PANETTI v. QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, COR- RECTIONAL INSTITUTIONS DIVISION

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PANETTI v. QUARTERMAN, DIRECTOR, TEXAS
DEPARTMENT OF CRIMINAL JUSTICE, COR-
RECTIONAL INSTITUTIONS DIVISION
certiorari to the united states court of appeals for
the fifth circuit
No. 06–6407. Argued April 18, 2007—Decided June 28, 2007
Petitioner was convicted of capital murder in a Texas state court and sen
tenced to death despite his well-documented history of mental illness.
After the Texas courts denied relief on direct appeal, petitioner filed a
federal habeas petition pursuant to 28 U. S. C. § 2254, but the District
Court and the Fifth Circuit rejected his claims, and this Court denied
certiorari. In the course of these initial state and federal proceedings,
petitioner did not argue that mental illness rendered him incompetent
to be executed. Once the state trial court set an execution date, peti
tioner filed a motion under Texas law claiming, for the first time, that
he was incompetent to be executed because of mental illness. The trial
judge denied the motion without a hearing, and the Texas Court of
Criminal Appeals dismissed petitioner’s appeal for lack of jurisdiction.
He then filed another federal habeas petition under § 2254, and the
District Court stayed his execution to allow the state trial court time
to consider evidence of his then-current mental state. Once the state
court began its adjudication, petitioner submitted 10 motions in which
he requested, inter alia, a competency hearing and funds for a mental
health expert. The court indicated it would rule on the outstanding
motions once it had received the report written by the experts that
it had appointed to review petitioner’s mental condition. The experts
subsequently filed this report, which concluded, inter alia, that peti
tioner had the ability to understand the reason he was to be executed.
Without ruling on the outstanding motions, the judge found petitioner
competent and closed the case. Petitioner then returned to the Federal
District Court, seeking a resolution of his pending § 2254 petition. The
District Court concluded that the state-court competency proceedings
failed to comply with Texas law and were constitutionally inadequate in
light of the procedural requirements mandated by Ford v. Wainwright,
477 U. S. 399, 410, where this Court held that the Eighth Amendment
prohibits States from inflicting the death penalty upon insane prisoners.
Although the court therefore reviewed petitioner’s incompetency claim
without deferring to the state court’s finding of competency, it neverthe

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less granted no relief, finding that petitioner had not demonstrated that
he met the standard for incompetency. Under Fifth Circuit precedent,
the court explained, petitioner was competent to be executed so long as
he knew the fact of his impending execution and the factual predicate
for it. The Fifth Circuit affirmed.
Held:
1. This Court has statutory authority to adjudicate the claims raised
in petitioner’s second federal habeas application. Because § 2244(b)(2)
requires that “[a] claim presented in a second or successive . . . [§ 2254]
application . . . that was not presented in a prior application . . . be
dismissed,” the State maintains that the failure of petitioner’s first
§ 2254 application to raise a Ford-based incompetency claim deprived
the District Court of jurisdiction. The results this argument would
produce show its flaws. Were the State’s interpretation of “second or
successive” correct, a prisoner would have two options: forgo the oppor
tunity to raise a Ford claim in federal court; or raise the claim in a
first federal habeas application even though it is premature. Stewart v.
Martinez-Villareal, 523 U. S. 637, 644. The dilemma would apply not
only to prisoners with mental conditions that, at the time of the initial
habeas filing, were indicative of incompetency but also to all other pris
oners, including those with no early sign of mental illness. Because all
prisoners are at risk of deteriorations in their mental state, conscien
tious defense attorneys would be obliged to file unripe (and, in many
cases, meritless) Ford claims in each and every § 2254 application. This
counterintuitive approach would add to the burden imposed on courts,
applicants, and the States, with no clear advantage to any. The more
reasonable interpretation of § 2244, suggested by this Court’s prece
dents, is that Congress did not intend the provisions of the Antiterror
ism and Effective Death Penalty Act of 1996 (AEDPA) addressing “sec
ond or successive” habeas petitions to govern a filing in the unusual
posture presented here: a § 2254 application raising a Ford-based incom
petency claim filed as soon as that claim is ripe. See, e. g., Martinez-
Villareal, supra, at 643–645. This conclusion is confirmed by AEDPA’s
purposes of “further[ing] comity, finality, and federalism,” Miller-El v.
Cockrell, 537 U. S. 322, 337, “promot[ing] judicial efficiency and conser
vation of judicial resources, . . . and lend[ing] finality to state court
judgments within a reasonable time,” Day v. McDonough, 547 U. S. 198,
205–206. These purposes, and the practical effects of the Court’s hold
ings, should be considered when interpreting AEDPA, particularly
where, as here, petitioners “run the risk” under the proposed interpre
tation of “forever losing their opportunity for any federal review of their

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unexhausted claims,” Rhines v. Weber, 544 U. S. 269, 275. There is,
finally, no argument in this case that petitioner proceeded in a manner
that could be considered an abuse of the writ. Cf. Felker v. Turpin,
518 U. S. 651, 664. To the contrary, the Court has suggested that it is
generally appropriate for a prisoner to wait before seeking the resolu
tion of unripe incompetency claims. See, e. g., Martinez-Villareal,
supra, at 644–645. Pp. 942–947.
2. The state court failed to provide the procedures to which petitioner
was entitled under the Constitution. Ford identifies the measures a
State must provide when a prisoner alleges incompetency to be exe
cuted. Justice Powell’s opinion concurring in part and concurring in
the judgment in Ford controls, see Marks v. United States, 430 U. S.
188, 193, and constitutes “clearly established” governing law for AEDPA
purposes, § 2254(d)(1). As Justice Powell elaborated, once a prisoner
seeking a stay of execution has made “a substantial threshold showing
of insanity,” 477 U. S., at 426, the Eighth and Fourteenth Amendments
entitle him to, inter alia, a fair hearing, id., at 424, including an opportu
nity to submit “expert psychiatric evidence that may differ from the
State’s own psychiatric examination,” id., at 427. The procedures the
state court provided petitioner were so deficient that they cannot be
reconciled with any reasonable interpretation of the Ford rule. It is
uncontested that petitioner made a substantial showing of incompetency.
It is also evident from the record, however, that the state court reached
its competency determination without holding a hearing or providing
petitioner with an adequate opportunity to provide his own expert evi
dence. Moreover, there is a strong argument that the court violated
state law by failing to provide a competency hearing. If so, the viola
tion undermines any reliance the State might now place on Justice Pow
ell’s assertion that “the States should have substantial leeway to deter
mine what process best balances the various interests at stake.” Ibid.
Under AEDPA, a federal court may grant habeas relief, as relevant,
only if a state court’s “adjudication of [a claim on the merits] . . . resulted
in a decision that . . . involved an unreasonable application” of the rele
vant federal law. § 2254(d)(1). If the state court’s adjudication is de
pendent on an antecedent unreasonable application of federal law, that
requirement is satisfied, and the federal court must then resolve the
claim without the deference AEDPA otherwise requires. See, e. g.,
Wiggins v. Smith, 539 U. S. 510, 534. Having determined that the state
court unreasonably applied Ford when it accorded petitioner the proce
dures in question, this Court must now consider petitioner’s claim on
the merits without deferring to the state court’s competency finding.
Pp. 948–954.

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3. The Fifth Circuit employed an improperly restrictive test when
it considered petitioner ’s claim of incompetency on the merits.
Pp. 954–962.
(a) The Fifth Circuit’s incompetency standard is too restrictive to
afford a prisoner Eighth Amendment protections. Petitioner’s experts
in the District Court concluded that, although he claims to understand
that the State says it wants to execute him for murder, his mental prob
lems have resulted in the delusion that the stated reason is a sham, and
that the State actually wants to execute him to stop him from preaching.
The Fifth Circuit held, based on its earlier decisions, that such delusions
are simply not relevant to whether a prisoner can be executed so long
as he is aware that the State has identified the link between his crime
and the punishment to be inflicted. This test ignores the possibility
that even if such awareness exists, gross delusions stemming from a
severe mental disorder may put that awareness in a context so far re
moved from reality that the punishment can serve no proper purpose.
It is also inconsistent with Ford, for none of the principles set forth
therein is in accord with the Fifth Circuit’s rule. Although the Ford
opinions did not set forth a precise competency standard, the Court did
reach the express conclusion that the Constitution “places a substantive
restriction on the State’s power to take the life of an insane prisoner,”
477 U. S., at 405, because, inter alia, such an execution serves no retrib
utive purpose, id., at 408. It might be said that capital punishment is
imposed because it has the potential to make the offender recognize at
last the gravity of his crime and to allow the community as a whole,
including the victim’s surviving family and friends, to affirm its own
judgment that the prisoner’s culpability is so serious that the ultimate
penalty must be sought and imposed. Both the potential for this recog
nition and the objective of community vindication are called into ques
tion, however, if the prisoner’s only awareness of the link between the
crime and the punishment is so distorted by mental illness that his
awareness of the crime and punishment has little or no relation to the
understanding shared by the community as a whole. A prisoner’s
awareness of the State’s rationale for an execution is not the same as a
rational understanding of it. Ford does not foreclose inquiry into the
latter. To refuse to consider evidence of this nature is to mistake Ford’s
holding and its logic. Pp. 954–960.
(b) Although the Court rejects the Fifth Circuit’s standard, it does
not attempt to set down a rule governing all competency determina
tions. The record is not as informative as it might be because it was
developed by the District Court under the rejected standard, and, thus,
this Court finds it difficult to amplify its conclusions or to make them
more precise. It is proper to allow the court charged with overseeing

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the development of the evidentiary record the initial opportunity to re
solve petitioner’s constitutional claim. Pp. 960–962.
448 F. 3d 815, reversed and remanded.
Kennedy, J., delivered the opinion of the Court, in which Stevens,
Souter, Ginsburg, and Breyer, JJ., joined. Thomas, J., filed a dissent
ing opinion, in which Roberts, C. J., and Scalia and Alito, JJ., joined,
post, p. 962.
Gregory W. Wiercioch argued the cause for petitioner.
With him on the briefs was Keith S. Hampton, by appoint
ment of the Court, 549 U. S. 1250.
R. Ted Cruz, Solicitor General of Texas, argued the cause
for respondent. With him on the briefs were Greg Abbott,
Attorney General, Kent C. Sullivan, First Assistant Attor
ney General, Eric J. R. Nichols, Deputy Attorney General,
Rance L. Craft, William L. Davis, and Brantley Starr, As
sistant Solicitors General, and Tina J. Dettmer, Assistant At
torney General.*
Justice Kennedy delivered the opinion of the Court.
“[T]he Eighth Amendment prohibits a State from carrying
out a sentence of death upon a prisoner who is insane.”
Ford v. Wainwright, 477 U. S. 399, 409–410 (1986). The pro
hibition applies despite a prisoner’s earlier competency to be
held responsible for committing a crime and to be tried for
it. Prior findings of competency do not foreclose a prisoner
from proving he is incompetent to be executed because of
his present mental condition. Under Ford, once a prisoner
makes the requisite preliminary showing that his current
mental state would bar his execution, the Eighth Amend
*Briefs of amici curiae urging reversal were filed for the American Bar
Association by Karen J. Mathis and Ronald J. Tabak; for the American
Psychological Association et al. by David W. Ogden, Richard G. Taranto,
and Nathalie F. P. Gilfoyle; and for Legal Historians by Robert N. Weiner
and Anthony J. Franze.
Kent S. Scheidegger filed a brief for the Criminal Justice Legal Founda
tion as amicus curiae urging affirmance.

