Panetti v. Stephens

• Decision Date: 21 August 2013
• Docket Number: 08–70016.,Nos. 08–70015,s. 08–70015
• Citation: 727 F.3d 398
• Parties: Scott Louis PANETTI, Petitioner–Appellant v. William STEPHENS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent–Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

727 F.3d 398

Scott Louis PANETTI, Petitioner–Appellant

v.William STEPHENS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent–Appellee.

Nos. 08–70015, 08–70016.

United States Court of Appeals,

Fifth Circuit.

Aug. 21, 2013.

Kathryn M. Kase, Esq., Houston, TX, Gregory William Wiercioch (argued), Madison, WI, for Petitioner–Appellant.

Appeals from the United States District Court for the Western District of Texas.

Before STEWART, Chief Judge, and HIGGINBOTHAM and OWEN, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

A Texas jury convicted petitioner-appellant Scott Louis Panetti of capital murder and sentenced him to death. Panetti filed separate federal habeas petitions challenging his competency to be executed as well as his competency to represent himself at trial. The district court denied relief but granted a certificate of appealability. We affirm.

I.

This case has a long and complicated procedural history. In 1992, Panetti shot his estranged wife's parents at close range, killing them and spraying his wife and three-year-old daughter with their blood. At trial, Panetti's only defense was insanity. Panetti demanded to represent himself despite his history of schizophrenia and institutionalization, ignoring the judge's repeated pleas to accept court-appointed representation and insisting that only an insane person could prove insanity. According to standby counsel, Panetti's performance was “bizarre,” “scary,” and “trance-like,” rendering his trial “a judicial farce, and a mockery of self-representation.” ¹ The jury convicted Panetti of capital murder and sentenced him to death, and the Texas Court of Criminal Appeals (“CCA”) upheld the conviction and sentence on direct and collateral review. Panetti eventually filed a federal habeas petition, claiming, among other things, that he was incompetent to waive counsel and incompetent to stand trial.² The district court denied the petition, and this Court affirmed.³

In October 2003, the state trial court set an execution date for February 5, 2004.⁴ Panetti filed a motion with the trial court for a stay of execution, claiming for the first time that he was incompetent to be executed under Article 46.05 of the Texas Code of Criminal Procedure.⁵ The trial court rejected the motion without a hearing, holding that Panetti had failed to make a “substantial showing of incompetency” as required to entitle Panetti to an evaluation by court-appointed experts underArticle 46.05.⁶ The CCA determined that it was without power to review the trial court's determination.⁷

Panetti then returned to federal court, filing a second federal habeas petition which asserted that the trial court's ruling on his competency to be executed violated clearly established Supreme Court precedent—specifically, Ford v. Wainwright.⁸ The petition included additional evidence of Panetti's mental illness, evidence that Panetti had also appended to a renewed Article 46.05 motion before the state trial court.⁹ Instead of ruling on the merits of Panetti's petition, the district court—Hon. Sam Sparks presiding—ordered Panetti's execution stayed for 60 days to give the state court time to consider Panetti's renewed motion in light of the supplemental evidence.¹⁰

In February 2004, the state court entered an order appointing a psychiatrist and clinical psychologist to examine Panetti, thereby implicitly finding that Panetti had made a “substantial showing of incompetency” under Article 46.05.¹¹ In April, the court-appointed experts filed a joint report concluding that Panetti was competent to be executed.¹² Panetti moved to appoint his own experts and hold an evidentiary hearing, urging that Article 46.05 and the Supreme Court's decision in Ford required the state court to afford him an opportunity to be heard.¹³ Without ruling on Panetti's motion, the state court entered an order finding that Panetti was competent to be executed.¹⁴

Panetti then returned to the federal district court, claiming that the state court's refusal to hold an evidentiary hearing and accept evidence on his alleged incompetency violated both Article 46.05 and Ford.¹⁵ The district court agreed and concluded that the state court's decision thus fell outside of the safe harbor we created in Caldwell v. Johnson,¹⁶ which insulates state proceedings compliant with Article 46.05 from habeas attack under Ford.¹⁷ The district court also rejected the State's argument that Panetti's Ford claim was precluded by the § 2244 bar on “second or successive” habeas petitions, reasoning that Panetti could not have included the claim in his original petition, as it only became ripe when the state set an execution date. Finally, the district court determined that since Panetti had made a “substantial showing of incompetency,” the state court's failure to “receive evidence and argument from the prisoner's counsel, including expert psychiatric evidence that may differ from the State's own psychiatric examination,” was a violation of due process under Ford.¹⁸ The district court then scheduled its own evidentiary hearing, appointing counsel and authorizing funds so that Panetti could hire a team of psychiatric experts.¹⁹

