IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-70006

STEVEN ANTHONY BUTLER, 

 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 Southern District of Texas

USDC No. 4:07-CV-2103

Before OWEN, HAYNES, and COSTA, Circuit Judges.

PER CURIAM:*

Steven Butler seeks a certificate of appealability (COA) to challenge his 

capital conviction as the result of ineffective assistance of counsel. His 

arguments are that his trial counsel failed (1) to present expert witnesses with 

important information indicating that he was incompetent to stand trial and 

(2) to investigate Butler’s potential impaired intellectual functioning and 

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

August 14, 2018

Lyle W. Cayce

Clerk

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competence and present that as mitigating evidence during the penalty phase 

of trial. We DENY the COA.

I. Background.

Butler confessed to a robbery spree that involved ten incidents in less 

than five months during which, in addition to robbery, he committed murders, 

attempted murders and rape.1 He was eventually apprehended, arrested, and 

charged with capital murder based upon his fifth robbery, during which he 

shot and killed an unarmed woman. Ex Parte Butler, 416 S.W.3d 863, 867 

(Tex. Crim. App. 2012) (per curiam).

Before trial, Butler corresponded with his trial counsel and exhibited 

some unusual behavior referencing “demons” and a non-existent person, “R. 

Palmer,” who he seemed to rely upon for his actions. About a year after the

first reference to “R. Palmer,” Butler’s trial counsel requested examinations 

to determine whether Butler was sane and competent. Two experts—

psychiatrist Jaime Ganc and clinical psychologist Ramon Laval—each 

independently evaluated Butler on two different days in September 1988. The 

reports are similar, both premised only on the interviews with Butler. Each 

indicates information from Butler about his childhood, specifically that he was 

in an orphanage in Illinois and later adopted by the Butler family of 

Mississippi. The rest of the expert’s comments are unremarkable except that 

each concluded, based on Butler’s then-present cognitive functioning, that 

Butler was competent to stand trial.

 

1 Butler’s crimes and previous attempts at habeas relief are described by the Texas 

Court of Criminal Appeals, see Ex parte Butler, 416 S.W.3d 863 (Tex. Crim. App. 2012), Butler 

v. State, 872 S.W.2d 227 (Tex. Crim. App. 1994), and a previous decision of our court, see 

Butler v. Stephens, 625 F. App’x 641 (5th Cir. 2015) (per curiam). We recite here only the 

facts necessary to resolve Butler’s current motion.

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The record does not indicate that Butler’s trial counsel took any further 

steps to challenge Butler’s competency after receiving these reports. Butler 

stood trial about two months later, when a jury convicted him and sentenced 

him to death. He did not raise the issue of competency on direct appeal. 

While pursuing state habeas relief, Butler’s habeas counsel found letters 

from Butler to his trial counsel referencing “R. Palmer.” He also realized that 

Butler’s statements regarding his birth and his alleged time in an orphanage

were inconsistent with testimony from Butler’s parents at trial. They testified

that Butler was born and raised in Mississippi to their family, not adopted 

after being born in Illinois. Additionally, Butler’s new counsel noticed that 

Butler told Dr. Laval that he was sent to a mental ward at age 16, but he told 

Dr. Ganc that he had not had any previous psychiatric care. 

Butler’s new counsel identified other information, apparently not known 

to Butler’s trial counsel, that he believed proved Butler was not mentally 

competent at the time of trial, including: Butler’s use of drugs; reports from 

another inmate that Butler was “crazy” and talked to himself; reports from an 

attorney who represented him in a different criminal case that Butler was 

abusive and accused the attorney of conspiring with the government; a prison 

diagnostic report stated that Butler had a “dysphoric mood” and “sad affect,” 

which indicated he was “a depressed, somewhat paranoid individual who has 

a high potential for harm to self or others” and may have psychosis (or be 

malingering); and Butler’s extreme weight loss following his arrest. 

Butler’s new counsel contacted Drs. Ganc and Laval in 2002 to determine 

if their previous conclusions of competence still stood in light of the strange 

letters, Butler’s false statements, and the other additional evidence. They had 

somewhat differing views from each other on the impact of this new 

information.

