                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-18-2006

Michael v. Horn
Precedential or Non-Precedential: Precedential

Docket No. 04-9002




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                                        PRECEDENTIAL

      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT


                     No. 04-9002



               HUBERT L. MICHAEL,

                                Appellant

                           v.

   MARTIN HORN, Commissioner, Pennsylvania
Department of Corrections; *DAVID DIGUGLIELMO,
 Superintendent of the State Correctional Institution at
     Graterford; JOSEPH P. MAZURKIEWICZ,
  Superintendent of the State Correctional Institution
                     at Rockview

          * (Amended – See Clerk’s Order dated 1/6/05)




    Appeal from the United States District Court
       for the Middle District of Pennsylvania
         (D.C. Civil Action No. 96-cv-01554)
    District Judge: Honorable Thomas I. Vanaskie
                 Argued January 12, 2006

             Before: AMBRO, GREENBERG
             and NYGAARD, Circuit Judges.

                  (Filed August 18, 2006)

Joseph M. Cosgrove, Esquire (Argued)
1460 Wyoming Avenue
Forty Fort, PA 18704

      Counsel for Appellant

Thomas W. Corbett, Jr.
   Attorney General
Richard A. Sheetz, Jr.
   Executive Deputy Attorney General
   Director, Criminal Law Division
Amy Zapp
   Chief Deputy Attorney General
   Appeals and Legal Services Section
Jonelle Harter Eshbach (Argued)
   Senior Deputy Attorney General
   Capital Litigation Unit
Office of Attorney General of Pennsylvania
Strawberry Square, 16th Floor
Harrisburg, PA 17120

Michael A. Farnan
Pennsylvania Department of Corrections

                              2
Office of Chief Counsel
55 Utley Drive
P.O. Box 598
Camp Hill, PA 17011

       Counsel for Appellees




                 OPINION OF THE COURT


AMBRO, Circuit Judge:

       After finding Hubert Michael competent to terminate his
habeas corpus petition in this death-penalty case, the District
Court dismissed that petition. The dismissal was appealed,
purportedly on Michael’s behalf. He later vacillated on his
desire to dismiss this appeal. We hold that the presumption of
continuing competency does not apply here because the
foundational expert for the District Court’s competency finding
has suggested a new evaluation. We therefore remand to the
District Court for another competency finding.

     I. Factual Background and Procedural History

       A.     Michael’s homicide conviction and resulting
              death sentence



                               3
       Hubert Michael’s story is a long and convoluted one, so
we present only the facts most relevant to our decision. We
draw many of these facts directly from the District Court’s
opinion in Michael v. Horn, No. 3:CV-96-1554, 2004 WL
438678 (M.D. Pa. Mar. 10, 2004), which in turn drew many of
its facts from the Pennsylvania Supreme Court’s opinion
affirming Michael’s death sentence, Commonwealth v. Michael,
674 A.2d 1044 (Pa. 1996).

        On July 12, 1993, Michael pulled up alongside
16-year-old Trista Eng, who was walking to her summer job at
a Hardee’s restaurant, and offered to drive her to work. She got
into the car, and Michael drove to the State Game Lands in York
County, Pennsylvania. He forced Eng out of the vehicle, shot
her three times with a .44 magnum handgun, and concealed her
body.

       In late August 1993, Michael was charged with first-
degree murder. In September 1993, he was transferred to the
medical housing area of the Lancaster County Prison for “closer
observation” because he fell down the stairs in a possible suicide
attempt (though Michael has denied that he was trying to kill
himself). In November 1993, Michael assumed the identity of
an inmate who was about to be released, and he escaped from
prison. In the spring of 1994, he was apprehended in New
Orleans and returned to Pennsylvania.

       In October 1994, jury selection on the murder charge

                                4
began in the Berks County, Pennsylvania, Court of Common
Pleas.   Michael pled guilty to first-degree murder and
kidnapping. He tried to withdraw that plea six days later, but the
Court denied his plea-withdrawal request.

        In March 1995, Michael waived his right to be sentenced
by a jury. He also stipulated to the existence of the two
aggravating circumstances alleged by the Commonwealth
(killing during the perpetration of a felony and a significant
history of felony convictions), and he stipulated that there were
no mitigating circumstances. After an extensive colloquy, the
Court accepted Michael’s waiver of a right to a jury sentence,
found that the aggravating circumstances outweighed the
mitigating circumstances, and imposed the death penalty.

      The Pennsylvania Supreme Court undertook an
independent review of the record and affirmed the conviction
and sentence. Michael, 674 A.2d at 1048. In July 1996,
Governor Thomas Ridge signed an execution warrant, and
Michael’s execution was scheduled for August 1996.

       B.     The District      Court’s    stay   of   Michael’s
              execution

        Approximately one week before the scheduled execution
date, the Defender Association of Philadelphia, Capital Habeas
Corpus Unit, moved for a stay of execution and an appointment
of counsel in the District Court for the Middle District of

                                5
Pennsylvania. That Court granted the stay and appointed the
Defender Association as Michael’s counsel. Michael then wrote
a letter dismissing the Defender Association from acting as his
counsel and requesting that Governor Ridge re-sign his
execution warrant “as soon as possible.” Michael, 2004 WL
438678, at *4.

         In response, the Defender Association took the position
that Michael was not competent. The District Court directed the
Defender Association to confer with Michael. Following that
conference, attorney Billy Nolas submitted a declaration
describing Michael as “‘agitated, incoherent, irrational, sad,
u n a b le to c o n tr o l h i s v a r yi n g e m o t i o n s , a n d
ultimately . . . catatonic and completely uncommunicative.’” Id.
at *5. The declaration also indicated that Michael had
authorized Nolas to litigate his Pennsylvania Post Conviction
Relief Act1 (PCRA) proceedings. The District Court then stayed
the federal habeas proceedings so that Michael’s PCRA claims
could be litigated. Our Court affirmed that stay by judgment
order in June 1997.

         C.    Michael’s PCRA Proceedings

      As part of the PCRA proceedings, the Court of Common
Pleas of York County conducted evidentiary hearings
concerning Michael’s competence to plead guilty and to waive


1
    42 Pa. Cons. Stat. Ann. §§ 9541–9546.

                                 6
the presentation of mitigating circumstances.            The
Commonwealth trial court denied relief on all claims, and
Michael, represented by the Defender Association, appealed to
the Pennsylvania Supreme Court.

       While the appeal was pending, Michael filed an affidavit
indicating that he did not wish the appeal to proceed. The
Pennsylvania Supreme Court remanded the matter to the trial
court to determine whether Michael was competent to
discontinue the PCRA appeal. The Court of Common Pleas
heard expert testimony and engaged in a colloquy with Michael.
It found Michael competent, and the case returned to the
Pennsylvania Supreme Court.

       Before the Supreme Court could review the Court of
Common Pleas’s competency finding, Michael filed a new
affidavit asking the Supreme Court to “decide the merits of his
PCRA appeal quickly, essentially repudiating his request to
withdraw the appeal.” Commonwealth v. Michael, 755 A.2d
1274, 1276 (Pa. 2000).2 The Court therefore addressed the
merits of the underlying PCRA appeal, concluding that


2
  Michael indicated in the District Court that he had filed the
new affidavit “to speed the processing of his case because[,]
‘regardless if [he] did that or not [, the attorneys representing
him] were still going to try to push that through.’” Michael v.
Horn, No. 04-9002, 2005 WL 1606069, at *1 n.3 (3d Cir. July
7, 2005) (Greenberg, J., dissenting).

