IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-70024

PERRY ALLEN AUSTIN, 

 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 Southern District of Texas

Before OWEN, ELROD, and HAYNES, Circuit Judges.

PRISCILLA R. OWEN, Circuit Judge:

Perry Allen Austin was convicted of capital murder in Texas state court 

and sentenced to death. The Texas Court of Criminal Appeals affirmed the 

trial court’s judgment and subsequently dismissed Austin’s state habeas 

petition as untimely. Austin filed a federal habeas petition. The federal 

district court granted summary judgment for the State and denied a certificate 

of appealability (COA). This court granted Austin a COA on fourteen of his 

twenty-one grounds. We now affirm the district court’s judgment.

United States Court of Appeals

Fifth Circuit

FILED

November 30, 2017

Lyle W. Cayce

Clerk

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I

We briefly recount the pertinent facts leading up to Austin’s trial for 

capital murder, as outlined in a prior opinion: 

In 1978, [Austin] raped one of his adolescent sisters at gunpoint 

and attempted to rape another, before robbing a third, older sister and 

his mother. . . . A jury convicted Austin of rape, attempted rape, and 

aggravated robbery.

Following this conviction, Austin was released on parole in 1991 

and began a sexual relationship with J.O., a fourteen-year-old female. 

Through J.O., Austin met D.K., a nine-year-old male. D.K. disappeared 

in August 1992. While investigating D.K.’s disappearance, police 

discovered Austin’s relationship with J.O. and charges were brought 

against Austin. He pled guilty to sexual assault of a child and received 

a thirty-year sentence. In April 1993, D.K.’s remains were found. 

Although there was physical evidence connecting Austin to D.K.’s 

murder and Austin admitted that D.K. had been in his vehicle the day of 

D.K.’s disappearance, police did not believe they had sufficient evidence 

to prove Austin was responsible for D.K.’s murder.

Austin alleges that prison conditions caused his mental health to 

deteriorate after he was incarcerated for sexually assaulting J.O. In 

1995, he stabbed another prisoner and received an additional twentyyear sentence. By this point, Austin was confined in administrative 

segregation.

In September 2000, Austin wrote a letter to a Houston police 

officer, stating that he would confess to D.K.’s murder if he would be 

guaranteed the death penalty. [Austin stated if that was not guaranteed, 

he would kill a prison guard as a way of guaranteeing himself the death 

penalty.]1 Austin was interviewed at the state prison and confessed 

orally and in writing to slitting D.K.’s throat with a knife because Austin 

was angry at D.K.’s brother for allegedly stealing drugs from Austin’s 

car. Austin was indicted for capital murder on February 15, 2001. On 

March 21, Mack Arnold was appointed to represent Austin.2

 

1 14RR24.

2 Austin v. Davis, 647 F. App’x 477, 480 (5th Cir. 2016) (per curiam).

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Prior to his trial, Austin wrote a number of letters to the state trial court. 

In his first letter, Austin explained that he “[did] not want, nor require an 

attorney to represent [him]” and that he “[was] willing to face whatever 

consequences due [him] for [his] heinous and deplorable acts.”3 He also 

indicated he would accept a death sentence and waive any appeals.4 He stated 

that he was “fully aware of [his] rights and [was] fully competent to stand 

before you and make these decisions.”5 Austin explained that he had not had 

peace of mind since the murder, that his “mental stability [had] steadily 

decreased,” and that he was using drugs again.6

Several months later, Austin wrote to the state trial court requesting to 

be released from administrative segregation or, alternatively, that his trial be 

moved to an earlier date.7 Austin reasoned that he had not had a disciplinary 

incident since entering the county jail and that, even though he was charged 

with capital murder, he suspected “others in population [had] similar 

charges.”8 He further stated that he “[could not] handle prolonged isolation” 

because he “[has] a very bad problem with depression” and contemplates 

suicide often when depressed.9 Several weeks later, Austin again requested 

an earlier trial date.10 Austin explained to the state trial court: “No, I don’t 

have a death wish, or at least you all can’t prove it . . . . I am fully competent 

and definitely know the difference between right and wrong.”11 In his last 

 

3 CR at 5 (letter from Austin to the trial court file stamped May 15, 2001).

4 Id.

5 Id.

6 Id.

7 CR at 16 (letter from Austin to the trial court dated July 19, 2001); ROA.629.

8 CR at 16; ROA.629.

9 CR at 16. 

10 CR at 18 (letter from Austin to the trial court dated Aug. 8, 2001). 

11 Id.

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letter to the state trial court before the pretrial hearing to determine if Austin 

could represent himself, Austin again requested to proceed pro se, noting he 

was “fully aware of the consequences” and “aware that this is within [his]

right.”12 He also stated that he did not wish to participate in jury selection and 

that he would “not contest any juror the prosecution selects.”13

Prior to trial, Austin’s counsel requested that the state trial court permit 

and authorize payment for a psychological examination of Austin by Dr. 

