RYAN v. GONZALES

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

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Nos. 10–930 and 11–218

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CHARLES L. RYAN, PETITIONER

10–930 v.

ERNEST VALENCIA GONZALES

on writ of certiorari to the united states court of appeals for the ninth circuit

TERRY TIBBALS, PETITIONER

11–218 v.

SEAN CARTER

on writ of certiorari to the united states court of appeals for the sixth circuit

[January 8, 2013]

Justice Thomas delivered the opinion of the Court.

These two cases present the question whether the incompetence of a state prisoner requires suspension of the prisoner’s federal habeas corpus proceedings. We hold that neither 18 U. S. C. §3599 nor 18 U. S. C. §4241 provides such a right and that the Courts of Appeals for the Ninth and Sixth Circuits both erred in holding that district courts must stay federal habeas proceedings when petitioners are adjudged incompetent.

I A

Ernest Valencia Gonzales was convicted by an Arizona jury of felony murder, armed robbery, aggravated assault, first-degree burglary, and theft. The convictions arose from Gonzales’ repeated stabbing of Darrel and Deborah Wagner in front of their 7-year-old son during a burglary of the Wagners’ home. Darrel Wagner died from the stabbing, while Deborah Wagner survived but spent five days in intensive care. The trial court sentenced Gonzales to death on the murder charge and to various prison terms for the other crimes.

After exhausting state remedies, Gonzales filed a petition for a writ of habeas corpus in Federal District Court on November 15, 1999. While the petition was pending, Gonzales’ appointed counsel moved to stay the proceedings, contending that Gonzales was no longer capable of rationally communicating with or assisting counsel. He argued that mental incompetence entitled Gonzales to a stay under Ninth Circuit precedent. See Rohan v. Woodford, 334 F. 3d 803 (2003). In Rohan, the Ninth Circuit held that the federal statute guaranteeing state capital prisoners a right to counsel in federal habeas proceedings, 21 U. S. C. §848(q)(4)(B) (2000 ed.) (now codified as 18 U. S. C. §3599(a)(2)), could not “be faithfully enforced unless courts ensure that a petitioner is competent,” 334 F. 3d, at 813. Rohan thus concluded that “where an incompetent capital habeas petitioner raises claims that could potentially benefit from his ability to communicate rationally, refusing to stay proceedings pending restoration of competence denies him his statutory right to assistance of counsel, whether or not counsel can identify with precision the information sought.” Id., at 819.

Applying Rohan, the District Court denied a stay after concluding that the claims properly before it were record based or resolvable as a matter of law and thus would not benefit from Gonzales’ input. The court found it unnec-essary to determine whether Gonzales was incompetent, though it did find that he possessed “at least a limited capacity for rational communication.” Gonzales v. Schriro, 617 F. Supp. 2d 849, 863 (Ariz. 2008).

Gonzales thereafter filed an emergency petition for a writ of mandamus in the Ninth Circuit. While Gonzales’ petition was pending, the Ninth Circuit decided Nash v. Ryan, 581 F. 3d 1048 (2009), which held that habeas petitioners have a right to competence on appeal, even though appeals are entirely record based. Id., at 1050 (“While an appeal is record-based, that does not mean that a habeas petitioner in a capital case is relegated to a nonexistent role. Meaningful assistance of appellate counsel may require rational communication between counsel and a habeas petitioner”). Applying Nash and Rohan, the court granted the writ of mandamus, concluding that even though Gonzales’ “exhausted claims are record-based or legal in nature, he is entitled to a stay pending a competency determination” under 18 U. S. C. §3599. In re Gonzales, 623 F. 3d 1242, 1244 (2010).

We granted certiorari to determine whether §3599 provides a statutory right to competence in federal habeas proceedings. 565 U. S. ___ (2012).

B

Sean Carter was convicted by an Ohio jury of aggra-vated murder, aggravated robbery, and rape, and sentenced to death for anally raping his adoptive grandmother, Veader Prince, and stabbing her to death. After exhausting his state-court appeals, Carter initiated federal habeas proceedings on March 19, 2002, in the Northern District of Ohio. Carter eventually filed a third amended petition, along with a motion requesting a competency determi-nation and a stay of the proceedings. The District Court granted the motion.

Following several psychiatric evaluations and a com-petency determination, the District Court found Carter incompetent to assist counsel. Applying the Ninth Circuit’s test in Rohan, it determined that Carter’s assistance was required to develop four of his exhausted claims. As a result, the court dismissed his habeas petition without prejudice and prospectively tolled the statute of limitations. Carter v. Bradshaw, 583 F. Supp. 2d 872, 884 (2008). The State appealed.

The Sixth Circuit acknowledged that “[f]ederal habeas petitioners facing the death penalty for state criminal convictions do not enjoy a constitutional right to competence.” Carter v. Bradshaw, 644 F. 3d 329, 332 (2011). It nevertheless located a statutory right to competence in §4241, relying, in part, on this Court’s decision in Rees v. Peyton, 384 U. S. 312 (1966) (per curiam) (Rees I ). 1 644 F. 3d, at 332. The Sixth Circuit explained:

“By applying section 4241 to habeas actions, Rees addresses the situation where a habeas petitioner awaiting the death penalty may seek to forego any collateral attacks on his conviction or sentence, and defines a statutory right for the petitioner to be competent enough to (1) understand the nature and consequences of the proceedings against him, and (2) assist properly in his defense.” Id., at 333.

The court concluded that “[a]nytime a capital habeas petitioner affirmatively seeks to forego his habeas petition, whether by action or inaction, . . . a district court may employ section 4241.” Id., at 334.

The court therefore amended the District Court’s judgment and ordered that Carter’s petition be stayed in-definitely with respect to any claims that required his assistance. Id., at 336–337. Judge Rogers dissented, arguing that there was no constitutional or statutory basis for the court’s decision. Id., at 337–342.

We granted certiorari to determine whether §4241 provides a statutory right to competence in federal habeas proceedings. 565 U. S. ___ (2012).

II

Both the Ninth and Sixth Circuits have concluded that death row inmates pursuing federal habeas are entitled to a suspension of proceedings when found incompetent. The Ninth Circuit located this right in §3599, while the Sixth Circuit located it in §4241. Neither section provides such a right.

A

Section 3599(a)(2) guarantees federal habeas petitioners on death row the right to federally funded counsel. 2 The statute provides that petitioners who are “financially unable to obtain adequate representation . . . shall be entitled to the appointment of one or more attorneys.” Appointed attorneys are required to have experience in death penalty litigation, §§3599(b)–(d), and, once appointed, are directed to “represent the defendant throughout every subsequent stage of available judicial proceedings,” §3599(e). The statute also gives district courts the power to authorize funding for “investigative, expert, or other services” as are “reasonably necessary for the representation of the defendant.” §3599(f). But §3599 does not direct district courts to stay proceedings when habeas petitioners are found incompetent. 3

In addition to lacking any basis in the statutory text, the assertion that the right to counsel implies a right to competence is difficult to square with our constitutional precedents. The right to counsel is located in the Sixth Amendment. (“In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.”) If the right to counsel carried with it an implied right to competence, the right to competence at trial would flow from the Sixth Amendment. But “[w]e have repeatedly and consistently recognized that ‘the criminal trial of an incompetent defendant violates due process,’ ” not the Sixth Amendment. Cooper v. Oklahoma, 517 U. S. 348, 354 (1996) (quoting Medina v. California, 505 U. S. 437, 453 (1992) ; emphasis added); see also Drope v. Missouri, 420 U. S. 162, 172 (1975) (“[T]he failure to observe procedures adequate to protect a defendant’s right not to be tried or convicted while incompetent to stand trial deprives him of his due process right to a fair trial” (citing Pate v. Robinson, 383 U. S. 375, 385 (1966) )).

It stands to reason that the benefits flowing from the right to counsel at trial could be affected if an incompe-tent defendant is unable to communicate with his attorney. For example, an incompetent defendant would be unable to assist counsel in identifying witnesses and deciding on a trial strategy. For this reason, “[a] defendant may not be put to trial unless he ‘ “has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding . . . [and] a rational as well as factual understanding of the proceedings against him.” ’ ” Cooper, supra, at 354 (quoting Dusky v. United States, 362 U. S. 402 (1960) (per curiam)). Notwithstanding the connection between the right to competence at trial and the right to counsel at trial, we have never said that the right to competence derives from the right to counsel. We will not assume or infer that Congress intended to depart from our precedents and locate a right to competence in federal habeas proceedings within the right to counsel. “We normally assume that, when Congress enacts statutes, it is aware of relevant judicial precedent.” Merck & Co. v. Reynolds, 559 U. S. ___, ___ (2010) (slip op., at 12).

The Ninth Circuit located a statutory right to competence in §3599. 623 F. 3d, at 1245 (citing Rohan, 334 F. 3d 803, and Nash, 581 F. 3d 1048). Because Rohan is the Ninth Circuit’s controlling precedent, we briefly address that decision.

In Rohan, a habeas petitioner asserted a right to com-petency based both on the Due Process Clause and on 21 U. S. C. §848(q)(4)(B) (2000 ed.). After discussing the history of the common law, which prohibited the indictment, trial and execution of mentally incompetent defendants, 4 the Court of Appeals stated that the petitioner’s due process claim raised “substantial” “constitutional ques-tions.” Rohan, 334 F. 3d, at 814. This conclusion is puzzling in light of the Ninth Circuit’s acknowledgment that there is “no constitutional right to counsel on habeas,” id., at 810 (citing Murray v. Giarratano, 492 U. S. 1, 10 (1989) (plurality opinion)), and that “there is no due process right to collateral review at all,” 334 F. 3d, at 810 (citing United States v. MacCollom, 426 U. S. 317, 323 (1976) (plurality opinion)). The Ninth Circuit was simply incorrect in suggesting that, in this case, there might be a constitutional concern—much less a “substantial” one—raised by the petitioner’s due process claim.

Invoking the canon of constitutional avoidance, the Ninth Circuit gave the petitioner the practical benefit of a due process right to competence in federal habeas proceedings through its interpretation of §848(q)(4)(B). 5 334 F. 3d, at 814. In analyzing that statute, the Rohan court relied on a Ninth Circuit en banc opinion in Calderon v. United States Dist. Court for Central Dist. of Cal., 163 F. 3d 530 (1998) (Kelly V), overruled in unrelated part, Woodford v. Garceau, 538 U. S. 202 (2003) , which held that a prisoner’s incompetence is grounds for equitably tolling the Antiterrorism and Effective Death Penalty Act of 1996’s (AEDPA) 1-year statute of limitations for filing habeas petitions. The Rohan court purported to be bound by the “rationale” of Kelly V—that a prisoner’s incompetence could “eviscerate the statutory right to counsel,” 6 Kelly V, supra, at 541—and concluded that “[i]f a petitioner’s statutory rights depend on his ability to communicate rationally, compelling him to pursue relief while incompetent is no less an infringement than dismissing his late petition.” 334 F. 3d, at 814.

We are not persuaded by the Ninth Circuit’s assertion that a habeas petitioner’s mental incompetency could “evis-cerate the statutory right to counsel” in federal habeas proceedings. Given the backward-looking, record-based nature of most federal habeas proceedings, counsel can generally provide effective representation to a habeas petitioner regardless of the petitioner’s competence. Indeed, where a claim is “adjudicated on the merits in State court proceedings,” 28 U. S. C. §2254(d) (2006 ed.), counsel should, in most circumstances, be able to identify whether the “adjudication . . . resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” §2254(d)(1), without any evi-dence outside the record. See Cullen v. Pinholster, 563 U. S. ___, ___ (2011) (slip op., at 9) (“[R]eview under [28 U. S. C.] §2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits. . . . This backward-looking language requires an examination of the state-court decision at the time it was made. It follows that the record under review is limited to the record in existence at that same time—i.e., the record before the state court”). Attorneys are quite capable of reviewing the state-court record, identifying legal errors, and marshaling relevant arguments, even without their clients’ assistance.

Rohan also cited Rees I, 384 U. S. 312 , in support of its conclusion. 334 F. 3d, at 815. In Rees I, a state inmate on death row filed a petition for a writ of habeas corpus in District Court, alleging that the state-court conviction violated his constitutional rights. 384 U. S., at 313. The District Court denied his petition, and the Court of Appeals affirmed. Ibid. Shortly after Rees’ counsel filed a petition for certiorari with this Court, Rees directed his counsel to withdraw the petition and to forgo any further proceedings. Counsel advised the Court that he could not accede to these instructions without a psychiatric evaluation of Rees, because there was some doubt as to Rees’ mental competency. Ibid. In response, the Court directed the District Court to determine Rees’ mental competence. Id., at 313–314. After the District Court conducted a hearing and found Rees incompetent, the Court issued a one-sentence order directing that the petition for certiorari be “held without action.” Rees v. Peyton, 386 U. S. 989 (1967) (Rees II ). 7 When Rees died several decades later, the Court dismissed the petition. Rees v. Superintendent of Va. State Penitentiary, 516 U. S. 802 (1995) (Rees III ).

