     Case: 08-70015   Document: 00512349817     Page: 1   Date Filed: 08/21/2013




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

                                                                 FILED
                                                               August 21, 2013
                                 No. 08-70015                   Lyle W. Cayce
                             (Cons. with 08-70016)                   Clerk



SCOTT LOUIS PANETTI,

                                                 Petitioner - Appellant

v.

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

                                                 Respondent - Appellee




                Appeals from the United States District Court
                      for the Western District of Texas


Before STEWART, Chief Judge, and HIGGINBOTHAM and OWEN, Circuit
Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
      A Texas jury convicted petitioner-appellant Scott Louis Panetti of capital
murder and sentenced him to death. Panetti filed separate federal habeas
petitions challenging his competency to be executed as well as his competency
to represent himself at trial. The district court denied relief but granted a
certificate of appealability. We affirm.
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                                         No. 08-70015

                                               I.
      This case has a long and complicated procedural history. In 1992, Panetti
shot his estranged wife’s parents at close range, killing them and spraying his
wife and three-year-old daughter with their blood. At trial, Panetti’s only
defense was insanity. Panetti demanded to represent himself despite his history
of schizophrenia and institutionalization, ignoring the judge’s repeated pleas to
accept court-appointed representation and insisting that only an insane person
could prove insanity. According to standby counsel, Panetti’s performance was
“bizarre,” “scary,” and “trance-like,” rendering his trial “a judicial farce, and a
mockery of self-representation.”1 The jury convicted Panetti of capital murder
and sentenced him to death, and the Texas Court of Criminal Appeals (“CCA”)
upheld the conviction and sentence on direct and collateral review. Panetti
eventually filed a federal habeas petition, claiming, among other things, that he
was incompetent to waive counsel and incompetent to stand trial.2 The district
court denied the petition, and this Court affirmed.3
      In October 2003, the state trial court set an execution date for February
5, 2004.4 Panetti filed a motion with the trial court for a stay of execution,
claiming for the first time that he was incompetent to be executed under Article
46.05 of the Texas Code of Criminal Procedure.5 The trial court rejected the
motion without a hearing, holding that Panetti had failed to make a “substantial
showing of incompetency” as required to entitle Panetti to an evaluation by



      1
          Panetti v. Quarterman, 551 U.S. 930, 936 (2007).
      2
          Panetti v. Dretke, 401 F. Supp. 2d 702, 703 (W.D. Tex. 2004).
      3
          See Panetti v. Cockrell, 73 F. App’x 78 (5th Cir. 2003).
      4
          Panetti, 551 U.S. at 937.
      5
          Id. at 938.

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                                        No. 08-70015

court-appointed experts under Article 46.05.6 The CCA determined that it was
without power to review the trial court’s determination.7
      Panetti then returned to federal court, filing a second federal habeas
petition which asserted that the trial court’s ruling on his competency to be
executed violated clearly established Supreme Court precedent — specifically,
Ford v. Wainwright.8          The petition included additional evidence of Panetti’s
mental illness, evidence that Panetti had also appended to a renewed Article
46.05 motion before the state trial court.9 Instead of ruling on the merits of
Panetti’s petition, the district court — Hon. Sam Sparks presiding — ordered
Panetti’s execution stayed for 60 days to give the state court time to consider
Panetti’s renewed motion in light of the supplemental evidence.10
      In February 2004, the state court entered an order appointing a
psychiatrist and clinical psychologist to examine Panetti, thereby implicitly
finding that Panetti had made a “substantial showing of incompetency” under
Article 46.05.11         In April, the court-appointed experts filed a joint report
concluding that Panetti was competent to be executed.12 Panetti moved to
appoint his own experts and hold an evidentiary hearing, urging that Article
46.05 and the Supreme Court’s decision in Ford required the state court to afford




      6
          Panetti, 401 F. Supp. 2d at 703.
      7
          Panetti, 551 U.S. at 938.
      8
          Panetti, 401 F. Supp. 2d at 703 (citing Ford v. Wainwright, 477 U.S. 399 (1986)).
      9
          Id. at 703–04.
      10
           Id. at 704.
      11
           Id.
      12
           Id.

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                                        No. 08-70015

him an opportunity to be heard.13 Without ruling on Panetti’s motion, the state
court entered an order finding that Panetti was competent to be executed.14
      Panetti then returned to the federal district court, claiming that the state
court’s refusal to hold an evidentiary hearing and accept evidence on his alleged
incompetency violated both Article 46.05 and Ford.15 The district court agreed
and concluded that the state court’s decision thus fell outside of the safe harbor
we created in Caldwell v. Johnson,16 which insulates state proceedings compliant
with Article 46.05 from habeas attack under Ford.17 The district court also
rejected the State’s argument that Panetti’s Ford claim was precluded by the
§ 2244 bar on “second or successive” habeas petitions, reasoning that Panetti
could not have included the claim in his original petition, as it only became ripe
when the state set an execution date. Finally, the district court determined that
since Panetti had made a “substantial showing of incompetency,” the state
court’s failure to “receive evidence and argument from the prisoner’s counsel,
including expert psychiatric evidence that may differ from the State’s own
psychiatric examination,” was a violation of due process under Ford.18 The
district court then scheduled its own evidentiary hearing, appointing counsel
and authorizing funds so that Panetti could hire a team of psychiatric experts.19
      At the hearing, Panetti presented testimony from four experts, including
two clinical and forensic psychologists, a clinical psychologist, and a

      13
           Id.
      14
           Id.
      15
           Id.
      16
           226 F.3d 367, 374 (5th Cir. 2000).
      17
           Panetti, 401 F. Supp. 2d at 704–05.
      18
           Id. at 705.
      19
           Id.

