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Panetti v. Davis

United States Court of Appeals, Fifth Circuit

July 11, 2017

SCOTT LOUIS PANETTI, 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 Western District of Texas

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

          PATRICK E. HIGGINBOTHAM, Circuit Judge

         Our question today is competency to be executed and its attending procedures, not the validity of the conviction or sentence. We stayed execution to consider Scott Panetti's appeal from the denial of appointed counsel and funding to hire a mental health expert and investigator. We will now reverse the district court's denial of appointed counsel and expert funding under 18 U.S.C. § 3599, vacate its factual findings relating to Panetti's competency, and remand for additional proceedings, another chapter in this judicial plunge into the dark forest of insanity and death directed by the flickering and inevitably elusive guides.

         I

         Charged with capital murder for killing his wife's parents in front of his wife and three-year-old daughter, Panetti insisted on representing himself at trial, an undertaking made the more difficult by a long history of schizophrenia and institutionalization. The Texas Court of Criminal Appeals ("TCCA") upheld his conviction and death sentence on direct and collateral review.[1]

         Panetti filed his first federal habeas petition in 1999, claiming, among other things, that he was incompetent both to waive counsel and to stand trial. The district court rejected those incompetency claims, and the state trial court set Panetti's execution date for February 5, 2004.[2] In December 2003, Panetti filed a motion in state court under Article 46.05 of the Texas Code of Criminal Procedure, claiming for the first time he was incompetent to be executed.[3] The state court denied the motion without a hearing, and the TCCA dismissed his appeal for lack of jurisdiction.[4]

         In January of 2004, Panetti filed a second federal habeas petition, his first under Ford v. Wainwright.[5] The federal district court granted his request for a stay to allow the state court to consider supplemental evidence.[6] The state court hired two experts to evaluate Panetti, but upon receipt of their reports, denied relief without an evidentiary hearing.[7] Finding that the state court's failure to afford Panetti a hearing denied due process under Ford, the federal district court scheduled an evidentiary hearing to determine Panetti's competency to be executed, appointed counsel, and authorized funds for investigative and expert assistance.[8] Ultimately, the district court concluded that Panetti understood the reason for his execution and found him competent to be executed.[9] We affirmed.[10]

         The Supreme Court granted certiorari and reversed.[11] The Court reasoned that "a prisoner's recognition of the severity of the offense and the objective of community vindication are called into question . . . if the prisoner's mental state is so distorted by a mental illness that his awareness of the crime and punishment has little or no relation to the understanding of those concepts shared by the community as a whole."[12] The Court held that the test this court deployed-a prisoner's factual awareness of his impending execution and the State's articulated premises for executing him-did not go far enough; that a prisoner must also have a "rational understanding" of the State's reasons for executing him.[13] The Court remanded the case to the district court to investigate and determine whether Panetti's delusions rendered him incapable of understanding the reason for his punishment in light of its opinion and against the backdrop of Roper v. Simmons, [14] Atkins v. Virginia, [15] and Ford.[16]

         So, the federal district court held a second evidentiary hearing on the issue of Panetti's competency to be executed. The court thoroughly reviewed the evidence presented at the hearing and concluded that he was competent under the correct standard.[17] While Panetti's resulting appeal to this court was pending, the Supreme Court held in Indiana v. Edwards that "the Constitution permits States to insist upon representation by counsel for those competent enough to stand trial . . . but who still suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves."[18] In turn, we granted Panetti's motion to stay federal proceedings for his return to Texas state court with his new Edwards claim.

         Panetti then filed another state habeas petition, which the TCCA dismissed on October 21, 2009, as a subsequent application for "fail[ing] to meet the dictates of Article 11.071, § 5."[19] The next day, with our permission, Panetti filed his third federal habeas petition in the district court.[20]

         While that petition was pending, the TCCA addressed the meaning of Edwards in Chadwick v. State.[21] In light of Chadwick, the federal district court granted Panetti leave to file a second successive state habeas petition.[22] The TCCA again dismissed the petition, and the Supreme Court denied certiorari.[23]Panetti then returned to the federal district court with his Edwards claim, which the court denied on the merits.[24] On August 21, 2013, this court affirmed both the district court's 2008 rejection of Panetti's competency-to-be-executed claim and its 2012 rejection of Panetti's Edwards claim.[25] The Supreme Court denied Panetti's resulting petition for a writ of certiorari.[26]

         II

         We come to Panetti's present claim. Acting on an ex parte request from the state district attorney's office, the state court set Panetti's execution for December 3, 2014. Panetti's counsel learned of the execution date from a newspaper on October 30, and the next day filed an emergency motion for a hearing, asking that the execution date be withdrawn or modified to allow time to pursue the issue of his competency to be executed through an Article 46.05 motion.[27] In this motion, Panetti argued that in the short time remaining before his execution date, he would not have "a meaningful opportunity to contest his competency for execution" as required by due process and Ford. In Texas in 2014, no notice was required to be provided to capital defendants or their counsel when the execution was set, and dates of execution for "subsequent" executions could be set as early as thirty-one days out from the order scheduling the execution.[28]

