Filed: Dec. 16, 2004
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D UNITED STATES COURT OF APPEALS For the Fifth Circuit December 16, 2004 Charles R. Fulbruge III Clerk No. 03-11137 CHARLES E. MINES, JR., Petitioner – Appellant, VERSUS DOUGLAS DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION, Respondent – Appellee. Appeal from the United States District Court For the Northern District of Texas 03-CV-2044-H Before BARKSDALE, GARZA, and DENNIS, Circuit Judges. DENNIS, Circuit Judg
Summary: United States Court of Appeals Fifth Circuit F I L E D UNITED STATES COURT OF APPEALS For the Fifth Circuit December 16, 2004 Charles R. Fulbruge III Clerk No. 03-11137 CHARLES E. MINES, JR., Petitioner – Appellant, VERSUS DOUGLAS DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION, Respondent – Appellee. Appeal from the United States District Court For the Northern District of Texas 03-CV-2044-H Before BARKSDALE, GARZA, and DENNIS, Circuit Judges. DENNIS, Circuit Judge..
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United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
For the Fifth Circuit December 16, 2004
Charles R. Fulbruge III
Clerk
No. 03-11137
CHARLES E. MINES, JR.,
Petitioner – Appellant,
VERSUS
DOUGLAS DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
Respondent – Appellee.
Appeal from the United States District Court
For the Northern District of Texas
03-CV-2044-H
Before BARKSDALE, GARZA, and DENNIS, Circuit Judges.
DENNIS, Circuit Judge:*
Petitioner, Charles E. Mines, Jr., filed a petition for writ
of habeas corpus pursuant to 28 U.S.C. § 2254. Mines is an inmate
in the custody of the Texas Department of Criminal Justice,
Institutional Division of which Respondent is the director.
Mines was convicted of capital murder by a jury and sentenced
*
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opinion should not be published and is not precedent except under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 5TH CIR. R. 47.5.4.
-1-
to death by lethal injection.1 His conviction and sentence were
affirmed by the Texas Court of Criminal Appeals.2 The United
States Supreme Court granted his petition for certiorari and
remanded the case to the Court of Criminal Appeals for
reconsideration in light of its opinion in Johnson v. Texas, 509
U.S. 350 (1993).3 On remand, his conviction and sentence were
again affirmed.4 Mines’s state application for a writ of habeas
corpus was denied by the state district court and the Texas Court
of Criminal Appeals.5
Mines filed his initial § 2254 petition for a writ of habeas
on December 21, 2000 and an amended petition on April 20, 2001.
Respondent answered on June 18, 2001 and furnished the state
records. In his petition, as amended, Mines raised eleven (11)
claims for relief. Additionally, in his petition, Mines moved for
a stay of this federal habeas proceeding alleging that he is
currently incompetent to assist his federal habeas counsel in the
pursuit of § 2254 relief. A United States Magistrate Judge filed
“Findings, Conclusions, and Recommendations” based on the record
1
State v. Mines, Cause No. 16,691 (40th J.D.C.Ellis County Tex.
June 2, 1989).
2
Mines v. State, 852 S.W.2d 941 (Tex. Crim. App. 1993).
3
Mines v. Texas,
510 U.S. 802 (1993).
4
Mines v. State,
888 S.W.2d 816 (Tex. Crim. App. 1994), cert.
denied,
514 U.S. 117 (1995).
5
Ex parte Mines,
26 S.W.3d 910 (Tex. Crim. App. 2000), cert.
denied,
532 U.S. 908 (2001).
-2-
without taking additional evidence. The magistrate judge
recommended: (1) denial of Mines’s motion for a stay of these
proceedings because of his incompetence to assist his counsel; (2)
dismissal without prejudice of Mines’s first ground for relief
(Incompetence to be Executed); and (3) denial of his remaining ten
grounds for relief.
The district court entered an order adopting all of the
findings, conclusions, and recommendations of the magistrate judge
and denied Mines’s petition for writ of habeas corpus and dismissed
the petition with prejudice. Mines filed a notice of appeal.
