                 FOR PUBLICATION
 UNITED STATES COURT OF APPEALS
      FOR THE NINTH CIRCUIT

VIVA LEROY NASH,                           No. 06-99007
              Petitioner-Appellant,
                                              D.C. No.
                v.
                                         CV-97-01104-PHX-
CHARLES L. RYAN, Warden,                       MHM
Arizona State Prison,
                                              ORDER
              Respondent-Appellee.
                                      
       Appeal from the United States District Court
                for the District of Arizona
       Mary H. Murguia, District Judge, Presiding

                 Argued and Submitted
       December 9, 2008—San Francisco, California

                 Filed September 11, 2009

     Before: Stephen Reinhardt, Sidney R. Thomas, and
              Richard A. Paez, Circuit Judges.

                   Order by Judge Paez


                        COUNSEL

Thomas J. Phalen, Phoenix, Arizona, and Jon M. Sands, Fed-
eral Public Defender, Phoenix, Arizona, for petitioner-
appellant Viva Leroy Nash.

Kent E. Cattani, Chief Counsel, Capital Litigation Section,
Attorney General’s Office, Phoenix, Arizona, and Jeffrey A.
Zick, Assistant Attorney General, Phoenix, Arizona, for
respondent-appellee Charles L. Ryan.

                           13189
13190                    NASH v. RYAN
                           ORDER

PAEZ, Circuit Judge:

   In Rohan ex rel. Gates v. Woodford, 334 F.3d 803 (9th Cir.
2003), we held that a capital habeas petitioner’s statutory right
to counsel also encompassed the right to competence in
habeas proceedings: the right of the petitioner to be competent
during those proceedings so as to be able to advise and con-
sult with his counsel regarding issues that might arise. Rohan
occurred during the course of district court proceedings, and
therefore we had no need to address explicitly whether that
right extended to an appeal. Here, we confront that issue and
decide whether the statutory right to competence that we rec-
ognized in Rohan applies to an appeal from denial of habeas
relief. The State of Arizona (“State”) argues that, given the
record-based nature of an appeal, the statutory right to compe-
tence should not apply to an appeal.

   We do not read Rohan as so limited. While an appeal is
record-based, that does not mean that a habeas petitioner in a
capital case is relegated to a nonexistent role. Meaningful
assistance of appellate counsel may require rational communi-
cation between counsel and a habeas petitioner. Because peti-
tioner Viva Leroy Nash (“Nash”) has made a prima facie
showing that he may be incompetent to assist counsel with
this appeal, and because counsel has identified claims that
could benefit from rational communication with Nash, we
grant the pending motion for a limited remand. On remand,
we direct the district court to conduct appropriate proceedings
to determine whether Nash is competent to communicate
rationally with his counsel for the purpose of prosecuting this
appeal.

        I.   FACTUAL AND PROCEDURAL BACKGROUND

   On May 25, 1983, Viva Leroy Nash (“Nash”) was con-
victed in an Arizona superior court of first-degree murder,
                             NASH v. RYAN                            13191
armed robbery, aggravated assault, and theft, and sentenced to
death. State v. Nash, 694 P.2d 222, 225-27 (Ariz. 1985). The
Supreme Court of Arizona affirmed his conviction in 1985.
Id. at 222. After filing several unsuccessful petitions for post-
conviction relief in both state and federal court, Nash ulti-
mately filed the amended habeas petition that is the subject of
the pending appeal.1 Nash’s amended petition raised thirteen
claims, alleging violations of various Fourth, Sixth, Eighth,
and Fourteenth Amendment rights. After concluding that
Nash was entitled to have 9 of his thirteen claims reviewed on
their merits,2 the district court denied the petition in a memo-
randum decision on July 7, 2006.