Jerome Brown, a clinical psychologist.14 The trial court granted counsel’s 

request,15 although it appears that counsel did not immediately seek Dr. 

Brown’s services.16 The trial court held a conference in chambers six weeks 

later and explained to Austin that it wanted a psychological evaluation 

performed before it could decide whether Austin could proceed pro se.17 The 

trial court ordered Dr. Brown to evaluate Austin to determine his competency 

to stand trial.18 In his report, prepared after meeting with Austin, Dr. Brown 

noted that Austin “had no trouble providing relevant and coherent background 

information,” was able to describe the charges against him and the court 

proceedings that had occurred, and could explain why he wanted to represent 

himself.19 Dr. Brown concluded that Austin was “alert, well-oriented, and able 

to communicate his ideas without difficulty.”20 Dr. Brown also noted that 

 

12 CR at 20 (letter from Austin to the trial court dated Aug. 14, 2001). 

13 Id.

14 CR at 12-13 (motion submitted May 30, 2001).

15 CR at 11 (granting motion on July 13, 2001).

16 2RR3 (trial court referring to a previous conference in chambers six weeks before in 

which it noted that the evaluation had not yet occurred); Austin Br. at 15 (specifying that the 

conference occurred on August 27, 2001).

17 2RR3-4.

18 CR at 24 (evaluation conducted on September 20, 2001). 

19 CR at 24-25.

20 CR at 26.

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Austin displayed no “bizarre verbalizations,” hallucinations, or delusions 

typically indicative of severe mental illness nor did he exhibit any indication

of disorganization, confusion, or other significant difficulties in 

communication.21 Although the report acknowledged Austin’s use of alcohol 

and drugs in prison, it did not otherwise mention any past mental health 

issues.22 Dr. Brown concluded that Austin was competent to stand trial.23

After the evaluation, the state trial court held a pretrial Faretta hearing 

to consider Austin’s request to proceed pro se. Under Faretta v. California, a 

criminal defendant has a right to self-representation.24 To exercise that right, 

a defendant must competently, knowingly, and intelligently waive his right to 

counsel.25 At the hearing, the trial court noted that it had read Austin’s letters 

and spoken with Austin at a prior hearing.26 The trial court also noted that it 

was in possession of Dr. Brown’s report summarizing his evaluation of Austin’s 

competency to stand trial.27 The trial court asked Austin’s counsel his opinion 

 

21 Id.

22 CR at 24-26. 

23 CR at 26. 

24 Faretta v. California, 422 U.S. 806 (1975).

25 Id. at 835 (“When an accused manages his own defense, he relinquishes, as a purely 

factual matter, many of the traditional benefits associated with the right to counsel. For this 

reason, in order to represent himself, the accused must ‘knowingly and intelligently’ forgo 

those relinquished benefits. Although a defendant need not himself have the skill and 

experience of a lawyer in order competently and intelligently to choose self-representation, 

he should be made aware of the dangers and disadvantages of self-representation, so that the 

record will establish that ‘he knows what he is doing and his choice is made with eyes open.’”) 

(internal citations omitted); see also Weaver v. Massachusetts, 137 S. Ct. 1899, 1908 (2017) 

(noting that a defendant’s “right to conduct his own defense . . . ‘usually increases the 

likelihood of a trial outcome unfavorable to the defendant’” but recognizing that the “right is 

based on the fundamental legal principle that a defendant must be allowed to make his own 

choices about the proper way to protect his own liberty” and that improper denial of the right 

constitutes structural error (quoting McKaskle v. Wiggins, 465 U.S. 168, 177 n.8 (1984))).

26 2RR3 (hearing held October 11, 2001).

27 2RR4.

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as to Austin’s competency. Counsel stated that, in his view, Austin was 

competent to stand trial and, in fact, “it has been [his] opinion from the first 

time [he] met him but out of an abundance of caution [he] requested the

psychiatric evaluation.”28 The court then asked Austin a series of questions 

pertaining to his understanding of the possible consequences of representing 

himself and of the charges against him. Austin explained that he wanted 

complete control over trial strategy, although he agreed to standby counsel 

“[f]or legal advice only.”29 The court also asked Austin four questions about his 

mental health history.30 Austin stated he had had no mental health issues.31 

The trial court issued findings, granted Austin’s request to proceed to trial pro 

se, and appointed standby counsel.32

After the Faretta hearing, but before trial began, Austin submitted an 

affidavit to the state trial court, stating that he wished to have his court order 

for access to the law library rescinded because he thought “it [was] not 

necessary for [him] to attend additional [l]aw [l]ibrary sessions to research the 

 

28 Id.

29 2RR13.

30 2RR6-7. 

31 Id.

THE COURT: Have you ever been declared mentally incompetent?

AUSTIN: No, ma’am.

THE COURT: Have you ever been treated for any mental health disorder?

AUSTIN: No, ma’am.

. . .

THE COURT: Okay. Ever have any mental health problems while you were in 

the Army?

AUSTIN: No, ma’am.

