     Case: 14-70005      Document: 00512522238         Page: 1    Date Filed: 02/04/2014




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

                                                                               FILED
                                      No. 14-70005                      February 4, 2014
                                                                          Lyle W. Cayce
                                                                               Clerk
SUZANNE MARGARET BASSO,

                                                  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
                              USDC No. 4:14-CV-213


Before DAVIS, PRADO, and HAYNES, Circuit Judges.
PER CURIAM:*
       Petitioner requests a certificate of appealability (“COA”) to appeal the
federal district court’s denial of habeas corpus relief under 28 U.S.C. § 2254.
Because reasonable jurists would not find the district court’s rejection of
Petitioner’s claims under the Eighth Amendment to be debatable, we deny
Petitioner’s application for a COA and associated motion for stay of execution.
                                             I.
       Petitioner was convicted of capital murder in the death of Louis “Buddy”



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                No. 14-70005
Musso. The facts of the offense are summarized in the opinion issued by the
Texas Court of Criminal Appeals (“TCCA”) on direct appeal. 1 A jury found
Petitioner guilty on August 27, 1999, and the trial court imposed a sentence of
death by lethal injection on September 1, 1999. On January 15, 2003, the
TCCA affirmed Petitioner’s conviction. 2 On October 6, 2003, the United States
Supreme Court denied Petitioner’s petition for writ of certiorari. 3
         On September 20, 2006, the TCCA denied Petitioner’s initial post-
conviction application for state habeas relief. 4           On January 26, 2009, the
United States District Court for the Southern District of Texas denied
Petitioner’s first petition for a writ of habeas corpus under 28 U.S.C. § 2254. 5
On January 5, 2010, this court denied Petitioner’s application for a certificate
of appealability. 6        The United States Supreme Court denied Petitioner’s
subsequent petition for certiorari on October 4, 2010, 7 and denied her petition
for rehearing on November 29, 2010. 8
         On July 19, 2013, the trial court entered an order scheduling Petitioner’s
execution for February 5, 2014. Petitioner then filed a motion through counsel
challenging Petitioner’s competence to be executed pursuant to Article 46.05 of
the Texas Code of Criminal Procedure. Following a hearing where the trial
court heard expert testimony regarding Petitioner’s mental health, the trial
court entered findings that Petitioner was competent to be executed. 9 The



         1   Basso v. State, No. 73672, 2003 WL 1702283 (Tex. Crim. App. Jan. 15, 2003) (en
banc).
         2 Id.
         3 Basso v. Texas, 540 U.S. 864 (2003).
         4 Ex parte Basso, No. WR-63672-01, 2006 WL 2706771 (Tex. Crim. App. Sept. 20,

2006).
         5 Basso v. Quarterman, No. H-07-3047, 2009 WL 9083708 (S.D. Tex. Jan. 26, 2009).
         6 Basso v. Thaler, No. 09-70012, 359 F. App’x 504 (5th Cir. 2010).
         7 Basso v. Thaler, 131 S. Ct. 181 (2010).
         8 Basso v. Thaler, 131 S. Ct. 692 (2010).
         9 Tex. Ct.’s Findings of Fact (Rec. Doc. 3-3).

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                               No. 14-70005
TCCA affirmed those findings on February 3, 2014. 10
       Petitioner then filed her second petition 11 for writ of habeas corpus under
28 U.S.C. § 2254. Her petition raised two sets of arguments, all of which had
been considered and rejected by the TCCA.                   First, Petitioner argued that
Article 46.05 of the Texas Code of Criminal Procedure violates the Eighth
Amendment of the United States Constitution on various grounds. Second,
Petitioner argued that the Texas court’s finding that she is competent to be
executed was unreliable.            As explained in the district court’s thorough
memorandum opinion and order, the district court found no merit to these
arguments. On February 3, 2014, therefore, the district court denied habeas
relief, denied a motion to stay the execution, and declined to issue a COA.
Petitioner’s present appeal and application for a COA followed, accompanied
by a motion for stay of execution.
                                               II.
       Petitioner must obtain a COA to appeal the district court’s denial of any
petition brought under 28 U.S.C. § 2254. 12 A COA may be issued only after
the petitioner “has made a substantial showing of the denial of a constitutional
right.” 13 To meet this standard, Petitioner must show “that reasonable jurists
could debate whether (or, for that matter, agree that) the petition should have
been resolved in a different manner or that the issues presented were adequate




