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

                                                                   FILED
                                                                October 9, 2012

                                 No. 12-70031                   Lyle W. Cayce
                                                                     Clerk

JONATHAN MARCUS GREEN,

                                           Petitioner - Appellee
v.

RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

                                           Respondent - Appellant



              Appeal from the United States District Court for the
                      Southern District of Texas, Houston


Before KING, CLEMENT, and OWEN, Circuit Judges.
KING, Circuit Judge:
        Petitioner Jonathan Marcus Green was convicted of capital murder and
sentenced to death in Texas state court on July 17, 2002. Petitioner challenged
in state court his competency to be executed. A competency hearing was held on
June 28, 2010. Petitioner testified and presented expert testimony as well as
voluminous medical records. Respondent stipulated to the accuracy of these
records and that any fact witnesses called in support would testify consistent
with those records. The state court issued a ruling from the bench finding
Petitioner competent. The state court specifically found that Petitioner knew he
was “to be executed by the State,” knew he was “convicted of killing the victim,”
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knew “the execution date,” and demonstrated “a rational understanding of [his]
imminent date.” The Texas Court of Criminal Appeals affirmed on June 27,
2012.       An execution date was then set on August 14, 2012, scheduling
Petitioner’s execution for October 10, 2012. On September 28, 2012, Green filed
a motion in the district court pursuant to 28 U.S.C. §§ 2241 and 2254, seeking
a stay of execution. On October 8, 2012, the district court, in Green v. Thaler,
No. H-07-827, granted Petitioner’s motion to stay execution. The district court
ruled that the state proceeding violated due process by failing to allow Petitioner
to call forth fact witnesses who would testify as to his medical records, and by
failing to apply the proper constitutional standards, all in contravention of
Panetti v. Quarterman. We find no basis in Panetti or elsewhere for the district
court’s holding that a competency hearing at which Petitioner testified and both
Petitioner and Respondent introduced expert testimony, including medical
records stipulated as accurate, violates the due process clause. We also find no
basis for concluding that the state court’s decision that Petitioner was competent
to be executed was contrary to, or involved an unreasonable application of,
federal law as determined by the Supreme Court.                    Finally, we find that
Petitioner has failed to present clear and convincing evidence to rebut the
presumption in favor of upholding the state court’s competency finding.
Accordingly, we vacate the district court’s stay of execution and remand with
instructions to dismiss the petition.
              I. FACTUAL AND PROCEDURAL BACKGROUND
        Jonathan Marcus Green was convicted of the capital murder of 12-year old
Christina Neal and sentenced to death in the 221st District Court of
Montgomery County, Texas on July 17, 2002.1 Green’s conviction was affirmed


        1
         A full recitation of the facts underlying Green’s offense is provided in the district
court’s decision addressing Green’s original federal habeas petition. See Green v. Quarterman,
No. H-07-827, 2008 WL 442356, at *1-*3 (S.D. Tex. Feb. 15, 2008).

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by the Texas Court of Criminal Appeals (“CCA”). Green v. State, No. AP-74398,
2004 WL 3094650 (Tex. Crim. App. Dec. 1, 2004) (not designated for publication),
cert. denied sub nom. Green v. Texas, 547 U.S. 1005 (2006). Following the denial
of certiorari, Green filed a state application for habeas relief. The CCA denied
post-conviction relief.
      Green next filed a federal habeas petition in the United States District
Court for the Southern District of Texas. Green v. Quarterman, No. H-07-827,
2008 WL 442356 (S.D. Tex. Feb. 15, 2008). Among the numerous claims Green
raised in his petition was a claim that he was incompetent to be executed and
mentally retarded. Id. at *5. The district court dismissed his competency claim
as unripe and denied relief on all other claims. Id. at *8, *15. Green sought a
certificate of appealability (“COA”) from this court on June 16, 2008. That
request was denied on February 27, 2009. Green v. Quarterman, 312 F. App’x
635 (5th Cir. 2009) (unpublished). We rejected Green’s argument that his due
process rights were violated because the jury charge did not require that jurors
unanimously determine under which of two underlying felonies he committed
capital murder. Id. at 637-40. We similarly denied a certificate of appealability
on Green’s ineffective assistance of counsel claim. Id. at 640-41. Finally, as did
the district court, we dismissed, without prejudice, Green’s claim of mental
incompetence as unripe because no execution date had been set. Id. at 641. The
United States Supreme Court denied certiorari on October 5, 2009. Green v.
Thaler, 130 S. Ct. 373 (2009).
      On December 16, 2009, the state court signed the death warrant and set
the execution date for June 30, 2010. On June 1, 2010—five and one half
months later—represented by the same counsel as represented him in his earlier
habeas petition (and as continues to represent him), Green filed a motion
seeking appointment of counsel, funding for retention of a mental health expect,
and an evidentiary hearing. The state court granted Green’s motion in part.

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The court appointed counsel and approved funding to retain Dr. Diane Mosnik,
an assistant professor of psychiatry and neurology. But the court did not, at that
time, schedule an evidentiary hearing. Green’s expert, Dr. Mosnik, and the
State’s expert, Dr. Mark Moeller, submitted their reports on June 21, 2010.
Green then filed a second state petition for writ of habeas corpus on June 23,
2010 pursuant to Article 11.071 of the Texas Code of Criminal Procedure and
sought a competency determination under Article 46.05. In his petition, Green
again argued that he was incompetent to be executed and asked for a
competency hearing. That same day, the state court scheduled a competency
hearing for June 28, 2010.
       Following the June 28, 2010 competency hearing, the state court found
Green sufficiently competent to be executed. On the State’s motion, the CCA
reviewed the state court’s decision and stayed Green’s execution on June 30,
2010. The appellate court determined that it required clarification from the
state court as to what standard the court used during the competency hearing,
because some of the standards the judge referenced to assess Green’s
competency were inapplicable to that proceeding. Ex parte Green, No. AP-
76,374, 2010 Tex. Crim. App. Unpub. LEXIS 407 (Tex. Crim. App. June 30, 2010)
(not designated for publication).2 The CCA received the state court’s clarification
that it had relied on the Article 46.05 standard on July 14, 2010. (Pet’r’s Ex. G.)
       On July 2, 2010, after learning that the state court judge had solicited, ex
parte, a proposed order from the State following the competency hearing, Green
moved for the judge’s recusal under Rule 18a of the Texas Rules of Civil
Procedure. The regional presiding judge held a hearing on that motion on July



       2
        On June 30, 2010, the CCA also instructed Green and the State to file briefs
addressing whether claims of incompetency to be executed can be brought in a habeas petition
under Article 11.071 or must be brought under Article 46.05 of the Texas Code of Criminal
Procedure.