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ment, applicable to the States under the Due Process Clause
of the Fourteenth Amendment, entitles him to an adjudica
tion to determine his condition. These determinations are
governed by the substantive federal baseline for competency
set down in Ford.
Scott Louis Panetti, referred to here as petitioner, was
convicted and sentenced to death in a Texas state court.
After the state trial court set an execution date, petitioner
made a substantial showing he was not competent to be exe
cuted. The state court rejected his claim of incompetency
on the merits. Filing a petition for writ of habeas corpus in
the United States District Court for the Western District of
Texas, petitioner claimed again that his mental condition
barred his execution; that the Eighth Amendment set forth
a substantive standard for competency different from the one
advanced by the State; and that prior state-court proceed
ings on the issue were insufficient to satisfy the procedural
requirements mandated by Ford. The State denied these
assertions and argued, in addition, that the federal courts
lacked jurisdiction to hear petitioner’s claims.
We conclude we have statutory authority to adjudicate the
claims petitioner raises in his habeas application; we find the
state court failed to provide the procedures to which peti
tioner was entitled under the Constitution; and we deter
mine that the federal appellate court employed an improp
erly restrictive test when it considered petitioner’s claim of
incompetency on the merits. We therefore reverse the
judgment of the Court of Appeals for the Fifth Circuit and
remand the case for further consideration.
I
On a morning in 1992 petitioner awoke before dawn,
dressed in camouflage, and drove to the home of his es
tranged wife’s parents. Breaking the front-door lock, he en
tered the house and, in front of his wife and daughter, shot
and killed his wife’s mother and father. He took his wife

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and daughter hostage for the night before surrendering to
police.
Tried for capital murder in 1995, petitioner sought to rep
resent himself. The court ordered a psychiatric evaluation,
which indicated that petitioner suffered from a fragmented
personality, delusions, and hallucinations. 1 App. 9–14.
The evaluation noted that petitioner had been hospitalized
numerous times for these disorders. Id., at 10; see also id.,
at 222. Evidence later revealed that doctors had prescribed
medication for petitioner’s mental disorders that, in the opin
ion of one expert, would be difficult for a person not suffering
from extreme psychosis even to tolerate. See id., at 233
(“I can’t imagine anybody getting that dose waking up for
two to three days. You cannot take that kind of medication
if you are close to normal without absolutely being put out”).
Petitioner’s wife described one psychotic episode in a peti
tion she filed in 1986 seeking extraordinary relief from the
Texas state courts. See id., at 38–40. She explained that
petitioner had become convinced the devil had possessed
their home and that, in an effort to cleanse their surround
ings, petitioner had buried a number of valuables next to the
house and engaged in other rituals. Id., at 39. Petitioner
nevertheless was found competent to be tried and to waive
counsel. At trial he claimed he was not guilty by reason
of insanity.
During his trial petitioner engaged in behavior later de
scribed by his standby counsel as “bizarre,” “scary,” and
“trance-like.” Id., at 26, 21, 22. According to the attorney,
petitioner’s behavior both in private and in front of the jury
made it evident that he was suffering from “mental incompe
tence,” id., at 26; see also id., at 22–23, and the net effect of
this dynamic was to render the trial “truly a judicial farce,
and a mockery of self-representation,” id., at 26. There was
evidence on the record, moreover, to indicate that petitioner
had stopped taking his antipsychotic medication a few
months before trial, see id., at 339, 345, a rejection of medical

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advice that, it appears, petitioner has continued to this day
with one brief exception, see Brief for Petitioner 16–17. Ac
cording to expert testimony, failing to take this medication
tends to exacerbate the underlying mental dysfunction.
See id., at 16, 18, n. 12; see also 1 App. 195, 228. And it is
uncontested that, less than two months after petitioner was
sentenced to death, the state trial court found him incompe
tent to waive the appointment of state habeas counsel. See
Brief for Petitioner 15, n. 10. It appears, therefore, that
petitioner’s condition has only worsened since the start of
trial.
The jury found petitioner guilty of capital murder and sen
tenced him to death. Petitioner challenged his conviction
and sentence both on direct appeal and through state habeas
proceedings. The Texas courts denied his requests for re
lief. See Panetti v. State, No. 72,230 (Crim. App., Dec. 3,
1997) (en banc); Ex parte Panetti, No. 37,145–01 (Crim. App.,
May 20, 1998) (en banc). This Court twice denied a petition
for certiorari. Panetti v. Texas, 525 U. S. 848 (1998); Panetti
v. Texas, 524 U. S. 914 (1998).
Petitioner filed a petition for writ of habeas corpus pursu
ant to 28 U. S. C. § 2254 in the United States District Court
for the Western District of Texas. His claims were again
rejected, both by the District Court, Panetti v. Johnson,
Cause No. A–99–CV–260–SS (2001), and the Court of Ap
peals for the Fifth Circuit, Panetti v. Cockrell, 73 Fed. Appx.
78 (2003) ( judgt. order), and we again denied a petition for
certiorari, Panetti v. Dretke, 540 U. S. 1052 (2003). Among
the issues petitioner raised in the course of these state and
federal proceedings was his competency to stand trial and to
waive counsel. Petitioner did not argue, however, that men
tal illness rendered him incompetent to be executed.
On October 31, 2003, Judge Stephen B. Ables of the 216th
Judicial District Court in Gillespie County, Texas, set peti
tioner’s execution date for February 5, 2004. See First
Order Setting Execution in Cause No. 3310; Order Setting

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Execution in Cause No. 3310. On December 10, 2003, coun
sel for petitioner filed with Judge Ables a motion under Tex.
Code Crim. Proc. Ann., Art. 46.05 (Vernon Supp. Pamphlet
2006). Petitioner claimed, for the first time, that due to
mental illness he was incompetent to be executed. The
judge denied the motion without a hearing. When peti
tioner attempted to challenge the ruling, the Texas Court of
Criminal Appeals dismissed his appeal for lack of jurisdic
tion, indicating it has authority to review an Art. 46.05 deter
mination only when a trial court has determined a prisoner
is incompetent. Ex parte Panetti, No. 74,868 (Jan. 28, 2004)
(per curiam).
Petitioner returned to federal court, where he filed an
other petition for writ of habeas corpus pursuant to § 2254
and a motion for stay of execution. On February 4, 2004,
the District Court stayed petitioner’s execution to “allow the
state court a reasonable period of time to consider the evi
dence of [petitioner’s] current mental state.” Order in Case
No. A–04–CA–042–SS, 1 App. 113–114, 116.
The state court had before it, at that time, petitioner’s re
newed motion to determine competency to be executed
(hereinafter Renewed Motion To Determine Competency).
Attached to the motion were a letter and a declaration from
two individuals, a psychologist and a law professor, who had
interviewed petitioner while on death row on February 3,
2004. The new evidence, according to counsel, demon
strated that petitioner did not understand the reasons he
was about to be executed.
Due to the absence of a transcript, the state-court proceed
ings after this point are not altogether clear. The claims
raised before this Court nevertheless make it necessary to
recount the procedural history in some detail. Based on the
docket entries and the parties’ filings it appears the follow
ing occurred.
The state trial court ordered the parties to participate in
a telephone conference on February 9, 2004, to discuss the

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status of the case. There followed a court directive in
structing counsel to submit, by February 20, the names of
mental health experts the court should consider appointing
pursuant to Art. 46.05(f). See ibid. (“If the trial court de
termines that the defendant has made a substantial showing
of incompetency, the court shall order at least two mental
health experts to examine the defendant”). The court also
gave the parties until February 20 to submit any motions
concerning the competency procedures and advised it would
hold another status conference on that same date. Defend
ant’s Motion to Reconsider in Cause No. 3310, pp. 1–2 (Mar.
4, 2004) (hereinafter Motion to Reconsider).
On February 19, 2004, petitioner filed 10 motions related
to the Art. 46.05 proceedings. They included requests for
transcription of the proceedings, a competency hearing com
porting with the procedural due process requirements set
forth in Ford, and funds to hire a mental health expert. See
Motion to Transcribe All Proceedings Related to Compe
tency Determination Under Article 46.05 in Cause No. 3310;
Motion to Ensure that the Article 46.05 “Final Competency
Hearing” Comports with the Procedural Due Process Re
quirements of Ford in Cause No. 3310; Ex Parte Motion for
Prepayment of Funds to Hire Mental Health Expert to As
sist Defense in Article 46.05 Proceedings in Cause No. 3310.
On February 20, the court failed to hold its scheduled sta
tus conference. Petitioner’s counsel called the courthouse
and was advised Judge Ables was out of the office for the
day. Counsel then called the Gillespie County District At
torney, who explained that the judge had informed state at
torneys earlier that week that he was canceling the confer
ence he had set and would appoint the mental health experts
without input from the parties. Motion to Reconsider 2.
On February 23, 2004, counsel for petitioner received an
order, dated February 20, advising that the court was ap
pointing two mental health experts pursuant to Art.
§ 46.05(f). Order in Cause No. 3310, p. 1 (Feb. 26, 2004), 1

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App. 59. On February 25, at an informal status conference,
the court denied two of petitioner’s motions, indicating it
would consider the others when the court-appointed mental
health experts completed their evaluations. Motion to Re
consider 3. On March 4, petitioner filed a motion explaining
that a delayed ruling would render a number of the motions
moot. Id., at 1. There is no indication the court responded
to this motion.
The court-appointed experts returned with their evalua
tion on April 28, 2004. Concluding that petitioner “knows
that he is to be executed, and that his execution will result
in his death,” and, moreover, that he “has the ability to un
derstand the reason he is to be executed,” the experts al
leged that petitioner’s uncooperative and bizarre behavior
was due to calculated design: “Mr. Panetti deliberately and
persistently chose to control and manipulate our interview
situation,” they claimed. 1 App. 75. They maintained that
petitioner “could answer questions about relevant legal
issues . . . if he were willing to do so.” Ibid.
The judge sent a letter to counsel, including petitioner’s
attorney, Michael C. Gross, dated May 14, 2004. It said:
“Dear Counsel:
“It appears from the evaluations performed by [the
court-appointed experts] that they are of the opinion
that [petitioner] is competent to be executed in accord
ance with the standards set out in Art. 46.05 of the Code
of Criminal Procedure.
“Mr. Gross, if you have any other matters you wish to
have considered, please file them in the case papers and
get me copies by 5:00 p.m. on May 21, 2004.” Id., at
77–78.
Petitioner responded with a filing entitled “Objections to Ex
perts’ Report, Renewed Motion for Funds To Hire Mental
Health Expert and Investigator, Renewed Motion for Ap
pointment of Counsel, and Motion for Competency Hearing”

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in Cause No. 3310 (May 21, 2004), 1 App. 82–95 (hereinafter
Objections to Experts’ Report). In this filing petitioner
criticized the methodology and conclusions of the court
appointed experts; asserted his continued need for a mental
health expert as his own criticisms of the report were “by
necessity limited,” id., at 1; again asked the court to rule on
his outstanding motions for funds and appointment of coun
sel; and requested a competency hearing. Petitioner also
argued, as a more general matter, that the process he had
received thus far failed to comply with Art. 46.05 and the
procedural mandates set by Ford.
The court, in response, closed the case. On May 26, it
released a short order identifying the report submitted by
the court-appointed experts and explaining that “[b]ased on
the aforesaid doctors’ reports, the Court finds that [peti
tioner] has failed to show, by a preponderance of the evi
dence, that he is incompetent to be executed.” Order Re
garding Competency To Be Executed in Cause No. 3310, 1
App. 99. The order made no mention of petitioner’s motions
or other filings. Petitioner did not appeal the ruling to the
Court of Criminal Appeals, and he did not petition this Court
for certiorari.
This background leads to the matter now before us. Peti
tioner returned to federal court, seeking resolution of the
§ 2254 petition he had filed on January 26. The District
Court granted petitioner’s motions to reconsider, to stay his
execution, to appoint counsel, and to provide funds. The
court, in addition, set the case for an evidentiary hearing,
which included testimony by a psychiatrist, a professor, and
two psychologists, all called by petitioner, as well as two psy
chologists and three correctional officers, called by respond
ent. See 1 App. 117–135, 362–363; see also id., at 136–336.
We describe the substance of the experts’ testimony in more
detail later in our opinion.
On September 29, 2004, the District Court denied petition
er’s habeas application on the merits. It concluded that the

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state trial court had failed to comply with Art. 46.05; found
the state proceedings “constitutionally inadequate” in light
of Ford; and reviewed petitioner’s Eighth Amendment claim
without deferring to the state court’s finding of competency.
Panetti v. Dretke, 401 F. Supp. 2d 702, 706, 705–706 (WD
Tex. 2004). The court nevertheless denied relief. It found
petitioner had not shown incompetency as defined by Circuit
precedent. Id., at 712. “Ultimately,” the court explained,
“the Fifth Circuit test for competency to be executed re
quires the petitioner know no more than the fact of his im
pending execution and the factual predicate for the execu
tion.” Id., at 711. The Court of Appeals affirmed, Panetti
v. Dretke, 448 F. 3d 815 (CA5 2006), and we granted certio
rari, 549 U. S. 1106 (2007).
II
We first consider our jurisdiction. The habeas corpus ap
plication on review is the second one petitioner has filed
in federal court. Under the gatekeeping provisions of 28
U. S. C. § 2244(b)(2), “[a] claim presented in a second or
successive habeas corpus application under section 2254
that was not presented in a prior application shall be dis
missed” except under certain, narrow circumstances. See
§§ 2244(b)(2)(A)–(B).
The State maintains that, by direction of § 2244, the Dis
trict Court lacked jurisdiction to adjudicate petitioner’s
§ 2254 application. Its argument is straightforward: “[Peti
tioner’s] first federal habeas application, which was fully and
finally adjudicated on the merits, failed to raise a Ford
claim,” and, as a result, “[his] subsequent habeas application,
which did raise a Ford claim, was a ‘second or successive’
application” under the terms of § 2244(b)(2). Supplemental
Brief for Respondent 1. The State contends, moreover, that
any Ford claim brought in an application governed by § 2244’s
gatekeeping provisions must be dismissed. See Supplemen
tal Brief for Respondent 4–6 (citing §§ 2244(b)(2)(A)–(B)).

