     Case: 13-70024   Document: 00514256173    Page: 1   Date Filed: 11/30/2017




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

                                No. 13-70024                          FILED
                                                               November 30, 2017
                                                                 Lyle W. Cayce
PERRY ALLEN AUSTIN,                                                   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 Southern District of Texas


Before OWEN, ELROD, and HAYNES, Circuit Judges.
PRISCILLA R. OWEN, Circuit Judge:
      Perry Allen Austin was convicted of capital murder in Texas state court
and sentenced to death. The Texas Court of Criminal Appeals affirmed the
trial court’s judgment and subsequently dismissed Austin’s state habeas
petition as untimely. Austin filed a federal habeas petition. The federal
district court granted summary judgment for the State and denied a certificate
of appealability (COA). This court granted Austin a COA on fourteen of his
twenty-one grounds. We now affirm the district court’s judgment.
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                                        No. 13-70024
                                               I
      We briefly recount the pertinent facts leading up to Austin’s trial for
capital murder, as outlined in a prior opinion:
             In 1978, [Austin] raped one of his adolescent sisters at gunpoint
      and attempted to rape another, before robbing a third, older sister and
      his mother. . . . A jury convicted Austin of rape, attempted rape, and
      aggravated robbery.
             Following this conviction, Austin was released on parole in 1991
      and began a sexual relationship with J.O., a fourteen-year-old female.
      Through J.O., Austin met D.K., a nine-year-old male. D.K. disappeared
      in August 1992. While investigating D.K.’s disappearance, police
      discovered Austin’s relationship with J.O. and charges were brought
      against Austin. He pled guilty to sexual assault of a child and received
      a thirty-year sentence. In April 1993, D.K.’s remains were found.
      Although there was physical evidence connecting Austin to D.K.’s
      murder and Austin admitted that D.K. had been in his vehicle the day of
      D.K.’s disappearance, police did not believe they had sufficient evidence
      to prove Austin was responsible for D.K.’s murder.
             Austin alleges that prison conditions caused his mental health to
      deteriorate after he was incarcerated for sexually assaulting J.O. In
      1995, he stabbed another prisoner and received an additional twenty-
      year sentence. By this point, Austin was confined in administrative
      segregation.
             In September 2000, Austin wrote a letter to a Houston police
      officer, stating that he would confess to D.K.’s murder if he would be
      guaranteed the death penalty. [Austin stated if that was not guaranteed,
      he would kill a prison guard as a way of guaranteeing himself the death
      penalty.] 1 Austin was interviewed at the state prison and confessed
      orally and in writing to slitting D.K.’s throat with a knife because Austin
      was angry at D.K.’s brother for allegedly stealing drugs from Austin’s
      car. Austin was indicted for capital murder on February 15, 2001. On
      March 21, Mack Arnold was appointed to represent Austin. 2




      1   14RR24.
      2   Austin v. Davis, 647 F. App’x 477, 480 (5th Cir. 2016) (per curiam).

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                                     No. 13-70024
      Prior to his trial, Austin wrote a number of letters to the state trial court.
In his first letter, Austin explained that he “[did] not want, nor require an
attorney to represent [him]” and that he “[was] willing to face whatever
consequences due [him] for [his] heinous and deplorable acts.” 3                  He also
indicated he would accept a death sentence and waive any appeals. 4 He stated
that he was “fully aware of [his] rights and [was] fully competent to stand
before you and make these decisions.” 5 Austin explained that he had not had
peace of mind since the murder, that his “mental stability [had] steadily
decreased,” and that he was using drugs again. 6
      Several months later, Austin wrote to the state trial court requesting to
be released from administrative segregation or, alternatively, that his trial be
moved to an earlier date. 7 Austin reasoned that he had not had a disciplinary
incident since entering the county jail and that, even though he was charged
with capital murder, he suspected “others in population [had] similar
charges.” 8 He further stated that he “[could not] handle prolonged isolation”
because he “[has] a very bad problem with depression” and contemplates
suicide often when depressed. 9 Several weeks later, Austin again requested
an earlier trial date. 10 Austin explained to the state trial court: “No, I don’t
have a death wish, or at least you all can’t prove it . . . . I am fully competent
and definitely know the difference between right and wrong.” 11 In his last


      3 CR at 5 (letter from Austin to the trial court file stamped May 15, 2001).
      4 Id.
      5 Id.
      6 Id.
      7 CR at 16 (letter from Austin to the trial court dated July 19, 2001); ROA.629.
      8 CR at 16; ROA.629.
      9 CR at 16.
      10 CR at 18 (letter from Austin to the trial court dated Aug. 8, 2001).
      11 Id.



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                                       No. 13-70024
letter to the state trial court before the pretrial hearing to determine if Austin
could represent himself, Austin again requested to proceed pro se, noting he
was “fully aware of the consequences” and “aware that this is within [his]
right.” 12 He also stated that he did not wish to participate in jury selection and
that he would “not contest any juror the prosecution selects.” 13
       Prior to trial, Austin’s counsel requested that the state trial court permit
and authorize payment for a psychological examination of Austin by Dr.
Jerome Brown, a clinical psychologist. 14 The trial court granted counsel’s
request, 15 although it appears that counsel did not immediately seek Dr.
Brown’s services. 16 The trial court held a conference in chambers six weeks
later and explained to Austin that it wanted a psychological evaluation
performed before it could decide whether Austin could proceed pro se. 17 The
trial court ordered Dr. Brown to evaluate Austin to determine his competency
to stand trial. 18 In his report, prepared after meeting with Austin, Dr. Brown
noted that Austin “had no trouble providing relevant and coherent background
information,” was able to describe the charges against him and the court
proceedings that had occurred, and could explain why he wanted to represent
himself. 19 Dr. Brown concluded that Austin was “alert, well-oriented, and able
to communicate his ideas without difficulty.” 20 Dr. Brown also noted that


       12 CR at 20 (letter from Austin to the trial court dated Aug. 14, 2001).
       13 Id.
       14 CR at 12-13 (motion submitted May 30, 2001).
       15 CR at 11 (granting motion on July 13, 2001).
       16 2RR3 (trial court referring to a previous conference in chambers six weeks before in

which it noted that the evaluation had not yet occurred); Austin Br. at 15 (specifying that the
conference occurred on August 27, 2001).
       17 2RR3-4.
       18 CR at 24 (evaluation conducted on September 20, 2001).
       19 CR at 24-25.
       20 CR at 26.



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                                       No. 13-70024
Austin displayed no “bizarre verbalizations,” hallucinations, or delusions
typically indicative of severe mental illness nor did he exhibit any indication
of   disorganization,       confusion,      or       other     significant   difficulties   in
communication. 21 Although the report acknowledged Austin’s use of alcohol
and drugs in prison, it did not otherwise mention any past mental health
issues. 22 Dr. Brown concluded that Austin was competent to stand trial. 23
       After the evaluation, the state trial court held a pretrial Faretta hearing
to consider Austin’s request to proceed pro se. Under Faretta v. California, a
criminal defendant has a right to self-representation. 24 To exercise that right,
a defendant must competently, knowingly, and intelligently waive his right to
counsel. 25 At the hearing, the trial court noted that it had read Austin’s letters
and spoken with Austin at a prior hearing. 26 The trial court also noted that it
was in possession of Dr. Brown’s report summarizing his evaluation of Austin’s
competency to stand trial. 27 The trial court asked Austin’s counsel his opinion



       21  Id.
       22  CR at 24-26.
        23 CR at 26.
        24 Faretta v. California, 422 U.S. 806 (1975).
        25 Id. at 835 (“When an accused manages his own defense, he relinquishes, as a purely

factual matter, many of the traditional benefits associated with the right to counsel. For this
reason, in order to represent himself, the accused must ‘knowingly and intelligently’ forgo
those relinquished benefits. Although a defendant need not himself have the skill and
experience of a lawyer in order competently and intelligently to choose self-representation,
he should be made aware of the dangers and disadvantages of self-representation, so that the
record will establish that ‘he knows what he is doing and his choice is made with eyes open.’”)
(internal citations omitted); see also Weaver v. Massachusetts, 137 S. Ct. 1899, 1908 (2017)
(noting that a defendant’s “right to conduct his own defense . . . ‘usually increases the
likelihood of a trial outcome unfavorable to the defendant’” but recognizing that the “right is
based on the fundamental legal principle that a defendant must be allowed to make his own
choices about the proper way to protect his own liberty” and that improper denial of the right
constitutes structural error (quoting McKaskle v. Wiggins, 465 U.S. 168, 177 n.8 (1984))).
        26 2RR3 (hearing held October 11, 2001).
        27 2RR4.



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                                  No. 13-70024
as to Austin’s competency.      Counsel stated that, in his view, Austin was
competent to stand trial and, in fact, “it has been [his] opinion from the first
time [he] met him but out of an abundance of caution [he] requested the
psychiatric evaluation.” 28 The court then asked Austin a series of questions
pertaining to his understanding of the possible consequences of representing
himself and of the charges against him. Austin explained that he wanted
complete control over trial strategy, although he agreed to standby counsel
“[f]or legal advice only.” 29 The court also asked Austin four questions about his
mental health history. 30 Austin stated he had had no mental health issues. 31
The trial court issued findings, granted Austin’s request to proceed to trial pro
se, and appointed standby counsel. 32
      After the Faretta hearing, but before trial began, Austin submitted an
affidavit to the state trial court, stating that he wished to have his court order
for access to the law library rescinded because he thought “it [was] not
necessary for [him] to attend additional [l]aw [l]ibrary sessions to research the




      28 Id.
      29 2RR13.
      30 2RR6-7.
      31 Id.

             THE COURT: Have you ever been declared mentally incompetent?
             AUSTIN: No, ma’am.
             THE COURT: Have you ever been treated for any mental health disorder?
             AUSTIN: No, ma’am.
             ...
             THE COURT: Okay. Ever have any mental health problems while you were in
             the Army?
             AUSTIN: No, ma’am.
             THE COURT: Ever seek any mental health counseling while you were in the
             Army?
             AUSTIN: No, ma’am.
      32 2RR14-15; CR at 32-33.



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                                     No. 13-70024
material needed to execute [his] defense.” 33 Austin later sent the trial court
another letter requesting “all the evidence the prosecutor had against” him. 34
He also asked the state trial court about obtaining proper clothing for trial,
and stated that he would like Arnold removed as his advisor because Arnold
did not answer Austin’s letters and because Austin “[did] not need him.” 35 In
another letter to the state trial court before trial, Austin noted that he was “out
of seg now so [was] no longer suffering bouts of depression” and that he was
“still firm about [his] decision to not fight this case.” 36 He also stated that he
“decided that it is not necessary for [him] to review [his] case file . . . [s]ince [he
was] not going to put up any type of defense.” 37
      Austin did not participate in jury selection. 38 The trial court admonished
prospective jurors during voir dire that if selected, each would be required to
“render a verdict based on the law . . . not your personal opinion.” 39 Under
Texas law, juries on capital cases must decide two special issues in the
sentencing phase: (1) “whether there is a probability that the defendant would
commit criminal acts of violence that would constitute a continuing threat to
society,” and if so, (2) “[w]hether, taking into consideration all of the
evidence . . . there is a sufficient mitigating circumstance or circumstances to
warrant that a sentence of life imprisonment without parole rather than a




      33  CR at 36 (affidavit sworn on Dec. 5, 2001).
      34  CR at 60 (letter from Austin to the trial court dated Dec. 30, 2001).
       35 CR at 60-61. A handwritten note on the letter, which appears to be mistakenly

dated January 25, 2001 instead of January 25, 2002, suggests that Austin later stated at a
hearing in open court that he would accept Arnold as standby counsel at trial.
       36 CR at 58 (letter from Austin to the trial court dated Feb. 19, 2002).
       37 Id.
       38 See generally vol. 3-8 of Reporter’s Records (voir dire beginning Mar. 18, 2002).
       39 3RR4.



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                                       No. 13-70024
death sentence be imposed.” 40 Each juror answered, under oath, that he or she
could impartially decide whether Austin should be sentenced to life
imprisonment or death. 41         When empaneled, the jurors swore they would
render a verdict according to the law and evidence. 42
       Austin pleaded guilty to capital murder. 43 Before accepting Austin’s
plea, the trial court questioned Austin about his understanding of the charges
against him and the possible penalties. 44            The court also probed whether
Austin’s plea was voluntary. 45 Austin stated he understood and was entering
his plea voluntarily. 46 The court accepted the plea. 47 After the jury was sworn
and admonished by the state trial court, the State presented the indictment
and Austin entered his guilty plea before the jury. 48 The punishment phase of
the trial then proceeded. 49
       During the punishment phase, the State provided additional details
regarding the offense, including that D.K was nine years old when he was
killed. 50 It also introduced the letter Sergeant Allen received from Austin in



       40 TEX. CODE CRIM. PROC. ANN. art. 37.071, § 2(b)(1), (e)(1) (West Supp. 2002).
       41 E.g., 4RR18-19 (juror Erwin’s assurance that he could answer the special issues so
as to produce a life or death sentence); 5RR4-5 (juror Condon’s assurance that he could
answer the special issues so as to produce a life or death sentence); 5RR32, 44 (juror Gibbs’s
assurance that he could answer the special issues so as to produce a life or death sentence,
and would follow the law); 5RR48 (juror Tamayo’s assurance that he could answer the special
issues so as to produce a life or death sentence); 5RR67-68 (juror Finnegan’s assurance that
he could answer the special issues so as to produce a life or death sentence).
       42 9RR7.
       43 9RR4.
       44 9RR4-7.
       45 9RR4-5.
       46 Id.
       47 9RR6.
       48 9RR7-15.
       49 9RR16.
       50 9RR17.



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January 2001, in which Austin stated that he would confess to the murder of
D.K. if guaranteed the death penalty and, if that was not guaranteed, he would
kill a prison guard to ensure he received the death penalty. 51 The tapes of
Austin’s two interviews with Sergeant Allen—the first taking place
immediately after Sergeant Allen received Austin’s letter in 2001 and the
second occurring before Austin’s trial in 2002—were played to the jury. 52 In
the first interview, Sergeant Allen made clear that he could not promise or
guarantee Austin anything in exchange for confessing to D.K.’s murder. 53
Austin then described how he committed the crime. 54 When Sergeant Allen
asked Austin why he decided to confess, Austin replied, “I’m tryin[g] to clean
myself up . . . . You know and studying the Bible, I’m not saying I’m a
Christian, I’m not saying I’m getting religious you know. . . . I need to clear all
this up.” 55
       In the second interview a year later, Austin again admitted to killing
D.K., described why and how he committed the crime, and stated he confessed
“[b]ecause [he] did it.” 56 When Sergeant Allen further inquired why Austin
came forward in 2001, Austin answered, “Depression I guess.” 57 Austin stated:
       I couldn’t stop dreaming about it, I couldn’t stop seeing pictures of
       it. So I just kept doing drugs[,] getting in trouble with doing drugs.
       I had to stay high every day or else I would have to think about it.
       And it really comes up mostly when I’m locked up in seg in solitary,
       you know. Cause in seg and solitary I can’t do no drugs[.] I just


       51 10RR25.
       52 10RR28, 34-35.
       53 Pet. Ex. 34 at 000005.
       54 Id. at 000005-000016.
       55 Id. at 000020.
       56 ROA.840-45.
       57 ROA.852 (typed transcript of Feb. 21, 2002 interview with Austin contained in the

federal district court’s record on appeal).

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                                      No. 13-70024
      got tired, the drugs weren’t doing nothing really, they weren’t
      helping. . . . I had written the letter a really long time before[,] I
      think I was depressed when I wrote that letter for at least ten
      years. . . . It used to [not] bother me, anything I did, it never
      bothered me but ever since this thing happened to him I’d be
      watching TV and I’d be thinking and I would just start crying[,]
      stuff like that. 58

Austin explained that he had “been going to counseling and psychiatrists since
[he] was a kid,” that he “had behavioral problems,” “was always in trouble at
school,” and “was emotionally disturbed.” 59 He stated that he “just want[ed]
to get this over with and close it up,” and that “[t]he only reason [he hadn’t]
killed [himself] is because” he “actually believe[s] there is a hell.” 60            He
explained: “Put it this way[,] I’m not killing myself, I’m just not putting on a
defense. I regret something I did, I’m gonna pay for it[,] I’m not gonna make
no excuses for nothing.” 61
      Austin for the most part refrained from questioning witnesses and
presenting evidence during the punishment phase. 62 He did not testify. 63 He
briefly cross-examined an F.B.I. agent about Austin’s relationship with J.O.,
specifically asking whether J.O.’s mother informed the agent that Austin used
to date her before dating J.O. and whether J.O.’s mother told the agent that
J.O. looked old enough to drink in bars. 64 Austin made a closing statement,




      58 Id.
      59 ROA.853.
      60 Id.
      61 Id.
      62 See generally Reporter’s Record vols. 9-11.
      63 10RR78.
      64 9RR125-26.



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                                    No. 13-70024
telling the jury he was violent, mean, and sometimes thought he had no
conscience. 65 He also stated:
      I’ve been like this all my life, and I doubt if I’ll change. What I
      wanted to say was they think I have a death wish. Well, that’s not
      true. One of the reasons why I went ahead and confessed [to killing
      D.K.] was it was bothering me, what I did. Regardless of what
      everybody thinks, it does. I’ve never killed anybody before.
      And, . . . I also knew that my acts of violence would not stop even
      though I was in prison. 66

He referred to an incident in prison in which he had “come real close to killing
a [prison] guard” and that “[t]he only reason” he did not was that someone else
stopped him. 67 He explained that “one of these days” there would not be
someone to stop him, and he would “end up killing again.” 68 Austin contested
at closing the State’s contention that he was a pedophile, asserting that J.O.
looked older than she was. 69 He stated he was homosexual and described his
sexual preferences. 70 Austin concluded his closing, telling the jury:
      On these special issues, there’s no doubt that you will answer yes
      to No. 1 because if you send me to prison, I will commit further acts
      of violence. . . . Jail is a violent place, especially for somebody like
      me. I’m a homosexual. So, yes, I will commit further acts of
      violence in prison. Special Issue No. 2, there was no mitigating
      circumstances that contributed to killing [D.K.]. And fear, anger
      or whatever can never be considered anywhere near a reason for
      killing. So I suspect, you know, y’all, by law, have to answer that
      number as no. 71



      65 11RR15.
      66 11RR15-16.
      67 11RR16.
      68 Id.
      69 11RR16-17, 19.
      70 11RR18.
      71 11RR19-20.



