Scott Panetti v. William Stephens, Director

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

August 21, 2013

No. 08-70015

Lyle W. Cayce

(Cons. with 08-70016) Clerk

SCOTT LOUIS PANETTI,

Petitioner - Appellant

v.

WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL

JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

Respondent - Appellee

Appeals from the United States District Court

for the Western District of Texas

Before STEWART, Chief Judge, and HIGGINBOTHAM and OWEN, Circuit

Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

A Texas jury convicted petitioner-appellant Scott Louis Panetti of capital

murder and sentenced him to death. Panetti filed separate federal habeas

petitions challenging his competency to be executed as well as his competency

to represent himself at trial. The district court denied relief but granted a

certificate of appealability. We affirm.

No. 08-70015

I.

This case has a long and complicated procedural history. In 1992, Panetti

shot his estranged wife’s parents at close range, killing them and spraying his

wife and three-year-old daughter with their blood. At trial, Panetti’s only

defense was insanity. Panetti demanded to represent himself despite his history

of schizophrenia and institutionalization, ignoring the judge’s repeated pleas to

accept court-appointed representation and insisting that only an insane person

could prove insanity. According to standby counsel, Panetti’s performance was

“bizarre,” “scary,” and “trance-like,” rendering his trial “a judicial farce, and a

mockery of self-representation.”1 The jury convicted Panetti of capital murder

and sentenced him to death, and the Texas Court of Criminal Appeals (“CCA”)

upheld the conviction and sentence on direct and collateral review. Panetti

eventually filed a federal habeas petition, claiming, among other things, that he

was incompetent to waive counsel and incompetent to stand trial.2 The district

court denied the petition, and this Court affirmed.3

In October 2003, the state trial court set an execution date for February

5, 2004.4 Panetti filed a motion with the trial court for a stay of execution,

claiming for the first time that he was incompetent to be executed under Article

46.05 of the Texas Code of Criminal Procedure.5 The trial court rejected the

motion without a hearing, holding that Panetti had failed to make a “substantial

showing of incompetency” as required to entitle Panetti to an evaluation by

1

Panetti v. Quarterman, 551 U.S. 930, 936 (2007).

2

Panetti v. Dretke, 401 F. Supp. 2d 702, 703 (W.D. Tex. 2004).

3

See Panetti v. Cockrell, 73 F. App’x 78 (5th Cir. 2003).

4

Panetti, 551 U.S. at 937.

5

Id. at 938.

2

No. 08-70015

court-appointed experts under Article 46.05.6 The CCA determined that it was

without power to review the trial court’s determination.7

Panetti then returned to federal court, filing a second federal habeas

petition which asserted that the trial court’s ruling on his competency to be

executed violated clearly established Supreme Court precedent — specifically,

Ford v. Wainwright.8 The petition included additional evidence of Panetti’s

mental illness, evidence that Panetti had also appended to a renewed Article

46.05 motion before the state trial court.9 Instead of ruling on the merits of

Panetti’s petition, the district court — Hon. Sam Sparks presiding — ordered

Panetti’s execution stayed for 60 days to give the state court time to consider

Panetti’s renewed motion in light of the supplemental evidence.10

In February 2004, the state court entered an order appointing a

psychiatrist and clinical psychologist to examine Panetti, thereby implicitly

finding that Panetti had made a “substantial showing of incompetency” under

Article 46.05.11 In April, the court-appointed experts filed a joint report

concluding that Panetti was competent to be executed.12 Panetti moved to

appoint his own experts and hold an evidentiary hearing, urging that Article

46.05 and the Supreme Court’s decision in Ford required the state court to afford

6

Panetti, 401 F. Supp. 2d at 703.

7

Panetti, 551 U.S. at 938.

8

Panetti, 401 F. Supp. 2d at 703 (citing Ford v. Wainwright, 477 U.S. 399 (1986)).

9

Id. at 703–04.

10

Id. at 704.

11

Id.

12

Id.

3

No. 08-70015

him an opportunity to be heard.13 Without ruling on Panetti’s motion, the state

court entered an order finding that Panetti was competent to be executed.14

Panetti then returned to the federal district court, claiming that the state

court’s refusal to hold an evidentiary hearing and accept evidence on his alleged

incompetency violated both Article 46.05 and Ford.15 The district court agreed

and concluded that the state court’s decision thus fell outside of the safe harbor

we created in Caldwell v. Johnson,16 which insulates state proceedings compliant

with Article 46.05 from habeas attack under Ford.17 The district court also

rejected the State’s argument that Panetti’s Ford claim was precluded by the

§ 2244 bar on “second or successive” habeas petitions, reasoning that Panetti

could not have included the claim in his original petition, as it only became ripe

when the state set an execution date. Finally, the district court determined that

since Panetti had made a “substantial showing of incompetency,” the state

court’s failure to “receive evidence and argument from the prisoner’s counsel,

including expert psychiatric evidence that may differ from the State’s own

psychiatric examination,” was a violation of due process under Ford.18 The

district court then scheduled its own evidentiary hearing, appointing counsel

and authorizing funds so that Panetti could hire a team of psychiatric experts.19

At the hearing, Panetti presented testimony from four experts, including

two clinical and forensic psychologists, a clinical psychologist, and a

13

Id.

14

Id.

15

Id.

16

226 F.3d 367, 374 (5th Cir. 2000).

17

Panetti, 401 F. Supp. 2d at 704–05.

18

Id. at 705.

19

Id.