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12, 2010, and denied it. Green filed a notice of appeal as to this denial on July
19, 2010.
         On June 27, 2012, the CCA issued a decision consolidating and addressing
the three issues Green raised in the state court proceeding below: 1) whether
competency claims in death penalty cases are cognizable on a petition for a writ
of habeas corpus; 2) whether the state court erred in finding Green competent;
and 3) whether Green’s motion for recusal of the state court judge for allegedly
inappropriate ex parte communications was properly denied. Green v. State,
Nos. AP-76,374, AP-76,376, AP-76,381, 2012 WL 2400651 (Tex. Crim. App. June
27, 2012). As to the first issue, the appellate court held that Article 46.05
satisfied due process and that a habeas petition under Article 11.071 could not
substitute for a direct appeal under Article 46.05. Id. at *3-*4. The appellate
court further held that Article 46.05 was constitutional under Panetti. Id. at *4.
As to the second issue, the appellate court determined that the state court had
applied the correct legal standard in finding Green competent. Id. at *7. The
appellate court then reviewed the state court’s decision for abuse of discretion,
and denied Green’s claim of error. Id. The appellate court also denied Green
relief on the third issue, holding that Green’s recusal motion was properly denied
because: 1) the state court judge’s recusal could not influence Green’s Article
46.05 appeal, 2) the appellate court lacked jurisdiction, and 3) the regional
presiding judge’s denial of Green’s motion was not an abuse of discretion. Id. at
*7-*9.
         On September 28, 2012, Green filed a motion for stay of execution in
district court, arguing that the state competency proceeding did not afford him
adequate due process, the standards applied by the state court to assess his
competency were clearly erroneous, and his present mental state requires an
“opportunity and expert resources necessary to properly present and explain the
significance of his condition in a federal writ of habeas corpus.” The district

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court granted Green’s motion for a stay on October 8, 2012, finding that the state
court 1) prevented Green from presenting testimony principally by the Texas
Department of Criminal Justice (“TDCJ”) mental health professionals who
authored the records submitted at the hearing and stipulated to by the State; 2)
signed an order drafted by the State to which Green had no opportunity to
object; and 3) applied at least one incorrect legal standard in assessing Green’s
competency. Green v. Thaler, No. H-07-827 (S.D. Tex. Oct. 8, 2012). The district
court held that this resulted in a denial of Green’s due process rights, led the
state court to make an unreasonable determination of the facts, and constituted
an unreasonable application of Supreme Court precedent. A status conference
was scheduled for October 18, 2012.
                                II. DISCUSSION
A.      Jurisdiction
        Before considering the district court’s decision to grant Green a stay we
must address the State’s argument that the district court lacked jurisdiction to
issue the stay because no habeas petition was pending before it. 28 U.S.C.
§ 2251 provides that a “judge of the United States before whom a habeas corpus
proceeding is pending, may, before final judgment or after final judgment of
discharge, or pending appeal, stay any proceeding against the person detained
in any State court.” The State asserts that no habeas petition was pending
before the district court. We disagree.
        On June 30, 2010, the district court granted Green’s Motion for Stay and
Abeyance of his pending federal habeas petition. The district court’s order
stayed Green’s petition pending resolution of Green’s incompetency claim by the
state courts. The district court’s October 8, 2012 stay was entered in that case.
        Further, Green’s current motion for a stay of execution specifically relied
on 28 U.S.C. §§ 2241 and 2254. (Pet’r’s Dist. Ct. Br. at 2.) Green also stated
that he sought habeas relief. (Pet’r’s Dist. Ct. Br. at 3.) He further submitted

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documents in compliance with the district court’s rules for habeas corpus filings.
(Pet’r’s Supp’l Mot.) The district court recognized that “[t]his is a petition for a
writ of habeas corpus.” Green, No. H-07-827, at 4. We are persuaded that he
has filed a habeas petition, and accordingly treat it as such.3
B.      Standard of Review
        “We review a district court’s grant of a stay of execution for abuse of
discretion.” Adams v. Thaler, 679 F.3d 312, 318 (5th Cir. 2012) (citing Delo v.
Strokes, 495 U.S. 320, 322 (1990)). “The party requesting a stay bears the
burden of showing that the circumstances justify an exercise of [judicial]
discretion.” Nken v. Holder, 556 U.S. 418, 433-34 (2009) (citations omitted). In
deciding whether to grant a stay of execution, the district court was required to
consider four factors: “(1) whether the stay applicant has made a strong showing
that he is likely to succeed on the merits; (2) whether the applicant will be
irreparably injured absent a stay; (3) whether issuance of the stay will
substantially injure the other parties interested in the proceeding; and (4) where
the public interest lies.” Id. at 434 (quoting Hilton v. Braunskill, 481 U.S. 770,
776 (1987)); see also Buxton v. Collins, 925 F.2d 816, 819 (5th Cir. 1991).
        A petition for a writ of habeas corpus is governed by §§ 2254(d) and 2254(e)
of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). See

       3
        The State points out that a mandate was issued in this action. To be sure, a mandate
did issue in this court’s decision addressing Green’s previous habeas petition. But that
decision dismissed Green’s competency claim without prejudice “because the State of Texas
ha[d] not set an execution date.” Green v. Quarterman, 312 F. App’x 635, 641 (5th Cir. Feb.
27, 2009) (unpublished). As the Court in Panetti recognized, § 2254 does not refer to all
“applications filed second or successively in time, even when the later filings address a state-
court judgment already challenged in a prior § 2254 application.” 551 U.S. at 944. That
decision specifically held that “Congress did not intend the provisions of AEDPA addressing
‘second or successive’ petitions to govern a filing in the unusual posture [of] . . . a § 2254
application raising a Ford-based incompetency claim filed as soon as that claim is ripe.” Id.
at 945. Because Green’s competency claim was formerly dismissed as not ripe, the setting of
his execution date presented the first time he could raise this issue in federal court.
Accordingly, the district court was correct not to treat Green’s motion as a successive filing.
but rather as a petition for a writ of habeas corpus.

