                                                                                                                           Opinions of the United
1995 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-1-1995

In Re: Keith Zettlemoyer
Precedential or Non-Precedential:

Docket 95-9000




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Recommended Citation
"In Re: Keith Zettlemoyer" (1995). 1995 Decisions. Paper 116.
http://digitalcommons.law.villanova.edu/thirdcircuit_1995/116


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      UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT



                               No. 95-9000



                      IN RE: KEITH ZETTLEMOYER

                  ALDONA DeVETSCO; THOMAS SCHMIDT;
                       and KEITH ZETTLEMOYER,
                                     Petitioners/Appellants
                                 v.

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



         On Appeal from the United States District Court
             For the Middle District of Pennsylvania
                     (D.C. No. 95-cv-00660)



                         Argued May 1, 1995

                   Before: SLOVITER, Chief Judge,
                GREENBERG and NYGAARD, Circuit Judges

                    (Opinion Filed: May 1, 1995)



Billy Nolas    (Argued)
                 Attorney for Appellants

Robert P. Graci (Argued)
Chief Deputy Attorney General
Harrisburgh, PA
                Attorney for Appellees



                        OPINION OF THE COURT
PER CURIAM.

           Petitioners Aldonda DeVetsco and Thomas Schmidt appeal

from the district court's orders dismissing their petition for a

writ of habeas corpus brought on behalf of Keith Zettlemoyer and

denying their request for a stay of Zettlemoyer's execution on

the ground that they have no standing.   For the reasons set forth

below, we will affirm the dismissal order of the district court

and deny the petitioners' motion for a stay of execution filed in

this court.

                                I.

           On October 13, 1980, Keith Zettlemoyer was arrested and

charged with murder for the shooting death of Charles DeVetsco.

On April 24, 1981, after a jury trial in the Court of Common

Pleas of Dauphin County, Zettlemoyer was convicted of first

degree murder.   On that same date, after a brief sentencing

hearing, the jury determined that the death penalty should be

imposed.

           After Zettlemoyer's post-verdict motions were denied,

Zettlemoyer filed a direct appeal to the Supreme Court of

Pennsylvania, which affirmed the conviction and sentence.      See

Commonwealth v. Zettlemoyer, 454 A.2d 937 (Pa. 1982), cert.

denied, 461 U.S. 970 (1983).   Zettlemoyer then filed a petition

under Pennsylvania's Post-Conviction Hearing Act ("PCHA"), 42 Pa.
Cons. Stat. Ann. §§ 9541 et seq.1   The PCHA action was denied

without a hearing, see Commonwealth v. Zettlemoyer, 106 Dauphin

County Reports 215 (1985), and that denial was affirmed on

appeal.    Commonwealth v. Zettlemoyer, 515 A.2d 620 (Pa. Super.

Ct. 1986), allocatur denied, 518 A.2d 807 (Pa. 1986), cert.

denied, 481 U.S. 1007 (1987).

           On July 17, 1987, Zettlemoyer filed a petition for a

writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the United

States District Court for the Middle District of Pennsylvania.

On May 31, 1988, the district court dismissed the petition.      The

dismissal was affirmed by this court in a split opinion.     See

Zettlemoyer v. Fulcomer, 923 F.2d 284 (3d Cir.), cert. denied,

502 U.S. 902 (1991).2

           On February 28, 1995, the governor of Pennsylvania

signed a death warrant scheduling Zettlemoyer's execution for the

week of April 30, 1995.   The execution is currently set for May

2, 1995.

