WHITE v. HORN No. 97-2561.
54 F.Supp.2d 457 (1999)
Maxine Davidson WHITE, as next friend to Gary Heidnik, Petitioner, v. Martin HORN, Commissioner, Pennsylvania Department of Corrections, Gregory White, Superintendent of the State Correctional Institution at Rockview, and the Commonwealth of Pennsylvania, Respondent.
United States District Court, E.D. Pennsylvania.
July 3, 1999.
OPINION AND ORDER
VAN ANTWERPEN, District Judge.
Petitioner, Maxine Davidson White, has alleged next friend standing on behalf of her father, Gary Heidnik, who is scheduled to be executed on July 6, 1999. On June 28, 1999, Petitioner filed an emergency Application for Stay of Execution pursuant to 28 U.S.C. § 2251. In conjunction with the request for a stay, Petitioner has also filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 claiming constitutional deficiencies during Mr. Heidnik's trial, sentencing and subsequent proceedings. The Commonwealth of Pennsylvania ("Commonwealth") has filed a Memorandum in Response to Third Party Application for Stay of Execution on June 30, 1999. For the following reasons, we deny both the stay and the habeas petition.
II. FACTS AND PROCEDURAL HISTORY
This case has a long and complicated procedural history. On the basis of a series of heinous crimes committed by Mr. Heidnik, he was sentenced to death on March 2, 1989. During the pendency of his direct appeal, Mr. Heidnik first expressed a desire to have his attorney abandon his appeal. However, the Pennsylvania Supreme Court still engaged in the review of his conviction and affirmed his
On April 11, 1997, a petition was filed by the Center for Legal Education, Advocacy & Defense Assistance (CLEADA) in the Pennsylvania Court of Common Pleas. Although Mr. Heidnik had expressed a desire not to challenge his sentence, CLEADA independently argued, without asserting next friend standing, that Mr. Heidnik was mentally incompetent to face execution. See Ford v. Wainwright,
Meanwhile, Ms. White, under next friend status, filed a motion in this court on April 15, 1997, seeking a stay of execution and an appointment of habeas corpus counsel under McFarland v. Scott,
Ms. White filed an appeal with the Third Circuit. On April 18, 1997, the Third Circuit issued a decision reversing our findings. In re Heidnik,
On remand the next day, April 18, 1997, we followed the directive of the Third Circuit, issuing a stay of execution and granting next friend status to Ms. White. See Order 4/18/97. That same day, the Commonwealth filed a petition with the United States Supreme Court requesting a vacation of our stay. That evening, the United States Supreme Court vacated our order staying the execution.
Later on the evening of April 18, 1997, the Pennsylvania Supreme Court issued a Stay of Execution on the basis of the competency proceedings pending before it. More than one year later, the Pennsylvania Supreme Court ruled that it would adopt the federal Whitmore standard for next-friend standing on August 18, 1998. See In re Heidnik II.
Relying on the Pennsylvania Supreme Court's ruling, Ms. White, alleging next friend status, filed in state court a petition asserting habeas corpus relief under the
The Court of Common Pleas then held an evidentiary hearing on the psychiatric condition of Mr. Heidnik. See Tr. 3/1/99; Tr. 3/2/99. On April 27, 1999, the Court of Common Pleas issued an oral decision with findings of fact that Mr. Heidnik was competent to knowingly waive his appellate rights under Whitmore and Ms. White had no standing to be Mr. Heidnik's next friend. Tr. 4/27/99 at 20-41 (Poserina, J., opinion). Ms. White's habeas post-conviction claims were subsequently dismissed.
On appeal to the Pennsylvania Supreme Court, Ms. White challenged the determination that Mr. Heidnik was competent by not only alleging that the lower court's findings were erroneous, but by also claiming its hearing was unfair.
