     Case: 14-70037   Document: 00514068063     Page: 1   Date Filed: 07/11/2017




          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT
                                                                  United States Court of Appeals
                                                                           Fif h Circuit
                                 No. 14-70037                            FILED
                                                                     July 11, 2017

SCOTT LOUIS PANETTI,
                                                                    Lyle W. Cayce
                                                                         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 Western District of Texas


Before STEWART, Chief Judge, and HIGGINBOTHAM and OWEN, Circuit
Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
      Our question today is competency to be executed and its attending
procedures, not the validity of the conviction or sentence. We stayed execution
to consider Scott Panetti’s appeal from the denial of appointed counsel and
funding to hire a mental health expert and investigator. We will now reverse
the district court’s denial of appointed counsel and expert funding under 18
U.S.C. § 3599, vacate its factual findings relating to Panetti’s competency, and
remand for additional proceedings, another chapter in this judicial plunge into
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                                     No. 14-70037
the dark forest of insanity and death directed by the flickering and inevitably
elusive guides.
                                            I
      Charged with capital murder for killing his wife’s parents in front of his
wife and three-year-old daughter, Panetti insisted on representing himself at
trial, an undertaking made the more difficult by a long history of schizophrenia
and institutionalization. The Texas Court of Criminal Appeals (“TCCA”)
upheld his conviction and death sentence on direct and collateral review. 1
      Panetti filed his first federal habeas petition in 1999, claiming, among
other things, that he was incompetent both to waive counsel and to stand trial.
The district court rejected those incompetency claims, and the state trial court
set Panetti’s execution date for February 5, 2004. 2 In December 2003, Panetti
filed a motion in state court under Article 46.05 of the Texas Code of Criminal
Procedure, claiming for the first time he was incompetent to be executed. 3 The
state court denied the motion without a hearing, and the TCCA dismissed his
appeal for lack of jurisdiction. 4
      In January of 2004, Panetti filed a second federal habeas petition, his
first under Ford v. Wainwright. 5 The federal district court granted his request
for a stay to allow the state court to consider supplemental evidence. 6 The state
court hired two experts to evaluate Panetti, but upon receipt of their reports,
denied relief without an evidentiary hearing. 7 Finding that the state court’s



      1  Panetti v. State, No. AP-72,230 (Tex. Crim. App. Dec. 3, 1997) (unpublished); Ex
parte Panetti, No. WR-37,145-01 (Tex. Crim. App. May 20, 1998) (unpublished).
       2 Panetti v. Quarterman, 551 U.S. 930, 937 (2007).
       3 Id. at 938.
       4 Id.
       5 477 U.S. 399 (1986) (holding that the Eighth Amendment bars states from executing

insane prisoners).
       6 Panetti v. Dretke, 401 F. Supp. 2d 702, 704 (W.D. Tex. 2004).

       7 Id.

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                                    No. 14-70037
failure to afford Panetti a hearing denied due process under Ford, the federal
district court scheduled an evidentiary hearing to determine Panetti’s
competency to be executed, appointed counsel, and authorized funds for
investigative and expert assistance. 8 Ultimately, the district court concluded
that Panetti understood the reason for his execution and found him competent
to be executed. 9 We affirmed. 10
      The Supreme Court granted certiorari and reversed. 11 The Court
reasoned that “a prisoner’s recognition of the severity of the offense and the
objective of community vindication are called into question . . . if the prisoner’s
mental state is so distorted by a mental illness that his awareness of the crime
and punishment has little or no relation to the understanding of those concepts
shared by the community as a whole.” 12 The Court held that the test this court
deployed—a prisoner’s factual awareness of his impending execution and the
State’s articulated premises for executing him—did not go far enough; that a
prisoner must also have a “rational understanding” of the State’s reasons for
executing him. 13 The Court remanded the case to the district court to
investigate and determine whether Panetti’s delusions rendered him incapable
of understanding the reason for his punishment in light of its opinion and
against the backdrop of Roper v. Simmons, 14 Atkins v. Virginia, 15 and Ford. 16




      8   Id. at 705.
      9   Id. at 712.
        10 Panetti v. Dretke, 448 F.3d 815 (5th Cir. 2006).
        11 Panetti v. Quarterman, 551 U.S. at 960.
        12 Id. at 958-59.
        13 Id. at 960.
        14 543 U.S. 551 (2005) (holding that it is unconstitutional to impose capital

punishment for crimes committed under the age of 18).
        15 536 U.S. 304 (2002) (holding that the execution of persons with intellectual

disabilities is cruel and unusual).
        16 Panetti v. Quarterman, 551 U.S. at 962.

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       So, the federal district court held a second evidentiary hearing on the
issue of Panetti’s competency to be executed. The court thoroughly reviewed
the evidence presented at the hearing and concluded that he was competent
under the correct standard. 17 While Panetti’s resulting appeal to this court was
pending, the Supreme Court held in Indiana v. Edwards that “the Constitution
permits States to insist upon representation by counsel for those competent
enough to stand trial . . . but who still suffer from severe mental illness to the
point where they are not competent to conduct trial proceedings by
themselves.” 18 In turn, we granted Panetti’s motion to stay federal proceedings
for his return to Texas state court with his new Edwards claim.
      Panetti then filed another state habeas petition, which the TCCA
dismissed on October 21, 2009, as a subsequent application for “fail[ing] to
meet the dictates of Article 11.071, § 5.” 19 The next day, with our permission,
Panetti filed his third federal habeas petition in the district court. 20
       While that petition was pending, the TCCA addressed the meaning of
Edwards in Chadwick v. State. 21 In light of Chadwick, the federal district court
granted Panetti leave to file a second successive state habeas petition. 22 The
TCCA again dismissed the petition, and the Supreme Court denied certiorari. 23
Panetti then returned to the federal district court with his Edwards claim,



       17  Panetti v. Quarterman, No. A-04-CA-042-SS, 2008 WL 2338498, at *37 (W.D. Tex.
Mar. 26, 2008).
        18 554 U.S. 164, 178 (2008).
        19 Ex parte Panetti, No. WR-37,145-02, 2009 WL 3368707 at *1 (Tex. Crim. App. Oct.

21, 2009) (unpublished); see also TEX. CODE CRIM. PROC. ANN. art 11.071, § 5 (West 2016).
        20 Panetti v. Thaler, No. A-09-CA-774-SS, 2012 WL 290115, at *2 (W.D. Tex. Jan. 31,

2009).
        21 309 S.W.3d 558 (Tex. Crim. App. 2010) (holding that the evidence in that case

supported implied findings of fact that defendant’s mental illness was severe enough to
render him incompetent to proceed pro se).
        22 Panetti v. Thaler, 2012 WL 290115, at *2.
        23 Ex parte Panetti, No. WR-37,145-03, 326 S.W.3d 615 (Tex. Crim. App. 2010) (mem.

op.); Panetti v. Texas, 564 U.S. 1023 (2011) (mem. op.).
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which the court denied on the merits. 24 On August 21, 2013, this court affirmed
both the district court’s 2008 rejection of Panetti’s competency-to-be-executed
claim and its 2012 rejection of Panetti’s Edwards claim. 25 The Supreme Court
denied Panetti’s resulting petition for a writ of certiorari. 26
                                             II
       We come to Panetti’s present claim. Acting on an ex parte request from
the state district attorney’s office, the state court set Panetti’s execution for
December 3, 2014. Panetti’s counsel learned of the execution date from a
newspaper on October 30, and the next day filed an emergency motion for a
hearing, asking that the execution date be withdrawn or modified to allow time
to pursue the issue of his competency to be executed through an Article 46.05
motion. 27 In this motion, Panetti argued that in the short time remaining
before his execution date, he would not have “a meaningful opportunity to
contest his competency for execution” as required by due process and Ford. In
Texas in 2014, no notice was required to be provided to capital defendants or
their counsel when the execution was set, and dates of execution for
“subsequent” executions could be set as early as thirty-one days out from the
order scheduling the execution. 28
       Panetti also submitted related motions for counsel and funding for
expert assistance, captioned “Defendant’s Ex Parte Motion for Funds to Hire
Mental      Health      Expert      to     Assist     Defense       in    Article     46.05


       24 Panetti v. Thaler, 2012 WL 290115, at *82.
       25 Panetti v. Stephens, 727 F.3d 398 (5th Cir. 2013).
       26 Panetti v. Stephens, 135 S. Ct. 47 (2014) (mem. op.).
       27 Panetti v. State, No. AP-77,049, 2014 WL 6764475, at *1 (Tex. Crim. App. Nov. 25,