           On April 27, 1995, petitioners Aldonda DeVetsco, the

mother of the individual murdered by Zettlemoyer, and Thomas

Schmidt, who was Zettlemoyer's attorney in the PCHA proceedings

1
 . The PCHA was subsequently repealed and replaced with the Post
Conviction Relief Act ("PCRA"), 42 Pa. Cons. Stat. Ann. §§ 9541
et seq.
2
 . By happenstance, the same three judges are on this panel.
They are not divided on the only issue before us, petitioners'
standing to file these proceedings.
and in Zettlemoyer's prior federal habeas action, filed a second

petition for habeas corpus on Zettlemoyer's behalf in the United

States District Court for the Middle District of Pennsylvania.3

The petition raises a variety of claims, including (1) that

Zettlemoyer is mentally ill and incompetent and his execution

would therefore violate the Eighth Amendment, (2) that

Zettlemoyer's trial counsel was inadequate, (3) that newly

discovered evidence suggests that the imposition of the death

penalty in this case was unconstitutional under Simmons v. South

Carolina, 114 S. Ct. 2187 (1994), and (4) that the method of

execution (lethal injection) employed by the state of

Pennsylvania constitutes cruel and unusual punishment under the

Eighth Amendment.   In conjunction with the filing of the

petition, petitioners filed an application to stay the execution.

          On April 29, 1995, after a two-day evidentiary hearing,

the district court concluded that DeVetsco and Schmidt lacked

standing to pursue the petition.   It therefore dismissed the

petition and denied the petitioners' application for the stay.

The district court, however, granted the petitioners' application

for a certificate of probable cause and this appeal followed.     In

connection with the appeal, petitioners have filed with this


3
 . The petition also names Zettlemoyer as a petitioner.
Zettlemoyer, however, did not participate in the preparation of
the petition and he has not sanctioned the filing of the
petition.
court a "Motion for Stay of Execution and Request for a

Meaningful Opportunity for Briefing and for Oral Argument."

                               II.

          In considering the petitioners' request for a stay, and

before proceeding to the merits of the petition, we must first

address the threshold question of petitioners' standing to pursue

this habeas petition and request for a stay.    Article III of the

United States Constitution grants the federal courts jurisdiction

over only "cases and controversies," and the standing doctrine

"serves to identify those disputes which are appropriately

resolved through the judicial process."    Whitmore v. Arkansas,

495 U.S. 149, 155 (1990) (citing Valley Forge Christian College

v. Americans United for Separation of Church & State, Inc., 454

U.S. 464, 471-76 (1982)).   Where standing is lacking, the federal

courts lack the power to grant habeas relief.   See Demosthenes v.

Baal, 495 U.S. 731, 737 (1990).

          In the petition, both DeVetsco and Schmidt argue that

they are entitled to "next friend" standing to pursue the

petition on behalf of Zettlemoyer.   In Whitmore, the Supreme

Court clarified that a party seeking to establish "next friend"

standing must, among other things, "provide an adequate

explanation--such as inaccessibility, mental incompetence, or

other disability--why the real party in interest cannot appear on

his own behalf to prosecute the action."   Whitmore, 495 U.S. at
163.4   The burden is on the "next friend" to establish this

prerequisite.    Id. at 164.   Notably, the Whitmore Court also held

that "next friend" standing is not available if "an evidentiary

hearing shows that the defendant has given a knowing, intelligent

and voluntary waiver of his right to proceed, and his access to

court is otherwise unimpeded."    Id. at 165; see also Demosthenes

v. Baal, 495 U.S. 731, 734 (1990).

           In this case, after a two-day evidentiary hearing, the

district court concluded that DeVetsco and Schmidt failed to

sustain their burden of establishing "inaccessibility, mental

incompetence, other disability" on the part of Zettlemoyer.

Transcript of April 29, 1995 at p. 280.    The district court

further found that Zettlemoyer "has knowingly, intelligently and

voluntarily opted to proceed with his execution with full

understanding of the other options of unimpaired access to the

courts."   Id.

