Case: 13-70024      Document: 00513496386         Page: 1    Date Filed: 05/06/2016




            IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals

                                      No. 13-70024
                                                                                   Fifth Circuit

                                                                                 FILED
                                                                              May 6, 2016

PERRY ALLEN AUSTIN,                                                         Lyle W. Cayce
                                                                                 Clerk
              Petitioner–Appellant,

v.

LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

              Respondent–Appellee.




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:04-CV-2387


Before OWEN, ELROD, and HAYNES, Circuit Judges.
PER CURIAM:*
       Pursuant to 28 U.S.C. § 2254, Perry Allen Austin, a Texas death-row
inmate, requests a certificate of appealability (COA) following the district
court’s denial of his petition for a writ of habeas corpus and request for an
evidentiary hearing. Austin raises twenty-one (21) issues. His request for a
COA is granted in part and denied in part.



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                    No. 13-70024
                                          I
        Because Austin’s claims relate primarily to his alleged mental illness,
we begin by briefly outlining his mental-health history. In 1975, at age fifteen,
Austin attempted suicide and was diagnosed with an adolescent adjustment
reaction in a mixed personality. In 1978, he raped one of his adolescent sisters
at gunpoint and attempted to rape another, before robbing a third, older sister
and his mother. Awaiting trial, he again attempted suicide, and a psychiatrist
diagnosed him as having a “severe personality disturbance with schizoid
thinking and anti-social features” and “latent borderline schizophrenia.” A
jury convicted Austin of rape, attempted rape, and aggravated robbery.
        Following this conviction, Austin was released on parole in 1991 and
began a sexual relationship with J.O., a fourteen-year-old female. Through
J.O., Austin met D.K., a nine-year-old male. D.K. disappeared in August 1992.
While     investigating    D.K.’s   disappearance,     police   discovered    Austin’s
relationship with J.O. and charges were brought against Austin. He pled
guilty to sexual assault of a child and received a thirty-year sentence. In April
1993, D.K.’s remains were found.         Although there was physical evidence
connecting Austin to D.K.’s murder and Austin admitted that D.K. had been
in his vehicle the day of D.K.’s disappearance, police did not believe they had
sufficient evidence to prove Austin was responsible for D.K.’s murder.
        Austin alleges that prison conditions caused his mental health to
deteriorate after he was incarcerated for sexually assaulting J.O. In 1995, he
stabbed another prisoner and received an additional twenty-year sentence. By
this point, Austin was confined in administrative segregation.
        In September 2000, Austin wrote a letter to a Houston police officer,
stating that he would confess to D.K.’s murder if he would be guaranteed the
death penalty. Austin was interviewed at the state prison and confessed orally
and in writing to slitting D.K.’s throat with a knife because Austin was angry
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                                        No. 13-70024
at D.K.’s brother for allegedly stealing drugs from Austin’s car. Austin was
indicted for capital murder on February 15, 2001. On March 21, Mack Arnold
was appointed to represent Austin.
      On May 15, 2001, Austin sent a letter to the state trial court asking to
waive counsel and plead guilty. He indicated he would accept a death sentence
and not appeal. He also stated that his mental stability was declining and that
he had resumed the use of drugs. Arnold filed a motion to have Dr. Jerome
Brown, a clinical psychologist, examine Austin. The court granted the motion
on July 13. On July 19, Austin sent a letter to the court asking to be removed
from administrative segregation, stating that he was suffering from depression
and frequently contemplated suicide. During an in camera conference, the
court told Austin that a psychological evaluation must occur before the
Faretta 1 hearing, which would address whether Austin was competent to waive
counsel.
      Dr. Brown interviewed Austin on September 20 and prepared a report.
The report acknowledged Austin’s use of alcohol and psychotropic drugs in
prison, but otherwise, it did not mention any past or present mental health
issues. Dr. Brown found that Austin did not show signs of mental illness and
concluded that he was competent to stand trial.
      The state court held a Faretta hearing on October 11, 2001. The court
expressly relied on Dr. Brown’s report. Arnold, Austin’s counsel, opined that
Austin was competent. The court’s questions to Austin primarily focused on
his understanding of the possible consequences of representing himself and of
the charges against him, but the court asked four questions about Austin’s
mental-health history. Arnold briefly questioned Austin, inquiring only about
Arnold’s representation of Austin.            The court issued findings and granted


      1   Faretta v. California, 

(1975).
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                                       No. 13-70024
Austin’s motion to proceed to trial pro se but appointed Arnold as standby
counsel.
      Austin did not participate in jury selection and pleaded guilty. During
the punishment phase, Austin briefly cross-examined one witness about his
relationship with J.O. In closing argument, Austin contended that he was not
a pedophile, but with respect to Texas’s two special-issues, he told the jury that
he would commit further acts of violence in prison and that there were no
mitigating circumstances. The jury answered Texas’ special issues such that
a death sentence was imposed.
      The court held a second Faretta hearing in which Austin waived
appellate counsel.        The state court appointed standby appellate counsel.
Austin’s case was automatically appealed to the Texas Court of Criminal
Appeals (TCCA). He filed no brief, and the TCCA affirmed his conviction. 2
Two months later, the state trial court found Austin competent and permitted
him to waive the right to habeas counsel. Proceeding pro se, Austin waived the
pursuit of post-conviction relief. Six days before his scheduled execution date,
Austin moved to have state habeas counsel appointed and indicated he wished
to pursue post-conviction relief. The trial court withdrew the execution date
and appointed counsel, but the TCCA denied Austin’s motion to file an
untimely habeas petition. 3
      Austin timely filed a federal habeas petition. The State argued that
Austin’s claims were procedurally defaulted, but the district court held that
the TCCA applied a new rule that could not be the basis of a procedural default.