Subsequently, the magistrate judge found and recommended that a
Certificate of Appealability (“COA”) should be denied for the
reasons stated in his “Findings, Conclusions, and Recommendations.
. . which were adopted by the District Court. . . .” The district
court adopted the magistrate judge’s recommendation and entered an
order that denied Mines’s request for a COA.
In this appeal, Mines continues to urge his motion for a stay
of these proceedings on the basis of his incompetence, and he seeks
a COA on three of the eleven grounds urged in the district court.6
For the reasons assigned below, we affirm (on a different basis)
the district court’s ruling denying the motion to stay; affirm the
6
To the extent that Mines has failed to raise or brief any of the
eight other grounds for relief that he raised in his federal habeas
petition in this appeal, those grounds are deemed abandoned and
considered by this court to be waived on appeal. See Yohey v.
Collins, 985 F.2d 222, 224-225 (5th Cir. 1993).
-3-
district court’s denial of COA on one ground; and grant COA on the
two remaining grounds.
BACKGROUND
On the afternoon of May 27, 1988, Mines broke into a home
occupied by eighty-year old Vivian Moreno and her invalid daughter,
Frances. Upon encountering the women, Mines brutally attacked them
with a claw hammer. Vivian was killed instantly, but Frances
miraculously survived Mines’s attack.
Three days later, Mines was apprehended by police. Within
hours of his arrest, Mines confessed to the crime and was charged
with the capital murder of Vivian and the attempted capital murder
of Frances. Mines pleaded not guilty by reason of insanity to both
charges, and requested a hearing in state court to determine
whether he was competent to stand trial.
In support of his request for a competency hearing, Mines
produced the testimony of a psychiatric expert, Dr. Schack, and his
medical records. Those records indicated that the State had
attempted to civilly commit Mines to the custody of a mental
hospital approximately a week prior to Vivian Moreno’s murder.
Following a five-day observation period, the treating physician at
the state mental hospital, Dr. Nguyen, determined that Mines was
not mentally ill and concluded that Mines should not be committed
to the hospital involuntarily. But Dr. Nguyen concluded that Mines
-4-
did have “a mixed personality disorder7 with paranoia, passive,
aggressive, anti-social features.” The state trial court granted
Mines’s request for a competency hearing, and the issue of Mines’s
competency to stand trial was presented to a jury.
Mines’s primary evidence of his incompetency to stand trial
was the testimony of Dr. Schack, Mines’s medical records, and the
State’s attempt to civilly commit him to the state mental hospital.
Dr. Schack testified that he had difficulty in getting Mines to
cooperate during his attempts to interview Mines. Dr. Schack also
testified that much of his diagnosis was based on his observation
of Mines on several occasions as well as review of Mines’s medical
records. Dr. Schack conceded that it is not uncommon for criminal
defendants to simulate symptoms of a mental disorder in an attempt
to avoid liability for their crimes.8 Despite this concession,
however, Dr. Schack unequivocally testified that in his opinion
Mines’ symptoms of mental illness were genuine and that he was
incompetent to stand trial for capital murder.
In rebuttal, the State offered expert testimony of: (1) Dr.
Grigson, a forensic psychologist; (2) Dr. Nguyen, who had observed
Mines while he was at the state mental hospital; and (3) several of
Mines’s jailers. The jailers testified that Mines was capable of
7
Dr. Nguyen testified during the competency hearing and at the
murder trial that a person with a personality disorder is capable
of knowing right from wrong and that a personality disorder is not
the same as a mental illness.
8
See State Rec. Vol. II at pgs. 17, 19, & 28.
-5-
having normal conversations and that Mines appeared to be a fairly
intelligent self-educated person who seemed to understand that he
had certain rights in jail. The jailers also testified that Mines
appeared to understand that he was in jail, why he was in jail, and
that when Mines wanted to get along with the jailers and inmates,
he could. The jailers testified, however, that Mines could become
extremely agitated at other times, and consequently, Mines was
confined in a cell by himself.
