### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 16

- 70025

VICTOR HUGO SALDA Ñ O , 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 Eastern District of Texas USDC No. 4:08

- CV

- 00 193

Before CLEMENT, PRADO, and HIGGINSON , Circuit Judges

. PER CURIAM: * Victor Hugo Saldaño was convicted of capital murder and sentenced to death in 1996. Texas later confessed constitutional error in the punishment stage

— namely, introduction of racist testimony to support a finding of future dangerousness. Saldaño was again sentenced to death in 2004. He now appeals the district court’s denial of habeas relief

. We GRANT a certificate of

* Pursuant to 5 TH C IR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED June 28, 2017 Lyle W. Cayce Clerk Case: 16-70025 Document: 00514051420 Page: 1 Date Filed: 06/28/2017No. 16

- 70025

2 appealability (“COA ”) on two issue s : whether Saldaño was denied due process because he was not competent to stand trial and because the trial court failed to hold a competency hearing , and whether trial counsel was ineffective in failing to request a competency hearing . We D ENY a COA on all other issues raised by Saldaño in his petition for habeas corpus. I. BACKGROUND A. Saldaño’s First Trial Saldaño , a citizen of Argentina, faces the death penalty for murdering Paul King in November 1995. A jury convicted Saldaño of capital murder in July 1996. As required by Texas law when the state seeks to impose the death penalty, the trial court then held a separate proceeding in which the jury considered two special issues: (1) “ whether there is a probability that the defenda nt would commit criminal acts of violence that would constitute a continuing threat to society ” ; and (2) whether mitigating circumstances warranted life imprisonment instead of death. Tex. Code Crim. Proc. a rt. 37.071, § 2(b)(1), (e)

. During this proceedin g , the state elicited testimony from Dr. Walter Quijano, a clinical psychologist, about the likelihood of Saldaño’s future dangerousness. Dr. Quijano testified that Saldaño’s race (Hispanic) made him more likely to commit acts of violence in the future. Th e jury found that (1) there was a probability that Saldaño would commit criminal acts of violence constituting a threat to society, and (2) mitigating circumstances did not warrant life imprisonment rather than the death penalty. Accordingly, the trial cou rt sentenced Saldaño to death. On direct appeal , Saldaño challenged Dr. Quijano’s racist testimony. The Texas Court of Criminal Appeals (“TCCA”) affirmed the sentence. After t he Texas Attorney General confessed error , however, the Supreme Court vacated the judgment and remanded the case back to the TCCA for further consideration

. Saldano v. Texas , 530 U.S. 1212 (2000). On remand, t he TCCA Case: 16-70025 Document: 00514051420 Page: 2 Date Filed: 06/28/2017No. 16

- 70025

3 again affirmed the sentence. Saldano v. State , 70 S.W.3d 8 73, 891 (Tex. Crim. Ap p. 2002). Saldaño then fil ed a federal habeas petition. After the Attorney General again confessed constitutional error , th e district attorney responsible for prosecuting Saldaño tried to intervene in order to defend the death sentence. S ee S aldano v. Roa ch , 363 F.3d 545, 550 (5th Cir. 2004). The district court denied this motion to intervene and granted Saldaño’s habeas petition , finding that “ the admission of and reference to expert opinion testimony to the effect that a person is more likely to be dange rous in the future because he is a member of a racial or ethnic group that happens to be over

- represented in the prison population is constitutional error. ” Saldano v. Cockrell , 267 F. Supp. 2d 635, 642 (E.D. Tex. 2003). This Court affirmed the district co urt’s denial of the motion to intervene and dismissed the district attorney’ s appeal of the order granting habeas relief. Saldano , 363 F.3d at 556

. Accordingly, Saldaño was granted a new punishment trial. B
. Saldaño’s Punishment Retrial Saldaño’s punishment retrial took place in November 2004. By that time, Saldaño’s mental health had appeared to deteriorate . For example , Saldaño attempted to commit suicide in 2001; his behavior grew erratic and his speech disorganized ; he often refused t o shower; he reported hearing voices ; and he ate his own feces

. Saldaño started misbehaving as well: among other things, he started fires in his cell; masturbated in public; and threw feces at prison guards. Mental health professionals disagreed on why Sa ldaño’s mental state had appeared to deteriorate. Dr. Orlando Peccora, a psychiatrist who treated Saldaño at the Jester IV Psychiatric Facility of the Texas Department of Criminal Justice (“TDCJ”) , submitted a declaration in which he diagnosed Saldaño with depression which “sometimes involved psychotic ideations, Case: 16-70025 Document: 00514051420 Page: 3 Date Filed: 06/28/2017No. 16

- 70025

4 hallucinations and delusions.” Dr. Peccora also noted Saldaño’s “diminished cognitive ability” and “diminished ability to react in emotionally appropriate fashion to events around him,” although he did not believe Saldaño was incompetent. Dr. Peccora attributed Saldaño’s misbehavior on death row to his mental deterioration, and attributed his mental deterioration to the isolation of death row. Some TDCJ doctors diagnosed Saldaño with forms of psycho sis

