     Case: 13-70023      Document: 00513656187         Page: 1    Date Filed: 08/29/2016




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


                                      No. 13-70023                               FILED
                                                                           August 29, 2016
                                                                            Lyle W. Cayce
GERALD CORNELIUS ELDRIDGE,                                                       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. 4:05-CV-1847


Before STEWART, Chief Judge, and OWEN and SOUTHWICK, Circuit
Judges.
PER CURIAM:*
       Gerald Cornelius Eldridge filed a petition for writ of habeas corpus in
the district court, contending that he is incompetent to be executed due to




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-70023

mental illness under Ford v. Wainwright 1 and Panetti v. Quarterman. 2 The
district court held an evidentiary hearing and then denied Eldridge’s petition,
finding him competent to be executed. We granted a certificate of appealability
(COA), 3 and we now affirm.
                                               I
      In 1994, Eldridge was convicted of murdering his former girlfriend
Cynthia Bogany, and her daughter Chirissa, and was sentenced to death. As
we previously recounted:
      The evidence established that Eldridge went to Cynthia Bogany’s
      apartment, kicked in the door, and shot Chirissa between the eyes
      at point-blank range, killing her instantly. Eldridge then shot at
      close range his son Terrell and another individual, Wayne Dotson,
      both of whom were wounded but survived. Cynthia fled the
      apartment but Eldridge chased and caught her when she tripped
      and fell on the stairs outside a neighbor’s apartment. Despite
      Cynthia’s pleas for her life, Eldridge shot her twice in the head,
      killing her instantly. Eldridge was twenty-eight years old at the
      time of the murders. 4
Eldridge’s first habeas corpus petition was pending in the Texas state courts
when the Supreme Court decided Atkins v. Virginia. 5 He subsequently filed a
second petition raising an Atkins claim; the Texas courts denied the first
petition, and dismissed the second as an abuse of the writ. Eldridge then filed
a habeas petition in federal district court raising only his Atkins claim. The
district court determined Eldridge was not intellectually disabled and that his
execution would not be unconstitutional under Atkins.                  This court denied



      1   477 U.S. 399 (1986).
      2   551 U.S. 930 (2007).
      3   Eldridge v. Stephens, 608 F. App’x 289 (5th Cir. 2015).
      4   Eldridge v. Quarterman, 325 F. App’x 322, 323 (5th Cir. 2009).
      5   536 U.S. 304 (2002).


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Eldridge’s request for a COA. 6             Eldridge’s execution was scheduled for
November 17, 2009.
      On August 19, 2009, Eldridge moved the state trial court to appoint a
mental-health expert to conduct a preliminary evaluation of his competence to
be executed. The state trial court appointed Dr. Mary Alice Conroy, who
interviewed Eldridge for two hours and concluded that Eldridge appeared to
suffer from a psychotic disorder. On September 17, 2009, the trial court then
granted the State’s motion to allow Dr. Mark S. Moeller to evaluate Eldridge.
Dr. Moeller concluded Eldridge was malingering (i.e., feigning mental illness)
to avoid execution.        Eldridge then requested funding for a comprehensive
evaluation of his competency to be executed and sought an evidentiary hearing.
The state trial court denied both requests. On November 16, 2009, the eve of
Eldridge’s execution, the Texas Court of Criminal Appeals affirmed the trial
court. Eldridge then filed a habeas corpus petition in federal district court on
the ground that he was incompetent to be executed.
      The district court determined Eldridge had made a substantial showing
of incompetency based on demonstrated bizarre behavior and delusional
statements, corroborated by expert evidence, and that Eldridge was entitled to
a hearing on his claim. The court further concluded that the state court’s
failure to grant Eldridge funding for a comprehensive evaluation or give him
an opportunity to respond to the State’s expert opinion did not adhere to the
requirements of due process as articulated by the Supreme Court in Panetti, 7
and therefore, that the state court’s finding of competency was not entitled to
deference under the Anti-Terrorism and Effective Death Penalty Act