THE COURT: Ever seek any mental health counseling while you were in the 

Army?

AUSTIN: No, ma’am.

32 2RR14-15; CR at 32-33.

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material needed to execute [his] defense.”33 Austin later sent the trial court

another letter requesting “all the evidence the prosecutor had against” him.34 

He also asked the state trial court about obtaining proper clothing for trial, 

and stated that he would like Arnold removed as his advisor because Arnold 

did not answer Austin’s letters and because Austin “[did] not need him.”35 In 

another letter to the state trial court before trial, Austin noted that he was “out 

of seg now so [was] no longer suffering bouts of depression” and that he was

“still firm about [his] decision to not fight this case.”36 He also stated that he 

“decided that it is not necessary for [him] to review [his] case file . . . [s]ince [he 

was] not going to put up any type of defense.”37

Austin did not participate in jury selection.38 The trial court admonished 

prospective jurors during voir dire that if selected, each would be required to 

“render a verdict based on the law . . . not your personal opinion.”39 Under 

Texas law, juries on capital cases must decide two special issues in the 

sentencing phase: (1) “whether there is a probability that the defendant would 

commit criminal acts of violence that would constitute a continuing threat to 

society,” and if so, (2) “[w]hether, taking into consideration all of the 

evidence . . . there is a sufficient mitigating circumstance or circumstances to 

warrant that a sentence of life imprisonment without parole rather than a 

 

33 CR at 36 (affidavit sworn on Dec. 5, 2001).

34 CR at 60 (letter from Austin to the trial court dated Dec. 30, 2001).

35 CR at 60-61. A handwritten note on the letter, which appears to be mistakenly 

dated January 25, 2001 instead of January 25, 2002, suggests that Austin later stated at a 

hearing in open court that he would accept Arnold as standby counsel at trial.

36 CR at 58 (letter from Austin to the trial court dated Feb. 19, 2002). 

37 Id.

38 See generally vol. 3-8 of Reporter’s Records (voir dire beginning Mar. 18, 2002). 

39 3RR4.

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death sentence be imposed.”40 Each juror answered, under oath, that he or she 

could impartially decide whether Austin should be sentenced to life 

imprisonment or death.41 When empaneled, the jurors swore they would 

render a verdict according to the law and evidence.42

Austin pleaded guilty to capital murder.43 Before accepting Austin’s 

plea, the trial court questioned Austin about his understanding of the charges 

against him and the possible penalties.44 The court also probed whether 

Austin’s plea was voluntary.45 Austin stated he understood and was entering 

his plea voluntarily.46 The court accepted the plea.47 After the jury was sworn 

and admonished by the state trial court, the State presented the indictment 

and Austin entered his guilty plea before the jury.48 The punishment phase of 

the trial then proceeded.49

During the punishment phase, the State provided additional details 

regarding the offense, including that D.K was nine years old when he was 

killed.50 It also introduced the letter Sergeant Allen received from Austin in 

 

40 TEX. CODE CRIM. PROC. ANN. art. 37.071, § 2(b)(1), (e)(1) (West Supp. 2002).

41 E.g., 4RR18-19 (juror Erwin’s assurance that he could answer the special issues so 

as to produce a life or death sentence); 5RR4-5 (juror Condon’s assurance that he could 

answer the special issues so as to produce a life or death sentence); 5RR32, 44 (juror Gibbs’s 

assurance that he could answer the special issues so as to produce a life or death sentence, 

and would follow the law); 5RR48 (juror Tamayo’s assurance that he could answer the special 

issues so as to produce a life or death sentence); 5RR67-68 (juror Finnegan’s assurance that 

he could answer the special issues so as to produce a life or death sentence).

42 9RR7.

43 9RR4.

44 9RR4-7. 

45 9RR4-5.

46 Id.

47 9RR6. 

48 9RR7-15. 

49 9RR16.

50 9RR17.

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January 2001, in which Austin stated that he would confess to the murder of 

D.K. if guaranteed the death penalty and, if that was not guaranteed, he would 

kill a prison guard to ensure he received the death penalty.51 The tapes of 

Austin’s two interviews with Sergeant Allen—the first taking place 

immediately after Sergeant Allen received Austin’s letter in 2001 and the 

second occurring before Austin’s trial in 2002—were played to the jury.52 In 

the first interview, Sergeant Allen made clear that he could not promise or 

guarantee Austin anything in exchange for confessing to D.K.’s murder.53 

Austin then described how he committed the crime.54 When Sergeant Allen 

asked Austin why he decided to confess, Austin replied, “I’m tryin[g] to clean 

myself up . . . . You know and studying the Bible, I’m not saying I’m a 

Christian, I’m not saying I’m getting religious you know. . . . I need to clear all 

this up.”55

In the second interview a year later, Austin again admitted to killing 

D.K., described why and how he committed the crime, and stated he confessed 

“[b]ecause [he] did it.”56 When Sergeant Allen further inquired why Austin 

came forward in 2001, Austin answered, “Depression I guess.”57 Austin stated: 

I couldn’t stop dreaming about it, I couldn’t stop seeing pictures of 

it. So I just kept doing drugs[,] getting in trouble with doing drugs. 