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psychiatrist.20 The experts testified that though Panetti appeared to understand
the State’s purported reason for seeking his execution — his murder of his in-
laws — his delusions caused him to believe that the State was actually “in
league with the forces of evil,” seeking his execution “to prevent him from
preaching the Gospel.”21 The State’s two experts — a psychiatrist and a clinical
psychologist — agreed that Panetti was mentally ill, though they “concluded that
some portion of Panetti’s behavior could be attributed to malingering.”22 While
both experts testified that Panetti had the capacity to rationally understand the
reason for his execution, they “were unable to reach a formal conclusion that he
did, in fact, understand it.”23
      The district court reviewed the evidence adduced at the hearing de novo,
observing that though the state court had made a factual determination that
Panetti was competent to be executed, this determination was not entitled to
AEDPA deference.24 The court reasoned that “to apply such deference . . . would
fly in the face of the Supreme Court’s holding in Ford . . . [in which] seven
Justices . . . concluded [that] denying a petitioner the right to present, as well as
rebut, evidence in making a competency-to-be-executed determination violates
the right to due process.”25 Turning to the evidence, the district court concluded
that the record supported a finding that Panetti’s delusional belief system
prevented him from rationally appreciating the connection between his crimes



      20
           Id. at 707.
      21
           Id. at 709.
      22
           Id. at 704, 707.
      23
           Id. at 707–08.
      24
           Id. at 705–06.
      25
           Id. at 705.

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and his execution.26 Nevertheless, the court reluctantly found Panetti competent
to be executed, noting that under Fifth Circuit precedent, Panetti only needed
to “know the fact of his impending execution and the reason for it,”27 and that
here, both sides’ experts agreed that Panetti was aware of his impending
execution as well as the State’s purported reason for that execution.28 We
affirmed in a published opinion, reemphasizing that a prisoner is competent to
be executed under Ford if he “knew that he was going to be executed and why
he was going to be executed,”29 and noting that the “awareness” required under
Ford “is not necessarily synonymous with ‘rational understanding.’”30
       In 2007, the Supreme Court granted certiorari and reversed.31 As a
threshold matter, the Court agreed with the district court that the statutory bar
on successive habeas petitions does not apply to Ford claims brought when first
ripe.32 It also agreed that the state court’s competency determination was not
entitled to AEDPA deference, as the court had failed to afford Panetti an
opportunity to present his own evidence, thereby violating the minimum due
process required for competency determinations under Ford.33 However, turning
to the question of Panetti’s competency to be executed, the Court concluded that
“the [Fifth Circuit’s] standard is too restrictive to afford . . . the protections


       26
            Id. at 709.
       27
            Id. (quoting Fearance v. Scott, 56 F.3d 633, 640 (5th Cir. 1995)).
       28
            Id. at 711–12.
       29
         Panetti v. Dretke, 448 F.3d 815, 819 (5th Cir. 2006) (quoting Barnard v. Collins, 13
F.3d 871, 877 (5th Cir. 2006)).
       30
            Id. at 821.
       31
            See Panetti, 551 U.S. at 962.
       32
            Id. at 942–47.
       33
            Id. at 948–54.

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granted by the Eighth Amendment.”34 The Court explained that “the Ford
opinions nowhere indicate that delusions are irrelevant to ‘comprehension’ or
‘awareness’ if they so impair the prisoner’s concept of reality that he cannot
reach a rational understanding of the reason for the execution,” concluding that
“if anything, the Ford majority suggests the opposite.”35 The Court nevertheless
declined “to set down a rule governing all competency determinations,” noting
that it was “hesitant to decide a question of this complexity before the [d]istrict
[c]ourt and the [Fifth Circuit] have addressed, in a more definitive manner and
in light of the expert evidence found to be probative, the nature and severity of
[Panetti’s] alleged mental problems.”36
      On remand, the district court scheduled a second evidentiary hearing,
offering both sides the opportunity to introduce additional evidence in light of
the Supreme Court’s decision.37 In anticipation of the hearing, the defense hired
Dr. Leslie Rosenstein (a clinical neuropsychologist), Dr. David Self (a forensic
psychiatrist), and Dr. Mary Alice Conroy (a forensic psychologist). While Drs.
Rosenstein and Self were both new to the defense, Dr. Conroy was familiar with
Panetti, having interviewed him previously in anticipation of the 2004 hearing.
The three experts collectively evaluated Panetti for some fifteen hours,
subjecting him to extensive questioning and administering a battery of tests
designed to gauge his mental health as well as the likelihood of malingering.38
The district court ultimately authorized some $9000 to pay Panetti’s experts,
though it rejected his repeated requests for additional funding.


      34
           Id. at 956–57.
      35
           Id. at 958.
      36
           Id. at 960–61.
      37
           Panetti v. Quarterman, 2008 WL 2338498, at *2 (W.D. Tex. 2008).
      38
           See id. at *19–22.

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      At the evidentiary hearing, all three defense experts testified that
Panetti’s cognitive functioning and behavioral patterns were consistent with
schizophrenia,39 though Dr. Conroy noted that Panetti’s symptoms — pressured
speech, tangential thinking, and flight of ideas — had improved markedly since
her 2004 evaluation. Drs. Conroy and Self also testified that Panetti suffered
from a genuine delusion that he was on death row to preach the Gospel and save
souls. However, Dr. Conroy conceded that Panetti was “not as clear” or “direct”
as he had been in 2004 when prompted to explain the reason for his impending
execution, answering only that “I’m going to be here preaching until God calls
me home” and then “going on to talk about the conspiracies between the Bushes
and large corporations and demonic forces,” the corruptness of his trial judge,
and the perversion of a criminal justice system that sought to execute him for a
crime he had committed while insane. Though Drs. Conroy and Self both
believed that Panetti continued to suffer from the delusion that his execution
was part of a satanic conspiracy to keep him from preaching, their opinions
appear to draw on Panetti’s statements in 2004.
      The defense also called on two of Panetti’s fellow death-row inmates to
testify as fact witnesses. Willie Poindexter, who had been housed in Panetti’s
immediate area for about two years, testified that talking to Panetti was strange
because “one minute everything’s good, the next minute he’s ranting and raving
fire and brimstone again, like flipping a switch.”40 Poindexter noted that Panetti
preached incessantly both in his cell and in the day-room — often for up to seven
hours a day — even though it irritated other inmates and caused them to throw
hot water on him and shout at him.41 Randy Halprin, another fellow death-row


