Opposition Brief — Perry Allen Austin, Petitioner v. Lorie Davis, Director, Texas Department of Criminal Justice, Correctional Institutions Division
Supreme Court briefMay 8, 2018
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No. 17-8528
In the Supreme Court of the United States
_____________
PERRY ALLEN AUSTIN, PETITIONER
v.
LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION
(CAPITAL CASE)
_____________
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________
BRIEF IN OPPOSITION
_____________
KEN PAXTON
Attorney General of Texas
JEFFREY C. MATEER
First Assistant Attorney General
OFFICE OF THE
ATTORNEY GENERAL
P.O. Box 12548 (MC 059)
Austin, Texas 78711-2548
[Tel.]: (512) 936-1700
[Fax]: (512) 474-2697
scott.keller@oag.texas.gov
SCOTT A. KELLER
Solicitor General
Counsel of Record
JASON R. LAFOND
Assistant Solicitor General
Counsel for Respondent
QUESTION PRESENTED
In Godinez v. Moran, 509 U.S. 389 (1993), this Court held that a single standard for
competency to stand trial, waive counsel, and plead guilty—that a criminal defendant is
competent if he has a rational and factual understanding of the proceedings to which he is
subject, see Dusky v. United States, 362 U.S. 402, 402 (1960) (per curiam)—applies in all
situations. Petitioner here, like the petitioner in Godinez, waived counsel, pleaded guilty to
capital murder, and acquiesced in the death penalty. The question presented is:
Was the Fifth Circuit correct to reject, as every other court has, the argument that a
criminal defendant who satisfies the Dusky standard for competence is nonetheless
incompetent because he is acquiescing in the death penalty for his admitted crime?
i
TABLE OF CONTENTS
Question presented ........................................................................................................................ i
Table of authorities...................................................................................................................... iii
Statement ...................................................................................................................................... 2
ARGUMENT ...................................................................................................................16
I.
The Fifth Circuit’s correct application of Dusky does not warrant
review. ...................................................................................................................16
II.
Review is also unwarranted because of a separate vehicle problem:
petitioner’s question presented is actually not fairly presented. ...................22
III.
Petitioner’s true aim is to create a new standard for competency, but
that question is not fairly presented. .................................................................23
IV.
The Kentucky Supreme Court’s decision in Chapman does not justify
review here. ..........................................................................................................24
V.
Review is also inappropriate because none of the new evidence on
which petitioner relies to retrospectively attack his competence is
admissible on federal habeas review. ................................................................27
Conclusion.................................................................................................................................... 34
ii
TABLE OF AUTHORITIES
Cases:
Austin v. Davis,
647 F. App’x 477 (5th Cir. 2016) ...........................................................................................33
Austin v. Davis,
876 F.3d 757 (5th Cir. 2017) ........................................................................................ passim
Austin v. State,
No. 74372, 2003 WL 1799020 (Tex. Crim. App. Apr. 2, 2003) ..................................... 11, 28
Ex parte Austin,
No. 59,527-01, 2004 WL 7330939 (Tex. Crim. App. July 6, 2004) .....................................12
Bear v. Boone,
173 F.3d 782 (10th Cir. 1999) ................................................................................................28
Castille v. Peoples,
489 U.S. 346 (1989) ........................................................................................................... 28, 29
Chapman v. Commonwealth,
265 S.W.3d 156 (Ky. 2007) ......................................................................................... 24, 25, 26
City of Milwaukee v. Illinois,
451 U.S. 304 (1981) .................................................................................................................32
Conner v. Quarterman,
477 F.3d 287 (5th Cir. 2007) ..................................................................................................31
Cullen v. Pinholster,
563 U.S. 170 (2011) ........................................................................................................... 27, 28
Davila v. Davis,
137 S. Ct. 2058 (2017).............................................................................................................32
Deere v. Cullen,
718 F.3d 1124 (9th Cir. 2013) ................................................................................................19
Demosthenes v. Baal,
495 U.S. 731 (1990) (per curiam) ..........................................................................................27
Dennis ex rel. Butko v. Budge,
378 F.3d 880 (9th Cir. 2004) ..................................................................................................19
Drope v. Missouri,
420 U.S. 162 (1975) ............................................................................................... 17, 18, 19, 23
Dusky v. United States,
362 U.S. 402 (1960) (per curiam) ................................................................................ passim
iii
Faretta v. California,
422 U.S. 806 (1975) ........................................................................................................... 11, 28
Gilmore v. Utah,
429 U.S. 1012 (1976) ...............................................................................................................18
Godinez v. Moran,
509 U.S. 389 (1993) ....................................................................................................... passim
Holland v. Jackson,
542 U.S. 649 (2004) .................................................................................................................30
Ex parte Hood,
304 S.W.3d 397 (Tex. Crim. App. 2010) ......................................................................... 29, 31
Hooper v. State,
142 P.3d 463 (Okla. Crim. App. 2006) ..................................................................................25
Hunter v. Bowersox,
172 F.3d 1016 (8th Cir. 1999) ................................................................................................21
Maggio v. Fulford,
462 U.S. 111 (1983) ..................................................................................................... 18, 19, 27
Martinez v. Ryan,
566 U.S. 1 (2012)............................................................................................................... 29, 33
McGregor v. Gibson,
248 F.3d 946 (10th Cir. 2001) (en banc) ...............................................................................19
Miller v. Fenton,
474 U.S. 104 (1985) .................................................................................................................27
Owens v. Frank,
394 F.3d 490 (7th Cir. 2005) ..................................................................................................30
Pate v. Robinson,
383 U.S. 375 (1966) .................................................................................................................17
Rees v. Peyton,
384 U.S. 312 (1966) ........................................................................................................... 23, 25
Roberts v. Dretke,
356 F.3d 632 (5th Cir. 2004) ..................................................................................................31
Taylor v. Horn,
504 F.3d 416 (3d Cir. 2007) ................................................................................. 20, 21, 31, 32
Thompson v. Keohane,
516 U.S. 99 (1995) ...................................................................................................................27
United States v. Abdulmutallab,
739 F.3d 891 (6th Cir. 2014) ..................................................................................................20
iv
Watts v. Singletary,
87 F.3d 1282 (11th Cir. 1996) ................................................................................................19
Williams v. Taylor,
529 U.S. 420 (2000) ............................................................................................... 27, 30, 31, 32
Windsor v. Commonwealth,
413 S.W.3d 568 (Ky. 2011) .....................................................................................................26
Constitutional provisions, statutes, and rule:
U.S. Const.:
amend. VI ......................................................................................................................... 11, 28
amend. XIV....................................................................................................................... 11, 28
28 U.S.C.:
§ 2254(a) ..................................................................................................................................27
§ 2254(b) ..................................................................................................................................27
§ 2254(d) ..................................................................................................................................27
§ 2254(d)(1) ....................................................................................................................... 27, 28
§ 2254(e) ..................................................................................................................................27
§ 2254(e)(1) .................................................................................................................. 13, 14, 27
§ 2254(e)(2) .................................................................................................................. 27, 30, 32
§ 2254(e)(2)(A)-(B) .................................................................................................................30
Tex. Code Crim. Proc.:
art. 11.071 § 4(a) .....................................................................................................................12
art. 37.071, § 2(h) ....................................................................................................................11
Tex. R. App. P. 77.3 .....................................................................................................................12
Miscellaneous:
John H. Blume, Killing the Willing: “Volunteers,” Suicide and Competency, 103
Mich. L. Rev. 939 (2005) ........................................................................................................24
Brian R. Boch, Fourteenth Amendment—The Standard of Mental Competency
to Waive Constitutional Rights Versus the Competency Standard to Stand
Trial, 84 J. Crim. L. & Criminology 883 (1994) .................................................................24
5 Wayne R. LaFave, et al., Criminal Procedure § 21.4(b) (4th ed. 2015) .............................25
2 Brian R. Means, Postconviction Remedies § 29:15 (2016)....................................................28
Stephen Skaff, Note: Commonwealth v. Chapman: Death Row Volunteers,
Competency, and “Suicide by Court”, 53 St. Louis U. L.J. 1353 (2009) .........................25
v
In the Supreme Court of the United States
_____________
No. 17-8528
PERRY ALLEN AUSTIN, PETITIONER
v.
LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION
_____________
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________
BRIEF IN OPPOSITION
_____________
After confessing to kidnapping and murdering a child, petitioner actively, lucidly, and
rationally participated in his criminal proceedings. Each of the most commonly invoked indicia of “adjudicative competence”—the trial court’s observation of the defendant’s behavior and the opinions of a defendant’s counsel and a neutral expert—supported the trial
court’s conclusion that petitioner was competent to stand trial and thus competent to waive
his right to a trial and to the assistance of counsel. On federal habeas review, the district
court and the Fifth Circuit faithfully applied this Court’s precedent in ruling that the state
trial court’s factual finding should not be disturbed. The Fifth Circuit’s decision was consistent with this Court’s decisions and the decisions of courts throughout the country. Petitioner’s argument, in contrast, distorts this Court’s precedent, the precedent of other
courts, and the Fifth Circuit’s decision.
1
Review is thus unwarranted. There is no conflicting authority on any relevant question.
And there is no basis for altering this Court’s precedent, which is petitioner’s true aim.
Moreover, none of the evidence on which petitioner now relies was presented to the state
courts that adjudicated his competence, so none is admissible on federal habeas review.
STATEMENT
1. In 1991, having recently been released from prison after serving time for sexual assault, petitioner began a sexual relationship with a 14-year-old girl, Jennifer. R.616. 1
0F
Through this relationship, petitioner became acquainted with David, the 9-year-old boy he
would later murder. R.616.
When David went missing, police suspected that petitioner was involved. While investigating the murder of David, police discovered petitioner’s illicit relationship with Jennifer.
R.617-618. Although investigators were unable to build a successful case against petitioner
for the murder of David at that time, the State obtained a conviction against him for sexual
assault based on his relationship with Jennifer. R.831.
Petitioner was sentenced to 30 years in prison. R.831. In 1997, while serving his sentence, petitioner tried to murder a fellow prisoner and was sentenced to an additional 20
years of prison. R.620, 831.
Petitioner subsequently wrote a letter to the detective investigating the murder of David offering to confess to the crime. 14.RR Ex. 68. 2 Following up on petitioner’s letter, the
1F
1
2
“R” refers to the record in the Fifth Circuit.
“RR” refers to the court reporter’s trial transcripts in petitioner’s state proceeding.
2
detective visited petitioner in prison. See Pet. Ex. 33 at 2079. 3 During this visit, petitioner
2F
provided a detailed confession to the murder of David. See id. at 2080-82. Later, the detective questioned petitioner further. R.839-853. The detective asked petitioner why he had
confessed to the murder of David. R.840. Petitioner responded, “Why? Because I did it.”
R.840. The detective pressed petitioner about what “made [him] decide to come forward.”
R.852. Petitioner said:
Depression, I guess.
...
I couldn’t stop dreaming about [the murder], I couldn’t stop seeing pictures
of it . . . . 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’d gotten locked up
in solitary when I mailed [the letter confessing to the murder].
R.852. Explaining to the officer why he was “not putting on a defense,” petitioner said, “I
regret something I did; I’m gonna pay for it.” R.853. Petitioner was charged with capital
murder. See R.831.
2. The trial court concluded that petitioner was competent and allowed him to waive his
right to counsel and plead guilty. Before trial began in 2002, petitioner regularly communicated in writing with the trial court. On May 15, 2001, the trial court received a letter from
petitioner in which he correctly recounted that he was charged with capital murder and that
his attorney was Mack Arnold. CR.5. 4 Petitioner stated that he had told his counsel that he
3F
3
Many of the exhibits to petitioner’s operative federal petition are not included in the
electronic record on appeal. These are referenced by the exhibit number and the exhibit’s
native pagination.
4
“CR” refers to the clerk’s record in petitioner’s automatic direct appeal.
3
wished to proceed pro se and told the trial court that he wished to plead guilty. CR.5. Petitioner insisted that he was “fully aware of [his] rights” and that he was “fully competent to
stand before you and make these decisions.” CR.5. Petitioner once again stated that he was
pleading guilty and accepting the death penalty because of the overwhelming guilt he felt
for killing David. CR.5.
On July 19, 2001, petitioner wrote to the trial court again, this time requesting to be
released from administrative segregation. R.629. Petitioner lucidly advocated for himself
and demonstrated a factual and rational understanding of his position and the proceedings
to come. For example, petitioner argued that he should not be in segregation, because he
had “not had a disciplinary case since [he had] entered the county jail.” R.629. Petitioner
knew that he faced “a Capital Murder charge,” but suggested that alone should not justify
segregation because “there are others . . . with similar charges” that were not in segregation. R.629. Petitioner also cogently presented an alternative request, asking the trial court
to move up his trial date, explaining:
My trial should last no longer than two or three days as I will be pleading
guilty and will not put up a defense in this case. Also, as soon as I am able to
. . . after sentencing I will be dropping all appeals and will request an execution date as soon as is conveniently possible.
R.629.
A few weeks later, petitioner again wrote to the trial court “in hopes that” it would
“consider [his] previous request to move [his] trial to an earlier date.” R.629. Petitioner
again demonstrated that he rationally and factually understood the consequences of his
coming trial: “I will be pleading guilty so the only thing the jury will have to assess is my
4
punishment[,] which you and I both know will be death.” R.629. Anticipating that his competency could be an issue that could delay his trial, petitioner insisted: “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. So let’s get this show on the road please.” R.629.
A week later, petitioner wrote another letter to the trial court again asking that he be
permitted to represent himself. Demonstrating an understanding of criminal procedure,
petitioner stated:
I make this decision fully aware of the consequences and am also aware that
this is within my right. I will permit one (1) attorney to be present to assist in
any legal advice although I fail to see what purpose that would benefit.
September 12, 2001 is my next court date, for pre-trial motions. I do not wish
for any motions to be filed on my behalf.
I do not wish to participate in jury selection. I will not contest any juror the
prosecution selects.
R.648.
In December 2001, after he was allowed to proceed pro se, petitioner wrote again to the
trial court asking to see all of the evidence in his case. CR.60. Petitioner further inquired
about what he should do about obtaining “proper clothing for trial.” CR.60. Several months
later, petitioner sent another letter to the trial court in which he stated that he was “out of
[segregation] now” and was “no longer suffering bouts of depression.” CR.58. Nonetheless,
petitioner remained “firm about [his] decision not to fight this case.” CR.58.
At the order of the trial court, a neutral expert evaluated petitioner’s competency before trial. On September 20, 2001, Dr. Jerome Brown evaluated petitioner to determine his
competency to stand trial, or “adjudicative competency.” CR.24. Dr. Brown’s evaluation,
5
which “consisted of a clinical interview and a mental status examination,” led him to conclude that petitioner was competent to stand trial. CR.24.
