     Case: 11-70018      Document: 00513134936         Page: 1    Date Filed: 07/29/2015




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

                                                                              FILED
                                                                          July 29, 2015
                                      No. 11-70018                       Lyle W. Cayce
                                                                              Clerk

JEFFERY LEE WOOD,

                                                 Petitioner-Appellant,
v.

WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISIONS

                                                 Respondent-Appellee.


                   Appeal from the United States District Court
                        for the Western District of Texas
                                No. 5:01-CV-00423


Before HIGGINBOTHAM, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       After the district court denied death-row prisoner Jeffrey Wood’s petition
for habeas corpus relief, we granted in part and denied in part a certificate of
appealability (COA) to review whether Wood had been denied a fair
evidentiary hearing on his Panetti claim.         In Panetti v. Quarterman, 551 U.S.
930 (2007), the Supreme Court held that the Eighth Amendment prohibits a
prisoner from being executed if he is suffering from a mental illness that
prevents him from rationally comprehending that the gravity of his crime is so



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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serious that he must suffer the ultimate penalty for the purpose of the
vindication of the community.     Id. at 958.   Following an evidentiary hearing
on Wood’s Panetti claim, the district court concluded that Wood had failed to
prove that he suffered from a mental illness that made him incompetent for
execution under the Panetti standard.        Wood contends that the hearing was
unfair and lacking in due process because the district court improperly took
judicial notice, based on its own judicial experience, of the fact that many
prisoners believe they have been unjustly persecuted by judges and
prosecutors.   After considering the parties’ written and oral arguments and
the record of the district court proceedings, we conclude that Wood was not
denied a fair hearing by improper judicial notice of facts or in violation of due
process.   The district court fairly based its conclusion that Wood is competent
for execution on the evidence in the record, consisting principally of the
testimony and opinions of the parties’ respective expert witnesses in
psychology.    The district court did state that the Director’s expert’s testimony
that prisoners commonly believe that they are victims of official persecution
was consistent with the judge’s own judicial experience and observations.
However, this statement did not constitute improper judicial notice of an
adjudicative fact in the case; rather, the district court properly and fairly based
its ultimate decision on the adjudicative facts it found from the evidence
presented by the parties, including the Director’s expert witness’s testimony
regarding her extensive qualifications in forensic psychology and experience in
the examination and evaluation of prisoners’ mental health.
                                        I.
      A Texas jury convicted Wood of capital murder in 1998, and the state
trial court thereafter sentenced him to death.      After Wood’s conviction and
sentence were upheld on both direct appeal and in state habeas proceedings,

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Wood filed his first 28 U.S.C. § 2254 habeas petition in federal district court,
which was denied, Wood v. Dretke, 386 F. Supp. 2d 820 (W.D. Tex. 2005), and
subsequently affirmed by this court, Wood v. Quarterman, 491 F.3d 196 (5th
Cir. 2007).
      Wood then filed a motion in state trial court requesting appointment of
counsel and appointment of a mental health expert to assist him in
investigating, developing, and presenting evidence supporting a claim that he
is currently incompetent to be executed and, therefore, exempt from the death
penalty pursuant to the Supreme Court’s decisions in Panetti v. Quarterman,
551 U.S. 930 (2007) and Ford v. Wainwright, 477 U.S. 399 (1986).        The state
court denied Wood’s motion, and the Texas Court of Criminal Appeals
affirmed.     Wood v. State, AP-75970, 2008 WL 3855534 (Tex. Crim. App. Aug.
19, 2008) (unpublished).
      Wood thereafter filed in federal district court a motion for a stay of
execution and motions for appointment of counsel and for funding of a mental
health expert in order to pursue his Panetti claim in federal district court,
which were granted.     Wood v. Quarterman, 572 F. Supp. 2d 814 (W.D. Tex.
2008).   Wood subsequently filed a petition for a writ of habeas corpus,
contending that he lacked a “rational understanding” of his death sentence due
to his “delusional belief system” and therefore was exempt from execution
pursuant to the Supreme Court’s decision in Panetti.      In support of his claim,
Wood presented the expert report of Dr. Michael Roman who opined that Wood
suffered from a delusional disorder as defined by the DSM-IV-TR.             More
specifically, Dr. Roman, based on his examination of Wood, concluded that
Wood held a persecutory delusion that his death sentence was the direct result
of corruption within the Texas judicial system and a conspiracy between the
assistant district attorney who prosecuted him and the judge who presided

