### 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 commi tted 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,

n onetheless granted Lopez’s “motion to dismiss counsel, effective on the conclusion of any appeal .” ( E mphasis 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

. Sanchez

Velasco v. Sec. of the Dept. of Corrections , 287 F.3d 1015 ( 11 th Cir. 2002). United States Court of Appeals Fifth Circuit 

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- 70025
habeas review in this capital case , and that he did so knowingly and voluntarily

. The Supreme Court has elaborated the l egal standard we apply to assess the competency of a death row inmate to abando n 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 ment al disease, disorde r, 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 rai ses 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 req uired.” Mata v. Johnson , 210 F.3d 324, 330 (5 th 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, rev iewing past mental examinations, and hearing from court

appointed expert Dr. Timothy J. Proctor

. We are satisfied that the inquiry conducted by the district court was constitutionally suf ficient. In Mata , our court applied Rees , taking additional lesson from our court’s cas elaw 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 discret ion 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 . a t 331

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- 70025 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 a dversary opportunity to develop facts relevant to competency and to explor e 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 volu ntary nature of t h e decision to waive further proceedings. Id

. at 328

- 331. The distr ict 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 healt h ,” 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 evide ntiary 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

a ft e r di rect 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 ment al impairment or intellectual deficiency. Throughout his testimony, as throughout his post

- judgment proceedings, Lopez was f ixed and determined in his desire for the State to carry out his sentence. Lopez’s testimony did not raise any concern about his c ompetency

.

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- 70025 We affirm that these proceedings, and the evi dence 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 w aive habeas review because he is wrong to think further judicial review would be unavailing

. Specifically, counsel c ontend s that Lopez’s sight was impaired both by his poor vision and also by pepper

spray , and therefore he did not intentionally kill Lieut enant Alexander when he swerved and struck him during a police chase

. This argument fails on several grounds . Factually, the j ury heard testimony and attorney argument relating to the fatal impact ― and specifically , d isputed 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 , le gally , 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 (5 th Cir. 1984) (quoting L enhard v. Wolff , 443 U.S. 1306 (1979)) ; see also Henderson v. Campbell , 353 F.3d 880, 894

- 895 (11 th Cir. 2003)

. 3 Cf

. United States v. Davis , 285 F.3d 378 , 384 n.6 (5 th 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, t he pepper spray evidence was presented to the jury

. Moreover, in district c ourt, 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, t he district court along with c ounsel 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 affirm ed his religious readiness “to move on with my life, so I could go up there.” 4 Case: 14-70025 Document: 00512994724 Page: 4 Date Filed: 04/06/2015No. 14

- 70025 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 not e that no approved effort has been made to expand the certificate of appealability to include th e argument Lopez terms “ ‘ unfactual innocence ’ ” as a ha beas ground defense counsel may pursue. Second, error is alleged based on the district court ’s denial of f unding 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 m aterials 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 D r. Proctor’s expert involvement, including his written report and hearing testimony subject to

cross
- examination, was not the “meaningful opportunity to prese nt evidence relevant to the question of competency” required by Mata . To the extent that this allegation of error asserts that that opportunity contemplated in Mat a comprehend s 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 fin d ing Lopez competent t o 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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