Mullis v. Lumpkin

• Decision Date: 26 August 2022
• Docket Number: 21-70008
• Parties: Travis James MULLIS, Petitioner—Appellant, v. Bobby LUMPKIN, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent—Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

47 F.4th 380

Travis James MULLIS, Petitioner—Appellant,

v.Bobby LUMPKIN, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent—Appellee.

No. 21-70008

United States Court of Appeals, Fifth Circuit.

FILED August 26, 2022

Peter James Walker, Federal Community Defender Office, Eastern District of Pennsylvania, Philadelphia, PA, for Petitioner-Appellant.

Matthew Dennis Ottoway, Assistant Attorney General, Office of the Attorney General, Criminal Appeals Division, Austin, TX, for Respondent-Appellee.

Before Smith, Higginson, and Willett, Circuit Judges.

Jerry E. Smith, Circuit Judge:

Travis Mullis sexually assaulted and murdered his infant son. A Texas jury convicted him of capital murder. The jury found that Mullis likely would commit future violent acts and that nothing mitigated his culpability. So the trial court sentenced him to death.

Mullis neither appealed that conviction and sentence nor timely filed a state habeas petition. He nevertheless filed a federal habeas petition asking the district court to disregard or excuse his procedural default. The district court refused, dismissed his petition, and denied him a certificate of appealability ("COA").

Mullis asks this court for a COA. He presents three reasons for disregarding or excusing his procedural default. Two are foreclosed by precedent. One potential excuse is debatable by reasonable jurists, so we grant the COA in part.

I.

A.

After Mullis's conviction, the trial court appointed two attorneys to represent him—one for a direct appeal and another for a state habeas petition. Mullis's direct-appeal counsel moved for a new trial. But a month later, Mullis asked the trial court to let him appear pro se to waive his rights to direct review. He told the court that his direct-appeal counsel had advised him not to do that but that he was doing so anyway "voluntarily, intelligently[,] and knowingly, and with a full appreciation of the direct and collateral consequences of his actions."

The trial court held a hearing on Mullis's motion to proceed pro se in his direct appeal. Mullis's direct-appeal counsel attended the hearing. He explained that although he disagreed with Mullis's decision, he had "explained the consequences" of proceeding pro se and that Mullis had a "rational [and] factual understanding" of what he was doing. Mullis also clarified that he wished to withdraw his motion for a new trial. The trial court allowed him to withdraw the motion and appear pro se.

At that hearing, Mullis also indicated that he would try to waive habeas review. He said he was "abandon[ing] any and all challenges to his conviction and death sentence." But there was not yet any procedural mechanism by which he could do that. Texas habeas petitioners can waive collateral review only by letting the filing deadline pass. Ex parte Reynoso , 257 S.W.3d 715, 720 n.2 (Tex. Crim. App. 2008) (per curiam). And that deadline was still months away.

Under Texas law, capital cases automatically are directly reviewed by the Court of Criminal Appeals ("CCA").¹ So despite Mullis's attempted waiver, the CCA reviewed his case and summarily affirmed the conviction and sentence.²

A few months after the trial court had allowed Mullis to represent himself on direct appeal, Mullis persuaded his habeas counsel that he wished to waive collateral review. His habeas counsel then moved to do that, contingent on a mental health evaluation. A psychiatrist examined Mullis and concluded that he "possesse[d] sufficient present ability to knowingly, intelligently, and voluntarily waive his rights to post-conviction habeas review." The trial court held a hearing to discuss the motion and the psychiatrist's report.

At the hearing, Mullis's habeas attorney said he had "strenuously objected" to Mullis's attempt to waive his collateral review. He explained that his team had spent the last six months thoroughly investigating Mullis's case, which had included interviewing members of his family. But he did not object to the content of the psychiatrist's report.

Mullis testified that he wanted to waive collateral review because he had "accepted" the jury's punishment. But his habeas counsel told the court to account for Mullis's age, pointing out that "most 25-year-olds probably don't know exactly what they want." Mullis countered, "I've thought about this for the three years leading up to trial, already anticipating the sentence before it came.... I've had time since then to do legal research." He said he understood that his waiver would stop his lawyers from "trying to find something that might change the ultimate outcome" of his case.