Dr. Grigson testified that Mines refused to talk to him after
Grigson advised Mines of his right to refuse the examination; that
Mines appeared to understand this right; and that his opinion of
Mines’s competency to stand trial was based entirely upon Mines’s
medical records and Grigson’s limited observances of Mines before
and during the competency hearing.9 Dr. Grigson testified that he
believed that Mines was competent to stand trial and that Mines’s
seeming irrational behavior was “very deliberate and intentional.”10
Dr. Grigson also mentioned briefly that it was not uncommon for
9
Mines objected to Dr. Grigson’s testimony in part, because that
testimony was based on Grigson’s observations made during the
competency hearing. Specifically, Mines challenges the fact that
the state trial court judge allowed Grigson to be present during
the testimony of the other experts in contravention of the witness
sequestration Rule 613 of the Texas Rules of Criminal Procedure.
However, the record reveals that not only was Grigson allowed to be
present and observe Mines during the competency hearing but also
that Mines’s own expert, Dr. Schack, was allowed to do the same
because Mines continually refused to be examined by either witness.
See State Tr., Rec. Vol. II at 5-6.
10
State Tr., Rec. Vol. II at 68.
-6-
criminal defendants to simulate mental illnesses in an attempt to
avoid liability for their crimes.
Mines’s counsel vigorously cross-examined Dr. Grigson and
elicited testimony that the doctor testified so often and
effectively for the State in death penalty cases that he was called
“Dr. Death” by the media. Dr. Grigson also conceded that he had
spent little more than three minutes speaking to Mines and that his
practice of using forensic psychology to predict future
dangerousness was looked upon with disfavor by the American
Psychiatric Association.
Dr. Nguyen, who was called by the state, testified that after
observing and interacting with Mines over a five day period, he,
and the rest of the treatment staff at the mental hospital,
concluded that Mines was not incompetent. Instead, Dr. Nguyen
believed that Mines had a mixed personality disorder, and that
Mines was capable of understanding his actions. Dr. Nguyen also
testified that Mines could be uncooperative at times and that Mines
was “selective in choosing who he talked to.”11 On cross-
examination, Dr. Nguyen conceded that he had more patients in his
care than he would have preferred at the time he first saw Mines,
and that it was his decision not to civilly commit Mines.
The jury concluded that Mines was competent to stand trial for
the capital murder of Vivian Moreno and the attempted capital
11
State Tr., Rec. Vol. II at 87.
-7-
murder of her daughter, Frances. At Mines’s subsequent murder
trial, both Mines and the State presented substantially the same
expert testimony that was presented during the competency hearing.
Though the State also presented evidence relating to the crime
scene and the conditions of Vivian and Frances Moreno when they
were found, approximately 40 percent of the testimony heard by the
jury during the murder trial was the testimony of Drs. Schack,
Grigson, and Nguyen.
Ultimately, the trial jury rejected Mines’s insanity defense
and convicted him of both capital murder and attempted capital
murder. After the jury answered all three of the special issues in
the affirmative, the state trial court sentenced Mines to death.
DISCUSSION
Mines’s § 2254 habeas petition is subject to the Antiterrorism
and Effective Death Penalty Act of 1996 (“AEDPA”).12 Under AEDPA,
Mines must obtain a COA before he can appeal the district court’s
denial of habeas relief.13
To obtain a COA, Mines must make “a substantial showing of the
denial of a constitutional right.”14 Making such a showing requires
12
See Penry v. Johnson, 532 U.S. 782, 792 (2001).
13
28 U.S.C. § 2253(c)(1) (2000); Slack v. McDaniel, 529 U.S. 473,
478 (2000); Miller-El v. Cockrell,
537 U.S. 322, 336
(2003)(“[U]ntil a COA has been issued federal courts of appeals
lack jurisdiction to rule on the merits of appeals from habeas
petitioners.”).
14
28 U.S.C. § 2253(c)(2) (2000); Miller-El, 537 U.S. at 336;
Slack, 529 U.S. at 483.
