Saldaño v. Davis

VICTOR HUGO SALDAÑO, Petitioner-Appellant, v. LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,CORRECTIONAL INSTITUTIONS DIVISION, Respondent-Appellee.

No. 16-70025

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

June 28, 2017

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

USDC No. 4:08-CV-00193

Before CLEMENT, PRADO, and HIGGINSON, Circuit Judges.

PER CURIAM:^*

Victor Hugo Saldaño was convicted of capital murder and sentenced to death in 1996. Texas later confessed constitutional error in the punishment stage—namely, introduction of racist testimony to support a finding of future dangerousness. Saldaño was again sentenced to death in 2004. He now appeals the district court's denial of habeas relief. We GRANT a certificate ofappealability ("COA") on two issues: whether Saldaño was denied due process because he was not competent to stand trial and because the trial court failed to hold a competency hearing, and whether trial counsel was ineffective in failing to request a competency hearing. We DENY a COA on all other issues raised by Saldaño in his petition for habeas corpus.

I. BACKGROUND

A. Saldaño's First Trial

Saldaño, a citizen of Argentina, faces the death penalty for murdering Paul King in November 1995. A jury convicted Saldaño of capital murder in July 1996. As required by Texas law when the state seeks to impose the death penalty, the trial court then held a separate proceeding in which the jury considered two special issues: (1) "whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society"; and (2) whether mitigating circumstances warranted life imprisonment instead of death. Tex. Code Crim. Proc. art. 37.071, § 2(b)(1), (e). During this proceeding, the state elicited testimony from Dr. Walter Quijano, a clinical psychologist, about the likelihood of Saldaño's future dangerousness. Dr. Quijano testified that Saldaño's race (Hispanic) made him more likely to commit acts of violence in the future. The jury found that (1) there was a probability that Saldaño would commit criminal acts of violence constituting a threat to society, and (2) mitigating circumstances did not warrant life imprisonment rather than the death penalty. Accordingly, the trial court sentenced Saldaño to death.

On direct appeal, Saldaño challenged Dr. Quijano's racist testimony. The Texas Court of Criminal Appeals ("TCCA") affirmed the sentence. After the Texas Attorney General confessed error, however, the Supreme Court vacated the judgment and remanded the case back to the TCCA for further consideration. Saldano v. Texas, 530 U.S. 1212 (2000). On remand, the TCCAagain affirmed the sentence. Saldano v. State, 70 S.W.3d 873, 891 (Tex. Crim. App. 2002).

Saldaño then filed a federal habeas petition. After the Attorney General again confessed constitutional error, the district attorney responsible for prosecuting Saldaño tried to intervene in order to defend the death sentence. See Saldano v. Roach, 363 F.3d 545, 550 (5th Cir. 2004). The district court denied this motion to intervene and granted Saldaño's habeas petition, finding that "the admission of and reference to expert opinion testimony to the effect that a person is more likely to be dangerous in the future because he is a member of a racial or ethnic group that happens to be over-represented in the prison population is constitutional error." Saldano v. Cockrell, 267 F. Supp. 2d 635, 642 (E.D. Tex. 2003). This Court affirmed the district court's denial of the motion to intervene and dismissed the district attorney's appeal of the order granting habeas relief. Saldano, 363 F.3d at 556. Accordingly, Saldaño was granted a new punishment trial.

B. Saldaño's Punishment Retrial

Saldaño's punishment retrial took place in November 2004. By that time, Saldaño's mental health had appeared to deteriorate. For example, Saldaño attempted to commit suicide in 2001; his behavior grew erratic and his speech disorganized; he often refused to shower; he reported hearing voices; and he ate his own feces. Saldaño started misbehaving as well: among other things, he started fires in his cell; masturbated in public; and threw feces at prison guards.

Mental health professionals disagreed on why Saldaño's mental state had appeared to deteriorate. Dr. Orlando Peccora, a psychiatrist who treated Saldaño at the Jester IV Psychiatric Facility of the Texas Department of Criminal Justice ("TDCJ"), submitted a declaration in which he diagnosed Saldaño with depression which "sometimes involved psychotic ideations,hallucinations and delusions." Dr. Peccora also noted Saldaño's "diminished cognitive ability" and "diminished ability to react in emotionally appropriate fashion to events around him," although he did not believe Saldaño was incompetent. Dr. Peccora attributed Saldaño's misbehavior on death row to his mental deterioration, and attributed his mental deterioration to the isolation of death row. Some TDCJ doctors diagnosed Saldaño with forms of psychosis—specifically, schizophrenia and schizoaffective disorder, which involve cognitive and behavioral dysfunction. Am. Psychiatric Ass'n, Diagnostic and Statistical Manual of Mental Disorders 99-101, 105-07 (5th ed. 2013). Other TDCJ doctors, however, diagnosed Saldaño with antisocial personality disorder. In their opinion, the hallucinations, delusions, and suicidal ideations Saldaño reported were fabricated in order to obtain drugs.

Saldaño's mental state was a recurring issue throughout the punishment retrial. Indeed, the record reflects Saldaño's abnormal behavior during voir dire and the trial itself: Saldaño masturbated inside his prison clothes before the jury on several occasions; he refused to wear nonprison clothes; and during voir dire, he read magazines and at one point yawned loudly. In addition, Saldaño did not always speak coherently. For example, the following exchange occurred after the first masturbation incident:

[THE COURT:] So, having said all that, [counsel] has said that you intend not to act out anymore in the courtroom. Is that correct?

THE DEFENDANT: (No audible response)

THE COURT: You intend to do—

THE DEFENDANT: (In English) Well, according—according by the Supreme Court of the United States, the rules of the law will be provided in this case, according by—according by the rule of the law.

THE COURT: I'm not—go ahead.

THE DEFENDANT: (In English) You believe in the Texas Penal Code is (unintelligible).

THE COURT REPORTER: I can't understand what he's saying, Judge.

THE COURT: I'm sorry. I could not understand either.

THE DEFENDANT: (unintelligible)

THE INTERPRETER: Five years for murder; for manslaughter.

THE DEFENDANT: (In English) According by the—by the rule—the Texas Penal Code, so at this point what I—I agree with everything you do right. You do everything right. I—

THE COURT: Well, I appreciate that.

The trial transcript is littered with other instances of incoherent or disordered speech.

The record also reflects the judge's and counsel's concerns about Saldaño's mental state. During voir dire, on October 5, 2004, Saldaño's counsel raised the issue of competency with the court after receiving Dr. Peccora's declaration and noting Saldaño's strange behavior. The judge gave defense counsel authority to seek a competency evaluation. The judge inquired about the status of this evaluation a couple days later. Defense counsel again requested a competency evaluation after one of the masturbation incidents. But the two psychiatrists who examined Saldaño a total of three times during the trial found him competent each time.¹ Therefore, defense counsel never requested a competency hearing, and the judge indicated near the end of the trial that he had no reason to believe Saldaño was legally incompetent.

Although defense counsel never argued that Saldaño was incompetent, counsel did argue in a pretrial motion that (1) retrying Saldaño after years of mental deterioration while on death row was unconstitutional, and(2) evidence of Saldaño's misbehavior while on death row (which featured prominently in the state's case for future dangerousness) should be excluded. At the November 5, 2004 hearing on this motion, the defense sought to put Dr. Peccora on the stand. But the trial court ruled that under Lagrone v. State, 942 S.W.2d 602 (Tex. Crim. App. 1997), the state must have an opportunity to examine Saldaño with its own expert before the defense expert could testify about Saldaño's mental state. Defense counsel expressed concern that a Lagrone examination "could actually be used against [Saldaño] at trial"; accordingly, counsel invoked Saldaño's Fifth Amendment right and refused to give the state an opportunity to conduct a Lagrone examination.

Defense counsel later filed a motion seeking to limit the scope of a Lagrone examination, which the trial court denied on November 12, 2004. At that time, the trial court clarified that if Dr. Peccora were to testify on Saldaño's behalf, then the state would be able to introduce its own expert testimony "about anything relevant to his mental state, including future dangerousness." Defense counsel again chose not to put Dr. Peccora on the stand. Likewise, defense counsel declined to put Saldaño's mother before the jury because she too intended to testify about Saldaño's mental state. The defense's case for mitigation focused on Saldaño's intoxication when he committed the crime, his lack of a prior criminal record, and the fact that it was his co-defendant's idea to commit the crime. As in the first trial, the jury answered the two special issues such that the court imposed the death penalty.

Defense counsel then filed a motion for a new trial, which the trial court denied. On direct appeal, the TCCA affirmed Saldaño's sentence. Saldano v. State, 232 S.W.3d 77, 82 (Tex. Crim. App. 2007).

C. Habeas Petitions

Saldaño filed a petition for habeas corpus in state court on February 15, 2007. H...