Perry Austin v. Lorie Davis, Director

Case: 13-70024 Document: 00514256173 Page: 1 Date Filed: 11/30/2017

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

No. 13-70024 FILED

November 30, 2017

Lyle W. Cayce

PERRY ALLEN AUSTIN, Clerk

Petitioner–Appellant,

v.

LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL

JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

Respondent–Appellee.

Appeal from the United States District Court

for the Southern District of Texas

Before OWEN, ELROD, and HAYNES, Circuit Judges.

PRISCILLA R. OWEN, Circuit Judge:

Perry Allen Austin was convicted of capital murder in Texas state court

and sentenced to death. The Texas Court of Criminal Appeals affirmed the

trial court’s judgment and subsequently dismissed Austin’s state habeas

petition as untimely. Austin filed a federal habeas petition. The federal

district court granted summary judgment for the State and denied a certificate

of appealability (COA). This court granted Austin a COA on fourteen of his

twenty-one grounds. We now affirm the district court’s judgment.

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I

We briefly recount the pertinent facts leading up to Austin’s trial for

capital murder, as outlined in a prior opinion:

In 1978, [Austin] raped one of his adolescent sisters at gunpoint

and attempted to rape another, before robbing a third, older sister and

his mother. . . . A jury convicted Austin of rape, attempted rape, and

aggravated robbery.

Following this conviction, Austin was released on parole in 1991

and began a sexual relationship with J.O., a fourteen-year-old female.

Through J.O., Austin met D.K., a nine-year-old male. D.K. disappeared

in August 1992. While investigating D.K.’s disappearance, police

discovered Austin’s relationship with J.O. and charges were brought

against Austin. He pled guilty to sexual assault of a child and received

a thirty-year sentence. In April 1993, D.K.’s remains were found.

Although there was physical evidence connecting Austin to D.K.’s

murder and Austin admitted that D.K. had been in his vehicle the day of

D.K.’s disappearance, police did not believe they had sufficient evidence

to prove Austin was responsible for D.K.’s murder.

Austin alleges that prison conditions caused his mental health to

deteriorate after he was incarcerated for sexually assaulting J.O. In

1995, he stabbed another prisoner and received an additional twenty-

year sentence. By this point, Austin was confined in administrative

segregation.

In September 2000, Austin wrote a letter to a Houston police

officer, stating that he would confess to D.K.’s murder if he would be

guaranteed the death penalty. [Austin stated if that was not guaranteed,

he would kill a prison guard as a way of guaranteeing himself the death

penalty.] 1 Austin was interviewed at the state prison and confessed

orally and in writing to slitting D.K.’s throat with a knife because Austin

was angry at D.K.’s brother for allegedly stealing drugs from Austin’s

car. Austin was indicted for capital murder on February 15, 2001. On

March 21, Mack Arnold was appointed to represent Austin. 2

1 14RR24.

2 Austin v. Davis, 647 F. App’x 477, 480 (5th Cir. 2016) (per curiam).

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Prior to his trial, Austin wrote a number of letters to the state trial court.

In his first letter, Austin explained that he “[did] not want, nor require an

attorney to represent [him]” and that he “[was] willing to face whatever

consequences due [him] for [his] heinous and deplorable acts.” 3 He also

indicated he would accept a death sentence and waive any appeals. 4 He stated

that he was “fully aware of [his] rights and [was] fully competent to stand

before you and make these decisions.” 5 Austin explained that he had not had

peace of mind since the murder, that his “mental stability [had] steadily

decreased,” and that he was using drugs again. 6

Several months later, Austin wrote to the state trial court requesting to

be released from administrative segregation or, alternatively, that his trial be

moved to an earlier date. 7 Austin reasoned that he had not had a disciplinary

incident since entering the county jail and that, even though he was charged

with capital murder, he suspected “others in population [had] similar

charges.” 8 He further stated that he “[could not] handle prolonged isolation”

because he “[has] a very bad problem with depression” and contemplates

suicide often when depressed. 9 Several weeks later, Austin again requested

an earlier trial date. 10 Austin explained to the state trial court: “No, I don’t

have a death wish, or at least you all can’t prove it . . . . I am fully competent

and definitely know the difference between right and wrong.” 11 In his last

3 CR at 5 (letter from Austin to the trial court file stamped May 15, 2001).

4 Id.

5 Id.

6 Id.

7 CR at 16 (letter from Austin to the trial court dated July 19, 2001); ROA.629.

8 CR at 16; ROA.629.

9 CR at 16.

10 CR at 18 (letter from Austin to the trial court dated Aug. 8, 2001).

11 Id.

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letter to the state trial court before the pretrial hearing to determine if Austin

could represent himself, Austin again requested to proceed pro se, noting he

was “fully aware of the consequences” and “aware that this is within [his]

right.” 12 He also stated that he did not wish to participate in jury selection and

that he would “not contest any juror the prosecution selects.” 13

Prior to trial, Austin’s counsel requested that the state trial court permit

and authorize payment for a psychological examination of Austin by Dr.

Jerome Brown, a clinical psychologist. 14 The trial court granted counsel’s

request, 15 although it appears that counsel did not immediately seek Dr.

Brown’s services. 16 The trial court held a conference in chambers six weeks

later and explained to Austin that it wanted a psychological evaluation

performed before it could decide whether Austin could proceed pro se. 17 The

trial court ordered Dr. Brown to evaluate Austin to determine his competency

to stand trial. 18 In his report, prepared after meeting with Austin, Dr. Brown

noted that Austin “had no trouble providing relevant and coherent background

information,” was able to describe the charges against him and the court

proceedings that had occurred, and could explain why he wanted to represent

himself. 19 Dr. Brown concluded that Austin was “alert, well-oriented, and able

to communicate his ideas without difficulty.” 20 Dr. Brown also noted that

12 CR at 20 (letter from Austin to the trial court dated Aug. 14, 2001).

13 Id.

14 CR at 12-13 (motion submitted May 30, 2001).

15 CR at 11 (granting motion on July 13, 2001).

16 2RR3 (trial court referring to a previous conference in chambers six weeks before in

which it noted that the evaluation had not yet occurred); Austin Br. at 15 (specifying that the

conference occurred on August 27, 2001).

17 2RR3-4.

18 CR at 24 (evaluation conducted on September 20, 2001).

19 CR at 24-25.

20 CR at 26.

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Austin displayed no “bizarre verbalizations,” hallucinations, or delusions

typically indicative of severe mental illness nor did he exhibit any indication

of disorganization, confusion, or other significant difficulties in

communication. 21 Although the report acknowledged Austin’s use of alcohol

and drugs in prison, it did not otherwise mention any past mental health

issues. 22 Dr. Brown concluded that Austin was competent to stand trial. 23

After the evaluation, the state trial court held a pretrial Faretta hearing

to consider Austin’s request to proceed pro se. Under Faretta v. California, a

criminal defendant has a right to self-representation. 24 To exercise that right,

a defendant must competently, knowingly, and intelligently waive his right to

counsel. 25 At the hearing, the trial court noted that it had read Austin’s letters

and spoken with Austin at a prior hearing. 26 The trial court also noted that it

was in possession of Dr. Brown’s report summarizing his evaluation of Austin’s

competency to stand trial. 27 The trial court asked Austin’s counsel his opinion

21 Id.

22 CR at 24-26.

23 CR at 26.

24 Faretta v. California, 422 U.S. 806 (1975).

25 Id. at 835 (“When an accused manages his own defense, he relinquishes, as a purely

factual matter, many of the traditional benefits associated with the right to counsel. For this

reason, in order to represent himself, the accused must ‘knowingly and intelligently’ forgo

those relinquished benefits. Although a defendant need not himself have the skill and

experience of a lawyer in order competently and intelligently to choose self-representation,

he should be made aware of the dangers and disadvantages of self-representation, so that the

record will establish that ‘he knows what he is doing and his choice is made with eyes open.’”)

(internal citations omitted); see also Weaver v. Massachusetts, 137 S. Ct. 1899, 1908 (2017)

(noting that a defendant’s “right to conduct his own defense . . . ‘usually increases the

likelihood of a trial outcome unfavorable to the defendant’” but recognizing that the “right is

based on the fundamental legal principle that a defendant must be allowed to make his own

choices about the proper way to protect his own liberty” and that improper denial of the right

constitutes structural error (quoting McKaskle v. Wiggins, 465 U.S. 168, 177 n.8 (1984))).

26 2RR3 (hearing held October 11, 2001).

27 2RR4.

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as to Austin’s competency. Counsel stated that, in his view, Austin was

competent to stand trial and, in fact, “it has been [his] opinion from the first

time [he] met him but out of an abundance of caution [he] requested the

psychiatric evaluation.” 28 The court then asked Austin a series of questions

pertaining to his understanding of the possible consequences of representing

himself and of the charges against him. Austin explained that he wanted

complete control over trial strategy, although he agreed to standby counsel

“[f]or legal advice only.” 29 The court also asked Austin four questions about his

mental health history. 30 Austin stated he had had no mental health issues. 31

The trial court issued findings, granted Austin’s request to proceed to trial pro

se, and appointed standby counsel. 32

After the Faretta hearing, but before trial began, Austin submitted an

affidavit to the state trial court, stating that he wished to have his court order

for access to the law library rescinded because he thought “it [was] not

necessary for [him] to attend additional [l]aw [l]ibrary sessions to research the

28 Id.

29 2RR13.

30 2RR6-7.

31 Id.

THE COURT: Have you ever been declared mentally incompetent?

AUSTIN: No, ma’am.

THE COURT: Have you ever been treated for any mental health disorder?

AUSTIN: No, ma’am.

...

THE COURT: Okay. Ever have any mental health problems while you were in

the Army?

AUSTIN: No, ma’am.

THE COURT: Ever seek any mental health counseling while you were in the

Army?

AUSTIN: No, ma’am.

32 2RR14-15; CR at 32-33.

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material needed to execute [his] defense.” 33 Austin later sent the trial court

another letter requesting “all the evidence the prosecutor had against” him. 34

He also asked the state trial court about obtaining proper clothing for trial,

and stated that he would like Arnold removed as his advisor because Arnold

did not answer Austin’s letters and because Austin “[did] not need him.” 35 In

another letter to the state trial court before trial, Austin noted that he was “out

of seg now so [was] no longer suffering bouts of depression” and that he was

“still firm about [his] decision to not fight this case.” 36 He also stated that he

“decided that it is not necessary for [him] to review [his] case file . . . [s]ince [he

was] not going to put up any type of defense.” 37

Austin did not participate in jury selection. 38 The trial court admonished

prospective jurors during voir dire that if selected, each would be required to

“render a verdict based on the law . . . not your personal opinion.” 39 Under

Texas law, juries on capital cases must decide two special issues in the

sentencing phase: (1) “whether there is a probability that the defendant would

commit criminal acts of violence that would constitute a continuing threat to

society,” and if so, (2) “[w]hether, taking into consideration all of the

evidence . . . there is a sufficient mitigating circumstance or circumstances to

warrant that a sentence of life imprisonment without parole rather than a

33 CR at 36 (affidavit sworn on Dec. 5, 2001).

34 CR at 60 (letter from Austin to the trial court dated Dec. 30, 2001).

35 CR at 60-61. A handwritten note on the letter, which appears to be mistakenly

dated January 25, 2001 instead of January 25, 2002, suggests that Austin later stated at a

hearing in open court that he would accept Arnold as standby counsel at trial.

36 CR at 58 (letter from Austin to the trial court dated Feb. 19, 2002).

37 Id.

38 See generally vol. 3-8 of Reporter’s Records (voir dire beginning Mar. 18, 2002).

39 3RR4.

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death sentence be imposed.” 40 Each juror answered, under oath, that he or she

could impartially decide whether Austin should be sentenced to life

imprisonment or death. 41 When empaneled, the jurors swore they would

render a verdict according to the law and evidence. 42

Austin pleaded guilty to capital murder. 43 Before accepting Austin’s

plea, the trial court questioned Austin about his understanding of the charges

against him and the possible penalties. 44 The court also probed whether

Austin’s plea was voluntary. 45 Austin stated he understood and was entering

his plea voluntarily. 46 The court accepted the plea. 47 After the jury was sworn

and admonished by the state trial court, the State presented the indictment

and Austin entered his guilty plea before the jury. 48 The punishment phase of

the trial then proceeded. 49

During the punishment phase, the State provided additional details

regarding the offense, including that D.K was nine years old when he was

killed. 50 It also introduced the letter Sergeant Allen received from Austin in

40 TEX. CODE CRIM. PROC. ANN. art. 37.071, § 2(b)(1), (e)(1) (West Supp. 2002).

41 E.g., 4RR18-19 (juror Erwin’s assurance that he could answer the special issues so

as to produce a life or death sentence); 5RR4-5 (juror Condon’s assurance that he could

answer the special issues so as to produce a life or death sentence); 5RR32, 44 (juror Gibbs’s

assurance that he could answer the special issues so as to produce a life or death sentence,

and would follow the law); 5RR48 (juror Tamayo’s assurance that he could answer the special

issues so as to produce a life or death sentence); 5RR67-68 (juror Finnegan’s assurance that

he could answer the special issues so as to produce a life or death sentence).

42 9RR7.

43 9RR4.

44 9RR4-7.

45 9RR4-5.

46 Id.

47 9RR6.

48 9RR7-15.

49 9RR16.

50 9RR17.

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January 2001, in which Austin stated that he would confess to the murder of

D.K. if guaranteed the death penalty and, if that was not guaranteed, he would

kill a prison guard to ensure he received the death penalty. 51 The tapes of

Austin’s two interviews with Sergeant Allen—the first taking place

immediately after Sergeant Allen received Austin’s letter in 2001 and the

second occurring before Austin’s trial in 2002—were played to the jury. 52 In

the first interview, Sergeant Allen made clear that he could not promise or

guarantee Austin anything in exchange for confessing to D.K.’s murder. 53

Austin then described how he committed the crime. 54 When Sergeant Allen

asked Austin why he decided to confess, Austin replied, “I’m tryin[g] to clean

myself up . . . . You know and studying the Bible, I’m not saying I’m a

Christian, I’m not saying I’m getting religious you know. . . . I need to clear all

this up.” 55

In the second interview a year later, Austin again admitted to killing

D.K., described why and how he committed the crime, and stated he confessed

“[b]ecause [he] did it.” 56 When Sergeant Allen further inquired why Austin

came forward in 2001, Austin answered, “Depression I guess.” 57 Austin stated:

I couldn’t stop dreaming about it, I couldn’t stop seeing pictures of

it. So I just kept doing drugs[,] getting in trouble with doing drugs.

I had to stay high every day or else I would have to think about it.

And it really comes up mostly when I’m locked up in seg in solitary,

you know. Cause in seg and solitary I can’t do no drugs[.] I just

51 10RR25.

52 10RR28, 34-35.

53 Pet. Ex. 34 at 000005.

54 Id. at 000005-000016.

55 Id. at 000020.

56 ROA.840-45.

57 ROA.852 (typed transcript of Feb. 21, 2002 interview with Austin contained in the

federal district court’s record on appeal).

