AG Response to 5th Circuit Appeal

No. 14-70025

In The

United States Court of Appeals for the Fifth Circuit ______________________________

DANIEL LEE LOPEZ,

PetitionerAppellant,

v.

WILLIAM STEPHENS, Director, Texas Department of Criminal Justice,

Correctional Institutions Division, RespondentAppellee.

______________________________

On Appeal from the United States District Court For the Southern District of Texas, Corpus Christi Division

______________________________

RESPONDENTAPPELLEES BRIEF ______________________________

KEN PAXTON EDWARD L. MARSHALL Attorney General of Texas Chief, Criminal Appeals Division CHARLES E. ROY TRAVIS G. BRAGG First Assistant Attorney General Assistant Attorney General Counsel of Record

Post Office Box 12548, Capitol Station Austin, Texas 78711 Tel: (512) 936-1400 Fax: (512) 320-8132

Email: [email protected]

Counsel for RespondentAppellee

Case: 14-70025 Document: 00512910115 Page: 1 Date Filed: 01/21/2015

i

CERTIFICATE OF INTERESTED PERSONS

The undersigned counsel of record certifies that the following listed

persons and entities as described in the fourth sentence of Rule 28.2.1

have an interest in the outcome of this case. These representations are

made in order that the judges of this court may evaluate possible

disqualification or recusal.

RespondentAppellee William Stephens, Director, Texas Department of Criminal Justice, Correctional Institutions Division

Counsel for RespondentAppellee

Travis G. Bragg, Assistant Attorney General Office of the Attorney General of Texas

Prior counsel for the State of Texas (state court)

Carlos Valdez, District Attorney Mark Skurka, District Attorney / Assistant District Attorney William R. Ainsworth, Assistant District Attorney James D. Rosenkild, Assistant District Attorney Nueces County District Attorneys Office

PetitionerAppellant

Daniel Lee Lopez Counsel for PetitionerAppellant

James Gregory Rytting, Hilder & Associates, Houston, TX David R. Dow, University of Houston Law Center, Houston, TX


ii

Prior counsel for Defendant (state court) Mark H. Woerner, Corpus Christi, TX Luis P. Garcia, Corpus Christi, TX Patricia A. Shackelford, Corpus Christi, TX Grant Jones, Corpus Christi, TX

s/ Travis G. Bragg Travis G. Bragg Assistant Attorney General Counsel of Record


iii

STATEMENT REGARDING ORAL ARGUMENT

The parties briefs adequately lay out the facts and legal arguments,

and the decisional process would not be significantly aided by oral

argument.


iv

TABLE OF CONTENTS

CERTIFICATE OF INTERESTED PERSONS ......................................... i

STATEMENT REGARDING ORAL ARGUMENT ................................ iii

TABLE OF CONTENTS .......................................................................... iv

TABLE OF AUTHORITIES ..................................................................... vi

RESPONDENTAPPELLEES BRIEF .................................................... 1

STATEMENT OF THE ISSUES ............................................................... 2

STATEMENT OF THE CASE .................................................................. 2

Facts of the Crime ............................................................................ 2

Lopezs Trial ..................................................................................... 3

Postconviction Proceedings .............................................................. 6

A. Lopezs direct appeal. .............................................................. 6

B. Lopezs waiver of state habeas counsel and proceedings. ................................................................................................. 8

C. Lopezs federal habeas proceedings begin. ........................... 10

D. The hearing in federal district court. ................................... 14

E. Filings after the hearing and the district courts resolution. .............................................................................. 19

SUMMARY OF THE ARGUMENT ........................................................ 20

ARGUMENT ........................................................................................... 21

The Lower Courts Grant of Waiver was well Informed and Proper. ............................................................................................ 21


v

Further Funding for Investigatory and Neuropsychology Services were Unnecessary Given the Weight of Evidence in favor of the Courts Grant of Waiver. ............................................ 28

CONCLUSION ........................................................................................ 30

CERTIFICATE OF SERVICE ................................................................. 31

CERTIFICATE OF COMPLIANCE ........................................................ 31

ELECTRONIC CASE FILING CERTIFICATIONS ............................... 31


vi

TABLE OF AUTHORITIES

Cases

Ake v. Oklahoma, 470 U.S. 68 (1985) ..................................................... 29

Autry v. McKaskle, 727 F.2d 358 (5th Cir. 1984) ................................... 25

Barraza v. Cockrell, 330 F.3d 349 (5th Cir. 2003) .................................. 28

Faretta v. California, 422 U.S. 806 (1975) .............................................. 22

Floyd v. United States, 427 F.2d 63 (5th Cir. 1970) ............................... 22

Granviel v. Lynaugh, 881 F.2d 185 (5th Cir. 1989) ................................ 29

Hill v. Johnson, 210 F.3d 481 (5th Cir. 2000) ......................................... 28

Lenhard v. Wolff, 443 U.S. 1306 (1979) .................................................. 25

Mata v. Johnson, 210 F.3d 324 (5th Cir. 2000) .............................. passim

Moore v. Johnson, 194 F.3d 586 (5th Cir. 1999) ..................................... 22

Rees v. Peyton, 384 U.S. 312 (1966) ........................................... 20, 22, 23

Riley v. Dretke, 362 F.3d 302 (5th Cir. 2004) ......................................... 28