I had to stay high every day or else I would have to think about it. 

And it really comes up mostly when I’m locked up in seg in solitary, 

you know. Cause in seg and solitary I can’t do no drugs[.] I just 

 

51 10RR25.

52 10RR28, 34-35.

53 Pet. Ex. 34 at 000005.

54 Id. at 000005-000016.

55 Id. at 000020.

56 ROA.840-45.

57 ROA.852 (typed transcript of Feb. 21, 2002 interview with Austin contained in the 

federal district court’s record on appeal).

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got tired, the drugs weren’t doing nothing really, they weren’t 

helping. . . . I had written the letter a really long time before[,] I 

think I was depressed when I wrote that letter for at least ten 

years. . . . It used to [not] bother me, anything I did, it never 

bothered me but ever since this thing happened to him I’d be 

watching TV and I’d be thinking and I would just start crying[,] 

stuff like that.58

Austin explained that he had “been going to counseling and psychiatrists since 

[he] was a kid,” that he “had behavioral problems,” “was always in trouble at 

school,” and “was emotionally disturbed.”59 He stated that he “just want[ed] 

to get this over with and close it up,” and that “[t]he only reason [he hadn’t] 

killed [himself] is because” he “actually believe[s] there is a hell.”60 He 

explained: “Put it this way[,] I’m not killing myself, I’m just not putting on a 

defense. I regret something I did, I’m gonna pay for it[,] I’m not gonna make 

no excuses for nothing.”61

Austin for the most part refrained from questioning witnesses and 

presenting evidence during the punishment phase.62 He did not testify.63 He 

briefly cross-examined an F.B.I. agent about Austin’s relationship with J.O., 

specifically asking whether J.O.’s mother informed the agent that Austin used 

to date her before dating J.O. and whether J.O.’s mother told the agent that 

J.O. looked old enough to drink in bars.64 Austin made a closing statement, 

 

58 Id.

59 ROA.853.

60 Id.

61 Id.

62 See generally Reporter’s Record vols. 9-11. 

63 10RR78.

64 9RR125-26.

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telling the jury he was violent, mean, and sometimes thought he had no 

conscience.65 He also stated: 

I’ve been like this all my life, and I doubt if I’ll change. What I 

wanted to say was they think I have a death wish. Well, that’s not 

true. One of the reasons why I went ahead and confessed [to killing 

D.K.] was it was bothering me, what I did. Regardless of what 

everybody thinks, it does. I’ve never killed anybody before. 

And, . . . I also knew that my acts of violence would not stop even 

though I was in prison.66

He referred to an incident in prison in which he had “come real close to killing 

a [prison] guard” and that “[t]he only reason” he did not was that someone else 

stopped him.67 He explained that “one of these days” there would not be 

someone to stop him, and he would “end up killing again.”68 Austin contested 

at closing the State’s contention that he was a pedophile, asserting that J.O. 

looked older than she was.69 He stated he was homosexual and described his 

sexual preferences.70 Austin concluded his closing, telling the jury:

On these special issues, there’s no doubt that you will answer yes 

to No. 1 because if you send me to prison, I will commit further acts 

of violence. . . . Jail is a violent place, especially for somebody like 

me. I’m a homosexual. So, yes, I will commit further acts of 

violence in prison. Special Issue No. 2, there was no mitigating 

circumstances that contributed to killing [D.K.]. And fear, anger 

or whatever can never be considered anywhere near a reason for 

killing. So I suspect, you know, y’all, by law, have to answer that 

number as no.71

 

65 11RR15.

66 11RR15-16.

67 11RR16.

68 Id.

69 11RR16-17, 19.

70 11RR18.

71 11RR19-20. 

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The jury answered Texas’s special issues such that the trial court imposed a 

death sentence.72

The state trial court held a second Faretta hearing in which Austin 

waived his right to both appellate counsel and state habeas counsel.73 The 

court noted it had previously determined before trial that Austin was 

competent and it appointed standby appellate counsel.74 Pursuant to Texas 

law, Austin’s case was automatically appealed to the Texas Court of Criminal 

Appeals (TCCA).75 Austin filed no brief. The TCCA affirmed his conviction, 

noting that Austin had chosen to represent himself at trial and on appeal and

that the “trial court [had] fully admonished [him] of the dangers and 

disadvantages of self-representation prior to trial and prior to this appeal.”76 

The TCCA stated it had, in the interests of justice, reviewed the entire record 

and found no unassigned fundamental error.77

Austin waived any pursuit of post-conviction relief and the trial court set 

Austin’s execution date.78 Six days before his scheduled execution, Austin 

moved to have state habeas counsel appointed.79 The trial court withdrew the 

execution date and appointed Dick Wheelan as habeas counsel on September 

24, 2003.80

 

72 11RR31; CR at 78-79. 

