                                                              United States Court of Appeals
                                                                       Fifth Circuit
                                                                      F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                                                                      March 23, 2005
                         FOR THE FIFTH CIRCUIT
                         _____________________                  Charles R. Fulbruge III
                                                                        Clerk
                              No. 05-70012
                         _____________________

STEVEN KENNETH STALEY,

                                                    Petitioner - Appellee,

                                    versus

DOUG DRETKE, DIRECTOR, TEXAS
DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION,

                                          Respondent - Appellant.
_________________________________________________________________

           Appeal from the United States District Court
                for the Northern District of Texas
                       USDC No. 4:05-CV-185
_________________________________________________________________

Before JOLLY, HIGGINBOTHAM, and DAVIS, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:*

     In April 1991, Steven Kenneth Staley was convicted of capital

murder and sentenced to death for the murder of Robert Read during

an armed robbery in October 1989.            The Texas Court of Criminal

Appeals affirmed his conviction and death sentence on direct appeal

in April 1994.    Staley’s application for state habeas relief was

denied in September 1998.          In May 2000, he filed a petition for

federal habeas relief.        In September 2003, the district court

denied relief    on   three   of    the   claims,   and   dismissed    without


     *
      Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
prejudice,        as    premature,    Staley’s     claim   that       he    was     then

incompetent to be executed.

     On December 14, 2004, the state trial court entered an order

scheduling Staley’s execution for March 23, 2005.                      Anticipating

that Staley would probably claim that he was incompetent to be

executed, the State filed a request for an expert to examine

Staley, and the trial court granted the motion, appointing Dr.

Price.      Staley’s counsel persuaded the trial court to informally

authorize the appointment of an expert, Dr. Cunningham, without

first having to make the threshold showing of incompetency required

under     Article       46.05.       Staley’s    counsel      also    obtained       the

cooperation of the district attorney and the trial court in having

Staley brought from death row to Tarrant County to facilitate

access to him by counsel and mental health experts.                               Staley

arrived in Tarrant County during the last week of February 2005.

     The State’s expert attempted to examine Staley on February 28,

2005,     but    Staley    initially    refused.       After    speaking      to     his

attorney, he relented.            Staley’s expert, Dr. Cunningham, examined

him on March 16, 2005.            On March 17, 2005, less than a week before

his scheduled execution, Staley filed a motion in the state trial

court seeking an oral hearing to determine his competency to be

executed        under   Article    46.05   of   the   Texas    Code    of    Criminal

Procedure.**

     **
          Article 46.05 provides, in pertinent part:


                                           2
     The state court received evidence in the form of affidavits

and reports from the parties’ mental health experts.           The State’s

expert, Dr. Price, examined Staley on February 28, 2005, and

concluded that Staley understands that he is to be executed, that

his execution is imminent, and the reason why he is to be executed.

     The defense expert, Dr. Cunningham, interviewed Staley for

three hours on March 16, 2005.   He testified in his affidavit that,

in his opinion, Staley knows that he is to be executed, that his

execution is imminent, and the reason for his execution.           However,

he stated that it was “probable” that Staley will become more

psychotic in the week remaining before his execution and that there

“can thus be no assurance that the awareness he displayed regarding


               (a) A person who is incompetent to be
          executed may not be executed.

               ....

               (d) On receipt of a motion filed under
          this article, the trial court shall determine
          whether the defendant has raised a substantial
          doubt of the defendant’s competency to be
          executed on the basis of:

               (1) the motion, any attached documents,
          and any responsive pleadings ....

               ....

               (h)   A defendant is incompetent to be
          executed if the defendant does not understand:

               (1) that he or she is to be executed and
          that the execution is imminent; and

               (2)    the   reason    he   or   she   is   being
          executed.

                                  3
his execution on 3-16-05 will be present at the time of his

execution.”

      After considering the affidavits and reports submitted by the

parties’ mental health experts, the state trial court found that

the evidence showed that Staley understands that he is going to be

executed, that his execution is imminent, and that he knows the

reason for his execution.        The trial court concluded that Staley

had failed to make a substantial showing that he was incompetent.

The trial court’s order was entered on March 17, the same day that

Staley filed his motion for a competency hearing.

      That same day, Staley filed in the district court a motion for

a stay of execution and for the appointment of counsel to prepare

a habeas petition seeking relief on the ground that he is presently

incompetent to be executed.       On the afternoon of March 22, Staley

filed a supplement to his motion for stay of execution, in which he

argued that he is entitled to a stay of execution pending the

decision in another case in which the district court granted a

certificate of appealability on the question whether a condemned

inmate must have a rational, as well as factual, understanding of

the reason for his execution.      Panetti v. Dretke, No. A-04-CA-042-

SS (W.D. Tex. Sept. 29, 2004) (unpublished).