Mullis's intransigence prompted his attorney to change tack. He pointed out that the deadline for Mullis's habeas petition was still at least two months away. So he asked for an extension to let Mullis think things over. Mullis grudgingly accepted the delayed waiver decision but insisted that his counsel should be released immediately. The court granted the extension and said it would take the representation matter under advisement.

The court released an order the next day. It allowed Mullis to "act pro se regarding any decisions concerning waiver [or] filing a post-conviction writ of habeas corpus." But it also permitted his habeas counsel to "continue to investigate and prosecute a post-conviction writ." It admonished him not to "file the writ if Mr. Mullis persists in electing to waive filing."

The day after that order, Mullis wrote to his habeas counsel. Mullis told him "NOT [to] file a writ" but acknowledged that he was permitted to continue investigating.

Mullis's habeas counsel sometimes purported to continue representing Mullis. Four months after the hearing, the attorney asked the court to further extend the habeas-petition deadline. He attributed that motion to "Mullis, by and through [his office]." But his team never finished investigating Mullis's case. And he never drafted a petition. When the twice-extended deadline arrived, he told the state that Mullis stood by his decision to waive collateral review.

A few months after the habeas-petition deadline, Mullis asked the trial court to "reinstate [his] appeals." He asked for the reappointment of both his direct-appeal and habeas counsel. He explained, "New evidence has surfaced that was not available at the time I chose to waive my appeal." He said he would not have waived review had he known of the evidence. He sent a similar letter to the CCA.

About a month later, the CCA noted that Mullis had not timely filed a habeas petition. It also observed that Mullis had waived habeas counsel and expressed an intent to waive collateral review altogether. Though he could have changed his mind before the filing deadline, it said, he did not indicate that by filing a petition. So it concluded that he had waived "all grounds for relief that were available to him before the [petition was due]."

Regarding Mullis's apparent untimely change of heart, the CCA pointed out that Texas law provided a possible escape hatch. A capital prisoner may file a habeas petition out of time if he can "show cause as to why the application was untimely filed."³ If he shows good cause, he gets more time to prepare a petition, and the CCA may appoint new counsel.⁴

But the next day, Mullis revolved another 180 degrees. Although the CCA very recently had highlighted a way Mullis might proceed, he wrote the CCA to announce that he once again was "revok[ing] and withdraw[ing] [his] request to renew any [and] all appeals." That decision, he said, was "final." He also reaffirmed his desire to represent himself and disclaimed any attorneys' filings.⁵

Mullis's erratic behavior prompted his former—or, arguably, his then-current—habeas counsel to act.⁶ That lawyer moved the CCA to allow Mullis to file an untimely habeas petition for good cause. That cause, he explained, was Mullis's "impaired mental health." The lawyer retained another psychiatrist to examine Mullis, and that psychiatrist concluded that Mullis was "depressed" and "suicidal" during his earlier psychiatric evaluation.

That condition, the lawyer reasoned, made Mullis incompetent "at the time he [decided] to refuse his appellate rights." So the lawyer asked the CCA under Section 4A to (1) find good cause to allow Mullis to file an untimely habeas petition, (2) reappoint him formally to represent Mullis, and (3) give Mullis 270 days to prepare a petition.

The CCA refused. It pointed out that the second psychiatrist's evaluation could prove, at most, that Mullis was incompetent when he first was evaluated in October 2011. But the second psychiatrist also had confirmed that Mullis was competent by the second evaluation in November 2012. The CCA reasoned that the second psychiatrist's report said little about Mullis's competence concerning (1) the July 2012 habeas-petition deadline, (2) his August 2012 letter asking to reinstate his review options, or (3) his September 2012 letter purporting to re-waive review—all of which were closer in time to a date on which Mullis was competent. It described Mullis's efforts to waive review as "persistent." So it found that Mullis had not established "good cause" and denied his Section 4A motion.

That denial terminated Mullis's state-review prospects.⁷ But it did not end his erraticisms.

B.

With the help of new attorneys, Mullis filed a federal habeas petition about seven months later. His lead federal attorney reports that he was "eager" for further representation. He "cooperated" with his lawyers "for more than two years" and allowed them to petition for habeas review.

Mullis's federal petition explained that his procedural default should be excused for two alternative reasons: first , because the state's procedural bar was inadequate, and second , because he could overcome that default by showing cause and prejudice. Mullis later clarified that he could show cause and prejudice for two reasons: first , because his repeated waivers were involuntary,...