                               7
Michael’s trial counsel had not been ineffective in failing to
investigate and present indicia of his alleged incompetency. Id.
at 1279–80. It also held that Michael’s claims pertaining to the
failure to present mitigating evidence could not succeed,
because counsel was fulfilling an ethical duty to comply with
Michael’s directions. Id.

      Reargument was sought, but Michael sent a letter to the
Pennsylvania Supreme Court claiming that the Defender
Association was not acting on his behalf. The Court denied
reargument.

       D.     District Court proceedings after Michael’s
              PCRA litigation

              1.     District Court proceedings leading up to
                     the dismissal order

       Though the District Court stayed federal litigation
pending the outcome of the PCRA proceedings, Michael wrote
to the Court on three occasions (April 15, 1997; July 9, 1997;
and December 26, 2000) to express his wish that the Court
refrain from staying his execution.

       In September 2001, the Court ruled that the presumption
of correctness ordinarily attaching to state-court competency




                               8
determinations 3 should not be applied because the PCRA court’s
competency determination was not reviewed by the
Pennsylvania Supreme Court. The District Court accordingly
appointed Dr. Robert Wettstein, a board-certified psychiatrist
and clinical professor, to determine “‘(1) whether Mr. Michael
suffer[ed] from a mental disease, disorder or defect; (2) whether
a mental disease, disorder or defect prevent[ed] [him] from
understanding his legal position and the options available to
him; and (3) whether a mental disease, disorder or defect
prevent[ed] [him] from making a rational choice among his
options.’” Michael, 2004 WL 438678, at *10. Accord Hauser
v. Moore, 223 F.3d 1316, 1322 (11th Cir. 2000) (per curiam).
The Court also requested that Dr. Wettstein consider whether
Michael had sufficient ability to consult with his attorney with
a reasonable degree of rational understanding and the ability to
understand legal proceedings.

       In June 2001, though the competency issues had not been
resolved, the Defender Association filed a 146-page habeas
petition.4 In May 2002, Dr. Wettstein submitted his report,


3
  See Demosthenes v. Baal, 495 U.S. 731, 735 (1990) (per
curiam).
4
    The petition raised significant challenges to Michael’s
sentence. It claimed ineffective assistance of counsel in, inter
alia, (1) failing to investigate and present Michael’s
incompetency, (2) stipulating to the existence of aggravating
circumstances, (3) stipulating falsely that there were no

                               9
which was based on his review of the PCRA record, York
County Prison records, state prison records, Michael’s letters to
the District Court, Michael’s school records, an affidavit from
Michael’s sister, transcripts of an interview with Michael’s
brother, reports prepared by doctors who had testified at
Michael’s PCRA hearings, results of tests that Dr. Wettstein had
personally administered, and eight hours of interviews with
Michael. In the report Dr. Wettstein concluded, “with
reasonable psychiatric certainty,” that Michael (1) was not
suffering from any mental disease, disorder, or defect that
substantially and adversely affected his ability to make a
decision with regard to pursuing his appeals and (2) had the
ability to understand the legal proceedings and to consult with
his attorneys with a reasonable degree of understanding.
Michael, 2004 WL 438678, at *10.

      In July 2002, the District Court appointed Joseph
Cosgrove, Esq., to represent Michael, and it scheduled an
evidentiary hearing on Dr. Wettstein’s report. At the September
2002 hearing, the Court’s colloquy with Michael revealed—in
the words of the District Court—“a rational understanding of



mitigating circumstances, and (4) causing Michael to enter a
guilty plea. The petition also claimed (5) that the death penalty
was unconstitutional and that the trial court improperly (6)
allowed Michael to plead guilty, (7) denied the requests to
withdraw his guilty plea, and (8) denied his requests for
different counsel.

                               10
each inquiry” and his desire to terminate the proceeding. Id. at
*11.

       2.      The District Court’s dismissal of the habeas
               petition

        The District Court relied heavily on Dr. Wettstein’s
report. Id. at *16 (“Dr. Wettstein’s report and testimony afford
an ample foundation for a conclusion that Mr. Michael ‘has the
capacity to appreciate his position and make a rational choice
with respect to continuing or abandoning further
litigation . . . .’” (omission in original)); see also id. at *13–16
(discussing Dr. Wettstein’s report and conclusions). The Court
accepted Dr. Wettstein’s conclusions and went on to find that
Michael’s decisions were “knowing, rational and voluntary.” Id.
at *20. It explained that Michael’s decision to end his legal
proceedings had been “consistently repeated to this Court over
a number of years. It is thus not the product of uncontrollable
impulsivity.” Id.

         On March 10, 2004, the Court dismissed Michael’s
habeas petition and dismissed all of Michael’s counsel,
including the Defender Association and Cosgrove. Id. at *24.

       E.      Proceedings in our Court

      Following the dismissal of Michael’s habeas petition, the
Defender Association filed a notice of appeal from that

                                11
dismissal to our Court. Almost immediately began Michael’s
vacillation as to whether he wished to withdraw this appeal. His
first letter to our Court—on April 14, 2004—indicated that he
did not wish the appeal to proceed.

       The Commonwealth moved for dismissal. On May 4,
2004, our Court conditionally granted this motion to dismiss, but
the entry of the order was suspended for ten days to afford
Michael an opportunity to indicate his desire to proceed with
federal review of his case. Michael filed his second letter the
next day—May 5—indicating instead his desire to proceed with
this appeal and his wish to have new counsel appointed in his
appeal. We deferred ruling on the motion to dismiss and
scheduled oral argument for June 2004.

      Five days before the oral argument, we received a letter
from Dr. Wettstein. It read in part as follows:

               I have . . . been informed that Mr. Michael
       represented to the Court of Appeals that he no
       longer wishes to be executed, but wants the legal
       issues in his case presented with the assistance of
       new legal counsel. Based upon his recent change
       of mind, it is my psychiatric opinion that Mr.
       Michael’s mental state needs further exploration.
       His representation that he wishes to litigate his
       criminal conviction and death sentence should be
       evaluated.

                               12
       Following oral argument, we granted a Certificate of
Appealability (COA) on the question of whether the District
Court violated 21 U.S.C. § 848(q)(4)(B) in dismissing Michael’s
counsel and, if the District Court so erred, whether this error
was harmless.5 But we did not rule on the Commonwealth’s
motion to dismiss the appeal.

        On November 26, 2004, we received Michael’s third
letter; we construed it as a pro se motion to withdraw his appeal
and to dismiss Cosgrove as his counsel. On December 3, we
entered an order directing counsel for all parties to file a
response to the pro se motion. In response, Cosgrove indicated
on December 20 that Michael was “anything but steadfast in his
desire to terminate this appeal or my representation of him.”

      On January 5, 2005, in another attempt to ascertain
Michael’s position, the panel entered an order that warned
Michael as follows (emphasis in original):



5
 Section § 848(q)(4)(B) provides 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 . . . shall be entitled to the appointment
of one or more attorneys . . . .” 21 U.S.C. § 848(q)(4)(B),
repealed by Terrorist Death Penalty Enhancement Act of 2005,
Pub. L. No. 109-177, tit. II, subtit. B, § 222(c), 120 Stat. 192,
232 (2006).