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                                     No. 13-70024
The jury answered Texas’s special issues such that the trial court imposed a
death sentence. 72
       The state trial court held a second Faretta hearing in which Austin
waived his right to both appellate counsel and state habeas counsel. 73 The
court noted it had previously determined before trial that Austin was
competent and it appointed standby appellate counsel. 74 Pursuant to Texas
law, Austin’s case was automatically appealed to the Texas Court of Criminal
Appeals (TCCA). 75 Austin filed no brief. The TCCA affirmed his conviction,
noting that Austin had chosen to represent himself at trial and on appeal and
that the “trial court [had] fully admonished [him] of the dangers and
disadvantages of self-representation prior to trial and prior to this appeal.” 76
The TCCA stated it had, in the interests of justice, reviewed the entire record
and found no unassigned fundamental error. 77
       Austin waived any pursuit of post-conviction relief and the trial court set
Austin’s execution date. 78 Six days before his scheduled execution, Austin
moved to have state habeas counsel appointed. 79 The trial court withdrew the
execution date and appointed Dick Wheelan as habeas counsel on September
24, 2003. 80




       72 11RR31; CR at 78-79.
       73 12RR3, 8; CR at 84-85.
       74 CR at 86; ROA.22; ROA.595.
       75 See TEX. CODE CRIM. PROC. ANN. art. 37.071, § 2(h) (West Supp. 2002).
       76 See Austin v. State, No. 74372, 2003 WL 1799020 (Tex. Crim. App. Apr. 2, 2003).
       77 Id.; Ex Parte Austin, No. 870377, Findings of Fact, Conclusion/Recommendation and

Order, at 2 (June 29, 2004).
       78 ROA.23; ROA.595-96.
       79 ROA.596.
       80 Id.



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       Texas Code of Criminal Procedure, art. 11.071, § 4(a) provides that an
application for a writ of habeas corpus “must be filed in the convicting court
not later than the 180th day after the date the convicting court appoints
counsel . . . or not later than the 45th day after the date the state’s original
brief is filed on direct appeal with the court of criminal appeals, whichever date
is later.” 81 Wheelan determined that March 22, 2004 was the filing deadline
for Austin’s application for a writ of habeas corpus, counting 180 days from the
date of his appointment. 82 Pursuant to Texas Code of Criminal Procedure, art.
11.071, § 4(b), Wheelan later requested a 90-day extension of time. 83 The state
trial court granted his request. 84 On April 8, 2004, Wheelan filed with the
TCCA a motion for leave to file a skeletal application for a writ of habeas corpus
with leave to file an amended original petition by June 20, 2004. 85 The TCCA
issued an order dismissing Wheelan’s scheduling motion, holding that § 4(a)
“should be interpreted” such that “‘the date the convicting court appoints
counsel’ . . . shall mean the day the applicant waived counsel and chose to
represent himself on habeas” and “‘the date the state’s original brief is filed on
direct appeal’ . . . shall mean the day the State waived its right to file a brief




       81 TEX. CODE CRIM. PROC. ANN. art. 11.071, § 4(a) (West 1999).
       82 Pet.’s Mtn. to Extend Time, Ex Parte Austin, No. 870377-A at *1-2 (Mar. 15, 2004);
ROA.596.
       83 ROA.596; TEX. CODE CRIM. PROC. ANN. art 11.071, § 4(b) (West 1999) (“The

convicting court, before the filing date that is applicable to the applicant under Subsection
(a), may for good cause shown and after notice and an opportunity to be heard by the attorney
representing the state grant one 90-day extension that begins on the filing date applicable to
the defendant under Subsection (a).”).
       84 Ex Parte Austin, No. 870377, Findings of Fact, Conclusion/Recommendation and

Order, at 3 (June 29, 2004).
       85 ROA.596.



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                                       No. 13-70024
on appeal.” 86 The TCCA subsequently denied Austin’s motion for leave to file
an untimely application for a writ of habeas corpus. 87
       Austin filed a federal habeas petition. 88 The State moved to dismiss the
petition contending that Austin’s claims were procedurally defaulted in light
of the TCCA’s denial of his state petition as untimely. 89 The district court
denied the State’s motion. 90         In its answer, the State argued Austin had
insufficiently briefed a number of his claims. 91               Austin then filed a first
amended petition. 92 The district court granted a stay to permit Austin to
exhaust in state court new claims based on legislative changes to Texas’s death
penalty scheme. 93 After Austin exhausted those claims, 94 he filed a second
amended federal habeas petition. 95 The State filed an answer. 96 Austin then
moved for funds for expert assistance in assessing his mental health and
competency, which the district court authorized. 97 Austin subsequently filed a




       86 Ex Parte Austin, No. 74372, slip op. at 3 (Tex. Crim. App. May 26, 2004) (not
designated for publication).
       87 Id. at 4.
       88 ROA.20 (Austin’s state habeas petition and his federal habeas petition are the same,

according to the parties and the district court).
       89 ROA.155, 597-98; Ex Parte Austin, No. 59527-01, slip op. at 2 (Tex. Crim. App. July

6, 2004) (per curiam) (not designated for publication).
       90 ROA.598.
       91 Id.
       92 Id.
       93 ROA.1390; ROA.1465.
       94 Ex Parte Austin, No. 59527-02 (Tex. Crim. App. Apr. 5, 2006) (per curiam) (not

designated for publication).
       95 ROA.5 (district court docket entry #38, not included in record on appeal but on file).

This court denied a COA on Austin’s Eight Amendment claims added in this second amended
petition. The second amended petition is otherwise the same as the first amended petition.
       96 ROA.1687.
       97 ROA.1838; ROA.3488 (sealed).



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                                       No. 13-70024
response to the State’s answer and a motion for an evidentiary hearing,
supported by affidavits from mental health experts. 98
       In his petition, Austin outlined his history of mental illness, including
suicide attempts in 1975 and 1979, as evidence that he was incompetent to
stand trial, plead guilty, and waive counsel. 99              We recount the evidence
pertinent to Austin’s claims.          After his suicide attempt in 1975, he was
hospitalized and diagnosed with adolescent adjustment reaction in a mixed
personality. 100 Austin subsequently joined the army but was discharged in
1977 for “failure to adapt socially and emotionally.” 101                    Following the
aggravated rape of his sister and attempted aggravated rape of another of his
sisters, as well as the aggravated robbery of a third sister and his mother in
1978, 102 Austin was evaluated by a psychologist, Dr. Franklin Lewis, before
the trial occurred on those charges. 103 Dr. Lewis diagnosed Austin with severe
personality disturbance with schizoid thinking and anti-social features as well
as latent borderline schizophrenia. 104 He concluded that Austin was, at the
time, suffering from a mental illness. 105 Austin pleaded not guilty due to
insanity. 106 At trial, Dr. Lewis testified that there were indications that Austin
had brain dysfunction or brain damage, although further testing would be
required to make a determination. 107 Austin again attempted suicide in 1979


       98  ROA.1930; ROA.2126.
       99  See Second Amended Pet. at 13; ROA.607; ROA.610.
        100 Second Amended Pet. at 14; ROA.607 (same assertion in first amended petition).
        101 Second Amended Pet. at 15.
        102 Pet. Ex. 3 at 005306, 005333; Pet. Ex. 5 at 001682.
        103 Pet. Ex. 28 at 002842-000043.
        104 Second Amended Pet. at 17; Pet. Ex. 28 at 002843.
        105 Second Amended Pet. at 17; Pet. Ex. 28 at 002843; Pet. Ex. 17 at 003675 (testifying

at trial that Austin was “experiencing a mental illness” at the time of the assault).
        106 Pet. Ex. 5 at 001699; Pet. Ex. 28 at 002831.
        107 Second Amended Pet. at 17; Pet. Ex. 17 at 003674.



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                                         No. 13-70024
while awaiting trial. 108 After he was convicted, he wrote to the trial judge
requesting that he be placed at a state hospital to “get help for [his] problem,”
rather than sent to the Texas Department of Corrections (TDC). 109 Although
the trial judge forwarded Austin’s letter to the Diagnostic Unit of the TDC, 110
Austin remained with the TDC for the duration of his sentence. 111 A number
of physical and psychological evaluations of Austin were conducted during this
time period. 112 There is some evidence that Austin did not wish to receive
mental health counseling and was not cooperative while in the TDC or the
Harris County Sheriff’s Office. 113



       108  Second Amended Pet. at 17; Pet. Ex. 28 at 002831.
       109  Second Amended Pet. at 17-18; Pet. Ex. 5 at 001699-001701 (“I [] did not [plead
insanity] just to get out of going to T.D.C. I did it because I want help and I need help. . . . I
know there[’]s something wrong with me and I don’t think prison[’]s going to go help me any.
I want to go to Rusk to get help for my problem. . . . All I’m asking is that you send me to
Rusk until the doctors solve me of my problem then go ahead and send me to T.D.C. for life
if you want to.”).
        110 Pet. Ex. 5 at 001697.
        111 Second Amended Pet. at 18.
        112 E.g., Pet. Ex. 28 at 002803 (TDC clinic notes 11/7/83; noting “probable nervous

condition”), 002827 (mental health services notes 1/26/84; “has a history of antisocial
behavior, substance abuse and sexual sadism coupled with self-mutilation”), 002825 (TDC
clinic notes 5/6/86; referring him to psychiatric personnel), 002824 (clinic notes 2/3/88;
“patient had good eye contract, oriented to time, person, and place and communicated
effectively”); 002822 (clinic notes 12/18/89; “will refer to unit psychologist due to past . . . had
not been seen since 8/10/88, had past suicide attempts”).
        113 Pet. Ex. 15 at 004059 (Harris County Sheriff’s Office Medical Services Division

notes, 4/8/02; “Consumer states that he does not plan to seek counseling in TDC because only
group therapy is offered and he does not want to discuss his problems in a group. He states
that he feels that individual counseling has helped him.”); 004071 (Pre-trial/screening intake
notes, 2/25/02; explaining that although Austin met with a psychologist in the Wynne Unit
in 1979 he “just saw [the psychologist] a couple of times but wouldn’t cooperate;” also noted
Austin would not cooperate with counseling in 1976); 004083 (Harris County Sheriff’s Office
Medical Services Division notes 1/24/02; Austin “strongly expressed that he did not want any
services from MHMRA”); 004085 (Harris County Sheriff’s Office Medical Services Division
notes 10/18/01; Austin “states that he has no interest in obtaining psychiatric assistance”);
004094-99 (uncooperative); see also Docket Entry #47, Letter from Austin to the Fifth Circuit,
received Sept. 17, 2014 (“I chose to abstain from medication and counseling . . . .”).

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                                    No. 13-70024
      Austin also asserted that the conditions of his confinement in the Texas
prison system were “psychologically aversive” 114 and that he received no
effective mental health treatment while incarcerated. 115 After Austin returned
to the TDC to serve a thirty-year sentence for sexual assault of a child in
1992, 116 he stabbed another prisoner 117 and was placed in administrative
segregation from 1995 until 1998.          He asserts that the conditions of his
confinement during this period, which he alleges included “unlawful violence
by staff, sub-standard physical conditions and food, unlawful denial of exercise
and educational materials, and prolonged periods of isolation,” caused his
mental health to deteriorate further. 118 Upon release from administrative
segregation, Austin was placed in a “safekeeping” unit because he identified as
a homosexual. 119 Austin contends that the conditions of safekeeping also
negatively affected his mental health. 120 In 2001, he was again placed in
administrative segregation after assaulting a prison guard. 121 A week later,
Austin sent the letter to Sergeant Allen confessing to D.K.’s murder. 122 He
contends that when he confessed, he was “[u]nder the influence of his mental
illness and the severely depressive effects of his conditions of confinement.” 123
      In support of his contentions in the federal habeas proceeding before the
district court, Austin attached to his habeas petition the 2004 reports of a


      114 Austin Br. at 10.
      115 ROA.612-13.
      116 14RR110.
      117 14RR113 (judgment and sentence of additional twenty years on plea of guilty for

aggravated assault with a deadly weapon).
      118 Austin Br. at 11; accord Second Amended Pet. at 28.
      119 Second Amended Pet. at 31; Pet. Ex. 36 at 001487.
      120 Second Amended Pet. at 31-32.
      121 Id. at 32; Pet. Ex. 26 at 003259 (offense report).
      122 14RR24.
      123 Second Amended Pet. at 32.



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                                    No. 13-70024
neuropsychologist, Dr. McGarrahan, 124 and a neuropsychiatrist, Dr. Woods,
both retained as part of his post-conviction investigation. He also submitted,
in his motion for an evidentiary hearing, affidavits prepared by Dr.
McGarrahan and Dr. Woods in 2012. 125 In her 2004 report, prepared after
reviewing Austin’s records and meeting with him, Dr. McGarrahan noted that
Austin “endorsed continual suicidal ideation with a plan to cut his wrists with
a razor blade” but “ha[d] no intent at [the] time because he ha[d] ‘something to
live for.’” 126 She opined that Austin’s “overall pattern of cognitive performance
suggests dysfunction of pre-frontal systems.” 127 Dr. McGarrahan described
Austin’s thought processes as “goal-directed,” but noticed “he evidenced brief
delays in responding to questions and he occasionally lost his train of
thought.” 128   She noted that Austin “denied experiencing any auditory
hallucinations and there was no indication of a fixed delusional system.” 129 In
Dr. McGarrahan’s opinion, “[p]sychological testing revealed significant
depression, history of problems with drugs, suicidality, history of physical
aggression, antisocial behaviors, anxiety related to a traumatic event, identity
problems and potential for self-harm.” 130 She diagnosed Austin with a major
depressive disorder, a cognitive disorder not otherwise specified, a
polysubstance disorder, an anxiety disorder, and a personality disorder. 131




      124 Dr. McGarrahan used her maiden name, Cicerello, in 2004.
      125 Austin Br. at 26; ROA.2145-56; ROA.2161-80.
      126 Pet. Ex. 93 at 007775.
      127 Id. at 007778.
      128 Id. at 007775.
      129 Id.
      130 Id. at 007778.
      131 Id.at 007779.



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                                    No. 13-70024
      In his 2004 affidavit, Dr. Woods described Austin’s suicidal ideation and
suicidal behaviors and concluded that Austin’s desire to not have a trial and to
plead guilty were evidence he was not acting rationally. 132            Dr. Woods
explained that “Austin certainly understood the factual issues of his trial,”
“[h]e knew what he was being charged with,” and he “understood the potential
consequences of his false confession.” 133 In Dr. Woods’ opinion, Austin “was
capable of managing impressions and sought to minimize the appearance of
any mental illness to ensure that his planned death could proceed.” 134
Nonetheless, Dr. Woods concluded:
      [Austin was not able to rationally assist in the preparation of his
      defense] given his steadfast desire to die by the hands of the state.
      This suicidal ideation, based upon his mental disease and
      reinforced by his cognitively derived inability to effectively weigh
      and deliberate decisions at the time of their presentation rendered
      Mr. Austin incompetent to rationally weigh and deliberate his
      legal decisions. 135

Dr. Woods also concurred in Dr. McGarrahan’s diagnosis that Austin suffered
from frontal lobe dysfunction. 136 In Dr. Woods’ opinion, Austin’s “pre-existing
and serious mental illness” was the “operating cause in his decision to kill
himself.” 137
      Austin also attached to his habeas petition an affidavit from Dr. Brown
prepared in 2007 after Dr. Brown had reviewed Dr. McGarrahan’s 2004




      132 Pet. Ex. 95 at 8-9.
      133 Id. at 11.
      134 Id.
      135 Id.
      136 Id. at 15.
      137 Id. at 16.



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                                     No. 13-70024
report. 138 Dr. Brown noted that information “relevant and significant” to his
2001 competency evaluation of Austin was withheld by Austin “which might
have provided information critical to the determination of his competency to
stand trial.” 139   Dr. Brown concluded that it was “possible” that Austin’s
judgment was “significantly impaired by his mental difficulties” such that Dr.
Brown’s determination as to competency was incorrect in 2001. 140 The State
included in its answer to Austin’s habeas petition another affidavit from Dr.
Brown obtained in 2008. 141 In that affidavit, Dr. Brown explained that, at the
time of his 2007 affidavit, Austin had not provided him with the medical
information previously withheld. 142      Having reviewed the information not
available at the time of his original evaluation of Austin in 2001, Dr. Brown
concluded “there [was] nothing . . . that would justify changing my opinion,
that would indicate that Mr. Austin’s opportunity for a fair and impartial
evaluation had been compromised because of what he withheld, or that
additional evaluation, including more psychological testing or psychiatric
interviewing, would have made any difference.” 143
        Dr. Woods and Dr. McGarrahan also submitted affidavits prepared in
2012.     Dr. McGarrahan concluded that Austin “has a chronic issue with
suicidal depression and that his suicidal depression appears to have been
present at the time of his trial and competency evaluation . . . and likely
impaired his ability to reason and make sound judgments.” 144 Dr. Woods


        138 Pet. Ex. 96.
        139 Id.
        140 Id.
        141 ROA.1710; ROA.1806-08.
        142 ROA.1806.
        143 ROA.1806-07.
        144 ROA.2150.