4

No. 08-70015

psychiatrist.20 The experts testified that though Panetti appeared to understand

the State’s purported reason for seeking his execution — his murder of his in-

laws — his delusions caused him to believe that the State was actually “in

league with the forces of evil,” seeking his execution “to prevent him from

preaching the Gospel.”21 The State’s two experts — a psychiatrist and a clinical

psychologist — agreed that Panetti was mentally ill, though they “concluded that

some portion of Panetti’s behavior could be attributed to malingering.”22 While

both experts testified that Panetti had the capacity to rationally understand the

reason for his execution, they “were unable to reach a formal conclusion that he

did, in fact, understand it.”23

The district court reviewed the evidence adduced at the hearing de novo,

observing that though the state court had made a factual determination that

Panetti was competent to be executed, this determination was not entitled to

AEDPA deference.24 The court reasoned that “to apply such deference . . . would

fly in the face of the Supreme Court’s holding in Ford . . . [in which] seven

Justices . . . concluded [that] denying a petitioner the right to present, as well as

rebut, evidence in making a competency-to-be-executed determination violates

the right to due process.”25 Turning to the evidence, the district court concluded

that the record supported a finding that Panetti’s delusional belief system

prevented him from rationally appreciating the connection between his crimes

20

Id. at 707.

21

Id. at 709.

22

Id. at 704, 707.

23

Id. at 707–08.

24

Id. at 705–06.

25

Id. at 705.

5

No. 08-70015

and his execution.26 Nevertheless, the court reluctantly found Panetti competent

to be executed, noting that under Fifth Circuit precedent, Panetti only needed

to “know the fact of his impending execution and the reason for it,”27 and that

here, both sides’ experts agreed that Panetti was aware of his impending

execution as well as the State’s purported reason for that execution.28 We

affirmed in a published opinion, reemphasizing that a prisoner is competent to

be executed under Ford if he “knew that he was going to be executed and why

he was going to be executed,”29 and noting that the “awareness” required under

Ford “is not necessarily synonymous with ‘rational understanding.’”30

In 2007, the Supreme Court granted certiorari and reversed.31 As a

threshold matter, the Court agreed with the district court that the statutory bar

on successive habeas petitions does not apply to Ford claims brought when first

ripe.32 It also agreed that the state court’s competency determination was not

entitled to AEDPA deference, as the court had failed to afford Panetti an

opportunity to present his own evidence, thereby violating the minimum due

process required for competency determinations under Ford.33 However, turning

to the question of Panetti’s competency to be executed, the Court concluded that

“the [Fifth Circuit’s] standard is too restrictive to afford . . . the protections

26

Id. at 709.

27

Id. (quoting Fearance v. Scott, 56 F.3d 633, 640 (5th Cir. 1995)).

28

Id. at 711–12.

29

Panetti v. Dretke, 448 F.3d 815, 819 (5th Cir. 2006) (quoting Barnard v. Collins, 13

F.3d 871, 877 (5th Cir. 2006)).

30

Id. at 821.

31

See Panetti, 551 U.S. at 962.

32

Id. at 942–47.

33

Id. at 948–54.

6

No. 08-70015

granted by the Eighth Amendment.”34 The Court explained that “the Ford

opinions nowhere indicate that delusions are irrelevant to ‘comprehension’ or

‘awareness’ if they so impair the prisoner’s concept of reality that he cannot

reach a rational understanding of the reason for the execution,” concluding that

“if anything, the Ford majority suggests the opposite.”35 The Court nevertheless

declined “to set down a rule governing all competency determinations,” noting

that it was “hesitant to decide a question of this complexity before the [d]istrict

[c]ourt and the [Fifth Circuit] have addressed, in a more definitive manner and

in light of the expert evidence found to be probative, the nature and severity of

[Panetti’s] alleged mental problems.”36

On remand, the district court scheduled a second evidentiary hearing,

offering both sides the opportunity to introduce additional evidence in light of

the Supreme Court’s decision.37 In anticipation of the hearing, the defense hired

Dr. Leslie Rosenstein (a clinical neuropsychologist), Dr. David Self (a forensic

psychiatrist), and Dr. Mary Alice Conroy (a forensic psychologist). While Drs.

Rosenstein and Self were both new to the defense, Dr. Conroy was familiar with

Panetti, having interviewed him previously in anticipation of the 2004 hearing.

The three experts collectively evaluated Panetti for some fifteen hours,

subjecting him to extensive questioning and administering a battery of tests

designed to gauge his mental health as well as the likelihood of malingering.38

The district court ultimately authorized some $9000 to pay Panetti’s experts,

though it rejected his repeated requests for additional funding.

34

Id. at 956–57.

35

Id. at 958.

36

Id. at 960–61.

37

Panetti v. Quarterman, 2008 WL 2338498, at *2 (W.D. Tex. 2008).

38

See id. at *19–22.

7

No. 08-70015

At the evidentiary hearing, all three defense experts testified that

Panetti’s cognitive functioning and behavioral patterns were consistent with

schizophrenia,39 though Dr. Conroy noted that Panetti’s symptoms — pressured

speech, tangential thinking, and flight of ideas — had improved markedly since

her 2004 evaluation. Drs. Conroy and Self also testified that Panetti suffered

from a genuine delusion that he was on death row to preach the Gospel and save

souls. However, Dr. Conroy conceded that Panetti was “not as clear” or “direct”

as he had been in 2004 when prompted to explain the reason for his impending

execution, answering only that “I’m going to be here preaching until God calls

me home” and then “going on to talk about the conspiracies between the Bushes

and large corporations and demonic forces,” the corruptness of his trial judge,

and the perversion of a criminal justice system that sought to execute him for a

crime he had committed while insane. Though Drs. Conroy and Self both

believed that Panetti continued to suffer from the delusion that his execution

was part of a satanic conspiracy to keep him from preaching, their opinions

appear to draw on Panetti’s statements in 2004.

