     Case: 16-70025      Document: 00514785251         Page: 1    Date Filed: 01/08/2019




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

                                      No. 16-70025                         FILED
                                                                     January 8, 2019
                                                                      Lyle W. Cayce
VICTOR HUGO SALDANO,                                                       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 Eastern District of Texas
                             USDC No. 4:08-CV-193


Before CLEMENT, HIGGINSON, and COSTA, Circuit Judges.
PER CURIAM:*
       Victor Saldaño appeals the district court’s denial of his petition for
habeas relief. This court previously granted Saldaño a certificate of
appealability (COA) on three issues, all related to his competency at his
punishment retrial. Saldano v. Davis, 701 F. App’x 302 (5th Cir. 2017). We
affirm the district court’s ruling.



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-70025


                          FACTS AND PROCEEDINGS
      In July 1996, Saldaño was convicted of capital murder and sentenced to
death. That sentence was ultimately overturned, and Saldaño was granted a
new punishment trial. See Saldano v. Roach, 363 F.3d 545 (5th Cir. 2004);
Saldano v. Cockrell, 267 F.Supp.2d 635 (E.D. Tex. 2003).
      The punishment retrial occurred in November 2004, and Saldaño’s
apparent mental deterioration was an issue throughout. Saldaño engaged in
various incongruous behaviors throughout the trial: insisting on wearing jail
clothes, reading magazines, repeatedly standing up in front of the jury while
shackled, soiling himself, laughing during testimony, and masturbating at
least four times. In light of this behavior, Saldaño’s counsel had him examined
by experts three times, and reported to the trial judge that he had been found
competent each time. The judge had numerous in-court dialogues with Saldaño
and stated near the end of the proceedings that he had no reason to question
Saldaño’s competency. Saldaño’s attorneys never requested, and the trial judge
never ordered, a competency hearing. As at his first trial, Saldaño was
sentenced to death.
      Saldaño filed a motion for a new trial, which was denied. That denial
was upheld on direct appeal. Saldano v. State, 232 S.W.3d 77, 82 (Tex. Crim.
App. 2007). Saldaño then filed for a writ of habeas corpus in state court, raising
a number of grounds for relief. The state court issued 511 findings of fact and
conclusions of law and recommended denying relief on all of Saldaño’s claims.
The Texas Court of Criminal Appeals adopted all the relevant state court
findings. Ex Parte Saldano, No. WR-41,313-04, 2008 WL 4727540 (Tex. Crim.
App. Oct. 29, 2008).
      Saldaño then filed his federal habeas petition, raising fifteen claims. The
district court denied relief on all of the claims but dismissed without prejudice
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                                        No. 16-70025
Saldaño’s claim that he was incompetent to be executed because it was
premature. The district court also declined to issue a COA on any of Saldaño’s
claims. Saldaño appealed, and this court granted a COA as to three claims: (1)
whether Saldaño was incompetent to stand trial; (2) whether the trial court
should have held a competency hearing; and (3) whether Saldaño’s attorneys’
failure to request a competency hearing constituted ineffective assistance of
counsel. Saldano, 701 F. App’x at 316. 1
                                  STANDARD OF REVIEW
       The district court’s factual findings are reviewed for clear error and its
legal conclusions are reviewed de novo. Roberts v. Dretke, 381 F.3d 491, 497
(5th Cir. 2004). Saldaño’s federal habeas petition is governed by the
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), which
provides in relevant part that:
       An application for a writ of habeas corpus on behalf of a person in
       custody pursuant to the judgment of a State court shall not be
       granted with respect to any claim that was adjudicated on the
       merits in State court proceedings unless the adjudication of the
       claim—
       (1) resulted in a decision that was contrary to, or involved an
       unreasonable application of, clearly established Federal law, as
       determined by the Supreme Court of the United States; or
       (2) resulted in a decision that was based on an unreasonable
       determination of the facts in light of the evidence presented in the
       State court proceeding.

28 U.S.C. § 2254(d).




       1 Saldaño has abandoned his first claim regarding actual incompetency. He contends
that the now nearly 15-year gap between the trial and any decision on his petition “is too long
for a retrospective competency determination” and so “the only issue in the present appeal
[aside from the ineffective assistance of counsel claim] is whether the trial court failed in its
obligation to sua sponte hold a competency hearing.” Therefore, this claim will not be
addressed. See Matchett v. Dretke, 380 F.3d 844, 848 (5th Cir. 2004) (claims not pursued are
deemed abandoned).
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      “A state court’s determination that a claim lacks merit precludes federal
habeas relief so long as ‘fairminded jurists could disagree’ on the correctness
of the state court’s decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011)
(quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). A state court’s
“factual findings are ‘presumed to be correct’ unless the habeas petitioner
rebuts the presumption through ‘clear and convincing evidence.’” Nelson v.
Quarterman, 472 F.3d 287, 292 (5th Cir. 2006) (quoting 28 U.S.C. § 2254(e)(1)).
Even if reasonable minds “reviewing the record might disagree about the
finding in question, on habeas review that does not suffice to supersede the
trial court’s . . . determination.” Wood v. Allen, 558 U.S. 290, 301 (2010)
(alteration in original) (quotation omitted).
                                     DISCUSSION
I. Due Process
      Saldaño contends that he was denied due process when the trial court
judge did not sua sponte conduct a competency hearing. He argues that the
state habeas court’s denial of this claim was based on an unreasonable
determination of the facts and that the objective evidence presented to the trial
court was sufficient to raise a bona fide doubt as to his competency.
      It is unconstitutional to try a mentally incompetent individual. 2 See
Indiana v. Edwards, 554 U.S. 164, 170 (2008). A defendant is incompetent if
“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.”
Drope v. Missouri, 420 U.S. 162, 171 (1975).