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The State acknowledges that Ford-based incompetency
claims, as a general matter, are not ripe until after the time
has run to file a first federal habeas petition. See Supple
mental Brief for Respondent 6. The State nevertheless
maintains that its rule would not foreclose prisoners from
raising Ford claims. Under Stewart v. Martinez-Villareal,
523 U. S. 637 (1998), the State explains, a federal court is
permitted to review a prisoner’s Ford claim once it becomes
ripe if the prisoner preserved the claim by filing it in his first
federal habeas application. Under the State’s approach a
prisoner contemplating a future Ford claim could preserve it
by this means.
The State’s argument has some force. The results it
would produce, however, show its flaws. As in Martinez-
Villareal, if the State’s “interpretation of ‘second or succes
sive’ were correct, the implications for habeas practice would
be far reaching and seemingly perverse.” 523 U. S., at 644.
A prisoner would be faced with two options: forgo the oppor
tunity to raise a Ford claim in federal court; or raise the
claim in a first federal habeas application (which generally
must be filed within one year of the relevant state-court rul
ing), even though it is premature. The dilemma would apply
not only to prisoners with mental conditions indicative of in
competency but also to those with no early sign of mental
illness. All prisoners are at risk of deteriorations in their
mental state. As a result, conscientious defense attorneys
would be obliged to file unripe (and, in many cases, meritless)
Ford claims in each and every § 2254 application. This coun
terintuitive approach would add to the burden imposed on
courts, applicants, and the States, with no clear advantage
to any.
We conclude there is another reasonable interpretation of
§ 2244, one that does not produce these distortions and
inefficiencies.
The phrase “second or successive” is not self-defining. It
takes its full meaning from our case law, including decisions

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predating the enactment of the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA), 110 Stat. 1214. See
Slack v. McDaniel, 529 U. S. 473, 486 (2000) (citing
Martinez-Villareal, supra); see also Felker v. Turpin, 518
U. S. 651, 664 (1996). The Court has declined to interpret
“second or successive” as referring to all § 2254 applications
filed second or successively in time, even when the later fil
ings address a state-court judgment already challenged in a
prior § 2254 application. See, e. g., Slack, 529 U. S., at 487
(concluding that a second § 2254 application was not “second
or successive” after the petitioner’s first application, which
had challenged the same state-court judgment, had been dis
missed for failure to exhaust state remedies); see also id., at
486 (indicating that “pre-AEDPA law govern[ed]” the case
before it but implying that the Court would reach the same
result under AEDPA); see also Martinez-Villareal, supra,
at 645.
Our interpretation of § 2244 in Martinez-Villareal is illus
trative. There the prisoner filed his first habeas application
before his execution date was set. In the first application
he asserted, inter alia, that he was incompetent to be exe
cuted, citing Ford. The District Court, among other hold
ings, dismissed the claim as premature; and the Court of
Appeals affirmed the ruling. When the State obtained a
warrant for the execution, the prisoner filed, for the second
time, a habeas application raising the same incompetency
claim. The State argued that because the prisoner “already
had one ‘fully-litigated habeas petition, the plain meaning of
§ 2244(b) . . . requires his new petition to be treated as suc
cessive.’ ” 523 U. S., at 643.
We rejected this contention. While the later filing “may
have been the second time that [the prisoner] had asked the
federal courts to provide relief on his Ford claim,” the Court
declined to accept that there were, as a result, “two separate
applications, [with] the second . . . necessarily subject to

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§ 2244(b).” Ibid. The Court instead held that, in light of
the particular circumstances presented by a Ford claim, it
would treat the two filings as a single application. The peti
tioner “was entitled to an adjudication of all of the claims
presented in his earlier, undoubtedly reviewable, application
for federal habeas relief.” 523 U. S., at 643.
Our earlier holding does not resolve the jurisdictional
question in the instant case. Martinez-Villareal did not ad
dress the applicability of § 2244(b) “where a prisoner raises
a Ford claim for the first time in a petition filed after the
federal courts have already rejected the prisoner’s initial ha
beas application.” Id., at 645, n. Yet the Court’s willing
ness to look to the “implications for habeas practice” when
interpreting § 2244 informs the analysis here. Id., at 644.
We conclude, in accord with this precedent, that Congress
did not intend the provisions of AEDPA addressing “sec
ond or successive” petitions to govern a filing in the unusual
posture presented here: a § 2254 application raising a
Ford-based incompetency claim filed as soon as that claim
is ripe.
Our conclusion is confirmed when we consider AEDPA’s
purposes. The statute’s design is to “further the principles
of comity, finality, and federalism.” Miller-El v. Cockrell,
537 U. S. 322, 337 (2003) (internal quotation marks omitted).
Cf. Day v. McDonough, 547 U. S. 198, 205–206 (2006) (“The
AEDPA statute of limitation promotes judicial efficiency and
conservation of judicial resources, safeguards the accuracy of
state court judgments by requiring resolution of constitu
tional questions while the record is fresh, and lends finality
to state court judgments within a reasonable time” (internal
quotation marks omitted)).
These purposes, and the practical effects of our holdings,
should be considered when interpreting AEDPA. This is
particularly so when petitioners “run the risk” under the
proposed interpretation of “forever losing their opportunity

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for any federal review of their unexhausted claims.” Rhines
v. Weber, 544 U. S. 269, 275 (2005). See also Castro v. United
States, 540 U. S. 375, 381 (2003). In Rhines “[w]e recog
nize[d] the gravity of [the] problem” posed when petitioners
file applications with only some claims exhausted, as well as
“the difficulty [this problem] has posed for petitioners and
federal district courts alike.” 544 U. S., at 275, 276. We
sought to ensure our “solution to this problem [was] compati
ble with AEDPA’s purposes.” Id., at 276. And in Castro
we resisted an interpretation of the statute that would
“produce troublesome results,” “create procedural anoma
lies,” and “close our doors to a class of habeas petitioners
seeking review without any clear indication that such was
Congress’ intent.” 540 U. S., at 380, 381. See also Wil
liams v. Taylor, 529 U. S. 420, 437 (2000); Johnson v. United
States, 544 U. S. 295, 308–309 (2005); Duncan v. Walker, 533
U. S. 167, 178 (2001); cf. Granberry v. Greer, 481 U. S. 129,
131–134 (1987).
An empty formality requiring prisoners to file unripe Ford
claims neither respects the limited legal resources available
to the States nor encourages the exhaustion of state reme
dies. See Duncan, supra, at 178. Instructing prisoners to
file premature claims, particularly when many of these
claims will not be colorable even at a later date, does not
conserve judicial resources, “reduc[e] piecemeal litigation,”
or “streamlin[e] federal habeas proceedings.” Burton v.
Stewart, 549 U. S. 147, 154 (2007) (per curiam) (internal quo
tation marks omitted). AEDPA’s concern for finality, more
over, is not implicated, for under none of the possible ap
proaches would federal courts be able to resolve a prisoner’s
Ford claim before execution is imminent. See Martinez-
Villareal, supra, at 644–645 (acknowledging that the District
Court was unable to resolve the prisoner’s incompetency
claim at the time of his initial habeas filing). And last
minute filings that are frivolous and designed to delay execu
tions can be dismissed in the regular course. The require

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ment of a threshold preliminary showing, for instance, will,
as a general matter, be imposed before a stay is granted or
the action is allowed to proceed.
There is, in addition, no argument that petitioner’s actions
constituted an abuse of the writ, as that concept is explained
in our cases. Cf. Felker, 518 U. S., at 664 (“[AEDPA’s] new
restrictions on successive petitions constitute a modified res
judicata rule, a restraint on what is called in habeas corpus
practice ‘abuse of the writ’ ”). To the contrary, we have con
firmed that claims of incompetency to be executed remain
unripe at early stages of the proceedings. See Martinez-
Villareal, 523 U. S., at 644–645; see also ibid. (suggesting
that it is therefore appropriate, as a general matter, for a
prisoner to wait before seeking resolution of his incompe
tency claim); Ford, 477 U. S. 399 (remanding the case to the
District Court to resolve Ford’s incompetency claim, even
though Ford had brought that claim in a second federal ha
beas petition); Barnard v. Collins, 13 F. 3d 871, 878 (CA5
1994) (“[O]ur research indicates no reported decision in
which a federal circuit court or the Supreme Court has de
nied relief of a petitioner’s competency-to-be-executed claim
on grounds of abuse of the writ”). See generally McCleskey
v. Zant, 499 U. S. 467, 489–497 (1991).
In the usual case, a petition filed second in time and not
otherwise permitted by the terms of § 2244 will not survive
AEDPA’s “second or successive” bar. There are, however,
exceptions. We are hesitant to construe a statute, imple
mented to further the principles of comity, finality, and feder
alism, in a manner that would require unripe (and, often,
factually unsupported) claims to be raised as a mere formal
ity, to the benefit of no party.
The statutory bar on “second or successive” applications
does not apply to a Ford claim brought in an application filed
when the claim is first ripe. Petitioner’s habeas application
was properly filed, and the District Court had jurisdiction to
adjudicate his claim.

