Panetti v. Davis

863 F.3d 366

Scott Louis PANETTI, Petitioner-Appellant

v.Lorie DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee

No. 14-70037

United States Court of Appeals, Fifth Circuit.

Filed July 11, 2017

Gregory William Wiercioch, University of Wisconsin Law School, Madison, WI, Kathryn M. Kase, Esq., Houston, TX, for Petitioner–Appellant.

Dustin Mark Howell, Esq., Ellen Stewart–Klein, Assistant Attorney General, Office of the Attorney General for the State of Texas, Austin, TX, for Respondent–Appellee.

Thomas F. Allen, Jr., Jones Day, Dallas, TX, Victoria Dorfman, Jones Day, New York, NY, for Amici Curiae Mark L. Earley, Sr., David A. Keene, James C. Miller, III, Richard A. Viguerie, C. Preston Noell, III, Patrick J. Nolan, Harold D. Stratton, Jr., and Patrick A. Trueman.

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

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Our question today is competency to be executed and its attending procedures, not the validity of the conviction or sentence. We stayed execution to consider Scott Panetti's appeal from the denial of appointed counsel and funding to hire a mental health expert and investigator. We will now reverse the district court's denial of appointed counsel and expert funding under 18 U.S.C. § 3599, vacate its factual findings relating to Panetti's competency, and remand for additional proceedings, another chapter in this judicial plunge into the dark forest of insanity and death directed by the flickering and inevitably elusive guides.

I

Charged with capital murder for killing his wife's parents in front of his wife and three-year-old daughter, Panetti insisted on representing himself at trial, an undertaking made the more difficult by a long history of schizophrenia and institutionalization. The Texas Court of Criminal Appeals ("TCCA") upheld his conviction and death sentence on direct and collateral review.¹

Panetti filed his first federal habeas petition in 1999, claiming, among other things, that he was incompetent both to waive counsel and to stand trial. The district court rejected those incompetency claims, and the state trial court set Panetti's execution date for February 5, 2004.² In December 2003, Panetti filed a motion in state court under Article 46.05 of the Texas Code of Criminal Procedure, claiming for the first time he was incompetent to be executed.³ The state court denied the motion without a hearing, and the TCCA dismissed his appeal for lack of jurisdiction.⁴

In January of 2004, Panetti filed a second federal habeas petition, his first under Ford v. Wainwright .⁵ The federal district court granted his request for a stay to allow the state court to consider supplemental evidence.⁶ The state court hired two experts to evaluate Panetti, but upon receipt of their reports, denied relief without an evidentiary hearing.⁷ Finding that the state court's failure to afford Panetti a hearing denied due process under Ford , the federal district court scheduled an evidentiary hearing to determine Panetti's competency to be executed, appointed counsel, and authorized funds for investigative and expert assistance.⁸ Ultimately, the district court concluded that Panetti understood the reason for his execution and found him competent to be executed.⁹ We affirmed.¹⁰

The Supreme Court granted certiorari and reversed.¹¹ The Court reasoned that "a prisoner's recognition of the severity of the offense and the objective of community vindication are called into question ... if the prisoner's mental state is so distorted by a mental illness that his awareness of the crime and punishment has little or no relation to the understanding of those concepts shared by the community as a whole."¹² The Court held that the test this court deployed—a prisoner's factual awareness of his impending execution and the State's articulated premises for executing him—did not go far enough; that a prisoner must also have a "rational understanding" of the State's reasons for executing him.¹³ The Court remanded the case to the district court to investigate and determine whether Panetti's delusions rendered him incapable of understanding the reason for his punishment in light of its opinion and against the backdrop of Roper v. Simmons ,¹⁴ Atkins v. Virginia ,¹⁵ and Ford .¹⁶

So, the federal district court held a second evidentiary hearing on the issue of Panetti's competency to be executed. The court thoroughly reviewed the evidence presented at the hearing and concluded that he was competent under the correct standard.¹⁷ While Panetti's resulting appeal to this court was pending, the Supreme Court held in Indiana v. Edwards that "the Constitution permits States to insist upon representation by counsel for those competent enough to stand trial ... but who still suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves."¹⁸ In turn, we granted Panetti's motion to stay federal proceedings for his return to Texas state court with his new Edwards claim.

