*Pursuant to 5TH CIR. R. 47.5, the Court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

May 23, 2003

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 01-40447

_____________________

KELSEY PATTERSON, Petitioner-Appellant,

versus

JANIE COCKRELL, DIRECTOR, TEXAS

DEPARTMENT OF CRIMINAL JUSTICE,

INSTITUTIONAL DIVISION, Respondent-Appellee.

_________________________________________________________________

Appeal from the United States District Court

for the Eastern District of Texas

(4:98-CV-156)

_________________________________________________________________

Before JOLLY, JONES, and BENAVIDES, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:*

Kelsey Patterson was convicted in the Texas courts of capital

murder and sentenced to death, notwithstanding his claims of mental

illness and incompetence. The district court denied federal habeas

relief, but granted a certificate of appealability (“COA”) for

Patterson’s claims that he was incompetent to stand trial and that

he received ineffective assistance of counsel at trial. Patterson

appeals the denial of habeas relief as to those two claims and, in

addition, he seeks a COA from our court for his claims that he

received ineffective assistance of counsel at the competency trial,

that he is presently incompetent to be executed, and that the state
2

trial court should have conducted a mid-trial competency hearing.

We AFFIRM the denial of habeas relief on Patterson’s claims that he

was incompetent to stand trial and that he received ineffective

assistance of counsel at the guilt-innocence and punishment phases

of trial; DENY a COA for Patterson’s claims that counsel rendered

ineffective assistance at the competency trial and that the trial

court denied him due process by failing to conduct a mid-trial

competency hearing; and GRANT a COA for Patterson’s claim that he

is presently incompetent to be executed, but DISMISS that claim,

without prejudice to his raising it again when his execution is

imminent and the claim thus becomes ripe.

I

Patterson has a long history of mental illness (paranoid

schizophrenia). The murders for which Patterson was convicted and

sentenced to death were preceded by earlier, non-fatal shootings.

With no apparent rational motive, Patterson shot a co-worker in

1980 and was found incompetent to stand trial. Although his

competency was restored after hospitalization and forcible

medication, the charges were dismissed because he was insane at the

time of the offense. In 1983, Patterson shot another co-worker,

again with no apparent rational motive. Again, he was found

incompetent to stand trial; his competency was restored after

hospitalization and forcible medication; and the charges were

dismissed because he was insane at the time of the offense. He was
3

admitted to a state mental hospital again in 1988 after threatening

his family, but was released after being forcibly medicated.

In September 1992, Patterson shot and killed Louis Oates and

Dorothy Harris. Consistent with his prior assaultive behavior,

there was no apparent rational motive for the murders. After

shooting the victims, Patterson walked back to his roommate’s

house, put the gun on the porch, told his roommate that he had just

shot two people, and then removed all of his clothing and walked up

and down the street in front of the house until he was arrested.

He was charged with capital murder.

The trial court authorized funds for a defense psychiatric

expert to examine Patterson for competency to stand trial and

sanity at the time of the murders. After examining Patterson, Dr.

McNeel, the defense expert, concluded that he was competent to

stand trial and that he was sane when he committed the murders.

At the jury trial on competency in early May 1993, the State

had the burden of proving competency because Patterson previously

had been adjudged incompetent to stand trial. Against counsel’s

advice, Patterson testified, complaining about his court-appointed

attorneys, implanted devices, the criminal justice system, and his

treatment in jail. He refused to submit to cross-examination,

invoking his Fifth Amendment privilege against self-incrimination.

The trial court granted the State’s motion to strike Patterson’s

testimony and instructed the competency jury to disregard it. The

jury found Patterson competent to stand trial.
4

Voir dire for the trial on the merits commenced approximately

six weeks later. Throughout voir dire and the guilt-innocence

phase of trial, the trial court frequently had Patterson removed

from the courtroom because of his disruptive outbursts. During

voir dire, Patterson continually complained that his courtappointed counsel did not represent him. At one point, he stated

that they specialized in being “set-up” lawyers and that he had

heard them make a deal where they had a remote control device “put

in” him. Against the advice of counsel, Patterson testified at the

guilt-innocence phase. After answering questions about his name

and address, Patterson began ranting about his lawyers and the

police and complaining about implanted electronic remote control

devices, frequently telling his lawyer to “be quiet.” He referred

to “these charges on me that was did with some electrical devices.”

When the prosecutor attempted to cross-examine him, he continued to

talk about implanted devices that controlled his actions and again

pleaded the Fifth Amendment. On July 1, 1993, the jury convicted

him of capital murder, rejecting his insanity defense.

Patterson was present at the start of the punishment phase,

but was removed from the courtroom because of his disruptive

behavior and was not present for any of the testimony. The jury

answered the future dangerousness special issue affirmatively and

answered the mitigation special issue negatively. Patterson was

sentenced to death.
5

Patterson filed an application for state habeas relief in May

1997. The state trial court conducted an evidentiary hearing on

Patterson’s incompetency to stand trial and ineffective assistance

of counsel claims. In March 1998, the state habeas trial court

entered findings of fact and conclusions of law, recommending that

relief be denied. The Texas Court of Criminal Appeals denied

relief in May 1998, based on the trial court’s findings.

Patterson filed a federal habeas petition in August 1998. The

district court stayed Patterson’s execution, which had been

scheduled for August 31, 1998, during the pendency of the federal

habeas proceedings. After conducting evidentiary hearings in May

and August 1999 on Patterson’s claim that he is presently

incompetent to be executed, the magistrate judge recommended that

relief be denied. The district court adopted the magistrate

judge’s recommendation and denied federal habeas relief on January

30, 2001.

The district court granted a COA for Patterson’s claims that

(1) he was incompetent to stand trial; and (2) counsel rendered

ineffective assistance at the guilt-innocence and punishment

phases. Patterson seeks a COA from our court for his claims that:

(1) he is presently incompetent to be executed; and (2) the trial

court denied him due process by failing to conduct a mid-trial

competency hearing. Patterson also argues that he received

ineffective assistance of counsel at the competency trial. The

district court’s COA, however, is limited to Patterson’s claims of
6

ineffective assistance of counsel at the guilt-innocence and

punishment phases of trial. We therefore construe Patterson’s

argument that his counsel rendered ineffective assistance at the

competency trial as a request for a COA. See Hill v. Johnson, 114

F.3d 78, 81 (5th Cir. 1997) (construing notice of appeal and

request for certificate of probable cause as a request for COA);

FED. R. APP. P. 22(b) (“If no express request for a [COA] is filed,

the notice of appeal constitutes a request addressed to the judges

of the court of appeals.”).

II

We address first the claims for which the district court

granted a COA. We then turn to the claims for which Patterson

requests a COA from our court.