      39
           See id. at *19–22.
      40
           Id. at *26.
      41
           Id.

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inmate, gave a similar account of Panetti’s daily routine, noting that Panetti
“does a lot of fire and brimstone type preaching from the day-room.”42
       The State countered with testimony from its own team of experts,
including Dr. Tom Allen (a forensic psychologist) and Dr. Alan Waldman (a
psychiatrist and neurologist).43 After interviewing Panetti as well as a number
of Texas Department of Criminal Justice (“TDCJ”) employees, both experts
concluded that Panetti was at least partially fabricating his symptoms to thwart
their attempts to administer structured examinations designed to detect
malingering.44 Indeed, Waldman doubted that Panetti suffered from any form
of mental illness, opining that Panetti “is about as normal as he wants to be at
any given time” and that his “dramatic presentation” during interviews
“reflect[s] an individual naive to [schizophrenia] except for what is seen in
television and movies.”45 Ultimately, Waldman was “emphatic in his opinion
that Panetti has a rational understanding of . . . the connection between [his]
crime and [his] execution,”46 pointing to Panetti’s repeated assertions that he
was “unjust[ly]” convicted in spite of his insanity and that God had “forgiven” his
“guilt.”      Waldman suggested that these statements implied that Panetti
understood that the State sought to punish him because he had “do[ne]
something wrong.”
       The State also called three TDCJ employees, apparently in an attempt to
counter the fact testimony offered by Panetti’s fellow inmates. Steven Bryant,

       42
            Id.
       43
         See id. at *23–25. The state also adduced testimony from Dr. Priscilla Ray, a forensic
psychiatrist and neurologist who opined on the extent to which psychiatric science can assist
a court in assessing a prisoner’s competency to be executed. See id. at *26.
       44
            Id. at *23–25.
       45
            Id. at *25.
       46
            Id.

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who worked as a guard in Panetti’s unit between 2003 and 2007, testified that
while Panetti was never a problem offender, he “would [often] have some
religious statement to make.”47         William Cook, another death-row guard,
testified that he saw Panetti’s preaching, both in his cell and in the day room,
but that it was “the same type of thing you’d hear at church . . . well thought
out.”48 Wilson Coker, a third death-row guard, testified that Panetti was
generally well behaved, but that some guards would occasionally assign Panetti
to a cell to get “a little revenge” on another inmate because they knew that
Panetti would irritate the inmate with his constant preaching.49
      Finally, the State presented secret audio recordings of Panetti’s
conversations with his parents and sister between December 4, 2007 and
January 4, 2008, which the district court accurately summarized as follows:
      The[] recordings amount to some eleven hours of conversation. In
      all that time, Pane[t]ti’s speech remains normal, even slow, in pace.
      His statements are generally responsive to the conversation, though
      he does show remarkable self-centeredness, often turning the
      conversation to himself instead of following up on a topics related to
      friends, family, or the other speaker. He often quotes scripture or
      makes religious comments, but does not “rant” or “preach.”
             Notably, several of the conversations between Panetti and his
      mother involve extended discussion regarding Judge Ab[l]es (the
      trial judge) and his corruptness and ineptitude with regard to
      Panetti’s trial proceedings. In these discussions Panetti talks about
      the “kangaroo court,” “Ab[l]es’ screwups,” and “corrupt Texas
      politics.” He makes statements such as “Fredericksburg had to have
      a hanging” and “Ab[l]es was trying to cover his ass.” At no time
      does he become irrational, tangential, or pressured in his speech.
      His statements all have to do with Judge Ab[l]es’ alleged political
      corruptness, not with any spiritual corruption or action by devils or
      supernatural forces.

      47
           Id. at *27.
      48
           Id.
      49
           Id. at *27–28.

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            The conversation between Panetti and his parents often turns
     to Panetti’s habeas case. Panetti’s comments about his legal
     proceedings demonstrate a fairly sophisticated understanding of his
     circumstances. For example, on December 4, 2007, Panetti tells his
     parents to tell Maury Levin, whom he identifies as a member of his
     defense team, about a “character witness” that he “knew from years
     ago that saw me run and preach and may not be here any more.”
     He seems to be aware he may be on tape, stating “I don’t want to be
     too overt about it . . . . I hope they don’t know what I’m talking
     about . . . . If they are taping it, I did not tell that character witness
     anything, there’s no in cahoots, no planning.”
            On December 10, 2007, Panetti initiates a very rational,
     organized conversation with his parents about various states
     abolishing the death penalty pending the outcome of the “lethal
     injection case” currently before the Supreme Court. Panetti notes
     “I’ve got a feeling they’re in for a surprise like they were in my case.”
     There are several other recorded conversations concerning the
     abolition of the death penalty generally; Panetti expresses his moral
     opposition to the death penalty without becoming noticeably
     tangential or pressured in his speech, and without attributing the
     death penalty to any kind of supernatural or demonic conspiracy.
            On December 17, 2007, Panetti asks his parents (regarding
     one of the experts sent to evaluate him): “that lady or man you sent
     last week, was that for us or them?” His mother responds, “us,” and
     Panetti replies “Well, that’s the way I treated her, then.”
            Also on December 17, 2007, Panetti tells his parents not to
     worry about the outcome of the evidentiary hearing: “the clerks, the
     Supreme Court, dug deep down into that, and at the end of the
     opinion they said that Sparks would come up with a decision in
     agreement with our decision. So if they want to pull a shenanigan
     and send it back through there again, now don’t be afraid if this
     hearing goes, because it’s just gonna — it’s just gonna be better in
     the end, because it’s gonna go back there again and they’re not
     gonna like it. They’ve done that with other cases, and the Supreme
     Court gets angry with Texas for doing that.”50
     Before analyzing the new evidence adduced at the second evidentiary
hearing, the district court clarified its understanding of Eighth Amendment
competency inquiry in the wake of the Supreme Court’s remand opinion. The