                               13
               If you dismiss this appeal you will waive
       all further right to pursue this appeal. As a result
       you may also be denied any further review of your
       conviction and sentence by this or any other court.
       Additionally, in the future, you may be legally
       prohibited from filing a new habeas petition or
       other petition for review. In short, your dismissal
       of this appeal may terminate any further judicial
       review of your conviction and sentence.

       On February 22, 2005, Michael sent his fourth letter to
our Court. In it he indicated that he had read our January 5
order, and that he fully understood the consequences of his
waiver. Michael noted that he had consulted with counsel, and
that he nonetheless wished to withdraw his appeal.

       But the following day, after a meeting with Cosgrove, a
request was filed to defer any consideration of that letter for two
weeks so that Michael could further consult with counsel. We
deferred our decision to permit counsel time to meet once again
with Michael.

        On March 18, 2005, Cosgrove submitted a document,
entitled “Report of Counsel,” indicating that a litigation plan
was under development for Michael and asking us to proceed
with a resolution of the question presented in the COA. But 10
days later, Michael sent to us his fifth letter, indicating his desire
to dismiss his appeal. A sixth letter followed on May 23, 2005,

                                 14
reiterating Michael’s request to dismiss his appeal.

       On June 2, our Court issued the following order:

               Inasmuch as the petitioner is represented
       by counsel, the pro se letters to withdraw the
       appeal are denied. The District Court’s order
       entered March 10, 2004, is vacated to the extent
       that it dismissed Joseph M. Cosgrove, Esq., as
       counsel, granted Michael’s motion to dismiss his
       habeas corpus petition and vacated the stay of
       execution. The matter is remanded for further
       proceedings to determine whether habeas corpus
       relief is warranted. We express no opinion on
       such questions as whether Michael’s claims are
       exhausted, procedurally barred or meritorious. In
       the event that Michael files any further pro se
       motions to dismiss his petition, we urge the
       District Court to deny them summarily. See Smith
       v. Armontrout, 865 F.2d 1515 (8th Cir. 1988); St.
       Pierre v. Cowan, 217 F.3d 939, 949-950 (7th Cir.
       2000).6

       The Commonwealth filed a petition for panel rehearing
or rehearing en banc. We filed an order denying the petition on


6
  Judge Greenberg dissented, stating that he would have
dismissed the appeal.

                              15
July 7, 2005, and the mandate issued on July 8.7

        The panel recalled the mandate on August 10, 2005, and
granted panel rehearing, explaining that the June 2 order “le[ft]
the District Court with little guidance in this complicated case
as to our reasons for remanding the case for further proceedings
and, indeed, [did] not identify what error (if any) the District
Court committed in connection with the decision appealed.”
Michael v. Horn, 144 Fed. Appx. 260, 263 (3d Cir. 2005).8

        On September 19, 2005, Michael sent yet another letter
to our Court, stating the following: “After having recently
spoken to my attorney, Joseph Cosgrove, I am advising this
court that I wish for no further appeals regarding my sentence of
death.”

       Oral argument was scheduled for January 12, 2006. We



7
  Judge Greenberg again dissented from the denial of panel
rehearing. Michael v. Horn, No. 04-9002, 2005 WL 1606069,
at *1–8 (3d Cir. July 7, 2005) (Greenberg, J., dissenting).
8
   Judge Greenberg concurred to emphasize that he viewed
whatever had happened in the District Court respecting
Michael’s vacillations as “beyond the scope of our certificate of
appealability.” Michael, 144 Fed. Appx. at 264 (Greenberg, J.,
concurring). Judge Nygaard dissented because he believed that
the June 2 order was correct and, to the extent it was ambiguous,
could be supplemented. Id. at 264–65 (Nygaard, J., dissenting).

                               16
received a letter from Dr. Wettstein on January 4. He wrote,
among other things, the following:

             I understand that the Circuit Court has
      decided to reconsider the case of Hubert Michael,
      whom I previously evaluated for the District
      Court. The fact that Mr. Michael has again
      vacillated as to whether he should continue with
      his current appeal raises a concern as to whether
      any waiver of his appeal of his death sentence is
      valid and voluntary. My previous report to the
      District Court was premised in part on his
      apparent steadfastness which has now dissipated.
      Accordingly, before any decision is made
      regarding Mr. Michael’s waiver of his rights, a
      further evaluation is warranted.

       Then, on January 10, we received another letter from
Michael (dated January 9). It read, “I want the Court to know
that Joseph Cosgrove is both my friend and my lawyer, and I
want him to remain my lawyer for the duration of this matter.”

      Michael set a final letter on February 6. It read:

             This letter is to inform the court that I,
      Hubert L. Michael, Jr., wish for no further appeals
      regarding my sentence of death. Please do not
      misconstrue my last letter to this court where I

                              17
       stated that I would like Joseph Cosgrove to
       continue to represent me.

              Yes, I would like Joseph Cosgrove to
       continue to represent me for as long as I am
       before any court regarding any criminal
       matter. . . . However, I ask for no further appeals
       regarding my sentence of death.

       Dr. Wettstein also sent a letter, referring to Michael’s
February 6 letter, in which Dr. Wettstein reiterated that he
“continue[s] to believe that further evaluation . . . is warranted
before any decision is made regarding a waiver of Mr. Michael’s
current appeal.”

          II. Jurisdiction and Standard of Review

       The District Court had jurisdiction under 28 U.S.C.
§§ 2241 and 2254. As noted, our Court granted a COA on
whether the District Court violated 21 U.S.C. § 848(q)(4)(B) by
dismissing Michael’s counsel, so we have appellate jurisdiction
under 28 U.S.C. §§ 1291 and 2253.9


9
  A COA may issue only upon “a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). If a
“district court has rejected the constitutional claims on the
merits, the showing required to satisfy § 2253(c) is
straightforward: The petitioner must demonstrate that reasonable

                               18
                        III. Discussion

       A.     Can we dismiss Michael’s appeal?

        Before we can even consider the merits in this case, we
must deal with whether we should dismiss Michael’s appeal
altogether, for Michael has indicated several times that he does
not wish his appeal to proceed. To recap, we have letters to this
effect dated April 14 and November 26 in 2004; February 22,
March 28, May 23, and September 19 in 2005; and February 6
in 2006. On the other hand, Michael expressed a desire for his
appeal to proceed on May 5, 2004. Cosgrove reported in
December 2004 that Michael was “anything but steadfast in his
desire to terminate this appeal,” and Michael made no effort to
have our June 2005 order (sending the case back to the District
Court) reconsidered or appealed. And his letter of January 9,
2006, suggested that he wanted Cosgrove to “remain [his]
lawyer for the duration of this matter.”




jurists would find the district court’s assessment of the
constitutional claims debatable or wrong.” Slack v. McDaniel,
529 U.S. 473, 484 (2000). Where, as here, the District Court
has rejected the claims on procedural grounds, the prisoner must
establish “that jurists of reason would find it debatable whether
the petition states a valid claim of the denial of a constitutional
right and that jurists of reason would find it debatable whether
the district court was correct in its procedural ruling.” Id.