Evaluating petitioner’s functional characteristics, Dr. Brown found that petitioner “had
no trouble providing relevant and coherent background information.” CR.24. Petitioner described his charges to Dr. Brown and explained that he had confessed because his conscience was bothering him. CR.25. Petitioner also reported that his feelings of guilt were
driving him to use drugs. CR.25. Petitioner went on to accurately recount the details of the
court, his lawyers, and proceedings up to that point. CR.25. Petitioner also provided a cogent explanation for why he was choosing to represent himself and plead guilty: petitioner
explained that “he believe[d] that trying to defend himself would be ‘like trying to get out
of what [he] did.’” CR.25. Dr. Brown found petitioner “to be alert, well-oriented, and able
to communicate his ideas without difficulty.” CR.26. Dr. Brown also found “no evidence of
hallucinations, delusions, . . . [or] any other unusual behaviors.” CR.26. In sum, Dr. Brown
“believed” petitioner “to be COMPETENT to stand trial” because “[h]e demonstrated a
rational as well as factual understanding of the charges against him,” as well as “the ability
to consult with his attorney with a reasonable degree of rational understanding.” CR.26.
The trial court concluded that petitioner was competent and that he knowingly and voluntarily waived his right to counsel. On October 11, 2001, the trial court considered petitioner’s request to proceed pro se. 2.RR.1-21. At the beginning of the hearing, the trial court
noted that it had read petitioner’s letters and had spoken to petitioner at least once before
the hearing. See 2.RR.3. The trial court indicated that it had waited to hold a hearing on
petitioner’s request to proceed pro se until after a psychological evaluation had been completed. 2.RR.4. At the hearing, the trial court asked petitioner’s counsel, who had interacted
6
with petitioner on numerous occasions, see CR.1678, for his opinion on petitioner’s competency:
The Court: All right. Anything—for the record, is there anything in the report that is inconsistent with your own personal determination as to Mr. Austin’s competency?
Mr. Arnold: No ma’am. And as a matter of fact it is my opinion that Mr. Austin is competent to stand trial and to be honest it has been my opinion from
the first time I met him but out of an abundance of caution I requested the
psychiatric evaluation.
2.RR.4.
The trial court went on to question petitioner about his background and education.
2.RR.5-8. Petitioner told the trial court that he had no mental-health history. 2.RR.6. As
petitioner notes, this was false; he has a long history of mental illness. Pet. 14. 5 As peti4F
tioner’s expert observed, petitioner purposely “sought to minimize the appearance of mental illness to ensure that” the trial court would find him competent. Pet. Ex. 95 at 11. Petitioner also testified that while in prison he had received his G.E.D. and more than 20 hours
of college credit towards a degree in business administration and that he had received training in “several vocational trades.” 2.RR.7-8. The trial court then asked petitioner to detail
the charges against him and the punishment he faced, which he did correctly. 2.RR.9. The
trial court then went through various consequences of self-representation, which petitioner
indicated that he understood. 2.RR.10-12.
5
Contrary to petitioner’s suggestion, Pet. 18, 27 n.56, the trial court was aware at that
time that petitioner was being untruthful. “[T]he 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.” Austin v. Davis, 876 F.3d 757, 782 (5th Cir. 2017) (quoting
CR.16); accord CR.5.
7
Petitioner agreed to standby counsel, which petitioner said was “[f]or legal advice only.
But as far as every other decision [regarding] my testifying or jury, I want all that.”
2.RR.12-13.
The trial court went on to question petitioner about his reasons for wanting to represent
himself, which petitioner explained was because he wanted complete control over trial strategy. 2.RR.13-14. Petitioner’s then-counsel confirmed that he had discussed this decision
with petitioner. 2.RR.16.
The trial court concluded that petitioner was competently, knowingly, and voluntarily
waiving counsel, and thus granted petitioner’s request. 2.RR.14-15. The trial court, however, went out of its way “to make certain” that petitioner understood that he had “the right
to change [his] mind about representing [him]self.” 2.RR.15.
Months later, petitioner entered a guilty plea to the capital murder of David. 9.RR.3-7,
14-15. Before the trial court accepted petitioner’s plea, it questioned him about his
knowledge of the charges against him, the potential punishment, and whether he was pleading guilty voluntarily. See 9.RR.4-7. Petitioner indicated that he understood the circumstances and that he was entering his plea voluntarily. See 9.RR.4-7. The trial court accepted
petitioner’s plea: “Having been fully admonished by the Court and the Court having determined that Mr. Austin is mentally competent to enter his plea of guilty and that he is entering this plea freely and voluntarily with full knowledge of the consequences the Court
has accepted his plea of guilty.” 9.RR.16.
Petitioner confirmed his competency when participating in the punishment phase of his
trial. During sentencing proceedings, petitioner cross-examined a witness, spoke lucidly to
8
the jury, and never once uttered anything even arguably delusional. The State put on various witnesses who described the circumstances of David’s murder and the evidence linking
petitioner to the murder. See, e.g., 9.RR.22-173. Although petitioner chose not to cross-examine most of these witnesses, he did cross-examine FBI Special Agent Tami Johnson
about the circumstances surrounding petitioner’s relationship with Jennifer. Petitioner’s
apparent goal was to show that he was not a sexual predator:
Q: (By Mr. Austin) When you questioned Jennifer’s mother, did Jennifer’s
mother also tell you that I used to date her for a while before I dated Jennifer?
A: No.
Q: And that she was the one that introduced me to Jennifer?
A: She did tell me that.
Q: In a bar? That Jennifer looked old enough to hang out and drink in bars?
Did she tell you that?
A: No.
9.RR.126. Petitioner was thus able to defend himself when he felt it necessary and appropriate.
Petitioner also gave a closing statement to the jury in which he again demonstrated a
factual and rational understanding of the ongoing proceedings, their potential consequences, and his position:
9
Mr. Austin: I’m not going to argue about what the State said anything about
me.
...
Pretty much everything they said about me is true.
...
One of the reasons why I went ahead and confessed was it was bothering me,
what I did. Regardless of what everybody thinks, it does. I’ve never killed
anybody before. And, so, but I also knew that my acts of violence would not
stop even though I was in prison.
...
On these special issues, there’s no doubt that you will answer yes to No. 1
because if you do send me to prison, I will commit further acts of violence.
Prison is a violent place. A lot of people don’t realize that. 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 were no mitigating circumstances that contributed
to killing David. 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.
11.RR.15-16, 19-20.
Petitioner also took the opportunity in his closing statement to cogently dispute the
State’s characterization of him as a sexual predator:
[O]ne thing I will argue that the State has tried to insinuate is that I’m a pedophile.
...
[T]o say that [Jennifer] looked like a little 14-year-old girl—the State does
not have a picture of her at that time. The State does not have a picture of me
other than my face at that time. Her whole family are very big, big-boned. All
right. If they would have had a picture of her at that time, they would have
10
seen Jennifer was bigger than I was. I only weighed 133 pounds; and she
weighed 146 pounds, 5’9”. All right.
Also, in the testimony, Sergeant Allen did admit that Lora, Jennifer’s mom,
had admitted to him that [Jennifer] was in the bars drinking with us, partying. Okay. So Jennifer was old enough to pass without getting carded, to hang
around in bars and drink but she looked like a 14-year-old girl? And, yet, I
couldn’t even step in to a door in a bar without getting carded. But other than
that, yes, I was wrong. I should have left her alone. I should have backed off.
11.RR.16, 19. The jury concluded that petitioner should receive the death penalty, and the
trial court sentenced petitioner to the death penalty. 11.RR.29-31.
