Richard Allan Moran v. Salvador Godinez, Warden

dissenting, in which REINHARDT, Circuit Judge, joins:

I dissent from the refusal to rehear this case en banc. The majority opinion is flawed in three very serious respects. I discussed two of these errors in my dissent from the panel’s decision in this case, Moran v. Godinez, 40 F.3d 1567, 1577-1586 (9th Cir.1994) (Pregerson, J., dissenting), and I will summarize those two issues only briefly here. The third error is an error of equal magnitude, which I will set forth in more detail below.

First, the majority erred in concluding that the retrospective competency hearing in which Moran was allocated the burden of proof cured the trial judge’s error in failing to hold a contemporaneous hearing as to Moran’s competence. A violation of the trial court’s obligation to hold a competency hearing under Pate v. Robinson, 383 U.S. 375 , 86 S.Ct. 836 , 15 L.Ed.2d 815 (1966), can only be cured by a post-conviction hearing in which the state bears the burden of proving the defendant was competent to stand trial.

Second, the majority opinion completely fails to examine whether Moran’s mental state and the drugs he was given subverted his decisions to waive counsel and plead guilty. In…

Opinion by Judge THOMPSON; Dissent by Judge PREGERSON.

ORDER

The opinion filed November 15,1994, Moran v. Godinez, 40 F.3d 1567 (9th Cir.1994), is amended as follows:

1. At page 1572, the word “possible” in the first sentence of the first full paragraph in the righthand column is changed to “impossible”. With this change the sentence will read:

2. At page 1572, the word “However” is inserted at the beginning of the second sentence in the first full paragraph in the right- *691 hand column. With this change, the sentence will begin: “However, although retrospective competency hearings are disfavored,”.

3. At page 1572, the “But see ” signal and the citation to United States v. Aponte, 591 F.2d 1247 (9th Cir.1978) which follows this signal at the end of the third sentence in the second full paragraph in the righthand column are deleted, and the third sentence in that paragraph which begins: “He was ideally situated”, is changed to read:

4. At page 1574, the phrase “substantive constitutional right” in the second sentence of the second full paragraph in the righthand column is changed to “substantive right”. The sentence will then read:

5. At page 1574, the phrase “substantive…

57 F.3d 690 Richard Allan MORAN, Petitioner-Appellant, v. Salvador GODINEZ, Warden, Respondent-Appellee. No. 91-15609. United States Court of Appeals, Ninth Circuit. Argued and Submitted April 25, 1994. Submission Deferred May 16, 1994. Resubmitted July 1, 1994. Filed Nov. 15, 1994. Amended June 2, 1995. Cal J. Potter, III, Las Vegas, NV, and Edward Chikofsky, Washington College of Law, the American University, Washington, DC, for petitioner-appellant. Frankie Sue Del Papa, Atty. Gen., and David Sarnowski, Chief Deputy Atty. Gen., Carson City, NV, for respondent-appellee. On Remand from the United States Supreme Court. Before FARRIS, PREGERSON and THOMPSON, Circuit Judges. 1 Opinion by Judge THOMPSON; Dissent by Judge PREGERSON. ORDER 2 The opinion filed November 15, 1994, Moran v. Godinez, 40 F.3d 1567 (9th Cir.1994), is amended as follows: 3 1. At page 1572, the word "possible" in the first sentence of the first full paragraph in the righthand column is changed to "impossible". With this change the sentence will read: 4 When a state court wrongfully fails to hold a competency hearing, "it often may be impossible to repair the damage retrospectively." 5 2. At page 1572, the word…