   On October 4, 2006, Nash timely filed a notice of appeal
from the district court’s judgment denying his habeas petition.
Before filing a brief on appeal, however, Nash filed a motion
for a competency determination, requesting a stay of the
appeal pending a ruling on the motion.3 Nash argued first that
the statutory right to competence, embodied in 18 U.S.C.
§ 3599’s right to counsel and recognized in Rohan, applies to
an appeal. He further asserted that the progressive deteriora-
tion of his mental health rendered him incompetent to pursue
an appeal, and that, accordingly, appellate proceedings should
be stayed until he is found competent. The State opposed the
motion. First, the State challenged Nash’s assertion that the
right to competence extended to an appeal from the denial of
habeas relief in capital cases. The State also argued that, even
  1
     The record reflects that Nash filed two prior petitions for post-
conviction relief in the state court, both of which were denied. He also
filed two prior petitions for habeas relief in the United States District
Court for the District of Arizona, one of which was voluntarily dismissed
and one of which was dismissed for failure to exhaust state court reme-
dies.
   2
     The district court concluded that the remaining claims were either pro-
cedurally barred or premature and not yet ripe for review.
   3
     On March 14, 2008, the Appellate Commissioner stayed the briefing
schedule pending further order of the court.
13192                          NASH v. RYAN
if such a right exists, a competency determination is not war-
ranted in this case.

   We, accordingly, must determine first whether the statutory
right to competence in habeas proceedings, established in
Rohan, applies to an appeal.4 We hold that it does. We next
examine the claims in Nash’s habeas petition and conclude
that, because several of them could potentially benefit from
meaningful communication with counsel, Nash is entitled to
a stay of the appeal if he is found to be incompetent. Last, we
consider the evidence of Nash’s alleged incompetence, and
conclude that it is sufficient to warrant a competency determi-
nation. Accordingly, we grant Nash’s motion, and because the
district court is in the best position to make such a determina-
tion, we grant a limited remand with instructions to make a
competency determination.

                             II.    ANALYSIS

  A.     Whether the Statutory Right to Competence in Federal
         Habeas Capital Cases Extends to an Appeal

  First, Nash argues that this court’s decision in Rohan,
which arose during the course of district court habeas pro-
ceedings, applies to an appeal. We agree.

   Rohan involved 21 U.S.C. § 848(q)(4)(b),5 which provided
  4
   We have jurisdiction under 28 U.S.C. § 1291.
  5
   Rohan, like this case, addressed the statutory right to counsel in federal
habeas capital cases, not the constitutional right to counsel guaranteed by
the Sixth Amendment. The source of the statutory right in Rohan, 21
U.S.C. § 848(q)(4)(b), has been replaced by a “materially identical stat-
ute,” 18 U.S.C. § 3599(a)(2). See Holmes v. Buss, 506 F.3d 575, 578 (7th
Cir. 2007). Section 3599 retains the core guarantees set forth in the previ-
ous statute, providing, in pertinent part, that
      [i]n any post conviction proceeding under section 2254 or 2255
      of title 28, United States Code, seeking to vacate or set aside a
      death sentence, any defendant who is or becomes financially
      unable to obtain adequate representation or investigative, expert,
      or other reasonably necessary services shall be entitled to the
      appointment of one or more attorneys . . . .
                             NASH v. RYAN                           13193
for the right to counsel to petitioners in capital habeas pro-
ceedings filed under 28 U.S.C. § 2254 or § 2255. We held that
the statutory right to counsel in such cases implies a statutory
right to competence during those proceedings.6 Rohan, 334
F.3d at 817.