On Wednesday, June 30, 1999, we held a hearing in open court at Easton, Pennsylvania, providing both sides the opportunity to argue before us. See generally Tr. 6/30/99. Mr. Billy Nolas spoke on behalf of Petitioner, and Mr. Ronald Eisenberg argued for the Commonwealth. The hearing lasted approximately two hours.
We must consider whether Petitioner is entitled to a stay of execution. Pursuant to 28 U.S.C. § 2251, a federal judge "may ... stay any proceeding against the person detained ... under the authority of any State ... for any matter involved in the habeas corpus proceeding." Id. A habeas petitioner need not show that he can succeed on the merits, but rather must merely make a substantial showing of a denial of a federal right and demonstrate that the issues are debatable among jurists of reason. See Barefoot v. Estelle,
Before examining the merits of the application for a stay of execution, however, we must first address the threshold issue of whether the Petitioner, as alleged
After an extensive review of the record, we find that Petitioner clearly does not have next friend standing. Until Petitioner can demonstrate that she has such standing to bring a Petition on behalf of her father, she may not obtain a stay of execution over the wishes of Mr. Heidnik. Otherwise, to proceed to examine the merits of the habeas petition and the application for a stay without a showing that Mr. Heidnik is unable to act on his own behalf would "circumvent the jurisdictional limits of Art. III simply by the mantle of `next friend.'" Whitmore, 495 U.S. at 164, 110 S.Ct. 1717.
A. Next Friend Standing Was Never Established
In her habeas petition and application for a stay filed in this court, Petitioner, Maxine Davidson White, has alleged next friend standing on behalf of Gary Heidnik. Petitioner argues that the issue of her standing has already been resolved in her favor by the Third Circuit's decision issued in this case on April 18, 1997. See Pet.'s Mem. at 4-5. At that time, the Third Circuit held that Ms. White had next friend standing because there was insufficient evidence in the record to support a finding that Mr. Heidnik is competent. See In re Heidnik III, 112 F.3d at 112. Normally, this court would be bound by the Third Circuit decision under the law of the case doctrine. See Pet.'s Mem. at 5, 9-11; Tr. 6/30/99 at 77-78.
In light of the subsequent proceedings which have occurred in this case, however, we respectfully reject the Petitioner's assertion that we are bound by the Third Circuit's determination as to next friend standing. On April 18, 1997, we issued an order according to the Third Circuit's directive,
Petitioner argues, however, that the United States Supreme Court, favoring comity, vacated the stay because the Court found it premature in light of the appeal and request for a stay pending before the Pennsylvania Supreme Court. See Pet.'s Mem. at 13; Tr. 6/30/99 at 9, 14-15. Petitioner explains that the limited language of the order vacating the stay, which lacks specific comment on the propriety of the Third Circuit's next friend standing ruling, signifies that the order was written in order to provide temporary deference until the state court proceedings were completed. See Pet.'s Mem. at 12; Tr. 6/30/99 at 19-20.
