United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
May 9, 2006
FIFTH CIRCUIT
Charles R. Fulbruge III
____________ Clerk
No. 04-70045
____________
SCOTT LOUIS PANETTI,
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 Western District of Texas
Before HIGGINBOTHAM, GARZA, and STEWART, Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
Scott Louis Panetti was convicted of capital murder in the state court of Texas and sentenced
to death. Panetti argues that he is presently incompetent to be executed. Based on a Certificate of
Appealability issued by the district court, Panetti appeals the district court’s denial of federal habeas
relief.
I
Panetti has been sentenced to death in Texas state court for murdering his wife’s parents.
Shortly before his scheduled execution date, he petitioned the state court for a determination of his
competency to be executed. The state habeas court appointed two mental health experts: Mary
Anderson, a psychiatrist, and George Parker, a clinical psychologist. Anderson and Parker filed a
joint report, concluding that Panetti knows that he will be executed and that he has the ability to
understand the reason he is to be executed. Based on this report, but without holding a competency
hearing, the state habeas court held that Panetti was competent to be executed.
Panetti petitioned for a writ of habeas corpus in federal court. The district court held that the
state court’s failure to hold a competency hearing at which Panetti could present evidence was
contrary to Ford v. Wainwright, 477 U.S. 399 (1986). On that basis, the district court held an
evidentiary hearing and declined to defer to the state court’s finding of competency. Panetti
presented the testimony of four expert witnesses: Mary Alice Conroy, a clinical and forensic
psychologist; Susana Rosin, a clinical psychologist; Seth Silverman, a psychiatrist; and Mark
Cunningham, a clinical and forensic psychologist. The State presented Parker and Anderson’s expert
testimony, as well as three fact witnesses who had observed Panetti during his period of incarceration.
The district court found that Panetti suffered from “some form of mental illness,” which some
of the doctors diagnosed as schizoaffective disorder. Panetti v. Dretke, 401 F. Supp.2d 702, 707
(W.D.Tex. 2004). Although he has the “cognitive functionality to communicate coherently much of
the time,” id. at 708, he suffers from “grandiosity and a delusional belief system in which he believes
himself to be persecuted for his religious activities and beliefs,” id. at 707. In particular, Panetti told
2
the doctors who interviewed him that he believes the State is “in league with the forces of evil to
prevent him from preaching the Gospel.” Id. at 709. Nevertheless, the district court found based on
the testimony of the experts that Panetti is aware that he will be executed, that he committed the
murders for which he was convicted and sentenced to death, and that the “State’s stated reason for
executing him is that he committed two murders.” Id. at 711. On this basis, the district court held
that Panetti was competent to be executed. Id.
II
In a habeas corpus appeal, we review the district court’s findings of fact for clear error and
its conclusions of law de novo. Ramirez v. Dretke, 396 F.3d 646, 649 (5th Cir. 2005). The district
court in this case declined to apply the deferential standard of review ordinarily required by the Anti-
terrorism and Effective Death Penalty Act (“AEDPA”) because the state court failed to hold an
evidentiary hearing as contemplated by Ford v. Wainwright, 477 U.S. 399 (1986). Because we affirm
the judgment of the district court, we need not decide whether this was error.1
1
The respondent relies on Valdez v. Cockrell, 274 F.3d 941, 946 (5th Cir. 2001), in which
we held that “a full and fair hearing is not a prerequisite to the operation of AEDPA’s deferential
scheme.” Accordingly, he argues that the state court’s finding that Panetti is competent is entitled
to deference even though it may have been made without a hearing. Panetti relies on Ford v.
Wainwright, 477 U.S. 399 (1986), a pre-AEDPA case in which a plurality of the Supreme Court
stated
any procedure that precludes the prisoner or his counsel from presenting material
relevant to his sanity or bars consideration of that material by the factfinder is
necessarily inadequate. “[T]he minimum assurance that the life-and-death guess will
be a truly informed guess requires respect for the basic ingredient of due process,
namely, an opportunity to be allowed to substantiate a claim before it is rejected.”