The Ninth Circuit concluded that “[t]he record in Rees II shows that incompetence is grounds for staying habeas proceedings.” Rohan, supra, at 815. This conclusion is unwarranted. Rees I concerned whether an incompetent habeas petitioner may withdraw his certiorari petition, and it provides no clear answer even to that question. Likewise, the unique, one-sentence order in Rees II offered no rationale for the decision to hold Rees’ petition. As a result, Rees offers no support for federal habeas petitioners seeking to stay district court proceedings or for the Ninth Circuit’s opinions in Rohan, Nash, or this case. 8

Gonzales barely defends the Ninth Circuit’s interpretation of §3599. 9 He offers a single, halfhearted argument in support of the Ninth Circuit’s opinion based on our statement in McFarland v. Scott, 512 U. S. 849, 858 (1994) , that “the right to counsel necessarily includes a right for that counsel meaningfully to research and present a defendant’s habeas claims.” But McFarland was addressing whether a district court could issue a stay of execution after a capital prisoner had filed a request for counsel but before he had filed his habeas petition. Id., at 854–858. We held that a district court may stay a capital prisoner’s execution once the prisoner has invoked his statutory right to counsel. Id., at 859. McFarland has no relevance here where Gonzales is not seeking a stay of execution, but rather a stay of the District Court’s proceedings. Moreover, Gonzales moved for a stay more than six years after initiating his habeas petition. This was certainly ample time for his attorney to research and present the claims.

For the foregoing reasons, we hold that §3599 does not provide federal habeas petitioners with a “statutory right” to competence. 10

B

The Sixth Circuit reached the same conclusion as the Ninth Circuit but located the statutory right to competence during habeas proceedings in 18 U. S. C. §4241. Relying largely on Rees I, the Sixth Circuit concluded that §4241 provides a statutory right to competence. 644 F. 3d, at 333. But as discussed, Part II–A, supra, Rees I did not recognize a statutory right to competence in federal ha-beas proceedings. 11 Moreover, §4241 does not even apply to such proceedings. Section 4241(a) provides:

“At any time after the commencement of a prosecution for an offense and prior to the sentencing of the defendant, or at any time after the commencement of probation or supervised release and prior to the completion of the sentence, the defendant or the attorney for the Government may file a motion for a hearing to determine the mental competency of the defendant. The court shall grant the motion, or shall order such a hearing on its own motion, if there is reasonable cause to believe that the defendant may presently be suf-fering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense.”

By its own terms, §4241 applies only to trial proceedings prior to sentencing and “at any time after the commencement of probation or supervised release.” Federal habeas proceedings, however, commence after sentencing, and federal habeas petitioners, by definition, are incarcerated, not on probation.

Furthermore, §4241, like the rest of Title 18 generally, applies exclusively to federal defendants and probationers subject to prosecution by the United States. Carter is not, and does not claim to be, a federal defendant. Rather, he is a state prisoner challenging the basis of his conviction in a federal civil action. See Blair v. Martel, 645 F. 3d 1151, 1155 (CA9 2011) (“By its own terms, §4241 does not apply unless a federal criminal defendant is on trial or is released on probation”).

Finally, §4241(a) authorizes the district court to grant a motion for a competency determination if there is reasonable cause to believe that the defendant’s mental incompetence renders him “unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense.” (Emphasis added.) See also §4241(d). 12 A habeas proceeding under §2254, however, is not a “proceedin[g] against” the habeas petitioner; this, on the other hand, is a civil action against the warden of the state prison. And, a federal habeas petitioner does not mount a “defense” to the government’s prosecution. Rather, the petitioner collaterally attacks his conviction at an earlier state trial. Accordingly, the statutory right to competence provided in §4241 is simply inapplicable to federal habeas proceedings.

We would address Carter’s arguments in defense of the Sixth Circuit’s decision, but, there are none. Carter’s brief informed us that “[t]his Court need not consider the statutory argument with which the [petitioner’s] brief begins—i.e., that there is no ‘statutory right’ under 18 U. S. C. §4241 to be competent in habeas proceedings.” Brief for Respondent in No. 11–218, p. 15. Apparently, Carter found the Sixth Circuit’s reasoning indefensible. We agree.

III

Both Gonzales and Carter argued at length in their briefs and at oral argument that district courts have the equitable power to stay proceedings when they determine that habeas petitioners are mentally incompetent. 13 Neither petitioner disputes that “[d]istrict courts . . . ordinarily have authority to issue stays, where such a stay would be a proper exercise of discretion.” Rhines v. Weber, 544 U. S. 269, 276 (2005) (citation omitted); see also Enelow v. New York Life Ins. Co., 293 U. S. 379, 382 (1935) (explaining that a district court may stay a case “pending before it by virtue of its inherent power to control the progress of the cause so as to maintain the orderly processes of justice”). Similarly, both petitioners agree that “AEDPA does not deprive district courts of [this] authority.” Rhines, supra, at 276. Petitioners and respondents disagree, however, about the types of situations in which a stay would be appropriate and about the permissible duration of a competency-based stay. We do not presume that district courts need unsolicited advice from us on how to manage their dockets. Rather, the decision to grant a stay, like the decision to grant an evidentiary hearing, is “generally left to the sound discretion of district courts.” Schriro v. Landrigan, 550 U. S. 465, 473 (2007) . For pur-poses of resolving these cases, it is unnecessary to determine the precise contours of the district court’s discretion to issue stays. We address only its outer limits.

A

In Gonzales’ case, the District Court correctly found that all of Gonzales’ properly exhausted claims were record based or resolvable as a matter of law, irrespective of Gonzales’ competence. 14 617 F. Supp. 2d, at 863; see also State v. Gonzales, 181 Ariz. 502, 509–515, 892 P. 2d 838, 845–851 (1995) (adjudicating Gonzales’ claims on the merits). The court therefore denied Gonzales’ motion for a stay. The District Court did not abuse its discretion in so holding, because a stay is not generally warranted when a petitioner raises only record-based claims subject to 28 U. S. C. §2254(d). As previously noted, review of such claims “is limited to the record that was before the state court that adjudicated the claim on the merits.” Pin-holster, 563 U. S., at ___ (slip op., at 9). Accordingly, any evidence that a petitioner might have would be inadmis-sible. Ibid. (“[T]he record under review is limited to the record in existence at that same time—i.e., the record before the state court”). Because federal habeas is “a ‘guard against extreme malfunctions in the state criminal justice systems,’ not a substitute for ordinary error correction through appeal,” the types of errors redressable under §2254(d) should be apparent from the record. Harrington v. Richter, 562 U. S. ___, ___ (2011) (slip op., at 13) (quoting Jackson v. Virginia, 443 U. S. 307, 332, n. 5 (1979) (Stevens, J., concurring in judgment)). Counsel can read the record.

B

In Carter’s case, the District Court concluded that four of Carter’s claims could potentially benefit from Carter’s assistance. 15 However, three of these claims were adjudicated on the merits in state postconviction proceedings and, thus, were subject to review under §2254(d). See State v. Carter, No. 99–T–0133, 2000 Ohio App. LEXIS 5935, *5–*13 (Dec. 15, 2000). Any extrarecord evidence that Carter might have concerning these claims would therefore be inadmissible. Pinholster, supra, at ___. Consequently, these claims do not warrant a stay.

It is unclear from the record whether Carter exhausted the fourth claim. 16 If that claim was exhausted, it too would be record based. But even if Carter could show that the claim was both unexhausted and not procedurally defaulted, 17 an indefinite stay would be inappropriate. “AEDPA’s acknowledged purpose” is to “ ‘reduc[e] delays in the execution of state and federal criminal sentences.’ ” Schriro, supra, at 475 (quoting Woodford, 538 U. S., at 206). “Staying a federal habeas petition frustrates AEDPA’s objective of encouraging finality by allowing a petitioner to delay the resolution of the federal proceedings.” Rhines, 544 U. S., at 277. In the context of discussing stay and abeyance procedures, we observed:

“[N]ot all petitioners have an incentive to obtain federal relief as quickly as possible. In particular, capital petitioners might deliberately engage in dilatory tactics to prolong their incarceration and avoid execution of the sentence of death. Without time limits [on stays], petitioners could frustrate AEDPA’s goal of finality by dragging out indefinitely their federal ha-beas review.” Id., at 277–278.

The same principle obtains in the context of competency-based stays. At some point, the State must be allowed to defend its judgment of conviction. 18

If a district court concludes that the petitioner’s claim could substantially benefit from the petitioner’s assistance, the district court should take into account the likelihood that the petitioner will regain competence in the foreseeable future. Where there is no reasonable hope of competence, a stay is inappropriate and merely frustrates the State’s attempts to defend its presumptively valid judgment.

IV

The judgment of the Ninth Circuit is reversed. We vacate the judgment of the Sixth Circuit and remand the case for proceedings consistent with this opinion.

It is so ordered.

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1  In Rees, we held indefinitely a petition for certiorari after an in-competent capital inmate sought to withdraw his petition prior to our review. 384 U. S., at 313–314. See infra, at 12–14.

2  “In any postconviction proceeding under [ 28 U. S. C. §2254 or §2255], seeking to vacate or set aside a death sentence, any defendant who is or becomes financially unable to obtain adequate representation or investigative, expert, or other reasonably necessary services shall be entitled to the appointment of one or more attorneys and the furnishing of such other services in accordance with subsections (b) through (f ).” 18 U. S. C. §3599(a)(2).

3  In fact, §3599(e), which contains the section’s sole reference to “competency,” cuts against the Ninth Circuit’s conclusion. That section provides that appointed attorneys “shall also represent the defendant in such competency proceedings and proceedings for executive or other clemency as may be available to the defendant.” We doubt that Congress would have authorized counsel to represent inmates in postconviction competency proceedings only if the inmates were competent.

4  Blackstone explained the common-law rule as follows: “[I]f a man in his sound memory commits a capital offence, and before arraignment for it, he becomes mad, he ought not to be arraigned for it; because he is not able to plead to it with that advice and caution that he ought. And if, after he has pleaded, the prisoner becomes mad, he shall not be tried; for how can he make his defence? If, after he be tried and found guilty, he loses his senses before judgment, judgment shall not be pronounced; and if, after judgment, he becomes of nonsane memory, execution shall be stayed: for peradventure, says the human-ity of the English law, had the prisoner been of sound memory, he might have alleged something in stay of judgment or execution.” 4 W. Blackstone, Commentaries on the Laws of England 24–25 (1769).

5  As noted supra, at 2, §848(q)(4)(B) has been superseded by 18 U. S. C. §3599(a)(2).

6  It is unclear how Kelly V’s determination that mental incompetence is grounds for AEDPA equitable tolling could possibly control the outcome in Rohan, which had nothing to do with AEDPA’s statute of limitations. The relevant questions for equitable tolling purposes are whether the petitioner has “ ‘been pursuing his rights diligently’ ” and whether “ ‘some extraordinary circumstance stood in his way.’ ” Holland v. Florida, 560 U. S. ___, ___ (2010) (slip op., at 16–17) (quoting Pace v. DiGuglielmo, 544 U. S. 408, 418 (2005) ). But the propriety of equitably tolling AEDPA’s statute of limitations in the case of a men-tally incompetent petitioner has nothing to do with the statutory right to counsel. The Ninth Circuit has held that habeas petitioners who do not have a statutory right to counsel (i.e., all habeas petitioners other than those on death row) may still avail themselves of equitable tolling if they are mentally incompetent. See, e.g., Bills v. Clark, 628 F. 3d 1092, 1097 (2010) (establishing standard for deciding equitable tolling claims predicated on mental incompetence); Laws v. Lamarque, 351 F. 3d 919, 924–925 (2003) (recognizing that mental incompetence can give rise to equitable tolling for AEDPA’s statute of limitations).