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got tired, the drugs weren’t doing nothing really, they weren’t

helping. . . . I had written the letter a really long time before[,] I

think I was depressed when I wrote that letter for at least ten

years. . . . It used to [not] bother me, anything I did, it never

bothered me but ever since this thing happened to him I’d be

watching TV and I’d be thinking and I would just start crying[,]

stuff like that. 58

Austin explained that he had “been going to counseling and psychiatrists since

[he] was a kid,” that he “had behavioral problems,” “was always in trouble at

school,” and “was emotionally disturbed.” 59 He stated that he “just want[ed]

to get this over with and close it up,” and that “[t]he only reason [he hadn’t]

killed [himself] is because” he “actually believe[s] there is a hell.” 60 He

explained: “Put it this way[,] I’m not killing myself, I’m just not putting on a

defense. I regret something I did, I’m gonna pay for it[,] I’m not gonna make

no excuses for nothing.” 61

Austin for the most part refrained from questioning witnesses and

presenting evidence during the punishment phase. 62 He did not testify. 63 He

briefly cross-examined an F.B.I. agent about Austin’s relationship with J.O.,

specifically asking whether J.O.’s mother informed the agent that Austin used

to date her before dating J.O. and whether J.O.’s mother told the agent that

J.O. looked old enough to drink in bars. 64 Austin made a closing statement,

58 Id.

59 ROA.853.

60 Id.

61 Id.

62 See generally Reporter’s Record vols. 9-11.

63 10RR78.

64 9RR125-26.

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telling the jury he was violent, mean, and sometimes thought he had no

conscience. 65 He also stated:

I’ve been like this all my life, and I doubt if I’ll change. What I

wanted to say was they think I have a death wish. Well, that’s not

true. One of the reasons why I went ahead and confessed [to killing

D.K.] was it was bothering me, what I did. Regardless of what

everybody thinks, it does. I’ve never killed anybody before.

And, . . . I also knew that my acts of violence would not stop even

though I was in prison. 66

He referred to an incident in prison in which he had “come real close to killing

a [prison] guard” and that “[t]he only reason” he did not was that someone else

stopped him. 67 He explained that “one of these days” there would not be

someone to stop him, and he would “end up killing again.” 68 Austin contested

at closing the State’s contention that he was a pedophile, asserting that J.O.

looked older than she was. 69 He stated he was homosexual and described his

sexual preferences. 70 Austin concluded his closing, telling the jury:

On these special issues, there’s no doubt that you will answer yes

to No. 1 because if you send me to prison, I will commit further acts

of violence. . . . Jail is a violent place, especially for somebody like

me. I’m a homosexual. So, yes, I will commit further acts of

violence in prison. Special Issue No. 2, there was no mitigating

circumstances that contributed to killing [D.K.]. And fear, anger

or whatever can never be considered anywhere near a reason for

killing. So I suspect, you know, y’all, by law, have to answer that

number as no. 71

65 11RR15.

66 11RR15-16.

67 11RR16.

68 Id.

69 11RR16-17, 19.

70 11RR18.

71 11RR19-20.

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The jury answered Texas’s special issues such that the trial court imposed a

death sentence. 72

The state trial court held a second Faretta hearing in which Austin

waived his right to both appellate counsel and state habeas counsel. 73 The

court noted it had previously determined before trial that Austin was

competent and it appointed standby appellate counsel. 74 Pursuant to Texas

law, Austin’s case was automatically appealed to the Texas Court of Criminal

Appeals (TCCA). 75 Austin filed no brief. The TCCA affirmed his conviction,

noting that Austin had chosen to represent himself at trial and on appeal and

that the “trial court [had] fully admonished [him] of the dangers and

disadvantages of self-representation prior to trial and prior to this appeal.” 76

The TCCA stated it had, in the interests of justice, reviewed the entire record

and found no unassigned fundamental error. 77

Austin waived any pursuit of post-conviction relief and the trial court set

Austin’s execution date. 78 Six days before his scheduled execution, Austin

moved to have state habeas counsel appointed. 79 The trial court withdrew the

execution date and appointed Dick Wheelan as habeas counsel on September

24, 2003. 80

72 11RR31; CR at 78-79.

73 12RR3, 8; CR at 84-85.

74 CR at 86; ROA.22; ROA.595.

75 See TEX. CODE CRIM. PROC. ANN. art. 37.071, § 2(h) (West Supp. 2002).

76 See Austin v. State, No. 74372, 2003 WL 1799020 (Tex. Crim. App. Apr. 2, 2003).

77 Id.; Ex Parte Austin, No. 870377, Findings of Fact, Conclusion/Recommendation and

Order, at 2 (June 29, 2004).

78 ROA.23; ROA.595-96.

79 ROA.596.

80 Id.

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Texas Code of Criminal Procedure, art. 11.071, § 4(a) provides that an

application for a writ of habeas corpus “must be filed in the convicting court

not later than the 180th day after the date the convicting court appoints

counsel . . . or not later than the 45th day after the date the state’s original

brief is filed on direct appeal with the court of criminal appeals, whichever date

is later.” 81 Wheelan determined that March 22, 2004 was the filing deadline

for Austin’s application for a writ of habeas corpus, counting 180 days from the

date of his appointment. 82 Pursuant to Texas Code of Criminal Procedure, art.

11.071, § 4(b), Wheelan later requested a 90-day extension of time. 83 The state

trial court granted his request. 84 On April 8, 2004, Wheelan filed with the

TCCA a motion for leave to file a skeletal application for a writ of habeas corpus

with leave to file an amended original petition by June 20, 2004. 85 The TCCA

issued an order dismissing Wheelan’s scheduling motion, holding that § 4(a)

“should be interpreted” such that “‘the date the convicting court appoints

counsel’ . . . shall mean the day the applicant waived counsel and chose to

represent himself on habeas” and “‘the date the state’s original brief is filed on

direct appeal’ . . . shall mean the day the State waived its right to file a brief

81 TEX. CODE CRIM. PROC. ANN. art. 11.071, § 4(a) (West 1999).

82 Pet.’s Mtn. to Extend Time, Ex Parte Austin, No. 870377-A at *1-2 (Mar. 15, 2004);

ROA.596.

83 ROA.596; TEX. CODE CRIM. PROC. ANN. art 11.071, § 4(b) (West 1999) (“The

convicting court, before the filing date that is applicable to the applicant under Subsection

(a), may for good cause shown and after notice and an opportunity to be heard by the attorney

representing the state grant one 90-day extension that begins on the filing date applicable to

the defendant under Subsection (a).”).

84 Ex Parte Austin, No. 870377, Findings of Fact, Conclusion/Recommendation and

Order, at 3 (June 29, 2004).

85 ROA.596.

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on appeal.” 86 The TCCA subsequently denied Austin’s motion for leave to file

an untimely application for a writ of habeas corpus. 87

Austin filed a federal habeas petition. 88 The State moved to dismiss the

petition contending that Austin’s claims were procedurally defaulted in light

of the TCCA’s denial of his state petition as untimely. 89 The district court

denied the State’s motion. 90 In its answer, the State argued Austin had

insufficiently briefed a number of his claims. 91 Austin then filed a first

amended petition. 92 The district court granted a stay to permit Austin to

exhaust in state court new claims based on legislative changes to Texas’s death

penalty scheme. 93 After Austin exhausted those claims, 94 he filed a second

amended federal habeas petition. 95 The State filed an answer. 96 Austin then

moved for funds for expert assistance in assessing his mental health and

competency, which the district court authorized. 97 Austin subsequently filed a

86 Ex Parte Austin, No. 74372, slip op. at 3 (Tex. Crim. App. May 26, 2004) (not

designated for publication).

87 Id. at 4.

88 ROA.20 (Austin’s state habeas petition and his federal habeas petition are the same,

according to the parties and the district court).

89 ROA.155, 597-98; Ex Parte Austin, No. 59527-01, slip op. at 2 (Tex. Crim. App. July

6, 2004) (per curiam) (not designated for publication).

90 ROA.598.

91 Id.

92 Id.

93 ROA.1390; ROA.1465.

94 Ex Parte Austin, No. 59527-02 (Tex. Crim. App. Apr. 5, 2006) (per curiam) (not

designated for publication).

95 ROA.5 (district court docket entry #38, not included in record on appeal but on file).

This court denied a COA on Austin’s Eight Amendment claims added in this second amended

petition. The second amended petition is otherwise the same as the first amended petition.

96 ROA.1687.

97 ROA.1838; ROA.3488 (sealed).

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response to the State’s answer and a motion for an evidentiary hearing,

supported by affidavits from mental health experts. 98

In his petition, Austin outlined his history of mental illness, including

suicide attempts in 1975 and 1979, as evidence that he was incompetent to

stand trial, plead guilty, and waive counsel. 99 We recount the evidence

pertinent to Austin’s claims. After his suicide attempt in 1975, he was

hospitalized and diagnosed with adolescent adjustment reaction in a mixed

personality. 100 Austin subsequently joined the army but was discharged in

1977 for “failure to adapt socially and emotionally.” 101 Following the

aggravated rape of his sister and attempted aggravated rape of another of his

sisters, as well as the aggravated robbery of a third sister and his mother in

1978, 102 Austin was evaluated by a psychologist, Dr. Franklin Lewis, before

the trial occurred on those charges. 103 Dr. Lewis diagnosed Austin with severe

personality disturbance with schizoid thinking and anti-social features as well

as latent borderline schizophrenia. 104 He concluded that Austin was, at the

time, suffering from a mental illness. 105 Austin pleaded not guilty due to

insanity. 106 At trial, Dr. Lewis testified that there were indications that Austin

had brain dysfunction or brain damage, although further testing would be

required to make a determination. 107 Austin again attempted suicide in 1979

98 ROA.1930; ROA.2126.

99 See Second Amended Pet. at 13; ROA.607; ROA.610.

100 Second Amended Pet. at 14; ROA.607 (same assertion in first amended petition).

101 Second Amended Pet. at 15.

102 Pet. Ex. 3 at 005306, 005333; Pet. Ex. 5 at 001682.

103 Pet. Ex. 28 at 002842-000043.

104 Second Amended Pet. at 17; Pet. Ex. 28 at 002843.

105 Second Amended Pet. at 17; Pet. Ex. 28 at 002843; Pet. Ex. 17 at 003675 (testifying

at trial that Austin was “experiencing a mental illness” at the time of the assault).

106 Pet. Ex. 5 at 001699; Pet. Ex. 28 at 002831.

107 Second Amended Pet. at 17; Pet. Ex. 17 at 003674.

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while awaiting trial. 108 After he was convicted, he wrote to the trial judge

requesting that he be placed at a state hospital to “get help for [his] problem,”

rather than sent to the Texas Department of Corrections (TDC). 109 Although

the trial judge forwarded Austin’s letter to the Diagnostic Unit of the TDC, 110

Austin remained with the TDC for the duration of his sentence. 111 A number

of physical and psychological evaluations of Austin were conducted during this

time period. 112 There is some evidence that Austin did not wish to receive

mental health counseling and was not cooperative while in the TDC or the

Harris County Sheriff’s Office. 113

108 Second Amended Pet. at 17; Pet. Ex. 28 at 002831.

109 Second Amended Pet. at 17-18; Pet. Ex. 5 at 001699-001701 (“I [] did not [plead

insanity] just to get out of going to T.D.C. I did it because I want help and I need help. . . . I

know there[’]s something wrong with me and I don’t think prison[’]s going to go help me any.

I want to go to Rusk to get help for my problem. . . . All I’m asking is that you send me to

Rusk until the doctors solve me of my problem then go ahead and send me to T.D.C. for life

if you want to.”).

110 Pet. Ex. 5 at 001697.

111 Second Amended Pet. at 18.

112 E.g., Pet. Ex. 28 at 002803 (TDC clinic notes 11/7/83; noting “probable nervous

condition”), 002827 (mental health services notes 1/26/84; “has a history of antisocial

behavior, substance abuse and sexual sadism coupled with self-mutilation”), 002825 (TDC

clinic notes 5/6/86; referring him to psychiatric personnel), 002824 (clinic notes 2/3/88;

“patient had good eye contract, oriented to time, person, and place and communicated

effectively”); 002822 (clinic notes 12/18/89; “will refer to unit psychologist due to past . . . had

not been seen since 8/10/88, had past suicide attempts”).

113 Pet. Ex. 15 at 004059 (Harris County Sheriff’s Office Medical Services Division

notes, 4/8/02; “Consumer states that he does not plan to seek counseling in TDC because only

group therapy is offered and he does not want to discuss his problems in a group. He states

that he feels that individual counseling has helped him.”); 004071 (Pre-trial/screening intake

notes, 2/25/02; explaining that although Austin met with a psychologist in the Wynne Unit

in 1979 he “just saw [the psychologist] a couple of times but wouldn’t cooperate;” also noted

Austin would not cooperate with counseling in 1976); 004083 (Harris County Sheriff’s Office

Medical Services Division notes 1/24/02; Austin “strongly expressed that he did not want any

services from MHMRA”); 004085 (Harris County Sheriff’s Office Medical Services Division

notes 10/18/01; Austin “states that he has no interest in obtaining psychiatric assistance”);

004094-99 (uncooperative); see also Docket Entry #47, Letter from Austin to the Fifth Circuit,

received Sept. 17, 2014 (“I chose to abstain from medication and counseling . . . .”).

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Austin also asserted that the conditions of his confinement in the Texas

prison system were “psychologically aversive” 114 and that he received no

effective mental health treatment while incarcerated. 115 After Austin returned

to the TDC to serve a thirty-year sentence for sexual assault of a child in

1992, 116 he stabbed another prisoner 117 and was placed in administrative

segregation from 1995 until 1998. He asserts that the conditions of his

confinement during this period, which he alleges included “unlawful violence

by staff, sub-standard physical conditions and food, unlawful denial of exercise

and educational materials, and prolonged periods of isolation,” caused his

mental health to deteriorate further. 118 Upon release from administrative

segregation, Austin was placed in a “safekeeping” unit because he identified as

a homosexual. 119 Austin contends that the conditions of safekeeping also

negatively affected his mental health. 120 In 2001, he was again placed in

administrative segregation after assaulting a prison guard. 121 A week later,

Austin sent the letter to Sergeant Allen confessing to D.K.’s murder. 122 He

contends that when he confessed, he was “[u]nder the influence of his mental

illness and the severely depressive effects of his conditions of confinement.” 123

In support of his contentions in the federal habeas proceeding before the

district court, Austin attached to his habeas petition the 2004 reports of a

114 Austin Br. at 10.

115 ROA.612-13.

116 14RR110.

117 14RR113 (judgment and sentence of additional twenty years on plea of guilty for

aggravated assault with a deadly weapon).

118 Austin Br. at 11; accord Second Amended Pet. at 28.

119 Second Amended Pet. at 31; Pet. Ex. 36 at 001487.

120 Second Amended Pet. at 31-32.

121 Id. at 32; Pet. Ex. 26 at 003259 (offense report).

122 14RR24.

123 Second Amended Pet. at 32.

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neuropsychologist, Dr. McGarrahan, 124 and a neuropsychiatrist, Dr. Woods,

both retained as part of his post-conviction investigation. He also submitted,

in his motion for an evidentiary hearing, affidavits prepared by Dr.

