                                                                    United States Court of Appeals
                                                                             Fifth Circuit
                                                                            F I L E D
                         UNITED STATES COURT OF APPEALS
                              For the Fifth Circuit                        December 16, 2004

                                                                      Charles R. Fulbruge III
                                                                              Clerk
                                     No. 03-11137


                              CHARLES E. MINES, JR.,

                                                          Petitioner – Appellant,


                                        VERSUS


 DOUGLAS DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
                     INSTITUTIONAL DIVISION,

                                                           Respondent – Appellee.




                 Appeal from the United States District Court
                      For the Northern District of Texas
                                 03-CV-2044-H

Before BARKSDALE, GARZA, and DENNIS, Circuit Judges.

DENNIS, Circuit Judge:*

          Petitioner, Charles E. Mines, Jr., filed a petition for writ

of habeas corpus pursuant to 28 U.S.C. § 2254.                  Mines is an inmate

in       the   custody   of   the   Texas    Department    of   Criminal    Justice,

Institutional Division of which Respondent is the director.

          Mines was convicted of capital murder by a jury and sentenced




     *
   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opinion should not be published and is not precedent except under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 5TH CIR. R. 47.5.4.

                                            -1-
to death by lethal injection.1        His conviction and sentence were

affirmed by the Texas Court of Criminal Appeals.2             The United

States Supreme Court granted his petition for certiorari and

remanded   the   case     to   the   Court   of   Criminal   Appeals   for

reconsideration in light of its opinion in Johnson v. Texas, 509

U.S. 350 (1993).3       On remand, his conviction and sentence were

again affirmed.4     Mines’s state application for a writ of habeas

corpus was denied by the state district court and the Texas Court

of Criminal Appeals.5

      Mines filed his initial § 2254 petition for a writ of habeas

on December 21, 2000 and an amended petition on April 20, 2001.

Respondent answered on June 18, 2001 and furnished the state

records.   In his petition, as amended, Mines raised eleven (11)

claims for relief.      Additionally, in his petition, Mines moved for

a stay of this federal habeas proceeding alleging that he is

currently incompetent to assist his federal habeas counsel in the

pursuit of § 2254 relief.       A United States Magistrate Judge filed

“Findings, Conclusions, and Recommendations” based on the record


  1
   State v. Mines, Cause No. 16,691 (40th J.D.C.Ellis County Tex.
June 2, 1989).
  2
   Mines v. State, 852 S.W.2d 941 (Tex. Crim. App. 1993).
  3
   Mines v. Texas, 510 U.S. 802 (1993).
  4
   Mines v. State, 888 S.W.2d 816 (Tex. Crim. App. 1994), cert.
denied, 514 U.S. 117 (1995).
  5
   Ex parte Mines, 26 S.W.3d 910 (Tex. Crim. App. 2000), cert.
denied, 532 U.S. 908 (2001).

                                     -2-
without   taking   additional   evidence.   The   magistrate   judge

recommended: (1) denial of Mines’s motion for a stay of these

proceedings because of his incompetence to assist his counsel; (2)

dismissal without prejudice of Mines’s first ground for relief

(Incompetence to be Executed); and (3) denial of his remaining ten

grounds for relief.

      The district court entered an order adopting all of the

findings, conclusions, and recommendations of the magistrate judge

and denied Mines’s petition for writ of habeas corpus and dismissed

the petition with prejudice.      Mines filed a notice of appeal.

Subsequently, the magistrate judge found and recommended that a

Certificate of Appealability (“COA”) should be denied for the

reasons stated in his “Findings, Conclusions, and Recommendations.

. . which were adopted by the District Court. . . .”   The district

court adopted the magistrate judge’s recommendation and entered an

order that denied Mines’s request for a COA.

      In this appeal, Mines continues to urge his motion for a stay

of these proceedings on the basis of his incompetence, and he seeks

a COA on three of the eleven grounds urged in the district court.6

For the reasons assigned below, we affirm (on a different basis)

the district court’s ruling denying the motion to stay; affirm the


  6
   To the extent that Mines has failed to raise or brief any of the
eight other grounds for relief that he raised in his federal habeas
petition in this appeal, those grounds are deemed abandoned and
considered by this court to be waived on appeal.      See Yohey v.
Collins, 985 F.2d 222, 224-225 (5th Cir. 1993).