       10  Basso v. State, No. 77032 (Tex. Crim. App. Feb. 3, 2014) (Rec. Doc. 5-5).
       11  Although this is Petitioner’s second petition for writ of habeas corpus filed in federal
court, it is not barred under the habeas statute. As Respondent does not contest, the bar on
“successive” applications does not apply to a claim of incompetence to be executed under the
Eighth Amendment that is brought when the challenge is first ripe. Panetti v. Quarterman,
551 U.S. 930, 945-47 (2007); see also Green v. Thaler, 699 F.3d 404, 410 n.3 (5th Cir. 2012)
(“[T]he district court was correct not to treat Green’s motion as a successive filing[] but rather
as a petition for a writ of habeas corpus.”).
        12 28 U.S.C. § 2253(c); Blue v. Thaler, 665 F.3d 647, 653 (5th Cir. 2011).
        13 28 U.S.C. § 2253(c)(2).

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                            No. 14-70005
to deserve encouragement to proceed further.” 14                As we have previously
observed in death penalty cases, “any doubts as to whether a COA should issue
must be resolved in the petitioner’s favor.” 15
       To understand whether reasonable jurists would debate the claim, we
must consider the standard applicable to federal habeas review of state
proceedings. 16 To receive federal habeas relief on her claim, Petitioner must
show that the TCCA’s findings regarding Petitioner’s competence to be
executed were “contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United
States” or “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.” 17 Importantly, “[t]he question . . . is not whether a federal court
believes the state court’s determination was incorrect but whether that
determination was unreasonable—a substantially higher threshold.” 18
                                             III.
       On appeal, Petitioner first argues that the district court erred by
addressing her arguments regarding Article 46.05 of the Texas Code of
Criminal Procedure under the Due Process Clause and failing to address her
constitutional challenge under the Eighth Amendment. This is not, however,
a fair reading of the district court’s memorandum opinion. The district court
based its reasoning principally on the Supreme Court’s decision in Panetti v.
Quarterman, 551 U.S. 930 (2007), which interpreted and applied the Eighth
Amendment.


       14  See Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (quoting Slack v. McDaniel, 529
U.S. 473, 483-84 (2000) (internal quotation marks omitted)).
        15 Blue, 665 F.3d at 653 (citation and internal quotation marks omitted).
        16 Barrientes v. Johnson, 221 F.3d 741, 772 (5th Cir. 2000).
        17 28 U.S.C. § 2254(d).
        18 Schriro v. Landrigan, 550 U.S. 465, 473 (2007); see also Harrington v. Richter, 131

S. Ct. 770, 786-87 (2011).
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                                  No. 14-70005
       Petitioner also argues, as she did before the Texas court and the federal
district court, that the Eighth Amendment imposes a “requirement of
heightened reliability in death penalty cases.” We agree with Petitioner that
the Eighth Amendment incorporates a unique “need for reliability” during
certain stages of capital trials and sentencing proceedings “once the death
penalty is in play.” 19 However, as Justice Powell explained in his controlling
concurrence to Ford, this heightened reliability requirement specifically does
not apply during the determination of competence to be executed:
              [T]he State has a substantial and legitimate interest
              in taking petitioner’s life as punishment for his crime.
              . . . [T]he only question raised is not whether, but
              when, his execution may take place. This question is
              important, but it is not comparable to the antecedent
              question whether petitioner should be executed at all.
              It follows that this Court’s decisions imposing
              heightened procedural requirements on capital trials
              and sentencing proceedings . . . do not apply in this
              context. 20