         Panetti also submitted related motions for counsel and funding for expert assistance, captioned "Defendant's Ex Parte Motion for Funds to Hire Mental Health Expert to Assist Defense in Article 46.05 Proceedings, " "Defendant's Ex Parte Motion for Funds to Hire Investigator to Assist Defense in Article 46.05 Proceedings, " and "Defendant's Motion for Appointment of Counsel to Prepare and Litigate Article 46.05 Motion." He argued that the State "must comport with the minimum due process guarantees enumerated in Ford" by granting him compensated counsel, funding for experts, and time to develop an Article 46.05 petition; that with these resources, he would be able to make the substantial showing of incompetence required by Article 46.05 for a hearing on his competency. The motions included the names of experts Panetti's pro bono counsel had already contacted, describing their qualifications and anticipated expenses. In the meantime, the State began gathering evidence in support of its opposition to Panetti's pleas. This included surreptitiously recording a conversation between Panetti and his parents on November 4, as it had done seven years before, generating evidence of the same type relied upon by the federal district court in denying Panetti's earlier Ford claim.

         On November 6, the state trial court held a hearing by phone with both parties. During this teleconference, Panetti's counsel reminded the court that Panetti had only six days to file or he would lose any right to appeal from the judgment of the state court;[29] that Panetti's competency had not been evaluated for seven years; and that the state trial court was placing his unpaid counsel in the position of either attempting to review 8, 500 pages of TDCJ medical records, seek pro bono expert assistance, and prepare and file a petition in less than one week's time, or else lose all right to appellate review. The court suggested, and the State agreed, that Panetti file a skeletal Article 46.05 petition, followed by an amended motion expanding on the original petition, provided any additional filings were submitted by November 21, effectively granting an additional nine days. Panetti's counsel replied that fifteen days were not enough for a law professor from Wisconsin and an expert, both without funding and with the large demands of their primary work, to prepare sufficient filings.

         Later that day, the court denied Panetti's emergency motion for a hearing. On November 14, Panetti filed a "Renewed Motion to Stay or Modify Execution Date, Appoint Counsel, and Authorize Funds for Investigative and Expert Assistance to Provide Meaningful Opportunity to Prepare Article 46.05 Motion, " in which he argued that he could not, facing these time constraints and absent mental health expert resources, meet the threshold requirement of Article 46.05.[30] In the renewed motion, pro bono counsel included the limited evidence that he had been able to obtain, without any funding, to substantiate the claim of present incompetency. The renewed motion included the expert opinion of Dr. Diane Mosnik, a neuropsychologist with extensive experience in the area of schizophrenia. As Dr. Mosnik was to help pro bono counsel on a "limited basis, " she was only able to give her opinion on the basis of a preliminary review of Panetti's records. With this limited review, she determined that Panetti had exhibited worsening signs of acute psychosis in the year prior. Counsel cited Panetti's prison medical records, observing what he believed were "alarming and aberrational changes in Mr. Panetti's behavior over the last two years." Counsel argued that he needed to be appointed and granted funds to retain Dr. Mosnik to develop these preliminary impressions.

         The renewed motion also iterated Panetti's argument that Ford and due process entitled him to compensated counsel and funding for experts as he developed his Article 46.05 motion. He argued that, without these resources, "the state-court process [would] be ineffective to protect Mr. Panetti's . . . rights" under Ford and Panetti. Panetti argued that, while Ford does not require the State to appoint counsel and provide funding in every situation, once a prisoner makes "a colorable showing of incompetency, " it does require the State to provide the "rudimentary procedural due process protections" that he sought. Panetti's pro bono counsel maintained that he had made such a showing, but were being deprived of the means to show more. The court denied the renewed motion, and Panetti appealed to the TCCA.

         Meanwhile, the State's lawyers secured the assistance of Dr. Joseph Penn, Director of Mental Health Services in the Correctional Managed Care division of the University of Texas Medical Branch.[31] By November 24, 2014, Dr. Penn had completed his work and signed an affidavit describing Panetti's prison medical records, giving his interpretation of the record regarding the significance of the pattern of medical treatment-both what had been provided and what had not. He never met with Panetti. The State filed this affidavit with the TCCA, and later with the federal district court, along with the November 4 recording of Panetti and his family.