      2   See Austin v. State, No. 74372, 

(Tex. Crim. App. Apr. 2, 2003).
      3  See Ex Parte Austin, No. 59,527-01 (Tex. Crim. App. July 6, 2004), available at
http://www.search.txcourts.gov/SearchMedia.aspx?MediaVersionID=a0dc5220-2918-4cff-
a1fc-57bb35291ce7&coa=coscca&DT=OPINION&MediaID=852244e8-e3f3-4d2d-b424-
7c05a03bb9f3.
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                                           No. 13-70024
The court denied Austin’s motion for an evidentiary hearing, granted summary
judgment to the State, and denied Austin a COA. Austin now seeks a COA
from this court.
                                                 II
      As an initial matter, the State contends, in a lengthy footnote in its brief,
that the federal district court erred in concluding that Austin’s claims for relief
(other than Issue 21 in our court) were not procedurally defaulted. The TCCA
held that Austin’s application for habeas relief was untimely. That court
reasoned that under Tex. Crim. Pro. Art. 11.071 § 4(a), which required Austin
to file his habeas petition no later than 180 days after the appointment of
counsel or 45 days after the State’s brief was filed, Austin’s petition was time-
barred after 45 days had passed following the State’s waiver of its right to file
a brief. The federal district court concluded that since Austin’s case was the
first in which the TCCA had construed § 4(a) in this manner, it was not a
procedural rule that was regularly followed and therefore could not be the basis
for procedurally defaulting Austin’s state habeas claims.
      Because reasonable jurists could debate whether the TCCA’s ruling was
one that could serve as an adequate state procedural ground on which to deny
federal habeas review, we do not resolve the question today. We will consider
it in connection with the appeal of the issues on which we today grant a COA
to Austin.
                                                      III
      The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) 4
requires a federal habeas petitioner to obtain a COA before an appellate court
may review a district court’s denial of relief. 5 A COA may issue if the applicant


      4   Pub. L. No. 104-132, 100 Stat. 1214.
      5   See 28 U.S.C. § 2253(c)(1)(A).
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                                          No. 13-70024
has “made a substantial showing of the denial of a constitutional right.” 6 A
petitioner must show that “reasonable jurists could debate whether . . . the
petition should have been resolved in a different manner or that the issues
presented were adequate to deserve encouragement to proceed further.” 7 In a
death penalty case, we resolve “any doubts as to whether a COA should issue”
in the petitioner’s favor. 8
       If claims have been “adjudicated on the merits in State court
proceedings,” 28 U.S.C. § 2254(d) applies. Under § 2254(d), a federal court’s
review is limited to “the evidence presented in the state court proceeding.” 9
Further, a federal court may not grant relief unless a state court decision was
(1) “contrary to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court,” or (2) “based on an
unreasonable determination of the facts in light of the evidence presented in
the State court proceeding.” 10
       A clear-and-convincing-evidence standard under § 2254(e)(1) applies to
a state court’s factual determinations. 11 This provision attaches a presumption




       6   

       7Miller-El v. Cockrell, 

, 336 (2003) (quoting Slack v. McDaniel, 

, 484 (2000)) (internal quotation marks omitted).
       8Medellin v. Dretke, 

, 275 (5th Cir. 2004) (quoting Hernandez v. Johnson,

, 248 (5th Cir. 2000)).
       9 28 U.S.C. § 2254(d)(2); see also Cullen v. Pinholster, 

, 185 (2011)
(limiting review under § 2254(d)(1) to the record before the state court that adjudicated the
claim on the merits).
       10   28 U.S.C. § 2254(d)(1)-(2).
       11 See Blue v. Thaler, 

, 654 (5th Cir. 2011) (“The clear-and-convincing
evidence standard of § 2254(e)(1)—which is ‘arguably more deferential’ to the state court than
is the unreasonable-determination standard of § 2254(d)(2)—pertains only to a state court’s
determinations of particular factual issues, while § 2254(d)(2) pertains to the state court’s
decision as a whole.” (footnotes omitted) (quoting Wood v. Allen, 

, 301 (2010))).
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                                       No. 13-70024
of correctness to a state court’s “determination of a factual issue” and requires
a petitioner to rebut this presumption by “clear and convincing evidence.” 12
      We apply the ordinary summary judgment standards, except when they
conflict with the habeas rules. 13             When § 2254(e)(1)’s presumption of
correctness attaches to a particular state court finding of fact, it “overrides the
ordinary rule that, in a summary judgment proceeding, all disputed facts must
be construed in the light most favorable to the nonmoving party.” 14
      Austin also challenges the district court’s denial of an evidentiary
hearing. We review the application of § 2254(e)(2) de novo, 15 but we review the
district court’s decision to grant or deny an evidentiary hearing for abuse of
discretion. 16
      We will identify the issues Austin has presented in our court by the same
number Austin has used in his brief in our court. In many instances, Austin
has included in a parenthetical following his statement of an issue a reference
to the Roman numeral he assigned to claims he asserts that he presented in
his federal district court application for a writ of habeas corpus. We include
Austin’s parenthetical references.
                                              IV
       Austin contends that the district court erred in denying his motion for
an evidentiary hearing (Issue 1). He argues that neither 28 U.S.C. § 2254(d)
nor the Supreme Court’s decision in Cullen v. Pinholster 17 apply because there



      12   28 U.S.C. § 2254(e)(1).
      13Smith v. Cockrell, 

, 668 (5th Cir. 2002), abrogated on other grounds by
Tennard v. Dretke, 

(2004).
      14   

v. Quarterman, 

, 293 (5th Cir. 2007).
      16   See Schriro v. Landrigan, 

, 475 (2007).
      17   

(2011).
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                                         No. 13-70024
was no decision on the merits in state court.                    He further contends that
§ 2254(e)(2) 18 does not apply unless the applicant has shown a lack of diligence
in failing to develop the factual basis of a claim in state court proceedings. He
argues that he “pursued claims in state court through the filing of his state
post-conviction petition but it was defaulted [by the Texas Court of Criminal
Appeals] applying a new rule of Texas procedure.” He asserts that there are
factual disputes regarding his mental state and its impact on his waiver of
counsel and his guilty plea, and that if these factual issues are resolved in his
favor, he would be entitled to relief.
       Jurists of reason can debate whether Austin has satisfied § 2254(e)(2)’s
diligence requirement. 19 Further, many of Austin’s claims turn on conflicting
expert opinions. 20 Jurists of reason can debate whether the district court
abused its discretion by denying an evidentiary hearing. 21 We grant a COA on
this issue.
                                                V
       Austin argues that the district court erred in holding that under 28
U.S.C. § 2254(e), the court could not construe the factual allegations in Austin’s
response to the State’s motion for summary judgment in Austin’s favor (Issue
2). The district court reasoned that Austin’s factual allegations had been
adversely resolved by express or implicit findings of the state trial court and



