Butler v. Stephens, 09-70003

• Decision Date: 09 September 2015
• Docket Number: No. 14-70018,No. 09-70003,09-70003,14-70018
• Parties: STEVEN ANTHONY BUTLER, Petitioner - Appellant v. WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION, Respondent - Appellee
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

STEVEN ANTHONY BUTLER, Petitioner - Appellant v. WILLIAM STEPHENS, DIRECTOR,

TEXAS DEPARTMENT OF CRIMINAL JUSTICE,

CORRECTIONAL INSTITUTIONS DIVISION, Respondent - Appellee

No. 09-70003

No. 14-70018

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

September 9, 2015

Appeals from the United States District Court for the Southern District of Texas

USDC No. 4:07-CV-2103

Before JOLLY, OWEN, and HAYNES, Circuit Judges.

PER CURIAM:^*

Steven Anthony Butler appeals the district court's denial of habeas relief and its denial of his Federal Rule of Civil Procedure 60(b) motion for relief from judgment. Butler claims he is intellectually disabled¹ and thus ineligible forthe death penalty under Atkins v. Virginia, 536 U.S. 304 (2002). Additionally, we previously granted Butler certificates of appealability on his allegations of Batson² and Brady³ violations and on one of his claims for ineffective assistance of counsel. With these claims now before us, we VACATE the dismissal of Claim 2 of Butler's federal habeas petition, Butler's ineffective-assistance-of-trial-counsel claim, and REMAND this claim for further consideration. In all other respects, we AFFIRM the district court's denial of Butler's habeas petition and Rule 60(b) motion.

I. Background

In 1988, Butler was convicted of capital murder and sentenced to death for killing a clerk in a dry cleaning store during an armed robbery. See Butler v. State, 872 S.W.2d 227, 230-31 (Tex. Crim. App. 1994). Butler later confessed to committing several similar armed robberies in the months before the capital murder. According to evidence presented by the State during the sentencing phase, Butler's pattern in these armed robberies included approaching convenience store clerks and demanding money from the cash register at gunpoint, or pretending to purchase something and demanding money once the cash register was opened. Butler generally did not hold the clerk at gunpoint until no one else was in the store. Sometimes he parked his car across the street from a store, in one instance stating that he left the radio on so it would not get stolen. As Butler was exiting the scene of his last armed robbery, heshot at a sheriff's deputy who had stopped to investigate Butler's car on the side of the road. In the ensuing chaos, Butler stole a vehicle at gunpoint and sped away, leading police on a high-speed chase until he tossed his gun out of the car window and pulled over.

Butler lost his direct appeal, see Butler, 872 S.W.2d at 246, and his initial state habeas petition was denied, see Ex parte Butler, 416 S.W.3d 863, 863 (Tex. Crim. App. 2012). Butler filed an initial federal habeas petition in 2002, which was dismissed without prejudice to allow him to exhaust his Atkins claim in state court. He then filed a successive state habeas application raising an Atkins claim and other issues. See id. The Texas Court of Criminal Appeals ("TCCA") remanded the case to the state district court ("trial court") for consideration of Butler's Atkins claim, which was denied in 2007 by order of the trial court (hereinafter "Trial Court's 2007 Order") after a seven-day hearing.⁴ See generally id. During Butler's Atkins hearing, Dr. George C. Denkowski testified extensively for the State about Butler's intellectual and adaptive functioning capacities and about whether Butler has an intellectual disability. The trial court extensively cited Dr. Denkowski's "credible" testimony as a basis for its findings of fact. The TCCA affirmed the Atkins determination on appeal. See id. Represented by the same counsel, Butler returned to federal court to petition for habeas relief, and in September 2008 the district court denied habeas relief, granting the motion for summaryjudgment filed by the Director of the Texas Department of Criminal Justice.

Butler appeals the district court's order denying him habeas relief, see Butler v. Quarterman, 576 F. Supp. 2d 805, 810 (S.D. Tex. 2008) ("District Court's 2008 Order" or "Butler"). In that order, the district court noted that Butler must prove three things to show intellectual disability under Atkins: "(1) significantly sub-average intellectual functioning, (2) deficits in adaptive functioning, and (3) onset before age 18." Id. at 810 (citing Ex Parte Briseno, 135 S.W.3d 1, 7 (Tex. Crim. App. 2004)). The district court granted a certificate of appealability ("COA") on the question of whether Butler suffers from an intellectual disability because it found that "another court could resolve the issue [of Butler's intellectual functioning] differently" and "the trial court's failure to find that Butler satisfied the first criteria for [intellectual disability] was based almost entirely on the court's acceptance of Dr. Denkowski's heavily disputed opinions." Id. at 816. Yet, "[b]ecause Dr. Denkowski was qualified as an expert in [intellectual disability], and since his testimony support[ed] the state court's findings, [the district court concluded] Butler ha[d] not shown by clear and convincing evidence that the state court's findings [were] incorrect." Id.

