REVISED OCTOBER 7, 2013

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-70018

JEFFERY LEE WOOD,

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.

United States Court of Appeals

Fifth Circuit

F I L E D

October 4, 2013

Lyle W. Cayce

Clerk

* 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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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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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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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 UnitedLatin 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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