IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-70025

DANIEL LEE LOPEZ

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 Southern District of Texas

Before HIGGINBOTHAM, JONES, and HIGGINSON, Circuit Judges.

STEPHEN A. HIGGINSON, Circuit Judge:

Having carefully reviewed defense counsel’s appeal of the district court’s 

competency decision,1 the State’s response, the transcript of the competency 

hearing in the district court, and the district court’s Order, we conclude that 

the district court committed no error finding Lopez competent to waive federal 

1 Lopez is as resolute that Texas should carry out his capital sentence as he is that no 

counsel deprive him of that choice. The district court, after ascertaining competency, 

nonetheless granted Lopez’s “motion to dismiss counsel, effective on the conclusion of any 

appeal.” (Emphasis added). This court does not address, because the State did not raise, the 

appropriateness of our considering this appeal by counsel who were appointed for petitioner 

by the district court against his will, and who have filed this appeal despite his wishes and 

despite the court’s resolution of the Rees v. Payton 384 U.S. 312 (1966) issue. Cf. SanchezVelasco v. Sec. of the Dept. of Corrections, 287 F.3d 1015 (11th Cir. 2002).

United States Court of Appeals

Fifth Circuit

FILED

April 6, 2015

Lyle W. Cayce

Clerk

 

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habeas review in this capital case, and that he did so knowingly and 

voluntarily. 

The Supreme Court has elaborated the legal standard we apply to assess

the competency of a death row inmate to abandon further appeals of his 

sentence, namely “whether he 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.” Rees v. 

Peyton, 384 U.S. at 314. Applying this standard, we have observed that “a 

habeas court must conduct an inquiry into the defendant’s mental capacity ... 

if the evidence raises a bona fide doubt as to his competency,” further noting 

that “[t]he extent and severity of the petitioner’s history of mental health 

problems which have been brought to the court’s attention influence the 

breadth and depth of the competency inquiry required.” Mata v. Johnson, 210 

F.3d 324, 330 (5th Cir. 2000).

The district court entered its finding of Lopez’s mental competency under 

the Rees standard after questioning him directly in open court, observing his 

demeanor, reviewing past mental examinations, and hearing from courtappointed expert Dr. Timothy J. Proctor. We are satisfied that the inquiry 

conducted by the district court was constitutionally sufficient. In Mata, our 

court applied Rees, taking additional lesson from our court’s caselaw as well as 

caselaw from other circuit courts to highlight examples of constitutionally 

adequate fact-finding into the competency of a petitioner to abandon collateral 

review in a capital case. We emphasized that whereas district courts retain 

discretion to fashion measures appropriate to each defendant ― hence “in some 

cases an expert report already in the record may be sufficiently current that a 

new examination is not necessary, or a court may be able to decide the issue 

on documents without taking live testimony,” id. at 331 ― the following 

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measures were commended: (1) contemporaneous expert examination of a

petitioner’s competency; (2) expert assessment submitted in written report to 

the court and the parties; (3) an evidentiary hearing with full adversary

opportunity to develop facts relevant to competency and to explore any expert 

opinion; and (4) a personal appearance by the petitioner, distinguished by a 

“face-to-face dialogue between the court and the petitioner” confirming the 

knowing and voluntary nature of the decision to waive further proceedings. Id.

at 328-331.

The district court in the instant matter did all of the above to verify that 

Lopez, who had “unwavering[ly] conveyed his hope to end all legal challenges,” 

had done so in a constitutionally adequate manner: first, appointing counsel 

despite Lopez’s repeated “coherent, logical, and consistent” filings against 

federal review; second, appointing a mental health expert who “compiled a 

detailed history of Lopez’s mental health,” as well as conducted an in-person 

evaluation of Lopez concluding that “Lopez is competent to waive federal 

habeas review,” believing both in a “‘better’” afterlife and in the justifiability 

of his “‘conviction and sentence’”; third, conducting an evidentiary hearing that 

included Lopez as well as his expert mental health evaluator, Dr. Timothy J. 

Proctor, whereafter the court found “that Dr. Proctor was credible in his 

conclusion that Lopez is competent,” and also entered the following findings 

after direct questioning of Lopez:

Lopez clearly understands the nature of the criminal 

proceedings against him to this point, his current status, the role 

of the court, and the possible outcomes of federal habeas review. 

