Panetti v. Cockrell ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
June 19, 2003
FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
_________________
No. 01-50347
_________________
SCOTT LOUIS PANETTI,
Petitioner-Appellant,
versus
JANIE COCKRELL, Director, Texas Department of Criminal Justice, Institutional Division,
Respondent-Appellee.
Appeal from the United States District Court
For the Western District of Texas
USDC No. A-99-CV-260-SS
Before HIGGINBOTHAM, EMILIO M. GARZA and STEWART, Circuit Judges.
PER CURIAM:*
Scott Louis Panetti (“Panetti”), a Texas inmate, has filed a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. Panetti was convicted in Texas state court of murdering his wife’s
parents (Joe and Amanda Alvarado) and sentenced to the death penalty. Panetti’s wife Sonja
*
Pursuant to 5TH CIR. R. 47.5, t he court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
Alvarado (“Alvarado”) and their three-year-old daughter witnessed the murders.
We consider the six claims on which the district court granted a certificate of appealability
(COA) :1 (1) whether Panetti was mentally competent to stand trial and whether the state trial court
should have held an additional hearing to determine his competency; (2) whether Panetti was mentally
competent to waive counsel and proceed with his defense pro se; (3) whether the state withheld
exculpatory evidence relating to Panetti’s mental illness in violation of Brady v. Maryland, 373 U.S.
83 (1963); (4) whether the state knowingly presented perjured testimony during Panetti’s trial in
violation of his fourteenth amendment right to due process; (5) whether the state coerced and
manipulated a witness (Alvarado) in violation of Panetti’s due process rights; and (6) whether the jury
verdict was based on inaccurate information in violation of Panetti’s due process rights.
In a habeas proceeding, we review the district court’s findings of fact for clear error and its
conclusions of law de novo. Alexander v. Cockrell, 294 F.3d 626, 628 (5th Cir. 2002). In this case,
the district court dismissed all six of the above claims on the ground that Panetti failed to exhaust his
state court remedies. The question of whether a habeas petitioner exhausted his state remedies is an
issue of law, so we review the district court’s determination de novo. See Wilder v. Cockrell, 274
F.3d 255, 259 (5th Cir. 2001).
We have repeatedly made clear that a state prisoner must present his claims to a state tribunal,
and thereby exhaust his state remedies, before filing a habeas petition in federal court. Ogan v.
Cockrell, 297 F.3d 349, 356 (5th Cir. 2002). A habeas petitioner has failed to exhaust his state court
remedies when he presents his claims to the federal court “in a significantly different and stronger
1
The district court denied Panetti’s request for a COA on seven other claims. In an earlier
unpublished opinion, we affirmed that decision.
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evidentiary posture than [they were] before the state courts.” Dowthitt v. Johnson, 230 F.3d 733,
746 (5th Cir. 2000) (internal quotation marks omitted).
Our case law suggests that Panetti failed to exhaust the following four claims: (1) that the
state withheld exculpatory evidence; (2) that the state knowingly presented perjured testimony;
(3) that the state coerced and manipulated a witness (Alvarado); and (4) that the jury’s verdict was
based on inaccurate information. When Panetti presented these four claims to the federal habeas
court, he relied heavily on a signed affidavit (and accompanying interview transcript) from Alvarado.
However, Panetti did not present the same evidence to the state court. When Panetti filed his state
habeas petition, he presented an unsigned affidavit from Alvarado supporting his claims. The state
was able to cast doubt on the veracity of that unsigned affidavit by presenting the state habeas court
with a signed affidavit that Alvarado prepared for the state (in which she refuted the claims she made
in the unsigned affidavit). By contrast, the st ate did not present the federal habeas court with an
affidavit from Alvarado casting doubt on the signed affidavit she prepared for Panetti.
Clearly, the signed affidavit that Panetti presented to the federal court constituted substantially
stronger evidence than the unsigned affidavit he offered to the state court. As a result, Panetti’s four
claims, which rely heavily on the signed affidavit from Alvarado, were presented to the federal court
in a “significantly different and stronger evidentiary posture” than in the state court. Therefore, we
agree with the district court’s conclusion that Panetti failed to exhaust those four claims in state
court.
We do not, however, agree with the district court’s determination that Panetti failed to
exhaust his other two claims: (1) that he was incompetent to stand trial; and (2) that he was
incompetent to waive counsel. Although Panetti relied in part on Alvarado’s signed affidavit to
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support his competency claims in federal court, the Alvarado affidavit was not the primary support
for those claims. Panetti also relied on statements by psychiatrists, attorneys, and lay persons who
observed Panetti at trial and concluded that he was not competent to stand trial or waive counsel.
This evidence (or similar evidence) was presented to the state courts. Thus, we hold that Panetti
exhausted his competency claims. See Vasquez v. Hillery, 474 U.S. 254, 257 (1986) (“[O]nce the
federal claim has been fairly presented to the state courts, the exhaustion requirement is satisfied.”)
(internal quotation marks omitted).
Because Panetti’s petition contains both exhausted and unexhausted claims, it might appear
that we should dismiss the petition without prejudice to allow him to exhaust all of his claims. We
have stated that “[a] habeas petition containing both exhausted and unexhausted claims is a ‘mixed’
petition which should be dismissed without prejudice.” See Alexander v. Johnson, 163 F.3d 906, 908
(5th Cir. 1998). That rule (requiring the dismissal of a “mixed” petition) does not, however, apply
when state procedural rules would prevent the petitioner from subsequently raising his unexhausted
claims in state court. We have held that, if a petitioner’s unexhausted claims would be procedurally
barred under state law, we need not dismiss those claims without prejudice. See Fuller v. Johnson,
158 F.3d 903, 905-06 (5th Cir. 1998).
Panetti could not raise his unexhausted claims in a subsequent state habeas petition. He would
be prevented from doing so by Texas’s abuse of the writ doctrine. That doctrine “prohibits a second
habeas petition, absent a showing of cause, if the applicant urges grounds therein that could have
been, but were not, raised in his first habeas petition.” Nobles v. Johnson, 127 F.3d 409, 423 (5th
Cir. 1997) (citing Ex parte Barber, 879 S.W.2d 889, 891 n.1 (Tex. Crim. App. 1994)); see TEX.
CRIM. PROC. CODE ANN. art. 11.071 § 5(a).
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Because the abuse of the writ doctrine would prevent Panetti from presenting his unexhausted
claims in a subsequent state habeas petition, those claims appear to be procedurally defaulted for
purposes of federal habeas review. See Finley v. Johnson, 243 F.3d 215, 220 (5th Cir. 2001).2
Therefore, unless Panetti qualifies for an exception to our procedural default rules, those claims
cannot provide a basis for federal habeas relief. See Ogan, 297 F.3d at 356.
A petitioner can overcome a procedural default only if he can (1) demonstrate cause for the
default and (2) demonstrate actual prejudice resulting from the alleged violation of federal law. Id.Panetti appears to argue that prosecutorial misconduct prevented him from satisfying the exhaustion
requirement and thereby “caused” his claims to be procedurally barred. He contends that he was
unable to present a signed affidavit from Alvarado to the state court because the prosecution
“interfere[d] with Alvarado by pressuring her not to sign her affidavit for [Panetti] and to sign an
affidavit (which she now claims is false) for the state.” Brief of Appellant at 40.
Panetti provides little evidence to support this claim of prosecutorial misconduct. He relies
solely on Alvarado’s signed federal affidavit (and accompanying interview transcript), asserting that,
in the state habeas proceeding, the prosecution pressured Alvarado to sign an affidavit on behalf of
the state. However, as the district court observed, Alvarado appears to lack credibility. As noted
above, Alvarado has prepared conflicting (signed and unsigned) affidavits for the state and federal
habeas courts. In light of this inconsistency, Alvarado’s signed federal affidavit, standing alone,
cannot support Panetti’s allegation of prosecutorial misconduct. As a result, Panetti cannot show that
prosecutorial misconduct was the cause of his failure to exhaust his state remedies. We therefore
2
We have previously held that Texas’s abuse of the writ doctrine constitutes an independent
and adequate state law ground for procedural default under federal law. See Fuller, 158 F.3d at 906;
Nobles, 127 F.3d at 423.
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conclude that Panetti cannot take advantage of the cause/prejudice exception to our procedural
default rules. We hold that four of Panetti’s claims are procedurally defaulted.
As we noted above, because Panet ti could not assert these four unexhausted claims in a
subsequent state habeas petition, we need not dismiss his federal petition without prejudice. Instead,
we can consider his exhausted claims on the merits. We therefore proceed to examine Panetti’s
competency claims.
The state appellate and habeas courts found that Panetti was competent to stand trial and to
waive counsel. In a habeas proceeding, we accord significant weight to the state courts’
determinations. We will not grant federal habeas relief unless the state courts’ adjudication of
Panetti’s claims (1) “result ed 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” or (2) “resulted in a decision that was based on an unreasonable determination of the facts
in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1),(2).
We have observed that “[d]ue process prohibits the prosecution of a defendant who is not
competent to stand trial.” Dunn v. Johnson, 162 F.3d 302, 305 (5th Cir. 1998). The Supreme Court
has held that “the standard for competence to stand trial is whether t he defendant has ‘sufficient
present ability to consult with his lawyer with a reasonable degree of rational understanding’ and has
‘a rational as well as factual understanding of the proceedings against him.’” Godinez v. Moran, 509
U.S. 389, 396 (1993) (quoting Dusky v. United States, 362 U.S. 402, 402 (1960)). Panetti claims
that his long history of mental illness (including schizo phrenia) as well as his behavior at trial
demonstrate his incompetency. During the courtroom proceedings, Panetti would at times ramble
or make seemingly irrelevant statements. Panetti claims that this behavior indicates that he did not
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have a rational or factual understanding of the proceedings.
The state courts considered this evidence (i.e., Panetti’s history of mental illness, as well as
his tendency to ramble and his proclivity for bizarre behavior), and nonetheless found that Panetti was
competent to stand trial. Panetti’s performance at trial supports the state courts’ conclusion that he
had a rational understanding of the proceedings against him and was able to assist in his own defense.
At trial, Panetti asserted an insanity defense. In support of that defense, Panetti attempted to elicit
testimony that his actions at the time of the murder were bizarre and unusual. Such testimony would
help support an insanity defense. Panetti also attempted to cast doubt on the memory of Alvarado
(the state’s primary witness to the crime). Panetti suggested to Alvarado that, due to her shock at
the time of the murder, she may not accurately remember the events surrounding the crime.
In light of the evidence that Panetti was able to formulate a trial strategy, we cannot say that
the state courts’ determination (that Panetti was competent to stand trial) was unreasonable. See
Dunn, 162 F.3d at 305-06 (examining the claim of a petitioner who initially proceeded pro se and
later claimed that he was incompetent to stand trial and waive counsel, and concluding that the
petitioner’s history of mental illness and delusional beliefs did not demonstrate that he was
incompetent).
Panetti’s claim that he was incompetent to stand trial also has a procedural component.
Panetti claims that, in light of his irrational behavior at trial, the state trial court should have held an
additional hearing to determine his competency. We have stated that “a trial court has a duty to hold
a competency hearing when the objective facts known to the trial court [are] sufficient to raise a bona
fide doubt as to [the petitioner’s] competency.” Id. at 305 (internal quotation marks omitted). In this
case, the trial court held two competency hearings prior to Panetti’s trial. In the second hearing, the
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jury was presented with evidence that Panetti tended to ramble and otherwise act irrationally, and
nonetheless fo und him competent to stand trial. No new indicia of incompetency surfaced during
Panetti’s trial. Therefore, the trial court did not have an obligation to hold another competency
hearing.
Panetti also claims that he was not mentally competent to waive counsel and proceed with his
defense pro se. The Supreme Court has made clear that a defendant’s competency to waive counsel
is judged by the same standard as his competency to stand trial. Godinez, 509 U.S. at 398. Because
Panetti was competent to stand trial, it follows that he was also competent to waive counsel. See
Dunn, 162 F.3d at 308.
However, determining that a petitioner was competent to waive counsel does not
automatically end the inquiry. We must also examine whether Panetti’s waiver of counsel was
knowing and voluntary. See Godinez, 509 U.S. at 400. It seems clear that Panetti’s waiver satisfies
this additional requirement. When Panetti asked to proceed pro se, the state trial court informed
Panetti of the ramifications of that decision. The court reminded Panetti that he was charged with
capital murder; that he faced the death penalty; that it would be very difficult for a non-lawyer to try
such a case; and told Panetti that the court would appoint counsel for him. Despite the warnings of
the trial court, Panetti elected to proceed pro se. He has failed to demonstrate that his decision was
involuntary or unknowing. See Dunn, 162 F.3d at 307 (refusing to find that the petitioner’s waiver
of counsel was not knowing and voluntary when the trial court had reminded the petitioner of “his
right to counsel and warned of the dangers and disadvantages of self-representation”).
We conclude that four of Panetti’s claims are procedurally defaulted and that his two
competency claims lack merit. Therefore, Panetti’s habeas petition is DENIED.
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