         On November 25, in a 5-4 opinion, the TCCA affirmed the denial of Panetti's motions.[32] It ruled that it lacked jurisdiction to review them because the motions did not qualify as Article 46.05 pleadings and suggested that, even construed to qualify, they were untimely.[33] Within four months of that decision, legislation was introduced in the Texas Senate to require in all future capital cases the notice that Panetti was not given and to extend the time that capital defendants and their counsel have to prepare filings.[34] That bill became law just before oral argument in this case.[35]

         Reaching the federal courts, Panetti on November 25, 2014, filed a motion for stay of execution and sought appointment of counsel and funding for expert assistance under 18 U.S.C. § 3599, again urging that Ford and due process mandated that he have time and these resources. On November 26, 2014, the Wednesday before Thanksgiving, the State filed its "Opposition to Petitioner's Motion for Stay of Execution, " which responded to all of Panetti's motions, including the motions for counsel and funding for experts. The State's opposition relied on Dr. Penn's affidavit and the audio recording of Panetti and his family, including them as exhibits.[36] Later that day, the court denied Panetti's motions for want of an adequate showing of incompetence. It concluded that Panetti failed to show that his mental health had substantially changed since the court's detailed inquiry seven years earlier. It did not address the State's argument that any habeas claim of Panetti's was procedurally barred, and hence did not address Panetti's pleas for time. Panetti timely appealed to this court. We stayed his execution for briefing and argument.

         III

         Panetti requests appointment of counsel and funding for expert assistance as provided in 18 U.S.C. § 3599(a)(2):

In any post conviction proceeding under section 2254 or 2255 of title 28, United States Code, seeking to vacate or set aside a death sentence, any defendant who is financially unable to obtain adequate representation or investigation, expert, or other necessary services shall be entitled to the appointment of one or more attorneys . . . .[37]

         These statutory rights may be invoked before a habeas petition is filed. Congress contemplated that the prisoner on death row would have the assistance of paid counsel to prepare a federal habeas petition.[38] The entitlement to paid counsel is absolute, subject to a narrow exception, when potential procedural bars would "indisputably" foreclose habeas relief.[39] To deny appointment of counsel, it must be "plain that any subsequent motion that [appointed] counsel might file . . . would be futile;"[40] that is, the work of paid, able counsel, with funds to engage experts, could make no difference. Panetti's request does not fit within this narrow exception.

         The State argues that Panetti is procedurally barred because he failed to exhaust his Ford claims in state court under Article 46.05. Panetti replies that courts may excuse exhaustion where, as applied here, the applicable state procedures provided inadequate due process protections under Ford, leaving only repair to federal court.

         Panetti argues that the actions of the State here combined to render Article 46.05 ineffective to protect his rights. The State ex parte requested an execution date without notice to Panetti's counsel, leaving them with only ten days between learning of the impending execution and the deadline to file a motion under Article 46.05 or lose all right of appeal from the state trial court's judgment.[41] The state court judge suggested that Panetti file a skeletal petition, followed by an amended motion expanding on the original petition. Meanwhile, the State used its own resources to seek out and file new evidence with the TCCA, all while opposing Panetti's access to the same resources.

         A divided TCCA, in turn, dismissed Panetti's amended motion as neither timely filed nor a proper Article 46.05 motion. The four dissenting judges agreed with Panetti, deeming the court's treatment of Panetti's claims "overly formalistic" and believing that it "at best, deprive[d] [him] of a fair opportunity to litigate his claims, thereby violating the constitutionally required procedural protections recognized in Ford."[42] The dissent argued that the TCCA should have accepted jurisdiction over Panetti's renewed motion, for his original motion sought relief by the only pathway offered under Texas law, Article 46.05, and "was timely filed."[43] The court had recently done just that in Druery v. State.[44] In response to the majority's conclusion that Panetti had not in fact filed an original Article 46.05 motion, the dissent pointed out that the court ought to have properly exercised its jurisdiction because his motions were "intertwined with the substance of relief sought by Article 46.05."[45] In short, four justices maintained that the majority ignored its own precedent allowing the TCCA to consider such intertwined claims.[46]

         Texas's application of Article 46.05 to Panetti denied him due process. That procedure, at least as applied to him, was ineffective to protect his right to be free from cruel and unusual punishment under Ford and its progeny. Texas itself has recognized as much by recently passing legislation to ensure that no other capital defendant is placed in the situation that Panetti and his counsel faced.[47] That initiative commendably addresses the core concern going forward, but does not address the denial here.

         Ordinarily, a state prisoner must exhaust all of his state remedies to be entitled to habeas review.[48] But where "circumstances exist that render [the state] process ineffective to protect the rights of the applicant, " we are empowered to reach those claims absent exhaustion.[49] We find that such circumstances exist here. Federal courts also ordinarily apply a deferential standard of review to the claims of state prisoners seeking habeas relief.[50] But where, as here, the state courts have not reached the merits of a petitioner's claims, federal courts will review de novo.[51] We are not prepared to make the predictive judgment, absent a procedural bar to federal review and with no AEDPA deference to a decision of the state court, that Panetti's federal habeas claim would be futile. He is entitled to counsel to pursue that claim, and its denial was error.

