Green v. Thaler

Decision Date31 October 2012
Docket NumberNo. 12–70031.,12–70031.
Citation699 F.3d 404
PartiesJonathan Marcus GREEN, Petitioner–Appellee, v. Rick THALER, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent–Appellant.
CourtU.S. Court of Appeals — Fifth Circuit

OPINION TEXT STARTS HERE

Philip Harlan Hilder, James Gregory Rytting, Hilder & Associates, P.C., Houston, TX, for PetitionerAppellee.

Tomee Morgan Heining, Asst. Atty. Gen., Postconviction Lit. Div., Austin, TX, for RespondentAppellant.

Appeal from the United States District Court for the Southern District of Texas.

Before KING, CLEMENT and OWEN, Circuit Judges.

KING, Circuit Judge:

Petitioner Jonathan Marcus Green was convicted of capital murder and sentenced to death in Texas state court on July 17, 2002. Petitioner challenged in state court his competency to be executed. A competency hearing was held on June 28, 2010. Petitioner testified and presented expert testimony as well as voluminous medical records. Respondent stipulated to the accuracy of these records and that any fact witnesses called in support would testify consistent with those records. The state court issued a ruling from the bench finding Petitioner competent. The state court specifically found that Petitioner knew he was “to be executed by the State,” knew he was “convicted of killing the victim,” knew “the execution date,” and demonstrated “a rational understanding of [his] imminent date.” The Texas Court of Criminal Appeals affirmed on June 27, 2012. An execution date was then set on August 14, 2012, scheduling Petitioner's execution for October 10, 2012. On September 28, 2012, Green filed a motion in the district court pursuant to 28 U.S.C. §§ 2241 and 2254, seeking a stay of execution. On October 8, 2012, the district court, in Green v. Thaler, No. H–07–827, granted Petitioner's motion to stay execution. The district court ruled that the state proceeding violated due process by failing to allow Petitioner to call forth fact witnesses who would testify as to his medical records, and by failing to apply the proper constitutional standards, all in contravention of Panetti v. Quarterman. We find no basis in Panetti or elsewhere for the district court's holding that a competency hearing at which Petitioner testified and both Petitioner and Respondent introduced expert testimony, including medical records stipulated as accurate, violates the Due Process Clause. We also find no basisfor concluding that the state court's decision that Petitioner was competent to be executed was contrary to, or involved an unreasonable application of, federal law as determined by the Supreme Court. Finally, we find that Petitioner has failed to present clear and convincing evidence to rebut the presumption in favor of upholding the state court's competency finding. Accordingly, we vacate the district court's stay of execution and remand with instructions to dismiss the petition.

I. FACTUAL AND PROCEDURAL BACKGROUND

Jonathan Marcus Green was convicted of the capital murder of 12–year old Christina Neal and sentenced to death in the 221st District Court of Montgomery County, Texas on July 17, 2002.1 Green's conviction was affirmed by the Texas Court of Criminal Appeals (“CCA”). Green v. State, No. AP–74398, 2004 WL 3094650 (Tex.Crim.App. Dec. 1, 2004) (not designated for publication), cert. denied sub nom. Green v. Texas, 547 U.S. 1005, 126 S.Ct. 1465, 164 L.Ed.2d 251 (2006). Following the denial of certiorari, Green filed a state application for habeas relief. The CCA denied post-conviction relief.

Green next filed a federal habeas petition in the United States District Court for the Southern District of Texas. Green v. Quarterman, No. H–07–827, 2008 WL 442356 (S.D.Tex. Feb. 15, 2008). Among the numerous claims Green raised in his petition was a claim that he was incompetent to be executed and mentally retarded. Id. at *5. The district court dismissed his competency claim as unripe and denied relief on all other claims. Id. at *8, *15. Green sought a certificate of appealability (“COA”) from this court on June 16, 2008. That request was denied on February 27, 2009. Green v. Quarterman, 312 Fed.Appx. 635 (5th Cir.2009) (unpublished). We rejected Green's argument that his due process rights were violated because the jury charge did not require that jurors unanimously determine under which of two underlying felonies he committed capital murder. Id. at 637–40. We similarly denied a certificate of appealability on Green's ineffective assistance of counsel claim. Id. at 640–41. Finally, as did the district court, we dismissed, without prejudice, Green's claim of mental incompetence as unripe because no execution date had been set. Id. at 641. The United States Supreme Court denied certiorari on October 5, 2009. Green v. Thaler, ––– U.S. ––––, 130 S.Ct. 373, 175 L.Ed.2d 139 (2009).