                                19
       Under Federal Rule of Appellate Procedure 42(b),
appeals “may be dismissed on the appellant’s motion on terms
agreed to by the parties or fixed by the court.” In United States
v. Hammer, we stated that we had “discretion to grant, or to
deny,” a defendant’s motion for dismissal. 226 F.3d 229, 234
(3d Cir. 2000).10

      So we can dismiss Michael’s appeal. But we must first
address whether Michael is competent to withdraw his appeal.

       B.     Is Michael competent to dismiss his appeal?

       The District Court found Michael competent in its 2004
opinion.    Normally, we would presume that Michael’s
competency continues to the present. See, e.g., Lonchar v.
Thomas, 58 F.3d 588, 589 (11th Cir. 1995) (per curiam); Smith
v. Armontrout (Smith VII), 865 F.2d 1502, 1505 (8th Cir. 1988)
(en banc). But the presumption of continuing competency does
not hold if “some substantial reason to the contrary appears.”
Smith VII, 865 F.2d at 1505.




10
  It is also well settled that a defendant has a right to waive
representation. See Faretta v. California, 422 U.S. 806, 834–36
(1975) (establishing the right of criminal defendants to proceed
without counsel when they elect to do so voluntarily and
intelligently); see also United States v. Stubbs, 281 F.3d 109,
116 (3d Cir. 2002).

                               20
       We believe that such a “substantial reason” appears here.
In the District Court proceedings, Dr. Wettstein’s role was
particularly important; his report and testimony were the bases
for the District Court’s competency finding. The Court
expressed high regard for Dr. Wettstein in its opinion, calling
him “exceptionally well-qualified,” and stating that “[t]here was
no evidence of possible bias on [his] part” and that “[t]here can
also be no dispute about [his] qualifications.” Michael, 2004
WL 438678, at *20. But Dr. Wettstein subsequently has thrice
taken the position that Michael should be reevaluated. As noted
above, after learning of Michael’s desire to pursue this appeal,
he wrote in June 2004 that “it is my psychiatric opinion that Mr.
Michael’s mental state needs further exploration.             His
representation that he wishes to litigate his criminal conviction
and death sentence should be evaluated.” In January 2006, Dr.
Wettstein wrote again, stating that, because of Michael’s
vacillations, a concern had been raised “as to whether any
waiver of his appeal of his death sentence is valid and voluntary.
My previous report to the District Court was premised in part on
his apparent steadfastness[,] which has now dissipated.” He
wrote a third time—in February 2006—to suggest “further
evaluation.” This second-guessing by the expert who was the
foundation of the District Court’s competency finding
constitutes a “substantial reason” not to presume continuing
competency here.

      The result in Smith VII is not to the contrary. There,
Smith had changed his mind about whether he wished to pursue

                               21
his habeas proceeding, apparently because he had gotten
married. Smith VII, 865 F.2d at 1504. The en banc Eighth
Circuit Court held that his change of position did not warrant
reopening proceedings for the purpose of holding an additional
competency hearing. Id. at 1506. The Court cited for support
the conspicuous absence of “any allegations of new psychiatric
examinations or new conduct by Smith, other than the facts of
his marriage and his changes of mind.” Id. at 1504. Although
affidavits from three psychiatrists supporting reassessment were
before the Court, these did not suffice either. None of these
psychiatrists had ever examined Smith, they had all used
language that was “carefully hedged and tentative,” and the
Court considered the dispositive issue to be “one of common
sense and good moral judgment” rather than “of medical
expertise.” Id. at 1505.

       But here Dr. Wettstein has examined Michael, and
thoroughly. Moreover, Michael’s previous steadfastness had
been a key basis for Dr. Wettstein’s conclusion of competence.
Dr. Wettstein has not now declared Michael incompetent, but he
has called for a new evaluation, in language that is neither
hedged nor tentative. The principal source for the District
Court’s competency finding has wavered based on Michael’s
post-evaluation conduct. We therefore do not apply the
presumption of continuing competency to the District Court’s
2004 finding.

       An appeal may not be withdrawn if the prisoner is

                              22
incompetent. See id. at 1506–07 (“If someone decides that he
or she prefers to acquiesce in a presumptively lawful judgment
of a court, this decision should be respected, unless that person’s
mental condition is so abnormal that it does not meet accepted
legal requirements.”); cf. Rees v. Peyton, 384 U.S. 312, 313–14
(1966) (per curiam) (requiring a prisoner’s competency to be
determined before deciding whether to allow a prisoner to
withdraw his certiorari petition); Hammer, 226 F.3d at 232 &
n.2 (noting that we were satisfied with Hammer’s competency
before granting his motion to dismiss his appeal). In Rees v.
Peyton, the Supreme Court faced the question of how it should
proceed when Rees, who had been convicted of murder and
sentenced to death, directed his counsel to withdraw his petition
for certiorari and to forgo any further federal habeas
proceedings. 384 U.S. 312. Rees’s counsel advised the Court
that “he could not conscientiously accede to these instructions”
without Rees’s receiving a psychiatric evaluation. Id. at 313.
Rees was examined, but experts did not agree on whether he
was incompetent. Id. The Court concluded that the District
Court had to make a determination regarding Rees’s competency
before it could make a decision about the certiorari petition.
Because his “mental competence [was] of prime importance” to
the question of whether withdrawal would be allowed, the
District Court was directed to “make a judicial determination as
to Rees’ mental competence and render a report on the matter to
[the Supreme Court].” Id. at 313–14. The Court further
directed the District Court to determine whether Rees “ha[d]
capacity to appreciate his position and make a rational choice

                                23
with respect to continuing or abandoning further litigation or on
the other hand whether he [was] suffering from a mental
disease, disorder, or defect which may substantially affect his
capacity.” Id. at 314.

        If we have any doubts about Michael’s competency, Rees
requires us to remand to the District Court for another
competency hearing before we dismiss his appeal. Dr.
Wettstein’s letters do give rise to doubts about Michael’s
competency; thus we remand to determine if Michael is
competent to make the decision to dismiss the appeal. Upon the
District Court’s making its determination, it should send us its
report on the issue setting forth its conclusion and the reasons
for it. If Michael is again found competent, and if he again
wishes to withdraw his appeal, then we must obey his wishes.
Cf. Jones v. Barnes, 463 U.S. 745, 751 (1983) (noting that an
“accused has the ultimate authority” to decide whether to “take
an appeal”).

                           *****

      We therefore remand this matter to the District Court for
another competency hearing. By doing so, we do not rule on
whether to dismiss this appeal or on the 21 U.S.C.
§ 848(q)(4)(B) issue.11 Michael has indicated that he wants


11
 As already mentioned, however, this section was repealed in
March 2006. Terrorist Death Penalty Enhancement Act of 2005,

                               24
Cosgrove as his attorney, and Cosgrove’s continued
representation is permissible on remand without an order from
the District Court.

        We note that, if Michael is again found competent, he
will have one last opportunity to have his appeal heard.
Accordingly, the District Court, if Michael is found competent,
should ask him the following question: “Do you wish the Court
of Appeals to dismiss the appeal taken in your name from the
order entered in this Court dismissing the habeas corpus petition
filed in your case?” If the answer is yes, we shall abide by that
answer and dismiss the appeal.

