United States Court of Appeals
Fifth Circuit
F I L E D
REVISED MAY 18, 2004
May 17, 2004
IN THE UNITED STATES COURT OF APPEALS
Charles R. Fulbruge III
FOR THE FIFTH CIRCUIT Clerk
_____________________
No. 04-70019
_____________________
KELSEY PATTERSON,
Petitioner - Appellant,
versus
DOUG DRETKE, DIRECTOR, TEXAS
DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION,
Respondent - Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Texas
_________________________________________________________________
Before JOLLY, JONES, and BENAVIDES, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
This appeal presents the question of whether the petitioner is
mentally competent to be put to death under the rationale of Ford
v. Wainwright, 477 U.S. 399 (1986). Kelsey Patterson was convicted
in the Texas courts of capital murder and sentenced to death. In
an unpublished opinion in May 2003, this court affirmed the
district court’s denial of federal habeas relief. We granted a
certificate of appealability for Patterson’s claim that he was then
incompetent to be executed, but dismissed that claim without
prejudice in order to allow the state court to consider Patterson’s
claim of incompetency to be executed, in the light of the evidence
presented at the federal evidentiary hearings in 1999, as well as
any evidence of his condition subsequent to that time, after an
execution date had been scheduled.
I
On December 23, 2003, the convicting court ordered the
issuance of a death warrant, setting Patterson’s execution date for
May 18, 2004. On January 28, 2004, Patterson’s counsel filed a
motion in the convicting court to determine Patterson’s competency
to be executed under Article 46.05 of the Texas Code of Criminal
Procedure.1 A supplement to that motion was filed on March 16,
1
Article 46.05 provides, in pertinent part:
(a) A person who is incompetent to be
executed may not be executed.
....
(d) On receipt of a motion filed under
this article, the trial court shall determine
whether the defendant has raised a substantial
doubt of the defendant’s competency to be
executed on the basis of:
(1) the motion, any attached documents,
and any responsive pleadings; and
(2) if applicable, the presumption of
competency under Subsection (e).
(e) If a defendant is determined to have
previously filed a motion under this article,
and has previously been determined to be
competent to be executed, the previous
adjudication creates a presumption of
competency and the defendant is not entitled
to a hearing on the subsequent motion filed
2
2004. In support of the motion, Patterson’s counsel submitted his
medical and psychiatric records from the Texas Department of
Criminal Justice, affidavits from a psychologist and a spiritual
counselor, and recent letters written by Patterson.
Patterson’s medical and psychiatric records indicate that,
since July 2001, Patterson has been evaluated every 90 days and
that he is not taking any psychotropic medications. As his counsel
acknowledged in the motion, Patterson’s prison records reflect that
he remains docile when left alone. The spiritual advisor stated in
her affidavit that Patterson told her that he had received a stay
in 1998 and that in 1999, the Texas Court of Criminal Appeals had
acquitted him on an “innocence” claim. He also told her that his
only friend is the State of Texas. The psychologist stated in his
affidavit that, based on his review of Patterson’s recent writings,
under this article, unless the defendant makes
a prima facie showing of a substantial change
in circumstances sufficient to raise a
significant question as to the defendant’s
competency to be executed at the time of
filing the subsequent motion under this
article.
(h) A defendant is incompetent to be
executed if the defendant does not understand:
(1) that he or she is to be executed and
that the execution is imminent; and
(2) the reason he or she is being
executed.
At the hearing on Patterson’s motion, the convicting court
expressly stated that it was not applying the presumption of
competency in subsection (e).
3
Patterson continues to have bizarre delusions; that there is no
credible evidence that he is malingering his delusions or their
effects on his functioning; that it is likely that his chronic
delusions impair his rational understanding of his conviction and
pending execution; and that his statements raise serious concerns
whether he has a factual understanding of his pending execution.
Patterson’s handwritten letters to various courts and the Texas
Board of Pardons and Parole contain references to his “rights in
amnesty” and a “permanent” stay of execution “based on innocence.”
However, they also contain references to the execution date “told
to me by Major Miller” and requests to “stop and remove and prevent
the execution.” For example, in a letter to the Texas Court of
Criminal Appeals in February 2004, Patterson states that he needs
to “conduct my legal work needed to stop the execution murder
assaults injury execution date murder machines grave graveyard
murder ....”