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Holland v. Anderson, 583 F.3d 267, 271-72 (5th Cir. 2009). Section 2254(d)
provides that a federal court may not grant a writ of habeas corpus “with respect
to any claim that was adjudicated on the merits in State court proceedings
unless the” state court’s adjudication: “(1) resulted in a decision that was
contrary to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United States; or (2)
resulted in a decision that was based on an unreasonable determination of the
facts in light of the evidence presented in the State court proceeding.” 28 U.S.C.
§ 2254(d). A decision is “‘contrary to . . . clearly established Federal law, as
determined by the Supreme Court of the United States’ . . . if the state court
arrives at a conclusion opposite to that reached by [the Supreme] Court on a
question of law or if the state court decides a case differently than [the Supreme]
Court has on a set of materially indistinguishable facts.” Williams v. Taylor, 529
U.S. 362, 412-13 (2000) (quoting 28 U.S.C. § 2245(d)(1)) (first alteration in
original). A decision “involve[s] an unreasonable application of [ ] clearly
established Federal law, as determined by the Supreme Court of the United
States . . . if the state court identifies the correct governing legal principle from
[the Supreme] Court’s decisions but unreasonably applies that principle to the
facts of the prisoner’s case.” Id. at 412-13. “We review pure questions of law
under the ‘contrary to’ standard of sub-section (d)(1), mixed questions of law and
fact under the ‘unreasonable application’ standard of sub-section (d)(1), and pure
questions of fact under the ‘unreasonable determination of facts’ standard of
subsection (d)(2).” Simmons v. Epps, 654 F.3d 526, 534 (5th Cir. 2011) (quoting
Murphy v. Johnson, 205 F.3d 809, 813 (5th Cir. 2000)).
        Further, under § 2254(e)(1), a state court’s factual findings are “presumed
to be correct.” This presumption may only be rebutted by “clear and convincing
evidence.” 28 U.S.C. § 2254(e)(1).
C.      Due Process

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       The State challenges the district court’s holding that Green did not receive
a fair hearing because he was prevented from presenting fact witnesses from the
Jester IV unit, a part of the TDCJ’s mental health unit. The district court found
that although Green was able to present testimony from his own witness, Dr.
Mosnik, the state court’s failure to allow Green to present mental health
professionals to corroborate her diagnosis made this case analogous to the
Supreme Court’s decision in Panetti.4 The district court took particular note of
the fact that the State expert’s assessment was based on brief meetings with
Green, that the state court’s decision rested largely on credibility determinations
of the expert witnesses, and that the state court’s opinion failed to reference the
TDCJ medical records. Green, No. H-07-827, at 12-13.
       In its appeal, the State argues that Green received a full and fair hearing
as required by Panetti. As it did below, the State points out that Green received
counsel, expert services, and the opportunity to present evidence and argument
at a live hearing, including the admission of medical records. (Resp’t Appellant
Br. at 18, 22.) The State further asserts that the constricted schedule of Green’s
competency proceeding was itself the product of his own dilatory filings. (Resp’t
Appellant Br. at 19-20.)
       Having reviewed the district court’s opinion, we are persuaded that Green
was not denied due process and agree with the State’s argument. “Justice
Powell’s opinion [in Ford v. Wainwright, 477 U.S. 399 (1986)]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.” Panetti, 551
U.S. at 949. In Ford, Justice Powell made clear that once a petitioner has made
a substantial showing of incompetency, he is entitled to “an adequate means by


       4
        Specifically, the district court held: “In granting Green’s Motion for a stay, this Court
finds that the state court prevented Green from presenting relevant evidence he wished to
present.” Green, No. H-07-827, at 15.

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which to submit expert psychiatric evidence in response to the evidence that had
been solicited by the state court” and a “fair hearing” that satisfies our standards
of fundamental fairness. Id. at 948, 949. However, it is equally clear that, under
Ford, “[d]ue process does not require a full trial on the merits,” but only an
“‘opportunity to be heard.’” Rivera v. Quarterman, 505 F.3d 349, 358 (5th Cir.
2007) (quoting Ford, 477 U.S. at 424 (Powell, J., concurring in part and
concurring in the judgment)); see also Hines v. Thaler, 456 F. App’x 357, 363 (5th
Cir. 2011) (unpublished) (“[T]here is no indication that a live hearing,
[petitioner’s] key complaint with regard to the state court’s procedures, is
required in [a mental retardation] claim as a matter of either federal or state
law.”). We have further been cautioned that states “‘should have substantial
leeway to determine what process best balances the various interests at stake’
once [they have] met the ‘basic requirements’ required by due process.” Panetti,
551 U.S. at 949-50 (quoting Ford, 477 U.S. at 427 (Powell, J., concurring in part
and concurring in the judgment)).
       Here, we accept that Green made the requisite showing necessary to
trigger the protections under Ford.5 But we also conclude that Green received
the process he was due. Green had the opportunity to develop his claim in the
state proceeding. Green himself testified. The state court provided Green
counsel and an expert witness. Green’s expert, Dr. Mosnik, produced an expert


       5
         The parties dispute whether the state court ordered that Green be examined by two
mental health experts because the parties agreed or because the court determined that he had
made a substantial showing of incompetency. The appellate court did not clarify this matter.
See Green v. State, Nos. AP-76,374, AP-76,376, AP-76,381, 2012 WL 2400651, at *12 n.27 (Tex.
Crim. App. June 27, 2012) (Price, J., concurring) (“I presume the trial court found that Green
made a threshold showing to allow him to obtain expert examination under Article 46.05,
Section (f), since it in fact appointed two experts.”). A reading of the relevant statutory
provision leads to the conclusion that the state court did, in fact, determine that Green had
made a substantial threshold showing of incompetency. See Tex. Code Crim. Proc. art. 46.05
(“If the trial court determines that the defendant has made a substantial showing of
incompetency, the court shall order at least two mental health experts to examine the
defendant . . . .” (emphasis added)).