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                                    No. 13-70024
opined that Austin’s jail records demonstrated he “was suffering from
depression, suicidality, frequent crying spells, nightmares, racing thoughts,
confusion, reduced sleep, irritability, and poor concentration.” 145 Dr. Woods
concluded that “Austin’s decision to pursue the death penalty was a direct
result of contemporaneous depression and active suicidality” and that the
decisions he made throughout trial and on appeal were thus irrational and
involuntary. 146
      The district court granted summary judgment to the State and denied
Austin’s request for an evidentiary hearing. 147 Although the district court held
that the TCCA applied a new rule that could not be the basis of a procedural
default, it concluded that Austin’s claims were nevertheless foreclosed and
denied a COA. 148
      While Austin’s application for a COA was pending, Austin wrote a letter
to this court indicating he desired to withdraw his appeal. He stated:
      I wish to drop my appeals but can’t seem to get any type of response
      nor cooperation. I have informed my attorney of my wishes and
      according to him, to drop my appeals m[a]y actually prolong the
      date of my execution because the courts would then request a
      competency hearing. If there is any way I could waive the
      compentency [sic] hearing I would gladly do it. I was given a
      competency hearing just before my trial, and another just after,
      but before my direct appeals by the trial court. I was found
      competent in both of those instances and see no reason for another
      one.




      145  ROA.2174.
      146  ROA.2177.
       147 Austin v. Thaler, 2012 WL 12537415 at *15 (S.D. Tex. Aug. 21, 2012); ROA.2767

(granting summary judgment and denying relief); ROA.2747 (denying motion for evidentiary
hearing).
       148 Austin v. Thaler, 2012 WL 12537415 at *6, *15 (S.D. Tex. Aug. 21, 2012).

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                                      No. 13-70024
      I have just recently completed the beginners[’] course of the
      Blackstone Paralegal Institute with a[n] overall score of 99.51%.
      This is hardly a sign of incompetence. My TDCJ IQ score was 123
      and my TDCJ EA Score was 12.9. Again, this is hardly a sign of
      incompetence. I do have a history of mental health issues, but
      nothing that can't be treated satisfactorily with medication and
      counseling. I chose to abstain from medication and counseling
      though and so see no reason why my mental health should keep
      me from dropping my appeals. Also, I recently read a court case in
      which your court ruled that a person could be mentally ill, but still
      be competent to be executed because that person was competent
      during their trial. In that case, that should also be the case in my
      case/appeals. 149

We requested that the State and Austin’s counsel respond to Austin’s request
to withdraw his appeals. Austin’s counsel stated that Austin continues to
suffer from serious mental illness and that nothing in Austin’s letter
“cause[d] . . . counsel to [abandon] the legal and factual propositions” advanced
in the habeas petition and the COA. 150 Austin’s counsel subsequently filed a
motion for expedited consideration of the COA. 151 We noted that this motion
conflicted with Austin’s request to withdraw and we remanded to the district
court “for the limited purpose of making findings as to whether Austin [was]
presently competent to waive further appeals of his conviction and death
sentence, and if Austin [was] found to be competent, whether such waiver is
knowing and voluntary.” 152 We subsequently received a letter from Austin,




      149 Docket Entry # 47 (letter from Austin to the Fifth Circuit received Sept. 17, 2014).
      150 Docket Entry # 53 (filed Oct. 9, 2014).
      151 Docket Entry # 62 (filed Nov. 14, 2014).
      152 Austin v. Stephens, 596 F. App’x 277, 278 (5th Cir. 2015) (per curiam).



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                                      No. 13-70024
written prior to the remand, stating that he wished us to either deny his
request for a COA or grant his motion to withdraw his appeal. 153
       Before the district court held a competency hearing in accordance with
the remand, Austin moved to withdraw his pro se request to withdraw his
appeal. 154 In May 2015, Austin filed a pro se letter with this court again stating
he did not feel another competency evaluation was necessary and renewing his
request for an expedited review and denial of his appeals. 155 Austin explained:
“We all know that I am guilty and that all the previous psychological
evaluations I received that found me to be mentally unstable was in error
because of my deception.” 156 Austin stated he had taken psychology classes
and was knowledgeable about manipulating others. 157                  Shortly thereafter,
Austin sent this court another letter stating that he no longer wished to have
legal representation, that a competency hearing was not necessary because he
had already had two, and that he would not answer questions in the event a
competency evaluation was ordered. 158 In July 2015, Austin wrote to the court
reiterating his request that the court deny his COA. 159 He requested that he
be permitted to proceed pro se. 160 He again stated he would not answer
questions in any court-ordered competency evaluation and that “[a] Faretta
hearing [was] also not necessary as [he had] already had two of them, once




       153 Docket Entry # 73 (letter from Austin to the Fifth Circuit written January 6, 2015
and received January 12, 2015).
       154 Docket Entry # 75 (motion from Austin’s counsel and letter from Austin).
       155 Docket Entry # 82 (letter from Austin to the Fifth Circuit dated May 10, 2015).
       156 Id.
       157 Id.
       158 Docket Entry # 84 (letter from Austin to the Fifth Circuit dated May 20, 2015).
       159 Docket Entry # 91 (letter from Austin to the Fifth Circuit dated July 26, 2015).
       160 Id.



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                                     No. 13-70024
when [he] chose to represent [himself] during [his] trial and again when [he]
chose to represent [himself] during [his] direct appeal.” 161 Austin explained:
      If any are wondering what my motives are for all of this, it’s quite
      simple. I wish to be executed. Either that, or give me Life Without
      Parole. One or the other. . . . I do not want out of prison. I am
      probably one of the very few guys in prison who readily admit that
      I belong in prison. . . . When I was first bench warranted back to
      the county jail in 2001 I was asked what was it I wanted. I asked
      if I could be guaranteed a Life sentence without ever being brought
      up for parole. When I was told that couldn’t be guaranteed, I chose
      death. If you looked at the trial transcript and everything else you
      can see that at no point did I contest the state. I only picked up
      my appeals because in a moment of weakness I allowed a woman
      to convince me to pick them up. That woman is no longer a factor
      in my life. 162

      In November, 2015, Austin sent another letter to this court requesting
denial of his appeal. 163 He restated that he had taken psychology classes, was
“good [at] manipulation,” and had                deceived     mental     health experts
previously. 164 This court subsequently granted in part and denied in part
Austin’s COA. 165      In November 2016, Austin again wrote to the court
requesting a denial of his appeal. 166           In reference to the claims raised
concerning his mental health issues, Austin stated he “[could] guarantee this
court that I am now, and always have been fully competent.” 167 He again
suggested he had previously deceived mental health experts and manipulated




      161 Id.
      162 Id.
      163 Docket Entry # 97 (letter from Austin to the Fifth Circuit filed Nov. 20, 2015).
      164 Id.
      165 Austin v. Davis, 647 F. App’x 477 (5th Cir. 2016) (per curiam).
      166 Docket Entry # 145 (letter from Austin to the Fifth Circuit dated Nov. 27, 2016).
      167 Id.



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                                       No. 13-70024
a polygraph test. 168 He also explained that he had refused visits from his
attorney because the visits often required him to miss meals. 169 In this letter,
he stated he would cooperate with a mental health evaluation but only if it was
conducted at the prison because he did not want to be bench warranted back
to the county. 170
                                             II
       “In a federal habeas corpus appeal, we review the district court’s findings
of fact for clear error and its conclusions of law de novo.” 171 Our review of this
federal habeas petition is governed by the applicable provisions of the Anti-
Terrorism and Effective Death Penalty Act of 1996 (AEDPA). 172                        Under
AEDPA, if a claim was adjudicated on the merits by a state court, § 2254(d)
provides that a federal court cannot issue a writ of habeas corpus unless the
state court’s decision was “contrary to, or involved an unreasonable application
of, clearly established Federal law, as determined by the Supreme Court of the
United States,” or “was based on an unreasonable determination of the facts
in light of the evidence presented in the State court proceeding.” 173 Under
§ 2254(e)(1), “a determination of a factual issue made by a State court shall be
presumed to be correct” and “[t]he applicant shall have the burden of rebutting
the presumption of correctness by clear and convincing evidence.” 174




       168 Id.
       169 Id.
       170 Id.
       171 Graves v. Dretke, 442 F.3d 334, 339 (5th Cir. 2006) (citing Valdez v. Cockrell, 274

F.3d 941, 946 (5th Cir. 2001)).
       172 28 U.S.C. § 2254.
       173 28 U.S.C. § 2254(d).
       174 28 U.S.C. § 2254(e)(1).



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                                        No. 13-70024
       Austin did not file a brief on direct appeal; no federal claims challenging
his conviction were presented to the TCCA in its automatic review of his
conviction and sentence. The federal claims presented in his state habeas
petition were rejected by the TCCA on procedural grounds. Accordingly, there
has been no adjudication on the merits of Austin’s habeas claims to which this
court can apply § 2254(d) deference. 175 We consider the standard of review
applicable to each of Austin’s claims in our analysis of them.
                                               III
       We first address whether Austin’s claims are procedurally defaulted.
The TCCA held that Austin’s application for habeas relief was untimely under
Texas Code of Criminal Procedure, art. 11.071, § 4(a), which sets the filing
deadlines for Texas state habeas petitions. 176 The TCCA reasoned that § 4(a)
should be interpreted to require filing no later than 180 days after Austin
waived habeas counsel or 45 days after the State waived its right to file a brief
on appeal. 177 The district court concluded that the procedural rule had not
been clearly announced nor regularly followed because the TCCA had never
before interpreted the statute in such a way. 178 Accordingly, it determined that
the rule could not be the basis for a procedural default. 179 We agree. We also



       175  Cf. Gonzalez v. Crosby, 545 U.S. 524, 530 (2005) (relying on § 2254(d) to define
“claim” for purposes of § 2244(b) and stating that both statutes together “make clear that a
‘claim’ as used in § 2244(b) is an asserted federal basis for relief from a state court’s judgment
of conviction”); Lambert v. Blodgett, 393 F.3d 943, 969 (9th Cir. 2004) (“[W]e hold that a state
has ‘adjudicated’ a petitioner’s constitutional claim ‘on the merits’ for the purposes of
§ 2254(d) when it has decided the petitioner’s right to post conviction relief on the basis of
the substance of the constitutional claim advanced . . . .”).
        176 See Ex Parte Austin, No. 74372, slip op. at 2-4 (Tex. Crim. App. May 26, 2004) (not

designated for publication).
        177 Id.
        178 ROA.2777.
        179 Id.



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                                       No. 13-70024
note that the State has affirmatively set forth in its brief in this court that it
does not challenge the district court’s ruling that the state procedural ground
was inadequate. 180
                                              IV
       Austin contends that he was not competent to waive his right to counsel,
stand trial, or plead guilty (Issue 10) and that the state trial court’s
determination as to competency was not entitled a presumption of correctness
under 28 U.S.C. § 2254(e)(1) (Issues 2, 3 and 4). 181 He also argues that the
state trial court’s procedures were not adequate to ensure he was competent
(Issues 6, 7, 8, 9). 182 Austin presents evidence of his mental health history
which he contends demonstrates his incompetence. 183 In a closely related
claim, Austin asserts that his waiver of counsel and guilty plea were not
knowing and voluntary because of his mental illness and the coercive
conditions of his confinement (Issues 16, 17). 184 He also argues that the district
court improperly deferred to the state trial court’s determinations that Austin’s
guilty plea and waiver of counsel were knowingly and voluntarily made (Issue
2 and 15). 185




       180  State Br. at 16 n.3.
       181  See Austin Br. at 77, 47, 49. Issue 3 relates to Austin’s assertion that the federal
district court erred in crediting and relying upon evidence offered by the State in its summary
judgment motion. As we noted in our partial grant of a COA, these arguments relate to the
federal district court’s procedure, are not separate grounds for relief, and are arguments we
consider in connection with Austin’s substantive claims.
        182 See Austin Br. at 54, 57.
        183 ROA.2145-56; ROA.2161-80.
        184 See Austin Br. at 102.
        185 See Austin Br. at 47, 93.



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                                       No. 13-70024
                                              A
       “[T]he Constitution does not permit trial of an individual who lacks
‘mental competency.’” 186 A defendant is competent to stand trial if he has
“sufficient present ability to consult with his lawyer with a reasonable degree
of rational understanding [and if] he has a rational as well as factual
understanding of the proceedings against him.” 187                   The Supreme Court
concluded in Maggio v. Fulford that competency to stand trial is a question of
fact. 188 In Felde v. Blackburn, this circuit relied on Fulford in determining that
a state court’s finding of competence to stand trial is a finding of fact. 189 We
have reiterated that holding in a number of cases. 190 In Washington v. Johnson



       186  Indiana v. Edwards, 554 U.S. 164, 170 (2008); see also Drope v. Missouri, 420 U.S.
162, 171 (1975) (“It has long been accepted that a person whose mental condition is such that
he lacks the capacity to understand the nature and object of the proceedings against him, to
consult with counsel, and to assist in preparing his defense may not be subjected to a trial.”).
        187 Dusky v. United States, 362 U.S. 402, 402 (1960) (per curiam); see also Godinez v.

Moran, 509 U.S. 389, 396 (1993).
        188 Maggio v. Fulford, 462 U.S. 111, 117 (1983) (per curiam); see also Thompson v.

Keohane, 516 U.S. 99, 113 (1995) (noting the “practical considerations that have prompted
the Court” to consider competency a “factual issue,” namely that the trial court has a
“superior capacity to resolve credibility issues”); Demosthenes v. Baal, 495 U.S. 731, 735
(1990) (per curiam) (considering the state court’s conclusion regarding the defendant’s
competence to be a factual finding); Miller v. Fenton, 474 U.S. 104, 114 (1985) (noting that
the distinction between questions of fact and questions of law often turns upon which “judicial
actor is better positioned than another to decide the issue in question;” if “the issue involves
the credibility of witnesses and therefore turns largely on an evaluation of demeanor, there
are compelling and familiar justifications for leaving the process of applying law to fact to
the trial court and according its determinations presumptive weight.”).
        189 Felde v. Blackburn, 795 F.2d 400, 402 (5th Cir. 1986) (“The state court’s finding of

mental competence to stand trial . . . is a finding of fact entitled to a presumption of
correctness . . . .”) (citing Fulford, 462 U.S. at 116-17).
        190 Miller-El v. Johnson, 261 F.3d 445, 454 (5th Cir. 2001) (“A state court’s competency

determination is a finding of fact entitled to a presumption of correctness under
§ 2254(d)(2).”), rev’d on other grounds, 537 U.S. 322 (2003); Carter v. Johnson, 131 F.3d 452,
460 (5th Cir. 1997) (treating the question of competency as a factual determination); Flugence
v. Butler, 848 F.2d 77, 79 (5th Cir. 1988) (“A medical inquiry into competency is a fact-finding
exercise, and the factual finding of competence is presumed to be correct.”).

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                                        No. 13-70024
and Bouchillon v. Collins—two decisions issued after Felde— we treated the
question of competency as a mixed question of law and fact. 191 This circuit’s
rule of orderliness, however, provides that “one panel of our court may not
overturn another panel’s decision, absent an intervening change in the law.” 192
Because we are bound by this circuit’s rule of orderliness, and the earlier panel
decision controls, 193 we adhere to Felde and to Fulford and consider
competency a question of fact. 194
       Section 2254(e) limits our review of state-court fact findings, 195 even if
no claims were presented on direct appeal or state habeas. 196                           Under
§ 2254(e)(1), “a determination of a factual issue made by a State court shall be


       191  Washington v. Johnson, 90 F.3d 945, 951 (5th Cir. 1996) (“The question of
competency is treated in our circuit as a mixed question of law and fact.”); Bouchillon v.
Collins, 907 F.2d 589, 593 n.11 (5th Cir. 1990) (“[T]he determination of competency is not
solely a ‘factual issue,’ but rather is a mixed question of fact and law.”).
        192 Mercado v. Lynch, 823 F.3d 276, 279 (5th Cir. 2016) (per curiam) (quoting Jacobs

v. Nat’l Drug Intelligence Ctr., 548 F.3d 375, 378 (5th Cir. 2008)).
        193 Camacho v. Tex. Workforce Comm’n, 445 F.3d 407, 410 (5th Cir. 2006).
        194 Cf. United States v. Saingerard, 621 F.3d 1341, 1343 (11th Cir. 2010) (per curiam)

(recognizing, on appeal of conviction in federal court, that competency to stand trial is a
factual determination); United States v. Mackovich, 209 F.3d 1227, 1232 (10th Cir. 2000)
(same); Vogt v. United States, 88 F.3d 587, 591 (8th Cir. 1996) (same); United States v. Winn,
577 F.2d 86, 92 (9th Cir. 1978) (same).
        195 Virgil v. Dretke, 446 F.3d 598, 610 n.52 (5th Cir. 2006) (applying § 2254(e)(1) to a

state trial court’s implicit factual finding).
        196 Appel v. Horn, 250 F.3d 203, 210 (3d Cir. 2001) (concluding that even when

§ 2254(d) does not apply, § 2254(e) still applies such that a state court’s factual
determinations are presumed correct); see Sharpe v. Bell, 593 F.3d 372, 379 (4th Cir. 2010)
(“The deference Section 2254(e)(1) requires has particular salience when a state court’s
determinations closely track the legal issues before the federal habeas court. Where a state
court looks at the same body of relevant evidence and applies essentially the same legal
standard to that evidence that the federal court does . . . , Section 2254(e)(1) requires that
the state court’s findings of fact not be casually cast aside.”); see also Loden v. McCarty, 778
F.3d 484, 494 (5th Cir. 2015) (noting that § 2254(e) “constrains the discretion of district courts
to grant evidentiary hearings,” even “[w]here section 2254(d) does not apply”); Blue v. Thaler,
665 F.3d 647, 654 (5th Cir. 2011) (Section 2254(e)(1) “pertains only to a state court’s
determinations of particular factual issues, while § 2254(d)(2) pertains to the state court’s
decision as a whole”) (citing Miller-El v. Cockrell, 537 U.S. 322, 341-42 (2003)).