         Nor do we see justification for denying Panetti funding for experts and other investigative resources.[52] Under 18 U.S.C. § 3599(f), the court "may authorize the defendant's attorneys to obtain such services on behalf of the defendant" upon "a finding that investigative, expert, or other services are reasonably necessary for the representation of the defendant." A district court may deny an inmate's request for funds to pursue federal habeas relief "when a petitioner has (a) failed to supplement his funding request with a viable constitutional claim that is not procedurally barred, or (b) when the sought-after assistance would only support a meritless claim, or (c) when the sought-after assistance would only supplement prior evidence."[53]

         The federal district court did not mention the statutory standard of "reasonabl[e] necess[ity], " but implicitly found that Panetti had not met it in holding that, "[c]onsidering . . . the wealth of evidence on the issue of Panetti's competency, " his "attempt to begin the cycle of litigation afresh should be rejected." The reality is that a decade has now passed since the last determination of whether this concededly mentally ill petitioner is competent to be executed.[54] Given that lapse of time, we cannot say that any new evidence would only be "supplemental" to that already contained in the record.

         As Justice Powell wrote in Ford, due process is breached when "affected parties" are prevented "from offering contrary medical evidence or even from explaining the inadequacies of the State's examinations."[55] Panetti asserts that the State here sought to deny him a meaningful opportunity to do just that. It deployed its able death penalty lawyers, aided by a medical expert, Dr. Penn, and recorded Panetti with his family-filing Dr. Penn's affidavit and the recording with both the TCCA and federal district court.[56] Meanwhile, Panetti lacked the funds to acquire his own up-to-date evidence; his last professional competency evaluation was conducted a decade ago. As the argument goes, it is one thing to respond to a petitioner's claims on the existing record; it is quite another, with assistance of counsel and paid experts, to generate new evidence while preventing the petitioner from doing the same. All this without initially notifying Panetti of his impending execution, resulting in an impossible deadline-a flaw that has since been ameliorated by the Texas legislature to provide notice and time for these sorts of claims to be developed. As the Court recently reminded in Moore, "[t]he clearest and most reliable objective evidence of contemporary values comes from state legislative judgments" because it is those bodies that "are constituted to respond to the will and consequently the moral values of the people."[57] In introducing the bill to require notice to defendants whose execution dates are set and the provision of enough time to prepare a defense, the authoring Texas Senator said:

Attorneys for capital defendants should have the same notice as the state and the court about when executions will be set. Requiring sufficient notice of the scheduling of execution dates will ensure that defendants have an opportunity to fairly prepare for the impending execution.[58]

         We agree.

         With the benefit of time and argument, we must conclude that the district court's conclusion was tainted by the inadequate due process protection provided to Panetti by the State. We need not and do not treat the merits of Panetti's claim that he is incompetent to be executed-that is for the district court after Panetti has been afforded the opportunity to develop his position. We conclude that the district court abused its discretion in denying Panetti funding for counsel and for experts to assist in preparing his contemplated federal habeas petition. To the extent the district court made findings of fact regarding Panetti's competency to be executed, they must be vacated. It is the case that a petitioner bringing claims under Ford and the State crafting a response must travel in uncharted water-uncertainties for all. This opinion does not undertake to resolve these uncertainties; it rather insists that their resolution proceed with fully armed counsel on both sides-the essence of due process.

         IV

         The dissent argues that Texas's adversarial posture played no role in the decisions of the Texas Court of Criminal Appeals or the federal district court because those courts did not rely on the evidence the State produced. With respect, the dissent's observation that the TCCA "did not reach the merits of Panetti's claim" misses the point. The very question which divided that court 5-4 was whether Panetti's struggle to comply with the strictures of Article 46.05, without funded counsel or expert assistance and with truncated deadlines, was sufficient in the face of the State's decidedly adversarial opposition. The point made by the dissenting judges was that the court ought to accept the pleading despite these shortcomings because Panetti could not "attach items in support of a motion under Article 46.05 due to a lack of funds to obtain assistance from mental-health experts whose opinions are required to make a substantial showing under the article;" and that his argument was, at the least, "intertwined with the substance of the relief sought by Article 46.05."[59] And none of this can change the reality that the TCCA majority, while ignoring its own precedent, faulted Panetti's request for relief for deficiencies that were themselves a product of the State-created plight faced by Panetti's counsel, all with a backdrop of reassuring comfort tendered by the State's medical expert that nothing had changed in Panetti's competency. And the district court, whose decision is before us on appeal, in rejecting Panetti's claim on the merits, stated that it had considered "the wealth of evidence on the issue of Panetti's competency." While that basis for conclusion surely included all of the State's last-minute submissions, it was without the benefit of evidence that Panetti sought to produce by process denied to him.

