Butler v. Davis

STEVEN ANTHONY BUTLER, Petitioner - Appellant v. LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINALJUSTICE, CORRECTIONAL INSTITUTIONS DIVISION, Respondent - Appellee

No. 18-70006

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

August 14, 2018

Appeal from the United States District Court for the Southern District of Texas

USDC No. 4:07-CV-2103

Before OWEN, HAYNES, and COSTA, Circuit Judges.

PER CURIAM:^*

Steven Butler seeks a certificate of appealability (COA) to challenge his capital conviction as the result of ineffective assistance of counsel. His arguments are that his trial counsel failed (1) to present expert witnesses with important information indicating that he was incompetent to stand trial and (2) to investigate Butler's potential impaired intellectual functioning andcompetence and present that as mitigating evidence during the penalty phase of trial. We DENY the COA.

I. Background.

Butler confessed to a robbery spree that involved ten incidents in less than five months during which, in addition to robbery, he committed murders, attempted murders and rape.¹ He was eventually apprehended, arrested, and charged with capital murder based upon his fifth robbery, during which he shot and killed an unarmed woman. Ex Parte Butler, 416 S.W.3d 863, 867 (Tex. Crim. App. 2012) (per curiam).

Before trial, Butler corresponded with his trial counsel and exhibited some unusual behavior referencing "demons" and a non-existent person, "R. Palmer," who he seemed to rely upon for his actions. About a year after the first reference to "R. Palmer," Butler's trial counsel requested examinations to determine whether Butler was sane and competent. Two experts—psychiatrist Jaime Ganc and clinical psychologist Ramon Laval—each independently evaluated Butler on two different days in September 1988. The reports are similar, both premised only on the interviews with Butler. Each indicates information from Butler about his childhood, specifically that he was in an orphanage in Illinois and later adopted by the Butler family of Mississippi. The rest of the expert's comments are unremarkable except that each concluded, based on Butler's then-present cognitive functioning, that Butler was competent to stand trial.

The record does not indicate that Butler's trial counsel took any further steps to challenge Butler's competency after receiving these reports. Butler stood trial about two months later, when a jury convicted him and sentenced him to death. He did not raise the issue of competency on direct appeal.

While pursuing state habeas relief, Butler's habeas counsel found letters from Butler to his trial counsel referencing "R. Palmer." He also realized that Butler's statements regarding his birth and his alleged time in an orphanage were inconsistent with testimony from Butler's parents at trial. They testified that Butler was born and raised in Mississippi to their family, not adopted after being born in Illinois. Additionally, Butler's new counsel noticed that Butler told Dr. Laval that he was sent to a mental ward at age 16, but he told Dr. Ganc that he had not had any previous psychiatric care.

Butler's new counsel identified other information, apparently not known to Butler's trial counsel, that he believed proved Butler was not mentally competent at the time of trial, including: Butler's use of drugs; reports from another inmate that Butler was "crazy" and talked to himself; reports from an attorney who represented him in a different criminal case that Butler was abusive and accused the attorney of conspiring with the government; a prison diagnostic report stated that Butler had a "dysphoric mood" and "sad affect," which indicated he was "a depressed, somewhat paranoid individual who has a high potential for harm to self or others" and may have psychosis (or be malingering); and Butler's extreme weight loss following his arrest.

Butler's new counsel contacted Drs. Ganc and Laval in 2002 to determine if their previous conclusions of competence still stood in light of the strange letters, Butler's false statements, and the other additional evidence. They had somewhat differing views from each other on the impact of this new information.

Dr. Ganc wrote that he could not modify his original opinion: "During my evaluation, according to my interpretation of my report, I did not feel there was any behavior or thinking that kept him from communicating with his counselor. This conclusion is stated in my report and I will stand by it."