McGarrahan and Dr. Woods in 2012. 125 In her 2004 report, prepared after

reviewing Austin’s records and meeting with him, Dr. McGarrahan noted that

Austin “endorsed continual suicidal ideation with a plan to cut his wrists with

a razor blade” but “ha[d] no intent at [the] time because he ha[d] ‘something to

live for.’” 126 She opined that Austin’s “overall pattern of cognitive performance

suggests dysfunction of pre-frontal systems.” 127 Dr. McGarrahan described

Austin’s thought processes as “goal-directed,” but noticed “he evidenced brief

delays in responding to questions and he occasionally lost his train of

thought.” 128 She noted that Austin “denied experiencing any auditory

hallucinations and there was no indication of a fixed delusional system.” 129 In

Dr. McGarrahan’s opinion, “[p]sychological testing revealed significant

depression, history of problems with drugs, suicidality, history of physical

aggression, antisocial behaviors, anxiety related to a traumatic event, identity

problems and potential for self-harm.” 130 She diagnosed Austin with a major

depressive disorder, a cognitive disorder not otherwise specified, a

polysubstance disorder, an anxiety disorder, and a personality disorder. 131

124 Dr. McGarrahan used her maiden name, Cicerello, in 2004.

125 Austin Br. at 26; ROA.2145-56; ROA.2161-80.

126 Pet. Ex. 93 at 007775.

127 Id. at 007778.

128 Id. at 007775.

129 Id.

130 Id. at 007778.

131 Id.at 007779.

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In his 2004 affidavit, Dr. Woods described Austin’s suicidal ideation and

suicidal behaviors and concluded that Austin’s desire to not have a trial and to

plead guilty were evidence he was not acting rationally. 132 Dr. Woods

explained that “Austin certainly understood the factual issues of his trial,”

“[h]e knew what he was being charged with,” and he “understood the potential

consequences of his false confession.” 133 In Dr. Woods’ opinion, Austin “was

capable of managing impressions and sought to minimize the appearance of

any mental illness to ensure that his planned death could proceed.” 134

Nonetheless, Dr. Woods concluded:

[Austin was not able to rationally assist in the preparation of his

defense] given his steadfast desire to die by the hands of the state.

This suicidal ideation, based upon his mental disease and

reinforced by his cognitively derived inability to effectively weigh

and deliberate decisions at the time of their presentation rendered

Mr. Austin incompetent to rationally weigh and deliberate his

legal decisions. 135

Dr. Woods also concurred in Dr. McGarrahan’s diagnosis that Austin suffered

from frontal lobe dysfunction. 136 In Dr. Woods’ opinion, Austin’s “pre-existing

and serious mental illness” was the “operating cause in his decision to kill

himself.” 137

Austin also attached to his habeas petition an affidavit from Dr. Brown

prepared in 2007 after Dr. Brown had reviewed Dr. McGarrahan’s 2004

132 Pet. Ex. 95 at 8-9.

133 Id. at 11.

134 Id.

135 Id.

136 Id. at 15.

137 Id. at 16.

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report. 138 Dr. Brown noted that information “relevant and significant” to his

2001 competency evaluation of Austin was withheld by Austin “which might

have provided information critical to the determination of his competency to

stand trial.” 139 Dr. Brown concluded that it was “possible” that Austin’s

judgment was “significantly impaired by his mental difficulties” such that Dr.

Brown’s determination as to competency was incorrect in 2001. 140 The State

included in its answer to Austin’s habeas petition another affidavit from Dr.

Brown obtained in 2008. 141 In that affidavit, Dr. Brown explained that, at the

time of his 2007 affidavit, Austin had not provided him with the medical

information previously withheld. 142 Having reviewed the information not

available at the time of his original evaluation of Austin in 2001, Dr. Brown

concluded “there [was] nothing . . . that would justify changing my opinion,

that would indicate that Mr. Austin’s opportunity for a fair and impartial

evaluation had been compromised because of what he withheld, or that

additional evaluation, including more psychological testing or psychiatric

interviewing, would have made any difference.” 143

Dr. Woods and Dr. McGarrahan also submitted affidavits prepared in

2012. Dr. McGarrahan concluded that Austin “has a chronic issue with

suicidal depression and that his suicidal depression appears to have been

present at the time of his trial and competency evaluation . . . and likely

impaired his ability to reason and make sound judgments.” 144 Dr. Woods

138 Pet. Ex. 96.

139 Id.

140 Id.

141 ROA.1710; ROA.1806-08.

142 ROA.1806.

143 ROA.1806-07.

144 ROA.2150.

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opined that Austin’s jail records demonstrated he “was suffering from

depression, suicidality, frequent crying spells, nightmares, racing thoughts,

confusion, reduced sleep, irritability, and poor concentration.” 145 Dr. Woods

concluded that “Austin’s decision to pursue the death penalty was a direct

result of contemporaneous depression and active suicidality” and that the

decisions he made throughout trial and on appeal were thus irrational and

involuntary. 146

The district court granted summary judgment to the State and denied

Austin’s request for an evidentiary hearing. 147 Although the district court held

that the TCCA applied a new rule that could not be the basis of a procedural

default, it concluded that Austin’s claims were nevertheless foreclosed and

denied a COA. 148

While Austin’s application for a COA was pending, Austin wrote a letter

to this court indicating he desired to withdraw his appeal. He stated:

I wish to drop my appeals but can’t seem to get any type of response

nor cooperation. I have informed my attorney of my wishes and

according to him, to drop my appeals m[a]y actually prolong the

date of my execution because the courts would then request a

competency hearing. If there is any way I could waive the

compentency [sic] hearing I would gladly do it. I was given a

competency hearing just before my trial, and another just after,

but before my direct appeals by the trial court. I was found

competent in both of those instances and see no reason for another

one.

145 ROA.2174.

146 ROA.2177.

147 Austin v. Thaler, 2012 WL 12537415 at *15 (S.D. Tex. Aug. 21, 2012); ROA.2767

(granting summary judgment and denying relief); ROA.2747 (denying motion for evidentiary

hearing).

148 Austin v. Thaler, 2012 WL 12537415 at *6, *15 (S.D. Tex. Aug. 21, 2012).

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I have just recently completed the beginners[’] course of the

Blackstone Paralegal Institute with a[n] overall score of 99.51%.

This is hardly a sign of incompetence. My TDCJ IQ score was 123

and my TDCJ EA Score was 12.9. Again, this is hardly a sign of

incompetence. I do have a history of mental health issues, but

nothing that can't be treated satisfactorily with medication and

counseling. I chose to abstain from medication and counseling

though and so see no reason why my mental health should keep

me from dropping my appeals. Also, I recently read a court case in

which your court ruled that a person could be mentally ill, but still

be competent to be executed because that person was competent

during their trial. In that case, that should also be the case in my

case/appeals. 149

We requested that the State and Austin’s counsel respond to Austin’s request

to withdraw his appeals. Austin’s counsel stated that Austin continues to

suffer from serious mental illness and that nothing in Austin’s letter

“cause[d] . . . counsel to [abandon] the legal and factual propositions” advanced

in the habeas petition and the COA. 150 Austin’s counsel subsequently filed a

motion for expedited consideration of the COA. 151 We noted that this motion

conflicted with Austin’s request to withdraw and we remanded to the district

court “for the limited purpose of making findings as to whether Austin [was]

presently competent to waive further appeals of his conviction and death

sentence, and if Austin [was] found to be competent, whether such waiver is

knowing and voluntary.” 152 We subsequently received a letter from Austin,

149 Docket Entry # 47 (letter from Austin to the Fifth Circuit received Sept. 17, 2014).

150 Docket Entry # 53 (filed Oct. 9, 2014).

151 Docket Entry # 62 (filed Nov. 14, 2014).

152 Austin v. Stephens, 596 F. App’x 277, 278 (5th Cir. 2015) (per curiam).

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written prior to the remand, stating that he wished us to either deny his

request for a COA or grant his motion to withdraw his appeal. 153

Before the district court held a competency hearing in accordance with

the remand, Austin moved to withdraw his pro se request to withdraw his

appeal. 154 In May 2015, Austin filed a pro se letter with this court again stating

he did not feel another competency evaluation was necessary and renewing his

request for an expedited review and denial of his appeals. 155 Austin explained:

“We all know that I am guilty and that all the previous psychological

evaluations I received that found me to be mentally unstable was in error

because of my deception.” 156 Austin stated he had taken psychology classes

and was knowledgeable about manipulating others. 157 Shortly thereafter,

Austin sent this court another letter stating that he no longer wished to have

legal representation, that a competency hearing was not necessary because he

had already had two, and that he would not answer questions in the event a

competency evaluation was ordered. 158 In July 2015, Austin wrote to the court

reiterating his request that the court deny his COA. 159 He requested that he

be permitted to proceed pro se. 160 He again stated he would not answer

questions in any court-ordered competency evaluation and that “[a] Faretta

hearing [was] also not necessary as [he had] already had two of them, once

153 Docket Entry # 73 (letter from Austin to the Fifth Circuit written January 6, 2015

and received January 12, 2015).

154 Docket Entry # 75 (motion from Austin’s counsel and letter from Austin).

155 Docket Entry # 82 (letter from Austin to the Fifth Circuit dated May 10, 2015).

156 Id.

157 Id.

158 Docket Entry # 84 (letter from Austin to the Fifth Circuit dated May 20, 2015).

159 Docket Entry # 91 (letter from Austin to the Fifth Circuit dated July 26, 2015).

160 Id.

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when [he] chose to represent [himself] during [his] trial and again when [he]

chose to represent [himself] during [his] direct appeal.” 161 Austin explained:

If any are wondering what my motives are for all of this, it’s quite

simple. I wish to be executed. Either that, or give me Life Without

Parole. One or the other. . . . I do not want out of prison. I am

probably one of the very few guys in prison who readily admit that

I belong in prison. . . . When I was first bench warranted back to

the county jail in 2001 I was asked what was it I wanted. I asked

if I could be guaranteed a Life sentence without ever being brought

up for parole. When I was told that couldn’t be guaranteed, I chose

death. If you looked at the trial transcript and everything else you

can see that at no point did I contest the state. I only picked up

my appeals because in a moment of weakness I allowed a woman

to convince me to pick them up. That woman is no longer a factor

in my life. 162

In November, 2015, Austin sent another letter to this court requesting

denial of his appeal. 163 He restated that he had taken psychology classes, was

“good [at] manipulation,” and had deceived mental health experts

previously. 164 This court subsequently granted in part and denied in part

Austin’s COA. 165 In November 2016, Austin again wrote to the court

requesting a denial of his appeal. 166 In reference to the claims raised

concerning his mental health issues, Austin stated he “[could] guarantee this

court that I am now, and always have been fully competent.” 167 He again

suggested he had previously deceived mental health experts and manipulated

161 Id.

162 Id.

163 Docket Entry # 97 (letter from Austin to the Fifth Circuit filed Nov. 20, 2015).

164 Id.

165 Austin v. Davis, 647 F. App’x 477 (5th Cir. 2016) (per curiam).

166 Docket Entry # 145 (letter from Austin to the Fifth Circuit dated Nov. 27, 2016).

167 Id.

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a polygraph test. 168 He also explained that he had refused visits from his

attorney because the visits often required him to miss meals. 169 In this letter,

he stated he would cooperate with a mental health evaluation but only if it was

conducted at the prison because he did not want to be bench warranted back

to the county. 170

II

“In a federal habeas corpus appeal, we review the district court’s findings

of fact for clear error and its conclusions of law de novo.” 171 Our review of this

federal habeas petition is governed by the applicable provisions of the Anti-

Terrorism and Effective Death Penalty Act of 1996 (AEDPA). 172 Under

AEDPA, if a claim was adjudicated on the merits by a state court, § 2254(d)

provides that a federal court cannot issue a writ of habeas corpus unless the

state court’s decision was “contrary to, or involved an unreasonable application

of, clearly established Federal law, as determined by the Supreme Court of the

United States,” or “was based on an unreasonable determination of the facts

in light of the evidence presented in the State court proceeding.” 173 Under

§ 2254(e)(1), “a determination of a factual issue made by a State court shall be

presumed to be correct” and “[t]he applicant shall have the burden of rebutting

the presumption of correctness by clear and convincing evidence.” 174

168 Id.

169 Id.

170 Id.

171 Graves v. Dretke, 442 F.3d 334, 339 (5th Cir. 2006) (citing Valdez v. Cockrell, 274

F.3d 941, 946 (5th Cir. 2001)).

172 28 U.S.C. § 2254.

173 28 U.S.C. § 2254(d).

174 28 U.S.C. § 2254(e)(1).

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Austin did not file a brief on direct appeal; no federal claims challenging

his conviction were presented to the TCCA in its automatic review of his

conviction and sentence. The federal claims presented in his state habeas

petition were rejected by the TCCA on procedural grounds. Accordingly, there

has been no adjudication on the merits of Austin’s habeas claims to which this

court can apply § 2254(d) deference. 175 We consider the standard of review

applicable to each of Austin’s claims in our analysis of them.

III

We first address whether Austin’s claims are procedurally defaulted.

The TCCA held that Austin’s application for habeas relief was untimely under

Texas Code of Criminal Procedure, art. 11.071, § 4(a), which sets the filing

deadlines for Texas state habeas petitions. 176 The TCCA reasoned that § 4(a)

should be interpreted to require filing no later than 180 days after Austin

waived habeas counsel or 45 days after the State waived its right to file a brief

on appeal. 177 The district court concluded that the procedural rule had not

been clearly announced nor regularly followed because the TCCA had never

before interpreted the statute in such a way. 178 Accordingly, it determined that

the rule could not be the basis for a procedural default. 179 We agree. We also

175 Cf. Gonzalez v. Crosby, 545 U.S. 524, 530 (2005) (relying on § 2254(d) to define

“claim” for purposes of § 2244(b) and stating that both statutes together “make clear that a

‘claim’ as used in § 2244(b) is an asserted federal basis for relief from a state court’s judgment

of conviction”); Lambert v. Blodgett, 393 F.3d 943, 969 (9th Cir. 2004) (“[W]e hold that a state

has ‘adjudicated’ a petitioner’s constitutional claim ‘on the merits’ for the purposes of

§ 2254(d) when it has decided the petitioner’s right to post conviction relief on the basis of

the substance of the constitutional claim advanced . . . .”).

176 See Ex Parte Austin, No. 74372, slip op. at 2-4 (Tex. Crim. App. May 26, 2004) (not

designated for publication).

177 Id.

178 ROA.2777.

179 Id.

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note that the State has affirmatively set forth in its brief in this court that it

does not challenge the district court’s ruling that the state procedural ground

was inadequate. 180

IV

Austin contends that he was not competent to waive his right to counsel,

stand trial, or plead guilty (Issue 10) and that the state trial court’s

determination as to competency was not entitled a presumption of correctness

under 28 U.S.C. § 2254(e)(1) (Issues 2, 3 and 4). 181 He also argues that the

state trial court’s procedures were not adequate to ensure he was competent

(Issues 6, 7, 8, 9). 182 Austin presents evidence of his mental health history

which he contends demonstrates his incompetence. 183 In a closely related

claim, Austin asserts that his waiver of counsel and guilty plea were not

knowing and voluntary because of his mental illness and the coercive

conditions of his confinement (Issues 16, 17). 184 He also argues that the district

court improperly deferred to the state trial court’s determinations that Austin’s

guilty plea and waiver of counsel were knowingly and voluntarily made (Issue

2 and 15). 185

180 State Br. at 16 n.3.

181 See Austin Br. at 77, 47, 49. Issue 3 relates to Austin’s assertion that the federal

district court erred in crediting and relying upon evidence offered by the State in its summary

judgment motion. As we noted in our partial grant of a COA, these arguments relate to the

federal district court’s procedure, are not separate grounds for relief, and are arguments we

consider in connection with Austin’s substantive claims.

182 See Austin Br. at 54, 57.

183 ROA.2145-56; ROA.2161-80.

184 See Austin Br. at 102.

185 See Austin Br. at 47, 93.

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A

“[T]he Constitution does not permit trial of an individual who lacks

‘mental competency.’” 186 A defendant is competent to stand trial if he has

“sufficient present ability to consult with his lawyer with a reasonable degree

of rational understanding [and if] he has a rational as well as factual

understanding of the proceedings against him.” 187 The Supreme Court

concluded in Maggio v. Fulford that competency to stand trial is a question of

fact. 188 In Felde v. Blackburn, this circuit relied on Fulford in determining that

a state court’s finding of competence to stand trial is a finding of fact. 189 We

have reiterated that holding in a number of cases. 190 In Washington v. Johnson

186 Indiana v. Edwards, 554 U.S. 164, 170 (2008); see also Drope v. Missouri, 420 U.S.

162, 171 (1975) (“It has long been accepted that a person whose mental condition is such that

he lacks the capacity to understand the nature and object of the proceedings against him, to

consult with counsel, and to assist in preparing his defense may not be subjected to a trial.”).