-8-
Mines to demonstrate that “reasonable jurists could debate whether
(or, for that matter, agree that) the petition should have been
resolved in a different manner or that the issues presented were
adequate to deserve encouragement to proceed further.”15
In Miller-El v. Cockrell, the Supreme Court instructed, as it
previously held in Slack v. McDaniel, that we should “limit [our]
examination to a threshold inquiry into the underlying merit of
[the petitioner’s] claims.”16 The Court observed that “a COA ruling
is not the occasion for a ruling on the merit of petitioner’s claim
. . . .”17 Instead, our COA determination must be based on “an
overview of the claims in the habeas petition and a general
assessment of their merits.”18 “This threshold inquiry does not
require full consideration of the factual or legal bases adduced in
support of the claims.”19 We do not have jurisdiction to justify
our denial of a COA based on an adjudication of the actual merits
of the claims.20
Even if we grant Mines’s application for COA, Mines is not
necessarily entitled to habeas relief. “To prevail on a petition
15
Miller-El, 537 U.S. at 336 (quoting
Slack, 529 U.S. at 484).
16
Miller-El, 537 U.S. at 327.
17
Id. at 331.
18
Id. at 336.
19
Id.
20
Id.
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for writ of habeas corpus, a petitioner must demonstrate that the
state court proceeding ‘resulted in a decision that was contrary
to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United
States.’”21 A state court’s decision is “contrary to . . . clearly
established Federal law, as determined by the Supreme Court of the
United States . . . if the state court arrives at a conclusion
opposite to that reached by the Court on a question of law or if
the state court decides a case differently than the Court has on a
set of materially indistinguishable facts.”22 A state court’s
decision “involves an unreasonable application of [] clearly
established Federal law, as determined by the Supreme Court of the
United States . . . if the state court identifies the correct
governing legal principle from the Court’s decisions but
unreasonably applies that principle to the facts of the prisoner’s
case.”23
In making the “unreasonable application” inquiry, this court
must determine whether the state court’s application of clearly
established federal law was objectively unreasonable.24 “We have
21
Robertson v. Cockrell, 325 F.3d 243, 247-48 (5th Cir. 2003) (en
banc) (quoting 28 U.S.C. § 2254(d)(1) (2000)), overruled on other
grounds, Tennard v. Dretke,
124 S. Ct. 2562, 2569 (2004).
22
Will. v. Taylor,
529 U.S. 362, 412-13 (2000).
23
Id. at 413.
24
Neal v. Puckett, 286 F.3d 230, 236 (5th Cir. 2002) (en banc),
cert. denied,
537 U.S. 1104 (2003).
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no authority to grant habeas corpus relief simply because we
conclude, in our independent judgment, that a state supreme court’s
application of [federal law] is erroneous or incorrect.”25
(1) Stay of Federal Habeas Proceedings
Mines contends that he is incompetent to assist his counsel in
this habeas proceeding, that the Sixth Amendment and 21 U.S.C. §
848(q)(4)(B)26 guarantee his right to communicate with and assist
his counsel effectively in a habeas proceeding, and, therefore,
this proceeding must be stayed until he regains the competence to
proceed.27 Neither the Supreme Court nor this court have determined
whether such a right exists, whether the right is constitutional or
statutory, what standard of review applies, or in what procedural
manner such a right would be properly asserted. We assume for the
purposes of this appeal that the right to be competent during the
25
Catalan v. Cockrell, 315 F.3d 491, 493 (5th Cir. 2002)(quoting
Neal, 286 F.3d at 236).
26
21 U.S.C. § 848(q)(4)(B) entitles indigent habeas petitioners
facing the death penalty to, inter alia, the appointment of
“adequate representation,” i.e. counsel.
