* 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.

1 Simon was separately tried for the murder of the Parkers’ daughter, Charlotte, for

which he was convicted and sentenced to life in prison.

REVISED March 5, 2012

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-70015

ROBERT SIMON, JR.,

Petitioner–Appellant

v.

CHRISTOPHER B EPPS, COMMISSIONER, MISSISSIPPI DEPARTMENT

OF CORRECTIONS,

Respondent–Appellee

Appeal from the United States District Court

for the Northern District of Mississippi

USDC No. 2:11-CV-111

Before JOLLY, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

Robert Simon Jr. was convicted and sentenced to death for the murders of

Carl and Bobbie Joe Parker and their son Gregory Parker.1 On May 13, 2011,

Simon filed a petition for a writ of habeas corpus in the United States District

United States Court of Appeals

Fifth Circuit

F I L E D

March 1, 2012

Lyle W. Cayce

Clerk
No. 11-70015

2

Court for the Northern District of Mississippi, claiming that he is incompetent

to be executed and that the Mississippi Supreme Court, in rejecting his claim of

incompetency, contravened the Supreme Court’s decisions in Ford v.

Wainwright, 477 U.S. 399 (1986), and Panetti v. Quarterman, 551 U.S. 930

(2007). The district court denied the petition, but granted Simon a Certificate

of Appealability (“COA”) on two issues, Simon v. Epps, No. 2:11-CV-111, 2011

WL1988388 (N.D. Miss. May 20, 2011), and Simon appealed. This court granted

a stay of his execution, which had been scheduled for May 24, 2011, in order to

consider his appeal. 

For the reasons stated below, we reverse the district court’s denial of

Simon’s habeas petition, and we remand the case to the district court for further

proceedings consistent with this opinion.

I. BACKGROUND

Simon’s petition claims that he is incompetent to be executed as a result

of a head injury suffered on January 7, 2011. His medical records, which were

disclosed to both Simon and the State by court order, document the treatment

that Simon received for this injury. One page of the records, titled “Emergency

Report: Man Down,” reflects that Simon was initially admitted to the prison

hospital around 5:45 a.m. on January 7, 2011. Simon’s chief complaints were

that he was confused, did not remember what had happened to him, and had a

severe headache. The report describes Simon as “awake and alert, but non

verbal to staff, with bruises spiraaled [sic] on his face from right frontal down to

left facial.” The report does not disclose the cause of this injury, but a related

progress note states that Simon “[c]laimed he slipped and fell and sustained

superficial scratches on the forehead and rt. face.” The report also indicates that

Simon expressed an inability to understand English during his examination. 

Simon was discharged from the hospital around 8:11 a.m. that same day with a

diagnosis of hypertension.
No. 11-70015

3

Simon’s records contain a second report titled “Emergency Report: Man

Down,” which states that Simon was readmitted to the hospital around 11:00

a.m. after being discovered unconscious. His admitting diagnosis was

“confusions.” The report indicates that Simon exhibited “[a]ltered neurological

function” and states that a goal for his treatment was attaining “[m]aximum

neurologic function.” Another goal listed was altering Simon’s “mental status”

by “reorient[ing him] to time and place.” At 11:25 a.m., a nurse noted that

Simon was speaking in “word salad.” After this second admission to the

hospital, Simon was kept in the hospital for several days.

At around 1:10 a.m. on January 8, 2011, a nurse noted that Simon was

“disoriented,” asking questions such as, “What?” “Where am I?” and, “What

happened?” At around 6:00 a.m. on January 9, Simon refused to take his

medications, stating, “These aren’t mine” and again asking, “Where am I?”

Simon appears to have been discharged some time on January 11, 2011. The

medical records indicate that his condition with respect to his chief complaint of

confusion was “[i]mproved” upon discharge.

On February 24, 2011, a psychiatry consult was requested for Simon

because he had exhibited “[a]bnormal behavior” for about two months.