73 12RR3, 8; CR at 84-85.

74 CR at 86; ROA.22; ROA.595. 

75 See TEX. CODE CRIM. PROC. ANN. art. 37.071, § 2(h) (West Supp. 2002).

76 See Austin v. State, No. 74372, 2003 WL 1799020 (Tex. Crim. App. Apr. 2, 2003).

77 Id.; Ex Parte Austin, No. 870377, Findings of Fact, Conclusion/Recommendation and 

Order, at 2 (June 29, 2004).

78 ROA.23; ROA.595-96. 

79 ROA.596. 

80 Id.

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Texas Code of Criminal Procedure, art. 11.071, § 4(a) provides that an 

application for a writ of habeas corpus “must be filed in the convicting court 

not later than the 180th day after the date the convicting court appoints 

counsel . . . or not later than the 45th day after the date the state’s original 

brief is filed on direct appeal with the court of criminal appeals, whichever date 

is later.”81 Wheelan determined that March 22, 2004 was the filing deadline 

for Austin’s application for a writ of habeas corpus, counting 180 days from the 

date of his appointment.82 Pursuant to Texas Code of Criminal Procedure, art. 

11.071, § 4(b), Wheelan later requested a 90-day extension of time.83 The state 

trial court granted his request.84 On April 8, 2004, Wheelan filed with the 

TCCA a motion for leave to file a skeletal application for a writ of habeas corpus 

with leave to file an amended original petition by June 20, 2004.85 The TCCA 

issued an order dismissing Wheelan’s scheduling motion, holding that § 4(a)

“should be interpreted” such that “‘the date the convicting court appoints 

counsel’ . . . shall mean the day the applicant waived counsel and chose to 

represent himself on habeas” and “‘the date the state’s original brief is filed on 

direct appeal’ . . . shall mean the day the State waived its right to file a brief 

 

81 TEX. CODE CRIM. PROC. ANN. art. 11.071, § 4(a) (West 1999).

82 Pet.’s Mtn. to Extend Time, Ex Parte Austin, No. 870377-A at *1-2 (Mar. 15, 2004); 

ROA.596. 

83 ROA.596; TEX. CODE CRIM. PROC. ANN. art 11.071, § 4(b) (West 1999) (“The 

convicting court, before the filing date that is applicable to the applicant under Subsection 

(a), may for good cause shown and after notice and an opportunity to be heard by the attorney 

representing the state grant one 90-day extension that begins on the filing date applicable to 

the defendant under Subsection (a).”). 

84 Ex Parte Austin, No. 870377, Findings of Fact, Conclusion/Recommendation and 

Order, at 3 (June 29, 2004).

85 ROA.596. 

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on appeal.”86 The TCCA subsequently denied Austin’s motion for leave to file 

an untimely application for a writ of habeas corpus.87

Austin filed a federal habeas petition.88 The State moved to dismiss the 

petition contending that Austin’s claims were procedurally defaulted in light 

of the TCCA’s denial of his state petition as untimely.89 The district court 

denied the State’s motion.90 In its answer, the State argued Austin had 

insufficiently briefed a number of his claims.91 Austin then filed a first 

amended petition.92 The district court granted a stay to permit Austin to 

exhaust in state court new claims based on legislative changes to Texas’s death 

penalty scheme.93 After Austin exhausted those claims,94 he filed a second 

amended federal habeas petition.95 The State filed an answer.96 Austin then 

moved for funds for expert assistance in assessing his mental health and 

competency, which the district court authorized.97 Austin subsequently filed a 

 

86 Ex Parte Austin, No. 74372, slip op. at 3 (Tex. Crim. App. May 26, 2004) (not 

designated for publication).

87 Id. at 4.

88 ROA.20 (Austin’s state habeas petition and his federal habeas petition are the same, 

according to the parties and the district court).

89 ROA.155, 597-98; Ex Parte Austin, No. 59527-01, slip op. at 2 (Tex. Crim. App. July 

6, 2004) (per curiam) (not designated for publication). 

90 ROA.598.

91 Id.

92 Id.

93 ROA.1390; ROA.1465.

94 Ex Parte Austin, No. 59527-02 (Tex. Crim. App. Apr. 5, 2006) (per curiam) (not 

designated for publication).

95 ROA.5 (district court docket entry #38, not included in record on appeal but on file). 

This court denied a COA on Austin’s Eight Amendment claims added in this second amended 

petition. The second amended petition is otherwise the same as the first amended petition.