       18See 28 U.S.C. § 2254(e)(2) (barring an evidentiary hearing if a petitioner fails “to
develop the factual basis of a claim in State court,” subject to exceptions not relevant here).
       19 Cf. Williams v. Taylor, 

, 437 (2000) (“[I]n the usual case . . . the prisoner
[must], at a minimum, seek an evidentiary hearing in state court in the manner prescribed
by state law.” (emphasis added)).
       20   Cf. Hall v. Quarterman, 

, 371-72 (5th Cir. 2008) (per curiam).
       21 See 

(explaining that a district court must consider
whether a “hearing could enable an applicant to prove the petition’s factual allegations,
which, if true, would entitle the applicant to federal habeas relief”).
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                                            No. 13-70024
that Austin had failed to demonstrate by clear and convincing evidence that
the presumption of correctness in § 2254(e)(1) should not apply.
       Austin argues that our court’s decision in Smith v. Cockrell 22 is not
controlling. In that case, we explained that the ordinary summary judgment
standard applies in a habeas proceeding only to the extent that it does not
conflict with the habeas statutes. 23 Therefore, “§ 2254(e)(1)—which mandates
that findings of fact made by a state court are ‘presumed to be correct’—
overrides the ordinary rule that, in a summary judgment proceeding, all
disputed facts must be construed in the light most favorable to the nonmoving
party.” 24
       Austin contends that Smith’s modified summary judgment standard is
dicta. Although our opinion in Smith did not mention the inapplicability of the
“light most favorable” standard when discussing the evidence, it is clear that
we did not view the evidence in the light most favorable to Smith. 25 The
discussion and application of §2254(e)(1) in Smith is not dicta.
       Austin contends that Smith conflicts with our decision in Clark v.
Johnson. 26 But Clark held only that summary judgment rules apply in habeas
proceedings “as a general principle.” 27 We noted that the district court viewed
the facts in the light most favorable to Clark, 28 but we did not discuss the
interaction between § 2254(e)(1) and the light-most-favorable standard. By the



       22

, 668 (5th Cir. 2002), abrogated on other grounds by Tennard v. Dretke,

(2004).
       23   

       25   See 

       26   

(5th Cir. 2000).
       27   

768.
       28   

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                                  No. 13-70024
terms of § 2254(e)(1), Smith’s modified summary judgment standard applies
only when a state court has made a specific factual finding, not to the entire
case. Clark is consistent with Smith.
      We note that in Smith, the Texas courts denied habeas relief on the
merits.   However, in the present case, the Texas courts did not consider
Austin’s habeas claims on the merits. Although the state trial court made
factual findings regarding Austin’s competency, Austin contends that he has
presented evidence that the state trial court’s evaluation of Austin prior to trial
and prior to waiver of appellate counsel was inadequate. Jurists of reason
could debate whether the federal district court correctly applied the summary
judgment standard in the present case, and we grant a COA on Issue 2.
                                        VI
      Austin asserts in Issue 3 that the federal district court erred in crediting
and relying upon evidence offered by the State in its summary judgment
motion and attached affidavits. Austin argues that the State attached an
affidavit from an expert witness, Dr. Brown, stating that new information not
available at the time of trial would not have changed his opinion and that he
continues to believe that Austin was competent.         Austin argues that this
opinion is directly rebutted by his experts. He argues that no court, including
the state trial court, heard his experts’ testimony, there was no opportunity to
cross-examine Dr. Brown, and there is no basis for assessing the credibility of
experts. Austin asserts that summary judgment is not available even under a
clear and convincing standard if the non-movant (in this case Austin) is able
to present testimony that, if accepted, would entitle him to relief. Austin
asserts that the federal district court relied upon the State’s new evidence and
ignored Austin’s new evidence regarding Austin’s competency, waiver of
counsel, guilty pleas, Brady claims, and claim of ineffective assistance of
counsel at a Faretta hearing. Austin further contends that the federal district
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                                          No. 13-70024
court adopted the State’s claims regarding the circumstances of Austin’s
confinement and the effect of these circumstances on his mental health in spite
of factual disputes.
       These arguments assert that the federal district court’s procedure was
tainted, and we are persuaded by this court’s reasoning in an unpublished
decision 29 that they are not separate grounds for relief from the state court
judgment.        We will consider these arguments in connection with Austin’s
substantive claims.
                                                 VII
       Austin argues that the district court erroneously applied § 2254(e)(1)’s 30
deferential standard to questions of law and mixed questions of law and fact
(Issue 4). Austin contends that the district court applied § 2254(e)(1) to the
state court’s conclusions that Austin was competent to waive counsel, to plead
guilty, and to stand trial.
       We held in United States v. McKnight that
       [w]hether a defendant “suffers from a mental disorder or
       incapacitating mental illness is a question of fact reviewed under
       the clearly erroneous standard” but this Court takes a “hard look”
       at the ultimate competency finding. Moody v. Johnson, 

, 482 (5th Cir. 1998) (citation omitted). This Court reviews a
       district court’s decision regarding competency of a defendant “to
       stand trial, when a hearing has been conducted in federal court, as
       a mixed question of law and fact.” 

