Billiot v. Epps, Civil Action No. 1:86CV549TSL.

CourtUnited States District Courts. 5th Circuit. Southern District of Mississippi
Writing for the CourtTom S. Lee
Citation671 F.Supp.2d 840
PartiesJames E. BILLIOT, Petitioner v. Christopher B. EPPS, Commissioner, Mississippi Department of Corrections and Lawrence Kelly, Superintendent, Mississippi State Penitentiary, Respondents.
Docket NumberCivil Action No. 1:86CV549TSL.
Decision Date03 November 2009

Page 840

671 F.Supp.2d 840
James E. BILLIOT, Petitioner
v.
Christopher B. EPPS, Commissioner, Mississippi Department of Corrections and Lawrence Kelly, Superintendent, Mississippi State Penitentiary, Respondents.
Civil Action No. 1:86CV549TSL.
United States District Court, S.D. Mississippi, Southern Division.
November 3, 2009.

John C. Henegan, Butler, Snow, O'Mara, Stevens & Cannada, Jackson, MS, Joseph Margulies, Margulies & Richman, Steven T. Grimshaw, Crosby & Grimshaw, Ltd., Minneapolis, MN, L. Lee Tyner, Jr., University of Mississippi, University, MS, for Petitioner.

Marvin L. White, Jr., Office of the Attorney General, Jackson, MS, for Respondents.

Page 841

MEMORANDUM OPINION AND ORDER

TOM S. LEE, District Judge.


This matter comes before the court on the Motion of Petitioner to Determine Competency to be Executed while Being Treated with Anti-Psychotic Medication and Request for Ford/Panetti Competency Hearing Date. The court held a hearing on this Motion on June 25-26, 2009, at which the parties presented evidence and testimony regarding James Billiot's current mental state. Having heard the testimony and reviewed the exhibits and pleadings submitted by counsel, the court is of the opinion, for the reasons that are more fully set forth below, that Billiot has established that his mental condition has deteriorated to a point where he can not be executed under Eighth Amendment standards. Therefore, he is entitled to habeas relief on this issue.

HISTORY

James Billiot has been convicted of capital murder in the deaths of his mother, stepfather and half-sister, which occurred in November 1981. He has been sentenced to death. His initial Petition for Writ of Habeas Corpus was filed in this court in May 1986, claiming, among other things, that he was incompetent to be executed by reason of insanity. A month later, the United States Supreme Court issued its opinion in Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986), holding that the Eighth Amendment prohibits execution of the insane. In light of Ford, this court held the petition in abeyance until Billiot could exhaust his insanity claim in state court. Billiot then sought post-conviction relief from the Mississippi Supreme Court on that claim.

That court granted Billiot's request for an evidentiary hearing on his competency allegations, citing both Ford and Miss. Code Ann. § 99-19-57(2)(1972 & Supp. 2008). Billiot v. State, 515 So.2d 1234, 1235-36 (Miss.1987). The statute, as it existed at that time, stated, in pertinent part:

2(a) If it is believed that a convict under sentence of death has become insane since the judgment of the court, the following shall be the exclusive procedural and substantive procedure. The convict, or a person acting as his next friend, or the commissioner of corrections may file an appropriate application seeking post-conviction relief with the Mississippi Supreme Court. If it is found that the convict is insane, as defined in this subsection, the court shall suspend the execution of the sentence. The convict shall then be committed to the forensic unit of the Mississippi State Hospital at Whitfield. The order of commitment shall require that the convict be examined and a written report be furnished to the court at that time and every month thereafter, stating whether there is a substantial probability that the convict will become sane under this subsection within the foreseeable future and whether progress is being made toward that goal. If at any time during such commitment the appropriate official at the state hospital considers the convict is sane under this subsection, such official shall promptly notify the court to that effect in writing and place the offender in the custody of the commissioner of corrections. The court shall thereupon conduct a hearing on the sanity of the convict. The finding of the circuit court is a final order appealable under the terms and conditions of the Mississippi Uniform Post-Conviction Collateral Relief Act.

Page 842

(b) For the purposes of this subsection, a person shall be deemed to be insane if the court finds that the convict does not have sufficient intelligence to understand the nature of the proceedings against him, what he was tried for, the purpose of his punishment, the impending fate which awaits him, and a sufficient understanding to know any fact which might exist which would make his punishment unjust or unlawful and the intelligence requisite to convey that information to his attorneys or the court.

