The opinion of the court was delivered by: Amy J. St. Eve, District Court Judge:
MEMORANDUM OPINION AND ORDER
On April 11, 2011, the Court held a competency hearing to determine whether habeas petitioner George Fernandez is competent to assist his counsel in the present habeas proceeding. For the following reasons, Fernandez is not presently competent to assist his counsel in the instant habeas proceeding, and therefore, the Court grants Fernandez's request for a temporary stay of up to one year.
In Rees v. Peyton, 384 U.S. 312, 314, 86 S.Ct. 1505, 16 L.Ed.2d 583 (1966), the Supreme Court held that when determining a habeas petitioner's mental competence to forego judicial proceedings, the court must ask "whether he has [the] capacity to appreciate his position and make a rational choice with respect to continuing or abandoning further litigation." In Holmes v. Buss, 506 F.3d 576, 578-79 (7th Cir. 2007), the Seventh Circuit adopted the Ninth Circuit's holding in Rohan ex rel. Gates v. Woodford, 334 F.3d 803 (9th Cir. 2003), for the proposition that "in a capital case a petitioner for federal habeas corpus must be competent to assist his counsel; if not, the proceeding must be stayed." Holmes, 506 F.3d at 578. The Seventh Circuit has not addressed whether the Holmes decision extends to non-capital habeas cases, nevertheless, the Holmes decision teaches that "[w]hatever the nature of the proceeding, the test should be whether the defendant (petitioner, appellant, etc.) is competent to play whatever role in relation to his case is necessary to enable it to be adequately presented." Id. at 579. Further, the Court's application of this standard depends on the circumstances of the case, including "not only the litigant's particular mental condition but also the nature of the decision that he must be competent to make." Id.
In 2001, after a trial in the Circuit Court of Cook County, a jury convicted Fernandez of aggravated vehicular hijacking. Thereafter, the Circuit Court sentenced Fernandez to eighteen years imprisonment. Fernandez appealed and the Illinois Appellate Court affirmed his conviction and sentence on September 24, 2002. Fernandez did not file a petition for leave to appeal ("PLA") in the Supreme Court of Illinois nor did he file a petition for a writ of certiorari in the United States Supreme Court.
On November 14, 2002, Fernandez filed a pro se post-conviction petition pursuant to the Illinois Post-Conviction Hearing Act, 725 ILCS 5/122-1, et seq., in the Circuit Court of Cook County. On May 4, 2004, Fernandez filed a supplemental petition. On May 13, 2004, the Circuit Court denied Fernandez's post-conviction petition and the Illinois Appellate Court affirmed this denial on November 7, 2005. Thereafter, Fernandez filed a post-conviction PLA that the Supreme Court of Illinois denied on May 24, 2006.
In May 2007, Fernandez filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254(d). Construing his pro se habeas petition liberally, see McGee v. Bartow, 593 F.3d 556, 565-66 (7th Cir. 2010), Fernandez brought the following habeas claims: (1) his appellate counsel was constitutionally ineffective for failing to raise on direct appeal that the trial court erred in giving jury instruction IPI Criminal 4th No. 3.15; (2) his right to a fair trial was violated when (a) the State misstated evidence in closing arguments in a manner that eased the government's burden of proof, and (b) the State asserted as fact something that had not been proven or testified to at trial; and (3) his trial counsel was constitutionally ineffective for failing to (a) object to the prosecutor's misstatement of the evidence and closing arguments, (b) present Fernandez's facial tattoos as proper non-testimonial evidence, and (c) object to the trial court's erroneous jury instruction.
After the Court lifted the stayed in the present matter -- that was pending while Fernandez exhausted his state court remedies in the Illinois courts -- the Court appointed Fernandez counsel on December 8, 2009. In February 2010, Fernandez's appointed counsel filed a motion for a fitness examination for the purposes of determining whether Fernandez was mentally competent to assist and direct counsel in the present habeas proceeding. On February 12, 2010, the Court entered the following unopposed order:
The State of Illinois shall promptly make available to Petitioner's counsel for copying (at the expense of Petitioner's counsel) all medical and related records respecting George Fernandez, #B70201, in the possession of the State of Illinois Department of Corrections, which Petitioner's counsel shall in turn make available to each psychiatrist who will examine George Fernandez; Petitioner's counsel shall promptly make available to the State of Illinois for copying (at the expense of the State of Illinois) all medical and related records respecting George Fernandez that are currently in the possession of George Fernandez and/or his mother, Valerie Beesley, including any records that are obtained from third parties;
All medical and related records in the possession of the State of Illinois and Petitioner's counsel shall be made available to the qualified forensic psychiatrist hired by Petitioner's counsel to examine George Fernandez, as well as to any qualified forensic psychiatrist that the State of Illinois may engage to examine George Fernandez;
Each forensic psychiatrist who examines George Fernandez shall prepare a brief report summarizing the psychiatrist's examination, diagnosis, and conclusions regarding George Fernandez's current mental competence to assist in and direct his attorneys in the present habeas proceeding brought under 28 U.S.C. § 2254(d), and if George Fernandez is found to be incompetent, providing recommendations as to whether his competency is likely to be restored with appropriate treatment and medication within a reasonable period of time, and providing any appropriate recommendations as to what treatment and medication should be provided to George Fernandez to stabilize his condition and restore his mental competency; and The parties shall promptly file ...