     Case: 18-70006      Document: 00514598228         Page: 1    Date Filed: 08/14/2018




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

                                                                                 FILED
                                      No. 18-70006                         August 14, 2018
                                                                            Lyle W. Cayce
STEVEN ANTHONY BUTLER,                                                           Clerk


              Petitioner - Appellant

v.

LORIE DAVIS, 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. 4:07-CV-2103


Before OWEN, HAYNES, and COSTA, Circuit Judges.
PER CURIAM:*
       Steven Butler seeks a certificate of appealability (COA) to challenge his
capital conviction as the result of ineffective assistance of counsel.                        His
arguments are that his trial counsel failed (1) to present expert witnesses with
important information indicating that he was incompetent to stand trial and
(2) to investigate Butler’s potential impaired intellectual functioning and



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
     Case: 18-70006       Document: 00514598228         Page: 2    Date Filed: 08/14/2018



                                      No. 18-70006
competence and present that as mitigating evidence during the penalty phase
of trial. We DENY the COA.
           I.   Background.
       Butler confessed to a robbery spree that involved ten incidents in less
than five months during which, in addition to robbery, he committed murders,
attempted murders and rape. 1 He was eventually apprehended, arrested, and
 charged with capital murder based upon his fifth robbery, during which he
 shot and killed an unarmed woman. Ex Parte Butler, 416 S.W.3d 863, 867
(Tex. Crim. App. 2012) (per curiam).
       Before trial, Butler corresponded with his trial counsel and exhibited
some unusual behavior referencing “demons” and a non-existent person, “R.
Palmer,” who he seemed to rely upon for his actions. About a year after the
first reference to “R. Palmer,” Butler’s trial counsel requested examinations
to determine whether Butler was sane and competent.                        Two experts—
psychiatrist Jaime Ganc and clinical psychologist Ramon Laval—each
independently evaluated Butler on two different days in September 1988. The
reports are similar, both premised only on the interviews with Butler. Each
indicates information from Butler about his childhood, specifically that he was
in an orphanage in Illinois and later adopted by the Butler family of
Mississippi. The rest of the expert’s comments are unremarkable except that
each concluded, based on Butler’s then-present cognitive functioning, that
Butler was competent to stand trial.




       1 Butler’s crimes and previous attempts at habeas relief are described by the Texas
Court of Criminal Appeals, see Ex parte Butler, 416 S.W.3d 863 (Tex. Crim. App. 2012), Butler
v. State, 872 S.W.2d 227 (Tex. Crim. App. 1994), and a previous decision of our court, see
Butler v. Stephens, 625 F. App’x 641 (5th Cir. 2015) (per curiam). We recite here only the
facts necessary to resolve Butler’s current motion.
                                             2
    Case: 18-70006    Document: 00514598228    Page: 3   Date Filed: 08/14/2018



                                No. 18-70006
      The record does not indicate that Butler’s trial counsel took any further
steps to challenge Butler’s competency after receiving these reports. Butler
stood trial about two months later, when a jury convicted him and sentenced
him to death. He did not raise the issue of competency on direct appeal.
      While pursuing state habeas relief, Butler’s habeas counsel found letters
from Butler to his trial counsel referencing “R. Palmer.” He also realized that
Butler’s statements regarding his birth and his alleged time in an orphanage
were inconsistent with testimony from Butler’s parents at trial. They testified
that Butler was born and raised in Mississippi to their family, not adopted
after being born in Illinois. Additionally, Butler’s new counsel noticed that
Butler told Dr. Laval that he was sent to a mental ward at age 16, but he told
Dr. Ganc that he had not had any previous psychiatric care.
      Butler’s new counsel identified other information, apparently not known
to Butler’s trial counsel, that he believed proved Butler was not mentally
competent at the time of trial, including: Butler’s use of drugs; reports from
another inmate that Butler was “crazy” and talked to himself; reports from an
attorney who represented him in a different criminal case that Butler was
abusive and accused the attorney of conspiring with the government; a prison
diagnostic report stated that Butler had a “dysphoric mood” and “sad affect,”
which indicated he was “a depressed, somewhat paranoid individual who has
a high potential for harm to self or others” and may have psychosis (or be
malingering); and Butler’s extreme weight loss following his arrest.
      Butler’s new counsel contacted Drs. Ganc and Laval in 2002 to determine
if their previous conclusions of competence still stood in light of the strange
letters, Butler’s false statements, and the other additional evidence. They had
somewhat differing views from each other on the impact of this new
information.