Rivera v. Quarterman, 505 F.3d 349 (5th Cir. 2007) ............................. 22

Rumbaugh v. Procunier, 753 F.2d 395 (5th Cir. 1985) ........ 20, 22, 23, 24

Smith v. Dretke, 422 F.3d 269 (5th Cir. 2005) ....................................... 28

United States v. Davis, 61 F.3d 291 (5th Cir. 1995) .............................. 25

Whitmore v. Arkansas, 495 U.S. 149 (1990)........................................... 22


vii

Wilcher v. Anderson, 188 F. Appx 279 (5th Cir. 2006) .......................... 23

Woodward v. Epps, 580 F.3d 318 (5th Cir. 2009) ................................... 29

Statutes

18 U.S.C. 3599(f) ................................................................................... 28

28 U.S.C. 2254 ........................................................................................ 1

Fed. R. Civ. P. 52(a) ................................................................................. 21


1

RESPONDENTAPPELLEES BRIEF

A Texas jury convicted PetitionerAppellee Daniel Lee Lopez and

sentenced him to death for the capital murder of Lieutenant Stuart

Alexander, an onduty police officer. The Texas Court of Criminal

Appeals denied Lopez relief on direct appeal, and he waived his state

habeas proceedings. While his direct appeal was pending in state court,

he filed a petition for writ of habeas corpus under the Antiterrorism and

Effective Death Penalty Act (AEDPA), 28 U.S.C. 2254, believing this

necessary to finalize his conviction and proceed with his sentence. For

over two years, Lopez sought to waive his federal habeas proceedings.

The lower court held a hearing during which Dr. Proctor, a forensic

psychologist, and Lopez testified. Based on the pleadings filed and

testimony elicited at the hearing, the district court found Lopez

competent, granted his waiver, dismissed his petition with prejudice, and

granted a certificate of appealability (COA) on the sole issue of

competency to waive. This Court should affirm the district courts finding

of Lopezs competency and the dismissal of his petition.


2

STATEMENT OF THE ISSUES

1. Whether the district court erred in accepting Lopezs waiver of his

federal habeas proceedings.

2. Whether the district court erred in relying upon the reports of Drs.

Martinez and Proctor and denying Lopezs application for

neuropsychologist and investigatory services.

STATEMENT OF THE CASE

Facts of the Crime1

At approximately midnight of March 11, 2009, Officer Stephen Cox

of the Corpus Christi Police Department witnessed Lopez run a stop sign

going nearly sixty miles an hour on neighborhood streets. Lopez believed

there was a warrant for his arrest due to his failure to comply with his

probation conditions. Lopez did not stop when Officer Cox activated his

lights; instead he drove to his residence and stopped his car there. Officer

Cox confronted Lopez, and Lopez physically assaulted him. Lopez

escaped to his vehicle, and a chase ensued involving several officers.

1 Given the focus of this appealLopezs competency to waive his federal habeas proceedingsand in the interest of brevity, Respondent Stephens (the Director) presents only a brief recitation of Lopezs crime. For a full presentation please see the opinions cited from the lower court and the Texas Court of Criminal Appeals.


3

The officers used various means to stop Lopezs vehicle, including

laying down stop sticks. During the chase, Lieutenant Stuart

Alexander was deploying stop sticks at an exit of Highway 358. Lopez

swerved his car, struck and killed Lieutenant Alexander, swerved back

onto the highway, and continued fleeing. Even after Lopezs vehicle was

all but immobilized, he continued to use it as a battering ram aiming for

various officers and vehicles. Lopez finally stopped after sustaining

gunshots to his left arm, neck, and upper chest area. ROA.34166

(Memorandum and Order and Final Judgment); Lopez v. State, 2012

WL 5358863 (Tex. Crim. App. Oct. 31, 2012).

Lopezs Trial

Lopez was indicted on ten counts for various offenses, the most

serious being capital murder for the death of Lieutenant Alexander. 1 CR

39.2 Lopez initially plead not guilty on all counts. 2 RR 56.3 Upon a

motion from trial counsel, the judge appointed Dr. Troy Martinez, a

forensic and clinical psychologist, to evaluate Lopez and assist trial

2 CR refers to the Clerks Record of pleadings and documents filed in the state trial court. This reference is preceded by the volume number and followed by the pertinent page numbers. 3 RR refers to the Reporters Record from the trial. This is preceded by the volume number and followed by the pertinent page numbers.


4

counsel in preparing a defense. 1 CR 1921. Some months later, in a

status hearing, Lopez told the court he wanted to plead guilty; however,

the trial judge erroneously said a defendant on trial for capital murder

could not plead guilty. 3 RR 8. Lopez also informed the court he would

refuse to see that psychologist (presumably Dr. Martinez). Id. at 11.

Dr. Martinez noted that Lopez initially would not cooperate in the

evaluation; but Lopez eventually consented, though still at times reticent

to fully disclose information. ROA.23233. Ultimately, Dr. Martinez was

able to complete his report. ROA.22436. In this report Dr. Martinez

noted that Lopez had mixed feelings early on about facing a potential

death sentence. ROA.233. These feelings became increasingly firm over

time such that he made clear his desire for a death sentence rather than

any period of imprisonment (which he perceives as unavoidable). Id. Dr.