   In examining the contours of the statutory right to compe-
tence, we first considered the due process right to competence
at trial. We observed that this right was derived from princi-
ples of competence recognized at common law, and that it
remains closely tied to the capacity for rational communica-
tion, either to defend oneself, or to assist counsel in one’s
defense. Id. at 808-09. We contrasted the right to competence
at trial with the Eighth Amendment’s bar against execution of
the insane, which focuses less on the possibility that an
incompetent defendant could “go to his death with knowledge
of undiscovered trial error that might set him free,” and more
on the prisoner’s “[a]ware[ness] of the punishment [he is]
about to suffer and why [he is] to suffer it.” Id. at 809-810
(quoting Ford v. Wainwright, 477 U.S. 399, 422 n.3 (1986).
We noted that in Rohan, we were “confront[ed with] a ques-
tion that falls somewhere between the[ ] two lines of author-
ity: not competence to stand trial or competence to be
executed, but competence to pursue collateral review of a
state conviction in federal court.” Id. at 810. We concluded
  6
    In Rohan, the district court conducted a competency determination and
concluded that the petitioner, Oscar Gates, lacked the capacity to make
rational choices with respect to the habeas proceedings. 334 F.3d at 806.
The court appointed an attorney, Colleen Rohan, to pursue the habeas peti-
tion as Gates’s “next friend.” Id. Subsequently, Rohan reported that she
was unable to pursue Gates’s claims “because she could not communicate
rationally with him,” and requested a stay of further proceedings. Id. The
court denied Rohan’s request, reasoning that “neither due process nor the
federal habeas statutes required a stay, because Rohan’s appointment as
next friend adequately protected Gates’s interests.” Id. Nonetheless,
“[a]cknowledging that the issue was close and that judicial economy
favored immediate resolution, the court certified its ruling for interlocu-
tory review.” Id. at 807. We accepted jurisdiction.
13194                        NASH v. RYAN
that because a capital habeas petitioner’s incompetence could
prevent him from “communicating information that he alone
possesses,” rational communication could still play an impor-
tant role in a habeas proceeding. Id. at 816. In reaching this
conclusion, we reasoned that although “[t]he constitutional
requirement of competence to stand trial certainly does not
imply a coordinate requirement on collateral review[,]” id. at
810, “[c]ounsel’s assistance . . . depends in substantial mea-
sure on the petitioner’s ability to communicate with him.” Id.
at 813. “[I]f,” therefore, “meaningful assistance of counsel is
essential to the fair administration of the death penalty and
capacity for rational communication is essential to meaningful
assistance of counsel, it follows that Congress’s mandate [in
21 U.S.C. § 848(q)(4)(b)] cannot be faithfully enforced unless
courts ensure that a petitioner is competent.” Id. at 813. Not-
ing that “[o]ur own case law all but dictates the result” we
reached,7 we concluded that the statutory right to counsel in
capital habeas cases also guaranteed a right to competence
during district court habeas proceedings. Id. at 814.

   Although there are fundamental differences between dis-
trict and appellate court proceedings, there is one aspect of the
  7
    In Rohan, we took particular note of the Supreme Court’s actions in
Rees v. Peyton (Rees I), 384 U.S. 312 (1966) and Rees v. Peyton (Rees II),
386 U.S. 989 (1967), in which the Court ordered a competency determina-
tion for a habeas petitioner attempting to withdraw his petition for certio-
rari, 384 U.S. at 313, and then, upon the district court’s finding of
incompetency, stayed the proceedings. 386 U.S. at 989. We also found
support for our holding in one of our own decisions, Calderon v. United
States District Court, 163 F.3d 530 (9th Cir. 1998) (en banc), overruled
on other grounds by Woodford v. Garceau, 538 U.S. 202 (2003), which
Rohan described as holding that “a prisoner’s incompetence is grounds for
equitably tolling [the Anti-Terrorism and Effective Death Penalty Act of
1996’s (“AEDPA”)] one-year statute of limitations for filing habeas peti-
tions.” 334 F.3d at 814. We further noted the decisions of several state
courts that supported our recognition of a statutory competency require-
ment in federal habeas proceedings. See id. at 816-19 (citing Carter v.
State, 706 So.2d 873, 876 (Fla. 1998); State v. Debra A.E., 188 Wis.2d
111 (1994); and People v. Owens, 139 Ill.2d 351 (1990)).
                          NASH v. RYAN                      13195
entire process that remains the same: the statutory right to
assistance of counsel. We fail to see why that statutory right
does not also encompass “meaningful assistance” on appeal.
And, just as the capacity for rational communication is essen-
tial to meaningful assistance of counsel in the district court,
counsel’s ability to communicate rationally with a petitioner
may in some cases be essential to the successful prosecution
of an appeal.