— specifically, schizophrenia and schizoaffective disorder , which involve cognitive and behavioral dysfunction

. Am. Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders 99

– 101, 105

– 07 (5th ed. 2013). Other TDCJ doctors, however, diagn osed Saldaño with antisocial personality disorder. In their opinion, the hallucinations, delusions , and suicidal ideations Saldaño reported were fabricated in order to obtain drugs. Saldaño’s mental state was a recurring issue throughout the punishment retrial. Indeed, t he record reflects Saldaño’s abnormal behavior during voir dire and the trial itself : Saldaño masturbated inside his prison clothes before the jury on several occasions ; he re fused to wear nonprison clothes; and d uring voir dire, he read magazines and at one point yawned loudly. In addition, Saldaño did not always speak coherently. For example, the following exchange occurred after the first masturbation incident: [THE COURT:] So, having said all that, [counsel] has said that you intend no t to act out anymore in the courtroom. Is that correct? THE DEFENDANT: (No audible response) THE COURT: You intend to do

— THE DEFENDANT: (In English) Well, according

— according by the Supreme Court of the United States, the rules of the law will be provided in this case, according by

— according by the rule of the law. THE COURT: I’m not

— go ahead. THE DEFENDANT: (In English) You believe in the Texas Penal Code is (unintelligible). Case: 16-70025 Document: 00514051420 Page: 4 Date Filed: 06/28/2017No. 16

- 70025

5 THE COURT REPORTER: I can’t understand what he’s saying, Judge. THE COURT: I’m s orry. I could not understand either. THE DEFENDANT: (unintelligible) THE INTERPRETER: Five years for murder; for manslaughter. THE DEFENDANT: (In English) According by the

— by the rule

— the Texas Penal Code, so at this point what I

— I agree with everything yo u do right. You do everything right. I

— THE COURT: Well, I appreciate that. The trial transcript is littered with other instances of incoherent or disordered speech

. T he record also reflects the judge’s and counsel’s concerns about Saldaño’s mental state. During voir dire, on October 5, 2004, Saldaño’s counsel raised the issue of competency with the court after receiving Dr. Peccora’s declaration and noting Saldaño’s strange behavior

. The judge gave defense counsel authority to seek a competency evaluation. The judge inquired about the status of this evaluation a couple days later. Defense counsel again requested a competency evaluation after one of the masturbation incidents. But the t wo psychiatrists who examined Saldaño a total of three times during the trial found him competent each time

. 1 Therefore, d efense counsel never requested a competency hearing, and the judge indicated near the end of the trial that he had no reason to believ e Saldaño was legally incompetent. Although defense counsel never argued that Saldaño was incompetent, counsel did argue in a pretrial motion that (1) retrying Saldaño after years of mental deterioration while on death row was unconstitutional, and

1 The results of the examinations are not in the record. Moreover, it is unclear whether the psychiatrists actually examined Saldaño in person; when defense couns el first brought up the issue of competency on October 5, defense lawyer John Tatum stated that they would direct a psychiatrist “to make the inquiry, evaluation, solely based on this affidavit of a treating psychiatrist”

— seemingly referring to Dr. Peccora ’s declaration. Case: 16-70025 Document: 00514051420 Page: 5 Date Filed: 06/28/2017No. 16

- 70025

6 (2) ev idence of Saldaño’s misbehavior while on death row (which featured prominently in the state’s case for future dangerousness) should be excluded

. At the November 5, 2004 hearing on this motion, the defense sought to put Dr. Peccora on the stand. But the tri al court ruled that under Lagrone v. State , 942 S.W.2d 602 (Tex. Crim. App. 1997) , the state must have an opportunity to

exam ine Saldaño with its own expert before the defense expert could testify about Saldaño’s mental state. Defense counsel expressed concern that a Lagrone examination “could actually be used against [Saldaño] at trial ”; accordingly, counsel invoked Saldaño’s Fifth Amendment right and refused to give the state an opportunity to conduct a Lagrone examination

. D efense counsel later filed a motion seeking to limit the scope of a Lagrone examination, which t he trial court denied on November 12, 2004. At that time , the trial court clarified that if Dr. Peccora were to testify on Saldaño’s behalf, then the state woul d be able to introduce its own expert testimony “about anything relevant to his mental state, including future dangerousness.” Defense counsel again chose not to put Dr. Peccora on the stand. Likewise, d efense counsel declined to put Saldaño’s mother befor e the jury because she too intended to testify about Saldaño’s mental state. The defense’s case for mitigation focused on Saldaño’s intoxication when he committed the crime, his lack of a prior criminal record, and the fact that it was his co

- defendant’s i dea to commit the crime. As in the first trial, the jury answered the two special issues such that the court imposed the death penalty. Defense counsel then filed a motion for a new trial , which t he trial court denied. On direct appeal, the TCCA affirmed Saldaño’s sentence. Salda n o v. State , 232 S.W.3d 77, 82 (Tex. Crim. App. 2007). C
. Habeas Petitions Saldaño filed a petition for habeas corpus in state court on February 15, 2007. He raised a number of grounds for relief, including ineffect ive assistance Case: 16-70025 Document: 00514051420 Page: 6 Date Filed: 06/28/2017No. 16