                                 -3-
district court’s denial of COA on one ground; and grant COA on the

two remaining grounds.

                             BACKGROUND

     On the afternoon of May 27, 1988, Mines broke into a home

occupied by eighty-year old Vivian Moreno and her invalid daughter,

Frances. Upon encountering the women, Mines brutally attacked them

with a claw hammer.      Vivian was killed instantly, but Frances

miraculously survived Mines’s attack.

     Three days later, Mines was apprehended by police.      Within

hours of his arrest, Mines confessed to the crime and was charged

with the capital murder of Vivian and the attempted capital murder

of Frances.   Mines pleaded not guilty by reason of insanity to both

charges, and requested a hearing in state court to determine

whether he was competent to stand trial.

     In support of his request for a competency hearing, Mines

produced the testimony of a psychiatric expert, Dr. Schack, and his

medical records.     Those records indicated that the State had

attempted to civilly commit Mines to the custody of a mental

hospital approximately a week prior to Vivian Moreno’s murder.

Following a five-day observation period, the treating physician at

the state mental hospital, Dr. Nguyen, determined that Mines was

not mentally ill and concluded that Mines should not be committed

to the hospital involuntarily. But Dr. Nguyen concluded that Mines




                                 -4-
did have “a mixed personality disorder7 with paranoia, passive,

aggressive, anti-social features.”    The state trial court granted

Mines’s request for a competency hearing, and the issue of Mines’s

competency to stand trial was presented to a jury.

      Mines’s primary evidence of his incompetency to stand trial

was the testimony of Dr. Schack, Mines’s medical records, and the

State’s attempt to civilly commit him to the state mental hospital.

Dr. Schack testified that he had difficulty in getting Mines to

cooperate during his attempts to interview Mines.    Dr. Schack also

testified that much of his diagnosis was based on his observation

of Mines on several occasions as well as review of Mines’s medical

records.   Dr. Schack conceded that it is not uncommon for criminal

defendants to simulate symptoms of a mental disorder in an attempt

to avoid liability for their crimes.8 Despite this concession,

however, Dr. Schack unequivocally testified that in his opinion

Mines’ symptoms of mental illness were genuine and that he was

incompetent to stand trial for capital murder.

      In rebuttal, the State offered expert testimony of: (1) Dr.

Grigson, a forensic psychologist; (2) Dr. Nguyen, who had observed

Mines while he was at the state mental hospital; and (3) several of

Mines’s jailers.   The jailers testified that Mines was capable of

  7
   Dr. Nguyen testified during the competency hearing and at the
murder trial that a person with a personality disorder is capable
of knowing right from wrong and that a personality disorder is not
the same as a mental illness.
  8
   See State Rec. Vol. II at pgs. 17, 19, & 28.

                                -5-
having normal conversations and that Mines appeared to be a fairly

intelligent self-educated person who seemed to understand that he

had certain rights in jail.     The jailers also testified that Mines

appeared to understand that he was in jail, why he was in jail, and

that when Mines wanted to get along with the jailers and inmates,

he could.     The jailers testified, however, that Mines could become

extremely agitated at other times, and consequently, Mines was

confined in a cell by himself.

        Dr. Grigson testified that Mines refused to talk to him after

Grigson advised Mines of his right to refuse the examination; that

Mines appeared to understand this right; and that his opinion of

Mines’s competency to stand trial was based entirely upon Mines’s

medical records and Grigson’s limited observances of Mines before

and during the competency hearing.9     Dr. Grigson testified that he

believed that Mines was competent to stand trial and that Mines’s

seeming irrational behavior was “very deliberate and intentional.”10

Dr. Grigson also mentioned briefly that it was not uncommon for


  9
   Mines objected to Dr. Grigson’s testimony in part, because that
testimony was based on Grigson’s observations made during the
competency hearing. Specifically, Mines challenges the fact that
the state trial court judge allowed Grigson to be present during
the testimony of the other experts in contravention of the witness
sequestration Rule 613 of the Texas Rules of Criminal Procedure.
However, the record reveals that not only was Grigson allowed to be
present and observe Mines during the competency hearing but also
that Mines’s own expert, Dr. Schack, was allowed to do the same
because Mines continually refused to be examined by either witness.
See State Tr., Rec. Vol. II at 5-6.
  10
       State Tr., Rec. Vol. II at 68.