A

Merits Issues

As we have said, the district court granted a COA for

Patterson’s claims that he was incompetent to stand trial and that

he received ineffective assistance of counsel at the guilt and

punishment phases of trial. Because Patterson filed his federal

habeas petition after the effective date of the Anti-terrorism and

Effective Death Penalty Act (AEDPA), he is not entitled to federal

habeas relief on these claims unless the state court’s adjudication

of the claims

(1) resulted in a decision that was

contrary to, or involved an unreasonable

application of, clearly established Federal
7

law, as determined by the Supreme Court of the

United States; or

(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). A decision is “contrary to ... clearly

established Federal law, as determined by the Supreme Court of the

United States ... if the state court arrives at a conclusion

opposite to that reached by th[e] Court on a question of law or if

the state court decides a case differently than th[e] Court has on

a set of materially indistinguishable facts.” Williams v. Taylor,

529 U.S. 362, 412-13 (2000). A decision “involve[s] an

unreasonable application of [] clearly established Federal law, as

determined by the Supreme Court of the United States ... if the

state court identifies the correct governing legal principle from

th[e] Court’s decisions but unreasonably applies that principle to

the facts of the prisoner’s case.” Id. at 413. A state court’s

findings of fact are presumed to be correct unless the petitioner

rebuts the presumption by “clear and convincing evidence.” 28

U.S.C. § 2254(e)(1).

1

Competency to Stand Trial

We address first Patterson’s claim that he was incompetent to

stand trial. Patterson argues that the district court erred by

limiting its review to the reasonableness of the determination of

the jury at the competency hearing for two reasons: first, because
8

the issue was subsequently presented de novo in the state habeas

court, with additional evidence relevant to the determination; and,

second, it is unclear whether the state habeas court resolved the

issue, because it drew no conclusion other than that “Petitioner is

competent.” Alternatively, assuming that the state habeas court’s

determination that he “is competent” was a conclusion that he was

competent to stand trial in 1993, Patterson argues that the

district court erred by treating competency as a question of fact.

Patterson maintains that, although the threshold question whether

the defendant suffers from a mental illness is a fact issue, the

ultimate question of incompetency to stand trial is a mixed

question of law and fact. He therefore argues that the district

court should have determined whether the state court’s conclusion

that he “is competent” was an unreasonable application of the law

to the facts. In the further alternative, Patterson argues that,

if competency is an issue of fact, he presented clear and

convincing evidence of his incompetency at the state habeas

hearing. Therefore, any factual finding of the state habeas court

that he was competent to stand trial in 1993 is an unreasonable

determination of the facts.

It is well-settled that the criminal trial of an accused who

is legally incompetent violates due process. Bishop v. United

States, 350 U.S. 901 (1956); Pate v. Robinson, 383 U.S. 375, 378

(1966); Cooper v. Oklahoma, 517 U.S. 348, 353 (1996). An accused

is competent to stand trial if he “has sufficient present ability
9

to consult with his lawyer with a reasonable degree of rational

understanding[;] and . . . has a rational as well as factual

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

U.S. 402, 403 (1960).

Our precedent is conflicting as to whether competency to stand

trial is a question of fact or a mixed question of law and fact.

Compare Bouchillon v. Collins, 907 F.2d 589, 593 n.11 (5th Cir.

1990) (mixed question) and Washington v. Johnson, 90 F.3d 945, 951

(5th Cir. 1996) (same) with Profitt v. Waldron, 831 F.2d 1245, 1250

(5th Cir. 1987) (jury finding of competency to stand trial is

factual finding entitled to presumption of correctness); Carter v.

Johnson, 131 F.3d 452, 460 (5th Cir. 1997) (same); see also MillerEl v. Johnson, 261 F.3d 445, 454 (5th Cir. 2001) (applying AEDPA’s

“unreasonable application” standard to state court competency

determination, but also stating that “[a] state court’s competency

determination is a finding of fact entitled to a presumption of

correctness”), rev’d on other grounds, 123 S.Ct. 1029 (2003). The

Supreme Court, however, has treated competency to stand trial as a

question of fact. See Maggio v. Fulford, 462 U.S. 111, 117 (1983).

We need not resolve this conflict in our caselaw. Based on our

review of the evidence presented at the competency trial and the

state habeas hearing, described below, we conclude that the state

court’s adjudication of this claim did not result in a decision

that was contrary to, or involved an unreasonable application of,
10

clearly established federal law, and did not result in a decision

that was based on an unreasonable determination of the facts.

Prior to the competency trial, the defense psychiatric expert,

Dr. McNeel, examined Patterson and found him competent to stand

trial. Dr. Cox, a psychologist who consulted with defense counsel,

agreed with Dr. McNeel that Patterson was competent to stand trial.

Neither doctor testified at the competency trial.

Patterson refused to cooperate in an evaluation by Dr.

Quijano, the State’s expert psychologist. Dr. Quijano testified at

the competency trial that, based on his review of Patterson’s

records, Patterson suffered from paranoid schizophrenia, but he was

competent to stand trial.

Several jailers had come into contact with Patterson during

the seven months that he was in jail awaiting trial. They

testified that Patterson was able to keep his cell clean, take care

of his personal hygiene, and communicate his needs. One jailer

testified that Patterson was able to follow jail rules and

regulations and that he believed that Patterson could talk sensibly

to his attorneys. The chief jailer testified that, although

Patterson had indicated that he was unhappy with his attorneys,

Patterson had the ability to communicate with his attorneys if he

chose to do so. He further testified, however, that Patterson

believed that his food was being drugged and that the jailers had

come into his cell at night and injected something into his body.
11

The State’s expert psychiatrist, Dr. Grigson, had found

Patterson incompetent to stand trial in 1980. He acknowledged that

he had not interviewed Patterson since 1981 but, based on his

review of Patterson’s records and observation of Patterson in the

courtroom, he testified that Patterson was competent to stand

trial. According to Dr. Grigson, Patterson had learned to

manipulate the criminal justice system and was faking psychosis.

As we have noted earlier, Patterson testified at the

competency trial, against the advice of his counsel. On direct

examination, he complained about his attorneys, conditions in the

jail, and a device that had been implanted in his body to control

his behavior. He refused to submit to cross-examination by the

State, asserting his Fifth Amendment privilege against selfincrimination. The trial court granted the State’s motion to

strike Patterson’s testimony and instructed the competency jury to

disregard it.

Although one of Patterson’s attorneys had testified at a

pretrial hearing that Patterson was not capable of consulting with

counsel with a reasonable degree of rational understanding, neither

of Patterson’s attorneys testified at the competency trial.

At the state habeas evidentiary hearing, some of the testimony

was slanted differently. Dr. Quijano admitted that when he found

Patterson competent to stand trial, he had been operating under the

faulty assumption that he should presume Patterson competent until

it could be positively demonstrated that he was not, and that he
12

had not then found any such positive demonstration. Now, however,

his review of the transcript of Patterson’s outbursts during jury

selection and trial raised sufficient doubt in his mind about the

correctness of his earlier conclusion that, in hindsight, he would

have recommended that the competency issue be revisited. Dr.

Quijano conceded that Dr. McNeel, who had examined Patterson, would

have been in a better position to make a competency determination.

Further, at the state habeas hearing, Patterson’s expert, Dr.