3. After sentencing, the trial court held a hearing on petitioner’s request to waive appellate and post-conviction counsel. In concluding that petitioner was competently, knowingly, and voluntarily waiving his appellate counsel, the trial court relied on its previous
determination that petitioner could properly waive trial counsel, its observation of petitioner during trial, and its questioning of petitioner at the April 4 hearing. See 12.RR.8. The
trial court concluded “that Mr. Austin fully understands the posture in which he presently
finds himself and that he is knowingly intelligently voluntarily waiving his right to assistance of counsel both as to the direct appeal of his conviction and sentence and as to the
Writ of Habeas Corpus with respect to that conviction and sentence.” 12.RR.8.
Petitioner chose not to appeal his conviction and sentence. In Texas, however, when a
defendant is sentenced to death, his conviction and sentence are automatically reviewed by
the Court of Criminal Appeals. Tex. Code Crim. Proc. art. 37.071, § 2(h). On automatic review, the Court of Criminal Appeals reviewed and affirmed the trial court’s conclusion that
petitioner competently, knowingly, and voluntarily waived his right to counsel. See Austin
v. State, No. 74372, 2003 WL 1799020, at *1 (Tex. Crim. App. Apr. 2, 2003) (unpublished)
(citing U.S. Const. amends. VI, XIV; Faretta v. California, 422 U.S. 806 (1975)).
11
4. In 2004, petitioner belatedly sought habeas review of his conviction and penalty. See
Ex parte Austin, No. 59,527-01, 2004 WL 7330939, at *1 (Tex. Crim. App. July 6, 2004) (per
curiam) (unpublished). The Court of Criminal Appeals dismissed petitioner’s petition as
untimely. Id. Texas law requires a state habeas petition in a capital case to be filed “not
later than the 180th day after the date the convicting court appoints counsel under Section
2 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 is later.” Tex. Code Crim. Proc. art.
11.071 § 4(a). Petitioner was allowed to act as his own counsel and, because he filed no petition immediately following his conviction, the State filed a notice waiving briefing. Ex parte
Austin, 2004 WL 7330939, at *1. The statute of limitations does not expressly address what
happens when a putative petitioner acts as his own counsel and declines to file a petition,
thus obviating the need for the State to file a brief. The Court of Criminal Appeals interpreted the statute to require a habeas petition to be filed within 180 days of the State’s
notice that it had waived briefing, which petitioner failed to do. Id. Because there is no
binding precedent on the application of the statute of limitations to this uncommon situation, cf. Tex. R. App. P. 77.3 (“Unpublished opinions have no precedential value and must
not be cited as authority by counsel or by a court.”), respondent has declined to press the
dismissal of petitioner’s state habeas petition as a procedural default. Cf. infra p. 29 n.10,
32.
While petitioner’s untimely state habeas petition was pending, he sought federal habeas
relief in the district court, asserting essentially the same claims: Notwithstanding the substantial evidence of his competency described above, petitioner’s operative federal habeas
petition asserted that he was incompetent during his trial and obviously so.
12
Petitioner relied primarily on affidavits from mental health professionals, only one of
whom retrospectively opined on petitioner’s competence to stand trial. See Pet. Ex. 95 (Affidavit of Dr. George Woods). Dr. Woods believed that petitioner was not competent to
stand trial because he was, in Dr. Woods’s view, irrationally pursuing a death sentence when
he pleaded guilty, waived counsel, and sought out the death penalty. Id. at 11. Dr. Woods,
however, did not diagnose petitioner with any delusional disorder and failed to conclude one
way or another whether petitioner had a rational understanding of his proceedings at the
time of trial. To the contrary, Dr. Woods conceded that:
Mr. Austin certainly understood the factual issues of his trial. He knew what
he was being charged with. He also understood the potential consequences
. . . . In fact, he was capable of managing impressions and sought to minimize
the appearance of mental illness to ensure that his planned death could proceed.
Pet. Ex. 95 at 11; accord R.2171 (Dr. Woods opining that petitioner “underst[ood]” his “options . . . and the attendant consequences.”). In fact, Dr. Woods later made clear that his
opinion on competency was not tied to the minimal level of competence required by the
Constitution. See R.2172 (distinguishing “the legal standard of competency” from “[t]he
question for mental health professionals in a case like Mr. Austin’s”).
In response, the State provided an affidavit from Dr. Brown, on whose previous evaluation of petitioner the trial court relied. Dr. Brown averred that, having reviewed all of
petitioner’s habeas materials, “there [was] nothing in these [materials] that would justify
changing [his] opinion.” R.1806.
The district court denied petitioner relief on all claims. R.2767-2796. The district court
concluded that petitioner had failed to overcome 28 U.S.C. § 2254(e)(1)’s presumption that
the state trial court correctly determined that petitioner was competent. R.2780-2781. The
13
district court also concluded that petitioner could not make the necessary showing that his
waivers of counsel and plea of guilty were not made competently, knowingly, and voluntarily. R.2781-2784.
5. The Fifth Circuit affirmed. Austin v. Davis, 876 F.3d 757 (5th Cir. 2017). Applying
Dusky v. United States, 362 U.S. 402 (1960) (per curiam), and Godinez v. Moran, 509 U.S.
389 (1993), the Fifth Circuit explained that “[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.’” Austin, 876 F.3d. at 777 (quoting Dusky, 362 U.S. at 402). The Fifth Circuit
concluded that petitioner could not overcome AEDPA’s presumption, see 28 U.S.C.
§ 2254(e)(1), that the trial court correctly found him to be competent “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,” Austin, 876 F.3d. at 782. In the alternative, the Fifth Circuit held
that, even on de novo review, “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.” Id. at 781.
The Fifth Circuit rejected petitioner’s argument that his evidence of mental illness suggested incompetency, reasoning that “[a] history of suicidality and depression . . . does not
render a defendant incompetent.” Id. at 780. Because petitioner “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,” he could not
establish that he was incompetent at the time of trial, notwithstanding his mental illness.
14
Id. The Fifth Circuit also rejected petitioner’s suggestion that “his decision to waive counsel
and plead guilty to capital murder demonstrates incompetency.” Id. As the court explained,
“a defendant’s deliberate use of the system to obtain the death penalty is evidence of rationality, not incompetence.” Id.
15
ARGUMENT
I.
THE FIFTH CIRCUIT’S CORRECT APPLICATION OF DUSKY DOES NOT WARRANT REVIEW.
This case concerns the state court’s, the district court’s, and the Fifth Circuit’s straight-
forward application of the Dusky standard for judging a defendant’s competence to stand
trial, plead guilty, and waive appeals. The Dusky standard asks whether a defendant 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.” Dusky, 362 U.S. at 402. This standard was reaffirmed in Godinez, 509 U.S. at
396, which explained that the Dusky standard applies universally and has a “modest aim”:
“to ensure that [a defendant] has the capacity to understand the proceedings and to assist
counsel.” Id. at 402; accord id. at 401 n.12 (“The focus of a competency inquiry is the defendant’s mental capacity; the question is whether he has the ability to understand the proceedings.”). The Fifth Circuit applied Dusky and Godinez and affirmed that petitioner was
competent because all available evidence suggested that he had the capacity to rationally
understand his proceedings notwithstanding his desire to confess to his crime and accept
punishment. Austin, 876 F.3d at 777-81. The Fifth Circuit’s correct application of Dusky
and Godinez does not warrant review.