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report. She also testified. Green also submitted over 200 pages of medical
records relating to his treatment at the Jester IV unit, records which both
experts reviewed. The State stipulated to the accuracy of the records and that
witnesses called would have testified in accordance with those records.
      The district court’s holding that these procedures were deficient was based
principally on its conclusion that the state court’s decision to deny Green the
opportunity to call witnesses, including TDCJ medical personnel, and give live
testimony was closely analogous to the process found unconstitutional in Panetti.
      We disagree that Panetti’s facts instruct the analysis here. Unlike the
state proceeding in this case, the state court in Panetti “on repeated occasions
conveyed information to petitioner’s counsel that turned out not to be true;
provided at least one significant update to the State without providing the same
notice to petitioner; and failed in general to keep petitioner informed as to the
opportunity, if any, he would have to present his case.” 551 U.S. at 950. The
Panetti state court also failed to provide petitioner with a competency hearing,
which the Court viewed as potentially violating Texas law. Id. Finally, and
most importantly, in Panetti the court based its decision solely on examinations
performed by “psychiatrists it had appointed” and “failed to provide petitioner
with an adequate opportunity to submit expert evidence in response to the
report filed by the court-appointed experts.” Id. at 951 (emphasis added).
      It is thus not the case that Panetti’s facts are“materially indistinguishable”
from those in the state proceeding here. See Williams, 529 U.S. at 412-13. The
state court allowed Green to retain his own expert. It also considered “all of the
exhibits and made the decision based upon a review of all of the evidence
including testimony from [Green’s] expert.” (Pet’r’s Dist. Ct. Ex. G.) At the
competency hearing, the state court made clear that its decision was “based on
all the evidence.” Green, 2012 WL 2400651, at *2.



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       The conclusion that Panetti does not determine the outcome in this case
is reinforced by comparing the facts of this case to those in Ford. There, the
Court held the State’s competency proceedings constitutionally infirm for
making determinations of sanity based solely on examinations by state-
appointed psychiatrists.       Because the petitioner in Ford did not have the
opportunity to offer contrary medical evidence or explain inadequacies of the
state’s examination, he had not been afforded the adequate protections of
procedural due process. Ford, 477 U.S. at 416 (observing that the “most striking
defect” in the state procedure was that the “person who appoints the experts . . .
is the Governor, whose subordinates have been responsible for initiating every
stage of the prosecution of the condemned”). Green, by contrast, was able to hire
an expert who submitted a report and testified, and could respond directly to the
State’s evidence.
       Properly understood, Green’s argument is essentially that he should have
been allowed more—to call more witnesses, take more time preparing his expert,
and conduct a more thorough investigation into the State expert’s background
and credentials. But while Ford stated that “any procedure that precludes the
prisoner or his counsel from presenting material relevant to his sanity or bars
consideration of that material by the factfinder is necessarily inadequate,” 477
U.S. at 414, the Court in Panetti made clear that it was not “address[ing]
whether other procedures, such as the opportunity for discovery or for the cross-
examination of witnesses, would in some cases be required under the Due
Process Clause,” 551 U.S. at 952. Additionally, Green was able to submit the
relevant medical reports, but was simply not able, due to the shortness of time
before the impending execution, to subpoena witnesses to testify as to these
reports.6

       6
         We also observe that Green ignores that the state court’s expedited proceeding was
itself motivated by the dates of Green’s filings. Green did not submit a request for medical

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       The district court found that the state proceeding’s fairness was called into
doubt by the fact that the opinion heavily relied on credibility determinations of
the two experts and did not refer to the TDCJ medical records. But we only
review the state court’s actual decision, not the written opinion on which it is
based. See St. Aubin v. Quarterman, 470 F.3d 1096, 1100 (5th Cir. 2006); Neal
v. Puckett, 286 F.3d 230, 246 (5th Cir. 2002) (en banc), cert. denied, 537 U.S.
1104 (2003) (“[W]e do not interpret AEDPA in such a way that would require a
federal habeas court to order a new sentencing hearing solely because it finds
the state court’s written opinion unsatisfactory. It seems clear to us that a
federal habeas court is authorized by Section 2254(d) to review only a state
court’s ‘decision,’ and not the written opinion explaining that decision.” (footnote
omitted)). Thus, “our focus on the ‘unreasonable application’ test under Section
2254(d) should be on the ultimate legal conclusion that the state court reached
and not on whether the state court considered and discussed every angle of the
evidence.” Neal, 286 F.3d at 246; see also Harrington v. Richter, 131 S. Ct. 770,
784 (2011) (“Where a state court’s decision is unaccompanied by an explanation,
the habeas petitioner’s burden still must be met by showing that there was no
reasonable basis for the state court to deny relief.”).             The district court’s
consideration of the fact that the state court did not discuss the TDCJ records
represents the very “unduly formalistic” approach this court rejected in Neal.
286 F.3d at 245-46.
       We thus hold that the district court’s conclusion— that Green was denied
due process as a result of the state court’s failure to allow him to call more


records until May 20, 2010. His motion for appointment of counsel, retention of a mental
health expert, and a competency hearing was not filed until June 1, 2010, even though he
knew as early as December 16, 2009, that he was to be executed on June 30, 2010. The state
court responded on June 6, 2010. Expert reports were then produced on June 21, 2010. Green
then filed a request for a competency hearing on June 23, 2010. The state court promptly
responded, ruling on his motion the same day, and scheduling an evidentiary hearing for June
28.