- 70025

7 of trial counsel, incompetenc y to stand trial , and the trial court’s failure to hold a competency hearing

. Saldaño offered several affidavits in support of his petition, including one by psychiatrist Dr. Robert Cantu who opined that Saldaño was incompetent at the punishment retrial. The state trial court i ssued 511 findings of fact and conclusions of law and recommended denying relief

. The TCCA adopted the state trial court’s findings except for the finding s that Saldaño forfeited his competency claim by fa iling to raise it on direct review. Ex parte Saldano , No. WR

- 41,313

- 04, 2008 WL 4727540, at *1 (Tex. Crim. App. Oct. 29, 2008) (per curiam) (not designated for publication). Saldaño filed a second petition in state court on October 30, 2007, claiming ineff ective assistance of counsel for failure to preserve issues related to Lagrone ; the TCCA denied this petition as an abuse of the writ. Ex parte Saldano , No. WR

- 41,313

- 03, 2008 WL 152732, at *1 (Tex. Crim. App. Jan. 16, 2008) (per curiam) (not designated fo r publication). Saldaño filed his federal habeas petition on October 26, 2009. He raised fifteen claims, including ineffective assistance of counsel , incompetency to stand trial, and claims related to the trial court’s application of Lagrone and Texas’s future dangerousness inquiry as well as the trial court’s failure to hold a competency hearing . The district cou rt denied relief on all grounds but dismissed without prejudice Saldaño’s claim that he may not be executed on account of present i ncompetency

. The court also declined to issue a COA on any of Saldaño’s claims. II. STANDARD OF REVIEW Saldaño’s habeas petition is governed by provisions of the Antiterrorism and Effective Death Penalty Act (“AEDPA”). Under AEDPA, a federal court may not grant habeas relief to a state prisoner whose claim was adjudicated on the merits in state court unless the state court’s decision was either (1) “ contrary to, or involved an unreasonable application of, clearly established Case: 16-70025 Document: 00514051420 Page: 7 Date Filed: 06/28/2017No. 16

- 70025

8 Federal law ” or (2) “ based on a n unreasonable determination of the facts in light of the evidence presented in the State court proceeding. ” 28 U.S.C. § 2254(d). Before a state prisoner may appeal a district court’s denial of his habeas petition, he must first obtain a COA. 28 U.S.C. § 2 253(c)(1). The court may issue a COA “ only if the applicant has made a substantial showing of the denial of a constitutional right. ” 28 U.S.C. § 2253(c)(2). “The required substantial showing of the denial of a constitutional right must have some footing in the law.” Ruiz v. Davis , 850 F.3d 225, 228 (5th Cir.), cert. dismissed , 137 S. Ct. 1393 (2017). The Supreme Court has recently cautioned that “[t] he COA inquiry . . . is not coextensive with a merits analysis. ” Buck v. Davis , 137 S. Ct. 759, 773 (2017). “At the COA stage, the only question is whether the applicant has shown that ‘jurists of reason could disagree with the district court ’ s resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve en couragement to proceed further.’” Id. (quoting Miller

- El v. Cockrell , 537 U.S. 322, 327 (2003)). If the district court dismisses a claim on procedural grounds, a COA should only issue if (1) “jurists of reason would find it debatable whether the petition s tates a valid claim of the denial of a constitutional right” and (2) “jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel , 529 U.S. 473, 484 (2000). “Where the petitioner faces the d eath penalty, any doubts as to whether a COA should issue must be resolved in the petitioner’s favor.” Rhoades v. Davis , 852 F.3d 422, 427 (5th Cir. 2017) (quoting Allen v. Stephens , 805 F.3d 617, 625 (5th Cir. 2015) ). Case: 16-70025 Document: 00514051420 Page: 8 Date Filed: 06/28/2017No. 16

- 70025

9 III. DISCUSSION A. Lagrone Issues The first three issues raised on appeal concern the state trial court’s application of Lagrone

. On direct appeal, the TCCA found that Saldaño failed to preserve his Lagrone claims by not making contemporaneous objections. Saldan o , 232 S.W.3d at 88. Accordingly, the district court held that these claims are procedurally barred. The district court also found that Saldaño’s Lagrone claims “ involve nothing more than the application of state law. ” Saldaño first challenges the district c ourt’s finding that his Lagrone claims are procedurally barred. Second, Saldaño argues that the trial court’s application of Lagrone violated his Fifth and Sixth Amendment rights , an issue that the district court did not address on the merits . Third, Salda ño argues that the district erred in finding that his Lagrone claims involve nothing more than the application of state law. At the COA stage, all three of these issues hinge on whether Saldaño “has made a substantial showing of the denial of a constitutio nal right.” 28 U.S.C. § 2253(c)(2). Th is he has failed to do. We address Saldaño’s Sixth Amendment claim first. Saldaño argues that the trial court violated the Sixth Amendment when it failed to inform defense counsel about the scope of the state’s Lagrone examination. This claim is based

on Powell v. Texas , 492 U.S. 680 (1989) (per curiam). There, the trial court ordered a psychiatric examination to determine the defendant’s competenc y and sanity. Id. at 681. The state later used evidence from this examina tion to show future dangerousness. Id. at 682. The Court held that this was error because defense counsel was not informed that the examination would be used for this purpose. Id. at 686. Accordingly, “ the evidence of future dangerousness was tak en in deprivation of petitioner’ s right to the assistance of counsel ” under the Sixth Amendment. Id. (citing Satterwhite v. Texas , 486 U.S. 249 (1988); Estelle v. Smith , 451 U.S. 454 (1981)). Here, however, Powell is Case: 16-70025 Document: 00514051420 Page: 9 Date Filed: 06/28/2017No. 16