187 Dusky v. United States, 362 U.S. 402, 402 (1960) (per curiam); see also Godinez v.

Moran, 509 U.S. 389, 396 (1993).

188 Maggio v. Fulford, 462 U.S. 111, 117 (1983) (per curiam); see also Thompson v.

Keohane, 516 U.S. 99, 113 (1995) (noting the “practical considerations that have prompted

the Court” to consider competency a “factual issue,” namely that the trial court has a

“superior capacity to resolve credibility issues”); Demosthenes v. Baal, 495 U.S. 731, 735

(1990) (per curiam) (considering the state court’s conclusion regarding the defendant’s

competence to be a factual finding); Miller v. Fenton, 474 U.S. 104, 114 (1985) (noting that

the distinction between questions of fact and questions of law often turns upon which “judicial

actor is better positioned than another to decide the issue in question;” if “the issue involves

the credibility of witnesses and therefore turns largely on an evaluation of demeanor, there

are compelling and familiar justifications for leaving the process of applying law to fact to

the trial court and according its determinations presumptive weight.”).

189 Felde v. Blackburn, 795 F.2d 400, 402 (5th Cir. 1986) (“The state court’s finding of

mental competence to stand trial . . . is a finding of fact entitled to a presumption of

correctness . . . .”) (citing Fulford, 462 U.S. at 116-17).

190 Miller-El v. Johnson, 261 F.3d 445, 454 (5th Cir. 2001) (“A state court’s competency

determination is a finding of fact entitled to a presumption of correctness under

§ 2254(d)(2).”), rev’d on other grounds, 537 U.S. 322 (2003); Carter v. Johnson, 131 F.3d 452,

460 (5th Cir. 1997) (treating the question of competency as a factual determination); Flugence

v. Butler, 848 F.2d 77, 79 (5th Cir. 1988) (“A medical inquiry into competency is a fact-finding

exercise, and the factual finding of competence is presumed to be correct.”).

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and Bouchillon v. Collins—two decisions issued after Felde— we treated the

question of competency as a mixed question of law and fact. 191 This circuit’s

rule of orderliness, however, provides that “one panel of our court may not

overturn another panel’s decision, absent an intervening change in the law.” 192

Because we are bound by this circuit’s rule of orderliness, and the earlier panel

decision controls, 193 we adhere to Felde and to Fulford and consider

competency a question of fact. 194

Section 2254(e) limits our review of state-court fact findings, 195 even if

no claims were presented on direct appeal or state habeas. 196 Under

§ 2254(e)(1), “a determination of a factual issue made by a State court shall be

191 Washington v. Johnson, 90 F.3d 945, 951 (5th Cir. 1996) (“The question of

competency is treated in our circuit as a mixed question of law and fact.”); Bouchillon v.

Collins, 907 F.2d 589, 593 n.11 (5th Cir. 1990) (“[T]he determination of competency is not

solely a ‘factual issue,’ but rather is a mixed question of fact and law.”).

192 Mercado v. Lynch, 823 F.3d 276, 279 (5th Cir. 2016) (per curiam) (quoting Jacobs

v. Nat’l Drug Intelligence Ctr., 548 F.3d 375, 378 (5th Cir. 2008)).

193 Camacho v. Tex. Workforce Comm’n, 445 F.3d 407, 410 (5th Cir. 2006).

194 Cf. United States v. Saingerard, 621 F.3d 1341, 1343 (11th Cir. 2010) (per curiam)

(recognizing, on appeal of conviction in federal court, that competency to stand trial is a

factual determination); United States v. Mackovich, 209 F.3d 1227, 1232 (10th Cir. 2000)

(same); Vogt v. United States, 88 F.3d 587, 591 (8th Cir. 1996) (same); United States v. Winn,

577 F.2d 86, 92 (9th Cir. 1978) (same).

195 Virgil v. Dretke, 446 F.3d 598, 610 n.52 (5th Cir. 2006) (applying § 2254(e)(1) to a

state trial court’s implicit factual finding).

196 Appel v. Horn, 250 F.3d 203, 210 (3d Cir. 2001) (concluding that even when

§ 2254(d) does not apply, § 2254(e) still applies such that a state court’s factual

determinations are presumed correct); see Sharpe v. Bell, 593 F.3d 372, 379 (4th Cir. 2010)

(“The deference Section 2254(e)(1) requires has particular salience when a state court’s

determinations closely track the legal issues before the federal habeas court. Where a state

court looks at the same body of relevant evidence and applies essentially the same legal

standard to that evidence that the federal court does . . . , Section 2254(e)(1) requires that

the state court’s findings of fact not be casually cast aside.”); see also Loden v. McCarty, 778

F.3d 484, 494 (5th Cir. 2015) (noting that § 2254(e) “constrains the discretion of district courts

to grant evidentiary hearings,” even “[w]here section 2254(d) does not apply”); Blue v. Thaler,

665 F.3d 647, 654 (5th Cir. 2011) (Section 2254(e)(1) “pertains only to a state court’s

determinations of particular factual issues, while § 2254(d)(2) pertains to the state court’s

decision as a whole”) (citing Miller-El v. Cockrell, 537 U.S. 322, 341-42 (2003)).

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presumed to be correct” and the habeas petitioner bears “the burden of

rebutting the presumption of correctness by clear and convincing evidence.” 197

To the extent Austin’s claims challenge factual determinations made by the

state trial court, we apply § 2254(e)(1). To the extent Austin’s claims present

questions of law and mixed questions of law and fact, such that § 2254(e) does

not apply, we review de novo. 198 Because competency is a question of fact, we

afford the state trial court the deference due under § 2254(e)(1). 199 Under

§ 2254(e)(1), the state trial court’s determination that Austin was competent

to stand trial, waive counsel, and plead guilty is presumed correct. Austin

bears the burden of rebutting that presumption of correctness by clear and

convincing evidence. 200 Out of an abundance of caution, however, we will also

consider, in the alternative, whether Austin is entitled to habeas relief if

Austin’s competency claims are subject to review as a mixed question of law

and fact.

The trial court conducted a pretrial hearing following an expert’s

evaluation of Austin’s competence to consider Austin’s motion to proceed pro

se. Although the primary purpose of the hearing was to determine Austin’s

ability to represent himself, 201 the trial court addressed the question of

Austin’s competency to stand trial and waive counsel in making that

determination. 202 The transcript of the hearing also reflects that the state trial

197 28 U.S.C. § 2254(e)(1).

198 See Henderson v. Cockrell, 333 F.3d 592, 597-98 (5th Cir. 2003).

199 See Appel v. Horn, 250 F.3d 203, 210 (3d Cir. 2001).

200 28 U.S.C. § 2254(e)(1).

201 2RR4.

202 See Godinez v. Moran, 509 U.S. 389, 400 (1993) (holding that waiver of the right to

counsel must be made competently, knowingly and voluntarily to be constitutionally

effective).

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court was evaluating whether Austin was competent to stand trial. 203 In

finding Austin competent to stand trial and to waive trial counsel, the state

trial court relied on its own interactions with Austin, his written letters to the

court, his demeanor in court proceedings, and his responses to the trial court’s

questions. 204 The trial court also relied on the professional opinion of Dr.

Brown, who conducted a competency evaluation of Austin prior to the first

Faretta hearing. 205 Finally, the trial court relied on the opinion of Austin’s

counsel as to Austin’s competency. 206 We conclude that the state court’s

competency determination is well supported by the record.

Although Austin presents evidence of mental illness in his federal

habeas petition, he has not demonstrated by clear and convincing evidence that

he was not competent to stand trial, waive counsel, or plead guilty. He

contends that the evidence presented in his habeas petition—including records

of two suicide attempts over twenty years before his capital murder trial as

well as expert reports highlighting his suicidality and depression—

demonstrates he was not competent before, during, or after trial. A history of

suicidality and depression, however, does not render a defendant

203 See 2RR3-6 (referencing and relying upon Dr. Brown’s report, prepared to

determine if Austin was competent to stand trial, asking Austin’s counsel whether he

considered Austin to be competent, and asking Austin a series of questions about his mental

health history); see also 12RR3 (the state trial court noting at a later Faretta hearing that it

had previously conducted a hearing and found Austin “was competent to represent himself

and was making that decision freely and voluntarily with full knowledge of the potential

consequences”).

204 2RR5-14.

205 2RR4 (“[T]he Court appreciates the fact that the evaluation has been done. It is

probative information for the Court on making a determination on his ability to represent

himself.”).

206 Id. (Austin’s counsel confirming his personal determination that Austin was

competent and stating that “it has been [his] opinion from the first time [he] met him but out

of an abundance of caution I requested the psychiatric evaluation”).

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incompetent. 207 Austin clearly demonstrated an understanding of the charges

against him and the possible consequences, as well as an ability to make

strategic choices and to communicate clearly to the state trial court. As

Austin’s own expert explained, “Austin certainly understood the factual issues

of his trial” and “[h]e knew what he was being charged with.” 208 The evidence

Austin presents is insufficient to overcome the indicators of competence noted

and relied upon by the state trial court.

Austin argues that his decision to waive counsel and plead guilty to

capital murder demonstrates incompetency. The fact that a particular

defendant “caus[es] his trial to be conducted in a manner most likely to result

in a conviction and the imposition of the death penalty,” however, is not

sufficient for a finding of incompetency. 209 This circuit has recognized that a

defendant’s deliberate use of the system to obtain the death penalty is evidence

of rationality, not incompetence. 210 Again, we presume the state trial court’s

207 See Mata v. Johnson, 210 F.3d 324, 330 (5th Cir. 2000) (noting a suicide attempt

must be weighed with other evidence relating to a defendant’s competence); see also Drope v.

Missouri, 420 U.S. 162, 181 n.16 (1975) (recognizing that “a suicide attempt need not always

signal ‘an inability to perceive reality accurately, to reason logically and to make plans and

carry them out in an organized fashion’” (quoting David F. Greenberg, Involuntary

Psychiatric Commitments to Prevent Suicide, 49 N.Y.U. L. REV. 227, 236 (1974))).

208 Pet. Ex. 95 at 11.

209 Roberts v. Dretke, 381 F.3d 491, 498 (5th Cir. 2004); Autry v. McKaskle, 727 F.2d

358, 362 (5th Cir. 1984) (per curiam) (recognizing that refusing to “plead for mercy” in a

capital murder case does not necessarily mean that a defendant is incompetent or acting

irrationally); see also Taylor v. Horn, 504 F.3d 416, 435 (3d Cir. 2007) (“Taylor’s desire to

confess and receive the death penalty as punishment, and refusal to allow witnesses during

the penalty phase, are not indications that he was incompetent. These actions are consistent

with Taylor’s repeatedly expressed desire to plead guilty and accept the consequences.”).

210 See Roberts v. Dretke, 381 F.3d 491, 494, 498 (5th Cir. 2004) (concluding that the

defendant’s instruction to trial counsel to “steer the trial towards imposition of the death

penalty” was not irrational nor evidence of incompetency, but instead suggested that the

defendant was “quite capable of conversing with his trial counsel regarding trial strategy,

and was not only able to participate in his defense but was also able to direct it”).

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determination regarding Austin’s competency is correct; Austin has not

overcome that presumption by clear and convincing evidence. 211

Even if, in the alternative, we were to consider this claim a mixed

question of law and fact, such that § 2254(e)(1)’s presumption of correctness

does not apply to the competency determination and our review is instead de

novo, Austin has failed to demonstrate that he is entitled to habeas relief. His

prior mental health issues as well as his strategy before, during, and after trial

are simply insufficient to support a determination that Austin was

incompetent.

B

Austin asserts a number of procedural due process claims under Pate v.

Robinson 212 relating to the state trial court’s determination of competency.

“Under Pate v. Robinson, a trial court must hold a competency hearing when

there is evidence before the court that objectively creates a bona fide question

as to whether the defendant is competent to stand trial.” 213 “In determining

whether there is a ‘bona fide doubt’ as to the defendant’s competence, [a] court

considers: (1) any history of irrational behavior, (2) the defendant’s demeanor

at trial, and (3) any prior medical opinion on competency.” 214 “If the trial court

received evidence, viewed objectively, that should have raised a reasonable

doubt as to competency, yet failed to make further inquiry, the defendant has

211 28 U.S.C. § 2254(e)(1).

212 383 U.S. 375, 385 (1966) (holding that a trial court must hold a competency hearing

when there is evidence before the court that objectively creates a bona fide question as to

whether the defendant is competent to stand trial); see also Roberts v. Dretke, 381 F.3d 491,

497 (5th Cir. 2004) (articulating the holding in Pate v. Robinson).

213 Roberts v. Dretke, 381 F.3d 491, 497 (5th Cir. 2004) (citation omitted) (citing Pate,

383 U.S. 375 (1966)).

214 Mata v. Johnson, 210 F.3d 324, 329 (5th Cir. 2000).

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been denied a fair trial.” 215 Austin asserts that the state trial court’s failure to

hold a standalone pretrial competency hearing denied him a fair trial. He also

contends that regardless of whether the state trial court’s initial pretrial

finding of competency was proper, the information about his mental health

history presented at trial should have alerted the state trial court then to the

possibility that Austin was not competent—in other words, the information

created a bona fide doubt as to Austin’s competency such that an additional

hearing was necessary.

Because we conclude that Austin has failed to demonstrate by clear and

convincing evidence that he was not competent to stand trial, waive counsel,

or plead guilty, we similarly reject his procedural claim that the state trial

court was required to hold a pretrial competency hearing and that because it

did not, he was denied a fair trial. In concluding that Austin could waive

counsel and proceed pro se, the state trial court made an implicit finding that

no bona fide doubt as to competency existed and that a standalone competency

hearing was therefore not required. 216 We presume that this factual finding is

correct under § 2254(e)(1) and, as noted above, Austin has failed to overcome

that presumption by clear and convincing evidence. If we were to consider, in

the alternative, the competency determination as a mixed question of law and

fact subject to de novo review, rather than a purely factual finding, Austin has

still failed to demonstrate he was not competent. We therefore conclude that

this procedural claim is without merit.