GREENBERG, Circuit Judge, concurring.

       I join in Judge Ambro’s opinion remanding this case to
the district court for the limited purposes of making another
determination regarding Michael’s competency before we
determine whether to dismiss this appeal and to ascertain if
Michael still wants us to dismiss the appeal. Nevertheless,
because I have reservations regarding what we are doing and
because in joining the opinion I am not being consistent with the
position I took twice earlier on this appeal, I write this
concurring opinion to explain why I am doing so.



Pub. L. No. 109-177, tit. II, subtit. B, § 222(c), 120 Stat. 192,
232 (2006).

                               25
       At the outset I want to point out that there are two
motions pending to dismiss the appeal: the respondents’ motion
and Michael’s constantly repeated pro se letter motion. I focus
on Michael’s motion because it is the key to this appeal
inasmuch as if he had wanted the appeal to be heard on the
merits it likely already would have been heard and decided. On
the other hand, unless constrained by Michael’s letter to us on
May 5, 2004, if he is competent to make the decision to ask us
to dismiss this appeal, I agree with Judge Ambro that we should
dismiss the appeal. I do not see how we could do otherwise
inasmuch, as I will explain below, Michael did not take this
appeal. See Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308,
3312 (1983) (“[T]he accused has the ultimate authority to make
[the] decision[ ] . . . whether to . . . take an appeal.”); see also
Faretta v. California, 422 U.S. 806, 834-36, 95 S.Ct. 2525,
2540-41 (1975).

        The letter of May 5, 2004, which could prevent us from
satisfying the obligation that we otherwise would have to
dismiss this appeal, asked us to hear his appeal on the merits.
But if we decline to dismiss this appeal by reason of Michael’s
May 5, 2004 letter, which is his only communication to this
court requesting that we entertain the appeal, we would have to
disregard Michael’s request on six occasions after May 5, 2004,
that we dismiss his appeal. In my view, regardless of what
might be appropriate if an appellant repeatedly changes his
position on whether his case should be heard on the merits, or
has not repeatedly stated that he wants the appeal dismissed, see

                                26
St. Pierre v. Cowan, 217 F.3d 939, 949-50 (7th Cir. 2000);
Smith v. Armontrout, 865 F.2d 1515, 1516 (8th Cir. 1988),
inasmuch as Michael has not taken a seesaw approach on his
request that we dismiss the appeal, neither St. Pierre nor Smith
is a precedent that could support a decision to deny his motion
to dismiss this appeal. Rather, it is clear that if Michael is
competent and we do not dismiss this appeal we would not be
following the Supreme Court’s direction in Jones that a court
must recognize that the accused decides whether to take an
appeal. Thus, even though a court of appeals ordinarily
exercises discretion in determining whether to dismiss an
appeal, see United States v. Hammer, 226 F.3d 229, 234 (3d Cir.
2000), in this case it seems clear to me that we do not have
discretion to deny Michael’s request or, if we do, that we would
abuse our discretion if we did not grant his request.

        It is highly significant, indeed remarkable, with respect
to the tenuous nature of these proceedings, that Michael did not
decide to take an appeal in this case in the first place and, in
fact, this case never should have reached this court. Thus, the
actual question before us is whether a defendant may cause an
appeal filed in his name without his authority by someone else
to be dismissed. In this case, the Capital Habeas Corpus Unit of
the Defender Association of Philadelphia, without Michael’s
authorization, filed the appeal from the district court’s order of
March 10, 2004, granting Michael’s motion to dismiss the
habeas corpus petition. Thus, this case truly is extraordinary
because the Capital Habeas Corpus Unit filed this unauthorized

                               27
appeal in the name of an appellant whom the district court had
found to be competent, from an order that the appellant had
sought and obtained and from which, quite naturally, he did not
want to appeal.

        Moreover, there is yet another extraordinary fact about
this appeal. The Capital Habeas Corpus Unit filed the appeal
even though the district court in its March 10, 2004 order
dismissing the petition for habeas corpus also dismissed the
Capital Habeas Corpus Unit and all its attorneys as counsel for
Michael, Michael v. Horn, No. 3:CV-96-1554, 2004 WL
438678, at *24 (M.D. Pa. Mar. 10, 2004), and neither we nor the
district court ever has stayed that order.12 Accordingly, the
Capital Habeas Corpus Unit acted without authority when it


12
  The Capital Habeas Corpus Unit filed its notice of appeal solely on
behalf of Michael and did not recite in the notice of appeal that it was
appealing on behalf of itself. In accordance with our practice the
clerk of this court entered an order on April 13, 2004, appointing the
Capital Habeas Corpus Unit “to continue to represent” Michael on
this appeal, thus demonstrating that the clerk did not know that the
district court had dismissed the Capital Habeas Corpus Unit as
counsel for Michael. It is understandable that the clerk did not know
that the district court had dismissed the Capital Habeas Corpus Unit
inasmuch as the Capital Habeas Corpus Unit filed the notice of
appeal. In any event the clerk made the appointment after the Capital
Habeas Corpus Unit filed the appeal so the clerk’s order could not
have given it the authority to file the notice of appeal. The
appointment did not last long for a panel of this court revoked it on
May 4, 2004.

                                  28
filed this appeal in an attempt to frustrate Michael’s wishes.
The reality of the situation could not be clearer. The Capital
Habeas Corpus Unit, rather than representing Michael, its
supposed client, was representing itself and advancing its own
agenda when it filed this appeal.

        Michael made the situation clear to this court at the outset
of this appeal when he wrote an undated letter to Chief Judge
Scirica that this court received on April 14, 2004, stating as
follows:

       My name is Hubert L. Michael, Jr. I recently had
       my death warrant signed by the governor of
       Pennsylvania. I am not appealing my sentence.

       I was recently able to get the attorneys, with the
       Defender Association of Philadelphia, dismissed
       from trying to represent me in any capacity. This
       was ordered by Judge Thomas Vanaskie of the
       U.S. District Court.

       I am now writing you because I know that the
       courts had not heard the last of these attorneys
       with the Capital Habeas Corpus Unit.

       These attorneys are not authorized by me, or the
       courts, to file any petitions, etc., on my behalf. I
       ask this court to not recognize any petitions filed

                                29
       by these attorneys or any other individual.

       I would also like to state for the record the I am
       one-hundred percent mentally competent. As I
       pled guilty to homicide, in the Courts of Common
       Pleas, my mental state is the only avenue for these
       attorneys to pursue.




       Let’s stop this legal merry-go-round by these attorneys.

As anyone can see, and as can be said with respect to all of
Michael’s correspondence to this court, the letter was
completely clear and coherent and was not the product of an
incompetent or mentally disturbed author. Quite to the contrary,
Michael demonstrated in his April 14, 2004 letter that he had an
excellent grasp of the situation confronting him as the Capital
Habeas Corpus Unit already had filed its unauthorized appeal.13
Accordingly, it is clear that from the very time that Capital
Habeas Corpus Unit filed this appeal, the proceedings in this

13
  I am uncertain when Michael found out that the Capital Habeas
Corpus Unit filed the appeal, and thus I am uncertain if he was aware
that it had filed the appeal before he wrote the April 14, 2004 letter.
I do know, however, from the certificate of service attached to the
notice of appeal that the attorney for the Capital Habeas Corpus Unit
served the notice of appeal solely on a Pennsylvania Assistant
Attorney General and that he did so by mail on April 8, 2004.

