Green v. Davis, Civil Action No. H-13-1899

CourtUnited States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
Citation479 F.Supp.3d 442
Parties Travis Dwight GREEN, Petitioner, v. Lorie DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.
Docket NumberCivil Action No. H-13-1899
Decision Date18 August 2020

James Gregory Rytting, Hilder Associates PC, Danny Karl Easterling, Easterling & Easterling, Houston, TX, Tivon Schardl, Federal Public Defender, Austin, TX, for Petitioner.

Jefferson David Clendenin, Jennifer Wren Morris, George A. D'Hemecourt, Rachel Leigh Patton, Travis G. Bragg, Austin, TX, for Respondent.



Travis Dwight Green was convicted of capital murder in 2000 in Texas state court, and was sentenced to death. Green timely filed his federal petition for a writ of habeas corpus in 2014. Of the thirteen claims raised in Green's First Amended Petition, all but two were previously dismissed with prejudice. In his surviving claims, Green contends that he was tried while incompetent (Claim 4), and that he received ineffective assistance of counsel at sentencing (Claim 1). Green also seeks reconsideration of the Court's prior order dismissing, as procedurally unreviewable, his claim that he received ineffective assistance when counsel failed to bring his incompetence to the attention of the trial court (Claim 5). The Court held an evidentiary hearing on Green's incompetency claim and received extensive post-hearing briefing. Having considered the evidence developed at the hearing and the thorough arguments and briefing of counsel, the Court has determined that Green is entitled to federal habeas corpus relief. A writ of habeas corpus shall issue unless, within 180 days of the conclusion of any appeal from this Memorandum Opinion and Order, the State commences new proceedings against Green.1


Petitioner Green was convicted of capital murder and sentenced to death in State v. Green , No. 823865, in the 209th District Court of Harris County, Texas, on December 7, 2000. (Doc. No. 30, at 1). He is currently detained in the Polunsky Unit, in Livingston, Texas. Id.

A. Facts Surrounding Underlying Crime

On September 1, 1999, Green met Kristin Loesch and her boyfriend, Robert Stewart, while he was riding by their apartment on a bike. 15 RR 120, 126–28.2 Green agreed to help the couple get marijuana. Id. at 128. The three spent the rest of the evening together, rollerblading, drinking beer, and hanging out. Id. at 129–32. Green helped the couple obtain some marijuana, and Loesch and Green smoked it. Id. at 132. The couple then gave Green a ride to a nearby apartment complex, at which Green claimed he lived with his brother. Id. at 133–34. Before departing, the couple mentioned plans for a barbeque, but stated that they needed a barbeque pit. Id. Loesch and Stewart returned to their apartment. Id. at 135. Loesch fell asleep in the bedroom; Stewart fell asleep on the couch while watching television. Id. at 137, 139.

Stewart testified that he woke up on September 2, 1999, around 11:00 a.m., and found Loesch dead on the floor of the bedroom. Id. at 147–48. He called 911. Id. A neighbor told police that she had seen a black man wearing a cap enter the apartment at 7:30 a.m. Id. at 170–71. Another neighbor told police that at 7:30 a.m., she had seen a barbeque pit outside the patio gate of the apartment, and that the pit had not been there the day before. Id. at 82–84.

Police found Green through a records check. Id. at 247. Stewart then identified Green from a photo array. Id. at 250–51. Police arrested Green and took hair and blood samples. Id. at 154, 254. The Assistant Harris County Medical Examiner, Paul Shrode, concluded that Loesch had suffered sexual assault, strangulation, and blunt force trauma to her abdomen. 16 RR 110–13. DNA samples taken from vaginal swabs and finger nail scrapings at autopsy matched Green's DNA profile. Id. at 84.

B. State Court Proceedings

On September 19, 1999, the State charged Green with capital murder. (Doc. No. 30, at 4). Green requested appointed counsel and the trial court appointed Bill Goode and Chuck Hinton. Green v. Stephens , No. H-13-1899, 2016 WL 1298994, at *1 (S.D. Tex. Mar. 29, 2016) (quoting Green v. State , No. AP-74,036, slip op. at 2–6 (Tex. Crim. App. June 26, 2002)). Before January 2000, the trial court replaced Goode with Wayne Hill. Id.

By late February 2000, Green had started filing pro se motions before the trial court, including a "motion for hybrid representation," in which he requested the right to file his own motions without waiving his right to counsel. Id. On March 2, 2000, Green filed a pro se motion to dismiss his court-appointed attorneys and proceed pro se. Id. Green filed these motions with the assistance of an inmate in Green's prison dorm, who was also the one originally to suggest to Green the possibility of pro se representation. HT2-21–43.3 That same dormmate helped Green frequently practice over the course of three weeks what he would need to say at the hearing on his motion, in order to get the trial judge to agree to allow him to proceed pro se. HT2-48–49.

