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

                                      No. 15-70002
                                                                                     Fifth Circuit

                                                                                   FILED
                                                                               March 7, 2016

ROBERT SIMON, JR.,                                                            Lyle W. Cayce
                                                                                   Clerk
              Petitioner–Appellant,

v.

MARSHALL L. FISHER, COMMISSIONER, MISSISSIPPI DEPARTMENT
OF CORRECTIONS,

              Respondent–Appellee.




                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                             USDC No. 2:11-CV-111


Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
       Death-row inmate Robert Simon Jr. returns to this Court following a
federal evidentiary hearing on his competency to be executed and the denial of
his petition for habeas corpus. Simon alleges that he suffered a head injury,
which has caused significant memory loss, rendering him incompetent to be
executed. Simon appeals the denial of his habeas petition, arguing that the



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-70002
district court committed clear error in finding him competent to be executed
under the constitutional standards outlined in Ford v. Wainwright, 477 U.S.
399 (1986), and Panetti v. Quarterman, 551 U.S. 930 (2007).
       For the reasons stated below, we conclude that the district court did not
commit clear error and therefore affirm the denial of Simon’s petition for a writ
of habeas corpus.
              I. BACKGROUND AND PROCEDURAL HISTORY
       In 1990, Simon was convicted of the murder of three family members in
Marks, Mississippi, and sentenced to death. 1 In March 2011, following denial
of both state and federal habeas relief, the State of Mississippi moved for the
Mississippi Supreme Court to set an execution date. In response, Simon’s
counsel argued that he was no longer competent to be executed due to a head
injury incurred on January 7, 2011. 2 Following a limited review of Simon’s
competency claim, the Mississippi Supreme Court denied Simon’s motion for
post-conviction relief and granted the State’s motion to set an execution date.
Simon’s execution was set for May 24, 2011. 3
       Simon then filed a federal habeas petition in the United States District
Court for the Northern District of Mississippi on May 13, 2011, challenging the
Mississippi Supreme Court’s competency proceedings. The district court
denied the petition but granted a Certificate of Appealability (“COA”). On
March 1, 2012, we held that Mississippi’s competency proceedings “r[a]n[]
afoul of [Simon’s] right to due process,” as required by Ford and Panetti, and




       1  A summary of the crime and state court convictions can be found in our prior opinion,
Simon v. Epps, 344 F. App’x 69, 71 (5th Cir. 2009).
        2 Simon’s medical records are sparse and do not actually diagnose Simon with a head

injury. Therefore, it is somewhat unclear what, if anything, happened to Simon on or around
January 7, 2011.
        3 Details of the alleged injury and a summary of the state court proceedings can be

found in this Court’s prior opinion, Simon v. Epps, 463 F. App’x 339, 340–43 (5th Cir. 2012).
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reversed the denial of Simon’s habeas petition. Consistent with Ford and
Panetti, we remanded the case for a federal evidentiary hearing on Simon’s
competency claim.
       In anticipation of the hearing, Simon hired neuropsychologist Dr. John
Goff to conduct a neuropsychological evaluation of Simon’s mental condition.
Dr. Goff submitted a report to the district court after conducting an in-person
evaluation of Simon and reviewing his medical records, along with the other
affidavits filed in this case. 4 Dr. Goff’s report found that Simon was exhibiting
“global amnesia” and that “he has essentially lost his identity in his amnesia.”
But Dr. Goff explained that this global amnesia was a “functional condition”
not a neurophysiological one, and he could not rule out the potential that
Simon was malingering. He explained, “I am not able to determine whether
this man is feigning this memory problem or whether he is genuinely convinced
that the memory problem exists.”
       The State of Mississippi hired its own expert, clinical and forensic
psychologist Dr. Gilbert S. Macvaugh III. Dr. Macvaugh evaluated Simon in
person, conducted interviews with various prison officials about Simon’s
condition, and reviewed the records and affidavits filed with the district court.
Dr. Macvaugh found that Simon was malingering his memory loss, explaining
that, “[i]n my opinion, Mr. Simon’s current clinical presentation is better
explained by his naïve attempts to malinger memory deficits and his rather
severe antisocial personality traits.”
       At the evidentiary hearing, Dr. Macvaugh testified for the State. Dr. Goff
did not testify, but Simon presented testimony from his attorneys, Tom
Freeland and Forest Jenkins. Both attorneys described an unsettling visit with



