     Case: 14-70025       Document: 00512994724          Page: 1     Date Filed: 04/06/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                               United States Court of Appeals
                                                                                        Fifth Circuit

                                                                                      FILED
                                       No. 14-70025                                April 6, 2015
                                                                                 Lyle W. Cayce
DANIEL LEE LOPEZ                                                                      Clerk


                                                   Petitioner - Appellant
v.

WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

                                                   Respondent - Appellee




                   Appeal from the United States District Court
                        for the Southern District of Texas


Before HIGGINBOTHAM, JONES, and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:
       Having carefully reviewed defense counsel’s appeal of the district court’s
competency decision, 1 the State’s response, the transcript of the competency
hearing in the district court, and the district court’s Order, we conclude that
the district court committed no error finding Lopez competent to waive federal



       1 Lopez is as resolute that Texas should carry out his capital sentence as he is that no
counsel deprive him of that choice. The district court, after ascertaining competency,
nonetheless granted Lopez’s “motion to dismiss counsel, effective on the conclusion of any
appeal.” (Emphasis added). This court does not address, because the State did not raise, the
appropriateness of our considering this appeal by counsel who were appointed for petitioner
by the district court against his will, and who have filed this appeal despite his wishes and
despite the court’s resolution of the Rees v. Payton 384 U.S. 312 (1966) issue. Cf. Sanchez-
Velasco v. Sec. of the Dept. of Corrections, 287 F.3d 1015 (11th Cir. 2002).
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                                 No. 14-70025
habeas review in this capital case, and that he did so knowingly and
voluntarily.
      The Supreme Court has elaborated the legal standard we apply to assess
the competency of a death row inmate to abandon further appeals of his
sentence, namely “whether he has capacity to appreciate his position and make
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 v.
Peyton, 384 U.S. at 314. Applying this standard, we have observed that “a
habeas court must conduct an inquiry into the defendant’s mental capacity ...
if the evidence raises a bona fide doubt as to his competency,” further noting
that “[t]he extent and severity of the petitioner’s history of mental health
problems which have been brought to the court’s attention influence the
breadth and depth of the competency inquiry required.” Mata v. Johnson, 210
F.3d 324, 330 (5th Cir. 2000).
      The district court entered its finding of Lopez’s mental competency under
the Rees standard after questioning him directly in open court, observing his
demeanor, reviewing past mental examinations, and hearing from court-
appointed expert Dr. Timothy J. Proctor. We are satisfied that the inquiry
conducted by the district court was constitutionally sufficient. In Mata, our
court applied Rees, taking additional lesson from our court’s caselaw as well as
caselaw from other circuit courts to highlight examples of constitutionally
adequate fact-finding into the competency of a petitioner to abandon collateral
review in a capital case. We emphasized that whereas district courts retain
discretion to fashion measures appropriate to each defendant ― hence “in some
cases an expert report already in the record may be sufficiently current that a
new examination is not necessary, or a court may be able to decide the issue
on documents without taking live testimony,” id. at 331 ― the following
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                                  No. 14-70025
measures were commended: (1) contemporaneous expert examination of a
petitioner’s competency; (2) expert assessment submitted in written report to
the court and the parties; (3) an evidentiary hearing with full adversary
opportunity to develop facts relevant to competency and to explore any expert
opinion; and (4) a personal appearance by the petitioner, distinguished by a
“face-to-face dialogue between the court and the petitioner” confirming the
knowing and voluntary nature of the decision to waive further proceedings. Id.
at 328-331.
      The district court in the instant matter did all of the above to verify that
Lopez, who had “unwavering[ly] conveyed his hope to end all legal challenges,”
had done so in a constitutionally adequate manner: first, appointing counsel
despite Lopez’s repeated “coherent, logical, and consistent” filings against
federal review; second, appointing a mental health expert who “compiled a
detailed history of Lopez’s mental health,” as well as conducted an in-person
evaluation of Lopez concluding that “Lopez is competent to waive federal
habeas review,” believing both in a “‘better’” afterlife and in the justifiability
of his “‘conviction and sentence’”; third, conducting an evidentiary hearing that
included Lopez as well as his expert mental health evaluator, Dr. Timothy J.
Proctor, whereafter the court found “that Dr. Proctor was credible in his
conclusion that Lopez is competent,” and also entered the following findings
after direct questioning of Lopez:
             Lopez clearly understands the nature of the criminal
      proceedings against him to this point, his current status, the role
      of the court, and the possible outcomes of federal habeas review.
      Lopez exhibited no obvious signs of mental impairment or
      intellectual deficiency. Throughout his testimony, as throughout
      his post-judgment proceedings, Lopez was fixed and determined in
      his desire for the State to carry out his sentence. Lopez’s testimony
      did not raise any concern about his competency.