Childs, testified that Patterson was incompetent to stand trial and

that he was not faking mental illness. Dr. Childs, however, was

unable to examine Patterson because Patterson refused to cooperate.

Dr. Childs’s conclusion was based on his review of trial

transcripts, medical records, and interviews. He deduced from this

information the basis to describe a fixed delusional system in

which Patterson believed that he was tried for capital murder

because of a hell pledge placed on him by an unknown person; that

the trial judge, prosecutors, and his counsel are all hell workers

conspiring against him to effectuate the hell pledge; and that the

only way to invalidate his conviction and sentence is to “put hell”

on the conspirators by telling them, in a ritualistic way, to “go

to hell.” Dr. Childs testified that Patterson’s delusional beliefs

rendered him incapable of rationally understanding the proceedings

against him or consulting with his attorneys.

Dr. McNeel, the only mental health expert who examined

Patterson for competency to stand trial, testified at the state
13

habeas evidentiary hearing that Patterson was competent to stand

trial. He acknowledged that, hypothetically, a person suffering

the “hell pledge delusion” could be incompetent to stand trial; but

he testified that, even if Patterson currently suffered such a

delusion, he could not assume that Patterson suffered that delusion

at the time of his trial in 1993. Dr. McNeel’s evaluation of

Patterson in 1993 revealed that, although Patterson suffered some

delusions regarding implanted remote control devices, Patterson did

not connect those devices with the judicial process, but discussed

them only in the context of something that had happened in the

past.

Considering all of the evidence, the state habeas trial court

found that Patterson “is capable of communicating with his

attorneys,” that Patterson did not meet his burden of establishing

that he cannot do so with a rational degree of understanding, and

that Patterson “demonstrated during his trial ... the capability of

refraining from disruptive behavior when he chose to.” In its

conclusions of law, it simply stated: “Petitioner is competent.”

The magistrate judge and the district court stated, however, that,

if they were reviewing the issue de novo, they would have concluded

that Patterson was incompetent to stand trial. Nevertheless, they

held that Patterson had failed to rebut, with clear and convincing

evidence, the state competency jury’s factual determination that

Patterson was competent.
14

Based on our review of the record of the competency trial and

the state habeas hearing, we conclude that the competency jury and

the state habeas court did not unreasonably determine that

Patterson was competent to stand trial in 1993. Every psychiatric

expert who had contact with Patterson immediately prior to his

trial, including the two experts consulted by defense counsel,

concluded at that time that he was competent to stand trial.

Although Dr. Quijano’s testimony at the state habeas hearing

indicated retrospective doubts about Patterson’s competency to

stand trial, Dr. Quijano nevertheless testified that he believed

Patterson was competent to stand trial in 1993. Dr. Childs never

examined Patterson and did not observe Patterson’s demeanor in the

courtroom in 1993. His opinion was based on speculation --

speculation that Patterson suffered the hell pledges delusion in

1993. Dr. McNeel, the defense expert who examined Patterson in

1993, testified that Patterson gave no indication that he suffered

such a hell pledges delusion at that time. Our review of the

record supports that conclusion. Patterson’s outbursts and

testimony at the competency trial and the trial on the merits in

1993 do not contain any references to the hell pledges delusion

that had become apparent by the time of the state habeas

evidentiary hearing. Although Dr. McNeel did not testify at the

competency hearing, his opinion, it is fair to say, is the most

credible evidence on the question whether Patterson was competent

to stand trial in 1993. We reach this conclusion in substantial
15

part because he was the only mental health expert who was able to

examine Patterson.

In sum, we conclude that Patterson has not demonstrated that

the state courts’ adjudication of his claim that he was incompetent

to stand trial resulted in a decision that was based on an

unreasonable determination of the facts in the light of the

evidence presented in the state court proceedings or a decision

that was contrary to, or involved an unreasonable application of,

clearly established federal law. We thus affirm the district

court’s denial of habeas relief for this claim.

2

Ineffective Assistance of Counsel

Patterson argues that trial counsel rendered ineffective

assistance at all stages of his criminal trial: at the competency

hearing, at the guilt-innocence phase of his trial, and at the

punishment phase of his trial. The district court granted a COA

only with respect to the guilt-innocence phase and the punishment

phase. Accordingly, we cannot consider the competency hearing

claim unless we first grant a COA for that particular claim. See

28 U.S.C. § 2253(c)(1); Dowthitt v. Johnson, 230 F.3d 733, 739 (5th

Cir. 2000) (under AEDPA, petitioner must first obtain a COA in

order for appellate court to review district court’s denial of

habeas relief). We will address that claim later in this opinion,

along with Patterson’s other COA requests. We will now turn to

consider the claims related to the guilt and punishment phases of
16

his trial on which the district court granted a COA. We begin by

reviewing the applicable law.

To establish an ineffective assistance of counsel claim,

Patterson must show that his counsel’s performance was deficient

and that he was actually prejudiced by the deficient performance.

Strickland v. Washington, 466 U.S. 668, 687 (1984). Whether

counsel’s performance was deficient is determined by examining

whether the challenged representation fell below an objective

standard of reasonableness. Kitchens v. Johnson, 190 F.3d 698, 701

(5th Cir. 1999). We are mindful that our “scrutiny of counsel’s

performance must be highly deferential.” Strickland, 466 U.S. at

689. “[C]ounsel is strongly presumed to have rendered adequate

assistance and to have made all significant decisions in the

exercise of reasonable professional judgment.” Id. at 690.

Strickland makes clear that “strategic choices made after thorough

investigation of law and facts relevant to plausible options are

virtually unchallengeable.” Id. at 690-91; see also United States

v. Jones, 287 F.3d 325, 331 (5th Cir.) (“Informed strategic

decisions of counsel are given a heavy measure of deference and

should not be second guessed.”), cert. denied, 123 S.Ct. 549

(2002); Lockett v. Anderson, 230 F.3d 695, 714 (5th Cir. 2000)

(Strickland requires deference to counsel’s “informed strategic

choices”). “So long as counsel made an adequate investigation, any

strategic decisions made as a result of that investigation fall

within the wide range of objectively reasonable professional
17

assistance.” Smith v. Cockrell, 311 F.3d 661, 668 (5th Cir. 2002)

(internal quotation marks and citation omitted).

“A conscious and informed decision on trial tactics and

strategy cannot be the basis for constitutionally ineffective

assistance of counsel unless it is so ill chosen that it permeates

the entire trial with obvious unfairness.” Jones, 287 F.3d at 331.

To overcome the deference given to informed strategic decisions,

Patterson must show that his counsel “blundered through trial,

attempted to put on an unsupported defense, abandoned a trial

tactic, failed to pursue a reasonable alternative course, or

surrendered his client.” Id.; see also Moore v. Johnson, 194 F.3d

586, 615 (5th Cir. 1999) (“Strickland does not require deference to

those decisions of counsel that, viewed in light of the facts known

at the time of the purported decision, do not serve any conceivable

strategic purpose.”).