      6   Eldridge, 325 F. App’x at 329.
      7   551 U.S. 930, 949-50 (2007).


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(AEDPA). 8 The district court stayed Eldridge’s execution, granted him funding
for expert assistance, and scheduled an evidentiary hearing.
      At the hearing, the district court heard testimony from four mental-
health experts: Dr. Pradan A. Nathan, Eldridge’s treating psychiatrist for two
years prior to the hearing; Dr. Michael Roman, a clinical psychologist retained
by Eldridge specifically for his habeas petition; Dr. Thomas Allen, the forensic
psychologist retained by the State; and Dr. Mark S. Moeller, the board certified
psychiatrist who testified in the state habeas proceedings, also retained by the
State. The court found that Dr. Roman’s testimony was neither reliable nor
credible. The court also found that Dr. Nathan’s testimony, while credible, was
limited in probative value because most of his contact with Eldridge was via
videoconference, and because Dr. Nathan had not specifically tested for
malingering. In contrast, the court noted that the State’s experts both had
considerably more forensic experience than Dr. Roman and were credible
witnesses.
      In determining that Eldridge was competent, the district court first
noted that a number of mental-health professionals had raised questions about
Eldridge’s credibility and found that he was feigning symptoms, and that other
courts had rejected his claims of mental retardation based on findings that his
claimed cognitive and intellectual limits were neither credible nor accurate.
The court then concluded that, although there was some evidence that Eldridge
is mentally ill:
      [The State] was able to marshal far more evidence in support of
      [its] position that Eldridge has a far greater understanding of the
      reality he faces than Eldridge admits or describes . . . includ[ing]
      years of inconsistencies in the symptoms Eldridge described and
      the behavior he exhibited; years of mental health professional
      assessments; test results showing malingering; and Dr. Allen’s


      8   See 28 U.S.C. § 2254(d).
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         own observations of the numerous and substantial inconsistencies
         between Eldridge’s claimed symptoms and his behavior.
The court noted that Dr. Moeller had “also presented compelling evidence that
Eldridge is malingering, noting the atypical presentation of Eldridge’s
symptoms.”
         The district court therefore found Eldridge to be competent to be
executed and denied his petition for writ of habeas corpus. 9 Eldridge appealed,
and we granted a COA on the sole issue raised in Eldridge’s habeas petition—
his competence to be executed. 10
                                                  II
         “In a habeas corpus appeal, we review the district court’s findings of fact
for clear error and review its conclusions of law de novo, applying the same
standard of review to the state court’s decision as the district court.” 11 A
prisoner’s competency to be executed is a factual determination, and a state
habeas court’s factual finding is usually entitled to deference under
§ 2254(e)(1). 12 In this case, however, the district court determined that the
state court, when it found Eldridge competent to be executed, denied Eldridge
due process because it refused to grant him funding for a comprehensive
psychiatric evaluation after Eldridge made a substantial showing of his
incompetency. 13 The district court therefore did not afford the state court any


         9   Eldridge v. Thaler, No. CIV. H-05-1847, 2013 WL 416210, at *1 (S.D. Tex. Jan. 31,
2013).
         10   Eldridge v. Stephens, 608 F. App'x 289 (5th Cir. 2015).
         11   Thompson v. Cain, 161 F.3d 802, 805 (5th Cir. 1998).
         12   Patterson v. Dretke, 370 F.3d 480, 484 (5th Cir. 2004).
          See Panetti v. Quarterman, 551 U.S. 930, 949 (2007) (“Once a prisoner seeking a
         13

stay of execution has made ‘a substantial threshold showing of insanity,’ the protection
afforded by procedural due process includes a ‘fair hearing’ in accord with fundamental
fairness.” (quoting Ford v. Wainwright, 477 U.S. 399, 424, 426 (1986) (Powell, J.,
concurring))).


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deference when making its own determination of Eldridge’s competence. 14
Accordingly, we now review for clear error the district court’s finding that
Eldridge is competent to be executed. 15 “A finding is clearly erroneous only if
it is implausible in the light of the record considered as a whole.” 16
                                              III
      The Eighth Amendment’s prohibition on cruel and unusual punishment
prohibits the execution of a prisoner who is incompetent. 17 The Supreme Court
has declined to set forth a specific standard for determining a prisoner’s
competency to be put to death; however, it has noted that “[g]ross delusions
stemming from a severe mental disorder may put an awareness of a link
between a crime and its punishment in a context so far removed from reality
that the punishment can serve no proper purpose.” 18 This court has previously
discussed with approval a standard that seeks to determine whether the
prisoner has a rational understanding of his crime, his impending death, and
the causal relationship between the two. 19 The district court articulated this
standard in its order, explaining that “[t]he critical issue is whether Eldridge
has a present rational understanding of the fact of his crime, of his death
sentence, and of the connection between his crime and his death sentence.”