The defense also called on two of Panetti’s fellow death-row inmates to

testify as fact witnesses. Willie Poindexter, who had been housed in Panetti’s

immediate area for about two years, testified that talking to Panetti was strange

because “one minute everything’s good, the next minute he’s ranting and raving

fire and brimstone again, like flipping a switch.”40 Poindexter noted that Panetti

preached incessantly both in his cell and in the day-room — often for up to seven

hours a day — even though it irritated other inmates and caused them to throw

hot water on him and shout at him.41 Randy Halprin, another fellow death-row

39

See id. at *19–22.

40

Id. at *26.

41

Id.

8

No. 08-70015

inmate, gave a similar account of Panetti’s daily routine, noting that Panetti

“does a lot of fire and brimstone type preaching from the day-room.”42

The State countered with testimony from its own team of experts,

including Dr. Tom Allen (a forensic psychologist) and Dr. Alan Waldman (a

psychiatrist and neurologist).43 After interviewing Panetti as well as a number

of Texas Department of Criminal Justice (“TDCJ”) employees, both experts

concluded that Panetti was at least partially fabricating his symptoms to thwart

their attempts to administer structured examinations designed to detect

malingering.44 Indeed, Waldman doubted that Panetti suffered from any form

of mental illness, opining that Panetti “is about as normal as he wants to be at

any given time” and that his “dramatic presentation” during interviews

“reflect[s] an individual naive to [schizophrenia] except for what is seen in

television and movies.”45 Ultimately, Waldman was “emphatic in his opinion

that Panetti has a rational understanding of . . . the connection between [his]

crime and [his] execution,”46 pointing to Panetti’s repeated assertions that he

was “unjust[ly]” convicted in spite of his insanity and that God had “forgiven” his

“guilt.” Waldman suggested that these statements implied that Panetti

understood that the State sought to punish him because he had “do[ne]

something wrong.”

The State also called three TDCJ employees, apparently in an attempt to

counter the fact testimony offered by Panetti’s fellow inmates. Steven Bryant,

42

Id.

43

See id. at *23–25. The state also adduced testimony from Dr. Priscilla Ray, a forensic

psychiatrist and neurologist who opined on the extent to which psychiatric science can assist

a court in assessing a prisoner’s competency to be executed. See id. at *26.

44

Id. at *23–25.

45

Id. at *25.

46

Id.

9

No. 08-70015

who worked as a guard in Panetti’s unit between 2003 and 2007, testified that

while Panetti was never a problem offender, he “would [often] have some

religious statement to make.”47 William Cook, another death-row guard,

testified that he saw Panetti’s preaching, both in his cell and in the day room,

but that it was “the same type of thing you’d hear at church . . . well thought

out.”48 Wilson Coker, a third death-row guard, testified that Panetti was

generally well behaved, but that some guards would occasionally assign Panetti

to a cell to get “a little revenge” on another inmate because they knew that

Panetti would irritate the inmate with his constant preaching.49

Finally, the State presented secret audio recordings of Panetti’s

conversations with his parents and sister between December 4, 2007 and

January 4, 2008, which the district court accurately summarized as follows:

The[] recordings amount to some eleven hours of conversation. In

all that time, Pane[t]ti’s speech remains normal, even slow, in pace.

His statements are generally responsive to the conversation, though

he does show remarkable self-centeredness, often turning the

conversation to himself instead of following up on a topics related to

friends, family, or the other speaker. He often quotes scripture or

makes religious comments, but does not “rant” or “preach.”

Notably, several of the conversations between Panetti and his

mother involve extended discussion regarding Judge Ab[l]es (the

trial judge) and his corruptness and ineptitude with regard to

Panetti’s trial proceedings. In these discussions Panetti talks about

the “kangaroo court,” “Ab[l]es’ screwups,” and “corrupt Texas

politics.” He makes statements such as “Fredericksburg had to have

a hanging” and “Ab[l]es was trying to cover his ass.” At no time

does he become irrational, tangential, or pressured in his speech.

His statements all have to do with Judge Ab[l]es’ alleged political

corruptness, not with any spiritual corruption or action by devils or

supernatural forces.

47

Id. at *27.

48

Id.

49

Id. at *27–28.

10

No. 08-70015

The conversation between Panetti and his parents often turns

to Panetti’s habeas case. Panetti’s comments about his legal

proceedings demonstrate a fairly sophisticated understanding of his

circumstances. For example, on December 4, 2007, Panetti tells his

parents to tell Maury Levin, whom he identifies as a member of his

defense team, about a “character witness” that he “knew from years

ago that saw me run and preach and may not be here any more.”

He seems to be aware he may be on tape, stating “I don’t want to be

too overt about it . . . . I hope they don’t know what I’m talking

about . . . . If they are taping it, I did not tell that character witness

anything, there’s no in cahoots, no planning.”

On December 10, 2007, Panetti initiates a very rational,

organized conversation with his parents about various states

abolishing the death penalty pending the outcome of the “lethal

injection case” currently before the Supreme Court. Panetti notes

“I’ve got a feeling they’re in for a surprise like they were in my case.”

There are several other recorded conversations concerning the

abolition of the death penalty generally; Panetti expresses his moral

opposition to the death penalty without becoming noticeably

tangential or pressured in his speech, and without attributing the

death penalty to any kind of supernatural or demonic conspiracy.

On December 17, 2007, Panetti asks his parents (regarding

one of the experts sent to evaluate him): “that lady or man you sent

last week, was that for us or them?” His mother responds, “us,” and

Panetti replies “Well, that’s the way I treated her, then.”

Also on December 17, 2007, Panetti tells his parents not to

worry about the outcome of the evidentiary hearing: “the clerks, the

Supreme Court, dug deep down into that, and at the end of the

opinion they said that Sparks would come up with a decision in

agreement with our decision. So if they want to pull a shenanigan

and send it back through there again, now don’t be afraid if this

hearing goes, because it’s just gonna — it’s just gonna be better in

the end, because it’s gonna go back there again and they’re not

gonna like it. They’ve done that with other cases, and the Supreme

Court gets angry with Texas for doing that.”50

Before analyzing the new evidence adduced at the second evidentiary

hearing, the district court clarified its understanding of Eighth Amendment

competency inquiry in the wake of the Supreme Court’s remand opinion. The

50

Id. at *28–29.

