Michael B. Ross, by His Next Friend, Donna Dunham v. Theresa Lantz, Commissioner of Corrections

Citation: 408 F.3d 121Docket: 05-8902

Court: Court of Appeals for the Second Circuit; May 16, 2005; Federal Appellate Court

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Michael B. Ross is scheduled for execution by the State of Connecticut on May 13, 2005, having opted not to pursue further legal appeals regarding his convictions or death sentences. His sister, Donna Dunham, claims "next friend" status to seek a stay of execution. Ross was sentenced to death in 1987 for six counts of capital felony, with his sentences later overturned, leading to a new sentencing hearing and subsequent reaffirmation of the death penalty by the Connecticut Supreme Court in 2004. In September 2004, Ross informed the court of his decision not to appeal further and requested an execution date.

Previously, attempts by others, including Ross's father and Gerard A. Smyth, to assert "next friend" status for legal actions on Ross's behalf were initiated. Ross's father's lawsuit was denied without appeal, while Smyth's petition initially resulted in a stay of execution, which the Supreme Court later vacated. Following that, Ross's father attempted to file a § 1983 action regarding his son's competency and state prison conditions, which led to another stay that was ultimately vacated by the Court of Appeals. The court indicated that complications regarding Ross's competency did not provide sufficient grounds to challenge the execution order, especially in light of the Supreme Court's prior ruling.

On January 29, 2005, the execution of Ross was postponed due to concerns raised by his attorney regarding a potential conflict of interest that might hinder effective advocacy for Ross's competency and decision to waive further appeals. Subsequently, Ross filed a motion to reopen his competency hearing, leading the Superior Court to appoint special counsel, Thomas J. Groark, Jr., to examine Ross's competency to waive appeals. Following six days of hearings, the Superior Court determined on April 22, 2005, that Ross's choice not to pursue further appeals was both competent and voluntary. This ruling was later affirmed by the Connecticut Supreme Court on May 9, 2005, despite the special counsel's earlier claims regarding "death row syndrome" not being part of the competency case.

While the appeal was ongoing, Donna Dunham filed a petition in the Connecticut Superior Court to act as Ross's "next friend." Her petition was denied by the Superior Court, and the Supreme Court dismissed her related writ of error on May 11, 2005. On May 12, a federal district court also denied her habeas corpus petition under 28 U.S.C. § 2254, prompting Dunham to seek a stay of execution to enable her appeal.

For a federal court to consider Dunham's habeas corpus petition, she must demonstrate her standing as Ross's "next friend." According to the Supreme Court in Whitmore v. Arkansas, prerequisites for establishing "next friend" standing include providing a valid explanation for Ross's inability to litigate on his own behalf, and demonstrating a genuine commitment to his best interests, along with a significant relationship with him. The burden lies with Dunham to establish her proper status to justify the court's jurisdiction.

Michael Ross's waiver of further postconviction proceedings is deemed knowing, intelligent, and voluntary, as confirmed by multiple competency hearings in Connecticut state courts. Ms. Dunham's argument that Ross is incompetent or disabled to prevent his own representation is rejected; she has not substantiated her claim that he cannot appear on his own behalf. The Superior Court and the district court have both verified that Ross's waiver was made without coercion and with full understanding of its implications. Consequently, Dunham lacks 'next friend' standing, as the prerequisites are unmet, and she has not provided adequate justification for her claim. Additionally, despite being aware of the legal proceedings and having access to relevant transcripts, she failed to prepare the necessary evidence to support her standing. The court concludes that her standing issue is not debatable among reasonable jurists, resulting in the denial of her motion for a stay. The decision does not comment on the correctness of the Connecticut Supreme Court's legal conclusions regarding voluntariness and competence.