We reject this explanation as unfounded speculation on the part of the Petitioner. While at first glance such an explanation
Petitioner also attempts to buttress her argument by asserting that federal law clearly states that a stay is merely a procedural mechanism which has no implications on the merits of a case. See Pet.'s Mem. at 13-16; Tr. 6/30/99 at 5-7, 23. We reject this argument because we find that, under the unique circumstances of the present death penalty litigation, a ruling on a stay of execution can have substantive implications. For that reason, we find the nondeath penalty cases cited by the Petitioner to be inapplicable. See, e.g., Named & Unnamed Children v. Texas, 448 U.S. 1327, 1330, 101 S.Ct. 12, 65 L.Ed.2d 1151 (1980); Lawrence v. Chater,
As we have discussed above, the case at bar demonstrates that when an existing stay of execution is vacated and the execution is allowed to proceed, it forecloses further litigation on the merits. We find, therefore, that cases where the United States Supreme Court either granted a stay of execution or affirmed an existing stay of execution are distinguished because no possibility of imminent execution exists in those cases. In fact, we agree with the Petitioner that rulings which result in staying executions may very well be procedural rather than a ruling on the merits. See, e.g., Franklin v. Francis,
Moreover, we reject Petitioner's argument that the United States Supreme Court has established a pattern and practice of either denying a stay of execution or vacating an existing stay of execution as merely a procedural mechanism. See Pet.'s Mem. at 15-16; Tr. 6/30/99 at 22-24. In the following cases cited by the Petitioner, see, e.g., Darden v. Wainwright, 473 U.S. 927, 106 S.Ct. 20, 87 L.Ed.2d 698, cert. granted, 473 U.S. 928, 106 S.Ct. 21, 87 L.Ed.2d 699 (1985); Herrera v. Collins, 502 U.S. 1085, 112 S.Ct. 1074, 117 L.Ed.2d 279, cert. granted, 502 U.S. 1085, 112 S.Ct. 1074, 117 L.Ed.2d 279 (1992), reh'g,
Finally, we believe if the United States Supreme Court had only vacated the stay for the purpose of deferring to state proceedings, it would have issued a temporary stay to that effect. For example, the Petitioner cites Netherland v. Tuggle,
Furthermore, even without the ruling of the United States Supreme Court, we question whether the Third Circuit decision on next friend standing was binding on the state courts of Pennsylvania in light of the fact that they never previously could consider the Whitmore issue. Before the Third Circuit decision, Petitioner had never alleged next friend standing before the state courts.
Moreover, the issue of next friend standing was properly before the Court of
Petitioner argues, however, that exhaustion of the standing issue is not required because there is a binding federal decision by the Third Circuit under Whitmore instigated by the McFarland petition filed with this court.
Since we do believe that the next friend standing issue was properly before the Court of Common Pleas, we look to the proceedings of the state courts of Pennsylvania which have now made express findings about Mr. Heidnik's competency to waive further appeals under Whitmore.
In a proceeding instituted by an application for writ of habeas corpus, factual findings are entitled to a presumption of correctness. See 28 U.S.C. § 2254(e)(1). When a state court has held a competency hearing, the United States Supreme Court has instructed that "a state court's conclusion regarding a defendant's competency is entitled to such a presumption." Demosthenes, 495 U.S. at 734, 110 S.Ct. 2223 (applying the presumption from the former 28 U.S.C. § 2254(d)); see also Maggio v. Fulford,
Moreover, we find that the state courts were not wrong to proceed to examine Mr. Heidnik's competency based on the assumption that the Third Circuit's decision is not final. In fact, we have reason to believe that the Third Circuit did not intend to preclude further determinations in the state courts with respect to the Whitmore competency because it noted throughout its opinion that the competency findings were incomplete rather than incorrect. Doing so, it acknowledged that the state could conduct full and complete proceedings on Mr. Heidnik's competency for next friend status, and thereby complete the record.
For instance, the Third Circuit noted "it may be that the evidence would support a finding that Mr. Heidnik could make some or other decision regarding waiver of further appeals...." In re Heidnik III, 112 F.3d at 111. Also, it did not hold that Mr. Heidnik has not made a rational decision to die, but merely that "the record does not support a rational explanation as to why ... he could ... make a rational decision to die." Id. at 112 (emphasis added). The opinion continues, "[a] psychiatric expert might have supplied this...." Id. It is apparent that the Third Circuit did not find that the competency determination of Mr. Heidnik was complete, but believed further factual inquiry might resolve the issue.
The Third Circuit clearly was concerned that the evidence before it was legally insufficient in light of the fact that Dr. O'Brien, the only expert who found Mr. Heidnik to be competent to waive his appeals, did not address the issue of rationality. Holding that "rationality" is a requirement for valid waiver, the court refused to find Mr. Heidnik competent
In order to complete the record, the state conducted extensive hearings on Whitmore competency, including whether or not Mr. Heidnik could make a rational decision to die. As anticipated by the Third Circuit, psychiatric experts did in fact supply support for a rational explanation as to why Mr. Heidnik could make a rational decision to die.