The crux of petitioner’s case for incompetency is that, because he was suicidal, he could
not make rational decisions. See Pet. i, 5 (arguing that petitioner’s “fervent and irrational
suicidal ideation . . . substantially affected his capacity to make a rational decision as to
whether to seek his own execution or defend the charges”). Petitioner, however, has not
pointed to any decision, and respondent is aware of none, holding that suicidal thoughts
render a defendant incompetent under Dusky notwithstanding his capacity to rationally
16
understand his proceedings. To the contrary, decisions from this Court and other circuit
courts of appeals only undermine petitioner’s argument and confirm that the Fifth Circuit’s
decision here was correct.
In Drope v. Missouri, for example, this Court declined to hold that a defendant’s suicide attempt during trial necessarily raised sufficient doubt about his competence to require
an evidentiary hearing on the subject. See 420 U.S. 162, 166, 170, 179 (1975) (applying Dusky
and Pate v. Robinson, 383 U.S. 375 (1966)). 6 If suicidal ideation were sufficient to raise se5F
rious doubts about incompetence as petitioner claims, Drope would have stopped at the defendant’s “bona fide” suicide attempt, id. at 179 & n.16 (quotation marks omitted)—behavior far more extreme than any petitioner exhibited during his criminal proceedings. But
Drope did not. Drope declined to even “address the Court of Appeals’ conclusion that an
attempt to commit suicide does not create a reasonable doubt of competence to stand trial
as a matter of law.” Id. at 180. Rather, the Court considered the suicide attempt as only one
piece of a larger picture—it suggested “mental instability contemporaneous with the trial”
and prevented the trial court from being “able to observe [the defendant] in the context of
the trial and to gauge from his demeanor whether he was able to cooperate with his attorney
and to understand the nature and object of the proceedings against him.” Id. at 181. In
contrast, petitioner made no bona fide suicide attempt contemporaneous with his trial and
the trial court was able to observe his demeanor regularly. In any event, Drope took pains
to “recognize . . . that a suicide attempt need not always signal an inability to perceive reality
6
A “Pate claim” considers whether the trial court should have held an evidentiary hearing to test a defendant’s competency to stand trial. See Pate, 383 U.S. at 385. It is closely
related to a claim that a defendant was, in fact, incompetent to stand trial. Both rely on the
same standard of competence. See Drope, 420 U.S. at 169-70.
17
accurately, to reason logically and to make plans and carry them out in an organized fashion,” which was the ultimate inquiry in judging a defendant’s adjudicative competency. Id.
at 181 n.16 (quotation marks omitted). Petitioner easily met this standard, as every court
to consider his competence has held.
Gilmore v. Utah, 429 U.S. 1012 (1976), also undermines petitioner’s position. By the
time the petitioner’s case had reached this Court, his motivation for waiving all appeals was
indisputably suicidal: he had attempted to kill himself six days after he personally told the
Utah Supreme Court that he wished to withdraw an appeal previously filed without his
consent. See id. at 1014-15 nn.4-5 (Burger, C.J., concurring). The petitioner’s mother attempted to file an appeal with the Court. The Court denied the application for a stay, explaining:
[T]he Court is convinced that Gary Mark Gilmore made a knowing and intelligent waiver of any and all federal rights he might have asserted after the
Utah trial court's sentence was imposed, and, specifically, that the State’s determinations of his competence knowingly and intelligently to waive any and
all such rights were firmly grounded.
Id. at 1013. Once again, behavior and ideations far more extreme than those exhibited by
petitioner during trial did not establish incompetence.
Petitioner’s position is also contrary to Maggio v. Fulford, 462 U.S. 111 (1983) (per curiam), which reversed the Fifth Circuit’s grant of habeas relief. In Fulford, the trial court
found the defendant competent without a hearing, in the face of a psychiatric report that
the defendant was incompetent, based on the defendant’s demeanor at trial. Crucial to this
Court’s decision that the trial court was not required to hold an evidentiary hearing was the
trial court’s opportunity to observe the petitioner’s “conduct during and after the trial,”
because “[i]n doubtful cases the exercise of [the] power of observation often proves the most
18
accurate method of ascertaining the truth” about a defendant’s competence. Fulford, 462
U.S. at 113, 118 (quotation marks omitted). But a defendant’s secret motivations—whether
suicidal or something else—are not ascertainable through a court’s “power of observation,”
id. at 118, so they provide a poor foundation on which to base a competency evaluation. Cf.
Drope, 420 U.S. at 181 (defendants suicide attempt was relevant because it hospitalized him
and prevented the trial court from observing his demeanor during trial); McGregor v. Gibson, 248 F.3d 946, 960 (10th Cir. 2001) (en banc) (explaining that counsel’s observation is
also strong evidence); Watts v. Singletary, 87 F.3d 1282, 1288 (11th Cir. 1996) (same).
The Fifth Circuit’s decision is not only in line with this Court’s precedent, it is also in
line with the reasoning and results of the lower courts in similar cases. For example, on
facts that closely parallel this case, the Ninth Circuit affirmed a finding of competency notwithstanding the petitioner’s suicidal thoughts. In Dennis ex rel. Butko v. Budge, 378 F.3d
880 (9th Cir. 2004), there was no dispute that the petitioner’s acquiescing in the death penalty was “the product of a mental disease,” id. at 890; specifically, his “desire to both seek
the death penalty and to refuse appeals in his behalf [were] directly a consequence of the
suicidal thinking and his chronic depressed state, as well as his self-hatred,” id. at 884. Compare id., with R.2078 (petitioner’s expert opining that he was incompetent because his “decision to pursue the death penalty was a direct result of contemporaneous depression and
active suicidality”). The Ninth Circuit concluded that this was not enough to show incompetence because “[e]vidence showing that a prisoner’s decision is the product of a mental disease does not show that he lacks the capacity to make a rational choice. It is the latter—not
the former—that matters.” Dennis, 378 F.3d at 890; see also Deere v. Cullen, 718 F.3d 1124,
1126 (9th Cir. 2013) (relying on Dennis and concluding, on facts similar to this case, that
19
there was no question as to the petitioner’s competence to plead guilty and accept the death
penalty). Petitioner also relies on evidence of mental disease (the former), not evidence of
lacking the capacity to make rational choices (the latter); so his evidence is likewise insufficient. His interactions with the trial court, his counsel’s observation, and a neutral expert’s
opinion all showed that he had capacity for rational understanding when he pleaded guilty
and acquiesced in the death penalty.
Similarly, in United States v. Abdulmutallab, 739 F.3d 891 (6th Cir. 2014), a defendant
who had attempted to blow himself up on an airplane chose to represent himself and plead
guilty. Id. at 895. He later raised the issue of his competency on appeal. The Sixth Circuit
did not see the defendant’s martyrdom mission as evidence of irrationality. To the contrary,
the court viewed “the steps that Abdulmutallab took in preparation for his mission” as
“show[ing] the deliberate, conscious, and complicated path Abdulmutallab chose to pursue
in the name of martyrdom.” Id. at 901-02. “Unlike the defendants in Pate and Drope, Abdulmutallab not only acted rationally, but was (nearly) able to execute a complex martyrdom mission.” Id. at 902. Like Abdulmutallab, petitioner’s “deliberate, conscious, and complicated path” to the death penalty confirms his rationality. Id.
In Taylor v. Horn, 504 F.3d 416 (3d Cir. 2007), the petitioner, like petitioner here, confessed to murder, pleaded guilty, and sought the death penalty. Id. at 420-23. The Third
Circuit concluded that there were insufficient indicia of incompetency to require a hearing
by the trial court on the subject. Rather, like here, the trial court observed the petitioner
acting rationally, the petitioner’s trial counsel observed him acting rationally, and a neutral
expert examined him and declared him competent. Id. at 433-35. Rejecting the petitioner’s
argument that his “suicidal thoughts indicated that he was incompetent to participate in the
20
proceedings,” the court explained that the petitioner’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”; they “are consistent with [his] repeatedly expressed desire to plead guilty and accept the consequences.” Id. at 434-35. The same is true
here. See, e.g., R.852-53 (petitioner expressing remorse and feelings of guilt); 11.RR.15
(same); CR.25 (same).