The convicting court conducted a hearing on the motion on
March 26, 2004. The court noted that it had reviewed the documents
submitted by Patterson in support of his motion, and that it was
taking judicial notice of the records of prior proceedings in
Patterson’s case, including the fact that hearings were conducted
in December 1997 and January 1998, and that the court had made a
factual finding that Patterson’s mental illness did not prevent him
from realizing that he was going to be executed and the reason for
4
his execution. At the March 2004 hearing, the court questioned
Patterson:
THE COURT: Mr. Patterson, do you
understand that I’ve set your execution date
for May the 18th of 2004?
MR. PATTERSON: No, I don’t for the
reason of this: I have been told I have been
stayed from execution based on innocence by
the Texas Court of Criminal Appeals and
stayed, stayed, stayed, always stayed from
execution.
THE COURT: Okay.
MR. PATTERSON: By a number of state
district courts, even acquitted, exonerated,
not guilty of the charge of capital murder.
THE COURT: Did you receive a copy of the
warrant that I signed?
MR. PATTERSON: No.
THE COURT: Okay. Do you know or
understand that you’re convicted of killing
Dorothy Harris [and] Louis Oates?
MR. PATTERSON: Do I know?
THE COURT: Do you know that you’ve been
convicted; not whether or not you agree with
it, but do you know that you’ve been convicted
of that offense?
MR. PATTERSON: I’ve heard it stated.
Later in the hearing, Patterson was provided a copy of the warrant
setting his execution date. The following colloquy then took
place:
THE COURT: Do you have a copy of the
warrant?
MR. PATTERSON: This?
5
THE COURT: Yes, sir. Do you understand
that I’ve set your execution date for May
18th, 2004?
MR. PATTERSON: I get what you’re saying.
And I said my rights of amnesty.
THE COURT: My rights to amnesty. Is
that what you said?
MR. PATTERSON: Yeah.
....
THE COURT: .... Mr. Patterson, do you
understand that there’s no more stays?
....
MR. PATTERSON: No, I do not.2
On March 31, 2004, the convicting court entered an order
denying Patterson’s motion and his request for appointment of two
mental health experts to examine him. The court concluded that
Patterson had failed to raise a substantial doubt as to his
competency to be executed. Because Article 46.05 does not provide
for an appeal from such a decision, Patterson has exhausted his
state remedies. See Ex parte Caldwell, 58 S.W.3d 127, 130 (Tex.
Cr. App. 2000).
II
2
Patterson asserts that the state court judge did not purport
to consider her colloquies with Patterson in determining that he
had not made a substantial showing of incompetency. He therefore
contends that this court should not consider those colloquies as
part of the evidence presented in the state court proceeding. The
fact that the court did not explicitly rely on those statements
does not mean that they were not in evidence before the court.
6
Patterson filed a petition for federal habeas relief and a
motion for stay of execution, raising only the claim that he is
incompetent to be executed. The State does not contend that
Patterson’s petition should be treated as successive under 28
U.S.C. § 2244(b). In a memorandum opinion filed on May 11, 2004,
the district court denied habeas relief, concluding that the state
court’s decision that Patterson had failed to make a substantial
showing of incompetency to be executed was not based on an
unreasonable determination of the facts in the light of the
evidence presented in the state court proceedings. The district
court observed that Patterson has consistently expressed the
delusions that he killed the victims only because devices implanted
in his body by conspirators made him do it, and that he has
received a permanent stay of execution based upon his innocence.
However, the district court also noted that, in his recent
writings, Patterson has made numerous requests that his execution
be halted. The district court referred specifically to two of
Patterson’s pro se petitions, one filed in March 2001, and one
filed in March 2004, copies of which are attached to the district
court’s memorandum opinion. In each of these form petitions,
Patterson filled in the blanks that he was requesting relief from
the sentence of death, and stated that he received that sentence
for having been convicted of capital murder. In his March 2004
petition, Patterson asked the court to “stop and remove and prevent
the execution murder death warrants execution date execution hell
7
that is being did to me can I get free from death row....”3 The
district court concluded that this evidence shows that Patterson
understands both the fact of his execution and the reason for it
and consequently denied relief. The district court then granted
Patterson’s application for a certificate of appealability.
III
A habeas petitioner may not obtain relief with respect to any
claim that was adjudicated on the merits in state court proceedings
unless the state court’s adjudication of the claim
(1) resulted 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). “Section 2254(d)(1) provides the standard of
review for questions of law and mixed questions of law and fact.”
