dissenting.

I dissent from the unprecedented view that there is a difference of constitutional magnitude between what the majority characterizes as “competency to choose to die or the voluntariness of his decision,” maj. op. at 1252, and competency to make legal decisions and the voluntariness of those decisions — including the decision by a prisoner under sentence of death not to file for habeas relief in federal court. A state court determined that Miller was competent and intelligently, knowingly and voluntarily chose to represent himself. There is no substantial evidence that his mental condition or ability to make rational decisions has changed. All of the evidence is to the contrary: the state court’s determination in 1998 and reaffirmation in December 1999; Miller’s own statements then, and currently, that he does not want to be represented by the lawyers who seek to be his “next friend,” that he does not want the warrant of execution (now set for November 8 at 3:00 p.m.) to be suspended, and that he understands the consequences; and the report of a Department of Correction psychiatrist and psychologist who examined Miller in October 2000 and found no evidence of any major mental illness. As Nancy Follín Jones, the putative “next friend” has produced no meaningful evidence of mental incompetence, I would affirm the district court.

*1255 As set forth in detail in State v. Miller, 186 Ariz. 314 , 921 P.2d 1151 (1996), Miller was convicted of first degree murder and kidnaping, and sentenced to death. Following the Arizona Supreme Court’s denial of Miller’s direct appeal, he filed a pro per notice of post-conviction relief in the trial court. The court appointed the Pima County Public Defender (PCPD), who had represented Miller on appeal, to prepare a supplemental post-conviction petition. However, Miller sought to represent himself. PCPD challenged his ability to waive counsel, and the trial court authorized an examination by PCPD’s expert, Dr. Larry Morris. After receiving Morris’s report, PCPD chose not to present evidence of incompetency. The trial court then appointed Dr. Barry Morenz to evaluate Miller and report to the court. Morenz noted that Miller had recently been moved to the prison’s Special Management Unit II (SMU II), which Miller described as “very oppressive,” and that Miller was enjoying a “slightly greater measure of freedom” as a result of being temporarily housed at the time at the Pima County Jail. Miller was diagnosed with polysubstance dependence (in remission) and, provisionally, an antisocial personality disorder. In his opinion, Miller was “competent to make informed legal choices,” including the choice to waive counsel.

The trial court conducted a hearing on Miller’s motion to proceed pro per on October 26, 1998, and found that Miller knowingly, intelligently and voluntarily waived his right to counsel in post-conviction proceedings and granted his motion for self-representation. The court appointed Harriette Levitt as advisory counsel.

On December 13, 1999, the state court held another hearing at which it reaffirmed Miller’s competency to represent himself and set a firm March 13, 2000 deadline for filing a post-conviction petition. Although Miller filed a request for early relief on his involuntary confession claim, he failed to file further pleadings after the court ordered him to file all potential claims simultaneously. On March 31, 2000 the state court dismissed Miller’s post-conviction petition on the ground that the involuntary confession claim had been decided on appeal. He did not seek review in the Arizona Supreme Court.

PCPD sought to intervene and filed a motion for reconsideration, but Miller’s advisory counsel informed the court that Miller opposed PCPD’s intervention, did not want further delays in the case, and wanted a warrant of execution to issue. The court found that PCPD lacked standing and denied the motion. When PCPD sought special action relief in the Arizona Supreme Court, Miller filed an affidavit pro per stating that he did not wish to pursue issues regarding sentencing in a Rule 32 petition, that he requested that the warrant of execution be issued, and that he did not wish the warrant to be suspended. As he explained: “I chose not to raise the issue, fully understanding the potential consequences of my decision.” On September 26 the Arizona Supreme Court declined to accept jurisdiction of the special action petition and granted the State’s motion for a warrant of execution. PCPD filed a petition for certiorari to the United States Supreme Court and a motion for stay of execution, which are still pending.

On October 24, the Federal Public Defender (FPD) filed a motion in district court requesting a limited appointment of counsel for the purpose of meeting with Miller to explain the federal habeas review process. Miller indicated that he did not wish to pursue federal habeas review, but said he did not object to the FPD’s visits. The district court denied the motion for limited appointment but granted visitation rights.

Miller was examined on October 18, 2000 by a psychologist and a psychiatrist employed by the Arizona Department of Corrections after issuance of the pending warrant of execution. They found no evidence of any major mental illness. Their report notes that Miller has made no requests for mental health services or for treatment since his incarceration in 1993, *1256 nor have any observations of significant mental or emotional distress been made with one exception in July 2000 when Miller was stressed from work on a hard-labor crew.

Finally, on November 6, Miller’s advisory counsel filed a declaration based on her most recent conversation with Miller. It represents that Miller states that “the conditions of incarceration in SMU II and his mental health or depression have nothing to do with this decision.” Miller further states that he has been fighting for his execution since 1996, two years before the move to SMU II, and that the only reason he gave up his appeal is the fact that he does not wish to grow old in prison.

