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

                                                 FILED
                                                                            April 10, 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




                   Appeals 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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”.!!

The State does not oppose Simpson’s motion.
       The evidence before the district court is sufficient to raise a bona fide
issue as to Simpson’s competence to waive federal habeas review. See Mata, 210
F.3d at 331. Accordingly, we REMAND the case to the district court for the
limited purpose of conducting an evidentiary hearing in accordance with Mata,

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                                  No. 07-70011

to determine whether Simpson is competent to waive federal habeas review and
whether his decision to do so is knowing and voluntary. Simpson’s request for
an expanded COA to appeal the denial of habeas relief remains on the docket of
this court and will be held in abeyance pending a ruling by the district court
following the Mata hearing. If the district court finds that Simpson is competent
to waive his right to habeas review, and that his decision to do so is knowing and
voluntary, we will then entertain a motion from him to dismiss his COA request.
      This case is REMANDED to the district court for this limited purpose as
stated above.




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