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over his trial.   According to Dr. Roman, “[b]ecause of [Wood’s] strongly
entrenched delusional belief system, [he] appears incapable of linking his
execution with the robbery and murder” of which he was convicted.               In
response, the Director submitted the expert report and testimony of Dr. Mary
Alice Conroy who opined, after examining Wood, that he rationally
understands the reason he is to be executed and the connection between his
crime and his sentence; and that Wood does not suffer from a delusional
disorder or any other mental illness for which delusions would be a symptom.
In addition, the parties submitted a voluminous amount of documentary
evidence addressing Wood’s Panetti claim, including recordings of phone
conversations between Wood and his family, Wood’s medical and mental health
records from his incarceration, correspondence by Wood while incarcerated,
and records from the state court proceedings, which included Wood’s school
and medical and mental health records.       The district court also held a two-
day evidentiary hearing at which it received evidence and heard the competing
testimony of Wood’s and the Director’s respective experts.
      On May 10, 2011, the district court issued an exhaustive memorandum
opinion rejecting Wood’s Panetti claim and denying his habeas petition. Wood
v. Thaler, 787 F. Supp. 2d 458 (W.D. Tex. 2011).      In its written reasons, the
district court cited multiple reasons for rejecting Wood’s claim.    For example,
the court rejected as incredible Wood’s argument that he actually believes his
death sentence stemmed from a conspiracy between the prosecutor and trial
judge.   Id. at 488-90, 499.   Observing that “there is considerable evidence in
the record suggesting [Wood’s] . . . conspiracy theory is little more than a ‘ruse’
. . . to avoid his own execution,” the court emphasized the fact that there was
no indication from the voluminous records submitted to the court that Wood
had ever described to anyone, aside from his lawyers and the doctors involved

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in this case, his purported belief that the prosecutor and trial judge had
conspired against him. Id. at 488.             In this connection, the court also noted
that the “timing of [Wood’s] assertion of his conspiracy is likewise suspicious,”
given that there is “no credible evidence . . . suggesting [he] ever voiced his
current conspiracy theory to anyone prior to the Supreme Court’s issuance of
its opinion in Panetti on June 28, 2007.”           Id. at 489.    The court likewise found
problematic “the lack of specificity underlying [Wood’s] conspiracy theory.”
Id.   In light of the foregoing, the court determined that Wood had “failed to
carry his burden of proving that he does, in fact, sincerely believe his conviction
resulted from a malevolent conspiracy between his prosecutor and trial judge.”
Id. at 490. 1
       In addition, the district court also credited the testimony of the Director’s
expert, Dr. Conroy, over that of Wood’s expert, Dr. Roman, and identified
numerous reasons for doing so. First, the court detailed how “Dr. Roman . . .
employs the term ‘delusional’ in a disturbingly casual manner that appears
inconsistent with the definition of that term as used in the DSM-IV-TR.”                    Id.
at 490.     Emphasizing that the “DSM-IV-TR defines ‘delusion’ in a very specific
manner,” the district court observed that Dr. Roman nevertheless “employed
the term ‘delusional’ with an extremely broad brush, applying it to almost any
belief possessed by petitioner that Dr. Roman did not consider to be factually
accurate or subjectively rational.”            Id. at 491. 2      According to the district


       1 See also id. at 499 (observing that “petitioner’s complaints about a conspiracy
between his prosecutor and trial judge are not credible given (a) their suspiciously sudden
appearance after the Supreme Court’s Panetti decision was handed down, (b) their
remarkable non-specificity . . . and (c) the fact petitioner apparently never told anyone other
than his lawyer about his conspiracy theory until he filed his Ford/Panetti claim in August,
2008”).