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witnesses to testify about evidence already admitted as accurate and stipulated
to—represented an unreasonable application of Supreme Court precedent.
      Having determined that the procedures at issue were not constitutionally
defective, we also reject the district court’s holding that the state court made an
unreasonable determination of the facts. The State’s expert, Dr. Moeller, stated
in his report that during the mental status examination, Green spoke at length
about “improprieties in his trial and his hallucinations,” but Dr. Moeller
ultimately concluded, that despite “likely ha[ving] intermittent hallucinations
and disorganized behaviors,” “[i]t is unlikely that [Green] is suffering from
schizophrenia.” (Pet’r’s Dist. Ct. Ex. B.) Green himself stated that on June 30,
“[t]hey’ll put me on a table and put an I.V. into me and kill me . . . . because they
say I killed that girl.”    (Pet’r’s Dist. Ct. Ex. B.)     Considering the State’s
stipulation to the accuracy of the medical records, the presence of an expert on
each side, and the competency hearing itself, this court concludes that the state
court did not make an unreasonable determination that Green was competent,
and its factual finding to that effect is thus presumptively correct. See Patterson
v. Dretke, 370 F.3d 480, 484 (5th Cir. 2004); see also Miller-El v. Johnson, 261
F.3d 445, 454 (5th Cir. 2001), rev’d on other grounds sub nom Miller-El v.
Cockrell, 537 U.S. 322 (2003) (“A state court’s competency determination is a
finding of fact entitled to a presumption of correctness under § 2254(d)(2).”).
      Green has not presented clear and convincing evidence that would serve
to rebut this presumption. Although Green identifies medical records from the
Jester IV unit that diagnosed him with undifferentiated schizophrenia, these
records do not demonstrate that Green lacked the rational understanding that
he was to be executed for Neal’s death. Additionally, Dr. Moeller’s report shows
that Green spent a significant amount of time discussing flaws in his original
trial. Dr. Mosnik’s report contains additional statements by Green to the effect
that the police “set me up,” and it evidences his understanding that “[t]hey

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                                   No. 12-70031

accused me of killing somebody and they sentenced me to deathrow but I’m not
guilty.” (Pet’r’s Dist. Ct. Ex. A.)7
      Accordingly, the state court’s factual competency finding should remain
undisturbed.
D.    Ex Parte Communications
      The State also challenges the district court’s determination that “the state
court’s findings [were] less deserving of deference” under AEDPA for “den[ying]
Green any opportunity to object or seek changes or clarifications to the findings”
in the State’s proposed order, which the state court requested ex parte, and
signed verbatim. The State argues that the state court’s acceptance of the
proposed order’s findings was again indicative of the time constraints under
which the court was functioning. (Resp’t Appellant Br. at 23.) Further, there
was no need to provide Green an opportunity to submit his own findings because
the state court had already rendered a judgment from the bench. (Resp’t
Appellant Br. at 24.) Additionally, Green apparently had an opportunity to
object to the findings in a motion to strike he filed in the state court. (Resp’t
Appellant Br. at 25.)
      Ignoring the flaw inherent in the district court’s determination that the
state court was “less deserving of deference” under AEDPA, the district court’s
holding also lacks well-established support in Supreme Court precedent. See
McMurtrey v. Ryan, 539 F.3d 1112, 1118 (9th Cir. 2008) (observing that state
court factual findings are entitled to less deference under pre-AEDPA law).
      In Anderson v. City of Bessemer City, the Court criticized courts’ “verbatim
adoption of findings of fact prepared by prevailing parties, particularly when
those findings have taken the form of conclusory statements unsupported by
citation to the record.” 470 U.S. 564, 572 (1985). In Jefferson v. Upton, the

      7
        In another question, Green states that the murder victim’s name was “Christine
Neals.” (Pet’r’s Ex. A.)

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                                     No. 12-70031

Court again observed that “[a]lthough we have stated that a court’s verbatim
adoption of findings of fact prepared by prevailing parties should be treated as
findings of the court, we have also criticized that practice.” 130 S. Ct. 2217, 2223
(2010) (quotation omitted). But despite criticizing the practice, the Court has
never found it to violate due process or to entitle a state court’s decision to less
deference under AEDPA. The Court has explicitly stated that it has:
              [N]ot considered the lawfulness of, nor the application
              of the habeas statute to, the use of such a practice
              where (1) a judge solicits the proposed findings ex parte,
              (2) does not provide the opposing party an opportunity
              to criticize the findings or to submit his own, or (3)
              adopts findings that contain internal evidence
              suggesting that the judge may not have read them.
Id. at 2223. Importantly, Jefferson was also rendered in a pre-AEDPA context.
Id. at 2220. This court does not read the Court’s statement that it had “not
considered the lawfulness” of acts like those of the state court here to be an
invitation to grant habeas relief on Green’s claim that the ex parte
communications rendered his competency proceeding constitutionally infirm.
See id. at 2223; see also Brownlee v. Haley, 306 F.3d 1043, 1067 n.19 (11th Cir.
2002) (agreeing with district court that, although verbatim adoptions by state
court of State-submitted proposed orders has been criticized, the practice has
been consistently upheld where adequate evidentiary proceedings were held and
the court’s order was fully supported by evidence); cf. In re Sibley, 564 F.3d 1335,
1341 (D.C. Cir. 2009) (rejecting argument that court’s adoption of court-
appointed referee’s report amounted to deprivation of due process).8 It certainly
does not amount to “a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme
Court of the United States.” 28 U.S.C. § 2254(d)(1). The district court thus

      8
        We further note that we have ourselves upheld the practice. See Trevino v. Johnson,
168 F.3d 173, 180 (5th Cir. 1999); Nichols v. Scott, 69 F.3d 1255, 1277 (5th Cir. 1995).

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                                     No. 12-70031

erred in according the state court’s decision less deference as a result of the ex
parte request to the State for a proposed order and the subsequent adoption
thereof.
E.      Incorrect Legal Standard
        The final ground for granting a stay of execution was the district court’s
determination that the state court twice appeared to apply incorrect legal
standards. First, the district court held that the state court appeared to apply
an incorrect state standard by looking to the statutory framework contained in
Article 11.071 of the Texas Code of Criminal Procedure, as opposed to that under
Article 46.05.9 Second, the district court held that the state court applied an
overly narrow definition of “rational understanding” to Green’s awareness for
the reasons of his execution.


        9
        Article 11.071 of the Texas Code of Criminal Procedure “establishes the procedures
for an application for a writ of habeas corpus in which the applicant seeks relief from a
judgment imposing a penalty of death.” Tex. Code Crim. Proc. art. 11.071 § 1. Section 5
further provides that:
              If a subsequent application for a writ of habeas corpus is filed
              after filing an initial application, a court may not consider the
              merits of or grant relief based on the subsequent application
              unless the application contains sufficient specific facts
              establishing that:
                      (1)    the current claims and issues have not been and
                             could not have been presented previously in a
                             timely initial application or in a previously
                             considered application filed under this article or
                             Article 11.07 because the factual or legal basis for
                             the claim was unavailable on the date the
                             applicant filed the previous application;
                      (2)    by a preponderance of the evidence, but for a
                             violation of the united States Constitution no
                             rational juror could have found the applicant
                             guilty beyond a reasonable doubt; or
                      (3)    by clear and convincing evidence, but for a
                             violation of the United States Constitution no
                             rational juror would have answered in the state’s
                             favor one or more of the special issues that were
                             submitted to the jury in the applicant’s trial . . . .