Caldwell v. Johnson, 226 F.3d 367, 372 (5th Cir. 2000). A state
court’s decision is “contrary to ... clearly established Federal
law, as determined by the Supreme Court of the United States ... if
the state court arrives at a conclusion opposite to that reached by
th[e] Court on a question of law or if the state court decides a
3
Patterson asserts that the March 2004 pro se petition was
filed three days after the state court hearing on his motion and
thus was not a part of the record that was before the state
convicting court when it rendered its decision.
8
case differently than th[e] Court has on a set of materially
indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 412-13
(2000). A decision “involve[s] an unreasonable application of []
clearly established Federal law, as determined by the Supreme Court
of the United States ... if the state court identifies the correct
governing legal principle from th[e] Court’s decisions but
unreasonably applies that principle to the facts of the prisoner’s
case.” Id. at 413. Section 2254(d)(2) pertains to questions of
fact. Moore v. Johnson, 225 F.3d 495, 501 (5th Cir. 2000). A
state court’s findings of fact are presumed to be correct unless
the petitioner rebuts the presumption by “clear and convincing
evidence.” 28 U.S.C. § 2254(e)(1).
As the district court noted, a state court’s determination
that a prisoner is competent to be executed is a factual finding
entitled to the presumption of correctness under Section
2254(e)(1). See Barnard v. Collins, 13 F.3d 871, 874 (5th Cir.
1994). In adjudicating Patterson’s motion to determine competency
under Article 46.05, however, the state court did not find that
Patterson was competent to be executed. Instead, it ruled only
that Patterson was not entitled to the appointment of psychiatric
experts to examine him and was not entitled to an evidentiary
hearing, because he had not raised a substantial doubt as to his
competency to be executed. The district court treated the state
court’s decision as a factual determination, and applied Section
2254(d)(2), citing Delk v. Cockrell, No. 02-40326 (5th Cir. Feb.
9
28, 2002) (treating state court’s determination that Delk was
competent to be executed, as well as its determination that Delk
had failed to make a substantial showing of incompetency under
Article 46.05, as factual findings entitled to deference under §
2254(e)(1)), and Caldwell v. Johnson, 226 F.3d 367, 372 n.6 (5th
Cir. 2000) (“To the extent Caldwell challenges the state trial
judge’s holding that he had not made a substantial showing of
incompetence, the challenge is without merit -- even if we were not
to accord that finding the deference it is due.”).
Patterson argues, however, that Section 2254(d)(1) provides
the appropriate standard of review. This is so because the state
court’s determination that he failed to make a substantial showing
that he is incompetent to be executed is a mixed question of law
and fact. Thus he argues that the state court’s decision is both
contrary to, and an unreasonable application of, Ford v.
Wainwright, 477 U.S. 399 (1986). Alternatively, he contends that,
if the state court’s decision is a factual determination governed
by § 2254(d)(2) and § 2254(e), he has rebutted the presumption of
correctness, and that the state court’s decision is based on an
unreasonable determination of the facts.
The state court’s decision is not an unreasonable
determination of the facts in the light of the evidence presented
to it. That evidence indicates that, although Patterson is
mentally ill and expresses the delusional belief that he has been
granted amnesty and a permanent stay of execution, his writings
10
also repeatedly request that various courts stop or stay his
pending execution. The prison medical and disciplinary records
contain nothing to indicate that Patterson’s condition has
deteriorated since the state court’s previous determination that he
was competent to be executed. It is true that Dr. Rogers expresses
doubt about Patterson’s rational and factual understanding that he
is to be executed; however, he does not address Patterson’s
requests that his execution be halted; nor does he explain the
inconsistency between those requests seeking relief from execution
and his opinion that Patterson may lack understanding that he is
going to be executed and the reason why.
IV
Even if we assume that Patterson is correct, and that we are
not bound by Delk and Caldwell to accord the state court’s decision
the deference owed to factual determinations under sections
2254(d)(2) and 2254(e), Patterson nevertheless has not shown that
the state court’s decision is contrary to, or an unreasonable
application of Ford.
