* Pursuant to 5 T H C IR

. R . 47.5, t he court has determined that this opinion should not be

published and is not precedent except under the limit ed circumstances set forth in 5 TH C IR

. R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

June 19, 2003

Charles R. Fulbruge III

Clerk UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

_________________

No. 01-50347

_________________

SCOTT LOUIS PANETTI,

Petitioner-Appellant,

versus

JANIE COCKRELL, Director, Texas Department of Criminal Justice, Institutional Division,

Respondent-Appellee.

Appeal from the United States District Court

For the Western District of Texas

USDC No. A-99-CV-260-SS

Before HIGGINBOTHAM, EMILIO M. GARZA and STEWART, Circuit Judges.

PER CURIAM: *

Scott Louis Panetti (“Panetti”), a Texas inmate, has filed a petition for a writ of habeas corpus

pursuant to 28 U.S.C. § 2254. Panetti was convicted in Texas state court of murdering his wife’s

parents (Joe and Amanda Alvarado) and sente nced to the death penalty. Panetti’s wife Sonja1 The district court denied Panetti’s request for a COA on seven other claims. In an earlier

unpublished opinion, we affirmed that decision.

-2- Alvarado (“Alvarado”) and their three-year-old daughter witnessed the murders.

We consider the six c l aims on which the district court granted a certificate of appealability

(COA) : 1 (1) whether Panetti was mentally competent to stand trial and whether the state trial court

should have held an additional hearing to determine his competency; (2) whether Panetti was mentally

competent to waive counsel and proceed with his defense pro se ; (3) whether the state withheld

exculpatory evidence relating to Panetti’s mental illness in violation of Brady v. Maryland

, 373 U.S.

83 (1963); (4) whether the state knowingly presented perjured testimony during Panetti’s trial in

violation of his fourteenth amendment right to due process; (5) whether the st ate coerced and

manipulated a witness (Alvarado) in violation of Panetti’s due process rights; and (6) whether the jury

verdict was based on inaccurate information in violation of Panetti’s due process rights.

In a habeas proceeding, we review the district court’s findings of fact for clear error and its

conclusions of law de novo

. A lexander v. Cockrell

, 294 F.3d 626, 628 (5th Cir. 2002). In this case,

the district court dismissed all six of the above claims on the ground that Panetti failed to exhaust his

state court remedies. The question of whether a habeas petitioner exhausted his state remedies is an

issue of law, so we review the district court’s determination de novo

. See Wilder v. Cockrell , 274

F.3d 255, 259 (5th

Cir. 2001).

We have repeatedly made clear that a state prisoner must present his claims to a state tribunal,

and the reby exhaust his state remedies, before filing a habeas petition in federal court. O gan v.

Cockrell

, 297 F.3d 349, 356 (5th Cir. 2002). A habeas petitioner has failed to exhaust his state court

remedies when he presents his claims to the federal court “in a significant ly different a nd stronger-3-

evidentiary posture than [they were] before the state courts.” D ow thitt v. Johnson , 230 F.3d 733,

746 (5th Cir. 2000) (internal quotation marks omitted).

Our case law suggests that Panetti failed to exhaust th e fo llo wing four claims: (1) that the

state withheld exculpatory evidence; (2) that the s t ate knowingly presented perjured testimony;

(3) that the state coerced and manipulated a witness (Alvarado); and (4) that the jury’s verdict was

based on inaccurate information. When Panetti presented these four claims to the federal habeas

court, he relied heavily on a signed affidavit (and accompanying interview transcript) from Alvarado.

However, Panetti did not present the same evidence to the state court. When Panetti filed his state

habeas petition, he presented an unsigned affidavit from Alvarado supporting his claims. The state

was able to cast doubt on the veracity of that unsigned affidavit by presenting the state habeas court

with a signed affidavit that Alvarado prepared for the state (in which she refuted the claims she made

in the unsigned affidavit). By contrast, the st at e did not present the federal habeas court with an

affidavit from Alvarado casting doubt on the signed affidavit she prepared for Panetti.

Clearly, the signed affidavit that Panetti presented to the federal court constituted substantially

stronger evidence than the unsigned affidavit he offered to the state court. As a result, Panetti’s four

claims, which rely heavily on the signed affidavit from Alvarado, were presented to the federal court

in a “significant ly different and stronger evidentiary posture” than in the state court. Therefore, we

agree with the district court’s conclusion that Panet t i failed to exhaust those four claims in state

court.