Id. at 414 (quoting Solesbee v. Balkcom, 339 U.S. 9, 23 (1950) (Frankfurter, J., dissenting)). Justice
O’Connor, joined by Justice White concurred, stating that due process required providing such a
prisoner the opportunity to be heard. Id. at 429-30 (O’Connor, J., concurring).
3
Panetti argues that the district court employed an erroneous legal standard in evaluating
whether he was competent to be executed. The district court held that it is sufficient that Panetti
knows: 1) that he committed two murders; 2) that he will be executed; and 3) that the reason the state
has given for that execution is his commission of those murders. Panetti argues that the Eighth
Amendment forbids the execution of a prisoner who lacks a rational understanding of the State’s
reason for the execution. Panetti contends that this understanding is lacking in his case because he
believes that, although the State’s purported reason for the execution is his past crimes, the State’s
real motivation is to punish him for preaching the Gospel. Panetti argues that this rule is compelled
by Ford v. Wainwright, 477 U.S. 399 (1986).
In Ford, the Supreme Court held that Florida’s procedure by which the Governor determined
a prisoner’s competency in an ex parte proceeding violated due process. The standard employed
under Florida’s statute was whether the defendant had “the mental capacity to understand the nature
of the death penalty and the reasons why it was imposed upon him.” Id. at 403-04 (quoting FLA.
STAT. § 922.07(2)). A psychiatrist who had interviewed Ford testified that he 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 seriously believed that he would not be executed because
he owned the prisons and could control the Governor through his mind waves.” Id. at 403. A
majority of the Court held that the Eighth Amendment barred executing the insane and that Florida’s
ex parte procedure violated due process. A four member plurality stated that, “It is no less abhorrent
today than it has been for centuries to exact in penance the life of one whose mental illness prevents
him from comprehending the reasons for the penalty or its implications.” Id. at 417. The plurality
based its statement on the lack of “retributive value [in] executing a person who has no
4
comprehension of why he has been singled out and stripped of his fundamental right to life” and “the
natural abhorrence civilized societies feel at killing one who has no capacity to come to grips with his
own conscience or deity.” Id. at 409. The Court remanded for a de novo evidentiary hearing. Id.
at 418. The majority did not, however, address what competency standard the Eighth Amendment
required.
Justice Powell, believing that the plurality’s exposition of the appropriate standard was
inadequate, wrote a concurring opinion. After surveying the historical authorities, Justice Powell
wrote:
A number of States have more rigorous standards, but none disputes the need to require that
those who are executed know the fact of their impending execution and the reason for it.
Such a standard appropriately defines the kind of mental deficiency that should trigger
the Eighth Amendment prohibition. If the defendant perceives the connection between his
crime and his punishment, the retributive goal of the criminal law is satisfied. And only if the
defendant is aware that his death is approaching can he prepare himself for his passing.
Accordingly, I would hold that the Eighth Amendment forbids the execution only of those who
are unaware of the punishment they are about to suffer and why they are to suffer it.
Id. at 421-22 (Powell, J., concurring) (footnote omitted).2 Justice Powell believed that Ford was
incompetent under this standard because he did not actually believe that he would be executed. Id.
at 422 (Powell, J., concurring). We subsequently adopted Justice Powell’s concurrence as the correct
standard. Lowenfield v. Butler, 843 F.2d 183, 187 (5th Cir. 1988).
The district court in this case relied on Barnard v. Collins, 13 F.3d 871 (5th Cir. 1994), a case
nearly identical to the one at bar. Barnard sought a certificate of probable cause on his Ford claim.
Id. at 875. Barnard, like Panetti, suffered from paranoid delusions that his execution was the result
2
A majority of the court recited Justice Powell’s position approvingly in Penry v. Lynaugh, 492 U.S. 302
(1989), abrogated on other grounds by Atkins v. Virginia, 536 U.S. 304 (2002), for the proposition that a person “who
is ‘unaware of the punishment they are about to suffer and why they are to suffer it’ cannot be executed.” Id. at 333
(quoting Ford, 477 U.S. at 422 (Powell, J., concurring)).
