Zapata v. Estelle, 76-4348

• Decision Date: 07 December 1978
• Docket Number: No. 76-4348,76-4348
• Citation: 585 F.2d 750
• Parties: Tules V. ZAPATA, Petitioner-Appellant, v. W. J. ESTELLE, Jr., Director, Texas Department of Corrections, Respondent- Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 750

585 F.2d 750

Tules V. ZAPATA, Petitioner-Appellant, v. W. J. ESTELLE, Jr., Director, Texas Department of

Corrections, Respondent- Appellee.

No. 76-4348.

United States Court of Appeals, Fifth Circuit.

Dec. 7, 1978.

Panel opinion after remand Feb. 2, 1979.

See 588 F.2d 1017.

Phyllis Coci, Huntsville, Tex., Richard L. Griffin, Houston, Tex., for petitioner-appellant.

John L. Hill, Atty. Gen., Gilbert J. Pena, Asst. Atty. Gen., David M. Kendall, Jr., First Asst. Atty. Gen., Joe B. Dibrell, Asst. Atty. Gen., Austin, Tex., for respondent-appellee.

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

Before BROWN, Chief Judge, THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, CLARK, RONEY, GEE, TJOFLAT, HILL, FAY, RUBIN and VANCE, Circuit Judges.

PER CURIAM:

We write briefly en banc to resolve an arguable conflict of authority in this circuit on an issue material to this case. This narrow issue is whether, once a habeas petitioner has raised a substantial, threshold doubt about his competency at the time of his trial by clear and convincing evidence, he must at the ensuing hearing prove the fact of that incompetency as well by the standard of clear and convincing evidence or merely by a preponderance?

Our 1973 opinion in Bruce v. Estelle, 483 F.2d 1031 (Bruce I ), may be read as declaring for the heavier burden, as may two more recent authorities citing and relying upon it. Lokos v. Capps, 528 F.2d 576 (5th Cir. 1976); Nathaniel v. Estelle, 493 F.2d 794 (5th Cir. 1974). Our most recent opinion on the subject, however, takes a different view.

There we said:

". . . Where the asserted ground for relief is incompetency at trial, the habeas court will require a certain quantum of evidence before it even entertains the claim. As we stated in Bruce's second appeal:

We consider it appropriate to add a caveat with respect to cases of this type. Courts in habeas corpus proceedings should not consider claims of mental incompetence to stand trial where the facts are not sufficient to positively, unequivocally and clearly generate a real, substantial and legitimate doubt as to the mental capacity of the petitioner to meaningfully participate and cooperate with counsel during a criminal trial. While the factual pattern will vary from case to case, the instant case illustrates the standard which should be met to sustain such a claim, Viz. a history of mental illness, substantial evidence of mental incompetence at or near the time of trial supported by the opinions of qualified physicians and the testimony of laymen. The burden is on the petitioner to prove his allegations; such proof should be clear and convincing."

483 F.2d at 1043.

"Bruce argues that the above quotation should be interpreted as holding that he has already discharged his clear and convincing burden and that the burden now shifts to the state to prove his competency. On remand, the same language was relied upon by the district court as authority for ruling that the petitioner had still to prove his incompetency claim by clear and convincing evidence. We disagree with both these constructions, because we read the prior panel's caveat as referring only to the...