McKnight, a direct criminal appeal, we concluded that because the
district court did not clearly err in relying on expert testimony, even though



       29   Kelly v. Dretke, 111 F. App’x 199, 201 n.1 (5th Cir. 2004).
       3028 U.S.C. § 2254(e)(1) (requiring a petitioner to rebut the presumption of correctness
that attaches to a state court’s “determination of a factual issue” by clear and convincing
evidence).
       31   

, 648 (5th Cir. 2009).
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                                        No. 13-70024
that testimony was sharply disputed by other expert testimony, the district
court did not abuse its discretion in denying a defendant’s motion to withdraw
his guilty plea on the basis that he was mentally ill and incompetent at the
time that he pled guilty.
       Reasonable jurists could debate whether the district court in the present
case applied the correct standard under AEDPA in examining the state trial
court’s determinations that Austin was competent to waive counsel, to plead
guilty, and to stand trial. We grant a COA on this issue.
                                             VIII
       Austin faults the state trial court for failing to empanel a jury to
determine competency in accordance with Texas law. But federal habeas relief
is unavailable for state law violations. 32
       Within the same issue, Austin contends that the trial court never made
a finding that Austin was competent to stand trial and therefore that the
federal district court erred in deferring to a finding of competence to stand trial
(Issue 5). Austin acknowledges that the state court found him competent to
waive counsel and to represent himself at trial and subsequently found Austin
competent to enter a plea of guilty. Competency to waive counsel or plead
guilty is a two-part inquiry. 33 First, the defendant must be “competent to stand
trial.” 34 Second, the waiver or guilty plea must be “knowing and voluntary.” 35
Because the state trial court accepted Austin’s waiver of counsel and guilty
plea, the question is whether the court determined Austin was competent to
stand trial.


       32 E.g., Swarthout v. Cooke, 

, 219 (2011) (citing Estelle v. McGuire, 

, 67 (1991)).
       33   Godinez v. Moran, 

, 401 (1993).
       34   

       35   

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                                 No. 13-70024
      Austin’s state trial counsel requested a competency evaluation.         An
expert was appointed by the court to conduct that evaluation, and the expert
concluded that Austin was competent to stand trial.        At the beginning of
Austin’s Faretta hearing, counsel stated that he had always believed that
Austin was competent to stand trial; he explained that he only requested an
evaluation “out of an abundance of caution.” The state trial court judge noted
that Dr. Brown’s evaluation was “probative information” in making the
decision to allow Austin to represent himself. Dr. Brown expressly concluded
that Austin was competent to stand trial. The judge also questioned Austin:
      THE COURT: Have you ever been declared mentally incompetent?
      [AUSTIN]: No, ma’am.
      THE COURT: Have you ever been treated for any mental health
      disorder?
      [AUSTIN]: No, ma’am.
      ...
      THE COURT: . . . Ever have any mental health problems while you
      were in the Army?
      [AUSTIN]: No, ma’am.
      THE COURT: Ever seek any mental health counseling while you
      were in the Army?
      [AUSTIN]: No, ma’am.
After further questioning, the state court found that Austin could “understand
the implications and dangers of self-representation.” The court also found that
Austin had been “informed of the general nature of the offense charged and the
possible penalties, although the Court finds he is fully aware of those.”
      Competency to stand trial turns on a defendant’s “capacity to understand
the nature and object of the proceedings against him, to consult with counsel,




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                                        No. 13-70024
and to assist in preparing his defense.” 36 The court’s findings, explicitly relying
on Dr. Brown’s evaluation concluding Austin was competent, reflect that the
court determined that Austin was competent to stand trial. 37 We deny a COA
on this issue.
                                              IX
      In Issue 6, Austin asserts that the deferential standard of review of
factual determinations required by § 2254(e)(1) should not have been applied
to the state trial court’s findings of competence to plead guilty, stand trial and
waive counsel because inadequate procedures were utilized by the state trial
court in determining competence.             Because this issue is intertwined with
Issues 8, 9 and 10, on which we grant a COA infra, we grant a COA on issue 6
as well.
                                               X
      Austin asserts in Issue 7 that the district court erred in holding that
habeas relief should not be granted even if the state trial court failed to provide
adequate procedural due process in determining Austin’s competency to stand
trial because Austin failed to demonstrate by clear and convincing evidence
that he was incompetent to stand trial. Austin asserts that this issue in our
court pertains to Claims II and III that he asserted in the federal district court.
      Austin contends that when a bona fide doubt as to competence exists and
an inadequate inquiry was made, relief should be granted even if the petitioner
has not proven his incompetence to stand trial. Austin cites the Supreme
Court’s decisions in Pate v. Robinson 38 and Dusky v. United States, 39 and


      36   Drope v. Missouri, 

, 171 (1975).
      37 See 

n.12 (“The focus of a competency inquiry is the
defendant’s . . . ability to understand the proceedings.”).
      38   

(1966).
      39   

(1960).
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                                    No. 13-70024
decisions of this and another circuit court. 40 Austin relatedly contends that
the district court erred in denying relief under Pate unless Austin proved by
clear and convincing evidence that he was incompetent. Because reasonable
jurists could debate whether the district court erred in this regard, we grant a
COA on Issue 7.
                                           XI
      In Issue 8 (Claim II), Austin argues that the district court erred in
granting summary judgment on his claim that the state trial court denied due
process by failing to conduct an adequate inquiry into his pre-trial competency.
Austin discusses evidence that he contends raised a bona fide doubt as to his
competency and notes that the state court sua sponte ordered a competency
evaluation. Austin contends that the state trial court’s process thereafter was
inadequate because the court proceeded on inadequate information and
conducted no hearing to resolve conflicting evidence, there was no adversarial
testing of the evidence, the competency evaluation failed to meet prevailing
standards for forensic mental health assessments, and the state trial court’s
colloquy with Austin was shallow. We grant a COA on this issue.
                                          XII
      Austin asserts in Issue 9 (Claim III) that the district court erred in
granting summary judgment on the claim that the state trial court denied due
process when it failed to make adequate further inquiries into competence
when new evidence came to light. Austin argues that after the first Faretta
hearing, prior to and during trial, additional information came to light,
including: that Austin had suffered from serious mental illness from early
childhood, he had been subject to prior mental health assessments as a juvenile