5
of a conspiracy against him and not his crimes. As the state court noted:
[Barnard] comprehends the nature, pendency, and purpose of his execution. [Barnard] knows
that he was found guilty of killing a young boy in a robbery in Galveston County and that his
pending execution was because he had been found guilty of that crime. He knew of the date
of his scheduled execution and that it would be lethal injection by use of an intravenous
injection. [Barnard’s] experts do not establish that he is unaware of the fact of or the reason
for his impending execution, but rather that his perception of the reason for his conviction and
pending execution is at times distorted by a delusional system in which he attributes anything
negative that happens to him to a conspiracy of Asians, Jews, Blacks, homosexuals, and the
Mafia (emphasis added).
Id. at 876 (quoting state court decision). We held that because the state court found that Barnard
“knew that he was going to be executed and why he was going to be executed” the Ford standard
had been satisfied. Id. at 877.3 The district court’s findings in this case are sufficient under Barnard
to establish Panetti’s competency to be executed, and Panetti does not seriously contend otherwise.
Panetti nevertheless argues that Barnard is inconsistent with our prior decisions in Johnson
v. Cabana, 818 F.2d 333 (5th Cir.1987), Lowenfield v. Butler, 843 F.2d 183 (5th Cir. 1988), and
Garrett v. Collins, 951 F.2d 57 (5th Cir. 1992), and with Justice Powell’s concurrence in Ford. We
disagree. One panel of this court is generally powerless to overrule the previous decision of another
panel. Although we acknowledge that an exception to this rule arises where two panel opinions are
in conflict, Harvey v. Blake, 913 F.2d 226, 228 n.2 (5th Cir. 1990), the holdings of our cases are not
in conflict.
Barnard is consistent with Justice Powell’s concurrence in Ford. Justice Powell stated, “I
would hold that the Eighth Amendment forbids the execution only of those who are unaware of the
punishment they are about to suffer and why they are to suffer it.” Ford, 477 U.S. at 422 (Powell,
3
In a subsequent case, this court held that where a prisoner “testified that he knew the date scheduled for his
execution, the date of the offense for which he was on death row, that he was sentenced to die for murdering Larry
Faircloth, and that the murder was alleged to have occurred during the course of a burglary,” he was competent to be
executed. Fearance v. Scott, 56 F.3d 633, 640 (5th Cir. 1995).
6
J., concurring). Justice Powell did not state that a prisoner must “rationally understand” the reason
for his execution, only that he must be “aware” of it.
This court first interpreted the “awareness” component of Ford in Johnson v. Cabana, 818
F.2d 333 (5th Cir.1987). The issue in Johnson was whether the Mississippi state court erred in
declining to hold an evidentiary hearing on Johnson’s Ford claim. Johnson had submitted to the state
court evidence that he suffered from various psychological difficulties including amnesia, brain
damage, “brain dysfunction,” organic brain syndrome, and alcohol dependency, and that he heard
voices when he was a child. Id. at 337-39. The state court had held that Johnson had not made a
sufficient threshold showing that would entitle him to a full hearing. Id. at 339. In making that
determination, the state court employed a substantially more stringent definition of competency than
Ford required. Id. at 339. Mississippi deemed a prisoner incompetent for execution if he did not
have sufficient intelligence to understand: 1) the nature of the proceedings against him; 2) the crime
of conviction; 3) the purpose of the punishment; 4) his impending fate; or 5) any fact that might exist
that would render his punishment unjust or unlawful. Id. (citing MISS. CODE ANN. § 99-19-57(2)
(Supp. 1986)). This court held that Johnson’s evidence as to whether he met this standard was
equivocal. Id. at 340. Accordingly, the failure to hold a full, trial-like hearing did not violate due
process. Id.