11

No. 08-70015

court read that opinion to hold that “the test for competence to be executed

involves not only a prisoner’s factual awareness of the crime, the impending

execution, and the state’s reason for executing the prisoner, but also some degree

of ‘rational understanding’ of the connection between the crime and the

punishment.”51 Moreover, the court agreed with Panetti that this standard was

essentially identical to the standard for competency to stand trial under United

States v. Dusky,52 which probes a defendant’s “rational understanding” of the

connection between his crime and the charges against him.53

The district court then turned to apply its “rational understanding” test

to the facts at hand. After reviewing the expert testimony on Panetti’s

competency in painstaking detail,54 the court agreed with the defense’s experts

that “Panetti is seriously mentally ill” and concluded that “it is not seriously

disputable that Panetti suffers from paranoid delusions of some type.”55

However, the court implicitly agreed with the State that Panetti was

exaggerating some of his symptoms to avoid execution, observing that Panetti

demonstrated a “fairly sophisticated understanding of his case” and that his

refusal to cooperate with the State’s experts stood in marked contrast to his

treatment of the defense’s experts.56 Ultimately, the court determined that

Panetti “has both a factual and rational understanding of his crime, his

impending death, and the causal retributive connection between the two,”57 as

51

Id. at *31.

52

362 U.S. 402 (1960) (per curiam).

53

See Panetti, 2008 WL 2338498, at *31–32, 34.

54

Id. at *18–27.

55

Id. at *36.

56

Id. at *35–36.

57

Id. at *37.

12

No. 08-70015

demonstrated “most clearly” by his statements to Dr. Waldman “that the death

penalty is wrong in his case because he was schizophrenic when he killed his in-

laws.”58 According to the court, Panetti’s remarks imply that he “understands

he is being executed to punish him for killing his in-laws, but feels the state is

not justified in taking this position because of his mental illness.”59 As “Ford .

. . does not require that a prisoner agree with his punishment — simply that he

rationally understand it,” the court concluded that Panetti was competent to be

executed.60

Panetti sought and obtained a certificate of appealability (“COA”) from the

district court and timely filed a notice of appeal. However, before the parties

could complete their briefing, the Supreme Court decided Indiana v. Edwards,61

which qualified Faretta and progeny by clarifying that “the Constitution permits

States to insist upon representation by counsel for those competent enough to

stand trial under Dusky but who still suffer from severe mental illness.”62

Panetti filed a motion to stay and abate the appeal so that he could return to

state court to collaterally challenge his 1995 conviction under Edwards. Panetti

urged that the state judge who oversaw his trial operated under the belief —

erroneous, in light of Edwards — that he could not overrule Panetti’s Faretta

demand. Had the judge been aware of the proper Sixth and Fourteenth

Amendment standard, Panetti contended, he should have required Panetti to

accept counsel. This Court granted the motion to stay and abate and Panetti

filed his second state habeas petition. The CCA promptly denied the petition for

58

Id. at *36.

59

Id.

60

Id.

61

554 U.S. 164 (2008).

62

Id. at 174–75.

13

No. 08-70015

“fail[ing] to meet the dictates of Article 11.071, § 5" of the Texas Code of

Criminal Procedure.

Panetti then petitioned this Court for permission to file a third federal

habeas petition raising his Edwards claim. In a one-sentence order, this Court

granted Panetti’s motion, thereby implicitly finding that Panetti had made a

“prima facie showing” that his “claim relies on a new rule of constitutional law,

made retroactive to cases on collateral review by the Supreme Court, that was

previously unavailable.”63 While Panetti’s third federal petition was pending,

the CCA decided Chadwick v. State,64 which addressed the meaning of Edwards.

In light of Chadwick, the district court granted Panetti leave to file a second

successive state habeas petition raising the Edwards claim. The CCA again

dismissed the petition for “fail[ing] to meet the dictates of Article 11.071, § 5,”65

and the Supreme Court denied certiorari.66

At length, Panetti returned to the district court to litigate his Edwards

claim. The State moved for “summary judgment,” urging that the CCA’s two

boilerplate § 5 dismissals rested on adequate and independent state law

grounds; that Edwards was not retroactive under Teague v. Lane; and that in

any event, Panetti’s Edwards claim failed on the merits. Though the district

court rejected the State’s contention that Panetti’s claim was procedurally

defaulted, it reluctantly agreed that the claim was Teague-barred. Nevertheless,

it adjudicated the merits de novo, exhaustively reviewing Panetti’s trial

performance and ultimately concluding that “Panetti, though unskilled and

63

28 U.S.C. § 2244(b)(3)(C).

64

309 S.W.3d 558 (Tex. Crim. App. 2010).

65

Ex Parte Panetti, 326 S.W.3d 615 (Tex. Crim. App. 2010).

66

Panetti v. Texas, 131 S. Ct. 3027 (2011).

14

No. 08-70015

ineffective, was not incompetent . . . to conduct trial proceedings by himself.”

The district court granted a COA and Panetti timely filed notice of appeal.

On appeal, Panetti contends that the district court (i) adjudicated his

competency to be executed without affording him the due process required under

Ford and the Supreme Court’s 2007 remand opinion, Panetti v. Quarterman; (ii)

erred by finding him competent to be executed; and (iii) erred by rejecting his

Edwards claim. We examine and reject each argument in turn.

II.