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                                       No. 13-70024
presumed to be correct” and the habeas petitioner bears “the burden of
rebutting the presumption of correctness by clear and convincing evidence.” 197
To the extent Austin’s claims challenge factual determinations made by the
state trial court, we apply § 2254(e)(1). To the extent Austin’s claims present
questions of law and mixed questions of law and fact, such that § 2254(e) does
not apply, we review de novo. 198 Because competency is a question of fact, we
afford the state trial court the deference due under § 2254(e)(1). 199 Under
§ 2254(e)(1), the state trial court’s determination that Austin was competent
to stand trial, waive counsel, and plead guilty is presumed correct. Austin
bears the burden of rebutting that presumption of correctness by clear and
convincing evidence. 200 Out of an abundance of caution, however, we will also
consider, in the alternative, whether Austin is entitled to habeas relief if
Austin’s competency claims are subject to review as a mixed question of law
and fact.
       The trial court conducted a pretrial hearing following an expert’s
evaluation of Austin’s competence to consider Austin’s motion to proceed pro
se. Although the primary purpose of the hearing was to determine Austin’s
ability to represent himself, 201 the trial court addressed the question of
Austin’s competency to stand trial and waive counsel in making that
determination. 202 The transcript of the hearing also reflects that the state trial



       197  28 U.S.C. § 2254(e)(1).
       198  See Henderson v. Cockrell, 333 F.3d 592, 597-98 (5th Cir. 2003).
        199 See Appel v. Horn, 250 F.3d 203, 210 (3d Cir. 2001).
        200 28 U.S.C. § 2254(e)(1).
        201 2RR4.
        202 See Godinez v. Moran, 509 U.S. 389, 400 (1993) (holding that waiver of the right to

counsel must be made competently, knowingly and voluntarily to be constitutionally
effective).

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                                       No. 13-70024
court was evaluating whether Austin was competent to stand trial. 203 In
finding Austin competent to stand trial and to waive trial counsel, the state
trial court relied on its own interactions with Austin, his written letters to the
court, his demeanor in court proceedings, and his responses to the trial court’s
questions. 204 The trial court also relied on the professional opinion of Dr.
Brown, who conducted a competency evaluation of Austin prior to the first
Faretta hearing. 205 Finally, the trial court relied on the opinion of Austin’s
counsel as to Austin’s competency. 206             We conclude that the state court’s
competency determination is well supported by the record.
       Although Austin presents evidence of mental illness in his federal
habeas petition, he has not demonstrated by clear and convincing evidence that
he was not competent to stand trial, waive counsel, or plead guilty.                        He
contends that the evidence presented in his habeas petition—including records
of two suicide attempts over twenty years before his capital murder trial as
well as expert reports highlighting his suicidality and depression—
demonstrates he was not competent before, during, or after trial. A history of
suicidality    and     depression,     however,      does    not    render     a   defendant


       203  See 2RR3-6 (referencing and relying upon Dr. Brown’s report, prepared to
determine if Austin was competent to stand trial, asking Austin’s counsel whether he
considered Austin to be competent, and asking Austin a series of questions about his mental
health history); see also 12RR3 (the state trial court noting at a later Faretta hearing that it
had previously conducted a hearing and found Austin “was competent to represent himself
and was making that decision freely and voluntarily with full knowledge of the potential
consequences”).
       204 2RR5-14.
       205 2RR4 (“[T]he Court appreciates the fact that the evaluation has been done. It is

probative information for the Court on making a determination on his ability to represent
himself.”).
       206 Id. (Austin’s counsel confirming his personal determination that Austin was

competent and stating that “it has been [his] opinion from the first time [he] met him but out
of an abundance of caution I requested the psychiatric evaluation”).

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                                       No. 13-70024
incompetent. 207 Austin clearly demonstrated an understanding of the charges
against him and the possible consequences, as well as an ability to make
strategic choices and to communicate clearly to the state trial court.                    As
Austin’s own expert explained, “Austin certainly understood the factual issues
of his trial” and “[h]e knew what he was being charged with.” 208 The evidence
Austin presents is insufficient to overcome the indicators of competence noted
and relied upon by the state trial court.
       Austin argues that his decision to waive counsel and plead guilty to
capital murder demonstrates incompetency.                  The fact that a particular
defendant “caus[es] his trial to be conducted in a manner most likely to result
in a conviction and the imposition of the death penalty,” however, is not
sufficient for a finding of incompetency. 209 This circuit has recognized that a
defendant’s deliberate use of the system to obtain the death penalty is evidence
of rationality, not incompetence. 210 Again, we presume the state trial court’s



       207  See Mata v. Johnson, 210 F.3d 324, 330 (5th Cir. 2000) (noting a suicide attempt
must be weighed with other evidence relating to a defendant’s competence); see also Drope v.
Missouri, 420 U.S. 162, 181 n.16 (1975) (recognizing that “a suicide attempt need not always
signal ‘an inability to perceive reality accurately, to reason logically and to make plans and
carry them out in an organized fashion’” (quoting David F. Greenberg, Involuntary
Psychiatric Commitments to Prevent Suicide, 49 N.Y.U. L. REV. 227, 236 (1974))).
        208 Pet. Ex. 95 at 11.
        209 Roberts v. Dretke, 381 F.3d 491, 498 (5th Cir. 2004); Autry v. McKaskle, 727 F.2d

358, 362 (5th Cir. 1984) (per curiam) (recognizing that refusing to “plead for mercy” in a
capital murder case does not necessarily mean that a defendant is incompetent or acting
irrationally); see also Taylor v. Horn, 504 F.3d 416, 435 (3d Cir. 2007) (“Taylor’s desire to
confess and receive the death penalty as punishment, and refusal to allow witnesses during
the penalty phase, are not indications that he was incompetent. These actions are consistent
with Taylor’s repeatedly expressed desire to plead guilty and accept the consequences.”).
        210 See Roberts v. Dretke, 381 F.3d 491, 494, 498 (5th Cir. 2004) (concluding that the

defendant’s instruction to trial counsel to “steer the trial towards imposition of the death
penalty” was not irrational nor evidence of incompetency, but instead suggested that the
defendant was “quite capable of conversing with his trial counsel regarding trial strategy,
and was not only able to participate in his defense but was also able to direct it”).

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                                       No. 13-70024
determination regarding Austin’s competency is correct; Austin has not
overcome that presumption by clear and convincing evidence. 211
       Even if, in the alternative, we were to consider this claim a mixed
question of law and fact, such that § 2254(e)(1)’s presumption of correctness
does not apply to the competency determination and our review is instead de
novo, Austin has failed to demonstrate that he is entitled to habeas relief. His
prior mental health issues as well as his strategy before, during, and after trial
are simply insufficient to support a determination that Austin was
incompetent.
                                              B
       Austin asserts a number of procedural due process claims under Pate v.
Robinson 212 relating to the state trial court’s determination of competency.
“Under Pate v. Robinson, a trial court must hold a competency hearing when
there is evidence before the court that objectively creates a bona fide question
as to whether the defendant is competent to stand trial.” 213 “In determining
whether there is a ‘bona fide doubt’ as to the defendant’s competence, [a] court
considers: (1) any history of irrational behavior, (2) the defendant’s demeanor
at trial, and (3) any prior medical opinion on competency.” 214 “If the trial court
received evidence, viewed objectively, that should have raised a reasonable
doubt as to competency, yet failed to make further inquiry, the defendant has



       211 28 U.S.C. § 2254(e)(1).
       212 383 U.S. 375, 385 (1966) (holding that a trial court must hold a competency hearing
when there is evidence before the court that objectively creates a bona fide question as to
whether the defendant is competent to stand trial); see also Roberts v. Dretke, 381 F.3d 491,
497 (5th Cir. 2004) (articulating the holding in Pate v. Robinson).
       213 Roberts v. Dretke, 381 F.3d 491, 497 (5th Cir. 2004) (citation omitted) (citing Pate,

383 U.S. 375 (1966)).
       214 Mata v. Johnson, 210 F.3d 324, 329 (5th Cir. 2000).



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                                         No. 13-70024
been denied a fair trial.” 215 Austin asserts that the state trial court’s failure to
hold a standalone pretrial competency hearing denied him a fair trial. He also
contends that regardless of whether the state trial court’s initial pretrial
finding of competency was proper, the information about his mental health
history presented at trial should have alerted the state trial court then to the
possibility that Austin was not competent—in other words, the information
created a bona fide doubt as to Austin’s competency such that an additional
hearing was necessary.
      Because we conclude that Austin has failed to demonstrate by clear and
convincing evidence that he was not competent to stand trial, waive counsel,
or plead guilty, we similarly reject his procedural claim that the state trial
court was required to hold a pretrial competency hearing and that because it
did not, he was denied a fair trial. In concluding that Austin could waive
counsel and proceed pro se, the state trial court made an implicit finding that
no bona fide doubt as to competency existed and that a standalone competency
hearing was therefore not required. 216 We presume that this factual finding is
correct under § 2254(e)(1) and, as noted above, Austin has failed to overcome
that presumption by clear and convincing evidence. If we were to consider, in
the alternative, the competency determination as a mixed question of law and
fact subject to de novo review, rather than a purely factual finding, Austin has
still failed to demonstrate he was not competent. We therefore conclude that
this procedural claim is without merit.
      Nor is Austin entitled to relief based on his claim that the state trial
court failed to inquire about Austin’s competency adequately after hearing



      215   Id. (citing Carter v. Johnson, 131 F.3d 452, 459 n.10 (5th Cir. 1997)).
      216   See Roberts v. Dretke, 381 F.3d 491, 498 (5th Cir. 2004).
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                                       No. 13-70024
evidence during Austin’s trial about his past mental health issues that
contradicted what Austin had told the court during earlier competency
proceedings. To the extent that this procedural claim, not adjudicated on the
merits by the state court, presents questions of law or mixed questions of law
and fact, we review de novo. 217
       In response to several specific questions from the state trial judge during
the pretrial hearing to consider Austin’s request to proceed pro se, Austin
stated that he had not had mental health issues in the past, and had not been
treated nor received counseling for mental health issues. However, during
trial, contrary evidence was adduced.                   Though this evidence clearly
contradicted what Austin had previously told the state court, the trial court
knew, prior to the pretrial hearing, that Austin had “a very bad problem with
depression” and that Austin contemplated suicide often when depressed. 218
None of the evidence presented during Austin’s capital murder trial
undermines confidence in the state trial court’s well-supported pretrial finding
of competence, a finding based on Austin’s demeanor, Dr. Brown’s evaluation,
the opinion of Austin’s counsel, and the court’s interactions with Austin,
including correspondence from Austin indicating an ability to reason logically
and strategically. As noted above, “[m]ental illness and incompetence . . . are
not necessarily coexistent conditions.” 219           The state trial court’s failure to



       217 See Henderson v. Cockrell, 333 F.3d 592, 598 (5th Cir. 2003).
       218 See CR at 16 (letter from Austin to the trial court before trial).
       219 LaHood v. Davis, 653 F. App’x 253, 263 (5th Cir. 2016) (citing McCoy v. Lynaugh,

874 F.2d 954, 960-61 (5th Cir. 1989); United States v. Williams, 819 F.2d 605, 608 (5th Cir.
1987)); see also Drope v. Missouri, 420 U.S. 162, 181 n.16 (1975) (recognizing that “a suicide
attempt need not always signal ‘an inability to perceive reality accurately, to reason logically
and to make plans and carry them out in an organized fashion’” (quoting David F. Greenberg,
Involuntary Psychiatric Commitments to Prevent Suicide, 49 N.Y.U. L. REV. 227, 236 (1974))).

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                                        No. 13-70024
conduct an additional hearing as to Austin’s competency does not warrant
habeas relief.
                                               C
       Competence to plead guilty or to waive the right to counsel is measured
by the same standard as competence to stand trial. 220 Nonetheless, “[a] finding
that a defendant is competent to stand trial . . . is not all that is necessary
before he may be permitted to plead guilty or waive his right to counsel.” 221 A
trial court must also “satisfy itself that the [defendant’s] waiver of his
constitutional rights is knowing and voluntary.” 222                     Before granting a
defendant’s clear and unequivocal request to proceed pro se, the trial judge
“must caution the defendant about the dangers of such a course of action so
that the record will establish that ‘he knows what he is doing and his choice is
made with eyes open.’” 223 To be voluntary, a plea must “not be the product of
‘actual or threatened physical harm, or . . . mental coercion overbearing the
will of the defendant.’” 224 A defendant pleading guilty must also be competent,
have notice of the charges against him, understand the consequences of his
plea, and have available the advice of competent counsel. 225 To the extent



       220  Godinez v. Moran, 509 U.S. 389, 398 (1993).
       221  Id. at 400.
        222 Id. at 400-01 (“In this sense there is a ‘heightened’ standard for pleading guilty and

for waiving the right to counsel, but it is not a heightened standard of competence.”); see also
Faretta v. California, 422 U.S. 806, 807 (1975) (holding that the Sixth and Fourteenth
amendments include the “right to proceed without counsel” when a criminal defendant
“voluntarily and intelligently elects to do so”).
        223 United States v. Cano, 519 F.3d 512, 516 (5th Cir. 2008) (quoting United States v.

Martin, 790 F.2d 1215, 1218 (5th Cir. 1986)); see also Faretta v. California, 422 U.S. 806
(1975).
        224 Matthew v. Johnson, 201 F.3d 353, 365 (5th Cir. 2000) (quoting Brady v. United

States, 397 U.S. 742, 750 (1970)).
        225 Id.



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                                    No. 13-70024
Austin’s claim involves subsidiary factual determinations made by the state
trial court, we apply § 2254(e)(1)’s presumption of correctness, which Austin
must rebut by clear and convincing evidence. 226 We review de novo questions
of law and mixed questions of law and fact. 227
      Before accepting Austin’s waiver of counsel, the state trial court
confirmed that Austin knew and understood the charges against him, as well
as the possible punishment if convicted. 228 The court informed Austin of his
right to court-appointed counsel and explained the risks and disadvantages to
proceeding pro se. 229    The court also inquired whether Austin’s waiver of
counsel was made voluntarily, intelligently, and knowingly. 230 During this
exchange, Austin explained that he wanted to proceed pro se so that he would
be able to make his own decisions about trial strategy. 231 A defendant has a
“right to conduct his own defense,” even though exercising that right “usually
increases the likelihood of a trial outcome unfavorable to the defendant.” 232
The right to self-representation “is based on the fundamental legal principle
that a defendant must be allowed to make his own choices about the proper
way to protect his own liberty.” 233 Although Austin may not have been trying
to “protect his own liberty,” he clearly expressed to the state trial court his wish
to make his own decisions about trial strategy. An improper denial of Austin’s


      226  See Miller v. Fenton, 474 U.S. 104, 112 (1985) (recognizing the presumption of
correctness to subsidiary fact questions under the prior version of 28 U.S.C. § 2254(d));
Barnes v. Johnson, 160 F.3d 218, 222 (5th Cir. 1998).
       227 See Henderson v. Cockrell, 333 F.3d 592, 598 (5th Cir. 2003).
       228 2RR9.
       229 2RR9-12.
       230 2RR12.
       231 2RR13-14.
       232 Weaver v. Massachusetts, 137 S. Ct. 1899, 1908 (2017) (quoting McKaskle v.

Wiggins, 465 U.S. 168, 177 n.8 (1984)).
       233 Id.



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                                    No. 13-70024
right to self-representation by the state trial court would have amounted to
structural error requiring reversal. 234
       Before accepting Austin’s guilty plea, the state trial court again
confirmed that Austin understood the charges against him and the possible
punishment. 235 It also admonished Austin that he had a right to a jury trial
and asked Austin a series of questions to determine if his plea was
voluntary. 236 The court asked Austin if he was of sound mind. 237 It explained
the consequences of pleading guilty. 238 The court specifically found, based on
its prior evaluation of Austin’s competency to stand trial at the first Faretta
hearing as well as prior conversations with Austin, that Austin was “mentally
competent to enter [a] plea of guilty” and that he was “doing so freely and
voluntarily with full knowledge of the consequences.” 239
       The requirements for a valid guilty plea and waiver of counsel are clearly
met.    Austin contends that his mental illness and the conditions of his
confinement rendered both his guilty plea and his waiver of trial counsel
invalid because they were not knowing and voluntary. 240              In light of our
conclusion that the trial court’s finding of competency was well-supported and
correct even if reviewed de novo as a mixed question of law and fact, the
evidence of depression or other mental illness does not render an otherwise




       234  See id.
       235  9RR4.
        236 9RR4-5 (“Has anyone reached any agreement with you to get you to enter your

plea?”; “Has anybody promised you anything to get you to enter your plea?”; “Has anybody
threatened you to get you to enter your plea?”).
        237 9RR5.
        238 Id.
        239 9RR6.
        240 Austin Br. at 102.



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                                       No. 13-70024
effective waiver involuntary. 241 Similarly, Austin has failed to demonstrate
that the conditions of his confinement rendered his decisions involuntary or
undermined his otherwise effective waiver. Further, Austin’s letter to the trial
court approximately a month before the start of trial reflected he was no longer
dissatisfied with the conditions of his confinement and no longer suffering from
any depression. 242 Even with the complained-of conditions removed, Austin
indicated, consistent with his prior statements to the court, that he would not
contest the charges against him. 243
       As previously noted, Austin has not presented clear and convincing
evidence sufficient to overcome the state trial court’s determination that he
was competent to waive counsel and plead guilty. 244 Our independent review
confirms that Austin’s plea and waiver of counsel were not the product of state
coercion or otherwise rendered involuntary.
                                              V
       Austin contends that his appointed trial counsel for the seven-month
period before he was allowed to proceed pro se was ineffective for failing to
undertake significant discovery or investigation into Austin’s competency, and
for failing to ask Austin more questions at the Faretta hearing (Issue 13). The
district court held that Austin could not show prejudice from counsel’s



       241  See Johnson v. United States, 344 F.2d 401, 403-04 & n.4 (5th Cir. 1965) (separating
the voluntariness inquiry from the mental competence inquiry and determining that because
the trial judge had “carefully, thoroughly, and separately interrogated each of the defendants
to ascertain whether the plea as to each separate indictment was freely, voluntarily, and
understandably made” and had found that each plea was, “there is no suggestion, either in
the records and papers or in the evidence on the 2255 proceeding, which even raises any
question about this conclusion, either then or now”).
        242 See CR at 58.
        243 Id.
        244 28 U.S.C. § 2254(e)(1).