           The district court's conclusion on these issues are

findings of fact that may not be disturbed unless they are

clearly erroneous.   See Gov't of the Virgin Islands v. Williams,

892 F.2d 305, 312 (3d Cir. 1989), cert. denied, 495 U.S. 949
(1990); Fed. R. Civ. P. 52(a); see also Mason by and through

4
 . The Whitmore Court also required that a party seeking "next
friend" status "be truly dedicated to the best interests of the
person on whose behalf he seeks to litigate" and suggested that
the party "must have some significant relationship with the real
party in interest." Whitmore, 495 U.S. at 163-64.
Marson v. Vasquez, 5 F.3d 1220, 1224-25 (9th Cir. 1993).   A

finding may not be deemed clearly erroneous "[i]f the district

court's account of the evidence is plausible in light of the

record viewed in its entirety."   Anderson v. Bessemer City, 470

U.S. 564, 573-74 (1985).

          After a review of the record in this case, we conclude

that the district court's conclusions are not clearly erroneous.

We note that much of the evidence on which the petitioners rely

concerns Zettlemoyer's mental state in 1984.   While there is

more recent evidence presented by petitioners, the district court

weighed that evidence with that presented by the respondents and

gave the latter more weight in its findings and in reaching its

conclusions.   Furthermore the district court had the opportunity

to hear the testimony from Zettlemoyer himself, to observe

Zettlemoyer, and to question him closely regarding his decision

not to join in this habeas action.

          We have carefully reviewed the transcript of

Zettlemoyer which supports the district court's conclusion that

he is competent.   For example, he explained why he wanted the

execution to go forward.
          THE WITNESS: No, sir, I'm afraid that my execution is
          going to be stopped. If it's stopped, sir, my 14 and-
          a-half years of suffering will continue on in an
          unbroken chain for maybe another 14, 20, or 25 years.
          It's--the thought of all that is just deeply
          disturbing.

                I'm afraid, sir, that Mr. Wiseman may somehow
          convince you to issue a stay of execution and stop my
          execution. I have a very deep fear of that, sir, and
          I'm hoping that as a direct result of you sitting
          there, talking to me, that you are an intelligent man,
          and can tell that I am not mentally incompetent.

               I am not crazy, I'm not loony. I understand
          perfectly what's going on with the execution and
          everything, and it was my desire, which I expressed to
          my attorney, to come up here and try to untwist some of
          the terrible things that Mr. Wiseman has gotten up here
          and twisted. He has taken things out of context. He
          has twisted the truth. He has used half-truths.

Transcript of April 29, 1995 at 149.

          A. Those are one of the reasons, sir. My other two
reasons are that my imprisonment has been very, very harsh. You
must understand, sir, that I've only been in general population
for 14 months out of 15 years imprisonment. I have done the
hardest time of any convict in prison.

               I see my execution as an end of suffering to my
imprisonment, a blessed, merciful release from all of these
health symptoms that I'm constantly suffering with.

               And ten and-a-half years ago I became a Christian.
          And as a Christian, I have many questions and desires
          that I wish to know, and only God can answer those
          questions. So I'm very anxious to get to Heaven, so to
          speak, so that I can finally learn the answers to all
          of these deep religious and philosophical questions
          that have come across my mind for all of these years,
          sir.

Transcript of April 29, 1995 at 182.


          There is adequate evidence to support the district

court's findings and conclusions that petitioners failed to prove

that Zettlemoyer was incompetent and that Zettlemoyer has

knowingly, intelligently and voluntarily waived his right to
proceed.5   Schmidt and DeVetsco therefore are not entitled to