Even if Patterson establishes that his counsel’s performance

was deficient, he must also establish that “prejudice caused by the

deficiency is such that there is a reasonable probability that the

result of the proceedings would have been different.” Ransom v.

Johnson, 126 F.3d 716, 721 (5th Cir. 1997). Patterson must show

that the prejudice rendered the outcome “fundamentally unfair or

unreliable.” Id. (quoting Lockhart v. Fretwell, 506 U.S. 364

(1993)).

Under AEDPA, we must give proper deference to the state

court’s determination that trial counsel did not render ineffective
18

assistance. See Ladd v. Cockrell, 311 F.3d 349, 351 (5th Cir.

2002). Because the state court properly identified Strickland as

the governing legal principle, the “unreasonable application” prong

of section 2254(d)(1) provides the standard which governs our

review of the state court’s decision regarding Patterson’s

ineffective counsel claims. Bell v. Cone, 122 S.Ct. 1843, 1850

(2002). In making the “unreasonable application” inquiry, we must

determine whether the state court’s application of Strickland was

objectively unreasonable. Id.; Neal v. Puckett, 286 F.3d 230, 236

(5th Cir. 2002) (en banc), cert. denied, 123 S.Ct. 963 (2003).

Under section 2254(d)(1), “[w]e have no authority to grant habeas

corpus relief simply because we conclude, in our independent

judgment, that a state supreme court’s application of Strickland is

erroneous or incorrect.” Catalan v. Cockrell, 315 F.3d 491, 493

(5th Cir. 2002) (quoting Neal, 286 F.3d at 236). “The federalhabeas scheme leaves primary responsibility with the state courts

for these judgments, and authorizes federal-court intervention only

when a state court decision is objectively unreasonable.” Woodford

v. Visciotti, 123 S.Ct. 357, 361 (2002).

a

Failure to Fully Utilize Experts

Patterson argues that, at both phases of the trial, counsel

failed to utilize fully the services of a defense expert.

According to Patterson, such an expert was needed to assist with

cross-examination of Dr. Grigson at the guilt-innocence phase
19

regarding his testimony that Patterson was faking psychosis at the

time of the offense; to monitor Patterson’s mental state and to

alert counsel and the court if Patterson became incompetent during

the proceedings; to persuade the trial court to revisit the issue

of Patterson’s competence to stand trial; to facilitate

presentation of evidence at the punishment phase; and to urge the

jury to regard Patterson’s diminished mental capacity as a

mitigating circumstance.

The state habeas trial court found that trial counsel were

furnished adequate financial resources to consult experts regarding

Patterson’s mental competency; that the experts consulted by trial

counsel were qualified in their field; and that Dr. Cox, one of the

experts consulted by Patterson’s trial counsel, was available and

assisted during the trial. It concluded that Patterson had not

demonstrated that counsel made mistakes or omissions that fell

below an objective standard of reasonableness and that Patterson

was not denied the effective assistance of counsel.

Considering the respective arguments presented, we conclude

that Patterson has not rebutted the state habeas trial court’s

factual finding that Dr. Cox was available and assisted his counsel

during trial. In the light of that finding, the state court’s

conclusion that trial counsel did not render ineffective assistance

by failing to fully utilize the services of a defense expert is

neither contrary to, nor an unreasonable application of, federal
20

law. Accordingly, we affirm the district court’s denial of habeas

relief for this claim.

b

Guilt-Innocence Phase

Patterson argues that counsel rendered ineffective assistance

at the guilt-innocence phase of trial by failing to offer his

medical records in support of the insanity defense and by failing

to object to the prosecutor’s closing argument. We address each of

these claims separately.

(1)

Failure to Present Evidence in Support of Insanity Defense

Patterson relied on an insanity defense at the guilt-innocence

phase of trial. Patterson’s counsel presented the testimony of

Patterson’s brother and roommate regarding Patterson’s history of

mental illness, prior hospitalizations, and bizarre behavior

immediately prior to the murders. They also presented expert

testimony that Patterson suffered from paranoid schizophrenia, a

mental illness which can render a person unable to distinguish

between right and wrong. But Patterson says that counsel should

have done more: They should have offered his medical records in

support of the insanity defense. Those records showed a history of

violent acts, followed by determinations of incompetency to stand

trial, hospitalization and restored competency following the

administration of medication, and determinations that he was insane

at the time the offenses were committed.
21

At the state habeas evidentiary hearing, both of Patterson’s

trial counsel testified that there was a strategic reason for not

introducing the medical records: Those records would have revealed

to the jury that Patterson had escaped conviction for two prior

shootings. Counsel feared that the jury’s indignation at

Patterson’s previous, unpunished violent acts would overwhelm the

jury’s ability to consider the evidence of insanity objectively.

The state habeas court found that the strategic reasons proffered

by trial counsel were valid.

The district court acknowledged that Patterson’s medical

records would have been “highly relevant” on the issue of

Patterson’s sanity at the time of the murders. It concluded,

however, that trial counsel’s decision to try to meet their burden

through testimony about Patterson’s generally bizarre behavior,

without introducing prejudicial evidence of Patterson’s prior

criminal conduct or hospitalizations, did not fall outside the wide

range of constitutionally acceptable assistance.

Patterson contends that the medical records would have

supported his insanity defense. He argues that trial counsel’s

proffered strategic reason for not introducing the records is

evidence of ineffective assistance of counsel, because an attorney

should not assume that a jury will ignore the law because it is

prejudiced by the facts.

We conclude that the state court’s decision that counsel did

not render ineffective assistance at the guilt-innocence phase by
22

failing to present Patterson’s medical records is neither contrary

to, nor an unreasonable application of, federal law. Trial counsel

had valid strategic reasons for not presenting the medical records

-- counsel did not want to portray Patterson to the jury as a

dangerous person who had twice escaped conviction for violent

assaults. We therefore affirm the district court’s denial of

habeas relief for this claim.

(2)

Failure to Object to Prosecutor’s Closing Argument

Patterson argues that trial counsel also rendered ineffective

assistance at the guilt-innocence phase by failing to object to the

prosecutor’s closing argument. Patterson characterizes the

prosecutor’s argument as an invitation to the jury to nullify the

law of insanity, to set its own standard, and to hold Patterson

accountable for refusing to take his medication. The state habeas

court found that Patterson failed to meet his burden of showing

that trial counsel made omissions which fell below an objective

standard of reasonableness.

The district court construed the prosecutor’s argument as

urging the jury not to believe Patterson’s claim that he did not

know right from wrong because he did not take his medication. The

district court stated that, in any event, it was unclear whether

voluntarily failing to take anti-psychotic medication provides a

valid legal ground for a jury’s rejecting an insanity defense. It

therefore held that, considering the unsettled state of the law and
23

the context in which the remarks were made, the prosecutor’s

argument was not improper and counsel did not render deficient

performance by failing to object.