   For example, where—as was the case in Rohan—a peti-
tioner challenges the constitutional validity of his conviction
or sentence on the basis of ineffective assistance of counsel,
such claims—both in the district court and on appeal—may
depend heavily on facts outside of the state court record. See
id. at 818 (concluding that where petitioner’s principal claim
was incompetency to stand trial and counsel’s failure to pur-
sue a competency hearing, “[a]t least some of the claims in
[the] petition could potentially benefit from [petitioner’s]
assistance” because their success would “depend[ ] in large
measure on facts outside the record”). Although extra-record
facts would be documented in the district court record, coun-
sel may nonetheless need to communicate with his client to
understand fully the significance and context of those facts so
that he may pursue the most persuasive arguments on appeal.
As we recognized in Rohan, a claim that trial counsel pre-
sented inadequate mitigating evidence during the penalty
phase implicates petitioner’s ability to communicate with
counsel. This same concern exists for appellate proceedings,
because the petitioner “is better positioned than anyone to
identify aspects of his personal history that should have been,
but were not, elicited . . . [and] is in a unique position to [pro-
vide information] about the extent of his trial counsel’s efforts
to elicit that mitigating evidence from him.” Id.

   The ability to elicit information from a petitioner may be
critical to the success of claims where the information the
petitioner possesses will supply factual context that counsel
cannot understand or appreciate from review of the state and
13196                       NASH v. RYAN
district court records. Moreover, where—as here—appellate
counsel contends that inadequate fact-finding by the state and
district courts forms part of the basis for relief, and requests
that this court remand for an evidentiary hearing, the petition-
er’s ability to impart his unique knowledge of past events or
personal history is essential. Appellate counsel’s decision to
emphasize certain arguments, and to focus on different facts
and theories, may likewise depend on the information relayed
by the petitioner—information that the record may supply in
part, but not in whole.8

   Although the same principles that informed our decision in
Rohan compel the conclusion we reach here, we find addi-
tional support for our holding in the post-Rohan decision of
the Seventh Circuit.

   In reviewing the denial of a capital habeas petition, the
Seventh Circuit recently examined whether the test for com-
petence in such cases is the same as the test for competence
at trial. Holmes v. Buss, 506 F.3d 576, 578-79 (7th Cir. 2007).
In Holmes, the court noted at the outset that, “before taking
up any other issues presented by the appeal,” it had “ordered
a limited remand to the district court to determine the petition-
er’s competence to proceed with the appeal, in light of affida-
vits presented by his counsel suggesting that his mental
condition had deteriorated . . . .” Id. at 577. Acknowledging,
and then setting aside, its doubts about the “legal significance
of a person’s lacking the mental competence to prosecute, or
to assist his lawyer in prosecuting, a federal habeas corpus
proceeding,” the court cited—and adopted—our holding in
Rohan for the proposition that “in a capital case a petitioner
  8
   Contrary to the State’s argument, the need for rational communication
between counsel and a petitioner is unaffected by the limits imposed on
judicial review by the AEDPA (enacted post-Rohan). The AEDPA does
not modify or diminish counsel’s statutory duty to provide meaningful
representation, and to communicate with a petitioner to the extent neces-
sary to accomplish that objective.
                              NASH v. RYAN                           13197
for federal habeas corpus must be competent to assist his
counsel; if not, the proceeding must be stayed.” Id. at 578.
Given the procedural posture of Holmes, where the petition-
er’s competence on appeal was at issue, the Seventh Circuit
necessarily understood what we clarify today: Rohan‘s recog-
nition of a statutory right to competence in habeas proceed-
ings applies to an appeal.