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                                  No. 12-70031

      The State challenges both findings, arguing that the CCA concluded that
the state court applied the correct standard and that there is no ground on which
to question the state court’s clarification of what standard it applied. (Resp’t
Appellant Br. at 29-30.) As to the state court’s application of Panetti, the State
argues that the state court’s reasoning on the record supports finding that the
standard was correctly applied. (Resp’t Appellant Br. at 33, 35-36.)
      Addressing first the state court’s alleged application of the incorrect Texas
law standard, the district court found it unclear what standard the state court
applied. The district court was particularly alarmed by the fact that the CCA
required clarification from the state court as to what standard it had applied in
rendering its competency ruling. The district court appears to have been
concerned about the following passage, referring to the state court judge,
contained in the CCA’s request for clarification to the state court:
             [The state court] further stated that it was her
             ‘understanding we’re here on the first section [of Article
             11.071 § 5] because of a change in [appellant’s] mental
             capacity from the time that [appellant was] committed
             in 2002 to the present.’ She said again later that ‘this
             is the subsequent writ.’ Finally, in Volume 3, pages
             194-95 of the report’s record of the hearing, the judge
             explained that she ‘talked about the three different
             types of subsequent writs just to show that [she] had an
             understanding of the statute[.]’ On the same pages, she
             also stated that she followed ‘the Panetti standard’ and
             applied ‘the Ford [v. Wainwright, 477 U.S. 399 (1986)]
             standard’ and ‘after applying all of those standards,’ it
             was her ruling not to grant a stay in the case. Because
             some of the standards mentioned are not applicable in
             this instance, we order the trial judge . . . to file with
             the Clerk of this Court a written clarification of the
             standard she followed . . . .
Ex parte Green, 2010 Tex. Crim. App. Unpub. LEXIS 407, at *3 (alterations in
original).


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                                     No. 12-70031

      But the district court ignores that the CCA later determined that the state
court applied the correct standard under Article 46.05. See Green, 2012 WL
2400651, at *2, *7.10 In its clarification, the state court also referred to its own
handwriting on Green’s request for the appointment of an expert that “this exam
is to determine whether defendant is competent under 45.06.”                     At the
competency hearing, the state court also explicitly stated that “I knew that we
were here on the incompetence claim. I did listen to both sides. I did follow the
Panetti standard . . . and I did also apply the Ford standard in this case.” Green,
2012 WL 2400651, at *2. Unlike the district court, we do not see this as
“rais[ing] questions about whether [the state court judge’s] post hoc clarification
accurately describes the standards she applied in reaching her decision.” Green,
No. H-07-827, at 14 n.8.


      10
         Article 46.05 of the Texas Code of Criminal Procedure codifies the Ford standard.
It provides, in relevant part, that:
               (a)    A person who is incompetent to be executed may not be
                      executed.
               (f)    If the trial court determines that the defendant has made
                      a substantial showing of incompetency, the court shall
                      order at least two mental health experts to examine the
                      defendant using the standard described by Subsection (h)
                      to determine whether the defendant is incompetent to be
                      executed.
               (g)    If the trial court does not determine that the defendant
                      has made a substantial showing of incompetency, the
                      court shall deny the motion and may set an execution date
                      as otherwise provided by law.
               (h)    A defendant is incompetent to be executed if the
                      defendant does not understand:
                      (1)     that he or she is to be executed and that the
                              execution is imminent; and
                      (2)     the reason he or she is being executed . . . .
               (k)    The trial court shall determine whether, on the basis of
                      reports provided under Subsection (i), the motion, any
                      attached documents, any responsive pleadings, and any
                      evidence introduced in the final competency hearing, the
                      defendant has established by a preponderance of the
                      evidence that the defendant is incompetent to be
                      executed.

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                                  No. 12-70031

      After reviewing the state court’s bench ruling, we are further persuaded
that it applied the correct standard. The court stated:
            [F]or the record, I’m going to state that the most
            compelling evidence of all was from your own expert . . .
            which shows that you know you are to be executed by
            the State, you know you are convicted of killing the
            victim . . . you know the execution date, and then you
            proclaimed your innocence which shows a rational
            understanding of your imminent date and you know the
            charges that were against you.
Green, 2012 WL 2400651, at *2 (second alteration in original).
      This closely follows the requirements laid out in Ford and Panetti that a
prisoner: 1) “know the fact of [his] impending execution and the reason for it,”
Ford, 477 U.S. at 422 (Powell, J., concurring in part and concurring in the
judgment), and 2) “[have a] rational understanding of the reason for the
execution,” Panetti, 551 U.S. at 958. We conclude that the state court applied
the correct standard and the district court abused its discretion in finding
otherwise. See Green, 2012 WL 2400651, at *7 (noting that state court correctly
applied Article 46.05).
      We arrive at the same conclusion as to the state court’s application of the
“rational understanding” requirement under Panetti. The district court draws
a comparison between Green’s statement that he believed he was to be executed
“as a result of the war between the ‘good and evil personalities constantly
fighting for control of his body in order to kill him’” and the Panetti petitioner’s
belief that the reasons for his execution were a sham and that he was actually
to be executed as a result of “spiritual warfare” between demons and God.
Green, No. H-07-827, at 15.
      But the petitioner in Panetti also believed that “the stated reason [for his
execution] is a ‘sham’ and the State in truth wants to execute him ‘to stop him
from preaching.’” 551 U.S. at 955. On that petitioner’s appeal, this court had