- 70025

10 inapposite because defense counsel was clearl y aware of the potential scope of

a Lagrone examination. Counsel noted at the pretrial hearing that a psychiatric examination by the state “could actually be used against him at trial. Faced with that possibility, we can’t have . . . our defendant examined for the purposes of this pretrial motion. It’s just a risk that we can’t run.” Moreover, the judge later clarified that Dr. Peccora’s testimony at trial “would probably ope n everything up,” meaning the state’s “witness would be entitled to testify about a nything relevant to [Saldaño’s] mental state, including future dangerousness.” Thus, reasonable jurists would not debate that Saldaño has failed to state a valid claim of the denial of his Sixth Amendment right to effective assistance of counsel. Saldaño’ s Fifth Amendment claim challenges the trial court’s refusal to limit the scope of the Lagrone examination. It is well

- established that “ [a] criminal defendant, who neither initiates a psychiatric evaluation nor attempts to introduce any psychiatric eviden ce, may not be compelled to respond to a psychiatrist if his statements can be used against him at a capital sentencing proceeding.” Smith , 451 U.S. at 468 . But “ a different situation arises where a defendant intends to introduce psychiatric evidence at th e penalty phase. ” Id. at 472. “If a defendant requests an examination on the issue of future dangerousness or presents psychiatric evidence at trial, the defendant may be deemed to have waived the fifth amendment privilege.” Vanderbilt v. Collins , 994 F.2d 189, 196 (5th Cir. 1993)

. Nonetheless, “testimony based on a court

- ordered psychiatric evaluation is admissible only for a ‘limited rebuttal purpose.’” Kansas v. Cheever , 134 S. Ct. 596, 603 (2013) (quoting Buchanan v. Kentucky , 483 U.S. 402, 424 (1987)). Here, Saldaño intended to offer Dr. Peccora’s testimony in support of two legal arguments made in a pretrial motion : (1) the future dangerousness inquiry was unconstitutional as applied to Saldaño; and (2) the state should Case: 16-70025 Document: 00514051420 Page: 10 Date Filed: 06/28/2017No. 16

- 70025

11 not be able to use evidence of Saldaño’s misbehavior on death row to show future dangerousness. Defense counsel did not intend to offer this testimony at the trial itself. The trial court held that under Lagrone , the state must have an opportunity to rebut Dr. Peccora’s testimony by having its own expert examine Saldaño. 2 The trial court also indicated that the state would be able to use the Lagrone examination in the trial itself to show future dangerousness. So defense counsel opted not to submit Saldaño to a psych iatric examination by the state, and Dr. Peccora was unable to testify in support of Saldaño’s pretrial motion. T he trial court may have erred in suggesting that submitting to a Lagrone examination for purposes of the pretrial motion would open u p the issue of Saldaño’s mental state at the trial itself. A state may not use evidence from a compelled psychiatric examination for any purpose whatsoever because “[s]ubmitting to a psychiatric or psychological examination does not itself constitute a wai ver of the fifth amendment’s protection.” Battie v. Estelle , 655 F.2d 692, 702 (5th Cir. 1981) ; see also Lagrone , 942 S.W.2d at 611 (noting that

“ the defendant has not actually waived his Fifth Amendment rights until he has actually presented expert testim ony on the issue of future dangerousness at trial ”) . I nstead, “testimony based on a court

- ordered psychiatric evaluation is admissible only for a ‘limited rebuttal purpose.’” Cheever , 134 S. Ct. at 603 (quoting Buchanan , 483 U.S. at 424). The scope of a Fifth Amendment waiver is also “ limited to the issue raised by the defense .” Williams v. Lynaugh , 809 F.2d 1063, 1068 (5th Cir. 1987) (citing Vardas v. Estelle , 715 F.2d 206 , 209

– 10 (5th Cir. 1983) )

. If Saldaño had not introduced psychiatri c testimony at trial

2 We have previously held that requiring a defendant “to undergo a psychiatric examination as a condition upon his offering psychiatric evidence” does not violate the Fifth Amendment. United States v. Hall , 152 F.3d 381, 400 (5th Cir. 1998), abrogated on other grounds by United States v. Martinez

- Salazar , 528 U.S. 304 (2000). Case: 16-70025 Document: 00514051420 Page: 11 Date Filed: 06/28/2017No. 16

- 70025

12 (again, he had no intention to do so), then the state would have nothing to rebut. Accordingly, merely submitting to the Lagrone examination may not have opened up the issue of Saldaño’s mental state at trial