      40 Roberts v. Dretke, 

, 497-98 (5th Cir. 2004); McGregor v. Gibson, 

, 952-54 (10th Cir. 2001) (en banc).
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                                    No. 13-70024
and in the army, he had pled not guilty by reason of insanity to an earlier
offense and a psychologist had testified in support of that plea, he had a history
of suicide attempts, he was seeking the death penalty as a method of suicide,
he had lied to the state trial court in the colloquy about his competency, and
he was consulting a psychologist while awaiting trial.
      We grant a COA on this issue.
                                        XIII
      In Issue 10 (Claims IV and XXIV), Austin contends that the district court
erred in granting summary judgment on the claim that he was subjected to a
capital trial and sentenced to death when not competent in violation of his
substantive due process rights. Austin contends that there is evidence from
experts that at the time of trial and of his waivers of counsel, Austin suffered
from severe depression and active suicidality in combination with pre-frontal
lobe dysfunction that drove him to seek the death penalty irrationally and
involuntarily as a means of committing suicide and deprived him of his ability
to make rational decisions in relation to his case. Austin contends that the
federal district court failed to refer to any of Austin’s affirmative evidence of
incompetence and instead relied on the State’s evidence. We grant a COA on
this issue.
                                        XIV
      Austin asserts in Issue 11 that the district court erred in granting
summary judgment on his claims that the State violated Brady v. Maryland 41
by failing to produce certain records pertaining to his competency to stand
trial, which were in the custody of the Texas Department of Criminal Justice
(TDCJ).       The prosecution violates Brady if it suppresses evidence that is




      41   

(1963).
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                                         No. 13-70024
favorable to the defense, material either to guilt or punishment, and not
discoverable through due diligence. 42
       Austin’s Brady claim fails because he cannot show that the State
suppressed the TDCJ records. “Brady does not obligate the State to furnish a
defendant with exculpatory evidence that is fully available to the defendant
through the exercise of reasonable diligence.” 43 Austin argues that a defendant
with a history of mental illness cannot be expected to assist counsel in locating
records detailing his condition. 44 But Austin’s mental health was a prominent
issue throughout the state trial proceedings, and the TDCJ records were
readily obtainable through ordinary discovery. Had Austin or counsel wished
to pursue a competency defense, they could have requested the records from
the State. We deny a COA on this issue.
                                               XV
       Austin asserts three claims of ineffective assistance of counsel (Issues
12, 13 and 14).
                                                A
       Austin alleges that appointed counsel Mack Arnold, who briefly
represented Austin before he was allowed to proceed pro se, had an actual
conflict of interest (Issue 12 (Claim VII)). Arnold informed the sheriff’s office
that Austin had expressed an intent to kill another inmate, and as a result,
Austin was moved to administrative segregation. Austin argues that Arnold
did not inform him of this disclosure to the sheriff’s office and did not honor his
requests to assist him in being removed from segregation. Arnold told Austin



       42   See Graves v. Cockrell, 

, 153-54 (5th Cir. 2003).
       43See Reed v. Stephens, 

, 788 (5th Cir. 2014) (quoting Kutzner v. Cockrell,

, 336 (5th Cir. 2002)).
       44   See United States v. Spagnoulo, 

, 994 (11th Cir. 1992).
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                                        No. 13-70024
that there were other explanations for the segregation.                    This segregation
increased Austin’s suicidal depression, he contends.
      A defendant has a right to counsel free from conflicts of interest. 45 But
an attorney’s duty to advocate for his client is “limited to legitimate, lawful
conduct” and counsel cannot “assist[] the client in . . . violating the law.” 46
Arnold’s decision to report Austin’s threat did not violate Austin’s rights.
      With regard to Arnold’s actions after the move to segregation, the right
to counsel applies to “pretrial critical stages that are part of the whole course
of a criminal proceeding . . . in which defendants cannot be presumed to make
critical decisions without counsel’s advice.” 47                    Austin’s placement in
segregation occurred wholly outside the context of his trial—the sheriff, not
the court, placed him in segregation.                    Further, Austin’s placement in
segregation did not require him to make critical decisions about his pending
case. We deny a COA on this claim (Issue 12).
                                               B
      Austin had appointed counsel for seven months, until his request to
proceed pro se was granted. He asserts in Issue 13 (Claim VIII) that his
counsel was ineffective during this period of time with respect to the
determination of competency to stand trial and to waive counsel.                       Austin
argues that no discovery or investigation regarding Austin’s competency was
conducted by his counsel and that at the Faretta hearing, counsel asked Austin
only four questions.         Those questions were aimed at preserving counsel’s
reputation, Austin contends, and were asked only after the state trial court
had ruled that Austin was competent.



      45   Wood v. Georgia, 

, 271 (1981).
      46   Nix v. Whiteside, 

, 166 (1986).
      47   Lafler v. Cooper, 

, 1385 (2012).
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                                       No. 13-70024
      The district court concluded that even were there ineffective assistance
of counsel in this regard, there was no prejudice because the evidence
supported the state trial court’s conclusion that Austin was competent. Austin
contends that he was not required to prove that if counsel had been adequate,
the trial court would likely have found him competent. He asserts that he was
only required to establish that confidence in the outcome of the competence
determination is undermined by counsel’s failure to perform adequately.
      This issue is intertwined with other issues regarding the competency
proceedings in the state trial court, and we therefore grant a COA on issue 13.
                                            C
      In Issue 14 (Claim VIII), Austin asserts that the district court erred in
applying Strickland v. Washington 48 rather than United States v. Cronic 49
when the court granted summary judgment on the claim that counsel was
ineffective regarding the question of Austin’s competency and waiver of
counsel.      Austin contends that his attorney’s lack of preparation for and
performance at the Faretta hearing amounted to a constructive denial of
counsel and therefore that prejudice should be presumed based on United
States v. Cronic.
      Unlike a claim under Strickland v. Washington, prejudice is presumed
in certain circumstances described in Cronic. A Cronic violation occurs if a
defendant is denied counsel at a critical stage of trial or if counsel “entirely
fails to subject the prosecution’s case to meaningful adversarial testing.” 50 The
rationale of Cronic applies only when counsel’s failure to test the prosecutor’s