96 ROA.1687.

97 ROA.1838; ROA.3488 (sealed).

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response to the State’s answer and a motion for an evidentiary hearing, 

supported by affidavits from mental health experts.98

In his petition, Austin outlined his history of mental illness, including 

suicide attempts in 1975 and 1979, as evidence that he was incompetent to 

stand trial, plead guilty, and waive counsel.99 We recount the evidence 

pertinent to Austin’s claims. After his suicide attempt in 1975, he was 

hospitalized and diagnosed with adolescent adjustment reaction in a mixed 

personality.100 Austin subsequently joined the army but was discharged in 

1977 for “failure to adapt socially and emotionally.”101 Following the

aggravated rape of his sister and attempted aggravated rape of another of his 

sisters, as well as the aggravated robbery of a third sister and his mother in 

1978,102 Austin was evaluated by a psychologist, Dr. Franklin Lewis, before

the trial occurred on those charges.103 Dr. Lewis diagnosed Austin with severe 

personality disturbance with schizoid thinking and anti-social features as well 

as latent borderline schizophrenia.104 He concluded that Austin was, at the 

time, suffering from a mental illness.105 Austin pleaded not guilty due to 

insanity.106 At trial, Dr. Lewis testified that there were indications that Austin 

had brain dysfunction or brain damage, although further testing would be 

required to make a determination.107 Austin again attempted suicide in 1979

 

98 ROA.1930; ROA.2126.

99 See Second Amended Pet. at 13; ROA.607; ROA.610.

100 Second Amended Pet. at 14; ROA.607 (same assertion in first amended petition).

101 Second Amended Pet. at 15.

102 Pet. Ex. 3 at 005306, 005333; Pet. Ex. 5 at 001682.

103 Pet. Ex. 28 at 002842-000043.

104 Second Amended Pet. at 17; Pet. Ex. 28 at 002843.

105 Second Amended Pet. at 17; Pet. Ex. 28 at 002843; Pet. Ex. 17 at 003675 (testifying 

at trial that Austin was “experiencing a mental illness” at the time of the assault).

106 Pet. Ex. 5 at 001699; Pet. Ex. 28 at 002831.

107 Second Amended Pet. at 17; Pet. Ex. 17 at 003674.

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while awaiting trial.108 After he was convicted, he wrote to the trial judge 

requesting that he be placed at a state hospital to “get help for [his] problem,”

rather than sent to the Texas Department of Corrections (TDC).109 Although 

the trial judge forwarded Austin’s letter to the Diagnostic Unit of the TDC,110

Austin remained with the TDC for the duration of his sentence.111 A number 

of physical and psychological evaluations of Austin were conducted during this 

time period.112 There is some evidence that Austin did not wish to receive 

mental health counseling and was not cooperative while in the TDC or the 

Harris County Sheriff’s Office.113

 

108 Second Amended Pet. at 17; Pet. Ex. 28 at 002831.

109 Second Amended Pet. at 17-18; Pet. Ex. 5 at 001699-001701 (“I [] did not [plead 

insanity] just to get out of going to T.D.C. I did it because I want help and I need help. . . . I 

know there[’]s something wrong with me and I don’t think prison[’]s going to go help me any. 

I want to go to Rusk to get help for my problem. . . . All I’m asking is that you send me to 

Rusk until the doctors solve me of my problem then go ahead and send me to T.D.C. for life 

if you want to.”).

110 Pet. Ex. 5 at 001697.

111 Second Amended Pet. at 18.

112 E.g., Pet. Ex. 28 at 002803 (TDC clinic notes 11/7/83; noting “probable nervous 

condition”), 002827 (mental health services notes 1/26/84; “has a history of antisocial 

behavior, substance abuse and sexual sadism coupled with self-mutilation”), 002825 (TDC 

clinic notes 5/6/86; referring him to psychiatric personnel), 002824 (clinic notes 2/3/88; 

“patient had good eye contract, oriented to time, person, and place and communicated 

effectively”); 002822 (clinic notes 12/18/89; “will refer to unit psychologist due to past . . . had 

not been seen since 8/10/88, had past suicide attempts”).

113 Pet. Ex. 15 at 004059 (Harris County Sheriff’s Office Medical Services Division 

notes, 4/8/02; “Consumer states that he does not plan to seek counseling in TDC because only 

group therapy is offered and he does not want to discuss his problems in a group. He states 

that he feels that individual counseling has helped him.”); 004071 (Pre-trial/screening intake 

notes, 2/25/02; explaining that although Austin met with a psychologist in the Wynne Unit 

in 1979 he “just saw [the psychologist] a couple of times but wouldn’t cooperate;” also noted 

Austin would not cooperate with counseling in 1976); 004083 (Harris County Sheriff’s Office 

Medical Services Division notes 1/24/02; Austin “strongly expressed that he did not want any 

services from MHMRA”); 004085 (Harris County Sheriff’s Office Medical Services Division 

notes 10/18/01; Austin “states that he has no interest in obtaining psychiatric assistance”); 

004094-99 (uncooperative); see also Docket Entry #47, Letter from Austin to the Fifth Circuit, 

received Sept. 17, 2014 (“I chose to abstain from medication and counseling . . . .”).