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III
A
Petitioner claims that the Eighth and Fourteenth Amend
ments of the Constitution, as elaborated by Ford, entitled
him to certain procedures not provided in the state court;
that the failure to provide these procedures constituted an
unreasonable application of clearly established Supreme
Court law; and that under § 2254(d) this misapplication of
Ford allows federal-court review of his incompetency claim
without deference to the state court’s decision.
We agree with petitioner that no deference is due. The
state court’s failure to provide the procedures mandated by
Ford constituted an unreasonable application of clearly es
tablished law as determined by this Court. It is uncon
tested that petitioner made a substantial showing of incom
petency. This showing entitled him to, among other things,
an adequate means by which to submit expert psychiatric
evidence in response to the evidence that had been solicited
by the state court. And it is clear from the record that the
state court reached its competency determination after fail
ing to provide petitioner with this process, notwithstanding
counsel’s sustained effort, diligence, and compliance with
court orders. As a result of this error, our review of peti
tioner’s underlying incompetency claim is unencumbered by
the deference AEDPA normally requires.
Ford identifies the measures a State must provide when a
prisoner alleges incompetency to be executed. The four-
Justice plurality in Ford concluded as follows:
“Although the condemned prisoner does not enjoy the
same presumptions accorded a defendant who has yet to
be convicted or sentenced, he has not lost the protection
of the Constitution altogether; if the Constitution ren
ders the fact or timing of his execution contingent upon
establishment of a further fact, then that fact must be
determined with the high regard for truth that befits a

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decision affecting the life or death of a human being.
Thus, the ascertainment of a prisoner’s sanity as a pred
icate to lawful execution calls for no less stringent
standards than those demanded in any other aspect of a
capital proceeding.” 477 U. S., at 411–412.
Justice Powell’s concurrence, which also addressed the ques
tion of procedure, offered a more limited holding. When
there is no majority opinion, the narrower holding controls.
See Marks v. United States, 430 U. S. 188, 193 (1977).
Under this rule Justice Powell’s opinion constitutes “clearly
established” law for purposes of § 2254 and sets the minimum
procedures a State must provide to a prisoner raising a
Ford-based competency claim.
Justice Powell’s opinion states the relevant standard as fol
lows. Once a prisoner seeking a stay of execution has made
“a substantial threshold showing of insanity,” the protection
afforded by procedural due process includes a “fair hearing”
in accord with fundamental fairness. Ford, 477 U. S., at 426,
424 (opinion concurring in part and concurring in judgment)
(internal quotation marks omitted). This protection means
a prisoner must be accorded an “opportunity to be heard,”
id., at 424 (internal quotation marks omitted), though
“a constitutionally acceptable procedure may be far less for
mal than a trial,” id., at 427. As an example of why the
state procedures on review in Ford were deficient, Justice
Powell explained, the determination of sanity “appear[ed]
to have been made solely on the basis of the examinations
performed by state-appointed psychiatrists.” Id., at 424.
“Such a procedure invites arbitrariness and error by pre
venting the affected parties from offering contrary medical
evidence or even from explaining the inadequacies of the
State’s examinations.” Ibid.
Justice Powell did not set forth “the precise limits that
due process imposes in this area.” Id., at 427. He observed
that a State “should have substantial leeway to determine
what process best balances the various interests at stake”

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once it has met the “basic requirements” required by due
process. Ibid. These basic requirements include an oppor
tunity to submit “evidence and argument from the prisoner’s
counsel, including expert psychiatric evidence that may dif
fer from the State’s own psychiatric examination.” Ibid.
Petitioner was entitled to these protections once he had
made a “substantial threshold showing of insanity.” Id., at
426. He made this showing when he filed his Renewed Mo
tion To Determine Competency—a fact disputed by no party,
confirmed by the trial court’s appointment of mental health
experts pursuant to Article 46.05(f), and verified by our inde
pendent review of the record. The Renewed Motion to De
termine Competency included pointed observations made by
two experts the day before petitioner’s scheduled execution;
and it incorporated, through petitioner’s first Motion To De
termine Competency, references to the extensive evidence of
mental dysfunction considered in earlier legal proceedings.
In light of this showing, the state court failed to provide
petitioner with the minimum process required by Ford.
The state court refused to transcribe its proceedings, not
withstanding the multiple motions petitioner filed requesting
this process. To the extent a more complete record may
have put some of the court’s actions in a more favorable light,
this only constitutes further evidence of the inadequacy of
the proceedings. Based on the materials available to this
Court, it appears the state court on repeated occasions con
veyed information to petitioner’s counsel that turned out not
to be true; provided at least one significant update to the
State without providing the same notice to petitioner; and
failed in general to keep petitioner informed as to the oppor
tunity, if any, he would have to present his case. There is
also a strong argument the court violated state law by failing
to provide a competency hearing. See Tex. Code Crim.
Proc. Ann., Art. 46.05(k). If this did, in fact, constitute a
violation of the procedural framework Texas has mandated
for the adjudication of incompetency claims, the violation un
dermines any reliance the State might now place on Justice

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Powell’s assertion that “the States should have substantial
leeway to determine what process best balances the various
interests at stake.” Ford, supra, at 427. See also, e. g.,
Brief for Respondent 16. What is more, the order issued by
the state court implied that its determination of petitioner’s
competency was made solely on the basis of the examinations
performed by the psychiatrists it had appointed—precisely
the sort of adjudication Justice Powell warned would “in
vit[e] arbitrariness and error,” Ford, supra, at 424.
The state court made an additional error, one that Ford
makes clear is impermissible under the Constitution: It failed
to provide petitioner with an adequate opportunity to submit
expert evidence in response to the report filed by the court
appointed experts. The court mailed the experts’ report to
both parties in the first week of May. The report, which
rejected the factual basis for petitioner’s claim, set forth new
allegations suggesting that petitioner’s bizarre behavior was
due, at least in part, to deliberate design rather than mental
illness. Petitioner’s counsel reached the reasonable conclu
sion that these allegations warranted a response. See Ob
jections to Experts’ Report 13, and n. 1. On May 14, the
court told petitioner’s counsel, by letter, to file “any other
matters you wish to have considered” within a week. Peti
tioner, in response, renewed his motions for an evidentiary
hearing, funds to hire a mental health expert, and other re
lief. He did not submit at that time expert psychiatric evi
dence to challenge the court-appointed experts’ report, a de
cision that in context made sense: The court had said it would
rule on his outstanding motions, which included a request
for funds to hire a mental health expert and a request for an
evidentiary hearing, once the court-appointed experts had
completed their evaluation. Counsel was justified in relying
on this representation by the court.
Texas law, moreover, provides that a court’s finding of in
competency will be made on the basis of, inter alia, a “final
competency hearing.” Tex. Code Crim. Proc. Ann., Art.
46.05(k); see also Ex parte Caldwell, 58 S. W. 3d 127, 129,

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130 (Tex. Crim. App. 2000) (confirming that the “legislature
codified the dictates of Ford by enacting [the precursor to
Art. 46.05]” and indicating that “[t]he determination of
whether to appoint experts and conduct a hearing is within
the discretion of the trial court” before a petitioner has made
a substantial showing of incompetency). Had the court ad
vised counsel it would resolve the case without first ruling
on petitioner’s motions and without holding a competency
hearing, petitioner’s counsel might have managed to procure
the assistance of experts, as he had been able to do on a pro
bono basis the day before petitioner’s previously scheduled
execution. It was, in any event, reasonable for counsel to
refrain from procuring and submitting expert psychiatric ev
idence while waiting for the court to rule on the timely filed
motions, all in reliance on the court’s assurances.
But at this point the court simply ended the matter.
The state court failed to provide petitioner with a constitu
tionally adequate opportunity to be heard. After a prisoner
has made the requisite threshold showing, Ford requires, at
a minimum, that a court allow a prisoner’s counsel the oppor
tunity to make an adequate response to evidence solicited by
the state court. See 477 U. S., at 424, 427. In petitioner’s
case this meant an opportunity to submit psychiatric evi
dence as a counterweight to the report filed by the court
appointed experts. Id., at 424. Yet petitioner failed to re
ceive even this rudimentary process.
In light of this error we need not address whether other
procedures, such as the opportunity for discovery or for the
cross-examination of witnesses, would in some cases be re
quired under the Due Process Clause. As Ford makes clear,
the procedural deficiencies already identified constituted a
violation of petitioner’s federal rights.
B
The state court’s denial of certain of petitioner’s motions
rests on an implicit finding: that the procedures it provided

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were adequate to resolve the competency claim. In light
of the procedural history we have described, however, this
determination cannot be reconciled with any reasonable ap
plication of the controlling standard in Ford.
That the standard is stated in general terms does not mean
the application was reasonable. AEDPA does not “require
state and federal courts to wait for some nearly identical
factual pattern before a legal rule must be applied.” Carey
v. Musladin, 549 U. S. 70, 81 (2006) (Kennedy, J., concurring
in judgment). Nor does AEDPA prohibit a federal court
from finding an application of a principle unreasonable when
it involves a set of facts “different from those of the case in
which the principle was announced.” Lockyer v. Andrade,
538 U. S. 63, 76 (2003). The statute recognizes, to the con
trary, that even a general standard may be applied in an
unreasonable manner. See, e. g., Williams v. Taylor, 529
U. S. 362 (finding a state-court decision both contrary to and
involving an unreasonable application of the standard set
forth in Strickland v. Washington, 466 U. S. 668 (1984)).
These principles guide a reviewing court that is faced, as we
are here, with a record that cannot, under any reasonable
interpretation of the controlling legal standard, support a
certain legal ruling.
Under AEDPA, a federal court may grant habeas relief,
as relevant, only if the state court’s “adjudication of [a claim
on the merits] . . . resulted in a decision that . . . involved an
unreasonable application” of the relevant law. When a state
court’s adjudication of a claim is dependent on an antecedent
unreasonable application of federal law, the requirement set
forth in § 2254(d)(1) is satisfied. A federal court must then
resolve the claim without the deference AEDPA otherwise
requires. See Wiggins v. Smith, 539 U. S. 510, 534 (2003)
(performing the analysis required under Strickland’s second
prong without deferring to the state court’s decision because
the state court’s resolution of Strickland’s first prong in
volved an unreasonable application of law); 539 U. S., at 527–

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529 (confirming that the state court’s ultimate decision to
reject the prisoner’s ineffective-assistance-of-counsel claim
was based on the first prong and not the second). See also
Williams, supra, at 395–397; Early v. Packer, 537 U. S. 3, 8
(2002) (per curiam) (indicating that § 2254 does not preclude
relief if either “the reasoning [or] the result of the state-court
decision contradicts [our cases]”). Here, due to the state
court’s unreasonable application of Ford, the factfinding pro
cedures upon which the court relied were “not adequate for
reaching reasonably correct results” or, at a minimum, re
sulted in a process that appeared to be “seriously inadequate
for the ascertainment of the truth.” 477 U. S., at 423–424
(Powell, J., concurring in part and concurring in judgment)
(internal quotation marks omitted). We therefore consider
petitioner’s claim on the merits and without deferring to the
state court’s finding of competency.
IV
A
This brings us to the question petitioner asks the Court to
resolve: whether the Eighth Amendment permits the execu
tion of a prisoner whose mental illness deprives him of “the
mental capacity to understand that [he] is being executed as
a punishment for a crime.” Brief for Petitioner 31.
A review of the expert testimony helps frame the issue.
Four expert witnesses testified on petitioner’s behalf in the
District Court proceedings. One explained that petitioner’s
mental problems are indicative of “schizo-affective disorder,”
1 App. 143, resulting in a “genuine delusion” involving his
understanding of the reason for his execution, id., at 157.
According to the expert, this delusion has recast petitioner’s
execution as “part of spiritual warfare . . . between the
demons and the forces of the darkness and God and the
angels and the forces of light.” Id., at 149. As a result, the
expert explained, although petitioner claims to understand
“that the state is saying that [it wishes] to execute him for

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[his] murder[s],” he believes in earnest that the stated reason
is a “sham” and the State in truth wants to execute him
“to stop him from preaching.” Ibid. Petitioner’s other ex
pert witnesses reached similar conclusions concerning the
strength and sincerity of this “fixed delusion.” Id., at 203;
see also id., at 202, 231–232, 333.
While the State’s expert witnesses resisted the conclusion
that petitioner’s stated beliefs were necessarily indicative of
incompetency, see id., at 240, 247, 304, particularly in light
of his perceived ability to understand certain concepts and,
at times, to be “clear and lucid,” id., at 243; see also id., at
244, 304, 312, they acknowledged evidence of mental prob
lems, see id., at 239, 245, 308. Petitioner’s rebuttal witness
attempted to reconcile the experts’ testimony:
“Well, first, you have to understand that when somebody
is schizophrenic, it doesn’t diminish their cognitive
ability. . . . Instead, you have a situation where—and
why we call schizophrenia thought disorder[—]the logi
cal integration and reality connection of their thoughts
are disrupted, so the stimulus comes in, and instead of
being analyzed and processed in a rational, logical, linear
sort of way, it gets scrambled up and it comes out in a
tangential, circumstantial, symbolic . . . not really rele
vant kind of way. That’s the essence of somebody being
schizophrenic. . . . Now, it may be that if they’re dealing
with someone who’s more familiar . . . [in] what may feel
like a safer, more enclosed environment . . . those sorts
of interactions may be reasonably lucid whereas a more
extended conversation about more loaded material
would reflect the severity of his mental illness.” Id.,
at 328–329.
See also id., at 203 (suggesting that an unmedicated individ
ual suffering from schizophrenia can “at times” hold an ordi
nary conversation and that “it depends [whether the discus
sion concerns the individual’s] fixed delusional system”).