Martinez stated:

Asked then about what he planned to tell the jury, he simply stated that he would say he intentionally struck the officer with his vehicle, for the purposes of insuring the death penalty rather than any available alternative; i.e., a long-term prison sentence.

ROA. 234.


5

A week before trial the state offered Lopez a deal of life without

parole in return for his guilty plea. 16 RR 7980. Lopez rejected that deal

and entered a plea of not guilty. Id. at 46, 7980. Prior to closing

argument during the guilt / innocence phase, trial counsel informed the

judge outside the presence of the jury that Lopez insisted on testifying

that he did in fact intentionally run over the officer, despite the fact that

he's told us in earlier discussions that this was not intentional and it was

accidental. 21 RR 99. When the court questioned Lopez, he stated

Whenever I tried to fire him, my counsel at the beginning [when Lopez wanted to plead guilty], they said they are going to do what I wanted, and we have to put in their defense and so we did put in a defense. And now I want to go and testify, but they are going to be against me.

Id. at 101. After the court admonished Lopez regarding his right to testify

and advised him to carefully consider his counsels guidance, Lopez opted

to not testify. Id. at 10103. The jury found Lopez guilty on all ten counts

including capital murder. 22 RR 48. Following the presentation of

evidence during the punishment phase, the jury returned answers to the

special issue questions requiring a sentence of death. 26 RR 12430; 2

CR 24448.


6

Postconviction Proceedings

A. Lopezs direct appeal.

After Lopez was sentenced, the judge informed him that direct

appeal was automatic by operation of law and the court would appoint

both appellate and state habeas counsel. 26 RR 13031. A week later on

March 10, 2010, at a posttrial hearing (discussed in greater detail below,

see infra Statement of the Case III(B)), the judge reaffirmed this: you've

[Lopez] already told me, on a number of occasions, that you wanted to

waive your appeal, and I have instructed you that that is not an option

to you. 27 RR 12. During this same hearing appellate counsel intimated,

And Mr. Lopez does not want a new trial, and hopes that my efforts on

the appeal will not win him a new trial . . . . Id. at 8.

Approximately a month later, Lopez filed a motion to proceed with

his appeal pro se. 29 RR 4; 2 CR 25051. The judge explained competency

to waive appeal and competency to effectively represent ones self pro se

are scrutinized differently. 29 RR 68. The judge believed Lopez was

competent to waive his appeal if that were an option. Id. at 47. He

remarked, [A]ll along Mr. Lopez . . . wanted to be found guilty, [] he did

not want to go through a lengthy appeal, but wanted to move directly to


7

. . . . the punishment that the jury had assessed. 56. However, the judge

denied Lopezs request. Id. at 11. This was not due to a mental defect; in

fact the judge noted the motion literally has laid out the appropriate

findings that I would have to make . . . . Id. at 45. Rather, the judge

based it on Lopezs age, education and lack of experience in dealing in

capital murder cases. Id. at 11. The judge also had questions as to

whether state law would even allow selfrepresentation on a capital

appeal. Id. at 1213.

After the appellate attorney filed his brief with the Court of

Criminal Appeals, Lopez sent a letter dated August 1, 2011, to that court.

In it Lopez stated,

I . . . choose not to fight my conviction or sentence. I accept full responsibility for my actions and feel my sentence is fare [sic]. I do not agree with the issues raised by [appellate counsel] in my appeal. I dont feel the death penalty is unconstitutional. I do not wish for a new trial. I do not agree that Im not a future danger. I know Im a danger to others given the chance.

SHCR EventID: 2474349.4 Months later Lopez sent a second letter to the

court seeking to hasten his appeal. Here he threatened,

4 SHCR refers to the State Habeas Clerks Record of pleadings and documents for Lopezs state writ application. This is followed by the EventID number.


8

Would you like me to hurt some more correction officers to help speed up the process? Ill know its a yes if I havent heard from yall within a month because Im looking forward to starting my life over again or whatever awaits me, cause Im useless just waiting here.

Lopez v. State, No. AP-76,327, letter dated Dec. 20, 2011. On October 31,

2012, the Court of Criminal Appeals denied relief on direct appeal as to

all claims. Lopez v. State, 2012 WL 5358863, *10 (Tex. Crim. App. Oct.

31, 2012).

B. Lopezs waiver of state habeas counsel and proceedings.

On March 10, 2010, the court held a posttrial hearing to discuss

Lopezs desire to waive the appointment of state habeas counsel. 27 RR

46. Both trial counsel and appellate counsel advised him on the

importance of state habeas proceedings. Id. at 611. Appellate counsel

specifically cautioned that Lopez may inadvertently waive potential

federal review as well by not pursuing a state writ. Id. at 9. Both believed

he was intelligent enough to understand the proceedings and competent

to make the decision. Id. at 611.

Trial counsel stated, But he still is pretty steadfast in his

resolution to be executed, and so, I'm I'm comfortable that I've

explained and comfortable that he does, indeed, seem to understand what


9

he wants to do. Id. at 10. He later said, And what it boils down [sic] is

the fact that he wants the death penalty. Hed like to be executed, maybe

next week, if they could get it done, and it is quite certain hes not gonna

change his mind. Id. at 9. After the judge gave him the admonitions and

instructions, he found Lopez competent to waive and requested that

waiver be reduced to writing. Id. at 1112. The following day, the court

held a second hearing at which Lopez knowingly, voluntarily, and

intelligently pled guilty to four more felonies. 28 RR 415. The judge then

accepted his written waiver of state habeas counsel. Id. at 1516; 2 CR

239 (Lopezs waiver), 240241 (court order). As the judge again

admonished Lopez, the following exchange took place:

The Court: And do you feel youre mentally competent?