7  This order was issued after the Clerk of the Court spoke with the attorneys for Virginia and for the petitioner and proposed that the Court hold the petition indefinitely. See Memorandum from John F. Davis, Clerk of Court, to The Chief Justice (Mar. 31, 1967); see also Crocker, Not To Decide Is To Decide: The U. S. Supreme Court’s Thirty-Year Struggle With One Case About Competency To Waive Death Penalty Appeals, 49 Wayne L. Rev. 885, 916 (2004). Although Virginia originally opposed the idea of an indefinite stay, see Memorandum for Respondent in Rees v. Peyton, O. T. 1966, No. 9, Misc., pp. 2–3 (Mar. 14, 1967), it eventually accepted the proposal, see Memorandum from John F. Davis, supra, at 2 (“In summary, counsel for both parties do not really present any objection to the procedure proposed in the case, but neither of them accepts it with enthusiasm”).

8  Moreover, we note that Rees is a pre-AEDPA case. To whatever, extent Rees can be read to provide guidance in the habeas context, that guidance must pass muster under AEDPA.

9  See Brief for Respondent in No. 10–930, p. 13 (“The State and the Solicitor General argue that the federal habeas right-to-counsel provision, 18 U. S. C. §3599(a)(2), should not be interpreted to create a ‘right to competence’ . . . . However, that is not the question presented in this case. The issue is whether courts have authority to issue a stay, not whether capital habeas petitioners enjoy a freestanding ‘right to com-petence,’ or what the contours of such a right may be. The Court need not reach that question in order to uphold the discretionary, and temporary, stay of proceedings issued in this case”). Notwithstanding Gon-zales’ attempt to rewrite the question presented, we granted certiorari on the following question: “Did the Ninth Circuit err when it held that 18 U. S. C. §3599(a)(2)—which provides that an indigent capital state inmate pursuing federal habeas relief ‘shall be entitled to the appointment of one or more attorneys’—impliedly entitles a death row inmate to stay the federal habeas proceedings he initiated if he is not competent to assist counsel?

10  Gonzales suggests that 28 U. S. C. §2251 supports the Ninth Circuit’s decision. But §2251 merely provides district courts with the statutory authority to stay state-court proceedings pending the resolution of federal habeas proceedings. Section 2251 says nothing about whether a habeas petitioner is entitled to a stay of the district court’s proceedings pending his return to competence.

11  The Sixth Circuit made much of the fact that Rees I cited 18 U. S. C. §§4244–4245, the predecessors of §4241. But that citation provides no support for a statutory right to competence. In Rees I,as part of our direction to the District Court, we said that it would“be appropriate for the District Court to subject Rees to psychiatric and other appropriate medical examinations and, so far as necessary, to temporary federal hospitalization for this purpose. Cf. 18 U. S. C. §§4244–4245 (1964 ed.).” 384 U. S., at 314. The citation to §§4244–4245 did nothing more than point the District Court to those sections of the Criminal Code that set forth the proper procedures for conducting a competency hearing. There would have been little point in this Court’s directing the District Court to reinvent the wheel when §4244 already provided a rubric for conducting such a hearing.

12  Section 4241(d) provides, in relevant part: “If, after the hearing, the court finds by a preponderance of the evidence that the defendant is presently suffering from a mental dis-ease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense, the court shall commit the defendant to the custody of the Attorney General.” (Emphasis added.)

13  This argument is especially curious coming from Gonzales, because the District Court denied his request for a stay. For Gonzales to prevail on his “equitable discretion” theory, Tr. of Oral Arg. in No. 10–930, p. 33, we would have to conclude that the District Court abused its discretion in denying the stay. But Gonzales has not argued that the District Court abused its discretion by denying his stay motion. Gon-zales’ arguments, thus, have little to do with the facts of his case.

14  Gonzales alleges that the trial judge refused to recuse himself; that he was prejudiced by the presence of the victim’s wife in the courtroom during jury selection and following her testimony; that the wife’s in-court identification was tainted; that there was insufficient evidence to support two aggravating factors found by the judge; and that Arizona’s statutory death penalty scheme unconstitutionally precludes the sen-tencer from considering all mitigating evidence.

15  Claim one alleges that Carter was incompetent to stand trial and was unlawfully removed from the trial proceedings. Claims two, five, and six are ineffective-assistance-of-counsel claims.

16  The fourth claim alleges ineffective assistance of appellate counsel for not raising trial counsel’s failure to pursue the competency-at-trial issue. It is unclear from the record whether Carter presented this claim to the Ohio Court of Appeals on state postconviction review, and there is no mention of this claim in that court’s opinion. In the District Court, the State argued that certain claims were procedurally de-faulted, see Carter v. Bradshaw, 583 F. Supp. 2d 872, 880 (ND Ohio 2008), but the court deferred ruling on this argument. The State was likely referring to claim four. We, therefore, leave the resolution of this claim to the District Court on remand.

17  In Cullen v. Pinholster, 563 U. S. ___, ___ (2011) (slip op., at 14, n. 10), we did “not decide where to draw the line between new claims and claims adjudicated on the merits.”

18  Our opinion today does not implicate the prohibition against “ ‘carrying out a sentence of death upon a prisoner who is insane.’ ” Panetti v. Quarterman, 551 U. S. 930, 934 (2007) (quoting Ford v. Wainwright, 477 U. S. 399 –410 (1986)).

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ORAL ARGUMENT OF THOMAS C. HORNE ON BEHALF OF THE PETITIONER

Chief Justice John G. Roberts: We will now hear argument in Case 10-930, Ryan v. Gonzales.

General Horne.

Thomas C Horne: Mr. Chief Justice and may it please the Court:

I would like to start picking up on a question asked by Justice Ginsburg on the Rees case.

The Rees case is pre-AEDPA.

If there is one thing that Congress had in mind when it passed AEDPA, the Antiterrorism and Effective Death Penalty Act, it is that the death penalty process needs to be speeded up, and habeas should not result in undue delays to give effect--

Justice Antonin Scalia: You don't think that AEDPA would alter the outcome of Rees?

Do you think Rees would come out the other way after AEDPA?

Thomas C Horne: --Well, I think that Rees didn't really deal with our issue, which is competence to aid counsel.

Justice Antonin Scalia: That's a different point.

Thomas C Horne: Yes, I agree, Your Honor, but I thought it would be relevant to point out that it was pre-AEDPA.

And then, on that point, this Court has said several times that habeas should not be used to grant indefinite stays.

In fact, even pre-AEDPA, in the Barefoot case, this Court said that habeas is not a time to retry a case, and even less is it a time to grant indefinite stays.

So the sentence with, “ even less ”, followed the sentence with, “ not ”.

So it was even less than not that it should grant permanent stays.

Justice Sonia Sotomayor: So tell me how you define indefinite stays, meaning are you okay with the six months to a year stay for a court to try to get someone back to competence, assuming that there is a claim in which the defendant's information is necessary?

Thomas C Horne: Yes, Your Honor.

We agree with the Ohio position.

In the American Psychiatric brief, I think it's page 10, note 20, they said that up to 90 percent of the cases are solved in six to nine months.

And I think that if this Court set a standard of no more than a year for the successive stays, that would give some guidance to the courts.

Justice Sonia Sotomayor: So how do you deal with Justice Kagan's earlier question of what difference does it make if the person's still necessary -- or the information, potential information is still necessary, what makes it unnecessary after a year?

Thomas C Horne: Because I think the consequence of AEDPA is that a balance has to be drawn between the fact that there has to be finality.

In fact, this Court has said the purposes of AEDPA include finality, comity, federalism, and reduction of delays in death sentence cases.

There needs to be a balance between that and the need to have a competent defendant, if we can have one, in a case where the testimony is necessary.

This Court has said several times -- I was going to mention also the Heinze case, where this Court thinks that -- very clearly that stays cannot be indefinite.

So I think it would be very helpful for this Court to give a guideline to the courts and say, the way to balance this is that if they get the time in which 90 percent of the cases are--

Justice Sonia Sotomayor: But those cases didn't establish a limit on how long states needed to take to adjudicate claims.

They just said a district court should put in conditions that move things along--

Thomas C Horne: --Yes.

That's correct, Your Honor.

Justice Sonia Sotomayor: --that require defendants to press their claims within a reasonable time that required periodic updates, that required monitoring by the court, but it didn't set an artificial end time.

It just said you can't just do an open-ended stay and not give conditions to comply with.

Why should this be treated differently?

Thomas C Horne: Your Honor, we think it would be helpful -- and we agree with Ohio on this -- we think it would be helpful if the Court gave some kind of a standard so that there would be some guidance and uniformity, and so that -- so that courts did not get around this Court's--

Justice Anthony Kennedy: How would you define that standard?

What standard do you suggest?

Thomas C Horne: --The standard we would suggest would be that six to -- six to nine months would be the standard, and certainly no more than a year; that it would be in months and not years, including not just the first stay, but any successive stays.

Justice Antonin Scalia: In all cases?

Thomas C Horne: In all cases.

In all cases where a stay was appropriate.

Now, in the record-based case, no stay is appropriate.

Justice Stephen G. Breyer: What if the -- it might be unusual, but you can't try a person who's not competent.

You can't try him.

Thomas C Horne: That's correct, Your Honor.

Justice Stephen G. Breyer: So what about -- and now he's been tried, and he's been convicted and been appealed and gone through the procedures.

But some case could arise where, in habeas, they made like a prima facie showing or a -- convinced the judge that there really is a very good chance here, or maybe even I think it's probable that the basic trial was unfair, to the point where it's like not having a trial.

What about in that situation, if it ever arises?

I mean, should we leave the door open just for that possibility?

Thomas C Horne: I think the answer to that is no, Your Honor, because the assumption -- once the conviction has occurred, the presumptions shift.

In the criminal trial, all the presumptions are in favor of the defendant.

The case has to prove -- the state has to prove its case--

Justice Stephen G. Breyer: I have that.

That's why I put in the possibility that on the basis of what's presented to me, the judge, I think I have so much without this defendant's testimony here suggesting it was unfair, that maybe the presumption should shift back.

That's what's worrying me in the back of my mind, that there could be such a case.

There have been in history.

Thomas C Horne: --Well, this Court said in Daniels that the presumption is that the conviction was valid, and it becomes the burden of the petitioner to overturn that, or the burden of the prisoner to overturn that--

Justice Stephen G. Breyer: Which he can't do if he's not competent.

Thomas C Horne: --Sorry?

Justice Samuel Alito: If there is a time limit -- if there is a time limit of six to nine months--

Thomas C Horne: Yes.

Justice Samuel Alito: --at what point does it begin to run?

Does it begin to run at the time when the petitioner moves for a stay, even if no effort was made prior to that to restore the petitioner to competency?

Thomas C Horne: I would believe the time would begin to run with the treatment, because the basis for the six to nine months was what was in the amicus brief against us by the American Psychiatric Association indicating that in six to nine months almost 90 percent of the cases are cured.

So we needed to have some basis to suggest a standard to the Court.

Justice Samuel Alito: No, but my question is this: Suppose that no effort has been made by counsel to provide -- to obtain treatment for the petitioner to restore the petitioner to competency prior to the point when a motion is made to stay the proceeding.

The six-to month period would still begin to run at the time when the motion for the stay is made, or would it begin to run at some earlier point or some later point?

Thomas C Horne: Your Honor, I would think, if the motion is made and the other requirements are shown, that it -- that the prisoner's testimony is essential, then -- and that it's not a record-based case, then I would think the six to nine months would begin to run when treatment begins, because that is our basis for the standard we are suggesting.

Chief Justice John G. Roberts: When treatment begins after some sort of initial hearing, right?

Thomas C Horne: That's correct, Your Honor.

When the Court -- if the Court grants the motion for the temporary stay, and presumably treatment would begin right away, or perhaps treatment has been ongoing, but from that point on we suggest a six to nine months standard.

Justice Ruth Bader Ginsburg: In which cases would you say the defendant's ability to assist counsel is necessary, on what issues?

You say that if -- the assistance has to be necessary to a fair adjudication--

Thomas C Horne: Yes, Your Honor.

Justice Ruth Bader Ginsburg: --in what cases would that be so?

Thomas C Horne: We have difficulty coming up with cases at that stage of the proceeding, Your Honor, because presumably the information the prisoner would have would be known to others.

Especially if it's newly discovered evidence, that would typically be from outside, such as a -- somebody admitting -- somebody else admitting to the crime, DNA evidence, something of that sort.

It appears to us highly unlikely that the prisoner has information that he didn't disclose earlier when he was competent in the state proceedings and in the post-conviction proceedings at the state level, so we think it would be a very rare case, Your Honor.

But we are prepared to admit that if a showing were made that his testimony is necessary, that a six to nine month temporary stay be granted, as long as--

Chief Justice John G. Roberts: Why is it -- I don't mean to be nit-picking, but why is it six to nine months?

Eight months -- I mean, why isn't it six months?

Or nine months?

I don't understand why there's--

Thomas C Horne: --We had to find something to suggest to the Court, and so we took it out of the--

Chief Justice John G. Roberts: --So six months?