                                      3
    Case: 18-70006    Document: 00514598228     Page: 4   Date Filed: 08/14/2018



                                 No. 18-70006
      Dr. Ganc wrote that he could not modify his original opinion: “During my
evaluation, according to my interpretation of my report, I did not feel there was
any behavior or thinking that kept him from communicating with his
counselor. This conclusion is stated in my report and I will stand by it.”
      Dr. Laval, however, was more equivocal. He noted that at the time of his
evaluation, he “was not privy” to the information that Butler had accused his
attorney of being a demon or that Butler had lied to Dr. Laval during the
evaluation.    For Dr. Laval, “collateral information suggesting that the
defendant is manifesting paranoid thoughts or delusional ideas that involve
his own attorney is of marked significance.” He expressed concerns that “at
the time that [he] conducted [his] evaluation of Mr. Butler in September of
1988, there was available information regarding his state of mind which would
have been not only relevant but of paramount importance in reference to the
issue of competency to stand trial.” He believes that if he “reviewed and had
been made aware of all that information,” then it “is possible . . . [he] would
have concluded that Mr. Butler was not competent and required psychiatric
treatment, including the use of anti-psychotic medication, for his competency
to be restored.”
      Butler’s new counsel also contacted a third expert, psychiatrist Dr.
George Woods, to re-assess Butler’s history. Dr, Woods noted that Butler
“suffers from a major mental illness, Bipolar Disorder” and that the Texas
Department of Criminal Justice “has acknowledged these symptoms and
attempted treatments of this illness since 1995.” His report connected the
information in the bullet points above to symptoms of Bipolar Disorder. Dr.
Woods concluded that Drs. Ganc and Laval “had none of the information that
had to be taken into account to make an accurate assessment of whether there
were any problems in Mr. Butler’s relationship with his lawyers and whether


                                       4
    Case: 18-70006    Document: 00514598228     Page: 5   Date Filed: 08/14/2018



                                 No. 18-70006
those problems were due to mental illness.” Dr. Woods went a step further and
concluded that “Butler likely did not have capacity to cooperate with and assist
his lawyers in his defense.”
      Armed with the new information and reports, Butler sought state habeas
relief. Among his many arguments were two spurred by the information about
Butler’s competence. First, he argued that he was deprived of the right to
counsel because his counsel was ineffective for failing to inform Drs. Ganc and
Laval about Butler’s erratic letters and lies during the evaluations. Second,
he contended that his counsel was again ineffective for failing to raise the
mental competency evidence during the punishment phase of trial to mitigate
his sentence.
      The circuitous route that those two issues have taken is described in
depth in our previous opinion. See Butler v. Stephens, 625 F. App’x 641, 656–
60 (5th Cir. 2015) (per curiam), cert. denied, 136 S. Ct. 1656 (2016). To make
a long procedural history short, we concluded that Butler procedurally
defaulted these issues in state court and the district court initially did not
review the issues as barred. In light of intervening precedent, we vacated that
decision and remanded, concluding that a subsequent Supreme Court decision,
Martinez v. Ryan, may have provided a chance for Butler to overcome the
procedural default. 566 U.S. 1 (2012).
      On remand, the district court concluded that the default could not be
excused under Martinez because Butler’s arguments were “without merit.” It
denied a COA. Butler now requests that we grant him a COA on the two issues.
      II.   Standard of review.
      Because no state court has previously considered the merits of Butlers’
two arguments, our analysis of whether to grant a COA is based upon an



