Whether the state court's finding that the petitioner did not meet the Panetti threshold for incompetence to be executed was unreasonable under 28 U.S.C. § 2254(d)

QUESTIONS PRESENTED FOR REVIEW Mr. Johnson does not rationally understand the reason for his execution. Mr. Johnson has been evaluated a single time under the Panetti/Madison standard. A neuropsychiatrist, board-certified in forensic psychiatry, determined Mr. Johnson does not possess a rational understanding. Mr. Johnson possesses a genuine delusional belief that the true purpose of his execution is an effort by Satan to end the world. With six months to prepare contrary expert evidence, the State could only muster a-page-and-a-half affidavit from a nonforensically trained prison counselor. Without conducting an evaluation, the counselor based her opinion on her approximately 70 minutes of total contact with Mr. Johnson over three years. The counselor did not apply the standard. The State does not contest that the counselor is prohibited by Missouri law to prescribe medicine, practice psychology, diagnose, or render a forensic opinion. The state court, in a non-unanimous opinion, credited the counselor over the board-certified neuropsychiatrist’s evaluation to find Mr. Johnson did not meet the Panetti threshold. The court credited the counselor’s opinion that Mr. Johnson’s mental illness was well managed by medication. However, two decades-worth of records document that Mr. Johnson’s delusions and hallucinations persist despite medication. The court also credited the counselor because she had not personally observed “end of the world” delusions and medical records showed “no such” delusions. In truth, five instances in Mr. Johnson’s records documented the same end of the world delusions Mr. Johnson reported during his competency evaluation. Despite these circumstances, the district court found that Mr. Johnson failed to establish that the state court’s finding that the Panetti threshold not been met was unreasonable under 28 U.S.C. § 2254(d). A majority of an appellate panel determined under 28 U.S.C. § 2253(c)(2) and Miller-E/ that reasonable jurists could disagree with the district court and issued a COA and a stay of execution. The en banc court vacated the panel’s decision, and then, despite clear evidence that Mr. Johnson’s claim was datable and without finding that panel abused its discretion in entering a stay, denied a COA and stay. This case presents the following questions: When a panel has determined that 28 U.S.C. 2253(c)(2) has been satisfied and an appeal and concordant stay are necessary, does an en banc court have authority to vacate these determinations and deny petitioner his right to appeal absent a finding that the panel has abused its discretion? i Could a jurist of reason find a state court decision concluding that the petitioner did not meet Panett?s required threshold showing of incompetence is contrary to or an unreasonable application of law or rests on an unreasonable determination of the facts when the petitioner presented evidence establishing that he lacks a rational understanding of the reason for his execution and the State has not presented any relevant evidence to the contrary? ii