As a final example, in Hunter v. Bowersox, 172 F.3d 1016 (8th Cir. 1999), a defendant
sought to withdraw a guilty plea that subjected him to the death penalty, arguing, with the
support of an expert, that he had done so as a result of depression. Id. at 1021. The Eighth
Circuit declined to disturb the state court’s refusal to allow the defendant to withdraw his
plea. Commenting on the petitioner’s assertion “that his decision to plead guilty and virtually invite the death penalty was not rational,” the court said, “the Constitution does not
require that a plea of guilty be rational in that sense.” Id. at 1023. So long as a defendant
rationally “understood the charges against him and the options available to him,” as petitioner demonstrably did, his choice to submit to the death penalty would be respected. Id.
at 1021.
Each of the above decisions support the Fifth Circuit’s reasoning and conclusion. The
Fifth Circuit’s faithful application of this Court’s precedent does not warrant review.
21
II. REVIEW IS ALSO UNWARRANTED BECAUSE OF A SEPARATE VEHICLE PROBLEM:
PETITIONER’S QUESTION PRESENTED IS ACTUALLY NOT FAIRLY PRESENTED.
As just demonstrated, the Fifth Circuit’s decision complies with the decisions of this
Court and the other circuits that have considered whether a defendant acquiescing in the
death penalty is competent. Trying to get around this fact, petitioner distorts the Fifth Circuit’s reasoning. Petitioner’s question presented asks whether a defendant can have a logical and factual understanding of his proceedings and still be incompetent. Pet. i. This question is not fairly presented because it relies on a false premise—that the Fifth Circuit ignored Dusky’s additional requirement that a defendant be able to rationally understand
his proceedings. See id.; Pet. 28 (“Under the circuit court’s analysis, . . . all that matters is
whether [a defendant] has a factual and logical understanding of the case and its possible
outcomes.”).
Before analyzing petitioner’s claim, the Fifth Circuit set forth the standard established
by Dusky and reaffirmed by Godinez: “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.’” Austin, 876 F.3d at 777 (quoting Dusky, 362 U.S. at 402, and citing Godinez,
509 U.S. at 396) (emphases added). The Fifth Circuit went on to examine evidence of petitioner’s rationality. See, e.g., id. at 780 n.209 (reasoning that “refusing to ‘plead for mercy’
in a capital murder case does not necessarily mean that a defendant is incompetent or acting
irrationally”); 780 & n.210 (examining additional “evidence of rationality”). 7 As its opinion
6F
7
Petitioner’s suggestion (at 29 n.58) that respondent argued for some lower standard
is incorrect. See, e.g., Respondent’s CA5 Br. 25 (setting forth the Dusky standard); id. at 49
(arguing that “rationality in [this] context” is the “‘ability to perceive reality accurately, to
22
shows, the Fifth Circuit correctly recited and applied the full Dusky standard. Because petitioner’s attack on the Fifth Circuit’s decision rests on a false premise and thus fails, this
is an independent vehicle problem further confirming that certiorari review is unwarranted.
Relatedly, petitioner cites (at 34-36) additional decisions in which courts have had held
that a defendant’s factual understanding of his proceedings is not sufficient alone to show
competency where a defendant is also suffering from irrational delusions. None of these
decisions helps petitioner because (1) the Fifth Circuit did not omit a rationality requirement from its Dusky analysis, as just explained, and (2) petitioner was not delusional, see
supra pp. 2-11. So any supposed split of authority on that basis is illusory.
III. PETITIONER’S TRUE AIM IS TO CREATE A NEW STANDARD FOR COMPETENCY, BUT THAT
QUESTION IS NOT FAIRLY PRESENTED.
The question petitioner presents masks his true aim: to cast aside the Dusky standard
and to overrule Godinez. Towards the end of his petition, and for the first time in this case,
petitioner expressly advocates for “a higher standard of competency than the
Godinez/Dusky standard.” Pet. 33. Petitioner has not preserved any argument that a
higher standard of competency should apply to him, so his petition should be denied for that
reason alone. And while petitioner, like the dissent in Godinez, insists that this Court’s per
curiam decision in Rees v. Peyton, 384 U.S. 312 (1966), requires a higher standard of competency for a defendant who is suicidal and actively seeking the death penalty, e.g., Pet. 45, 33-34, 8 Godinez already rejected that argument. Godinez also arose from a situation
7F
reason logically and to make plans and carry them out in an organized fashion’”) (quoting
Drope, 420 U.S. at181 n.16).
8
See Godinez, 509 U.S. at 414-15 (Blackmun, J., dissenting) (arguing that Rees requires
more than a rational and factual understanding of the proceedings).
23
where a defendant discarded his lawyer and pleaded guilty in pursuit of the death penalty,
and Godinez explained that, although Rees used different language than Dusky, neither it
nor any other precedent required anything more than the Dusky standard. Godinez, 509
U.S. at 398, 401 n.12; accord, e.g., John H. Blume, Killing the Willing: “Volunteers,” Suicide
and Competency, 103 Mich. L. Rev. 939, 945-46 (2005) (explaining that, after Godinez, Rees
is understood to require no more than that a defendant “has a rational and factual understanding of the consequences of his decision”); Brian R. Boch, Fourteenth Amendment—
The Standard of Mental Competency to Waive Constitutional Rights Versus the Competency Standard to Stand Trial, 84 J. Crim. L. & Criminology 883, 908 (1994) (similar). In
reality, petitioner is asking this Court to overrule this portion of Godinez. But petitioner
offers no justification for doing so, let alone on collateral review, so his petition is meritless.
IV. THE KENTUCKY SUPREME COURT’S DECISION IN CHAPMAN DOES NOT JUSTIFY REVIEW
HERE.
Review is also unwarranted because, as demonstrated in Part I, the lower courts have
had no problem applying this Court’s standard for adjudicative competence to defendants
acquiescing to the death penalty. In fact, notwithstanding his argument that a higher standard than Dusky should apply in these circumstances, petitioner has failed to identify a single decision in which a defendant acceding to the death penalty was found incompetent notwithstanding his meeting the Dusky standard.
In an effort to conjure a split of authority, petitioner cites (at 33-34) the Kentucky Supreme Court’s decision in Chapman v. Commonwealth, 265 S.W.3d 156 (Ky. 2007). Chapman, however, is an idiosyncratic opinion involving Kentucky state law that does not justify
24
this Court’s review here. In Chapman, the court, citing Godinez, recognized that the standard for competence to plead guilty was that set forth in Dusky. See Chapman, 265 S.W.3d
at 174-75. But the court went on to hold that “the trial courts of this Commonwealth must
use” a “heightened competency standard . . . when a defendant . . . asks [] to be sentenced to
death.” Id. at 179-80. The “heightened” standard the court chose was purportedly that of
Rees. Id. at 180. But, of course, Godinez, which involved a defendant who sought the death
penalty, rejected the notion that Rees added anything to Dusky’s “rational understanding”
standard. See Godinez, 509 U.S. at 397-98 & n.9. So, at best, Chapman represents a state’s
decision to apply a higher standard of competence as a matter of state law. See Chapman,
265 S.W.3d at 180 (referring specifically to “the trial courts of this Commonwealth”); Stephen Skaff, Note: Chapman v. Commonwealth: Death Row Volunteers, Competency, and
“Suicide by Court”, 53 St. Louis U. L.J. 1353, 1374 (2009) (describing Chapman as “[t]he
Kentucky Court [taking this Court] up on the offer” made in Godinez to adopt a higher
standard as a matter of state law). At worst, it is an obvious misreading of this Court’s
precedent on federal constitutional standards for competence. Cf. 5 Wayne R. LaFave, et
al., Criminal Procedure § 21.4(b), at 967-68 & n.73 (4th ed. 2015) (recognizing Chapman as
an outlier).