                                  -6-
criminal defendants to simulate mental illnesses in an attempt to

avoid liability for their crimes.

        Mines’s counsel vigorously cross-examined Dr. Grigson and

elicited     testimony       that   the    doctor     testified         so   often   and

effectively for the State in death penalty cases that he was called

“Dr. Death” by the media.           Dr. Grigson also conceded that he had

spent little more than three minutes speaking to Mines and that his

practice     of      using    forensic      psychology        to    predict       future

dangerousness     was      looked   upon    with     disfavor      by    the   American

Psychiatric Association.

        Dr. Nguyen, who was called by the state, testified that after

observing and interacting with Mines over a five day period, he,

and the rest of the treatment staff at the mental hospital,

concluded that Mines was not incompetent.                     Instead, Dr. Nguyen

believed that Mines had a mixed personality disorder, and that

Mines was capable of understanding his actions. Dr. Nguyen also

testified that Mines could be uncooperative at times and that Mines

was     “selective    in     choosing     who   he   talked    to.”11        On   cross-

examination, Dr. Nguyen conceded that he had more patients in his

care than he would have preferred at the time he first saw Mines,

and that it was his decision not to civilly commit Mines.

        The jury concluded that Mines was competent to stand trial for

the capital murder of Vivian Moreno and the attempted capital


  11
       State Tr., Rec. Vol. II at 87.

                                          -7-
murder of her daughter, Frances.        At Mines’s subsequent murder

trial, both Mines and the State presented substantially the same

expert testimony that was presented during the competency hearing.

Though the State also presented evidence relating to the crime

scene and the conditions of Vivian and Frances Moreno when they

were found, approximately 40 percent of the testimony heard by the

jury during the murder trial was the testimony of Drs. Schack,

Grigson, and Nguyen.

        Ultimately, the trial jury rejected Mines’s insanity defense

and convicted him of both capital murder and attempted capital

murder. After the jury answered all three of the special issues in

the affirmative, the state trial court sentenced Mines to death.

                               DISCUSSION

        Mines’s § 2254 habeas petition is subject to the Antiterrorism

and Effective Death Penalty Act of 1996 (“AEDPA”).12     Under AEDPA,

Mines must obtain a COA before he can appeal the district court’s

denial of habeas relief.13

        To obtain a COA, Mines must make “a substantial showing of the

denial of a constitutional right.”14 Making such a showing requires

  12
       See Penry v. Johnson, 532 U.S. 782, 792 (2001).
  13
    28 U.S.C. § 2253(c)(1) (2000); Slack v. McDaniel, 529 U.S. 473,
478   (2000);   Miller-El   v.   Cockrell,   537  U.S.   322,   336
(2003)(“[U]ntil a COA has been issued federal courts of appeals
lack jurisdiction to rule on the merits of appeals from habeas
petitioners.”).
  14
    28 U.S.C. § 2253(c)(2) (2000); Miller-El, 537 U.S. at 336;
Slack, 529 U.S. at 483.