Id. at 1236. (With minor stylistic changes, this statute continues to apply to inmates under a sentence of death whose competence is in question.) The Circuit Court of Harrison County conducted an evidentiary hearing on November 14, 1988, and found that Billiot was competent, under existing law, to be executed.

Six experts testified during that hearing —Dr. Robert McKinley, Dr. Michael Whelan and Dr. William Johnson for Billiot; and Dr. Henry Maggio, Dr. Donald C. Guild and Dr. Charlton Stanley for the State. In determining the framework for its analysis of that testimony, the trial court reviewed both the Mississippi statute and Ford, stating, "[T]he two tests or standards can be read together without doing violence to either and the Court applies this combined standard to the present case." Considering the experts' testimony, the court recognized that the majority of them believed Billiot to be suffering from paranoid schizophrenia, but it held that the diagnosis, alone, would not prevent Billiot from being competent to be executed. The court's ultimate conclusion on Billiot's competence follows:

The only expert to state that Billiot was not presently competent to be executed was Dr. William Johnson. Dr. McKinley offered no opinion. The other experts stated that Billiot was competent at the time they examined him. The fact that these examinations have taken place at differing times over several years and in each instance he has been competent forces the Court to the conclusion that Billiot is presently sane and competent to be executed under the Mississippi statute because the Court finds as fact that Billiot does possess sufficient intelligence to understand the nature of the proceedings against him, what he was tried for, the purpose of his punishment, the impending fate which awaits him, and has a sufficient understanding to know any fact which might exist which would make his punishment unjust or unlawful and the intelligence requisite to convey such information to his attorneys or this court. The Court further finds that Billiot is also sane under the criteria set forth in Ford v. Wainwright, supra, in that he is aware of the punishment he is about to suffer and why he is going to suffer the punishment of death.

Billiot v. State, No. 18-761; DP-38, Findings of Fact and Conclusions of Law 39-40 (Cir. Ct. of Harrison County, Miss. May 10, 1989).

This decision was appealed to the Mississippi Supreme Court, which approved the legal standard used by the trial court and held that the evidence presented there was sufficient to support that court's conclusion. Billiot v. State, 655 So.2d 1, 12-15 (Miss.1995). The court rejected arguments attacking both the procedure by which the trial court reached its decision and its interpretation of the Mississippi statute. Id. at 16. The Mississippi Supreme Court also noted that Billiot had attacked the lower court's proceedings by arguing that he had been improperly medicated with anti-psychotic drugs prior to his competency evaluations. Id. at 16-17.

Page 843

However, because Billiot had not objected to the medication at the hearing, but only in the proposed Findings of Fact and Conclusions of Law that were later submitted, the court held that the argument had been waived. Id.

After the Mississippi Supreme Court held that Billiot was competent to be executed, he returned to this court and amended his Petition for Writ of Habeas Corpus to include his claims relative to the state court's competency evaluation. Those claims have not yet been addressed by this court, although his remaining claims were considered. Most of those claims were rejected in a Memorandum Opinion and Order entered on March 19, 1997, in which this Court held that Billiot's case should be remanded to the Mississippi Supreme Court because the instruction given on the "heinous, atrocious and cruel" aggravating circumstance was constitutionally invalid. The State appealed that denial, and the Fifth Circuit reversed and remanded for a harmless error analysis. Billiot v. Puckett, 135 F.3d 311, 320 (5th Cir.1998). On August 14, 2003, this court denied relief on all issues but the Ford claim and certified that denial for interlocutory appeal. The Fifth Circuit refused to consider that appeal in an unpublished opinion. Billiot v. Epps, 107 Fed.Appx. 385 (5th Cir.2004). Therefore, resolution of the competency claim is properly before this Court.

PROCEDURAL STATUS

Billiot's Ford claim was stayed indefinitely in this court's 2003 Memorandum Opinion and Order. In its opinion denying an interlocutory appeal, the Fifth Circuit determined that the Ford claim "is the only obstacle to a final judgment. . . ." 107 Fed.Appx. at 387. A footnote in the opinion suggested that the Ford claim is premature because no execution date has been set. The court also suggested that the claim should be dismissed without prejudice, so that the requirements for an appeal could be satisfied. Id. at n. 1. However, this court has declined to dismiss that claim, reasoning that state law requires that an execution date be set as soon as any stay of execution granted by a state or federal court is lifted. Billiot v. Epps, No. Civ. A. 1:86cv549(L), 2005 WL 2877731 at *2 (S.D.Miss.2005). Thus, a finding by this Court that Billiot is competent would require that this Court's stay be lifted, and his execution would then be imminent. So that Billiot's remaining claim can be...