2014) (unpublished).
       28 TEX. CODE CRIM. PROC. ANN. art. 43.141(c) (West 2003). At the next legislative

session, before oral argument in this case, the Texas legislature corrected this deficiency,
requiring notice to capital defendants and requiring all executions be set a minimum of
ninety-one days out. Act of May 29, 2015, 84th Leg., R.S., ch. 951, 2015 Tex. Sess. Law Serv.
951 (West).
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Proceedings,” “Defendant’s Ex Parte Motion for Funds to Hire Investigator to
Assist Defense in Article 46.05 Proceedings,” and “Defendant’s Motion for
Appointment of Counsel to Prepare and Litigate Article 46.05 Motion.” He
argued that the State “must comport with the minimum due process
guarantees enumerated in Ford” by granting him compensated counsel,
funding for experts, and time to develop an Article 46.05 petition; that with
these resources, he would be able to make the substantial showing of
incompetence required by Article 46.05 for a hearing on his competency. The
motions included the names of experts Panetti’s pro bono counsel had already
contacted, describing their qualifications and anticipated expenses. In the
meantime, the State began gathering evidence in support of its opposition to
Panetti’s pleas. This included surreptitiously recording a conversation between
Panetti and his parents on November 4, as it had done seven years before,
generating evidence of the same type relied upon by the federal district court
in denying Panetti’s earlier Ford claim.
       On November 6, the state trial court held a hearing by phone with both
parties. During this teleconference, Panetti’s counsel reminded the court that
Panetti had only six days to file or he would lose any right to appeal from the
judgment of the state court; 29 that Panetti’s competency had not been
evaluated for seven years; and that the state trial court was placing his unpaid
counsel in the position of either attempting to review 8,500 pages of TDCJ
medical records, seek pro bono expert assistance, and prepare and file a
petition in less than one week’s time, or else lose all right to appellate review.
The court suggested, and the State agreed, that Panetti file a skeletal Article



       29See TEX. CODE CRIM PROC. ANN. art. 46.05(l-1) (“[T]he court of criminal appeals may
not review any finding of the defendant’s competency made by a trial court as a result of a
motion filed under this article if the motion is filed on or after the 20th day before the
defendant’s scheduled execution date.”).
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46.05 petition, followed by an amended motion expanding on the original
petition, provided any additional filings were submitted by November 21,
effectively granting an additional nine days. Panetti’s counsel replied that
fifteen days were not enough for a law professor from Wisconsin and an expert,
both without funding and with the large demands of their primary work, to
prepare sufficient filings.
      Later that day, the court denied Panetti’s emergency motion for a
hearing. On November 14, Panetti filed a “Renewed Motion to Stay or Modify
Execution Date, Appoint Counsel, and Authorize Funds for Investigative and
Expert Assistance to Provide Meaningful Opportunity to Prepare Article 46.05
Motion,” in which he argued that he could not, facing these time constraints
and absent mental health expert resources, meet the threshold requirement of
Article 46.05. 30 In the renewed motion, pro bono counsel included the limited
evidence that he had been able to obtain, without any funding, to substantiate
the claim of present incompetency. The renewed motion included the expert
opinion of Dr. Diane Mosnik, a neuropsychologist with extensive experience in
the area of schizophrenia. As Dr. Mosnik was to help pro bono counsel on a
“limited basis,” she was only able to give her opinion on the basis of a
preliminary review of Panetti’s records. With this limited review, she
determined that Panetti had exhibited worsening signs of acute psychosis in
the year prior. Counsel cited Panetti’s prison medical records, observing what
he believed were “alarming and aberrational changes in Mr. Panetti’s behavior
over the last two years.” Counsel argued that he needed to be appointed and
granted funds to retain Dr. Mosnik to develop these preliminary impressions.
      The renewed motion also iterated Panetti’s argument that Ford and due
process entitled him to compensated counsel and funding for experts as he


      30   See Panetti v. State, 2014 WL 6764475, at *1.
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developed his Article 46.05 motion. He argued that, without these resources,
“the state-court process [would] be ineffective to protect Mr. Panetti’s . . .
rights” under Ford and Panetti. Panetti argued that, while Ford does not
require the State to appoint counsel and provide funding in every situation,
once a prisoner makes “a colorable showing of incompetency,” it does require
the State to provide the “rudimentary procedural due process protections” that
he sought. Panetti’s pro bono counsel maintained that he had made such a
showing, but were being deprived of the means to show more. The court denied
the renewed motion, and Panetti appealed to the TCCA.
       Meanwhile, the State’s lawyers secured the assistance of Dr. Joseph
Penn, Director of Mental Health Services in the Correctional Managed Care
division of the University of Texas Medical Branch. 31 By November 24, 2014,
Dr. Penn had completed his work and signed an affidavit describing Panetti’s
prison medical records, giving his interpretation of the record regarding the
significance of the pattern of medical treatment—both what had been provided
and what had not. He never met with Panetti. The State filed this affidavit
with the TCCA, and later with the federal district court, along with the
November 4 recording of Panetti and his family.
       On November 25, in a 5-4 opinion, the TCCA affirmed the denial of
Panetti’s motions. 32 It ruled that it lacked jurisdiction to review them because
the motions did not qualify as Article 46.05 pleadings and suggested that, even
construed to qualify, they were untimely. 33 Within four months of that
decision, legislation was introduced in the Texas Senate to require in all future
capital cases the notice that Panetti was not given and to extend the time that



       31 Dr. Penn is board certified in both general and forensic psychiatry. His Curriculum
Vitae demonstrates that he has served as an expert witness regularly since 1996.
       32 Panetti v. State, 2014 WL 6764475, at *1.
       33 Id.

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capital defendants and their counsel have to prepare filings. 34 That bill became
law just before oral argument in this case. 35
       Reaching the federal courts, Panetti on November 25, 2014, filed a
motion for stay of execution and sought appointment of counsel and funding
for expert assistance under 18 U.S.C. § 3599, again urging that Ford and due
process mandated that he have time and these resources. On November 26,
2014, the Wednesday before Thanksgiving, the State filed its “Opposition to
Petitioner’s Motion for Stay of Execution,” which responded to all of Panetti’s
motions, including the motions for counsel and funding for experts. The State’s
opposition relied on Dr. Penn’s affidavit and the audio recording of Panetti and
his family, including them as exhibits. 36 Later that day, the court denied
Panetti’s motions for want of an adequate showing of incompetence. It
concluded that Panetti failed to show that his mental health had substantially
changed since the court’s detailed inquiry seven years earlier. It did not
address the State’s argument that any habeas claim of Panetti’s was
procedurally barred, and hence did not address Panetti’s pleas for time. Panetti
timely appealed to this court. We stayed his execution for briefing and
argument.
                                              III
        Panetti requests appointment of counsel and funding for expert
assistance as provided in 18 U.S.C. § 3599(a)(2):
        In any post conviction proceeding under section 2254 or 2255 of
        title 28, United States Code, seeking to vacate or set aside a death
        sentence, any defendant who is financially unable to obtain


       34   Tex. S.B. 1071, 84th Leg., R.S. (2015) (introduced March 9, 2015).
       35   TEX. CODE CRIM. PROC. ANN. art. 43.141(b-1), (c) (West 2016) (effective September
1, 2015).
       36 The State successfully employed similar evidence eight years ago, when it presented
a prison-taped audio recording of Panetti with his family to the same federal district court
judge. In then rejecting Panetti’s Ford claim, the district court quoted directly from that tape.
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        adequate representation or investigation, expert, or other
        necessary services shall be entitled to the appointment of one or
        more attorneys . . . . 37
These statutory rights may be invoked before a habeas petition is filed.
Congress contemplated that the prisoner on death row would have the
assistance of paid counsel to prepare a federal habeas petition. 38 The
entitlement to paid counsel is absolute, subject to a narrow exception, when
potential procedural bars would “indisputably” foreclose habeas relief. 39 To
deny appointment of counsel, it must be “plain that any subsequent motion
that [appointed] counsel might file . . . would be futile;” 40 that is, the work of
paid, able counsel, with funds to engage experts, could make no difference.
Panetti’s request does not fit within this narrow exception.
       The State argues that Panetti is procedurally barred because he failed
to exhaust his Ford claims in state court under Article 46.05. Panetti replies
that courts may excuse exhaustion where, as applied here, the applicable state
procedures provided inadequate due process protections under Ford, leaving
only repair to federal court.
       Panetti argues that the actions of the State here combined to render
Article 46.05 ineffective to protect his rights. The State ex parte requested an
execution date without notice to Panetti’s counsel, leaving them with only ten
days between learning of the impending execution and the deadline to file a
motion under Article 46.05 or lose all right of appeal from the state trial court’s



       37  18 U.S.C. § 3599(a)(2) (emphasis added).
       38  See McFarland v. Scott, 512 U.S. 849, 855-56 (1994).
        39 Cantu-Tzin v. Johnson, 162 F.3d 295, 300 (5th Cir. 1998). Other courts have termed

this limitation as one in which relief is “clearly” foreclosed or whether appointment of counsel
would “be a wholly futile gesture.” Chavez v. Sec’y, Fla. Dept. of Corr., 742 F.3d 940, 946 (11th
Cir. 2014).
        40 Christeson v. Roper, 135 S. Ct. 891, 895 (2015). In that case, the Court recognized

that “Christeson faces a host of procedural obstacles to having a federal court consider his
habeas petition.” Id.
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                                      No. 14-70037
judgment. 41 The state court judge suggested that Panetti file a skeletal
petition, followed by an amended motion expanding on the original petition.
Meanwhile, the State used its own resources to seek out and file new evidence
with the TCCA, all while opposing Panetti’s access to the same resources.
       A divided TCCA, in turn, dismissed Panetti’s amended motion as neither
timely filed nor a proper Article 46.05 motion. The four dissenting judges
agreed with Panetti, deeming the court’s treatment of Panetti’s claims “overly
formalistic” and believing that it “at best, deprive[d] [him] of a fair opportunity
to litigate his claims, thereby violating the constitutionally required
procedural protections recognized in Ford.” 42 The dissent argued that the
TCCA should have accepted jurisdiction over Panetti’s renewed motion, for his
original motion sought relief by the only pathway offered under Texas law,
Article 46.05, and “was timely filed.” 43 The court had recently done just that in
Druery v. State. 44 In response to the majority’s conclusion that Panetti had not
in fact filed an original Article 46.05 motion, the dissent pointed out that the
court ought to have properly exercised its jurisdiction because his motions were
“intertwined with the substance of relief sought by Article 46.05.” 45 In short,
four justices maintained that the majority ignored its own precedent allowing
the TCCA to consider such intertwined claims. 46



       41 TEX. CODE CRIM PROC. ANN. art. 46.05(l-1) (“[T]he court of criminal appeals may
not review any finding of the defendant’s competency made by a trial court as a result of a
motion filed under this article if the motion is filed on or after the 20th day before the
defendant’s scheduled execution date.”).
       42 Panetti v. State, 2014 WL 6764475, at *1 (Alcala, J., dissenting).
       43 Id.