Or nine months?

Why does it need to be six to nine months?

Thomas C Horne: --Oh, I agree, Your Honor.

Then it should be nine months, because that's the point at which the American Psychiatric Association says almost 90 percent of the cases are solved.

Justice Anthony Kennedy: And if it isn't solved after nine months, then what?

Thomas C Horne: Then the case proceeds--

Justice Anthony Kennedy: If competency cannot be restored?

Thomas C Horne: --Correct, Your Honor, then the case proceeds, which was the--

Justice Anthony Kennedy: Based on the record.

Thomas C Horne: --Based on the record -- well, if it's record based, there should be no continuance at all.

Justice Antonin Scalia: I don't really understand why the American Psychiatric Association said six to nine months, too.

Ninety percent are cured within nine months, right?

Thomas C Horne: Yes, Your Honor.

That's correct.

Justice Antonin Scalia: So you don't have to follow them in that non sequitur, it seems to me.

Thomas C Horne: No, we don't, Your Honor.

We're just suggesting there should be a guideline, and we had to find some basis for the guideline.

Justice Antonin Scalia: Because they are not lawyers, right?

They are psychiatrists.

Thomas C Horne: That's correct, Your Honor.

Justice Samuel Alito: Well, what happens if after 9 months mental health experts come in and they say there's a 90 percent chance of restoring the petitioner to competency in another 9 months or another three months or another month.

Thomas C Horne: Your Honor, we're suggesting that the Court should draw a line to guide the other courts, so that -- so that -- because once you allow one additional period, there can be successive additional periods and then it becomes an indefinite stay.

Justice Stephen G. Breyer: Why?

I mean -- sorry.

I didn't mean to say it in that particular tone.

But I mean, trial judges run their trials.

You know, that's what they're hired for.

And once we make it clear, it shouldn't go on forever, and why can't we trust them to do their job?

Thomas C Horne: Well, this Court in Heinz said that pre-AEDPA, the courts had discretion to grant stays, but AEDPA circumscribe -- circumscribes that discretion, and so I think this Court needs to give guidance to the courts as to the--

Justice Stephen G. Breyer: It shouldn't be indefinite.

The object of this is you're trying to give -- like you would with any witness who's not around at the moment, you're trying to produce a hearing that will reach a result with this witness.

And if you think after a reasonable period of time, that witness will recover and be available, fine.

And if there is no hope of that, forget it.

I mean, you know, something like that.

Thomas C Horne: --I understand, Your Honor.

Our suggestion is -- is that the Court give a guideline.

I understand Your Honor's position.

I do want to save some time for rebuttal.

I just wanted to make one quick point about that the -- that the witness has to be essential to the case being made.

It was suggested in the Ohio case that -- that if there were a possibility that he could be helpful, that that would be sufficient.

But the American Psychiatric Association and the ABA both agree that there has to be a particularized and substantial case made that the witness is necessary or -- or they also use the word “ essential or necessary ”, and we think that that -- that standard should prevail.

And I'd like to reserve time for rebuttal.

Thank you.

Chief Justice John G. Roberts: Thank you, General.

Thomas C Horne: Thank you.

Chief Justice John G. Roberts: Ms. O'Connell.

ORAL ARGUMENT OF ANN O'CONNELL, FOR UNITED STATES, AS AMICUS CURIAE, SUPPORTING PETITIONERS IN NOS. 11-218 & 10-930

Ann O'connell: Mr. Chief Justice and may it please the Court:

The United States agrees with Ohio and Arizona on the general framework for when no stay is allowed and for when a limited stay is allowed in Federal post-conviction proceedings.

I'd like to provide the Court with a practical example of how a limited stay might work, since that seems to have been of some concern.

An analogous Federal statute is 18 U.S.C. section 4241, the Federal competency hearing statute that the Court cited or provided a CF citation to in Rees.

That provides the framework for how a district court determines competency for a prisoner to stand trial and could provide a framework for how a district court should proceed with competency hearings in a case where it would be appropriate.

Under section 4241 the criminal defendant, if he is found incompetent, the district court may give an initial period of up to 4 months for him to be treated to determine whether he can come back to competency.

If he cannot regain his competency at the end of that 4-month period, then the court can grant an additional reasonable extension of that time if the doctors say that there is a reasonable probability that this prisoner can be restored to competence.

That could provide a framework, if that's what this Court is looking to do, for showing district courts how they could enter a limited stay.

Justice Antonin Scalia: Well, what's a reasonable extension?

Ann O'connell: Well--

Justice Antonin Scalia: Another 4 months?

6 months?

Ann O'connell: --I think we agree on the outer end that--

Justice Antonin Scalia: I was with you.

It seemed to me you had something really, really clear and solid until, you said “ reasonable extension ”.

Ann O'connell: --Well, but this is what district courts do.

They do it whenever a competency motion is filed in a Federal criminal trial, and we agree with the -- the outside limit of about a year.

It depends on the -- the interests at stake, the interests at stake in the State in proceeding with its judgment and the interests in finality and whether the doctors think that there's actually a chance that this prisoner could be restored to competence if they work a little harder.

If the -- if the evidence is crucial or necessary or there's some indication that we want to work hard to get this information from the prisoner, we would go for a little bit longer.

But at some point, that attempt to restore the prisoner to competency has to end and the -- and the proceedings should move forward based on the best evidence that's available.

Justice Elena Kagan: But, Ms. O'Connell, where does that outer limit come from?

You suggested looking to that statute as an analogy, but there would be no outer limit in application of that statute, would there?

Ann O'connell: There's not.

But -- but at some point we do give up, and the district courts have discretion to determine how long that would be, and -- and again, we propose an outer limit of about a year, but it's up to the district court in that particular circumstance to see how hard they want to work to try to get that evidence into the proceeding.

Justice Antonin Scalia: Is that any different from what the defendants are arguing here?

Ann O'connell: Well--

Justice Antonin Scalia: They're saying, you know, give a -- give a temporary stay and extend it as long as -- as you need to.

Ann O'connell: --Well, the--

Justice Antonin Scalia: So you're taking their position.

Ann O'connell: --No.

The difference between our position and that position is that if after a reasonable period of time the prisoner cannot be restored to competence, the claim should move forward without him using the best evidence that's available.

That's because when we arrive at post-conviction proceedings, we have a conviction and a sentence that have been affirmed on direct appeal and are presumed to be valid, and although it's a valid consideration for the district court to take into account whether the prisoner is competent and could assist his counsel has a role in these proceedings, there's no right for the prisoner to be competent during the post-conviction proceedings.

Chief Justice John G. Roberts: You said shortly after a reasonable period of time.

I thought you were saying after a year.

I think it's -- it's some guidance to say no more than a year.

It's really no guidance to say after a reasonable time.

Ann O'connell: Yeah.

We think the outer limit should be presumptively about a year.

It's not to say that the United--

Justice Ruth Bader Ginsburg: You're talking about a very narrow range of cases, because I take it your principal position is it -- it would be unusual that the defendant needs to be competent in order for the lawyer effectively to represent him on habeas.

So, under what circumstances do you think competency matters so that the lawyer should not be expected to go on without a competent client?

Ann O'connell: --Justice Ginsburg, we think that it would not be an abuse of discretion for the district court to allow the defendant to try to regain his competence and help his lawyer with the proceedings if there is some opportunity for him to present evidence or to present new claims in his proceeding.

That may be the case.

It will often be the case for a section 2255 petitioner.

It is his first round of Federal post-conviction proceedings.

It may be his first opportunity to present an ineffective assistance of counsel claim.

And in those circumstances, if he has something that -- if the lawyer has something that he wants the prisoner's assistance with or may need testimony from -- from the prisoner, we think the district court has discretion to allow a stay, a limited stay to allow the prisoner to regain his competence.

Justice Samuel Alito: So it's not limited to cases where the review is restricted to the record.

Ann O'connell: Right.

In those cases, we think that no stay is appropriate, that it would be an abuse of discretion to enter a stay.

AEDPA doesn't tolerate delay without a justification, and if it's a record-based claim like a State prisoner where he's barred by section 2254(d) in Pinholster from bringing in new evidence and that the review is strictly limited to the State court record, then there is no role for the prisoner to play and it would be an abuse of discretion for the district court to stay the proceedings in an effort to bring him back.

Chief Justice John G. Roberts: What is the standard when the district court is deciding whether to stay the proceedings?

We've heard a number of them, plausible basis in the record, truly plausible, Iqbal.

Which -- which -- what is the Government's position on the appropriate standard?

Ann O'connell: We -- we think that the district court has discretion to grant a stay when the prisoner's participation could be -- he could provide a useful source of evidence or guidance in the proceedings.

Chief Justice John G. Roberts: Could.

Ann O'connell: Yes.

Chief Justice John G. Roberts: Your standard is “ could provide ”?

Ann O'connell: Yes.

In those circumstances, we don't think the district court would abuse its discretion by allowing him an opportunity to regain his competence.

Justice Antonin Scalia: “ Could provide ” means might provide; is that it?

Ann O'connell: Yes, yes.

Justice Antonin Scalia: So just a possibility--

Ann O'connell: Right.

Justice Antonin Scalia: --that's all it takes?

Ann O'connell: If there is an opportunity for this prisoner to present new claims or new evidence in his section 2255 proceeding, that we don't think it's an abuse of discretion for the district court to allow him that opportunity.

Justice Sonia Sotomayor: But you cap it by saying as long as the discretion is not exercised for more than a year.

Ann O'connell: That's right.

We think it has to be just a limited stay.

We -- the United States would be opposed in any circumstances to a stay that's conditioned only on the prisoner's ability to regain his competence.

At some point if he can't, we move forward.

Justice Sonia Sotomayor: Would that standard have been met in both of these cases?

Meaning, Carter's claim -- and the one that concerns me the most is why he was excluded from trial, and what if he did or did not do with his attorneys afterwards.

And Gonzales is a slightly different case.

But would your position be that in both cases there was enough?

Ann O'connell: Not just that there was enough, but that the Federal court would be prohibited from considering further information.

Justice Sonia Sotomayor: No, no, no.

My question was, on the facts of both of these cases, was there a basis for granting the stay with respect to--

Ann O'connell: No.

Justice Sonia Sotomayor: --their conditions?

Ann O'connell: No.

Because both -- all of the claims involved in these two cases are limited to the state court record and Federal post-conviction proceedings under Section 24 -- 2254(d) and Pinholster.

This prisoner could not provide any new evidence to his client that could be introduced at court or that could be relied on by the Federal court.

Justice Sonia Sotomayor: Neither Carter or Gonzales?

Ann O'connell: That's right.

Justice Stephen G. Breyer: Why would we, in this kind of case, as opposed to, say, some other case where a witness is missing and it's crucial?

The district court does have authority to grant stays.

And we haven't said, but no longer than a year.

Why do we say, but they do it in a reasonable time?

If they abuse their discretion, there is mandamus, or there are other ways of controlling the discretion.

Why are we suddenly here, in this case, imposing a fixed number of days?

I mean, the reason, of course, that the psychological association says six months to nine months is they have different studies.

In some places, it's six months; in some places, it's nine months.

And so why are we picking a number out of a hat here when we don't elsewhere?

Ann O'connell: The Court doesn't have to do that.

We're -- we were suggesting a year as the outer limit just because that is sort of what the amici say is sort of the outer limit for when people will be restored to competency if they are going to be able to be restored; but, the Court doesn't have to -- to set an outer limit.

I mean, it -- it -- but it -- what we are most--

Justice Stephen G. Breyer: It should, but it should be something like reasonable or don't abuse your discretion or -- I mean, at the moment, I'm just not seeing why this is different than 10,000 other kinds of instances where we set that kind of limit, rather than days.

Ann O'connell: --Well, perhaps it isn't.

But to -- to go along with that analogy, if a different piece of evidence or a different witness were unavailable, we wouldn't allow the district court to hold up the proceedings indefinitely to wait for that witness.

And so it should be no different when the Petitioner--

Chief Justice John G. Roberts: You don't mean -- you are not suggesting that don't abuse your discretion is a limit, are you?

Ann O'connell: --Well, you know, if the Court wants to provide more -- more guidance to district courts, I mean, we would say that about a year is how long it would take for a person--

Justice Ruth Bader Ginsburg: Well, why should the--

Ann O'connell: --to regain their competence.

Justice Ruth Bader Ginsburg: --why should the Court do that?

Why should it provide any guidance if, as you say, in both of these cases the review is limited to the record, and we would never get to the question of, if it weren't reviewed, limited to the record, then what?

