     Case: 13-70024       Document: 00512896636         Page: 1    Date Filed: 01/09/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 13-70024                        United States Court of Appeals
                                                                                   Fifth Circuit

                                                                                 FILED
PERRY ALLEN AUSTIN,                                                        January 9, 2015
                                                                            Lyle W. Cayce
               Petitioner–Appellant,                                             Clerk

v.

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

               Respondent–Appellee.




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:04-CV-2387


Before OWEN, ELROD, and HAYNES, Circuit Judges.
PER CURIAM:*
       An application for a certificate of appealability (COA) filed by Perry Allen
Austin, a Texas death-row inmate, is presently before the court.                         Austin,
without the participation or prior knowledge of his appointed counsel,
indicated to our court that he desires to withdraw his appeal. We remand to
the district court for the limited purpose of making findings as to whether



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this order should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 13-70024
Austin is presently competent to waive further appeals of his conviction and
death sentence, and if Austin is found to be competent, whether such waiver is
knowing and voluntary.
                                               I
      We briefly recount the facts pertaining to Austin’s conviction,
sentencing, and post-conviction proceedings.            In September of 2000, while
incarcerated for another offense, Austin contacted a Houston police sergeant,
offering in a letter to confess to the murder of D.K., a minor, if Austin would
be charged with capital murder and guaranteed the death penalty. D.K. had
disappeared in 1992, and his remains were found the following year. Austin
was a suspect in D.K.’s disappearance and murder, but the State did not charge
Austin until after receiving the letter in 2001.
      Although Austin was initially appointed counsel, he wrote a letter to the
state trial court asking to waive counsel and plead guilty and indicated that he
would accept a death sentence and would waive all appeals. The trial court
held a Faretta 1 hearing and granted Austin’s motion to proceed pro se. Austin
pleaded guilty to capital murder.             During the punishment phase, Austin
presented no witnesses but briefly cross-examined one witness for the State.
In his closing argument, Austin addressed the jury; he stated that he would
commit further acts of violence in prison and that there were no mitigating
circumstances. The jury answered Texas’s special issues such that the state
district court was required to enter a sentence of death under Texas law.
      The trial court held a second Faretta hearing in which Austin waived his
right to counsel on direct appeal and in state habeas corpus proceedings.
Austin’s conviction and sentence were automatically appealed to the Texas




      1   Faretta v. California, 422 U.S. 806 (1975).
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                                     No. 13-70024
Court of Criminal Appeals (TCCA) under Texas law. He filed no brief, and the
TCCA affirmed his conviction. 2
      The state trial court set an execution date of September 8, 2003. On
September 2, 2003, Austin filed a motion to have habeas counsel appointed and
indicated he wished to pursue post-conviction relief.              The TCCA denied
Austin’s motion to file an untimely writ of habeas corpus. 3
      On June 21, 2004, Austin timely filed a federal habeas petition. The
State alleged that Austin’s claims were procedurally defaulted, but the federal
district court held that the TCCA had applied a new rule, which could not be
the basis for a procedural default. However, on August 21, 2012, the federal
district court granted the State’s motion for summary judgment on all claims
set forth in Austin’s habeas petition. The district court denied a COA.
      Austin then filed an application for a COA in this court on December 2,
2013. Briefing on the application is complete.
                                           II
      On September 17, 2014, this court received a letter from Austin, acting
without his appointed counsel, in which he requested to withdraw his appeal.
The full text of this typed letter states:
      Greetings,
           I am a Death Row prisoner currently residing on the
      Polunsky Unit in the Texas Department of Criminal Justice while
      my appeals makes [sic] its [sic] way through the court system.




      2  Austin v. State, No. 74732, 2003 WL 1799020, at *1 (Tex. Crim. App. Apr. 2, 2003)
(not designated for publication).
      3  Ex Parte Austin, No. 59,527-01 (Tex. Crim. App. July 6, 2004) (not designated for
publication),                                 available                                 at
http://www.search.txcourts.gov/SearchMedia.aspx?MediaVersionID=a0dc5220-2918-4cff-
a1fc-57bb35291ce7&coa=coscca&DT=OPINION&MediaID=852244e8-e3f3-4d2d-b424-
7c05a03bb9f3.
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                                  No. 13-70024
           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.
           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.
           Should the information my attorney gave me be correct and
     by dropping my appeals I could be prolonging my appeals, then I
     would like to request that you affirm my death sentence, deny my
     appeals, at which time I would then instruct my attorney to cease
     all work in my appeals. I would then request the trial court to set
     an execution date at its’ [sic] earliest possible date.
           Thank you for your consideration and I look forward to a
     favorable response.
     Sincerely,
     /s/
We requested that counsel for Austin and for the State respond to Austin’s
request to withdraw his appeal.
     On October 9, 2014, Austin’s counsel submitted a response that stated
that Richard Bourke, one of Austin’s two attorneys, had met with Austin on