Even if it is the latter, this Court’s review is not necessary here because there is little
chance of an inconsistent application of law in practice. This is for at least two related reasons. First, the purportedly heightened standard Chapman adopted has never even been
cited, let alone adopted, in a decision outside of Kentucky. 9 Second, as applied in Kentucky,
8F
9
Petitioner cites (at 34, 36) Hooper v. State, 142 P.3d 463 (Okla. Crim. App. 2006), as a
supposedly similar case. But all Hooper did was cite Rees. See 142 P.3d at 466 n.7, 470 n.16.
25
the standard is not heightened at all. Chapman affirmed the trial court’s finding of competency because the facts showed that the defendant, although actively seeking the death
penalty and suffering severe depression, did not “lack [the] capacity to appreciate his legal
situation,” did not “lack [the] capacity to understand the nature and consequences of the
proceedings against him,” and did not “lack [the] ability to participate rationally in his own
defense.” Chapman, 265 S.W.3d at 182; accord Windsor v. Commonwealth, 413 S.W.3d 568,
571-72 (Ky. 2011) (applying Chapman, affirming defendant’s competence to seek death penalty, notwithstanding bona fide suicide attempt, where expert found defendant competent
and trial court observation showed defendant’s “demeanor, responses, and affect” to be
“appropriate and coherent”). That is no more than Dusky requires and no different than
the Fifth Circuit’s analysis. Petitioner is unable to identify a single instance in which a Kentucky court has deemed a defendant incompetent under Chapman to seek the death penalty, let alone an instance that lays in the hypothetical twilight between Chapman and
Dusky.
In all events, even if the Court were concerned with the Kentucky Chapman line of
cases, it should review a case from Kentucky that actually applies that outlier standard—
rather than a case like this one that faithfully abides by this Court’s precedent.
It did not mistakenly suggest that Rees provides a heightened standard compared to
Dusky, and it did not apply any heightened standard.
26
V. REVIEW IS ALSO INAPPROPRIATE BECAUSE NONE OF THE NEW EVIDENCE ON WHICH
PETITIONER RELIES TO RETROSPECTIVELY ATTACK HIS COMPETENCE IS ADMISSIBLE
ON FEDERAL HABEAS REVIEW.
Petitioner also impermissibly relies on new evidence to support his claim, and that is
an independent reason to deny certiorari. A defendant’s adjudicative competence is a question of fact. Thompson v. Keohane, 516 U.S. 99, 111 (1995); Demosthenes v. Baal, 495 U.S.
731, 735 (1990) (per curiam); Miller v. Fenton, 474 U.S. 104, 113 (1985); Fulford, 462 U.S.
at 117. Attempting to overcome the presumption of correctness AEDPA requires for state
court findings of fact, see 28 U.S.C. § 2254(e)(1), petitioner relies on evidence—medical records, prison records, and the opinions of his experts—that he never produced in state court.
As the various decisions cited in Part I show, the Fifth Circuit correctly concluded that even
petitioner’s new evidence was insufficient. However, this new evidence is also inadmissible
on federal habeas review, as explained below. This is yet another reason certiorari review
is unwarranted here.
In AEDPA, Congress chose to limit not only the claims that can be brought in federal
habeas, 28 U.S.C. § 2254(a), (b), but also the evidence that can be used to support those
claims, id. § 2254(d), (e); Cullen v. Pinholster, 563 U.S. 170, 181 (2011). The evidence on
which petitioner relies in federal court to retrospectively challenge his competency is
barred by AEDPA for two different reasons. First, because the question of petitioner’s
competence was adjudicated on the merits in state court, federal habeas review of those
claims must rely only on the evidence before the state court. Pinholster, 563 U.S. at 182
(applying 28 U.S.C. § 2254(d)(1)). Second, because petitioner failed to diligently develop the
evidence he seeks to rely on in federal court, that evidence is also barred by § 2254(e)(2).
See Williams v. Taylor, 529 U.S. 420, 424 (2000); Pinholster, 563 U.S. at 183-84 & n.4.
27
A. The Court of Criminal Appeals reviewed petitioner’s conviction and sentence and
expressly concluded that the trial court did not err in allowing petitioner to waive counsel
and represent himself. Austin, 2003 WL 1799020, at *1 (citing U.S. Const. amends. VI, XIV;
Faretta, 422 U.S. 806). In so concluding, the court necessarily affirmed that petitioner was
competent. See Godinez, 509 U.S. at 396-97; Faretta, 422 U.S. at 835. Because the court
raised and rejected the claim that petitioner was incompetent, this claim was adjudicated
on the merits and no new evidence may be mustered to challenge that adjudication on federal habeas review. Pinholster, 563 U.S. at 182.
It makes no difference that petitioner did not raise the issue himself on direct review.
A petitioner’s faulty presentation is irrelevant where the state court actually adjudicated
the question, as it did here. Cf. Castille v. Peoples, 489 U.S. 346, 350 (1989) (“[O]nce the
state courts have ruled upon a claim, it is not necessary for a petitioner to ask the state for
collateral relief, based upon the same evidence and issues already decided by direct review.”) (quotation marks omitted); Bear v. Boone, 173 F.3d 782, 785 n.3 (10th Cir. 1999)
(“Read collectively, Supreme Court precedent clearly shows that a claim is exhausted once
the state courts have actually passed upon the issue raised.”); 2 Brian R. Means, Postconviction Remedies § 29:15, at 191-92 (2016) (“A claim that has not been exhausted by presentation to the state’s highest court is nevertheless entitled to § 2254(d)(1) deference if the
claim was adjudicated on the merits by a lower state court.”). The Court of Criminal Appeals expressly considered and affirmed the propriety of petitioner’s waiver of counsel, and
thus also affirmed his competence to stand trial. That decision is subject to § 2254(d)(1) and
Pinholster.
28
In the Fifth Circuit, petitioner argued that § 2254(d) does not apply because his competency claim was not adjudicated on the merits in his state collateral proceedings. 10 Peti9F
tioner is wrong. Although it is true that petitioner raised claims concerning his competency
in his state habeas petition and those claims were not adjudicated because they were untimely, that cannot change the fact that his competency was adjudicated by Texas’s highest
criminal court on direct review. Petitioner’s re-raising his competence on state collateral
review was unnecessary. See Castille, 489 U.S. at 350 (“[O]nce the state courts have ruled
upon a claim, it is not necessary for a petitioner to ask the state for collateral relief, based
upon the same evidence and issues already decided by direct review.”) (quotation marks
omitted). It was also inappropriate, because Texas courts do “not re-review claims in a habeas corpus application that have already been raised and rejected on direct appeal.” Ex
parte Hood, 304 S.W.3d 397, 402 n.21 (Tex. Crim. App. 2010). Even if timely, petitioner’s
competency was unreviewable on state habeas because the Court of Criminal Appeals had
10
Recall that petitioner’s state collateral challenge to his competence was dismissed as
untimely. See supra p. 12. Petitioner argued, and respondent did not dispute, that the Court
of Criminal Appeals’ construction of the statute of limitations was not firmly established at
the time of petitioner’s untimely filing. See id. For this reason, that procedural bar could
not support a defense of procedural default. Cf. Martinez v. Ryan, 566 U.S. 1, 9 (2012) (“A
state court’s invocation of a procedural rule to deny a prisoner’s claims precludes federal
review of the claims if, among other requisites, the state procedural rule is a nonfederal
ground adequate to support the judgment and the rule is firmly established and consistently followed.”). Not satisfied, petitioner is trying to use the purported inadequacy of the
procedural bar to his state habeas proceedings as a gateway to plenary review of decisions
made by on direct review. This is not how AEDPA—which was designed to ensure deference to state courts except in the most extreme cases—works. If a procedural bar is inadequate, or waived, it means only that a federal claim may proceed to a determination on the
merits; it does not provide a windfall to the petitioner by making the remainder of AEDPA
inapplicable.