Ann O'connell: That would be a perfectly appropriate -- also a perfectly appropriate way to dispose of this case, to conclude that all of these claims were limited to the record, and that it was an abuse of discretion to grant a stay in these cases.

Thank you.

Chief Justice John G. Roberts: Thank you, Counsel.

Ms. Marquez.

ORAL ARGUMENT OF LETICIA MARQUEZ ON BEHALF OF THE RESPONDENT

Leticia Marquez: Mr. Chief Justice, and may it please the Court:

I'd like to begin by correcting a statement by the United States.

Mr. Gonzales is not precluded by 2254(d) or Pinholster.

Mr. Gonzales has identified several ineffective assistance of counsel claims that would be ripe for review under this Court's decision in Martinez and, therefore, would be available in district court.

And we would also be able to present new evidence.

Justice Elena Kagan: Ms. Marquez, could you tell me, if it were the case that somebody was limited to the state court record, what's your best example of a case in which, nonetheless, a stay would be appropriate; in which, nonetheless, consultation with the client was necessary for a full and fair adjudication?

Because I have been trying to think of examples, and, you know, I'm not doing very well, quite honestly.

So what's your best one?

Leticia Marquez: Well, in our particular case, we -- we raise several claims in habeas -- in habeas proceedings.

We raise guilt claims, and we also raise sentencing claims.

And it is often the case with our clients that, at their direction, they choose not to -- not to pursue or do not want to pursue sentencing claims and want to only pursue guilt claims.

So those are claims that are strictly on the record, and under the ABA guidelines the client is the ultimate decisionmaker as to where the particular representation is going.

So that is a huge, all-encompassing decision that a client needs to make as to the ultimate outcome of his or her case.

Justice Sonia Sotomayor: Well, that is that you're -- that seems like almost a due process argument, that in every single case you have to grant a stay.

You're -- you're parting from the Respondent in Carter, and you are making a broader argument.

Leticia Marquez: Well, Your Honor, where it does -- just an example of where if there is a client in -- in that particular situation--

Justice Sonia Sotomayor: No incompetent client, presumably, can help you make those decisions.

So tell me, are you saying that in every single case, the client is entitled to a stay?

Leticia Marquez: --No, Your Honor, we're not saying in every single case.

Justice Sonia Sotomayor: So why does that situation give you an entitlement if it's not in every single case?

Leticia Marquez: The -- that situation goes with the ABA guidelines and what an attorney's duties are to maintain communication with the client.

And that's just but one reason why we need a -- a competent client.

But to answer your question--

Justice Antonin Scalia: Excuse me.

If the client is incompetent, you -- you bring both claims, right?

You -- you both -- you both challenge the guilt, and you challenge the sentence.

Leticia Marquez: --That -- that is if a client is incompetent.

I suppose, if that's -- if we were forced to do so, we would.

Justice Antonin Scalia: So why -- why -- why is it -- it is unfair to prevent -- to stop everything so that the client can tell you not to bring one of those things?

I don't know why that's unfair.

Leticia Marquez: That's just but one -- one reason why we would need a client.

But to answer Justice Kagan's question, we -- we -- there are several claims.

Ineffective assistance of counsel claims are -- are necessary for -- for us to be able to talk to our client.

And especially in this case, where there was an antagonistic relationship between his -- the client and the trial lawyer, that would put the situation in context, and we would able to -- be able to identify those facts.

Justice Ruth Bader Ginsburg: Why couldn't you use the transcript?

Everything -- all -- all the exchanges between the defendant and the trial judge are in the transcript.

Leticia Marquez: Well, in -- there -- there are -- transcripts are -- are available and -- but there are situations that are not transcribed.

In inner -- in ineffective assistance of counsel claims, the interactions between the lawyer and the client at the prison, at the jail--

Justice Antonin Scalia: But you can't get that in, right?

I mean, aren't you limited to the record?

So what -- what use is it--

Leticia Marquez: --Well--

Justice Antonin Scalia: --to -- to find out these little -- little secret things that your client knows if they cannot be admitted?

Leticia Marquez: --Well, as this Court held in Pinholster, not all Federal habeas claims fall within the scope of 2254(d).

And there are situations where we would be granted an evidentiary hearing.

In this particular case, we have not yet been -- briefed our 2254(d) claims.

We are at the stage where we're going to brief merits claims, and, in addition to that, we are going to brief evidentiary development in this case, where we would have to assert what -- what facts need to be developed and, also, the diligence standard.

Justice Sonia Sotomayor: What in the record could plausibly, certainly be seen that would suggest that your defendant has information that could be valuable?

Assume it's not the ABA standard, but the plausibility standard or the certainty standard or something.

Leticia Marquez: Well, there was -- there is information in the record that the trial judge and our client had an antagonistic relationship.

And there was comments -- the trial prosecutor was interviewed -- or said on the -- on the record that the judge and the defendant, Mr. Gonzales, snarled and snapped at each other.

Justice Sonia Sotomayor: Well, that you can see from the record.

Leticia Marquez: Right.

Justice Sonia Sotomayor: What would plausibly give rise to a belief that there was some ex parte exchange between the judge and the defendant?

Is there anything to suggest that in the record?

Leticia Marquez: Well, we would -- we would suggest that the actual relationship itself.

We would have to know where -- where this relationship went awry, or why it is that Mr. Gonzales and the trial judge were basically at each other's throats.

The intensity--

Justice Sonia Sotomayor: Do you have anything to suggest that there had been an ex parte exchange that would account for that snarling?

Leticia Marquez: --We currently have not been able to get that information from our client as to -- to sit down to -- with our client and say, what happened in this situation?

Justice Ruth Bader Ginsburg: The district judge in this case explained why he concluded that there was no issue that couldn't be fairly adjudicated on the basis of the record.

What was wrong with his explanation?

He looked at the case carefully and he said: There's nothing that can't be fairly adjudicated on the record.

Leticia Marquez: First, initially, the district court judge agreed with -- with Mr. Gonzales that there was a need for Mr. Gonzales to be competent at his habeas proceeding.

And we actually began a course of -- of a competency determination.

And -- and that is a longer record.

Also, our client went into -- was treated at the State mental hospital.

However, the -- we believe the trial, or the district court judge, was in error when he made that finding.

The trial judge did not have -- or the district court judge did not have all the evidence before it when the district court looked at the particular claims.

We were just asked to identify.

We did not put forward a -- a complete briefing on that issue.

And the--

Chief Justice John G. Roberts: Counsel?

I'm sorry--

Leticia Marquez: --the judge decided it just on a motion.

Chief Justice John G. Roberts: --If -- if we think it's necessary to set some objective limit on how long an inherent authority could be exercised, is there any reason to adopt any limit other than the one that the psychiatrists have suggested, which is, I gather, most people, if they're going to, will recover competence within 9 months?

Leticia Marquez: Excuse me, Your Honor.

No.

We -- a year or 6 months, just by listening to the questions from the Court, seems to be problematic.

We suggest that this is all within the district court's discretion.

Chief Justice John G. Roberts: So if we're looking for a little more guidance than that, and feel the need for an objective standard other than abuse of discretion, you don't have any number that has any basis in psychiatric evidence, or anything else, besides the 9 months?

Leticia Marquez: Well, Your Honor, we would suggest that the Court look to this decision in Rhines, where -- and my answer is, we can look at a year.

And possibly, if the client is not competent at the end of that year, then explore other options such as next friend or perhaps proceeding.

But what we would do is direct the Court to this Court's decision in Rhines, where stays were -- where district courts are allowed to -- to stay a proceeding so that the petitioner could -- could go back to State court and exhaust.

And in -- in that decision, the Court was specific as to guidelines for the district court to assert its discretion.

30-day updates, make sure that clients are not -- are not being dilatory in seeking these stays, and so forth.

And the -- there has not been a problem with Rhines stays.

The district courts have been able to handle those stays.

Justice Sonia Sotomayor: Counsel, in this case, the district court denied a stay.

If this is an equitable power, how can you be comfortable that the Ninth Circuit as an appellate court overrode the district court's equitable discretion?

Leticia Marquez: We believe that the district court was -- abused its discretion, but first did not apply the correct standard, which is essential communication.

The district court erroneously decided that Mr. Gonzales was not essential, or his communication was not essential to the proceedings.

Justice Sonia Sotomayor: But you're not claiming that that issue is always in the district court's hands to start with.

Leticia Marquez: Yes.

Justice Sonia Sotomayor: So please identify for me what -- how we establish or set a standard so that appellate courts are not overriding that at whim?

Leticia Marquez: Well, we would -- we would urge the Court to adopt the district -- or the Ninth Circuit's essential communication standard, where you first have a finding of competency, and then a determination of whether that client's communication is essential to the proceeding.

Justice Sonia Sotomayor: Oh, you're flipping it.

You're saying first you give a stay for competence.

You've determined competency first and not essentiality first?

Leticia Marquez: Well, that's how the cases are -- are being raised.

Always there is a question of competency, and then the courts are looking to whether or not there is essentiality.

I would also like to address the argument that the AEDPA somehow -- or AEDPA -- somehow forecloses any types of stays.

Congress recognized the need for finality to be balanced against a firm regard for due process and full constitutional protections.

So we are--

Chief Justice John G. Roberts: Nobody here thinks today -- no one's arguing that it prevents any kind of stay today, right?

Leticia Marquez: --But I was just -- I was just letting the Court know that the AEDPA does not foreclose stays.

I thought I heard--

Chief Justice John G. Roberts: I didn't understand -- I thought everybody was focusing on the limitation on stays.

And surely AEDPA is pertinent when it comes to recognizing the need for those limits, right?

Leticia Marquez: --Exactly, Your Honor.

Also, I would like to address the Court's -- or the Government's concern as to whether or not these cases, or Rohan decisions, would open the floodgates to district court stays.

The -- we've pointed out in our briefs on page 32, 33, the few stays that have actually been granted.

The district courts have been handling these motions.

And unless there's any further questions--

Justice Samuel Alito: Well, if there -- if the Court were to point to some guideline as to the maximum length, or the presumptive maximum length of a stay, what -- because that's the period within which there's a good chance in most cases of restoring a petitioner to competency -- at what point would that begin to run?

Would there be any obligation to begin the treatment prior to the -- to the time when the motion for a stay is -- is filed?

Could many years go by with the same attorney representing a client, and then at the very last minute -- and no effort is made to obtain treatment that would restore the petitioner to competency, and then at the very last minute, a motion for a stay is entered, and then this period of time -- 6 months, 9 months, a year, whatever it is -- would begin to run?

Leticia Marquez: --I believe there's an obligation for counsel to continue to try to effectively communicate with his client.

And once that attorney gets to a point where that incapacity forestalls that attorney from being able to move forward on his case, then that attorney is at that point under a duty to raise this claim with the district court.

Justice Anthony Kennedy: Well, is he under duty to raise it as soon as possible, at the risk of forfeiture if he doesn't?

That's the import of the question.

Leticia Marquez: Well, that's -- that's the million dollar question.

I would think that the--

Justice Anthony Kennedy: Well, that's why I'm asking.

[Laughter]

Leticia Marquez: --I -- I think the ABA guidelines on ethical duties guide attorneys to make that decision.

And yes -- I'm sorry -- if there is dilatory action on the part of the attorney, that is something for the district court to consider in issuing a stay.

Justice Samuel Alito: Well, here, the motion -- when was the motion made, the motion for a competency determination and a stay?

Leticia Marquez: The motion in this case was made when we -- the stay was lifted in district court, and we were ordered to do -- to do merits briefing.

Justice Samuel Alito: And when was that?

Do you remember the date, roughly?

Leticia Marquez: That was in 2000 -- February 2006.

Justice Samuel Alito: And when was the initial habeas petition filed in district court?

Leticia Marquez: It was filed in July 2000.

Justice Samuel Alito: Of 2000?

Leticia Marquez: Yes.

Justice Samuel Alito: So why wasn't there -- then there was no obligation to do anything between 2000 and 2006?

Leticia Marquez: The counsel was attempting to communicate with the -- with Mr. Gonzales the entire time.

At that point, the case was stayed in district court for Rhines and Ring and Summerlin determinations.

And--

Justice Samuel Alito: It was only after 6 years of being unable to communicate with him that the attorney said maybe there's a competency problem here?

Leticia Marquez: --No.

We were having difficulty with the client the entire time since we started -- since we first got on the case.

And after -- and we just thought he was a difficult client.

And after we -- we filed the amended petition, which was basically a notice pleading, the -- within a month of that, we first got in contact with mental health experts saying there's something wrong with this guy, and sought to put together his mental health history.

At that point, Mr. Gonzales was back in State court exhausting issues and raising Ring claims.

