Keith Eugene Wells, by and Through Rolf M. Kehne v. A.J. Arave, Warden

18 F.3d 658 Keith Eugene WELLS, By and Through Rolf M. KEHNE, Petitioner-Appellant, v. A.J. ARAVE, Warden, Respondent-Appellee. No. 94-99000. United States Court of Appeals, Ninth Circuit. Jan. 5, 1994. Redesignated as Order for Publication and Amended to Include Judge Reinhardt's Dissent Jan. 24, 1994. Before: WALLACE, Chief Circuit Judge, HUG, POOLE, D.W. NELSON, NORRIS, REINHARDT, BEEZER, THOMPSON, TROTT, T.G. NELSON, and KLEINFELD, Circuit Judges. 1 Rolf M. Kehne is attempting to appeal from the order of the district court dismissing a writ of habeas corpus. The district court denied a certificate of probable cause and a stay of execution. A panel of this court also denied a certificate of probable cause and a stay of execution 18 F.3d 656 . 2 Pursuant to Circuit Rule 22-4(e)(2), an active judge of this court requested en banc review. A majority of the en banc court denies the application for a certificate of probable cause and denies the petition for a stay of execution. 3 Judges Poole, Norris, and Reinhardt vote to grant a certificate of probable cause and issue a stay of execution. 4 REINHARDT, Circuit Judge, with whom Circuit Judges POOLE and NORRIS, join, dissenting: 5…

with whom Circuit Judges POOLE and NORRIS, join, dissenting:

Without any explanation, a majority of the en banc court has summarily denied next-friend petitioner Rolf M. Kehne’s request for a stay of Keith Wells’ execution. In our rush to “get on with it,” we have once again failed to ensure that a death-row inmate is mentally competent before allowing him to waive his rights and submit to execution. 1 As a result, once again we will never know whether the state has acted in a constitutional manner or whether we have unintentionally assisted a mentally disturbed individual in his desire to commit suicide.

I find it troubling that no court — state or federal — has allowed the petitioner the opportunity to produce evidence demonstrating Wells’ incompetency or to test the state’s “contrary” evidence by cross-examination. I also find it troubling that no federal court has ever conducted a “hearing” or heard oral argument on any aspect of this case. Such obvious failures of the adversary system, with such serious practical and constitutional implications, should cause grave concern among those who believe that we administer our laws, and particularly our death penalty statutes, in a…

*659 Rolf M. Kehne is attempting to appeal from the order of the district court dismissing a writ of habeas corpus. The district court denied a certificate of probable cause and a stay of execution. A panel of this court also denied a certificate of probable cause and a stay of execution 18 F.3d 656 .

Pursuant to Circuit Rule 22-4(e)(2), an active judge of this court requested en banc review. A majority of the en banc court denies the application for a certificate of probable cause and denies the petition for a stay of execution.

Judges Poole, Norris, and Reinhardt vote to grant a certificate of probable cause and issue a stay of execution.