Dr. Laval, however, was more equivocal. He noted that at the time of his evaluation, he "was not privy" to the information that Butler had accused his attorney of being a demon or that Butler had lied to Dr. Laval during the evaluation. For Dr. Laval, "collateral information suggesting that the defendant is manifesting paranoid thoughts or delusional ideas that involve his own attorney is of marked significance." He expressed concerns that "at the time that [he] conducted [his] evaluation of Mr. Butler in September of 1988, there was available information regarding his state of mind which would have been not only relevant but of paramount importance in reference to the issue of competency to stand trial." He believes that if he "reviewed and had been made aware of all that information," then it "is possible . . . [he] would have concluded that Mr. Butler was not competent and required psychiatric treatment, including the use of anti-psychotic medication, for his competency to be restored."

Butler's new counsel also contacted a third expert, psychiatrist Dr. George Woods, to re-assess Butler's history. Dr, Woods noted that Butler "suffers from a major mental illness, Bipolar Disorder" and that the Texas Department of Criminal Justice "has acknowledged these symptoms and attempted treatments of this illness since 1995." His report connected the information in the bullet points above to symptoms of Bipolar Disorder. Dr. Woods concluded that Drs. Ganc and Laval "had none of the information that had to be taken into account to make an accurate assessment of whether there were any problems in Mr. Butler's relationship with his lawyers and whetherthose problems were due to mental illness." Dr. Woods went a step further and concluded that "Butler likely did not have capacity to cooperate with and assist his lawyers in his defense."

Armed with the new information and reports, Butler sought state habeas relief. Among his many arguments were two spurred by the information about Butler's competence. First, he argued that he was deprived of the right to counsel because his counsel was ineffective for failing to inform Drs. Ganc and Laval about Butler's erratic letters and lies during the evaluations. Second, he contended that his counsel was again ineffective for failing to raise the mental competency evidence during the punishment phase of trial to mitigate his sentence.

The circuitous route that those two issues have taken is described in depth in our previous opinion. See Butler v. Stephens, 625 F. App'x 641, 656-60 (5th Cir. 2015) (per curiam), cert. denied, 136 S. Ct. 1656 (2016). To make a long procedural history short, we concluded that Butler procedurally defaulted these issues in state court and the district court initially did not review the issues as barred. In light of intervening precedent, we vacated that decision and remanded, concluding that a subsequent Supreme Court decision, Martinez v. Ryan, may have provided a chance for Butler to overcome the procedural default. 566 U.S. 1 (2012).

On remand, the district court concluded that the default could not be excused under Martinez because Butler's arguments were "without merit." It denied a COA. Butler now requests that we grant him a COA on the two issues.

II. Standard of review.

Because no state court has previously considered the merits of Butlers' two arguments, our analysis of whether to grant a COA is based upon anunderlying standard of review that is de novo. See Hoffman v. Cain, 752 F.3d 430, 437 (5th Cir. 2014).

"To succeed on an [ineffective assistance of counsel] claim, a defendant must show that (1) his counsel's representation fell below an objective standard of reasonableness, and (2) the counsel's deficient performance prejudiced the defendant." United States v. Fields, 761 F.3d 443, 453 (5th Cir. 2014) (internal quotation marks omitted) (quoting, in part, Roe v. Flores-Ortega, 528 U.S. 470, 476-77 (2000)). "The objective standard of reasonableness is measured under prevailing professional norms." Id. (internal quotation marks omitted) (quoting, in part, Rompilla v. Beard, 545 U.S. 374, 380 (2005)). "To prove prejudice, '[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.'" Trevino v. Davis, 861 F.3d 545, 549 (5th Cir. 2017) (brackets in original) (quoting Strickland, 466 U.S. at 694), cert. denied, 138 S. Ct. 1793 (2018). When a defendant asserts that his counsel was ineffective for failing to investigate mitigating evidence, "we reweigh the evidence in aggravation against the totality of available mitigating evidence." Id. (quoting Wiggins v. Smith, 539 U.S. 510, 534 (2003)).

Because Butler only seeks a COA at this stage, his burden is lighter. Butler must demonstrate that his claims of constitutional violations were such that jurists of reason could debate the district court's disposition of the issues. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (quotation marks omitted) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). If a district court denies a habeas petition on procedural grounds, we grant a COA "when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and thatjurists of reason would find it debatable...