      14  See Panetti, 551 U.S. at 948 (holding that no deference was owed when the “state
court’s failure to provide the procedures mandated by Ford constituted an unreasonable
application of clearly established law”).
      15  Thompson, 161 F.3d at 805; see also Panetti v. Stephens 727 F.3d 398, 409-10 (5th
Cir. 2013) (reviewing the district court’s competence standard de novo while reviewing the
district court’s “ultimate finding of competency” for clear error).
      16   St. Aubin v. Quarterman, 470 F.3d 1096, 1101 (5th Cir. 2006).
      17   Ford v. Wainwright, 477 U.S. at 409-10.
      18Panetti, 551 U.S. at 960-61 (“[W]e do not attempt to set down a rule governing all
competency determinations.”).
      19   Panetti, 727 F.3d at 409-10.
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      In concluding that Eldridge had a rational understanding of those facts
and was therefore competent to be executed, the district court found that
although Eldridge had presented evidence of mental illness, there was
extensive evidence inconsistent with his claim of incompetence, particularly in
regard to malingering and feigning symptoms. We now consider Eldridge’s
challenges to the district court’s findings.
                                        A
      Eldridge first argues that the district court failed to give sufficient
weight to the evidence that his symptoms had been documented at length by
mental-health professionals at the Texas Department of Criminal Justice
(TDCJ) without any suggestion that they might be feigned, and that he has
been prescribed powerful antipsychotic medications since 2009.               This
argument fails because the district court explicitly considered Eldridge’s
mental-health history—indeed, it found that “Eldridge has presented evidence
supporting his claim that he is mentally ill.” It simply determined that the
veracity of this evidence was called into question by “the inconsistency of his
symptoms, the self-serving nature of his complaints, past findings of
malingering by [the] court[,] and suspicions of malingering by treating
professionals and expert witnesses,” who evaluated Eldridge forensically.
      Eldridge takes issue with the district court’s reliance on his past history
of malingering, which he claims constitutes an improper assumption that he is
necessarily feigning his present symptoms.        However, the district court’s
reliance on Eldridge’s past history of malingering was only one of a number of
facts that it appropriately considered as probative, but not dispositive,
evidence of malingering. Eldridge does not argue that his past history of
malingering has no evidentiary value, and thus his assertion that the district
court improperly relied on it fails. The district court did not clearly err in its
weighing of this evidence.

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                                        B
      The district court found that Dr. Nathan’s conclusion that Eldridge’s
symptoms were genuine did not support a finding that he was incompetent to
be executed because Dr. Nathan had conducted his evaluations of Eldridge via
videoconference and had not specifically tested for malingering.          Eldridge
asserts that the district court erred in discounting Dr. Nathan’s assessment
because Dr. Nathan is a trained psychiatrist with nearly thirty years of
forensic psychiatric experience, and he was constantly looking for signs of
malingering. Eldridge also points to the fact that Dr. Nathan identified specific
reasons for believing Eldridge suffers from genuine mental illness, such as his
demonstrated looseness of association, his tendency not to call attention to his
symptoms, and the waxing and waning pattern of his symptoms.
      As Dr. Nathan testified, however, he saw Eldridge in a clinical, rather
than forensic, capacity. Although he considered generally the possibility that
Eldridge was malingering, as he does for all inmates, he admitted that seeing
Eldridge via videoconference was not ideal for a forensic assessment. He also
conceded that it would be easier to feign symptoms, such as looseness of
association, in a treatment environment, in which patients are seen for shorter
periods of time, than during a forensic evaluation.
      Further, as the district court noted in its analysis, Dr. Nathan testified
that had he known that ten mental-health experts between 1993 and 2009 had
found Eldridge was feigning symptoms, he would have made a more
substantial   effort   to   ascertain   whether   Eldridge     was    malingering.
Additionally, Dr. Nathan acknowledged a number of red flags for malingering
on cross examination, and expressed a good deal less certainty in his diagnosis
of schizophrenia upon learning of the red flags. Thus, the district court’s
determination that Dr. Nathan’s opinion lacked sufficient probative value to
support a determination of incompetence was not clearly erroneous.