Panetti urges that the district court “violated the due process

requirements of Ford and Panetti by refusing to provide constitutionally

adequate funding for experts.” Panetti reasons that Ford required the district

court to afford him an “opportunity to be heard,” an opportunity that, in light of

Panetti, includes a “right to a mental health expert . . . to conduct an adequate

examination . . . , review all the pertinent records, assist counsel in challenging

the State’s experts through cross-examination, and testify in rebuttal.” The

State rejoins that Panetti failed to request or receive a COA on his due process

claim, and that in any event, the claim is meritless.

We agree with Panetti that the district court’s COA, fairly read,

encompasses his Ford-based due process objection.67 Panetti raised the objection

below in a motion to amend the judgment, along with his challenge to the

district court’s ultimate determination that he was competent to be executed.

The district court granted a COA on “[w]hether Mr. Panetti is incompetent to be

executed under Ford v. Wainwright and Panetti v. Quarterman.” As Ford and

Panetti set forth not only a substantive standard for Eighth Amendment

67

Cf. Ramirez v. Dretke, 398 F.3d 691, 694 (5th Cir. 2005) (“[I]n a death penalty case

any doubts as to whether a COA should issue must be resolved in the petitioner’s favor.”

(internal quotation marks and alterations omitted)).

15

No. 08-70015

competency, but also minimum due process requirements courts must abide in

assessing competency, the district court’s COA, liberally construed, reaches

Panetti’s due process claim.68

However, we agree with the State that Panetti’s claim fails on the merits.

Panetti’s challenge to the “constitutional[] adequa[cy]” of the district court’s

funding relies on the proposition that the Supreme Court’s decisions in Ford and

Panetti establish a constitutional right to expert assistance in Eighth

Amendment competency-to-be-executed hearings. But reasonably read, Ford

and Panetti merely establish that Panetti was entitled to an opportunity to

present his own expert testimony before a neutral decisionmaker; after all, the

critical issue in both cases was that the relevant state’s procedure for

determining competency permitted only the government to submit evidence.69

And even if Ford’s “opportunity to be heard” requires a modicum of financial

assistance in the case of indigent prisoners, the district court here eventually

68

Cf. Aldridge v. Cockrell, 92 F. App’x 60, 72 (5th Cir. 2003) (unpublished) (“[I]n cases

where a district court grants a COA with respect to the merits of a constitutional claim but the

COA is silent with respect to procedural claims that must be resolved if the panel is to reach

the merits, the court of appeals will assume that the COA also encompasses any procedural

claims that must be addressed on appeal.” (quoting Jones v. Smith, 231 F.3d 1227, 1231 (9th

Cir. 2000); McCoy v. United States, 266 F.3d 1245, 1248 (11th Cir. 2001) (internal alterations

omitted)).

69

Panetti, 551 U.S. at 949, 951 (“[T]he[] basic requirements [of due process in Ford

competency hearings] include an opportunity to submit evidence and argument from the

prisoner’s counsel . . . . [Here,] the state court . . . failed to provide [Panetti] with an adequate

opportunity to submit expert evidence in response to the report filed by the court-appointed

experts.”); Ford, 477 U.S. at 430 (“If there is one ‘fundamental requisite’ of due process, it is

that an individual is entitled to an ‘opportunity to be heard.’ In this case, petitioner was

deprived of that opportunity [because] the Florida statute does not require the Governor to

consider materials submitted by the prisoner, and the present Governor has a ‘publicly

announced policy of excluding’ such materials from his consideration.”)(Powell, J., concurring

in part and concurring in judgment).

16

No. 08-70015

authorized some $9000 in funds, allowing Panetti to retain a team of competent

experts to assist him in developing evidence of his alleged incompetency.70

Panetti nonetheless complains that the district court’s denial of additional

funding prevented his experts from “fully” reviewing the TDCJ’s secret

recordings and obtaining a PET scan necessary to respond to the State’s

allegations of malingering.71 He relies on a 1929 opinion by then-Judge Cardozo

for the proposition that “a defendant may be at an unfair disadvantage [at trial]

if he is unable because of poverty to parry by his own [expert] witnesses the

thrusts of those against him.”72 But as Panetti and Ford both emphasized, “a

constitutional procedure [in Eighth Amendment competency hearings] may be

far less formal than a trial.”73 And even assuming, arguendo, that Panetti was

entitled to all of the due process protections afforded to a capital defendant,

which include “access to a competent psychiatrist” if “sanity at the time of the

offense is to be a significant factor at trial,”74 the district court furnished Panetti

with three competent experts — including a forensic psychiatrist — who

collectively evaluated him for some fifteen hours.75 The fact that the court did

not accede to all of Panetti’s demands for additional funding cannot be fairly

70

See Panetti, 2008 WL 2338498, at *19–22. Panetti has stipulated that he is “not

complaining about the competency of his experts.”

71

See JACK KITAEFF, MALINGERING, LIES, AND JUNK SCIENCE IN THE COURTROOM 52

(2007) (“Positron emission tomography (PET) scans are . . . a possible aid in determination of

malingering. PET scans are a minimally invasive nuclear medicine imaging system that uses

radiopharmaceuticals that are short lived to detect perfusion and metabolic activity in the

various organ systems . . . [including] brain metabolism and function.”).

72

Reilly v. Barry, 166 N.E. 165, 167 (N.Y. 1929) (Cardozo, C.J).

73

Panetti, 551 U.S. at 949 (quoting Ford, 477 U.S. at 427 (Powell, J., concurring in part

and concurring in judgment)).

74

United States v. Snarr, 704 F.3d 368, 405 (5th Cir. 2013).

75

Panetti, 2008 WL 2338498, at *19–22.

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characterized as an abuse of discretion,76 particularly as his experts were able

to review and respond to large swaths of the TDCJ’s recordings, and as his late-

arriving request for a PET scan violated the court’s scheduling order.

III.