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                                        No. 14-70025
We affirm that these proceedings, and the evidence presented to the district
court, do not raise a bona fide doubt as to Lopez’s competency.
       On appeal, two arguments are asserted. First, the argument is offered
that Lopez is incompetent to waive habeas review because he is wrong to think
further judicial review would be unavailing. Specifically, counsel contends
that Lopez’s sight was impaired both by his poor vision and also by pepper
spray, and therefore he did not intentionally kill Lieutenant Alexander when
he swerved and struck him during a police chase. This argument fails on
several grounds. Factually, the jury heard testimony and attorney argument
relating to the fatal impact ― and specifically, disputed facts as to Lopez’s
intentionality and vision ― and, properly instructed as to the proof required of
Lopez’s state of mind, thereafter entered its verdict of capital murder. 2
Regardless, legally, we have clarified that a court’s competency finding is
distinct from, and must be confirmed independent of, “‘legal avenues of attack’”
that may exist pertaining to a sentence, here the adequacy of proof of Lopez’s
state of mind shown beyond a reasonable doubt at trial. Autry v. McKaskle,
727 F.2d 358, 363 (5th Cir. 1984) (quoting Lenhard v. Wolff, 443 U.S. 1306
(1979)); see also Henderson v. Campbell, 353 F.3d 880, 894-895 (11th Cir.
2003). 3 Cf. United States v. Davis, 285 F.3d 378, 384 n.6 (5th Cir. 2002)
(“Whatever the merits of Davis’s legal strategy, we find that Davis has the



       2 In district court, counsel acknowledged that the “chief issue, the central issue at trial
was whether [Lopez] saw Officer Alexander and intentionally ran him over,” but suggested
that the jury had not heard all relevant evidence pertaining to Lopez’s impaired vision. As
the district court catalogues, however, the pepper spray evidence was presented to the jury.
Moreover, in district court, having heard counsel characterize him as legally blind, Lopez
himself explained that yes, he has “terrible vision,” “but I had contacts, and I could see.”
       3   At Lopez’s competency hearing, the district court along with counsel
comprehensively explored with Lopez his legal position, as well as his interaction with
counsel about appellate and habeas options. Lopez matter-of-factly denied there is evidence
that would avail him, and also affirmed his religious readiness “to move on with my life, so I
could go up there.”
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                                 No. 14-70025
right to conduct his penalty defense in the manner of his choosing…[and] if he
so chooses, Davis has the constitutional right to implement his legal strategy
by arguing to the jury that he should receive the death penalty.”). Finally,
procedurally, we note that no approved effort has been made to expand the
certificate of appealability to include the argument Lopez terms “‘unfactual
innocence’” as a habeas ground defense counsel may pursue.
      Second, error is alleged based on the district court’s denial of funding for
additional neuropsychologist and investigatory services. Factually, we note
that counsel’s statements that Dr. Proctor disregarded or failed to consider
Lopez’s complete mental history is incorrect. Dr. Proctor testified that he
reviewed all materials sent to him by defense counsel, that his final report was
based on review of almost ten thousand record pages submitted to him as well
as his three-hour interview and testing of Lopez, and that in fact he paid
particular attention to whether Lopez suffered from depression and had been
suicidal.
      Moreover, we reject the contention legally that Dr. Proctor’s expert
involvement, including his written report and hearing testimony subject to
cross-examination, was not the “meaningful opportunity to present evidence
relevant to the question of competency” required by Mata. To the extent that
this allegation of error asserts that that opportunity contemplated in Mata
comprehends not just one court-appointed expert evaluation, but then also a
second, supplemental and “independent” review and evaluation of the first,
this suggestion is made without citation to legal authority and we decline to
adopt it.
                                   CONCLUSION
      For the foregoing reasons, we affirm the district court’s order finding
Lopez competent to waive federal habeas proceedings and we further order


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                                No. 14-70025
that no further pleadings will be accepted from counsel absent leave of court
supported by Lopez’s election to proceed through such counsel.




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