[Lopez]: Yes.

The Court: Never been a doubt in my mind that you understand what is going on.

28 RR 56.

The trial judge filed with the Court of Criminal Appeals Lopezs

August 1, 2011, letter; his written waiver; a copy of the March 11, 2010,

hearing; and the trial courts order accepting the waiver of state habeas

counsel. SHCR EventID: 2474349. The State filed its habeas brief, and


10

predictably, Lopez never filed an application with the convicting court.

Because the time to file passed, the Court of Criminal Appeals accepted

Lopezs competent waiver. Ex parte Lopez, No. WR-77,157-01 (Tex. Crim.

App. Apr. 18, 2012).

Nonetheless, from the date of his conviction in March 2010, applicant has continued to express his desire to waive habeas review. As recently as August 2011, applicant sent a letter directly to this Court reemphasizing his desire to waive habeas review.

* * *

Because no application was filed and because applicant expressed his desire to waive habeas review, we will now accept applicants waiver and note that his failure to timely file an application constitutes a waiver of all grounds for relief that were available to him before the last date on which his application could have been timely filed

Id. Finally, on May 4, 2012, Lopez wrote a letter to the court inquiring

about waiver of federal habeas proceedings; alternatively, he asked about

filing a petition [i]n order to expedite this process to end federal review

before the oneyear limitations period would expire. SHCR EventID:

2484835.

C. Lopezs federal habeas proceedings begin.

Less than two weeks after sending the above letter to the Court of

Criminal Appeals, Lopez filed his federal habeas petition pro se with the


11

lower court on May 17, 2012. ROA.1019. In his petition he asserted only

one ground for relief: The administration of the death penalty in Texas

violates the Eighth Amendment prohibition of cruel and unusual

punishment. ROA.15.5 Because Lopezs direct appeal was still pending

in the Court of Criminal Appeals, the district judge stayed and

administratively closed the case. ROA.32.

Less than a month after the Texas high court denied relief on direct

appeal, Lopez filed what would be his first of many motions to waive his

federal proceedings. ROA.33. After prompting from the district court,

Lopez filed a clear copy of the same motion on December 12, 2012.

ROA.38. He reaffirmed that he filed a federal habeas petition solely

because he thought it would be quicker instead of waiting for the 1 yr

statute of limitation to expire. Id. He further demonstrated a clear

understanding of what the court would require in order to waive: I am

assuming this court will want to make sure Im mentally competent

5 This lone claim itself supports Lopezs earlier inquiry as to how best to expedite federal habeas proceedings. First, the law in this area is well settled and allows for a swift and easy defeat of the claim. Second, he specifically stated in his August 1, 2011, letter to the Court of Criminal Appeals that he dosent feel the death penalty is unconstitutional. SHCR EventID: 2474349.


12

(which I assure you I am which has been proven during my first waiver)

and am willing to undergo any evaluation yall have for me. Id.

In its following order, the district court reopened the case, provided

for the appointment of counsel, later named as Lopezs current counsel

on appeal, and ordered the parties to submit the suggestion of an expert

to evaluate Lopezs competency. ROA.4041.6 Opposing counsel filed

with the court its recommendation for an expert, Dr. Mosnik. ROA.51

53. However, Respondent recommended Dr. Allen. ROA.8082. Lopez

filed a pro se motion to accept the psychological evaluation completed

pretrial by Dr. Martinez. See supra Statement of the Case II; ROA.79.

Failing this, Lopez recommended Dr. Martinez serve as the expert. Id.

Again Lopez demonstrated, as he would throughout these proceedings,

both clarity of the issue at bar and acuity into a quick resolution: I

submit these documents as proof to inform the court that I am competent

enough to waive my federal appeals and also to save time and money

from this process. Id.

6 The district courts language is worth noting here because it makes apparent from the outset the courts determination that it will only hear from one expert agreed upon by both parties.


13

On March 20, 2013, Lopez filed a pro se response with the court.

ROA.14142. Here Lopez first explained that any determination of

competency should be based on his present state of mind. Id. He further

explained his continuous attempts to waive all appeals. Id. He next

argued that the court should allow him to make the choice to both accept

responsibility for his crimes and own his punishment. Id. He ended with

a clear statement that he did not support his counsels attempts to prove

him incompetent. Id. Following a teleconference involving both parties

and the court, the district judge entered an order appointing Dr. Proctor

as the agreedupon expert to examine Lopez. ROA.14950. Lopez then

filed a pro se Motion to Expedite Mental Evaluation. ROA.151.

After Dr. Proctor issued his report answering the lower courts

questions in such a manner as to find Lopez competent, opposing counsel

filed a motion for further neuropsychological services, again seeking the

appointment of Dr. Mosnik. ROA.15762. In response, Lopez filed pro se

his first motion seeking to dismiss counsel citing their disagreement as

to how to proceed. ROA.164. I now have been proven competent twice by

Dr. Troy Martinez, and Dr. Timothy James Proctor, and would like to

exercise my right once again to proceed pro se. Id. Lopez also filed a


14

motion to accept his waiver based on Dr. Proctors report. ROA.166.

