     Case: 11-70018       Document: 00512399694         Page: 1     Date Filed: 10/07/2013




                         REVISED OCTOBER 7, 2013

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

                                       No. 11-70018                         FILED
                                                                         October 4, 2013

                                                                          Lyle W. Cayce
JEFFERY LEE WOOD,                                                              Clerk

                                                  Petitioner-Appellant

v.

WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT
OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS
DIVISION,

                                                  Respondent-Appellee


                   Appeal from the United States District Court
                        for the Western District of Texas
                              USDC No. 5:01-CV423



Before HIGGINBOTHAM, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Jeffery Lee Wood has filed a motion for a certificate of appealability (COA)
to appeal the district court’s denial of a 28 U.S.C. § 2254 application, which
asserts that Wood is incompetent to be executed, and that his execution would
violate the Eighth and Fourteenth Amendments pursuant to Panetti v.


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                   No. 11-70018

Quarterman, 551 U.S. 930 (2007) and Ford v. Wainwright, 477 U.S. 399 (1986).
The district court denied Wood’s application and denied a COA, finding that
Wood suffered from an antisocial personality disorder, but not from a delusional
disorder, and therefore does not qualify as incompetent for execution under
Panetti.
      Wood’s motion for a COA challenges the district court’s conclusion that he
did not suffer from a delusional disorder. Wood also asserts that he was denied
a fair hearing in violation of the Fourteenth Amendment’s due process clause
because the district court erroneously based its credibility and factual findings
upon the court’s personal experience with Texas’ death row inmates. Wood
contends that as a consequence, he was precluded from adversarially testing the
evidence that the judge relied upon and thus a remand and reassignment is
warranted. Additionally, Wood maintains that the district court prejudged his
claim and retaliated against him by unsealing pleadings and proceedings.
      To obtain a COA, a prisoner must make “a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell, 537
U.S. 322, 336 (2003). If a district court has rejected a prisoner’s constitutional
claim on the merits, this court will issue a COA only if he demonstrates that
jurists of reason could disagree with the district court’s resolution of his
constitutional claims or could conclude the issues presented are “adequate to
deserve encouragement to proceed further.” Miller-El, 537 U.S. at 336 (internal
quotation marks and citation omitted). “[A] petitioner need not show that an
appeal will succeed in order to be entitled to a COA. The question is the
debatability of the underlying constitutional claim, not the resolution of the
debate.” Cardenas v. Dretke, 405 F.3d 244, 248 (5th Cir. 2005) (citations and
internal quotation marks omitted).
      Wood has sufficiently demonstrated that reasonable jurists may disagree
with regard to whether he was denied a fair hearing as a result of the district
court’s improper reliance upon its own experience with pro se litigants and

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                                    No. 11-70018

Texas’ death row inmates. “[T]he individual and extrajudicial knowledge on the
part of the judge will not dispense with proof of facts not judicially cognizable,
and cannot be resorted to for the purpose of supplementing the record.” Fox v.
City of West Palm Beach, 383 F.2d 189, 194-95 (5th Cir. 1967). Here, the district
court’s credibility determinations and factual findings were expressly based
upon knowledge that the court independently procured outside the course of the
current proceedings, and thus neither party could test these findings for
relevancy or reliability. Without citing empirical data, the court found that
“virtually all of the Texas death row inmates with whom this Court has dealt
have been diagnosed by qualified mental health professionals with antisocial
personality disorder. It has been this Court’s experience that the vast majority
of Texas prison inmates in general, and Texas death row inmates in particular,
demonstrate several significant characteristics of antisocial personality disorder,
specifically, an unwillingness to accept responsibility for their criminal conduct.”
Wood v. Thaler, 787 F.Supp. 2d 458, 296 (W.D. Tex. 2011). Crediting the expert’s
opinion who testified in accordance with the district court’s own experience, the
court concluded that Wood does not suffer from a delusional disorder, but rather
has a “highly manipulative antisocial personality,” and thus is ineligible for
relief under Panetti. Id. at 498.
      Jurists of reason could debate whether the district court’s improper
reliance upon its past experience with death row inmates resulted in an unfair
hearing in violation of Wood’s Fourteenth Amendment due process rights. This
claim therefore deserves encouragement to proceed further.
      Additionally, Wood has made the requisite showing warranting COA on
the related issue of whether the case should be remanded and reassigned. This
Court’s power to reassign a case on remand is an “extraordinary power and
should rarely be invoked.” United States v. Winters, 174 F.3d 478, 487 (5th Cir.
1999). However, reassignment “may be authorized where the original judge
would reasonably be expected upon remand to have substantial difficulty in

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                                  No. 11-70018

putting out of his or her mind previously-expressed views or findings
determined    to be    erroneous or based        on   evidence    that must be
rejected, . . . where reassignment is advisable to preserve the appearance of
justice[,] . . . [or] where the facts might reasonably cause an objective observer
to question [the judge’s] impartiality.” League of United Latin Am. Citizens, Dist.
19 v. City of Boerne, 675 F.3d 433, 440-41 (5th Cir. 2012) (third alteration in
original) (quoting In re DaimlerChrysler Corp., 294 F.3d 697, 700-01 (5th Cir.
2002) (internal quotation marks omitted)). Given the district court’s expressed
views on the mental health condition of “virtually all” of the Texas death row
inmates, reasonable jurists could debate whether the district court could
reasonably be expected to disregard this expressed opinion. Moreover, it is
debatable whether an objective observer would reasonably call into question the
judge’s impartiality towards Wood’s claim that he suffered from a delusional
disorder. We emphasize that we do not today find that remand and
reassignment is necessary in this case, nor do we suggest that this is the proper
disposition. Rather, we simply hold that Wood’s claim for remand and
reassignment, as the corollary remedy to his due process claim, warrants
encouragement to proceed.
      Wood has not made the requisite showing to warrant a COA with regard
to any additional claims.
      Accordingly, the motion for a COA is GRANTED, and briefing limited to
the merits of Wood’s claims regarding the district court’s improper reliance upon
its own experience and the related claim for remand and reassignment is
ordered.




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