Linda MARTINIANO, Next Friend for Paul Dennis REID, Petitioner-Appellee, v. Ricky BELL, Warden, Respondent-Appellant, 454 F.3d 616

SILER, J., delivered the opinion of the court, in which BATCHELDER, J., joined. CLAY, J. (pp. 617-19), delivered a separate opinion concurring in part and dissenting in part. OPINION SILER, Circuit Judge. This is a parallel case to Kirkpatrick v. Bell, 64 Fed.Appx. 495 (6th Cir.2003). Both cases involve Paul Dennis Reid, and both cases involve a relative to Reid petitioning the court on the eve of execution in a murder case. The only difference is that the petitioners in each case are different persons and the convictions in each case involve separate homicides.

The convictions in the Kirkpatrick case involved homicides in Davidson County, and the convictions in this ease involved homicides in Montgomery County, all in Tennessee. We find that the district court did not abuse its discretion in granting a stay of execution and decline to grant the State’s motion to vacate the stay for the reasons stated herein.

Although it is correct that the decision in Kirkpatrick was dismissed as moot on June 30, 2003, upon agreement of the parties, because Reid signed a state post-conviction petition within hours after our decision in the Kirkpatrick case, nevertheless the reasoning in our opinion in Kirkpatrick still holds. At the hearing before the district court in this case, the petitioner presented testimony of an expert, Dr. George W. Woods, Jr., and presented the affidavits of other mental health experts, indicating that Reid is incompetent.

The State asked for an opportunity to evaluate Reid and could not complete the evaluation prior to the scheduled execution. The State raised the question that the petitioner is not entitled to a stay because she was intentionally dilatory by filing her case on the eve of execution. On the other hand, the petitioner suggests that the State knew after the Kirkpatrick decision that the question of Reid’s competency would be an issue eventually, and the State should have taken measures to evaluate Reid at some time between 2003 and the execution date.

The district court found that there was sufficient evidence to raise a reasonable doubt about Reid’s competence under Kirkpatrick and that the parties are entitled to a full evidentiary hearing on the question of his competence. We instruct the district court that, before proceeding further, it should determine whether there is a state post-conviction case currently ongoing that would suggest that Reid has not exhausted his state remedies before filing the petition in the case. See 28 U.S.C. § 2254(b)(1).

In the event the district court determines that the petitioner has met the requirements of § 2254(b)(1), the court should set a full evidentiary hearing on the competency of Reid, which is relevant to whether Martiniano may proceed on behalf of Reid in this case. See Rees v. Peyton, 384 U.S. 312, 314, 86 S.Ct. 1505, 16 L.Ed.2d 583 (1966). It also may have a bearing on whether Reid is competent to be executed under the criteria of Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986), which was cited in the petition for a writ of habeas corpus filed in this case.

If the district court finds Reid to be incompetent, then it should allow Linda Martiniano or some other suitable person to proceed as his next friend in appropriate post-conviction proceedings . If he is found competent to waive his further appeals or to proceed on his own behalf, then the next friend proceedings should be terminated. The motion to vacate the stay of execution is DENIED, and this matter is REMANDED to the district court for further proceedings consistent with this opinion. .

The concurrence/dissent correctly notes that this provision indicates that a writ should not be granted unless the applicant has exhausted his remedies available in the state courts or "there is an absence of available State corrective process; or circumstances exist that render such process ineffective to protect the rights of the applicant.” We know that "there is a strong presumption in favor of requiring the prisoner to pursue his available state remedies,” Granberry v.

Greer, 481 U.S. 129, 131, 107 S.Ct. 1671, 95 L.Ed.2d 119 (1987), but if there are unusual and exceptional circumstances the courts may proceed without total exhaustion. Id. at 134, 107 S.Ct. 1671. Thus, we do not mean to imply that if the district court here finds unusual or exceptional circumstances, such as those recited in § 2254(b)(1), it could not proceed to decide the competency of Reid.