         The dissent further argues that any shortcomings of the state court process were made harmless by the intervening ruling of the federal district court; that the same court that had earlier denied Panetti's Ford claim was well-equipped to decide whether Panetti had overcome the presumption of competence attendant to that 2008 ruling. This argument fails. On November 19, 2014, the Texas State trial court rejected Panetti's renewed motion, which contained the evidence that Panetti's unfunded counsel had been able to assemble up to that point. Six days later, on November 25, 2014, the TCCA affirmed that decision. That same day, Panetti filed in the federal district court his motion for a stay, appointment of counsel, and funding for experts, with Texas opposing.

         The district court in turn did not confront the issue of exhaustion of state remedies posed by the decision of the TCCA. Pressed by the looming execution date, it elected to proceed to the merits, as it was entitled to do. Doing so, however, did not address Panetti's pleas that the state had denied him the time and resources required to present his claim-resources that the state was deploying against him. This left the district court to weigh Panetti's stunted submission against the state's evidence of Dr. Penn's affidavit and the recording of Panetti and his family and his experience in the earlier competency proceedings.[60] The result was nigh inevitable. Rather than a cleansing of error, as the dissent has it, the district court did not remedy the denial of due process we have described. Instead, it proceeded upon the flawed record that denial produced.

         V

         Finally, lest the length and complexity of Panetti's path in the federal courts be seen as a sane man playing the system, we remind that there can be no dispute that Panetti is mentally ill, and was so long before his crime. Before his conviction, he had been "hospitalized numerous times" and prescribed medication that "would be difficult for a person not suffering from extreme psychosis even to tolerate."[61] In 1986, Panetti's then-wife sought judicial relief from the Texas state courts after Panetti "became convinced the devil had possessed their home and . . . had buried a number of valuables next to the house and engaged in other rituals."[62]

         Seven years have passed since he was last adjudged competent. Since then, as recounted by the amici: (1) escorting officers have noticed that Panetti often acts in an irrational and delusional manner; (2) despite having refused mental health treatment for nearly two decades, Panetti has, in the last few years, begun requesting mental health assistance and medication; (3) Panetti has expressed the belief that Texas has implanted a listening device in his tooth that sends command messages to his brain; (4) Panetti reads the Gospel to help drown out the voices he hears; (5) Panetti has expressed the belief that CNN anchor Wolf Blitzer displayed Panetti's stolen TDCJ ID card during a report; and (5) Panetti has claimed to be the father of actress and singer Selena Gomez.

         Nor does Panetti present as a poster child of abuse-seeking a determination of competence with each setting of an execution date. Panetti is from a small universe of death row prisoners; he has a long history of mental illness that predates his crime and following a judicial determination of his competency to be executed, he experienced a delay of another decade of solitary, brought about by a wholly extraneous issue that itself was resolved by the Supreme Court.

         Process matters, and gives rise to the aged observation that, in the law, the shortest distance between two points is seldom a straight line. Truncated hearings and exacting strictures can squeeze the life from due process, while perversely creating years of delay, all for a refusal to give a few days of time- this most seriously so when the issue is not whether a defendant is mentally ill, but the more subtle reaches of his disability. There is no justification for executing the insane, and no reasoned support for it, as only a glance at the brief of amici-filed by able and fervent citizens spanning the spectrum of political views-will confirm. We and our state court brethren struggle to get it right, an effort not always successful, for we yet are just lawyers, subject to error. Mr. Wiercioch has, in our best traditions, served his client for years with limited resources and time. To refuse to give him the time and resources critical to review Panetti's present condition is error, borne of understandable but nevertheless error-producing frustration over the delay baked into our death penalty jurisprudence-with its twists and turns between two sovereigns. The core deficiencies underlying our finding of denial of due process have commendably been alleviated by the Texas legislature, but stopping there leaves Panetti in the dust.

         We reverse the district court's denial of appointed counsel and expert funding. We vacate, as premature, the district court's findings on the merits of Panetti's Ford claim without comment on their ultimate soundness and remand to the district court with instructions to appoint counsel, authorize funds for investigative and expert assistance, and conduct any further proceedings to determine afresh Panetti's competency to be executed. Delivery of the process due protects the prisoner and in doing so protects us all.

