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

                                                 FILED
                                                                           August 12, 2009

                                       No. 07-70011                    Charles R. Fulbruge III
                                                                               Clerk

DANIELLE SIMPSON

                                                   Petitioner - Appellant
v.

NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION

                                                   Respondent - Appellee




                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 1:04-CV-485


Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Danielle Simpson was convicted by a Texas jury and sentenced to death
for the capital murder of Geraldine Davidson in 2000.                  His conviction and
sentence were affirmed on direct appeal, and the Supreme Court denied
certiorari.   Simpson v. State, 119 S.W.3d 262 (Tex. Crim. App. 2003), cert.
denied, 542 U.S. 905 (2004).          After exhausting his state habeas remedies,
Simpson sought federal habeas relief. The district court granted a certificate of


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                  No. 07-70011

appealability for Simpson’s claim that the district court erred by denying him an
evidentiary hearing on his claim that he is mentally retarded and thus ineligible
for execution under Atkins v. Virginia, 536 U.S. 304 (2002). Simpson requested
from this court an expansion of the COA for three additional claims.
      On August 29, 2008, we remanded the case to the district court for an
evidentiary hearing on Simpson’s Atkins claim, and held in abeyance our
consideration of Simpson’s request for an expansion of the COA. On remand, the
district court conducted an evidentiary hearing and found that Simpson is not
mentally retarded. The case was re-submitted to this court on February 3, 2009.
      On March 9, 2009, Simpson filed a motion to remand for a hearing, in
accordance with Mata v. Johnson, 210 F.3d 324 (5th Cir. 2000), on his request
to waive habeas review and proceed with execution. In the motion, Simpson’s
court-appointed counsel stated that while Simpson’s intellectual capabilities are
limited, he understands that if he waives his appeal he will soon be executed.
Counsel expressed a belief that Simpson is competent, although mentally
retarded. Counsel stated that, given that Simpson has spent eight years confined
in a small cell, his request to be executed is not unreasonable. In a handwritten
statement attached to the motion, Simpson explained his reasons for wanting to
drop his appeal:
             I’m tired of being in a institution that’s unjust,
             degrading, and corrupted – whereas on the other hand,
             I’m tired of struggling to survive in a system that’s
             highly injustices. “I’m ready to die”!! If I can’t be free
             – “Kill Me”.!!

      On April 10, 2009, we granted Simpson’s motion and remanded the case
to the district court for the limited purpose of conducting an evidentiary hearing
in accordance with Mata, to determine whether Simpson is competent to waive
federal habeas review and whether his decision to do so is knowing and
voluntary.

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      On remand, the district court ordered an evaluation of Simpson by an
expert mutually agreed on by counsel, and conducted an evidentiary hearing.
After considering Simpson’s testimony at the hearing, as well as the report and
testimony of the expert, the district court found:
            [T]here is no evidence that [Simpson] is suffering from
            a mental disease, disorder, or defect. [Simpson] has the
            capacity to appreciate, and in fact does appreciate and
            understand, his current legal position and the options
            available to him. He is able to make a rational choice
            among these options. The court finds that Danielle
            Simpson is mentally competent to waive further habeas
            review and that his desire to forego further litigation is
            knowing and voluntary.
      On July 6, Simpson’s counsel filed with this court a notice that Simpson
intended to continue with his appeal. Counsel moved to withdraw, and for the
appointment of new counsel to represent Simpson. We requested that the State
respond to the motion to withdraw.
      On July 9, prior to receipt of the State’s response to the motion to
withdraw, Simpson’s counsel contacted the Clerk’s Office and advised that
counsel had received a letter from Simpson saying that he was confused when
he said that he wanted to continue his appeal and that, in fact, he wanted to
drop all challenges to his execution.
      On July 22, Simpson filed a supplemental request to waive habeas review
and proceed with execution.     He requested leave to withdraw his notice of
intention to continue appeal, and his counsel requested leave to withdraw their
motion to withdraw as counsel. Simpson’s counsel states that he believes that
Simpson’s desire to waive his appeal is sincere and carefully considered, and
that his earlier notice of intention to continue with the appeal was the result of
misunderstandings and miscommunication. Attached to the July 22 request is




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a statement by Simpson, in which he states, in his own handwriting, his desire
to proceed with execution and forego habeas review:
            I’m tired of being imprisoned in a system that’s
            devaluated, and struggling to survive under the cruel
            and unusual punishments of an unjust institution
            better know [sic] as Texas death row here on the
            Polunsky unit in Livingston Texas. I want to drop my
            appeals because, I don’t have “no” family support, care,
            nor communications coming from my mother or sisters,
            etc. . . . and providing that all my support comes from
            overseas friends, I greatly appreciate the unconditional
            love and support they’ve provided to me over the years.
            Meanwhile, being locked up in a [sic] isolated solitary
            cell of confinement 23/ and 24 hours per day isn’t justice
            nor is it considered living – its cruel and unjust,
            therefore I’m really looking forward to my execution
            because its just “me against the world”. . . .
      The district court, having conducted a hearing and considered the opinion
of an expert, has found that Simpson is competent to waive further habeas
review and that his decision to do so is knowing and voluntary. Based on those
findings, as well as counsel’s representations and Simpson’s own statement, we
conclude that Simpson, being competent to do so, has knowingly and voluntarily
waived further habeas review. Accordingly, Simpson’s motion to dismiss his
appeal is
                                                                         GRANTED.




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