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                                      No. 13-70024
allegedly deficient performance because the evidence supported the state trial
court’s conclusion that Austin was competent. We review the district court’s
conclusions of law and its conclusions of mixed law and fact de novo. 245
      Under the familiar test of Strickland v. Washington, a successful
ineffective assistance of trial counsel claim requires a petitioner to show that
(1) “counsel’s   performance       was    deficient”     and      (2) that   “the   deficient
performance prejudiced the defense.” 246 Trial counsel “has a duty to make
reasonable investigations or to make a reasonable decision that makes
particular investigations unnecessary.” 247 In the context of mental health
investigation, “[t]rial counsel provides deficient performance if he fails to
investigate a defendant’s medical history when he has reason to believe that
the defendant suffers from mental health problems.” 248
      Trial counsel in this case testified that he never doubted his client’s
competence, 249 and, though Austin points to the lack of investigation
performed, he does not allege any facts that would have alerted counsel to the
need to investigate Austin’s competency. As we have stated before, suicidality
and depression are not necessarily indications of incompetence. Additionally,
a mental health evaluation was conducted prior to the Faretta hearing, which
determined Austin to be competent.
      Even if Austin had shown counsel’s failure to investigate to be deficient
performance under Strickland, Austin has wholly failed to support his




      245 Jones v. Cain, 227 F.3d 228, 230 (5th Cir. 2000).
      246 Strickland v. Washington, 466 U.S. 668, 687 (1984).
      247 Id. at 691.
      248 Roberts v. Dretke, 381 F.3d 491, 498 (5th Cir. 2004).
      249 2RR4.



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                                       No. 13-70024
allegation that counsel’s performance prejudiced his defense. 250 Strickland
requires Austin to show a “reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been
different.” 251 Austin is correct that he need only show “a probability sufficient
to undermine confidence in the outcome.” 252 However, he has failed to do so.
His briefing claims that had the district court correctly applied this standard,
he would be entitled to relief.
       We agree with the district court that the evidence presented both to the
state trial court and in post-conviction proceedings strongly supports the state
trial court’s determination that Austin was competent. The fact that Austin
sought the death penalty is not, in and of itself, sufficient to call into serious
doubt his competence to proceed to trial in light of the other evidence before
the court. His letters and colloquy with the judge do not suggest an inability
to understand the proceedings or charges against him. To the contrary, Austin
remained articulate and focused in his aim of representing himself and
refusing to present a defense. 253 The court-ordered independent evaluation
further supports the state trial court’s conclusion that Austin was, in fact,
competent to represent himself at trial. 254 Finally, though Austin details
various psychiatric treatments, interactions with mental health professionals,
and the opinions of experts hired post-conviction, nothing suggests he suffered
any impairment that would bear on his competency to stand trial. 255 Even if




       250Bell v. Cone, 535 U.S. 685, 695 (2002) (“Without proof of both deficient performance
and prejudice to the defense . . . the sentence or conviction should stand.”).
      251 Strickland, 466 U.S. at 694.
      252 Id.
      253 ROA.645-47.
      254 ROA.648.
      255 See ROA.652-54.

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                                      No. 13-70024
the affidavits Austin submitted from medical professionals may be considered
on federal habeas review since they were not presented to the state courts, an
issue we pretermit because we are denying relief on the merits with respect to
this issue, this evidence does not alter our conclusion. Based on our review of
the record, Austin’s assertion that a more thorough investigation would have
cast the competency proceedings in such a different light as to undermine
confidence in their outcome is unpersuasive.
                                             VI
       Austin contends that he did not receive a fair trial because five jurors
gave false or misleading answers during voir dire, indicating that they could
consider mitigating evidence and vote for a life sentence when in fact, they
were pre-disposed to imposing the death penalty (Issue 19). He relies on
statements      from    those     jurors    obtained     during     the    post-conviction
investigation.
                                             A
       “A juror is biased if his ‘views would prevent or substantially impair the
performance of his duties as a juror in accordance with his instructions and his
oath.’” 256 Austin relies upon McDonough Power Equipment, Inc. v. Greenwood,
in which the Supreme Court observed that “[o]ne touchstone of a fair trial is
an impartial trier of fact—‘a jury capable and willing to decide the case solely
on the evidence before it.’” 257           The McDonough Power Equipment case
concerned a direct appeal in a civil, personal injury suit in which the jury found




       256 Hatten v. Quarterman, 570 F.3d 595, 600 (5th Cir. 2009) (quoting Soria v. Johnson,
207 F.3d 232, 242 (5th Cir. 2000)).
       257 McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 554 (1984) (quoting

Smith v. Phillips, 455 U.S. 209, 217 (1982)).

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                                       No. 13-70024
in favor of the defendant. 258 The losing plaintiff contended that a new trial
was required because a juror failed to disclose during voir dire that his son had
sustained a broken leg as a result of the explosion of a truck tire. 259 The
Supreme Court reasoned that “[t]o invalidate the result of a three-week trial
because of a juror’s mistaken, though honest response to a question, is to insist
on something closer to perfection than our judicial system can be expected to
give.” 260 The Court then said, “[w]e hold that to obtain a new trial in such a
situation, a party must first demonstrate that a juror failed to answer honestly
a material question on voir dire, and then further show that a correct response
would have provided a valid basis for a challenge for cause.” 261 The Fifth
Circuit has assumed, without deciding, “that a McDonough theory of juror bias
would be sufficient to obtain federal habeas relief,” 262 and we will do the same
in the present case.
      It is well-settled that a juror who will automatically vote for the death
penalty is challengeable for cause. 263 Austin contends that none of the jurors
indicated during voir dire that he or she would automatically vote for the death
penalty or refuse to consider mitigating evidence and therefore that there was
no reason to challenge any juror for cause. 264                  Austin asserts that his
entitlement to habeas relief can be determined from the transcript of voir dire
when compared to post-trial statements from five jurors made approximately
two years after trial. Austin does not contend that the trial court erred in


      258 Id. at 549-50.
      259 Id. at 550-51.
      260 Id. at 555.
      261 Id. at 556.
      262 Montoya v. Scott, 65 F.3d 405, 419 (5th Cir. 1995).
      263 See, e.g., Morgan v. Illinois, 504 U.S. 719, 729 (1992).
      264 Austin Br. at 109-10.



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                                       No. 13-70024
failing to hold an evidentiary hearing. 265 We will therefore consider only the
voir dire transcript and the post-trial statements.
       Austin asserts that the jurors’ post-trial statements establish that they
misled the trial court during voir dire because the jurors confirmed to the court
that they could consider mitigating evidence, when in fact they would not and
were thus unqualified to serve. 266 The federal district court did not consider
whether Austin’s evidence supported a claim of “actual prejudice,” 267 nor
whether Austin was required to rebut, or had rebutted, by clear and convincing
evidence, 268 any implied finding by the state trial court that the jurors were
unbiased. Nor did the district court consider whether the jurors’ allegedly
misleading answers were due to inadequate questioning on voir dire, or were
a deliberate attempt to mislead the court. 269
       Because of our disposition of the jury bias claim, we will assume, without
deciding, that the state trial court made no express or implied findings that
the jurors were competent and unbiased. We will further assume, without
deciding, that there are no factual issues decided by the state courts to which
AEDPA deference is due under 28 U.S.C. § 2254(e)(1).




       265 Oral Argument at 25:40 (July 12, 2017).
       266 ROA.108-09; Austin Reply Br. at 60.
       267 See Gomez v. United States, 245 F.2d 344 (5th Cir. 1957) (suggesting waivers of

challenges to jurors premised on “actual prejudice” or “fundamental incompetence” differ
from challenges based only on statutory disqualification).
       268 See 28 U.S.C. §2254(e); Virgil v. Dretke, 446 F.3d 598, 610 n.52 (5th Cir. 2006).
       269 See United States v. Scott, 854 F.2d 697, 700 n.12 (5th Cir. 1988) (comparing cases

of deliberate or unreasonable omissions to cases involving inadequate or unspecific
questioning).
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                                No. 13-70024
                                      B
     Austin’s brief in our court focuses primarily upon William Gibbs, one of
the five jurors that Austin contends was biased. Gibbs’s voir dire contained
the following exchanges:
            THE COURT: And if the evidence called for it, [could you]
     answer [the special issues] in such a way that you know a life
     sentence would result?
            GIBBS: Yes.
            THE COURT: I take it, then – and correct me if I’m wrong –
     that you would be guided by the evidence, listen to all of the
     evidence and answer the questions according to the evidence,
     wherever that might take you?
            GIBBS: Yes.
            ...
            PROSECUTION: . . . Tell us first in your own words, what
     are your feelings on the death penalty?
            GIBBS: I am for it and - - I’m for it. I think it’s necessary
     for a crime deterrent, and that’s about it.
            ...
            PROSECUTION: . . . Okay. Can you consider, then, in your
     mind that [the first special issue], depending on the evidence, could
     be answered either yes or no?
            GIBBS: Yes.
            ...
            PROSECUTION: Can you consider that in Issue No. 2 that
     it could be answered in a yes or no fashion?
            GIBBS: Yes.
            ...
            PROSECUTION: . . . Do you feel that you can participate in
     that - - the deliberations, deliberating with the jury and assess the
     death penalty if the law and the evidence supports it?
            GIBBS: Yes.
            ...
            PROSECUTION: . . . are you saying that if you know that
     the defendant is representing himself and you know that he has a
     death wish, if the law and the evidence supports assessing the
     death penalty, are you saying you still could not assess the death
     penalty?
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                                      No. 13-70024
             THE COURT: In other words, if the evidence called for
      answering those questions in such a way that you answered the
      first one yes and the second one no, you know the death penalty
      would result?
             GIBBS: Yes.
             THE COURT: Would the fact that you feel that you would be
      giving a defendant something that he wanted cause you in any way
      to change your answers based on the evidence?
             GIBBS: No.
             THE COURT: So, then, would you - - would you, I guess,
      honor your oath as a juror and base your verdict to those questions
      on the evidence; and if that’s what the evidence proved to you, you
      would answer them in that way?
             GIBBS: Yes.
             THE COURT: Even if you feel like it’s kind of unfair to give
      him what he would want?
             GIBBS: Exactly. That’s just the way that I feel. That’s not
      the way that - - if that’s what the law states, then that’s how, I
      guess, I would have to vote. But I mean - -
             THE COURT: Your personal opinion - -
             GIBBS: Personal feelings, I would have to say no; but I
      would say I would vote the death penalty if that’s what the law
      stated and - -
             THE COURT: And the evidence showed?
             GIBBS: Yes. 270


In his post-trial statement, Juror Gibbs made the following assertions:
            I believe that ‘an eye for an eye’ is correct. If you kill
      someone you should face the death penalty.
            Once someone is guilty of capital murder I believe that the
      only appropriate penalty is the death penalty. I do not think that
      there is anything that would be mitigating so that a person should
      not get the death penalty, this includes the person being insane.
            Once I heard that Perry Austin had admitted to
      intentionally killing a nine year old boy I was only going to vote
      one way—I was going to vote ‘yes’ he was a future danger and ‘no’

      270   5RR32-33, 38-40, 43-44.

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                                       No. 13-70024
      there was nothing mitigating. I was not going to vote for anything
      other than the death penalty. 271


      The voir dire and post-trial statements of the other four jurors are set
forth in section VI(C) below. As noted, Austin relies only on the post-trial
statements to support his contention that each of these jurors was dishonest
in answering questions posed during voir dire. We conclude that the district
court was foreclosed from considering any of the jurors’ post-trial statements
by Federal Rule of Evidence 606(b)(1) and the Supreme Court’s decisions
applying that Rule. Therefore, the district court did not err in failing to grant
habeas relief on Austin’s juror bias claim.
      Rule 606(b)(1) provides:
            (b) During an Inquiry Into the Validity of a Verdict or
      Indictment.
             (1) Prohibited Testimony or Other Evidence. During an
      inquiry into the validity of a verdict or indictment, a juror may not
      testify about any statement made or incident that occurred during
      the jury's deliberations; the effect of anything on that juror's or
      another juror's vote; or any juror's mental processes concerning the
      verdict or indictment. The court may not receive a juror's affidavit
      or evidence of a juror's statement on these matters. 272
      The text of the rule is clear, and it explicitly directs that “a juror may not
testify about . . . the effect of anything on that juror’s . . . vote . . . or any juror’s
mental processes concerning the verdict or indictment.” The Rule further
provides, “[t]he court may not receive a juror’s affidavit or evidence of a juror’s
statement on these matters.” Each of the post-trial statements by jurors comes
within these prohibitions.


      271   Pet. Ex. 65 at 007525-007526.
      272   FED. R. EVID. 606(b)(1).

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                                       No. 13-70024
       The Supreme Court squarely held in Warger v. Shauers that “Rule 606(b)
applies to juror testimony during a proceeding in which a party seeks to secure
a new trial on the ground that a juror lied during voir dire.” 273 The Court
rejected the argument that the inquiry under McDonough “begins and ends
with what happened during voir dire,” and therefore that Rule 606(b) should
be inapplicable. 274 The Court reasoned that “[w]hether or not a juror’s alleged
misconduct during voir dire had a direct effect on the jury’s verdict, the motion
for a new trial requires a court to determine whether the verdict can stand.” 275
The Court further explained:
       [A] party’s right to an impartial jury remains protected despite
       Rule 606(b)’s removal of one means of ensuring that jurors are
       unbiased. Even if jurors lie in voir dire in a way that conceals bias,
       juror impartiality is adequately assured by the parties’ ability to
       bring to the court’s attention any evidence of bias before the verdict
       is rendered, and to employ nonjuror evidence even after the verdict
       is rendered. 276

       The Ninth Circuit has similarly applied Rule 606(b) in a direct criminal
appeal in which a juror’s post-trial affidavit averred that other jurors had
discussed the evidence against the defendant “and made up their minds about
his guilt before the start of deliberations.” 277 In denying relief, the court
explained that “[t]he notion that egregious juror conduct will not necessarily
result in relief from the verdict may seem antithetical to our system of due



       273 Warger v. Shauers, 135 S. Ct. 521, 525 (2014).
       274 Id. at 528 (quoting a party’s brief).
       275 Id.
       276 Id. at 529; see also Tanner v. United States, 483 U.S. 107, 127 (1987) (explaining

that “[t]he suitability of an individual for the responsibility of jury service, of course, is
examined during voir dire,” and “after the trial a party may seek to impeach the verdict by
nonjuror evidence of misconduct”).
       277 United States v. Leung, 796 F.3d 1032, 1034 (9th Cir. 2015).



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                                        No. 13-70024
process.” 278 But the Ninth Circuit discerned that “[t]he Rule . . . exists for good
reason—it protects jurors from harassment and maintains the integrity and
finality of jury verdicts.” 279 The court observed, “[w]hile persistent inquiry into
internal jury processes could ‘in some instances lead to the invalidation of
verdicts reached after irresponsible or improper juror behavior,’ our very
system of trial by jury might not ‘survive such efforts to perfect it.’” 280
       The only exception that the Supreme Court has made to Rule 606(b)(1)’s
prohibitions is “when, after the jury is discharged, a juror comes forward with
compelling evidence that another juror made clear and explicit statements
indicating that racial animus was a significant motivating factor in his or her
vote to convict.” 281 The Court reasoned in Pena-Rodriguez v. Colorado that
“[a]ll forms of improper bias pose challenges to the trial process. But there is
a sound basis to treat racial bias with added precaution.” 282                     The Court
concluded that “[a] constitutional rule that racial bias in the justice system
must be addressed—including, in some instances, after the verdict has been
entered—is necessary to prevent a systemic loss of confidence in jury verdicts,
a confidence that is a central premise of the Sixth Amendment trial right.” 283
There is no suggestion or indication of racial animus or bias in the present




       278  Id. at 1036.
       279  Id.
        280 Id. (quoting Tanner, 483 U.S. at 120); see also United States v. Davis, 960 F.2d 820,

828 (9th Cir. 1992) (rejecting a defendant’s argument in a direct criminal appeal “that his
sixth amendment right to an impartial jury was violated because one juror stated during a
post-trial interview that, ‘[f]rom the first day I knew [Davis] was guilty,’” reasoning that
“[t]he juror’s statement reflects his personal feelings and beliefs concerning Davis” and that
“[t]he statement is insufficient to set aside a verdict”).
        281 Pena-Rodriguez v. Colorado, 137 S. Ct. 855, 861 (2017).
        282 Id. at 869.
        283 Id.



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                                      No. 13-70024
case, and the Supreme Court has not recognized an exception to Rule 606(b)
that would apply to the post-trial statements at issue here.
      In our prior, unpublished opinion in this case granting a COA to Austin
on his jury bias claim, we reasoned:
      [P]ost-trial interviews concern the honesty of statements made by
      the jurors during voir dire—not statements made during
      deliberations, the effect of something on the jurors' votes, or the
      jurors' mental processes concerning the verdict. Rule 606(b) does
      not bar admission of post-trial statements to prove that the jurors
      failed to answer a material question honestly during voir dire. 284

      That analysis was clearly incorrect in light of the Supreme Court’s
decision and reasoning in Warger v. Shauers, and, after full briefing and
plenary consideration, we now disavow our prior reasoning and our discussion
of Rule 606(b) in granting a COA on Austin’s jury bias claim. Though we cited
Warger in a footnote, our analysis of that decision was not in-depth and was
inaccurate. 285
      This court’s decision in Hatten v. Quarterman, 286 which we also cited in
a footnote in our opinion and order granting a COA on Austin’s jury bias
claim, 287 involved unusual circumstances and does not support Austin’s
contention that the post-trial statements at issue are admissible to impeach
the jury’s verdict and require a new trial. In Hatten, questions as to whether
a juror had been truthful during voir dire and was biased were raised in the
midst of trial, before the case was submitted to the jury. 288 The juror in



      284 Austin v. Davis, 647 F. App’x 477, 493 (5th Cir. 2016) (per curiam).
      285 Id. at 493 n.63.
      286 570 F.3d 595 (5th Cir. 2009).
      287 Austin, 647 F. App’x at 493 n.63.
      288 Hatten, 570 F.3d at 600-02.