     50
          Id. at *28–29.

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court read that opinion to hold that “the test for competence to be executed
involves not only a prisoner’s factual awareness of the crime, the impending
execution, and the state’s reason for executing the prisoner, but also some degree
of ‘rational understanding’ of the connection between the crime and the
punishment.”51 Moreover, the court agreed with Panetti that this standard was
essentially identical to the standard for competency to stand trial under United
States v. Dusky,52 which probes a defendant’s “rational understanding” of the
connection between his crime and the charges against him.53
      The district court then turned to apply its “rational understanding” test
to the facts at hand.          After reviewing the expert testimony on Panetti’s
competency in painstaking detail,54 the court agreed with the defense’s experts
that “Panetti is seriously mentally ill” and concluded that “it is not seriously
disputable that Panetti suffers from paranoid delusions of some type.”55
However, the court implicitly agreed with the State that Panetti was
exaggerating some of his symptoms to avoid execution, observing that Panetti
demonstrated a “fairly sophisticated understanding of his case” and that his
refusal to cooperate with the State’s experts stood in marked contrast to his
treatment of the defense’s experts.56 Ultimately, the court determined that
Panetti “has both a factual and rational understanding of his crime, his
impending death, and the causal retributive connection between the two,”57 as

      51
           Id. at *31.
      52
           362 U.S. 402 (1960) (per curiam).
      53
           See Panetti, 2008 WL 2338498, at *31–32, 34.
      54
           Id. at *18–27.
      55
           Id. at *36.
      56
           Id. at *35–36.
      57
           Id. at *37.

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demonstrated “most clearly” by his statements to Dr. Waldman “that the death
penalty is wrong in his case because he was schizophrenic when he killed his in-
laws.”58 According to the court, Panetti’s remarks imply that he “understands
he is being executed to punish him for killing his in-laws, but feels the state is
not justified in taking this position because of his mental illness.”59 As “Ford .
. . does not require that a prisoner agree with his punishment — simply that he
rationally understand it,” the court concluded that Panetti was competent to be
executed.60
      Panetti sought and obtained a certificate of appealability (“COA”) from the
district court and timely filed a notice of appeal. However, before the parties
could complete their briefing, the Supreme Court decided Indiana v. Edwards,61
which qualified Faretta and progeny by clarifying that “the Constitution permits
States to insist upon representation by counsel for those competent enough to
stand trial under Dusky but who still suffer from severe mental illness.”62
Panetti filed a motion to stay and abate the appeal so that he could return to
state court to collaterally challenge his 1995 conviction under Edwards. Panetti
urged that the state judge who oversaw his trial operated under the belief —
erroneous, in light of Edwards — that he could not overrule Panetti’s Faretta
demand.          Had the judge been aware of the proper Sixth and Fourteenth
Amendment standard, Panetti contended, he should have required Panetti to
accept counsel. This Court granted the motion to stay and abate and Panetti
filed his second state habeas petition. The CCA promptly denied the petition for


      58
           Id. at *36.
      59
           Id.
      60
           Id.
      61
           554 U.S. 164 (2008).
      62
           Id. at 174–75.

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“fail[ing] to meet the dictates of Article 11.071, § 5" of the Texas Code of
Criminal Procedure.
      Panetti then petitioned this Court for permission to file a third federal
habeas petition raising his Edwards claim. In a one-sentence order, this Court
granted Panetti’s motion, thereby implicitly finding that Panetti had made a
“prima facie showing” that his “claim relies on a new rule of constitutional law,
made retroactive to cases on collateral review by the Supreme Court, that was
previously unavailable.”63 While Panetti’s third federal petition was pending,
the CCA decided Chadwick v. State,64 which addressed the meaning of Edwards.
In light of Chadwick, the district court granted Panetti leave to file a second
successive state habeas petition raising the Edwards claim. The CCA again
dismissed the petition for “fail[ing] to meet the dictates of Article 11.071, § 5,”65
and the Supreme Court denied certiorari.66
      At length, Panetti returned to the district court to litigate his Edwards
claim. The State moved for “summary judgment,” urging that the CCA’s two
boilerplate § 5 dismissals rested on adequate and independent state law
grounds; that Edwards was not retroactive under Teague v. Lane; and that in
any event, Panetti’s Edwards claim failed on the merits. Though the district
court rejected the State’s contention that Panetti’s claim was procedurally
defaulted, it reluctantly agreed that the claim was Teague-barred. Nevertheless,
it adjudicated the merits de novo, exhaustively reviewing Panetti’s trial
performance and ultimately concluding that “Panetti, though unskilled and



      63
           28 U.S.C. § 2244(b)(3)(C).
      64
           309 S.W.3d 558 (Tex. Crim. App. 2010).
      65
           Ex Parte Panetti, 326 S.W.3d 615 (Tex. Crim. App. 2010).
      66
           Panetti v. Texas, 131 S. Ct. 3027 (2011).

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                                       No. 08-70015

ineffective, was not incompetent . . . to conduct trial proceedings by himself.”
The district court granted a COA and Panetti timely filed notice of appeal.
        On appeal, Panetti contends that the district court (i) adjudicated his
competency to be executed without affording him the due process required under
Ford and the Supreme Court’s 2007 remand opinion, Panetti v. Quarterman; (ii)
erred by finding him competent to be executed; and (iii) erred by rejecting his
Edwards claim. We examine and reject each argument in turn.