27
Mines requests a COA on the district court’s denial of his
motion for a stay. However, a COA is not prerequisite to our
review of this claim because it does not challenge the district
court’s decision on the merits of Mines’s habeas petition. See Dunn
v. Cockrell, 302 F.3d 491, 492 (5th Cir. 2002)(finding that a COA
is not required when an appeal does not implicate the merits of a
district court’s denial of a habeas petition). Furthermore, the
federal district court’s ruling that denied Mines’s motion for a
stay of federal habeas proceedings is not a “judgment of a State
court” for which Mines is entitled to seek relief via federal
habeas review. 28 U.S.C. § 2254(a)(permitting federal courts to
entertain applications for a writ of habeas corpus “pursuant to the
judgment of a State court”).
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pendency of habeas proceedings exists, and because statutes are
interpreted in a manner so as to avoid substantial constitutional
questions,28 we assume that the right is statutory in nature. We
thus must first address the procedural manner in which such a claim
might be invoked and the applicable standard of review before
deciding whether Mines is entitled to a stay.
We observe that Mines’s request for a stay is, at its core, a
request for the district court to enjoin Mines’s execution
indefinitely. This court has jurisdiction to review any decision
by the district court to grant, continue, modify, refuse or
dissolve an injunction.29 Further, this court has previously held
that a “district court’s refusal to grant a stay in a habeas
proceeding is reviewed for abuse of discretion.”30
Here, the district court’s ruling adopted, without
explanation, the magistrate judge’s recommendation to deny Mines’s
request for a stay. The magistrate judge concluded that Mines’s
request for a stay was without support by binding authority because
the cases upon which Mines had relied only established that mental
incompetency was a basis for equitably tolling AEDPA’s one-year
filing deadline and a that a habeas petitioner had to be competent
28
Edward J. Bartolo Corp. v. Fla. Gulf Coast Bldg. & Constr.
Trades Council, 485 U.S. 568, 575 (1988).
29
See 28 U.S.C. § 1292(a)(1).
30
Brewer v. Johnson, 139 F.3d 491, 493 (5th Cir. 1998)(citing
McFarland v. Scott,
512 U.S. 849, 858 (1994)).
-12-
to waive his right to proceed in habeas.31 In his objection to the
magistrate judge’s report and recommendations, Mines cited Rohan
ex. rel. Gates v. Woodford, 334 F.3d 803 (9th Cir. 2003), in which
the Ninth Circuit concluded that a habeas petitioner has a
statutory right to be competent during the pendency of federal
habeas proceedings. Because it was undisputed that the petitioner
in Rohan was incompetent, the Ninth Circuit stayed the habeas
proceedings.32 Neither the magistrate judge nor the district court
discussed the applicability of Rohan to this case. As Rohan
arguably offers direct support of Mines’s request for a stay,33 a
brief discussion of that case is in order.
In Rohan, the Ninth Circuit, operating under the assumption
that the habeas petitioner was legally incompetent,34 concluded that
his statutory right to counsel under 21 U.S.C. § 848(q)(4)(B)
implied a statutory right to be competent so that the inmate could
assist his counsel during the habeas proceedings.35 At issue in
that case was whether the district court’s appointment of a “next
friend” was a sufficient substitute for the incompetent habeas
31
See Mag. Report & Rec. at 7 (citing Calderon v. United States
Dist. Court, 163 F.3d 530, 531 (9th Cir. 1998) and Mata v. Johnson,
210 F.3d 324, 332 (5th Cir. 2000)).
32
Rohan, 334 F.3d at 819.
33
See id. at 812-813.
34
See id. at 807 & n.2.
35
See id. 812-813.
-13-
petitioner’s implied statutory right to be competent during the
federal habeas proceedings, as it appeared that the district court
had found that the habeas petitioner was incompetent.36
While this court has previously determined that an inmate must
be competent to waive his habeas proceedings,37 we need not decide
whether we agree with the Ninth Circuit’s recognition of an implied
statutory right to be competent during the pendency of habeas
proceedings in order to conclude that the district court did not
abuse its discretion in denying the stay in this case. Mines,
unlike the habeas petitioner in Rohan, failed to allege facts or
present evidence showing that he is incompetent. As the state
pointed out in its response to Mines’s habeas petition,
Mines cites no evidence to show that he is actually
mentally incapable of cooperating with federal habeas
counsel. . . . At best, Mines’s petition presents
evidence to support his general allegation that he
suffers from bipolar disorder. . . . Specifically, none
of the medical opinions cited by Mines conclude that he
is unable to consult with his lawyers with a reasonable
degree of rational understanding.38
Additionally, the record reveals that Mines did not request a
competency hearing in the district court,39 and he does not argue
36
See id. at 806-807.