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Dr. Ganc wrote that he could not modify his original opinion: “During my 

evaluation, according to my interpretation of my report, I did not feel there was 

any behavior or thinking that kept him from communicating with his 

counselor. This conclusion is stated in my report and I will stand by it.” 

Dr. Laval, however, was more equivocal. He noted that at the time of his 

evaluation, he “was not privy” to the information that Butler had accused his 

attorney of being a demon or that Butler had lied to Dr. Laval during the 

evaluation. For Dr. Laval, “collateral information suggesting that the 

defendant is manifesting paranoid thoughts or delusional ideas that involve 

his own attorney is of marked significance.” He expressed concerns that “at 

the time that [he] conducted [his] evaluation of Mr. Butler in September of 

1988, there was available information regarding his state of mind which would 

have been not only relevant but of paramount importance in reference to the

issue of competency to stand trial.” He believes that if he “reviewed and had 

been made aware of all that information,” then it “is possible . . . [he] would 

have concluded that Mr. Butler was not competent and required psychiatric 

treatment, including the use of anti-psychotic medication, for his competency 

to be restored.” 

Butler’s new counsel also contacted a third expert, psychiatrist Dr. 

George Woods, to re-assess Butler’s history. Dr, Woods noted that Butler 

“suffers from a major mental illness, Bipolar Disorder” and that the Texas 

Department of Criminal Justice “has acknowledged these symptoms and 

attempted treatments of this illness since 1995.” His report connected the 

information in the bullet points above to symptoms of Bipolar Disorder. Dr. 

Woods concluded that Drs. Ganc and Laval “had none of the information that 

had to be taken into account to make an accurate assessment of whether there 

were any problems in Mr. Butler’s relationship with his lawyers and whether 

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those problems were due to mental illness.” Dr. Woods went a step further and 

concluded that “Butler likely did not have capacity to cooperate with and assist 

his lawyers in his defense.” 

Armed with the new information and reports, Butler sought state habeas 

relief. Among his many arguments were two spurred by the information about 

Butler’s competence. First, he argued that he was deprived of the right to 

counsel because his counsel was ineffective for failing to inform Drs. Ganc and 

Laval about Butler’s erratic letters and lies during the evaluations. Second, 

he contended that his counsel was again ineffective for failing to raise the 

mental competency evidence during the punishment phase of trial to mitigate 

his sentence. 

The circuitous route that those two issues have taken is described in 

depth in our previous opinion. See Butler v. Stephens, 625 F. App’x 641, 656–

60 (5th Cir. 2015) (per curiam), cert. denied, 136 S. Ct. 1656 (2016). To make 

a long procedural history short, we concluded that Butler procedurally 

defaulted these issues in state court and the district court initially did not 

review the issues as barred. In light of intervening precedent, we vacated that 

decision and remanded, concluding that a subsequent Supreme Court decision, 

Martinez v. Ryan, may have provided a chance for Butler to overcome the

procedural default. 566 U.S. 1 (2012). 

On remand, the district court concluded that the default could not be 

excused under Martinez because Butler’s arguments were “without merit.” It 

denied a COA. Butler now requests that we grant him a COA on the two issues.

II. Standard of review.

Because no state court has previously considered the merits of Butlers’

two arguments, our analysis of whether to grant a COA is based upon an 

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underlying standard of review that is de novo. See Hoffman v. Cain, 752 F.3d 

430, 437 (5th Cir. 2014). 