In that court -- in the State and district court -- in that court, his post-conviction counsel raised ineffective assistance -- I'm sorry, competency issues -- and it was -- and it was an incompetency to assist in post-conviction -- post-conviction -- and that claim was denied.

Chief Justice John G. Roberts: So, did -- did he begin treatment prior to the district court order on Federal habeas?

Leticia Marquez: No.

It was not until the district court ordered -- or, actually, the district court ordered him transported back to -- or transported to the state mental hospital, and there he was to be evaluated to finally determine competency.

And while there, he was -- he was treated.

And while he was being treated, he was starting to regain competency, at least to some extent.

Then treatment stopped.

Justice Ruth Bader Ginsburg: Treatment stopped because he said there were side effects?

Leticia Marquez: Because he had back pain.

And then we began briefing on what the course of treatment should be, if any.

Chief Justice John G. Roberts: Well, so how -- what is this nine months or one year?

Is that the amount of time he's under treatment or the amount of time from the district court determination?

Leticia Marquez: I believe he was at the state mental hospital for about six months, and he was being evaluated.

And as -- inadvertently, then, the state mental hospital began treatment.

Justice Sonia Sotomayor: The million dollar question: Assume we say you have to spend a reasonable time trying to get someone to competency.

And, here, there appears to have been efforts to do so.

And your client is saying, I can't be treated because the drugs make me sick.

So when does all of this end?

Leticia Marquez: Well, first, our client did not say he couldn't be treated because -- that he couldn't be treated.

It was just these specific drugs.

And we were on a course of trying to figure out what, if any, other regimen was available.

And we believe that it is within the district court's--

Justice Sonia Sotomayor: Well, that time has passed by now, hasn't it?

That that -- they stopped treating him?

Leticia Marquez: --They -- they quickly transported him back to DOC, and he is not being treated currently.

Justice Sonia Sotomayor: No one's continuing to monitor him or trying to treat him?

Leticia Marquez: No, Your Honor.

And we are -- we do not have -- he will not see us, and we do not have access to medical records because we do not have a current release.

And the district court did not grant us an order to get those records on a consistent basis.

So we have no access to our client whatsoever.

Justice Sonia Sotomayor: I'm a little confused as to--

I think the Ninth Circuit remanded so that treatment could be had.

So why has it stopped?

Leticia Marquez: Well, we haven't moved forward in district court.

We have been here appealing our decision.

Or the state has appealed the decision.

Chief Justice John G. Roberts: Thank you, counsel.

General Horne, you have three minutes remaining.

REBUTTAL ARGUMENT OF THOMAS C. HORNE ON BEHALF OF THE PETITIONER

Thomas C Horne: Thank you, Your Honor.

I need to disagree with the Solicitor General on one point about the standard.

The standard has to be essentiality.

The witness has to be essential.

In fact, you heard my friend representing Gonzales emphasize essentiality, and it was emphasized in their -- in their responsive brief at pages 1, 2, 9, 10, 11, 12, 21, 30, and 39.

On all of those pages, they said the witness's testimony must be essential.

Justice Elena Kagan: General, could I ask you, you have been arguing on two different axes.

One is how tight the standard should be to grant any stay at all, and the other is what limits there should be on how long a stay can be if a stay is warranted.

And I'm just curious, if I forced you to prioritize in terms of the state's interests in effective habeas adjudication, which is more important, you know, cranking up the standard, or making sure that there is a time limit in place?

Thomas C Horne: Well, I think the first -- the first priority is that there should be no indefinite stay, and the second priority is that there should be no stay in a records-based case.

Those are the two prongs of the Ninth Circuit decision which we think--

Justice Elena Kagan: But ordered in that way, that, for you, the time limit is the more important?

Thomas C Horne: --The time limit is crucial, but I have to say no stay on a records-based case is a matter of pretty clear law that is--

Justice Elena Kagan: Yes, I know.

But, really, I said, if I forced you to prioritize between the two.

Thomas C Horne: --I would say it can't be indefinite.

That would be the first priority.

But I think it's also clear from this Court's very definite statements in a number of cases that -- that there cannot be a stay in a records-based case.

Now--

Justice Ruth Bader Ginsburg: Opposing counsel says there is an exception for ineffective assistance of counsel under our decision in Martinez.

Thomas C Horne: --Your Honor, in this case, the district judge specifically found that there is no possibility for a case of ineffective assistance of counsel, that those were waived by the -- by -- when the case was sent back to the state for additional post-conviction relief proceedings, that claim was waived.

It's in the district court's order, Appendices B and C to our -- to our petition.

And even the Ninth Circuit didn't argue that.

The Ninth Circuit argued that there was an issue as to whether there was prejudice by the judge.

But there is a very detailed analysis, again, in the district court's order, showing that every time that claim was made, and was claim -- made a number of times in the state proceedings, it was clear that those were on-the-record comments.

There was nothing secret.

There was nothing ex parte.

Those were on-the-record discussions that were being complained about.

And the district court judge found that if there was something secret, then those have been waived by the petitioner because he didn't bring it up in the numerous case -- times that it came up at the state level, and he was talking only about on-the-record comments by the trial judge.

Chief Justice John G. Roberts: Thank you, General, counsel.

The two cases are submitted.

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ORAL ARGUMENT OF ALEXANDRA T. SCHIMMER ON BEHALF OF THE PETITIONER

Chief Justice John G. Roberts: We'll hear argument first this morning in Case 11-218, Tibbals v. Carter.

Ms. Schimmer.

Alexandra T Schimmer: Mr. Chief Justice, and may it please the Court:

This case is here from the Sixth Circuit, which held that habeas claims can be stayed indefinitely because prisoners have a statutory right to competence to assist in their case, but even Mr. Carter now disowns the circuit's rationale, and the court's indefinite stay order was wrong for two other reasons.

First, habeas claims cannot be stayed indefinitely.

Doing so is fundamentally incompatible with the timeliness concerns underlying AEDPA.

Second, while we readily acknowledge that limited stays will be appropriate in some situations, this is not one of them.

All of Mr. Carter's claims are record based and, therefore, resolvable without his assistance.

Justice Elena Kagan: What situations would they be appropriate in?

Alexandra T Schimmer: Limited stays, we think, Your Honor, would be appropriate in situations where the prisoner's ability to effectively communicate with his counsel or to disclose evidence would be necessary to his claim.

And we think that would be true in a case, potentially, where AEDPA does not restrict Federal review to the state court record.

So here, for instance, we think that the prisoner's assistance would not be necessary, and, therefore, even a limited stay would not be appropriate, because all of Mr. Carter's claims were vetted before the state courts and decided on the merits.

And therefore, under 2254(d) in this Court's decision in Pinholster, the Federal court is limited to reviewing the state court record.

We don't think that the prisoner's assistance in that case is necessary.

We don't think Mr. Carter has made a case for why his assistance would be necessary in this specific case.

Justice Anthony Kennedy: Well, why -- why shouldn't the rule be that an indefinite stay is never necessary; you just proceed based on the evidence you have?

Sometimes we have evidence where a witness is missing.

We have to go on with the case.

Then it could be open to argue in a later case that there was new evidence that was not available.

Alexandra T Schimmer: Well, we absolutely agree, Justice Kennedy, that indefinite stays are never appropriate, regardless of the circumstances; that indefinite stays contravene AEDPA's timeliness concerns.

And to the extent that all of the parties in this case agree now that, to the extent district courts have some power to issue stays -- we say only limited stays -- in these cases, that power is grounded in equitable discretion.

And we do not think that it comports with equitable discretion to allow a prisoner essentially to win his case, to obtain a suspension of his capital sentence, the ultimate end relief that he seeks--

Justice Anthony Kennedy: What about the second part of the equation?

Suppose that there's no stay, that the habeas proceeding is adjudicated against the petitioner.

He then becomes competent and claims there's new evidence.

Would that be grounds to reopen, you think?

Alexandra T Schimmer: --We think in those situations, certainly the State of Ohio wouldn't contest, for instance, under 2254(b), that if you were incompetent before, that that would be a legitimate basis potentially for not having been able to reasonably discover a new claim, if one had a new claim.

So we do think that moving forward, that no indefinite stay should be permitted.

And when the courts move forward, yes, if someone's competency is later restored, there are backstops.

The person, certainly in Ohio, can always go back to state court--

Justice Anthony Kennedy: And would the backstop be newly discovered evidence?

Alexandra T Schimmer: --The backstop would be a newly discovered claim, I would say.

I think that would be what--

Justice Elena Kagan: Ms. Schimmer, if you are right that no stay was appropriate in these circumstances, we would never reach the question of how much of a stay is appropriate in other circumstances.

Isn't that right?

Alexandra T Schimmer: --I think that's right.

Because I think, to the extent that using this case as a springboard, the Court could draw the boundary line -- could draw one bright boundary line and say indefinite stays are never permitted, but limited stays might be permitted in cases where the claims are not record based.

Justice Elena Kagan: I'm saying the exact opposite.

Alexandra T Schimmer: Oh.

Justice Elena Kagan: In other words, if there was one bright line which says that stays are not appropriate in a record-based claim because there's really nothing that the client can contribute, then we'd have no need or cause to reach the second question of what happens, in a case where a stay might be appropriate, how long that stay should be.

Alexandra T Schimmer: That's correct, Your Honor.

I'm sorry, I agree.

I agree with you that the Court could rule on that ground.

Justice Antonin Scalia: Alternatively, we could -- we could rule that indefinite stays are never appropriate; in which case, it would be unnecessary to decide whether any stay is appropriate where -- for a record-based claim, right?

Alexandra T Schimmer: That is true, too.

That is--

Justice Antonin Scalia: We can do it from either end.

Alexandra T Schimmer: --That is true, too--

Justice Antonin Scalia: Or we could decide both, I suppose.

Alexandra T Schimmer: --I suppose, yes.

I mean, we would urge the Court to, I think, do both, to say--

Justice Sonia Sotomayor: Am I -- am I understanding that your position in response to the question from Justice Scalia and Justice Kennedy is that for you, indefinite is any stay whatsoever?

It sounds like what you are proposing, or in response to them, is that no stay for purposes of determining competence, whether it's short or long, is permissible.

Is that your argument?

Alexandra T Schimmer: --That is not our argument, Justice Sotomayor.

Our -- our definition of an indefinite stay is a stay that is imposed until the prisoner is restored to competence.

That--

Justice Ruth Bader Ginsburg: Like -- like the stay in Rees.

Alexandra T Schimmer: --Like the stay in Rees, or, really, like the stay the Sixth Circuit has issued.

Justice Ruth Bader Ginsburg: You would have to -- to maintain your position, the Court would have to qualify Rees, or at least the interpretation that says the stay should be indefinite once the petitioner is found incompetent, because that's what happened there.

The Court said, find out if he's competent.

The answer was, he is incompetent.

And then the Court just let it sit until the man died.

Alexandra T Schimmer: Well, Your Honor, we don't think that Rees really has any force or provides any guidance in this case.

That, of course, was a case where a prisoner was seeking to abandon his further appeals.

There are multiple reasons why we think that Rees does not endorse the power of Federal courts to indefinitely stay habeas proceedings.

One is the fact that the Court's stay order was completely unexplained and very terse, didn't announce any rule of law.

Second, the historical record shows that the Court's stay in Rees was, at most, a judicially negotiated settlement, meaning far from a demonstration of the Court's inherent power.

It seemed to be a very carefully orchestrated exercise of consented-to power.

The third point is that--

Justice Sonia Sotomayor: I could take objection to that characterization, because the clerk of the Court told the Court that neither party was happy with what was happening, and the Court still entered the order.

But let me go back to my question a moment.

Amici say that most competency issues are resolved within months and that many individuals, the vast majority, are restored to competency with proper medication within months.

Are you opposing those kinds of stays?

Alexandra T Schimmer: --Not in -- not where it's appropriate, no, Your Honor.

And again, Your Honor, our definition of an indefinite stay is--

Justice Sonia Sotomayor: But under your definition, it's never appropriate, really.

Alexandra T Schimmer: --No.

Justice Sonia Sotomayor: You argue -- you argue two things.

You say, under Pinholster, courts always have to rely on the record.

Alexandra T Schimmer: Correct.

We would -- here's how we would taxonomize the appropriateness of stays.

We would say indefinite stays are never permitted, meaning a court can never premise a stay exclusively on the restoration of the prisoner's competency, in saying however long it takes--

Justice Sonia Sotomayor: Even though a doctor says, it can be done, we have to try?

Alexandra T Schimmer: --If a doctor says, it can be done, we have to try, and it's a situation where it's appropriate--

Justice Sonia Sotomayor: Well, they can never say, it can be done.