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                                            C
      Eldridge next challenges the district court’s determination that Dr.
Roman was “neither reliable nor credible.” Eldridge asserts the district court
improperly relied on Dr. Allen’s testimony that Dr. Roman misrepresented
evaluations given to Eldridge because the record indicates Dr. Allen actually
mischaracterized Eldridge’s evaluations. He also takes issue with the district
court’s statement that Dr. Roman conceded violating ethical standards when
he allowed Eldridge’s counsel in the interview room during his first meeting
with Eldridge.
      But even assuming, arguendo, that Eldridge is correct on both points, it
does not follow that the district court’s determination that Dr. Roman’s
testimony was neither reliable nor credible was in error. The district court’s
adverse credibility determination of Dr. Roman was premised in large part on
Dr. Roman’s inadequate responses to the “numerous red flags indicating
malingering throughout Eldridge’s record.”            Specifically, the district court
found that Dr. Roman ignored contrary evidence or dismissed it with
unpersuasive explanations, and selectively emphasized evidence favoring his
determination that Eldridge was incompetent.
      Eldridge argues that Dr. Roman acknowledged the contrary evidence
and did not ignore it. However, this does not address the district court’s
concern that Dr. Roman responded to this evidence by deemphasizing it or
providing unsatisfactory explanations as to why it did not indicate
malingering.     Additionally, the district court noted that Dr. Roman had
conducted only one previous capital competency evaluation and had been found
to be not credible by the district court in that case. 20 Thus, it was Dr. Roman’s


      20  See Wood v. Thaler, 787 F. Supp. 2d 458, 499, 500 (W.D. Tex. 2011) (“This Court
finds incredible the conclusions and diagnosis of Dr. Michael A. Roman . . . . Dr. Roman’s
diagnosis is simply unworthy of belief.”).
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inadequate testimony, inexperience, and past performance record that led the
district court to find him not to be credible. The district court did not clearly
err in finding Dr. Roman to not be a credible expert witness.
                                        D
      Eldridge next argues that the district court relied on scientifically flawed
assertions by Dr. Allen and Dr. Moeller when finding Eldridge competent to be
executed. However, there is nothing in the record to which Eldridge can point
that renders infirm the district court’s findings.
      Eldridge first argues that Dr. Moeller’s testimony that schizophrenia is
a progressive, degenerative disease is inaccurate, as was his conclusion that
the absence of increasingly severe symptoms is indicative of malingering. But
the district court did not actually rely on this testimony in its analysis.
Although the district court noted Dr. Moeller’s testimony on the progression of
schizophrenia, the district court’s analysis focused on the inconsistency of
Eldridge’s symptoms over time, his mental-health history, his test results
indicating malingering, observed contradictions between Eldridge’s reported
symptoms and his behavior, and the atypical presentation of his symptoms.
Notably, Eldridge does not contest the legitimacy of Dr. Moeller’s testimony
regarding the atypical presentation of Eldridge’s symptoms—namely, that the
fluctuations from symptomatic to non-symptomatic were too extensive,
frequent, and severe to be explained by ordinary waxing and waning—which
the district court found to be “compelling evidence that Eldridge is
malingering.”
      Next, Eldridge contends the district court accepted Dr. Allen’s erroneous
assertion that genuine symptoms of psychosis are not self-serving. While
Dr. Allen repeatedly asserted that genuine delusions generally get people “in
trouble, not out of it,” he stopped short of stating that self-serving reports of
symptoms and genuine symptoms are mutually exclusive.                Instead, he

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explained that if delusions are self-serving, especially when they lead to an
avoidance of criminal responsibility, there is reason to question their veracity.
In relying on Dr. Allen’s testimony, the district court was concerned with both
the self-serving nature of Eldridge’s symptoms and the timing of their
presentation, occurring only after his arrest.
      Eldridge also finds fault in the district court’s endorsement of Dr. Allen’s
testimony regarding a link between Eldridge’s antisocial personality disorder
(ASPD) and malingering. But this cannot be the basis for finding error in the
district court’s order because it did not rely on this testimony when finding
Eldridge was malingering. The district court repeated Dr. Allen’s testimony in
its order and tacitly endorsed it as a reason for discrediting Dr. Roman, noting
that “Dr. Allen was also sharply critical of Dr. Roman’s failure to consider
antisocial personality disorder and the relationship of this disorder to
malingering.” But the district court did not mention ASPD in its analysis as
being among the numerous reasons for concluding that Eldridge is
malingering.
      Eldridge asserts the district court erred by accepting Dr. Allen’s and Dr.
Moeller’s testimonies that Eldridge’s claimed delusions were not credible
because he did not exhibit behaviors consistent with his delusions, and by
discrediting Dr. Roman’s double-bookkeeping theory of schizophrenia, which
would have provided an explanation for the inconsistencies.          Dr. Roman
testified that under the double-bookkeeping theory, a person exists in two
separate realities, a condition in which inconsistencies in delusions and
behaviors would be expected and not an indication of malingering. Eldridge
points to a 1950 article that endorsed the double-bookkeeping theory that was
written by, as Dr. Allen admitted, a physician whose insights are still respected
and useful in the study of schizophrenia. However, Dr. Moeller testified that
he reviewed the literature on double bookkeeping and concluded the theory