                                         5
    Case: 18-70006     Document: 00514598228      Page: 6   Date Filed: 08/14/2018



                                  No. 18-70006
underlying standard of review that is de novo. See Hoffman v. Cain, 752 F.3d
430, 437 (5th Cir. 2014).
      “To succeed on an [ineffective assistance of counsel] claim, a defendant
must show that (1) his counsel’s representation fell below an objective standard
of reasonableness, and (2) the counsel’s deficient performance prejudiced the
defendant.” United States v. Fields, 761 F.3d 443, 453 (5th Cir. 2014) (internal
quotation marks omitted) (quoting, in part, Roe v. Flores-Ortega, 528 U.S. 470,
476–77 (2000)). “The objective standard of reasonableness is measured under
prevailing professional norms.”       Id. (internal quotation marks omitted)
(quoting, in part, Rompilla v. Beard, 545 U.S. 374, 380 (2005)). “To prove
prejudice, ‘[t]he defendant must show that there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would
have been different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome.’” Trevino v. Davis, 861 F.3d 545, 549
(5th Cir. 2017) (brackets in original) (quoting Strickland, 466 U.S. at 694), cert.
denied, 138 S. Ct. 1793 (2018). When a defendant asserts that his counsel was
ineffective for failing to investigate mitigating evidence, “we reweigh the
evidence in aggravation against the totality of available mitigating
evidence.” Id. (quoting Wiggins v. Smith, 539 U.S. 510, 534 (2003)).
       Because Butler only seeks a COA at this stage, his burden is lighter.
Butler must demonstrate that his claims of constitutional violations were such
that jurists of reason could debate the district court’s disposition of the issues.
Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (quotation marks omitted)
(quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). If a district court denies
a habeas petition on procedural grounds, we grant a COA “when the prisoner
shows, at least, that jurists of reason would find it debatable whether the
petition states a valid claim of the denial of a constitutional right and that

                                        6
    Case: 18-70006     Document: 00514598228     Page: 7   Date Filed: 08/14/2018



                                  No. 18-70006
jurists of reason would find it debatable whether the district court was correct
in its procedural ruling.” Segundo v. Davis, 831 F.3d 345, 350 (5th Cir. 2016)
(quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). We are charged with
reviewing the case only through this prism and thus must make only a general
assessment of the merits. Id.; see also Buck v. Davis, 137 S. Ct. 759, 773 (2017).
In a death penalty case, doubts about granting a COA should be resolved in
favor of a grant. Escamilla v. Stephens, 749 F.3d 380, 387 (5th Cir. 2014).
     III.   Discussion.
      Butler argues that his trial counsel was ineffective in two ways. First,
he failed to provide critical information bearing on competency to the experts
that evaluated him. Second, he failed to investigate Butler’s alleged impaired
intellectual functioning and mental illness and then present evidence of it
during the penalty phase of trial. Though Butler defaulted on those issues in
state court, we may review those claims if (1) Butler had a “substantial” claim
that his trial counsel was ineffective and (2) at the initial-review collateral
proceeding, the prisoner either had no counsel or counsel was ineffective.
Martinez, 566 U.S. at 17. We must therefore first address whether jurists of
reason could debate that Butler’s claim of ineffective trial counsel is
“substantial.”
         A. Presentation of evidence to experts regarding competency.
      First, Butler argues that his trial counsel was ineffective because he
failed to present certain information to the experts evaluating Butler for
mental competency.      Criminal defendants may be tried only if mentally
competent. See Carter v. Johnson, 131 F.3d 452, 459 (5th Cir. 1997). Prisoners
have sought habeas relief on the basis that their attorneys were ineffective by
failing to challenge the prisoner’s competence to stand trial. See, e.g., Moody
v. Johnson, 139 F.3d 477, 482–83 (5th Cir. 1998). In a similar context, we have