   In light of Rohan‘s focus on competence to assist counsel
in prosecuting a federal habeas petition, the Seventh Circuit’s
recognition that the statutory right to competence articulated
in Rohan does not automatically disappear when a petitioner
appeals from the denial of habeas relief is unremarkable. If,
as suggested by Rohan and expressly stated in Holmes, it is
not the “nature of the proceeding” that determines what level
of competence is required, but instead “whether the defendant
(petitioner, appellant, etc.) is competent to play whatever role
in relation to his case is necessary to enable [the case] to be
adequately presented,” Holmes, 506 F.3d at 579, then the pro-
cedural posture of a capital habeas petition should not dictate
whether the right to competence attaches. A categorical rule
that would deny the right to competence during certain stages
of a federal habeas proceeding would be inconsistent with the
statutory right to meaningful assistance of counsel. Thus,
rather than categorical rules, the inquiry should be whether
rational communication with the petitioner is essential to
counsel’s ability to meaningfully prosecute an appeal.9
   9
     The American Bar Association Guidelines for the Appointment and
Performance of Counsel in Death Penalty Cases, while silent on the pre-
cise issue we consider, are not to the contrary. The Guidelines note that
“winning collateral relief in capital cases will require changing the picture
that has previously been presented. The old facts and legal arguments . . .
are unlikely to motivate a collateral court.” See American Bar Association,
Guidelines for the Appointment and Performance of Counsel in Death
Penalty Cases, Guideline 10.15.1, cmt, reprinted in American Bar Associ-
ation Guidelines for the Appointment and Performance of Defense Coun-
sel in Death Penalty Cases, 31 Hofstra L. Rev. 913, 1085 (2003). New
counsel must “continue an aggressive investigation of all aspects of the
case.” Id. at (E)(4); 31 Hofstra L. Rev. at 1080. On appeal, as well as in
the district court habeas proceeding, counsel may need to communicate
rationally with the petitioner to determine which facts and arguments to
emphasize.
13198                       NASH v. RYAN
   In sum, as with capital habeas district court proceedings,
“[i]mplying a right to competence from a right to counsel” for
capital habeas appeals “breaks no new ground.” See Rohan,
334 F.3d at 813. We therefore hold that the statutory right to
competence in capital habeas cases that we recognized in
Rohan applies to appeals. Accordingly, a petitioner who lacks
the ability to communicate rationally, and who seeks to raise
claims on appeal that could potentially benefit from such
communication is entitled to a stay of the appeal until the
petitioner is found competent. Whether Nash’s claims include
those that could benefit from the ability to communicate ratio-
nally and, if so, whether he has presented sufficient evidence
of incompetence to warrant a competency determination, are
questions to which we now turn.

  B.        Whether Nash Is Entitled to a Competency
            Determination

       1.    Whether Nash’s Claims Could Benefit from the
             Ability to Communicate Rationally

   We next examine the claims that Nash seeks to raise on
appeal, and whether those claims could potentially benefit
from the right to competence set forth in Rohan. We conclude
that they could so benefit.

   Among the thirteen claims raised in Nash’s habeas petition
and decided by the district court were allegations that Nash
received ineffective assistance of counsel at both the guilt and
penalty phases of his trial. These claims included allegations
that trial counsel failed to investigate and prepare Nash’s
defenses, improperly induced Nash to try the case before the
trial judge, and failed to investigate and present at the penalty
phase available mitigation evidence, including evidence con-
cerning Nash’s mental illness, character, background, and
family history. Indeed, the district court granted a certificate
of appealability on Claim 1, which alleged that Nash was
denied effective assistance of counsel at the guilt phase of his
                         NASH v. RYAN                      13199
trial, and on Claim 2, which alleged that Nash was denied
effective assistance of counsel at the penalty phase of his trial.
There is no suggestion that counsel may not pursue these
claims on appeal. See Reply to Response to Motion at 2
(“Two of Mr. Nash’s certified claims deal with the ineffec-
tiveness of his counsel at guilt and sentencing . . . . Because
Mr. Nash was never provided any hearing on this claim at
either the State or federal level, one of Mr. Nash’s arguments
on appeal would be that there should be a remand for eviden-
tiary development [on this claim.]”).

