647 Fed.Appx. 477 (5th Cir. 2016), 13-70024, Austin v. Davis

Docket Nº:13-70024
Citation:647 Fed.Appx. 477
Opinion Judge:PER CURIAM
Attorney:For PERRY ALLEN AUSTIN, Petitioner - Appellant: Richard John Bourke, Christine Marie Lehmann, Louisiana Capital Assistance Center, New Orleans, LA. For LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION, Respondent - Appellee: Jeremy Craig Greenwell, E...
Judge Panel:Before OWEN, ELROD, and HAYNES, Circuit Judges.
Case Date:May 06, 2016
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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647 Fed.Appx. 477 (5th Cir. 2016)

PERRY ALLEN AUSTIN, Petitioner--Appellant,



No. 13-70024

United States Court of Appeals, Fifth Circuit

May 6, 2016

Page 478

[Copyrighted Material Omitted]

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Editorial Note:

Please Refer Federal Rule of Appellate Procedure Rule 32.1

Appeal from the United States District Court for the Southern District of Texas. USDC No. 4:04-CV-2387.

For PERRY ALLEN AUSTIN, Petitioner - Appellant: Richard John Bourke, Christine Marie Lehmann, Louisiana Capital Assistance Center, New Orleans, LA.

For LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION, Respondent - Appellee: Jeremy Craig Greenwell, Esq., Assistant Attorney General, Office of the Attorney General, Postconviction Litigation Division, Austin, TX.

Before OWEN, ELROD, and HAYNES, Circuit Judges.


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Pursuant to 28 U.S.C. § 2254, Perry Allen Austin, a Texas death-row inmate, requests a certificate of appealability (COA) following the district court's denial of his petition for a writ of habeas corpus and request for an evidentiary hearing. Austin raises twenty-one (21) issues. His request for a COA is granted in part and denied in part.


Because Austin's claims relate primarily to his alleged mental illness, we begin by briefly outlining his mental-health history. In 1975, at age fifteen, Austin attempted suicide and was diagnosed with an adolescent adjustment reaction in a mixed personality. In 1978, he raped one of his adolescent sisters at gunpoint and attempted to rape another, before robbing a third, older sister and his mother. Awaiting trial, he again attempted suicide, and a psychiatrist diagnosed him as having a " severe personality disturbance with schizoid thinking and anti-social features" and " latent borderline schizophrenia." A jury convicted Austin of rape, attempted rape, and aggravated robbery.

Following this conviction, Austin was released on parole in 1991 and began a sexual relationship with J.O., a fourteen-year-old female. Through J.O., Austin met D.K., a nine-year-old male. D.K. disappeared in August 1992. While investigating D.K.'s disappearance, police discovered Austin's relationship with J.O. and charges were brought against Austin. He pled guilty to sexual assault of a child and received a thirty-year sentence. In April 1993, D.K.'s remains were found. Although there was physical evidence connecting Austin to D.K.'s murder and Austin admitted that D.K. had been in his vehicle the day of D.K.'s disappearance, police did not believe they had sufficient evidence to prove Austin was responsible for D.K.'s murder.

Austin alleges that prison conditions caused his mental health to deteriorate after he was incarcerated for sexually assaulting J.O. In 1995, he stabbed another prisoner and received an additional twenty-year sentence. By this point, Austin was confined in administrative segregation.

In September 2000, Austin wrote a letter to a Houston police officer, stating that he would confess to D.K.'s murder if he would be guaranteed the death penalty. Austin was interviewed at the state prison and confessed orally and in writing to slitting D.K.'s throat with a knife because Austin was angry at D.K.'s brother for allegedly stealing drugs from Austin's car. Austin was indicted for capital murder on February 15, 2001. On March 21, Mack Arnold was appointed to represent Austin.

On May 15, 2001, Austin sent a letter to the state trial court asking to waive counsel and plead guilty. He indicated he would accept a death sentence and not appeal. He also stated that his mental stability was declining and that he had

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resumed the use of drugs. Arnold filed a motion to have Dr. Jerome Brown, a clinical psychologist, examine Austin. The court granted the motion on July 13. On July 19, Austin sent a letter to the court asking to be removed from administrative segregation, stating that he was suffering from depression and frequently contemplated suicide. During an in camera conference, the court told Austin that a psychological evaluation must occur before the Faretta 1 hearing, which would address whether Austin was competent to waive counsel.

Dr. Brown interviewed Austin on September 20 and prepared a report. The report acknowledged Austin's use of alcohol and psychotropic drugs in prison, but otherwise, it did not mention any past or present mental health issues. Dr. Brown found that Austin did not show signs of mental illness and concluded that he was competent to stand trial.

The state court held a Faretta hearing on October 11, 2001. The court expressly relied on Dr. Brown's report. Arnold, Austin's counsel, opined that Austin was competent. The court's questions to Austin primarily focused on his understanding of the possible consequences of representing himself and of the charges against him, but the court asked four questions about Austin's mental-health history. Arnold briefly questioned Austin, inquiring only about Arnold's representation of Austin. The court issued findings and granted Austin's motion to proceed to trial pro se but appointed Arnold as standby counsel.

Austin did not participate in jury selection and pleaded guilty. During the punishment phase, Austin briefly cross-examined one witness about his relationship with J.O. In closing argument, Austin contended that he was not a pedophile, but with respect to Texas's two special-issues, he told the jury that he would commit further acts of violence in prison and that there were no mitigating circumstances. The jury answered Texas' special issues such that a death sentence was imposed.

The court held a second Faretta hearing in which Austin waived appellate counsel. The state court appointed standby appellate counsel. Austin's case was automatically appealed to the Texas Court of Criminal Appeals (TCCA). He filed no brief, and the TCCA affirmed his conviction.2 Two months later, the state trial court found Austin competent and permitted him to waive the right to habeas counsel. Proceeding pro se, Austin waived the pursuit of post-conviction relief. Six days before his scheduled execution date, Austin moved to have state habeas counsel appointed and indicated he wished to pursue post-conviction relief. The trial court withdrew the execution date and appointed counsel, but the TCCA denied Austin's motion to file an untimely habeas petition.3

Austin timely filed a federal habeas petition. The State argued that Austin's claims were procedurally defaulted, but the district court held that the TCCA applied a new rule that could not be the basis of a procedural default. The court denied Austin's motion for an evidentiary hearing, granted summary judgment to the State, and denied Austin a COA. Austin now seeks a COA from this court.

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As an initial matter, the State contends, in a lengthy footnote in its brief, that the federal district court erred in concluding that Austin's claims for relief (other than Issue 21 in our court) were not procedurally defaulted. The TCCA held that Austin's application for habeas relief was untimely. That court reasoned that under Tex.Crim. Pro. Art. 11.071 § 4(a), which required Austin to file his habeas petition no later than 180 days after the appointment of counsel or 45 days after the State's brief was filed, Austin's petition was time-barred after 45 days had passed following the State's waiver of its right to file a brief. The federal district court concluded that since Austin's case was the first in which the TCCA 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.

Because reasonable jurists could debate whether the TCCA's ruling was one that could serve as an adequate state procedural ground on which to deny federal habeas review, we do not resolve the question today. We will consider it in connection with the appeal of the issues on which we today grant a COA to Austin.


The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)4 requires a federal habeas petitioner to obtain a COA before an appellate court may review a district court's denial of relief.5 A COA may issue if the applicant has " made a substantial showing of the denial of a constitutional right." 6 A petitioner must show that " reasonable jurists could debate whether . . . the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further." 7 In a death penalty case, we resolve " any doubts...

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