       4Dr. Goff had previously submitted an affidavit on Simon’s condition in the state court
proceedings but had yet to be able to evaluate Simon in person.
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Simon in March 2011, two months after Simon’s alleged head injury, in which
he appeared physically weak and unable to comprehend what was happening
in his case. Freeland testified that he had represented Simon since
approximately 1999 and has visited him in prison about once every 18 months
since taking the case. He also testified that not only had Simon been able to
understand what was happening in his case during prior visits but that he
appeared to no longer even recognize Freeland as his lawyer. Freeland testified
further that he has visited Simon three times since the March 2011 meeting,
and “[h]e doesn’t seem to know any of the history of our interactions and ha[s]
only the dimmest idea who I am.”
      Based on the evidence presented at the evidentiary hearing, the
affidavits of various prison employees, a review of Simon’s medical and
psychiatric records, and supplemental briefing, the district court found that
Simon was malingering his memory defects, explaining “that although Simon
seems unwilling to acknowledge his crimes and death sentences, his purported
memory loss does not prevent him from doing so.” Ultimately, the court found
that Simon is competent to be executed because “Simon understands his crimes
and punishment, and the connection between them” and has a “factual and
rational understanding of the punishment he is facing.” Based on this finding,
the court denied Simon’s petition for habeas corpus but granted a COA on
whether “he meets the Ford/Panetti standard for competence to execute.”
                               II. DISCUSSION
      Federal habeas corpus proceedings are governed by the Antiterrorism
and Effective Death Penalty Act of 1996 (“AEDPA”). Holland v. Anderson, 583
F.3d 267, 271 (5th Cir. 2009). Under AEDPA, to appeal a federal district court’s
final ruling on a habeas petition that arises out of state court proceedings, the
petitioner must obtain a COA. 28 U.S.C. § 2253(c)(1)(A). Because the district


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                                       No. 15-70002
court granted Simon a COA on whether he meets the standard for competence
to execute, this Court has jurisdiction to address the merits of this appeal.
       On federal review of habeas petitions, state court factual findings are
typically afforded deference. See 28 U.S.C. § 2254(e)(1); Panetti, 551 U.S. at
948. But, when a petitioner’s due process rights are violated in state
competency proceedings, he or she is entitled to an evidentiary hearing in
federal district court to resolve the claims de novo. See Panetti, 551 U.S. at
948–52; Ford, 477 U.S. at 418 (plurality opinion). In federal competency
proceedings, application of the correct competency standard is a legal question
this Court reviews de novo, while a district court’s “ultimate finding of
competency” is reviewed for clear error. Panetti v. Stephens, 727 F.3d 398, 409–
10 (5th Cir. 2013); see also Wiley v. Epps, 625 F.3d 199, 204–05 (5th Cir. 2010).
Clear error is a deferential standard and “only requires a factual finding to be
plausible in light of the record as a whole.” United States v. Rodriguez, 630
F.3d 377, 380 (5th Cir. 2011).
       As previously noted, Simon’s competency challenge is governed by the
Supreme Court’s decisions in Ford and Panetti. In Ford, the Supreme Court
held that “the Eighth Amendment prohibits a State from carrying out a
sentence of death upon a prisoner who is insane.” 477 U.S. at 409–10. Ford set
the “federal baseline for competency,” Panetti, 551 U.S. at 935, but left open
the opportunity for states to enact their own competency standards with more
rigorous requirements, 5 Ford, 477 U.S. at 421–22 (Powell, J., concurring in
part and concurring in judgment).



       5 For example, in Simon’s case, the State of Mississippi’s competency statute
requires that the inmate be able to aid his attorney in his defense:
       [A] person shall be deemed to be a person with mental illness if the court finds
       that the offender does not have sufficient intelligence to understand the nature
       of the proceedings against him, what he was tried for, the purpose of his
       punishment, the impending fate that awaits him, and a sufficient
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      The Supreme Court elaborated on Ford in Panetti but declined to
articulate a rule to govern all competency proceedings. Panetti, 551 U.S. at
960–61. On remand, this Court interpreted the Supreme Court’s Panetti
opinion to require a “rational understanding” test: “[T]he test for competence
to be executed involves not only a prisoner’s factual awareness of the crime,
the impending execution, and the state’s reason for executing the prisoner, but
also some degree of ‘rational understanding’ of the connection between the
crime and the punishment,” a “causal retributive connection between the two.”
Panetti, 727 F.3d at 406 (quoting Panetti v. Quarterman, No. A-04-CA-042-SS,
2008 WL 2338498, at *31, *37 (W.D. Tex. Mar. 26, 2008)). Simon does not
appeal the legal standard used by the district court but argues that the district
court committed clear error in finding him competent under this standard. We
conclude it did not.
      Similar to Panetti v. Stephens, 727 F.3d 398 (5th Cir. 2013), the district
court’s finding that Simon is competent rests on an evaluation of conflicting
expert opinions. See 727 F.3d at 410 (“[T]he expert testimony on Panetti’s
‘rational understanding’ of his punishment is conflicting, a circumstance that
is probably itself sufficient to sustain the district court’s judgment under a
clear-error standard.”). The district court reviewed the expert reports and
testimony in great detail, focusing on the salient fact that “Simon’s own expert,
Dr. Goff, reported that Simon was either malingering memory deficits or,
generously stated, that he could not rule out malingering as an explanation for
Simon’s behavior.” See Panetti, 727 F.3d at 411; cf. Bedford v. Bobby, 645 F.3d
372, 378–79 (6th Cir. 2011) (“The Supreme Court has never held, much less