In light of the subsequent proceedings in this case after the Third Circuit decision, we find that Ms. White does not have next friend standing on behalf of Mr. Heidnik.
B. The Competency Hearing in the Court of Common Pleas
As we have discussed extensively above, the Third Circuit decision does not control the determination of whether Mr. Heidnik is competent to waive appeals and capable of making a knowing, voluntary, intelligent and rational decision to do so. Instead, we look to the determination of competency made by the Court of Common Pleas and affirmed by the Supreme Court of Pennsylvania.
Since we are considering the issue of Mr. Heidnik's competency as part of the Petitioner's application for habeas relief, the state court's factual determinations are presumed correct. See 28 U.S.C. § 2254(e)(1). This presumption of correctness can be overcome only by clear and convincing evidence. Id. The evidence must demonstrate either that the decision "was contrary to, or involved an unreasonable application of, clearly established Federal law," or that it "was based on an unreasonable determination of the facts." 28 U.S.C. § 2254(d)(1)-(2). The state court determination of a defendant's competency is entitled to the statutory presumption of correctness. See Demosthenes, 495 U.S. at 736, 110 S.Ct. 2223; Miller v. Fenton,
1. Record Supports Competency Determination
Petitioner has argued that the state decision was founded on an unreasonable factual determination under 28 U.S.C. § 2254(d)(2). To effectively demonstrate error, the Petitioner has the burden of showing by clear and convincing evidence that the state decision was based on an incorrect interpretation of the facts. In the case at bar, Petitioner would have to show by clear and convincing evidence that she had provided an adequate explanation as to why Mr. Heidnik is unable to appear on his own behalf to prosecute the action. See Whitmore, 495 U.S. at 162, 110 S.Ct. 1717.
Whitmore requires "a showing by the proposed `next friend' that the real party in interest is unable to litigate his own cause due to mental incapacity." Id. at 165, 110 S.Ct. 1717. The United States Supreme Court has held that the competency standard for standing trial is
While the focus of a competency inquiry is whether defendant has the ability to understand the proceedings, the purpose of the "knowing and voluntary" inquiry is to determine whether the defendant actually does understand the significance and consequences of a particular decision and whether the decision is not coerced. Godinez, at 401 n. 12, 113 S.Ct. 2680 (citing Faretta v. California,
The Petitioner argues that "Mr. Heidnik's delusions render him incapable of consulting with his lawyer with any reasonable degree of rational understanding and that he does not have a rational understanding of the proceedings." Pet.'s Mem. at 20. She argues that neither Dr. O'Brien nor Dr. Sadoff gave testimony addressing Mr. Heidnik's ability to rationally assist himself in the legal process. However, we note that the Court of Common Pleas, after the evidentiary hearing as to Mr. Heidnik's competency in order to determine next friend standing, found otherwise, and with reasonable justification.
Petitioner also claims that Dr. O'Brien could not explain how Mr. Heidnik's desire for execution has a rational basis, but we find this claim to be unsupported by the record. Dr. O'Brien and Dr. Sadoff both cogently explained Mr. Heidnik's belief that his execution might initiate a process that ultimately abolishes the death penalty as rational, given his understanding that the United Kingdom abolished the death penalty after the execution of an innocent person.
Finally, Petitioner attempts to discredit Dr. O'Brien's testimony on the basis that the witness did not conclude that Mr. Heidnik is a paranoid schizophrenic. Pet.'s Mem. at 22. However, we note that Dr. O'Brien explained in his testimony that a diagnosis of Mr. Heidnik as schizophrenic would not bear on the determination of competency or rational decision-making. Dr. Sadoff, who accepted a diagnosis of paranoid schizophrenia, concurred that paranoid schizophrenia was not incompatible with a conclusion of competency.