Panetti next argues that the district court erred in finding him competent

to be executed under the Eighth Amendment as read by Ford and Panetti. To

evaluate Panetti’s argument, we must first determine whether the district court

applied the correct standard in assessing Panetti’s competency — a legal

question we review de novo. The Supreme Court’s remand opinion provides only

limited guidance, advising that Ford does not “foreclose inquiry” into whether

a prisoner’s psychotic delusions prevent him from attaining a “rational

understanding” of the retributive basis for his execution and that such delusions

“may put an awareness of a link between a crime and its punishment in a

context so far removed from reality that the punishment can serve no proper

purpose.”77 The district court read the remand opinion as setting forth a

mandatory “rational understanding” test for Eighth Amendment competency, a

test substantially identical to the Dusky standard for competency to stand trial.78

On appeal, both parties seem to agree that Panetti sets forth a mandatory test;

however, the State challenges the district court’s reliance on Dusky and its

circuit-level progeny, urging that Dusky’s inquiry into a defendant’s ability to

assist in his defense has no place in our Eighth Amendment jurisprudence.

76

Snarr, 704 F.3d at 404 (“We review a district court’s denial of funding for expert

witnesses for abuse of discretion.”).

77

Panetti, 551 U.S. at 958–60.

78

Panetti, 2008 WL 2338498, at *31, 32–34.

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We need not deviate from the parties’ assumption that Panetti establishes

a mandatory “rational understanding” test to agree with the State that Dusky

and company should not be imported wholesale into the Eighth Amendment

context. Dusky’s inquiry into a defendant’s “rational understanding” of the

charges against him is footed on the essentials of due process, probing whether

a defendant “has sufficient present ability to consult with his lawyer to assist in

his defense.”79 Panetti’s inquiry into a prisoner’s “rational understanding” of the

basis for his execution arises out of conceptually distinct Eighth Amendment

concerns, including “the [questionable] retributive value of executing a person

who has no comprehension of why he has been singled out and stripped of his

fundamental right to life” and “the natural abhorrence civilized societies feel at

the killing of one who has no capacity to come to grips with his own conscience

or deity.”80 As it is not self-evident that the level of understanding necessary to

assist in one’s defense serves the retributive aims of the death penalty, Dusky

and progeny do not necessarily provide an appropriate metric for determining

competency to be executed.

However, we do not read the district court’s references to Dusky as

meaningfully influencing its competency determination, as its actual analysis

of Panetti’s “rational understanding” rested exclusively on the language and

retributive rationale of the Supreme Court’s remand opinion.81 That is, the

district court found Panetti competent because he “has both a factual and

rational understanding of his crime, his impending death, and the causal

retributive connection between the two,” an understanding “most clearly

79

Dusky, 362 U.S. at 402; see also, e.g., Lafferty v. Cook, 949 F.2d 1546, 1556 (10th Cir.

1991).

80

Panetti, 551 U.S. at 957 (quoting Ford, 477 U.S. at 409–10).

81

See Panetti, 2008 WL 2338498, at *34–37.

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No. 08-70015

demonstrated” by his “rationally articulated position that his punishment is

[morally] unjustified” in light of his insanity at the time of his offense.82

Satisfied that the district court applied the correct legal standard in assessing

Panetti’s Eighth Amendment competency, we turn to address whether the

district court’s ultimate finding of competency is clearly erroneous in light of the

evidence adduced at Panetti’s competency hearing.83 We conclude that it is not.

First, the expert testimony on Panetti’s “rational understanding” of his

punishment is conflicting, a circumstance that is probably itself sufficient to

sustain the district court’s judgment under a clear-error standard.84 The State’s

chief expert — Dr. Waldman — doubted that Panetti suffered from any form of

mental illness and was “emphatic in his opinion that Panetti has a rational

understanding of . . . the connection between [his] crime and [his] execution,”85

pointing to Panetti’s oft-vocalized belief that he should not have been convicted

in light of his insanity.86 While the defense’s experts countered that Panetti

genuinely believed that his impending execution was part of a satanic conspiracy

to keep him from preaching, even they acknowledged that Panetti no longer

clearly expressed this delusion when interviewed in December 2007. The district

court reviewed this conflicting testimony in painstaking detail,87 agreeing with

the defense that Panetti was “seriously mentally ill” but crediting the State’s

position that his competency was evidenced “by his rationally articulated

82

Id. at *36–37.

83

See Patterson v. Dretke, 370 F.3d 480, 484 (5th Cir. 2004).

84

See, e.g., McClain v. Lufkin Indus., Inc., 519 F.3d 264, 279 (5th Cir. 2008) (“An

appellate court owes great deference to the findings of the trial court with respect to duly

admitted expert testimony.”).

85

Panetti, 2008 WL 2338498, at *25.

86

Id.

87

See id. at *19–27.

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position that . . . the State should not execute him because he was mentally ill

when he committed the murders.”88 The court’s careful draw on the experts’

conflicting testimony is entitled to “great deference” from this Court.89

Second, the TDCJ’s secret recordings of Panetti’s conversations with

family members generally corroborate the testimony of the State’s experts.

Panetti converses normally for some eleven hours and demonstrates a

remarkably sophisticated understanding of his capital case, supporting the

State’s allegations of malingering. For example:

• On December 4, 2007, Panetti tells his parents to notify Maurie Levin (the

co-director of the University of Texas capital punishment clinic) about a

“character witness” that Panetti “knew from years ago that saw me run

and preach and may not be here anymore.” Panetti seems to be aware

that he may be on tape, stating “I hope they don’t know what I’m talking

about . . . . If they are taping it, I did not tell that character witness

anything, there’s no in cahoots, no planning.”

• On December 10, 2007, Panetti tells his parents about the death-penalty

moratorium in the wake of the Supreme Court’s grant of certiorari in “the

lethal injection case,” i.e., Baze v. Rees,90 noting that he had “a feeling

they’re in for a surprise like they were in my case.”