       understanding to know any fact that might exist that would make his
       punishment unjust or unlawful and the intelligence requisite to convey that
       information to his attorneys or the court.
Miss. Code. Ann. § 99-19-57(2)(b) (emphasis added).

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suggested, that the failure to recall precise facts of an offense amounts to the
kind of incompetence that prohibits the execution of a defendant.”). The district
court’s reconciliation of the expert’s testimony is “entitled to ‘great deference’
from this Court.” Panetti, 727 F.3d at 411.
      The district court also carefully considered the testimony of Simon’s
attorneys, noting “no lack of credibility in the testimony of Simon’s counsel”
but ultimately finding that “insufficient evidence exists to sufficiently
corroborate their impressions that Simon appears to have a genuine
impairment that would preclude his lawful execution under the relevant legal
standards.” In light of the record, the district court’s assessment of their
testimony is not clear error. As noted above, Simon’s own expert could not rule
out the potential that he was malingering his memory defects, and, due to this
fact, he did not testify at the evidentiary hearing. Even after the district court
ordered supplemental briefing due to “its concern that the evidence presented
by Simon [at the evidentiary hearing] appeared to be sparse,” no other
testimony or evidence in the record serves to sufficiently corroborate the
attorney’s impressions of Simon’s condition and support his competency claim.
      As demonstrated in its thorough opinion, the district court diligently
analyzed the other evidence in the record in arriving at its conclusion that
Simon’s “purported memory loss is feigned.” The court carefully reviewed
Simon’s medical and psychiatric records, prison administrative records, and
the affidavits of various prison employees and medical personnel. In particular,
the district court pointed to the affidavit of a prison guard that recalled Simon
saying, “You know, I had to play my role out, about my head injury, all the way
up to my execution, you know.” The court highlighted the fact that Simon, or
another inmate acting on Simon’s behalf, wrote pen pals about his
deteriorating mental condition at least two years before the alleged injury even
occurred. The court also explained the significance of the fact that Simon
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                                  No. 15-70002
received a book entitled “Diagnostic and Statistical Manual of Mental
Disorders” from an unknown source around the time Simon began his
competency challenge. In light of this evidence, the district court did not clearly
err in finding Simon competent.
      Simon argues that the district court erred in relying on the fact that he
“did not suffer a mental illness or cognitive deficit for nearly twenty years
before the fall and memory loss.” A determination of whether a prisoner is
competent to be executed is an evaluation of an inmate’s current condition as
“[p]rior findings of competency do not foreclose a prisoner from proving he is
incompetent to be executed because of his present mental condition.” Panetti,
551 U.S. at 934–35. In Simon’s case, the district court simply referenced his
lack of prior mental illness to distinguish his case from the facts of Ford and
Panetti: “Unlike Alvin Ford and Scott Panetti . . . Simon has no long and
documented history of severe mental illness or delusional thinking through
which his current experiences must be filtered in order to resolve questions as
to his competency.” In Panetti, the Supreme Court held that the petitioner’s
“gross delusions” were a relevant factor that should be considered in
determining whether he was currently competent for execution. Id. at 960.
Therefore, under Panetti, were Simon to have a history of mental illness,
evaluation of his competency claim would need to take this history into
account. But, because Simon has no history of mental illness, there is no
history “through which his current experiences must be filtered.”
      Therefore, based on the district court record and evidence presented at
Simon’s evidentiary hearing, the district court did not clearly err in its finding
that Simon is competent to be executed.
                              III. CONCLUSION
      For the foregoing reasons, we AFFIRM the district court’s denial of
Simon’s habeas petition.
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