Budge

Karla Butko, a lawyer, appeals the district court’s denial of her petition for writ of habeas corpus filed on behalf of her former client, Terry Dennis, a Nevada state prisoner, who is scheduled to be executed on August 12, 2004. She also asks for a stay of execution. The district court held that Butko lacks standing as Dennis’s “next friend” and, consequently, dismissed the habeas petition. The district court also denied motions to proceed in forma pauperis, for appointment of counsel, and for stay of execution. ' The district court granted a Certificate of Appealability. We heard argument by telephone, and affirm dismissal of the petition. As Butko lacks standing, we also lack jurisdiction to stay the execution.

I

Terry Dennis was charged with first degree murder in the Nevada state district court in Washoe County on March 29, 1999, and the State of Nevada filed a notice of intent to seek the death penalty on April 14, 1999. 1 Dennis filed a guilty plea memorandum, was evaluated by a psychiatrist, was determined to be competent to stand trial, and entered a guilty plea. On April 16, 1999, the court found that Dennis understood the nature of the charges, the potential penalty…

concurring in the judgment.

The issues in this case deal with the core of the human condition, and not only because the ultimate issue is one of life or death. When, if ever, can it be said that an individual is making a decision of the greatest consequence of his own free will, rather than a decision determined by a mental infirmity from which he suffers? Indeed, how can a mental infirmity or disorder be distinguished from the myriad of memories, experiences and genetic predispositions that go to make up each individual’s unique personality? We as judges and lawyers attempt to capture these philosophical dilemmas in words that can have very different meanings to different people, and that often may not respect the concepts that mental -health professionals would use to capture cognitive and volitional capacity. See Kansas v. Hendricks, 521 U.S. 346, 359 , 117 S.Ct. 2072 , 138 L.Ed.2d 501 (1997) (“The legal definitions of ‘insanity’ and ‘competency’ ... vary substantially from their psychiatric counterparts.”).

I begin with these reflections because, while I agree with the majority’s conclusion that the district court’s next friend determination should be affirmed, I do not…