“To succeed on an [ineffective assistance of counsel] claim, a defendant 

must show that (1) his counsel’s representation fell below an objective standard 

of reasonableness, and (2) the counsel’s deficient performance prejudiced the 

defendant.” United States v. Fields, 761 F.3d 443, 453 (5th Cir. 2014) (internal 

quotation marks omitted) (quoting, in part, Roe v. Flores-Ortega, 528 U.S. 470, 

476–77 (2000)). “The objective standard of reasonableness is measured under 

prevailing professional norms.” Id. (internal quotation marks omitted) 

(quoting, in part, Rompilla v. Beard, 545 U.S. 374, 380 (2005)). “To prove 

prejudice, ‘[t]he defendant must show that there is a reasonable probability 

that, but for counsel’s unprofessional errors, the result of the proceeding would 

have been different. A reasonable probability is a probability sufficient to 

undermine confidence in the outcome.’” Trevino v. Davis, 861 F.3d 545, 549 

(5th Cir. 2017) (brackets in original) (quoting Strickland, 466 U.S. at 694), cert.

denied, 138 S. Ct. 1793 (2018). When a defendant asserts that his counsel was 

ineffective for failing to investigate mitigating evidence, “we reweigh the 

evidence in aggravation against the totality of available mitigating 

evidence.” Id. (quoting Wiggins v. Smith, 539 U.S. 510, 534 (2003)).

Because Butler only seeks a COA at this stage, his burden is lighter. 

Butler must demonstrate that his claims of constitutional violations were such 

that jurists of reason could debate the district court’s disposition of the issues. 

Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (quotation marks omitted) 

(quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). If a district court denies 

a habeas petition on procedural grounds, we grant a COA “when the prisoner 

shows, at least, that jurists of reason would find it debatable whether the 

petition states a valid claim of the denial of a constitutional right and that 

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jurists of reason would find it debatable whether the district court was correct 

in its procedural ruling.” Segundo v. Davis, 831 F.3d 345, 350 (5th Cir. 2016) 

(quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). We are charged with 

reviewing the case only through this prism and thus must make only a general 

assessment of the merits. Id.; see also Buck v. Davis, 137 S. Ct. 759, 773 (2017). 

In a death penalty case, doubts about granting a COA should be resolved in 

favor of a grant. Escamilla v. Stephens, 749 F.3d 380, 387 (5th Cir. 2014).

III. Discussion.

Butler argues that his trial counsel was ineffective in two ways. First, 

he failed to provide critical information bearing on competency to the experts 

that evaluated him. Second, he failed to investigate Butler’s alleged impaired 

intellectual functioning and mental illness and then present evidence of it 

during the penalty phase of trial. Though Butler defaulted on those issues in 

state court, we may review those claims if (1) Butler had a “substantial” claim 

that his trial counsel was ineffective and (2) at the initial-review collateral 

proceeding, the prisoner either had no counsel or counsel was ineffective. 

Martinez, 566 U.S. at 17. We must therefore first address whether jurists of 

reason could debate that Butler’s claim of ineffective trial counsel is 

“substantial.” 

A. Presentation of evidence to experts regarding competency.

First, Butler argues that his trial counsel was ineffective because he 

failed to present certain information to the experts evaluating Butler for 

mental competency. Criminal defendants may be tried only if mentally 

competent. See Carter v. Johnson, 131 F.3d 452, 459 (5th Cir. 1997). Prisoners 

have sought habeas relief on the basis that their attorneys were ineffective by 

failing to challenge the prisoner’s competence to stand trial. See, e.g., Moody 

v. Johnson, 139 F.3d 477, 482–83 (5th Cir. 1998). In a similar context, we have 

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held that attorneys may rely on the opinion of experts in assessing a 

defendant’s mental health. See Segundo, 831 F.3d at 352. We do not appear 

to have addressed whether an attorney may rely on an expert’s opinion when 

it is based on information the attorney knows (or should know) to be incorrect. 

Even assuming a COA on the deficient performance prong under 

Strickland would therefore be appropriate, Butler must still show that jurists 

of reason would debate the district court’s conclusion that he has not shown 

prejudice. Under Strickland, a prisoner must not only prove that his counsel 

acted deficiently, he must also show that it affected the outcome of his

conviction. See Trevino, 861 F.3d at 549. To prove mental incompetency at 

the time of trial, Butler would have had to produce evidence that he did not 

have either “sufficient present ability to consult with his lawyer with a 

reasonable degree of rational understanding” or a “rational as well as factual 

understanding of the proceedings against him.” Dusky v. United States, 362 

U.S. 402, 402 (1960) (per curiam); see also TEX. CODE OF CRIM. PROC. ART.