In addition to considering Petitioner's arguments, we have chosen to review the record and ascertain whether there is any clear and convincing evidence that the state court determination was based on an unreasonable determination of the facts. Although section 2254(e)(1) requires the Petitioner to refute the presumptive correctness of the state court's findings, we find that the record merits review due to the serious nature of the present litigation. Our independent review of the record of the state court proceedings does not persuade us that the state was erroneous in holding that Petitioner failed to prove Mr. Heidnik's incompetence and that he has not knowingly, intelligently and voluntarily waived his right to proceed.
The court made its Findings of Fact and Conclusions of Law on April 27, 1999, denying Ms. White standing as next friend. Based on its judgment of the credibility and testimony of the expert psychiatrists, including the individual reports submitted by each of the four doctors, we believe that the court was correct in determining that Mr. Heidnik is competent to waive further appeals, and that his decision to do so is voluntary, intelligent, knowing and rational. See Tr. 4/27/99 at 36-40.
The court also appropriately gave weight to Dr. Sadoff's testimony that Mr. Heidnik is competent, and that his decision to forego further appeals is voluntary, knowing, intelligent and rational. Id. at 29. Dr. Sadoff concluded that Mr. Heidnik is not psychotic, and that his paranoid schizophrenia, including unrelated delusions, does not mean he is incompetent. Id. at 30-31. Furthermore, we believe that the court properly credited Dr. Sadoff's testimony, similar to that of Dr. O'Brien, that "defendant's belief that his execution could lead to the abolition of the capital punishment is ... based on his knowledge of a case from the United Kingdom where the execution of an innocent person ... led to abolition of a death penalty." Id. at 30. The court concluded that, because "[d]efendant bases his hopes on an actual case rendered ... the hope ... is, in fact, a rational hope." Id. at 31.
The court also weighed testimony by the defense experts. The court noted that Dr. Bernstein "conceded that Dr. O'Brien was in position to render an opinion based on [the] evaluation." Id. at 32. Furthermore, Dr. Bernstein's opinion that the Defendant was incapable of understanding the proceedings and rationally assisting in his own defense was based on previous diagnoses unrelated to any competency proceedings and made on occasions when the defendant refused to speak with him. But for those diagnoses "he would have agreed ... that the defendant's assertion of innocence was a rationalization." Id. at 33. The second defense expert, Dr. Blumberg, found the Defendant to be delusional during the January 29th evaluation. He characterized Mr. Heidnik's belief that his execution will end capital punishment as a delusion, and therefore irrational. Id. at 34. At the same time, it appears that Dr. Blumberg essentially agreed with Drs. O'Brien and Sadoff that Mr. Heidnik understands the legal consequences of taking no further action. Id. at 35.
We find on the basis of the evidence before the court that it was not unreasonable for the court to disagree with Dr. Bernstein's conclusion that Defendant's goal of ending the death penalty was psychotic. See Id. at 38. Nor do we find the court's disagreement with Dr. Blumberg's opinion that the Defendant was delusional at that time to be unreasonable in light of the testimony by Drs. O'Brien and Sadoff. Id. at 38.
Finally, the court correctly took into account "defendant's testimony that he wishes no further challenges to the carrying out of his execution." Id. at 39. The court, which had the benefit of observing Mr. Heidnik testify, determined "that defendant's desire is genuine, knowing and intelligent. It is a voluntary and rational
Not only do we believe, upon reviewing the record, that the court's determination is sound, but we value the observation of the court because we do not have the benefit of observing the expert witnesses and experiencing their testimony first-hand. Furthermore, the Court of Common Pleas had the opportunity to observe Mr. Heidnik and to question him regarding his choice not to pursue representation by counsel. See Tr. 4/27/99 at 24.
Based on the foregoing, we find that Ms. White has not demonstrated the conclusion of the Court of Common Pleas to be erroneous. There is more than adequate evidence to support the court's findings and conclusions that the Petitioner failed to prove Mr. Heidnik's incompetence and that Mr. Heidnik has knowingly, voluntarily and intelligently waived his right to proceed. Ms. White is therefore not entitled to "next friend" standing. See Whitmore, 495 U.S. at 149, 110 S.Ct. 1717.