Lopez exhibited no obvious signs of mental impairment or 

intellectual deficiency. Throughout his testimony, as throughout 

his post-judgment proceedings, Lopez was fixed and determined in 

his desire for the State to carry out his sentence. Lopez’s testimony 

did not raise any concern about his competency.

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We affirm that these proceedings, and the evidence presented to the district 

court, do not raise a bona fide doubt as to Lopez’s competency. 

On appeal, two arguments are asserted. First, the argument is offered 

that Lopez is incompetent to waive habeas review because he is wrong to think

further judicial review would be unavailing. Specifically, counsel contends

that Lopez’s sight was impaired both by his poor vision and also by pepper 

spray, and therefore he did not intentionally kill Lieutenant Alexander when 

he swerved and struck him during a police chase. This argument fails on 

several grounds. Factually, the jury heard testimony and attorney argument 

relating to the fatal impact ― and specifically, disputed facts as to Lopez’s 

intentionality and vision ― and, properly instructed as to the proof required of 

Lopez’s state of mind, thereafter entered its verdict of capital murder.2 

Regardless, legally, we have clarified that a court’s competency finding is 

distinct from, and must be confirmed independent of, “‘legal avenues of attack’” 

that may exist pertaining to a sentence, here the adequacy of proof of Lopez’s 

state of mind shown beyond a reasonable doubt at trial. Autry v. McKaskle, 

727 F.2d 358, 363 (5th Cir. 1984) (quoting Lenhard v. Wolff, 443 U.S. 1306 

(1979)); see also Henderson v. Campbell, 353 F.3d 880, 894-895 (11th Cir. 

2003).3 Cf. United States v. Davis, 285 F.3d 378, 384 n.6 (5th Cir. 2002)

(“Whatever the merits of Davis’s legal strategy, we find that Davis has the 

2 In district court, counsel acknowledged that the “chief issue, the central issue at trial 

was whether [Lopez] saw Officer Alexander and intentionally ran him over,” but suggested 

that the jury had not heard all relevant evidence pertaining to Lopez’s impaired vision. As 

the district court catalogues, however, the pepper spray evidence was presented to the jury. 

Moreover, in district court, having heard counsel characterize him as legally blind, Lopez 

himself explained that yes, he has “terrible vision,” “but I had contacts, and I could see.”

3 At Lopez’s competency hearing, the district court along with counsel 

comprehensively explored with Lopez his legal position, as well as his interaction with 

counsel about appellate and habeas options. Lopez matter-of-factly denied there is evidence 

that would avail him, and also affirmed his religious readiness “to move on with my life, so I 

could go up there.” 

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right to conduct his penalty defense in the manner of his choosing...[and] if he 

so chooses, Davis has the constitutional right to implement his legal strategy 

by arguing to the jury that he should receive the death penalty.”). Finally, 

procedurally, we note that no approved effort has been made to expand the 

certificate of appealability to include the argument Lopez terms “‘unfactual 

innocence’” as a habeas ground defense counsel may pursue.

Second, error is alleged based on the district court’s denial of funding for 

additional neuropsychologist and investigatory services. Factually, we note 

that counsel’s statements that Dr. Proctor disregarded or failed to consider 

Lopez’s complete mental history is incorrect. Dr. Proctor testified that he 

reviewed all materials sent to him by defense counsel, that his final report was 

based on review of almost ten thousand record pages submitted to him as well 

as his three-hour interview and testing of Lopez, and that in fact he paid 

particular attention to whether Lopez suffered from depression and had been 

suicidal.

Moreover, we reject the contention legally that Dr. Proctor’s expert 

involvement, including his written report and hearing testimony subject to 

cross-examination, was not the “meaningful opportunity to present evidence 

relevant to the question of competency” required by Mata. To the extent that 

this allegation of error asserts that that opportunity contemplated in Mata

comprehends not just one court-appointed expert evaluation, but then also a 

second, supplemental and “independent” review and evaluation of the first, 

this suggestion is made without citation to legal authority and we decline to 

adopt it.

CONCLUSION

For the foregoing reasons, we affirm the district court’s order finding 

Lopez competent to waive federal habeas proceedings and we further order 

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that no further pleadings will be accepted from counsel absent leave of court 

supported by Lopez’s election to proceed through such counsel.

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