                                  -8-
Mines to demonstrate 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 to deserve encouragement to proceed further.”15

        In Miller-El v. Cockrell, the Supreme Court instructed, as it

previously held in Slack v. McDaniel, that we should “limit [our]

examination to a threshold inquiry into the underlying merit of

[the petitioner’s] claims.”16 The Court observed that “a COA ruling

is not the occasion for a ruling on the merit of petitioner’s claim

. . . .”17     Instead, our COA determination must be based on “an

overview of the claims in the habeas petition and a general

assessment of their merits.”18        “This threshold inquiry does not

require full consideration of the factual or legal bases adduced in

support of the claims.”19    We do not have jurisdiction to justify

our denial of a COA based on an adjudication of the actual merits

of the claims.20

        Even if we grant Mines’s application for COA, Mines is not

necessarily entitled to habeas relief.       “To prevail on a petition



  15
       Miller-El, 537 U.S. at 336 (quoting Slack, 529 U.S. at 484).
  16
       Miller-El, 537 U.S. at 327.
  17
       Id. at 331.
  18
       Id. at 336.
  19
       Id.
  20
       Id.

                                     -9-
for writ of habeas corpus, a petitioner must demonstrate that the

state court proceeding ‘resulted in a decision that was contrary

to, or involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the United

States.’”21    A state court’s decision is “contrary to . . . clearly

established Federal law, as determined by the Supreme Court of the

United States . . . if the state court arrives at a conclusion

opposite to that reached by the Court on a question of law or if

the state court decides a case differently than the Court has on a

set of materially indistinguishable facts.”22              A state court’s

decision     “involves   an   unreasonable   application    of   []    clearly

established Federal law, as determined by the Supreme Court of the

United States . . . if the state court identifies the correct

governing     legal   principle    from    the   Court’s    decisions      but

unreasonably applies that principle to the facts of the prisoner’s

case.”23

        In making the “unreasonable application” inquiry, this court

must determine whether the state court’s application of clearly

established federal law was objectively unreasonable.24               “We have


  21
    Robertson v. Cockrell, 325 F.3d 243, 247-48 (5th Cir. 2003) (en
banc) (quoting 28 U.S.C. § 2254(d)(1) (2000)), overruled on other
grounds, Tennard v. Dretke, 124 S. Ct. 2562, 2569 (2004).
  22
       Williams v. Taylor, 529 U.S. 362, 412-13 (2000).
  23
       Id. at 413.
  24
    Neal v. Puckett, 286 F.3d 230, 236 (5th Cir. 2002) (en banc),
cert. denied, 537 U.S. 1104 (2003).

                                    -10-
no authority to grant habeas corpus relief simply because we

conclude, in our independent judgment, that a state supreme court’s

application of [federal law] is erroneous or incorrect.”25

(1)    Stay of Federal Habeas Proceedings

       Mines contends that he is incompetent to assist his counsel in

this habeas proceeding, that the Sixth Amendment and 21 U.S.C. §

848(q)(4)(B)26 guarantee his right to communicate with and assist

his counsel effectively in a habeas proceeding, and, therefore,

this proceeding must be stayed until he regains the competence to

proceed.27 Neither the Supreme Court nor this court have determined

whether such a right exists, whether the right is constitutional or

statutory, what standard of review applies, or in what procedural

manner such a right would be properly asserted.    We assume for the

purposes of this appeal that the right to be competent during the

  25
    Catalan v. Cockrell, 315 F.3d 491, 493 (5th Cir. 2002)(quoting
Neal, 286 F.3d at 236).
  26
    21 U.S.C. § 848(q)(4)(B) entitles indigent habeas petitioners
facing the death penalty to, inter alia, the appointment of
“adequate representation,” i.e. counsel.
  27
    Mines requests a COA on the district court’s denial of his
motion for a stay.    However, a COA is not prerequisite to our
review of this claim because it does not challenge the district
court’s decision on the merits of Mines’s habeas petition. See Dunn
v. Cockrell, 302 F.3d 491, 492 (5th Cir. 2002)(finding that a COA
is not required when an appeal does not implicate the merits of a
district court’s denial of a habeas petition). Furthermore, the
federal district court’s ruling that denied Mines’s motion for a
stay of federal habeas proceedings is not a “judgment of a State
court” for which Mines is entitled to seek relief via federal
habeas review. 28 U.S.C. § 2254(a)(permitting federal courts to
entertain applications for a writ of habeas corpus “pursuant to the
judgment of a State court”).

