Gonzales v. Davis

• Decision Date: 17 May 2019
• Docket Number: No. 18-70026,18-70026
• Citation: 924 F.3d 236
• Parties: Michael Dean GONZALES, Petitioner - Appellant v. Lorie DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent - Appellee
• Court: U.S. Court of Appeals — Fifth Circuit

924 F.3d 236

Michael Dean GONZALES, Petitioner - Appellant

v.Lorie DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent - Appellee

No. 18-70026

United States Court of Appeals, Fifth Circuit.

FILED May 17, 2019

Donna F. Coltharp, Assistant Federal Public Defender, Federal Public Defender's Office, Western District of Texas, San Antonio, TX, Richard H. Burr, III, Esq., Burr & Welch, P.C., Leggett, TX, for Petitioner-Appellant.

Woodson Erich Dryden, Esq., Assistant Attorney General, Jennifer Wren Morris, Office of the Attorney General, Financial Litigation & Charitable Trusts Division, Austin, TX, for Respondent - Appellee.

Before JONES, SOUTHWICK, and WILLETT, Circuit Judges.

PER CURIAM:

This is an appeal from the district court’s denial of an inmate’s petition for habeas relief relating to his alleged incompetence to stand trial on capital sentencing, and for a Certificate of Appealability ("COA"). The district court erroneously granted a hearing on the merits of petitioner’s claims and denied relief. We deny the petitioner a COA because his claims are procedurally barred and, alternatively, lack merit.

I. BACKGROUND

The petitioner, Michael Gonzales, was convicted of the gruesome murders of an elderly couple and was sentenced to death by an Ector County district court on December 8, 1995. Significant evidence supporting Gonzales’s conviction was a jailhouse confession he gave to a prison guard who also happened to be one of his relatives. The Texas Court of Criminal Appeals ("TCCA") affirmed his conviction and sentence, Gonzales v. State , No. AP—72,317 (Tex. Crim. App. June 3, 1998) (not designated for publication), and subsequently denied his initial state habeas petition. Ex Parte Gonzales , No. WR-40,541-01 (Tex. Crim. App. Mar. 10, 1999) (not designated for publication).

The following year, Gonzales filed a federal petition for habeas relief in the federal district court. The district court denied relief concerning his conviction, but after the Texas Attorney General’s office notified the court about an error that had occurred during the sentencing phase, the district court ordered the state court to grant Gonzales a new sentencing trial. Gonzales v. Cockrell , No. 7:99-cv-00073 (W.D. Tex. Dec. 19, 2002) (not designated for publication). Gonzales unsuccessfully appealed the district court’s denial of guilt-phase relief to this court. Gonzales v. Quarterman , 458 F.3d 384 (5th Cir. 2006), cert. denied , 549 U.S. 1323, 127 S. Ct. 1909, 167 L.Ed.2d 568 (Mem.) (2007).

In May 2009, Gonzales was again sentenced to death in a second sentencing trial, presided over by the same judge who oversaw his previous sentencing trial. The second sentencing trial—and Gonzales’s conduct throughout it—is the subject of this appeal. The trial court assigned two attorneys, Woody Leverett and Jason Leach, to serve as trial counsel for Gonzales during the sentencing trial. After Leverett and Leach were appointed, Gonzales wrote to them and requested that they secure the services of a New York mitigation specialist named Charles Lanier. Leverett responded that he and Leach had looked into Gonzales’s request but learned that Lanier was not a mitigation specialist, but, rather, a mental health expert who opposed the death penalty. Those statements were not accurate. When Lanier told Gonzales that Leverett’s statements were inaccurate, Gonzales petitioned the court to terminate Leverett’s position as his court-assigned counsel. Gonzales told the court that he did not "trust [his counsel], plain and simple. When an attorney lies to you one time, he is going to lie to you every time, so my point [is] they aren’t worth s***." The court held a hearing and ultimately decided to keep Leverett in his position as trial co-counsel, basing its decision partly on Leverett’s qualifications and Leverett’s explanation that he had not intended to mislead Gonzales, as well as the court’s distrust of Lanier’s motives for involving himself.

After the court denied Gonzales’s request to remove Leverett, Gonzales stopped cooperating with his counsel entirely and instructed his friends and family members to do the same. Leverett then filed a motion on his own, asking to be replaced as counsel for Gonzales because he had "absolutely no working relationship" with Gonzales, and because Gonzales repeatedly refused to cooperate with his defense team (although Gonzales sometimes reached out to his attorneys for help acquiring items for day-to-day use inside prison). The court denied the motion.