Panetti makes much of Johnson’s discussion of the Ford standard for competency. Johnson
did state that in Ford, “the Supreme Court held that a defendant who could not perceive the
connection between his crime and punishment should not be executed.” Id. at 336. But our
interpretation of Ford’s substantive competency standard was dicta because as noted, Mississippi’s
standard was more prisoner-friendly than the Eighth Amendment requires. The issue in Johnson was,
7
given the Mississippi standard, whether Johnson had a due process right to a full hearing. See id. at
340 (“We therefore find that constitutional due process was satisfied by the determination of the
Mississippi Supreme Court that its statutory threshold had not been reached is entitled to the
presumption of correctness provided by [former] 28 U.S.C. § 2254(d).”). The constitutional standard
for competency to be executed was simply not at issue in Johnson, much less the highly unusual
factual scenario in this case. Because Johnson had failed to make a threshold showing under the
Mississippi standard, the standard applied by the district court in this case, or the standard that Panetti
advocates, Johnson did not resolve the issue in this appeal.
We next addressed Ford in Lowenfield v. Butler, 843 F.2d 183 (5th Cir. 1988), which like
Johnson, concerned whether the petitioner had made a substantial threshold showing to require a full
hearing in state court. According to Lowenfield, the Ford plurality stated that a prisoner’s
competency to be executed depends on whether he “ ‘comprehends the nature of the penalty’ and
whether the prisoner’s mental illness ‘prevents him from comprehending the reasons for the penalty
or its implications.’ ” Id. at 187 (quoting Ford, 477 U.S. at 417). Lowenfield then quoted Justice
Powell’s concurrence for the proposition that the Eighth Amendment forbids the execution of “those
who are unaware of the punishment they are about to suffer and why they are to suffer it.” Id.
(quoting Ford, 477 U.S. at 422 (Powell, J., concurring)). Lowenfield’s evidence consisted only of
a psychologist’s opinion that he was a paranoid schizophrenic. Id. at 187. By itself, this fell
“woefully short of a finding that Lowenfield [was] so deranged that he [was] unaware that he [was]
about to be put to death as a result of his earlier conviction and sentence for murder.” Id.
Accordingly, we held that Lowenfield had failed to meet the substantial threshold showing required
to necessitate a full hearing. Id. at 187-88.
8
Despite Panetti’s reliance on Lowenfield, the case is not dispositive. Mere evidence of
schizophrenia would not establish that a prisoner was incompetent under either the test that Panetti
advocates or the test applied by the district court. Lowenfield therefore did not address or resolve
whether competency requires a rational understanding of the reason for the execution.
Panetti relies last on Garrett v. Collins, 951 F.2d 57 (5th Cir. 1992). Garrett concerned an
appeal from a stay of execution. Garrett contended that his belief that “his dead aunt [would] protect
him from the effects of the sedative and toxic agents used” during lethal injection rendered him
incompetent. Id. at 58. Garrett’s expert witness testified, however, that his client knew that it was
possible for him to die as a result of the State’s efforts. Id. at 59. We held that, so long as Garrett
“(1) understands the nature of the proceedings against him and (2) understands that the state is
seeking to execute him and the reasons the state seeks this penalty,” he is competent to be executed.
Id. at 58. That Garrett had some hope that his aunt would save him from death did not render him
incompetent. Id. at 59. In Garrett, we did not address the arguments Panetti raises in this appeal.
Garrett solely argued that he lacked an understanding of the nature of the death penalty. He did not
contend, nor did we decide what it means for a prisoner to be unaware of the punishment or the
reason for it. Because we hold that “awareness,” as that term is used in Ford, is not necessarily
synonymous with “rational understanding,” as argued by Panetti, we conclude that the district court’s
findings are sufficient to establish that Panetti is competent to be executed. See Barnard v. Collins,
13 F.3d 871 (5th Cir. 1994).
For these reasons, we AFFIRM the judgment of the district court.
9