. Nevertheless, Texas offe rs an additional reason to reject Saldaño’s constitutional claims: the trial court’s error, if any, was harmless. Under the “actual prejudice” test set out in Brecht v. Abrahamson , 507 U.S. 619, 637 (1993), habeas “relief is proper only if the federal cour t has ‘grave doubt about whether a trial error of federal law had substantial and injurious effect or influence in determining the jury’s verdict,’” Davis v. Ayala , 135 S. Ct. 2187, 2197

– 98 (2015) (quoting O’Neal v. McAninch , 513 U.S. 432, 436 (1995) ). “ Th ere must be more than a ‘ reasonable possibility ’ that the error was harmful. ” Id. (quoting Brecht , 507 U.S. at 637). Texas argues that the trial court’s Lagrone rulings were harmless “because Dr. Peccora’s testimony would not have led to a different ruling on Saldaño’s pretrial motion.” We find that all reasonable jurists would agree

. Had he testified, Dr. Peccora would have attributed Saldaño’s bad acts while

on death row to his mental deterioration, which in turn he would have attributed to the isolation of death row itself. This testimony was not absolutely critical to Saldaño’s motion ; Saldaño presented another witness

— Susan Perryman

- Evans

— who also suggested t hat Saldaño’s bad acts were caused by the severe isolation of death row. Additionally, Dr. Peccora, having treated Saldaño from 1997 or 1998 to 2001, could offer only a snapshot of Saldaño’s mental health

. A s a state psychiatrist noted in his November 12, 2004 affidavit, a psychiatric evaluation from 1996 indicated that Saldaño suffered from an antisocial personality disorder even before his time on death

row. The state could have used this fact to rebut Dr. Peccora’s testimony. Finally, the claims made in Saldaño’s pretrial motion, which are essentially identical to the future dangerousness issues discussed below, lacked legal Case: 16-70025 Document: 00514051420 Page: 12 Date Filed: 06/28/2017No. 16

- 70025

13 support. We find that jurists of reason would agree that there is no reasonable probability of a different result had the trial cour t properly limited the scope of a Lagrone examination . Thus, reasonable jurists would not debate that the trial court’s error was harmless and that Saldaño has failed to state a valid claim of the denial of his Fifth Amendment right against self

- incriminat ion. We deny a COA on Saldaño’s first three issues. B
. Future Dangerousness Issues Saldaño’s fourth, fifth, and sixth issues all relate to Texas’s future dangerousness inquiry. As to Saldaño’s fourth issue , he claims that “[i]t violates basic notions of fairness for a State to impose a death sentence tainted with racist testimony, battle for eight years to prevent its being set aside while the prisoner mentally decompensates in severe isolation, and then to subject the now mentally ill defendant to a new death penalty sentencing where the key issue is the defendant’s future dangerousness.” Although this was one of the grounds upon which S aldaño ’s pretrial motion (discussed above) was based, Saldaño failed to raise this claim before the district court. Thus, we find that it is waived. See Johnson v. Quarterman , 483 F.3d 278, 288 (5th Cir. 2007). On the merits, we note that Saldaño cites no applicable law in support of his fourth claim . He merely analogizes this case to ot her situations, such as the forced administration of antipsychotic drugs, see Riggins v. Nevada , 504 U.S. 127 (1992), and the state’s failure to provide a speedy trial, Doggett v. United States , 505 U.S. 647 (1992)

. These analogies fall short of “[t]he req uired substantial showing of the denial of a constitutional right,” which “must have some footing in the law.” Ruiz , 850 F.3d at 228. Additionally , Saldaño’s argument against a punishment retrial flies in the face of the well

- established rule that the g ove rnment may retry persons whose c onvictions have been overturned due to constitutional error in prior proceedings. United States v. Tateo , 377 U.S. 463, 468 (1964)

. We deny a COA on Saldaño’s fourth issue. Case: 16-70025 Document: 00514051420 Page: 13 Date Filed: 06/28/2017No. 16

- 70025

14 As to Saldaño’s fifth issue , he claims that Texas’s future dangerousness inquiry is unconstitutionally vague in his case. The district court rejected this claim on the merits. The district court noted, and Saldaño concedes, that this Court has upheld Texas’s future dangerousness special issue against facial attacks. See, e.g. , Scheanette v. Quarterman , 482 F.3d 815, 827

– 28 (5th Cir. 2007); Leal v. Dretke , 428 F.3d 543, 553 (5th Cir. 2005)

. Moreover, Saldaño’s challenge focuses on how Texas law is unfair rather than explaining how Texas l aw is vague. As the district court found, “whether it was fair for the jury to consider [evidence of bad acts on death row] has nothing to do with whether the statute is unconstitutionally vague.” We deny a COA on Saldaño’s fifth issue. As to Saldaño’s six th issue , he articulates a fruit of the poisonous tree argument. He argues that admitting evidence of Saldaño’s bad acts on death row violated the Fourteenth Amendment because this evidence “was obtained thr ough the State’s own misconduct ”