2. Competency Determination Is Not Inherently Suspect
Petitioner argues that "this Court cannot presume the state court's factual determinations to be correct" because the state court proceedings were inherently unfair and erroneous. Pet.'s Mem. at 32-33. Specifically, Petitioner claims that the findings of the Court of Common Pleas are "inherently suspect," alleging that: (1) Judge Poserina had and relied on inappropriate off-the-record conversations with his daughter, a psychiatrist, and other doctors; (2) Dr. O'Brien is a biased expert whose testimony was improperly used as that of a court witness; (3) the Commonwealth experts did not employ the appropriate legal standard for competency; and (4) the waiver colloquy was "grossly defective." Pet.'s Mem. at 33.
As we explained above, the federal habeas corpus statute accords state court determinations of fact a presumption of correctness. 28 U.S.C. § 2254(e)(1). This presumption can be overcome only by clear and convincing evidence that the decision below "was contrary to, or involved an unreasonable application of, clearly established Federal law," or "was based on an unreasonable determination of the facts in light of the evidence before it." Id. at § 2254(d)-(e)(1). Addressing Petitioner's allegations, we find that she has failed in each instance to present clear and convincing evidence that the statutory presumption of correctness has no application to the state proceedings. We conclude, therefore, that her claim that she was denied a full and fair hearing has no merit.
First, Petitioner urges that we find error based on Judge Poserina's statement that "in evaluating the testimony here, I was educated a little bit by just off-the-record conversations with not only my daughter but other doctors, and I have come to independent judgments based on the record." Tr. 4/27/99 at 41-42 (emphasis added). We concur with the Pennsylvania Supreme Court that the judge clearly "states that he came to an independent judgment regarding Mr. Heidnik's competency." White, slip op. at 7. We agree that these conversations "took place prior to the commencement of the instant case, and were completely unrelated to the matter at hand." Id.
We also disagree with Petitioner that Judge Poserina's comment that he was "educated a little bit by just off-the-record conversations" indicated those conversations occurred during the course of the proceedings before him. The judge may well have meant he was educated by conversations in years past, and nothing in his comment suggests the contrary. Whatever the motivation for the comment, it is irrelevant to the extent that we find he arrived at an independent judgment on the basis of his "experience and capacity to correctly decide." Tr. 4/27/99 at 41-42.
Petitioner claims next that the court "violated fundamental norms of due process and a fair and impartial hearing" by appointing Dr. O'Brien as a court expert for the 1999 hearing and relying on his testimony. This claim is premised on the argument that Dr. O'Brien testified as a Commonwealth witness during the 1997 hearing before this court, and was thereafter a biased witness. Pet.'s Mem. at 41. Petitioner also alleges that the Commonwealth misrepresented Dr. O'Brien's role in the federal proceedings, and that the court relied on this misrepresentation. Id. at 41-42. We disagree that the court's reliance on Dr. O'Brien's testimony amounts to a violation of due process.
Dr. O'Brien was the state court's expert during the 1997 competency proceedings. In the April 1997 proceedings before this court, the Commonwealth allegedly consulted Dr. O'Brien on its cross-examination of Petitioner's experts, and we heard testimony from Dr. O'Brien that assisted us in our ruling. However, Dr. O'Brien's role before this court in 1997, even including his limited assistance to the state, is not a sufficient basis to conclude that he is a biased witness on behalf of the Commonwealth. This is true particularly in light of his singular knowledge of Mr. Heidnik.
Again, given Dr. O'Brien's unique qualifications for this case, and after examining his lengthy and measured testimony before Judge Poserina, we agree with the Pennsylvania Supreme Court that no abuse of discretion occurred that violated due process. Nor does the record support Petitioner's contention that the Commonwealth misrepresented Dr. O'Brien's role before us or that any such misrepresentation bore on the Judge's independent determination that Dr. O'Brien was a valuable and credible court witness.
