Mitchell Thomas Blazak, Petitioner-Appellee-Cross-Appellant v. James R. Ricketts, Donald Wawrzaszek, Respondents-Ap Pellants-Cross-Appellees

This is an appeal by officials of the State of Arizona (hereinafter, “the State”) from the grant of habeas corpus to Mitchell Thomas Blazak pursuant to 28 U.S.C. § 2254 . The district court granted relief on Blazak’s claim that his due process rights were violated by the state trial court’s failure to determine his competency to stand trial. Blazak cross-appeals the denial of relief as to the remaining challenges to his convictions. These include claims that (1) there was insufficient evidence to sustain his conviction, (2) the accomplice testimony was not corroborated, (3) certain evidence introduced at trial had no probative value, (4) new evidence had been discovered which would likely lead to an acquittal, (5) the State failed to disclose that its key witness (the accomplice) had been released from custody during jury deliberations, (6) Blazak was denied effective assistance of counsel at trial, and (7) Blazak was absent during critical pretrial proceedings.

Because we are evenly divided on whether Blazak’s due process rights were violated by *893 the failure to determine his competency to stand trial, the judgment of the district court will stand affirmed. See United States…

dissenting:

This case presents the question of whether the trial court had sufficient evidence before it to call sua sponte for a competency hearing. Because I believe that the evidence was insufficient, I dissent.

I

I will first summarize the situation facing the trial court prior to Blazak’s sentencing in November 1974. The strongest evidence of Blazak’s incompetence was the presentence report, which contained summaries of seven psychiatric reports prepared for Blazak’s 1968 trial. Not one of these reports explicitly found Blazak incompetent to stand trial. Two — Dr. Shankel’s and Dr. Durfee’s — declared him to be highly dangerous, and requiring mental hospitalization, but neither declared him incompetent. However, the other three psychiatrists — Drs. Baker, Pierce, and Willis — explicitly found him competent to stand trial.

The 1974 presentenee report also contained the presentence report prepared for Blazak’s 1968 sentencing. The 1968 presen-tence report noted that Blazak had thrice before been declared incompetent to stand trial and committed to the state mental hospital. The 1968 presentence report also included Dr. Shankel’s June 2, 1967 psychiatric report, which found…

dissenting:

For the reasons and upon the authorities contained in my dissenting opinion previously reported, I conclude that we lack jurisdiction to consider the merits of this appeal. Blazak v. Ricketts, 971 F.2d 1408, 1415 (9th Cir.1992).

I express no views with respect to the merits absent the entry of a final judgment in the district court. I accept and follow the teaching of Justice Scalia in Honig v. Doe, 484 U.S. 305 , 108 S.Ct. 592 , 98 L.Ed.2d 686 (1988) and of Chief Justice Rehnquist in Orr v. Orr, 440 U.S. 268 , 99 S.Ct. 1102 , 59 L.Ed.2d 306 (1979).

Their position, best summarized, is that, when a judge believes that no jurisdiction exists, the judge should express no view on the merits. See Honig, 484 U.S. at 332 , 108 S.Ct. at 609 (Scalia, J., dissenting) (“Without expressing any views on the merits of this case, I respectfully dissent because in my opinion we have no authority to decide it”); Orr, 440 U.S. at 300 , 99 S.Ct. at 1122 (Rehnquist, J., dissenting) (“I do not think the Court, in deciding the merits of appellant’s constitutional claim, has exercised the self-restraint that Art. Ill requires in this case. I would therefore dismiss Mr. Orr’s appeal”).

I…

1 F.3d 891 Mitchell Thomas BLAZAK, Petitioner-Appellee-Cross-Appellant, v. James R. RICKETTS, Donald Wawrzaszek, Respondents-Ap pellants-Cross-Appellees. Nos. 91-16549, 91-16562. United States Court of Appeals, Ninth Circuit. Argued and Submitted Oct. 16, 1992. Decided Aug. 2, 1993. Robert Bartels, Arizona State University College of Law, Tempe, AZ, for petitioner-appellee-cross-appellant. Natman Schaye, Tucson, AZ, for petitioner-appellee-cross-appellant. R. Wayne Ford, Asst. Atty. Gen., Phoenix, AZ, for respondents-appellants-cross-appellees. Appeal from the United States District Court for the District of Arizona. Before: TANG, BEEZER and BRUNETTI, Circuit Judges. TANG, Circuit Judge. 1 This is an appeal by officials of the State of Arizona (hereinafter, "the State") from the grant of habeas corpus to Mitchell Thomas Blazak pursuant to 28 U.S.C. Sec. 2254 . The district court granted relief on Blazak's claim that his due process rights were violated by the state trial court's failure to determine his competency to stand trial. Blazak cross-appeals the denial of relief as to the remaining challenges to his convictions. These include claims that (1) there was insufficient…