— namely, the pros ecution’s use of racist testimony to sentence him to death. 3 The district court found that this claim (like the Lagrone claims discussed above ) is procedurally barred and involve s nothing more than the application of state law. Even if reasonable jurists c ould disagree on the district court’s procedural holding s , reasonable jurists would not debate that Saldaño’s sixth claim fails on the merits. Saldaño analogizes this case to the Fourth Amendment exclusionary rule, see Wong Sun v. United

3 Separately, Saldaño suggests that it was error to reveal that Saldaño’s bad acts were committed on death row . But Saldaño did not r aise this claim below. He did point out that “[a]llowing the jury to hear of his incarceration on Death Row and his conduct therefrom is the equivalent of allowing the jury to hear of an invalid prior conviction,” but did so in connection with the argument that admitting evidence of his bad acts while on death row was prejudicial

. Because Saldaño did not claim that allowing the jury to hear of his prior sentence of death was error in and of itself, we find that this argument is waived on appeal

. See Johnson , 483 F.3d at 288. Moreover, we note that defense counsel, over the state’s objection, chose to introduce Saldaño’s pre sence on death row to the jury. Case: 16-70025 Document: 00514051420 Page: 14 Date Filed: 06/28/2017No. 16

- 70025

15 States , 371 U.S. 471 (1963), but points to no court that has extended the exclusionary rule to this context. And Saldaño’s discussion of Texas Rule of Evidence 403 is neither tethered to any federal constitutional right nor supported by Texas state law . Accordin gly, while Saldaño’s argument sounds in constitutional principles, it has no firm basis in the law. We deny a COA on Saldaño’s sixth issue. C
. Competency Saldaño’s seventh issue pertains to his competenc y to stand trial and the trial court’s failure to ho ld a competency hearing. The state habeas court found that Saldaño was competent to stand trial and that the trial court was not obligated to hold a competency hearing. The district court agreed that the trial court was not obligated to hold a competency h earing , and held that the state habeas court’s finding on Saldaño’s competenc y was reasonable. It is axiomatic that “the Constitution does not permit trial of an individual who lacks ‘mental competency.’” Indiana v. Edwards , 554 U.S. 164, 170 (2008). A pe rson lacks mental competency if “he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense.” Drope v. Missouri , 420 U.S. 162, 171 (1975). Additionally, a trial judge must sua sponte hold a competency hearing “ [w] here the evidence raises a ‘ bona fide doubt’ as to a defenda nt’ s competence to stand trial. ” Pate v. Robinson , 383 U.S. 375, 385 (1966)

. “In determining whether there is a ‘bona fide doubt’ as to the defe ndant’ s competence,” a trial court should consider “ (1) any history of irrational behavior, (2) the defendant ’ s demeanor at trial, and (3) any prior medical opinion on competency.” Mata v. Johnson , 210 F.3d 324, 329 (5th Cir. 2000). “[E]ven one of these factors standing alone may, in some circumstances, be sufficient” to raise a bona fide doubt. Drope , 420 U.S. at 180. Case: 16-70025 Document: 00514051420 Page: 15 Date Filed: 06/28/2017No. 16

- 70025

16 Here, as the district court and state habeas court discussed, several facts support an inference of competenc y . First , two psychiatrists examined Saldaño a total of three times during the trial and found him competent every time. Second , prison records show that Saldaño was examined by a number of psychiatrists while on death row; some of these psychiatrists found that S aldaño was malingering , i.e. , his psychotic symptoms were faked in order to obtain drugs

. Third, the trial judge indicated near the end of the trial, after interacting with Saldaño for several weeks, that he had no reason to believe Saldaño was incompetent

. At the same time, ample evidence supports an inference of incompetenc y
. For example, Saldaño’s repeated masturbation in the courtroom, refusal to wear nonprison clothes , lack of attention during voir dire , laughter during testimony, and rocking back and forth in his chair suggest that he may not have understood the nature of the proceeding s
. Saldaño’s broken and sometimes incoherent speech suggests that he may not have been able to communicate effectively. Indeed, o ne of Saldaño’s own trial attorneys, Jo hn Tatum, stated in an affidavit that Saldaño lacked sufficient ability to consult with counsel and did not understand the proceedings. Juan Carlos Vega, an Argentine attorney who attended the trial, agreed that Saldaño was incompetent to stand trial. Vega also noted that during his personal interview with Saldaño in jail, Saldaño’s “words were incongruous and every three minutes he would say: ‘May the Lord be welcome.’” Additionally , Saldaño had a long history of irrational behavior, including eating his o wn feces and masturbating in public. Joe MacLoughlin, an employee of the Argentine consulate who met with Saldaño on numerous occasions, noted Saldaño’s mental deterioration during his time on death row. According to MacLoughlin, Saldaño appeared mentally stable in 1999 and 2000; starting in 2001, however, Saldaño began to exhibit “thought disorders and irrational speech” and other Case: 16-70025 Document: 00514051420 Page: 16 Date Filed: 06/28/2017No. 16

