                                            No. 01-4278
                                     File Name: 06a0175n.06
                                       Filed: March 8, 2006

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT


ABDUL AWKAL,                           )
                                       )
      Petitioner-Appellant,            )
                                       )
v.                                     )                          ORDER
                                       )
BETTY MITCHELL,                        )
                                       )
      Respondent-Appellee.             )
_______________________________________)



       Before: MOORE, COLE, and GILMAN, Circuit Judges.



       Abdul Awkal (“Awkal”), an Ohio state death-row inmate represented by counsel, filed a pro

se motion to withdraw his petition for a writ of habeas corpus and forgo further challenges to his

convictions and death sentence. Awkal’s counsel argued that Awkal does not possess the requisite

mental competency to make the decision to withdraw his appeal. We remanded this case to the

district court to hold a limited evidentiary hearing as to Awkal’s competency to withdraw his appeal,

and the district court found that Awkal was not competent to withdraw his appeal. We issued an

order to show cause as to why the appeal should not then proceed, and the parties filed the requested

responses.

       In 1992, an Ohio jury convicted Awkal of two counts of aggravated murder with prior

calculation and design, each with mass murder and firearm specifications, and he was sentenced to

death. His convictions and sentence were affirmed on direct appeal. State v. Awkal, No. 66291,
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1995 WL 229123 (Ohio Ct. App. Apr. 13, 1995), aff’d, 667 N.E.2d 960 (Ohio 1996). He

unsuccessfully sought post-conviction relief, State v. Awkal, No. 73267, 1998 WL 827585 (Ohio Ct.

App. Nov. 25, 1998), and the Ohio Supreme Court declined further review. State v. Awkal, 708

N.E.2d 209 (Ohio 1999) (Table).

       Awkal subsequently filed a petition for a writ of habeas corpus in the federal district court,

which denied the petition without conducting an evidentiary hearing. The district court did not grant

a certificate of appealability (“COA”) for any of Awkal’s claims. We granted a COA for his claims

of ineffective assistance of trial counsel at the culpability and sentencing phases and prosecutorial

misconduct arising from the prosecution’s closing argument at the culpability phase. The parties

have fully briefed these claims.

       On March 2, 2004, Awkal filed a motion to terminate his appeal, explaining that he does not

believe that he can prevail and that twelve years is “long enough to fight a cause.” His counsel

responded that Awkal did not possess the requisite mental competence to decide to withdraw his

appeal and that the case should be remanded to the district court for a determination regarding

Awkal’s competency. The warden responded and suggested three options for our consideration:

1) delay resolution of the motion until the appeal has been decided; 2) dismiss the case as no

evidence suggests that Awkal is not competent to withdraw his appeal; or 3) remand the case to the

district court for a competency determination.

       We remanded the case to the district court on June 25, 2004, for the purpose of holding a

limited evidentiary hearing concerning whether Awkal was competent to withdraw his appeal and

forgo all further challenges to his convictions and sentence. The Supreme Court has articulated the

following legal standard to be applied when a death row inmate seeks to withdraw his or her habeas
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appeal: “whether he has [the] capacity to appreciate his position and make a rational choice with

respect to continuing or abandoning further litigation or on the other hand whether he is suffering

from a mental disease, disorder, or defect which may substantially affect his capacity in the

premises.” Rees v. Peyton, 384 U.S. 312, 314 (1966); see also Harper v. Parker, 177 F.3d 567, 572

(6th Cir. 1999) (applying Rees standard). We instructed the district court to apply the Rees standard

in making its determination.

       On remand, the district court ordered a psychiatric examination of Awkal. Dr. Phillip

Resnick — a well-respected psychiatrist — conducted the examination on February 2, 2005, and Dr.

Resnick also reviewed some earlier reports regarding Awkal’s competency and sanity. Dr. Resnick

stated that “[i]t is my opinion with reasonable medical certainty that Mr. Awkal currently suffers

from a mental disease that substantially affects his capacity to make a rational choice with regard

to continuing to litigate appeals of his death penalty conviction.” Dr. Resnick Report at 17. The

district court concluded that “Petitioner currently is not in a position to waive his habeas corpus

appeals.” District Court Order dated March 3, 2005.

       On September 8, 2005, we ordered responses to a show-cause order as to why the appeal

should not proceed, and the warden filed a response on October 8, 2005, arguing that the appeal

should proceed. Awkal submitted an untimely response on October 25, 2005, suggesting either an

indefinite stay of the proceedings or a hearing on this issue. As Awkal’s response to the show-cause

order was untimely, we allowed the warden to file a response on January 31, 2006, to Awkal’s filing.

       As approximately one year has passed since the district court’s determination that Awkal was

not competent to withdraw his appeals, we remand this case to the district court for an update as to

Awkal’s current competency. As in the first remand, the district court should analyze whether
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Awkal now “has [the] capacity to appreciate his position and make a rational choice with respect to

continuing or abandoning further litigation,” or “is suffering from a mental disease, disorder, or

defect which may substantially affect his capacity in the premises.” Rees, 384 U.S. at 314; Harper,

177 F.3d at 572.

       We are bound in this case by our unanimous decision in Harper, in which we properly relied

upon the Supreme Court’s decision in Rees. Harper, 177 F.3d at 572 (citing Rees, 384 U.S. at 314).