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                                  No. 12-70031

also restricted its analysis to “whether [the] prisoner is aware that he [is] going
to be executed and why he [is] going to be executed.” Id. at 956 (quotation marks
omitted). Here, by contrast, the state court made a specific finding as to Green’s
rational understanding. Green, 2012 WL 2400651, at *2. As with other factual
determinations, the district court could only reject that finding on a showing of
clear and convincing evidence. We do not find any indication in the state court’s
decision that its interpretation of what was required for a “rational
understanding” was “too narrow,” Green, No. H-07-827, at 13 n.7, and conclude
that a stay was not warranted on this ground.
F.      Additional Relief
        In his petition to the district court, Green alleged that “[t]he supposed
functional abilities and fund of knowledge that led the convicting court to find
[him] competent . . . have deteriorated since Moeller and the convicting court
evaluated the evidence in this case,” and attached an affidavit by a fellow death
row inmate attesting to Green’s mental instability. (Pet’r’s Dist. Ct. Br. at 44-
45.) The State responded that the only way Green could present new evidence
would be to file a subsequent motion in state court pursuant to Article 46.05(e)
which provides:
              If a defendant is determined to have previously filed a
              motion under this article, and has previously been
              determined to be competent to be executed, the
              previous adjudication creates a presumption of
              competency and the defendant is not entitled to a
              hearing on the subsequent motion filed under this
              article, unless the defendant makes a prima facie
              showing of a substantial change in circumstances
              sufficient to raise a significant question as to the
              defendant’s competency to be executed at the time of
              filing the subsequent motion under this article.
Tex. Code Crim. Proc. art. 46.05(e). The district court rejected the State’s
argument, finding instead that, having found that the state proceeding


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                                 No. 12-70031

prevented Green from submitting various pieces of evidence—the testimony of
fact witnesses—it would be circular to now prohibit Green from introducing new
evidence on the basis that he should have submitted it previously.
      On appeal, the State argues that any additional factual development,
insofar as it relates to the 2010 competency finding, is foreclosed by Cullen v.
Pinholster, 131 S. Ct. 1388 (2011). (Resp’t Appellant Br. at 12-13.) We agree.
The Court in Pinholster made clear that “[i]f a claim has been adjudicated on the
merits by a state court, a federal habeas petitioner must overcome the limitation
of § 2254(d)(1) on the record that was before that state court” because “[s]tate-
court decisions are measured against [the Supreme Court’s] precedents as of ‘the
time the state court renders its decision.’” Id. at 1399 (quoting Lockyer v.
Andrade, 538 U.S. 63, 71-72 (2003)). The Court further reasoned that “[i]t would
be contrary to [the requirement that prisoners exhaust their state remedies
before filing for federal habeas relief] to allow a petitioner to overcome an
adverse state-court decision with new evidence introduced in a federal habeas
court and reviewed by that court in the first instance effectively de novo.” Id.
      While it appears that the district court was referring to testimony by the
fact witnesses, this reasoning applies equally to them and the affidavit of
Green’s fellow death row inmate. Having found that the state proceeding was
not constitutionally deficient, we see no basis on which to permit Green to
introduce new evidence.
      In addition to attacking the legality of his 2010 competency proceedings
and his state court appeal, Green argues that his mental condition has
deteriorated since 2010 and he is currently incompetent. He alleges that he
suffers from schizophrenia, experiences hallucinations, and operates under the
delusion that he “was convicted in a bizarre trial permeated by sexual
misconduct in open court.” To corroborate this allegation, he offers the fellow
death row inmate’s sworn statement that Green’s capabilities have markedly

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                                  No. 12-70031

deteriorated from the time he was examined in 2010. Green thus seeks to
“develop his competency claim in federal proceedings,” and further contends that
he must “be given the opportunity and expert resources necessary to properly
present and explain the significance of his condition in a federal [habeas
petition].”
      In effect, Green attempts to turn the instant federal habeas proceedings
into a Ford hearing. Significantly, he does not contest the availability of further
competency proceedings in state court. Tex. Code Crim. Proc. art. 46.05(e). Nor
does he argue that the procedure available to him in state court is
constitutionally infirm, or that the factual predicate for his new competency
claim was unavailable until now. In these circumstances, he cannot raise this
claim for the first time in federal court.
      Under the Supreme Court’s framework in Rhines v. Weber, 544 U.S. 269
(2005), a district court may, in its discretion, stay and hold in abeyance federal
habeas proceedings to permit a state prisoner to marshal unexhausted claims
through state court. Were we to construe Green’s new competency claim as an
“unexhausted claim” within the meaning of Rhines, this would permit a death
row inmate with a new competency claim (colorable or not) to come first to a
federal court to obtain a stay of execution even though adequate state procedures
are available to determine his competency. We refuse to do so.
      We think there is an important distinction between the claim of
incompetency that was presented to the state trial court in 2010 and a claim that
the petitioner’s mental condition today, on the eve of his execution, has
deteriorated substantially, such that he is currently incompetent to be executed.
The latter claim does not undermine the state courts’ conclusion that he was
competent to be executed in 2010, as would potentially be the case with what we
consider to be an “unexhausted claim.” It is simply a new claim. It is one that
has not been presented to the state court system, even though state law provides

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                                 No. 12-70031

a mechanism for presenting such a claim. Tex. Code Crim. Proc. art. 46.05. We
are unwilling to treat this new claim as an unexhausted claim within the
meaning of Rhines, which would permit the district court to stay his execution
pending the state court disposition of this new claim. We are even more
unwilling to allow the district court to entertain his request for “expert
resources.” Instead, we are convinced that Green’s federal court proceedings
should come to an end with the disposition of the federal habeas claim relating
to the 2010 competency hearing, and any request for a stay of execution on
competency grounds should be directed by Green to the state courts, perhaps
ancillary to the proceedings contemplated by Article 46.05(e).
                             III. CONCLUSION
      For the aforementioned reasons, the State’s motion to vacate the stay of
execution is GRANTED, and the order staying the execution in this case is
hereby VACATED.        We remand this matter to the district court with
instructions to dismiss Green’s petition with prejudice except for his claim that
he is currently incompetent, which should be dismissed without prejudice.




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                                    No. 12-70031

OWEN, concurring.