                                             II.
            Panetti urges that the district court “violated the due process
requirements of Ford and Panetti by refusing to provide constitutionally
adequate funding for experts.” Panetti reasons that Ford required the district
court to afford him an “opportunity to be heard,” an opportunity that, in light of
Panetti, includes a “right to a mental health expert . . . to conduct an adequate
examination . . . , review all the pertinent records, assist counsel in challenging
the State’s experts through cross-examination, and testify in rebuttal.” The
State rejoins that Panetti failed to request or receive a COA on his due process
claim, and that in any event, the claim is meritless.
       We agree with Panetti that the district court’s COA, fairly read,
encompasses his Ford-based due process objection.67 Panetti raised the objection
below in a motion to amend the judgment, along with his challenge to the
district court’s ultimate determination that he was competent to be executed.
The district court granted a COA on “[w]hether Mr. Panetti is incompetent to be
executed under Ford v. Wainwright and Panetti v. Quarterman.” As Ford and
Panetti set forth not only a substantive standard for Eighth Amendment


       67
          Cf. Ramirez v. Dretke, 398 F.3d 691, 694 (5th Cir. 2005) (“[I]n a death penalty case
any doubts as to whether a COA should issue must be resolved in the petitioner’s favor.”
(internal quotation marks and alterations omitted)).

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                                         No. 08-70015

competency, but also minimum due process requirements courts must abide in
assessing competency, the district court’s COA, liberally construed, reaches
Panetti’s due process claim.68
       However, we agree with the State that Panetti’s claim fails on the merits.
Panetti’s challenge to the “constitutional[] adequa[cy]” of the district court’s
funding relies on the proposition that the Supreme Court’s decisions in Ford and
Panetti establish a constitutional right to expert assistance in Eighth
Amendment competency-to-be-executed hearings. But reasonably read, Ford
and Panetti merely establish that Panetti was entitled to an opportunity to
present his own expert testimony before a neutral decisionmaker; after all, the
critical issue in both cases was that the relevant state’s procedure for
determining competency permitted only the government to submit evidence.69
And even if Ford’s “opportunity to be heard” requires a modicum of financial
assistance in the case of indigent prisoners, the district court here eventually




       68
         Cf. Aldridge v. Cockrell, 92 F. App’x 60, 72 (5th Cir. 2003) (unpublished) (“[I]n cases
where a district court grants a COA with respect to the merits of a constitutional claim but
the COA is silent with respect to procedural claims that must be resolved if the panel is to
reach the merits, the court of appeals will assume that the COA also encompasses any
procedural claims that must be addressed on appeal.” (quoting Jones v. Smith, 231 F.3d 1227,
1231 (9th Cir. 2000); McCoy v. United States, 266 F.3d 1245, 1248 (11th Cir. 2001) (internal
alterations omitted)).
       69
          Panetti, 551 U.S. at 949, 951 (“[T]he[] basic requirements [of due process in Ford
competency hearings] include an opportunity to submit evidence and argument from the
prisoner’s counsel . . . . [Here,] the state court . . . failed to provide [Panetti] with an adequate
opportunity to submit expert evidence in response to the report filed by the court-appointed
experts.”); Ford, 477 U.S. at 430 (“If there is one ‘fundamental requisite’ of due process, it is
that an individual is entitled to an ‘opportunity to be heard.’ In this case, petitioner was
deprived of that opportunity [because] the Florida statute does not require the Governor to
consider materials submitted by the prisoner, and the present Governor has a ‘publicly
announced policy of excluding’ such materials from his consideration.”)(Powell, J., concurring
in part and concurring in judgment).

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                                         No. 08-70015

authorized some $9000 in funds, allowing Panetti to retain a team of competent
experts to assist him in developing evidence of his alleged incompetency.70
       Panetti nonetheless complains that the district court’s denial of additional
funding prevented his experts from “fully” reviewing the TDCJ’s secret
recordings and obtaining a PET scan necessary to respond to the State’s
allegations of malingering.71 He relies on a 1929 opinion by then-Judge Cardozo
for the proposition that “a defendant may be at an unfair disadvantage [at trial]
if he is unable because of poverty to parry by his own [expert] witnesses the
thrusts of those against him.”72 But as Panetti and Ford both emphasized, “a
constitutional procedure [in Eighth Amendment competency hearings] may be
far less formal than a trial.”73 And even assuming, arguendo, that Panetti was
entitled to all of the due process protections afforded to a capital defendant,
which include “access to a competent psychiatrist” if “sanity at the time of the
offense is to be a significant factor at trial,”74 the district court furnished Panetti
with three competent experts — including a forensic psychiatrist — who
collectively evaluated him for some fifteen hours.75 The fact that the court did
not accede to all of Panetti’s demands for additional funding cannot be fairly


       70
        See Panetti, 2008 WL 2338498, at *19–22. Panetti has stipulated that he is “not
complaining about the competency of his experts.”
       71
          See JACK KITAEFF, MALINGERING, LIES, AND JUNK SCIENCE IN THE COURTROOM 52
(2007) (“Positron emission tomography (PET) scans are . . . a possible aid in determination of
malingering. PET scans are a minimally invasive nuclear medicine imaging system that uses
radiopharmaceuticals that are short lived to detect perfusion and metabolic activity in the
various organ systems . . . [including] brain metabolism and function.”).
       72
            Reilly v. Barry, 166 N.E. 165, 167 (N.Y. 1929) (Cardozo, C.J).
       73
        Panetti, 551 U.S. at 949 (quoting Ford, 477 U.S. at 427 (Powell, J., concurring in part
and concurring in judgment)).
       74
            United States v. Snarr, 704 F.3d 368, 405 (5th Cir. 2013).
       75
            Panetti, 2008 WL 2338498, at *19–22.

                                               17
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                                           No. 08-70015

characterized as an abuse of discretion,76 particularly as his experts were able
to review and respond to large swaths of the TDCJ’s recordings, and as his late-
arriving request for a PET scan violated the court’s scheduling order.