      48   

, 692 (1984).
      49   

(1984).
      50   

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                                          No. 13-70024
case is “complete”; counsel must fail to oppose the prosecution “throughout the
. . . proceeding as a whole.” 51
      Austin points to several decisions that have analyzed counsel’s
performance in pre-trial proceedings under Cronic. First, he cites the Tenth
Circuit’s opinion in United States v. Collins. 52            In Collins, Cronic applied
because defense counsel remained silent during the competency hearing due
to his pending motion to withdraw. 53 Arnold, however, participated in Austin’s
hearing, though his questions did not lend support to a finding that Austin was
incompetent. Arnold additionally expressed his opinion at the hearing that
Austin was competent.
      Austin also relies on the Third Circuit’s decision in Appel v. Horn. 54 In
that case, because the defendant attempted to waive counsel, his appointed
attorneys did not believe they were actually his counsel. 55 The court refused
to accept the defendant’s waiver of counsel and ordered a psychiatric
evaluation. 56 The attorneys failed to investigate, did not provide the court-
appointed psychiatrist with any information, and did not attempt to litigate
the competency determination in any way—in short, they “did nothing to
investigate or prepare for the competency determination.” 57
      In the present case, Arnold sought expert evaluation: he filed a motion
explaining that Austin had “exhibited some highly unusual behavior in the last
several months” and requested that Brown evaluate Austin. Arnold noted that


      51   Bell v. Cone, 

, 696-97 (2002).
      52   

(10th Cir. 2005).
      53   

      54   

(3d Cir. 2001).
      55   

      56   

      57   

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                                        No. 13-70024
Brown’s assistance would be vital and would impact aspects of the case,
including mental-health defenses. Unlike Appel, where the court appointed
the expert sua sponte and counsel did nothing, Arnold initially sought an
expert to raise mental-health-related issues.             Arnold’s failure to contest
competency was not “complete.” We deny a COA on Austin’s Cronic claim.
                                          XVI
       In Issue 15 (Claims X, XI and XVIII), Austin asserts that the district
court erred in concluding that he was required to prove by clear and convincing
evidence that his waivers of counsel and his guilty plea were voluntary. Austin
contends that no deference to factual findings was due under § 2254(d) because
his state habeas claims were denied on procedural grounds and that waiver of
a constitutional right is not a determination of fact subject to a presumption of
correctness under § 2254(e)(1). He further asserts that in collateral review of
a waiver of counsel, it is incumbent upon the state to prove an intentional
relinquishment or abandonment of a known right or privilege. He cites the
Supreme Court’s decision in Brewer v. Williams, 58 and three circuit court
decisions. 59 This issue is intertwined with other issues regarding Austin’s
competency as to which we have granted a COA, and we grant a COA as to this
issue as well.
                                           XVII
       In Issue 16 (Claims X and XVIII), Austin contends that his waivers of
trial, appellate, and post-conviction counsel were not knowing, voluntary or
intelligent.



       58   

, 404 (1977).
       59 Sanchez v. Mondragon, 

, 1464 (10th Cir. 1988), overruled on other
grounds by United States v. Allen, 

(10th Cir. 1990); Myers v. Rhay, 

, 509 (9th Cir. 1978); Felder v. McCotter, 

, 1249 (5th Cir. 1985), abrogated
on other grounds by Patterson v. Illinois, 

(1988).
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                                 No. 13-70024
      With regard to trial counsel, he argues that even if he was competent to
stand trial, competence is only one aspect of a defendant’s state of mind.
Austin contends that his waiver of trial counsel was not knowing, intelligent
or voluntary due to his mental illness and the conditions of his confinement.
He also contends the state trial court asked only four “pro forma” questions at
the hearing on Austin’s motion to proceed pro se and that Dr. Brown, who
evaluated Austin’s competence, made no reference to Austin’s “psychologically
aversive conditions of confinement.”
      Regarding waiver of appellate and post-conviction counsel, Austin
contends that the state trial court’s waiver colloquy was inadequate. When the
court asked Austin whether he had been treated for any mental health
disorders, Austin said “no,” and the court did not question him further even
though the court had heard evidence that Austin received mental health
treatment on numerous occasions.
      Because the resolution of these issues is intertwined with other issues
on which we have granted a COA, we grant a COA as to Issue 16.
                                     XVIII
      Austin argues in Issue 17 (Claim XI) that his guilty plea was not
voluntarily and intelligently made. He asserts that he was incompetent and
not in control of his mental faculties when he pled guilty. He also asserts that
conditions of his confinement resulted in State-induced emotions that negated
the voluntariness of his plea and that his plea was the product of mental illness
and coercive and unconstitutional conditions in which he was confined. This
issue is inseparable from others regarding Austin’s competency and mental
state, and we grant a COA as to this issue.
                                       XIX
      Austin contends that the state trial court violated his right to a trial by
jury when it directed a verdict at the guilt phase of trial and that the federal
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                                  No. 13-70024
district court erred in granting summary judgment in favor of the State on this
claim (Issue 18 (Claim XIII)). The state trial court accepted Austin’s plea after
a lengthy colloquy, during which the court asked Austin whether he
understood “that in entering a plea of guilty to capital murder, you are
essentially admitting each and every element necessary to establish your guilt
for the offense of capital murder.” Austin responded, “Yes, ma’am.” Austin
asserts, however, that he was not told that this plea would waive his right to a
jury trial and notes he was told that the law provided that he must have a jury
trial and that he would receive a jury trial. The issue of his guilt was submitted
to the jury, and the court directed the jury to return a verdict of guilty. A
written judgment was entered stating that the right to trial by jury had not
been waived and that the jury verdict found Austin guilty.
      Following Austin’s guilty plea, the state court proceeded with a jury trial
on the punishment phase.         After the close of the evidence regarding
punishment, the court instructed the jury to find Austin guilty on the verdict
form and then to deliberate regarding the appropriate punishment. The jury
answered questions that determined the sentence that would be imposed.
Austin was informed that the trial was being conducted for the specific purpose
of having the jury determine Austin’s punishment. Reasonable jurists could
not debate whether Austin was unconstitutionally denied a jury trial on the
question of his guilt in light of his plea of guilty. We deny a COA on this issue.
                                       XX
      Austin asserts in Issue 19 (Claims XV and XVI) that his Sixth and
Fourteenth Amendment rights were violated because the jury was not
unbiased and that the district court erred in granting summary judgment on
this issue. He contends that several jurors stated in voir dire that they could
consider mitigating evidence but that in post-trial interviews, they stated that


