a proceeding is a criminal defendant’s claim that he
is incompetent to stand trial—that because he is retarded
or insane he cannot understand the proceeding suffi-
ciently to assist in his defense. If he prevails in his claim,
he avoids a conviction. But once he has been convicted
and imprisoned and seeks postconviction relief, he usually
has little to gain by claiming that he is incompetent to
conduct the postconviction proceeding or, if he has the
assistance of a lawyer, to assist in the lawyer’s conduct of
the proceeding. For if the proceeding is halted by a find-
ing that he is incompetent, he just languishes in prison.
So we are not surprised to have found no noncapital
case in which such a claim has been made. But of course
in a capital case the petitioner may prefer to languish in
prison than to see his claims for postconviction relief
denied, opening the way to his execution, though this is
provided that his execution would be stayed until and
unless his postconviction proceeding could be completed.
  Another reason that challenges to competence to con-
duct postconviction proceedings are so rare is that the
petitioner has a tougher row to hoe than when he is
challenging his competence to stand trial. The briefs in this
case duel over the proper standard for assessing incom-
petence in post-trial proceedings, including appeals
(including these appeals—appeals from denial of
postconviction relief). The state argues that it should be
a higher standard because the client’s role in assisting
his lawyer in a postconviction proceeding is more lim-
ited than if he is on trial. The petitioner argues that the
standard should be the same. No cases address the issue.
Nos. 04-3549, 06-2905                                       5

   We do not think that creating different standards to
govern the issue of competence to litigate or assist in
litigation (as distinct from the competence that a defen-
dant must be shown to have in order for him to be con-
victed of a crime or to be executed, see, e.g., Panetti v.
Quarterman, 127 S. Ct. 2842 (2007); Ford v. Wainwright, 477
U.S. 399 (1986)) is a fruitful approach. The multiplication of
rules and standards, carrying in its train as it does endless
debate over boundaries, is one of the banes of the Ameri-
can legal system, a source of its appalling complexity.
Whatever the nature of the proceeding, the test should
be whether the defendant (petitioner, appellant, etc.) is
competent to play whatever role in relation to his case is
necessary to enable it to be adequately presented.
  The test is unitary but its application will depend on
the circumstances. They include not only the litigant’s
particular mental condition but also the nature of the
decision that he must be competent to make. If as in Rees
v. Peyton, 384 U.S. 312, 312-14 (1966) (per curiam),
the question is whether a petitioner for habeas corpus
who has been sentenced to death is competent to with-
draw a petition for certiorari filed on his behalf challeng-
ing the denial of habeas corpus (see also Mata v. Johnson,
supra, 210 F.3d at 329-31), the answer is unlikely to require
that he understand more than that the withdrawal of his
petition will almost certainly terminate any legal chal-
lenge to his death sentence. Or suppose the proceeding
is an appeal and the only nonfrivolous issue that could
be raised turns on an esoteric legal point, incompre-
hensible to even a highly intelligent, perfectly sane de-
fendant, that if accepted by the appellate court will termi-
nate all proceedings against him. Assume further that
his lawyer is appointed rather than retained. Then all the
6                                    Nos. 04-3549, 06-2905

mental capacity his client would need in order to be able
to assist in the appeal would be the capacity to make a
rational decision whether to take an appeal that has no
downside. If instead, as is common, the issue for appeal
is whether there was error at sentencing and if the ap-
peal is successful the case will be remanded for resen-
tencing and the judge may give the defendant a heavier
sentence than the one appealed from, the defendant will
need a higher level of mental functioning to be able to
make a rational decision whether to pursue or forgo the
appeal.
   Federal habeas corpus happens to be one of the most
complex areas of American law. With respect to many
of the issues that arise in habeas corpus cases, a lay per-
son has nothing to contribute to his lawyer’s strategy. But
it can be different with respect to other issues, several
presented in this case, notably prosecutorial misconduct
at trial and ineffective assistance by trial counsel. The
petitioner was at his trial; his current lawyers were not.
He may—if mentally competent—be able to convey to
his lawyers a better sense of the alleged misbehavior of
the prosecutor and of defense counsel than the trial
transcript and other documentation provide. It is true
that our remand order required only a ruling on the
petitioner’s competence to appeal from the denial by the
district court of the relief he sought by petitioning for
habeas corpus. But the appeal also challenges his com-
petence to have proceeded in the district court; and
to minimize the further protraction of the case, we think
it best to consider the issues together.
  The district judge thought back in April 2003 that he
could determine the petitioner’s mental competence just
by questioning him. He didn’t think he needed to take
Nos. 04-3549, 06-2905                                      7