37
See Mata v. Johnson, 210 F.3d 324, 327-28 (2000)(requiring
competency to waive habeas proceedings once initiated).
38
See State’s Response, Rec. Vol. 4 at 1046 (emphasis in
original).
39
Mines’s preliminary federal habeas petition argued that he was
incompetent to be executed and sought to have the habeas petition
-14-
here that the evidence he presented in district court should have
created “a bona fide” doubt as to Mines’s competency in order to
trigger the court’s sua sponte inquiry into his competency under
the Supreme Court’s decision in Drope v. Missouri, 420 U.S. 162,
180-182 (1975).40 Thus, Mines’s claim lacks the foundation
presented to the Ninth Circuit in Rohan. The petitioner in Rohan,
who had not previously been adjudged competent to stand trial in
state court, moved for and received a competency hearing in federal
court.41 During that hearing, the petitioner presented evidence of
his incompetency by submitting the opinions of both his own and the
held in abeyance pending the court’s consideration of the writ. See
R. Vol. 1 at 0086. That petition also purported to include “a
motion for competency examination and hearing in the convicting
court” that was to be “filed simultaneously with this writ.”
Id.
(citing Appendix AA). But Appendix AA does not appear on its face
to be a federal motion. In fact, it is clear from the text of the
motion and the rest of the preliminary petition that both documents
are copies of those originally filed in state court as the bulk of
the legal authorities cited therein are those binding in Texas
state courts and the motion for a competency hearing is signed and
dated nearly three years before Mines filed his federal habeas
petition in September of 2000. Mines later amended his federal
habeas petition. While Mines’s amended petition also requests an
“abatement” of the federal habeas proceedings due to Mines’s
alleged incompetency, it does not request a competency hearing in
federal court nor does it purport to “simultaneously” file a motion
for a competency hearing in federal court. See R. Vol. at 957.
Accordingly, we conclude that Mines did not request a competency
hearing in federal court.
40
A motion for a competency hearing is not required in order to
trigger a court’s duty to inquire into a person’s competency. See
Lokos v. Capps, 625 F.2d 1258, 1260 (5th Cir. 1980)(citing Pate v.
Robinson,
383 U.S. 375, 384 (1966);
Drope, 420 U.S. at 176-77).
41
See Rohan, 334 F.3d at 805.
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State’s mental health experts.42 Here, the allegations and evidence
offered by Mines do not substantially differ from the allegations
and evidence upon which a Texas jury originally found him to be
competent to stand trial.
Furthermore, Mines has not argued that the official diagnosis
of his mental illness has changed in the interim or that his
illness has become more severe. Without alleging facts that
“objectively considered, should have reasonably raised a doubt” as
to Mines’s competency,43 the district court had no basis upon which
to grant Mines’s request for a stay of habeas proceedings.
Accordingly, we conclude that the district court did not abuse its
discretion in denying Mines’s request for a stay and affirm the
district court’s ruling.
(2) Second State Court Competency Hearing
Mines seeks COA on his claim that the state trial court’s
refusal to grant Mines a second competency hearing following
certain outbursts during Mines’s first competency hearing and
during the voir dire of his capital murder trial violated his due
process right to a fair trial. This court has previously stated
that a trial court has a duty to conduct further inquiry into a
criminal defendant’s competency when the court receives information
that, objectively considered, reasonably raises a doubt about the
42
Id. at 805-806.
43
Lokos, 625 F.2d at 1261.