- 70025

17 “signs of mental illness and apparent psychotic behavior.” Some TDCJ doctors even diagnosed Saldaño with schizophrenia or schizoaffective disorder. Based on these r ecords as well as personal interviews, Dr. Cantu expressed the opinion that Saldaño suffered from psychosis and was incompetent to stand trial in 2004. In determining that the trial court was not obligate d to hold a competency hearing, the state habeas co urt focused on two facts: (1) two experts who examined Saldaño during the trial deeme d him competent; and (2) the trial judge stated he had no reason to believe Saldaño was incompetent. There are several potential issues with the state habeas court’s analy sis. First, the results of the psychiatric examinations upon which the court relied are not in the record. Indeed, as discussed above, it is possible that these psychiatrists did not even examine Saldaño in person. Second, t he state habeas court essentiall y disregarded prior diagnoses of psychosis, holding that these diagnoses “do not, alone, require a competency hearing

. ” The court also found these diagnoses “specifically discredited” by other TDCJ doctors, but did not explain why it regarded some diagnose s as superior to others. Third , the state habeas court regarded Saldaño’s courtroom behavior as “inappropriate . . . but not bizarre ” without explaining why the distinction mattered

. Finally, the state habeas court appeared to ignore Saldaño’s history of i rrational behavior. Reasonable jurists would debate whether the state habeas court’s factual findings were unreasonable in light of the evidence, and whether the court unreasonably applied Pate and Drope by not weighing Saldaño’s history of irrational beha vior, demeanor at trial, and prior diagnoses of psychosis against the opinions of the trial judge and the experts who examine d Saldaño during trial. In determining that Saldaño was competent, the state habeas court found that Saldaño could consult with cou nsel and understand the nature of Case: 16-70025 Document: 00514051420 Page: 17 Date Filed: 06/28/2017No. 16

- 70025

18 the proceedings. The numerous instances of Saldaño’s incoherent or disordered speech, his strange behavior, and the affidavits of several individuals who interacted with Saldaño around the time of trial belie the court’s f indings. Reasonable jurists would debate whether the state court’s factual findings are unreasonable in light of th is evidence

. Accordingly, we grant a COA on Saldaño’s seventh issue. D
. Ineffective Assistance of Counsel Saldaño’s final issue relates to ineffective assistance of trial counsel. Saldaño argues that trial counsel was deficient in (1) failing to present mitigating evidence to the jury, (2) failing to preserve for appellate review objections to the trial court’ s application of Lagrone , and (3) failing to request a competency hearing. The Sixth Amendment guarantees a criminal defendant’s right to counsel. U.S. Const. amend. VI. To establish ineffective assistance of counsel, Saldaño must show both that “counsel’ s performance was deficient ” and that this “ deficient performance prejudiced the defense .” Strickland v. Washington , 466 U.S. 668, 687 (1984). Under the first prong of the Strickland test, counsel’s performance was only deficient if it “ fell below an objec tive standard of reasonableness. ” Id. at 688 . We “ must indulge a strong presumption that counsel’ s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circum stances, the challenged action ‘ might be conside red sound trial strategy.’” Id. at 689 (quoting Michel v. Louisiana , 350 U.S. 91, 101 (1955) ). To show prejudice under the second prong of the Strickland test, there must be “ a reasonable pr obability that, bu t 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. ” Id. at 694. Case: 16-70025 Document: 00514051420 Page: 18 Date Filed: 06/28/2017No. 16

- 70025

19 1. Failure to Introduce Mitigating Evidence With regar d to mitigating evidence, Saldaño argues that trial counsel should have (a) introduced mental health evidence at trial , (b) put Saldaño’s mothe r, Lidia Guerrero, on the stand, and (c) moved for a continuance so that Saldaño’s sister Ada could testify, 4 or in the alternative deposed her. 5 The state habeas court found that trial counsel “made a reasonable strategic decision” not to introduce evidence of Saldaño’s mental deterioration because doing so would allow the state to introduce evidence suggesting that Saldaño was merely malingering. The state could point to diagnoses of antisocial personality disorder made by treating physician s as well as observations of manipulative, drug

- seeking behavior. Trial counsel Rick Harrison further explained that they did not put Guerrero on the stand because she intended to testify that Saldaño was mentally ill

— again opening the door to the state’s evidence of malingering. Reasonable jurists would agree that trial counsel’s choice not to introduce mental health evidenc e or put Guerrero on the stand was reasonably strategic and therefore not deficient under Strickland

. The state habeas court found that Ada Saldaño’s testimony was not clearly mitigating. Ada could have testified about Saldaño’s troubled youth, but Saldaño does not explain how Ada’s testimony would bear on the future dangerousness inquiry. Jurists of reason would agree there is no reasonable probability that Ada’s testimony would have changed the jury’s verdict.