Judge Michael T. McSpadden held a Faretta4 hearing on Green's motion on March 21, 2000. Green , 2016 WL 1298994, at *1 (quoting Green , slip op. at 2–6). At the hearing, Green requested that the court appoint two new attorneys to act as his "assistants." Id. Green stated that he had his "own confidential reasons" for wanting Hill and Hinton dismissed. Id. Judge McSpadden explained that he could appoint a standby attorney, who would only be available as a consultant. Id. Green agreed and told the court that he understood the standby attorney's role and that he was "competent enough and intelligent enough" to represent himself, although he may need assistance with certain legal issues. Id. The court proceeded with questioning pursuant to Faretta , finding that, although Green had no experience in the law, he understood that he would be required to follow the same rules as an attorney. Id. Green then executed a written waiver of his right to counsel. Id. Because Green refused to name a different attorney or give reasons for dismissing his current attorneys, Judge McSpadden continued the appointment of Hill and Hinton as standby attorneys. Id.

On April 4, 2000, the trial court appointed Tyrone Moncriffe to replace Hinton. Id. On July 17, 2000, Hill was allowed to withdraw because Green refused to communicate with Hill and refused to allow Hill to hire an investigator. Id. On August 3, 2000, Green filed a motion to dismiss the entire defense team. Id. The motion was denied. Id.

On August 17, 2000, Judge Robert Jones, who had taken over the case, held a second Faretta hearing. Id. Green again said that he understood what would be required of him if he were to proceed pro se, and executed his second written waiver of his right to counsel. Id. Moncriffe continued as Green's standby counsel. Id.

On September 21, 2000, the court held a hearing on Green's request to dismiss both Moncriffe as standby counsel and the court-appointed investigator. Id. Judge Jones denied Green's requests. At the hearing, Judge Jones also stated that he, "on [his] own motion," was going to order that Green be evaluated by a psychiatrist for competency to stand trial and insanity "in order that we'll get that matter out of the way in this case." 5 RR 5–6. A competency evaluation was attempted in October 2000, but was not completed. CR 213–14.5

No further mention of Green's competency was made until November 20, 2000, the fifth day of voir dire. 11 RR at 8–9; CR at 243. At that time, Moncriffe as standby counsel expressed concern that Green's growing paranoia impeded his competence to represent himself. Judge Jones stated that he would, "out of an abundance of caution," order a competency evaluation. 11 RR at 8–9.

Dr. Mark Rubenzer was appointed to conduct the evaluation. Dr. Rubenzer's evaluation concluded that Green made his decision to represent himself voluntarily, that Green "does not appear to have a serious mental disorder," and that Green was competent to stand trial. (Doc. No. 30-5, at 7). The evaluation reported that Green "has sufficient present ability to consult with his attorney with a reasonable degree of rational understanding," and that he "as [sic] a rational and factual understanding of the charge against him." Id. Dr. Rubenzer did not expressly evaluate Green's sanity. Green , 2016 WL 1298994, at *2 (quoting Green , slip op. at 2–6). The report also omitted certain details and discounted potential symptoms of schizophrenia

. For instance, the report stated that there was no record of previous psychiatric treatment or history of mental illness. (Doc. No. 30-5, at 7). This was later found to be incorrect, as Green had received psychotherapy between ages ten and thirteen, and had a history of suicide attempts and self-mutilation. (Doc. No. 30-1, at 23); (Doc. No. 30-3, at 2–3). The report also represented that Green was able to perform virtually all of the simple mental tasks he was assigned while omitting that Green did not complete simple but important attention and memory retrieval tasks. (Doc. No. 30-5, at 4); HT3-105–06. Dr. Rubenzer's report is dated November 30, 2000, but it does not appear to have been filed with the trial court until December 4, 2000—the same day that the State gave its opening statement and began its case in chief. (Doc. No. 30-5, at 2); 15 RR 3. There is no record that the court reviewed Dr. Rubenzer's evaluation. The court did not hold a hearing on the issue of Green's competency to stand trial, or otherwise evaluate in any way Dr. Rubenzer's conclusions as to Green's competency to stand trial.

General voir dire began on November 14, 2000. Green , 2016 WL 1298994, at *2 (quoting Green , slip op. at 2–6). Green represented himself through the guilt phase of the trial. The jury found him guilty on December 5, 2000. Id. The following day,...

To continue reading

Request your trial
1 cases
  • United States v. Segers, 4:22-CR-350
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • 23 Enero 2023
    ...rational understanding' and (2) ‘he has a rational as well as factual understanding of the proceedings against him.'” Green v. Davis, 479 F.Supp.3d 442, 480-81 (S.D. Tex. Aug. 18, 2020) (quoting Dusky, 80 S.Ct. 788). Moreover, “‘a person whose mental condition is such that he lacks the capa......

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