The state court’s decision that counsel did not render

ineffective assistance by failing to object to the prosecutor’s

closing argument is neither contrary to, nor an unreasonable

application of, federal law. Even assuming that the failure to

object constitutes deficient performance, Patterson has not

demonstrated prejudice -- he has not shown that there is a

reasonable probability that the trial court would have sustained

such an objection had it been made or that, had it been sustained,

that there is a reasonable probability that the jury would have

found him not guilty by reason of insanity. We therefore affirm

the district court’s denial of habeas relief for this claim.

c

Punishment Phase

Patterson argues that counsel rendered ineffective assistance

at the punishment phase by failing to introduce his medical

records, bolstered by expert testimony. This evidence, he argues,

would have supported the argument that he would not constitute a

future danger to society if institutionalized and forcibly

medicated. Such evidence also would have supported the argument

for diminished capacity as a mitigating circumstance. In order to

give some context to our consideration of this claim, we will first

describe the evidence presented at the punishment phase.
24

The State presented the testimony of the victims Patterson

shot in 1980 and 1983. Both of them testified that they did

nothing to provoke the attacks. Both of them were aware that

Patterson was not convicted for the shootings, and one of them

testified that he was aware that Patterson had been found mentally

incompetent. Three law enforcement officers testified that

Patterson’s reputation in the community for being peaceful and lawabiding was bad.

Patterson’s counsel presented the testimony of Patterson’s

brother and sister regarding Patterson’s history of mental illness.

Both testified that they believed Patterson would benefit from

psychiatric care because he had benefitted from such care in the

past. Patterson’s brother, a correctional officer for the Texas

Department of Criminal Justice (“TDCJ”), also testified that TDCJ

had programs and facilities for mentally ill inmates with staff

psychiatrists and psychologists who could administer medication and

treatment.

The jury was instructed that a prisoner serving a life

sentence for a capital felony is not eligible for parole until the

prisoner has served 35 years. In closing argument, Patterson’s

counsel observed that, if Patterson were sentenced to life

imprisonment, he would be 74 years old before he could even be

considered for parole. Counsel continued: “We’re talking about

him going to die or spend basically the rest of his life in the

penitentiary where he can be forced to take medication, where he
25

can be watched 24 hours a day, where he will be behind bars for the

rest of his life.” Patterson argues that his medical records

establish that he is not violent when forcibly medicated in an

institutionalized setting, and that expert testimony was available

to show that the Texas prison system has procedures for forcibly

medicating dangerous, mentally ill inmates. Although the medical

records show some additional instances of violent behavior by

Patterson while institutionalized, Patterson argues that, because

those incidents occurred relatively early in the hospitalizations,

the medical records would have supported an argument by counsel

that he is not violent once he is placed on anti-psychotic

medication and that medication has had time to take effect.

With respect to diminished capacity, Patterson argues that the

medical records show that, even after his medication took effect

and he was no longer violent, he never gained any insight into the

need to continue taking the medication in order to avoid future

psychosis. He thus contends that, had his trial counsel admitted

the records, they could have argued convincingly that his conduct

was a result of his diminished capacity because of his illness.

Furthermore, Dr. Quijano would have been willing to testify that

Patterson would have had substantial difficulty conforming his

conduct to the law because of his paranoid schizophrenia.

Patterson argues that such evidence of diminished capacity would

have provided a basis for the jury to assess a sentence less than

death.
26

The State counters that counsel had valid strategic reasons

for not presenting the medical records, because they contained

accounts of additional instances of violent conduct by Patterson

during his prior hospitalizations. According to the State, these

additional instances of violent conduct could seriously have

undermined counsel’s argument that the State had failed to prove

that Patterson would present a future danger to society if

incarcerated.

We begin our analysis of these particular claims of

ineffective counsel by observing that Patterson’s trial counsel

were faced with a formidable task in defending Patterson: He did

not want them to represent him; the evidence of his guilt was

overwhelming; he refused to heed their advice; and he refused to

cooperate with mental health experts who tried to evaluate him.

The testimony of Patterson’s trial counsel at the state habeas

evidentiary hearing reflects that they made an informed strategic

decision to forego the use of Patterson’s medical records and

expert testimony in support of an argument that Patterson’s

diminished capacity was a mitigating circumstance. Patterson’s

counsel testified that they explored the possibility of presenting

the testimony of Dr. McNeel or Dr. Cox at the punishment phase of

trial, but decided that it would be more harmful than beneficial.

According to counsel, Dr. McNeel believed that Patterson was just

mean-spirited and that his behavior was not attributable to his

mental illness. It is true that Dr. Cox believed there was some
27

level of impairment due to Patterson’s mental illness; but counsel

believed that Dr. Cox’s less than fully supportive testimony would

have minimized the impact of the stronger evidence of Patterson’s

mental illness presented through family members and acquaintances.

Counsel testified that they were concerned that introduction of the

medical records for mitigation would inform the jury of the

ineffectiveness of Patterson’s treatment after the prior shooting

episodes and would present to the jury a harmful pattern of

Patterson’s committing violent acts, being hospitalized, and then

committing other violent acts after he was released. 

Furthermore, with respect to the future dangerousness issue,

counsel’s decision not to use the penitentiary medical records, and

evidence regarding forcible medication procedures at the

penitentiary, was also an informed strategic decision requiring

deference under Strickland. The testimony of both of Patterson’s

defense lawyers at the state habeas evidentiary hearing indicates

that they were familiar with the contents of Patterson’s medical

records and, based upon their review of the medical records, they

consciously decided not to use the medical records during the

punishment phase. Counsel testified that the defense theory at the

punishment phase was to portray Patterson as a mentally ill person

who did not need to be put to death, but should instead be put in

prison where he could get some help. Counsel acknowledged that

they were aware that Patterson’s medical records showed that his

condition improved when he was on medication. Counsel believed,
28

however, that the medical records contained some damaging

information that would have emphasized that treatment had been

ineffective for Patterson in the past. Counsel testified further

that they were aware that Patterson could be forcibly medicated in

prison, and that they could have called Dr. Quijano or other people

from the penitentiary to testify on that issue. When asked,

however, whether they attempted to convince the jury that Patterson

would not be dangerous to others in the penitentiary if confined on

a life sentence, one of Patterson’s lawyers responded that he was

not sure how he could have done that. Counsel acknowledged that he

did not present any direct evidence that Patterson’s violent and

aggressive behavior could be controlled through the administration

of antipsychotic medication, or that such medication could be

administered forcibly if Patterson were serving a life sentence in

the penitentiary. Nevertheless, counsel presented the testimony of

Patterson’s brother, a state correctional officer, that within the

prison system there are programs for mentally ill inmates with

psychiatrists and psychologists available. Furthermore,

Patterson’s brother and sister both testified that his condition

improved when he was on medication.

Counsel explained that they feared that the introduction of

Patterson’s medical records would have opened the door for the

prosecutor to argue that the treatment Patterson had received in

the past had not prevented subsequent acts of violence and thus

would have lessened their ability successfully to argue for
29

institutionalization rather than the death penalty. Counsel

testified that they decided instead to rely on the State’s failure

to present evidence that Patterson did not do well in an

institutionalized environment.