29
already raised and decided the issue on direct review. Thus, petitioner’s state habeas petition’s being barred is irrelevant to the state adjudication that a federal court would have to
review.
B. Even if petitioner’s claim of incompetency was not adjudicated on the merits under
§ 2254(d), AEDPA still bars his new evidence because he “failed to develop the factual basis
of [his] claim in State court proceedings.” 28 U.S.C. § 2254(e)(2). Subsection (e)(2) requires
diligence in trying to develop facts in state court if those facts are to be relied on in federal
court. See Holland v. Jackson, 542 U.S. 649, 652-53 (2004) (per curiam) (citing Williams,
529 U.S. at 431-37). Otherwise, a petitioner must satisfy stringent requirements not relevant here. See 28 U.S.C. § 2254(e)(2)(A)-(B). “[T]he burden is on” petitioner “to establish
the diligence that absolves him of meeting the remaining requirements of § 2254(e)(2).”
Owens v. Frank, 394 F.3d 490, 500 (7th Cir. 2005).
The only way to avoid § 2254(e)(2)’s opening clause is to prove that no one from the
defense is at fault for failing to develop the factual record in state court. See Williams, 529
U.S. at 434 (noting defense not at fault where “the prosecution concealed the facts”). Petitioner cannot avoid § 2254(e)(2) because he failed to exercise diligence to develop a factual
record on his competence in state court. In fact, petitioner concedes that he purposefully
misled the trial court on facts related to his competency and failed even to note the existence
of records demonstrating his mental health history, let alone provide them to the trial court.
See Pet. 15; R.2171; Pet. Ex. 95 at 11 (Dr. Woods explaining that petitioner “sought to minimize the appearance of mental illness” in the trial court). Petitioner concedes that as part
of his plan to receive the death penalty, he consciously and knowingly lied to and tried to
“trick” the trial court in order to assure that the trial court found him competent. Pet. CA5
30
Br. 76. That is not diligence. See Williams, 529 U.S. at 437-38 (the petitioner was not diligent for purposes of (e)(2) where evidence existed prior to trial but the petitioner and his
counsel made no effort to look for it); Conner v. Quarterman, 477 F.3d 287, 293 (5th Cir.
2007) (failure to provide relevant medical records to the state court triggers subsection
(e)(2)); Roberts v. Dretke, 356 F.3d 632, 641 (5th Cir. 2004) (same). Subsection (e)(2) bars
the consideration of any new evidence on petitioner’s competency.
In the Fifth Circuit, petitioner tried to avoid the force of § 2254(e)(2) by focusing on his
untimely and disallowed state habeas proceedings, when he was allegedly prevented from
developing the record on his competency claims by what he asserts was a procedural bar
that was not firmly established or consistently followed. See supra pp. 12, 29 n.10. But this
argument is misguided for at least two reasons. First, it focuses on the wrong proceeding.
Petitioner’s competency was decided in the state trial court and affirmed by the Court of
Criminal Appeals on direct review. His competency was not subject to re-review on state
habeas. Ex parte Hood, 304 S.W.3d at 402 n.21. Petitioner’s failure to diligently develop
facts before the trial court and on direct review triggers § 2254(e)(2) because those are the
courts that adjudicated the question. Trying to develop facts when it is too late to matter is
not diligent and does not satisfy § 2254(e)(2).
The Third Circuit, in a similar case, held the same. In Taylor, also discussed above in
Part I, the petitioner challenged his competence to stand trial on federal habeas review. He
attempted to rely on evidence not presented to the trial court when it considered his competence. Taylor, 504 F.3d at 435. Taylor had, however, attempted to present this new evidence to a state habeas court, which had dismissed his state petition on a purportedly inadequate procedural ground. Id. at 424-25, 436. Taylor tried to escape § 2254(e)(2) using the
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same argument that petitioner makes here. See id. at 436. Like petitioner, he relied on cases
that addressed the question of what to do “if the state courts had failed to resolve the . . . issue for some reason unrelated to [a petitioner]’s diligence.” Id. at 436 (emphasis added).
The Third Circuit correctly distinguished those cases for the same reason that this Court
should—here, the trial court and the Court of Criminal Appeal did resolve the question of
petitioner’s competence. “To the extent that the state procedural default of” petitioner’s
“claims was inadequate, it only bears on the” issues “that were new to his” defaulted “petition.” Id. (emphases added). Petitioner’s competency was not new to his state habeas petition, and, therefore, his efforts to belatedly develop the facts in that proceeding are irrelevant.
Second, even if one ignores petitioner’s failure to develop facts when it mattered, he
still cannot clear § 2254(e)(2). The fact that the time bar on petitioner’s state habeas petition
does not rise to the level of procedural default does not excuse him from § 2254(e)(2)’s requirements, which he cannot satisfy. What makes a procedural bar sufficient to justify barring a federal habeas claim—i.e., that it is firmly established and consistently followed—is
part of the equitable doctrine of procedural default, the contours of which are defined by
courts. See Davila v. Davis, 137 S. Ct. 2058, 2066-67 (2017). But when, as with § 2254(e)(2),
Congress has directly addressed a situation through legislation, those statutes supersede
any judicially created rules that might otherwise apply in the absence of such legislation.
See, e.g., City of Milwaukee v. Illinois, 451 U.S. 304, 313-16 (1981); Williams, 529 U.S. at
433 (explaining that because AEDPA addressed what was once an equitable question,
courts must follow AEDPA). Nothing in the text of § 2254(e)(2) provides an exception for
this situation. Under § 2254(e)(2), petitioner must show that someone other than himself
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was a fault for his inability to develop facts on state habeas. But petitioner was unable to
develop evidence on state habeas because he waited too long to file a petition; the opposite
of diligence. 11 If that procedural bar was insufficient to support a procedural default, it was
10F
only because the infrequency of circumstances like this resulted in a rule that was not yet
“firmly established and consistently followed.” Martinez v. Ryan, 566 U.S. 1, 9 (2012); see
supra pp. 12, 29 n.10; Austin v. Davis, 647 F. App’x 477, 482 (5th Cir. 2016) (per curiam)
(“The federal district court concluded that since Austin’s case was the first in which the
[Court of Criminal Appeals] had construed § 4(a) in this manner, it was not a procedural
rule that was regularly followed and therefore could not be the basis for procedurally defaulting Austin’s state habeas claims.”). That rule, however, is nonetheless a legitimate interpretation of Texas law, and the need for its utilization rests solely at the feet of petitioner.
Had he been diligent, the statute of limitations never would have come into play. This case
is in the heartland of § 2254(e)(2) and petitioner’s new evidence is barred.
11
Any argument that petitioner’s supposed incompetence excused the untimely filing
of his state habeas petition is also untimely; it should have been made to the state court.
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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.