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There is, in short, much in the record to support the conclu
sion that petitioner suffers from severe delusions. See, e. g.,
id., at 157, 149, 202–203, 231–232, 328–329, 333; see generally
id., at 136–353.
The legal inquiry concerns whether these delusions can be
said to render him incompetent. The Court of Appeals held
that they could not. That holding, we conclude, rests on a
flawed interpretation of Ford.
The Court of Appeals stated that competency is deter
mined by whether a prisoner is aware “ ‘that he [is] going to
be executed and why he [is] going to be executed,’ ” 448 F. 3d,
at 819 (quoting Barnard, 13 F. 3d, at 877); see also 448 F. 3d,
at 818 (discussing Ford, 477 U. S., at 421–422 (Powell, J., con
curring in part and concurring in judgment)). To this end,
the Court of Appeals identified the relevant District Court
findings as follows: First, petitioner is aware that he com
mitted the murders; second, he is aware that he will be exe
cuted; and, third, he is aware that the reason the State
has given for the execution is his commission of the crimes
in question. 448 F. 3d, at 817. Under Circuit precedent
this ends the analysis as a matter of law; for the Court of
Appeals regards these three factual findings as necessarily
demonstrating that a prisoner is aware of the reason for his
execution.
The Court of Appeals concluded that its standard fore
closed petitioner from establishing incompetency by the
means he now seeks to employ: a showing that his mental
illness obstructs a rational understanding of the State’s rea
son for his execution. Id., at 817–818. As the court ex
plained, “[b]ecause we hold that ‘awareness,’ as that term is
used in Ford, is not necessarily synonymous with ‘rational
understanding,’ as argued by [petitioner,] we conclude that
the district court’s findings are sufficient to establish that
[petitioner] is competent to be executed.” Id., at 821.
In our view the Court of Appeals’ standard is too restric
tive to afford a prisoner the protections granted by the

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Eighth Amendment. The opinions in Ford, it must be ac
knowledged, did not set forth a precise standard for compe
tency. The four-Justice plurality discussed the substantive
standard at a high level of generality; and Justice Powell
wrote only for himself when he articulated more specific cri
teria. Yet in the portion of Justice Marshall’s discussion
constituting the opinion of the Court (the portion Justice
Powell joined) the majority did reach the express conclusion
that the Constitution “places a substantive restriction on the
State’s power to take the life of an insane prisoner.” 477
U. S., at 405. The Court stated the foundation for this prin
ciple as follows:
“[T]oday, no less than before, we may seriously question
the retributive value of executing a person who has no
comprehension of why he has been singled out and
stripped of his fundamental right to life. . . . Similarly,
the natural abhorrence civilized societies feel at killing
one who has no capacity to come to grips with his own
conscience or deity is still vivid today. And the intu
ition that such an execution simply offends humanity is
evidently shared across this Nation. Faced with such
widespread evidence of a restriction upon sovereign
power, this Court is compelled to conclude that the
Eighth Amendment prohibits a State from carrying out
a sentence of death upon a prisoner who is insane.” Id.,
at 409–410.
Writing for four Justices, Justice Marshall concluded by indi
cating that the Eighth Amendment prohibits execution of
“one whose mental illness prevents him from comprehending
the reasons for the penalty or its implications.” Id., at 417.
Justice Powell, in his separate opinion, asserted that the
Eighth Amendment “forbids the execution only of those who
are unaware of the punishment they are about to suffer and
why they are to suffer it.” Id., at 422.

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The Court of Appeals’ standard treats a prisoner’s delu
sional belief system as irrelevant if the prisoner knows that
the State has identified his crimes as the reason for his exe
cution. See 401 F. Supp. 2d, at 712 (indicating that under
Circuit precedent “a petitioner’s delusional beliefs—even
those which may result in a fundamental failure to appreciate
the connection between the petitioner’s crime and his execu
tion—do not bear on the question of whether the petitioner
‘knows the reason for his execution’ for the purposes of the
Eighth Amendment”); see also id., at 711–712. Yet the Ford
opinions nowhere indicate that delusions are irrelevant to
“comprehen[sion]” or “aware[ness]” if they so impair the
prisoner’s concept of reality that he cannot reach a rational
understanding of the reason for the execution. If anything,
the Ford majority suggests the opposite.
Explaining the prohibition against executing a prisoner
who has lost his sanity, Justice Marshall in the controlling
portion of his opinion set forth various rationales, including
recognition that “the execution of an insane person simply
offends humanity,” 477 U. S., at 407; that it “provides no ex
ample to others,” ibid.; that “it is uncharitable to dispatch
an offender into another world, when he is not of a capacity
to fit himself for it,” ibid. (internal quotation marks omitted);
that “madness is its own punishment,” ibid.; and that execut
ing an insane person serves no retributive purpose, id.,
at 408.
Considering the last—whether retribution is served—it
might be said that capital punishment is imposed because it
has the potential to make the offender recognize at last the
gravity of his crime and to allow the community as a whole,
including the surviving family and friends of the victim, to
affirm its own judgment that the culpability of the prisoner
is so serious that the ultimate penalty must be sought and
imposed. The potential for a prisoner’s recognition of the
severity of the offense and the objective of community vindi
cation are called in question, however, if the prisoner’s men

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tal state is so distorted by a mental illness that his aware
ness of the crime and punishment has little or no relation to
the understanding of those concepts shared by the commu
nity as a whole. This problem is not necessarily overcome
once the test set forth by the Court of Appeals is met. And
under a similar logic the other rationales set forth by Ford
fail to align with the distinctions drawn by the Court of
Appeals.
Whether Ford’s inquiry into competency is formulated as
a question of the prisoner’s ability to “comprehen[d] the rea
sons” for his punishment or as a determination into whether
he is “unaware of . . . why [he is] to suffer it,” then, the
approach taken by the Court of Appeals is inconsistent with
Ford. The principles set forth in Ford are put at risk by a
rule that deems delusions relevant only with respect to the
State’s announced reason for a punishment or the fact of an
imminent execution, see 448 F. 3d, at 819, 821, as opposed to
the real interests the State seeks to vindicate. We likewise
find no support elsewhere in Ford, including in its discus
sions of the common law and the state standards, for the
proposition that a prisoner is automatically foreclosed from
demonstrating incompetency once a court has found he can
identify the stated reason for his execution. A prisoner’s
awareness of the State’s rationale for an execution is not the
same as a rational understanding of it. Ford does not fore
close inquiry into the latter.
This is not to deny the fact that a concept like rational
understanding is difficult to define. And we must not ignore
the concern that some prisoners, whose cases are not impli
cated by this decision, will fail to understand why they are
to be punished on account of reasons other than those stem
ming from a severe mental illness. The mental state requi
site for competence to suffer capital punishment neither pre
sumes nor requires a person who would be considered
“normal,” or even “rational,” in a layperson’s understanding
of those terms. Someone who is condemned to death for an

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Opinion of the Court
atrocious murder may be so callous as to be unrepentant; so
self-centered and devoid of compassion as to lack all sense
of guilt; so adept in transferring blame to others as to be
considered, at least in the colloquial sense, to be out of touch
with reality. Those states of mind, even if extreme com
pared to the criminal population at large, are not what peti
tioner contends lie at the threshold of a competence inquiry.
The beginning of doubt about competence in a case like peti
tioner’s is not a misanthropic personality or an amoral char
acter. It is a psychotic disorder.
Petitioner’s submission is that he suffers from a severe,
documented mental illness that is the source of gross delu
sions preventing him from comprehending the meaning and
purpose of the punishment to which he has been sentenced.
This argument, we hold, should have been considered.
The flaws of the Court of Appeals’ test are pronounced
in petitioner’s case. Circuit precedent required the District
Court to disregard evidence of psychological dysfunction
that, in the words of the judge, may have resulted in pe
titioner’s “fundamental failure to appreciate the connection
between the petitioner’s crime and his execution.” 401
F. Supp. 2d, at 712. To refuse to consider evidence of this
nature is to mistake Ford’s holding and its logic. Gross de
lusions stemming from a severe mental disorder may put an
awareness of a link between a crime and its punishment in a
context so far removed from reality that the punishment can
serve no proper purpose. It is therefore error to derive
from Ford, and the substantive standard for incompetency
its opinions broadly identify, a strict test for competency that
treats delusional beliefs as irrelevant once the prisoner is
aware the State has identified the link between his crime
and the punishment to be inflicted.
B
Although we reject the standard followed by the Court of
Appeals, we do not attempt to set down a rule governing all

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competency determinations. The record is not as informa
tive as it might be, even on the narrower issue of how a
mental illness of the sort alleged by petitioner might affect
this analysis. In overseeing the development of the record
and in making its factual findings, the District Court found
itself bound to analyze the question of competency in the
terms set by Circuit precedent. It acknowledged, for exam
ple, the “difficult issue” posed by the delusions allegedly in
terfering with petitioner’s understanding of the reason be
hind his execution, 401 F. Supp. 2d, at 712, but it refrained
from making definitive findings of fact with respect to these
matters, see id., at 709. See also id., at 712 (identifying tes
timony by Dr. Mark Cunningham indicating that petitioner
“believes the State is in league with the forces of evil that
have conspired against him” and, as a result, “does not even
understand that the State of Texas is a lawfully constituted
authority,” but refraining from setting forth definitive find
ings of fact concerning whether this was an accurate charac
terization of petitioner’s mindset).
The District Court declined to consider the significance
those findings might have on the ultimate question of compe
tency under the Eighth Amendment. See ibid. (disregard
ing Dr. Cunningham’s testimony in light of Circuit prece
dent). And notwithstanding the numerous questions the
District Court asked of the witnesses, see, e. g., 1 App. 191–
197, 216–218, 234–237, 321–323, it did not press the experts
on the difficult issue it identified in its opinion, see ibid. The
District Court, of course, was bound by Circuit precedent,
and the record was developed pursuant to a standard we
have found to be improper. As a result, we find it difficult
to amplify our conclusions or to make them more precise.
We are also hesitant to decide a question of this complexity
before the District Court and the Court of Appeals have ad
dressed, in a more definitive manner and in light of the ex
pert evidence found to be probative, the nature and severity
of petitioner’s alleged mental problems.

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Thomas, J., dissenting
The underpinnings of petitioner’s claims should be ex
plained and evaluated in further detail on remand. The con
clusions of physicians, psychiatrists, and other experts in the
field will bear upon the proper analysis. Expert evidence
may clarify the extent to which severe delusions may render
a subject’s perception of reality so distorted that he should
be deemed incompetent. Cf. Brief for American Psychologi
cal Association et al. as Amici Curiae 17–19 (discussing the
ways in which mental health experts can inform competency
determinations). And there is precedent to guide a court
conducting Eighth Amendment analysis. See, e. g., Roper v.
Simmons, 543 U. S. 551, 560–564 (2005); Atkins v. Virginia,
536 U. S. 304, 311–314 (2002); Ford, 477 U. S., at 406–410.
It is proper to allow the court charged with overseeing the
development of the evidentiary record in this case the ini
tial opportunity to resolve petitioner’s constitutional claim.
These issues may be resolved in the first instance by the
District Court.
* * *
The judgment of the Court of Appeals is reversed, and
the case is remanded for further proceedings consistent with
this opinion.
It is so ordered.
Justice Thomas, with whom The Chief Justice, Jus
tice Scalia, and Justice Alito join, dissenting.
Scott Panetti’s mental problems date from at least 1981.
While Panetti’s mental illness may make him a sympathetic
figure, state and federal courts have repeatedly held that he
is competent to face the consequences of the two murders he
committed. In a competency hearing prior to his trial in
1995, a jury determined that Panetti was competent to stand
trial. A judge then determined that Panetti was competent
to represent himself. At his trial, the jury rejected Panet
ti’s insanity defense, which was supported by the testimony
of two psychiatrists. Since the trial, both state and federal