                                 -11-
pendency of habeas proceedings exists, and because statutes are

interpreted in a manner so as to avoid substantial constitutional

questions,28 we assume that the right is statutory in nature.                       We

thus must first address the procedural manner in which such a claim

might be invoked and the applicable standard of review before

deciding whether Mines is entitled to a stay.

           We observe that Mines’s request for a stay is, at its core, a

request        for    the   district     court    to   enjoin   Mines’s    execution

indefinitely.          This court has jurisdiction to review any decision

by    the     district      court   to   grant,    continue,    modify,    refuse   or

dissolve an injunction.29            Further, this court has previously held

that a “district court’s refusal to grant a stay in a habeas

proceeding is reviewed for abuse of discretion.”30

           Here,     the    district     court’s       ruling   adopted,     without

explanation, the magistrate judge’s recommendation to deny Mines’s

request for a stay.            The magistrate judge concluded that Mines’s

request for a stay was without support by binding authority because

the cases upon which Mines had relied only established that mental

incompetency was a basis for equitably tolling AEDPA’s one-year

filing deadline and a that a habeas petitioner had to be competent



     28
    Edward J. Bartolo Corp. v. Fla. Gulf Coast Bldg. & Constr.
Trades Council, 485 U.S. 568, 575 (1988).
     29
          See 28 U.S.C. § 1292(a)(1).
     30
    Brewer v. Johnson, 139 F.3d 491, 493 (5th Cir. 1998)(citing
McFarland v. Scott, 512 U.S. 849, 858 (1994)).

                                           -12-
to waive his right to proceed in habeas.31         In his objection to the

magistrate judge’s report and recommendations, Mines cited Rohan

ex. rel. Gates v. Woodford, 334 F.3d 803 (9th Cir. 2003), in which

the     Ninth   Circuit   concluded   that   a   habeas   petitioner   has   a

statutory right to be competent during the pendency of federal

habeas proceedings.       Because it was undisputed that the petitioner

in Rohan was incompetent, the Ninth Circuit stayed the habeas

proceedings.32     Neither the magistrate judge nor the district court

discussed the applicability of Rohan to this case.                 As Rohan

arguably offers direct support of Mines’s request for a stay,33 a

brief discussion of that case is in order.

        In Rohan, the Ninth Circuit, operating under the assumption

that the habeas petitioner was legally incompetent,34 concluded that

his statutory right to counsel under 21 U.S.C. § 848(q)(4)(B)

implied a statutory right to be competent so that the inmate could

assist his counsel during the habeas proceedings.35             At issue in

that case was whether the district court’s appointment of a “next

friend” was a sufficient substitute for the incompetent habeas



  31
    See Mag. Report & Rec. at 7 (citing Calderon v. United States
Dist. Court, 163 F.3d 530, 531 (9th Cir. 1998) and Mata v. Johnson,
210 F.3d 324, 332 (5th Cir. 2000)).
  32
       Rohan, 334 F.3d at 819.
  33
       See id. at 812-813.
  34
       See id. at 807 & n.2.
  35
       See id. 812-813.

                                      -13-
petitioner’s implied statutory right to be competent during the

federal habeas proceedings, as it appeared that the district court

had found that the habeas petitioner was incompetent.36

        While this court has previously determined that an inmate must

be competent to waive his habeas proceedings,37 we need not decide

whether we agree with the Ninth Circuit’s recognition of an implied

statutory right to be competent during the pendency of habeas

proceedings in order to conclude that the district court did not

abuse its discretion in denying the stay in this case.              Mines,

unlike the habeas petitioner in Rohan, failed to allege facts or

present evidence showing that he is incompetent.              As the state

pointed out in its response to Mines’s habeas petition,

        Mines cites no evidence to show that he is actually
        mentally incapable of cooperating with federal habeas
        counsel. . . . At best, Mines’s petition presents
        evidence to support his general allegation that he
        suffers from bipolar disorder. . . . Specifically, none
        of the medical opinions cited by Mines conclude that he
        is unable to consult with his lawyers with a reasonable
        degree of rational understanding.38