-16-
defendant’s competency and alerts it to the possibility that the
defendant could not understand the proceedings, appreciate their
significance, or rationally aid his attorney in his defense.44
As observed by the magistrate judge, Mines’s generally
uncooperative and irrational behavior supplemented by Mines’s
medical records was the basis for the pre-trial competency hearing
in state court. A jury, after observing this evidence and Mines’s
outbursts during that hearing, found Mines to be competent to stand
trial for capital murder and attempted capital murder.
Mines’s COA application alleges essentially the same facts
that were fully and fairly presented to the state competency jury.
Despite the jury’s verdict on this issue after his first competency
hearing, Mines argues that he was entitled to a second competency
hearing. But Mines does not allege that there was any evidence to
show a change in his mental state occurred, or that there had been
a change in the nature or cause of his generally uncooperative and
irrational behavior. Thus, in the two months between his
competency hearing and his capital murder trial, there was no
evidence that should have reasonably put the state trial court on
notice that there was a doubt as to Mines’s competency sufficient
to justify a second competency inquiry. In fact, the state trial
court record reveals that Mines did not interrupt his trial with
outbursts once the jury was selected. Accordingly, we conclude
44
Id. at 1258.
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that reasonable jurists could not “debate whether (or, for that
matter, agree that) the petition should have been resolved in a
different manner or that the issues presented were adequate to
deserve encouragement to proceed further.”45 Therefore, Mines’s COA
application on this claim is denied.
(3) Dr. Grigson’s Guilt Phase Testimony
Mines contends that a COA should be granted on whether his
Fifth and Fourteenth Amendment rights were violated by Dr.
Grigson’s testimony regarding Mines’s demeanor in invoking his
rights and remaining silent when Grigson attempted to evaluate
Mines. The district court adopted the magistrate judge’s
recommendation to deny this claim on the basis of harmless error
even though the magistrate judge found that it was a “close call”
as to whether the admission of this testimony was contrary to the
Supreme Court’s teaching in Wainright v. Greenfield, 474 U.S. 284
(1986). In Greenfield, the Supreme Court held that a defendant’s
invocation of silence may not be used as substantive evidence of
his guilt or sanity.46
We agree with the magistrate judge that it is a “close call”
whether the admission of Dr. Grigson’s testimony was a violation of
Mines’s rights. Accordingly, a COA is warranted because reasonable
jurists could debate the district court’s resolution of this claim
45
Miller-El, 537 U.S. at 336 (quoting
Slack, 529 U.S. at 484).
46
See 474 U.S. at 293.
-18-
on the merits.
(4) Texas Special Issues
Mines seeks a COA on his final claim that the Texas special
issues sentencing scheme used by the jury who sentenced him to
death precluded the jury from giving effect to his mitigating
evidence of mental illness. Specifically, Mines argues that the
special issue interrogatories in the Texas capital sentencing
instruction,47 as applied to his case, precluded effective
presentation of mitigating evidence in violation of the mandates of
Penry v. Lynaugh, 492 U.S. 302 (1989)(“Penry I”), and Penry v.
Johnson,
532 U.S. 782 (2001) (“Penry II”). Mines’s trial was held
during the interval between the Supreme Court’s decisions in Penry
I and Penry II.
In Penry I, the Supreme Court held that the first two “special
issue” interrogatories in the Texas capital sentencing
instructions, though facially valid, failed to satisfy the
constitutional requirement that a capital defendant be able to
present and have the jury give effect to mitigating evidence in
47
The special issues are set out in TEX. CRIM. PROC. CODE art.
37.071. Under the version of the statute in force when Mines was
tried, the first special issue addressed whether the defendant had
acted “deliberately and with the reasonable expectation that the
death of the deceased or another would result.” The second special
issue instructed the jury to consider “whether there is a
probability that the defendant would commit criminal acts of
violence that would constitute a continuing threat to society.”
The third special issue, which is not relevant to the Penry I/Penry
II analysis, addressed whether the defendant’s conduct was a
reasonable response to the provocation, if any, of the victim. See
TEX. CRIM. PROC. CODE art. 37.071(b)(1)-(3) (Vernon 1987).