They can say--

Alexandra T Schimmer: --Right.

Justice Sonia Sotomayor: --we have to try.

Alexandra T Schimmer: There is a reasonable probability that it can be done.

We would say, Your Honor--

Justice Sonia Sotomayor: That's also -- I'm not sure how they can do that until they try.

Alexandra T Schimmer: --Right.

So we would say in certain situations, yes, that would be perfectly appropriate.

The State of Ohio certainly agrees that having a competent prisoner is a desirable thing in a habeas case and that courts do have some discretion to try to vindicate that goal.

Our point, though, is simply that it cannot come at all cost, meaning--

Justice Antonin Scalia: Rees was not an indefinite stay in -- in the absolute sense, was it?

Alexandra T Schimmer: --No.

Justice Antonin Scalia: Because the trial proceeded.

There was going to be an end, right?

Alexandra T Schimmer: Well, the Court -- the Court in the end held up the cert petition for several decades without deciding the case.

And in the end Mr. Rees died and then the cert petition was ultimately later dismissed.

Chief Justice John G. Roberts: I don't understand how your approach works.

The defendant, the habeas petitioner, the allegation is made: I'm incompetent, there is support for it.

The district court says: Okay, I can't enter an indefinite stay, but you are going to be treated; I want you to come back in 6 months, okay, and we will look at it then.

He comes back in 6 months, and there's been no change.

What happens then?

Another 6 months?

At what point does it become indefinite?

Alexandra T Schimmer: Right.

Well, since we are playing on the field of equitable discretion, Your Honor, it's going to be difficult to put forward a hard and fast rule.

But Justice Sotomayor rightly points--

Chief Justice John G. Roberts: Well, give me a loose and soft rule.

I mean, is it--

Alexandra T Schimmer: --Sure.

A loose and soft rule.

Chief Justice John G. Roberts: --is it two years, or is it ten years?

Alexandra T Schimmer: We would say presumptively a year.

And we think there is support for that, even from Mr. Carter's own amici.

The brief of the American Psychiatric Association, pages 19 to 21, and especially footnote 30, talks about how most prisoners who are ultimately successfully restored to competency, that does happen in a matter of months, 6 to 9 months at the longest end; about 90 percent of them are restored within 6 to 9 months.

So we think, presumptively, a year would be an appropriate period of time for--

Justice Elena Kagan: Well, Ms. Schimmer, why would that be?

I mean, assume a case where you say a stay would be appropriate.

So it's not a closed record case; it's a case where the client might be expected to provide information that's -- let's assume it's necessary to a full and fair adjudication of the habeas claim.

Why would you cut it off at a year?

Why wouldn't it be still true in 2 years, that a full and fair adjudication couldn't take place in those circumstances?

Alexandra T Schimmer: --Well, we think, Your Honor, at the point at which you say that the test for a limited stay is however long it takes to restore somebody's competency is the point at which we have returned to the definition of saying that indefinite stays are proper.

And the bottom line is that we think that--

Justice Elena Kagan: Well, it's not an indefinite stay.

I think the judge would do what the Chief Justice suggested, that, you know, it's not for ever and ever.

We're just going to come back to it periodically.

But if the answer is the same, which is that the client's participation is necessary for a full and fair adjudication, then the Court's answer should be the same, too.

Why isn't that right?

Alexandra T Schimmer: --Because we do think that there comes a point, given the finality concerns underlying AEDPA, that a limited stay, when that window expires -- the person has a reasonable period of time to be restored to competency; that when that window expires, at some point the proceedings do have to continue.

Justice Antonin Scalia: Well, it's really not the same question when it comes back, is it?

Because there are two questions: Is reasonable competence useful for his defense; but, also, the second question, is there a reasonable probability that he can be restored to competence?

The first time, there obviously is that, and you give him a year.

When you come back a second time, you say, well, it's been a year.

They usually come back within 6 to 9 months.

There is no longer a reasonable probability.

Alexandra T Schimmer: That's exactly right, Justice Scalia.

And to the extent that we are balancing different parties' interests in these cases, after the preliminary limited stay expires, we believe at that point the prisoner's interest in a continued stay has diminished, and the State's interest in the proceedings continuing and moving forward has then increased, and that the court should then move on.

Justice Ruth Bader Ginsburg: There be no stay at all unless it's necessary for just adjudication of the claim, so that would be a threshold question.

Alexandra T Schimmer: That would be the threshold question, and there seems to be a good amount of consensus on that point.

It's the test articulated by the Sixth and Ninth Circuits and by my colleague here today.

And we're willing to accept that as the test for when limited stays can be imposed.

With that, if there aren't further questions I'll reserve the remainder of my time.

Chief Justice John G. Roberts: Thank you, counsel.

Mr. Michelman.

ORAL ARGUMENT OF SCOTT MICHELMAN ON BEHALF OF THE RESPONDENT

Scott Michelman: Mr. Chief Justice and may it please the Court:

Ohio and the United States have agreed today that courts have the authority to stay habeas proceedings when the petitioner is mentally incompetent.

So then the questions for this Court are when may such stays issue and how long may such stays be.

The Court's answers should reflect the important principle that no individual should lose potentially meritorious claims because of mental illness.

I'd like to begin by addressing--

Justice Sonia Sotomayor: Petitioner says they won't because they can come back with new evidence after habeas is closed.

Why is that inadequate?

Scott Michelman: --I think that's -- that's a crucial question, Justice Sotomayor, that Justice Kennedy asked as well.

And it goes to the limits on second or successive petitions.

They can't come back if they are later competent if they first lose their claim because they didn't have the evidence they needed and then try again later.

They are subject to the bar on second or successive petitions, which requires not only that they have new facts, but also that they have new law.

So that's a very restrictive standard that would not allow them to simply pick up where they left off.

Chief Justice John G. Roberts: I'm sorry, I didn't follow that exactly.

What -- what prevents them from picking up where they left off?

Scott Michelman: Mr. Chief Justice, section 2244(b), the bar on second or successive petitions.

Imagine Mr. Carter has a potentially meritorious claim now that he can't speak to because of his incompetence, it's adjudicated without him, he loses it.

Chief Justice John G. Roberts: Oh, it's adjudicated, okay.

Scott Michelman: Imagine it's adjudicated without him, he loses it, and then he can't simply waltz back into court and say: I'm here, I'm competent; hear me out.

Justice Sonia Sotomayor: I'm presume -- I presume that the one claim among your many -- yours is the defendant who was excluded from trial, correct?

Scott Michelman: Yes, Justice Sotomayor.

Justice Sonia Sotomayor: So that if he comes back and says, I told my attorneys I would behave, and I wanted to come back earlier, but they never let me back in, this would not be a new claim, this would be part of the old claim that has been adjudicated, correct?

Scott Michelman: Yes, Justice Sotomayor.

Justice Sonia Sotomayor: But without his information.

Scott Michelman: Yes.

And, in fact, the record lends some support to this suggestion by showing that counsel frequently put their own safety and their own concerns ahead of my client's interests, for example stating on the record -- and I'm quoting here from trial counsel --

"I am still worried about him behaving during this phase. "

"So the bottom line is, he wants to stay where he is. "

So there is a question of whether trial counsel was really looking out for Mr. Carter's interests at that time.

There's also the question of whether--

Justice Sonia Sotomayor: Well, that you could see from the record.

The question in my mind would be whether he told counsel he would behave and counsel ignored that information, correct?

Scott Michelman: --Yes, Justice Sotomayor.

There is strong support in the record to suggest that Mr. Carter has additional information to provide, both about his desire to return to the courtroom and about his competence once he was removed from the courtroom.

Was he hallucinating during the trial?

Could he see it?

Could he communicate with counsel?

Justice Anthony Kennedy: Could you help me with your discussion of 2244(b)?

I have it in front of me.

And the hypothetical was that he's incompetent, his claim is adjudicated, then he becomes competent, and he says now there is some new evidence which could not have been discovered.

I thought you told us that you not only have to have new evidence, but new law.

That's not the way I read--

Scott Michelman: I'm sorry.

Justice Anthony Kennedy: --(b)(2)(B)(1), unless I misunderstood you.

Scott Michelman: No, you're right, Justice Kennedy.

I misspoke.

He needs new law or new facts, but the new facts have to come with a showing of actual innocence.

I misstated that.

I apologize.

But, either way, new law is--

Justice Anthony Kennedy: No, no, no.

Scott Michelman: --new facts are not enough.

Justice Anthony Kennedy: This says,

"or the factual predicate for the claim could not have been discovered previously through the exercise of due diligence. "

period.

Scott Michelman: And--

Justice Anthony Kennedy: Yes?

Scott Michelman: --And (b)(2)--

Justice Anthony Kennedy: Yes?

Scott Michelman: "-- the facts underlying the claim, if proven, would show that but for the constitutional error-- "

Justice Anthony Kennedy: Yes, clear and convincing, that's true.

Scott Michelman: --Right.

So he needs not only the new facts, but needs to meet that higher standard showing that no reasonable factfinder would have found him guilty.

But one of his claims, his ineffective assistance of counsel in mitigation, goes to not his guilt, but his punishment.

So that claim would be barred under 2254.

Additionally, his competence doesn't go to his guilt either.

Justice Samuel Alito: Well, is it your position that any time a petitioner raises an ineffective assistance of counsel claim, the habeas proceeding can potentially be stayed indefinitely?

Scott Michelman: That's potentially correct, Justice Alito.

But I would emphasize the role of the district courts as gatekeepers for only potentially meritorious claims that are truly suggested on the record that someone--

Chief Justice John G. Roberts: I'm sorry, finish your answer.

Scott Michelman: --where it's truly suggested on the record that the petitioner could help, if competent, so that we wouldn't be engaging in imaginative speculation or claims that were purely record based.

Chief Justice John G. Roberts: So it's a truly suggested by the record standard?

Scott Michelman: Well, I would say that it would be suggested by the record.

I'm not sure the adverb truly is necessary.

Chief Justice John G. Roberts: Well -- well, how is it compared to a motion to dismiss standard?

Scott Michelman: Well, I would look to this Court's decision--

Chief Justice John G. Roberts: Is it more stringent?

Scott Michelman: --I think it would be -- well, I guess, not compared to the Iqbal standard, Your Honor.

Probably the plausibility standard would actually be somewhat analogous, although--

Chief Justice John G. Roberts: Well, now we've gone from plausible to truly -- plausible -- well, truly suggested by the record.

I mean, suggested by the record might be plausible.

It seems to me that it's a pretty loose standard that entitles the defendant to a stay.

Scott Michelman: --Well, but that's not the only criterion, Mr. Chief Justice.

It would be not only that it was suggested by the record that it was a potentially meritorious claim, as the district court found, and the standard this Court endorsed in Rhines, but also that the petitioner is genuinely incompetent.

This doesn't happen very often.

In fact, in the state's amicus brief discussing how, in their characterization, this type of litigation has exploded in the Ninth Circuit, in their characterization, they pointed only to nine cases in the past nine years, so -- and not all of those resulted in--

Justice Samuel Alito: Well, why isn't what you're proposing just a mechanism that will permit stays in virtually every capital case, if that's what the petitioner wants -- if that's what petitioner's counsel wants?

Let's say you have a case where there is a small amount of mitigating evidence about the petitioner's childhood, but not enough to sway the sentencing authority.

It's alleged that if the petitioner had been -- if the petitioner was competent, the petitioner could provide a lot more information about what went on during his childhood years; and, therefore, the proceeding has to be stayed indefinitely until the petitioner is restored to competence or he dies, as happened in Rees.

What do you do with that situation?

Scott Michelman: --Justice Alito, I think district courts have a wide amount of discretion in that matter, and they could say, well, it looks like there is a little evidence here, but, based on what I think you could tell me, I don't think there is enough.

Here, by contrast, the district court did find that Mr. Carter's competent assistance was necessary.

So I think we have to trust the district courts to be gatekeepers--

Justice Samuel Alito: So if the district court says, well, there's a little bit here, and I can't rule out the possibility that there might be a lot more that's locked in the petitioner's mind, but he is unable to provide it because he is incompetent, then I'm going to grant a stay until he is restored to competence; and, then that would be insulated from being overturned on appeal by abuse of discretion standard; that's what you're arguing?

Scott Michelman: --That's -- that's correct, Justice Alito.

That would be something--

Justice Samuel Alito: Do you think that is consistent with AEDPA; that Congress, knowing, in particular, that a lot of district judges and a lot of court of appeals judges don't like the death penalty and will go to some length to prevent the imposition of that sentence, that we're just going to leave that all to the discretion of every individual district judge?