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11 practice notes
  • Battaglia v. State, NO. AP-77,069
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • September 20, 2017
    ...and as we observe herein, execution competency is a "moving target." See note 2, supra.58 Id. at 37859 Id. at 378.60 Billiot v. Epps , 671 F.Supp.2d 840 (S.D. Miss. 2009).61 Id. at 842 (citing Billiot v. State , No. 18-761; DP-38, Findings of Fact and Conclusions of Law 39–40 (Cir. Ct. of H......
  • Reid ex rel. Martiniano v. State, Nos. M2009–00128–SC–R11–PD, M2009–00360–SC–R11–PD, M2009–01557–SC–R11–PD.
    • United States
    • Supreme Court of Tennessee
    • January 24, 2013
    ...impending execution, and the relationship between the two.” State v. Irick, 320 S.W.3d 284, 295 (Tenn.2010) (quoting Billiot v. Epps, 671 F.Supp.2d 840, 853 (S.D.Miss.2009)). Although some states require a prisoner to be able to work with counsel in order to be competent to be executed, in ......
  • Panetti v. Stephens, Nos. 08–70015
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • August 21, 2013
    ...519 F.3d at 279. 90.553 U.S. 35, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008). 91. Specifically, Panetti relies on Billiot v. Epps, 671 F.Supp.2d 840 (S.D.Miss.2009), and Pennsylvania v. Banks, 612 Pa. 56, 29 A.3d 1129 (2011). 92.Panetti, 2008 WL 2338498, at *26 (emphasis added). 93.See id. at *1......
  • State Of Tenn. v. Irick, No. M1987-00131-SC-DPE-DD.
    • United States
    • Supreme Court of Tennessee
    • September 22, 2010
    ...to have “a rational understanding of his conviction, his impending execution, and the relationship between the two.” Billiot v. Epps, 671 F.Supp.2d 840, 853 (S.D.Miss.2009). See also Panetti v. Quarterman, No. A-04-CA-042-SS, 2008 WL 2338498, at *31 (W.D.Tex. Mar. 26, 2008) (opinion after r......
  • Request a trial to view additional results
11 cases
  • Battaglia v. State, NO. AP-77,069
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • September 20, 2017
    ...and as we observe herein, execution competency is a "moving target." See note 2, supra.58 Id. at 37859 Id. at 378.60 Billiot v. Epps , 671 F.Supp.2d 840 (S.D. Miss. 2009).61 Id. at 842 (citing Billiot v. State , No. 18-761; DP-38, Findings of Fact and Conclusions of Law 39–40 (Cir. Ct. of H......
  • Reid ex rel. Martiniano v. State, Nos. M2009–00128–SC–R11–PD, M2009–00360–SC–R11–PD, M2009–01557–SC–R11–PD.
    • United States
    • Supreme Court of Tennessee
    • January 24, 2013
    ...impending execution, and the relationship between the two.” State v. Irick, 320 S.W.3d 284, 295 (Tenn.2010) (quoting Billiot v. Epps, 671 F.Supp.2d 840, 853 (S.D.Miss.2009)). Although some states require a prisoner to be able to work with counsel in order to be competent to be executed, in ......
  • Panetti v. Stephens, Nos. 08–70015
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • August 21, 2013
    ...519 F.3d at 279. 90.553 U.S. 35, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008). 91. Specifically, Panetti relies on Billiot v. Epps, 671 F.Supp.2d 840 (S.D.Miss.2009), and Pennsylvania v. Banks, 612 Pa. 56, 29 A.3d 1129 (2011). 92.Panetti, 2008 WL 2338498, at *26 (emphasis added). 93.See id. at *1......
  • State Of Tenn. v. Irick, No. M1987-00131-SC-DPE-DD.
    • United States
    • Supreme Court of Tennessee
    • September 22, 2010
    ...to have “a rational understanding of his conviction, his impending execution, and the relationship between the two.” Billiot v. Epps, 671 F.Supp.2d 840, 853 (S.D.Miss.2009). See also Panetti v. Quarterman, No. A-04-CA-042-SS, 2008 WL 2338498, at *31 (W.D.Tex. Mar. 26, 2008) (opinion after r......
  • Request a trial to view additional results

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