       We have previously acknowledged the importance of this distinction in
Caldwell v. Johnson, 226 F.3d 367, 373 (5th Cir. 2000). No reasonable jurist
would find that the district court’s rejection of this argument is debatable.
       Petitioner also argues that the Eighth Amendment is violated by Article
46.05 as it is written, regardless of how Article 46.05 was actually applied in
Petitioner’s case. In Petitioner’s view, the federal district court erred by failing
to address the constitutionality of Article 46.05, and instead focusing narrowly
on the procedures to which Petitioner was subjected. Article 46.05(h) provides
that “[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


       19 See United States v. Fields, 483 F.3d 313, 335-36 (5th Cir. 2007).
       20 Ford, 477 U.S. at 425 (Powell, J., concurring in part and concurring in the judgment)
(citations omitted).
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                                No. 14-70005
imminent; and (2) the reason he or she is being executed.” In Petitioner’s view,
three characteristics of this provision are contrary to the Eighth Amendment.
First, the statute requires Petitioner to carry the burden of proof on both parts
of the two-part test for competence established by Ford v. Wainwright, 477 U.S.
399 (1986). Second, the statute places the burden of proof on Petitioner to
demonstrate incompetence by a preponderance of the evidence. Third, the
statute fails to require adequate consideration of Petitioner’s history of
delusional thinking and other mental illness.
       As the district court correctly observed, however, this case does not
require a broad inquiry into whether the text of Article 46.05 explicitly requires
Texas courts to comply with the Eighth Amendment in all cases. Each of the
standards applicable under 28 U.S.C. § 2254(d) restrict a federal habeas court’s
analysis to a state court’s “decision” in a particular prisoner’s case.
Accordingly, so long as the Texas court’s decision regarding Petitioner’s
competence was not contrary to clearly established federal law, did not
constitute an unreasonable application of clearly established federal law, and
did not rely on an unreasonable determination of the facts, we have no basis
under 28 U.S.C. § 2254(d) to engage in a more wide-ranging constitutional
analysis of Article 46.05. 21 Applying the appropriate standards in the present
case, the district court rejected each of Petitioner’s arguments regarding the
Texas court’s application of Article 46.05. As explained below, no reasonable
jurist could find this result debatable.
                                             A.
       Initially, we reject Petitioner’s argument regarding the relationship


       21 For the same reasons, the Texas court did not act unreasonably in failing to address
explicitly the constitutionality of Article 46.05. As the Supreme Court has observed, “a state
court need not cite or even be aware of our cases” to survive habeas review, so long as the
state court’s decision-making is not contrary to or an unreasonable application of clearly
established federal law. Harrington v. Richter, 131 S. Ct. 770, 784 (2011).
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                               No. 14-70005
between the two subsections of Article 46.05(h) and the Supreme Court’s two-
part test for competence to be executed under the Eighth Amendment. This
test is described in Justice Powell’s concurring opinion in Ford, which the
Supreme Court has subsequently recognized as the controlling opinion. 22 This
test requires a determination of whether a prisoner understands both “the fact
of [the] impending execution” and “the reason for it.” 23 In Petitioner’s case, the
Texas court’s findings of fact demonstrate that this two-part test was correctly
applied.    As the Texas court explained, Petitioner understands “that her
execution is imminent and scheduled for February 5, 2014,” and “that she is
being executed because she killed complainant Louis ‘Buddy’ Musso.” 24 The
Texas court’s inquiry under Article 46.05 was therefore faithful to the Eighth
Amendment as interpreted in Ford. Whether Article 46.05 could potentially
be applied in other proceedings so as to deviate from the requirements of Ford
is irrelevant to Petitioner’s case. Reasonable jurists could not debate that the
district court was correct to reject Petitioner’s first argument.
                                             B.
       Petitioner also challenges the burden and standard of proof applied in
this case under Article 46.05. But Petitioner identifies no clearly established
federal law “as determined by the Supreme Court of the United States” that
prevents the State of Texas from requiring Petitioner to prove by a
preponderance of the evidence that she is incompetent to be executed. 25
Indeed, we have previously rejected an argument identical to Petitioner’s in at