      2  We note that Saldaño also brought a habeas claim that he could not be executed
because he was incompetent. See TEX. CODE CRIM. PROC. ANN. art. 46.05; Ford v.
Wainwright, 477 U.S. 399, 410 (1986). Both the state habeas and district courts held that
this claim was premature because no execution date has been set.
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      “A state court must conduct an inquiry into the defendant’s mental
capacity sua sponte if the evidence raises a bona fide doubt as to competency.”
Mata v. Johnson, 210 F.3d 324, 329 (5th Cir. 2000); see also Pate v. Robinson,
383 U.S. 375, 385 (1966). “In determining whether there is a ‘bona fide doubt’
as to the defendant’s competence, the court considers: (1) any history of
irrational behavior, (2) the defendant’s demeanor at trial, and (3) any prior
medical opinion on competency.” Mata, 210 F.3d at 329; see also Drope, 420
U.S. at 180. If the court received objective evidence that should have raised a
bona fide doubt and failed to make further inquiry, “the defendant has been
denied a fair trial.” Mata, 210 F.3d at 329. The inquiry must only be “adequate
. . . to resolve” the question of competency. Curry v. Estelle, 531 F.2d 766, 768
(5th Cir. 1976) (per curiam).
      Saldaño asserts that there should have been a bona fide doubt as to his
competency because of: (1) evidence of his prior irrational behavior while
incarcerated; (2) evidence of hospitalizations in the prison psychiatric hospital;
(3) his in-court demeanor and behavior; and (4) affidavits from trial observers
who were convinced of his incompetence.
      Saldaño has failed to offer clear and convincing evidence to rebut the
state habeas court’s factual determination that there was insufficient evidence
to raise a bona fide doubt as to competency. The doctor’s affidavit Saldaño
relies on as evidence of prior irrational behavior also specifically states that
“his mental state did not deteriorate to the level of incompetency.” And his
behavior on death row before the retrial—including throwing his feces and
publicly masturbating—is not conclusive evidence of his ability to understand
his trial rationally and factually. Saldaño’s hospitalizations are similarly not
clear or convincing. He was hospitalized for four months in 2001 following a
suicide attempt and was diagnosed with depressive and schizoaffective
disorders. Following a second hospitalization in 2003, however, he was
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                                  No. 16-70025
discharged with only a diagnosis of antisocial personality disorder. Even if the
hospitalizations are evidence of possible mental illness, a “defendant can be
both mentally ill and competent to stand trial.” Mays v. Stephens, 757 F.3d
211, 216 (5th Cir. 2014).
      Further, evidence of Saldaño’s in-court behavior does not rebut the
presumption of the correctness of the state court’s finding that, after seven
weeks of observing and interacting with Saldaño, the trial judge had no reason
to question his competency. Importantly, in response to his disruptive and
bizarre behavior during the retrial, Saldaño’s attorneys had him examined for
competency three times; each time he was deemed competent. And defense
counsel repeatedly represented to the trial judge that Saldaño was competent.
Finally, Saldaño has not rebutted the state court’s finding that the after-the-
fact affidavits did not provide evidence that would have required a hearing.
      The state habeas court’s factual determination that there was not
sufficient evidence to raise a bona fide doubt as to Saldaño’s competency was
not unreasonable in light of the evidence presented.
II. Ineffective Assistance of Counsel
      Saldaño contends that his trial attorneys were constitutionally
ineffective because they failed to request a competency hearing. To establish
ineffective assistance of counsel, Saldaño must show both that his “counsel’s
performance was deficient” and that this “deficient performance prejudiced the
defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). Under the first
prong, counsel’s performance was deficient only if it “fell below an objective
standard of reasonableness.” Id. at 688. Under the second prong, to show
prejudice there must be “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.”
Id. at 694.


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                                 No. 16-70025
      Trial counsel has a duty to investigate “when he has reason to believe
that the defendant suffers from mental health problems.” Roberts, 381 F.3d at
498. A failure to request a competency hearing constitutes deficient
performance where “there are sufficient indicia of incompetence to give
objectively reasonable counsel reason to doubt the defendant’s competency.”
Jermyn v. Horn, 266 F.3d 257, 283 (3d Cir. 2001). To show prejudice, Saldaño
must show a reasonable probability that the trial court would have found him
incompetent had counsel requested a competency hearing. Felde v. Butler, 817
F.2d 281, 282 (5th Cir. 1987).
      The state habeas court found that Saldaño was competent to stand trial
and that Saldaño’s own counsel had conducted contemporaneous expert
competency evaluations showing the same, and so any request for a
competency hearing would have been futile. Therefore, the attorneys’
performance was not deficient. Saldaño argues that, based on the same
evidence he relies on for his due process claim, there were sufficient indicia of
incompetence to give objectively reasonable counsel doubt as to his
competency. We have already held that this evidence is insufficient to rebut
the state habeas court’s findings concerning the trial judge. It is similarly
insufficient with respect to Saldaño’s counsel. Saldaño has not shown that the
state habeas court’s determination that his attorneys’ performance was not
deficient was unreasonable in light of the evidence presented.
                                 CONCLUSION
      The district court correctly concluded that Saldaño was not entitled to
habeas relief. Accordingly, the district court’s ruling is AFFIRMED.




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