Nor is Austin entitled to relief based on his claim that the state trial

court failed to inquire about Austin’s competency adequately after hearing

215 Id. (citing Carter v. Johnson, 131 F.3d 452, 459 n.10 (5th Cir. 1997)).

216 See Roberts v. Dretke, 381 F.3d 491, 498 (5th Cir. 2004).

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evidence during Austin’s trial about his past mental health issues that

contradicted what Austin had told the court during earlier competency

proceedings. To the extent that this procedural claim, not adjudicated on the

merits by the state court, presents questions of law or mixed questions of law

and fact, we review de novo. 217

In response to several specific questions from the state trial judge during

the pretrial hearing to consider Austin’s request to proceed pro se, Austin

stated that he had not had mental health issues in the past, and had not been

treated nor received counseling for mental health issues. However, during

trial, contrary evidence was adduced. Though this evidence clearly

contradicted what Austin had previously told the state court, the trial court

knew, prior to the pretrial hearing, that Austin had “a very bad problem with

depression” and that Austin contemplated suicide often when depressed. 218

None of the evidence presented during Austin’s capital murder trial

undermines confidence in the state trial court’s well-supported pretrial finding

of competence, a finding based on Austin’s demeanor, Dr. Brown’s evaluation,

the opinion of Austin’s counsel, and the court’s interactions with Austin,

including correspondence from Austin indicating an ability to reason logically

and strategically. As noted above, “[m]ental illness and incompetence . . . are

not necessarily coexistent conditions.” 219 The state trial court’s failure to

217 See Henderson v. Cockrell, 333 F.3d 592, 598 (5th Cir. 2003).

218 See CR at 16 (letter from Austin to the trial court before trial).

219 LaHood v. Davis, 653 F. App’x 253, 263 (5th Cir. 2016) (citing McCoy v. Lynaugh,

874 F.2d 954, 960-61 (5th Cir. 1989); United States v. Williams, 819 F.2d 605, 608 (5th Cir.

1987)); see also Drope v. Missouri, 420 U.S. 162, 181 n.16 (1975) (recognizing that “a suicide

attempt need not always signal ‘an inability to perceive reality accurately, to reason logically

and to make plans and carry them out in an organized fashion’” (quoting David F. Greenberg,

Involuntary Psychiatric Commitments to Prevent Suicide, 49 N.Y.U. L. REV. 227, 236 (1974))).

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conduct an additional hearing as to Austin’s competency does not warrant

habeas relief.

C

Competence to plead guilty or to waive the right to counsel is measured

by the same standard as competence to stand trial. 220 Nonetheless, “[a] finding

that a defendant is competent to stand trial . . . is not all that is necessary

before he may be permitted to plead guilty or waive his right to counsel.” 221 A

trial court must also “satisfy itself that the [defendant’s] waiver of his

constitutional rights is knowing and voluntary.” 222 Before granting a

defendant’s clear and unequivocal request to proceed pro se, the trial judge

“must caution the defendant about the dangers of such a course of action so

that the record will establish that ‘he knows what he is doing and his choice is

made with eyes open.’” 223 To be voluntary, a plea must “not be the product of

‘actual or threatened physical harm, or . . . mental coercion overbearing the

will of the defendant.’” 224 A defendant pleading guilty must also be competent,

have notice of the charges against him, understand the consequences of his

plea, and have available the advice of competent counsel. 225 To the extent

220 Godinez v. Moran, 509 U.S. 389, 398 (1993).

221 Id. at 400.

222 Id. at 400-01 (“In this sense there is a ‘heightened’ standard for pleading guilty and

for waiving the right to counsel, but it is not a heightened standard of competence.”); see also

Faretta v. California, 422 U.S. 806, 807 (1975) (holding that the Sixth and Fourteenth

amendments include the “right to proceed without counsel” when a criminal defendant

“voluntarily and intelligently elects to do so”).

223 United States v. Cano, 519 F.3d 512, 516 (5th Cir. 2008) (quoting United States v.

Martin, 790 F.2d 1215, 1218 (5th Cir. 1986)); see also Faretta v. California, 422 U.S. 806

(1975).

224 Matthew v. Johnson, 201 F.3d 353, 365 (5th Cir. 2000) (quoting Brady v. United

States, 397 U.S. 742, 750 (1970)).

225 Id.

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Austin’s claim involves subsidiary factual determinations made by the state

trial court, we apply § 2254(e)(1)’s presumption of correctness, which Austin

must rebut by clear and convincing evidence. 226 We review de novo questions

of law and mixed questions of law and fact. 227

Before accepting Austin’s waiver of counsel, the state trial court

confirmed that Austin knew and understood the charges against him, as well

as the possible punishment if convicted. 228 The court informed Austin of his

right to court-appointed counsel and explained the risks and disadvantages to

proceeding pro se. 229 The court also inquired whether Austin’s waiver of

counsel was made voluntarily, intelligently, and knowingly. 230 During this

exchange, Austin explained that he wanted to proceed pro se so that he would

be able to make his own decisions about trial strategy. 231 A defendant has a

“right to conduct his own defense,” even though exercising that right “usually

increases the likelihood of a trial outcome unfavorable to the defendant.” 232

The right to self-representation “is based on the fundamental legal principle

that a defendant must be allowed to make his own choices about the proper

way to protect his own liberty.” 233 Although Austin may not have been trying

to “protect his own liberty,” he clearly expressed to the state trial court his wish

to make his own decisions about trial strategy. An improper denial of Austin’s

226 See Miller v. Fenton, 474 U.S. 104, 112 (1985) (recognizing the presumption of

correctness to subsidiary fact questions under the prior version of 28 U.S.C. § 2254(d));

Barnes v. Johnson, 160 F.3d 218, 222 (5th Cir. 1998).

227 See Henderson v. Cockrell, 333 F.3d 592, 598 (5th Cir. 2003).

228 2RR9.

229 2RR9-12.

230 2RR12.

231 2RR13-14.

232 Weaver v. Massachusetts, 137 S. Ct. 1899, 1908 (2017) (quoting McKaskle v.

Wiggins, 465 U.S. 168, 177 n.8 (1984)).

233 Id.

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right to self-representation by the state trial court would have amounted to

structural error requiring reversal. 234

Before accepting Austin’s guilty plea, the state trial court again

confirmed that Austin understood the charges against him and the possible

punishment. 235 It also admonished Austin that he had a right to a jury trial

and asked Austin a series of questions to determine if his plea was

voluntary. 236 The court asked Austin if he was of sound mind. 237 It explained

the consequences of pleading guilty. 238 The court specifically found, based on

its prior evaluation of Austin’s competency to stand trial at the first Faretta

hearing as well as prior conversations with Austin, that Austin was “mentally

competent to enter [a] plea of guilty” and that he was “doing so freely and

voluntarily with full knowledge of the consequences.” 239

The requirements for a valid guilty plea and waiver of counsel are clearly

met. Austin contends that his mental illness and the conditions of his

confinement rendered both his guilty plea and his waiver of trial counsel

invalid because they were not knowing and voluntary. 240 In light of our

conclusion that the trial court’s finding of competency was well-supported and

correct even if reviewed de novo as a mixed question of law and fact, the

evidence of depression or other mental illness does not render an otherwise

234 See id.

235 9RR4.

236 9RR4-5 (“Has anyone reached any agreement with you to get you to enter your

plea?”; “Has anybody promised you anything to get you to enter your plea?”; “Has anybody

threatened you to get you to enter your plea?”).

237 9RR5.

238 Id.

239 9RR6.

240 Austin Br. at 102.

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effective waiver involuntary. 241 Similarly, Austin has failed to demonstrate

that the conditions of his confinement rendered his decisions involuntary or

undermined his otherwise effective waiver. Further, Austin’s letter to the trial

court approximately a month before the start of trial reflected he was no longer

dissatisfied with the conditions of his confinement and no longer suffering from

any depression. 242 Even with the complained-of conditions removed, Austin

indicated, consistent with his prior statements to the court, that he would not

contest the charges against him. 243

As previously noted, Austin has not presented clear and convincing

evidence sufficient to overcome the state trial court’s determination that he

was competent to waive counsel and plead guilty. 244 Our independent review

confirms that Austin’s plea and waiver of counsel were not the product of state

coercion or otherwise rendered involuntary.

V

Austin contends that his appointed trial counsel for the seven-month

period before he was allowed to proceed pro se was ineffective for failing to

undertake significant discovery or investigation into Austin’s competency, and

for failing to ask Austin more questions at the Faretta hearing (Issue 13). The

district court held that Austin could not show prejudice from counsel’s

241 See Johnson v. United States, 344 F.2d 401, 403-04 & n.4 (5th Cir. 1965) (separating

the voluntariness inquiry from the mental competence inquiry and determining that because

the trial judge had “carefully, thoroughly, and separately interrogated each of the defendants

to ascertain whether the plea as to each separate indictment was freely, voluntarily, and

understandably made” and had found that each plea was, “there is no suggestion, either in

the records and papers or in the evidence on the 2255 proceeding, which even raises any

question about this conclusion, either then or now”).

242 See CR at 58.

243 Id.

244 28 U.S.C. § 2254(e)(1).

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allegedly deficient performance because the evidence supported the state trial

court’s conclusion that Austin was competent. We review the district court’s

conclusions of law and its conclusions of mixed law and fact de novo. 245

Under the familiar test of Strickland v. Washington, a successful

ineffective assistance of trial counsel claim requires a petitioner to show that

(1) “counsel’s performance was deficient” and (2) that “the deficient

performance prejudiced the defense.” 246 Trial counsel “has a duty to make

reasonable investigations or to make a reasonable decision that makes

particular investigations unnecessary.” 247 In the context of mental health

investigation, “[t]rial counsel provides deficient performance if he fails to

investigate a defendant’s medical history when he has reason to believe that

the defendant suffers from mental health problems.” 248

Trial counsel in this case testified that he never doubted his client’s

competence, 249 and, though Austin points to the lack of investigation

performed, he does not allege any facts that would have alerted counsel to the

need to investigate Austin’s competency. As we have stated before, suicidality

and depression are not necessarily indications of incompetence. Additionally,

a mental health evaluation was conducted prior to the Faretta hearing, which

determined Austin to be competent.

Even if Austin had shown counsel’s failure to investigate to be deficient

performance under Strickland, Austin has wholly failed to support his

245 Jones v. Cain, 227 F.3d 228, 230 (5th Cir. 2000).

246 Strickland v. Washington, 466 U.S. 668, 687 (1984).

247 Id. at 691.

248 Roberts v. Dretke, 381 F.3d 491, 498 (5th Cir. 2004).

249 2RR4.

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allegation that counsel’s performance prejudiced his defense. 250 Strickland

requires Austin to show a “reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been

different.” 251 Austin is correct that he need only show “a probability sufficient

to undermine confidence in the outcome.” 252 However, he has failed to do so.

His briefing claims that had the district court correctly applied this standard,

he would be entitled to relief.

We agree with the district court that the evidence presented both to the

state trial court and in post-conviction proceedings strongly supports the state

trial court’s determination that Austin was competent. The fact that Austin

sought the death penalty is not, in and of itself, sufficient to call into serious

doubt his competence to proceed to trial in light of the other evidence before

the court. His letters and colloquy with the judge do not suggest an inability

to understand the proceedings or charges against him. To the contrary, Austin

remained articulate and focused in his aim of representing himself and

refusing to present a defense. 253 The court-ordered independent evaluation

further supports the state trial court’s conclusion that Austin was, in fact,

competent to represent himself at trial. 254 Finally, though Austin details

various psychiatric treatments, interactions with mental health professionals,

and the opinions of experts hired post-conviction, nothing suggests he suffered

any impairment that would bear on his competency to stand trial. 255 Even if

250Bell v. Cone, 535 U.S. 685, 695 (2002) (“Without proof of both deficient performance

and prejudice to the defense . . . the sentence or conviction should stand.”).

251 Strickland, 466 U.S. at 694.

252 Id.

253 ROA.645-47.

254 ROA.648.

255 See ROA.652-54.

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the affidavits Austin submitted from medical professionals may be considered

on federal habeas review since they were not presented to the state courts, an

issue we pretermit because we are denying relief on the merits with respect to

this issue, this evidence does not alter our conclusion. Based on our review of

the record, Austin’s assertion that a more thorough investigation would have

cast the competency proceedings in such a different light as to undermine

confidence in their outcome is unpersuasive.

VI

Austin contends that he did not receive a fair trial because five jurors

gave false or misleading answers during voir dire, indicating that they could

consider mitigating evidence and vote for a life sentence when in fact, they

were pre-disposed to imposing the death penalty (Issue 19). He relies on

statements from those jurors obtained during the post-conviction

investigation.

A

“A juror is biased if his ‘views would prevent or substantially impair the

performance of his duties as a juror in accordance with his instructions and his

oath.’” 256 Austin relies upon McDonough Power Equipment, Inc. v. Greenwood,

in which the Supreme Court observed that “[o]ne touchstone of a fair trial is

an impartial trier of fact—‘a jury capable and willing to decide the case solely

on the evidence before it.’” 257 The McDonough Power Equipment case

concerned a direct appeal in a civil, personal injury suit in which the jury found

256 Hatten v. Quarterman, 570 F.3d 595, 600 (5th Cir. 2009) (quoting Soria v. Johnson,

207 F.3d 232, 242 (5th Cir. 2000)).

257 McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 554 (1984) (quoting

Smith v. Phillips, 455 U.S. 209, 217 (1982)).

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in favor of the defendant. 258 The losing plaintiff contended that a new trial

was required because a juror failed to disclose during voir dire that his son had

sustained a broken leg as a result of the explosion of a truck tire. 259 The

Supreme Court reasoned that “[t]o invalidate the result of a three-week trial

because of a juror’s mistaken, though honest response to a question, is to insist

on something closer to perfection than our judicial system can be expected to

give.” 260 The Court then said, “[w]e hold that to obtain a new trial in such a

situation, a party must first demonstrate that a juror failed to answer honestly

a material question on voir dire, and then further show that a correct response

would have provided a valid basis for a challenge for cause.” 261 The Fifth

Circuit has assumed, without deciding, “that a McDonough theory of juror bias

would be sufficient to obtain federal habeas relief,” 262 and we will do the same

in the present case.

It is well-settled that a juror who will automatically vote for the death

penalty is challengeable for cause. 263 Austin contends that none of the jurors

indicated during voir dire that he or she would automatically vote for the death

penalty or refuse to consider mitigating evidence and therefore that there was

no reason to challenge any juror for cause. 264 Austin asserts that his

entitlement to habeas relief can be determined from the transcript of voir dire

when compared to post-trial statements from five jurors made approximately

two years after trial. Austin does not contend that the trial court erred in

258 Id. at 549-50.

259 Id. at 550-51.

260 Id. at 555.

261 Id. at 556.

262 Montoya v. Scott, 65 F.3d 405, 419 (5th Cir. 1995).

263 See, e.g., Morgan v. Illinois, 504 U.S. 719, 729 (1992).

264 Austin Br. at 109-10.

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failing to hold an evidentiary hearing. 265 We will therefore consider only the

voir dire transcript and the post-trial statements.

Austin asserts that the jurors’ post-trial statements establish that they

misled the trial court during voir dire because the jurors confirmed to the court

that they could consider mitigating evidence, when in fact they would not and

were thus unqualified to serve. 266 The federal district court did not consider

whether Austin’s evidence supported a claim of “actual prejudice,” 267 nor

whether Austin was required to rebut, or had rebutted, by clear and convincing

evidence, 268 any implied finding by the state trial court that the jurors were

unbiased. Nor did the district court consider whether the jurors’ allegedly

misleading answers were due to inadequate questioning on voir dire, or were

a deliberate attempt to mislead the court. 269

Because of our disposition of the jury bias claim, we will assume, without

deciding, that the state trial court made no express or implied findings that

the jurors were competent and unbiased. We will further assume, without

deciding, that there are no factual issues decided by the state courts to which

AEDPA deference is due under 28 U.S.C. § 2254(e)(1).

265 Oral Argument at 25:40 (July 12, 2017).

266 ROA.108-09; Austin Reply Br. at 60.

267 See Gomez v. United States, 245 F.2d 344 (5th Cir. 1957) (suggesting waivers of

challenges to jurors premised on “actual prejudice” or “fundamental incompetence” differ

from challenges based only on statutory disqualification).

268 See 28 U.S.C. §2254(e); Virgil v. Dretke, 446 F.3d 598, 610 n.52 (5th Cir. 2006).

269 See United States v. Scott, 854 F.2d 697, 700 n.12 (5th Cir. 1988) (comparing cases

of deliberate or unreasonable omissions to cases involving inadequate or unspecific

questioning).

