Nearly unnoticed between Gitmo and global warming, the Supreme Court issued this order in Panetti v. Quarterman, No. 06-6407, a case on mental competency for execution previously discussed here:
The parties are directed to file supplemental briefs addressing the following question: Must petitioner’s habeas application be dismissed as “second or successive” pursuant to 28 U.S.C. §2244? The briefs, not to exceed 15 pages, are to be filed with the Clerk and served upon opposing counsel on or before 2 p.m., Wednesday, April 11, 2007.
Didn't the Court settle this in Stewart v. Martinez-Villareal, 523 U.S. 637 (1998)? Well, not quite.
Martinez-Villareal claimed incompetence for execution in his first federal habeas petition. The claim was dismissed as "unripe," and the other claims were litigated and eventually denied. Then an execution date was set, and Martinez-Villareal filed a habeas petition based on incompetence for execution. The Supreme Court decided that this was not a successive petition within the meaning of 28 U.S.C. § 2244(b), but in the lone footnote of the opinion (*), the Court reserved the question of whether its holding applies to one who raises the claim for the first time in a petition filed after the initial petition is completed.
Does this make a difference? Does it matter that Panetti has been claiming incompetence the whole time, albeit incompetence to stand trial and waive counsel, as opposed to incompetence for execution. Does it matter whether the petitioner's mental state is steady or deteriorating? Apparently the Court thinks there is enough here to warrant briefing.
Martinez-Villareal, BTW, is a 7-2 Rehnquist opinion, so it seems highly unlikely they are considering overruling it.
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