About a week later Lopez filed a motion to provide him with school,

medical, and mental health records. ROA.176. Lopez later filed a letter

with the court wherein he requested a copy of all docket entries to date

and asked to be placed on the mailing list. ROA.181.

D. The hearing in federal district court.

The district court set a hearing to determine competency and

required Dr. Proctor and Lopez to testify on the matter. ROA.17879.

Both witnesses were questioned by the court, opposing counsel, and

counsel for Respondent. ROA.419512. Dr. Proctor began by discussing

his examination of Lopez. ROA.425. He prepared by reviewing

approximately 9,500 pages of records covering school records, general

medical records, psychological reports, including a lengthy psychological

report that had been done by Dr. Martinez in conjunction with his trial;

criminal records, court transcripts, records from TDCJ. ROA.426. He

then conducted an inperson evaluation during which he administered

the Personality Assessment Inventory. ROA.42627.

In assessing Lopez, Dr. Proctor focused on three main issues: 1)

mental disease or defect, 2) level of intelligence, and 3) possible


15

depression and / or suicidal ideation. ROA.42933. On the first issue, Dr.

Proctor stated, I did not find any indication of any severe mental disease

of defect. ROA.428.

When someone's incompetent for any reason, typically it's because, one, they have some kind of what we call a psychotic disorder. I did not see any evidence of that type of disorder with Mr. Lopez. I didn't see that he had been diagnosed with that previously, and I didn't see evidence of it in my evaluation.

ROA.431. He continued, The next issue that comes up in competency is

one I've already addressed, which is low intelligence. I did not see that as

being an issue . . . . ROA.432. Finally,

The third issue which, as I said, I really did pay careful attention to here is depression. You know, is Mr. Lopez someone who is so depressed that they are, that he's unable to consider the options before him? That he is unable to make a logical and rational choice regarding his situation?

And I did not see evidence of that in my evaluation of him. I certainly know his history of depression, but he did not present to me as someone who is currently in a clinically depressed state and is attempting suicide and is, and is, in particular, unaware of the options and choices before him in his case.

To the contrary, you know, he went into detail about why he was making the decisions that he was making. He talked about that he believes his conditions in prison are liveable [sic]. He said he's not just trying to escape that environment. And he explained more about the underpinnings of his decision.


16

* * *

I will point out neither did Dr. Martinez, who saw him in 2010, and I did not see evidence that that was, that there was a depressive disorder that was contributing to him being incompetent at this time.

Id.

When later questioned by opposing counsel about the possibility of

the execution serving as a de facto assisted suicide, Dr. Proctor explained,

I think its something I spent a lot of time considering. To me, there is a distinction there between is this somebody who is saying, Im going to use the court system I want to commit suicide. Im going to use the court system as a way to commit suicide. Or is this someone who is saying, This is the situation before me. These are the choices I have. This is the sentence that I believe I'm going to get at trial, or that I have now. And given all the circumstances, I'm going to accept this punishment and go along with it.

ROA.45354. He again came back to this explanation: But for a person

to think, Look, what I did I think meets the punishment Im being given,

whether we would all agree with it or not, thats a decision someone could

make without being irrational. ROA.459.7 Based on the above Dr.

Proctor concluded,

And ultimately it was my opinion, as you said, Your Honor, that he is competent to waive his federal habeas review. I believe he has the capacity to appreciate his position

7 Lopezs own testimony would later echo this very sentiment.


17

and make a rational choice with respect to continuing or abandoning his further litigation. As I said, I don't believe he's suffering from any type of mental disease, disorder, defect, which substantially affects his capacity or prevents him from understanding his legal positions, the options available to him, or prevents him from making a rational choice among his options.

ROA.42829.

In his testimony Lopez was steadfast in his resolve to waive his

federal habeas petition. The following exchanges occurred during the

courts examination:

Q: So when you filed your federal habeas appeal . . . you thought you had to . . . file an appeal?

A: Yes. I was told I was going to be appointed a lawyer if I didn't file nothing myself. So and on top of that, I wanted to expedite the process. So I went ahead and filed it. And once you accepted it, I put in my motion for waiver of appeals.

Q: Okay. So did you want to appeal at that time?

A: No, maam.

* * *

Q: Okay. So from the beginning, you have not wanted to file an appeal, and youre saying you didnt want to file even this federal habeas petition?

A: Yes, because I accepted my punishment.


18

* * *

Q: And if you waive your federal appeals, if you ask me to terminate your federal habeas petition and I do that, and I dismiss your claim, that conviction and your death sentence is final, and you will be executed. . . . . There are no more challenges. If I dismiss your if I find you competent to waive your federal habeas review, you dont get to say I change my mind later.

A: I understand that.

Q: Because you know what will happen then? The Fifth Circuits going to say, No, you cant do that. And Texas, you go forward and execute this man.

A: And Ive had four years to, to understand that. And I still agree with waiving my appeals.

ROA.47580.8 Finally, the court ended with this question:

Q: So if I dismiss your petition as youre asking me to, you understand the State of Texas is going to ask for an execution date, rather quickly?