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certain situations.48 After Penry I, Texas trial courts continued
to send the same special issue interrogatories to the jury, but
added a supplemental instruction to “cure” any possible Penry I
defect. Though the Texas legislature later adjusted the special
issues to add a mitigating evidence question,49 Mines’s jury
received the same interim supplemental instruction given in Penry’s
case when Penry’s case was retried on remand from the Supreme
Court.50
In Penry II, the Supreme Court again considered a
constitutional challenge by Penry. It considered the supplemental
48
492 U.S. at 315, 328.
49
See Robertson, 325 F.3d at 248-49 & n.4 (describing the
background of the period between Penry I and Penry II and detailing
the new special issues sentencing scheme).
50
In Penry II, the Supreme Court restated the instruction:
You are instructed that when you deliberate on the questions
posed in the special issues, you are to consider mitigating
circumstances, if any, supported by the evidence presented in
both phases of the trial, whether presented by the state or
the defendant. A mitigating circumstance may include, but is
not limited to, any aspect of the defendant’s character and
record or circumstances of the crime which you believe could
make a death sentence inappropriate in this case. If you find
that there are any mitigating circumstances in this case, you
must decide how much weight they deserve, if any, and
therefore, give effect and consideration to them in assessing
the defendant’s personal culpability at the time you answer
the special issue. If you determine, when giving effect to the
mitigating evidence, if any, that a life sentence, as
reflected by a negative finding to the issue under
consideration, rather than a death sentence, is an appropriate
response to the personal culpability of the defendant, a
negative finding should be given to one of the special issues.
532 U.S. at 789-90.
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instruction given in Penry’s retrial, and held that the instruction
failed to give Penry’s jurors a “vehicle” by which they might give
effect to his mitigating evidence.51 Specifically, the Court held
that the supplemental instruction potentially created an
unacceptable dilemma for the jurors: Because it instructed the
jurors to change one of their truthful “Yes” special issue answers
to an untruthful “No” if they felt the defendant did not deserve
the death penalty, it left the jurors with the choice of either not
giving effect to Penry’s proffered mitigation evidence or,
alternatively, violating their oaths as jurors.52
Mines’s claim is that because his jury instructions were
virtually identical to the one given in Penry’s trial those
instructions created the same situation that the Supreme Court in
Penry II found constitutionally unacceptable. Moreover, in a
supplemental filing to his COA application, Mines argues that both
the federal and state courts considering this claim have relied on
an analytical model that has been recently invalidated by the
Supreme Court thereby creating some doubt as to whether his Penry
claim was resolved correctly. We agree for three reasons.
First, this Court previously granted COA on a similar claim
using the now invalid “constitutionally relevant” mode of analysis
51
Id. at 787, 798.
52
Id. at 798-801.
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for a Penry claim.53 Second, the issue of whether the Texas special
issues sentencing scheme used in this case places a defendant’s
mitigating evidence of mental illness beyond the effective reach of
the sentencing jury is presented in two cases now pending before
this court.54 Finally, the parties have not had an opportunity to
brief the merits of Mines’s Penry claim in light of the Supreme
Court decision in Tennard v. Dretke.55 Accordingly, we conclude
that jurists of reason might debate the correctness of the district
court’s dismissal of this claim on the merits and grant COA.
CONCLUSION
For these reasons, we conclude that a COA is not required for
this court to review and affirm the district court’s ruling denying
Mines’s motion for a stay of his federal habeas proceedings because
of mental incompetence. We conclude that a COA is not warranted on
Mines’s second claim. A COA is granted, however, on Mines’s third
and fourth claims. Accordingly, the Clerk is ordered to set those
two claims for briefing and oral argument according to the usual
schedule.
COA GRANTED IN PART; COA DENIED IN PART.
53
See Coble v. Cockrell, 80 Fed. Appx. 301 (5th Cir. 2003).
54
See Bigby v. Cockrell, 340 F.3d 259 (5th Cir. 2003), pet. for
r’hg filed August 11, 2003; Coble, 80 Fed. Appx. at 301.
55
124 S. Ct. 2562 (2004).
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