Specifically, the request noted that Simon “talk[s] unusual[ly] and when asking

questions He repeat[s] the same words and Very unusual behavior since 2

months ago.” On March 1, 2011, Kim Nagel, M.D., “evaluated [Simon] at the

request of Dr. Kim who has noticed a change in his behavior in the last 2

months.” Following the evaluation, Dr. Nagel wrote:

The inmate has made a change in his communication pattern in the

last couple months. He has done things such as substitute the word

“me” in place of “I” when he refers to himself. When I asked him

about this, he said “they mean the same thing don’t they.” In effect

he is talking baby talk. He realizes this and it appears that staff

like the case manager Ms. Craft, who sees him fairly often, see this

as a coping mechanism to deal with prison. He referred to one of his
No. 11-70015

4

friends in a neighboring cell helping him out and he likes this. He

was in the hospital for several days at the beginning of this change.

He did not like the isolation of the hospital and said that there was

nothing wrong with him. At present he seems to be totally in

control ofthis desire to change his method of communication and he

has no complaints about his current status in general. I will

continue to check on him on occasion, and especially make sure that

Ms. Craft, who has known him for years, is comfortable with his

functioning. His [sic] is oriented and able to care for himself

adequately at present. I do not see any current need for further

intervention.

Shortly after this visit, on March 16, 2011, Simon’s attorneys, T.H.

Freeland IV and Forrest Jenkins, visited him. Freeland later stated by affidavit

that he had been contacted prior to the March 16 visit by another prisoner in

Simon’s unit, who told him that Simon had suffered a head injury and that

“something was seriously wrong with him.” Freeland stated in his affidavit that

when he arrived at the prison on March 16, “it was very clear that [Simon] did

not recognize” him. Freeland found this “very surprising,” because during the

more than ten years that Freeland had been representing Simon, Simon “was

both very aware of who [Freeland] was and viewed meetings with [him] as very

important.” Freeland attempted to discuss Simon’s injury with him, but Simon

told him that he did not know what had happened. Freeland also stated that

Simon did not know the names of his family members, did not appear to

understand the nature of the proceedings against him, and did not appear

capable of communicating information to Freeland about his case. Jenkins also

gave an affidavit about this meeting which accords with the account given by

Freeland. Jenkins stated that when the attorneys told Simon that his execution

date may be set in the near future, Simon responded, “Me?” Jenkins also stated

that Simon asked Freeland several times,“You sure you’re my lawyer?” and also

asked a guard if Freeland was really his lawyer.
No. 11-70015

5

On March 21, 2011, the United States Supreme Court denied Simon’s

petition for a writ of certiorari, Simon v. Epps, 131 S. Ct. 1677 (2011) (mem.),

and the Attorney General moved to set an execution date. That same day, Barry

Beaven, M.D., met with Simon “[i]n [order] to evaluate [his] memory and

confusion since a previous fall at request of Mr. Sparkman,” the prison

superintendent. Dr. Beaven noted that Simon “[a]lways has a headache.”

Describing Simon, Dr. Beaven wrote: “Doesn’t know president, home phone,

day/year, age, birthday. Doesn’t know mothers name. Can’t spell world

backwards. Doesn’t remember ball, flag, tree. Says me want this—3rd person

speech.” Finally, Dr. Beaven stated that Simon “asked about his TV and was

told that it hadn’t come in yet. He knew that his closthes [sic] size was too

small. He does have apparent memory about things he wanted. Direct

questioning made all responses invalid.”

On March 29, 2011, defense counsel responded to the motion to set an

execution date, arguing that Simon was incompetent to be executed. On March

31, 2011, the State moved to access Simon’s medical records. Defense counsel

filed a petition for post-conviction relief in state court based on Simon’s

incompetence and moved the court for appointment of counsel and for expert

assistance. On April 7, 2011, the Mississippi Supreme Court ordered that

Simon’s medical records be made available to both parties, and held Simon’s

other motions in abeyance. Because it is the policy of the Mississippi

Department of Corrections (“MDOC”) to require a court order before allowing

outside medical personnel to meet with inmates, the court’s decision to hold

Simon’s motions in abeyance effectively prevented Simon from being evaluated

by an outside expert. The court also ordered that all pleadings had to be filed by

the parties no later than 5:00 p.m. on April 21, 2011.

Although defense counsel were not permitted to have Simon evaluated by

an outside expert, they contacted John Goff, Ph.D., a board-certified
No. 11-70015

2 Dr. Carter’s exact degree is unclear; he states by affidavit that he has “a degree from

California University in psychology.”