   Although we do not yet know all of the arguments Nash’s
counsel will present in prosecuting this appeal, we are satis-
fied that, like in Rohan—which also involved claims of inef-
fective assistance of counsel, including allegations that trial
counsel failed to present adequate mitigating evidence at the
penalty phase—”[a]t least some of the [appellate issues that
counsel have identified] could potentially benefit from
[Nash’s] assistance.” Rohan, 334 F.3d at 818. Again, like the
petitioner in Rohan, “if [Nash] were competent, he could sup-
port [these claims]. He is better positioned than anyone to
identify aspects of his personal history that should have been,
but were not, elicited.” Id.

   The need for rational communication here is particularly
important because Nash has been assisted by several attorneys
over the years, including his trial attorney Arthur G. Hazelton,
state appellate counsel George Sterling and John Antieau, the
attorneys who assisted him in filing his 1987 habeas petition
in federal court, and current habeas counsel Thomas Phalen,
Jon Sands and Paula Harms, who also represented Nash in the
district court. Attempts by Nash’s current counsel to contact
his trial counsel have been unsuccessful. The information that
Nash possesses would provide first-hand insight into the ear-
lier proceedings, insight that might be helpful in ways that
Nash’s current attorneys cannot currently identify because of
his alleged incompetence. See Rohan, 334 F.3d at 818
(“Perhaps there are cases where an incompetent petitioner’s
13200                   NASH v. RYAN
counsel knows exactly what he needs to know and can’t find
out. Surely, however, those are the exception rather than the
rule.”) As the preceding discussion makes clear, Nash’s
claims may benefit from his ability to communicate rationally
with his counsel even though he is prosecuting a habeas
appeal, whereas the petitioner in Rohan was litigating his
habeas petition in the district court. As noted above, neither
Rohan nor post-Rohan cases interpreting or applying Rohan
draw a distinction among the various procedural stages of a
habeas proceeding, but instead focus on the types of claims at
issue. For example, as the Northern District of California
recently observed in applying Rohan, “claims of innocence
and ineffective assistance of counsel in presenting mitigating
evidence at the penalty phase of . . . trial” are claims that
“could benefit from the ability to communicate rationally.”
Hill v. Ayers, No. 4-94-cv-641-CW, 2008 WL 683422, at *1
(N.D. Cal. Mar. 10, 2008). Similarly, as the District of Ari-
zona noted in a recent exhaustive opinion examining the con-
tours of Rohan, claims that are resolvable as a pure matter of
law may not require the petitioner’s assistance. See Gonzalez
v. Schriro, 617 F. Supp. 2d 849, 854-55 (D. Ariz. 2008). The
Seventh Circuit’s opinion in Holmes is also in accord,
describing—in a case involving an appeal from the denial of
habeas relief—ineffective assistance of trial counsel as one of
the issues that may require a layperson’s contribution to coun-
sel’s strategy. 506 F.3d at 579-80.

   In sum, the success of the two ineffective assistance claims
on which the district court granted a certificate of appeala-
bility may depend on Nash’s ability to rationally communi-
cate with counsel. Accordingly, we turn next to whether the
evidence of Nash’s incompetence is sufficient to warrant a
competency determination.

    2.   Whether Nash Provided Sufficient Evidence of
         Incompetence to Warrant a Competency
         Determination

   In Rohan, because the district court’s prior determination
that the petitioner was incompetent was not disputed, we
                            NASH v. RYAN                   13201
assumed that the petitioner was incompetent. 334 F.3d at 807
n.2. As a result, we left unresolved several important issues,
including “what showing a petitioner must make to warrant a
competency determination” and “whether the standard [for
competence to pursue habeas relief] is the same as the stan-
dard for competence to stand trial.” Id. at 819 n.11.