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                                          No. 13-70024
mitigating evidence was irrelevant in certain types of cases. Austin asserts
that these jurors concealed actual bias.
       To establish a claim of jury bias arising from voir dire, a party must show
that “a juror failed to answer honestly a material question on voir dire, and
. . . that a correct response would have provided a valid basis for a challenge
for cause.” 60 A capital murder defendant may challenge for cause the inclusion
of a juror who will automatically vote to impose the death penalty. 61
       The federal district court held that Austin had waived this issue because
he had failed to challenge and question the jurors during voir dire. In this
court, the State additionally contends that the post-trial interviews and
unsworn statements of jurors are inadmissible under Federal Rule of Evidence
606(b), which limits the admissibility of juror testimony during an inquiry into
the validity of a verdict.             Specifically, Rule 606(b) prohibits a juror from
testifying “about any statement made or incident that occurred during the
jury’s deliberations; the effect of anything on that juror’s or another juror’s
vote; or any juror’s mental processes concerning the verdict.” 62 Here, the post-
trial interviews concern the honesty of statements made by the jurors during
voir dire—not statements made during deliberations, the effect of something
on the jurors’ votes, or the jurors’ mental processes concerning the verdict.
Rule 606(b) does not bar admission of post-trial statements to prove that the
jurors failed to answer a material question honestly during voir dire. 63


       60   See McDonough Power Equip., Inc. v. Greenwood, 

, 556 (1984).
       61   Morgan v. Illinois, 

, 729 (1992).
       62   FED. R. EVID. 606(b)(1).
       63 Compare Warger v. Shauers, 

, 524 (2014) (explaining that Rule 606(b)
renders inadmissible an affidavit containing a juror’s statements made during deliberations
that allegedly revealed the juror’s dishonesty during voir dire), with Hatten v. Quarterman,

, 602-03 (5th Cir. 2009) (analyzing an affidavit containing a juror’s post-trial
statements and concluding that the affidavit did not establish that he dishonestly answered
any material question during voir dire). See generally CHRISTOPHER B. MUELLER & LAIRD C.
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                                       No. 13-70024
       The State also submits that Austin waived his jury bias claims by failing
to object to the inclusion of any of the jurors during voir dire. But claims based
on actual bias, as opposed to implied bias, are not waived by a failure to object
during voir dire. 64 Because Austin contends the jurors were actually biased,
his jury bias claims are not waived.
       Juror impartiality is a question of fact. 65 Upon empaneling a juror, the
trial court may have made an implicit finding of impartiality entitled to
deference under 28 U.S.C. § 2254(e)(1). 66 We need not resolve that issue at
this stage. We grant a COA on the jury bias claims relating to Jurors Gibbs,
Condon, Erwin, Finnegan, and Tamayo, because reasonable jurists could
debate whether these jurors were actually biased, in light of their statements
in voir dire and in post-trial affidavits.
       We deny a COA on the jury bias claims relating to Jurors Maddox and
Phillips. Juror Maddox stated during voir dire that he could vote to impose
either a life or death sentence, as the evidence warranted. In his post-trial
interview, he said:
       I believe that when somebody is found guilty of very violent
       murders especially against children and premeditated or repeated
       crimes the death penalty should be imposed. If it is shown that a
       person has a serious mental illness or defect this is a situation
       where the jury should consider not imposing the death penalty.


KIRKPATRICK, 3 FEDERAL EVIDENCE § 6:21 (4th ed. 2015) (“In its most common form,
misconduct occurring before deliberations (and before trial) involves giving false answers on
voir dire . . . . Misconduct of this sort can be proved by means of affidavits or testimony by
jurors, although . . . [not] by means of statements made during deliberations by the juror in
question.” (footnotes omitted)).
       64See United States v. Wilson, 

, 1086-87 (5th Cir. 1997), rev’d on other
grounds, United States v. Brown, 

, 258 (5th Cir. 1998) (en banc).
       65   See Thompson v. Keohane, 

, 111 (1995).
       66See Virgil v. Dretke, 

, 610 n.52 (5th Cir. 2006) (explaining that trial
court made implicit findings of impartiality by accepting prospective jurors, and that
§ 2254(e)(1) deference applies to those findings).
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                                     No. 13-70024
Maddox’s statement merely evinces an affirmative willingness to consider
mental illness as a mitigating factor. It does not demonstrate an unwillingness
to consider other mitigating evidence. Reasonable jurists could not disagree
that Austin has failed to rebut the implied finding of impartiality by clear and
convincing evidence with respect to Maddox. We deny a COA on this claim.
      Juror Phillips also indicated she could impose a life or death sentence as
warranted by the evidence. In her post-trial statement, she said:
      [I]f you kill a child and know what you are doing and you are
      convicted by a jury of your peers and there’s overwhelming
      evidence, then that’s it, you should get the death penalty. If,
      however, you don’t know what you are doing when you commit the
      murder you should be taken off the streets and given psychiatric
      help for the rest of your life.
Phillips’s statement, like Maddox’s, does not show an unwillingness to consider
all constitutionally relevant mitigating evidence. We also deny a COA on this
claim.
                                          XXI
      In Issue 20 (Claims XIX and XX), Austin alleges that he was denied his
right to meaningful appellate review because transcripts of hearings
pertaining to his competency and the voluntariness of his waiver of counsel are
not in the record.       He contends that the Eighth Amendment mandates
comprehensive direct review of capital convictions, asserting that appellate
review is an indispensable safeguard against arbitrariness. To establish his
claim, Austin must show the omission of a “substantial and significant portion
of the record.” 67
      Austin argues that the trial court relied on information discussed at
meetings,    titled   “agreed    setting”    meetings,    in    ascertaining    Austin’s


