The supplemental briefing requested by the Court involves whether this case should be dismissed as a successive petition because Panetti brought two federal habeas petitions: one to challenge his conviction and sentence and a second to challenge the execution of the sentence when he is allegedly insane. The question of whether the successive petition rule applies to a case in this posture was expressly reserved in Stewart v. Martinez-Villareal, 523 U.S. 637 (1998), as Justice Ginsburg notes today on page 5.

Justice Scalia indicates on page 13 that this case is like Burton v. Stewart, dismissed on successive petition grounds earlier this term. Defense counsel distinguishes Burton as a case where the defendant attacked the conviction and sentence separately when he could have simply held his attack on the conviction until his sentence claims were ripe. In the present case, Panetti's competence-for-execution claim was still unripe at the time he was required to bring his challenges to the conviction and sentence.

So what else could Panetti have done? Chief Justice Roberts asks counsel for the State at page 27. He could have done like Martínez-Villareal and brought the incompetence claim before it was ripe so that the second petition is a continuation of the first rather than a new petition. Justice Souter thinks “that’s a silly fiction.”  On pages 30 and 31, he notes that Congress wasn’t thinking about this situation when it drafted the successive petition rule, and that a rule requiring the bringing of unripe claims encourages frivolous pleading. Justice Ginsburg is similarly skeptical.

On pages 8 and 9, Chief Justice Roberts tries to shoehorn this case into 28 USC § 2244(b)(2)(B), Congress’s exception for successive petitions. The problem, as defense counsel notes, is that Congress limited that exception to people who are actually innocent of the underlying offense.

Another issue to resolve before getting to the underlying question is how the AEDPA deference rule applies if the state court competency proceeding does not meet the minimal requirements of Ford v. Wainwright, 477 U.S. 399 (1986). The State contends that its proceeding was adequate, but Justice Kennedy appears unconvinced on pages 35 and 42. He asks counsel for both parties if the federal court can send the case back to state court on pages 11 and 42. Counsel for the State thinks so, but Justice Souter is skeptical, noting that this would convert habeas proceeding into a de facto appeal of a state court ruling to a federal District Court. There is some irony in this, as it is usually the State protesting that habeas is not an appeal.

On the actual standard for competency, there does not appear to be any interest on the Court for a new standard as sweeping as proposed by amici American Bar Association, American Psychological Association, American Psychiatric Association, et al. Indeed, the substantial impairment test they propose was not mentioned once in the entire argument. That is a very encouraging sign.  Defense counsel seemed to get the tougher questioning on this point. On page 22, Justice Souter asks if the defendant’s understanding that his conviction of the crime was a necessary and sufficient condition for his execution is sufficient. Continuing onto pages 23 and 24, he seems skeptical of the whole idea that a delusional belief that the state has an ulterior motive qualifies as incompetence for execution. On pages 19 and 20, Chief Justice Roberts questions the entire competence-for-execution concept. Counsel for the State, on the other hand, goes from pages 45 to 49 without interruption.

Overall, it looks like the State had a rougher time today on the procedural issues, but the defendant got most of the flak on the merits. Watch for a decision at the end of the term in June.