6

neuropsychologist, and asked him to provide an opinion on Simon’s competence

based upon Simon’s medical records and the affidavits of his attorneys. Dr. Goff

opined that Simon’s medical records “quite strongly suggest[] the occurrence of

a significant neuropsychological event on 07 January 2011.” Dr. Goff further

stated:

The course of events here suggests that the neuropsychological

defect demonstrated by Mr. Simon may indeed be interfering

substantially with his ability to communicate with his attorneys and

that it may well constitute a mental illness or defect that is

preventing him from comprehending the reasons for the penalty

imposed upon him or its implications. The descriptions of him

suggest that he may have little or no understanding of the concepts

shared by his attorneys and the community as a whole. I am not

even certain that he has a factual understanding of his current

situation.

In addition, Dr. Goff noted that the mental status examination conducted upon

Simon by Dr. Beaven was “frankly abnormal” and “would seem to require

further follow up and more extensive examination.” Finally, Dr. Goff stated that

“[t]he only way to make definitive judgments in regard to [Simon’s] capacities to

understand his current situation and to determine the presence or absence of

significant mental illness or mental defect is for neuropsychological evaluation

to be performed.” Defense counsel submitted Dr. Goff’s affidavit, along with

their own affidavits and his medical records, in support oftheir petition for postconviction relief on April 20, 2011. 

The State filed its response to Simon’s petition on April 21, 2011, attaching

affidavits from Dr. Nagel and Dr. Beaven, as well as an affidavit from Dr.

William Carter.2 Dr. Nagel’s affidavits asserted that (1) Simon communicated

normally in English, (2) he was “sufficiently competent in his mental functions

to understand his situation,” (3) nothing “suggest[ed Simon] had a lack of
No. 11-70015

7

understanding of his situation,” (4) Dr. Nagel had “not known of a patient that

lost long-term, mid-term, and short-term memory contemporaneously,” and (5)

Dr. Nagel did not observe any memory loss in Simon during their conversation.

Dr. Carter’s affidavit described a visit he had with Simon on April 8, 2011,

approximately a week after Simon filed his petition for post-conviction relief

based on his incompetence and a day after the Mississippi Supreme Court held

in abeyance Simon’s motion for a court order for his own expert to evaluate him.

Dr. Carter stated in his affidavitthat his conversation with Simon was “normal”

and that Simon was “jovial and conversant.” Because of the deadline imposed

by the Mississippi Supreme Court, Simon was unable to reply to the State’s

responsive materials.

The Mississippi Supreme Court issued an En Banc Order on the basis of

the record evidence on May 5, 2011, denying Simon’s petition for post-conviction

relief after concluding that Simon had “failed to make a substantial threshold

showing of insanity/mental illness.” In coming to this conclusion, the court

appeared to rely on the following findings of fact: (1) Dr. Goff was only able to

state that “Simon may have suffered a significant neurological event,” rather

than stating that conclusion unequivocally; (2) Simon’s medical records

“reveal[ed] normal neurological findings at all relevant times”; and (3) the

affidavits from health care professionals submitted by the State reflected that

“Simon was lucid and communicated normally before and after January 7, 2011.”

Simon filed a petition for a writ of habeas corpus in the United States

District Court for the Northern District of Mississippi on May 13, 2011. On May

20, 2011, the court denied his petition for the writ. The district court also relied

upon the uncertainty in Dr. Goff’s opinion regarding Simon’s competence, noting

that suggestions of possible incompetence have previously been rejected by this

court, see Johnson v. Cabana, 818 F.2d 333, 339–40 (5th Cir. 1987), as

insufficientto make a substantialthreshold showing of incompetence. The court
No. 11-70015

3 Although Simon has previously applied for habeas relief from this court, Simon v.

Epps, 394 F. App’x 138 (5th Cir. 2010), his current petition is not considered “second or

successive” within the meaning of 28 U.S.C. § 2244(b) because his claim of incompetence to be

executed, stemming from an injury taking place on January 7, 2011, was not ripe at the time

of his prior petition. See Panetti, 551 U.S. at 945.