       22 See Panetti, 551 U.S. at 949 (“When there is no majority opinion, the narrower
holding controls. See Marks v. United States, 430 U.S. 188, 193 (1977). Under this rule
Justice Powell’s opinion constitutes ‘clearly established’ law for purposes of § 2254 and sets
the minimum procedures a State must provide to a prisoner raising a Ford-based competency
claim.”).
       23 Ford, 477 U.S. at 422 (Powell, J., concurring in part and concurring in the

judgment).
       24 Tex. Ct.’s Findings of Fact ¶41 (Rec. Doc. 3-3).
       25 See 28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. 362, 412-13 (2000).

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least one unpublished case, Lewis v. Quarterman, 272 F. App’x 347, 352 (5th
Cir. 2008). The Sixth Circuit has also considered such an argument and
rejected it. 26 The Eleventh Circuit, sitting en banc in 2011, stated more broadly
that “no United States Supreme Court decision has ever suggested, much less
held, that a burden of proof standard on its own can so wholly burden an Eighth
Amendment right as to eviscerate or deny that right.” 27
       These authorities strongly support the rejection of Petitioner’s
argument. Additionally, Justice Powell held in his controlling concurrence in
Ford that the Eighth Amendment requires only that a competence
determination comport with “due process” and “basic fairness.” 28 At trial, the
Due Process Clause permits a state court to “presume that the defendant is
competent and require him to shoulder the burden of proving his incompetence
by a preponderance of the evidence.” 29 Contrary to Petitioner’s arguments
regarding Panetti and Ford, we have found no indication that the Supreme
Court would impose any stricter requirements in an Eighth Amendment
analysis during a determination of competence to be executed than during a
Due Process analysis of competence to be tried. Reasonable jurists, therefore,
would not debate that the Texas court’s resolution of Petitioner’s claims
represents a reasonable application of federal law as determined by the
Supreme Court.
                                            C.
       Petitioner also argues that Article 46.05 is unconstitutional because it



       26 Coe v. Bell, 209 F.3d 815, 828 (6th Cir. 2000) (upholding “the placement of the
burden of proof on Coe to prove by a preponderance of the evidence that he is incompetent to
be executed”).
       27 Hill v. Humphrey, 662 F.3d 1335, 1338 (11th Cir. 2011) (en banc).
       28 Ford, 477 U.S. at 426-27 (Powell, J., concurring in part and concurring in the

judgment); see also Rivera v. Quarterman, 505 F.3d 349, 358 (5th Cir. 2007).
       29 See Cooper v. Oklahoma, 517 U.S. 348, 355 (1996) (citing Medina v. California, 505