At the hearing, Panetti presented testimony from four experts, including two clinical and forensic psychologists, a clinical psychologist, and a psychiatrist.²⁰ The experts testified that though Panetti appeared to understand the State's purported reason for seeking his execution—his murder of his in-laws—his delusions caused him to believe that the State was actually “in league with the forces of evil,” seeking his execution “to prevent him from preaching the Gospel.” ²¹ The State's two experts—a psychiatrist and a clinical psychologist—agreed that Panetti was mentally ill, though they “concluded that some portion of Panetti's behavior could be attributed to malingering.” ²² While both experts testified that Panetti had the capacity to rationally understand the reason for his execution, they “were unable to reach a formal conclusion that he did, in fact, understand it.” ²³

The district court reviewed the evidence adduced at the hearing de novo, observing that though the state court had made a factual determination that Panetti was competent to be executed, this determination was not entitled to AEDPA deference.²⁴ The court reasoned that “to apply such deference ... would fly in the face of the Supreme Court's holding in Ford ... [in which] seven Justices ... concluded [that] denying a petitioner the right to present, as well as rebut, evidence in making a competency-to-be-executed determination violates the right to due process.” ²⁵ Turning to the evidence, the district court concluded that the record supported a finding that Panetti's delusional belief system prevented him from rationally appreciating the connection between his crimes and his execution.²⁶ Nevertheless, the court reluctantly found Panetti competent to be executed, noting that under Fifth Circuit precedent, Panetti only needed to “know the fact of his impending execution and the reason for it,” ²⁷ and that here, both sides' experts agreed that Panetti was aware of his impending execution as well as the State's purported reason for that execution. ²⁸ We affirmed in a published opinion, reemphasizing that a prisoner is competent to be executed under Ford if he “knew that he was going to be executed and why he was going to be executed,” ²⁹ and noting that the “awareness” required under Ford “is not necessarily synonymous with ‘rational understanding.’ ” ³⁰

In 2007, the Supreme Court granted certiorari and reversed.³¹ As a threshold matter, the Court agreed with the district court that the statutory bar on successive habeas petitions does not apply to Ford claims brought when first ripe.³² It also agreed that the state court's competency determination was not entitled to AEDPA deference, as the court had failed to afford Panetti an opportunity to present his own evidence, thereby violating the minimum due process required for competency determinations under Ford.³³ However, turning to the question of Panetti's competency to be executed, the Court concluded that “the [Fifth Circuit's] standard is too restrictive to afford ... the protections granted by the Eighth Amendment.” ³⁴ The Court explained that “the Ford opinions nowhere indicate that delusions are irrelevant to ‘comprehension’ or ‘awareness' if they so impair the prisoner's concept of reality that he cannot reach a rational understanding of the reason for the execution,” concluding that “if anything, the Ford majority suggests the opposite.” ³⁵ The Court nevertheless declined “to set down a rule governing all competency determinations,” noting that it was “hesitant to decide a question of this complexity before the [d]istrict [c]ourt and the [Fifth Circuit] have addressed, in a more definitive manner and in light of the expert evidence found to be probative, the nature and severity of [Panetti's] alleged mental problems.” ³⁶

On remand, the district court scheduled a second evidentiary hearing, offering both sides the opportunity to introduce additional evidence in light of the Supreme Court's decision.³⁷ In anticipation of the hearing, the defense hired Dr. Leslie Rosenstein (a clinical neuropsychologist), Dr. David Self (a forensic psychiatrist), and Dr. Mary Alice Conroy (a forensic psychologist). While Drs. Rosenstein and Self were both new to the defense, Dr. Conroy was familiar with Panetti, having interviewed him previously in anticipation of the 2004 hearing. The three experts collectively evaluated Panetti for some fifteen hours, subjecting him to extensive questioning and administering a battery of tests designed to gauge his mental health as well as the likelihood of malingering.³⁸ The district court ultimately authorized some $9000 to pay Panetti's experts, though it rejected his repeated requests for additional funding.

At the evidentiary...