          PRISCILLA R. OWEN, Circuit Judge, concurring in part and dissenting in part:

         This is the third time that Panetti has claimed, based on Ford, [1] that he is incompetent to be executed. If the federal district court's order denying Panetti's motion for funds to retain experts and investigators to pursue that claim should be affirmed, then whether the Texas state courts denied due process to Panetti is irrelevant. I would affirm the federal district court regarding funds for experts, and I therefore primarily consider the federal district court's rulings. In reversing the federal district court, the majority opinion effectively applies a de novo standard of review, though an abuse of discretion standard governs the denial of a motion under 18 U.S.C. § 3599(f), [2]and the majority opinion concludes that the passage of time is sufficient to require the appointment of experts and investigators to examine the defendant's competency anew.[3] With regard to Panetti's constitutional due process claim, the majority opinion reverses the federal district court because of two filings the State made the same day the district court issued its ruling, even though none of the district court's citations to the evidence on which it relied include the State's submissions. In so doing, the majority opinion again fails to employ proper appellate standards of review.

         I agree that Panetti was and is entitled to appointed counsel at every step of the ongoing legal proceedings. But the error in failing to appoint counsel is not a dispositive issue and does not warrant a continued stay of execution since Panetti was actually represented by his former federal habeas counsel, who proceeded pro bono in the state courts and in federal district court, and they capably represented him. (They are entitled to compensation for that and any future representation, as long as they remain appointed counsel pursuant to 18 U.S.C. § 3599).[4]

         The dispositive question is whether the federal district court abused its discretion in denying Panetti's request for funds for experts and investigators when (1) Panetti has maintained in the most recent round of state and federal court proceedings that he cannot make the threshold showing required by Ford ("a substantial threshold showing of insanity")[5] unless and until a court orders funding for experts and investigators, [6] and (2) the facts presented by Panetti to the district court in support of his renewed claim that he is incompetent to be executed do not differ in any meaningful way from the facts exhaustively examined by the district court in two prior Ford hearings.

         The panel's majority opinion obfuscates the core inquiry and, I submit with great respect, does not objectively consider the record or the actual bases for the district court's conclusion that Panetti has not made a sufficient showing to require the appointment of experts in order to litigate, once again, whether he is competent to be executed.

         I

         There is no question that Panetti was entitled to appointment of counsel to represent him when the State of Texas once again set an execution date. I agree with the majority opinion on that score. But counsel actually represented Panetti, and the fact that they were not compensated at the time is not a basis for further staying the execution. The record reflects that counsel performed effectively in state court but concluded that they could not, or should not, proceed to file a motion under Texas Code of Criminal Procedure Article 46.05 without funding from a court to retain mental health experts and investigators to attempt to develop the record. The lack of experts, rather than the lack of counsel or counsel's need for additional time, was the pivotal issue in state court and in federal district court.

         II

         Quoting Ford and citing Panetti, the federal district court concluded that "Panetti has failed to make the 'threshold showing' which would trigger his entitlement to the relief he seeks."[7] The court explained that, in response to Panetti's most recent claim, it had "[c]onduct[ed] a fresh inquiry into Panetti's mental state at the threshold" and found that

Panetti has failed to make the necessary showing of incompetency warranting, for the third time . . . authorization of funds to hire mental health experts, and a stay of execution. Panetti has extensively litigated this issue, and has presented no evidence of incompetence different in kind from that previously considered and ultimately rejected by this and other Courts.[8]

         These determinations are fully supported by the record. Panetti failed to present facts to the district court regarding his behavior or mental state since the last competency hearing that would permit an expert to present opinions that materially differed from the expert opinions that the district court heard in the prior competency-to-be-executed hearings. Unless facts are presented that truly differ from the nature of the facts previously presented, there is no need to fund experts to opine further. Panetti was accorded due process.[9]

         For the same reasons, the appointment of experts is not "reasonably necessary for the representation of the defendant, " within the meaning of 18 U.S.C. § 3599(f). Section 3599(f) does not mandate the appointment of experts or investigators. Rather, it provides that

[u]pon a finding that investigative, expert, or other services are reasonably necessary for the representation of the defendant . . ., the court may authorize the defendant's attorneys to obtain such services . . . and, if so authorized, shall order the payment of fees and expenses.[10]

         This court has interpreted "reasonably necessary" to require a petitioner to show that he has "a substantial need" for the requested assistance.[11] "[A] district court may deny an inmate's request for funds 'when a petitioner has (a) failed to supplement his funding request with a viable constitutional claim that is not procedurally barred, or (b) when the sought-after assistance would only support a meritless claim, or (c) when the sought after assistance would only supplement prior evidence."[12] Our review of the district court's ruling is for abuse of discretion.[13]

         Panetti's current claim that he is incompetent to be executed is not "a viable constitutional claim"[14] because, as the district court found, the facts supporting his most recent claim of incompetency are not different in kind from the facts supporting an earlier claim of incompetency. The earlier claim was rejected after an extensive hearing, detailed findings by the district court, and appellate review by this court and the Supreme Court.