                                               III.
       Panetti next argues that the district court erred in finding him competent
to be executed under the Eighth Amendment as read by Ford and Panetti. To
evaluate Panetti’s argument, we must first determine whether the district court
applied the correct standard in assessing Panetti’s competency — a legal
question we review de novo. The Supreme Court’s remand opinion provides only
limited guidance, advising that Ford does not “foreclose inquiry” into whether
a prisoner’s psychotic delusions prevent him from attaining a “rational
understanding” of the retributive basis for his execution and that such delusions
“may put an awareness of a link between a crime and its punishment in a
context so far removed from reality that the punishment can serve no proper
purpose.”77 The district court read the remand opinion as setting forth a
mandatory “rational understanding” test for Eighth Amendment competency, a
test substantially identical to the Dusky standard for competency to stand trial.78
On appeal, both parties seem to agree that Panetti sets forth a mandatory test;
however, the State challenges the district court’s reliance on Dusky and its
circuit-level progeny, urging that Dusky’s inquiry into a defendant’s ability to
assist in his defense has no place in our Eighth Amendment jurisprudence.




       76
         Snarr, 704 F.3d at 404 (“We review a district court’s denial of funding for expert
witnesses for abuse of discretion.”).
       77
            Panetti, 551 U.S. at 958–60.
       78
            Panetti, 2008 WL 2338498, at *31, 32–34.

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                                             No. 08-70015

         We need not deviate from the parties’ assumption that Panetti establishes
a mandatory “rational understanding” test to agree with the State that Dusky
and company should not be imported wholesale into the Eighth Amendment
context. Dusky’s inquiry into a defendant’s “rational understanding” of the
charges against him is footed on the essentials of due process, probing whether
a defendant “has sufficient present ability to consult with his lawyer to assist in
his defense.”79 Panetti’s inquiry into a prisoner’s “rational understanding” of the
basis for his execution arises out of conceptually distinct Eighth Amendment
concerns, including “the [questionable] retributive value of executing a person
who has no comprehension of why he has been singled out and stripped of his
fundamental right to life” and “the natural abhorrence civilized societies feel at
the killing of one who has no capacity to come to grips with his own conscience
or deity.”80 As it is not self-evident that the level of understanding necessary to
assist in one’s defense serves the retributive aims of the death penalty, Dusky
and progeny do not necessarily provide an appropriate metric for determining
competency to be executed.
         However, we do not read the district court’s references to Dusky as
meaningfully influencing its competency determination, as its actual analysis
of Panetti’s “rational understanding” rested exclusively on the language and
retributive rationale of the Supreme Court’s remand opinion.81 That is, the
district court found Panetti competent because he “has both a factual and
rational understanding of his crime, his impending death, and the causal
retributive connection between the two,” an understanding “most clearly



         79
              Dusky, 362 U.S. at 402; see also, e.g., Lafferty v. Cook, 949 F.2d 1546, 1556 (10th Cir.
1991).
         80
              Panetti, 551 U.S. at 957 (quoting Ford, 477 U.S. at 409–10).
         81
              See Panetti, 2008 WL 2338498, at *34–37.

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                                         No. 08-70015

demonstrated” by his “rationally articulated position that his punishment is
[morally] unjustified” in light of his insanity at the time of his offense.82
Satisfied that the district court applied the correct legal standard in assessing
Panetti’s Eighth Amendment competency, we turn to address whether the
district court’s ultimate finding of competency is clearly erroneous in light of the
evidence adduced at Panetti’s competency hearing.83 We conclude that it is not.
       First, the expert testimony on Panetti’s “rational understanding” of his
punishment is conflicting, a circumstance that is probably itself sufficient to
sustain the district court’s judgment under a clear-error standard.84 The State’s
chief expert — Dr. Waldman — doubted that Panetti suffered from any form of
mental illness and was “emphatic in his opinion that Panetti has a rational
understanding of . . . the connection between [his] crime and [his] execution,”85
pointing to Panetti’s oft-vocalized belief that he should not have been convicted
in light of his insanity.86 While the defense’s experts countered that Panetti
genuinely believed that his impending execution was part of a satanic conspiracy
to keep him from preaching, even they acknowledged that Panetti no longer
clearly expressed this delusion when interviewed in December 2007. The district
court reviewed this conflicting testimony in painstaking detail,87 agreeing with
the defense that Panetti was “seriously mentally ill” but crediting the State’s
position that his competency was evidenced “by his rationally articulated

       82
            Id. at *36–37.
       83
            See Patterson v. Dretke, 370 F.3d 480, 484 (5th Cir. 2004).
       84
         See, e.g., McClain v. Lufkin Indus., Inc., 519 F.3d 264, 279 (5th Cir. 2008) (“An
appellate court owes great deference to the findings of the trial court with respect to duly
admitted expert testimony.”).
       85
            Panetti, 2008 WL 2338498, at *25.
       86
            Id.
       87
            See id. at *19–27.

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                                       No. 08-70015

position that . . . the State should not execute him because he was mentally ill
when he committed the murders.”88 The court’s careful draw on the experts’
conflicting testimony is entitled to “great deference” from this Court.89
      Second, the TDCJ’s secret recordings of Panetti’s conversations with
family members generally corroborate the testimony of the State’s experts.
Panetti converses normally for some eleven hours and demonstrates a
remarkably sophisticated understanding of his capital case, supporting the
State’s allegations of malingering. For example:
•     On December 4, 2007, Panetti tells his parents to notify Maurie Levin (the
      co-director of the University of Texas capital punishment clinic) about a
      “character witness” that Panetti “knew from years ago that saw me run
      and preach and may not be here anymore.” Panetti seems to be aware
      that he may be on tape, stating “I hope they don’t know what I’m talking
      about . . . . If they are taping it, I did not tell that character witness
      anything, there’s no in cahoots, no planning.”

•     On December 10, 2007, Panetti tells his parents about the death-penalty
      moratorium in the wake of the Supreme Court’s grant of certiorari in “the
      lethal injection case,” i.e., Baze v. Rees,90 noting that he had “a feeling
      they’re in for a surprise like they were in my case.”