* * *

A: The decision this whole time has been constant, and Ive never changed it. So yes, I understand that.

ROA.48283.

8 For ease of reading, portions of the transcript consisting of interruptions or non sequitous questions and answers were omitted.


19

A particular exchange between Lopez and opposing counsel offers

striking relief to his awareness of the proceedings and potential

outcomes. Opposing counsel began questioning Lopez regarding a letter

Lopez sent to counsel, apparently dated October 25th, 2012. ROA.497.

Counsel properly authenticated the document was written by Lopez.

ROA.498. However before counsel could further question him regarding

its contents, Lopez asserted his attorneyclient privilege. Id. Lopez

evaluated a potential piece of evidence, assessed its value for his intended

outcome, and exercised a rule of evidence to bar its admission into the

hearing. Lopez concluded his testimony, and each side made final

arguments on the issue.

E. Filings after the hearing and the district courts resolution.

Two weeks after the hearing, Lopez filed a letter with the court

covering some topics that arose during testimony. ROA.19394. He

continued to assert that he was merely wanting to accept his punishment

and was not suicidal as suggested by opposing counsel. Id. He also

stressed to the court that the purpose of the hearing was simply to

determine competency; it was not a platform for his counsel to press

potential claims for relief. Id. Yet again he displayed a clear awareness


20

of the proceedings at hand. Lopez later filed a second pro se motion to

dismiss opposing counsel. ROA.31820. Finally, Lopez filed a motion in

opposition of counsels renewed application for reasonably necessary

services. ROA.32836.

Taking everything into consideration, the district court, in its final

order and judgment, granted Lopez his waiver, granted Lopezs motion

to dismiss counsel upon the conclusion of appeal, and dismissed the case

with prejudice. ROA.34166. However, the court granted a COA on the

sole issue of competency to waive. ROA.364. Opposing counsel filed a

notice of appeal to this court. ROA.367. Lopez responded by filing a pro

se motion to withdraw the notice of appeal. ROA.414.

SUMMARY OF THE ARGUMENT

Opposing counsel raises two claims on appeal. First, counsel asserts

the district court erred in accepting Lopezs waiver of his federal habeas

proceedings. The district court applied the Supreme Courts standard for

competency to waive federal proceedings as set out in Rees v. Peyton, 384

U.S. 312 (1966) and applied by this Court in Rumbaugh v. Procunier, 753

F.2d 395 (5th Cir. 1985) and its progeny. There was no evidence before

the court that Lopez failed any prong of the Rumbaugh test. On the


21

contrary, there was ample evidence to show Lopez did not suffer from any

mental disease or defect, he had a thorough understanding of his legal

position and the available options, and he was rational in his choice to

waive. Any argument to the contrary is without foundation.

Counsel also alleges the district court erred in relying upon the

reports of Drs. Martinez and Proctor and denying Lopezs application for

neuropsychologist and investigatory services. The first issue informs the

district courts valid denial of counsels motions for further funding and

testing. The weight of evidence in favor of granting Lopezs request for

waiver did not require further investigation. Further, such requests are

not a matter of right but rather are at the courts discretion. Finally, the

court was correct to rely upon the expert agreed upon by both parties. For

these reasons this Court should affirm the lower courts decision.

ARGUMENT

The Lower Courts Grant of Waiver was well Informed and Proper.

Upon review by this Court, a district courts determination of an

inmates competency to waive his federal habeas proceeding is thus

protected by the shield and buckler of Fed. R. Civ. P. 52(a), and must be

accepted unless shown to be clearly erroneous. Rumbaugh, 753 F.2d at


22

399 (citing Floyd v. United States, 427 F.2d 63 (5th Cir. 1970)). A finding

is clearly erroneous only if it is implausible in the light of the record

considered as a whole. Rivera v. Quarterman, 505 F.3d 349, 361 (5th

Cir. 2007). Opposing counsel first claims the district court erred in

accepting Lopezs waiver of his federal habeas proceedings. Appellants

Br. 1521 (Br.). Generally, a criminal defendant has the right to make

his defense because it is he who suffers the consequences if the defense

fails. Faretta v. California, 422 U.S. 806, 81920 (1975). He is the

master of his own defense. Moore v. Johnson, 194 F.3d 586, 606 (5th

Cir. 1999). Specifically, an inmate under a sentence of death may waive

his federal habeas proceeding if he is competent to make such a decision.

Whitmore v. Arkansas, 495 U.S. 149, 16566 (1990); Rees, 384 U.S. at

314.

[A] habeas court must conduct an inquiry into the defendants

mental capacity, either sua sponte or in response to a motion by

petitioners counsel, if the evidence raises a bona fide doubt as to his

competency. Mata v. Johnson, 210 F.3d 324, 330 (5th Cir. 2000). The

wellestablished standard for competency to abandon federal habeas

review asks whether he has capacity to appreciate his position and make


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a rational choice with respect to continuing or abandoning further

litigation or on the other hand whether he is suffering from a mental

disease, disorder, or defect which may substantially affect his capacity in

the premises. Rees, 384 U.S. at 314. This Court laid out a three part test

to satisfy the Rees standard:

(1) Is the person suffering from a mental disease or defect?

(2) If the person is suffering from a mental disease or defect, does that disease or defect prevent him from understanding his legal position and the options available to him?