As we have earlier noted, counsel’s decision not to introduce

Patterson’s medical records at the guilt-innocence phase was a

reasonable strategic decision, because those records would have

informed the jury of Patterson’s prior violent assaults that were

the basis for two of his previous hospitalizations. Patterson

argues that the same does not hold true for the punishment phase,

because, by the time the defense presented its case at the

punishment phase, the State had already presented the testimony of

the victims of those prior assaults. Both of the victims testified

that Patterson was not convicted for shooting them, and one of them

testified that he was aware that Patterson had been found mentally

incompetent. Patterson thus contends that, because the jury

already was aware that he had escaped punishment for the two prior

shootings, the jury reasonably could have inferred that any prior

treatment he had received for his mental illness had not prevented

the murders for which they were to assess punishment.

Applying AEDPA’s deferential standard, we conclude that the

state court did not apply Strickland unreasonably when it found

that trial counsel justifiably believed that introduction of the

medical records at the punishment phase would have negated the

effectiveness of their argument that confinement rather than the
30

death penalty could have served the public interest in avoiding

further violence by Patterson. A trial counsel’s reasoned decision

not to introduce evidence, containing both helpful and damaging

information, cannot be deficient performance. Duff-Smith v.

Collins, 973 F.2d 1175, 1183 (5th Cir. 1992); see also Johnson v.

Cockrell, 306 F.3d 249, 253 (5th Cir. 2002) (failure to introduce

double-edged evidence, so long as part of an informed trial

strategy, cannot constitute deficient performance); Foster v.

Johnson, 293 F.3d 766, 778-79 (5th Cir.), cert. denied, 123 S.Ct.

625 (2002). We therefore affirm the district court’s denial of

habeas relief on Patterson’s claim that he received ineffective

assistance of counsel at the punishment phase.

B

COA Issues

Patterson seeks a COA on three claims: first, that the state

trial court denied him due process by failing to conduct a midtrial competency hearing; second, that he is presently incompetent

to be executed; and finally, because the district court’s grant of

COA on the ineffective assistance of counsel claims was limited to

the guilt-innocence and punishment phases of trial, we construe his

argument that he received ineffective assistance of counsel at the

competency trial as a request for a COA.

“[U]ntil a COA has been issued federal courts of appeals lack

jurisdiction to rule on the merits of appeals from habeas

petitioners.” Miller-El v. Cockrell, 123 S.Ct. 1029, 1039 (2003).
31

To obtain a COA, Patterson must make “a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); MillerEl, 123 S.Ct. at 1039; Slack v. McDaniel, 529 U.S. 473, 483 (2000).

To make such a showing, he must demonstrate that “reasonable

jurists could debate whether (or, for that matter, agree that) the

petition should have been resolved in a different manner or that

the issues presented were adequate to deserve encouragement to

proceed further.” Miller-El, 123 S.Ct. at 1039 (quoting Slack, 529

U.S. at 484). Because the district court denied relief on the

merits of the claims for which Patterson seeks a COA, he “must

demonstrate that reasonable jurists would find the district court’s

assessment of the constitutional claims debatable or wrong.”

Slack, 529 U.S. at 484.

In Miller-El, the Supreme Court instructed, as it had

previously held in Slack, that we should “limit [our] examination

to a threshold inquiry into the underlying merit of [the

petitioner’s] claims.” Miller-El, 123 S.Ct. at 1034. The Court

observed that “a COA ruling is not the occasion for a ruling on the

merit of petitioner’s claim....” Id. at 1036. Instead, our

determination must be based on “an overview of the claims in the

habeas petition and a general assessment of their merits.” Id. at

1039. “This threshold inquiry does not require full consideration

of the factual or legal bases adduced in support of the claims.”

Id. We do not have jurisdiction to justify our denial of a COA

based on an adjudication of the actual merits of the claims. Id.
32

Accordingly, we cannot deny an “application for a COA merely

because [we believe] the applicant will not demonstrate an

entitlement to relief.” Id. “[A] claim can be debatable even

though every jurist of reason might agree, after the COA has been

granted and the case has received full consideration, that

petitioner will not prevail.” Id.

Thus, we reiterate that our task is to determine whether

Patterson has demonstrated “that reasonable jurists would find the

district court’s assessment of the constitutional claims debatable

or wrong.” Slack, 529 U.S. at 484. 

1

Ineffective Assistance of Counsel at Competency Hearing

Patterson requests a COA for his claim that at the competency

hearing counsel rendered deficient performance by: first, failing

adequately to prepare the defense expert, Dr. McNeel; second,

failing personally to testify as to Patterson’s incompetency;

third, failing to present evidence of his prior hospitalizations;

fourth, failing to present the testimony of an attorney who had

previously represented him; and, finally, failing to discover that

Dr. Quijano’s competency determination was based on his erroneous

assumption that Patterson bore the burden of proving his

incompetency.

a

Inadequate Preparation of Expert
33

Patterson argues that counsel did not adequately prepare Dr.

McNeel to give a fully informed opinion on his competency to stand

trial, because they: (1) failed to provide Dr. McNeel with

Patterson’s Terrell Hospital records, in which it was first

documented that Patterson’s denials of auditory hallucinations were

false; (2) did not supply to Dr. McNeel any information from

Patterson’s family and friends regarding his past patterns of

psychosis, his hallucinatory behavior in the days before the

murders, and the fact that Patterson was hallucinatory while

awaiting trial; and (3) did not educate Dr. McNeel about the extent

and nature of Patterson’s fixed delusional system. To support

these claims, Patterson relies on Dr. McNeel’s testimony at the

state habeas evidentiary hearing. In response to a hypothetical

question, Dr. McNeel testified that, if Patterson’s delusional

system included a belief that the judge, lawyers, and jury were all

part of the hell pledges against him, he would have had to question

Patterson’s ability to assist his counsel and thus would have felt

Patterson was most likely not competent to stand trial. Patterson

argues that this response at the habeas hearing shows that, had Dr.

McNeel been properly prepared at the competency hearing, he likely

would have concluded that Patterson was incompetent to stand trial.

Patterson has not made a substantial showing of the denial of

a constitutional right and thus is not entitled to a COA for this

claim. Even assuming that reasonable jurists would find it

debatable whether counsel inadequately prepared Dr. McNeel, they
34

would not find it debatable whether Patterson was prejudiced. Dr.

McNeel testified at the state habeas hearing that nothing that had

been revealed during the state habeas proceedings undermined his

determination that Patterson was competent to stand trial in 1993.