46.02, § 1A (Vernon 1986). Butler would have borne the burden of proving that 

he was incompetent at the time of trial, and currently bears the burden of 

demonstrating that jurists of reason would debate the issue of prejudice in this 

regard. See Rector v. Johnson, 120 F.3d 551, 563 (5th Cir. 1997) (“[Habeas 

petitioner] bears the burden of proving both prongs [of Strickland] . . . .”); 

Manning v. State, 730 S.W.2d 744, 748 (Tex. Crim. App. 1987) (“[A] defendant 

has the burden of proving by a preponderance of the evidence, his 

incompetency to stand trial or his insanity at the time of the offense.”). 

Butler argues that his trial counsel should have “undertaken the 

investigation of Butler’s mental illness” and “communicated the information 

that they would have found, together with their own experiences with Butler, 

to the court-appointed experts.” Butler argues there is a reasonable probability 

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that the experts would have come to a different conclusion and, in turn, “the 

trial court would have found Butler incompetent to stand trial.” 

Butler has not presented any competent evidence that supports his 

theory that the additional evidence would have changed the experts’ opinions.

Dr. Ganc firmly stated that his original assessment stood. Dr. Laval said only 

that “it is possible” that he could have concluded that Butler was incompetent.2 

Butler argues that this is sufficient to meet Strickland’s requirement that 

there be a “reasonable probability” that the outcome of his case would have 

been different. Trevino, 861 F.3d at 549. But jurists of reason would not debate 

that Dr. Laval’s later equivocation about Butler’s competency does not satisfy 

the prejudice standard. We have held that an expert opinion that is “perfectly 

equivocal” cannot “make any fact more or less probable and is irrelevant.”

Pipitone v. Biomatrix, Inc., 288 F.3d 239, 245 (5th Cir. 2002) (affirming 

rejection of expert testimony that a fact was “as likely as not”). Dr. Laval’s 

later testimony does not provide any trustworthy indication that the experts 

would have come to a different conclusion, much less that it would have 

resulted in a trial court declaring him incompetent to stand trial. 

Consequently, we DENY a COA on Butler’s first issue.

B. Investigation of mental illness and impaired intellectual 

functioning.

Second, Butler argues that his trial counsel was ineffective for failing to 

more fully investigate Butler’s alleged impaired intellectual functioning and 

mental illness. Had trial counsel done such an investigation, Butler believes 

he could have avoided the death penalty. His theory is that trial counsel could 

 

2 Butler also argues that Dr. Woods’s report proves prejudice, but, as his briefing 

recognizes, his theory of prejudice requires showing that the original experts would have 

concluded he was incompetent. Here, we do not need to hypothesize about those experts’ 

views because we have their testimony, which we examine here. To the extent Dr. Woods is 

an “uncalled witness,” we address that below. See infra note 4.

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have explained to the jury that the robberies, rape, and murders were the 

product of his mental illness amplified by impaired intellectual functioning, 

drug use, and desperation for money to fuel his new addiction. This supposedly 

would have disproved that the crime was “committed deliberately and with the 

reasonable expectation that the death of the deceased would result,” a 

necessary prerequisite to Butler receiving the death penalty. We again 

conclude that no reasonable jurist would find fault with the district court’s 

conclusion. 

To begin with, Butler now relies on evidence that is too speculative to be 

of any use, despite having had decades to develop a theory and discover 

additional evidence. His entire theory comes from Dr. Woods’s expert report. 