      I concur fully in the court’s opinion.
      I note that Green does not explicitly assert a claim that he is entitled to a
new hearing because of changes in circumstances since the competency hearing
in 2010. He essentially discusses facts that came into existence after the 2010
hearing as tangential support for his argument that he was and continues to be
incompetent. It is far from clear that Green has raised a claim separate and
apart from his challenge to the 2010 proceedings that would necessitate
consideration of whether such a claim, if any, is “unexhausted” within the
meaning of AEDPA.
      In any event, AEDPA’s exhaustion requirements do not appear to apply
to a claim that Green is entitled to a new hearing based on conditions that have
changed since 2010, if indeed Green has made such an assertion.                 My
understanding of the Supreme Court’s decision in Panetti v. Quarterman1 is that
a defendant subject to a sentence of death could initiate more than one
competency proceeding in a state court over time, and habeas petitions
separately challenging each state-court competency proceeding would not
necessarily be considered successive under AEDPA. Each proceeding might
depend on the facts that obtained at the time of the competency hearing,
particularly when relatively long periods of time had passed between
adjudications of competency. Additionally, a determination that a defendant
was incompetent to be executed would not vacate the sentence of death. The
sentence would remain, but, as a constitutional matter, it could not be enforced
unless and until the defendant became competent to be executed.




      1
          551 U.S. 930 (2007).

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                                       No. 12-70031

      These differences distinguish competency-to-be-executed proceedings from
the types of proceedings at issue in Rose v. Lundy2 and Rhines v. Weber.3 In
Lundy, which predated AEDPA by fourteen years, the Supreme Court held that
“federal district courts may not adjudicate mixed petitions for habeas corpus,
that is, petitions containing both exhausted and unexhausted claims.”4 The
Supreme Court explained that the underlying concern in allowing federal courts
to adjudicate “mixed” petitions containing exhausted and unexhausted claims
was that “it would be unseemly in our dual system of government for a federal
district court to upset a state court conviction without an opportunity to the
state courts to correct a constitutional violation.”5 But allowing a federal court
to consider the merits of a habeas proceeding in which a state has adjudicated
the competency of a defendant to be executed at a particular point in time does
not overturn a conviction. Competency may still be at issue in future state court
proceedings. Each competency proceeding may well be a discrete proceeding
that is largely if not entirely independent of the outcome of prior incompetency
proceedings. The concept of “exhaustion” under the law prior to AEDPA and
under AEDPA therefore does not fit such claims, at least not in all
circumstances. A decision by a federal district court that a defendant is or is not
entitled to habeas relief in a competency-to-be-executed proceeding does not
necessarily resolve, and in many cases will not resolve, whether, over the course
of time, circumstances have changed and the defendant is no longer competent
or conversely, has become competent. Perhaps most importantly, it would make
no sense, and would defeat the purpose of habeas proceedings, to wait until a


      2
          455 U.S. 509 (1982).
      3
          544 U.S. 269 (2005).
      4
          Rhines, 544 U.S. at 273.
      5
          Lundy, 455 U.S. at 518 (quoting Darr v. Burford, 339 U.S. 200, 204 (1950)).

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                                       No. 12-70031

series of competency hearings in state court had been concluded before a federal
court addressed the merits of any of them.                   The potential for future,
“unexhausted” claims of competency-to-be-executed claims would loom.
      I note that Green has not once but twice waited until the eleventh hour to
raise claims that he is incompetent. The evidence in the affidavit from another
inmate regarding Green’s behavior after 2010 was known and available to Green
many, many months before he sought relief in the federal district court on
September 28, 2012. If Green is in fact asserting that he should receive a new
hearing based on developments after 2010, then this claim should not be
considered by this court due to its last-minute nature.
      I also write to address whether the state courts properly applied the
competency standard discussed in Panetti. Green, like the defendant in Panetti,
suffers from delusions. The Supreme Court said in Panetti that the “legal
inquiry concerns whether these delusions can be said to render him
incompetent.”6 The Court further explained that “the execution of an insane
person simply offends humanity” and that “it is uncharitable to dispatch an
offender into another world, when he is not of a capacity to fit himself for it.”7
The Supreme Court admonished that the lower courts should have considered
“Petitioner’s submission . . . that he suffers from a severe, documented mental
illness that is the source of gross delusions preventing him from comprehending
the meaning and purpose of the punishment to which he has been sentenced.”8
In Green’s competency proceedings, the state courts did consider this argument.




      6
          Panetti, 551 U.S. at 956.
      7
          Id. at 958 (quoting Ford v. Wainwright, 477 U.S. 399, 407 (1986)).
      8
          Id. at 960.

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                                    No. 12-70031

      The Texas Court of Criminal Appeals considered and cited the state trial
court’s factual findings in this regard.9 The state trial court referred to, among
other evidence, Green’s own testimony at the competency hearing and Green’s
statements to his expert witness. The trial court specifically noted that Green
was able to name his trial counsel and his current attorney, as well as the “first,
second, and third attorneys” in his case. The trial court observed, “You knew
that you had the right to have trial counsel and appellate counsel, and I further
find that you appreciated the adversarial nature of the trial and proceedings.”
Green told his expert witness during her assessment of him that he had been
imprisoned for killing Christine Neal, specifically naming the victim, but
denying his guilt.     He told his expert when asked if he understood what
“competency to be executed” means that “You evaluate me to see if I’m smart
enough to die I guess.” He then said when asked if he knew that he was going
to be executed, “I hope not.” He said that the date of his execution was “the 30th
of this month” and that this date was “18-19 days” away. When asked if he knew
the reason for the execution, he said, “They accused me of killing somebody and
they sentenced me to deathrow but I’m not guilty.” This is evidence that Green
possessed considerable cognitive ability. It is also evidence that he connected
the penalty of death as punishment for a crime of murder and that he believed
that morally, he should not be put to death for such a crime because he was not
guilty of the crime. His detailed complaints regarding the fairness of his trial
for the murder of Christine Neal indicate that he appreciated the immorality in
convicting someone of a crime when the trial was procedurally flawed. He
expressed “hope” that he would not be put to death, maintaining his innocence
and relying on errors allegedly committed during his trial.



      9
       Green v. State, Nos. AP-76,374, AP-76,376, AP-76,381, 2012 WL 2400651 (Tex. Crim.
App. Jun. 27, 2012).

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                                    No. 12-70031

      The Texas Court of Criminal Appeals recognized that the “record contains
evidence that would support a finding of competency or incompetency.”10 It then
concluded that “there was sufficient evidence here to support the trial court’s
ruling; we cannot find that its determination was outside the zone of reasonable
disagreement.”11 This was a correct assessment. The state court’s application
of the law to the facts in this case was not unreasonable.
      Accordingly, I concur.




      10
           Id. at *7.
      11
           Id.

                                         29
