Michael J. Minerva, Capital Collateral Representative, Andjudith J. Dougherty, Assistant Capital Collateralrepresentative, As Next Friend Tomichael Durocher, Petitioner, v. Harry K. Singletary, Jr., Secretary, Florida Department Ofcorrections, Respondent, 4 F.3d 938 (11th Cir. 1993)

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U.S. Court of Appeals for the Eleventh Circuit - 4 F.3d 938 (11th Cir. 1993) Aug. 24, 1993

Martin J. McClain, Office of Capital Collateral Representative, Tallahassee, FL, for petitioner.

Richard B. Martell, Asst. Atty. Gen., Dept. of Legal Affairs, Tallahassee, FL, for respondent.

Appeal from the United States District Court for the Middle District of Florida.

Before TJOFLAT, Chief Judge, EDMONDSON and CARNES, Circuit Judges.


BY THE COURT:

At the outset, the question before this court, in considering whether to grant a certificate of probable cause to appeal and a stay of execution, is whether Michael J. Minerva and Judith J. Dougherty have standing to proceed as next friend for Michael J. Durocher. Durocher has repeatedly and expressly declined to take any steps to interfere with his scheduled execution.

Those who seek federal habeas corpus relief in a next friend capacity have the burden of establishing standing and to do so must at least proffer "meaningful evidence that [the petitioner is] suffering from a mental disease, disorder, or defect that substantially affected his capacity to make an intelligent decision." Whitmore v. Arkansas, 495 U.S. 149, 166, 110 S. Ct. 1717, 1728, 109 L. Ed. 2d 135 (1990). Minerva and Dougherty have not done so. They have failed to proffer meaningful evidence that Durocher is suffering from a mental disease, disorder, or defect that prevents him from understanding his legal position and the options available to him or that prevents him from making a rational choice among his options. See Rees v. Payton, 384 U.S. 312, 314, 86 S. Ct. 1505, 1506, 16 L. Ed. 2d 583 (1966); Lonchar v. Zant, 978 F.2d 637, 641 (11th Cir. 1992), cert. denied, --- U.S. ----, 113 S. Ct. 1378, 122 L. Ed. 2d 754 (1993). For this reason, no "adequate basis exists for the exercise of federal power" in this case. Demosthenes v. Baal, 495 U.S. 731, 737, 110 S. Ct. 2223, 2226, 109 L. Ed. 2d 762 (1990).

The applications for a certificate of probable cause and a stay of execution are, accordingly,

DENIED.