"next friend" standing.   See Whitmore, 495 U.S. at 149.   In the

absence of "next friend" standing for Schmidt or DeVetsco or the

appointment of a guardian, we conclude that the district court

correctly dismissed the petition, as no "adequate basis exists

for the exercise of federal power" in this case.   See

Demosthenes, 495 U.S. at 737.6


5
 . Petitioners argue on appeal that they did not receive a "full
and fair hearing" in the district court. They complain that the
district court gave them no notice that an evidentiary hearing
would be held on Friday, April 28, 1995, that the district court
made numerous comments evidencing its disdain for petitioners'
counsel, that they had an inadequate opportunity to examine the
background of the court-appointed psychiatrist, and that the
district court improperly barred petitioners' counsel from
conducting a full examination of Zettlemoyer. After a careful
review of the record, we find all of these contentions meritless.
The petition in this case was filed a mere five days before the
execution was scheduled, and the district court made every effort
to ensure that the petitioners received a full and fair
opportunity to present evidence in support of their case.
Indeed, in light of the emergency nature of the petition, we
commend the district court for its extensive and thorough
approach to the issues raised by the petition.
6
 . Because we affirm the district court's conclusion that it is
powerless to address the issues raised in the petition due to
petitioners' clear lack of standing, we need not address
petitioners' suggestion that the district court erred by failing
to await the outcome of petitioners' state court proceedings. Nor
need we address petitioners' argument that the district court's
grant of the certificate of probable cause to appeal requires
this court to reach the merits of the petition under Barefoot v.
Estelle, 463 U.S. 880 (1985). We note, however, that Barefoot
requires only that we reach the merits of the appeal, not the
merits of the issues raised in the underlying habeas petition.
Id. at 888-89. By affirming the district court's order
dismissing the petition, we have reached the merits of this
          In reaching our result we have considered petitioners'

contention at oral argument, predicated on Perry v. Louisiana,

498 U.S. 38 (1990), and State v. Perry, 610 So.2d 746 (La. 1992),

that the district court's finding that Zettlemoyer was competent

to waive further appeals should be reversed because Zettlemoyer

was taking an anti-depressant/anti-psychotic drug when he

testified before the district court and when he wrote a letter on

March 28, 1995, indicating that he wanted no further appeals.

          In Perry v. Louisiana, the Supreme Court vacated a

decision of the Louisiana Supreme Court denying review of a trial

court's decision "order[ing] the state to administer

antypsychotic drugs to [a] prisoner" in order to make him able

"to understand the link between his crime and punishment."     State

v. Perry, 610 So.2d at 747.   The Supreme Court remanded the case

for consideration in light of Washington v. Harper, 494 U.S. 210

(1990).

          Those cases are inapposite.   Harper only held that an

inmate has a "significant liberty interest in avoiding the

unwanted administration of antipsychotic drugs under the Due

Process Clause of the Fourteenth Amendment."   Harper, 494 U.S. at
221 (emphasis added).   Of course, as the Supreme Court of

Louisiana held upon Perry's remand, the involuntary

(..continued)
appeal, and have therefore satisfied our obligation under
Barefoot.
administration of antypsychotic medications for no legitimate

penological purpose other than making the defendant competent for

execution is a clear violation of the defendant's constitutional

rights.     State v. Perry, 610 So.2d at 754 (trial court's order

"cannot be justified under Harper because forcible administration

of drugs to implement execution is not medically appropriate.")

             In this case, however, the record is clear that

Zettlemoyer voluntarily took the medication as part of a course

of treatment for his medical problems.      He testified before the

district court that "I have a number of health problems, and the

psychiatrist and the psychologist at the SCI Pittsburgh

Institution have recommended a variety of medications for me to

take.     And it benefits me tremendously so I always take it."

Transcript of April 29, 1995 at 140.       Thus, Zettlemoyer's

situation is markedly different from Harper's and Perry's, and

the policies underlying those cases do not cast doubt on the

district court's finding.     To order the trial court to force

Zettlemoyer to stop taking medications that were prescribed for

him in the course of legitimate medical treatment, and that he

desires to take -- simply to see what he would say if he went

untreated -- would be a bizarre way to vindicate the Due Process

Clause.     We decline to extend Harper and Perry in that manner.

                                 III.

                              Conclusion
          For the foregoing reasons, we will affirm the order of

the district court dismissing the petition for habeas corpus for

lack of standing and deny petitioners' motion for a stay of

execution.