• On December 17, 2007, Panetti predicts that the Supreme Court will once

again grant certiorari if this Court rejects his Ford claim, noting that “the

clerks, the Supreme Court, dug deep down into that [in the remand

opinion], and the end of the opinion they said that Sparks would come up

with a decision in agreement with our decision. So if they want to pull a

shenanigan and send it back through there again, now don’t be afraid if

this hearing goes, because it’s just gonna — it’s just gonna be better in the

end, because it’s gonna go back there again and they’re not gonna like it.

They’ve done that with other cases, and the Supreme Court gets angry

with Texas for doing that.”

88

Id. at *36.

89

McClain, 519 F.3d at 279.

90

553 U.S. 35 (2008).

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Panetti also demonstrates that he has thought about the death penalty and its

moral and political implications, corroborating the State’s experts’ determination

that he is capable of understanding the retributive connection between his crime

and his punishment. For example:

• On December 4, 2007, Panetti observes that “in the Old Testament God

says the greatest part of justice is mercy. And in the Old Testament when

it comes to the death penalty, you — you gotta have two or more

eyewitnesses. This is in the Old Testament law, and there were many

cities in refuge. Where if there’s any question of someone accidentally or

unknowing [sic] kills somebody, they can go to that city of refuge.”

• On the same date, Panetti reflects on the likelihood that the 2008 election

may lead to changes in capital punishment, observing that “it depends on

whoever gets the nomination,” that “from what I heard on the news today,

Hillary’s for the death penalty,” and that “[indecipherable] percentage is

against the death penalty.” When Panetti’s mother suggests that Hillary

“works for the Jewish people in her state” and that Jewish people “believe

eye for an eye, tooth for a tooth,” Panetti disagrees, urging that “[m]ost all

Jewish people, because of the Holocaust, are very much against the death

penalty.”

Finally, and most importantly, Panetti attributes his capital conviction to his

trial judge’s political corruption and the peoples’ desire for retribution,

corroborating the State’s experts’ conclusion that he actually understands the

reason for his punishment. Among other things, Panetti characterizes his

competency-to-stand-trial hearings as “kangaroo” courts, complains about his

trial judge’s “screwups” and involvement in “corrupt Texas politics,” and

suggests that he was convicted because “[the trial judge] had to have a hanging”

and “Fredricksburg had to have a hanging.” Not once does Panetti indicate that

the State is seeking his execution to prevent him from “preaching the Gospel,”

as his delusions allegedly cause him to believe.

For the first time in his reply brief, Panetti urges that the district court

erred in “placing game-changing weight” on the TDCJ’s secret recordings, citing

recent state- and district-level decisions for the proposition that Eighth

22

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Amendment competency determinations should rely on “probing questions by

experts in a structured competency examination.”91 But as one of the State’s

expert’s testified without contradiction below, “there is yet no reliable objective

[psychiatric] test to assess what one believes in the absence of demonstrated

understanding,” supporting the district court’s first-hand consideration of

Panetti’s conversations.92 More importantly, Panetti’s three experts spent some

fifteen hours asking him “probing questions” about his delusional belief system,

and the district court carefully considered their findings — as well as the State’s

experts’ conflicting accounts — in reaching its competency determination.93 The

mere fact that the court considered the TDCJ’s recordings in determining whose

experts to credit is not clear error, nor do the cases cited by Panetti suggest

otherwise. For example, in Billiot v. Epps,94 the district court relied in part on

the prisoner’s “appearance at [the competency] hearing,” which was “consistent

with [his expert’s] opinion that [his] condition will likely continue to worsen, and

[that] his prognosis is bleak.”95 Tellingly, Panetti himself relied on fact

testimony from his fellow death-row inmates to corroborate the testimony of his

experts at his second competency hearing.

IV.

The final issue for review is whether Panetti is entitled to relief from his

1995 conviction under the Supreme Court’s 2008 decision in Indiana v. Edwards,

91

Specifically, Panetti relies on Billiot v. Epps, 671 F. Supp. 2d 840 (S.D. Miss. 2009),

and Pennsylvania v. Banks, 29 A.3d 1129 (Pa. 2011).

92

Panetti, 2008 WL 2338498, at *26 (emphasis added).

93

See id. at *19–23.

94

671 F. Supp. 2d at 881–82.

95

Id. at 882.

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which clarified that a state court has discretion to “insist upon representation

by counsel for those competent enough to stand trial under Dusky but who still

suffer from severe mental illness.”96 The district court concluded that Panetti’s

Edwards claim was Teague-barred, or, in the alternative, failed on the merits.

For the first time on appeal, the State contends that Panetti’s claim is barred by

28 U.S.C. § 2244, also urging that the district court should have held the claim

procedurally defaulted. As we agree that Panetti’s Edwards claim is Teague-

barred, we do not reach the State’s alternative arguments.97

Under Teague v. Lane,98 a federal habeas court can apply a new rule of

constitutional law retroactively only if the rule (i) “places a class of private

conduct beyond the power of the State to proscribe” or (ii) is a “watershed rule[]

of criminal procedure implicating the fundamental fairness and accuracy of the

criminal proceeding.”99 Here, both parties agree that Edwards announced a

“new rule” of criminal procedure, and the only issue in dispute is whether this

rule falls within the second, “watershed” exception to Teague’s retroactivity bar.

The Supreme Court has instructed that a new rule qualifies for “watershed”

status only if it (i) “[is] necessary to prevent an impermissibly large risk of an

96

554 U.S. at 174–75.

97

Because Panetti’s Edwards claim fails under a de novo application of Teague’s

retroactivity bar, we need not and do not opine on the interaction between AEDPA and Teague.