                                  30
court have been irregular as the appeal never should have been
taken.

        It is important to remember that the appeal followed
district court proceedings in which the court dismissed the
petition at Michael’s request only after the most meticulous
consideration of his competency. The court started its opinion
dismissing the petition by indicating that “[a]t issue is this
matter is whether death-sentenced Hubert Michael is competent
and has knowingly, rationally, and voluntarily chosen to waive
. . . a collateral challenge to his state court conviction and
sentence.” Michael v. Horn, No. 3:CV-96-1554, 2004 WL
438678, at *1 (M.D. Pa. Mar. 10, 2004). The court ended its
opinion explaining as follows:

             To determine whether Mr. Michael is
      competent to decide to dismiss counsel and this
      habeas corpus proceeding, this Court sought to
      provide ‘a constitutionally adequate fact-finding
      inquiry to make a reliable determination . . . .’
      Mata v. Johnson, 210 F.3d 324, 327 (5th Cir.
      2000). That process included (1) a current
      examination by a highly qualified expert [Dr.
      Robert Wettstein], (2) an opportunity for the
      parties to present pertinent evidence, and (3) an
      examination of Mr. Michael in open court
      concerning his decision to waive further
      proceedings. For purposes of this proceeding,

                             31
Mr. Michael was also appointed independent
counsel.

       Throughout these proceedings, Mr.
Michael has maintained the consistent position
that he does not seek federal court intervention
with respect to his conviction and sentence.
Having found, without hesitation, that Mr.
Michael is competent, and has made a knowing,
rational and voluntary decision, this Court has no
choice but to honor that decision.

        As did the death-sentenced inmate in
Comer [v. Stewart, 230 F. Supp. 2d 1016 (D.
Ariz. 2002)], Mr. Michael ‘has made a competent
and free choice, which “is merely and example of
doing what you want to do, embodies in the word
liberty.”’ 230 F. Supp. 2d at 1072. Also worth
reiterating here is the Eleventh Circuit’s
admonition in Sanchez-Velasco v. Sec’y of the
Dep’t of Corr., 287 F.3d 1015, 1033 (11th Cir.
2002), affirming a district court’s finding that a
defendant competently, knowingly and voluntarily
waived federal court collateral review:

       [W]e should not forget the values
       that motivated the Supreme Court’s
       Whitmore [v. Arkansas, 495 U.S.

                       32
       149, 110 S.Ct. 1717, 109 L. Ed. 2d
       135 (1990)] decision and what is
       really at stake in this kind of case.
       These cases are about the right of
       self-determination and freedom to
       m a k e f u n d a m e n t a l c h o ic e s
       affecting one’s life . . . . [A] death
       row inmate . . . does not have many
       choices left. One choice the law
       does give him is whether to fight
       the death sentence he is under or
       accede to it. Sanchez-Velasco, who
       is mentally competent to make that
       choice, has decided not to contest
       his death sentence any further. He
       has the right to make that choice . .
       . .    He has never asked [the
       attorneys] to represent him or
       consented to have them do so. He
       has directed them to leave his case
       alone, and the law will enforce that
       directive.

Likewise, this Court has no choice but to enforce
Mr. Michael’s knowing, rational and voluntary
directive that legal challenges to his conviction
and sentence cease.



                          33
Id. at *23.

        In considering this appeal we also should keep in mind
that Michael is in an unusual position with respect to his
attorney on the appeal, Joseph M. Cosgrove. Michael wants
Cosgrove to represent him, and thus he does not view Cosgrove
in the negative way he views the Capital Habeas Corpus Unit.
Yet as I explained in my dissent from the order denying
rehearing on July 7, 2005, “Cosgrove and Michael are working
at cross-purposes as it is clear that Cosgrove does not want us to
dismiss Michael’s appeal but Michael does.” Michael v. Horn,
No. 04-9002, 2005 U.S. App. LEXIS 13463, at *15 (3d Cir. July
7, 2005).

        Why then do we not dismiss this appeal at this time as
Michael repeatedly has asked us to do? After all, it might be
thought that if he was competent to dismiss the petition for
habeas corpus surely he must be competent to dismiss the
appeal. The reason is that Dr. Robert Wettstein, on whom the
district court relied in finding Michael competent, since has
expressed some words of caution regarding Michael’s
competency. Five days before we heard a preliminary oral
argument in this case on June 22, 2004, and thus before we
issued our limited certificate of appealability in this case dealing
only with the discharge of his attorneys in the district court’s
March 10, 2004 order, we received a letter that had been signed
by Dr. Wettstein indicating:



                                34
       I have . . . been informed that Mr. Michael
       represented to the Court of Appeals that he no
       longer wishes to be executed, but wants the legal
       issues in his case presented with the assistance of
       new legal counsel. Based upon his recent change
       of mind, it is my psychiatric opinion that Mr.
       Michael’s mental state needs further exploration.
       His representation that he wishes to litigate his
       criminal conviction and death sentence should be
       evaluated.

Later Dr. Wettstein wrote a letter dated January 4, 2006,
explaining that “a further evaluation is warranted” because
Michael had “again vacillated” with respect to continuing his
appeal. At that time Dr. Wettstein said that he would be willing
to make the evaluation. He reiterated that position in another
letter about a month later. It appears that he wrote these letters
as a result of contact between him and Cosgrove.

        Regardless of the etymology of these letters, obviously
they should have caused us to pause before we dismissed the
appeal, and they did have that effect. Yet we should consider
the letters within the context of the actual history of this appeal.
 As Judge Ambro points out in his opinion, Michael wrote this
court on April 14, 2004; November 26, 2004; February 22,
2005; March 28, 2005; May 23, 2005; September 19, 2005; and
February 6, 2006, indicating that he does not want the appeal to
proceed. The only time he took a contrary position was on May

                                35
5, 2004, when he requested that the appeal proceed.

        It is true, as Judge Ambro also points out, that Michael
“made no effort to have our June [2, 2005] order (sending the
case back to the District Court) reconsidered or appealed,” but
neither Dr. Wettstein nor anyone else can draw any inference
from that inaction. After all, could anyone really expect a
litigant represented by counsel to file a pro se petition for
rehearing or a petition for certiorari? 14 Moreover, when the
respondents petitioned for rehearing of the June 2, 2005 order,
Michael did not oppose that petition and ask us to adhere to the
June 2, 2005 order. If his failure to seek a reversal of the June
2, 2005 order can give rise to an inference that he did not object
to the remand, then his failure to object to the respondents’
petition for rehearing or to our August 10, 2005 order granting
rehearing of the June 2, 2005 order and recalling the mandate
issued following the June 2, 2005 order would require that we
draw the reverse inference that he did not want the matter
remanded as provided in the June 2, 2005 order.

       It is also evident that the fact that he wants Cosgrove to
be his attorney does not mean that Michael wants his appeal to
be heard and cannot in any way suggest that he is vacillating
with respect to that question. Michael clearly wants Cosgrove
as his attorney at the same time that he wants his appeal to be


14
 The only ways Michael could have challenged the June 2, 2005
order was to petition for a rehearing or for certiorari.