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Thomas, J., dissenting
habeas courts have rejected Panetti’s claims that he was in
competent to stand trial and incompetent to waive his right
to counsel.
This case should be simple. Panetti brings a claim under
Ford v. Wainwright, 477 U. S. 399 (1986), that he is incompe
tent to be executed. Presented for the first time in Panetti’s
second federal habeas application, this claim undisputedly
does not meet the statutory requirements for filing a “second
or successive” habeas application. As such, Panetti’s habeas
application must be dismissed. Ignoring this clear stat
utory mandate, the Court bends over backwards to allow
Panetti to bring his Ford claim despite no evidence that
his condition has worsened—or even changed—since 1995.
Along the way, the Court improperly refuses to defer to the
state court’s finding of competency even though Panetti had
the opportunity to submit evidence and to respond to the
court-appointed experts’ report. Moreover, without under
taking even a cursory Eighth Amendment analysis, the
Court imposes a new standard for determining incompe
tency. I respectfully dissent.
I
The Antiterrorism and Effective Death Penalty Act of
1996 (AEDPA) requires applicants to receive permission
from the court of appeals prior to filing second or successive
federal habeas applications. 28 U. S. C. § 2244(b)(3). Even
if permission is sought, AEDPA requires courts to de
cline such requests in all but two narrow circumstances.
§ 2244(b)(3)(C); § 2244(b)(2).1 Panetti raised his Ford claim
1 Section 2244(b)(2) states:
“A claim presented in a second or successive habeas corpus application
under section 2254 that was not presented in a prior application shall be
dismissed unless—
“(A) the applicant shows that the claim relies on a new rule of constitu
tional law, made retroactive to cases on collateral review by the Supreme
Court, that was previously unavailable; or

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for the first time in his second federal habeas application,
ante, at 938, 942, but he admits that he did not seek author
ization from the Court of Appeals and that his claim does
not satisfy either of the statutory exceptions. Accordingly,
§ 2244(b) requires dismissal of Panetti’s “second . . . habeas
corpus application.”
The Court reaches a contrary conclusion by reasoning that
AEDPA’s phrase “second or successive” “takes its full mean
ing from our case law, including decisions predating the en
actment of [AEDPA].” Ante, at 943–944 (citing Slack v. Mc-
Daniel, 529 U. S. 473, 486 (2000)). But the Court fails to
identify any pre-AEDPA case that defines, explains, or mod
ifies the phrase “second or successive.” Nor does the Court
identify any pre-AEDPA case in which a subsequent habeas
application challenging the same state-court judgment was
considered anything but “second or successive.” 2 To my
knowledge, there are no such cases.
Before AEDPA’s enactment, the phrase “second or succes
sive” meant the same thing it does today—any subsequent
federal habeas application challenging a state-court judg
ment that had been previously challenged in a federal habeas
application. See, e. g., Kuhlmann v. Wilson, 477 U. S. 436,
“(B)(i) the factual predicate for the claim could not have been discov
ered previously through the exercise of due diligence; and
“(ii) the facts underlying the claim, if proven and viewed in light of the
evidence as a whole, would be sufficient to establish by clear and convinc
ing evidence that, but for constitutional error, no reasonable factfinder
would have found the applicant guilty of the underlying offense.”
2 The Court identifies two post-AEDPA cases. Ante, at 944 (citing
Slack v. McDaniel, 529 U. S. 473 (2000); Stewart v. Martinez-Villareal,
523 U. S. 637 (1998)). Because these cases were decided after AEDPA,
they do not establish the pre-AEDPA meaning of “second or succes
sive.” Moreover, these cases do not apply here. The inapplicability
of Martinez-Villareal is discussed below. Infra, at 966–967. Like
Martinez-Villareal, the narrow exception described in Slack is akin to a
renewal of an initial application. 529 U. S., at 486–487; see infra, at 966–
967 (discussing Martinez-Villareal). Even the Court does not maintain
that Slack applies to Panetti’s claim.

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Thomas, J., dissenting
451–452 (1986) (plurality opinion); Barefoot v. Estelle, 463
U. S. 880, 895 (1983). Prior to AEDPA, however, second or
successive habeas applications were not always dismissed.
Rather, the pre-AEDPA abuse of the writ doctrine allowed
courts to entertain second or successive applications in cer
tain circumstances. See 28 U. S. C. § 2254(b) Rule 9(b) (1994
ed.) (“A second or successive petition may be dismissed
[when] new and different grounds are alleged [if] the judge
finds that the failure of the petitioner to assert those grounds
in a prior petition constituted an abuse of the writ”); Mc-
Cleskey v. Zant, 499 U. S. 467, 470 (1991); Kuhlmann, supra,
at 451–452 (plurality opinion); Barefoot, supra, at 895. Con
sistent with this practice, prior to AEDPA, federal courts
treated Ford claims raised in subsequent habeas applications
as “second or successive” but usually allowed such claims to
proceed under the abuse of the writ doctrine.3 See Martin
v. Dugger, 686 F. Supp. 1523, 1528 (SD Fla. 1988) (permitting
a Ford claim raised in a “second” habeas petition “[b]ecause
Ford was a substantial change in constitutional law [and the
prisoner] was unaware of the legal significance of relevant
facts”); Barnard v. Collins, 13 F. 3d 871, 875, 878 (CA5 1994);
Shaw v. Delo, 762 F. Supp. 853, 857–859 (ED Mo. 1991); John
son v. Cabana, 661 F. Supp. 356, 364 (SD Miss. 1987). Still,
3 If, as the Court asserts, “second or successive” were a pre-AEDPA
term of art that excepted Ford claims, it would be difficult to explain why,
immediately following AEDPA’s passage, Courts of Appeals uniformly
considered subsequent applications raising Ford claims to be “second or
successive” under § 2244. See In re Medina, 109 F. 3d 1556, 1563–1565
(CA11 1997) (per curiam); In re Davis, 121 F. 3d 952, 953–955 (CA5 1997);
see also Martinez-Villareal v. Stewart, 118 F. 3d 628, 630–631, 633–634
(CA9 1997) (per curiam) (finding § 2244 applicable but allowing a Ford
claim to proceed where it was presented in the initial habeas application).
The Courts of Appeals uniformly continue to hold that § 2244 applies
to successive habeas applications raising Ford claims when the initial ap
plication failed to do so. See, e. g., Richardson v. Johnson, 256 F. 3d 257,
258–259 (CA5 2001); In re Provenzano, 215 F. 3d 1233, 1235 (CA11 2000);
Nguyen v. Gibson, 162 F. 3d 600, 601 (CA10 1998) (per curiam).

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though, at least one court found a Ford claim raised in a
subsequent application to be an abuse of the writ. Rector
v. Lockhart, 783 F. Supp. 398, 402–404 (ED Ark. 1992).
When it enacted AEDPA, Congress “further restrict[ed]
the availability of relief to habeas petitioners” and placed
new “limits on successive petitions.” Felker v. Turpin, 518
U. S. 651, 664 (1996). Instead of the judicial discretion that
governed second or successive habeas applications prior to
AEDPA, Congress required dismissal of all second and suc
cessive applications except in two specified circumstances.
§ 2244(b)(2). AEDPA thus eliminated much of the discretion
that previously saved second or successive habeas petitions
from dismissal.
Stating that we “ha[ve] declined to interpret ‘second or
successive’ as referring to all § 2254 applications filed second
or successively in time,” ante, at 944, the Court relies upon
Stewart v. Martinez-Villareal, 523 U. S. 637, 640, 645–646
(1998), in which we held that a subsequent application raising
a Ford claim could go forward. In that case, however, the
applicant had raised a Ford claim in his initial habeas applica
tion, and the District Court had dismissed it as unripe. 523
U. S., at 640. Refusing to treat the applicant’s subsequent
application as second or successive, the Court simply held
that the second application renewed the Ford claim origi
nally presented in the prior application:
“This may have been the second time that respondent
had asked the federal courts to provide relief on his
Ford claim, but this does not mean that there were two
separate applications, the second of which was necessar
ily subject to § 2244(b). There was only one application
for habeas relief, and the District Court ruled (or should
have ruled) on each claim at the time it became ripe.
Respondent was entitled to an adjudication of all of the
claims presented in his earlier, undoubtedly reviewable,
application for federal habeas relief.” 523 U. S., at 643.

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In other words, Martinez-Villareal held that where an appli
cant raises a Ford claim in an initial habeas application,
§ 2244 does not bar a second application once the claim ripens
because the second application is a continuation of the first
application. 523 U. S., at 643–645; cf. Burton v. Stewart, 549
U. S. 147, 155 (2007) (per curiam) (“[U]nlike Burton, the
prisoner [in Martinez-Villareal] had attempted to bring this
claim in his initial habeas petition”). Martinez-Villareal
does not apply here because Panetti did not bring his Ford
claim in his initial habeas application.4
The Court does not and cannot argue that any time a claim
would not be ripe in the first habeas petition, it may be
raised in a later habeas petition. We unanimously rejected
such an argument in Burton v. Stewart, supra. In Burton,
the petitioner filed a federal habeas petition challenging his
convictions but not challenging his sentence, which was at
that time still on review in the state courts. After the state
courts rejected his sentencing claims, the petitioner filed a
second federal habeas petition, this time challenging his sen
tence. The Ninth Circuit held that Burton’s second petition
was not “second or successive” under AEDPA, “reason[ing]
that because Burton had not exhausted his sentencing claims
in state court when he filed the [first] petition, they were not
ripe for federal habeas review at that time.” Id., at 153
(internal quotation marks omitted). The Ninth Circuit
found that the second petition was not foreclosed by AEDPA
since the claim would not have been ripe if raised in the first
4 The Court claims that Martinez-Villareal “suggest[s] that it is . . .
appropriate, as a general matter, for a prisoner to wait before seeking
resolution of his incompetency claim.” Ante, at 947. But Martinez-
Villareal “suggest[s]” no such thing. 523 U. S., at 645. To the contrary,
as the Court admits, Martinez-Villareal does not determine whether a
prisoner would even be allowed to bring a Ford claim if he waits to bring
it in a second petition. Ante, at 945 (citing Martinez-Villareal, supra, at
645, n.).

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petition. Ibid. We rejected the Ninth Circuit’s view and
held that AEDPA barred Burton’s second petition. In light
of Burton, it simply cannot be maintained that Panetti is
excused from § 2244’s requirements solely because his Ford
claim would have been unripe had he included it in his first
habeas application. Today’s decision thus stands only for
the proposition that Ford claims somehow deserve a special
(and unjustified) exemption from the statute’s plain import.
Because neither AEDPA’s text, pre-AEDPA precedent,
nor our AEDPA jurisprudence supports the Court’s under
standing of “second or successive,” the Court falls back on
judicial economy considerations. The Court suggests that
my interpretation of the statute would create an incentive
for every prisoner, regardless of his mental state, to raise
and preserve a Ford claim in the event the prisoner later
becomes insane. Ante, at 943, 946–947. Even if this comes
to pass, it would not be the catastrophe the Court suggests.
District courts could simply dismiss unripe Ford claims out
right, and habeas applicants could then raise them in sub
sequent petitions under the safe harbor established by
Martinez-Villareal. Requiring that Ford claims be in
cluded in an initial habeas application would have the added
benefit of putting a State on notice that a prisoner intends
to challenge his or her competency to be executed. In any
event, regardless of whether the Court’s concern is justified,
judicial economy considerations cannot override AEDPA’s
plain meaning. Remaining faithful to AEDPA’s mandate,
I would dismiss Panetti’s application as second or successive.
II
The Court also errs in holding that the state court unrea
sonably applied “clearly established” Supreme Court prece
dent by failing to afford Panetti adequate procedural protec
tions. Ante, at 948. Panetti is entitled to habeas relief only
if the state-court proceedings “resulted in a decision that
was contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Su

