1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3

4 KITRICH A. POWELL, Case No. 2:06-cv-01264-KJD-DJA 5 Petitioner, 6 ORDER v. 7

8 WILLIAM GITTERE, et al.,

9 Respondents.

10 11 12 In this capital habeas corpus action. the petitioner, Kitrich A. Powell, is 13 represented by appointed counsel, the Federal Public Defender for the District of 14 Nevada (FPD). This action was stayed for over twelve years, from January 15, 2008, to 15 August 24, 2020 (ECF Nos. 50, 100), while Powell exhausted claims in state court. After 16 that stay was lifted, Powell filed a second amended habeas petition (ECF No. 105). 17 Then, before Respondents responded to Powell’s second amended petition, the FPD 18 filed a motion to stay (ECF No. 108) on April 13, 2021, asserting that the action should 19 again be stayed, on account of Powell’s alleged incompetence. That motion has been 20 fully briefed by the parties (ECF Nos. 118, 119, 120, 125, 127). The Court will deny the 21 motion, without prejudice, and will set a schedule for Respondents to respond to 22 Powell’s second amended petition. 23 In the motion to stay (ECF No. 108), the FPD asserts that Powell is incompetent 24 and, as a result, unable to assist counsel. The motion is made under Ryan v. Gonzales, 25

(2013). In Ryan the Supreme Court held that a habeas petitioner has no 26 statutory right to a suspension of federal habeas proceedings when found to be 27 incompetent. Ryan,

, 64–73. However, the Court went on to confirm that 1 discussed the outer limits district courts’ discretion to do so. See

at 73–74. With 2 respect to the question of stays sought because of a habeas petitioner’s incompetence, 3 the Court emphasized that some habeas claims might require assistance of the 4 petitioner, while others might not. See

at 74–76. The Court concluded as follows, 5 limiting the circumstances in which a stay may be properly entered on account of a 6 habeas petitioner’s incompetence, and limiting the proper duration of such a stay:

7 If a district court concludes that the petitioner’s claim could substantially benefit from the petitioner’s assistance, the district court 8 should take into account the likelihood that the petitioner will regain competence in the foreseeable future. Where there is no reasonable hope 9 of competence, a stay is inappropriate and merely frustrates the State’s attempts to defend its presumptively valid judgment. 10 11

at 76–77. 12 In this case, the FPD has presented evidence—declarations of a psychiatrist— 13 that Powell is incompetent and generally unable to effectively assist his counsel. See 14 Decl. of Melissa Piasecki, M.D., Exh. 318 (ECF No. 106-65); Decl. of Melissa Piasecki, 15 M.D., Exh. 1 (ECF No. 121-1). Respondents have not countered with any evidence of 16 their own on this issue, but Respondents present argument questioning the 17 psychiatrist’s conclusions. The FPD’s expert opines, further, that, if Powell were to 18 receive appropriate treatment, “there is a substantial probability that these symptoms 19 would improve and he could be restored to competency and meaningfully assist his 20 defense team in this appeal.” Decl. of Melissa Piasecki, M.D., Exh. 1, p. 7 (ECF No. 21 121-1, p. 8). Here too, the respondents do not present evidence to the contrary but 22 question the expert’s conclusion. The Court does not here reach these issues, because 23 at this stage of this case it is unclear whether there are issues on which Powell’s 24 assistance is necessary, and it is unclear whether the equities weigh in favor of staying 25 this action on account of Powell’s alleged incompetence. 26 The FPD argues that Powell assistance is necessary with respect to his non- 27 record-based claims, notably his claim of actual innocence and claims of prior counsel’s 1 argument in this regard is made in a general manner, essentially assuming that the 2 petitioner’s assistance would be necessary for any non-record-based claim, at any time 3 in the litigation. See id.; see also Supplemental Reply in Support of Motion to Stay (ECF 4 No. 127), pp. 2–4. This case, though, has been pending in this Court for fifteen years. 5 Powell’s actual innocence claim was asserted, as Ground 1, in Powell’s first amended 6 petition in this case, filed on April 10, 2007, fourteen and a half years ago. See First 7 Amended Petition for Writ of Habeas Corpus (ECF No. 23), pp. 23–31. The FPD makes 8 no showing why Powell’s assistance—and a temporary stay to bring him to 9 competence—is necessary now. 10 The next event in this case will be Respondents’ response to Powell’s second 11 amended petition. The Court sees no reason to halt that filing based on Powell’s alleged 12 incompetence. Respondents’ response to the second amended petition will likely better 13 disclose what the issues are, at least in the short term, such that a better determination 14 will be possible regarding the need for Powell to assist his counsel. 15 Therefore, the Court will deny the FPD’s motion to stay, without prejudice to the 16 FPD making a new motion to stay, on grounds of Powell’s alleged incompetence, in 17 conjunction with either the response to a motion to dismiss, or the reply to an answer, or 18 both. If the FPD makes such a motion, the FPD should explain, precisely, which issues 19 raised in either the motion to dismiss or answer require assistance from Powell, and 20 why. The FPD should also explain why that assistance was not procured previously, 21 over the fifteen years this case has been pending. The FPD should also update, as 22 necessary, his showing that Powell is incompetent but that he could be restored to 23 competency in the foreseeable future. If the FPD files such a motion to stay, the briefing 24 of the motion will proceed on the same schedule as a motion for leave to conduct 25 discovery or a motion for evidentiary hearing, as set forth in the scheduling order in this 26 case. See Order entered August 24, 2020 (ECF No. 100). 27 /// 1 IT IS THEREFORE ORDERED that the Motion to Stay (ECF No. 108) is 2 || DENIED, without prejudice. The FPD may make a new motion for stay, on the same 3 || grounds, concurrent with either a response to a motion to dismiss or a reply to an 4 || answer, as explained above. 5 IT IS FURTHER ORDERED that Respondents will have 90 days from the date of 6 || this order to respond to Petitioner's Second Amended Petition for Writ of Habeas 7 || Corpus (ECF No. 105). 8 9 DATED THIS 22 day of October , 2021. 10 hat 11 Sa KENT J. DAWSON, 12 UNITED STATES DISTRICT JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28