8

ultimately concluded that Simon had failed to show that the Mississippi

Supreme Court’s ruling was contrary to or an unreasonable application of

Supreme Court precedent. Nevertheless, the district court did grant Simon a

COA on two issues: (1) Simon’s claim of incompetence to be executed, and (2)

Simon’s claim that the Mississippi Supreme Court violated his right to

procedural due process.

II. JURISDICTION AND STANDARD OF REVIEW

Petitions for writs of habeas corpus are governed by the Antiterrorism and

Effective Death Penalty Act of 1996 (“AEDPA”). See Holland v. Anderson, 583

F.3d 267, 271 (5th Cir. 2009). Under AEDPA, one detained as a result of a state

court proceeding must obtain a certificate of appealability (“COA”) from either

the district or circuit court in order to appeal the district court’s denial of a

petition for the writ. 28 U.S.C. § 2253(c); see also Medellin v. Dretke, 371 F.3d

270, 274–75 (5th Cir. 2004). The district court granted Simon a COA, and thus

we have jurisdiction to hear his appeal.3

When reviewing a district court’s denial of a petition for a writ of habeas

corpus, we review issues of law de novo and findings of fact for clear error. Wiley

v. Epps, 625 F.3d 199, 204–05 (5th Cir. 2010). We must also focus our analysis

through the deferential lens AEDPA imposes for federal review of state court

merits determinations. Specifically, we are prohibited from granting a writ of

habeas corpus on a claim that was adjudicated on the merits by a state court

unless that adjudication either

(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
No. 11-70015

9

(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). “We review pure questions of law under the ‘contrary to’

standard of sub-section (d)(1), mixed questions of law and fact under the

‘unreasonable application’ standard of sub-section (d)(1), and pure questions of

fact under the ‘unreasonable determination of facts’ standard of sub-section

(d)(2).” Simmons v. Epps, 654 F.3d 526, 534 (5th Cir. 2011) (quoting Murphy v.

Johnson, 205 F.3d 809, 813 (5th Cir. 2000)).

III. DISCUSSION

Simon challenges his competency to be executed. The law that governs

this type of claim includes the Supreme Court’s decisions in Ford and Panetti.

In Ford, the Supreme Court held that the Eighth Amendment prohibits the

execution of a prisoner who is incompetent. 477 U.S. at 409–10. Justice Powell’s

concurrence in the Ford plurality opinion, which has been declared the “clearly

established” Supreme Court law regarding 28 U.S.C. § 2254, Panetti, 551 U.S.

at 949, stated that to be competent for execution, a prisoner must “know the fact

of [his] impending execution and the reason for it.” Ford, 477 U.S. at 422

(Powell, J., concurring). Mississippi has codified its own test for competence to

be executed, which provides that the prisoner must have 

sufficient intelligence to understand the nature of the proceedings

against him, what he was tried for, the purpose of his punishment,

the impending fate that awaits him, and a sufficient understanding

to know any fact that might exist that would make his punishment

unjust or unlawful and the intelligence requisite to convey that

information to his attorneys or the court.

Miss. Code Ann. § 99-19-57(2)(a), (b).

In Ford, Justice Powell outlined the process that states must follow when

ruling on the competence of a prisoner to be executed. First, the state may

require that the prisoner make a “substantial threshold showing of insanity.”
No. 11-70015

10

477 U.S. at 426 (Powell, J., concurring). After such a showing has been made,

the prisoner becomes entitled to a “fair hearing” on the issue of his competence,

which must include “an impartial officer or board that can receive evidence and

argumentfrom the prisoner’s counsel, including expert psychiatric evidence that

may differ from the State’s own psychiatric examination.” Id. at 427.

The Mississippi Supreme Court, in its May 5 order, did not claim to have

afforded Simon the “basic requirements” of due process under Ford. Rather, the

court found that Simon had “failed to make a substantial threshold showing of

insanity/mental illness.” It thus determined that he was not entitled to either

a stay of execution or a Ford hearing. In reviewing the state court’s order, the

district court held that Simon had “not demonstrated that it was unreasonable

for [the] Mississippi Supreme Court to determine that he failed to make a

‘substantial threshold showing of insanity’ that would entitle him to additional

process under Ford and Panetti.” Thus, under AEDPA, the question we are

reviewing is whether the Mississippi Supreme Court’s determination that Simon

failed to make a substantial threshold showing of incompetence was either

contrary to or an unreasonable application of clearly established federal law, or

based upon an unreasonable determination of the facts in light of the evidence

presented. In addition to obtaining a COA from the district court on his claim

that he is incompetent to be executed, Simon also was granted a COA on his

claim that the Mississippi Supreme Court violated his right to procedural due

process in handling his claim. We also review this claim under AEDPA’s

deferential standard.