Patterson’s reliance on Dr. McNeel’s response to the hypothetical

question is unavailing, because there is no evidence -- only

speculation -- that, at the time of his trial in 1993, Patterson

suffered from the hell pledges delusion, or that he had

incorporated the jury, judge, and his lawyers into his delusional

system.

b

Failure to Present Evidence

Patterson next argues that counsel performed deficiently by:

failing personally to testify at the competency hearing as to their

difficulties in communicating with him; failing to present to the

competency jury his medical records showing a long history of

incompetence; failing to present the testimony of a lawyer who had

represented him previously; and failing to interview Dr. Quijano to

learn that his conclusion that Patterson was competent was based on

the faulty legal assumption that Patterson was competent to stand

trial until an examination could prove otherwise. He contends

further that counsel’s decision not to introduce the medical

records was not an informed decision, because counsel had not

talked to Patterson’s family and were thus unaware that Patterson

was hallucinating while in jail awaiting trial. Patterson argues
35

that the medical records, which show a pattern of incompetency and

a restoration of competency only after forcible medication, could

have been used to argue that, in the light of Patterson’s not

taking medication prior to trial, his refusal to cooperate with his

attorneys was the product of his mental illness rather than

obstinacy or malingering.

Patterson has not made the showing required for a COA on this

claim. Jurists of reason would not find it debatable whether

counsel’s performance was deficient, or whether Patterson was

prejudiced. The district court concluded that testimony from

Patterson’s trial counsel at the competency hearing would have had

only marginal value because counsel could not say for certain

whether they thought Patterson was incompetent or simply obstinate.

Trial counsel testified that they did not introduce Patterson’s

medical records at the competency hearing because they feared the

jury would have been too frightened by Patterson’s prior history of

delusional violence to focus on the issue of his mental capacity;

and they abandoned the idea of calling Patterson’s former attorney,

Henderson, as a witness because he had described Patterson as “one

mean S.O.B.” and because it could have opened the door to evidence

regarding the underlying violent crime leading to Henderson’s

representation of Patterson. Counsel’s failure to interview Dr.

Quijano is not surprising inasmuch as Dr. Quijano was an expert

witness for the State. In any event, Dr. Quijano testified at

trial and at the state habeas evidentiary hearing that he believed
36

Patterson was competent to stand trial. We also note that counsel

elicited information about Patterson’s psychiatric history during

cross-examination of the State’s experts, including the fact that

Patterson had been found incompetent to stand trial on two previous

occasions.

In sum, the district court’s assessment of Patterson’s claim

that he received ineffective assistance of counsel at the

competency trial is neither debatable nor wrong. We therefore deny

a COA for this claim.

2

Failure to Conduct Mid-Trial Competency Hearing

Patterson also seeks a COA for his claim that the state trial

court denied him due process by failing to halt the trial long

enough to revisit the issue of his competency to stand trial.

A trial judge must conduct an inquiry into a criminal

defendant’s competency to stand trial whenever the trial judge

receives information which, objectively considered, “should have

raised a doubt about the defendant’s competency and alerted him to

the possibility that the defendant could neither understand the

proceedings or appreciate their significance, nor rationally aid

his attorney in his defense.” Lokos v. Capps, 625 F.2d 1258, 1261

(5th Cir. 1980). “If the trial court receives evidence, viewed

objectively, that should raise a reasonable doubt as to competency,

yet fails to make further inquiry, this constitutes a denial of a
37

fair trial.” Carter v. Johnson, 131 F.3d 452, 459 n.10 (5th Cir.

1997).

The state trial court conducted a jury trial on the issue of

Patterson’s competency to stand trial on May 3 and 4, 1993, less

than two months prior to his capital murder trial. In order to

show that the trial court abused its discretion in failing to

conduct a second, mid-trial competency hearing, Patterson must

identify facts known to the trial court at that time that would

have suggested that Patterson’s mental status had deteriorated to

the point that the jury’s prior finding of competency was no longer

valid. See Drope v. Missouri, 420 U.S. 162, 181 (1975) (“Even when

a defendant is competent at the commencement of his trial, a trial

court must always be alert to circumstances suggesting a change

that would render the accused unable to meet the standards of

competence to stand trial.”); Reynolds v. Norris, 86 F.3d 796, 801

(8th Cir. 1996) (“habeas petitioner has the burden to prove that

objective facts known to the trial court raised a sufficient doubt

to require a [mid-trial] competency hearing”).

Patterson relies on the fact that he made frequent outbursts

during the course of the trial that resulted in his removal from

the courtroom. He also points out that the state trial court was

aware of additional evidence of his incompetency that was not

available to the competency jury: his testimony at the competency

trial, which the competency jury was instructed to disregard, and

his refusal to accept the State’s offer of a life sentence in
38

exchange for a plea of guilty. Patterson argues that his inability

to refrain from verbal outbursts during voir dire, his delusional

insistence that his court-appointed counsel did not represent him,

and his refusal to plead guilty should have alerted the trial court

to the substantial possibility that Patterson was not competent to

stand trial.

The state habeas trial court found that Patterson’s behavior

during the trial was not different from his behavior at the

competency hearing less than two months earlier. The record

supports that finding. The district court held that the state

court’s decision was neither contrary to, nor involved an

unreasonable application of, clearly established federal law. We

conclude that the district court’s assessment of this claim is

neither debatable nor wrong. Because Patterson’s behavior at trial

was consistent with his behavior at the competency hearing

conducted less than two months earlier, reasonable jurists would

not find it debatable whether Patterson’s condition had

deteriorated to the point that a renewed inquiry into competency

was required. We therefore deny a COA for this claim.

3

Incompetency to be Executed

Finally, Patterson requests a COA for his claim that he is

presently incompetent to be executed. The Supreme Court has held

that “the Eighth Amendment prohibits a State from carrying out a

sentence of death upon a prisoner who is insane.” Ford v.
39

Wainwright, 477 U.S. 399, 409-10 (1986). To be competent to be

executed, a death row inmate must “know the fact of [his] impending

execution and the reason for it.” Id. at 422 (Powell, J.,

concurring). “If the defendant perceives the connection between

his crime and his punishment, the retributive goal of the criminal

law is satisfied, and only if the defendant is aware that his death

is approaching can he prepare himself for his passing.” Id.

When Patterson filed his state habeas application in May 1997,

that was the only mechanism available under Texas law to raise the

issue of his competency to be executed. Accordingly, although an

execution date had not been set at that time, Patterson raised the

issue in his state habeas application. At the state habeas

hearing, Patterson acknowledged that he had been convicted of

killing Louis Oates and Dorothy Harris and that the State intends

to execute him by lethal injection for that offense. The state

habeas trial court found that Patterson’s mental illness “does not

prevent [him] from knowing and realizing that he is under a death

sentence for actions he took in taking the lives of his victims,”

and concluded that “Petitioner is competent.”

Patterson’s federal habeas petition also claimed that he was

presently incompetent to be executed. At the time Patterson filed

his federal habeas petition, an execution date had been set, but

the district court entered a stay of execution for the duration of

the federal habeas proceedings. The magistrate judge appointed a

psychiatric expert, Dr. Gripon, to evaluate Patterson, and
40

authorized funds for Patterson’s counsel to retain an expert, Dr.

Rogers. Patterson refused to submit to an evaluation by either

expert. Both experts testified at the May 1999 federal evidentiary

hearing that they could not determine definitively Patterson’s

present competency to be executed, but that there was no indication

that Patterson’s mental condition had changed since the state

habeas evidentiary hearing. Both experts agreed that Patterson’s

refusal to cooperate in an evaluation was itself a product of his

mental illness.