We do not, however, agree with the district court’s determination that Pa net ti failed to

exhaust his other two claims: (1) that he was incompetent to stand trial; and (2) that he was

incompetent to waive counsel. Although Panetti relied in part on Alvarado’s signed affidavit to-4-

support his competency claims in federal court, the Alvarado affidavit was not the primary support

for those claims. Panetti also relied on statements by psychiatrists, attorneys, and lay persons who

o bserved Panetti at trial and concluded that he was not competent to stand trial or waive counsel.

This evidence (or sim

ilar evidence) was presented to the state courts. Thus, we hol d that Panetti

exhausted his competency claims. See Vasquez v. Hillery , 474 U.S. 254, 257 (1986) (“[O]nce the

federal claim has been fairly presented to the state courts, the exhaustion requirement is satisfied.”)

(internal quotation marks omitted).

Because Panetti’s petition contains both exhausted and unexhausted claims, it might appear

that we should dismiss the petition without prejudice to allow him to exhaust all of his claims. We

have stated that “[a] habeas petition containing both exhausted and unexhausted claims is a ‘mixed’

petition which should be dismissed without prejudice.” S ee Alexander v. Johnson

, 163 F.3d 906, 908

(5th Cir. 1998). That rule (requiring the dismissal of a “mixed” petition) does not, however, apply

when state procedural rules would prevent the petitioner from subsequently raising his unexhausted

claims in state court. We have held that, if a petitioner’s unexhausted claims would be procedurally

barred under state law, we need not dismiss those claims without prejudice. See Fuller v. Johnson

,

158 F.3d 903, 905-06 (5th Cir. 1998).

Panetti could not raise his unexhausted claims in a subsequent state habeas petition. He would

be prevented from doing so by Texas’s abuse of the writ doctrine. That doctrine “prohibits a second

habeas petition, absent a showing of cause, if the applicant urges grounds therein that could have

been, but were not, raised in his first habeas petition.” N obles v. Johnson

, 127 F.3d 409, 423 (5th

Cir. 1997) (citing Ex parte Bar ber , 879 S.W.2d 889, 891 n.1 (Tex. Crim. App. 1994)); s ee T EX

.

C RIM

. P ROC

. C ODE A NN

. art. 11.071 § 5(a).2 We have previously held that Texas’s abuse of the writ doctrine constitutes an independent

and adequate state law ground for procedural default under federal law. S ee Fuller

, 158 F.3d at 906;

Nobles , 127 F.3d at 423.

-5- Because the abuse of the writ doctrine would prevent Panetti from presenting his unexhausted

claims in a subsequent state habeas petition, those claims appear to be procedu rally defaulted for

purposes of federal habeas r eview. S ee Finley v. Johnson

, 243 F.3d 215, 220 (5th Cir. 2001). 2

Therefore, unless Pan et t i qualifies for an exception to our procedural default rules, those claims

cannot provide a basis for federal habeas relief. See Ogan , 297 F.3d at 356.

A petitioner can overcome a procedural default only if he can (1) demonstrate cause for the

default and (2) demonstrate actual prejudice resulting from the alleged violation of federal law. Id.

Panetti appears to argue that prosecutorial misconduct prevented him from sat isfying the exhaustion

requirement and thereby “caused” his claims to be procedurally barred. He contends that he was

unable to present a signed affidavi t from Alvarado to the state court because the prosecution

“interfere[d] with Alvarado by pressuring her not to sign her affidavit for [Panetti] and to sign an

affidavit (which she now claims is false) for the state.” Brief of Appellant at 40.

Panetti provides little evidence to support this claim of prosecutorial misconduct. He relies

solely on Alvarado’s signed federal affidavit (and accompanying interview transcript), asserting that,

in the state habeas proceeding, the prosecution pressured Alvarado to sign an affidavit on behalf of

the state. However, as the district court observed, Alvarado appears to lack credibility. As noted

above, Alvarado has prepared conflicting (signed and unsigned) affidavits for the state and federal

habeas courts. In light of this inconsistency, Alvarado’s signed federal affidavit, standing alone,

cannot support Panetti’s allegation of prosecutorial misconduct. As a result, Panetti cannot show that

prosecutorial misconduct was the cause of his f ailure to exhaust his state remedies. We therefore-6-

conclude that Panetti cannot take advantage of the cause/prejudice exception to our procedural

default rules. We hold that four of Panetti’s claims are procedurally defaulted.

As we noted above, beca use Panet t i could not assert these four unexhausted claims in a

subsequent state habeas petition, we need not dismiss his federal petition without prejudice. Instead,

we can consider his exhausted claims on the merits. We therefore proceed to examine Panet t i’s

competency claims.