                               36
dismissed, and there is no reason why this representation should
not be permitted inasmuch as Cosgrove has agreed to be his
attorney. Though I can understand why it might seem surprising
that Michael still wants Cosgrove as his attorney inasmuch as
they have different attitudes about whether we should dismiss
the appeal, I also understand why he would want Cosgrove as
his attorney as they frequently have conferred, and Cosgrove has
visited him quite often. Plainly they have had a significant
relationship. Indeed, in a letter to this court dated January 9,
2006, Michael described Cosgrove as his lawyer and “friend.”

         Now that I have given the background of the case as
germane to the remand we are ordering, I will explain why I
have reservations about the remand but nevertheless agree to
it.15 I first will explain why I have reservations focusing on Dr.
Wettstein’s letters and then explain my more general
reservations regarding a remand. My first problem with Dr.
Wettstein’s letters is that I really do not know if he had been
given the full picture before he wrote them. After all, as he
explained in his June 2004 letter, he was basing his opinion on
what he had been “informed,” so that in assessing his letters it
would be significant to know what information he had when he
wrote them. In this regard I want to point out that in Dr.
Wettstein’s January 4, 2006 letter he said that a further


15
  Actually my opinion already makes it obvious that I have
reservations about the remand so my explanation of the reasons for
the reservations at this point merely expands on what I have said.

                               37
evaluation is warranted because Michael had “again vacillated.”
Yet the factual basis for the statement is questionable because
even if we treat Michael’s February 5, 2005 letter asking for two
weeks to reconsider his decision to have this appeal dismissed,
to which Judge Ambro refers in his opinion, as reflecting
vacillation, on March 28, 2005, he made it clear that he wanted
the appeal to be dismissed and he has adhered to that position
ever since. Thus, from March 28, 2005, until January 4, 2006,
Michel simply had not vacillated.

       But I do not want to protract these proceedings any
longer by suggesting that we remand the case for the district
court to ascertain what information Dr. Wettstein had when he
wrote his letters as a preliminary step before we determine
whether we should remand the case for a further evaluation of
Michael’s competency. I reject this idea of a preliminary
remand because a study of the record in this case shows that
actually Michael has been quite consistent in his wish that we
dismiss this appeal. Moreover, Dr. Wettstein has not repudiated
the conclusion he stated to the district court that Michael at that
time was competent to make the decision to dismiss the habeas
corpus proceedings. He has suggested only that Michael be
evaluated further. It seems clear to me that Michael has been
consistent because Michael’s only real inconsistency with
respect to his wish to dismiss this appeal was on May 5, 2004,
when he asked that we hear the case. It is true that, as Judge
Ambro has explained, and I already have indicated, on February
5, 2005, Michael asked for two weeks more to consider whether

                                38
he wanted the appeal dismissed following which on March 28,
2005, he said he wanted it dismissed. It would be a stretch, but
I suppose that a person asking for time to think over a decision
could be characterized as vacillating.

        In considering whether Michael’s hesitation, which at the
latest ended 16 months ago, can be regarded as indicating that
he has been vacillating to such a degree as to reflect on his
competency, we should remember what every judge and attorney
knows, i.e., litigation whether criminal or civil does not go
forward in a straight line, and litigants whose competency
cannot be questioned and, in fact, is not questioned change their
minds regarding critical issues during the course of litigation.
I will give two examples known to everyone familiar with
judicial proceedings.

        Federal Rule of Criminal Procedure 11(b) sets forth a
detailed list of requirements that a court must follow before
accepting a plea of guilty, and state courts have similar
procedures. One might suppose that when courts follow those
rules, as they almost always do, and the defendant pleads guilty,
that he quite conclusively has waived his right to a trial at least
with respect to whether he is guilty of the offense for which he
has been charged.16 Yet there is an extensive body of case law


16
  Sometimes a separate proceeding is required for determination of
the sentence to be imposed. In fact, that was the situation in
Michael’s prosecution.

                                39
dealing with motions by defendants to withdraw pleas of guilty.
See, e.g., United States v. Jones, 336 F.3d 245 (3d Cir. 2003).
Obviously a defendant making such a motion has changed his
mind and can be said to have vacillated but can anyone believe
that merely because he does so that the court should order that
a competency evaluation be made of him?

        It often correctly is said that the parties resolve most civil
litigation through settlement agreements. But, as judges and
attorneys know, a settlement does not always resolve the
controversy at hand. That circumstance has give rise to much
litigation dealing with enforcement of settlements, frequently
because parties have changed their minds and reject settlements
they earlier approved. See, e.g., Commc’n Workers of Am. v.
N.J. Dep’t of Personnel, 41 Fed. Appx. 554 (3d Cir. 2002) (per
curiam) (“The National . . . notified the district court that the
National no longer consented to the proposed settlement.”).
Should we conduct competency evaluations of civil litigants
who reject settlements to which they have agreed?

        In the context of what is involved in this case, I regard
Michael’s hesitation about this appeal going forward as not
reflecting on his competency at all. For him this case has not
involved money or even liberty. Rather, this litigation involves
the ultimate question of life or death. If faced with his choice,
the most competent and stable person might hesitate or vacillate
before dismissing an appeal in an action that, if continued,
surely would delay the execution of a death sentence, as it

                                 40
already has with respect to Michael, or, even if the chance of
success may seem remote, actually preclude it.17 Moreover, as
I have explained, his actual degree of vacillation has been quite
minimal. Thus, inasmuch as Dr. Wettstein has predicated his
call for Michael’s further evaluation on Michael’s vacillation I
have serious questions about the efficacy of Dr. Wettstein’s
suggestion. Accordingly, I have two problems with Dr.
Wettstein’s letters. First, I do not know that they reflect what
actually happened with respect to Michael’s vacillation.
Second, I doubt that Michael’s vacillation can be regarded as so
significant with respect to his competency that it casts doubt on
the prior unassailable determination of the district court that he
was competent to decide whether this litigation should go
forward.

       As I said earlier, in addition to questioning whether
Michael’s minimal vacillation calls for his further evaluation,
there are two more general reasons not specifically dealing with
Michael’s competency why I am agreeing with reluctance to a
remand for a further evaluation. To start with there is no doubt
about Michael’s guilt. He did, after all, plead guilty. While I
am aware that a defendant sometimes will plead guilty to a
crime he has not committed, that did not happen here. After
Michael murdered Trista Eng, he concealed her body in a


17
 Michael was aware of similar possibilities if he kept the district
court proceedings going, but he elected not to do so. Michael v.
Horn, 2004 WL 438678, at *11.

                                41
wooded area. The body was not found until he confessed to his
brother more than a month later that he murdered her and told
him where he had concealed the body. His brother and other
family members searched for and found the body and only then
notified the Pennsylvania state police about the situation.
Clearly, only the murderer could have known where the body
could be found. Thus, this is not a case in which there is even
a remote possibility that an innocent defendant has been
convicted.