Cf., e.g., United States v. Quiroga-Hernandez, 698 F.3d 227, 228 n.2 (5th Cir. 2012) (“Because

Hernandez’s argument fails even under de novo review, we need not decide whether the plain

error standard applies.”). At least one panel of this Court has held that Teague must be viewed

and applied through the deferential AEDPA lense. See Cockerham v. Cain, 283 F.3d 657 (5th

Cir. 2002) (holding that unless the Supreme Court has itself “clearly established” that a new

rule is retroactive under Teague, the new rule “c[an]not be considered with regard to [§

2254(d)] petitions”). However, other panels have applied Teague without reference to AEDPA.

See, e.g., Lave v. Dretke, 444 F.3d 333, 334–36 (5th Cir. 2006). The Supreme Court has

suggested that Teague requires a “threshold . . . analysis” that is “distinct” from AEDPA. Horn

v. Banks, 536 U.S. 266, 272 (2002).

98

489 U.S. 288 (1989).

99

Saffle v. Parks, 494 U.S. 484, 494–95 (1990) (quoting Teague, 489 U.S. at 311).

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No. 08-70015

inaccurate conviction” and (ii) “alter[s] our understanding of the bedrock

procedural elements essential to the fairness of a proceeding.”100 As the district

court observed, Edwards appears to satisfy the first element of this test: after

all, the Edwards Court itself cautioned that “insofar as a defendant’s lack of

capacity threatens an improper conviction or sentence, self-representation in

that exceptional context undercuts the most basic of the Constitution’s criminal

law objectives, providing a fair trial.”101

However, for a new procedural rule to amount to the sort of previously

unrecognized “bedrock” constitutional principle entitled to retroactive

application, it must effect a sea change in criminal procedure comparable to that

wrought by Gideon v. Wainwright,102 which afforded all felony defendants a right

to counsel at trial.103 The Supreme Court “ha[s] not hesitated to hold that less

sweeping and fundamental rules” do not qualify,104 emphasizing that the second

Teague exception is “extremely narrow” and that it is “unlikely” that new

procedural rules will emerge that fall within it.105 Though Edwards reflects an

important shift in the Supreme Court’s jurisprudence on a criminal defendant’s

Faretta right to self-representation,106 the change is hardly as “sweeping and

100

Whorton v. Bockting, 549 U.S. 406, 418 (2007) (citations omitted) (internal quotation

marks omitted).

101

Edwards, 554 U.S. at 176–77.

102

372 U.S. 335 (1963).

103

Whorton, 549 U.S. at 419.

104

Beard v. Banks, 542 U.S. 406, 418 (2004).

105

Whorton, 549 U.S. at 417–18.

106

The Court’s pre-Edwards decision in Godinez v. Moran suggested that the Faretta

right was absolute, even if invoked by a severely mentally ill criminal defendant. See 509 U.S.

389, 400 (1993) (“[A] criminal defendant’s ability to represent himself has no bearing upon his

competence to choose self-representation.”).

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fundamental” as that wrought by Gideon’s guarantee of counsel to all felony

defendants. As the Edwards Court noted, its new rule applies only in the

“exceptional” situation where a defendant is found competent to stand trial and

elects to appear pro se, but is so severely mentally ill that his self-representation

threatens an improper conviction or sentence.107 Even then, Edwards is

permissive, allowing the state to insist on counsel, but not requiring that the

state do so.108 It is thus difficult to characterize Edwards as “creating a bedrock

Constitutional right” or “altering our understanding of the bedrock procedural

elements essential to the fairness of the proceeding.”109 Ultimately, Edwards is

no more fundamental than the many other non-Gideon procedural rules that the

Supreme Court has refused to apply retroactively.110

Panetti tries to avoid the limited scope of the Edwards decision by

characterizing it as an extension of Gideon’s right to counsel. Citing to a string

of pre-Teague cases, Panetti observes that “the Supreme Court has found every

extension of the right to counsel . . . retroactively applicable to cases on collateral

review.” But even accepting Panetti’s premise that all Gideon-extension rules

should be entitled to watershed status, Edwards is better characterized as a

limitation on the Faretta right to self-representation — a characterization

Panetti himself repeatedly adopts in other portions of his briefing as well as his

filings below. Tellingly, the Edwards Court made no reference to Gideon or any

of the other cases bearing on a criminal defendant’s right to counsel, instead

107

Edwards, 554 U.S. at 176.

108

See id.

109

Whorton, 549 U.S. at 420–21 (emphasis added).

110

See id. at 418 (“[I]n the years since Teague, we have rejected every claim that a new

rule satisfied the requirements for watershed status.”).

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focusing entirely on distinguishing Faretta and progeny.111 We conclude that

Edwards is not retroactively applicable on collateral review.112

V.

For the foregoing reasons, we AFFIRM the district court’s denial of

Panetti’s second and third federal habeas petitions.

111

See Edwards, 554 U.S. at 169–80.

112

Teague’s retroactivity bar aside, it is far from clear that Panetti would be entitled

to relief on his Edwards claim — under the deferential AEDPA standard or otherwise.

Edwards is permissive, holding only that the Constitution does not forbid a state to demand

representation by counsel for defendants who, though competent to stand trial, suffer from

severe mental illness. Edwards, 554 U.S. at 167. The Edwards Court never expressly held

that due process is violated by a state trial court’s failure to demand counsel in such

circumstances, emphasizing that the decision to insist on counsel should generally be left to

the sound discretion of the trial judge. Id. at 177. As the Seventh Circuit recently observed

in rejecting an Edwards challenge functionally identical to Panetti’s on direct appeal, “to read

Edwards to require counsel in certain cases” would be “a dubious reading.” United States v.

Berry, 565 F.3d 385, 391 (7th Cir. 2009) (emphasis in original).

27