       44 412 S.W.3d 523, 536 (Tex. Crim. App. 2013) (permitting review of both Article
46.05 competency motion and supplement to that motion, when only original motion was
timely filed for purposes of twenty-day rule).
       45 Panetti v. State, 2014 WL 6764475, at *1 (Alcala, J., dissenting).
       46 See Staley v. State, 420 S.W.3d 785, 787 (Tex. Crim. App. 2013) (concluding that it

had jurisdiction to review merits of collateral involuntary-medication order that was
“intertwined” with trial court’s ruling that defendant was competent to be executed). Rules
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       Texas’s application of Article 46.05 to Panetti denied him due process.
That procedure, at least as applied to him, was ineffective to protect his right
to be free from cruel and unusual punishment under Ford and its progeny.
Texas itself has recognized as much by recently passing legislation to ensure
that no other capital defendant is placed in the situation that Panetti and his
counsel faced. 47 That initiative commendably addresses the core concern going
forward, but does not address the denial here.
       Ordinarily, a state prisoner must exhaust all of his state remedies to be
entitled to habeas review. 48 But where “circumstances exist that render [the
state] process ineffective to protect the rights of the applicant,” we are
empowered to reach those claims absent exhaustion. 49 We find that such
circumstances exist here. Federal courts also ordinarily apply a deferential
standard of review to the claims of state prisoners seeking habeas relief. 50 But
where, as here, the state courts have not reached the merits of a petitioner’s
claims, federal courts will review de novo. 51 We are not prepared to make the
predictive judgment, absent a procedural bar to federal review and with no
AEDPA deference to a decision of the state court, that Panetti’s federal habeas
claim would be futile. He is entitled to counsel to pursue that claim, and its
denial was error.


that are not thoroughly and consistently applied are not procedural bars to federal
jurisdiction. Ford v. Georgia, 498 U.S. 411, 423-24 (1991) (“[O]nly a ‘firmly established and
regularly followed state practice’ may be interposed by a State to prevent subsequent review
by this Court of a federal constitutional claim.”).
        47 See Tex. S.B. 1071, 84th Leg., R.S. (2015) (“An act relating to requiring notice of the

scheduling of an execution date and the issuance of a warrant of execution.”).
        48 28 U.S.C. § 2254(b)(1)(A) (2012).
        49 Id. § 2254(b)(1)(B)(ii).
        50 Id. § 2254(d).
        51 See Cone v. Bell, 556 U.S. 449, 472 (2009) (“Because the Tennessee courts did not

reach the merits of Cone’s Brady claim, federal habeas review is not subject to the deferential
standard that applies under AEDPA . . . . Instead, the claim is reviewed de novo.”); Hoffman
v. Cain, 752 F.3d 430, 437 (5th Cir. 2014) (“For claims that are not adjudicated on the merits
in the state court, we apply a de novo standard of review.”).
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       Nor do we see justification for denying Panetti funding for experts and
other investigative resources. 52 Under 18 U.S.C. § 3599(f), the court “may
authorize the defendant’s attorneys to obtain such services on behalf of the
defendant” upon “a finding that investigative, expert, or other services are
reasonably necessary for the representation of the defendant.” A district court
may deny an inmate’s request for funds to pursue federal habeas relief “when
a petitioner has (a) failed to supplement his funding request with a viable
constitutional claim that is not procedurally barred, or (b) when the sought-
after assistance would only support a meritless claim, or (c) when the sought-
after assistance would only supplement prior evidence.” 53
       The federal district court did not mention the statutory standard of
“reasonabl[e] necess[ity],” but implicitly found that Panetti had not met it in
holding that, “[c]onsidering . . . the wealth of evidence on the issue of Panetti’s
competency,” his “attempt to begin the cycle of litigation afresh should be
rejected.” The reality is that a decade has now passed since the last
determination of whether this concededly mentally ill petitioner is competent
to be executed. 54 Given that lapse of time, we cannot say that any new evidence
would only be “supplemental” to that already contained in the record.




       52  See Brown v. Stephens, 762 F.3d 454, 459 (5th Cir. 2014) (citing Woodward v. Epps,
580 F.3d 318, 334 (5th Cir. 2009) and Smith v. Dretke, 422 F.3d 269, 288 (5th Cir. 2005)).
        53 Smith, 422 F.3d at 288 (citations omitted) (addressing request for funds to obtain

the assistance of an expert psychologist in federal habeas proceedings).
        54 The State directs us to an unpublished case, Charles v. Stephens, where we affirmed

the district court’s denial of funding for experts because of the underlying lack of merit of
Charles’s Ford claim. 612 F. App’x 214 (5th Cir. 2015) (unpublished), cert. denied, 135 S. Ct.
2075 (2015). We note several important distinctions from this case. First, unlike Panetti,
Charles had paid counsel. Id. at 216 n.3. (“The district court granted Charles’s motion to
appoint counsel and this decision is not at issue on appeal.”) Second, while Panetti’s
competency has been at issue since his trial, Charles raised the question of competency for
the first time two months before his scheduled execution, id. at 216, which, as we observed,
gives rise to the inference that Charles was making the “the kind of ‘[l]ast-minute filings that
are frivolous[,] designed to delay executions[, and] can be dismissed in the regular course.”
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       As Justice Powell wrote in Ford, due process is breached when “affected
parties” are prevented “from offering contrary medical evidence or even from
explaining the inadequacies of the State’s examinations.” 55 Panetti asserts
that the State here sought to deny him a meaningful opportunity to do just
that. It deployed its able death penalty lawyers, aided by a medical expert, Dr.
Penn, and recorded Panetti with his family—filing Dr. Penn’s affidavit and the
recording with both the TCCA and federal district court. 56 Meanwhile, Panetti
lacked the funds to acquire his own up-to-date evidence; his last professional
competency evaluation was conducted a decade ago. As the argument goes, it
is one thing to respond to a petitioner’s claims on the existing record; it is quite
another, with assistance of counsel and paid experts, to generate new evidence
while preventing the petitioner from doing the same. All this without initially
notifying Panetti of his impending execution, resulting in an impossible
deadline—a flaw that has since been ameliorated by the Texas legislature to
provide notice and time for these sorts of claims to be developed. As the Court
recently reminded in Moore, “[t]he clearest and most reliable objective evidence
of contemporary values comes from state legislative judgments” because it is
those bodies that “are constituted to respond to the will and consequently the
moral values of the people.” 57 In introducing the bill to require notice to
defendants whose execution dates are set and the provision of enough time to
prepare a defense, the authoring Texas Senator said:



Id. at 222 (quoting Panetti v. Quarterman, 551 U.S. at 946). Third, as discussed supra, and
unlike in Charles, the State here took an adversarial posture towards Panetti’s motions.
        55 Ford, 477 U.S. at 424 (Powell, J. concurring).
        56 The State made sure to include the recording it had made because it was the same

kind of evidence that had previously persuaded the district court to find Panetti competent
to be executed—lending further support to the conclusion that the State behaved
adversarially.
        57 Moore v. Texas, 137 S. Ct. 1039, 1056 (2017) (quoting Atkins v. Virginia, 536 U.S.