any psychological evidence. Taking the hint in our re-
mand order, however, he commissioned expert reports;
but he seems to have given little weight to them and to
have relied again on his questioning of the petitioner, in
a hearing that the judge conducted on December 1, 2005.
It is easy to see why the judge found the expert re-
ports unsatisfactory. Dr. Bailey, the petitioner’s expert, a
psychiatrist, while emphatic that the petitioner is schizo-
phrenic, paranoid, and manic-depressive, seems to have
confused a habeas corpus proceeding with a trial, because
he said that the petitioner was incompetent to (among
other things) “identify pertinent witnesses,” “testify in
his own defense,” “refrain from irrational actions in
court,” and “tolerate the predictable stress of his impend-
ing trial.” Federal habeas corpus is usually and was here
based on the record of the criminal proceeding against
the petitioner, and only in rare cases is the district court
required to conduct its own evidentiary hearing. 28 U.S.C.
§ 2254 (e)(2); Ford v. Ahitow, 104 F.3d 926, 928 (7th Cir.
1997). The fault, however, was not that of Bailey but that
of the lawyer who hired him and evidently instructed
him to evaluate the petitioner’s competence to stand trial.
And despite this misstep, Bailey’s examination of the
petitioner was thorough (it lasted five hours, and in
addition Bailey reviewed hundreds of pages of medical
records and the transcripts of both of the hearings at
which the petitioner testified), and presents a prima
facie case that the petitioner is incompetent to assist in
the conduct of the habeas corpus proceeding.
  Dr. Olive, the state’s witness, a psychologist, initially
declined, in a brief letter to the judge, to offer an opinion
on the petitioner’s competence. In his interview of the
petitioner it had taken Olive two hours to extract basic
8                                     Nos. 04-3549, 06-2905

background information because of the petitioner’s “rather
circumlocutory, rapid-fire style of communication.” When
Olive then tried to encourage him “to discuss some of
the alleged psychiatric symptomology, e.g., persecutory
delusions and auditory/visual hallucinations, he in-
formed me that he no longer wished to participate in
the evaluation.” Olive found himself “unable to perform
a formal mental status examination or complete psycho-
logical testing that may have provided useful data re-
garding mental disease or mental defect, the likelihood of
malingering, etc.,” although he thought malingering a
“strong possibility.” “Unfortunately,” Olive concluded,
“based upon the aforementioned lack of cooperation,
I simply am unable to offer an opinion regarding mental
disease and, therefore, whether [the petitioner] has suf-
ficient understanding of his legal position and the op-
tions available to him. On a more speculative level,
given the fact that this particular competency test focuses
more specifically on cognitive processes, i.e., rational
decision-making, I am not thoroughly convinced that
any psychiatric symptoms that [he] may be currently ex-
periencing significantly compromise such capabilities.
Again, based on insufficient clinical data, my impressions
of [him] are necessarily speculative.”
  After reading the transcript of the December 1 hearing,
however, Olive wrote the judge a second letter, similar
to the first but more favorable to the state. For in it he
said that the petitioner’s schizoid and paranoid symp-
toms do “not appear to compromise the particular com-
petencies currently at issue . . . . I am of the opinion that
he does have the capacity to appreciate his position and
make a rational choice with respect to continuing or
abandoning further litigation. As was stated in the orig-
Nos. 04-3549, 06-2905                                     9

inal communication [Olive’s first letter, from which we
quoted in the preceding paragraph], this opinion is
based on significantly limited data.” It is unclear how
much of the extensive documentary material bearing on
the petitioner’s competence Dr. Olive reviewed, other
than the transcript of the December 1 hearing.
  The district judge, while referring to the experts in
footnotes and even accepting Bailey’s conclusion that the
petitioner is a paranoid schizophrenic, based his judg-
ment that the petitioner is nevertheless competent to
assist his attorney in the appellate phase of habeas
corpus proceedings on what the petitioner said at the
hearing.
  Were the petitioner content to have the issue of his
competence decided on the basis of the record compiled
to date, the judge’s ruling might well be sustainable,
although we do not have to decide that. The petitioner’s
lawyer is incorrect in arguing that mental competence is
an issue exclusively for psychiatrists and psychologists to
opine on, not a legal issue for judges to opine on. The
psychiatrist or psychologist is the expert on mental cap-
abilities, but the judge is the expert on what mental capa-
bilities the litigant needs in order to be able to assist in
the conduct of the litigation, and so there are cases in
which the district judge may properly find that a crim-
inal defendant was competent even though the experts
on mental functioning disagree with him. E.g., Matheney
v. Anderson, 377 F.3d 740, 748-49 (7th Cir. 2004); United
States v. Bennett, 908 F.2d 189, 195 (7th Cir. 1990).
  But the record is equivocal, leaving us perplexed as to
why the petitioner’s lawyer was not permitted to cross-
examine Dr. Olive. That cross-examination, plus any
redirect examination, might not have extended the hear-
10                                    Nos. 04-3549, 06-2905