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                                        No. 13-70024
question testified during a hearing that was held to ascertain whether he had
lied on his juror questionnaire about whether he had a “drug problem,” among
other issues. 289 Though this court discussed the juror’s post-trial affidavit, in
which he stated that that “he did, in fact, have a drug problem at the time of
the trial and that his drug use affected his judgment,” 290 we concluded that his
response to the jury questionnaire had been ambiguous. 291 Importantly to the
issue now before us, we concluded that even if the affidavit called into question
the juror’s truthfulness in responding to the questionnaire, the juror had
actually testified at the hearing during trial about his questionnaire response,
the district court had concluded that the juror’s post-trial affidavit should not
be credited over that testimony, and we found no basis for overturning the
district court’s factual finding in this regard. 292 The salient point is that in
Hatten, there was no actual holding by this court that a post-trial affidavit
could or did impeach a verdict. Only an implication can be drawn from Hatten
that if a post-trial affidavit demonstrated a juror’s bias, the affidavit could be
used to impeach the verdict and a new trial would be necessary. An implication
is not a holding. In any event, to the extent that it could be argued that Hatten
contained such a holding, Hatten is inconsistent with the Supreme Court’s




       289  Id.; see also id. at 600 (reflecting that the claims in the subsequent federal habeas
proceeding were that “Hatten [the defendant] complains that Hollins's [the juror’s] bias is
reflected by the facts that: (a) Hollins lied on his juror questionnaire and during his
questioning regarding his drug use; (b) Hollins concealed the scope of his relationship with
Isaac Robinson, the victim's father, and with Hatten's [the defendant’s] stepfather; and (c)
Hollins [the juror] was threatened with prosecution during trial and consequently must have
favored the prosecution”).
        290 Id. at 602.
        291 Id.
        292 See id.



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                                      No. 13-70024
subsequent decision in Warger and the Supreme Court’s explication of Warger
and Tanner in Pena-Rodriguez. 293
       The post-trial statements of the five jurors are inadmissible by virtue of
Rule 606(b). Austin has no other evidence that any of these jurors were less
than candid during voir dire. Austin’s jury bias claim therefore fails.
                                             C
       As an alternative basis for affirming the district court’s judgment with
respect to Austin’s juror bias claim, we conclude that even were the jurors’ post-
trial statements admissible, Austin has not demonstrated that a juror “failed
to answer honestly a material question on voir dire,” and “that a correct
response would have provided a valid basis for a challenge for cause.” 294
       Two special issues were to be submitted to the jury, and potential jurors
were questioned about these issues during voir dire. The first special issue
was “[d]o you find from the evidence beyond a reasonable doubt that there is a
probability that the defendant, Perry Allen Austin, would commit criminal acts
of violence that would constitute a continuing threat to society.” 295 The second
special issue was “[d]o you find from the evidence, taking into consideration all
of the evidence, including the circumstances of the offense, the defendant's
character and background, and the personal moral culpability of the
defendant, Perry Allen Austin, that there is a sufficient mitigating



       293  See Pena-Rodriguez v. Colorado, 137 S. Ct. 855, 865-67 (2017) (observing that
“since the enactment of Rule 606(b), the Court has addressed the precise question whether
the Constitution mandates an exception to it in just two instances” and noting that the Sixth
Amendment did not require an exception in either instance) (citing Warger v. Shauers, 135
S. Ct. 521, 529 (2014) and Tanner v. United States, 483 U.S. 107, 125 (1987)).
        294 McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 556 (1984).
        295 Pet. Ex. 36 at 001611; see also TEX. CODE CRIM. PROC. ANN. art. 37.071 § 2(b)(1)

(West Supp. 2002).

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                                     No. 13-70024
circumstance or circumstances to warrant that a life imprisonment rather than
a death sentence be imposed.” 296
      Before we consider each of the five jurors’ specific voir dire and post-trial
statements, we note that none of these jurors was asked if he or she could
consider a specific type of mitigation evidence or categories of mitigation
evidence. They were only asked whether they could potentially answer the
special issues so as to impose a life sentence if the law and evidence so required.
We also note that the record reflects that the murder victim’s age, nine years
old, was not revealed to the jurors until the punishment phase commenced,
which was after voir dire had been completed. 297
      Juror Erwin
      The relevant portion of Juror Erwin’s voir dire consisted of the following
exchanges:
            THE COURT: And if the evidence called for it, [could you]
      answer [the special issue] in such a way that you know a life
      sentence would result?
            ERWIN: Yes.
            THE COURT: I take it, then, sir, that you would listen to the
      evidence, follow the law and be guided by the evidence and the law,
      wherever that might take you in this trial?
            ERWIN: Whatever that is, yes.
            ...
            ERWIN: There’s a few cases I think you should get the death
      penalty, but that’s just me.
            PROSECUTION: Okay, and that would be what? What cases
      would those be?
            ERWIN: Anything had to do with hurting the elderly - -
            PROSECUTION: Okay.
            ERWIN: - - or kids.


      296 Pet. Ex. 36 at 001612; see also TEX. CODE CRIM. PROC. ANN. art. 37.071 § 2(e)(1)
(West Supp. 2002).
      297 9RR17.

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                                       No. 13-70024
            PROSECUTION: Children?
            ERWIN: Children
            ...
            PROSECUTOR: Okay. Can you see how Special Issue No. 2
      can be answered either yes or no depending on what evidence you
      hear in the courtroom?
            ERWIN: Yes. 298
Erwin’s post-trial statement included the following:
             I believe that if you are found guilty of capital murder the
      only appropriate penalty is the death penalty. The only thing that
      would make that different is if the person was insane.
             After Perry Austin admitted he did the murder the case was
      pretty simple. He wanted the death penalty and we were happy to
      give it to him. 299

      The first paragraph of the post-trial statement reflects Erwin’s beliefs as
of the date of the statement. It does not say that Erwin held these beliefs at
the time of voir dire. Two years after a trial, a juror’s beliefs may have changed,
particularly after participating in a capital trial and voting to impose a death
sentence.       But even if Erwin thought during voir dire that the only
circumstance warranting a life sentence as opposed to a death sentence would
be insanity when the crime was committed, his responses to the questions he
was asked during voir dire are consistent with that view. He was not asked to
identify what factors would cause him to vote in favor of a life sentence. He
was only asked if there were circumstances in which he could vote for a life
sentence, and his post-trial statement confirms that there was at least one such
circumstance.




      298   4RR18-31.
      299   Pet. Ex. 68 at 007541-007542.
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                                No. 13-70024
      The second paragraph of the post-trial statement does not contradict
anything that Erwin said in response to questions during voir dire. Nothing
in the second paragraph is an assertion that the evidence called for a life
sentence but that Erwin ignored that evidence. Erwin was not required to vote
for a life sentence simply because there was mitigating evidence.        Austin
admitted to murdering a child, and during his pro se closing statement, Austin
himself set forth facts that he said supported answering the two special issues
in a way that would result in a death sentence. Erwin’s brief characterization
in his post-trial statement of why the jury voted as it did does not contradict
anything that Erwin said during voir dire. In fact, Erwin candidly revealed
during voir dire that he thought that someone who killed an elderly person or
a child should receive the death penalty. We do not consider whether there
may have been cause to strike Erwin based on his voir dire testimony or his
post-trial statement because Austin has not met the first prong of McDonough,
that Erwin was dishonest during voir dire. There is no evidence of dishonesty.
      Juror Condon
      Juror Condon’s voir dire contained the following relevant exchanges:
            THE COURT: And if the evidence called for it, [could you]
      answer [the special issues] in such a way that you know a life
      sentence would result?
            CONDON: Yes.
            THE COURT: All right. I take it, Mr. Condon, your feelings
      are that you would listen to everything, be guided by the evidence
      and the law, wherever that might take you?
            CONDON: Yes.
            ...
            PROSECUTION: . . . Can you tell us in your own words
      what your feelings are on the death penalty?
            CONDON: Well, I feel that in certain cases it’s justifiable
      punishment for - - never been asked to put it in words, I guess. If


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                                     No. 13-70024
     someone commits a premeditated act of violence against someone
     else, I think it’s justifiable they be repaid in kind.
            ...
            PROSECUTION: . . . Could you participate in the jury
     deliberations and assessing the death penalty if the evidence and
     the law directs you to?
            CONDON: Yes.
            ...
            PROSECUTION: Okay. Do you understand - - can you
     perceive that [the second special] issue could be answered either
     yes or no as well?
            CONDON: Yes.
            ...
            PROSECUTION: . . . Let’s say you were king of the world. If
     you were the king, would your kingdom have a death penalty?
            CONDON: Yes.
            PROSECUTION: And why?
            CONDON: I just feel that certain crimes deserve the
     ultimate punishment, I guess. 300


In his post-conviction statement, Condon made the following assertions:
           For me, if somebody is not insane and kills somebody,
     especially a child, the only appropriate penalty is the death
     penalty. Other than showing that it was an accident or the person
     was insane I do not think that any other considerations are
     relevant. If you are found guilty of capital murder you should get
     the death penalty.
     ...
           When I was asked at the time the jury was selected whether
     I could consider voting for life I said yes and I was thinking about
     a situation where someone was insane and did not know what they
     were doing. 301




     300   5RR5-17.
     301   Pet. Ex. 67 at 007533-007534, 007537-007538.
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                                 No. 13-70024
      The first paragraph of the post-trial statement reflects Condon’s views
as of the date of the statement. It does not say that Condon held these view
during voir dire. But even if he held those views during voir dire, nothing in
the first paragraph or the second paragraph contradicts Condon’s voir dire
testimony. When asked to “tell us in your own words what your feelings are
on the death penalty,” Condon responded, “[i]f someone commits a
premeditated act of violence against someone else, I think it’s justifiable they
be repaid in kind.” That is a categorical statement. It is entirely consistent
with both the first and second paragraphs of Condon’s post-trial statement, as
is Condon’s statement during voir dire that “I just feel that certain crimes
deserve the ultimate punishment.” Condon was not asked during voir dire
whether the only circumstance that would cause him to vote for a life sentence
would be the insanity of the defendant. Austin has not established the first
requirement of McDonough, which is that Condon failed to answer honestly a
material question.
      Juror Gibbs
      Gibbs’s voir dire contained the following exchanges:
             THE COURT: And if the evidence called for it, [could you]
      answer [the special issues] in such a way that you know a life
      sentence would result?
             GIBBS: Yes.
             THE COURT: I take it, then – and correct me if I’m wrong –
      that you would be guided by the evidence, listen to all of the
      evidence and answer the questions according to the evidence,
      wherever that might take you?
             GIBBS: Yes.
             ...
             PROSECUTION: . . . Tell us first in your own words, what
      are your feelings on the death penalty?
             GIBBS: I am for it and - - I’m for it. I think it’s necessary
      for a crime deterrent, and that’s about it.

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                             No. 13-70024
         ...
         PROSECUTION: . . . Okay. Can you consider, then, in your
  mind that [the first special issue], depending on the evidence, could
  be answered either yes or no?
         GIBBS: Yes.
         ...
         PROSECUTION: Can you consider that in Issue No. 2 that
  it could be answered in a yes or no fashion?
         GIBBS: Yes.
         ...
         PROSECUTION: . . . Do you feel that you can participate in
  that - - the deliberations, deliberating with the jury and assess the
  death penalty if the law and the evidence supports it?
         GIBBS: Yes.
         ...
         PROSECUTION: . . . are you saying that if you know that
  the defendant is representing himself and you know that he has a
  death wish, if the law and the evidence supports assessing the
  death penalty, are you saying you still could not assess the death
  penalty?
         THE COURT: In other words, if the evidence called for
  answering those questions in such a way that you answered the
  first one yes and the second one no, you know the death penalty
  would result?
         GIBBS: Yes.
         THE COURT: Would the fact that you feel that you would be
  giving a defendant something that he wanted cause you in any way
  to change your answers based on the evidence?
         GIBBS: No.
         THE COURT: So, then, would you - - would you, I guess,
  honor your oath as a juror and base your verdict to those questions
  on the evidence; and if that’s what the evidence proved to you, you
  would answer them in that way?
         GIBBS: Yes.
         THE COURT: Even if you feel like it’s kind of unfair to give
  him what he would want?
         GIBBS: Exactly. That’s just the way that I feel. That’s not
  the way that - - if that’s what the law states, then that’s how, I
  guess, I would have to vote. But I mean - -
         THE COURT: Your personal opinion - -
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                                     No. 13-70024
            GIBBS: Personal feelings, I would have to say no; but I
      would say I would vote the death penalty if that’s what the law
      stated and - -
            THE COURT: And the evidence showed?
            GIBBS: Yes. 302

In his post-trial statement, Juror Gibbs made the following assertions:
            I believe that ‘an eye for an eye’ is correct. If you kill
      someone you should face the death penalty.
            Once someone is guilty of capital murder I believe that the
      only appropriate penalty is the death penalty. I do not think that
      there is anything that would be mitigating so that a person should
      not get the death penalty, this includes the person being insane.
            Once I heard that Perry Austin had admitted to
      intentionally killing a nine year old boy I was only going to vote
      one way—I was going to vote ‘yes’ he was a future danger and ‘no’
      there was nothing mitigating. I was not going to vote for anything
      other than the death penalty. 303


      The first two paragraphs reflect Gibbs’ belief as of the date of his
statement. They are not evidence that he held these views during voir dire.
The third paragraph reflects Gibbs’ weighing of all the evidence. As discussed
above, there is no evidence that before or during voir dire, Gibbs had “heard
that Perry Austin had admitted to intentionally killing a nine year old boy.”
The record reflects that D.K.’s age was not in evidence until after voir dire. 304
When the facts were presented during trial, Austin gave the fact that Austin
intentionally killed a nine-year-old child controlling weight. He did not say he
would do otherwise in his voir dire testimony.
      Juror Tamayo



      302 5RR32-33, 38-40, 43-44.
      303 Pet. Ex. 65 at 007525-007526.
      304 9RR17.

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                              No. 13-70024
        The relevant portions of juror Tamayo’s voir dire are as follows:
         THE COURT: And I guess the other part of that would be if
  the evidence called for it, could you answer [the special issues] in
  such a way that a life sentence would result?
         TAMAYO: Yeah.
         THE COURT: So I guess my question is can you assure us
  that you would be guided by the evidence and the law and answer
  those questions accordingly, regardless of which result it might be?
         TAMAYO: Yeah.
         THE COURT: Yeah?
         TAMAYO: Yes.
         ...
         PROSECUTION: Well, why don’t you tell me in your own
  words what you think of the death penalty and what purpose do
  you think it serves?
         TAMAYO: Well, I think it’s working. I’m for it.
         ...
         PROSECUTION: . . . You may hear something that’s
  sufficient enough for you that you think even though he’s a capital
  murderer and he’s probably going to be dangerous, he ought to
  receive life instead of death. Okay. Does that question make sense
  to you?
         TAMAYO: It does.
         ...
         PROSECUTION: If you were the king and it’s your kingdom
  and you get to write the laws, would your kingdom have a death
  penalty?
         TAMAYO: Well, yeah. I think, yeah, it would.
         PROSECUTION: Why?
         TAMAYO: Because if, you know, the evidence proves that
  he’s going to keep, you know, having - - making trouble and stuff,
  well, then get rid of him, forget it.
         ...
         PROSECUTION: . . . Hypothetically, let’s assume during
  the course of the trial, if you’re selected to sit on the jury, you find
  out not only that he’s representing himself but that he has a death
  wish. He’s not asking any questions. He just sits there, and he
  wants y’all to give him the death penalty. How does that make you
  feel?

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                                     No. 13-70024
            TAMAYO: Well, it’s not whether he wants it or not. It’s just
       whether it’s given to him or not.
            PROSECUTION: Based on the law and evidence?
            TAMAYO: Right. 305
Juror Tamayo’s post-trial statement contained the following:
             The death penalty is especially appropriate for child killers.
       I do not consider mental illness to be mitigation because it is too
       easy for defendants to lie and manipulate circumstances. 306


       Tamayo’s post-trial statement does not say that he held these views
during voir dire. The statement reflects his beliefs two years after trial. In
any event, the statement expresses the weight that Tamayo would give to two
factors. His belief that the death penalty is especially appropriate for child
killers and that he does not consider mental illness to be mitigating is simply
how he weighs such evidence. He does not consider mental illness to be “a
sufficient mitigating circumstance,” and the special issue asked only if there is
“a sufficient mitigating circumstance or circumstances.” If Austin’s position
were correct, a prospective juror would be required to confirm during voir dire
that he or she would vote for a life sentence if there were evidence of mental
illness, at least in some circumstances. Neither the law nor the issues put to
Austin’s jury requires this. The Supreme Court has long recognized that
evidence of mental illness is a two-edged sword when a jury is deciding whether
a death sentence is appropriate. 307
       Juror Finnegan
       Juror Finnegan’s voir dire proceeded, in relevant part, as follows:


       305 5RR46-60.
       306 Pet. Ex. 85 at 007645.
       307 See Brewer v. Quarterman, 550 U.S. 286, 292-93 (2007) (“As did Penry's, Brewer's

mitigating evidence served as a ‘two-edged sword’ because it tended to confirm the State's
evidence of future dangerousness as well as lessen his culpability for the crime.”).
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                              No. 13-70024
          THE COURT: And, on the other hand, if the evidence called
  for it, [could you] answer [the special issues] in such a way that a
  life sentence would result?
          FINNEGAN: Absolutely.
          THE COURT: All right. So then I take it, Mr. Finnegan,
  what you’re telling us is that you would listen to all of the evidence,
  follow the law and answer those questions according to the law and
  the evidence, wherever that might lead you?
          FINNEGAN: Absolutely.
          ...
          PROSECUTION: Okay. Is there anything about your
  experience working with the F.B.I. or having been a police officer
  for as many years as you had that would affect your ability to be a
  juror in a criminal case?
          FINNEGAN: I’d say no.
          PROSECUTION: Okay. Anything about your experience in
  law enforcement dealing with defense attorneys or prosecutors
  that would affect your ability to be a juror in a criminal case?
          FINNEGAN: No. Purely professional.
          PROSECUTION: Okay. All right. Now, why don’t you tell
  me, Mr. Finnegan, if you will, what your feelings are about the
  death penalty and what purpose do you think it serves in our
  society?
          FINNEGAN: Feelings?
          PROSECUTION: Yes, sir.
          FINNEGAN: First, it’s a necessary evil - -
          PROSECUTION: Okay.
          FINNEGAN: - - I would say. And the reason being is that
  I’m a - - what right do I have to take another life? However, along
  those same lines, there are certain crimes which I consider heinous
  crimes which I think the person, if he or she has absolutely no
  remorse and possesses [sic] a continuing threat, I could absolutely
  be in favor of.
          PROSECUTION: . . . [W]hen you say “heinous crimes,” what
  types of offenses came to your mind where you thought the death
  penalty might be appropriate?
          FINNEGAN: Violent crimes against a child.
          PROSECUTION: Okay.