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Austin also asserted that the conditions of his confinement in the Texas 

prison system were “psychologically aversive”114 and that he received no 

effective mental health treatment while incarcerated.115 After Austin returned 

to the TDC to serve a thirty-year sentence for sexual assault of a child in 

1992,116 he stabbed another prisoner117 and was placed in administrative 

segregation from 1995 until 1998. He asserts that the conditions of his 

confinement during this period, which he alleges included “unlawful violence 

by staff, sub-standard physical conditions and food, unlawful denial of exercise 

and educational materials, and prolonged periods of isolation,” caused his 

mental health to deteriorate further.118 Upon release from administrative 

segregation, Austin was placed in a “safekeeping” unit because he identified as 

a homosexual.119 Austin contends that the conditions of safekeeping also 

negatively affected his mental health.120 In 2001, he was again placed in 

administrative segregation after assaulting a prison guard.121 A week later, 

Austin sent the letter to Sergeant Allen confessing to D.K.’s murder.122 He 

contends that when he confessed, he was “[u]nder the influence of his mental 

illness and the severely depressive effects of his conditions of confinement.”123

In support of his contentions in the federal habeas proceeding before the 

district court, Austin attached to his habeas petition the 2004 reports of a 

 

114 Austin Br. at 10.

115 ROA.612-13.

116 14RR110.

117 14RR113 (judgment and sentence of additional twenty years on plea of guilty for 

aggravated assault with a deadly weapon).

118 Austin Br. at 11; accord Second Amended Pet. at 28.

119 Second Amended Pet. at 31; Pet. Ex. 36 at 001487.

120 Second Amended Pet. at 31-32.

121 Id. at 32; Pet. Ex. 26 at 003259 (offense report).

122 14RR24.

123 Second Amended Pet. at 32.

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neuropsychologist, Dr. McGarrahan,124 and a neuropsychiatrist, Dr. Woods,

both retained as part of his post-conviction investigation. He also submitted, 

in his motion for an evidentiary hearing, affidavits prepared by Dr. 

McGarrahan and Dr. Woods in 2012.125 In her 2004 report, prepared after 

reviewing Austin’s records and meeting with him, Dr. McGarrahan noted that 

Austin “endorsed continual suicidal ideation with a plan to cut his wrists with 

a razor blade” but “ha[d] no intent at [the] time because he ha[d] ‘something to 

live for.’”126 She opined that Austin’s “overall pattern of cognitive performance 

suggests dysfunction of pre-frontal systems.”127 Dr. McGarrahan described 

Austin’s thought processes as “goal-directed,” but noticed “he evidenced brief 

delays in responding to questions and he occasionally lost his train of 

thought.”128 She noted that Austin “denied experiencing any auditory 

hallucinations and there was no indication of a fixed delusional system.”129 In 

Dr. McGarrahan’s opinion, “[p]sychological testing revealed significant 

depression, history of problems with drugs, suicidality, history of physical 

aggression, antisocial behaviors, anxiety related to a traumatic event, identity 

problems and potential for self-harm.”130 She diagnosed Austin with a major 

depressive disorder, a cognitive disorder not otherwise specified, a 

polysubstance disorder, an anxiety disorder, and a personality disorder.131

 

124 Dr. McGarrahan used her maiden name, Cicerello, in 2004.

125 Austin Br. at 26; ROA.2145-56; ROA.2161-80.

126 Pet. Ex. 93 at 007775.

127 Id. at 007778.

128 Id. at 007775.

129 Id.

130 Id. at 007778.

131 Id.at 007779.

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In his 2004 affidavit, Dr. Woods described Austin’s suicidal ideation and 

suicidal behaviors and concluded that Austin’s desire to not have a trial and to 

plead guilty were evidence he was not acting rationally.132 Dr. Woods 

explained that “Austin certainly understood the factual issues of his trial,”

“[h]e knew what he was being charged with,” and he “understood the potential 

consequences of his false confession.”133 In Dr. Woods’ opinion, Austin “was 

capable of managing impressions and sought to minimize the appearance of 

any mental illness to ensure that his planned death could proceed.”134 

Nonetheless, Dr. Woods concluded:

[Austin was not able to rationally assist in the preparation of his 

defense] given his steadfast desire to die by the hands of the state. 

This suicidal ideation, based upon his mental disease and 

reinforced by his cognitively derived inability to effectively weigh 

and deliberate decisions at the time of their presentation rendered 

Mr. Austin incompetent to rationally weigh and deliberate his 

legal decisions.135

Dr. Woods also concurred in Dr. McGarrahan’s diagnosis that Austin suffered 

from frontal lobe dysfunction.136 In Dr. Woods’ opinion, Austin’s “pre-existing 

and serious mental illness” was the “operating cause in his decision to kill 

himself.”137

Austin also attached to his habeas petition an affidavit from Dr. Brown 

prepared in 2007 after Dr. Brown had reviewed Dr. McGarrahan’s 2004 

 

132 Pet. Ex. 95 at 8-9.

133 Id. at 11.

134 Id.

135 Id.

136 Id. at 15.

137 Id. at 16.

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report.138 Dr. Brown noted that information “relevant and significant” to his 

2001 competency evaluation of Austin was withheld by Austin “which might 

have provided information critical to the determination of his competency to 

stand trial.”139 Dr. Brown concluded that it was “possible” that Austin’s 

judgment was “significantly impaired by his mental difficulties” such that Dr. 