         Because the facts presented to the district court in support of Panetti's most recent Ford claim are not different in kind from those supporting his last claim of incompetency, the expert assistance that is sought "would only supplement prior evidence."[15] In the prior competency hearing, the district court considered expert opinions that Panetti was incompetent to be executed. Those opinions were based on the same "kind" of facts that Panetti has presented in support of his most recent claim of incompetency, [16] and the federal district court did not find those expert opinions persuasive.

         In analogous circumstances, this court held in Smith v. Dretke, a capital case, that the district court did not abuse its discretion in denying funds for the assistance of a psychologist in federal habeas proceedings.[17] Smith argued that an expert could evaluate his drug and alcohol abuse "to determine whether it would support a defense mitigation theory, " but this court held that "[t]he question of mental capacity . . . was presented in this instance to the jury at trial" and that the evidence Smith sought to develop would only be supplemental.[18] The federal district court in the present case heard a vast amount of evidence presented by Panetti in the prior competency hearing, and the district court found that the new evidence that Panetti presented was not different in kind from that already considered. The assistance of new experts would only supplement prior evidence of the same nature.

         III

         The bases upon which the majority opinion reverses the district court's denial of funding for experts do not withstand analysis.

         A

         The majority opinion concludes that "[r]ather than . . . cleansing . . . the denial of due process [by the state courts] we have described, "[19] the federal district court, "[p]ressed by the looming execution date, . . . proceeded upon the flawed record that denial produced."[20] The "result was nigh inevitable, "[21] and the federal district court likewise denied Panetti due process, the majority opinion concludes.[22]

         The federal district court had before it Panetti's motion to stay the execution and a motion to fund experts. The district court was certainly aware that it could grant a stay of the impending execution if the court needed additional time. It did not grant such a stay, and in light of the decades of experience that the judge possesses, and the detailed order that the court issued, it is evident that the court denied the motion for a stay after careful deliberation, not because it was "[p]ressed by the looming execution date."[23]Panetti was urging the district court to give him more time to develop a factual record regarding his competency and to appoint experts to review the evidence of Panetti's mental state since the last competency hearing. That could not have been lost on the federal district court. Panetti argued to the federal district court that the record in the state court was inadequate and that he had been denied due process. The district court nevertheless denied Panetti's motion for appointment of experts. The request for funding for experts was the primary thrust of Panetti's motion in the federal district court. To suggest that the district court was led down the proverbial primrose path by error in the state courts implies that the federal district court was either impotent or inept. It was neither. The district court ruled on the 18 U.S.C. § 3599(f) motion to appoint experts after "[c]onducting a fresh inquiry into Panetti's mental state at the threshold."[24] The federal district court was well within its discretion in denying that motion.

         B

         As discussed, our court has held that a district court may deny a § 3599(f) motion to fund experts "when the sought after assistance would only supplement prior evidence."[25] The majority opinion concludes that "[t]he reality is that a decade has now passed since the last determination of whether this concededly mentally ill petitioner is competent to be executed. Given that lapse of time, we cannot say that any new evidence would only be 'supplemental' to that already contained in the record."[26] This is erroneous for at least three reasons.

         First, the burden of proof is on the defendant who is seeking public funding for experts. The lapse of time says nothing about whether the evidence the defendant hopes to offer through an expert will be new, rather than supplemental, evidence. The majority opinion fails to hold Panetti to his burden of proof.

         Second, and more fundamentally, it cannot simply be assumed, as the majority opinion does, that because of the passage of time, appointment of experts is "reasonably necessary."[27] Such an assumption is an arbitrary interpretation and application of § 3599(f), and it is a standardless means of allowing federal courts to second-guess and reverse state courts, contrary to the precepts contained in AEDPA.

         Third, such an assumption is not a valid reason for reversing a federal district court when we are reviewing a denial of funding for experts under § 3599(f). Our review is for an abuse of discretion. We cannot legitimately say that, as a matter of law, a district court must grant funding for experts to examine a defendant's competency when the last competency hearing was years earlier, even when all agree that the defendant suffers from mental illness.

         C

         The majority opinion places great, and repeated, emphasis on the fact that the State filed an expert's affidavit in the Texas Court of Criminal Appeals (TCCA) and in the federal district court, and that, without notice to Panetti, the State recorded a two-hour conversation he had with his parents on November 4, 2014.[28] However, neither the affidavit nor the recording was actually considered by the TCCA or relied upon by the federal district court. The majority opinion is incorrect in concluding that the mere filing of the affidavit or recording resulted in a denial of due process to Panetti and warrants reversing the federal district court.