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B

Austin’s brief in our court focuses primarily upon William Gibbs, one of

the five jurors that Austin contends was biased. Gibbs’s voir dire contained

the following exchanges:

THE COURT: And if the evidence called for it, [could you]

answer [the special issues] in such a way that you know a life

sentence would result?

GIBBS: Yes.

THE COURT: I take it, then – and correct me if I’m wrong –

that you would be guided by the evidence, listen to all of the

evidence and answer the questions according to the evidence,

wherever that might take you?

GIBBS: Yes.

...

PROSECUTION: . . . Tell us first in your own words, what

are your feelings on the death penalty?

GIBBS: I am for it and - - I’m for it. I think it’s necessary

for a crime deterrent, and that’s about it.

...

PROSECUTION: . . . Okay. Can you consider, then, in your

mind that [the first special issue], depending on the evidence, could

be answered either yes or no?

GIBBS: Yes.

...

PROSECUTION: Can you consider that in Issue No. 2 that

it could be answered in a yes or no fashion?

GIBBS: Yes.

...

PROSECUTION: . . . Do you feel that you can participate in

that - - the deliberations, deliberating with the jury and assess the

death penalty if the law and the evidence supports it?

GIBBS: Yes.

...

PROSECUTION: . . . are you saying that if you know that

the defendant is representing himself and you know that he has a

death wish, if the law and the evidence supports assessing the

death penalty, are you saying you still could not assess the death

penalty?

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THE COURT: In other words, if the evidence called for

answering those questions in such a way that you answered the

first one yes and the second one no, you know the death penalty

would result?

GIBBS: Yes.

THE COURT: Would the fact that you feel that you would be

giving a defendant something that he wanted cause you in any way

to change your answers based on the evidence?

GIBBS: No.

THE COURT: So, then, would you - - would you, I guess,

honor your oath as a juror and base your verdict to those questions

on the evidence; and if that’s what the evidence proved to you, you

would answer them in that way?

GIBBS: Yes.

THE COURT: Even if you feel like it’s kind of unfair to give

him what he would want?

GIBBS: Exactly. That’s just the way that I feel. That’s not

the way that - - if that’s what the law states, then that’s how, I

guess, I would have to vote. But I mean - -

THE COURT: Your personal opinion - -

GIBBS: Personal feelings, I would have to say no; but I

would say I would vote the death penalty if that’s what the law

stated and - -

THE COURT: And the evidence showed?

GIBBS: Yes. 270

In his post-trial statement, Juror Gibbs made the following assertions:

I believe that ‘an eye for an eye’ is correct. If you kill

someone you should face the death penalty.

Once someone is guilty of capital murder I believe that the

only appropriate penalty is the death penalty. I do not think that

there is anything that would be mitigating so that a person should

not get the death penalty, this includes the person being insane.

Once I heard that Perry Austin had admitted to

intentionally killing a nine year old boy I was only going to vote

one way—I was going to vote ‘yes’ he was a future danger and ‘no’

270 5RR32-33, 38-40, 43-44.

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there was nothing mitigating. I was not going to vote for anything

other than the death penalty. 271

The voir dire and post-trial statements of the other four jurors are set

forth in section VI(C) below. As noted, Austin relies only on the post-trial

statements to support his contention that each of these jurors was dishonest

in answering questions posed during voir dire. We conclude that the district

court was foreclosed from considering any of the jurors’ post-trial statements

by Federal Rule of Evidence 606(b)(1) and the Supreme Court’s decisions

applying that Rule. Therefore, the district court did not err in failing to grant

habeas relief on Austin’s juror bias claim.

Rule 606(b)(1) provides:

(b) During an Inquiry Into the Validity of a Verdict or

Indictment.

(1) Prohibited Testimony or Other Evidence. During an

inquiry into the validity of a verdict or indictment, a juror may not

testify about any statement made or incident that occurred during

the jury's deliberations; the effect of anything on that juror's or

another juror's vote; or any juror's mental processes concerning the

verdict or indictment. The court may not receive a juror's affidavit

or evidence of a juror's statement on these matters. 272

The text of the rule is clear, and it explicitly directs that “a juror may not

testify about . . . the effect of anything on that juror’s . . . vote . . . or any juror’s

mental processes concerning the verdict or indictment.” The Rule further

provides, “[t]he court may not receive a juror’s affidavit or evidence of a juror’s

statement on these matters.” Each of the post-trial statements by jurors comes

within these prohibitions.

271 Pet. Ex. 65 at 007525-007526.

272 FED. R. EVID. 606(b)(1).

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The Supreme Court squarely held in Warger v. Shauers that “Rule 606(b)

applies to juror testimony during a proceeding in which a party seeks to secure

a new trial on the ground that a juror lied during voir dire.” 273 The Court

rejected the argument that the inquiry under McDonough “begins and ends

with what happened during voir dire,” and therefore that Rule 606(b) should

be inapplicable. 274 The Court reasoned that “[w]hether or not a juror’s alleged

misconduct during voir dire had a direct effect on the jury’s verdict, the motion

for a new trial requires a court to determine whether the verdict can stand.” 275

The Court further explained:

[A] party’s right to an impartial jury remains protected despite

Rule 606(b)’s removal of one means of ensuring that jurors are

unbiased. Even if jurors lie in voir dire in a way that conceals bias,

juror impartiality is adequately assured by the parties’ ability to

bring to the court’s attention any evidence of bias before the verdict

is rendered, and to employ nonjuror evidence even after the verdict

is rendered. 276

The Ninth Circuit has similarly applied Rule 606(b) in a direct criminal

appeal in which a juror’s post-trial affidavit averred that other jurors had

discussed the evidence against the defendant “and made up their minds about

his guilt before the start of deliberations.” 277 In denying relief, the court

explained that “[t]he notion that egregious juror conduct will not necessarily

result in relief from the verdict may seem antithetical to our system of due

273 Warger v. Shauers, 135 S. Ct. 521, 525 (2014).

274 Id. at 528 (quoting a party’s brief).

275 Id.

276 Id. at 529; see also Tanner v. United States, 483 U.S. 107, 127 (1987) (explaining

that “[t]he suitability of an individual for the responsibility of jury service, of course, is

examined during voir dire,” and “after the trial a party may seek to impeach the verdict by

nonjuror evidence of misconduct”).

277 United States v. Leung, 796 F.3d 1032, 1034 (9th Cir. 2015).

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process.” 278 But the Ninth Circuit discerned that “[t]he Rule . . . exists for good

reason—it protects jurors from harassment and maintains the integrity and

finality of jury verdicts.” 279 The court observed, “[w]hile persistent inquiry into

internal jury processes could ‘in some instances lead to the invalidation of

verdicts reached after irresponsible or improper juror behavior,’ our very

system of trial by jury might not ‘survive such efforts to perfect it.’” 280

The only exception that the Supreme Court has made to Rule 606(b)(1)’s

prohibitions is “when, after the jury is discharged, a juror comes forward with

compelling evidence that another juror made clear and explicit statements

indicating that racial animus was a significant motivating factor in his or her

vote to convict.” 281 The Court reasoned in Pena-Rodriguez v. Colorado that

“[a]ll forms of improper bias pose challenges to the trial process. But there is

a sound basis to treat racial bias with added precaution.” 282 The Court

concluded that “[a] constitutional rule that racial bias in the justice system

must be addressed—including, in some instances, after the verdict has been

entered—is necessary to prevent a systemic loss of confidence in jury verdicts,

a confidence that is a central premise of the Sixth Amendment trial right.” 283

There is no suggestion or indication of racial animus or bias in the present

278 Id. at 1036.

279 Id.

280 Id. (quoting Tanner, 483 U.S. at 120); see also United States v. Davis, 960 F.2d 820,

828 (9th Cir. 1992) (rejecting a defendant’s argument in a direct criminal appeal “that his

sixth amendment right to an impartial jury was violated because one juror stated during a

post-trial interview that, ‘[f]rom the first day I knew [Davis] was guilty,’” reasoning that

“[t]he juror’s statement reflects his personal feelings and beliefs concerning Davis” and that

“[t]he statement is insufficient to set aside a verdict”).

281 Pena-Rodriguez v. Colorado, 137 S. Ct. 855, 861 (2017).

282 Id. at 869.

283 Id.

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case, and the Supreme Court has not recognized an exception to Rule 606(b)

that would apply to the post-trial statements at issue here.

In our prior, unpublished opinion in this case granting a COA to Austin

on his jury bias claim, we reasoned:

[P]ost-trial interviews concern the honesty of statements made by

the jurors during voir dire—not statements made during

deliberations, the effect of something on the jurors' votes, or the

jurors' mental processes concerning the verdict. Rule 606(b) does

not bar admission of post-trial statements to prove that the jurors

failed to answer a material question honestly during voir dire. 284

That analysis was clearly incorrect in light of the Supreme Court’s

decision and reasoning in Warger v. Shauers, and, after full briefing and

plenary consideration, we now disavow our prior reasoning and our discussion

of Rule 606(b) in granting a COA on Austin’s jury bias claim. Though we cited

Warger in a footnote, our analysis of that decision was not in-depth and was

inaccurate. 285

This court’s decision in Hatten v. Quarterman, 286 which we also cited in

a footnote in our opinion and order granting a COA on Austin’s jury bias

claim, 287 involved unusual circumstances and does not support Austin’s

contention that the post-trial statements at issue are admissible to impeach

the jury’s verdict and require a new trial. In Hatten, questions as to whether

a juror had been truthful during voir dire and was biased were raised in the

midst of trial, before the case was submitted to the jury. 288 The juror in

284 Austin v. Davis, 647 F. App’x 477, 493 (5th Cir. 2016) (per curiam).

285 Id. at 493 n.63.

286 570 F.3d 595 (5th Cir. 2009).

287 Austin, 647 F. App’x at 493 n.63.

288 Hatten, 570 F.3d at 600-02.

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question testified during a hearing that was held to ascertain whether he had

lied on his juror questionnaire about whether he had a “drug problem,” among

other issues. 289 Though this court discussed the juror’s post-trial affidavit, in

which he stated that that “he did, in fact, have a drug problem at the time of

the trial and that his drug use affected his judgment,” 290 we concluded that his

response to the jury questionnaire had been ambiguous. 291 Importantly to the

issue now before us, we concluded that even if the affidavit called into question

the juror’s truthfulness in responding to the questionnaire, the juror had

actually testified at the hearing during trial about his questionnaire response,

the district court had concluded that the juror’s post-trial affidavit should not

be credited over that testimony, and we found no basis for overturning the

district court’s factual finding in this regard. 292 The salient point is that in

Hatten, there was no actual holding by this court that a post-trial affidavit

could or did impeach a verdict. Only an implication can be drawn from Hatten

that if a post-trial affidavit demonstrated a juror’s bias, the affidavit could be

used to impeach the verdict and a new trial would be necessary. An implication

is not a holding. In any event, to the extent that it could be argued that Hatten

contained such a holding, Hatten is inconsistent with the Supreme Court’s

289 Id.; see also id. at 600 (reflecting that the claims in the subsequent federal habeas

proceeding were that “Hatten [the defendant] complains that Hollins's [the juror’s] bias is

reflected by the facts that: (a) Hollins lied on his juror questionnaire and during his

questioning regarding his drug use; (b) Hollins concealed the scope of his relationship with

Isaac Robinson, the victim's father, and with Hatten's [the defendant’s] stepfather; and (c)

Hollins [the juror] was threatened with prosecution during trial and consequently must have

favored the prosecution”).

290 Id. at 602.

291 Id.

292 See id.

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subsequent decision in Warger and the Supreme Court’s explication of Warger

and Tanner in Pena-Rodriguez. 293

The post-trial statements of the five jurors are inadmissible by virtue of

Rule 606(b). Austin has no other evidence that any of these jurors were less

than candid during voir dire. Austin’s jury bias claim therefore fails.

C

As an alternative basis for affirming the district court’s judgment with

respect to Austin’s juror bias claim, we conclude that even were the jurors’ post-

trial statements admissible, Austin has not demonstrated that a juror “failed

to answer honestly a material question on voir dire,” and “that a correct

response would have provided a valid basis for a challenge for cause.” 294

Two special issues were to be submitted to the jury, and potential jurors

were questioned about these issues during voir dire. The first special issue

was “[d]o you find from the evidence beyond a reasonable doubt that there is a

probability that the defendant, Perry Allen Austin, would commit criminal acts

of violence that would constitute a continuing threat to society.” 295 The second

special issue was “[d]o you find from the evidence, taking into consideration all

of the evidence, including the circumstances of the offense, the defendant's

character and background, and the personal moral culpability of the

defendant, Perry Allen Austin, that there is a sufficient mitigating

293 See Pena-Rodriguez v. Colorado, 137 S. Ct. 855, 865-67 (2017) (observing that

“since the enactment of Rule 606(b), the Court has addressed the precise question whether

the Constitution mandates an exception to it in just two instances” and noting that the Sixth

Amendment did not require an exception in either instance) (citing Warger v. Shauers, 135

S. Ct. 521, 529 (2014) and Tanner v. United States, 483 U.S. 107, 125 (1987)).

294 McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 556 (1984).

295 Pet. Ex. 36 at 001611; see also TEX. CODE CRIM. PROC. ANN. art. 37.071 § 2(b)(1)

(West Supp. 2002).

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circumstance or circumstances to warrant that a life imprisonment rather than

a death sentence be imposed.” 296

Before we consider each of the five jurors’ specific voir dire and post-trial

statements, we note that none of these jurors was asked if he or she could

consider a specific type of mitigation evidence or categories of mitigation

evidence. They were only asked whether they could potentially answer the

special issues so as to impose a life sentence if the law and evidence so required.

We also note that the record reflects that the murder victim’s age, nine years

old, was not revealed to the jurors until the punishment phase commenced,

which was after voir dire had been completed. 297

Juror Erwin

The relevant portion of Juror Erwin’s voir dire consisted of the following

exchanges:

THE COURT: And if the evidence called for it, [could you]

answer [the special issue] in such a way that you know a life

sentence would result?

ERWIN: Yes.

THE COURT: I take it, then, sir, that you would listen to the

evidence, follow the law and be guided by the evidence and the law,

wherever that might take you in this trial?

ERWIN: Whatever that is, yes.

...

ERWIN: There’s a few cases I think you should get the death

penalty, but that’s just me.

PROSECUTION: Okay, and that would be what? What cases

would those be?

ERWIN: Anything had to do with hurting the elderly - -

PROSECUTION: Okay.

ERWIN: - - or kids.

296 Pet. Ex. 36 at 001612; see also TEX. CODE CRIM. PROC. ANN. art. 37.071 § 2(e)(1)

(West Supp. 2002).

297 9RR17.

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PROSECUTION: Children?

ERWIN: Children

...

PROSECUTOR: Okay. Can you see how Special Issue No. 2

can be answered either yes or no depending on what evidence you

hear in the courtroom?

ERWIN: Yes. 298

Erwin’s post-trial statement included the following:

I believe that if you are found guilty of capital murder the

only appropriate penalty is the death penalty. The only thing that

would make that different is if the person was insane.

After Perry Austin admitted he did the murder the case was

pretty simple. He wanted the death penalty and we were happy to

give it to him. 299

The first paragraph of the post-trial statement reflects Erwin’s beliefs as

of the date of the statement. It does not say that Erwin held these beliefs at

the time of voir dire. Two years after a trial, a juror’s beliefs may have changed,

particularly after participating in a capital trial and voting to impose a death

sentence. But even if Erwin thought during voir dire that the only

circumstance warranting a life sentence as opposed to a death sentence would

be insanity when the crime was committed, his responses to the questions he

was asked during voir dire are consistent with that view. He was not asked to

identify what factors would cause him to vote in favor of a life sentence. He

was only asked if there were circumstances in which he could vote for a life

sentence, and his post-trial statement confirms that there was at least one such

circumstance.