Unsurprisingly, Petitioner finds fault with the Pennsylvania Supreme Court's review of these claims concerning Dr. O'Brien. Pet.'s Mem. at 48. However, that court relied, as we do, on Judge Poserina's ability as a fact finder to deduce the credibility and bias of each witness before him. To do so was not an abuse of discretion.
Petitioner's third basis for arguing that we should revisit the issue of Mr. Heidnik's competency is that Dr. O'Brien and Dr. Sadoff did not apply the correct legal standard under Whitmore. Pet.'s Mem. at 49. This claim hinges on the fact that neither Dr. O'Brien nor Dr. Sadoff directly stated that Mr. Heidnik was able to consult with counsel. Petitioner further avers that neither of those experts provided a "rational explanation as to why ... he could, despite his delusions, make a rational decision to die." Id. at 49 (quoting In re Heidnik III at 112).
We have already discussed at length that the state court could properly find on the basis of the testimony before it that Mr. Heidnik's decision is rational. We reiterate that the experts' testimony clearly and repeatedly addressed the question of Mr. Heidnik's competence to litigate his own cause and his ability to make a rational, knowing, intelligent and voluntary decision to waive his appeals. Whether or not the experts used a specific word or phrase about consulting with counsel is immaterial to the substance of the testimony, which established that Mr. Heidnik was able to consult with counsel. Petitioner's argument appears to be an attempted avoidance
Similarly, we find Petitioner's claim of "rubber-stamping" by the Court of Common Pleas to be without merit. Pet.'s Mem. at 56. According to Petitioner, the judge's oral findings were a regurgitation of the state's written proposed findings. We find, from our examination of the record, that the court properly made its own determinations on the basis of the credence it accorded the different expert testimonies.
Furthermore, as Petitioner points out, the Pennsylvania Supreme Court is clearly willing to find that a lower court has engaged in rubber-stamping of an advocate's arguments. Petitioner cites to a case in which the Pennsylvania Supreme Court found "wholesale adoption by the post-conviction court of an advocate's brief." Pet.'s Mem. at 57 (quoting Commonwealth v. Williams, ___ Pa. ___,
Petitioner's penultimate claim is that the state court conducted a defective waiver colloquy, and that Mr. Heidnik's waiver of his right to pursue post-conviction appeals was not voluntary, knowing, and intelligent. However, the Court of Common Pleas determined that Mr. Heidnik's waiver satisfied the Whitmore test — that he was not only competent to waive further appeals, but that his actual decision to waive was voluntary, knowing, and intelligent. Having determined this, any additional colloquy would have been purely redundant, for its purpose would have been to establish exactly what the court had already ascertained.
Finally, Petitioner argues that Judge Poserina should have recused himself from the proceedings before him. Pet.'s Mem. at 68. The burden is on Petitioner to demonstrate that the Judge abused his discretion in denying the recusal motion, and she has not done so. We have already noted that our examination of the record persuades us that the proceedings before Judge Poserina were fair and impartial. Even without addressing Petitioner's claims of bias shown by the Judge in other proceedings, we find no evidence of bias in the record of this case. Judge Poserina properly refused to recuse himself, and the Pennsylvania Supreme Court appropriately upheld that decision. We find, therefore, that Petitioner has not refuted with clear and convincing evidence that the findings of the state court were erroneous.
After careful consideration to the arguments presented to us, we find that the Petitioner has failed to establish next friend standing on behalf of Mr. Heidnik. We believe that Mr. Heidnik has given a knowing, intelligent and voluntary waiver of his right to prosecute his own case. As standing is a threshold determination, we are constrained to find that the Petitioner is not entitled to stay of execution. Nor can we reach the merits of the Petitioner's habeas corpus claims filed on behalf of Mr. Heidnik. An appropriate order follows.
AND NOW, this 3rd day of July, 1999, for reasons stated in the foregoing memorandum it is hereby ordered as follows:
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