•     On December 17, 2007, Panetti predicts that the Supreme Court will once
      again grant certiorari if this Court rejects his Ford claim, noting that “the
      clerks, the Supreme Court, dug deep down into that [in the remand
      opinion], and the end of the opinion they said that Sparks would come up
      with a decision in agreement with our decision. So if they want to pull a
      shenanigan and send it back through there again, now don’t be afraid if
      this hearing goes, because it’s just gonna — it’s just gonna be better in the
      end, because it’s gonna go back there again and they’re not gonna like it.
      They’ve done that with other cases, and the Supreme Court gets angry
      with Texas for doing that.”



      88
           Id. at *36.
      89
           McClain, 519 F.3d at 279.
      90
           553 U.S. 35 (2008).

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                                  No. 08-70015

Panetti also demonstrates that he has thought about the death penalty and its
moral and political implications, corroborating the State’s experts’ determination
that he is capable of understanding the retributive connection between his crime
and his punishment. For example:
•     On December 4, 2007, Panetti observes that “in the Old Testament God
      says the greatest part of justice is mercy. And in the Old Testament when
      it comes to the death penalty, you — you gotta have two or more
      eyewitnesses. This is in the Old Testament law, and there were many
      cities in refuge. Where if there’s any question of someone accidentally or
      unknowing [sic] kills somebody, they can go to that city of refuge.”

•     On the same date, Panetti reflects on the likelihood that the 2008 election
      may lead to changes in capital punishment, observing that “it depends on
      whoever gets the nomination,” that “from what I heard on the news today,
      Hillary’s for the death penalty,” and that “[indecipherable] percentage is
      against the death penalty.” When Panetti’s mother suggests that Hillary
      “works for the Jewish people in her state” and that Jewish people “believe
      eye for an eye, tooth for a tooth,” Panetti disagrees, urging that “[m]ost all
      Jewish people, because of the Holocaust, are very much against the death
      penalty.”
Finally, and most importantly, Panetti attributes his capital conviction to his
trial judge’s political corruption and the peoples’ desire for retribution,
corroborating the State’s experts’ conclusion that he actually understands the
reason for his punishment. Among other things, Panetti characterizes his
competency-to-stand-trial hearings as “kangaroo” courts, complains about his
trial judge’s “screwups” and involvement in “corrupt Texas politics,” and
suggests that he was convicted because “[the trial judge] had to have a hanging”
and “Fredricksburg had to have a hanging.” Not once does Panetti indicate that
the State is seeking his execution to prevent him from “preaching the Gospel,”
as his delusions allegedly cause him to believe.
      For the first time in his reply brief, Panetti urges that the district court
erred in “placing game-changing weight” on the TDCJ’s secret recordings, citing
recent state- and district-level decisions for the proposition that Eighth

                                        22
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                                         No. 08-70015

Amendment competency determinations should rely on “probing questions by
experts in a structured competency examination.”91 But as one of the State’s
expert’s testified without contradiction below, “there is yet no reliable objective
[psychiatric] test to assess what one believes in the absence of demonstrated
understanding,” supporting the district court’s first-hand consideration of
Panetti’s conversations.92 More importantly, Panetti’s three experts spent some
fifteen hours asking him “probing questions” about his delusional belief system,
and the district court carefully considered their findings — as well as the State’s
experts’ conflicting accounts — in reaching its competency determination.93 The
mere fact that the court considered the TDCJ’s recordings in determining whose
experts to credit is not clear error, nor do the cases cited by Panetti suggest
otherwise. For example, in Billiot v. Epps,94 the district court relied in part on
the prisoner’s “appearance at [the competency] hearing,” which was “consistent
with [his expert’s] opinion that [his] condition will likely continue to worsen, and
[that] his prognosis is bleak.”95          Tellingly, Panetti himself relied on fact
testimony from his fellow death-row inmates to corroborate the testimony of his
experts at his second competency hearing.


                                             IV.
       The final issue for review is whether Panetti is entitled to relief from his
1995 conviction under the Supreme Court’s 2008 decision in Indiana v. Edwards,


       91
        Specifically, Panetti relies on Billiot v. Epps, 671 F. Supp. 2d 840 (S.D. Miss. 2009),
and Pennsylvania v. Banks, 29 A.3d 1129 (Pa. 2011).
       92
            Panetti, 2008 WL 2338498, at *26 (emphasis added).
       93
            See id. at *19–23.
       94
            671 F. Supp. 2d at 881–82.
       95
            Id. at 882.

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                                         No. 08-70015

which clarified that a state court has discretion to “insist upon representation
by counsel for those competent enough to stand trial under Dusky but who still
suffer from severe mental illness.”96 The district court concluded that Panetti’s
Edwards claim was Teague-barred, or, in the alternative, failed on the merits.
For the first time on appeal, the State contends that Panetti’s claim is barred by
28 U.S.C. § 2244, also urging that the district court should have held the claim
procedurally defaulted. As we agree that Panetti’s Edwards claim is Teague-
barred, we do not reach the State’s alternative arguments.97
       Under Teague v. Lane,98 a federal habeas court can apply a new rule of
constitutional law retroactively only if the rule (i) “places a class of private
conduct beyond the power of the State to proscribe” or (ii) is a “watershed rule[]
of criminal procedure implicating the fundamental fairness and accuracy of the
criminal proceeding.”99 Here, both parties agree that Edwards announced a
“new rule” of criminal procedure, and the only issue in dispute is whether this
rule falls within the second, “watershed” exception to Teague’s retroactivity bar.
The Supreme Court has instructed that a new rule qualifies for “watershed”
status only if it (i) “[is] necessary to prevent an impermissibly large risk of an