       2   See also id. at 494 (“While ‘loose language’ by an advocate can sometimes be excused,

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court, “[f]urther diminishing the efficacy of Dr. Roman’s diagnosis [was] the
fact Dr. Roman appeared confused, or at least confusing, in his testimony . . .
regarding whether petitioner’s allegedly delusional belief system was bizarre
or non-bizarre within the meaning of the DSM-IV-TR.”                           Id. at 494.
Relatedly, the district court also underscored the fact that Dr. Roman had not
diagnosed Wood as having a delusional disorder when he evaluated Wood in
connection with Wood’s pre-trial competency hearings. Id. at 493.
       As an additional reason for crediting Dr. Conroy’s testimony over that of
Dr. Roman, the district court emphasized the fact that Dr. Roman “expressly
relied” on the Peters Delusions Inventory in determining that Wood suffers
from a delusional disorder.        Id. at 497-98. As the district court explained,
“Dr. Conroy took exception to the use of that test instrument to help diagnose
a mental disorder under the DSM-IV-TR, arguing that instrument was not
designed to help diagnose mental disorders and that the term ‘delusion’
employed by Dr. Peters and her colleagues meant something entirely different
from the meaning of that term within the DSM-IV-TR.”                     Id. at 498.     The
district court also noted that Dr. Roman himself later admitted that the Peters
Delusions Inventory is not a proper test for determining whether an individual
suffers from a delusional disorder within the meaning of the DSM-IV-TR.                   Id.
Evaluating Dr. Roman’s expert testimony in light of this concession, the
district court concluded:
       The point is not that Dr. Roman employed a single test, among
       many others, which he now admits had little utility in evaluating
       petitioner for a true mental disorder. Rather, the problem is that


Dr. Roman’s peculiar predilection toward labeling petitioner’s pretrial insistence on his own
factual innocence ‘delusional’ raises questions about the validity of Dr. Roman’s use of that
same label when addressing petitioner’s post-trial insistence he was ‘railroaded’ or otherwise
unjustly convicted.”).


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       Dr. Roman spent seven full paragraphs and almost a full page in
       his written report . . . relating the details of petitioner’s responses
       to the Peters Delusions Inventory in a manner suggesting Dr.
       Roman found petitioner’s responses thereto very significant to his
       diagnosis of “delusional disorder.” It is not an exaggeration to
       state that, in his report, Dr. Roman appears to rely significantly,
       if not primarily, upon petitioner’s responses . . . in reaching Dr.
       Roman’s diagnosis that petitioner suffers from a persecutorial
       delusional disorder.        In light of Dr. Roman’s subsequent
       admission as to the limited utility of the Peters Delusions
       Inventory, this Court finds even more evidence in the record to
       question the efficacy of Dr. Roman’s “delusional” diagnosis.
Id.
       Finally, in providing additional explanation for why it credited Dr.
Conroy’s expert testimony, the district court also emphasized the fact that Dr.
Roman failed to consider Wood’s subculture (i.e., of death row inmates) in
diagnosing him as having a delusional disorder—despite the fact that the
“DSM-IV-TR requires consideration of an individual’s cultural and religious
background when evaluating the possible presence of delusional disorder.”
Id. at 495 (emphasis in original).    According to the district court, “[g]iven the
plain language of DSM-IV-TR, . . . this omission from Dr. Roman’s written
report and testimony . . . greatly diminishes the credibility of Dr. Roman’s
conclusions.”    Id.   By contrast, the district court noted that Dr. Conroy
expressly considered Wood’s subculture in determining whether his professed
belief that his death sentence resulted from a prosecutorial-judicial conspiracy
was symptomatic of a delusional disorder.         Id. at 480-81, 495-96.     As the
district court explained:
       Dr. Conroy expressed the opinion, based upon her considerable
       experience working as a forensic psychologist with the Federal
       Bureau of Prisons for more than two decades, that it was quite
       common for inmates in maximum security prisons to belie[ve] the
       government was “out to get them” but that such beliefs do not