         After the state trial court denied Panetti's request for funding for experts and a stay of the execution, and while an appeal of that ruling was pending before the TCCA, the State, on November 24, 2014, [29] filed with the TCCA an affidavit from Dr. Joseph Penn, Director of Mental Health Services in the Correctional Managed Care division of the University of Texas Medical Branch. Dr. Penn had reviewed Panetti's medical records and opined in the affidavit that Panetti did not exhibit behaviors that interfered with his daily functioning or required treatment with medications. The State had also recorded a conversation that occurred on November 4, 2014, between Panetti and his parents. The recordings were made without Panetti's knowledge, which certainly was not a violation of due process. An inmate's phone conversations may be intercepted and recorded unless privileged, [30] and Panetti's conversation with his parents was not privileged. He does not contend otherwise. Panetti had no expectation of privacy when he conversed with his parents.[31] Regardless, however, neither the Penn affidavit nor the 2014 recorded conversation was considered by the TCCA or the federal district court.

         We know, as a matter of law, that the TCCA did not consider or rely on the Penn affidavit or the recording because one day after the State's filing, the TCCA denied Panetti's petition on the basis that it lacked jurisdiction to review the trial court's order.[32] The TCCA reasoned that Panetti had not filed an Article 46.05 pleading and that no authority permitted the court to review a "freestanding motion, " such as the one that Panetti had filed.[33] (The TCCA did not, as the majority opinion asserts, [34] state that untimeliness was an additional reason for denying the motion). Accordingly, the TCCA did not reach the merits of Panetti's claim, and the State's new evidence played no part in the TCCA's ruling.

         The majority opinion says this "misses the point."[35] It then engages in an impassioned argument and cites the dissenting opinion in the TCCA.[36] But none of what the majority opinion says addresses whether this court can legitimately say that the State's mere filing of the Penn affidavit or the recording with the TCCA amounted to a denial of due process. As a court, we must adhere to well-settled principles of appellate review. We must consider the actual holding in the TCCA's order, issued by a majority of that court. That order reflects that the TCCA concluded that the court did not have jurisdiction to consider Panetti's motion, which means that it did not, as a matter of settled law, consider either the Penn affidavit or the recorded conversation. This court cannot, therefore, conclude that filing the affidavit or recording with the TCCA resulted in a due process violation.

         With regard to the federal district court's denial of funds for experts, the majority opinion says that the district court "stated that it had considered 'the wealth of evidence on the issue of Panetti's competency, '" and "that basis for conclusion surely included all of the State's last-minute submissions."[37] The opinion then asserts that the federal district court must have affirmatively "weigh[ed] Panetti's" new evidence against "the state's evidence of Dr. Penn's affidavit and the recording of Panetti and his family."[38] However, when a district court sets forth the specific factual bases for its factual findings, as in the present case, an appellate court cannot assume that the district court relied on other facts in the record to reverse the district court, if the appellate court is properly applying the abuse of discretion standard. The district court's order reflects that its finding were reached after considering Panetti's new evidence (not the State's) as weighed against the evidence "previously amassed in this case, "[39] which unmistakably refers to the prior competency hearings.

         The State filed the Penn affidavit with the federal district court on November 26, 2014, as an attachment to its response to Panetti's motion for a stay of execution, appointment of counsel, and request for funding for experts. The district court's decision, denying Panetti's requests, issued the same day, November 26, 2014. The only possible mention of the State's new evidence is a reference in the opening paragraph of the federal district court's order to "Respondent's Response in Opposition [#181]" and the statement in that same paragraph that the court had "reviewed the documents, the governing law, and the file as a whole."[40] However, the district court's analysis of the evidence and its reasoning reflect that it did not rely on the State's new evidence at all in concluding that Panetti had failed to present "a substantial threshold showing of insanity"[41] and was competent to be executed. The district court's order details the evidentiary basis for its conclusions and provides citations, none of which are to the State's new evidence. The federal district court considered only Panetti's evidence[42] and whether Panetti's behavior, as documented in Panetti's evidence, was "measurably different from the behavior documented in the records scrupulously examined by this Court in its March 26, 2008 Order."[43] The district court then detailed evidence from Panetti's prior competency hearings.[44]

         The majority opinion declares that "it is one thing to respond to a petitioner's claims on the existing record; it is quite another, with assistance of counsel and paid experts, to generate new evidence while preventing the petitioner from doing the same."[45] The majority opinion concludes that Panetti is entitled to proceed to prepare yet another federal habeas petition "with fully armed counsel, " meaning counsel armed with experts.[46]

         If the district court judge had done what the majority opinion says he did, I would join in reversing the district court's judgment. But he did not. He prudently considered only the new evidence offered by Panetti, measured it against the mountain of evidence adduced in prior proceedings, and correctly concluded that Panetti's new evidence (not the State's new evidence) was ...


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