   Here, in contrast, the State challenges not only Nash’s right
to competence, but the allegations of incompetence. That is,
the State contends that even if the right to competence dis-
cussed above extends to an appeal, and even if Nash’s claims
may potentially benefit from rational communication with his
counsel, Nash (1) has failed to proffer sufficient evidence of
incompetence to warrant a competency determination; and (2)
by his failure to request a Rohan determination in the district
court, has waived his opportunity to do so. We disagree. We
conclude that Nash has made a threshold showing of incom-
petence that, at this preliminary stage, warrants a competency
determination under any of the various standards we have
employed to assess evidence of incompetency. Further, we
hold that Nash’s failure to seek a competency determination
in the district court does not foreclose our consideration of his
motion.

       (i)        Nash’s Incompetence

             a.    Competence

   At trial, competence is defined as the ability to understand
the proceedings and to assist counsel in preparing a defense.
Miles v. Stainer, 108 F.3d 1109, 1112 (9th Cir. 1997). A com-
petent defendant possesses “sufficient present ability to con-
sult with his lawyer with a reasonable degree of rational
understanding and a rational as well as factual understanding
of the proceedings against him.” Rohan, 334 F.3d at 808
(quoting Cooper v. Oklahoma, 517 U.S. 348, 354 (1996)); see
also Indiana v. Edwards, 128 S. Ct. 2379, 2383 (2008) (not-
ing distinction between defendants competent to be tried and
13202                    NASH v. RYAN
defendants competent to defend themselves). As Rohan,
Holmes and the above discussion make clear, competency to
pursue federal habeas relief in a death penalty case requires
that the petitioner possess essentially the same mental capac-
ity that renders him competent to stand trial: the ability to
understand and communicate rationally with counsel when
necessary. See Rohan, 334 F.3d at 813; see also Holmes, 506
F.3d at 579; Mae C. Quinn, Reconceptualizing Competence:
An Appeal, 66 Wash. & Lee L. Rev. 259, 301-02 (2009) (dis-
cussing Rohan and Holmes‘s approach to competence in post-
conviction proceedings). With these fundamental principles in
mind, we turn briefly to the evidence we have deemed suffi-
cient to warrant a competency determination in similar con-
texts.

         b.   Evidence of Incompetence

   At trial, the right to competence generally requires that a
motion for a competency determination be granted when “rea-
sonable cause” exists to believe that the defendant is incom-
petent. See 18 U.S.C. § 4241(a) (2006); see also United States
v. Fernandez, 388 F.3d 1199, 1250-51 (9th Cir. 2004); United
States v. Brown, 943 F.2d 35, 35 (9th Cir. 1991). Many fac-
tors, including history of mental illness and treatment, a find-
ing of prior insanity, memory problems, erratic behavior,
variety and quantity of medications, and attempts at suicide
have been considered by courts determining whether a com-
petency hearing should have been granted. See McMurtrey v.
Ryan, 539 F.3d 1112, 1118 (9th Cir. 2008); Morris v. United
States, 414 F.2d 258, 259 (9th Cir. 1969). For example, in
Rohan, the petitioner suffered from a delusional disorder; in
Holmes, the court remanded the case based on “affidavits
presented by . . . counsel suggesting [petitioner’s] mental con-
dition had deteriorated.” Holmes, 506 F.3d at 577.

  We are satisfied that Nash has presented sufficient evidence
of incompetence to warrant a competency determination
under any of the various standards we have articulated.
                        NASH v. RYAN                     13203
   First, according to a psychiatric evaluation conducted by
Dr. Barry Morenz, Nash—like the petitioner in Rohan—
suffers from a delusional disorder which leads him to experi-
ence auditory hallucinations, as well as grandiose and para-
noid delusions. Nash has also been diagnosed with personality
disorder; according to Morenz, he is “not competent to pro-
ceed with his appeals” because he “is significantly impaired
in his ability to rationally and meaningfully assist his attor-
neys . . . .” Moreover, although Dr. Morenz opined that
“[t]reatment with antipsychotic and memory-enhancing medi-
cation . . . may provide some benefit to . . . Mr. Nash[,]” he
further opined that “[e]ven with these interventions, there is
not a substantial probability that he can be restored to compe-
tency.”