(3) If the person is suffering from a mental disease or defect which does not prevent him from understanding his legal position and the options available to him, does that disease or defect, nevertheless, prevent him from making a rational choice among his options?

Rumbaugh, 753 F.2d at 398.9

If the answer to the first question is no, the court need go no further, the person is competent. If both the first and second questions are answered in the affirmative, the person is incompetent and the third question need not be addressed. If the first question is answered yes and the second question is answered no, the third question is determinative; if yes, the person is incompetent, and if no, the person is competent.

9 The lower court noted that at times this test has been collapsed into two questions. ROA.357; see Wilcher v. Anderson, 188 F. Appx 279, 281 (5th Cir. 2006); Mata, 210 F.3d at 328.


24

Id. This Court has further held that adequate due process in these

circumstances may require,

ordering and reviewing a current examination by a qualified medical or mental health expert, allowing the parties to present any other evidence relevant to the question of competency and, on the record and in open court, questioning the petitioner concerning the knowing and voluntary nature of his decision to waive further proceedings.

Mata, 210 F.3d at 331.

To that end the district court here, upon agreement of both parties,

appointed Dr. Proctor to examine Lopez and

determine whether Lopez is competent to waive federal habeas review, evaluating (1) whether he has capacity to appreciate his position and make a rational choice with respect to continuing or abandoning further litigation or (2) whether he is suffering from a mental disease, disorder, or defect which may substantially affect his capacity, such that it prevents him from understanding his legal position and the options available to him and prevents him from making a rational choice among his options.

ROA.149 (citations omitted). As to the first question of mental disease or

defect, Dr. Proctor testified he spent a significant portion of his document

review and examination considering both potential depression and

possible suicidal ideation. ROA.42832, 45354. Ultimately, he did not

find any indication of any severe mental disease or defect. ROA.428. As


25

discussed above, he maintained this view even when opposing counsel

pressed him on the issue. See supra Statement of the Case III(D).

Opposing counsel now argues that possible suicide attempts and

depression in his teenage years, as well as a familial history of

depression, are conclusive on this first question. This is incorrect. Rather,

[t]he extent and severity of the petitioner's history of mental health

problems which have been brought to the courts attention influence the

breadth and depth of the competency inquiry required. Mata, 210 F.3d

at 330. Even suicide attempts alone are not dispositive. United States v.

Davis, 61 F.3d 291, 304 (5th Cir. 1995). This must be weighed in

conjunction with all other evidence presented with respect to a

defendants mental stability and competence. Mata, 210 F.3d at 330.

This Court spoke squarely on the topic:

The idea that the deliberate decision of one under sentence of death to abandon possible additional legal avenues of attack on that sentence cannot be a rational decision, regardless of its motive, suggests that the preservation of ones own life at whatever cost is the summum bonum, a proposition with respect to which the greatest philosophers and theologians have not agreed and with respect to which the United States Constitution by its terms does not speak.

Autry v. McKaskle, 727 F.2d 358, 363 (5th Cir. 1984) (quoting Lenhard

v. Wolff, 443 U.S. 1306, 1313 (1979) (Rhenquist, J., in chambers)). Indeed,


26

Dr. Proctor testified at the hearing that Lopezs attempt to waive his

proceedings is born out of a desire to accept his punishment. ROA.453

54. Lopez has continued to say these words in various written pleading

and at the federal evidentiary hearing. See supra Statement of the Case

II & III. Based on all the pleadings and hearing testimony, the court

properly found that there was no evidence of mental disease or defect.

The court could have ended the inquiry here; but it properly decided to

examine all three parts of the test.

There is no question based on this record that Lopez understands

his legal position and his options. From the time that Lopez first

attempted to plead guilty, he has maintained that he killed Lieutenant

Alexander. Immediately after the jury imposed the sentence of death,

Lopez began strategically planning how to best expedite his appeals. He

attempted to represent himself pro se on direct appeal, he waived his

right to state habeas counsel, and he waived his federal habeas

proceeding. In fact, he only filed his federal habeas petition because he

believed it would expedite the carrying out of his sentence. Had he known

that there was no legal impediment to setting an execution date once his

direct appeal was denied, he may very well have never filed. Even at the


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federal hearing when opposing counsel attempts to question him

regarding a letter he received from Lopez, Lopez asserted his attorney

client privilege to block the letter from consideration by the court.

Finally, Lopezs choice appears to be nothing if not rational. During

the punishment phase, the State read into evidence a letter from Lopez:

My lawyer told me if I take the death penalty and waive all my appeals they will kill me in three years, which I need to die because I am not a good person. When I die in three years, all my kids will get $300 to $400 a month from SSI till they turn 18 years old.

24 RR 89. During the federal habeas hearing he repeatedly discussed

with the district judge his wish to accept what he viewed as a just

punishment for his crime. As the district judge said, Since his arrest,

Lopez has singlemindedly pursued a course towards ensuring that the

State of Texas will execute him. ROA.343. Indeed his numerous pro se

pleadings in federal and state court have unwaveringly conveyed his

hope to end all legal challenges. ROA.350. In Lopezs own words: I want

to get this over with. I want to move on with my life. I accept my

punishment. . . . . And I wish yall would respect that. And even though

yall might not agree with me, but respect my decision.


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Further Funding for Investigatory and Neuropsychology Services were Unnecessary Given the Weight of Evidence in favor of the Courts Grant of Waiver.