298 4RR18-31.

299 Pet. Ex. 68 at 007541-007542.

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The second paragraph of the post-trial statement does not contradict

anything that Erwin said in response to questions during voir dire. Nothing

in the second paragraph is an assertion that the evidence called for a life

sentence but that Erwin ignored that evidence. Erwin was not required to vote

for a life sentence simply because there was mitigating evidence. Austin

admitted to murdering a child, and during his pro se closing statement, Austin

himself set forth facts that he said supported answering the two special issues

in a way that would result in a death sentence. Erwin’s brief characterization

in his post-trial statement of why the jury voted as it did does not contradict

anything that Erwin said during voir dire. In fact, Erwin candidly revealed

during voir dire that he thought that someone who killed an elderly person or

a child should receive the death penalty. We do not consider whether there

may have been cause to strike Erwin based on his voir dire testimony or his

post-trial statement because Austin has not met the first prong of McDonough,

that Erwin was dishonest during voir dire. There is no evidence of dishonesty.

Juror Condon

Juror Condon’s voir dire contained the following relevant exchanges:

THE COURT: And if the evidence called for it, [could you]

answer [the special issues] in such a way that you know a life

sentence would result?

CONDON: Yes.

THE COURT: All right. I take it, Mr. Condon, your feelings

are that you would listen to everything, be guided by the evidence

and the law, wherever that might take you?

CONDON: Yes.

...

PROSECUTION: . . . Can you tell us in your own words

what your feelings are on the death penalty?

CONDON: Well, I feel that in certain cases it’s justifiable

punishment for - - never been asked to put it in words, I guess. If

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someone commits a premeditated act of violence against someone

else, I think it’s justifiable they be repaid in kind.

...

PROSECUTION: . . . Could you participate in the jury

deliberations and assessing the death penalty if the evidence and

the law directs you to?

CONDON: Yes.

...

PROSECUTION: Okay. Do you understand - - can you

perceive that [the second special] issue could be answered either

yes or no as well?

CONDON: Yes.

...

PROSECUTION: . . . Let’s say you were king of the world. If

you were the king, would your kingdom have a death penalty?

CONDON: Yes.

PROSECUTION: And why?

CONDON: I just feel that certain crimes deserve the

ultimate punishment, I guess. 300

In his post-conviction statement, Condon made the following assertions:

For me, if somebody is not insane and kills somebody,

especially a child, the only appropriate penalty is the death

penalty. Other than showing that it was an accident or the person

was insane I do not think that any other considerations are

relevant. If you are found guilty of capital murder you should get

the death penalty.

...

When I was asked at the time the jury was selected whether

I could consider voting for life I said yes and I was thinking about

a situation where someone was insane and did not know what they

were doing. 301

300 5RR5-17.

301 Pet. Ex. 67 at 007533-007534, 007537-007538.

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The first paragraph of the post-trial statement reflects Condon’s views

as of the date of the statement. It does not say that Condon held these view

during voir dire. But even if he held those views during voir dire, nothing in

the first paragraph or the second paragraph contradicts Condon’s voir dire

testimony. When asked to “tell us in your own words what your feelings are

on the death penalty,” Condon responded, “[i]f someone commits a

premeditated act of violence against someone else, I think it’s justifiable they

be repaid in kind.” That is a categorical statement. It is entirely consistent

with both the first and second paragraphs of Condon’s post-trial statement, as

is Condon’s statement during voir dire that “I just feel that certain crimes

deserve the ultimate punishment.” Condon was not asked during voir dire

whether the only circumstance that would cause him to vote for a life sentence

would be the insanity of the defendant. Austin has not established the first

requirement of McDonough, which is that Condon failed to answer honestly a

material question.

Juror Gibbs

Gibbs’s voir dire contained the following exchanges:

THE COURT: And if the evidence called for it, [could you]

answer [the special issues] in such a way that you know a life

sentence would result?

GIBBS: Yes.

THE COURT: I take it, then – and correct me if I’m wrong –

that you would be guided by the evidence, listen to all of the

evidence and answer the questions according to the evidence,

wherever that might take you?

GIBBS: Yes.

...

PROSECUTION: . . . Tell us first in your own words, what

are your feelings on the death penalty?

GIBBS: I am for it and - - I’m for it. I think it’s necessary

for a crime deterrent, and that’s about it.

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...

PROSECUTION: . . . Okay. Can you consider, then, in your

mind that [the first special issue], depending on the evidence, could

be answered either yes or no?

GIBBS: Yes.

...

PROSECUTION: Can you consider that in Issue No. 2 that

it could be answered in a yes or no fashion?

GIBBS: Yes.

...

PROSECUTION: . . . Do you feel that you can participate in

that - - the deliberations, deliberating with the jury and assess the

death penalty if the law and the evidence supports it?

GIBBS: Yes.

...

PROSECUTION: . . . are you saying that if you know that

the defendant is representing himself and you know that he has a

death wish, if the law and the evidence supports assessing the

death penalty, are you saying you still could not assess the death

penalty?

THE COURT: In other words, if the evidence called for

answering those questions in such a way that you answered the

first one yes and the second one no, you know the death penalty

would result?

GIBBS: Yes.

THE COURT: Would the fact that you feel that you would be

giving a defendant something that he wanted cause you in any way

to change your answers based on the evidence?

GIBBS: No.

THE COURT: So, then, would you - - would you, I guess,

honor your oath as a juror and base your verdict to those questions

on the evidence; and if that’s what the evidence proved to you, you

would answer them in that way?

GIBBS: Yes.

THE COURT: Even if you feel like it’s kind of unfair to give

him what he would want?

GIBBS: Exactly. That’s just the way that I feel. That’s not

the way that - - if that’s what the law states, then that’s how, I

guess, I would have to vote. But I mean - -

THE COURT: Your personal opinion - -

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GIBBS: Personal feelings, I would have to say no; but I

would say I would vote the death penalty if that’s what the law

stated and - -

THE COURT: And the evidence showed?

GIBBS: Yes. 302

In his post-trial statement, Juror Gibbs made the following assertions:

I believe that ‘an eye for an eye’ is correct. If you kill

someone you should face the death penalty.

Once someone is guilty of capital murder I believe that the

only appropriate penalty is the death penalty. I do not think that

there is anything that would be mitigating so that a person should

not get the death penalty, this includes the person being insane.

Once I heard that Perry Austin had admitted to

intentionally killing a nine year old boy I was only going to vote

one way—I was going to vote ‘yes’ he was a future danger and ‘no’

there was nothing mitigating. I was not going to vote for anything

other than the death penalty. 303

The first two paragraphs reflect Gibbs’ belief as of the date of his

statement. They are not evidence that he held these views during voir dire.

The third paragraph reflects Gibbs’ weighing of all the evidence. As discussed

above, there is no evidence that before or during voir dire, Gibbs had “heard

that Perry Austin had admitted to intentionally killing a nine year old boy.”

The record reflects that D.K.’s age was not in evidence until after voir dire. 304

When the facts were presented during trial, Austin gave the fact that Austin

intentionally killed a nine-year-old child controlling weight. He did not say he

would do otherwise in his voir dire testimony.

Juror Tamayo

302 5RR32-33, 38-40, 43-44.

303 Pet. Ex. 65 at 007525-007526.

304 9RR17.

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The relevant portions of juror Tamayo’s voir dire are as follows:

THE COURT: And I guess the other part of that would be if

the evidence called for it, could you answer [the special issues] in

such a way that a life sentence would result?

TAMAYO: Yeah.

THE COURT: So I guess my question is can you assure us

that you would be guided by the evidence and the law and answer

those questions accordingly, regardless of which result it might be?

TAMAYO: Yeah.

THE COURT: Yeah?

TAMAYO: Yes.

...

PROSECUTION: Well, why don’t you tell me in your own

words what you think of the death penalty and what purpose do

you think it serves?

TAMAYO: Well, I think it’s working. I’m for it.

...

PROSECUTION: . . . You may hear something that’s

sufficient enough for you that you think even though he’s a capital

murderer and he’s probably going to be dangerous, he ought to

receive life instead of death. Okay. Does that question make sense

to you?

TAMAYO: It does.

...

PROSECUTION: If you were the king and it’s your kingdom

and you get to write the laws, would your kingdom have a death

penalty?

TAMAYO: Well, yeah. I think, yeah, it would.

PROSECUTION: Why?

TAMAYO: Because if, you know, the evidence proves that

he’s going to keep, you know, having - - making trouble and stuff,

well, then get rid of him, forget it.

...

PROSECUTION: . . . Hypothetically, let’s assume during

the course of the trial, if you’re selected to sit on the jury, you find

out not only that he’s representing himself but that he has a death

wish. He’s not asking any questions. He just sits there, and he

wants y’all to give him the death penalty. How does that make you

feel?

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TAMAYO: Well, it’s not whether he wants it or not. It’s just

whether it’s given to him or not.

PROSECUTION: Based on the law and evidence?

TAMAYO: Right. 305

Juror Tamayo’s post-trial statement contained the following:

The death penalty is especially appropriate for child killers.

I do not consider mental illness to be mitigation because it is too

easy for defendants to lie and manipulate circumstances. 306

Tamayo’s post-trial statement does not say that he held these views

during voir dire. The statement reflects his beliefs two years after trial. In

any event, the statement expresses the weight that Tamayo would give to two

factors. His belief that the death penalty is especially appropriate for child

killers and that he does not consider mental illness to be mitigating is simply

how he weighs such evidence. He does not consider mental illness to be “a

sufficient mitigating circumstance,” and the special issue asked only if there is

“a sufficient mitigating circumstance or circumstances.” If Austin’s position

were correct, a prospective juror would be required to confirm during voir dire

that he or she would vote for a life sentence if there were evidence of mental

illness, at least in some circumstances. Neither the law nor the issues put to

Austin’s jury requires this. The Supreme Court has long recognized that

evidence of mental illness is a two-edged sword when a jury is deciding whether

a death sentence is appropriate. 307

Juror Finnegan

Juror Finnegan’s voir dire proceeded, in relevant part, as follows:

305 5RR46-60.

306 Pet. Ex. 85 at 007645.

307 See Brewer v. Quarterman, 550 U.S. 286, 292-93 (2007) (“As did Penry's, Brewer's

mitigating evidence served as a ‘two-edged sword’ because it tended to confirm the State's

evidence of future dangerousness as well as lessen his culpability for the crime.”).

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THE COURT: And, on the other hand, if the evidence called

for it, [could you] answer [the special issues] in such a way that a

life sentence would result?

FINNEGAN: Absolutely.

THE COURT: All right. So then I take it, Mr. Finnegan,

what you’re telling us is that you would listen to all of the evidence,

follow the law and answer those questions according to the law and

the evidence, wherever that might lead you?

FINNEGAN: Absolutely.

...

PROSECUTION: Okay. Is there anything about your

experience working with the F.B.I. or having been a police officer

for as many years as you had that would affect your ability to be a

juror in a criminal case?

FINNEGAN: I’d say no.

PROSECUTION: Okay. Anything about your experience in

law enforcement dealing with defense attorneys or prosecutors

that would affect your ability to be a juror in a criminal case?

FINNEGAN: No. Purely professional.

PROSECUTION: Okay. All right. Now, why don’t you tell

me, Mr. Finnegan, if you will, what your feelings are about the

death penalty and what purpose do you think it serves in our

society?

FINNEGAN: Feelings?

PROSECUTION: Yes, sir.

FINNEGAN: First, it’s a necessary evil - -

PROSECUTION: Okay.

FINNEGAN: - - I would say. And the reason being is that

I’m a - - what right do I have to take another life? However, along

those same lines, there are certain crimes which I consider heinous

crimes which I think the person, if he or she has absolutely no

remorse and possesses [sic] a continuing threat, I could absolutely

be in favor of.

PROSECUTION: . . . [W]hen you say “heinous crimes,” what

types of offenses came to your mind where you thought the death

penalty might be appropriate?

FINNEGAN: Violent crimes against a child.

PROSECUTION: Okay.

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FINNEGAN: That would be, you know - - and purely

innocent type of victim without any defense, something along those

lines. That’s what first issue came to my mind.

...

PROSECUTION: Can you see how special issue No. 2 can be

answered yes or no just depending on what you hear in the

courtroom?

FINNEGAN: I do. 308

In his post-trial statement, Juror Finnegan made the following assertions:

I believe that once Austin was found guilty of the murder of

the victim the only appropriate sentence was death in accordance

with Texas law. I believe that the prosecutors chose me to be on

Austin’s jury because Perry wanted to die and Perry knew that

with me working in law enforcement I would sentence him to

death. Perry allowed me to stay on his jury. 309

Nothing in Finnegan’s post-trial statement indicates that he was

dishonest in responding to questions during voir dire. Finnegan’s statement

refers to “the victim,” not murder victims generically. Finnegan did not say

that he would automatically vote for the death penalty in every case. 310 The

victim in this case was a nine-year-old boy. For the reasons discussed above,

Finnegan’s post-trial statement is evidence of the weight that he gave to the

nature of the crime, not evidence that Finnegan failed to respond truthfully to

inquiries during voir dire.

None of the post-trial statements establish that a juror answered a

question dishonestly during voir dire.

308 5RR66-83.

309 Pet. Ex. 94 at 007738-007739.

310 See Morgan v. Illinois, 504 U.S. 719, 729 (1992) (“A juror who will automatically

vote for the death penalty in every case will fail in good faith to consider the evidence of

aggravating and mitigating circumstances as the instructions require him to do.”).

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VII

Austin contends that the district court erred in denying his request for

an evidentiary hearing (Issue 1). Section 2254(e)(2) controls whether a habeas

petitioner may receive an evidentiary hearing in federal district court on the

claims for which the applicant failed to develop the factual basis in state

courts. 311 It “constrains the discretion of district courts to grant evidentiary

hearings,” even “[w]here section 2254(d) does not apply.” 312 The phrase “failed

to develop” means a “lack of diligence, or some greater fault, attributable to the

prisoner or the prisoner’s counsel.” 313

The parties dispute whether Austin was diligent in pursuing his

competency claims, such that § 2254(e)(2) does not apply. We need not resolve

the issue with regard to Austin’s incompetency claims. “A district court may

refuse an evidentiary hearing where there is not ‘a factual dispute which, if

resolved in [the prisoner’s] favor, would entitle him to relief.’” 314 We note that

the district court granted Austin time and funding to investigate his claims, 315

and concluded that an evidentiary hearing was unnecessary to resolve the

claims presented in his petition. 316 Austin still fails to adduce evidence that

creates a factual dispute that, if resolved in his favor, would entitle him to

relief on his competency claim. Austin’s experts certainly opine that he

311 Williams v. Taylor, 529 U.S. 420, 429 (2000); Norman v. Stephens, 817 F.3d 226,

234 (5th Cir. 2016).

312 Loden v. McCarty, 778 F.3d 484, 494 (5th Cir. 2015); see also Cullen v. Pinholster,

563 U.S. 170, 185-86 (2011) (“At a minimum, . . . § 2254(e)(2) still restricts the discretion of

federal habeas courts to consider new evidence when deciding claims that were not

adjudicated on the merits in state court.”).

313 Norman, 817 F.3d at 234 (quoting Williams, 529 U.S. at 432).

314 Id. at 235 (quoting Clark v. Johnson, 202 F.3d 760, 766 (5th Cir. 2000)).

315 ROA.1915; ROA.1924.

316 ROA.2747-48; ROA.2766 (noting that the court would “call for an evidentiary

hearing if it determines that one is necessary”).