U.S. 437, 446-49 (1992)).
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                                 No. 14-70005
does not explicitly require consideration of Petitioner’s history of delusional
thinking and other mental illness. Indeed, in Panetti v. Quarterman, 551 U.S.
930, 958 (2007), the Supreme Court held that a Texas court applying Article
46.05 had violated the Eighth Amendment by treating “a prisoner’s delusional
belief system as irrelevant” to the Ford inquiry. The Supreme Court did not
suggest, however, that this constitutional violation arose out of any inherent
defect in the Texas statute. Focusing instead on the Texas court’s conduct of
its proceedings, the Supreme Court concluded that the Texas court’s “denial of
certain of petitioner’s motions rest[ed] on an implicit finding” that did not
comport with a “reasonable application of the controlling standard in Ford.” 30
      In our view, therefore, whether or not Article 46.05 explicitly requires
Texas courts to give the proper attention to a prisoner’s delusional belief
system under Panetti, Article 46.05 clearly does not prevent Texas courts from
doing so. For example, we concluded in Green v. Thaler, 699 F.3d 404, 418 (5th
Cir. 2012), that a Texas court had “closely follow[ed] the requirements laid out
in Ford and Panetti . . . [and] applied the correct standard” during a
competence determination under Article 46.05. In the present case, the Texas
court also extensively considered “the defendant’s allegations of delusional
experiences” during the evidentiary hearing. 31 The Texas court concluded,
however, that Petitioner “was not experiencing delusions or hallucinations”
and instead attributed Petitioner’s reports of delusional experiences to her
“history of malingering and engaging in attention-seeking behavior,” including
“falsif[ying] psychiatric and physical symptoms.” 32
      In other words, the Texas court’s inquiry did not end upon verifying
Petitioner’s awareness of the reasons for her execution. Instead, the Texas



      30 Panetti, 551 U.S. at 952-53.
      31 Tex. Ct.’s Findings of Fact ¶38 (Rec. Doc. 3-3).
      32 Id. ¶¶22-25.

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                            No. 14-70005
court complied with Panetti by performing an additional analysis of
Petitioner’s rational understanding of the reasons for her execution in light of
Petitioner’s alleged delusions. 33 We therefore conclude that no reasonable
jurist would find that the district court’s rejection of this claim is debatable.
                                            IV.
       Petitioner also has made several arguments regarding the Texas court’s
factual findings, which in Petitioner’s view were “incorrect and unreliable.” In
particular, Petitioner argues that the deference ordinarily due to factual
findings under 28 U.S.C. § 2254(e)(1) is “less appropriate when the findings
are crafted by a party.” It is true that, on at least two occasions, the Supreme
Court has expressly criticized “courts’ verbatim adoption of findings of fact
prepared by prevailing parties.” 34 Though we also found this practice to be
troubling in Green, however, we concluded that this practice is not contrary to
“clearly established Federal law” and does not reduce the deference otherwise
owed to a state court’s factual findings during habeas proceedings. 35 In the
present case, therefore, precedent bound the district court to decline
Petitioner’s request to apply a heightened standard of factual scrutiny.
Moreover, the Supreme Court has observed that a state court’s decision is
subject to the same deferential standards under 28 U.S.C. § 2254(d) where the
decision “is unaccompanied by an explanation,” and all its findings and
conclusions are therefore implicit. 36 There is therefore no indication in the
Supreme Court’s jurisprudence that findings proposed by a litigant undermine
these standards in any way.
       Petitioner’s brief may also be read to argue that the Texas court failed to


       33See Panetti, 551 U.S. at 958; Green, 699 F.3d at 418.
       34Jefferson v. Upton, 560 U.S. 284, 293-94 (2010); Anderson v. City of Bessemer City,
470 U.S. 564, 572 (1985).
      35 Green, 699 F.3d at 416.
      36 See Harrington, 131 S. Ct. at 784.

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                            No. 14-70005
analyze whether Petitioner understood her own “role in the offense,”
particularly where the offense was carried out by more than one party. As
Petitioner herself has acknowledged during these proceedings, however, this
is a “novel” argument that has not been addressed by the Supreme Court. 37
We therefore cannot conclude that reasonable jurists would debate whether
the state court’s resolution of Petitioner’s claims resulted from an
unreasonable application of clearly established federal law as determined by
the Supreme Court. 38           In any event, a defendant’s acknowledgment and
acceptance of responsibility for her particular role in an offense are distinct
from whether she understands why she is being punished. Here, although
Petitioner has continued to deny that she was primarily responsible for the
victim’s death, the Texas court found explicitly that Petitioner “understands .
. . that she is being executed because she killed complainant Louis ‘Buddy’
Musso.” 39        Assuming only for the sake of argument that the Eighth
Amendment actually imposes a “role in the offense” requirement, the Texas
court        fulfilled   this   purported   requirement      during     the    competence
determination in this case. Accordingly, no reasonable jurist would debate that
the district court properly rejected this argument.
        Finally, Petitioner argues that the Texas court’s findings do not fairly
characterize the totality of the psychiatric evidence presented. We need not
repeat each of the detailed factual findings of the Texas court, which were
carefully reviewed by the federal district court in its memorandum opinion.
After due consideration, we agree with the district court’s observation that the
Texas court’s factual findings regarding Petitioner’s competence are well