We turn first to Simon’s claim that the process employed by the

Mississippi Supreme Court in making its determination of competency violated

his right to procedural due process. In Panetti, the petitioner claimed that the

state court proceedings on the issue of his competency to be executed were

insufficient to satisfy the procedural requirements mandated by Ford. 551 U.S.
No. 11-70015

4 Generally, due process requires that the person whose rights may be affected have a

“meaningful opportunity to present[his] case.” Mathews v. Eldridge, 424 U.S. 319, 349 (1976).

In addition, “the hallmark of the procedural protections afforded by the Due Process Clause”

is “fundamental fairness.” Ford, 477 U.S. at 424 (Powell, J., concurring) (citing Lassiter v.

Dep’t of Soc. Servs., 452 U.S. 18, 24–25 (1981)). Finally, the process that someone receives will

violate the Due Process Clause where “the factfinding procedures upon which the court relied

were ‘not adequate for reaching reasonably correct results’ or, at a minimum, resulted in a

process that appeared to be ‘seriously inadequate for the ascertainment ofthe truth.’” Panetti,

551 U.S. at 954 (quoting Ford, 477 U.S. at 423–24 (Powell, J., concurring)). 

11

at 935. In reviewing this claim, the Supreme Court applied the “unreasonable

application” standard of 28 U.S.C. § 2254(d)(1). Id. at 948. As Simon’s claim

also challenges the adequacy of the procedures he was afforded, we will apply

the same standard of review here.

A state court decision involves an “unreasonable application” of Supreme

Court precedent when the state court either (1) “identifies the correct governing

legal rule from the Court’s cases but unreasonably applies it to the facts of the

particular state prisoner’s case,” (2) “unreasonably extends a legal principle from

[Supreme Court] precedent to a new context where it should not apply,” or (3)

“unreasonably refuses to extend that principle to a new context where it should

apply.” Williams v. Taylor, 529 U.S. 362, 407 (2000). The burden of proving that

a state court unreasonably applied federal law is weighty:“a state prisoner must

show that the state court’s ruling on the claim being presented in federal court

was so lacking in justification that there was an error well understood and

comprehended in existing law beyond any possibility for fairminded

disagreement.” Harrington v. Richter, 131 S. Ct. 770, 786–87 (2011).

In order to determine whether the Mississippi Supreme Court violated

Simon’s rightto procedural due process in the course of his post-conviction relief

proceedings, we must first determine what process Simon was due. In addition

to general due process principles,4the Court in Ford discussed what due process

requires in the specific context ofthe competency evaluation. In concluding that

the state prisoner in Ford had been denied due process, Justice Powell explained
No. 11-70015

5 The plurality in Ford similarly concluded that “the denial of any opportunity to

challenge or impeach the state-appointed psychiatrists’ opinions” was a procedural flaw that

contributed to the violation of the prisoner’s due process rights. Ford, 477 U.S. at 415

(plurality opinion).

12

the shortcomings of the procedure that had been used by the state court to

evaluate the prisoner’s competence to be executed:

[T]he determination of petitioner’s sanity appears to have been

made solely on the basis of examinations performed by stateappointed psychiatrists. Such a procedure invites arbitrariness and

error by preventing the affected parties from offering contrary

medical evidence or even from explaining the inadequacies of the

State’s examinations. It does not, therefore, comport with due

process.

477 U.S. at 424 (Powell, J., concurring). This section of Justice Powell’s

concurrence provided the fifth vote for the holding that Ford had been denied

due process.5It is therefore clearly-established federal law that a process for

making the ultimate determination of competency to be executed that allows the

state to submit the results of psychiatric examinations of the prisoner while

preventing the prisoner from responding with his own medical evidence or

argument violates due process. Although Simon’s claim never reached the

second stage of the bifurcated competency evaluation, Simon argues that the

process he received at the initial stage of this evaluation was so unfair and onesided that it amounted to an unreasonable application of the law clearly

established by Ford and Panetti. We agree.