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Thomas, J., dissenting
preme Court of the United States.” 28 U. S. C. § 2254(d)(1).
Even if Justice Powell’s concurrence in Ford qualifies as
clearly established federal law on this point, the state court
did not unreasonably apply Ford.5
A
The procedural rights described in Ford are triggered only
upon “a substantial threshold showing of insanity.” 477
U. S., at 426 (Powell, J., concurring in part and concurring in
judgment); id., at 417 (plurality opinion) (using the term
“high threshold”). Following an “independent review of
the record,” ante, at 950, the majority finds that Panetti has
made a satisfactory threshold showing. That conclusion is
insupportable.
Panetti filed only two exhibits with his Renewed Motion
to Determine Competency in the state court. See Scott Pa
netti’s Renewed Motion to Determine Competency to Be Ex
ecuted in Cause No. 3310 (Gillespie Cty., Tex., 216th Jud.
Dist., Feb. 4, 2004) (hereinafter Renewed Motion).6 The
5 To reach the tenuous conclusion that Justice Powell’s opinion consti
tutes clearly established federal law, ante, at 949, the Court ignores the
tension between Justice Powell’s concern that adversarial proceedings
may be counterproductive and the plurality’s position that adversarial pro
ceedings are required. Compare Ford v. Wainwright, 477 U. S. 399, 426
(1986) (Powell, J., concurring in part and concurring in judgment) (stating
that “ordinary adversarial procedures—complete with live testimony,
cross-examination, and oral argument by counsel—are not necessarily the
best means of arriving at sound, consistent judgments as to a defendant’s
sanity”), with id., at 415, 417 (plurality opinion) (discussing the importance
of adversarial procedures, including cross-examination). Given these con
tradictory statements, it is difficult to say that Justice Powell’s opinion is
merely a narrower version of the plurality’s view. See Marks v. United
States, 430 U. S. 188, 193 (1977).
6 This application was itself Panetti’s second bite at the apple in the
state court on the question of his competency to be executed. Panetti
had previously presented a Ford claim in state court, but the documents
that accompanied that filing contained “nothing . . . that relate[d] to his
current mental state.” Order in Case No. A–04–CA–042–SS (WD Tex.,
Jan. 28, 2004), p. 4; id., at 4 (Jan. 30, 2004) (hereinafter Order of Jan. 30)
(same). As a result, the state court denied relief without a hearing, ante,

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first was a one-page letter from Dr. Cunningham to Panetti’s
counsel describing his 85-minute “preliminary evaluation” of
Panetti. Letter from Mark D. Cunningham, Ph.D., to Mi
chael C. Gross (Feb. 3, 2004), 1 App. 108. Far from contain
ing “pointed observations,” ante, at 950, Dr. Cunningham’s
letter is unsworn, contains no diagnosis, and does not discuss
whether Panetti understood why he was being executed,
ante, at 961. Panetti’s other exhibit was a one-page declara
tion of a law professor who attended Cunningham’s 85
minute meeting with Panetti. Declaration of David R. Dow
(Feb. 3, 2004), 1 App. 110. Professor Dow obviously made
no medical diagnosis and simply discussed his lay perception
of Panetti’s mental condition in a cursory manner. Ibid.
The Court describes Dow as an “expert,” ante, at 950, but
law professors are obviously not experts when it comes to
medical or psychological diagnoses.
Panetti’s Renewed Motion attached no medical reports or
records, no sworn testimony from any medical professional,
and no diagnosis of any medical condition. The Court claims
that Panetti referred “to the extensive evidence of mental
dysfunction considered in earlier legal proceedings.” Ibid.
But as the Federal District Court noted, Panetti merely
“outlined his mental health history for the time period from
1981 until 1997.” Order of Jan. 30, at 4. This evidence—
previously rejected by the state and federal courts that adju
dicated Panetti’s other incompetency claims—had no rele
vance to Panetti’s competency to be executed in 2004 when
he filed his Renewed Motion. Ibid. In addition to the utter
lack of new medical evidence, no layperson who had observed
Panetti on a day-to-day basis, such as prison guards or fellow
inmates, submitted an affidavit or even a letter. In short,
Panetti supported his alleged incompetency with only the
preliminary observations of a psychologist and a lawyer,
whose only contact with Panetti was a single 85-minute
at 938, and the Federal District Court found no error in this determina
tion, Order of Jan. 30, at 4.

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meeting. It is absurd to suggest that this quantum of evi
dence clears the “high threshold,” entitling claimants to the
procedural protections described by the plurality and Justice
Powell in Ford. 477 U. S., at 417 (plurality opinion); see also
id., at 426 (opinion of Powell, J.).7
B
Having determined that Panetti’s evidence exceeded the
high threshold set forth in Ford, the Court asserts that Ford
requires that “a court allow a prisoner’s counsel the opportu
nity to make an adequate response to evidence solicited by
the state court.” Ante, at 952 (citing Ford, supra, at 427
(opinion of Powell, J.)). Justice Powell’s concurrence states
that a prisoner has the right to present his or her evidence
to an impartial decisionmaker. In light of the facts before
the Court in Ford, it becomes obvious that in this case Texas
more than satisfied any obligations Justice Powell described.
1
Under the Florida law at issue in Ford, the Governor—
not a court—made the final decision as to the condemned
prisoner’s sanity. 477 U. S., at 412 (plurality opinion). The
prisoner could not submit any evidence and had no oppor
tunity to be heard. Id., at 412–413; id., at 424 (opinion of
Powell, J.). In other words, the Florida procedures required
7 The Court argues that “the trial court’s appointment of mental health
experts pursuant to Article 46.05(f)” “confirmed” that Panetti had made a
threshold showing. Ante, at 950. But the state court made no such find
ing and may have proceeded simply in an abundance of caution, perhaps
to humor the Federal District Court, which had “stay[ed] the execution
[for 60 days to] allow the state court a reasonable period of time to con
sider the evidence of Panetti’s current mental state.” Order in Case
No. A–04–CA–042–SS (Feb. 4, 2004), p. 3, 1 App. 116. In any event, the
question today is not whether Panetti met Texas’ threshold but whether
he met the constitutional one. The Court cannot avoid answering that
question by relying on a related state-law determination.

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neither a neutral decisionmaker nor an opportunity for the
prisoner to present evidence. Id., at 412–413; id., at 424.
Against this backdrop, Justice Powell’s concurrence states
that due process requires an impartial decisionmaker and a
chance to present evidence:
“The State should provide an impartial officer or board
that can receive evidence and argument from the prison
er’s counsel, including expert psychiatric evidence that
may differ from the State’s own psychiatric examina
tion.” Id., at 427.
In setting forth these minimal procedural protections, Jus
tice Powell explained that “[b]eyond these basic require
ments, the States should have substantial leeway to deter
mine what process best balances the various interests at
stake.” Ibid. Justice Powell stressed that “ordinary ad
versarial procedures . . . are not necessarily the best means
of arriving at sound, consistent judgments as to a defendant’s
sanity.” Id., at 426.
2
Because a court considered Panetti’s insanity claim, the
State clearly satisfied Justice Powell’s requirement to “pro
vide an impartial officer or board.” Id., at 427. The sole
remaining question, then, is whether the state court “re
ceive[d] evidence and argument from the prisoner’s counsel,
including expert psychiatric evidence that may differ from
the State’s own psychiatric examination.” Ibid.
At the outset of its discussion, the Court suggests that
Texas is not entitled to “substantial leeway” in determining
what procedures are appropriate, see ibid., because Texas
may have “violat[ed] the procedural framework Texas has
mandated for the adjudication of incompetency claims,”
ante, at 950. As its sole support for that assertion, the
Court states that there is “a strong argument the court vio
lated state law by failing to provide a competency hearing.”
Ibid. But Article 46.05 of the Texas Code of Criminal Pro

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Thomas, J., dissenting
cedure provides no right to a competency hearing: “The de
termination of whether to appoint experts and conduct a
hearing [under Article 46.05] is within the discretion of the
trial court.” Ex parte Caldwell, 58 S. W. 3d 127, 130 (Tex.
Crim. App. 2000). Contrary to the Court’s statement, ante,
at 952, this discretion does not depend on whether a substan
tial showing of incompetency has been made. See Caldwell,
supra, at 130. Accordingly, there is no basis for denying
Texas the “substantial leeway” Ford grants to States.
Texas law allows prisoners to submit “affidavits, records,
or other evidence supporting the defendant’s allegations”
“that the defendant is presently incompetent to be exe
cuted.” Tex. Code Crim. Proc. Ann., Art. 46.05 (Vernon
Supp. Pamphlet 2006). Therefore, state law provided Pa
netti with the legal right to submit whatever evidence he
wanted. Here, it is clear that the state court stood ready
and willing to consider any evidence Panetti wished to sub
mit. The record of the state proceedings shows that Panetti
took full advantage of this opportunity. For example, after
the court-appointed experts presented their report, the state
court gave Panetti a chance to respond, 1 App. 78, and Pa
netti filed a 17-page brief objecting to the report and arguing
that there were problems in its methodology.8 Objections
to Experts’ Report, id., at 79. No extensive consideration
of Panetti’s submitted evidence was necessary because the
8 The Court states that Panetti’s “counsel reached the reasonable conclu
sion that these allegations warranted a response.” Ante, at 951. But the
Court fails to note that the 17-page brief was the response. Apart from
his motions, Panetti never requested the opportunity to respond further.
Panetti criticized the court-appointed experts for visiting him only once,
for not conducting psychological testing, for failing to review collateral
information adequately, for failing to take into account his history of men
tal problems, and for the abbreviated nature of their conclusions. Objec
tions to Experts’ Report, Renewed Motion for Funds to Hire Mental
Health Expert and Investigator, Renewed Motion for Competency Hear
ing in Cause No. 3310 (Gillespie Cty., Tex., 216th Jud. Dist., May 21, 2004),
1 App. 82–95 (hereinafter Objections to Experts’ Report).

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submissions—the single-page statements of one doctor and
one lawyer—were paltry and unpersuasive. That the evi
dence presented did not warrant more extensive examina
tion does not change the fact that Panetti had an unlimited
opportunity to submit evidence to the state court.
Based on Panetti’s evidence, the report by the court
appointed experts, and Panetti’s objections to that report,
the state court found that “[d]efendant has failed to show, by
a preponderance of the evidence, that he is incompetent to be
executed.” Id., at 99. Given Panetti’s meager evidentiary
submissions, it is unsurprising that the state court declined
to proceed further. The Court asserts that “the order is
sued by the state court implied that its determination of peti
tioner’s competency [improperly] was made solely on the
basis of the examinations performed by the psychiatrists it
had appointed.” Ante, at 951. However, the order’s focus
on the report of the court-appointed experts indicates only
that the court found the report to be persuasive. 1 App. 99.
Supported by the persuasive report of two neutral experts,
the court reasonably concluded that Panetti’s meager evi
dence deserved no mention. See Part II–A, supra. In my
view, the state court fairly implemented the procedures de
scribed by Justice Powell’s opinion in Ford—to “receive evi
dence and argument from the prisoner’s counsel.” 477 U. S.,
at 427. At the very least, the state court did not unreason
ably apply his concurrence. See 28 U. S. C. § 2254(d)(1).
3
Because it cannot dispute that Panetti had an unlimited
opportunity to present evidence, the Court argues that the
state court “failed to provide petitioner with an adequate
opportunity to submit expert evidence in response to the re
port filed by the court-appointed experts.” Ante, at 951.
According to the Court, this opportunity was denied to Pa
netti because the state court failed to rule explicitly on his
motions and failed to warn him that he would receive no

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Thomas, J., dissenting
evidentiary hearing.9 This position has no factual basis.
After the court-appointed experts submitted their report,
the state court made it clear that the case was proceeding to
conclusion and that Panetti’s counsel needed to submit any
thing else he wanted the judge to consider:
“It appears from the evaluations performed by
Dr. Mary Anderson and Dr. George Parker that they are
of the opinion that Mr. Panetti is competent to be exe
cuted in accordance with the standards set out in Art.
46.05 of the Code of Criminal Procedure.
9 The Court does not assert that Panetti actually had a constitutional
right to an evidentiary hearing or to have any of his 10 motions granted.
As discussed above, Justice Powell’s concurrence specifically rejected the
Ford plurality’s contention that an adversarial proceeding was constitu
tionally required or even appropriate. Part II–B–1, supra. Even a cur
sory look at Panetti’s motions shows that the state court did not err in
refusing to grant them. This Court has never recognized a right to
state-provided experts or counsel on state habeas review. Cf. Ex Parte
Motion for Prepayment of Funds to Hire Mental Health Expert to Assist
Defense in Article 46.05 Proceedings in Cause No. 3310 (Feb. 19, 2004), 1
App. 54 (hereinafter Ex Parte Motion for Mental Health Expert); Defend
ant’s Motion for Appointment of Counsel to Assist Him in Article 46.05
Proceedings (Feb. 19, 2004), id., at 45; Ex Parte Motion for Prepayment of
Funds to Hire an Investigator to Assist Defense Counsel in Cause No. 3310
(Feb. 19, 2004) (hereinafter Ex Parte Motion for Investigator). There is
likewise no right to transcribed court proceedings, videotaped examina
tions, or any other specific protocols for conducting competency evalua
tions. Cf. Motion to Videotape All Competency Examinations of Scott
Panetti Conducted by Court-Appointed Mental Health Experts in Cause
No. 3310 (Feb. 19, 2004); Motion to Transcribe All Proceedings Related to
Competency Determination Under Article 46.05 in Cause No. 3310 (Feb.
19, 2004); Motion Seeking Order Setting Out Protocol for Conducting Com
petency Evaluations of Scott Panetti in Cause No. 3310 (Feb. 19, 2004).
And as discussed above, Panetti has no clearly established constitutional
right to a formal, oral hearing, Part II–B–1, supra, much less a right to
discovery. Cf. Defendant’s Motion for Discovery in Cause No. 3310 (Feb.
19, 2004); Motion to Ensure That the Article 46.05 “Final Competency
Hearing” Comports With the Procedural Due Process Requirements of
Ford in Cause No. 3310 (Feb. 19, 2004), 1 App. 49.