We do not share the partial dissent’s concerns about the possibility of future changes to this

precedent, and this precedent clearly establishes that 18 U.S.C. § 4241 is not the proper standard to

use in determining Awkal’s competency to withdraw his appeal. In Harper, we specifically referred

to § 4241 for guidance as to the question of whether the petitioner had a “statutory right to a full

evidentiary hearing on [the issue of] competence,” id. at 571, but we quoted the test articulated in

Rees when we discussed the correct standard for the competency determination itself, id. at 572.

Harper clearly acknowledged that Rees — and not § 4241 — is the relevant precedent for the

question of competency to withdraw an appeal, as do we in this case.

       Accordingly, this case is hereby remanded to the district court to determine expeditiously

whether Awkal is competent to withdraw his appeal and forgo all further challenges to his

convictions and sentence. This appeal will be held in abeyance pending the determination of

Awkal’s current competency by the district court.
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       RONALD LEE GILMAN, Circuit Judge, concurring in part and dissenting in part.

Today the majority remands this case for a second time for an update as to Awkal’s competency to

withdraw his habeas corpus appeal. Although I agree that such a remand is necessary because of

the passage of time since the first remand, I believe that the scope of the questions to be answered

by the district court should be expanded. I therefore concur in part and dissent in part.

       The remand order as written asks the district court to inquire into Awkal’s current

competency to waive his habeas corpus appeal by using the Rees standard. See Rees v. Peyton, 384

U.S. 312, 313 (1966) (per curiam). Although I believe that we are bound by this court’s decision

in Harper v. Parker, 177 F.3d 567 (6th Cir. 1999), to remand for a determination of Awkal’s

competency under the Rees standard, I am not convinced that this is ultimately the correct standard

to employ. If this case ends up before the Sixth Circuit sitting en banc or the United States Supreme

Court, there is at least the possibility that the competency standard embodied in 18 U.S.C.

§ 4241—the near-universal standard for competency in the federal system—will be adopted in the

habeas context to the exclusion of Rees. This eventuality militates in favor of expanding the scope

of the remand order to ask the district court to inquire into whether Awkal is competent under

§ 4241.

       Here is why. By asking both the Rees question—whether Awkal has the capacity to make

a rational choice to withdraw his habeas petition—and the questions required by § 4241—whether

Awkal is able to understand the nature and consequences of the proceedings and able to assist in his

defense—we will prevent the possibility of still another remand to determine Awkal’s competency.

But by asking only the Rees question, any subsequent decision disagreeing with our use of the Rees

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standard (assuming arguendo that there is such decision) would require a third remand for a

determination of Awkal’s competency under § 4241. We should therefore include in this remand

order a request that the district court assess Awkal’s competency under both potentially controlling

standards in order to avoid the possibility of further remands in this case.

        Which standard is ultimately found to apply is critical here because Awkal may well be

found competent under § 4241 but incompetent under Rees. The outcome of Awkal’s pro se motion

to withdraw his appeal, and for that matter the entire rest of the proceedings in this case, may

therefore rest on the legal determination of the applicable competency standard.

        Despite over ten years of treatment for his mental health problems, Awkal has generally

maintained that the state should execute him. Awkal says that he hears his dead wife’s voice calling

him to join her, and that 50% of his reason for wanting to die is his feeling of guilt for civilian deaths

in the Middle East. Essentially because these reasons for withdrawing his appeal seem irrational,

the result of the first remand was a finding under Rees that Awkal was incompetent to withdraw his

appeal. If the prior ten years of experience are any indication as to the next ten and the ten after that,

Awkal will never achieve a level of competency that would allow him to forgo his appeal under the

Rees standard. The case would then likely end up in a state of perpetual stay, essentially commuting

Awkal’s death sentence to one of life imprisonment without parole.

        If, on the other hand, the § 4241 standard is found to be controlling, then Awkal may well

be found competent. He seems to understand the nature and consequences of the proceedings. His

pro se motion was a detailed, six-page recitation of the complicated procedural posture of this case.

The clarity with which he discussed the status of the proceedings suggests that he understands what

                                                   -6-
                                           No. 01-4278
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is going on and what is at stake. This ability to understand the proceedings and to communicate

clearly also suggests that Awkal has the capacity to assist in his defense. If the district court

findings unfold in this way, then Awkal would likely satisfy the § 4241 standard for competency.

       Because the outcome of this case hinges on the determination of which competency standard

applies—Rees or § 4241—I would have the district court ask both sets of questions on remand.

Then if either the en banc court or the United States Supreme Court should later decide that § 4241

is the proper standard, a ruling could promptly be made on Awkal’s pro se motion pursuant to that

standard. In the name of judicial efficiency, I therefore DISSENT as to the omission of the § 4241

standard from the remand order.



                                             ENTERED BY ORDER OF THE COURT



                                             __________________________________
                                                   Leonard Green, Clerk




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