304, 312 (2002) and Gregg v. Georgia, 428 U.S. 153, 175 (1976)) (internal quotation marks
omitted).
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                                        No. 14-70037
      Attorneys for capital defendants should have the same notice as
      the state and the court about when executions will be set.
      Requiring sufficient notice of the scheduling of execution dates will
      ensure that defendants have an opportunity to fairly prepare for
      the impending execution. 58

We agree.
      With the benefit of time and argument, we must conclude that the
district court’s conclusion was tainted by the inadequate due process protection
provided to Panetti by the State. We need not and do not treat the merits of
Panetti’s claim that he is incompetent to be executed—that is for the district
court after Panetti has been afforded the opportunity to develop his position.
We conclude that the district court abused its discretion in denying Panetti
funding for counsel and for experts to assist in preparing his contemplated
federal habeas petition. To the extent the district court made findings of fact
regarding Panetti’s competency to be executed, they must be vacated. It is the
case that a petitioner bringing claims under Ford and the State crafting a
response must travel in uncharted water—uncertainties for all. This opinion
does not undertake to resolve these uncertainties; it rather insists that their
resolution proceed with fully armed counsel on both sides—the essence of due
process.
                                              IV
      The dissent argues that Texas’s adversarial posture played no role in the
decisions of the Texas Court of Criminal Appeals or the federal district court
because those courts did not rely on the evidence the State produced. With
respect, the dissent’s observation that the TCCA “did not reach the merits of
Panetti’s claim” misses the point. The very question which divided that court
5-4 was whether Panetti’s struggle to comply with the strictures of Article


      58   Senate Research Center, Bill Analysis, Tex. S.B. 1071, 84th Leg., R.S. (2015).
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                                      No. 14-70037
46.05, without funded counsel or expert assistance and with truncated
deadlines, was sufficient in the face of the State’s decidedly adversarial
opposition. The point made by the dissenting judges was that the court ought
to accept the pleading despite these shortcomings because Panetti could not
“attach items in support of a motion under Article 46.05 due to a lack of funds
to obtain assistance from mental-health experts whose opinions are required
to make a substantial showing under the article;” and that his argument was,
at the least, “intertwined with the substance of the relief sought by Article
46.05.” 59 And none of this can change the reality that the TCCA majority, while
ignoring its own precedent, faulted Panetti’s request for relief for deficiencies
that were themselves a product of the State-created plight faced by Panetti’s
counsel, all with a backdrop of reassuring comfort tendered by the State’s
medical expert that nothing had changed in Panetti’s competency. And the
district court, whose decision is before us on appeal, in rejecting Panetti’s claim
on the merits, stated that it had considered “the wealth of evidence on the issue
of Panetti’s competency.” While that basis for conclusion surely included all of
the State’s last-minute submissions, it was without the benefit of evidence that
Panetti sought to produce by process denied to him.
       The dissent further argues that any shortcomings of the state court
process were made harmless by the intervening ruling of the federal district
court; that the same court that had earlier denied Panetti’s Ford claim was
well-equipped to decide whether Panetti had overcome the presumption of
competence attendant to that 2008 ruling. This argument fails. On November
19, 2014, the Texas State trial court rejected Panetti’s renewed motion, which
contained the evidence that Panetti’s unfunded counsel had been able to



       59Panetti, 2014 WL 6764475. The court had done just that in Druery. Id.; see Druery v.
State, 412 S.W.3d 523, 536 (Tex. Crim. App. 2013).
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                                       No. 14-70037
assemble up to that point. Six days later, on November 25, 2014, the TCCA
affirmed that decision. That same day, Panetti filed in the federal district court
his motion for a stay, appointment of counsel, and funding for experts, with
Texas opposing.
       The district court in turn did not confront the issue of exhaustion of state
remedies posed by the decision of the TCCA. Pressed by the looming execution
date, it elected to proceed to the merits, as it was entitled to do. Doing so,
however, did not address Panetti’s pleas that the state had denied him the time
and resources required to present his claim—resources that the state was
deploying against him. This left the district court to weigh Panetti’s stunted
submission against the state’s evidence of Dr. Penn’s affidavit and the
recording of Panetti and his family and his experience in the earlier
competency proceedings. 60 The result was nigh inevitable. Rather than a
cleansing of error, as the dissent has it, the district court did not remedy the
denial of due process we have described. Instead, it proceeded upon the flawed
record that denial produced.
                                              V
       Finally, lest the length and complexity of Panetti’s path in the federal
courts be seen as a sane man playing the system, we remind that there can be
no dispute that Panetti is mentally ill, and was so long before his crime. Before
his conviction, he had been “hospitalized numerous times” and prescribed
medication that “would be difficult for a person not suffering from extreme
psychosis even to tolerate.” 61 In 1986, Panetti’s then-wife sought judicial relief
from the Texas state courts after Panetti “became convinced the devil had




       60 “The Court finds, considering the question in light of the wealth of evidence on the
issue of Panett’s competency previously amassed in this case . . . .”
       61 Panetti v. Quarterman, 551 U.S. at 936.

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                                 No. 14-70037
possessed their home and . . . had buried a number of valuables next to the
house and engaged in other rituals.” 62
      Seven years have passed since he was last adjudged competent. Since
then, as recounted by the amici: (1) escorting officers have noticed that Panetti
often acts in an irrational and delusional manner; (2) despite having refused
mental health treatment for nearly two decades, Panetti has, in the last few
years, begun requesting mental health assistance and medication; (3) Panetti
has expressed the belief that Texas has implanted a listening device in his
tooth that sends command messages to his brain; (4) Panetti reads the Gospel
to help drown out the voices he hears; (5) Panetti has expressed the belief that
CNN anchor Wolf Blitzer displayed Panetti’s stolen TDCJ ID card during a
report; and (5) Panetti has claimed to be the father of actress and singer Selena
Gomez.
      Nor does Panetti present as a poster child of abuse—seeking a
determination of competence with each setting of an execution date. Panetti is
from a small universe of death row prisoners; he has a long history of mental
illness that predates his crime and following a judicial determination of his
competency to be executed, he experienced a delay of another decade of
solitary, brought about by a wholly extraneous issue that itself was resolved
by the Supreme Court.
      Process matters, and gives rise to the aged observation that, in the law,
the shortest distance between two points is seldom a straight line. Truncated
hearings and exacting strictures can squeeze the life from due process, while
perversely creating years of delay, all for a refusal to give a few days of time—
this most seriously so when the issue is not whether a defendant is mentally
ill, but the more subtle reaches of his disability. There is no justification for


      62   Id.
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                                  No. 14-70037
executing the insane, and no reasoned support for it, as only a glance at the
brief of amici—filed by able and fervent citizens spanning the spectrum of
political views—will confirm. We and our state court brethren struggle to get
it right, an effort not always successful, for we yet are just lawyers, subject to
error. Mr. Wiercioch has, in our best traditions, served his client for years with
limited resources and time. To refuse to give him the time and resources
critical to review Panetti’s present condition is error, borne of understandable
but nevertheless error-producing frustration over the delay baked into our
death penalty jurisprudence—with its twists and turns between two
sovereigns. The core deficiencies underlying our finding of denial of due process
have commendably been alleviated by the Texas legislature, but stopping there
leaves Panetti in the dust.
      We reverse the district court’s denial of appointed counsel and expert
funding. We vacate, as premature, the district court’s findings on the merits of
Panetti’s Ford claim without comment on their ultimate soundness and
remand to the district court with instructions to appoint counsel, authorize
funds for investigative and expert assistance, and conduct any further
proceedings to determine afresh Panetti’s competency to be executed. Delivery
of the process due protects the prisoner and in doing so protects us all.




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                                       No. 14-70037


PRISCILLA R. OWEN, Circuit Judge, concurring in part and dissenting in
part:
        This is the third time that Panetti has claimed, based on Ford, 1 that he
is incompetent to be executed. If the federal district court’s order denying
Panetti’s motion for funds to retain experts and investigators to pursue that
claim should be affirmed, then whether the Texas state courts denied due
process to Panetti is irrelevant.         I would affirm the federal district court
regarding funds for experts, and I therefore primarily consider the federal
district court’s rulings. In reversing the federal district court, the majority
opinion effectively applies a de novo standard of review, though an abuse of
discretion standard governs the denial of a motion under 18 U.S.C. § 3599(f), 2
and the majority opinion concludes that the passage of time is sufficient to
require the appointment of experts and investigators to examine the
defendant’s competency anew. 3 With regard to Panetti’s constitutional due
process claim, the majority opinion reverses the federal district court because
of two filings the State made the same day the district court issued its ruling,
even though none of the district court’s citations to the evidence on which it
relied include the State’s submissions. In so doing, the majority opinion again
fails to employ proper appellate standards of review.




        1Ford v. Wainwright, 477 U.S. 399 (1986).
        2See Brown v. Stephens, 762 F.3d 454, 459 (5th Cir. 2014) (“We review the denial of
funding for investigative or expert assistance for an abuse of discretion.”).
       3 Ante at 13 (“The reality is that a decade has now passed since the last determination

of whether this concededly mentally ill petitioner is competent to be executed. Given that
lapse of time, we cannot say that any new evidence would only be ‘supplemental’ to that
already contained in the record.” (footnote omitted)).
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                                      No. 14-70037
       I agree that Panetti was and is entitled to appointed counsel at every
step of the ongoing legal proceedings. But the error in failing to appoint
counsel is not a dispositive issue and does not warrant a continued stay of
execution since Panetti was actually represented by his former federal habeas
counsel, who proceeded pro bono in the state courts and in federal district
court, and they capably represented him. (They are entitled to compensation
for that and any future representation, as long as they remain appointed
counsel pursuant to 18 U.S.C. § 3599). 4
       The dispositive question is whether the federal district court abused its
discretion in denying Panetti’s request for funds for experts and investigators
when (1) Panetti has maintained in the most recent round of state and federal
court proceedings that he cannot make the threshold showing required by Ford
(“a substantial threshold showing of insanity”) 5 unless and until a court orders
funding for experts and investigators, 6 and (2) the facts presented by Panetti
to the district court in support of his renewed claim that he is incompetent to
be executed do not differ in any meaningful way from the facts exhaustively
examined by the district court in two prior Ford hearings.
       The panel’s majority opinion obfuscates the core inquiry and, I submit
with great respect, does not objectively consider the record or the actual bases
for the district court’s conclusion that Panetti has not made a sufficient


