Blair v. Martel, No. 01-99003 (July 20, 2011) (Graber with Reinhardt and Rawlinson).

When deciding whether petitioner is competent in habeas proceedings, a district court has to use the burden of proof set forth in Mason v. Vasquez, 5 F.3d 1220 (9th Cir. 1993), requiring the court to establish petitioner's competence by a preponderance of evidence. Initially sufficient evidence must be presented to cause the court to conduct an inquiry. Once that has been met, it is no one's burden to sustain. It is for the court to determine. The district court erred here in using the standard of competency for criminal trials under 18 U.S.C. 4241(d), where the petitioner shoulders the burden by a preponderance. The error, however, does not require reversal or remand because the issue raised here is a legal one that is barred as a matter of law -- the due process right to a speedy appeal. Under AEDPA, the state's determination is given deference. Whether a petitioner is competent or not, a habeas petition that raises only claims for relief that fail as a matter of law must be denied. A district court need not conduct a competency inquiry.