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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-70011

DANIELLE SIMPSON

Petitioner - Appellant

v.

NATHANIEL QUARTERMAN, 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. 1:04-CV-485

Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.

PER CURIAM:*

Danielle Simpson was convicted by a Texas jury and sentenced to death

for the capital murder of Geraldine Davidson in 2000. His conviction and

sentence were affirmed on direct appeal, and the Supreme Court denied

certiorari. Simpson v. State, 119 S.W.3d 262 (Tex. Crim. App. 2003), cert.

denied, 542 U.S. 905 (2004). After exhausting his state habeas remedies,

Simpson sought federal habeas relief. The district court granted a certificate of

United States Court of Appeals

Fifth Circuit

F I L E D

August 12, 2009

Charles R. Fulbruge III

Clerk
No. 07-70011

2

appealability for Simpson’s claim that the district court erred by denying him an

evidentiary hearing on his claim that he is mentally retarded and thus ineligible

for execution under Atkins v. Virginia, 536 U.S. 304 (2002). Simpson requested

from this court an expansion of the COA for three additional claims.

On August 29, 2008, we remanded the case to the district court for an

evidentiary hearing on Simpson’s Atkins claim, and held in abeyance our

consideration of Simpson’s request for an expansion of the COA. On remand, the

district court conducted an evidentiary hearing and found that Simpson is not

mentally retarded. The case was re-submitted to this court on February 3, 2009.

On March 9, 2009, Simpson filed a motion to remand for a hearing, in

accordance with Mata v. Johnson, 210 F.3d 324 (5th Cir. 2000), on his request

to waive habeas review and proceed with execution. In the motion, Simpson’s

court-appointed counsel stated that while Simpson’s intellectual capabilities are

limited, he understands that if he waives his appeal he will soon be executed.

Counsel expressed a belief that Simpson is competent, although mentally

retarded. Counsel stated that, given that Simpson has spent eight years confined

in a small cell, his request to be executed is not unreasonable. In a handwritten

statement attached to the motion, Simpson explained his reasons for wanting to

drop his appeal:

I’m tired of being in a institution that’s unjust,

degrading, and corrupted – whereas on the other hand,

I’m tired of struggling to survive in a system that’s

highly injustices. “I’m ready to die”!! If I can’t be free

– “Kill Me”.!!

On April 10, 2009, we granted Simpson’s motion and remanded the case

to the district court for the limited purpose of conducting an evidentiary hearing

in accordance with Mata, to determine whether Simpson is competent to waive

federal habeas review and whether his decision to do so is knowing and

voluntary. 
No. 07-70011

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On remand, the district court ordered an evaluation of Simpson by an

expert mutually agreed on by counsel, and conducted an evidentiary hearing.

After considering Simpson’s testimony at the hearing, as well as the report and

testimony of the expert, the district court found:

[T]here is no evidence that [Simpson] is suffering from

a mental disease, disorder, or defect. [Simpson] has the

capacity to appreciate, and in fact does appreciate and

understand, his current legal position and the options

available to him. He is able to make a rational choice

among these options. The court finds that Danielle

Simpson is mentally competent to waive further habeas

review and that his desire to forego further litigation is

knowing and voluntary.

On July 6, Simpson’s counsel filed with this court a notice that Simpson

intended to continue with his appeal. Counsel moved to withdraw, and for the

appointment of new counsel to represent Simpson. We requested that the State

respond to the motion to withdraw.

On July 9, prior to receipt of the State’s response to the motion to

withdraw, Simpson’s counsel contacted the Clerk’s Office and advised that

counsel had received a letter from Simpson saying that he was confused when

he said that he wanted to continue his appeal and that, in fact, he wanted to

drop all challenges to his execution.

On July 22, Simpson filed a supplemental request to waive habeas review

and proceed with execution. He requested leave to withdraw his notice of

intention to continue appeal, and his counsel requested leave to withdraw their

motion to withdraw as counsel. Simpson’s counsel states that he believes that

Simpson’s desire to waive his appeal is sincere and carefully considered, and

that his earlier notice of intention to continue with the appeal was the result of

misunderstandings and miscommunication. Attached to the July 22 request is
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a statement by Simpson, in which he states, in his own handwriting, his desire

to proceed with execution and forego habeas review:

I’m tired of being imprisoned in a system that’s

devaluated, and struggling to survive under the cruel

and unusual punishments of an unjust institution

better know [sic] as Texas death row here on the

Polunsky unit in Livingston Texas. I want to drop my

appeals because, I don’t have “no” family support, care,

nor communications coming from my mother or sisters,

etc. . . . and providing that all my support comes from

overseas friends, I greatly appreciate the unconditional

love and support they’ve provided to me over the years.

Meanwhile, being locked up in a [sic] isolated solitary

cell of confinement 23/ and 24 hours per day isn’t justice

nor is it considered living – its cruel and unjust,

therefore I’m really looking forward to my execution

because its just “me against the world”. . . .

The district court, having conducted a hearing and considered the opinion

of an expert, has found that Simpson is competent to waive further habeas

review and that his decision to do so is knowing and voluntary. Based on those

findings, as well as counsel’s representations and Simpson’s own statement, we

conclude that Simpson, being competent to do so, has knowingly and voluntarily

waived further habeas review. Accordingly, Simpson’s motion to dismiss his

appeal is

GRANTED.