The magistrate judge continued the hearing until August so

that Patterson could be transferred to a prison psychiatric

facility. Following his transfer, Patterson continued to refuse to

cooperate with the experts. When they attempted to interview him,

he told them that he had received a permanent stay of execution,

which they were endangering by attempting to interview him.

At the August 1999 federal evidentiary hearing, Patterson

stated that he had received a permanent stay of execution. His

counsel presented other evidence of his belief that he had received

such a stay, including a letter in which Patterson stated that he

had received a “full pardon.” Dr. Rogers testified that, given

Patterson’s elaborate delusional system, it is “certainly possible”

that he believes he is going to be executed because of the

implants, hell pledges and conspiracies against him, and not

because he committed the murders. Without being able to conduct a

full evaluation, neither expert could say what Patterson meant by
41

his reference to a “permanent” stay of execution, or whether it was

a manifestation of his delusional system.

The district court rejected Patterson’s argument that his

delusional understanding of how he came to be on death row prevents

him from making the connection between his conduct and his

punishment. The court concluded that Patterson’s belief that he

has received a pardon or a “permanent” stay of execution is merely

a mistake of fact about the duration of the stay granted by the

district court and is insufficient to defeat the presumption that

Patterson is competent to be executed. The district court rejected

Patterson’s claim that, because his mental illness prevented the

experts from evaluating his current competency, he cannot be

executed so long as there are additional means available to

ascertain his competency. The district court feared that delaying

execution for indefinite, long-term observation in cases where a

petitioner refuses to cooperate with a competency examination would

invite death row inmates to engage in such tactics in order to

delay or prevent their execution.

Patterson argues that he is incompetent to be executed because

he cannot make a rational connection between his crime and his

execution and, therefore, the retributive goal of criminal law will

not be satisfied by executing him. He asserts that his belief that

he has been pardoned for innocence demonstrates that he lacks a

factual understanding that he is to be executed, and that his

belief cannot possibly be explained as a misapprehension of the
42

source and duration of the district court’s stay of execution.

Patterson contends that the district court erred by denying his

motion to require the State, as a condition of executing him, first

to transfer him to a state mental health facility for a period of

observation. He also asserts that the district court ignored the

fact that neither of the experts who tried to examine him believed

that he was malingering, as well as the fact that both of the

experts testified that his refusal to cooperate in an evaluation

was itself a product of his mental illness. Patterson concludes

that, under these circumstances, where there is a viable chance

that he is incompetent to be executed, but the same delusional

system that makes him incompetent also prevents his habeas counsel

from proving it, it is intolerable under the Eighth Amendment to

allow the State to execute him.

On the other hand, the State counters that Patterson has

failed to rebut, by clear and convincing evidence, the

presumptively correct finding of the state courts that he is

competent to be executed. The State asserts that there is no

evidence that Patterson’s mental status has changed, much less

deteriorated to the point that the state courts’ assessment of his

competency in 1998 is no longer valid. To the extent that new

evidence has surfaced regarding Patterson’s understanding of

whether he is going to be executed, the State asserts that a

mechanism in Texas law exists for the consideration of such

evidence in the context of an impending execution, TEX. CODE CRIM.
43

PROC. ANN. art. 46.05 (effective September 1, 1999), and the federal

courts should defer to that process, allowing the state courts to

consider that new evidence after an execution date has been

scheduled. Finally, the State contends that, even assuming that

Patterson’s refusal to submit to an evaluation is a product of his

mental illness and that a definitive conclusion on his current

competency cannot be reached without such an evaluation, a federal

habeas court does not have the power to order that Patterson be

transferred to a non-correctional mental health facility.

Based on the evidence presented at the federal habeas

evidentiary hearings, we conclude that reasonable jurists would

find debatable Patterson’s competency to be executed. Accordingly,

we grant his request for a COA for this claim.

At the time of the state habeas evidentiary hearing, Patterson

was competent to be executed: He knew that he was going to be

executed and the reason for it. See Barnard v. Collins, 13 F.3d

871, 876-77 (5th Cir. 1994) (petitioner was competent to be

executed even though his perception of the reason for his

conviction and pending execution was distorted by a delusional

system in which he attributed anything negative that happened to

him to a conspiracy of Asians, Jews, Blacks, homosexuals, and the

Mafia); Garrett v. Collins, 951 F.2d 57, 59 (5th Cir. 1992)

(petitioner who believed dead aunt would protect him from poisons

and toxins in lethal injection was competent to be executed).
44

By the time of the federal habeas evidentiary hearing,

Patterson’s delusions had evolved to the point that he apparently

believed that he had received a “permanent” stay of execution and

a “pardon for innocence.” His letters indicate that he had, by

that time, incorporated the district judge and his federal habeas

counsel into his delusional system, believing them to be “hell

workers.” Because of Patterson’s refusal to cooperate in an

evaluation, which refusal both experts testified was a product of

his mental illness, neither expert could say what Patterson meant

by a “permanent” stay of execution. Patterson’s statement that he

had been “pardoned for innocence” raises serious questions about

his understanding, at that time, of the fact that he is going to be

executed.

The state courts have not had an opportunity to consider the

evidence of Patterson’s competency that was presented at the

federal habeas evidentiary hearings in 1999. Moreover, it has been

more than three years since those hearings were conducted.

Patterson’s execution was stayed by the district court, and no new

execution date has been set. Under these circumstances, the state

courts should be given the opportunity to evaluate Patterson’s

competency to be executed, in the light of the evidence presented

at the federal evidentiary hearings, as well as any evidence of his

condition in the intervening three years, when his execution is

imminent. We therefore dismiss this claim, without prejudice. See

Stewart v. Martinez-Villareal, 523 U.S. 637, 644-45 (1998) (Ford
45

claim raised for second time in subsequent federal habeas petition,

when it is ripe because the execution is imminent, is not “second

or successive” within the meaning of 28 U.S.C. § 2244 when claim

raised in first federal habeas petition was dismissed without

prejudice as unripe); Swann v. Taylor, 173 F.3d 425, 1999 WL 92435,

at *17 (4th Cir. 1999) (dismissing without prejudice competency to

be executed claim raised in first federal habeas petition because

execution was not imminent).

III

For the foregoing reasons, we AFFIRM the denial of habeas

relief on Patterson’s claims that he was incompetent to stand trial

and that he received ineffective assistance of counsel at the

guilt-innocence and punishment phases of trial; DENY a COA for

Patterson’s claims that counsel rendered ineffective assistance of

counsel at the competency trial and for his claim that he was

denied due process when the trial court failed to conduct a midtrial competency hearing; and GRANT a COA for Patterson’s claim

that he is presently incompetent to be executed, but DISMISS that

claim, without prejudice.

AFFIRMED in part, and DISMISSED, in part; COA DENIED in part,

and GRANTED in part.