                                        7
    Case: 18-70006    Document: 00514598228      Page: 8   Date Filed: 08/14/2018



                                 No. 18-70006
held that attorneys may rely on the opinion of experts in assessing a
defendant’s mental health. See Segundo, 831 F.3d at 352. We do not appear
to have addressed whether an attorney may rely on an expert’s opinion when
it is based on information the attorney knows (or should know) to be incorrect.
      Even assuming a COA on the deficient performance prong under
Strickland would therefore be appropriate, Butler must still show that jurists
of reason would debate the district court’s conclusion that he has not shown
prejudice. Under Strickland, a prisoner must not only prove that his counsel
acted deficiently, he must also show that it affected the outcome of his
conviction. See Trevino, 861 F.3d at 549.     To prove mental incompetency at
the time of trial, Butler would have had to produce evidence that he did not
have either “sufficient present ability to consult with his lawyer with a
reasonable degree of rational understanding” or a “rational as well as factual
understanding of the proceedings against him.” Dusky v. United States, 362
U.S. 402, 402 (1960) (per curiam); see also TEX. CODE OF CRIM. PROC. ART.
46.02, § 1A (Vernon 1986). Butler would have borne the burden of proving that
he was incompetent at the time of trial, and currently bears the burden of
demonstrating that jurists of reason would debate the issue of prejudice in this
regard. See Rector v. Johnson, 120 F.3d 551, 563 (5th Cir. 1997) (“[Habeas
petitioner] bears the burden of proving both prongs [of Strickland] . . . .”);
Manning v. State, 730 S.W.2d 744, 748 (Tex. Crim. App. 1987) (“[A] defendant
has the burden of proving by a preponderance of the evidence, his
incompetency to stand trial or his insanity at the time of the offense.”).
      Butler argues that his trial counsel should have “undertaken the
investigation of Butler’s mental illness” and “communicated the information
that they would have found, together with their own experiences with Butler,
to the court-appointed experts.” Butler argues there is a reasonable probability

                                        8
    Case: 18-70006      Document: 00514598228        Page: 9    Date Filed: 08/14/2018



                                    No. 18-70006
that the experts would have come to a different conclusion and, in turn, “the
trial court would have found Butler incompetent to stand trial.”
      Butler has not presented any competent evidence that supports his
theory that the additional evidence would have changed the experts’ opinions.
Dr. Ganc firmly stated that his original assessment stood. Dr. Laval said only
that “it is possible” that he could have concluded that Butler was incompetent. 2
Butler argues that this is sufficient to meet Strickland’s requirement that
there be a “reasonable probability” that the outcome of his case would have
been different. Trevino, 861 F.3d at 549. But jurists of reason would not debate
that Dr. Laval’s later equivocation about Butler’s competency does not satisfy
the prejudice standard. We have held that an expert opinion that is “perfectly
equivocal” cannot “make any fact more or less probable and is irrelevant.”
Pipitone v. Biomatrix, Inc., 288 F.3d 239, 245 (5th Cir. 2002) (affirming
rejection of expert testimony that a fact was “as likely as not”). Dr. Laval’s
later testimony does not provide any trustworthy indication that the experts
would have come to a different conclusion, much less that it would have
resulted in a trial court declaring him incompetent to stand trial.
      Consequently, we DENY a COA on Butler’s first issue.
          B. Investigation of mental illness and impaired intellectual
             functioning.
      Second, Butler argues that his trial counsel was ineffective for failing to
more fully investigate Butler’s alleged impaired intellectual functioning and
mental illness. Had trial counsel done such an investigation, Butler believes
he could have avoided the death penalty. His theory is that trial counsel could


      2 Butler also argues that Dr. Woods’s report proves prejudice, but, as his briefing
recognizes, his theory of prejudice requires showing that the original experts would have
concluded he was incompetent. Here, we do not need to hypothesize about those experts’
views because we have their testimony, which we examine here. To the extent Dr. Woods is
an “uncalled witness,” we address that below. See infra note 4.
                                           9
   Case: 18-70006    Document: 00514598228      Page: 10   Date Filed: 08/14/2018



                                 No. 18-70006
have explained to the jury that the robberies, rape, and murders were the
product of his mental illness amplified by impaired intellectual functioning,
drug use, and desperation for money to fuel his new addiction. This supposedly
would have disproved that the crime was “committed deliberately and with the
reasonable expectation that the death of the deceased would result,” a
necessary prerequisite to Butler receiving the death penalty.         We again
conclude that no reasonable jurist would find fault with the district court’s
conclusion.
      To begin with, Butler now relies on evidence that is too speculative to be
of any use, despite having had decades to develop a theory and discover
additional evidence. His entire theory comes from Dr. Woods’s expert report.
Dr. Woods’s conclusions are hedged so thoroughly that they cannot provide any
reliable basis for Butler’s theory. The best he could say was that “Butler was
likely feeding a growing drug addiction” and “likely developed a need for more
money than he could earn,” so he “could very well have turned to robbery as an
alternative means of generating enough money to buy drugs.” But Dr. Woods
also reported that Butler sold marijuana and was employed in the oil industry,
undermining his conclusion that Butler would quickly run out of money. Even
more problematic is the total absence of evidence from Butler himself that the
purpose of his crimes was to feed a drug addiction. If all Butler can now
present in support of his theory is conjecture, reasonable jurists would not
debate that the additional evidence would not have swayed the jury. See
McBride v. Johnson, 122 F.3d 1067, 1997 WL 464545, at *6 (5th Cir. 1997)
(unpublished) (concluding there was no prejudice for failing to investigate