Second, opposing counsel alleges the district court erred in relying

upon the reports of Drs. Martinez and Proctor and denying Lopezs

application for neuropsychologist and investigatory services. Br. 2128.

A court has discretion to provide funding for expert assistance upon a

showing that it is reasonably necessary. 18 U.S.C. 3599(f); Smith v.

Dretke, 422 F.3d 269, 28889 (5th Cir. 2005). Funding may be denied

where it would only provide evidence on a procedurally defaulted claim,

on a claim that is meritless, or where the assistance would merely

supplement prior evidence. Riley v. Dretke, 362 F.3d 302, 30708 (5th

Cir. 2004); Barraza v. Cockrell, 330 F.3d 349, 352 (5th Cir. 2003); Hill v.

Johnson, 210 F.3d 481, 48687 (5th Cir. 2000). Ultimately, opposing

counsel believes further funding was needed for a second expert opinion.

Although they agreed to the appointment of Dr. Proctor, they argue his

evaluation did not meet the standard laid out in Mata because his opinion

was illinformed.

As discussed above, Dr. Proctor reviewed 9,500 pages of records,

including a report by Dr. Martinez, and took those records into


29

consideration when forming his opinion. See supra Statement of the Case

III(D). Dr. Proctor gave a full evaluation both in his report and at the

federal evidentiary hearing. Based on this testimony, Lopezs testimony,

and the pleadings in the case, the district court made a correct

determination in granting the waiver. See supra Argument I. Thus, any

evidence resulting from the funding would have at best supplemented the

record.

There is no evidence that Dr. Proctors assessment was inadequate.

Rather, its fair to assume opposing counsels argument simply indicates

displeasure with Dr. Proctors conclusions and the courts reliance on

them. But a defendant does not have a right to the appointment of [an

expert] who will reach biased or only favorable conclusions. Granviel v.

Lynaugh, 881 F.2d 185, 192 (5th Cir. 1989). Nor is a defendant entitled

to choose [an expert] of his personal liking. Woodward v. Epps, 580 F.3d

318, 331 (5th Cir. 2009) (citing Ake v. Oklahoma, 470 U.S. 68, 83 (1985)).

Because the Court appointed a neutral expert agreed upon by all parties,

it was unnecessary for the Court to permit Lopezs counsel to shop for

another. Thus, the district court correctly denied further funding.


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CONCLUSION

For the above reasons the Director respectfully requests this Court

affirm the lower courts decision to grant Lopezs waiver of his federal

habeas proceedings.

Respectfully submitted,

KEN PAXTON Attorney General of Texas

CHARLES E. ROY First Assistant Attorney General

ADRIENNE McFARLAND Deputy Attorney General for Criminal Justice

EDWARD L. MARSHALL Chief, Criminal Appeals Division

s/ Travis G. Bragg TRAVIS G. BRAGG Assistant Attorney General State Bar No. 24076286 Counsel of Record

P.O. Box 12548, Capitol Station Austin, Texas 78711-2548 Tel: (512) 936-1400 Fax: (512) 936-1280 Email: Travis.Bragg@texas attorneygeneral.gov

Counsel for Respondent


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CERTIFICATE OF SERVICE

I hereby certify that on January 21, 2014, I electronically filed the foregoing brief with the Clerk of the Court for the United States Court of Appeals for the Fifth Circuit using the electronic casefiling system of the Court. The electronic casefiling system sent a Notice of Electronic Filing to the following attorney of record, who consented in writing to accept this notice as service of this document by electronic means:

James Gregory Ryttng David R. Dow Hilder & Associates, P.C. University of Houston Law Center 819 Lovett Blvd. 100 Law Center Houston, TX 77006 Houston, TX 77204

s/ Travis G. Bragg TRAVIS G. BRAGG Assistant Attorney General

CERTIFICATE OF COMPLIANCE

This brief complies with Rule 32(a)(7)(C) of the Federal Rules of Appellate Procedure. It contains 6,505 words, Microsoft Word 2010, Century, 14 points.


ELECTRONIC CASE FILING CERTIFICATIONS

I hereby certify that: (1) all required privacy redactions have been made; (2) this electronic submission is an exact copy of the paper document; and (3) this document has been scanned using the most recent version of a commercial virus scanning program and is free of viruses.



United States Court of Appeals FIFTH CIRCUIT

OFFICE OF THE CLERK LYLE W. CAYCE CLERK

TEL. 504-310-7700

600 S. MAESTRI PLACE NEW ORLEANS, LA 70130

January 21, 2015

Mr. Travis Golden Bragg Office of the Attorney General for the State of Texas P.O. Box 12548 Capitol Station Austin, TX 78711-2548 No. 14-70025 Daniel Lopez v. William Stephens, Director USDC No. 2:12-CV-160 Dear Mr. Bragg, You must submit the seven (7) paper copies of your brief required by 5TH CIR. R. 31.1 within five (5) days of the date of this notice pursuant to 5th Cir. ECF Filing Standard E.1. Sincerely, LYLE W. CAYCE, Clerk

By: _________________________ Monica R. Washington, Deputy Clerk 504-310-7705 cc: Mr. David R. Dow Mr. James Gregory Rytting


AG Response to 5th Circuit Appeal

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