Whether a trial court must independently determine a criminal defendant's competency to stand trial, even when defense counsel and an expert claim the defendant is competent, despite evidence suggesting the defendant may be experiencing a significant mental health break

No question identified. : APPLICATION To the Honorable John Roberts, Chief Justice of the Supreme Court of the United States and Circuit Justice for the Fourth Circuit: Pursuant to Rule 13.5 of the Rules of this Court and 28 U.S.C. § 2101(c), Applicant Brandon M. Council respectfully requests a 60-day extension of time, to and including February 26, 2024, within which to file a petition for a writ of certiorari to review the judgment of the United States Court of Appeals for the Fourth Circuit in this case. 1. The Fourth Circuit entered judgment on August 9, 2023. See United States v. Council, 77 F.4th 240 (4th Cir. 2023). App. la. The Fourth Circuit denied Council’s petition for rehearing en banc on September 26, 2023. See App. 42a. Unless extended, the time to file a petition for a writ of certiorari will expire on December 26, 2023. This application is being filed more than 10 days before a petition is currently due. See Sup. Ct. R. 13.5. The jurisdiction of this Court would be invoked under 28 U.S.C. § 1254(1). 2. This is a capital case in which preparing the petition for certiorari demands particularly extensive work. The Fourth Circuit’s opinion in Council’s appeal addressed 10 different claims involving a plethora of constitutional and statutory issues. The stakes could not be higher for Council. For these reasons, deciding exactly which issues to present to this Court, how to present them, and drafting and producing the petition, requires extra time and effort. 3. Council’s trial was plagued by numerous cert-worthy errors. Among others, the District Court abdicated its independent duty to determine Council’s competency. See Pate v. Robinson, 383 U.S. 375, 384 (1966). Where there is reason to believe a defendant may be incompetent, a court must hold a hearing and make a formal determination on competency. See id. at 384-385; 18 U.S.C. § 4241(a, d). There were plenty such reasons here. Council’s lawyer’s CJA vouchers candidly observed that Council was “crazy.” When speaking with investigators, Council repeatedly blamed “demons” who “control people’s minds.” Council had a family history of mental illness. And after the Government rested its case at trial, defense counsel explained that Council had, in multiple meetings, been “delusional,” “unhinged,” and suffered “a break with reality.” Council “adopted views that are irrational,” believed “God is somehow responsible” for the victims’ deaths and that Council was “being persecuted” because the court could “not subpoena God.” The judge tried to speak directly with Council, who just sat mute, crying, and after several minutes muttering how God killed the victims. 4. Courts determine competency—not defense counsel, and not experts. See Pate, 383 U.S. at 384. But at the eventual competency “hearing,” the district court found Council competent—despite extremely serious signs he was not—because defense counsel claimed he was and because of a two-paragraph expert statement that said, without any substantive explanation, that Council was competent. These bare-bones remarks with no support separately meant the district court had no “sufficient[]” record to support finding competency. Dusky v. United States, 362 U.S. 402, 402 (1960). And the “hearing” was a single transcript page—where defense counsel merely handed over the expert statement and said they now thought Council competent—making it unclear if it even qualified as the “hearing” required to be held. 18 U.S.C. § 4241(a, c). The Fourth Circuit’s affirmance raised additional troubling implications, writing that a trial court must “balancle]” a defendant’s “right to be tried only if competent” against his “right|] to * * * effective assistance of counsel.” App. 9a. In so affirming, the Fourth Circuit created a split against those other circuits which have made clear that a defense attorney’s claim that his client is competent does not relieve the court of its duty to determine competency. See, e.g., Maxwell v. Roe, 606 F.3d