The state appellate and habeas courts found that Panetti was competent to stand trial and to

waive counsel. In a habeas proceeding, we accord significant weight to the state courts’

determinations. We will not grant federal habeas relief unless the state courts’ adjudication of

Panetti’s claims (1) “result ed in a decision that was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the Supreme Cou rt of the Uni ted

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)(1),(2).

We have observed that “[d]ue process prohibits the prosecution of a defendant who is not

competent to stand trial.” D unn v. Johnson

, 162 F.3d 302, 305 (5th Cir. 1998). The Supreme Court

has held that “the standard for competence to stand trial is whet her t he defendant has ‘sufficient

present abilit

y to consult with his lawyer with a reasonable degree of rational understanding’ and has

‘a rational as well as factual understanding of the proceedings against him.’” Godinez v. Moran

, 509

U.S. 389, 396 (1993) (quoting Dusky v. United States , 362 U.S. 402, 402 (1960)). Panetti claims

that his long history of mental illness (includ ing schizo phrenia) as well as his behavior at trial

demonstrate his incompetency. During the courtroom proceedings, Panetti would at times ramble

or make seemingly irrelevant statements. Panetti claims that this behavior indicates that he did not-7-

have a rational or factual understanding of the proceedings.

The state courts considered this evidence ( i.e. , Panetti’s history of mental illness, as well as

his tendency to ramble and his proclivity for bizarre behavior), and nonetheless found that Panetti was

competent to stand trial. Panetti’s performance at trial supports the state courts’ conclusion that he

had a rational understanding of the proceedings against him and was able to assist in his own defense.

At trial, Panetti asserted an insanity defense. In support of that defense, Panetti attempted to elicit

testimony that his actions at the time of the murder were bizarre and unusual. Such testimony would

help support an insanity defense. Panetti also attempted to cast doubt on the memory of Alvarado

(the state’s primary witness to the crime). Panetti suggested to Alvarado that, due to her shock at

the time of the murder, she may not accurately remember the events surrounding the crime.

In light of the evidence that Panetti was able to formulate a trial strategy, we cannot say that

the state courts’ determination (that Panetti was competent to stand trial) was unr easonable. S ee

Dunn

, 162 F.3d at 305-06 (examining the claim o f a petitioner who initially proceeded p ro se and

lat er claimed that he was incompetent to stand trial and waive counsel, and concluding that t he

petitioner’s history of mental illness and delusional beliefs did n ot dem onstrate that he was

incompetent).

Panetti’s cl aim t hat he was incompetent to stand trial also has a procedural component.

Panetti claims that, in light of his irrational behavior at trial, the state trial court should have held an

additional hearing to determine his competency. We have stated that “a trial court has a duty to hold

a competency hearing when the objective facts known to the trial court [are] sufficient to raise a bona

fide doubt as to [the petitioner’s] competency.” Id. at 305 (internal quotati on marks omitted). In this

case, the trial court held two competency hearings prior to Panetti’s trial. In the second hearing, the-8-

jury was presented with evidence that Panetti tended to ram ble and otherwise act irrationally, and

nonet heless fo und him competent to stand trial. No new indicia of incompetency surfaced during

P anet t i’s t rial. Therefore, the trial court did not have an obligation to hold another competency

hearing.

Panetti also claims that he was not mentally competent to waive counsel and proceed with his

defense pro se

. T he Supreme Court has made clear that a defendant’s competency to waive counsel

is judged by the same standard as his competency to stand trial. G odinez

, 509 U.S. at 398. Because

Pan et t i was competent to stand trial, it follows that he was also competent to waive counsel. S ee

Dunn , 162 F.3d at 308.

However, determining that a petitioner was competent to waive counsel d oes not

automatically end the inquiry. We must also examine whether Panetti’s waiver of co unsel was

knowing and voluntary. S ee Godinez

, 509 U.S. at 400. It seems clear that Panetti’s waiver satisfies

this additional requirement. When Panetti asked to proceed p ro se

, the state trial court informed

Panetti of the ramifications of that decision. The court reminded Panetti that he was charged with

capital murder; that he faced the death penalty; that it would be very difficult for a non-lawyer to try

such a case; and told Panetti that the court would appoint counsel for him. Despite the warnings of

the trial court, Panetti elected to proceed pro se

. He has failed to demonstrate that his decision was

involuntary or unknowing. S ee Dunn

, 162 F.3d at 307 (refusing to find that the petitioner’s waiver

of counsel was not knowing and voluntary when the trial court had reminded the petitioner of “his

right to counsel and warned of the dangers and disadvantages of self-representation”).

We conclude that four of Panetti’s claims are procedurally defaulted and that his two

competency claims lack merit. Therefore, Panetti’s habeas petition is DENIED.