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September 29, 2014.     The response said that during the meeting, Austin
expressed to counsel that he wished to be executed promptly and desired to
end his appeals. Counsel opined in the response that Austin continues to suffer
from serious mental illness, and Austin’s contentions in his application for a
COA before our court include Austin’s assertion that he was incompetent to
stand trial for D.K.’s murder and incompetent to waive trial counsel. In the
response that this court requested to Austin’s letter seeking to waive further
appeals, counsel stated that “[n]othing in Mr. Austin’s letter or the interview
. . . causes undersigned counsel to [abandon] the legal and factual propositions
advanced in” the habeas petition or COA application, but counsel
acknowledged that they were “[c]onstrained by Mr. Austin’s expressed wishes.”
Counsel also indicated that “[c]onsistent with Mr. Austin’s expressed wishes,”
counsel would file a motion to expedite consideration of the COA application.
After the State filed its response to Austin’s September 17, 2014 letter, counsel
for Austin filed a motion for expedited consideration on November 14, 2014.
      Austin’s letter requesting that we allow him to withdraw his appeal
conflicts with the motion to expedite consideration of the COA application
because, if this court were to grant a COA as to one or more of the issues raised
in Austin’s petition for a COA, then his appeal would continue, contrary to
Austin’s September 17, 2014 request to end further appeals. On December 11,
2014, we requested clarification from Austin’s counsel as to whether Austin’s
direct request to end appeals had been withdrawn.
      In a December 18, 2014 filing, one of Austin’s attorneys stated that he
had last spoken to Austin during counsel’s September 29, 2014 visit to the
prison in which Austin is confined. Accordingly, the December 18 filing simply
reiterated that during the September meeting, Austin both “advised that he
did not wish to withdraw his request to drop his appeals” and gave
“instructions to file the motion for expedited consideration” of his application
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for COA. Counsel has not had further communication with Austin since that
meeting.
                                              III
      In Rees v. Peyton, the Supreme Court held that when a death-row inmate
seeks to withdraw his habeas petition and forgo further legal proceedings, the
inmate must be competent to do so. 4 In Rees, a petition for certiorari had been
filed in the Supreme Court when Rees sought to end his appeals. 5 The Court
noted that the determination of whether Rees should be allowed to withdraw
his certiorari petition ultimately rested with the Court itself. 6 Although the
Court expressly retained jurisdiction, it determined that the district court
where Rees’s habeas proceedings began should “make a judicial determination
as to Rees’ mental competence and render a report on the matter.” 7 The
question presented to the district court was whether Rees “has capacity to
appreciate his position and make a rational choice with respect to continuing
or abandoning further litigation or on the other hand whether he is suffering
from a mental disease, disorder, or defect which may substantially affect his
capacity in the premises.” 8
      In Mata v. Johnson, this court held that when a death-row inmate seeks
to withdraw his habeas petition, “a habeas court must conduct an inquiry into
the defendant's mental capacity, either sua sponte or in response to a motion
by petitioner’s counsel, if the evidence raises a bona fide doubt as to his
competency.” 9 This court noted that the “extent and severity of the petitioner’s


      4   384 U.S. 312, 313-14 (1966) (per curiam).
      5   Id. at 313.
      6   Id.
      7   Id. at 313-14.
      8   Id. at 314.
      9   210 F.3d 324, 329-30 (5th Cir. 2000).
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                                         No. 13-70024
history of mental health problems which have been brought to the court’s
attention influence the breadth and depth of the competency inquiry
required.” 10 District courts have discretion regarding the procedures they
employ but, of course, must provide due process. 11 This court indicated that a
district court can afford a petitioner due process by (1) “ordering and reviewing
a current examination by a qualified medical or mental health expert,” (2)
“allowing the parties to present any other evidence relevant to the question of
competency,” and (3) “on the record and in open court, questioning the
petitioner concerning the knowing and voluntary nature of his decision to
waive further proceedings.” 12
       In the present case, at least some evidence calls into question Austin’s
competency to withdraw his appeal.                 We order a limited remand 13 to the
district court that previously considered Austin’s habeas petition. The district
court should make findings as to whether Austin is presently competent to
waive further appeals of his conviction and death sentence. If the district court
concludes that Austin is competent to waive further appeals, the district court
should make findings as to whether that waiver is knowing and voluntary. 14




       10   Id. at 330.
       11   Id. at 331.
       12   Id.
       13 See Rees, 384 U.S. at 314 (retaining jurisdiction and “direct[ing]” the district court
to make a competency determination without mentioning a “remand”); Mata, 210 F.3d at 327
(describing the Rees Court’s order for a competency inquiry in the district court as a “remand”
even though the Court explicitly stated that it retained jurisdiction); see also Jon O. Newman,
Decretal Language: Last Words of an Appellate Opinion, 70 BROOK. L. REV. 727, 734 (2005)
(“A court of appeals cannot simultaneously ‘retain’ jurisdiction and send the case back to a
district court for some further action. Whenever the panel wants a district court to take any
further action in the case, jurisdiction must be restored to the district court.”).
       14   See Mata, 210 F.3d at 331.
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                                No. 13-70024
                               *      *       *
      We REMAND to the district court for the limited purpose of making
findings related to Austin’s September 17, 2014 request to waive further
appeals, as indicated above. After the district court has made such findings,
this court will proceed accordingly. The case remains assigned to this panel.




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