ing by more than an hour. One might have thought that
the judge would have wanted Dr. Bailey questioned as
well, to see how far his opinion might have been distorted
by his misunderstanding of the procedural setting. Both
reports left matters hanging in the air that could have
been brought down to earth at little cost in time. Notice
how Dr. Olive, in his revised report, said only that he
thought the petitioner competent to decide whether to
continue or abandon his habeas corpus proceeding, a
decision requiring less mentation than prosecuting the
case or assisting a lawyer in prosecuting it.
  We cannot agree with the state that the transcript of
the December 1 hearing, taken together with the equivocal
expert reports, so plainly demonstrates the petitioner’s
competence that the district judge was entitled to truncate
the hearing by denying the petitioner’s counsel an op-
portunity to cross-examine Dr. Olive. There are lucid
intervals in the petitioner’s responses to the judge’s
questions, but there are also wild and whirling words,
which the judge seems to have ignored. We give a few
examples: “But you and I know a name means every-
thing because you remember you asked me what the
meaning of Koor An Nur was. I wanted to effect it was
a dying man that was inherited by a royal family, Queen
of England, but I never did mention that Koor An Nur
the 93rd law. If you choose to call me by Katie Brown,
last name of my mother, Brown, I’m more than satisfied
with that.” The petitioner told the judge that he had
stopped reading documents relating to his case because
“I feel that somehow individuals are using spirits on me
to sit around and read what I read . . . . I don’t have to do
anything in life really anymore once I start getting at-
tacked by spirits. I can shut everything down and just
Nos. 04-3549, 06-2905                                   11

lay in my bed at a particular angle taught in the Holy
Quran and hide the sun.”
   He seemed obsessed with the fact that the state had at
one point moved to dismiss the charges against him,
though it had later moved to withdraw the motion, and
the motion was never granted. “Once we get by the Fed-
eral Court the next step, which is called the 7th Circuit,
is not really an appeal, it is an argument. And that argu-
ment is kind of like two individuals arguing it happened,
it didn’t happen, whereas a federal judge, you can sit and
say right here, you know, he signed this signature. And
every day I have like them over there, them prosecutors
and this attorney here, they have to put their name on a
document to you unless you are not going to find it to be
credible, because the first thing you are looking for is
that signature. So when that prosecutor signed his signa-
ture on that matter [presumably the motion to dismiss]
saying it was true everybody just—seemed like every
court, the post conviction court, the Indiana Supreme
Court, and then I got to you, and everybody seemed to
say that, well, I don’t see that signature, I don’t see
what happening on that document . . . . So once he signed
that signature it is my belief that he believed what was
entitled in the above information structure. So it is hand-
writing which is in pen, you know. If I forge a document,
you know, not only should I receive the death penalty
at that point, but, you know, maybe my hand should be
cut off for that, as well.”
  When asked about his discussions with his lawyers, the
the petitioner said: “So what me and my attorney, we
just didn’t have a prescription, if you would, a metaphor,
or what I’m trying to express is that we just didn’t have
the medicine between us to bring into balance because
12                                   Nos. 04-3549, 06-2905