                                      10
    Case: 18-70006       Document: 00514598228          Page: 11     Date Filed: 08/14/2018



                                       No. 18-70006
mental health history and contest incompetency where the argument for
incompetence was “based purely on speculation”). 3
       Additionally, Butler’s theory does not even begin to explain his ruthless
and depraved crimes.          We have denied a COA when the “severity of the
offense” and an “apparent pattern of criminal activity” were so egregious that
“additional mitigating evidence” would be insufficient to sway the jury. Sorto
v. Davis, 672 F. App’x 342, 351 (5th Cir. 2016) (per curiam). Similarly, we
denied a COA when “the aggravating evidence was overwhelming.” Guevara
v. Stephens, 577 F. App’x 364, 371 (5th Cir. 2014) (per curiam). No rational
jury, after hearing about Butler’s meticulously planned and despicably
executed crimes, would be swayed by Butler’s new theory, premised on the
flimsiest of conjecture. For example, Butler cites Dr. Woods’s report to argue
that Butler’s murders were likely a “defensive response that did not reflect
deliberation or planning,” which were triggered by a Bipolar-and-drug-induced
paranoia. But that conclusion is at odds with Butler’s meticulously planned
crimes that included specific threats to kill people if they attempted to stop
him, as well as the wholly gratuitous and violent sexual assaults. Butler’s
attempted connections from his crimes to his alleged mental illness are so
attenuated that no reasonable jurist would conclude he suffered prejudice
under Strickland. See Nixon v. Epps, 405 F.3d 318, 327–28 (5th Cir. 2005)
(concluding that a prisoner failed to satisfactorily connect his mental illness to
the commission of his crimes and thus failed to show prejudice). 4



       3 “An unpublished opinion issued after January 1, 1996 is not controlling precedent,
but may be persuasive authority. 5th Cir. R. 47.5.4.” Ballard v. Burton, 444 F.3d 391, 401 &
n.7 (5th Cir. 2006).
       4  The State also contends that Butler’s argument is one of “uncalled witnesses,” citing
Woodfox v. Cain, 609 F.3d 774, 808 (5th Cir. 2010), and Day v. Quarterman, 566 F.3d 527,
538–39 (5th Cir. 2009). When a habeas petitioner argues that his trial counsel was ineffective
for failing to call a witness who would have introduced mitigating evidence, he must “name
                                             11
    Case: 18-70006        Document: 00514598228           Page: 12     Date Filed: 08/14/2018



                                        No. 18-70006
       No reasonable jurist would debate whether Butler was prejudiced by the
lack of evidence regarding his mental health history. We DENY a COA on
Butler’s second issue.
       COA DENIED.




the witness, demonstrate that the witness was available to testify and would have done so,
set out the content of the witness’s proposed testimony, and show that the testimony would
have been favorable to a particular defense.” Day, 566 F.3d at 538. Butler counters that his
argument is one of failure to investigate, and he need only show “what the investigation
would have revealed and how it would have altered the outcome of the trial.” Lockett v.
Anderson, 230 F.3d 695, 713 (5th Cir. 2000). But Butler’s entire theory is that had his trial
counsel effectively investigated, he would have found an expert witness to testify of evidence
regarding his mental illness. When the investigation is of that nature, we still follow the rules
of uncalled witnesses. See Woodfox, 609 F.3d at 808 (“Woodfox maintains . . . that counsel
was ineffective for failing to obtain his own experts . . . . At bottom, Woodfox’s claim is one of
uncalled witnesses.”); Gregory v. Thaler, 601 F.3d 347, 351–53 (5th Cir. 2010) (analyzing the
investigation claim in light of the fact that he intended to present evidence through
witnesses). Jurists of reason would not debate that Butler cannot establish the requisites for
a successful “uncalled witness” claim.
                                               12