Jones and FPD filed several other motions regarding visitation, but these are not relevant to disposition of this appeal. 1

“The burden is on the ‘next friend’ clearly to establish the propriety of his status and thereby justify the jurisdiction of the court.” Whitmore, 495 U.S. at 164, 110 S.Ct. 1717 . In order clearly to establish standing, a petitioner must present “meaningful evidence that [the petitioner] was suffering from a mental disease, disorder, or defect that substantially affected his capacity to make an intelligent decision.” Id. at 166, 110 S.Ct. 1717 .

This appeal turns on whether Jones presented meaningful evidence that Miller’s mental condition has deteriorated since December 13, 1999 when the state trial court reaffirmed his competence and understanding of the consequences of failing to pursue post-conviction relief (originally determined October 26, 1998). We presume the correctness of the trial court’s determination. Demosthenes v. Baal, 495 U.S. 731, 735 , 110 S.Ct. 2223 , 109 L.Ed.2d 762 (1990) (per curiam). Jones does not suggest, nor did the district court find, any basis upon which to conclude that the state court’s finding was not fairly supported.

Jones argues that Miller is not presently capable of making a knowing, voluntary and intelligent waiver of his right to counsel in federal court and his right to seek a stay of execution and a writ of habeas corpus because the conditions of confinement at the Arizona State Prison’s SMU II were never considered at the time of the state court competency determination. She relies upon Comer v. Stewart, 215 F.3d 910, 917-18 (9th Cir.2000), to contend that the effect of prison conditions — specifically those in SMU II — must be considered as a separate inquiry into the volun-tariness of such a waiver. In addition to a number of older records, Jones submitted her own declaration, a declaration by Julie Hall (Jones’s counsel) which questions the voluntariness of Miller’s actions, and the declarations of the two physicians who examined Miller in 1998, to demonstrate that Miller suffers from a serious, long-term history of depression and post-traumatic stress disorder that caused him to succumb to the effects of solitary confinement and abuse at SMU II.

Jones’s declaration sets forth her belief that Miller “is operating under a mental disability that prevents him seeking relief on his own behalf in the courts.” She states that it is “the result of life long trauma that has resulted in severe depression and symptoms of post-traumatic stress disorder combined with the psychologically disabling conditions of solitary confinement.” The declarations by Dr. Morris and Dr. Morenz say the same thing; that in their 1998 evaluations, neither was asked to consider what impact the conditions of confinement may have had on Miller’s decision to waive counsel; that each has read information regarding the daily living conditions and virtual total physical isolation of death row inmates at SMU II; that based upon well-accepted psychological studies on the effects of physical isolation on subjects kept under *1257 conditions akin to those of death row inmates at SMU II, such conditions can cause psychological decompensation in certain individuals to the point that those individuals are unable to comprehend their current life situations and may be incompetent; that each has an understanding that Miller suffers from symptoms typically associated with post-traumatic stress and his history suggests he has had problems with depression throughout; that individuals in similar circumstance are susceptible to the effects of physical isolation like the conditions of SMU II; and based on information concerning the conditions of confinement and the concerns expressed by the court in Comer , further evaluation of Miller is warranted to ascertain whether his psychological conditions have deteriorated to the point that he is incompetent to be executed or able to waive all appeals.

These declarations are not meaningful evidence that Miller is not currently competent. Nor do they show that Miller’s decision to forgo further proceedings is not “the product of a free and deliberate choice.” Comer, 215 F.3d at 917 . 2 Neither Dr. Morris nor Dr. Morenz has examined Miller since 1998 and their statements about the possible deterioration of his mental condition during incarceration at SMU II are purely speculative. See Brewer v. Lewis, 989 F.2d 1021, 1025 (9th Cir.1993) (opinions by doctors who never met petitioner and by physician who examined and found him competent several years before but speculates, based on information not available at that time, that condition may have deteriorated is inconclusory and insufficient to outweigh substantial evidence demonstrating competence). While Jones may have seen him, she is not a physician and her views are not supported by any objective evidence in the record. Cf. Vargas, 159 F.3d at 1170 (new evidence of illnesses not previously diagnosed and medications not previously required tends to prove that mental condition has deteriorated since a prior competency determination). As in Baal and Brewer , this conclu-' sory evidence is insufficient to outweigh the state court’s determination and the October 18, 2000 examination and report.

I therefore agree with the district court, that Jones has not met the threshold showing of standing as “next friend” to support federal court jurisdiction to issue a stay. Accordingly, I would affirm dismissal of the petition and dismiss the request for a stay as moot.

. In an order issued November 6, 2000, the Arizona Supreme Court granted Jones’s motion to appear as "next friend” but denied her motion for stay of execution. The Court subsequently clarified its order as granting "next friend” status only for the purpose of ruling on her motion in the Supreme Court for a stay of execution.

. I assume, without needing to decide, that Comer (from which I partially dissented) applies to this case which involves a petitioner's decision not to lile a federal habeas decision as distinguished from a decision to withdraw a pending appeal.