I was looking only at, hey, man, I’m sitting here with
illegal charges, and he may tell me . . . well, that issue,
I understand what you are saying, but you still got to
have more because that issue fails. You will go to the
grave. And once we go beyond that, to me it is like
I don’t know what to say about those issues because I
don’t see how we can get to—I just don’t understand
how we can go any further without us establishing
that, wait a minute, how we have a hearing knowing
that this injustice may be occurring . . . you know, funda-
mentally you cannot even ask me a question until it is
established that charges are existing properly . . . . So,
basically, I’m saying there is no charges and so I don’t
understand the question . . . . So, you know, in this place
I’m sitting right now, I’m getting what I asked for, which
is a hearing to argue there are no charges in my case.”
  Obsessed with the issue of the (he thinks) dismissed
charges, the petitioner seemed unable to focus on any
other issues. Although when asked by the judge whether
he was willing to discuss other theories with his lawyers
he said “yes,” when then asked whether he considered
himself “competent to help them to continue this prosecu-
tion of this case” he launched into a diatribe about the
supposed dismissed charges: “I’m only as competent as
the knowledge to know that . . . there are no valid charges
against me in my case.”
  He did say he wasn’t hearing voices “right now,” but
that turned out to be the introduction to a long ramble
about how “my mental state is that I’m careful because
I never know who I’m talking to because, as the Quran
teaches, that I have been talking about the jinn being,
the invisible force . . . . I never know who I’m talking to
anymore because they [the jinn beings] could manifest and
Nos. 04-3549, 06-2905                                     13

beat me up . . . . They are in the cell with me. I see like a
little midget looking, a couple of them, one white and
one black. The little black one just beat me up, and
I wanted to throw some punches, but it is kind of like a
force field . . . . Even at the apex of their anger they
always come back because you levitate. You know, be-
cause you levitate, and that is something they inter-
ested in.”
  There is a further problem with the district judge’s
ruling. In support of the motion to remand, the peti-
tioner’s lawyer had referred us to evidence that his
client’s mental condition had deteriorated since the
April 2003 hearing. So one might have expected the dis-
trict judge on remand to compare the petitioner’s testi-
mony at the new hearing with the transcript of his testi-
mony at the 2003 hearing. Apparently he did not do so,
for if he had, he could not have failed to notice that
the petitioner’s testimony at the earlier hearing was far
more lucid, compact, and responsive than his testimony
at the later hearing. This deterioration is pertinent to his
condition both in December 2005 and today, 22 months
later.
  It is 18 years since the murders, 15 years since the trial,
and 14 years since the petitioner was sentenced to
death, and the end of the legal proceedings is not yet
in sight. We therefore direct that the limited further
remand that we are ordering be conducted with dispatch.
Whether the judge should receive additional evidence
beyond live testimony by the experts will doubtless
depend on the results of that examination, and so we
neither direct nor forbid such further evidence gathering.
If the judge decides that the petitioner is incompetent,
he may wish to reexamine his April 2003 ruling that the
14                                    Nos. 04-3549, 06-2905

petitioner was competent to participate in the earlier
stages of the habeas corpus proceeding, since the peti-
tioner’s role in assisting counsel would be larger in the
district court than in the court of appeals, though as
we said that the transcript of the earlier hearing is less
suggestive of serious mental illness than the transcript of
the December 2005 hearing. The fact that no expert evi-
dence was presented at the earlier hearing would make
it difficult to assess his condition then, but not neces-
sarily impossible, since his psychiatric records go back
many years.
  We do not prejudge the remand. As the petitioner’s
lawyer concedes, the fact that a litigant is psychotic does
not mean that he cannot assist in his case, United States
v. Teague, 956 F.2d 1427, 1432 (7th Cir. 1992); Eddmonds
v. Peters, 93 F.3d 1307, 1314 (7th Cir. 1996); Smith v.
Armontrout, 865 F.2d 1502, 1506 (8th Cir. 1988) (en banc),
especially at the appellate level. United States v. Roberts,
915 F.2d 889, 891-92 (4th Cir. 1990). Much of the time,
even at the December hearing, the petitioner was lucid,
even articulate. He has a good memory, at least a rudi-
mentary familiarity with the legal process, knows who
he is, where he is, etc.; and we take seriously the possi-
bility voiced by Dr. Olive that the petitioner is malinger-
ing. If he is not malingering, however, he seems insanely
preoccupied with a frivolous ground of appeal and oblivi-
ous to the other, more substantial, grounds that his lawyers
wish to press, as well as severely distracted by fear of
diabolical beings who are scheming against him, prevent-
ing him from reading any documents relating to his case.
These matters require further exploration in the district
court, pending which the appeals will remain on our
docket.
                                               REMANDED.
Nos. 04-3549, 06-2905                                   15

A true Copy:
       Teste:

                        _____________________________
                        Clerk of the United States Court of
                          Appeals for the Seventh Circuit




                  USCA-02-C-0072—10-30-07