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“just doesn’t hold water.” Dr. Moeller testified that there is “no scientific basis
on how [the double-bookkeeping theory] works or if it is volitional or not
volitional.” Dr. Allen also pointed out that the article Eldridge cites was not
peer-reviewed. Furthermore, the fact that the author of the theory has other
still-respected and useful insights on schizophrenia does not necessarily mean
that all of his theories continue to be so highly regarded.
      The purported scientific errors alleged by Eldridge are thus insufficient
to render clearly erroneous the district court’s weighing and reconciliation of
the expert witnesses’ scientific conclusions.
                                        E
      Lastly, Eldridge asserts that the district court erred in finding that
Eldridge is malingering and competent to be executed. For one, Eldridge
argues that the district court should not have found inconsistencies in his
delusions and behaviors and points to a few examples of consistencies. But the
district court did not clearly err by finding Eldridge competent to be executed
because it relied on overwhelming evidence indicating Eldridge is malingering.
      The district court’s discussion of the expert witnesses’ testimony
supports its finding that Eldridge is malingering. For example, Dr. Moeller
testified that the fluctuations in Eldridge’s symptoms were too severe to be
natural waxing and waning, as Dr. Roman asserted. There was evidence that
waxing and waning of symptoms occurs gradually but Dr. Moeller’s review of
Eldridge’s psychiatric history reveals rapid changes from symptomatic to non-
symptomatic.     Dr. Moeller also testified that when shown crime-scene
photographs of his victims, Eldridge responded emotionally, acknowledging
that he must have committed the crime. But, as Dr. Moeller explained, if
Eldridge genuinely suffered from schizophrenia and believed he did not commit
the murders, he would have challenged the veracity of the photographs rather
than accept his apparent culpability.

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      Dr. Allen noted several oddities in the historical presentation of
Eldridge’s symptoms. As an example, Eldridge reported a combination of
auditory, tactile and visual hallucinations; this combination, Dr. Allen
testified, is inconsistent with genuine mental illness. Dr. Allen also testified
about Eldridge’s results on the TOMM, SIMS, and M-FAST tests he
administered; the three tests indicated a high probability Eldridge was
feigning his symptoms.
      The district court was further persuaded by Dr. Roman’s concessions
regarding much of the evidence of malingering in Eldridge’s psychiatric
history. First, Dr. Roman stated that certain delusions Eldridge self-reported
were “crazy stuff” inconsistent “with the way that mentally ill people present.”
Dr. Roman also acknowledged that much of Eldridge’s psychiatric history
contained evidence of malingering, such as the absence of major mental-health
complaints before the scheduling of his execution date in 2009. Furthermore,
Dr. Roman testified that many statements and behaviors exhibited by Eldridge
during an examination by Dr. Moeller were more consistent with malingering
than schizophrenia. Subsequently, as the district court noted, Dr. Roman
conceded that Eldridge’s ability to obtain cocaine in prison “would suggest a
much better ability to navigate the social and physical environment and
consider all sorts of things [than] we would typically apply to somebody with a
severe psychotic disorder.”
      Ultimately Dr. Moeller and Dr. Allen believed that Eldridge was
malingering.    Although Dr. Nathan and Dr. Roman both concluded that
Eldridge was not competent to be executed, Dr. Nathan did not test Eldridge
for malingering and Dr. Roman conceded much of Eldridge’s psychiatric
history provides evidence of malingering. As a previous panel of this court
noted, the fact that the expert testimony regarding Eldridge’s competency is
conflicting is “probably itself sufficient to sustain the district court’s judgment

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under a clear-error standard.” 21 Thus, the district court did not clearly err
when it found Eldridge competent to be executed.
                                       *    *      *
      We therefore AFFIRM the district court’s denial of Eldridge’s petition for
writ of habeas corpus.




      21   Panetti, 727 F.3d at 410.
                                           14