        37See Petitioner-Appellant’s Mot. for Leave to File a Second Petition at 12, Basso v.
Stephens, 5th Cir. No. 14-20060 (Jan. 30, 2014) (“The latter is a novel issue; Scott Panetti,
for example, was a sole actor.”).
       38 See 28 U.S.C. § 2254(d); Williams, 529 U.S. at 412-13.
       39 Tex. Ct.’s Findings of Fact ¶41 (Rec. Doc. 3-3).

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                                 No. 14-70005
supported by the record. Significantly, Petitioner does not dispute that both of
the testifying experts, Dr. Quijano and Dr. Moeller, concluded that Petitioner
was competent to be executed. 40 Nor does Petitioner contest that Dr. Moeller
testified “that [Petitioner] was not delusional or psychotic ‘even at her
worst.’” 41 In her petition, Petitioner emphasizes Dr. Quijano’s statement that
Petitioner would not necessarily remain competent if taken off her medication,
but Dr. Moeller also gave testimony regarding his contrary view.                          As the
district court concluded, because it is the province of the finder of fact “to weigh
conflicting evidence and inferences, and determine the credibility of
witnesses,” 42 the Texas court was well within its bounds to find Dr. Moeller’s
opinion on this point more persuasive than Dr. Quijano’s.                       Because these
findings satisfy the standards of Ford and Panetti, therefore, the Texas court’s
conclusion as to Petitioner’s competence was not an unreasonable application
of Supreme Court precedent.
       Moreover, in the absence of clear and convincing evidence as to
Petitioner’s incompetence, the Texas court’s factual findings are entitled to a
presumption of reasonableness under 28 U.S.C. § 2254(e)(1). Accordingly,
jurists of reason would not debate the district court’s rejection of Petitioner’s
arguments regarding the reliability of the Texas court’s factual findings.




       40 Tr. of Competence Hr’g at 181 (Rec. Doc. 5-2) (Dr. Quijano: “Right now she’s not
delusional. . . . The time I saw her she was not delusional.”); Report of Dr. Quijano at 11
(Rec. Doc. 5-1 at 78) (“The defendant understood the reason why she was being executed. She
said that her execution meant that she would die for killing Buddy. She said she will be
executed because she ‘hurt somebody,’ he died, and she will die for it.”); Report of Dr. Moeller
at 7 (Rec. Doc. 5-4 at 8) (“I don’t believe that she has a delusional disorder. . . . In my medical
opinion, Ms. Basso understands that she is to be put to death on February 5, 2014 and what
death means. Moreover, she understands why the state is imposing the penalty.”).
       41 See Tex. Ct.’s Findings of Fact ¶22 (Rec. Doc. 3-3).
       42 Roman v. Western Mfg., Inc., 691 F.3d 686, 692 (5th Cir. 2012) (internal quotation

marks and citation omitted).
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                              No. 14-70005
                                   V.
     For the reasons set forth above and for the reasons set forth in the
district court’s memorandum opinion, none of the challenges raised by
Petitioner are sufficient to merit the grant of a COA. We therefore deny
Petitioner’s application for a COA and associated motion for a stay of
execution.
     IT IS THEREFORE ORDERED that Petitioner’s application for a COA
is DENIED.
     IT IS FURTHER ORDERED that appellant’s motion for stay of
execution scheduled for Wednesday, February 5, 2014 is DENIED.




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