Panetti then filed another state habeas petition, which the TCCA dismissed on October 21, 2009, as a subsequent application for "fail[ing] to meet the dictates of Article 11.071, § 5."¹⁹ The next day, with our permission, Panetti filed his third federal habeas petition in the district court.²⁰

While that petition was pending, the TCCA addressed the meaning of Edwards in Chadwick v. State .²¹ In light of Chadwick , the federal district court granted Panetti leave to file a second successive state habeas petition.²² The TCCA again dismissed the petition, and the Supreme Court denied certiorari.²³ Panetti then returned to the federal district court with his Edwards claim, which the court denied on the merits.²⁴ On August 21, 2013, this court affirmed both the district court's 2008 rejection of Panetti's competency-to-be-executed claim and its 2012 rejection of Panetti's Edwards claim.²⁵ The Supreme Court denied Panetti's resulting petition for a writ of certiorari.²⁶

II

We come to Panetti's present claim. Acting on an ex parte request from the state district attorney's office, the state court set Panetti's execution for December 3, 2014. Panetti's counsel learned of the execution date from a newspaper on October 30, and the next day filed an emergency motion for a hearing, asking that the execution date be withdrawn or modified to allow time to pursue the issue of his competency to be executed through an Article 46.05 motion.²⁷ In this motion, Panetti argued that in the short time remaining before his execution date, he would not have "a meaningful opportunity to contest his competency for execution" as required by due process and Ford . In Texas in 2014, no notice was required to be provided to capital defendants or their counsel when the execution was set, and dates of execution for "subsequent" executions could be set as early as thirty-one days out from the order scheduling the execution.²⁸

Panetti also submitted related motions for counsel and funding for expert assistance, captioned "Defendant's Ex Parte Motion for Funds to Hire Mental Health Expert to Assist Defense in Article 46.05 Proceedings," "Defendant's Ex Parte Motion for Funds to Hire Investigator to Assist Defense in Article 46.05 Proceedings," and "Defendant's Motion for Appointment of Counsel to Prepare and Litigate Article 46.05 Motion." He argued that the State "must comport with the minimum due process guarantees enumerated in Ford " by granting him compensated counsel, funding for experts, and time to develop an Article 46.05 petition; that with these resources, he would be able to make the substantial showing of incompetence required by Article 46.05 for a hearing on his competency. The motions included the names of experts Panetti's pro bono counsel had already contacted, describing their qualifications and anticipated expenses. In the meantime, the State began gathering evidence in support of its opposition to Panetti's pleas. This included surreptitiously recording a conversation between Panetti and his parents on November 4, as it had done seven years before, generating evidence of the same type relied upon by the federal district court in denying Panetti's earlier Ford claim.

On November 6, the state trial court held a hearing by phone with both parties. During this teleconference, Panetti's counsel reminded the court that Panetti had only six days to file or he would lose any right to appeal from the judgment of the state court;²⁹ that Panetti's competency had not been evaluated for seven years; and that the state trial court was placing his unpaid counsel in the position of either attempting to review 8,500 pages of TDCJ medical records, seek pro bono expert assistance, and prepare and file a petition in less than one week's time, or else lose all right to appellate review. The court suggested, and the State agreed, that Panetti file a skeletal Article 46.05 petition, followed by an amended motion expanding on the original petition, provided any additional filings were submitted by November 21, effectively granting an additional nine days. Panetti's counsel replied that fifteen days were not enough for a law professor from Wisconsin and an expert, both without funding and with the large demands of their primary work, to prepare sufficient filings.

Later that day, the court denied Panetti's emergency motion for a hearing. On November 14, Panetti filed a "Renewed Motion to Stay or Modify Execution Date, Appoint Counsel, and Authorize Funds for Investigative and Expert Assistance to Provide Meaningful Opportunity to Prepare Article 46.05 Motion," in which he argued that he could not, facing these time constraints and absent mental health expert resources, meet the threshold requirement of Article 46.05.³⁰ In the renewed motion, pro bono counsel included the limited evidence that he had been able to obtain, without any funding, to substantiate the claim of...