       96
            554 U.S. at 174–75.
       97
          Because Panetti’s Edwards claim fails under a de novo application of Teague’s
retroactivity bar, we need not and do not opine on the interaction between AEDPA and
Teague. Cf., e.g., United States v. Quiroga-Hernandez, 698 F.3d 227, 228 n.2 (5th Cir. 2012)
(“Because Hernandez’s argument fails even under de novo review, we need not decide whether
the plain error standard applies.”). At least one panel of this Court has held that Teague must
be viewed and applied through the deferential AEDPA lense. See Cockerham v. Cain, 283 F.3d
657 (5th Cir. 2002) (holding that unless the Supreme Court has itself “clearly established” that
a new rule is retroactive under Teague, the new rule “c[an]not be considered with regard to
[§ 2254(d)] petitions”). However, other panels have applied Teague without reference to
AEDPA. See, e.g., Lave v. Dretke, 444 F.3d 333, 334–36 (5th Cir. 2006). The Supreme Court
has suggested that Teague requires a “threshold . . . analysis” that is “distinct” from AEDPA.
Horn v. Banks, 536 U.S. 266, 272 (2002).
       98
            489 U.S. 288 (1989).
       99
            Saffle v. Parks, 494 U.S. 484, 494–95 (1990) (quoting Teague, 489 U.S. at 311).

                                               24
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                                         No. 08-70015

inaccurate conviction” and (ii) “alter[s] our understanding of the bedrock
procedural elements essential to the fairness of a proceeding.”100 As the district
court observed, Edwards appears to satisfy the first element of this test: after
all, the Edwards Court itself cautioned that “insofar as a defendant’s lack of
capacity threatens an improper conviction or sentence, self-representation in
that exceptional context undercuts the most basic of the Constitution’s criminal
law objectives, providing a fair trial.”101
       However, for a new procedural rule to amount to the sort of previously
unrecognized “bedrock” constitutional principle entitled to retroactive
application, it must effect a sea change in criminal procedure comparable to that
wrought by Gideon v. Wainwright,102 which afforded all felony defendants a right
to counsel at trial.103 The Supreme Court “ha[s] not hesitated to hold that less
sweeping and fundamental rules” do not qualify,104 emphasizing that the second
Teague exception is “extremely narrow” and that it is “unlikely” that new
procedural rules will emerge that fall within it.105 Though Edwards reflects an
important shift in the Supreme Court’s jurisprudence on a criminal defendant’s
Faretta right to self-representation,106 the change is hardly as “sweeping and


       100
        Whorton v. Bockting, 549 U.S. 406, 418 (2007) (citations omitted) (internal quotation
marks omitted).
       101
             Edwards, 554 U.S. at 176–77.
       102
             372 U.S. 335 (1963).
       103
             Whorton, 549 U.S. at 419.
       104
             Beard v. Banks, 542 U.S. 406, 418 (2004).
       105
             Whorton, 549 U.S. at 417–18.
       106
          The Court’s pre-Edwards decision in Godinez v. Moran suggested that the Faretta
right was absolute, even if invoked by a severely mentally ill criminal defendant. See 509 U.S.
389, 400 (1993) (“[A] criminal defendant’s ability to represent himself has no bearing upon his
competence to choose self-representation.”).

                                               25
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                                         No. 08-70015

fundamental” as that wrought by Gideon’s guarantee of counsel to all felony
defendants. As the Edwards Court noted, its new rule applies only in the
“exceptional” situation where a defendant is found competent to stand trial and
elects to appear pro se, but is so severely mentally ill that his self-representation
threatens an improper conviction or sentence.107                 Even then, Edwards is
permissive, allowing the state to insist on counsel, but not requiring that the
state do so.108 It is thus difficult to characterize Edwards as “creating a bedrock
Constitutional right” or “altering our understanding of the bedrock procedural
elements essential to the fairness of the proceeding.”109 Ultimately, Edwards is
no more fundamental than the many other non-Gideon procedural rules that the
Supreme Court has refused to apply retroactively.110
       Panetti tries to avoid the limited scope of the Edwards decision by
characterizing it as an extension of Gideon’s right to counsel. Citing to a string
of pre-Teague cases, Panetti observes that “the Supreme Court has found every
extension of the right to counsel . . . retroactively applicable to cases on collateral
review.” But even accepting Panetti’s premise that all Gideon-extension rules
should be entitled to watershed status, Edwards is better characterized as a
limitation on the Faretta right to self-representation — a characterization
Panetti himself repeatedly adopts in other portions of his briefing as well as his
filings below. Tellingly, the Edwards Court made no reference to Gideon or any
of the other cases bearing on a criminal defendant’s right to counsel, instead




       107
             Edwards, 554 U.S. at 176.
       108
             See id.
       109
             Whorton, 549 U.S. at 420–21 (emphasis added).
       110
          See id. at 418 (“[I]n the years since Teague, we have rejected every claim that a new
rule satisfied the requirements for watershed status.”).

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                                       No. 08-70015

focusing entirely on distinguishing Faretta and progeny.111 We conclude that
Edwards is not retroactively applicable on collateral review.112


                                                V.
       For the foregoing reasons, we AFFIRM the district court’s denial of
Panetti’s second and third federal habeas petitions.




       111
             See Edwards, 554 U.S. at 169–80.
       112
           Teague’s retroactivity bar aside, it is far from clear that Panetti would be entitled
to relief on his Edwards claim — under the deferential AEDPA standard or otherwise.
Edwards is permissive, holding only that the Constitution does not forbid a state to demand
representation by counsel for defendants who, though competent to stand trial, suffer from
severe mental illness. Edwards, 554 U.S. at 167. The Edwards Court never expressly held
that due process is violated by a state trial court’s failure to demand counsel in such
circumstances, emphasizing that the decision to insist on counsel should generally be left to
the sound discretion of the trial judge. Id. at 177. As the Seventh Circuit recently observed
in rejecting an Edwards challenge functionally identical to Panetti’s on direct appeal, “to read
Edwards to require counsel in certain cases” would be “a dubious reading.” United States v.
Berry, 565 F.3d 385, 391 (7th Cir. 2009) (emphasis in original).

                                                27