       4 See Battaglia v. Stephens, 824 F.3d 470, 474 (5th Cir. 2016) (citing Rosales v.
Quarterman, 565 F.3d 308, 312 (5th Cir. 2009) (per curiam)).
       5 Ford, 477 U.S. at 426 (POWELL, J., concurring) (concluding that a State “may require

a substantial threshold showing of insanity merely to trigger the hearing process”); see also
Panetti v. Quarterman, 551 U.S. 930, 949 (2007) (holding that “Justice Powell’s opinion [in
Ford] constitutes ‘clearly established’ law for purposes of § 2254 and sets the minimum
procedures a State must provide to a prisoner raising a Ford-based competency claim”).
       6 See, e.g., Panetti v. Stephens, No. 1:04-CV-42-SS, slip op. at 9 (W.D. Tex. Nov. 26,

2014) (“Panetti argued before the state courts that ‘although he has made a colorable showing
of incompetence without necessary funding to obtain the assistance of mental-health experts,
he c[an]not show his incompetence under the standard set forth in Article 46.05(e).” (quoting
Panetti v. State, No. AP-77,049, 2014 WL 6764475, at *1 (Tex. Crim. App. Nov. 25, 2014))).
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                                       No. 14-70037
showing to require the appointment of experts in order to litigate, once again,
whether he is competent to be executed.
                                               I
       There is no question that Panetti was entitled to appointment of counsel
to represent him when the State of Texas once again set an execution date. I
agree with the majority opinion on that score.                      But counsel actually
represented Panetti, and the fact that they were not compensated at the time
is not a basis for further staying the execution. The record reflects that counsel
performed effectively in state court but concluded that they could not, or should
not, proceed to file a motion under Texas Code of Criminal Procedure Article
46.05 without funding from a court to retain mental health experts and
investigators to attempt to develop the record. The lack of experts, rather than
the lack of counsel or counsel’s need for additional time, was the pivotal issue
in state court and in federal district court.
                                              II
       Quoting Ford and citing Panetti, the federal district court concluded that
“Panetti has failed to make the ‘threshold showing’ which would trigger his
entitlement to the relief he seeks.” 7 The court explained that, in response to
Panetti’s most recent claim, it had “[c]onduct[ed] a fresh inquiry into Panetti’s
mental state at the threshold” and found that
       Panetti has failed to make the necessary showing of incompetency
       warranting, for the third time . . . authorization of funds to hire
       mental health experts, and a stay of execution. Panetti has
       extensively litigated this issue, and has presented no evidence of
       incompetence different in kind from that previously considered
       and ultimately rejected by this and other Courts. 8


       7Panetti, No. 1:04-CV-42-SS, slip op. at 8 (quoting Ford, 477 U.S. at 426 (POWELL, J.,
concurring) and citing Panetti v. Quarterman, 551 U.S. 930 (2007)).
      8 Id. at 13; see also id. at 9 (“The Court finds, considering the question in light of the

wealth of evidence on the issue of Panetti’s competency previously amassed in this case,
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                                      No. 14-70037
       These determinations are fully supported by the record. Panetti failed
to present facts to the district court regarding his behavior or mental state
since the last competency hearing that would permit an expert to present
opinions that materially differed from the expert opinions that the district
court heard in the prior competency-to-be-executed hearings. Unless facts are
presented that truly differ from the nature of the facts previously presented,
there is no need to fund experts to opine further. Panetti was accorded due
process. 9
       For the same reasons, the appointment of experts is not “reasonably
necessary for the representation of the defendant,” within the meaning of 18
U.S.C. § 3599(f). Section 3599(f) does not mandate the appointment of experts
or investigators. Rather, it provides that
       [u]pon a finding that investigative, expert, or other services are
       reasonably      necessary    for   the    representation    of   the
       defendant . . . , the court may authorize the defendant’s attorneys
       to obtain such services . . . and, if so authorized, shall order the
       payment of fees and expenses. 10
This court has interpreted “reasonably necessary” to require a petitioner to
show that he has “a substantial need” for the requested assistance. 11 “[A]
district court may deny an inmate’s request for funds ‘when a petitioner has
(a) failed to supplement his funding request with a viable constitutional claim
that is not procedurally barred, or (b) when the sought-after assistance would
only support a meritless claim, or (c) when the sought after assistance would



Panetti’s evidence of incompetence is insufficient to make the threshold showing necessary
to trigger Ford.”).
        9 See generally Mathews v. Eldridge, 424 U.S. 319, 334 (1976) (“(D)ue process is

flexible and calls for such procedural protections as the particular situation demands.”
(quoting Morrissey v. Brewer, 408 U.S. 471, 481 (1972))).
        10 18 U.S.C. § 3599(f) (emphasis added).
        11 Brown v. Stephens, 762 F.3d 454, 459 (5th Cir. 2014) (quoting Riley v. Dretke, 362

F.3d 302, 307 (5th Cir. 2004)).
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                                       No. 14-70037
only supplement prior evidence.” 12 Our review of the district court’s ruling is
for abuse of discretion. 13
       Panetti’s current claim that he is incompetent to be executed is not “a
viable constitutional claim” 14 because, as the district court found, the facts
supporting his most recent claim of incompetency are not different in kind from
the facts supporting an earlier claim of incompetency. The earlier claim was
rejected after an extensive hearing, detailed findings by the district court, and
appellate review by this court and the Supreme Court.
       Because the facts presented to the district court in support of Panetti’s
most recent Ford claim are not different in kind from those supporting his last
claim of incompetency, the expert assistance that is sought “would only
supplement prior evidence.” 15 In the prior competency hearing, the district
court considered expert opinions that Panetti was incompetent to be executed.
Those opinions were based on the same “kind” of facts that Panetti has
presented in support of his most recent claim of incompetency, 16 and the
federal district court did not find those expert opinions persuasive.
       In analogous circumstances, this court held in Smith v. Dretke, a capital
case, that the district court did not abuse its discretion in denying funds for
the assistance of a psychologist in federal habeas proceedings. 17 Smith argued
that an expert could evaluate his drug and alcohol abuse “to determine
whether it would support a defense mitigation theory,” but this court held that



       12 Id. (quoting Smith v. Dretke, 422 F.3d 269, 288 (5th Cir. 2005)); see also Smith, 422
F.3d at 288 (interpreting former 21 U.S.C. § 848(q)(9), the predecessor to 18 U.S.C. § 3599(f),
the same way); USA Patriot Improvement and Reauthorization Act of 2005, Pub. L. No. 109-
177, § 222, 120 Stat. 192, 231 (2006).
       13 See Brown, 762 F.3d at 459.
       14 Id.
       15 Id.
       16 See Panetti v. Stephens, No. 1:04-CV-42-SS, slip op. at 13 (W.D. Tex. Nov. 26, 2014).
       17 422 F.3d at 288-89.

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                                  No. 14-70037
“[t]he question of mental capacity . . . was presented in this instance to the jury
at trial” and that the evidence Smith sought to develop would only be
supplemental. 18 The federal district court in the present case heard a vast
amount of evidence presented by Panetti in the prior competency hearing, and
the district court found that the new evidence that Panetti presented was not
different in kind from that already considered. The assistance of new experts
would only supplement prior evidence of the same nature.
                                       III
      The bases upon which the majority opinion reverses the district court’s
denial of funding for experts do not withstand analysis.
                                        A
      The majority opinion concludes that “[r]ather than . . . cleansing . . . the
denial of due process [by the state courts] we have described,” 19 the federal
district court, “[p]ressed by the looming execution date, . . . proceeded upon the
flawed record that denial produced.” 20 The “result was nigh inevitable,” 21 and
the federal district court likewise denied Panetti due process, the majority
opinion concludes. 22
      The federal district court had before it Panetti’s motion to stay the
execution and a motion to fund experts. The district court was certainly aware
that it could grant a stay of the impending execution if the court needed
additional time. It did not grant such a stay, and in light of the decades of
experience that the judge possesses, and the detailed order that the court
issued, it is evident that the court denied the motion for a stay after careful




      18 Id.
      19 Ante at 17.
      20 Ante at 17.
      21 Ante at 17.
      22 Ante at 15.

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                                     No. 14-70037
deliberation, not because it was “[p]ressed by the looming execution date.” 23
Panetti was urging the district court to give him more time to develop a factual
record regarding his competency and to appoint experts to review the evidence
of Panetti’s mental state since the last competency hearing. That could not
have been lost on the federal district court. Panetti argued to the federal
district court that the record in the state court was inadequate and that he had
been denied due process. The district court nevertheless denied Panetti’s
motion for appointment of experts. The request for funding for experts was the
primary thrust of Panetti’s motion in the federal district court. To suggest that
the district court was led down the proverbial primrose path by error in the
state courts implies that the federal district court was either impotent or inept.
It was neither. The district court ruled on the 18 U.S.C. § 3599(f) motion to
appoint experts after “[c]onducting a fresh inquiry into Panetti’s mental state
at the threshold.” 24 The federal district court was well within its discretion in
denying that motion.
                                            B
      As discussed, our court has held that a district court may deny a § 3599(f)
motion to fund experts “when the sought after assistance would only
supplement prior evidence.” 25        The majority opinion concludes that “[t]he
reality is that a decade has now passed since the last determination of whether
this concededly mentally ill petitioner is competent to be executed. Given that
lapse of time, we cannot say that any new evidence would only be
‘supplemental’ to that already contained in the record.” 26 This is erroneous for
at least three reasons.