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                                      No. 13-70024
              FINNEGAN: That would be, you know - - and purely
       innocent type of victim without any defense, something along those
       lines. That’s what first issue came to my mind.
              ...
              PROSECUTION: Can you see how special issue No. 2 can be
       answered yes or no just depending on what you hear in the
       courtroom?
              FINNEGAN: I do. 308

In his post-trial statement, Juror Finnegan made the following assertions:
             I believe that once Austin was found guilty of the murder of
       the victim the only appropriate sentence was death in accordance
       with Texas law. I believe that the prosecutors chose me to be on
       Austin’s jury because Perry wanted to die and Perry knew that
       with me working in law enforcement I would sentence him to
       death. Perry allowed me to stay on his jury. 309

       Nothing in Finnegan’s post-trial statement indicates that he was
dishonest in responding to questions during voir dire. Finnegan’s statement
refers to “the victim,” not murder victims generically. Finnegan did not say
that he would automatically vote for the death penalty in every case. 310 The
victim in this case was a nine-year-old boy. For the reasons discussed above,
Finnegan’s post-trial statement is evidence of the weight that he gave to the
nature of the crime, not evidence that Finnegan failed to respond truthfully to
inquiries during voir dire.
       None of the post-trial statements establish that a juror answered a
question dishonestly during voir dire.




       308 5RR66-83.
       309 Pet. Ex. 94 at 007738-007739.
       310 See Morgan v. Illinois, 504 U.S. 719, 729 (1992) (“A juror who will automatically

vote for the death penalty in every case will fail in good faith to consider the evidence of
aggravating and mitigating circumstances as the instructions require him to do.”).
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                                       No. 13-70024
                                             VII
       Austin contends that the district court erred in denying his request for
an evidentiary hearing (Issue 1). Section 2254(e)(2) controls whether a habeas
petitioner may receive an evidentiary hearing in federal district court on the
claims for which the applicant failed to develop the factual basis in state
courts. 311 It “constrains the discretion of district courts to grant evidentiary
hearings,” even “[w]here section 2254(d) does not apply.” 312 The phrase “failed
to develop” means a “lack of diligence, or some greater fault, attributable to the
prisoner or the prisoner’s counsel.” 313
       The parties dispute whether Austin was diligent in pursuing his
competency claims, such that § 2254(e)(2) does not apply. We need not resolve
the issue with regard to Austin’s incompetency claims. “A district court may
refuse an evidentiary hearing where there is not ‘a factual dispute which, if
resolved in [the prisoner’s] favor, would entitle him to relief.’” 314 We note that
the district court granted Austin time and funding to investigate his claims, 315
and concluded that an evidentiary hearing was unnecessary to resolve the
claims presented in his petition. 316 Austin still fails to adduce evidence that
creates a factual dispute that, if resolved in his favor, would entitle him to
relief on his competency claim.            Austin’s experts certainly opine that he


       311 Williams v. Taylor, 529 U.S. 420, 429 (2000); Norman v. Stephens, 817 F.3d 226,
234 (5th Cir. 2016).
       312 Loden v. McCarty, 778 F.3d 484, 494 (5th Cir. 2015); see also Cullen v. Pinholster,

563 U.S. 170, 185-86 (2011) (“At a minimum, . . . § 2254(e)(2) still restricts the discretion of
federal habeas courts to consider new evidence when deciding claims that were not
adjudicated on the merits in state court.”).
       313 Norman, 817 F.3d at 234 (quoting Williams, 529 U.S. at 432).
       314 Id. at 235 (quoting Clark v. Johnson, 202 F.3d 760, 766 (5th Cir. 2000)).
       315 ROA.1915; ROA.1924.
       316 ROA.2747-48; ROA.2766 (noting that the court would “call for an evidentiary

hearing if it determines that one is necessary”).

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                                        No. 13-70024
suffered from depression and suicidality. But, as previously discussed, mere
presence of mental illness does not render a defendant incompetent. The
district court did not abuse its discretion in denying an evidentiary hearing on
the issue of competence.
       With respect to the jury bias claim, it appears that Austin pursued an
evidentiary hearing in the federal district court only on the issue of
competence. 317 Austin now concedes that further factual development with
regard to his juror bias claim is not necessary. 318                   However, out of an
abundance of caution, and to the extent he sought an evidentiary hearing in
relation to his juror bias claims in his briefing in our court, 319 we address
whether the district court erred in failing to conduct an evidentiary hearing
regarding juror bias. We conclude that the district court did not abuse its
discretion in denying an evidentiary hearing.
       We can determine from the record that the post-trial juror statements at
issue can be reconciled with each juror’s statements during voir dire. Further
factual development in an evidentiary hearing is not warranted. Austin does
not identify another factual dispute regarding his juror bias claim which might
independently require further factual development.
                                          *         *        *
       For the foregoing reasons, we AFFIRM the district court’s judgment
denying relief on Austin’s claims.




       317  ROA.2126-31 (motion for evidentiary hearing); ROA.2133 (exhibit list for Austin’s
motion showing exhibits appearing to relate only to Austin’s mental health).
        318 Oral Argument at 25:40 (July 12, 2017).
        319 Austin Br. at 47 (“Another factual dispute requiring relief if decided in Petitioner’s

favor is whether jurors in the case were biased, in particular, whether the disqualifying bias
they now express was present at the time of trial.”).
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                                      No. 13-70024
PRISCILLA R. OWEN, Circuit Judge, concurring:
       I write separately to provide additional reasons that habeas relief should
be denied in this case.
                                             I
       In Pena–Rodriguez, the Supreme Court observed that before Rule
606(b)’s adoption the Court had “noted the possibility of an exception to the
[common-law no-impeachment rule] in the ‘gravest and most important
cases.’” 1 “Yet since the enactment of Rule 606(b),” the Court continued, it “has
addressed the precise question whether the Constitution mandates an
exception to [the common-law no-impeachment rule] in just two instances.” 2
Those two instances were Tanner, 3 in which “the Court rejected a Sixth
Amendment exception for evidence that some jurors were under the influence
of drugs and alcohol during the trial,” 4 and Warger, 5 in which “[t]he Court
again rejected the argument that, in the circumstances there, the jury trial
right required an exception to the no-impeachment rule.” 6 The Court had
noted in Warger that “[t]here may be cases of juror bias so extreme that, almost
by definition, the jury trial right has been abridged. If and when such a case
arises, the Court can consider whether the usual safeguards are or are not
sufficient to protect the integrity of the process.” 7 Neither the Supreme Court




       1 Pena–Rodriguez v. Colorado, 137 S. Ct. 855, 865-66 (2017) (quoting United States v.
Reid, 12 How. 361, 366, 13 L. Ed. 1023 (1852) and McDonald v. Pless, 238 U.S. 264, 269
(1915)).
       2 Id.
       3 Tanner v. United States, 483 U.S. 107 (1987).
       4 Pena–Rodriguez, 137 S. Ct. at 866 (citing Tanner, 483 U.S. at 125).
       5 Warger v. Shauers, 135 S. Ct. 521 (2014).
       6 Pena–Rodriguez, 137 S. Ct. at 866 (citing Warger, 135 S. Ct. at 529).
       7 Warger, 135 S. Ct. at 529 n.3.

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                                  No. 13-70024
nor this court has recognized an exception to Rule 606(b) in a case like the
present one.
      An exception to the no-impeachment rule should not be recognized here.
Even assuming arguendo that one or more of the five jurors answered a
material question dishonestly during voir dire, habeas relief remains
unwarranted. The record amply supports, and in fact compels, the conclusion
that Austin had resolved to accept all jurors that the State accepted and that
if, during voir dire, the five jurors had expressed the views contained in their
post-trial statements, Austin would not have challenged any of those jurors for
cause, because Austin’s trial strategy was to obtain the death penalty. Austin
cannot now claim in a habeas proceeding that had he known the jurors’ actual
views, or had he known that they had predilections and a bias in favor of the
death penalty, he would have challenged them for cause and thereby preserved
the issue for appeal or collateral review. The record is clear that he would not
have challenged any of the five jurors for cause during the trial even had there
been a basis for doing so.
      It is undisputed that when voir dire occurred, Austin intended to plead
guilty, and after the jurors were seated, Austin entered a guilty plea in their
presence.   The jury was empaneled only to decide whether Austin would
receive a life sentence or a death sentence. During closing arguments, Austin
personally argued to the jury that, because of the nature of his crime and
because of his past and future dangerousness, it should answer the two
questions submitted in a way that would require imposition of the death
penalty. The Supreme Court has never held that, consistent with a defendant’s
trial strategy, a defendant may knowingly accept a biased juror and then, after
a change of heart in collateral proceedings, obtain automatic reversal because
of that juror’s bias.
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                                        No. 13-70024
       To the contrary, the Supreme Court explained in McDonough Power
Equipment, Inc. v. Greenwood, the primary case on which Austin relies, that
“[i]t is not clear from the opinion of the Court of Appeals whether the
information stated in Greenwood’s affidavit was known to respondents or their
counsel at the time of the voir dire examination.” 8 Importantly, the Court
admonished that “[i]f it were, of course, [defendants] would be barred from
later challenging the composition of the jury when they had chosen not to
interrogate [the potentially biased juror] further upon receiving an answer
which they thought to be factually incorrect.” 9 The Supreme Court cited a
decision from the Eighth Circuit in support of this conclusion, 10 which held
that “‘[t]he right to challenge the panel or to challenge a particular juror may
be waived, and in fact is waived by failure to seasonably object.’” 11 The Eighth
Circuit explained that
       It is established that failure to object at the time the jury is
       empaneled operates as a conclusive waiver if the basis of the
       objection is known of [sic] might have been known or discovered
       through the exercise of reasonable diligence, or if the party is
       otherwise chargeable with knowledge of the ground of the
       objection. 12



       8 McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548, 550 n.2 (1984).
       9 Id.
       10 Id. (citing Johnson v. Hill, 274 F.2d 110, 115-116 (8th Cir. 1960)).
       11 Johnson, 274 F.2d at 116 (quoting Batsell v. United States, 217 F.2d 257, 260 (8th

Cir. 1954) (citing Carruthers v. Reed, 102 F.2d 933, 939 (8th Cir. 1939))).
       12 Id. (quoting Batsell, 217 F.2d at 260 (citing 50 C.J.S. Juries § 251)); see also United

States v. Pennington, 168 F.3d 1060, 1067 (8th Cir. 1999) (holding in a direct criminal appeal
that the defendant “waived this [juror bias] issue by not challenging the juror when the jury
was empaneled because the basis for the objection was then known”). But see Franklin v.
Anderson, 434 F.3d 412, 426-28 (6th Cir. 2006) (holding in a habeas proceeding that a juror
“was biased because she could not understand the law,” that “[t]here is no situation under
which the impaneling of a biased juror can be excused,” that “the State can [accordingly]
make no argument that [the defendant’s] trial counsel acted strategically in keeping [the

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                                         No. 13-70024
Similarly, the Eleventh Circuit has held that reversal of a verdict is
inappropriate when a defendant permits a potentially or actually biased juror
to be seated as part of trial strategy. 13
       The point of citing these authorities is twofold. First, Austin may well
have elicited the same information that is contained in the jurors’ post-trial
statements had he questioned these jurors during voir dire. 14 Second, and
more importantly, even had the jurors expressed during voir dire what they
said in their post-trial statements, Austin would have had to have asserted a
challenge for cause to have preserved a claim of juror bias for consideration on
appeal or in a habeas proceeding. The record establishes that Austin would
not have challenged them for cause.
       Prior to trial Austin declared that he would accept every juror that the
State accepted and that he would not exercise any peremptory challenges. 15
During voir dire at least two of the jurors that Austin now contends were biased
made statements that should have at least prompted inquiry, if not challenges
for cause, by Austin regarding bias or pre-judgment of the issues to be decided
by the jury.
       During the voir dire of Juror Erwin, the following exchange occurred:
             ERWIN: There’s a few cases I think you should get the death
       penalty, but that’s just me.



biased juror] on the panel” and that “[t]o permit this would be to allow trial counsel to waive
the defendant’s right to an impartial jury”).
        13 See generally United States v. Simmons, 961 F.2d 183, 186 (11th Cir. 1992) (holding

that a district court did not commit plain error by failing to excuse, sua sponte, certain jurors
for cause, because defense counsel’s failure to exercise two remaining peremptory strikes
“may well have been a strategic decision to retain the four jurors in question”).
        14 See generally Robinson v. Monsanto Co., 758 F.2d 331, 335 (8th Cir. 1985) (holding

in a civil case that “the right to challenge a juror is waived by failure to object at the time the
jury is empaneled if the basis for objection might have been discovered during voir dire”).
        15 See generally Reporter’s Record vols. 3-8; CR at 20.

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                                No. 13-70024
            PROSECUTION: Okay, and that would be what? What
      cases would those be?
            ERWIN: Anything had to do with hurting the elderly—
            PROSECUTION: Okay.
            ERWIN: —or kids.
            PROSECUTION: Children?
            ERWIN: Children.

      Similarly, during the voir dire of Juror Finnegan, this exchange
occurred:
             PROSECUTION: Okay. All right. Now, why don’t you tell
      me, Mr. Finnegan, if you will, what your feelings are about the
      death penalty and what purpose do you think it serves in our
      society?
             FINNEGAN: Feelings?
             PROSECUTION: Yes, sir.
             FINNEGAN: First, it’s a necessary evil—
             PROSECUTION: Okay.
             FINNEGAN: —I would say. And the reason being is that I’m
      a—what right do I have to take another life? However, along those
      same lines, there are certain crimes which I consider heinous
      crimes which I think the person, if he or she has absolutely no
      remorse and possesses [sic] a continuing threat, I could absolutely
      be in favor of.
             PROSECUTION: [W]hen you say “heinous crimes,” what
      types of offenses came to your mind where you thought the death
      penalty might be appropriate?
             FINNEGAN: Violent crimes against a child.
             PROSECUTION: Okay.
             FINNEGAN: That would be, you know—and purely innocent
      type of victim without any defense, something along those lines.
      That’s what first issue came to my mind.

      Though Austin’s sentence for the murder of a child would depend on the
jury’s findings in favor of either life or death, Austin remained silent
throughout voir dire. He has offered no reason for failing to question Erwin or
Finnegan as to the views they expressed during voir dire regarding the death

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                                       No. 13-70024
penalty when a child was the victim.                 He has not asserted in habeas
proceedings that his counsel (himself) was ineffective for failing to question
these jurors during voir dire or for failing to challenge them for cause. His only
contention is that, if he had known during voir dire the substance of the five
jurors’ post-trial statements, he would have had grounds to challenge each of
them for cause. If grounds to remove them for cause did exist, and had those
grounds been revealed during voir dire, then it would have been incumbent
upon Austin actually to raise challenges for cause. Otherwise, as the Eighth
Circuit cogently explained, “‘[i]f a defendant is allowed to . . . forego challenges
for-cause to a biased juror and then allowed to have the conviction reversed on
appeal because of that juror’s service, that would be equivalent to allowing the
defendant to plant an error and grow a risk-free trial.’” 16
       It rings hollow for Austin now to contend that had he known the five
jurors’ views he would have challenged them for cause. Austin’s actions, and
more importantly inactions, in declining to ask any questions during voir dire,
deciding before trial to accept all jurors the State accepted, and declining to
exercise any preemptory challenges are entirely consistent with his trial
strategy, which he set forth in letters to the trial court. Prior to trial, Austin
advised the trial court that he was “still firm about [his] decision to not fight
this case” and that “since [he was] not going to put up any type of defense,” he
had “decided that it [was] not necessary for [him] to review [his] case file.” 17
       The Supreme Court has never held that juror bias is structural error
requiring automatic reversal. In addition to its discussion in McDonough, 18


       16 United States v. Johnson, 688 F.3d 494, 501-02 (8th Cir. 2012) (quoting United
States v. Brazelton, 557 F.3d 750, 755 (7th Cir. 2009) (internal quotations marks and citations
omitted)).
       17 CR at 58 (letter from Austin to the trial court dated Feb. 19, 2002).
       18 McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 550 n.2 (1984).