4 At the time, Ada was pregnant and unable to travel to the United States in order to testify at her brot her’s punishment retrial. 5 Saldaño also suggests that the trial counsel should have put an Argentine consular employee, Joe MacLoughlin, on the stand. But Saldaño did not make this argument before the district court; accordingly, we find that it is waive d. Moreover, it is unclear what MacLoughlin would have testified about, other than Saldaño’s mental decline. Case: 16-70025 Document: 00514051420 Page: 19 Date Filed: 06/28/2017No. 16

- 70025

20 2
. Failure to Preserve Lagrone Issues for Appellate Review Saldaño next argues that trial counsel was ineffective in failing to
preserve Lagrone issues for appellate review. The district court held that this claim is procedurally defaulted because the TCCA dismissed the claim as an abuse of the wr it. Salda n o , 2008 WL 152732. As discussed above, reasonable jurists would not debate that Saldaño’s Lagrone claims are largely meritless. And reasonable jurists would agree that t he one claim that does have merit

— his Fifth Amendment claim

— fails because the trial court’s error was harmless. Thus, jurists of reason would agree there is no reasonable probability that preserving the Lagrone issues for appellate review would have changed the outcome of this case. 3
. Failure to Request a Competency Hearing Finally, Saldaño argues that trial counsel was ineffective in failing to request a competency hearing. The state habeas court found that requesting a competency hearing would have been futile because two experts opined that Saldaño was competent during tri al. The district court agreed, and also noted that trial counsel appropriately and sufficiently investigated Saldaño’s competenc y
. Trial counsel has a duty to investigate a defendant’s mental health if “he has reason to believe that the defendant suffers from mental health problems.” Roberts v. Dretke , 381 F.3d 491, 498 (5th Cir. 2004) ; see also Bouchillon v. Collins , 907 F.2d 589, 5 95

– 97 (5th Cir. 1990) ( counsel was ineffective in failing to investigate defendant’s competency in light of defendant’s known history of institutionalization). The Third Circuit has held that where “there are sufficient indicia of incompetence to give objectively reasonable counsel reason to doubt the defendant’s competency,” counsel is deficient if he fails to request a compete ncy hearing

. Jermyn v. Horn , 266 F.3d 257, 283 (3d Cir. 2001) ; accord Burt v. Uchtman , 422 F.3d 557, 569 (7th Cir. 2005) (concluding “that in light Case: 16-70025 Document: 00514051420 Page: 20 Date Filed: 06/28/2017No. 16

- 70025

21 of the overwhelming evidence of [defendant’s] psychological problems and heavy medication, counsel’s failure to request a new competency hearing was deficient performance” )

. But “[t]here can be no deficiency in failing to request a competency hearing where there is no evidence of incompetency.” McCoy v. Lynaugh , 874 F.2d 954, 964 (5th Cir. 1989). Moreover, “the Sixth Amendment does not require counsel to continue searching until they find an expert willing to provide more beneficial testimony on their behalf.” Dowthitt v. Johnson , 230 F.3d 733, 745 n.10 (5th Cir . 2000). Here, Saldaño’s history of irrational behavior, his demeanor at trial, and Dr. Peccora’s report gave defense counsel reason to believe Saldaño suffered from mental health problems. Trial counsel did investigate these problems by having Saldaño exa mined by mental health experts three times during the trial, and these experts deemed Saldaño competent. Based on these facts, Texas argues that counsel’s failure to request a competency hearing was not deficient. But the results of the psychiatric examina tions commissioned during trial are not in the record, and it is possible that the psychiatrists did not even examine Saldaño in person. Additionally , at least one of the trial lawyers

— John Tatum

— believed that Saldaño was incompetent to stand trial

. And am ple evidence, from prior diagnoses of psychosis to Saldaño’s behavior at trial, supported this belief. In light of this evidence, there may have been “sufficient indicia of incompetence to give objectively reasonable counsel reason to doubt the defendant’s competency.” Jermyn , 266 F.3d at 283 . We find that reasonable jurists w ould debate the state habeas court’s finding that trial counsel’s failure to request a competency hearing in light of this evidence was not deficient. To show prejudice, Saldaño must d emonstrate a reasonable probability that the trial court would have found him incompetent had counsel requested a competency hearing. Felde v. Butler , 817 F.2d 281, 282 (5th Cir. 1987) ; accord Burt , 422 F.3d at 567 (“Where a defendant argues that he should have received Case: 16-70025 Document: 00514051420 Page: 21 Date Filed: 06/28/2017No. 16

- 70025

22 a fitness hearing, we have interpreted the prejudice inquiry as asking whether there is a reasonable probability the defendant would have been found unfit had a hearing been held.”). We have already found that reasonable jurists would debate the state habeas court’s finding that Saldaño was competent. Likewise , reasonable jurists would debate whether there is a reasonable probability that the trial court would have found Saldaño incompetent h ad

counse l requested a competency hearing

. We grant a COA on Saldaño’s eighth issue , though only with respect to counsel’s failure to request a competency hearing. IV. CONCLUSION For the foregoing reasons, we GRANT a COA on Saldaño’s competency claim

— including both whether he was incompetent to stand trial and whether the trial court should have held a competency hearing

— and his claim of ineffective assistance with respect to counsel’s failure to request a competency hearing. Counsel for Saldaño should submit a merits brief on these two issues within 30 days. Counsel for the state should respond within 15 days thereafter. We DENY a COA on Saldaño’s other claims. Case: 16-70025 Document: 00514051420 Page: 22 Date Filed: 06/28/2017