      23 Ante at 17.
      24 Panetti v. Stephens, No. 1:04-CV-42-SS, slip op. at 13 (W.D. Tex. Nov. 26, 2014).
      25 Brown, 762 F.3d at 459 (quoting Smith, 422 F.3d at 288).
      26 Ante at 13 (footnote omitted).

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                                       No. 14-70037
       First, the burden of proof is on the defendant who is seeking public
funding for experts. The lapse of time says nothing about whether the evidence
the defendant hopes to offer through an expert will be new, rather than
supplemental, evidence. The majority opinion fails to hold Panetti to his
burden of proof.
       Second, and more fundamentally, it cannot simply be assumed, as the
majority opinion does, that because of the passage of time, appointment of
experts is “reasonably necessary.” 27          Such an assumption is an arbitrary
interpretation and application of § 3599(f), and it is a standardless means of
allowing federal courts to second-guess and reverse state courts, contrary to
the precepts contained in AEDPA.
       Third, such an assumption is not a valid reason for reversing a federal
district court when we are reviewing a denial of funding for experts under
§ 3599(f). Our review is for an abuse of discretion. We cannot legitimately say
that, as a matter of law, a district court must grant funding for experts to
examine a defendant’s competency when the last competency hearing was
years earlier, even when all agree that the defendant suffers from mental
illness.
                                             C
       The majority opinion places great, and repeated, emphasis on the fact
that the State filed an expert’s affidavit in the Texas Court of Criminal Appeals
(TCCA) and in the federal district court, and that, without notice to Panetti,
the State recorded a two-hour conversation he had with his parents on
November 4, 2014. 28 However, neither the affidavit nor the recording was



       27Ante at 13 (quoting 18 U.S.C. § 3599(f)).
       28See, e.g., ante at 14 (“[The State] deployed its able death penalty lawyers, aided by
a medical expert, Dr. Penn, and recorded Panetti with his family—filing Dr. Penn’s affidavit
and the recording with both the TCCA and federal district court.”).
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                                      No. 14-70037
actually considered by the TCCA or relied upon by the federal district court.
The majority opinion is incorrect in concluding that the mere filing of the
affidavit or recording resulted in a denial of due process to Panetti and
warrants reversing the federal district court.
       After the state trial court denied Panetti’s request for funding for experts
and a stay of the execution, and while an appeal of that ruling was pending
before the TCCA, the State, on November 24, 2014, 29 filed with the TCCA an
affidavit from Dr. Joseph Penn, Director of Mental Health Services in the
Correctional Managed Care division of the University of Texas Medical
Branch. Dr. Penn had reviewed Panetti’s medical records and opined in the
affidavit that Panetti did not exhibit behaviors that interfered with his daily
functioning or required treatment with medications.                 The State had also
recorded a conversation that occurred on November 4, 2014, between Panetti
and his parents. The recordings were made without Panetti’s knowledge,
which certainly was not a violation of due process.                  An inmate’s phone
conversations may be intercepted and recorded unless privileged, 30 and
Panetti’s conversation with his parents was not privileged.                  He does not
contend otherwise. Panetti had no expectation of privacy when he conversed
with his parents. 31 Regardless, however, neither the Penn affidavit nor the



       29 See Reply Brief of the State of Texas, State v. Panetti, No. AP-77,049, 2014 WL
6764475 (Tex. Crim. App. Nov. 25, 2014).
       30 See United States v. Harrelson, 754 F.2d 1153, 1168-69 (5th Cir. 1985) (rejecting a

challenge to evidence obtained through electronic surveillance and upholding the
admissibility of recordings of conversations of an inmate with his wife and brother, an
attorney, concluding the conversations were not privileged).
       31 See id. at 1169 (“The question presented here is thus whether the Harrelsons had a

reasonable expectation of privacy as they spoke to each other in jail. The answer must be
that they did not. It is unnecessary to consult the case law to conclude that one who expects
privacy under the circumstances of prison visiting is, if not actually foolish, exceptionally
naive.”); see also United States v. Van Poyck, 77 F.3d 285, 290-91 (9th Cir. 1996) (“[N]o
prisoner should reasonably expect privacy in his outbound telephone calls.”); United States
v. Sababu, 891 F.2d 1308, 1329 (7th Cir. 1989) (“We believe that it was unreasonable for [the
                                             28
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                                      No. 14-70037
2014 recorded conversation was considered by the TCCA or the federal district
court.
         We know, as a matter of law, that the TCCA did not consider or rely on
the Penn affidavit or the recording because one day after the State’s filing, the
TCCA denied Panetti’s petition on the basis that it lacked jurisdiction to review
the trial court’s order. 32 The TCCA reasoned that Panetti had not filed an
Article 46.05 pleading and that no authority permitted the court to review a
“freestanding motion,” such as the one that Panetti had filed. 33 (The TCCA did
not, as the majority opinion asserts, 34 state that untimeliness was an
additional reason for denying the motion). Accordingly, the TCCA did not
reach the merits of Panetti’s claim, and the State’s new evidence played no part
in the TCCA’s ruling.
         The majority opinion says this “misses the point.” 35 It then engages in
an impassioned argument and cites the dissenting opinion in the TCCA. 36 But
none of what the majority opinion says addresses whether this court can
legitimately say that the State’s mere filing of the Penn affidavit or the
recording with the TCCA amounted to a denial of due process. As a court, we
must adhere to well-settled principles of appellate review. We must consider
the actual holding in the TCCA’s order, issued by a majority of that court. That
order reflects that the TCCA concluded that the court did not have jurisdiction
to consider Panetti’s motion, which means that it did not, as a matter of settled
law, consider either the Penn affidavit or the recorded conversation. This court



defendant] to expect that telephone calls she placed to an inmate in a high-security federal
penitentiary would be private.”).
       32 Panetti v. State, No. AP-77,049, 2014 WL 6764475, at *1 (Tex. Crim. App. Nov. 25,

2014).
       33 Id.
       34 Ante at 8.
       35 Ante at 15.
       36 Ante at 15-16.

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                                       No. 14-70037
cannot, therefore, conclude that filing the affidavit or recording with the TCCA
resulted in a due process violation.
       With regard to the federal district court’s denial of funds for experts, the
majority opinion says that the district court “stated that it had considered ‘the
wealth of evidence on the issue of Panetti’s competency,’” and “that basis for
conclusion surely included all of the State’s last-minute submissions.” 37 The
opinion then asserts that the federal district court must have affirmatively
“weigh[ed] Panetti’s” new evidence against “the state’s evidence of Dr. Penn’s
affidavit and the recording of Panetti and his family.” 38 However, when a
district court sets forth the specific factual bases for its factual findings, as in
the present case, an appellate court cannot assume that the district court relied
on other facts in the record to reverse the district court, if the appellate court
is properly applying the abuse of discretion standard. The district court’s order
reflects that its finding were reached after considering Panetti’s new evidence
(not the State’s) as weighed against the evidence “previously amassed in this
case,” 39 which unmistakably refers to the prior competency hearings.
       The State filed the Penn affidavit with the federal district court on
November 26, 2014, as an attachment to its response to Panetti’s motion for a
stay of execution, appointment of counsel, and request for funding for experts.
The district court’s decision, denying Panetti’s requests, issued the same day,
November 26, 2014. The only possible mention of the State’s new evidence is
a reference in the opening paragraph of the federal district court’s order to
“Respondent’s Response in Opposition [#181]” and the statement in that same



       37  Ante at 16.
       38  Ante at 17.
        39 Panetti v. Stephens, No. 1:04-CV-42-SS, slip op. at 9 (W.D. Tex. Nov. 26, 2014) (“The

Court finds, considering the question in light of the wealth of evidence on the issue of
Panetti’s competency previously amassed in this case, Panetti’s evidence of incompetence is
insufficient to make the threshold showing necessary to trigger Ford.” (emphasis added)).
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                                     No. 14-70037
paragraph that the court had “reviewed the documents, the governing law, and
the file as a whole.” 40 However, the district court’s analysis of the evidence and
its reasoning reflect that it did not rely on the State’s new evidence at all in
concluding that Panetti had failed to present “a substantial threshold showing
of insanity” 41 and was competent to be executed. The district court’s order
details the evidentiary basis for its conclusions and provides citations, none of
which are to the State’s new evidence. The federal district court considered
only Panetti’s evidence 42 and whether Panetti’s behavior, as documented in
Panetti’s evidence, was “measurably different from the behavior documented
in the records scrupulously examined by this Court in its March 26, 2008
Order.” 43   The district court then detailed evidence from Panetti’s prior
competency hearings. 44
      The majority opinion declares that “it is one thing to respond to a
petitioner’s claims on the existing record; it is quite another, with assistance
of counsel and paid experts, to generate new evidence while preventing the
petitioner from doing the same.” 45 The majority opinion concludes that Panetti
is entitled to proceed to prepare yet another federal habeas petition “with fully
armed counsel,” meaning counsel armed with experts. 46
      If the district court judge had done what the majority opinion says he
did, I would join in reversing the district court’s judgment. But he did not. He
prudently considered only the new evidence offered by Panetti, measured it
against the mountain of evidence adduced in prior proceedings, and correctly




      40 Id. at 1 (brackets in original).
      41 See Ford v. Wainwright, 477 U.S. 399, 426 (1986) (POWELL, J., concurring).
      42 Panetti, No. 1:04-CV-42-SS, slip op. at 8-9.
      43 Id. at 8-12.
      44 Id. at 10-12.
      45 Ante at 14.
      46 Ante at 15.

