Appeal from the United States District Court for the Eastern District of California Frank C. Damrell, Jr., District Judge, and Kimberly J. Mueller, District Judge, Presiding D.C. No. 2:02-cv-00013-KJM-GGH
The opinion of the court was delivered by: Clifton, Circuit Judge:
January 18, 2012-San Francisco, California
Before: M. Margaret McKeown, Richard R. Clifton, and Jay S. Bybee, Circuit Judges.
Milton Otis Lewis was sentenced to death following California convictions for first-degree murder and other crimes.
While seeking federal habeas relief, Lewis requested a stay of the proceedings on the ground that he was not competent at the time to assist counsel. We have previously held that a habeas petitioner in a capital case is entitled to such a stay if he is not presently competent and is raising a claim as to which he could potentially benefit if he could communicate rationally with his attorney. Rohan ex rel. Gates v. Woodford, 334 F.3d 803, 819 (9th Cir.), cert. denied, 540 U.S. 1069 (2003).*fn1
Following an evidentiary hearing on Lewis's competency, the district court denied the requested stay based on its determination that Lewis was competent to proceed.
Lewis seeks an immediate appeal of the competency determination or, in the alternative, mandamus relief. We conclude that we lack jurisdiction to review the competency determination at this time because it is not an immediately appealable order. We also conclude that mandamus relief is not appropriate. We thus dismiss the appeal and deny the petition for writ of mandamus.
Lewis was convicted in 1990 of one count of first-degree murder, two counts of robbery, one count of burglary, and one count of attempted murder. As to the first-degree murder conviction, the jury also found the special circumstances of rob- bery murder and burglary murder, and, at the penalty phase, returned a verdict of death. The California Supreme Court affirmed on direct appeal the convictions and death sentence. People v. ...