As this court observed in Delk, Article 46.05 essentially
codifies Ford. Delk, No. 02-40326, at p. 4. Justice Marshall’s
opinion for a plurality of the Court states that “[i]t may be that
some high threshold showing on behalf of the prisoner will be found
a necessary means to control the number of nonmeritorious or
repetitive claims of insanity.” Id. at 417. In his concurring
opinion, Justice Powell observed that, “in order to have been
11
convicted and sentenced, petitioner must have been judged competent
to stand trial, or his competency must have been sufficiently clear
as not to raise a serious question for the trial court.” Id. at
425-26 (Powell, J., concurring). Accordingly, Justice Powell
concluded that “[t]he State therefore may properly presume that
petitioner remains sane at the time sentence is to be carried out,
and may require a substantial threshold showing of insanity merely
to trigger the hearing process.” Id. at 426 (Powell, J.,
concurring).
The threshold showing of incompetency to be executed required
in Article 46.05 is a “substantial doubt.” Patterson does not
challenge the adequacy of the procedures established by Article
46.05. Instead, he contends that the state court’s decision that
he had failed to raise a substantial doubt as to his competency to
be executed is objectively unreasonable. He argues that the
evidence he presented in support of his motion is “materially
indistinguishable” from the facts in Ford, and that, because the
Supreme Court determined that Ford had raised a viable claim under
the Eighth Amendment, the state court’s decision that Patterson
failed to raise a substantial doubt as to his competency is
contrary to Ford. Patterson also contends that the state court’s
decision is an unreasonable application of Ford’s threshold
standard to the particular facts of this case, or alternatively, an
unreasonable resolution of the facts in the light of the evidence
presented to the state court. Finally, he contends that, when this
12
Court granted a certificate of appealability for this claim, it
determined that he had made a “substantial showing” that he is not
competent to be executed. Patterson argues that the district court
should have held an evidentiary hearing and that it erred by not
considering the totality of the evidence.
Contrary to Patterson’s assertion, the facts of his case are
distinguishable from those in Ford. Ford was convicted of murder
and sentenced to death in 1974. Although no question of his
competence was raised at the time of his offense or at trial, he
became delusional beginning in 1982. A psychiatrist who
interviewed Ford in 1983 “concluded that Ford had no understanding
of why he was being executed, made no connection between the
homicide of which he had been convicted and the death penalty, and
indeed sincerely believed that he would not be executed because he
owned the prisons and could control the Governor through mind
waves.” 477 U.S. at 403. The evidence presented by Patterson is
not so precisely a fit.
Unlike Ford, whose competence was called into question eight
years after his conviction, Patterson’s competence has been at
issue throughout the proceedings, and has been the subject of
evidentiary hearings in state and federal court. At the state
habeas evidentiary hearing in December 1997, Patterson acknowledged
that he had been convicted of killing Louis Oates and Dorothy
Harris and that the State intended to execute him by lethal
injection for that offense. Although Patterson states repeatedly
13
in his recent letters that he has been given a permanent stay of
execution, amnesty, and a pardon for innocence, those same letters
also contain repeated requests to stop his pending execution. The
state convicting court’s decision that Patterson failed to raise a
“substantial doubt” as to his competency to be executed is
therefore not contrary to Ford.
Furthermore, the state court did not unreasonably apply Ford’s
threshold standard to the facts of Patterson’s case. The court
considered the documentary evidence proffered by Patterson, as well
as the records of the prior proceedings involving Patterson, and
conducted a hearing on the motion. Although Patterson stresses the
evidence of his delusional belief that he has been pardoned and has
received a permanent stay of execution, Ford does not require the
state convicting court to ignore other evidence indicating that,
despite his delusional beliefs, Patterson is aware that he is going
to be executed for the capital murders of Louis Oates and Dorothy
Harris in determining whether Patterson has made the threshold
showing of a “substantial doubt” as to his competency to be
executed.
Finally, the fact that this court granted a certificate of
appealability for Patterson’s claim does not make the state court’s
decision unreasonable. The standards governing the issuance of a
certificate of appealability are governed by federal law, and are
not binding on Texas courts applying the “substantial doubt”
standard in Article 46.05. As Patterson’s counsel conceded at the
14
state court hearing, this court did not purport to construe the
meaning of Article 46.05.
Because the state court did not unreasonably determine that
Patterson had failed to raise a “substantial doubt” as to his
competence to be executed, the district court did not abuse its
discretion by failing to conduct another evidentiary hearing on
Patterson’s claim.
V
For the foregoing reasons, the judgment of the district court
is AFFIRMED. Patterson’s motion for a stay of execution is DENIED.
15