Butler appealed the District Court's 2008 Order to this court and moved to expand the COA the district court had granted on his Atkins claim to encompass claims of ineffective assistance of counsel, incompetence to stand trial, Brady violations during the penalty proceedings, and an allegedly improperly-remedied Batson violation.

In 2009, Butler's counsel filed a complaint with the Texas State Board of Examiners of Psychologists (the "Board") against Dr. George C. Denkowski, Ph.D., alleging unprofessional conduct in his forensic psychological assessment of Butler as the State's expert in the Atkins hearing. Dr. Denkowski held aPh.D. in counseling psychology and practiced forensic psychology. We granted a stay pending the outcome of the complaint. In 2011, Dr. Denkowski entered into an agreement with the Board regarding Butler's complaint and others; the Board found Dr. Denkowski had failed to comply with Board rules, and potentially state and federal law, in his forensic psychology practice related to Butler's complaint. The settlement agreement also "reprimanded" Dr. Denkowski's license and prohibited him from "accept[ing] any engagement to perform forensic psychological services in the evaluation of subjects for mental retardation or intellectual disability in criminal proceedings" henceforth. Finally, the agreement fined Dr. Denkowski $7,000.

In light of the settlement agreement and its censure of Dr. Denkowski for conduct related to Butler's case, we continued the stay of appellate proceedings to allow Butler to exhaust his Atkins claim in state court. The TCCA reconsidered its denial of Butler's Atkins claim in December 2011 and remanded the case to the trial court "to allow it the opportunity to re-evaluate its initial findings, conclusions, and recommendation in light of the Denkowski Settlement Agreement." Ex parte Butler, 416 S.W.3d at 864.

Without holding another evidentiary hearing or allowing for further discovery, the trial court signed an order in February 2012 ("Trial Court's 2012 Order") "adopting the State's Proposed Findings of Fact and Conclusions of Law which recommended that relief be denied." Id. The Trial Court's 2012 Order does not substantially differ from the Trial Court's 2007 Order denying habeas relief. The Trial Court's 2012 Order removed references to Dr. Denkowski's testimony or affidavit as "credible," deleted references to reliance on his testimony in some places, and found that Butler failed to show mental retardation by a preponderance of the evidence, "even absent the testimony elicited from [Dr. Denkowski]." Butler appealed, and a majority of the TCCAstated that "[b]ased upon the trial court's findings and conclusions and our own review, we deny relief." Id. at 864. A concurrence signed by three justices and a dissent signed by two justices discussed whether Butler had shown "by a preponderance of the evidence, that he has that level and degree of intellectual disability 'at which a consensus of Texas citizens would agree that a person should be exempted from the death penalty.'" Id. (Cochran, J., concurring) (quoting Briseno, 135 S.W.3d at 6); see also id. at 880-81 (Price, J., dissenting) (arguing the trial court did not truly revisit its 2007 Order and that "[n]either the amendments themselves nor the process by which they were made inspire confidence"). The Supreme Court denied certiorari. Butler v. Texas, 133 S. Ct. 1240 (2013).

With leave of this court and another stay of appellate proceedings, Butler filed a Rule 60(b)(6) motion in the district court seeking relief from its 2008 denial of his habeas petition. The district court denied the motion, finding Butler failed to show the determination as to intellectual disability in the Trial Court's 2012 Order, as affirmed by the TCCA, was unreasonable. See Butler v. Stephens (Butler Rule 60(b) Opinion), No. 4:07-CV-2103, 2014 WL 1248037, at *2 (S.D. Tex. Mar. 25, 2014). The district court noted that a petitioner must establish all three prongs of the Briseno inquiry to be exempted from execution by reason of intellectual disability in Texas. Id. at *1. On the first prong, the district court expressed doubt about the conclusion in its 2008 Order upholding the trial court's intellectual function finding. Id. ("This Court felt compelled to [uphold the trial court's intellectual function finding] under the extremely deferential standard of review mandated by the Antiterrorism and Effective Death Penalty Act. With the censure from the Board, Denkowski's opinions are now deserving of no weight, thus calling into serious question this Court's conclusion on the question of Butler's intellectual functioning." (citationomitted)). Nevertheless, the district court denied Butler's motion because it found that "the Denkowski censure does not significantly impact the analysis of Butler's adaptive functioning," and Butler would need to show both intell...