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                                     No. 13-70024
the Supreme Court has indicated that when grounds for cause to challenge a
juror are apparent, the defendant must properly preserve his right to challenge
for cause.
      In Ross v. Oklahoma, a defendant in a capital case moved to excuse a
potential juror for cause because that member of the venire “declared that if
the jury found [the defendant] guilty, he would vote to impose death
automatically.” 19 When the trial court refused to excuse the potential juror for
cause, the defendant exercised a peremptory challenge to prevent the seating
of that individual on the jury. 20 The Supreme Court’s actual holding in Ross
was that the trial court had erred in refusing to strike the person for cause, but
the Court “reject[ed] the notion that the loss of a peremptory challenge
constitutes a violation of the constitutional right to an impartial jury” because
“[w]e have long recognized that peremptory challenges are not of constitutional
dimension.” 21 The Court concluded that “[s]o long as the jury that sits is
impartial, the fact that the defendant had to use a peremptory challenge to
achieve that result does not mean the Sixth Amendment was violated.” 22 The
Court also said that “[i]t is well settled that the Sixth and Fourteenth
Amendments guarantee a defendant on trial for his life the right to an
impartial jury,” 23 but the sentence following that statement contained
qualifiers material to the inquiry presently before us. The Court said, “[h]ad
[the biased juror] sat on the jury that ultimately sentenced [the defendant] to
death, and had the petitioner properly preserved his right to challenge the trial



      19 Ross v. Oklahoma, 487 U.S. 81, 83-84 (1988).
      20 Id. at 84.
      21 Id. at 88.
      22 Id.
      23 Id. at 85.



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                                        No. 13-70024
court’s failure to remove [the biased juror] for cause, the sentence would have
to be overturned.” 24        The prerequisite in the Court’s analysis of when a
sentence would have to be overturned was a challenge for cause that was
denied by the trial court.
       The Supreme Court also discussed in Ross the requirement of Oklahoma
law “that a defendant who disagrees with the trial court’s ruling on a for-cause
challenge must, in order to preserve the claim that the ruling deprived him of
a fair trial, exercise a peremptory challenge to remove the juror,” and that
“[e]ven then, the error is grounds for reversal only if the defendant exhausts
all peremptory challenges and an incompetent juror is forced upon him.” 25
       In United States v. Martinez–Salazar, the Supreme Court reiterated that
reversal would be “require[d]” when (1) a biased juror is seated after (2) the
trial court erroneously overruled an objection that the juror should be excused
for cause. 26 In Martinez–Salazar, a potential juror had indicated repeatedly
and consistently that he would favor the prosecution, 27 and the trial court erred
in failing to dismiss that person for cause. 28 The actual holding of the Supreme
Court was that even though the defendant used a peremptory challenge to
remove the biased member of the venire and subsequently exhausted his
remaining peremptory challenges, the defendant was “not deprived of any
rule-based or constitutional right,” because the jury that convicted him did not


       24  Id. (emphasis added).
       25  Id. at 89 (citing Ferrell v. State, 475 P.2d 825, 828 (Okla. Crim. App. 1970) and Stott
v. State, 538 P.2d 1061, 1064-1065 (Okla. Crim. App. 1975)).
        26 United States v. Martinez–Salazar, 528 U.S. 304, 316 (2000) (citing Ross v.

Oklahoma, 487 U.S. 81, 85 (1988)).
        27 Id. at 308.
        28 Id. at 307 (“We focus on this sequence of events: the erroneous refusal of a trial

judge to dismiss a potential juror for cause, followed by the defendant’s exercise of a
peremptory challenge to remove that juror.”).

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                                       No. 13-70024
include a biased juror. 29 But, in dicta, the Court discussed when the seating of
a biased juror “would require reversal.” 30 The Court first stated that had the
district court’s erroneous refusal to dismiss the potential juror for cause
“result[ed] in the seating of [a] juror who should have been dismissed for
cause,” then “that circumstance would require reversal.” 31 The “circumstance”
requiring reversal included the denial of a challenge for cause. The Court then
quoted its statement in Ross: “‘Had [the biased juror] sat on the jury that
ultimately sentenced petitioner to death, and had petitioner properly
preserved his right to challenge the trial court’s failure to remove [the juror]
for cause, the sentence would have to be overturned.’” 32
       The Supreme Court’s listings of “structural errors” that require
automatic reversal do not include jury bias, either when it is raised in a direct
appeal or in habeas proceedings. 33 A plurality opinion of the Supreme Court



       29  Id.
       30  Id. at 316.
        31 Id. (quoting Ross, 487 U.S. at 85).
        32 Id. (alterations in original) (quoting Ross v. Oklahoma, 487 U.S. 81, 87 (1988)).
        33 See, e.g., Weaver v. Massachusetts, 137 S. Ct. 1899, 1907-09, 1911 (2017) (explaining

in a habeas proceeding that “[t]he purpose of the structural error doctrine is to ensure
insistence on certain basic, constitutional guarantees that should define the framework of
any criminal trial”; identifying “three broad rationales” for why the Court has sometimes
deemed a particular error structural: (1) when “the right at issue is not designed to protect
the defendant from erroneous conviction but instead protects some other interest” and, “when
exercised, ‘usually increases the likelihood of a trial outcome unfavorable to the defendant,’”
such as “the defendant’s right to conduct his own defense”; (2) when the “effects of the error
are simply too hard to measure,” such as the denial of a defendant’s “right to select his or her
own attorney”; and (3) when “the error always results in fundamental unfairness,” such as
denying an indigent defendant an attorney or failing “to give a reasonable-doubt instruction”;
emphasizing that “[a]n error can count as structural even if the error does not lead to
fundamental unfairness in every case”; and holding that “when a defendant raises a
public-trial violation via an ineffective-assistance-of-counsel claim, Strickland prejudice is
not shown automatically”); United States v. Davila, 569 U.S. 597, __, 133 S. Ct. 2139, 2149
(2013) (explaining that the Court has “characterized as ‘structural’ ‘a very limited class of
errors’ that trigger automatic reversal because they undermine the fairness of a criminal

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                                        No. 13-70024
said in a direct criminal appeal that “[t]he right to an impartial adjudicator, be
it judge or jury, is” among the constitutional rights can never be treated as
harmless error. 34      But the Court has not held that automatic reversal is
required whenever a biased juror is seated and a verdict is rendered by that
jury. In Gomez v. United States, the Supreme Court quoted the plurality
opinion in Gray, 35 but Gomez did not involve a biased juror. The Court held in
Gomez, a direct criminal appeal, that the harmless error rule did not apply
when, over the objection of the defendant, a magistrate judge exceeded his
jurisdiction when he presided over the selection of a jury in a criminal case. 36
       Prior to the Supreme Court’s decision in Olano, 37 more than one federal
Circuit Court of Appeals held in the context of a direct criminal appeal that a
defendant’s failure to raise a juror’s lack of impartiality would not be
considered if the issue was not raised at trial and the factual basis of the bias
claim was known at the time of trial. In United States v. Uribe, a direct
criminal appeal involving convictions for drug trafficking, one of the




proceeding as a whole” and observing that “[e]rrors of this kind include denial of counsel of
choice, denial of self-representation, denial of a public trial, and failure to convey to a jury
that guilt must be proved beyond a reasonable doubt”) (citations omitted); Neder v. United
States, 527 U.S. 1, 8 (1999) (identifying as structural errors “complete denial of counsel,”
“biased trial judge,” “racial discrimination in selection of grand jury,” “denial of self-
representation at trial,” “denial of public trial,” and “defective reasonable-doubt instruction”).
But see, e.g., Gray v. Mississippi, 481 U.S. 648, 668 (1987) (BLACKMUN, J., plurality opinion).
(holding in a direct criminal appeal that a harmless-error analysis did not apply when a state
trial court excused a prospective juror for cause even though the juror was qualified to serve
and had not exhibited bias).
        34 Gray, 481 U.S. at 668.
        35 Gomez v. United States, 490 U.S. 858, 876 (1989) (quoting Gray, 481 U.S. at 668).
        36 Id.
        37 United States v. Olano, 507 U.S. 725, 732-37 (1993) (explaining, in a direct criminal

appeal, the plain-error doctrine embodied in FED. R. CRIM. P. 52(b), and setting forth its
elements).

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                                        No. 13-70024
defendants, Rave, recognized a juror during empanelment, 38 but Rave did not
“raise the matter” in the trial court. 39 After a guilty verdict was returned, the
juror testified that he had rented a hoist to Rave and “experienced some
problems getting it back,” but “that, after some travail, Rave returned the
equipment and paid for its use.” 40 There was also evidence that there were
“hard feelings” between this juror and another defendant with whom Rave was
jointly tried because the other defendant had not paid the juror for automobile
repairs. 41 The First Circuit held that “[a]lthough Rave . . . attempts to argue
that [the juror’s] presence tainted his conviction, he never raised the matter
below. He is, therefore, foreclosed on appeal.” 42 The court reasoned that
“[s]urely, the raise-or-waive rule is fully operative in respect to these rulings” 43
and that the “plain-error doctrine [is] to be invoked ‘sparingly’ and only to avert
‘miscarriage of justice.’” 44
       Similarly, in United States v. Rodriguez-Garcia, a direct criminal appeal
decided before Olano, the Tenth Circuit affirmed a conviction and refused to
consider a claim of juror bias raised for the first time on appeal when the basis
for the bias could have been pursued with the trial court. 45 In that case, the
defendant contended “that he did not receive an impartial jury as guaranteed
by the Sixth Amendment and [was] therefore entitled to a new trial” because
he knew and had worked at a hospital with one of the jurors, and that juror


       38 890 F.2d 554, 560 (1st Cir. 1989).
       39 Id. at 560 n.4.
       40 Id. at 560.
       41 Id.
       42 Id. at 560 n.4.
       43 Id. (citing United States v. Griffin, 818 F.2d 97, 100 (1st Cir. 1987) and United States

v. Frady, 456 U.S. 152, 163 n. 14 (1982)).
       44 Id. (quoting Frady, 456 U.S. at 163 n.14).
       45 United States v. Rodriguez–Garcia, 983 F.2d 1563, 1572-73 (10th Cir. 1993).



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                                       No. 13-70024
had not admitted to knowing him. 46                The defendant’s “counsel failed to
challenge this juror” and raised the “claim of juror bias” for the first time on
appeal. 47 The Tenth Circuit reasoned that “[t]his court has observed that
‘there may be situations where the litigant waives any objection to the
composition of the jury by failing to pursue the matter in timely fashion [which]
is consistent with the general rule that a defendant, by accepting a jury, waives
his right to object to the panel.’” 48 This decision likewise indicates that the
Tenth Circuit did not view potential juror bias known to a defendant or counsel
as automatically requiring reversal when no for-cause challenge was raised in
the trial court. 49
       Even after Olano, as discussed above, the Eighth Circuit has held that
when the basis for a bias claim is known at the time of trial and no for-cause
challenge is made, a defendant cannot obtain reversal on appeal, because that
would be tantamount to insuring a risk-free trial. 50 In Johnson, Juror S.R.
stated during voir dire that there was a possibility that she could not be
objective and might give more weight or find more credible the testimony of a
law enforcement officer because her former roommate and very good friend was
a parole and probation officer. 51 The Eighth Circuit concluded that “by failing



       46  Id. at 1572.
       47  Id.
        48 Id. at 1572-73 (alteration in original) (quoting United States v. Diaz–Albertini, 772

F.2d 654, 657 (10th Cir. 1985)).
        49 See also United States v. Harris, 530 F.2d 576, 579-80 (4th Cir. 1976) (rejecting in

a direct criminal appeal the defendant’s contention that “one of the jurors knew him before
trial and may have been prejudiced against him,” reasoning that “[w]here the basis for a
challenge to a juror could be timely shown the failure of the defendant to object at the
inception of the trial constituted a waiver of his right to challenge the constitution of the
jury”).
        50 See United States v. Johnson, 688 F.3d 494, 501-02 (8th Cir. 2012).
        51 Id. at 500.



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                                       No. 13-70024
to object to the seating of Juror S.R. during voir dire, [the defendant]
‘intentional[ly] relinquish[ed] or abandon[ed] . . . a known right’” within the
meaning of Olano and “thereby waived his right to challenge the impaneling
of an allegedly biased juror on direct appeal.” 52             The Eighth Circuit also
disavowed a prior decision in a habeas proceeding that had reasoned “[w]hen
a defendant fails to object to the qualifications of a juror, he is without remedy
only if he fails to prove actual bias,” reasoning that the habeas decision was
contrary to an earlier opinion of the Eighth Circuit, which controlled. 53 The
court further expressed its conclusion that the earlier decision correctly set
forth the standard of review since otherwise a defendant could choose to
withhold an objection for cause, await a verdict, then appeal and reverse an
adverse judgment. 54
       In the present case, the district court denied Austin’s juror bias claim on
the sole basis that “Austin had an opportunity to question the potential jurors,
and challenge those he thought unsuitable, but he chose not to do so” 55 and
that “[h]e has therefore waived this claim.” 56 In our order granting a COA on
Austin’s juror bias issue, we said that “claims based on actual bias, as opposed
to implied bias, are not waived by a failure to object during voir dire.” 57 This
was not intended as an all-encompassing, broadly sweeping proposition of law.
The sole decision we cited for this statement was vacated in its entirety by the



       52   Id. at 501.
       53   Id. (citing and quoting Johnson v. Armontrout, 961 F.2d 748, 751 (8th Cir. 1992)).
         54 Id. at 501-02. But see United States v. Brown, 26 F.3d 1124, 1126 (D.C. Cir. 1994)

(concluding that “plain error analysis is applicable to a sixth amendment claim not raised at
trial”).
         55 ROA.2799 (citing 3 Tr. at 3-79; 4 Tr. at 3-66; 5 Tr. at 3-90).
         56 Id.
         57 Austin v. Davis, 647 F. App’x 477, 493 (5th Cir. 2016).



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                                     No. 13-70024
grant of en banc rehearing in our court 58 and therefore was not a precedential
decision. Additionally, the statement in the vacated opinion was dicta. 59 A
claim of actual bias may be raised even if no objection was made during voir
dire, depending on the facts of a particular case and its procedural posture.
This would be the case, for example, when neither a defendant nor her counsel
had a reason to know of the bias and voir dire questioning would not have
revealed the bias. But the decided weight of the authorities in this area,
discussed above, concludes that there are circumstances when the failure to
object or move to strike a juror for cause precludes reversal of the verdict on
appeal or in habeas proceedings based on juror bias.
       To be clear, I am not suggesting that Austin waived his claim of juror
bias by failing to question the jurors during voir dire. Rather, an alternate
ground for affirming the district court’s judgment regarding the jury bias claim
is that one of McDonough’s requirements—that besides showing “that a juror
failed to answer honestly a material question on voir dire” a claimant must
“further show that a correct response would have provided a valid basis for a
challenge for cause” 60—necessarily assumes that, had voir dire provided a
valid basis for making a for-cause challenge, the claimant would have made
the challenge. Because Austin made a conscious decision as a matter of trial
strategy to accept all jurors accepted by the State, and because the record
supports the conclusion that Austin would not have challenged the jurors for
cause had they expressed during voir dire what they expressed in the post-trial




       58 Id. at 493 n.64 (citing United States v. Wilson, 116 F.3d 1066, 1086-87 (5th
Cir.1997), rev'd on other grounds, United States v. Brown, 161 F.3d 256, 258 (5th Cir.1998)
(en banc)).
       59 See Wilson, 116 F.3d at 1087.
       60 McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 556 (1984).

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                                     No. 13-70024
statements, Austin cannot now say that he has met McDonough’s
requirements.
                                           II
      It is unclear whether, in a habeas proceeding, a defendant would be
entitled to have a jury’s verdict set aside upon establishing the elements of
McDonough, without an assessment of the impact of the constitutional error
on the state-court criminal trial. It is also unclear whether 28 U.S.C. § 2111
applies. It provides that “[o]n the hearing of any appeal or writ of certiorari in
any case, the court shall give judgment after an examination of the record
without regard to errors or defects which do not affect the substantial rights of
the parties.” 61 It would seem that in many if not most cases when both prongs
of McDonough are met the impact on the trial would obviously be injurious or
the substantial rights of a party would be affected. But the present case is a
relatively unusual one.       To the extent that the analysis set forth by the
Supreme Court in Fry v. Pliler, 62 and Brecht v. Abrahamson 63 applies, any
constitutional error that occurred because any one of the five challenged jurors
participated in the verdict did not have a substantial and injurious impact on
the verdict.
      In assessing harmlessness on direct review, the Government bears the
burden of proving that a constitutional error was “harmless beyond a
reasonable doubt.” 64 On collateral review, however, “concerns about finality,
comity, and federalism,” 65 mandate that a federal habeas petitioner bears the



      61 28 U.S.C. § 2111.
      62 551 U.S. 112 (2007).
      63 507 U.S. 619 (1993).
      64 Chapman v. California, 386 U.S. 18, 24 (1967).
      65 Fry v. Pliler, 551 U.S. 112, 116 (2007).



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                                       No. 13-70024
burden, and the standard is whether the error actually prejudiced him. 66 To
determine whether an error actually prejudiced the petitioner, courts inquire
whether the error had “a substantial and injurious effect or influence” on a jury
verdict,” 67 meaning “there is more than a mere reasonable possibility that it
contributed to the verdict.” 68
       In this case, Austin’s guilt was not in question. He pled guilty. During
the trial on the question of the appropriate penalty—life or death—Austin
consistently vocalized and pursued a strategy designed to persuade the jury to
answer the Texas special issues such that he received the death penalty.
Austin did not testify. 69 He did cross-examine one witness and make a closing
statement; during both, he only contested the State’s suggestion to the jury
that he was a pedophile. 70 Austin expressed to the jury at closing that he would
kill again and explained why the jury should answer the special issues such
that he received a death sentence. 71              Although some evidence of Austin’s


       66  Brecht v. Abrahamson, 507 U.S. 619, 637 (1993); see also Fry, 551 U.S. at 117, 121-
22 (noting that Brecht “clearly assumed that the Kotteakos standard would apply in virtually
all § 2254 cases” and “suggested an exception only for the ‘unusual case’ in which ‘a deliberate
and especially egregious error of the trial type, or one that is combined with a pattern of
prosecutorial misconduct, . . . infects the integrity of the proceeding’” and holding that the
Brecht standard applies “whether or not the state appellate court recognized the error and
reviewed it for harmlessness under the ‘harmless beyond a reasonable doubt’ standard set
forth in Chapman”); Hogue v. Johnson, 131 F.3d 466, 498-99 (5th Cir. 1997) (concluding that
the Brecht standard applies to determine whether a constitutional error was harmless in a
federal habeas challenge even when no state court reviewed petitioner’s claim and therefore
never determined whether the error was harmless).
        67 Brecht, 507 U.S. at 637; see also Fitzgerald v. Greene, 150 F.3d 357, 366 (4th Cir.

1998) (“Based upon the forgoing circumstances, combined with the overwhelming evidence of
Fitzgerald’s guilt, his propensity for future dangerousness, and the vileness of his crimes, we
are confident that Bradshaw’s presence on the jury did not result in actual prejudice to
Fitzgerald.”).
        68 Woods v. Johnson, 75 F.3d 1017, 1026 (5th Cir. 1996) (emphasis in original); see also

United States v. Bowen, 799 F.3d 336, 356 (5th Cir. 2015).
        69 10RR78.
        70 9RR125-26; 11RR15-18.
        71 11RR16, 19-20.

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                                 No. 13-70024
mental health history was presented to the jury during the sentencing phase,
Austin himself presented no mitigating evidence. It cannot be said that any
error had a substantial and injurious effect on the verdict.




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