      Later in the afternoon of March 22, the district court entered

an order granting Staley’s motions for stay of execution and for

appointment of counsel.    Citing McFarland v. Scott, 512 U.S. 849,

858   (1994),   the   district    court   found   that   Staley   had   not

                                     4
“inexcusably ignored his procedural opportunities for review of his

mental competency, or flouted available processes”, because the

state court did not deny Staley’s request for a competency hearing

until March 17, 2005, the same day that Staley filed his motions in

federal district court.       (The district court failed to note,

however, that Staley did not request a competency hearing in the

state court until March 17, 2005.)    Therefore, the district court

concluded that the requested stay was necessary for appointed

counsel to meaningfully research and prepare a federal habeas

petition presenting the claim that Staley is presently incompetent

to be executed.

     Early this morning, March 23, the State appealed and filed a

motion to vacate the stay of execution.        Staley has filed a

response in opposition to the State’s motion, arguing that he is

entitled to the stay under McFarland.

     The only matter before this court is the appeal of the stay.

The district court granted the stay in order to give Staley’s

counsel time to meaningfully research and prepare a federal habeas

petition presenting his claim that he is presently incompetent to

be executed.   Thus, the question presented to us is whether the

district court abused its discretion by granting the stay.       See

McFarland, 512 U.S. at 858.   We find that the district court abused

its discretion by granting the stay for the following reasons:

     1.   As Staley’s counsel explicitly stated in paragraph 5 of

his motion for stay of execution filed in the district court, the

                                  5
only claim sought to be presented in a federal habeas petition is

the claim that Staley is presently incompetent to be executed.

Therefore, all that is before us is also all that we are told will

be forthcoming in a habeas petition.

     2. Staley’s court-appointed counsel has appeared in this case

since 1999.      As he sets out in his response in opposition to the

State’s motion to vacate the stay, he has been actively involved in

this immediate proceeding since the state court scheduled the

execution date on December 14, 2004.

     3.      Counsel has diligently pursued the question of whether

Staley is competent to be executed, including reviewing over 1,500

pages   of    prison   medical    records,     reviewing   and   updating   the

documentary evidence in support of the claim, persuading the state

trial court to informally authorize the appointment of experts,

without first having to make a threshold showing of incompetency

under Article 46.05, conferring with the experts concerning their

evaluations of Staley, filing a motion in state court for a

competency hearing, and filing a motion for stay of execution in

federal court the same day that the state trial court denied the

Article 46.05      motion.       In   short,   counsel   has   performed    with

diligence and thoroughness in examining and presenting the only

claim at issue -- the competency of Staley to be executed.

     4.      In support of the motion for stay of execution filed in

the district court, counsel asserted that a stay was warranted

because it was impossible for the mental health experts appointed

                                        6
by the court to evaluate Staley to complete their examinations and

prepare their reports before the scheduled execution; and it was

impossible for counsel for both sides to adequately prepare for a

competency hearing in state court, including subpoenaing witnesses,

consulting with experts, preparing briefs, and presenting a case to

a state district judge in a final competency hearing contemplated

by Article 46.05.       The experts have completed their examinations

and reports, and the state court has determined that Staley failed

to make a threshold showing of incompetency sufficient to require

a hearing under Article 46.05.             Thus, these grounds do not support

the issuance of a stay of execution.

     5.      In a supplemental motion for stay of execution filed in

the district court, counsel argued that a stay should be granted

until this Court decides in Panetti v. Dretke the question whether

a death row inmate must have a rational, as well as a factual,

understanding of the reason for his execution.                  The affidavits of

the mental health experts who have examined Staley indicate that

there   is   no   basis    for      a    claim     that   he    lacks    a   rational

understanding of the reason for his execution.                        Therefore, the

pendency of Panetti provides no basis for a stay of execution in

this case.

     6.   It should be noted that the experts in this case, for the

State and for Staley, respectively, have arrived at expressed

opinions,    as   a   result   of       their    examinations    of     Staley,   that

demonstrate as a matter of law that he is competent to be executed

                                           7
under the standard announced in Ford v. Wainwright, 477 U.S. 399

(1986):   he understands that he is to be executed, that his

execution is imminent, and the reason for his execution.

     For the foregoing reasons, the motion to vacate the stay of

execution is GRANTED, and the order staying the execution in this

case is hereby VACATED.




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