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      constitute “delusional disorders” within the meaning of the DSM-
      IV-TR nor do they portend any other psychotic disorder. On the
      contrary, Dr. Conroy opined, the wide-spread belief within prison
      populations that individuals within the state or federal
      government have conspired to unjustly convict and sentence
      “innocent” individuals is, for many prison inmates, simply a means
      of “rationalizing” their current situations.
Id. at 495-96.
      Also, the district court evidently rejected Dr. Roman’s criticism of Dr.
Conroy’s opinions regarding the widespread prevalence of persecutorial beliefs
within the prison population as lacking in empirical basis. Instead, the district
court credited Dr. Conroy’s opinions as based on her extensive experience with
the mentality of prisoners and stated that Dr. Conroy’s findings were “fully
consistent” with the court’s own “experiences over nearly two decades dealing
with pro se prisoner litigants and death row federal habeas corpus petitioners.”
Id. at 496-97.   For example, the district court observed:
      It is this Court’s experience (based on review of hundreds, if not
      thousands, of prisoner pleadings and prisoner records) that beliefs
      in malevolent prosecution of “innocent” persons by the State of
      Texas are widespread within the Texas prison inmate population.
      . . . Thus, the culture of the Texas prison inmate population in
      general and subculture of the Texas death row inmate population
      in particular, is far from hostile to individual beliefs in
      persecutorial behavior by the State of Texas and its law
      enforcement agencies, officials, and officers.        Under such
      circumstances, petitioner’s refusal to accept responsibility for his
      own criminal conduct and his expressions of facile rationalizations
      for his presence on death row do not render his vague conspiracy
      theory evidence of a “delusional disorder” within the meaning of
      DSM-IV-TR.
Id. at 497.
      These statements by the district court regarding its prior experience
with death-row inmates gave rise to the instant appeal.         Specifically, Wood


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contends that the district court’s statements regarding its judicial experience
being “consistent” with some of Dr. Conroy’s testimony evinces that he was
deprived of a “fair hearing” in violation of his constitutional right to due
process.   We now turn to that contention.
                                        II.
      In support of his argument that he was deprived of a fair hearing, Wood
relies primarily upon Fox v. City of West Palm Beach, 383 F.2d 189 (5th Cir.
1967), in which this court held that it was error for a trial judge to take judicial
notice of material adjudicative facts in the case regarding the condition of land
and cost of drainage, based largely on the judge’s personal knowledge of the
land in question.    Because these facts were not commonly known, and were
subject to reasonable dispute, this court held that they therefore were not
proper subjects of judicial notice and that the district court therefore erred in
giving these facts dispositive weight to the underlying issue in dispute.     Id. at
194-195.   Wood argues that the district court in the present case similarly
committed reversible error by taking judicial notice based on its own judicial
knowledge and experience that many prisoners profess beliefs of persecution
by prosecutors and judges.     The present case is clearly distinguishable from
Fox, however, because here the district judge did not take judicial notice of the
adjudicative facts that controlled its conclusion that Wood suffered from no
mental illness that prevented him from understanding the relationship
between his crime and his death sentence so as to render him incompetent to
be executed under Panetti and Ford.      Instead, as a review of the record makes
clear, the district court based its decision upon adjudicative facts found from
the evidence introduced by the parties, principally from the testimony and
reports of the expert psychological witnesses.    The district court’s recognition
that Dr. Conroy’s findings were consistent, in part, with its own observation

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that prisoners often profess persecutorial beliefs does not constitute an
independent or essential judicial notice of an adjudicative fact; it was instead
a legislative fact that was permissible for the court to take into account in its
legal-reasoning process. 3 Consequently, the district court did not improperly
take judicial notice of any of the adjudicative facts to which it applied the law
in the process of its adjudication of Wood’s Panetti claim.               Further, unlike the
situation in Fox, the record here indisputably shows that the district court’s
judicial experience did not play a dispositive role in its resolution of the case or
its decision to credit Dr. Conroy’s testimony over that of Dr. Roman.                    Indeed,
as detailed above, the district court cited a multitude of reasons for crediting
Dr. Conroy’s opinion over Dr. Roman’s that were not based on the court’s prior
judicial experiences with death-row inmates.
       For these reasons, we see no legal error and conclude that the district
court proceedings fully satisfied the requirements of fairness and due process.
Accordingly, the judgment of the district court is AFFIRMED.




       3  See Fed. R. Evid. 201, advisory committee’s note to subdivision (a) (There are
“fundamental differences between adjudicative facts and legislative facts. Adjudicative
facts are simply the facts of the particular case. Legislative facts, on the other hand, are
those which have relevance to legal reasoning and the lawmaking process, whether in the
formulation of a legal principle or ruling by a judge or court or in the enactment of a
legislative body. . . . In view of these considerations, the regulation of judicial notice of facts
by [Fed. R. Evid. 201] extends only to adjudicative facts.”).



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