      67See United States v. Delgado, 

, 343 (5th Cir. 2012) (en banc) (quoting
United States v. Selva, 

, 1306 (5th Cir. 1977)).
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                                      No. 13-70024
competence. During the Faretta hearing, the trial court alluded to a prior
conversation it had had with Austin, during which Austin had expressed his
desire to proceed pro se. While Austin now complains that this prior meeting
was unrecorded, the record demonstrates that at that meeting, the trial court
explained that Austin would need to undergo a psychological evaluation and
receive a full Faretta hearing prior to waiving counsel. In other words, at the
prior meeting, the court cautioned Austin that certain procedures needed to be
followed before it could find him competent to proceed pro se. The record is
wholly inconsistent with Austin’s claim that the court relied on any
untranscribed conversation to arrive at its competency finding.
       Austin also argues that the court admitted relying on an unspecified,
untranscribed conversation following its acceptance of Austin’s guilty plea,
prior to the punishment trial. At that proceeding, the trial court explained
that its competency finding was based on the court-ordered psychological
evaluation and on “prior conversations with Mr. Austin [and] his persistence
in entering his plea of guilty before the jury for many months.” Consistent
with the court’s explanation, it made this competency finding nearly six
months after the initial Faretta hearing. Additionally the record contains
several letters Austin wrote to the trial court professing his competence and
expressing his desire to waive counsel and plead guilty.                       The record
conclusively establishes that the trial court’s competency determination was
made based on evidence presented at transcribed hearings. Austin has failed
to demonstrate the absence of a substantial and significant portion of the
record. 68 We deny a COA.




       68See United States v. Gieger, 

, 667 (5th Cir. 1999) (holding that failure
to transcribe seventy-two bench conferences did not constitute reversible error).
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                                         No. 13-70024
                                              XXII
       In issue 21 (Claims XXXI, XXXII and XXXIII), Austin argues that the
method of execution to be used by the State constitutes cruel and unusual
punishment in violation of the Eighth Amendment.                       This challenge fails
because we have repeatedly upheld Texas’s execution protocol, which calls for
the administration of a lethal dose of a single drug, pentobarbital. 69 The
Supreme Court’s recent decision in Glossip v. Gross does not change our
analysis. 70 Because our precedent forecloses Austin’s challenge to Texas’s
current single-drug protocol, we deny a COA. Because of this disposition, we
do not address Austin’s contention that he may challenge in a habeas petition
a state’s drug protocol for lethal injections in carrying out a death sentence or
his contention that he is entitled to discovery regarding the State’s drug
protocol.
                                              XXIII
       We note that the parties agreed that § 2254(d)’s deferential standard
does not apply to any of Austin’s claims. However, we have held that AEDPA’s
standard of review cannot be waived. 71 In their briefing on the merits, the
parties should address whether the state trial court’s determination that
Austin was competent triggers the application of § 2254(d) to his substantive
competency claim.
                                        *        *       *
       For the foregoing reasons, IT IS ORDERED that Austin’s request for a
COA is GRANTED IN PART. It is GRANTED as to Issues 1, 2, 3, 4, 6, 7, 8, 9,



       69See, e.g., Ladd v. Livingston, 

, 289 (5th Cir. 2015), cert. denied, 135 S.
Ct. 1197 (2015).
       70   See Glossip v. Gross, 

(2015); see also 

.
       71   See Ward v. Stephens, 

, 257 & n.3 (5th Cir. 2015).
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                                       No. 13-70024
10, 13, 15, 16, 17 and 19 (with respect to Jurors Gibbs, Condon, Erwin,
Finnegan, and Tamayo, only).
       Austin’s request for a COA is DENIED IN PART. It is DENIED as to
Issues 5, 11, 12, 14, 18, 19 (with respect to Jurors Maddox and Phillips only),
20 and 21. 72




       72 We note that Austin has submitted to the court multiple letters expressing a desire
to be quickly executed. In September 2014, Austin asked to abandon his appeal. Austin’s
counsel, in a response requested by this court, stated that each time Austin had expressed a
desire to drop his appeal and be executed, he had changed his mind and instructed counsel
to continue the appeal, and that “Austin suffers from a serious mental illness that is both
cyclical and exacerbated by the conditions of confinement.” We remanded to the district court
for the limited purpose of making findings as to Austin’s competency to withdraw his appeal.
Before the district court held its competency hearing, Austin withdrew his motion to
withdraw his appeal and asked this court to expedite his COA review. Since that time, Austin
has sent the court two more pro se letters stating a desire to be executed and for his appeal
to be denied. In his most recent letter, Austin stated, “I repeat again my refusal to cooperate
with any type of mental health examination.”
        As we explained in our opinion remanding to the district court for a hearing on
Austin’s competence, “when a death-row inmate seeks to withdraw his habeas petition, ‘a
habeas court must conduct an inquiry into the defendant’s mental capacity, either sua sponte
or in response to a motion by petitioner’s counsel, if the evidence raises a bona fide doubt as
to his competency.’” Austin v. Stephens, 596 F. App’x 277, 281 (5th Cir. 2015) (quoting Mata
v. Johnson, 

, 329-30 (5th Cir. 2000)).

                                             29