Although Simon was not allowed to be evaluated by an expert, the State

had him evaluated by its own experts and submitted this evidence to the

Mississippi Supreme Court to prove his competence to be executed. On April 4,

2011, Simon moved the Mississippi Supreme Court for an order allowing a

mental health expert to have access to Simon in order to evaluate him. The

motion was held in abeyance, which effectively prevented Simon from being

evaluated by a mental health expert, as MDOC permits doctors and other
No. 11-70015

13

medical professionals to evaluate death row prisoners only if they have obtained

a court order to do so. The best evidence that Simon was able to amass, given

the restrictions imposed upon him, was an affidavit from Dr. Goff, which was

given based upon Simon’s medical records and the affidavits of Simon’s counsel.

The State of Mississippi was not subject to the same restrictions. On

March 21, 2011, the day that the Supreme Court denied Simon’s petition for a

writ of certiorari and the State filed a motion to reset Simon’s execution date,the

prison superintendent sent Dr. Beaven to evaluate Simon’s “memory and

confusion.” Dr. Beaven gave an affidavit about this visit and his notes were

included in Simon’s medical records, both of which were considered by the

Mississippi Supreme Court and cited in its order denying post-conviction relief.

The State also submitted two affidavits given by Dr. Nagel, a psychiatrist

employed by MDOC, based on a visit with Simon that seems to have taken place

some time in March 2011. Dr. Nagel’s affidavits contained several assertions

that Simon was competent to be executed. On April 8, 2011, the day after

Simon’s motion to have his own expert evaluate him was held in abeyance,

Simon was visited in his cell by Dr. Cartier, a psychologist working at MDOC.

Dr. Cartier also gave an affidavit that was submitted by the State to the

Mississippi Supreme Court. The Mississippi Supreme Court relied upon these

“affidavits from health care professionals, who found that Simon was lucid and

communicated normally before and after January 7, 2011,” in denying Simon’s

motion for post-conviction relief.

Even though Ford does not grant prisoners a psychiatric evaluation by an

expert of their choosing as a matter of right until after a threshold showing of

incompetence has been made, the inequitable access to experts in this case still

runs afoul of the right to due process as discussed in Ford. Justice Powell was

clear that a procedure that prevents the prisoner from offering expert evidence

while empowering the state to offer such evidence “invites arbitrariness and
No. 11-70015

6 Both the Mississippi Supreme Court and the district court relied on Johnson v.

Cabana, 818 F.2d 333 (5th Cir. 1987), in which this court held that a psychologist’s conclusion

that a prisoner’s mental condition “‘may’ impair his relations with his counsel” was insufficient

to constitute a substantial threshold showing of incompetence, id. at 340. Each court

suggested that Dr. Goff’s uncertain opinion here is unavailing for the same reason. In coming

14

error.” Ford, 477 U.S. at 424 (Powell, J., concurring). The Ford plurality also

expressed its concern that considering expert evidence from only one party could

severely undermine the truth-seeking function of the competency evaluation:

[B]ecause psychiatrists disagree widely and frequently on what

constitutes mental illness and on the appropriate diagnosis to be

attached to given behavior and symptoms, the factfinder must

resolve differences in opinion within the psychiatric profession on

the basis of evidence offered by each party when a defendant’s

sanity is at issue . . .

Id. at 414 (plurality opinion) (quoting Ake v. Oklahoma, 470 U.S. 68, 81 (1985)

(internal quotation marks omitted).

In denying Simon’s petition for a writ of habeas corpus, the district court

stated: “[Simon] argues that the standards in Panetti and Ford entitle him to a

defense expert in order to make a substantial threshold showing of insanity.

They do not.” The district court was correct in its assessment of Panetti and

Ford, and we do not hold today that prisoners are entitled to experts in order to

make a threshold showing of incompetence. We merely hold that the procedures

in this case, which allowed the State to present expert evaluations while Simon

was prevented from presenting countervailing expert evaluations, violated

fundamental fairness and due process.