Scott Michelman: --I think it is consistent with AEDPA, Your Honor, because of this Court's recent jurisprudence in Martinez, in Holland and Rhines, which make clear that AEDPA did not pursue finality at all cost.

It did not eliminate the discretion, the equitable discretion of the district courts that they traditionally enjoyed, as this Court stated in Holland.

And as this Court stated in Martinez, the Court is concerned that there could be claims that no court will have heard, not the state court, not the Federal court.

Justice Antonin Scalia: Mr. Michelman, we have established a different standard for the degree of competence that has to exist in order to prevent execution, right?

The prisoner has to be aware of what is being done and why it's being done.

Scott Michelman: Yes, Justice.

Justice Antonin Scalia: And that's a much lower standard than the standard of competence required for deciding whether he can assist counsel, right?

Scott Michelman: It's a different standard, Justice Scalia.

Justice Antonin Scalia: Well, it's -- no, it's a much -- it's a much easier standard for the state to establish.

Scott Michelman: Well, it could be easier in some cases, but harder in others.

Mental -- mental health science is complex, so one might be competent to--

Justice Antonin Scalia: Well, wait.

All he has to know to prevent -- to prevent execution is he has to know that he's being executed for a crime, right?

And--

Scott Michelman: --And he has to understand why.

Justice Antonin Scalia: --in order to assist counsel, doesn't he have to know a lot more than that?

Scott Michelman: That's true, Justice Scalia.

The test--

Justice Antonin Scalia: Well, just make believe that I'm right about that, okay, that there are two standards, and one is really quite more difficult than the other.

Why isn't the difference between the standards utterly eliminated?

Because whenever there is a capital case, a habeas petition is filed, and counsel says, my -- my client cannot -- cannot assist me.

Oh, yes, he understands why he's being executed, but he may have a new claim, he may be able to tell me stuff, so we have to stay the execution indefinitely until he can assist -- assist me in continuing his defense.

You've just converted the standard for proceeding with the execution from an easier one to a much more difficult one.

Scott Michelman: --I don't think that's true, Justice Scalia, because the two standards are different and for different purposes.

So there could be individuals who meet one and not the other.

It's not -- it's not an either/or choice.

Justice Anthony Kennedy: But then -- but then you are fighting the arguendo assumption.

Let's assume that the Ford standard, the standard for competence to be executed, is more lenient, less -- less forgiving than competence to assist counsel.

Let's assume that.

Then Justice Scalia has to be right; you've simply eliminated the Ford standard altogether.

Scott Michelman: Not necessarily, Your Honor, because even if one is easier--

Justice Ruth Bader Ginsburg: At least only -- only in cases where the -- the claim of incompetence is genuine.

I mean, if anyone says, oh, I want to make -- take advantage of the more defendant-friendly standard, all I have to do is allege I'm incompetent.

But that's not the case.

He has to be.

There has to be a hearing that determines he is, indeed, incompetent.

And most defendants I don't think would be able to establish that they are, indeed, incompetent.

Scott Michelman: --That's right, Justice Ginsburg.

We -- our standard builds in the assumption that there will be mental health experts that will testify to the condition of the petitioner.

So the petitioner can't simply select a standard and declare that he meets it.

He would have to satisfy mental health professionals that he meets that standard, whether it's competency to be executed or competency for these purposes.

And so that will--

Justice Antonin Scalia: Mental health experts always agree, don't they?

Those provided by the defense always agree with those provided by the prosecution.

Yes.

Scott Michelman: --I understand sometimes that's not true, Justice Scalia, but that's why we rely on the district courts to do what they do every day in the trial competency context and adjudicate conflicting claims about a petitioner's mental competence--

Justice Anthony Kennedy: Am I -- is it correct that the petitioners in both cases -- pardon me, that the criminal defendants in both cases here, the Respondents, have all but conceded that there is no Constitutional basis for the right to competency during habeas, or am I overstating that?

Scott Michelman: --I don't think you are, Justice Kennedy, though I won't speak for Mr. Gonzales.

Mr. Carter does not press a Constitutional argument here, only the argument that a district court's discretion, which the State of Ohio recognizes, to stay habeas proceedings should cover--

Justice Anthony Kennedy: But once you concede the Constitutional point, so that there's no fundamental unfairness, then it seems to me that you have all but given away your case.

Scott Michelman: --Well, I don't think there needs to be Constitutional unfairness for there to be unfairness.

For instance, this Court's opinion in Martinez--

Justice Anthony Kennedy: Well, it's fairness that's not fundamental -- or--

Scott Michelman: --Well--

Justice Anthony Kennedy: --It's unfairness that's not fundamental.

Scott Michelman: --I think Martinez v. Ryan is an excellent illustration of that point, Justice Kennedy, because there, the Court held, not that there was a Sixth Amendment right to effective assistance of counsel at the habeas stage, but that ineffective assistance on initial review collateral proceedings could provide cause and prejudice to overcome a procedural default in order that the petitioner would not lose his claim, and that -- to prevent a situation where no court would hear of the claim before he was executed.

Chief Justice John G. Roberts: Well, but in that case, the whole basis of the analysis was that, although it was collateral, it really was the first opportunity to raise a particular claim.

You say that, earlier, that trial judges do this all the time in the trial context.

It's an important distinction in our jurisprudence if there's difference in terms of the rights to which you are entitled preconviction and post-conviction.

Scott Michelman: That's -- that's correct, Mr. Chief Justice.

But if the facts haven't been presented -- and here what of the district court found was there were facts missing, facts that were exclusively within Mr. Carter's knowledge.

They weren't presented to the State court, they haven't been available to either the State court or the Federal court, so it's possible this man could be executed and no one could have fully heard these potentially meritorious claims.

Chief Justice John G. Roberts: What is your -- what is your limit?

You think there is no limit on the inherent authority, that these things can go on and on?

Or as, I mean, your friend on the other side suggested, 1 year as a presumption?

Do you have any limit?

Scott Michelman: Well, we would leave it in the first place to the district court's discretion.

We -- as far as the question of indefinite stays go, we agree with the State of Ohio that most competency issues are resolved within a matter of months, so we can expect--

Justice Ruth Bader Ginsburg: But not this one, because the claim is he was never competent; isn't that so?

He wasn't competent to stand trial, and he -- his mental condition never improved.

So this person, if -- if the standard is he's got to be competent, the likelihood is he will never be competent because he wasn't even, according to him, competent at the time he was tried.

Scott Michelman: --Yes, Justice Ginsburg.

And this -- this would be a rare case in which a stay might need to be more than 6 months, 9 months, a year.

But because most -- in most situations, the competency issue will resolve in a short period of time, this Court shouldn't fear that it's opening the floodgates to long stays in many, many cases.

There -- this is a rare case with a very severely ill man with potentially meritorious claims that require his assistance.

That's not something that--

Justice Samuel Alito: Why can't the competency -- why can't the issue of competency at trial be resolved?

Scott Michelman: --Well, because the issue--

Justice Samuel Alito: You have to be competent during the habeas proceeding in order to assist in proving that he was -- that he was incompetent at the time of trial?

Scott Michelman: --Yes, Justice Alito.

And that's because the competency question at this point is retrospective.

We're not talking -- it's not a matter of simply examining Mr. Carter today and saying,

"How do you feel? "

"What do you experience? "

"Are you hearing the voice of the devil? "

But it's a question of was he doing that during his trial 14 years ago.

And that's why it's important that he be able to participate now.

What the Sixth Circuit ordered in this case was a remand for a narrow stay with appropriate monitoring by the district court to make sure that this didn't become just sit around on the docket for years with nobody looking at it.

Chief Justice John G. Roberts: Did you say that the question is whether or not, not whether he is competent today to assist his counsel, but whether he was 14 years ago?

Scott Michelman: Yes, Mr. Chief Justice.

Chief Justice John G. Roberts: How in the world--

Scott Michelman: With respect to the underlying claim.

That's the question.

Chief Justice John G. Roberts: --Right.

How is a -- do mental health professionals make those determinations on a regular basis?

Scott Michelman: I understand that they do, Your Honor.

I understand it is possible for a person with a psychosis to recover and have memories of experiences during that psychosis.

Now, I admit that's not a fact in the record, but that's something that, if we're dispositive, could be established on remand in this case.

So it's because of the rarity of these claims, because they are not going to come up every day, and because district courts exist as strong checkpoints to prevent non-genuine claims of competence or not potentially meritorious claims for which the petitioner's assistance is necessary, a narrow stay authority should be preserved and should be applied to Mr. Carter's case.

Justice Ruth Bader Ginsburg: But not staying everything, according to the Sixth Circuit.

The Sixth Circuit said that there are issues or may be issues that can go forward right away.

And as to that, is there any issue that could be argued despite the incompetence?

Scott Michelman: Yes, Justice Ginsburg.

Justice Ruth Bader Ginsburg: What are those?

Scott Michelman: Well, in this case -- and I think it really illustrates the narrowness of the Sixth Circuit's order.

In this case he had, for example, claims about the jury instructions.

He had claims about prosecutorial misconduct.

He has a claim about the method of execution that the State of Ohio uses.

These claims may go forward because they don't require his assistance.

And it's a measure of the Sixth Circuit's moderation and discretion that they held that only the claims that genuinely require his assistance should be stayed; the others may go forward with the help of the next friend.

Chief Justice John G. Roberts: That's a pretty inefficient system, isn't it, that a judge has to learn a particular record to dispose of claims 1 through 9, when he knows that he's not going to be able to dispose of the petition until the petitioner is competent, maybe a year later, then he has to go through the whole thing again?

I don't see a district court saying,

"Well, I'm not going to get into this until I can dispose of the whole thing. "

Scott Michelman: Well, I suppose there would be some appeal to the notion that the district court might stay the rest of it, simply waiting, Your Honor; but we don't think that's likely to happen frequently.

Thank you.

Chief Justice John G. Roberts: Thank you, counsel.

Ms. Schimmer, you have three minutes remaining.

REBUTTAL ARGUMENT OF ALEXANDRA T. SCHIMMER ON BEHALF OF THE PETITIONER

Alexandra T Schimmer: Thank you.

First off, are there is nothing narrow about what the Sixth Circuit held.

At page 15-A of the petition appendix, the Sixth Circuit ordered that all of the ineffective assistance of counsel claims be stayed until Mr. Carter is competent, meaning these claims will be stayed at any and all cost to the progress and finality of the proceedings.

Justice Sonia Sotomayor: Could you tell me what the value is to wait for the Ford analysis or the Ford examination to the time of execution?

Alexandra T Schimmer: We think there are a few values, Justice Sotomayor.

First of all is that the state has -- still has an interest.

First of all, we don't concede Mr. Carter is Ford incompetent.

Those--

Justice Sonia Sotomayor: Putting that aside.

Alexandra T Schimmer: --Putting that aside, though, the state's interest is that it still has this powerful interest in the finality of its conviction and sentence.

Justice Sonia Sotomayor: “ At all costs ” is what you seem to be saying.

Alexandra T Schimmer: No.

But even if the implementation of that sentence is ultimately forestalled by a Ford ruling, that's true in a dignitary sense, but it's also true in a practical sense, meaning the state should not -- if somebody gains competence many years down the line, the whole point of AEDPA is that the state at that time should not have to be litigating a stale case.

And to wait potentially 5 and 10 and 15 years until someone's competency is restored on this total speculation that something might happen--

Justice Sonia Sotomayor: Well, your adversary has not said it's total speculation.

He suggests that if we set a standard that requires -- we can talk about what the terms are: suggestive in the record, plausible in the record, typical sort of situation -- but assuming that there is some basis to believe that the defendant can provide information of importance to the claim, why should that be -- that door be shut?

Alexandra T Schimmer: --Well, again, Your Honor--

Justice Sonia Sotomayor: And how do you deal with his answer that if the claim is not a new claim, but just new information about an old claim, that he will be barred from a successive petition?

Alexandra T Schimmer: --Right.

Well, we still don't see how that has any traction in a case like this where, whether competent or not competent, 2254(d) and Pinholster say this claim -- all of these claims were adjudicated on the merits in state court, and, therefore, no new evidence can be considered by the Federal court.

So that, we think, resolves that.

And in terms of how you deal with limited stays and then going on, we would say simply that the State of Ohio's experience in this case has been that the State of Ohio has been standing ready for ten years to defend the judgment of its state courts in this case, even though all of Mr. Carter's claims are record based.

There is no right to competence; everybody seems to agree on that.

Indefinite stay has contravened AEDPA, and we don't think that any stay is justified here because of the record-based claims.

Thank you.

Chief Justice John G. Roberts: Thank you, counsel.