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                                      No. 14-70037
concluded that Panetti’s new evidence (not the State’s new evidence) was not
“measurably” different from the evidence that the district court had previously
considered.
                                             D
       The majority opinion recounts evidence, emphasized in an amicus brief,
to argue that Panetti has made an adequate showing that he is incompetent to
be executed. 47 All of this evidence was presented to the federal district court
in Panetti’s submissions to that court in greater detail than set forth in the
majority opinion, and none of it is different in kind or nature from evidence
that the district court heard in Panetti’s prior competency hearings.
       The citations to the arguments counsel made in briefing to the federal
district court are footnoted following each of the factual matters set forth in
the majority opinion 48 as follows:
            • “escorting officers have noticed that Panetti often acts in an
              irrational and delusional manner” 49


       47Ante at 18.
       48Ante at 18.
      49 See Motion for Stay of Execution at 13-14, Panetti v. Stephens, 1:04-CV-42-SS (W.D.

Tex. Nov. 25, 2014), ECF No. 176:

             Less then [sic] a year ago, during mental health rounds, one of the
       treatment staff reported that:
              While passing [Mr. Panetti’s] cell, offender began making
              irrational comments to the escorting officer about the food trays.
              MHCM [Mental Health Care Management] asked offender how
              he was doing. He talked about his belief in God maintaining him
              but said he was thinking of contacting MH [Mental Health].
              MHCM inquired as to why. He said he thinks he may need some
              assistance. After a few minutes of interviewing the offender, it
              appears that the offender is reporting that he has always heard
              voices, but for many years has dealt with them though reading
              the bible [sic] and prayer. He said a long time ago (before EMR
              [Electronic Medical Record]) he took antipsychotics. He said he
              remembers most of them caused him severe SEs [side effects] so
              he decided not to take them, but he asked if he could be referred
              to a clinician because he thinks he may need medicine again. He
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                                         No. 14-70037


            • “despite having refused mental health treatment for nearly two
              decades, Panetti has, in the last few years, begun requesting
              mental health assistance and medication” 50

            • “Panetti has expressed the belief that Texas has implanted a
              listening device in his tooth that sends command messages to his
              brain” 51

            • “Panetti reads the Gospel to help drown out the voices he hears” 52

            • “Panetti has expressed the belief that CNN anchor Wolf Blitzer
              displayed Panetti’s stolen TDCJ ID card during a report” 53

            • “Panetti has claimed to be the father of actress and singer Selena
              Gomez” 54




               is finding it more difficult to function with only prayer and bible
               [sic] reading to sustain him, particularly over the past two years.
               MHCM told the offender he would review the record and make
               referrals as indicated.


       50  See id.; see also id. at 15 (“TDCJ records indicate that in the past two years alone,
Mr. Panetti made at least three additional requests for mental health assistance. On August
17, 2012, he submitted a written request for an ‘overall check-up,’ including a mental health
assessment. Ex. C at 8. On November 12, 2013, Mr. Panetti filed a Health Services request,
asking to see a ‘psych.’ Id. at 9. Finally, on November 21, 2013, Mr. Panetti wrote to complain
about not getting enough protein and salt in his diet, admitting that ‘my mental health seems
to be affected.’ Id. at 10.”).
        51 See id. at 26 (reflecting an account from one of Panetti’s lawyers that “Mr. Panetti

also pointed to a gold tooth on the right side of his mouth. He suggested, via a combination
of mouthed words and pointing and exaggerated nodding, that he thought TDCJ had
implanted a listening device in the gold tooth.”); id. at 28 (“Later, he told [one of his attorneys]
that he thought he was hearing voices from the surveillance device implanted in his tooth.
He believes that TDCJ correctional officers receive details about his actions and thoughts
transmitted through the ‘Bluetooth’ technology installed in his mouth.”).
        52 See id. at 25 (“Mr. Panetti said that he hears voices. When he hears them, he reads

the Gospel to keep the voices from overwhelming him.”).
        53 See id. at 28 (stating that Panetti told counsel that “CNN aired a report in which

Wolf Blitzer displayed Mr. Panetti’s TDCJ ID card, which had been stolen from him.”).
        54 See id. (“Mr. Panetti said that . . . [h]e is the father of the actress Selena Gomez.”).

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                                        No. 14-70037
      The federal district court found that “[w]hile much of the behavior
recounted in the new TDCJ records provided by Panetti is certainly strange, it
is not measurably different from the behavior documented in the records
scrupulously examined by this Court in its March 26, 2008 Order.” 55 The
district court’s order under consideration in the present appeal then sets forth
some of the evidence from the prior competency hearings that is no different in
kind or character from Panetti’s new evidence:
      For example, as explained in the [March 26, 2008] Order, Dr. Mary
      Alice Conroy testified during this Court’s 2004 evidentiary hearing
      that Panetti “believed he has been under attack by ‘supernatural
      demonic anti-forces’ since the mid-1980s, when demons were
      possessing his house and personal belongings.” Mar. 26, 2008
      Order [#145] at 26. Panetti told Conroy he believed the State
      “want[ed] to execute him to stop him from preaching[.]” Id.
      Panetti discussed the alleged influence of his alternate
      personality, “Sarge,” over him when he committed the 1992
      murders with at least two of the 2004 experts. Id. During the 2008
      evidentiary hearing, Panetti told Dr. David Self he was on Death
      Row “[t]o preach the Gospel of Jesus Christ” and he was sentenced
      to die because people “have strong delusions.” Id. at 32-33. Panetti
      discussed his purported multiple personalities with Self, who
      summarized the discussion:
                Will James was ‘king of the cowboys’ and had written
                24 books, and was a boyhood hero and fantasy object
                of [Panetti’s]. He described Sergeant Iron Horse
                [“Sarge”] as having begun as a childhood fantasy of
                ‘the eternal mercenary’ but later in life having been a
                manifestation of mental illness, and that the mental
                illness    was    a    manifestation      of   spiritual
                wickedness. . . .   He claims that command type
                hallucinations from Sergeant Iron Horse were
                partially responsible for his having murdered his in-
                laws. He also reported that he heard ‘demons cackling’




      55   Panetti v. Stephens, No. 1:04-CV-42-SS, slip op. at 9-10 (W.D. Tex. Nov. 26, 2014).
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                                           No. 14-70037
                  after the murders, and that those same demons
                  cackled at Jesus’ crucifixion. 56
         Facts set forth in the district court’s decision at the conclusion of the last
competency hearing, in 2008, 57 regarding Panetti’s mental state and behavior
are not materially different from the more recent facts that the majority
opinion recounts. For example:
                • “[Panetti’s] wife described episodes of ‘paranoid thinking
                  including a belief the devil was in the furniture and burying some
                  [furniture] outside; nailing curtains shut so neighbors wouldn't
                  film them etc.’” 58

                • “Panetti stated he has heard voices and music since he was an
                  adolescent (prior to any alcohol or drug abuse), but the voices do
                  not tell him to harm himself or others. He stated he drank alcohol
                  ‘to quiet the voices.’” 59

                • “Panetti also stated he had post traumatic stress disorder (PTSD)
                  from his time as a Navy SEAL with a top secret security clearance
                  in Thailand and Cambodia. He recounted detailed stories about
                  this experience, but the evaluator noted ‘his military records show
                  he was never overseas.’” 60

                • “[I]n December of 1995, Panetti was referred to the Jester IV
                  Crisis Management unit of the Texas Department of Corrections
                  because he ‘appear[ed] to be delusional and verbalized auditory
                  and visual hallucinations.’” 61

                • “In June of 1996, Panetti began refusing to groom because he had
                  taken a ‘Nazarat vow’ as ‘an alternative to his not getting the
                  medical and psychiatric treatment he thinks he needs.’” 62


         56   Id. at 10 (alterations in original).
         57   Panetti v. Quarterman, No. A-04-CA-042-SS, 2008 WL 2338498 (W.D. Tex. Mar. 26,
2008).
         58 Id. at *5 (alterations in original).
         59 Id. at *6 (citation omitted).
         60 Id. at *11 (citation omitted).
         61 Id. at *13 (alterations in original).
         62 Id.