   Second, in addition to Dr. Morenz’s diagnoses and opinion,
Nash’s habeas counsel has filed a sealed declaration outlining
her own difficulties in communicating with Nash. Her obser-
vations are consistent with Dr. Morenz’s, detailing the ways
in which Nash’s delusional disorder and memory problems
substantially impede his ability to rationally communicate
with her regarding his personal history and other potentially
critical aspects of his appeal.

   Dr. Morenz’s diagnoses and opinion, and the declaration
presented by Nash’s counsel “suggest[ ] that his mental condi-
tion ha[s] deteriorated.” See Holmes, 506 F.3d at 577
(describing circumstances that warranted limited remand for
competency determination). At this preliminary stage, there-
fore, Nash has presented sufficient evidence of incompetence
to warrant a competency determination.

      (ii)   Failure to File a Rohan Motion

  Last, the State contends that because Nash never sought a
competency determination under Rohan in the district court,
he has waived the issue and cannot now raise it on appeal. See
13204                    NASH v. RYAN
Fry v. Melaragno, 939 F.2d 832, 834 (9th Cir. 1991), We dis-
agree.

   First, although the limited record reveals that Nash’s men-
tal and physical health have been an issue with which habeas
counsel are familiar, Dr. Morenz’s recent report notes increas-
ing cognitive decline and recent memory failure. While Dr.
Morenz’s report does not fully explain why counsel did not
seek an earlier determination of Nash’s mental incompetency,
it provides context for counsel’s decision to seek a compe-
tency determination in this court: ninety-three-year-old
Nash’s competency continues to decline.

   More importantly, although the State argues that Nash
should be barred from raising an issue on appeal that he did
not raise in the district court, Nash’s motion for a competency
determination does not fit within that circumstance. Nash
does not raise the issue of competence to obtain reversal of
the district court’s judgment. Rather, his counsel raise the
issue because it does not appear that Nash is now capable of
communicating rationally with them and they seek a limited
remand for a factual determination of his competence. The
limited nature of the relief sought further supports our conclu-
sion that Nash’s failure to seek relief in the district court
under Rohan should not preclude consideration of Nash’s
motion. The ultimate question of how next to proceed must be
addressed by this court after the district court makes a compe-
tency determination and returns the case to this court for con-
sideration of the merits of Nash’s claim.

   In sum, Nash’s rapidly deteriorating mental condition leads
us to conclude that the precise issue we consider here—
whether Nash is competent to pursue the pending appeal of
the district court’s denial of his habeas petition—is not sub-
ject to the waiver rule invoked by the State. Moreover,
because the competency determination will afford the State
the opportunity to offer all relevant evidence and fully litigate
the issue of Nash’s competence, we are satisfied that our deci-
                         NASH v. RYAN                      13205
sion in no way contravenes the policies underlying the waiver
rule. See Hormel v. Helvering, 312 U.S. 552, 556 (1941)
(explaining that the importance of the waiver rule lies in our
“procedural scheme[‘s] contemplat[ion] that parties shall
come to issue in the trial forum vested with authority to deter-
mine questions of fact . . . [i]n order that parties may have the
opportunity to offer all the evidence they believe relevant . . .
[and] that litigants may not be surprised on appeal by final
decision there of issues upon which they have had no opportu-
nity to introduce evidence”). We therefore reject the State’s
contentions to the contrary.

   For all of the above reasons, we grant Nash’s motion for a
limited remand. We remand this case to the district court to
conduct a competency determination. The court may conduct
such proceedings as it deems appropriate to reach a fair and
prompt determination of Nash’s competence, consistent with
the views expressed in this order. The panel shall retain juris-
diction over this appeal.

  MOTION GRANTED and REMANDED.
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