        Additionally, the record reveals that Mines did not request a

competency hearing in the district court,39 and he does not argue

  36
       See id. at 806-807.
  37
    See Mata v. Johnson, 210 F.3d 324, 327-28 (2000)(requiring
competency to waive habeas proceedings once initiated).
  38
    See State’s     Response,   Rec.   Vol.   4   at   1046   (emphasis   in
original).
  39
    Mines’s preliminary federal habeas petition argued that he was
incompetent to be executed and sought to have the habeas petition

                                  -14-
here that the evidence he presented in district court should have

created “a bona fide” doubt as to Mines’s competency in order to

trigger the court’s sua sponte inquiry into his competency under

the Supreme Court’s decision in Drope v. Missouri, 420 U.S. 162,

180-182     (1975).40   Thus,   Mines’s   claim   lacks   the   foundation

presented to the Ninth Circuit in Rohan.      The petitioner in Rohan,

who had not previously been adjudged competent to stand trial in

state court, moved for and received a competency hearing in federal

court.41    During that hearing, the petitioner presented evidence of

his incompetency by submitting the opinions of both his own and the




held in abeyance pending the court’s consideration of the writ. See
R. Vol. 1 at 0086. That petition also purported to include “a
motion for competency examination and hearing in the convicting
court” that was to be “filed simultaneously with this writ.” Id.
(citing Appendix AA). But Appendix AA does not appear on its face
to be a federal motion. In fact, it is clear from the text of the
motion and the rest of the preliminary petition that both documents
are copies of those originally filed in state court as the bulk of
the legal authorities cited therein are those binding in Texas
state courts and the motion for a competency hearing is signed and
dated nearly three years before Mines filed his federal habeas
petition in September of 2000. Mines later amended his federal
habeas petition. While Mines’s amended petition also requests an
“abatement” of the federal habeas proceedings due to Mines’s
alleged incompetency, it does not request a competency hearing in
federal court nor does it purport to “simultaneously” file a motion
for a competency hearing in federal court. See R. Vol. at 957.
Accordingly, we conclude that Mines did not request a competency
hearing in federal court.
  40
    A motion for a competency hearing is not required in order to
trigger a court’s duty to inquire into a person’s competency. See
Lokos v. Capps, 625 F.2d 1258, 1260 (5th Cir. 1980)(citing Pate v.
Robinson, 383 U.S. 375, 384 (1966); Drope, 420 U.S. at 176-77).
  41
       See Rohan, 334 F.3d at 805.

                                  -15-
State’s mental health experts.42 Here, the allegations and evidence

offered by Mines do not substantially differ from the allegations

and evidence upon which a Texas jury originally found him to be

competent to stand trial.

           Furthermore, Mines has not argued that the official diagnosis

of his mental illness has changed in the interim or that his

illness has become more severe.                 Without alleging facts that

“objectively considered, should have reasonably raised a doubt” as

to Mines’s competency,43 the district court had no basis upon which

to        grant   Mines’s   request   for   a   stay   of   habeas   proceedings.

Accordingly, we conclude that the district court did not abuse its

discretion in denying Mines’s request for a stay and affirm the

district court’s ruling.

(2)        Second State Court Competency Hearing

           Mines seeks COA on his claim that the state trial court’s

refusal to grant Mines a second competency hearing following

certain outbursts during Mines’s first competency hearing and

during the voir dire of his capital murder trial violated his due

process right to a fair trial.              This court has previously stated

that a trial court has a duty to conduct further inquiry into a

criminal defendant’s competency when the court receives information

that, objectively considered, reasonably raises a doubt about the


     42
          Id. at 805-806.
     43
          Lokos, 625 F.2d at 1261.

                                        -16-
defendant’s competency and alerts it to the possibility that the

defendant could not understand the proceedings, appreciate their

significance, or rationally aid his attorney in his defense.44

        As   observed   by   the   magistrate       judge,    Mines’s    generally

uncooperative     and   irrational     behavior      supplemented       by   Mines’s

medical records was the basis for the pre-trial competency hearing

in state court.       A jury, after observing this evidence and Mines’s

outbursts during that hearing, found Mines to be competent to stand

trial for capital murder and attempted capital murder.