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                                    No. 14-70037
           • “In October of 1996, Panetti reported hearing ‘Bob Dylan lyrics’ in
             his head and feeling ‘spiritually persecuted’ because of his
             beard.” 63

           • “While his state application was pending, on September 29, 1997,
             Panetti was again admitted to the Jester IV Acute Care Unit,
             complaining of auditory and visual hallucinations. He had told
             TDCJ medical staff he ‘needed to get back on my medicine that I
             had in the freeworld.’” 64

           • “[H]e told the State’s experts the same thing he told the defense
             experts: he believed the State wanted to execute him for preaching
             the gospel.” 65

           • “Panetti did claim to have seen angels who appeared in the form
             of TDCJ corrections officers on several occasions since [he claims
             to have been healed of his mental illness].” 66

           • “Dr. Self noted that Panetti’s medical history contains references
             to delusions and hallucinations as far back as the late 1970’s,
             which predate any motive to malinger.” 67

           • “[In 2007, Panetti] made reference to conspiracies, such as big
             corporations and the Bush family being in league with the devil.
             He described two instances in which angels visited him in the form
             of correctional officers.” 68

      In short, there was nothing new about the evidence that Panetti
presented to the federal district court regarding his most recent, and third,
Ford claim. Experts had opined in 2008 that Panetti was not competent to be
executed based on the foregoing, and many other, facts. The federal district
court’s decision at the conclusion of the last competency-to-be-executed hearing



      63 Id.
      64 Id. (citation omitted).
      65 Id. at *17.
      66 Id. at *20.
      67 Id. at *21.
      68 Id. at *22.

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                                      No. 14-70037
reflected that the “2008 hearing was exhaustive.” 69 The court “heard expert
opinions from psychiatrists, pyschologists [sic], and neuropsychologists for
both Panetti and the State.” 70 It “heard testimony from fellow inmates and the
guards and chaplain who have had contact with Panetti on Death Row.” 71 The
federal district court “reviewed volumes of medical, social security, and prison
records regarding Scott Panetti’s longstanding mental illness and delusions”
and heard “eleven hours of conversations between Panetti himself and his
parents and other visitors, recorded by the State during his visitation hours in
December of 2007 and January of 2008.” 72                 The district court was not
persuaded by the opinions or analyses of Panetti’s experts in the 2008 hearing
and found Panetti competent to be executed. 73
       In the present case, the evidence is overwhelming that “the sought after
assistance would only supplement prior evidence” 74 and therefore that the
district court did not abuse its discretion in denying Panetti’s motion under 18
U.S.C. § 3599(f) for funds to retains more experts. Nor can it plausibly be said
that due process requires appointment of experts.
                                            IV
       “Prior findings of competency do not foreclose a prisoner from proving
he is incompetent to be executed because of his present mental condition.” 75 It
should also be evident that “[e]ach competency proceeding may well be a
discrete proceeding that is largely if not entirely independent of the outcome




       69 Id. at *2.
       70 Id.
       71 Id.
       72 Id.
       73 Id. at *37.
       74 Brown v. Stephens, 762 F.3d 454, 459 (5th Cir. 2014) (quoting Smith v. Dretke, 422

F.3d 269, 288 (5th Cir. 2005)).
       75 Panetti v. Quarterman, 551 U.S. 930, 934 (2007).

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                                     No. 14-70037
of prior incompetency proceedings.” 76 But when the evidence in support of a
successive Ford claim is no “different in kind from that previously considered
and ultimately rejected by this and other Courts,” as found by the district court
in the present case, 77 then a defendant should not be entitled to a successive
Ford hearing.
      The Supreme Court has not articulated the threshold showing that a
capital defendant, previously found to be competent to be executed, must make
when he subsequently challenges his competency anew. Concern was raised,
however, in Ford v. Wainwright 78 itself regarding successive claims by
condemned inmates that they are not competent to be executed.
       In Ford, JUSTICE MARSHALL opined that “[i]t may be that some high
threshold showing on behalf of the prisoner will be found a necessary means to
control the number of nonmeritorious or repetitive claims of insanity.” 79
JUSTICE O’CONNOR warned of a potentially endless cycle of competency
litigation in her dissent:
       [T]he potential for false claims and deliberate delay in this context
       is obviously enormous. This potential is exacerbated by a unique
       feature of the prisoner’s protected interest in suspending the
       execution of a death sentence during incompetency. By definition,
       this interest can never be conclusively and finally determined:
       Regardless of the number of prior adjudications of the issue, until
       the very moment of execution the prisoner can claim that he has
       become insane sometime after the previous determination to the
       contrary. 80
JUSTICE REHNQUIST noted in his dissent that “[a] claim of insanity may be
made at any time before sentence and, once rejected, may be raised again; a


      76  Green v. Thaler, 699 F.3d 404, 421-22 (5th Cir. 2012) (OWEN, J., concurring).
      77  Panetti v. Stephens, No. 1:04-CV-42-SS, slip op. at 13 (W.D. Tex. Nov. 26, 2014).
      78 477 U.S. 399 (1986).
      79 Id. at 417.
      80 Id. at 429 (O’CONNOR, J., concurring in part and dissenting in part) (citation

omitted).
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                                       No. 14-70037
prisoner found sane two days before execution might claim to have lost his
sanity the next day, thus necessitating another judicial determination of his
sanity.” 81
       The controlling opinion in Ford was that of JUSTICE POWELL,82 and in
Panetti, the Court confirmed that JUSTICE POWELL’s opinion “states the
relevant standard as follows. Once a prisoner seeking a 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.” 83 The Court explained that “[t]his protection means a prisoner must
be accorded an ‘opportunity to be heard,’ though ‘a constitutionally acceptable
procedure may be far less formal than a trial.’” 84
       The due process framework set forth in Ford and Panetti was applied to
a defendant’s first claim that he was incompetent to be executed. The Court
did not indicate whether the same construct would apply after a defendant had
been found competent to be executed in proceedings that had accorded him full
due process. But it would seem illogical for the Court to conclude that the same
evidence presented in the first proceeding could be used to establish “a
substantial threshold showing of insanity” 85 when a second claim was
subsequently asserted. To do so would accord no finality to prior adjudications.
If it is correct that when a defendant relies only on the same evidence
previously presented in a competency hearing at which he was found
competent, he has failed to make a “substantial threshold showing of insanity”
in a subsequent claim of incompetence, it follows that if new evidence



       81Id. at 435 (REHNQUIST, J., dissenting).
       82See Panetti v. Quarterman, 551 U.S. 930, 949 (2007) (citing Marks v. United States,
430 U.S. 188, 193 (1977)).
      83 Id. at 949 (quoting Ford, 477 U.S. at 426, 424 (POWELL, J., concurring)).
      84 Id. (citation omitted) (quoting Ford, 477 U.S. at 424, 427 (POWELL, J., concurring)).
      85 Id. (quoting Ford, 477 U.S. at 426 (POWELL, J., concurring)).

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                                        No. 14-70037
presented to support a second claim is not “different in kind from that
previously considered,” 86 then due process does not require all of the
procedures that were employed when the competency claim was first raised.
Due process requires an opportunity to be heard so that a court may assess
whether there is a reasonable probability that the defendant’s mental
condition has changed to the point that he is incompetent to be executed.
      Panetti had an opportunity to be heard, the federal district court
considered the merits of his competency claim, and Panetti failed to make the
necessary threshold showing. A further stay of execution and the appointment
of new experts are not warranted and are not required in order to provide due
process to Panetti.
      What our court said in upholding the district court’s conclusion that
Panetti was competent to be executed, after considering all of the evidence
presented in the prior competency hearing, bears repeating:
            The district court then turned to apply its “rational
      understanding” test to the facts at hand. After reviewing the
      expert testimony on Panetti’s competency in painstaking detail,
      the court agreed with the defense’s experts that “Panetti is
      seriously mentally ill” and concluded that “it is not seriously
      disputable that Panetti suffers from paranoid delusions of some
      type.” However, the court implicitly agreed with the State that
      Panetti was exaggerating some of his symptoms to avoid execution,
      observing that Panetti demonstrated a “fairly sophisticated
      understanding of his case” and that his refusal to cooperate with
      the State’s experts stood in marked contrast to his treatment of the
      defense’s experts. Ultimately, the court determined that Panetti
      “has both a factual and rational understanding of his crime, his
      impending death, and the causal retributive connection between
      the two,” as demonstrated “most clearly” by his statements to Dr.
      Waldman “that the death penalty is wrong in his case because he
      was schizophrenic when he killed his in-laws.” According to the
      court, Panetti’s remarks imply that he “understands he is being


      86   Panetti v. Stephens, No. 1:04-CV-42-SS, slip op. at 13 (W.D. Tex. Nov. 26, 2014).
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                                       No. 14-70037
      executed to punish him for killing his in-laws, but feels the state
      is not justified in taking this position because of his mental
      illness.” As “Ford . . . does not require that a prisoner agree with
      his punishment—simply that he rationally understand it,” the
      court concluded that Panetti was competent to be executed. 87
      Panetti has not presented any evidence that his current competency to
be executed is any different from what is described above.
                                   *        *         *
      I agree that Panetti is entitled to representation by paid appointed
counsel, but I would otherwise affirm the district court’s order, in which it
determined that Panetti is not entitled to funds for experts and that he is
competent to be executed. I would therefore lift the stay of execution.




      87  Panetti v. Stephens, 727 F.3d 398, 406 (5th Cir. 2013) (alteration in original)
(footnotes omitted); see also Panetti v. Quarterman, No. A-04-CA-042-SS, 2008 WL 2338498
(W.D. Tex. Mar. 26, 2008).
                                           41