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Thomas, J., dissenting
“Mr. Gross, if you have any other matters you wish to
have considered, please file them in the case papers and
get me copies by 5:00 p.m. on May 21, 2004.” Letter
from District Judge Stephen B. Ables in Cause No. 3310
(May 14, 2004), 1 App. 77–78.
Panetti’s counsel got the message. Far from assuming
that there would be a hearing, ante, at 951–952, counsel re
newed his motion requesting a competency hearing and his
motion seeking state funding for a mental health expert. 1
App. 96–98. Panetti’s filing indicates that he understood
that no hearing was currently scheduled and that if he
wanted to convince the state court not to deny relief, he
needed to do so immediately. See id., at 80–95. The record
demonstrates that what Panetti actually sought was not the
opportunity to submit additional evidence—because, at that
time, he had no further evidence to submit—but state fund
ing for his pursuit of more evidence. See Ex Parte Motion
for Mental Health Expert, id., at 54; Ex Parte Motion for
Investigator; Defendant’s Motion for Appointment of Coun
sel to Assist Him in Article 46.05 Proceedings in Cause
No. 3310 (Feb. 19, 2004), id., at 45; Panetti’s Response to
Show Cause Order in Case No. A–04–CA–042–SS (WD Tex.,
June 3, 2004), p. 5; cf. Order of Jan. 30, at 4. This Court has
never recognized a constitutional right to state funding for
counsel in state habeas proceedings—much less for ex
perts—and Texas law grants no such right in Ford proceed
ings. E. g., Ex parte Caldwell, 58 S. W. 3d, at 130 (holding
that funding for counsel or experts in Article 46.05 proceed
ings is at the discretion of the district court); Coleman v.
Thompson, 501 U. S. 722, 755 (1991) (noting that there is no
constitutional right to state-funded counsel in state habeas
cases).
In short, there is nothing in the record to suggest that
Panetti would have submitted any additional evidence had
he been given another opportunity to do so. Panetti never
requested more time to submit evidence and never told the

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Thomas, J., dissenting
court that he wanted to submit additional evidence in the
event that his requests for fees were denied. Panetti’s track
record of submitting no new evidence in his first Article 46.05
motion, n. 6, supra, and only two insubstantial exhibits in his
second, Part II–A, supra, suggests that it was highly un
likely that Panetti planned to present anything else. Ac
cordingly, the state-court proceedings to evaluate Panetti’s
insanity claim were not “contrary to, or . . . an unreasonable
application of, clearly established Federal law,” 28 U. S. C.
§ 2254(d)(1).10
C
Because the state court did not unreasonably apply Justice
Powell’s procedural analysis, we must defer to its deter
mination that Panetti was competent to be executed. See
ibid. Thus, Panetti is entitled to federal habeas relief
only if the state court’s determination that he is compe
10 Because the Court fails to identify any bona fide constitutional viola
tion, it provides a laundry list of perceived deficiencies in the state-court
proceedings. Ante, at 950 (“[I]t appears the state court on repeated occa
sions conveyed information to petitioner’s counsel that turned out not to
be true; provided at least one significant update to the State without pro
viding the same notice to petitioner; and failed in general to keep peti
tioner informed as to the opportunity, if any, he would have to present his
case”). The state court did request the name of mental health experts
from the parties but ultimately chose experts without input from the par
ties. Ante, at 939–940. It canceled a status conference and failed to give
Panetti notice. Ante, at 939. It also never explicitly ruled on Panetti’s
motions despite its statements that it would do so later. Ante, at 940–941.
But Panetti does not argue that the court-appointed experts were not
impartial nor does he explain how the canceled status conference caused
him any harm. Finally, although it might have been better for the state
court to rule explicitly on Panetti’s outstanding motions, it implicitly de
nied them by dismissing his claim. As for the state court’s “fail[ure] to
keep petitioner informed,” after the court-appointed experts’ report was
issued, the judge sent a letter to counsel that made it clear that Panetti
had one last chance to submit information. 1 App. 77–78. In short, none
of these perceived deficiencies qualifies as a violation of any “clearly estab
lished” federal law.

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Thomas, J., dissenting
tent to be executed “was contrary to, or involved an unrea
sonable application of,” Supreme Court precedent or “was
based on an unreasonable determination of the facts in light
of the evidence presented in the State court proceeding.”
§ 2254(d). Not even Panetti argues that this standard is
met here.
Applying Justice Powell’s substantive standard for compe
tency, the state court determined that Panetti was compe
tent to be executed, 1 App. 99; see also Tex. Code Crim.
Proc. Ann., Art. 46.05(h), a factual determination that is
“presumed to be correct,” § 2254(e)(1). That factual deter
mination was based on an expert report by two doctors with
almost no evidence to the contrary. See Part II–A, supra.
Hence, Panetti is not entitled to federal habeas relief under
§ 2254.
III
Because we lack jurisdiction under AEDPA to consider
Panetti’s claim and because, even if jurisdiction were proper,
the state court’s decision constitutes a reasonable application
of federal law, I will not address whether the Court of Ap
peals’ standard for insanity is substantively correct. I do,
however, reject the Court’s approach to answering that
question. The Court parses the opinions in Ford to impose
an additional constitutional requirement without undertak
ing any Eighth Amendment analysis of its own. Because
the Court quibbles over the precise meaning of Ford’s opin
ions with respect to an issue that was not presented in that
case, what emerges is a half-baked holding that leaves the
details of the insanity standard for the District Court to
work out. See ante, at 960–962. As its sole justification
for thrusting already muddled Ford determinations into such
disarray, the Court asserts that Ford itself compels such a
result. It does not.
The four-Justice plurality in Ford did not define insanity
or create a substantive standard for determining compe
tency. See 477 U. S., at 418 (Powell, J., concurring in part

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Thomas, J., dissenting
and concurring in judgment) (stating that “[t]he Court’s opin
ion does not address” “the meaning of insanity”).11 Only
Justice Powell’s concurrence set forth a standard:
“[No State] disputes the need to require that those who
are executed know the fact of their impending execution
and the reason for it.
“Such a standard appropriately defines the kind of
mental deficiency that should trigger the Eighth
Amendment prohibition. If the defendant perceives
the connection between his crime and his punishment,
the retributive goal of the criminal law is satisfied.
And only if the defendant is aware that his death is ap
proaching can he prepare himself for his passing. Ac
cordingly, I would hold that the Eighth Amendment for
bids the execution only of those who are unaware of the
punishment they are about to suffer and why they are
to suffer it.” Id., at 422.
Because the issue before the Court in Ford was actual knowl
edge, not rational understanding, ibid., nothing in any of the
Ford opinions addresses what to do when a prisoner knows
the reason for his execution but does not “rationally un
derstand” it.
Tracing the language of Justice Powell’s concurrence, the
Court of Appeals held that Panetti needed only to be
“ ‘aware’ of ” the stated reason for his execution. Panetti v.
Dretke, 448 F. 3d 815, 819 (CA5 2006). Implicitly, the Court
of Appeals also concluded that the fact that Panetti “disbe
lieves the State’s stated reason for executing him,” Panetti
v. Dretke, 401 F. Supp. 2d 702, 708 (WD Tex. 2004), does not
render him “unaware” of the reason for his execution. The
Court challenges this approach based on an expansive inter
11 Justice Marshall’s plurality opinion in Ford did not even go so far as
to state that there should be a uniform national substantive standard for
insanity. It is thus an open question as to how much discretion the States
have in setting the substantive standard for insanity.

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pretation of Justice Powell’s use of the word “aware.” Ante,
at 959–960. However, the Court does not and cannot deny
that “awareness” is undefined in Ford and that Ford does
not discuss whether “delusions [that] so impair the prisoner’s
concept of reality that he cannot reach a rational understand
ing of the reason for the execution” affect awareness in a
constitutionally relevant manner.12 Ante, at 958. Never
theless, the Court cobbles together stray language from
Ford’s multiple opinions and asserts that the Court of Ap
peals’ test is somehow inconsistent with the spirit of Ford.
Because that result does not follow naturally from Ford,
today’s opinion can be understood only as holding for the
first time that the Eighth Amendment requires “rational
understanding.”
Although apparently imposing a new substantive Eighth
Amendment requirement, the Court assiduously avoids
applying our framework for analyzing Eighth Amendment
claims. See Ford, supra, at 405 (first analyzing whether ex
ecution of the insane was among “those modes or acts of
punishment that had been considered cruel and unusual at
the time that the Bill of Rights was adopted” in 1791); Roper
v. Simmons, 543 U. S. 551, 560–561 (2005) (considering also
whether the punishment is deemed cruel and unusual accord
ing to modern “standards of decency”); Atkins v. Virginia,
536 U. S. 304, 312 (2002) (looking for “objective evidence
of contemporary values,” the “clearest and most reliable”
of which is the “legislation enacted by the country’s leg
islatures” (internal quotation marks omitted)). The Court
12 The Court points out that “the Ford opinions nowhere indicate that
delusions are irrelevant to ‘comprehen[sion]’ or ‘aware[ness]’ if they so
impair the prisoner’s concept of reality that he cannot reach a rational
understanding of the reason for the execution.” Ante, at 958 (brackets in
original). By the same token, nowhere in the Ford opinions is it sug
gested that “comprehen[sion]” or “aware[ness]” is necessarily affected
when delusions impair a prisoner. The Court refuses to acknowledge that
Ford simply does not resolve this question one way or the other.

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Thomas, J., dissenting
likely avoided undertaking this analysis because there is no
evidence to support its position.13 See, e. g., id., at 340–342
(Scalia, J., dissenting) (discussing the demanding standard
employed at common law to show that a prisoner was too
insane to be executed). The Court of Appeals at least took
an approach based on what Ford actually says, an approach
that was far from frivolous or unreasonable. By contrast,
the Court’s approach today—settling upon a preferred out
come without resort to the law—is foreign to the judicial role
as I know it.
* * *
Because the Court’s ruling misinterprets AEDPA, refuses
to defer to the state court as AEDPA requires, and rejects
the Court of Appeals’ approach without any constitutional
analysis, I respectfully dissent.
13 Contrary to the Court’s suggestion, the state of the factual record is
not a genuine impediment to analyzing the constitutional question. See
ante, at 961–962. Our Eighth Amendment framework requires relatively
academic, abstract analysis. Specific facts regarding Panetti’s condition
are simply irrelevant to what the Eighth Amendment requires.

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Reporter’s Note
The next page is purposely numbered 1101. The numbers between 981
and 1101 were intentionally omitted, in order to make it possible to publish
the orders with permanent page numbers, thus making the official cita
tions available upon publication of the preliminary prints of the United
States Reports.