        The second general reason not specifically related to
Michael’s competency why I have reservations regarding the
remand concerns Trista Eng herself as well as her family. I
realize that it sometimes seems that the criminal law is more
concerned with defendants than victims. I regret this fact, but
it is inevitable as a prosecution and trial focus on what the
defendant did and the procedures that must be followed with
respect to his plea and, depending on his plea, to his trial. Yet
this imbalance has caused concern among legislative bodies and
it is good to be able to note that they have taken steps to redress
the imbalance such as by passing victims’ rights statutes.

       More than 13 years have passed since Michael murdered
16-year old Trista Eng who was a total stranger to him. He
encountered her when she was on her way to work at a Hardees
restaurant where she had a summer job. In a wanton and
senseless act, he murdered her because he faced rape charges
involving another woman that he felt were not justified. He

                                42
pleaded guilty to murdering Trista Eng, and the Pennsylvania
Supreme Court upheld his conviction on a mandatory appeal,
Commonwealth v. Michael, 674 A.2d 1044 (Pa. 1996), and later
affirmed the trial court’s denial of post-conviction relief.
Commonwealth v. Michael, 755 A.2d 1274 (Pa. 2000). Then,
at Michael’s own request at a time that he undoubtedly was
competent, the district court dismissed the habeas corpus
proceedings started in his name. There can be no doubt that
Michael was competent when he asked the district court to
dismiss the habeas corpus proceedings. Indeed, when we issued
the certificate of appealability in this case we did not even
mention a competency question, and thus even if we did not
dismiss the appeal we could not review the district court’s
determination that Michael was competent to cause the habeas
corpus proceedings to be dismissed.

       I cannot help but think that the proceedings in this case
must be torturing the family of Trista Eng. Her family knows
what everyone who is familiar with this case knows, i.e.,
Michael murdered her, and though he has been sentenced to die
and the Pennsylvania courts have upheld his conviction and
sentence both on direct appeal and on a collateral review, the
sentence has not been carried out. Though no one can say for
sure how Trista Eng’s life would have unfolded, I can say that
if Michael had not murdered her she would now be a 29-year old
woman and would have had an opportunity to live her life and
to marry and have her own family. Michael deprived her of that
opportunity.

                              43
        Indeed, I cannot help but wonder whether Michael has
sought to terminate these proceedings because he recognizes the
harm that he has done to Trista Eng and her family and has been
trying to terminate the judicial proceedings knowing that if he
does so he will make amends so far as he now can do. I say this
because surely he must have felt remorse after he murdered
Trista Eng for I can discern no other reason why he confessed to
his brother that he had murdered her. Thus, it seems that,
notwithstanding the crime that Michael committed, he plainly
differs from the remorseless defendants that courts sometimes
see who exalt in what they have done.

       I ask this question: Does not the court system owe
anything to Trista Eng and her family and, so far as it can do so,
while acting consistently with the law, should it not bring her
family’s torture to an end, particularly when the person
responsible for her murder wants it ended? I know that with
respect to criminal punishments death is different. See Furman
v. Georgia, 408 U.S. 238, 306-07, 92 S.Ct. 2726, 2760 (1972)
(Stewart, J., concurring). But cannot the same thing be said with
respect to the effect of the crime of murder on the victim and her
family as compared to all other crimes? Is our law so one sided
that at a trial and on appeals only the defendant is of any
importance?

       Anyone who reads my opinion might wonder why,
instead of joining in Judge Ambro’s opinion, I am not dissenting
and voting to dismiss this appeal. Moreover, in this regard a

                               44
reader could point to my dissent from the June 2, 2005 order
remanding the case in which I said that I would dismiss the
appeal and my dissent from the order denying the petition
seeking a rehearing of the June 2, 2005 order in Michael v.
Horn, 2005 U.S. App. LEXIS 13463, at *26, in which I
indicated that I believed that “the panel should grant rehearing,
vacate the June 2, 2005 order, and dismiss the appeal.” Indeed,
a reader reasonably could assert that by joining in Judge
Ambro’s opinion I am vacillating.

        But in the end there are three reasons why I am not
dissenting and instead am joining in Judge Ambro’s opinion.
First, of course, I believe that regardless of the considerations I
have set forth, Judge Ambro’s opinion is correct and I cannot
allow my personal view of a case to trump my obligation to
follow the law.18 Second, at the time of the June 2, 2005 order
remanding the case and at the time of the denial of the petition
seeking rehearing of that order the situation was different than
it is now because the panel was remanding the matter to the
district court “for further proceedings to determine whether
habeas corpus relief is warranted,” thus opening up the entire
case in the district court in complete disregard of the limitations
in our certificate of appealability, and the panel was adhering to


18
 If I had written the majority opinion, in some respects it would have
differed from what Judge Ambro wrote. But it is always true that
even though judges agree on the appropriate outcome of a case, they
would not write identical opinions.

                                 45
that position when denying rehearing. I thought that these
orders were not justified. Now the panel is taking what seems
to me to be the more reasonable and nuanced position that
Michael be reevaluated. Thus, the choice I face now is different
from that which I faced a year ago.

        Third, I have reconsidered the district court’s opinion in
this matter in the light of Judge Ambro’s opinion and have taken
particular note that the district court indicated that in considering
Michael’s competency its “process included . . . a current
examination by a highly qualified expert,” i.e., Dr. Wettstein.
Indeed, the district court listed Dr. Wettstein’s examination as
the first step in its three-step competency inquiry. Now that that
highly qualified expert believes there should be a further
evaluation, whatever my reservations, I think that it is
appropriate to accede to his suggestion.

        In closing I want to comment on the limited scope of our
remand. We are remanding the case for the district court to
determine if Michael is competent to dismiss this appeal. If he
is and he adheres to his decision to dismiss the appeal, we will
do so and the appeal will be over. In that event it will not matter
whether the determinations that the district court made leading
to its order of March 10, 2004, dismissing his habeas corpus
petition were correct or incorrect as we cannot review them.

      On the other hand, if Michael is not competent to dismiss
the appeal or if he is competent to do so but asks us to

                                 46
adjudicate it on the merits we will not dismiss the appeal.
Rather, we will decide the appeal. In that event we will have
jurisdiction to answer only the single two-part question on
which we granted a certificate of appealability on June 30, 2004,
“whether the District Court violated 21 U.S.C. § 848(q)(4)(B) by
dismissing counsel for Hubert Michael and, if the District Court
so erred, whether the error was harmless.” See Miller v.
Dragovich, 311 F.3d 574, 577 (3d Cir. 2002).

        I make the foregoing point so that it should be clear that
the proceedings on the remand need not be protracted. The
district court on the remand will not be dealing with a quasi-
motion for reconsideration of its March 10, 2004 decision and
order and will not be reexamining its original determinations
including, in particular, its determination that Michael was
competent to cause the habeas corpus proceeding to be
dismissed and that he had made “a knowing, rational and
voluntary decision” to cause it to be dismissed which the court
was obliged to honor. It will be dealing with his competency
now to dismiss this appeal. Thus, any reference to Michael’s
competency during the period this case was pending in the
district court or to the evidence on that issue can be germane on
the remand only insofar as it may have bearing on his
competency now.

      For all the reasons that I have stated and notwithstanding
my reservations, I join in Judge Ambro’s opinion ordering a
remand in this case for the limited purposes that the district

                               47
court determine Michael’s competency to dismiss the appeal and
for the district court to ask Michael whether he still wants us to
dismiss the appeal.




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