Gonzales’s demeanor in court became increasingly hostile and volatile over the course of his sentencing trial. On the first day of testimony, Gonzales’s wife was called to testify and was warned by prosecutors that she could be charged as an accomplice if she repeated previous statements she had made to the police. When she appeared confused by the admonishment, Gonzales spoke out:

GONZALES: If she don’t want to testify, leave her alone, man. That’s my wife. She has the right to plead the Fifth Amendment. She don’t got to testify against nobody. You are harping her, man. You are f***ing with her mind. Leave her alone. She don’t want to testify.

COURT: Retire the jury.

(Jury retired from courtroom).

GONZALES: See how you got her all emotional. You ain’t got to testify, Martha. Don’t let them get in your head. You have got the right to keep the Fifth Amendment. You should be ashamed of yourself, man.

COURT: Now, where are we?

PROSECUTOR: [Gonzales’s wife] has told me that she is frightened, that she is scared of the defendant, and I think she –

GONZALES: Godd*** right she is scared because y’all put her in that f***ing position, man. Just leave her alone. She don’t want to testify.

After a recess, Gonzales’s wife testified that Gonzales had murdered the victims. Gonzales interrupted her testimony and exclaimed, "[s]ame thing’s gonna happen to you, b****. I’m gonna f***ing have somebody kill your ass." After the jury was excused, the court admonished Gonzales for repeatedly interrupting the proceedings and asked if he was aware of the consequences for continuing that behavior. Gonzales said that he was aware of the consequences—that the court could either "remove [him] from the courtroom or gag [him]." The court then asked Gonzales if he was "going to continue to create problems," and Gonzales replied, "whenever my blood rises, I speak my mind."

On the final day of the trial, Gonzales’s counsel announced their intent to call several witnesses, including Gonzales’s half-sister, his daughter, and an expert witness. But Gonzales adamantly refused to allow the witnesses to testify and threatened to cause a disturbance if they did. Consequently, Gonzales was the last witness the defense called. On the stand, when Leverett asked Gonzales if there was anything he wanted to tell the jury, Gonzales replied, "[y]eah. Y’all can f***ing kill me. Makes me no f***ing difference. Pass the witness." The prosecution said it had no questions for Gonzales on cross-examination, and the court called Leverett back to the stand for a redirect. When the court called Leverett to conduct the redirect, Gonzales protested, "[n]o, man. I told you yesterday why do I want your f***ing assistance, man? You won’t listen to me." Leverett then told the court that the defense rested. Gonzales was subsequently sentenced to death.

Gonzales’s second death sentence was upheld by the TCCA, Gonzales v. State , 353 S.W.3d 826 (Tex. Crim. App. 2011), and he did not seek state habeas relief. On November 10, 2010, the TCCA issued an order stating that Gonzales had not filed a habeas application, and that any subsequent applications would be reviewed under Texas Code of Criminal Procedure 11.071, Section 5 (governing abuse of the writ) as a result. Ex Parte Gonzales , No. 40,541-03 at Order.

Gonzales filed another federal habeas petition on December 27, 2012 and an amended petition on November 5, 2013. Gonzales then moved to stay the federal habeas proceedings while he returned to state court to exhaust his claims. The district court granted the motion in part, and Gonzales filed another state habeas petition. Relying on Gonzales’s waiver, the TCCA dismissed his petition as an abuse of the writ. Ex Parte Gonzales , 463 S.W.3d 508 (Tex. Crim. App. 2015). Thereafter, Gonzales filed an amended petition in the district court, along with a motion for an evidentiary hearing. The district court overruled the state’s contention that all of Gonzales’s issues were procedurally barred and further concluded that it could hold a de novo hearing on the issues. But see 28 U.S.C. § 2254(e)(2). The court accordingly held a seven-day evidentiary hearing, after which it ruled, in a lengthy and careful opinion, that the trial court did not err by not ordering a competency hearing sua sponte , that Gonzales was not incompetent to participate in the second sentencing trial, and that his trial counsel’s decision not to raise the issue of Gonzales’s competency did not amount to ineffective assistance of counsel. The court also denied Gonzales a COA.

Gonzales has appealed, seeking a COA for issues that he raised for the first time in the state writ application denied as an abuse—his Pate claim and his Ineffective Assistance of Trial Counsel ("IATC") claim—and for his contention that the district court’s retrospective competency hearing, which he sought to begin with, was inadequate and speculative.

II. STANDARD OF REVIEW

A COA is necessary to appeal the denial of federal habeas relief, 28 U.S.C. § 2253(c)(1), and the requirement is jurisdictional. Miller- El v. Cockrell , 537 U.S. 322, 335–36, 123 S. Ct. 1029, 1039, 154 L.Ed.2d 931 (2003). Federal review of a habeas claim is procedurally barred if the last state court to consider the claim expressly and unambiguously based its denial of relief on a state procedural bar.

Harris v. Reed , 489 U.S. 255, 109 S. Ct. 1038, 103 L.Ed.2d 308 (1989). To overcome a procedural...