Dr. Woods’s conclusions are hedged so thoroughly that they cannot provide any 

reliable basis for Butler’s theory. The best he could say was that “Butler was

likely feeding a growing drug addiction” and “likely developed a need for more 

money than he could earn,” so he “could very well have turned to robbery as an 

alternative means of generating enough money to buy drugs.” But Dr. Woods 

also reported that Butler sold marijuana and was employed in the oil industry, 

undermining his conclusion that Butler would quickly run out of money. Even 

more problematic is the total absence of evidence from Butler himself that the 

purpose of his crimes was to feed a drug addiction. If all Butler can now

present in support of his theory is conjecture, reasonable jurists would not 

debate that the additional evidence would not have swayed the jury. See 

McBride v. Johnson, 122 F.3d 1067, 1997 WL 464545, at *6 (5th Cir. 1997)

(unpublished) (concluding there was no prejudice for failing to investigate 

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mental health history and contest incompetency where the argument for 

incompetence was “based purely on speculation”).3

Additionally, Butler’s theory does not even begin to explain his ruthless 

and depraved crimes. We have denied a COA when the “severity of the 

offense” and an “apparent pattern of criminal activity” were so egregious that 

“additional mitigating evidence” would be insufficient to sway the jury. Sorto 

v. Davis, 672 F. App’x 342, 351 (5th Cir. 2016) (per curiam). Similarly, we 

denied a COA when “the aggravating evidence was overwhelming.” Guevara 

v. Stephens, 577 F. App’x 364, 371 (5th Cir. 2014) (per curiam). No rational 

jury, after hearing about Butler’s meticulously planned and despicably 

executed crimes, would be swayed by Butler’s new theory, premised on the 

flimsiest of conjecture. For example, Butler cites Dr. Woods’s report to argue 

that Butler’s murders were likely a “defensive response that did not reflect 

deliberation or planning,” which were triggered by a Bipolar-and-drug-induced 

paranoia. But that conclusion is at odds with Butler’s meticulously planned 

crimes that included specific threats to kill people if they attempted to stop 

him, as well as the wholly gratuitous and violent sexual assaults. Butler’s 

attempted connections from his crimes to his alleged mental illness are so 

attenuated that no reasonable jurist would conclude he suffered prejudice 

under Strickland. See Nixon v. Epps, 405 F.3d 318, 327–28 (5th Cir. 2005)

(concluding that a prisoner failed to satisfactorily connect his mental illness to 

the commission of his crimes and thus failed to show prejudice).4

 

3 “An unpublished opinion issued after January 1, 1996 is not controlling precedent, 

but may be persuasive authority. 5th Cir. R. 47.5.4.” Ballard v. Burton, 444 F.3d 391, 401 & 

n.7 (5th Cir. 2006).

4 The State also contends that Butler’s argument is one of “uncalled witnesses,” citing 

Woodfox v. Cain, 609 F.3d 774, 808 (5th Cir. 2010), and Day v. Quarterman, 566 F.3d 527, 

538–39 (5th Cir. 2009). When a habeas petitioner argues that his trial counsel was ineffective 

for failing to call a witness who would have introduced mitigating evidence, he must “name 

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No reasonable jurist would debate whether Butler was prejudiced by the 

lack of evidence regarding his mental health history. We DENY a COA on 

Butler’s second issue.

COA DENIED.

 

the witness, demonstrate that the witness was available to testify and would have done so, 

set out the content of the witness’s proposed testimony, and show that the testimony would 

have been favorable to a particular defense.” Day, 566 F.3d at 538. Butler counters that his 

argument is one of failure to investigate, and he need only show “what the investigation 

would have revealed and how it would have altered the outcome of the trial.” Lockett v. 

Anderson, 230 F.3d 695, 713 (5th Cir. 2000). But Butler’s entire theory is that had his trial 

counsel effectively investigated, he would have found an expert witness to testify of evidence 

regarding his mental illness. When the investigation is of that nature, we still follow the rules 

of uncalled witnesses. See Woodfox, 609 F.3d at 808 (“Woodfox maintains . . . that counsel 

was ineffective for failing to obtain his own experts . . . . At bottom, Woodfox’s claim is one of 

uncalled witnesses.”); Gregory v. Thaler, 601 F.3d 347, 351–53 (5th Cir. 2010) (analyzing the 

investigation claim in light of the fact that he intended to present evidence through 

witnesses). Jurists of reason would not debate that Butler cannot establish the requisites for 

a successful “uncalled witness” claim.

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