        Mines’s COA application alleges essentially the same facts

that were fully and fairly presented to the state competency jury.

Despite the jury’s verdict on this issue after his first competency

hearing, Mines argues that he was entitled to a second competency

hearing.      But Mines does not allege that there was any evidence to

show a change in his mental state occurred, or that there had been

a change in the nature or cause of his generally uncooperative and

irrational      behavior.      Thus,    in    the    two     months   between   his

competency hearing and his capital murder trial, there was no

evidence that should have reasonably put the state trial court on

notice that there was a doubt as to Mines’s competency sufficient

to justify a second competency inquiry.              In fact, the state trial

court record reveals that Mines did not interrupt his trial with

outbursts once the jury was selected.                Accordingly, we conclude


  44
       Id. at 1258.

                                       -17-
that reasonable jurists could not “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 to

deserve encouragement to proceed further.”45 Therefore, Mines’s COA

application on this claim is denied.

(3)     Dr. Grigson’s Guilt Phase Testimony

        Mines contends that a COA should be granted on whether his

Fifth     and    Fourteenth   Amendment   rights   were   violated   by   Dr.

Grigson’s testimony regarding Mines’s demeanor in invoking his

rights and remaining silent when Grigson attempted to evaluate

Mines.     The    district    court   adopted   the   magistrate     judge’s

recommendation to deny this claim on the basis of harmless error

even though the magistrate judge found that it was a “close call”

as to whether the admission of this testimony was contrary to the

Supreme Court’s teaching in Wainright v. Greenfield, 474 U.S. 284

(1986).     In Greenfield, the Supreme Court held that a defendant’s

invocation of silence may not be used as substantive evidence of

his guilt or sanity.46

        We agree with the magistrate judge that it is a “close call”

whether the admission of Dr. Grigson’s testimony was a violation of

Mines’s rights. Accordingly, a COA is warranted because reasonable

jurists could debate the district court’s resolution of this claim


  45
       Miller-El, 537 U.S. at 336 (quoting Slack, 529 U.S. at 484).
  46
       See 474 U.S. at 293.

                                      -18-
on the merits.

(4)     Texas Special Issues

       Mines seeks a COA on his final claim that the Texas special

issues sentencing scheme used by the jury who sentenced him to

death precluded the jury from giving effect to his mitigating

evidence of mental illness.           Specifically, Mines argues that the

special issue interrogatories in the Texas capital sentencing

instruction,47    as   applied    to     his   case,    precluded   effective

presentation of mitigating evidence in violation of the mandates of

Penry v. Lynaugh, 492 U.S. 302 (1989)(“Penry I”), and Penry v.

Johnson, 532 U.S. 782 (2001) (“Penry II”).             Mines’s trial was held

during the interval between the Supreme Court’s decisions in Penry

I and Penry II.

       In Penry I, the Supreme Court held that the first two “special

issue”    interrogatories        in     the    Texas    capital     sentencing

instructions,    though   facially       valid,   failed    to    satisfy   the

constitutional requirement that a capital defendant be able to

present and have the jury give effect to mitigating evidence in

  47
    The special issues are set out in TEX. CRIM. PROC. CODE art.
37.071. Under the version of the statute in force when Mines was
tried, the first special issue addressed whether the defendant had
acted “deliberately and with the reasonable expectation that the
death of the deceased or another would result.” The second special
issue instructed the jury to consider “whether there is a
probability that the defendant would commit criminal acts of
violence that would constitute a continuing threat to society.”
The third special issue, which is not relevant to the Penry I/Penry
II analysis, addressed whether the defendant’s conduct was a
reasonable response to the provocation, if any, of the victim. See
TEX. CRIM. PROC. CODE art. 37.071(b)(1)-(3) (Vernon 1987).