On December 16, 2009, the state court signed the death warrant and set the execution date for June 30, 2010. On June 1, 2010—five and one half months later—represented by the same counsel as represented him in his earlier habeas petition (and as continues to represent him), Green filed a motion seeking appointment of counsel, funding for retention of a mental health expert, and an evidentiary hearing. The state court granted Green's motion in part. The court appointed counsel and approved funding to retain Dr. Diane Mosnik, an assistant professor of psychiatry and neurology. But the court did not, at that time, schedule an evidentiary hearing. Green's expert, Dr. Mosnik, and the State's expert, Dr. Mark Moeller, submitted their reports on June 21, 2010. Green then filed a second state petition for writ of habeas corpus on June 23, 2010 pursuant to Article 11.071 of the Texas Code of Criminal Procedure and sought a competencydetermination under Article 46.05. In his petition, Green again argued that he was incompetent to be executed and asked for a competency hearing. That same day, the state court scheduled a competency hearing for June 28, 2010.

Following the June 28, 2010 competency hearing, the state court found Green sufficiently competent to be executed. On the State's motion, the CCA reviewed the state court's decision and stayed Green's execution on June 30, 2010. The appellate court determined that it required clarification from the state court as to what standard the court used during the competency hearing, because some of the standards the judge referenced to assess Green's competency were inapplicable to that proceeding. Ex parte Green, No. AP–76,374, 2010 Tex.Crim.App. Unpub. LEXIS 407 (Tex.Crim.App. June 30, 2010) (not designated for publication).2 The CCA received the state court's clarification that it had relied on the Article 46.05 standard on July 14, 2010. (Pet'r's Ex. G.)

On July 2, 2010, after learning that the state court judge had solicited, ex parte, a proposed order from the State following the competency hearing, Green moved for the judge's recusal under Rule 18a of the Texas Rules of Civil Procedure. The regional presiding judge held a hearing on that motion on July 12, 2010, and denied it. Green filed a notice of appeal as to this denial on July 19, 2010.

On June 27, 2012, the CCA issued a decision consolidating and addressing the three issues Green raised in the state court proceedings below: 1) whether competency claims in death penalty cases are cognizable on a petition for a writ of habeas corpus; 2) whether the state court erred in finding Green competent; and 3) whether Green's motion for recusal of the state court judge for allegedly inappropriate ex parte communications was properly denied. Green v. State, 374 S.W.3d 434 (Tex.Crim.App.2012). As to the first issue, the appellate court held that Article 46.05 satisfied due process and that a habeas petition under Article 11.071 could not substitute for a direct appeal under Article 46.05. Id. at 438–40. The appellate court further held that Article 46.05 was constitutional under Panetti.Id. at 439–40. As to the second issue, the appellate court determined that the state court had applied the correct legal standard in finding Green competent. Id. at 443–44. The appellate court then reviewed the state court's decision for abuse of discretion, and denied Green's claim of error. Id. The appellate court also denied Green relief on the third issue, holding that Green's recusal motion was properly denied because: 1) the state court judge's recusal could not influence Green's Article 46.05 appeal, 2) the appellate court lacked jurisdiction, and 3) the regional presiding judge's denial of Green's motion was not an abuse of discretion. Id. at 443–47.

On September 28, 2012, Green filed a motion for stay of execution in district court, arguing that the state competency proceeding did not afford him adequate due process, the standards applied by the state court to assess his competency were clearly erroneous, and his present mental state requires an “opportunity and expert resources necessary to properly present and explain the significance of his condition in a federal writ of habeas corpus.” The district court granted Green's motion for a stay on October 8, 2012, finding that the state court 1) prevented Green from presenting testimony principally by the Texas Department of Criminal Justice (TDCJ) mental health professionals who authored the records submitted at the hearing and stipulated to by the State; 2) signed an order drafted by the State to which Green had no opportunity to object; and 3) applied at least one incorrect legal standard in assessing Green's competency. Green v. Thaler, No. H–07–827, 2012 WL 4765809 (S.D.Tex. Oct. 8, 2012). The district court held that this resulted in a denial of Green's due process rights, led the state court to make an unreasonable determination of the facts, and constituted an unreasonable application of Supreme Court precedent. A status conference was scheduled for October 18, 2012.

II. DISCUSSION
A. Jurisdi...

To continue reading

Request your trial
50 cases
  • Busby v. Davis
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • June 13, 2018
  • Cole v. Lumpkin
    • United States
    • U.S. District Court — Southern District of Texas
    • September 7, 2021
    ... ... Underhill's evaluation ... suggested the need for another expert to evaluate Dr ... Underhill's own evaluation. See Green v ... Lumpkin , F. App'x, 2021 WL 2786461 *6 (5th Cir. July ... 2, 2021) (counsel's failure to seek a second expert ... opinion is ... sentencing scheme creates an intolerable risk of confusing ... the jury.” Druery v. Thaler , 647 F.3d 535, 544 ... (5th Cir. 2011). On state habeas review, the Court of ... Criminal Appeals rejected this claim, noting that it ... ...
  • Busby v. Davis
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • May 20, 2019
  • Mamou v. Davis
    • United States
    • U.S. District Court — Southern District of Texas
    • December 8, 2016
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT