Green v. Lumpkin ( 2023 )

Case: 20-70021 Document: 00516711476 Page: 1 Date Filed: 04/13/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
April 13, 2023
No. 20-70021 Lyle W. Cayce
Clerk
Travis Dwight Green,
Petitioner—Appellee,
versus
Bobby Lumpkin, Director, Texas Department of
Criminal Justice, Correctional Institutions Division,
Respondent—Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:13-cv-1899
Before Willett, Ho, and Duncan, Circuit Judges.
Per Curiam:*
Twenty years ago, a Texas state court convicted Travis Dwight Green
of capital murder based on DNA evidence and sentenced him to death. Both
the conviction and capital sentence were later affirmed on both direct and
state habeas review. But a federal district court subsequently granted habeas
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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relief on two grounds—that Green had been incompetent to stand trial, and
that he received ineffective assistance of trial counsel.
It’s undisputed that neither of these claims was ever presented to the
state habeas court, so both claims were procedurally defaulted. The district
court nevertheless reached the merits, concluding that Green had
demonstrated both cause and prejudice sufficient to overcome the procedural
default on both claims.
We disagree. As to his incompetence claim, Green theorized that he
was excused from procedural default because his state habeas counsel had
abandoned him. We agree that attorney abandonment can, in some cases,
constitute cause sufficient to overcome procedural default. But to the extent
his attorney abandoned him, it did not result in Green’s forfeiture of his
claim. That’s because it was too late under state law to seek habeas relief on
his incompetence claim. Notably, neither Green nor the district court offers
any theory of timeliness to the contrary.
As to his claim of ineffective trial counsel, Green contends that he was
excused from procedural default because his state habeas counsel was
ineffective for failing to present this claim. But we think state habeas counsel
had sufficient reason not to proceed with this claim. It was Green who
repeatedly refused the assistance of trial counsel, after repeated warnings
from the trial court not to refuse counsel as a delay tactic. Green only sought
trial counsel after he was found guilty. Given the history of the proceedings
and the trial court’s repeated admonitions, trial counsel had good reason not
to seek a continuance.
Because we find that Green cannot overcome the procedural default
of either claim analyzed by the district court, we reverse.
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I.
In 1999, Green was arrested for the murder of Kristin Loesch.
Loesch’s boyfriend identified Green from a photo array as the man they had
met and spent time with the night before her murder. The Medical Examiner
concluded that Loesch had suffered sexual assault, strangulation, and blunt
force trauma to her abdomen. Green’s DNA matched that from samples
taken during Loesch’s autopsy.
After charging Green with capital murder, the State appointed two
attorneys to represent him at trial. Months later, Green filed a pro se motion
to dismiss his court-appointed attorneys. The court held a Faretta hearing
and upheld Green’s waiver of counsel as knowing and intelligent. See Faretta
v. California, 422 U.S. 806 (1975). The court also appointed Green’s
attorneys to serve as standby counsel and “consultants.”
The following month, the court appointed Tyrone Moncriffe to
replace one of Green’s standby attorneys. Several months later, Green’s
second standby attorney was permitted to withdraw due to Green’s refusal
to communicate with him or allow him to hire an investigator. Green then
filed a motion to dismiss Moncriffe as well. The court denied it, leaving
Moncriffe as Green’s sole standby counsel for the remainder of pre-trial and
trial proceedings.
Soon after, a new trial judge began presiding over Green’s case and a
second Faretta hearing was held. The court, again, found Green’s waiver of
counsel to be knowing and intelligent. Green then filed yet another motion
to dismiss the court-appointed investigator and Moncriffe as standby
counsel. During the court’s hearing on this motion, the court announced it
would sua sponte order Green to be psychologically evaluated for competency
to stand trial and insanity. Neither evaluation was conducted at that time.
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On the fifth day of voir dire, Moncriffe notified the court of his
concern as to Green’s competency. In response, the court ordered a
competency evaluation “out of an abundance of caution.” Dr. Mark
Rubenzer evaluated Green and concluded that he did “not appear to have a
serious mental disorder,” that he had “sufficient present ability to consult
with his attorney with a reasonable degree of rational understanding, and
[had] a rational and factual understanding of the charge against him,” and
that he was “COMPETENT to stand trial.” The case proceeded to trial
the day Dr. Rubenzer’s report was filed.
The day after the jury found Green guilty of capital murder, Green
reasserted his right to an attorney. Moncriffe assumed Green’s
representation, and the penalty phase commenced one hour later.
Moncriffe called eight lay witnesses, including Green’s mother, brother, and
cousin. Green’s mental condition was the central theme of Moncriffe’s
closing argument: “One thing I know about Americans, too. We’re not a
society that kill [sic] sick people. We don’t kill sick people. And I want you
to think about that.” After the jury’s deliberations, the trial judge sentenced
Green to death.
A.
Ken Goode was appointed to represent Green on direct appeal.
Goode raised nine points of error before the Texas Court of Criminal
Appeals, including that the trial court erred in permitting Green to waive his
right to counsel. The court overruled all nine points and affirmed Green’s
conviction and sentence. See Ex parte Green, 2013 WL 831504, at *1 (Tex.
Crim. App. Mar. 6, 2013).
It is the conduct of state habeas proceedings that is at issue in this
appeal. Ken McLean was appointed to represent Green in his state habeas
proceedings. McLean filed an application for writ of habeas corpus in state
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court that raised seven claims: three had been denied on direct appeal and
four consisted of headings without supporting law or facts. The petition
stated: “Applicant intends to develop the facts and law of these extra-record
grounds for habeas relief with all deliberate speed.” Importantly, the
application did not address Green’s competency to stand trial or Moncriffe’s
representation at the penalty phase—thereby creating the procedural default
issue presented in this appeal.
The court subsequently granted McLean’s request to extend the
deadline to supplement Green’s habeas petition, and set the new deadline for
November 12, 2001. That deadline lapsed without any word from McLean.
For the next six years, McLean had no contact with Green and made no
filings on his behalf.
In 2007, the State moved for disposition of Green’s habeas petition,
and the court ordered “both parties [to] submit any additional filings on or
before December 19, 2007.” McLean subpoenaed Green’s most recent
prison psychological evaluation and then filed a brief “Statement of
Counsel” with the court. In it, McLean stated that he “cannot in good faith”
recommend that habeas relief be granted, repudiated Green’s claims, and
mischaracterized the contents of Green’s psychological evaluation.
McLean passed away the following year, and the court appointed
Daniel Easterling to represent Green. Four years later, the trial court
adopted the State’s proposed findings of fact without an evidentiary hearing.
Ex parte Green, 2013 WL 831504, at *1. The Court of Criminal Appeals
(CCA) subsequently adopted the trial court’s findings and conclusions and
denied Green’s habeas petition on March 6, 2013. Id.B.
Green timely filed a habeas petition in federal district court raising
thirteen claims for relief. Most claims were dismissed, but the district court
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found Green had demonstrated cause and prejudice sufficient to overcome
procedural default as to the following claims: (1) Green had been
incompetent to stand trial in violation of his Sixth and Fourteenth
Amendment rights; and (2) Green received ineffective assistance of trial
counsel (“IATC”) in violation of his Sixth Amendment right, when
Moncriffe failed to seek another competency hearing or a continuance to
investigate mitigating evidence.
Because Green did not raise his incompetency or IATC claim in state
court, they are procedurally defaulted. 28 U.S.C. § 2254(b)(1). The district
court was thus permitted to reach the merits of these claims only if Green
demonstrated both (1) “cause for the default” and (2) “actual prejudice as a
result of the alleged violation of federal law.” Coleman v. Thompson, 501 U.S.
722, 724 (1991), holding modified by Martinez v. Ryan, 566 U.S. 1 (2012). As
to Green’s incompetency claim, the court found that Green had been
abandoned by his state habeas counsel, McLean, thus satisfying cause under
Maples v. Thomas, 565 U.S. 266 (2012). As to Green’s IATC claim, the court
found that McLean provided constitutionally deficient representation as
state habeas counsel, thereby establishing cause under Martinez, 566 U.S. at
17, and Trevino v. Thaler, 569 U.S. 413 (2013). Following a six-day
evidentiary hearing, the district court granted Green’s habeas petition on
both grounds.
II.
A.
We first consider whether Green has demonstrated cause and
prejudice sufficient to overcome the procedural default of his incompetency
claim. Cause is established when “something external to the petitioner,
something that cannot fairly be attributed to him . . . ‘impeded [his] efforts
to comply with the State’s procedural rule.’” Coleman, 501 U.S. at 753
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(alteration in original) (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)).
“A factor is external to the defense if it cannot fairly be attributed to the
prisoner.” Davila v. Davis, 137 S. Ct. 2058, 2065 (2017) (cleaned up). To
show prejudice, Green must demonstrate a reasonable probability that the
state court would have granted relief on the incompetency claim had it been
raised. See Newbury v. Stephens, 756 F.3d 850, 872 (5th Cir. 2014).
The Supreme Court has held that an attorney’s abandonment of his
or her client constitutes cause. See Maples, 565 U.S. at 289 . The reason for
this is simple: When an attorney abandons his or her client without notice, it
“sever[s] the principal-agent relationship.” Id. at 281. At that point, the
attorney’s actions and omissions can no longer “be attributed to the
[petitioner].” Davila, 137 S. Ct. at 2065 (cleaned up).
On the other hand, it is well-established that a state-habeas attorney’s
negligence does not satisfy cause, because the agency relationship remains
intact, and the petitioner must “bear the risk of attorney error.” Coleman,
501 U.S. at 753 (cleaned up). See also Maples, 565 U.S. at 282 (noting “the
essential difference between a claim of attorney error, however egregious,
and a claim that an attorney had essentially abandoned his client”).
The parties dispute whether McLean’s conduct rose to the level of
abandonment, which satisfies cause, or constituted extreme negligence,
which does not. But we need not ultimately decide this question. That’s
because any abandonment that might have occurred here did not take place
until after the November 12, 2001 deadline for McLean to supplement
Green’s habeas petition. So even a diligent counsel who did not abandon his
client could not have affected the proceedings, because any action by counsel
would have been untimely.
Texas law requires capital habeas petitioners to present all state-
habeas claims in their initial application. Tex. Code Crim. Proc. art.
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11.071 § 5(a). Absent an applicable statutory exception—i.e., unavailability
of the claim or actual innocence, see id.—the state court will not entertain
claims that appear for the first time in a successive application. Muniz v.
Johnson, 132 F.3d 214, 221 (5th Cir. 1998) (citing Ex parte Davis, 947 S.W.2d
216, 221 (Tex. Crim. App. 1996)). Green conceded that, because McLean
“had not asserted, even as a claim heading, that Mr. Green was tried while
incompetent, . . . any attempt by him to plead the claim after the filing
deadline would have been treated as an abuse of the writ.” See Tex. Code
Crim. Proc. art. 11.071 § 5(a), (f). Nor could Green satisfy a statutory
exception because, as the district court found, his “contention that he was
incompetent to stand trial . . . was ascertainable prior to his original
petition.”
Tellingly, neither Green nor the district court has even bothered to
articulate, let alone substantiate, a theory of timeliness. They simply ignore
the issue entirely. This case is unlike Maples, for instance, where counsel’s
abandonment resulted in the petitioner’s missing an appeal deadline. See 565
U.S. at 288. 1
1
Texas law does endow the Court of Criminal Appeals with discretion to “establish
a new filing date for the application” or “appoint new counsel to represent the applicant
and establish a new filing date for the application” when counsel fails to timely file a proper
habeas application. Tex. Code Crim. Proc. art. 11.071, § 4A(b)(3). Our court has
recognized this authority, and the CCA has exercised it on occasion. See Hall v. Thaler,
504 F. App’x 269, 284 (5th Cir. 2012) (the CCA may “allow[] a mulligan after finding it
was not the client’s fault that [counsel] had filed an incomplete application”). See also, e.g.,
Ex parte Medina, 361 S.W.3d 633, 635 (Tex. Crim. App. 2011) (appointing new counsel and
setting a new filing deadline after finding petitioner’s habeas application improper because
it “merely states factual and legal conclusions” without “set[ting] out specific facts”); Ex
parte Kerr, 64 S.W.3d 414 (Tex. Crim. App. 2002) (holding that petitioner’s third writ
application, filed after the court initially denied habeas relief, did not constitute a
subsequent writ and was timely filed because the initial application was improper).
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In sum, the default of Green’s incompetency claim is attributable to
McLean’s failure to raise it in Green’s initial habeas petition—rather than
any subsequent abandonment under Maples. See Ibarra v. Thaler, 691 F.3d
677, 685 n.1 (5th Cir. 2012) (“Because counsel for [petitioner] who filed his
first state habeas application did not abandon him, but simply did not raise
issues [petitioner] now would like to argue, Maples is inapposite.”), vacated
in part on other grounds on reh’g sub nom., Ibarra v. Stephens, 723 F.3d 599 (5th
Cir. 2013); Towery v. Ryan, 673 F.3d 933, 940 (9th Cir. 2012) (per curiam)
(“The failure to raise a claim, even a viable one, does not amount to
abandonment.”), overruled on other grounds by McKinney v. Ryan, 813 F.3d 798(9th Cir. 2015) (en banc). Cf. Maples, 565 U.S. at 283 (finding abandonment
where counsel severed attorney-client relationship “long before the default
occurred”). 2
B.
Next, we consider whether Green has overcome the procedural
default of his IATC claim. Ineffective assistance of counsel in state-habeas
proceedings establishes cause to overcome the default of a “substantial”
Neither Green nor the district court mention § 4A, and for good reason: Even
assuming relief might have been available here, the statute makes clear that it’s available
only as a matter of discretion by the CCA. Here, Green presented his concerns about
attorney abandonment and sabotage directly to the CCA, and the CCA did nothing. Given
that the CCA has in the past exercised its § 4A discretion both sua sponte and upon written
notification from a petitioner, the CCA’s inaction here must be construed as a decision to
decline to exercise whatever discretion available to it here under the statute. See, e.g., Ex
parte Mullis, 2012 Tex. Crim. App. WR-76,632-01U (CCA exercising § 4A authority upon
letter from petitioner); Ex parte Blanton, 2005 WL 8154137, at *1 (Tex. Crim. App. June
22, 2005) (CCA exercising § 4A authority sua sponte).
2
Green also suggests that his incompetence throughout the state-habeas
proceedings provide an alternative basis for satisfying cause. This argument is foreclosed
by our precedent. See Gonzalez v. Davis, 924 F.3d 236, 244 (5th Cir. 2019) (per curiam)
(holding mental incompetency does not satisfy cause to excuse default).
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IATC claim. Martinez, 566 U.S. at 9; see Trevino, 569 U.S. at 429 (extending
Martinez to Texas’s procedural system). Our review of counsel’s
representation is “highly deferential.” Strickland v. Washington, 466 U.S.
668, 689 (1984). A “fair assessment” requires “that every effort be made to
eliminate the distorting effects of hindsight” and “evaluate the conduct from
counsel’s perspective at the time.” Id. We must “affirmatively entertain the
range of possible reasons [petitioner’s] counsel may have had for proceeding
as they did.” Cullen v. Pinholster, 563 U.S. 170, 196 (2011) (cleaned up).
Here, even if Green has a substantial IATC claim, he cannot show that
McLean was ineffective for failing to present it. Under the existing record,
McLean would have known the following: trial counsel repeatedly asked the
court for a psychiatric examination of Green, including just before trial; the
trial court repeatedly admonished Green as to the grave risks inherent in
proceeding pro se; Green’s waiver of counsel was subjected to two Faretta
hearings and twice found to be knowing and intelligent; a court-ordered
psychological evaluation determined Green was not mentally ill and indeed
competent to stand trial—just two days earlier and in direct response to trial
counsel’s earlier expressed concerns that Green had mental illness; Green
repeatedly resisted counsels’ attempts to hire an investigator; and the trial
court frequently warned Green that proceeding pro se would not entitle him
to “call time out,” request “any slowing down, going back,” or otherwise
“delay” proceedings should he later decide to reassert his right to counsel.
Nonetheless, the district court found that McLean should have raised
claims that Green’s penalty-phase counsel failed to “request[] a competency
hearing and [seek] a continuance to further investigate Green’s mental
condition.” But on the record before him, McLean could reasonably have
expected that any continuance request Moncriffe made would have been
denied; and certainly any request for a second competency evaluation would
have also been denied—along with jeopardizing Moncriffe’s credibility with
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the court. As the district court acknowledged: “When Green effectively fired
his counsel months before trial . . . he placed an insurmountable roadblock in
the way” of punishment-phase preparations. See Sexton v. Beaudreaux, 138
S. Ct. 2555, 2559 (2018) (counsel may reasonably choose not to bring claims
or pursue options that counsel “reasonably . . . determined . . . would have
failed”); Rompilla v. Beard, 545 U.S. 374, 383 (2005) (counsel is not
unreasonable for failing to pursue something counsel has “good reason to
think . . . would be a waste”); Strickland, 466 U.S. at 691 (when counsel has
“reason to believe that pursuing certain investigations would be fruitless . . .
counsel’s failure to pursue those investigations may not later be challenged
as unreasonable”).
***
Because Green is unable to overcome the procedural default of his
claims, the district court was procedurally barred from evaluating the merits.
We reverse.
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