The impact of the court’s order denying Simon an expert evaluation was

magnified when the court suggested that the uncertainty of Dr. Goff’s affidavit

undermined his opinion. The court stated, “Goff opined that Simon may have

suffered a significant neurological event on January 7, 2011, and the only way

to determine the presence or absence of mental illness was for an evaluation to

be performed.”6It is difficult to view the process Simon received as
No. 11-70015

to this conclusion, each court overlooked the critical distinguishing fact that in Cabana, the

psychologist examined the prisoner for five hours before giving his equivocal diagnosis of

incompetence, id. at 337, whereas here Dr. Goff was never permitted to examine Simon.

Cabana is therefore not controlling.

15

fundamentally fair when the court discounted the one affidavit that Simon was

able to obtain for its uncertainty, when that uncertainty was a direct result of

the court’s refusal to grant an order allowing Dr. Goff to evaluate Simon. Under

the circumstances the court created, it is hard to imagine what more Simon

could have done to make a threshold showing of incompetence.

Not only was Simon prevented from countering the State’s medical

evaluations with his own, he was also prevented from even addressing them

with argument. The court set a deadline of April 21, 2011 at 5:00 p.m. for all

submissions related to Simon’s petition for post-conviction relief. Simon

submitted a supplementto his petition on April 20, attaching Dr. Goff’s affidavit.

The State submitted its response, along with the affidavits of Drs. Beaven,

Nagel, and Cartier, on April 21, the deadline. Because the court refused to

accept submissions past this deadline, Simon did not have the opportunity to

respond to the affidavits submitted by the State. Justice Powell’s Ford

concurrence states that a procedure that prevents a prisoner from “explaining

the inadequacies ofthe State’s examinations” does not comport with due process.

Ford, 477 U.S. at 424 (Powell, J., concurring). The Ford plurality explained that

the opportunity to respond is important because it allows the prisoner to 

bring[] to light the bases for each expert’s beliefs, the precise factors

underlying those beliefs, any history of error or caprice of the

examiner, any personal bias with respect to the issue of capital

punishment, the expert’s degree of certainty about his or her own

conclusions, and the precise meaning of ambiguous words used in

the report. Without some questioning of the experts concerning

their technical conclusions, a factfinder simply cannot be expected

to evaluate the various opinions, particularly when they are

themselves inconsistent.
No. 11-70015

16

Id. at 415 (plurality opinion). Even before Ford, the Supreme Court had

characterized as “relatively immutable” the principle that 

“where governmental action seriously injures an individual, and the

reasonableness of the action depends on fact findings, the evidence

used to prove the Government’s case must be disclosed to the

individual so that he has an opportunity to show that it is untrue.

While this is important in the case of documentary evidence, it is

even more important where the evidence consists of the testimony

of individuals whose memory might be faulty or who, in fact, might

be perjurers or persons motivated by malice, vindictiveness,

intolerance, prejudice, or jealousy.”

Goldberg v. Kelly, 397 U.S. 254, 270 (1970) (quoting Greene v. McElroy, 360 U.S.

474, 496 (1959)). 

When viewed as a whole,the process employed by the Mississippi Supreme

Court was marred by very similar flaws to those that caused a majority of the

Court in Ford to hold that the prisoner’s due process rights had been violated.

It matters not that here these flaws appeared in the threshold stage of the

competency evaluation rather than the hearing stage. The competency

evaluation must at all times be a process that is fundamentally fair to the

prisoner alleging his own incompetence, and the process Simon received did not

meet that standard.

We hold that under the facts and circumstances ofthis case, set outin this

opinion, the Mississippi Supreme Court unreasonably applied clearly established

federal law by failing to apply fundamental due process principles to the first

stage of Simon’s competency evaluation. The process that Simon received

deprived him of a meaningful opportunity to make a substantial threshold

showing of incompetence and thus violated his due process rights. We therefore

reverse the district court’s denial of Simon’s petition for a writ of habeas corpus

and we remand this case to the district court for additional proceedings

consistent with this opinion. Thus, we need not reach Simon’s claim that he met

the threshold showing of incompetence.
No. 11-70015

17

REVERSED AND REMANDED.