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suffered from depression and suicidality. But, as previously discussed, mere

presence of mental illness does not render a defendant incompetent. The

district court did not abuse its discretion in denying an evidentiary hearing on

the issue of competence.

With respect to the jury bias claim, it appears that Austin pursued an

evidentiary hearing in the federal district court only on the issue of

competence. 317 Austin now concedes that further factual development with

regard to his juror bias claim is not necessary. 318 However, out of an

abundance of caution, and to the extent he sought an evidentiary hearing in

relation to his juror bias claims in his briefing in our court, 319 we address

whether the district court erred in failing to conduct an evidentiary hearing

regarding juror bias. We conclude that the district court did not abuse its

discretion in denying an evidentiary hearing.

We can determine from the record that the post-trial juror statements at

issue can be reconciled with each juror’s statements during voir dire. Further

factual development in an evidentiary hearing is not warranted. Austin does

not identify another factual dispute regarding his juror bias claim which might

independently require further factual development.

* * *

For the foregoing reasons, we AFFIRM the district court’s judgment

denying relief on Austin’s claims.

317 ROA.2126-31 (motion for evidentiary hearing); ROA.2133 (exhibit list for Austin’s

motion showing exhibits appearing to relate only to Austin’s mental health).

318 Oral Argument at 25:40 (July 12, 2017).

319 Austin Br. at 47 (“Another factual dispute requiring relief if decided in Petitioner’s

favor is whether jurors in the case were biased, in particular, whether the disqualifying bias

they now express was present at the time of trial.”).

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PRISCILLA R. OWEN, Circuit Judge, concurring:

I write separately to provide additional reasons that habeas relief should

be denied in this case.

I

In Pena–Rodriguez, the Supreme Court observed that before Rule

606(b)’s adoption the Court had “noted the possibility of an exception to the

[common-law no-impeachment rule] in the ‘gravest and most important

cases.’” 1 “Yet since the enactment of Rule 606(b),” the Court continued, it “has

addressed the precise question whether the Constitution mandates an

exception to [the common-law no-impeachment rule] in just two instances.” 2

Those two instances were Tanner, 3 in which “the Court rejected a Sixth

Amendment exception for evidence that some jurors were under the influence

of drugs and alcohol during the trial,” 4 and Warger, 5 in which “[t]he Court

again rejected the argument that, in the circumstances there, the jury trial

right required an exception to the no-impeachment rule.” 6 The Court had

noted in Warger that “[t]here may be cases of juror bias so extreme that, almost

by definition, the jury trial right has been abridged. If and when such a case

arises, the Court can consider whether the usual safeguards are or are not

sufficient to protect the integrity of the process.” 7 Neither the Supreme Court

1 Pena–Rodriguez v. Colorado, 137 S. Ct. 855, 865-66 (2017) (quoting United States v.

Reid, 12 How. 361, 366, 13 L. Ed. 1023 (1852) and McDonald v. Pless, 238 U.S. 264, 269

(1915)).

2 Id.

3 Tanner v. United States, 483 U.S. 107 (1987).

4 Pena–Rodriguez, 137 S. Ct. at 866 (citing Tanner, 483 U.S. at 125).

5 Warger v. Shauers, 135 S. Ct. 521 (2014).

6 Pena–Rodriguez, 137 S. Ct. at 866 (citing Warger, 135 S. Ct. at 529).

7 Warger, 135 S. Ct. at 529 n.3.

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nor this court has recognized an exception to Rule 606(b) in a case like the

present one.

An exception to the no-impeachment rule should not be recognized here.

Even assuming arguendo that one or more of the five jurors answered a

material question dishonestly during voir dire, habeas relief remains

unwarranted. The record amply supports, and in fact compels, the conclusion

that Austin had resolved to accept all jurors that the State accepted and that

if, during voir dire, the five jurors had expressed the views contained in their

post-trial statements, Austin would not have challenged any of those jurors for

cause, because Austin’s trial strategy was to obtain the death penalty. Austin

cannot now claim in a habeas proceeding that had he known the jurors’ actual

views, or had he known that they had predilections and a bias in favor of the

death penalty, he would have challenged them for cause and thereby preserved

the issue for appeal or collateral review. The record is clear that he would not

have challenged any of the five jurors for cause during the trial even had there

been a basis for doing so.

It is undisputed that when voir dire occurred, Austin intended to plead

guilty, and after the jurors were seated, Austin entered a guilty plea in their

presence. The jury was empaneled only to decide whether Austin would

receive a life sentence or a death sentence. During closing arguments, Austin

personally argued to the jury that, because of the nature of his crime and

because of his past and future dangerousness, it should answer the two

questions submitted in a way that would require imposition of the death

penalty. The Supreme Court has never held that, consistent with a defendant’s

trial strategy, a defendant may knowingly accept a biased juror and then, after

a change of heart in collateral proceedings, obtain automatic reversal because

of that juror’s bias.

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To the contrary, the Supreme Court explained in McDonough Power

Equipment, Inc. v. Greenwood, the primary case on which Austin relies, that

“[i]t is not clear from the opinion of the Court of Appeals whether the

information stated in Greenwood’s affidavit was known to respondents or their

counsel at the time of the voir dire examination.” 8 Importantly, the Court

admonished that “[i]f it were, of course, [defendants] would be barred from

later challenging the composition of the jury when they had chosen not to

interrogate [the potentially biased juror] further upon receiving an answer

which they thought to be factually incorrect.” 9 The Supreme Court cited a

decision from the Eighth Circuit in support of this conclusion, 10 which held

that “‘[t]he right to challenge the panel or to challenge a particular juror may

be waived, and in fact is waived by failure to seasonably object.’” 11 The Eighth

Circuit explained that

It is established that failure to object at the time the jury is

empaneled operates as a conclusive waiver if the basis of the

objection is known of [sic] might have been known or discovered

through the exercise of reasonable diligence, or if the party is

otherwise chargeable with knowledge of the ground of the

objection. 12

8 McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548, 550 n.2 (1984).

9 Id.

10 Id. (citing Johnson v. Hill, 274 F.2d 110, 115-116 (8th Cir. 1960)).

11 Johnson, 274 F.2d at 116 (quoting Batsell v. United States, 217 F.2d 257, 260 (8th

Cir. 1954) (citing Carruthers v. Reed, 102 F.2d 933, 939 (8th Cir. 1939))).

12 Id. (quoting Batsell, 217 F.2d at 260 (citing 50 C.J.S. Juries § 251)); see also United

States v. Pennington, 168 F.3d 1060, 1067 (8th Cir. 1999) (holding in a direct criminal appeal

that the defendant “waived this [juror bias] issue by not challenging the juror when the jury

was empaneled because the basis for the objection was then known”). But see Franklin v.

Anderson, 434 F.3d 412, 426-28 (6th Cir. 2006) (holding in a habeas proceeding that a juror

“was biased because she could not understand the law,” that “[t]here is no situation under

which the impaneling of a biased juror can be excused,” that “the State can [accordingly]

make no argument that [the defendant’s] trial counsel acted strategically in keeping [the

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Similarly, the Eleventh Circuit has held that reversal of a verdict is

inappropriate when a defendant permits a potentially or actually biased juror

to be seated as part of trial strategy. 13

The point of citing these authorities is twofold. First, Austin may well

have elicited the same information that is contained in the jurors’ post-trial

statements had he questioned these jurors during voir dire. 14 Second, and

more importantly, even had the jurors expressed during voir dire what they

said in their post-trial statements, Austin would have had to have asserted a

challenge for cause to have preserved a claim of juror bias for consideration on

appeal or in a habeas proceeding. The record establishes that Austin would

not have challenged them for cause.

Prior to trial Austin declared that he would accept every juror that the

State accepted and that he would not exercise any peremptory challenges. 15

During voir dire at least two of the jurors that Austin now contends were biased

made statements that should have at least prompted inquiry, if not challenges

for cause, by Austin regarding bias or pre-judgment of the issues to be decided

by the jury.

During the voir dire of Juror Erwin, the following exchange occurred:

ERWIN: There’s a few cases I think you should get the death

penalty, but that’s just me.

biased juror] on the panel” and that “[t]o permit this would be to allow trial counsel to waive

the defendant’s right to an impartial jury”).

13 See generally United States v. Simmons, 961 F.2d 183, 186 (11th Cir. 1992) (holding

that a district court did not commit plain error by failing to excuse, sua sponte, certain jurors

for cause, because defense counsel’s failure to exercise two remaining peremptory strikes

“may well have been a strategic decision to retain the four jurors in question”).

14 See generally Robinson v. Monsanto Co., 758 F.2d 331, 335 (8th Cir. 1985) (holding

in a civil case that “the right to challenge a juror is waived by failure to object at the time the

jury is empaneled if the basis for objection might have been discovered during voir dire”).

15 See generally Reporter’s Record vols. 3-8; CR at 20.

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PROSECUTION: Okay, and that would be what? What

cases would those be?

ERWIN: Anything had to do with hurting the elderly—

PROSECUTION: Okay.

ERWIN: —or kids.

PROSECUTION: Children?

ERWIN: Children.

Similarly, during the voir dire of Juror Finnegan, this exchange

occurred:

PROSECUTION: Okay. All right. Now, why don’t you tell

me, Mr. Finnegan, if you will, what your feelings are about the

death penalty and what purpose do you think it serves in our

society?

FINNEGAN: Feelings?

PROSECUTION: Yes, sir.

FINNEGAN: First, it’s a necessary evil—

PROSECUTION: Okay.

FINNEGAN: —I would say. And the reason being is that I’m

a—what right do I have to take another life? However, along those

same lines, there are certain crimes which I consider heinous

crimes which I think the person, if he or she has absolutely no

remorse and possesses [sic] a continuing threat, I could absolutely

be in favor of.

PROSECUTION: [W]hen you say “heinous crimes,” what

types of offenses came to your mind where you thought the death

penalty might be appropriate?

FINNEGAN: Violent crimes against a child.

PROSECUTION: Okay.

FINNEGAN: That would be, you know—and purely innocent

type of victim without any defense, something along those lines.

That’s what first issue came to my mind.

Though Austin’s sentence for the murder of a child would depend on the

jury’s findings in favor of either life or death, Austin remained silent

throughout voir dire. He has offered no reason for failing to question Erwin or

Finnegan as to the views they expressed during voir dire regarding the death

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penalty when a child was the victim. He has not asserted in habeas

proceedings that his counsel (himself) was ineffective for failing to question

these jurors during voir dire or for failing to challenge them for cause. His only

contention is that, if he had known during voir dire the substance of the five

jurors’ post-trial statements, he would have had grounds to challenge each of

them for cause. If grounds to remove them for cause did exist, and had those

grounds been revealed during voir dire, then it would have been incumbent

upon Austin actually to raise challenges for cause. Otherwise, as the Eighth

Circuit cogently explained, “‘[i]f a defendant is allowed to . . . forego challenges

for-cause to a biased juror and then allowed to have the conviction reversed on

appeal because of that juror’s service, that would be equivalent to allowing the

defendant to plant an error and grow a risk-free trial.’” 16

It rings hollow for Austin now to contend that had he known the five

jurors’ views he would have challenged them for cause. Austin’s actions, and

more importantly inactions, in declining to ask any questions during voir dire,

deciding before trial to accept all jurors the State accepted, and declining to

exercise any preemptory challenges are entirely consistent with his trial

strategy, which he set forth in letters to the trial court. Prior to trial, Austin

advised the trial court that he was “still firm about [his] decision to not fight

this case” and that “since [he was] not going to put up any type of defense,” he

had “decided that it [was] not necessary for [him] to review [his] case file.” 17

The Supreme Court has never held that juror bias is structural error

requiring automatic reversal. In addition to its discussion in McDonough, 18

16 United States v. Johnson, 688 F.3d 494, 501-02 (8th Cir. 2012) (quoting United

States v. Brazelton, 557 F.3d 750, 755 (7th Cir. 2009) (internal quotations marks and citations

omitted)).

17 CR at 58 (letter from Austin to the trial court dated Feb. 19, 2002).

18 McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 550 n.2 (1984).

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the Supreme Court has indicated that when grounds for cause to challenge a

juror are apparent, the defendant must properly preserve his right to challenge

for cause.

In Ross v. Oklahoma, a defendant in a capital case moved to excuse a

potential juror for cause because that member of the venire “declared that if

the jury found [the defendant] guilty, he would vote to impose death

automatically.” 19 When the trial court refused to excuse the potential juror for

cause, the defendant exercised a peremptory challenge to prevent the seating

of that individual on the jury. 20 The Supreme Court’s actual holding in Ross

was that the trial court had erred in refusing to strike the person for cause, but

the Court “reject[ed] the notion that the loss of a peremptory challenge

constitutes a violation of the constitutional right to an impartial jury” because

“[w]e have long recognized that peremptory challenges are not of constitutional

dimension.” 21 The Court concluded that “[s]o long as the jury that sits is

impartial, the fact that the defendant had to use a peremptory challenge to

achieve that result does not mean the Sixth Amendment was violated.” 22 The

Court also said that “[i]t is well settled that the Sixth and Fourteenth

Amendments guarantee a defendant on trial for his life the right to an

impartial jury,” 23 but the sentence following that statement contained

qualifiers material to the inquiry presently before us. The Court said, “[h]ad

[the biased juror] sat on the jury that ultimately sentenced [the defendant] to

death, and had the petitioner properly preserved his right to challenge the trial

19 Ross v. Oklahoma, 487 U.S. 81, 83-84 (1988).

20 Id. at 84.

21 Id. at 88.

22 Id.

23 Id. at 85.

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court’s failure to remove [the biased juror] for cause, the sentence would have

to be overturned.” 24 The prerequisite in the Court’s analysis of when a

sentence would have to be overturned was a challenge for cause that was

denied by the trial court.

The Supreme Court also discussed in Ross the requirement of Oklahoma

law “that a defendant who disagrees with the trial court’s ruling on a for-cause

challenge must, in order to preserve the claim that the ruling deprived him of

a fair trial, exercise a peremptory challenge to remove the juror,” and that

“[e]ven then, the error is grounds for reversal only if the defendant exhausts

all peremptory challenges and an incompetent juror is forced upon him.” 25

In United States v. Martinez–Salazar, the Supreme Court reiterated that

reversal would be “require[d]” when (1) a biased juror is seated after (2) the

trial court erroneously overruled an objection that the juror should be excused

for cause. 26 In Martinez–Salazar, a potential juror had indicated repeatedly

and consistently that he would favor the prosecution, 27 and the trial court erred

in failing to dismiss that person for cause. 28 The actual holding of the Supreme

Court was that even though the defendant used a peremptory challenge to

remove the biased member of the venire and subsequently exhausted his

remaining peremptory challenges, the defendant was “not deprived of any

rule-based or constitutional right,” because the jury that convicted him did not

24 Id. (emphasis added).

25 Id. at 89 (citing Ferrell v. State, 475 P.2d 825, 828 (Okla. Crim. App. 1970) and Stott

v. State, 538 P.2d 1061, 1064-1065 (Okla. Crim. App. 1975)).

26 United States v. Martinez–Salazar, 528 U.S. 304, 316 (2000) (citing Ross v.

Oklahoma, 487 U.S. 81, 85 (1988)).

27 Id. at 308.

28 Id. at 307 (“We focus on this sequence of events: the erroneous refusal of a trial

judge to dismiss a potential juror for cause, followed by the defendant’s exercise of a

peremptory challenge to remove that juror.”).

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