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An interlocutory appeal for a competency determination in a habeas corpus case is not “an immediately appealable collateral order” because it is not conclusive, does not “resolve an important question separate from the merits” and is re-reviewable on appeal. A district court’s decision regarding a competency order is not clearly erroneous when “there are two permissible views of the evidence.”

Milton Lewis appealed the district courts denial of his request for “a stay of the proceedings” based on his incompetency to assist counsel that he had first requested while seeking federal habeas relief, and argued that the competency determination was “an immediately appealable collateral order”. In the alternative, because of his current incompetency, Lewis sought mandamus relief to stay the habeas suit. During the evidentiary proceeding, Dr. Stewart had testified that Lewis did “not have the capacity to rationally communicate with counsel”. However, Dr. Ponath testified for the state and concluded that Lewis had a minor mental disorder that did not impair his ability to communicate with his attorney. The Ninth Circuit held that it lacked jurisdiction to review Lewis’s competency order because, first; it was not conclusive. Second, the order did not “resolve an important question separate from the merits”. Third the order was not “effectively unreviewable on appeal from a final judgment”. The Ninth Circuit has held that a to issue a writ of mandamus, the court needs to be resolutely convinced that the district court has made an error. Of the five guidelines to determine if mandamus is appropriate in a case, established in Bauman v. United States Dist. Court, the first three guidelines were in dispute. The Ninth Circuit held that the first two factors were not met because after a final judgment regarding his habeas petition he would be entitled a review of the competency determination. In regards to the third factor, the Ninth Circuit held that the district courts decision was not clearly erroneous. In this case there were “two permissible views of the evidence”, Dr. Stewarts testimony and Dr. Ponaths and when there are two views “the fact finders choice between them cannot be clearly erroneous”. APPEAL DISMISSED; PETITION FOR MANDAMUS DENIED.