                                       -19-
certain situations.48         After Penry I, Texas trial courts continued

to send the same special issue interrogatories to the jury, but

added a supplemental instruction to “cure” any possible Penry I

defect.         Though the Texas legislature later adjusted the special

issues     to    add   a   mitigating   evidence   question,49   Mines’s   jury

received the same interim supplemental instruction given in Penry’s

case when Penry’s case was retried on remand from the Supreme

Court.50
     In     Penry      II,    the   Supreme     Court   again    considered   a

constitutional challenge by Penry.             It considered the supplemental


  48
       492 U.S. at 315, 328.
  49
    See Robertson, 325 F.3d at 248-49 & n.4 (describing the
background of the period between Penry I and Penry II and detailing
the new special issues sentencing scheme).
  50
       In Penry II, the Supreme Court restated the instruction:

        You are instructed that when you deliberate on the questions
        posed in the special issues, you are to consider mitigating
        circumstances, if any, supported by the evidence presented in
        both phases of the trial, whether presented by the state or
        the defendant. A mitigating circumstance may include, but is
        not limited to, any aspect of the defendant’s character and
        record or circumstances of the crime which you believe could
        make a death sentence inappropriate in this case. If you find
        that there are any mitigating circumstances in this case, you
        must decide how much weight they deserve, if any, and
        therefore, give effect and consideration to them in assessing
        the defendant’s personal culpability at the time you answer
        the special issue. If you determine, when giving effect to the
        mitigating evidence, if any, that a life sentence, as
        reflected by a negative finding to the issue under
        consideration, rather than a death sentence, is an appropriate
        response to the personal culpability of the defendant, a
        negative finding should be given to one of the special issues.

        532 U.S. at 789-90.

                                        -20-
instruction given in Penry’s retrial, and held that the instruction

failed to give Penry’s jurors a “vehicle” by which they might give

effect to his mitigating evidence.51 Specifically, the Court held

that     the    supplemental      instruction        potentially      created     an

unacceptable dilemma for the jurors:               Because it instructed the

jurors to change one of their truthful “Yes” special issue answers

to an untruthful “No” if they felt the defendant did not deserve

the death penalty, it left the jurors with the choice of either not

giving     effect   to     Penry’s     proffered     mitigation      evidence    or,

alternatively, violating their oaths as jurors.52

        Mines’s claim is that because his jury instructions were

virtually      identical    to   the   one   given    in   Penry’s    trial     those

instructions created the same situation that the Supreme Court in

Penry II found constitutionally unacceptable.                     Moreover, in a

supplemental filing to his COA application, Mines argues that both

the federal and state courts considering this claim have relied on

an analytical model that has been recently invalidated by the

Supreme Court thereby creating some doubt as to whether his Penry

claim was resolved correctly.           We agree for three reasons.

        First, this Court previously granted COA on a similar claim

using the now invalid “constitutionally relevant” mode of analysis




  51
       Id. at 787, 798.
  52
       Id. at 798-801.

                                        -21-
for a Penry claim.53 Second, the issue of whether the Texas special

issues sentencing scheme used in this case places a defendant’s

mitigating evidence of mental illness beyond the effective reach of

the sentencing jury is presented in two cases now pending before

this court.54    Finally, the parties have not had an opportunity to

brief the merits of Mines’s Penry claim in light of the Supreme

Court decision in Tennard v. Dretke.55      Accordingly, we conclude

that jurists of reason might debate the correctness of the district

court’s dismissal of this claim on the merits and grant COA.

                               CONCLUSION
        For these reasons, we conclude that a COA is not required for

this court to review and affirm the district court’s ruling denying

Mines’s motion for a stay of his federal habeas proceedings because

of mental incompetence.    We conclude that a COA is not warranted on

Mines’s second claim.     A COA is granted, however, on Mines’s third

and fourth claims.    Accordingly, the Clerk is ordered to set those

two claims for briefing and oral argument according to the usual

schedule.

COA GRANTED IN PART; COA DENIED IN PART.




  53
       See Coble v. Cockrell, 80 Fed. Appx. 301 (5th Cir. 2003).
  54
    See Bigby v. Cockrell, 340 F.3d 259 (5th Cir. 2003), pet. for
r’hg filed August 11, 2003; Coble, 80 Fed. Appx. at 301.
  55
       124 S. Ct. 2562 (2004).

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