Brown’s determination as to competency was incorrect in 2001.140 The State 

included in its answer to Austin’s habeas petition another affidavit from Dr. 

Brown obtained in 2008.141 In that affidavit, Dr. Brown explained that, at the 

time of his 2007 affidavit, Austin had not provided him with the medical 

information previously withheld.142 Having reviewed the information not 

available at the time of his original evaluation of Austin in 2001, Dr. Brown 

concluded “there [was] nothing . . . that would justify changing my opinion, 

that would indicate that Mr. Austin’s opportunity for a fair and impartial 

evaluation had been compromised because of what he withheld, or that 

additional evaluation, including more psychological testing or psychiatric 

interviewing, would have made any difference.”143

Dr. Woods and Dr. McGarrahan also submitted affidavits prepared in 

2012. Dr. McGarrahan concluded that Austin “has a chronic issue with 

suicidal depression and that his suicidal depression appears to have been 

present at the time of his trial and competency evaluation . . . and likely 

impaired his ability to reason and make sound judgments.”144 Dr. Woods 

 

138 Pet. Ex. 96.

139 Id.

140 Id.

141 ROA.1710; ROA.1806-08.

142 ROA.1806.

143 ROA.1806-07.

144 ROA.2150.

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opined that Austin’s jail records demonstrated he “was suffering from 

depression, suicidality, frequent crying spells, nightmares, racing thoughts, 

confusion, reduced sleep, irritability, and poor concentration.”145 Dr. Woods 

concluded that “Austin’s decision to pursue the death penalty was a direct 

result of contemporaneous depression and active suicidality” and that the 

decisions he made throughout trial and on appeal were thus irrational and 

involuntary.146

The district court granted summary judgment to the State and denied 

Austin’s request for an evidentiary hearing.147 Although the district court held 

that the TCCA applied a new rule that could not be the basis of a procedural 

default, it concluded that Austin’s claims were nevertheless foreclosed and 

denied a COA.148

While Austin’s application for a COA was pending, Austin wrote a letter 

to this court indicating he desired to withdraw his appeal. He stated:

I wish to drop my appeals but can’t seem to get any type of response 

nor cooperation. I have informed my attorney of my wishes and 

according to him, to drop my appeals m[a]y actually prolong the 

date of my execution because the courts would then request a 

competency hearing. If there is any way I could waive the 

compentency [sic] hearing I would gladly do it. I was given a 

competency hearing just before my trial, and another just after, 

but before my direct appeals by the trial court. I was found 

competent in both of those instances and see no reason for another 

one.

 

145 ROA.2174.

146 ROA.2177.

147 Austin v. Thaler, 2012 WL 12537415 at *15 (S.D. Tex. Aug. 21, 2012); ROA.2767 

(granting summary judgment and denying relief); ROA.2747 (denying motion for evidentiary 

hearing).

148 Austin v. Thaler, 2012 WL 12537415 at *6, *15 (S.D. Tex. Aug. 21, 2012).

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I have just recently completed the beginners[’] course of the 

Blackstone Paralegal Institute with a[n] overall score of 99.51%.

This is hardly a sign of incompetence. My TDCJ IQ score was 123 

and my TDCJ EA Score was 12.9. Again, this is hardly a sign of 

incompetence. I do have a history of mental health issues, but 

nothing that can't be treated satisfactorily with medication and 

counseling. I chose to abstain from medication and counseling 

though and so see no reason why my mental health should keep 

me from dropping my appeals. Also, I recently read a court case in 

which your court ruled that a person could be mentally ill, but still 

be competent to be executed because that person was competent 

during their trial. In that case, that should also be the case in my 

case/appeals.149

We requested that the State and Austin’s counsel respond to Austin’s request 

to withdraw his appeals. Austin’s counsel stated that Austin continues to 

suffer from serious mental illness and that nothing in Austin’s letter 

“cause[d] . . . counsel to [abandon] the legal and factual propositions” advanced

in the habeas petition and the COA.150 Austin’s counsel subsequently filed a 

motion for expedited consideration of the COA.151 We noted that this motion 

conflicted with Austin’s request to withdraw and we remanded to the district 

court “for the limited purpose of making findings as to whether Austin [was] 

presently competent to waive further appeals of his conviction and death 

sentence, and if Austin [was] found to be competent, whether such waiver is 

knowing and voluntary.”152 We subsequently received a letter from Austin, 

 

149 Docket Entry # 47 (letter from Austin to the Fifth Circuit received Sept. 17, 2014).

150 Docket Entry # 53 (filed Oct. 9, 2014).

151 Docket Entry # 62 (filed Nov. 14, 2014).

152 Austin v. Stephens, 596 F. App’x 277, 278 (5th Cir. 2015) (per curiam).

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written prior to the remand, stating that he wished us to either deny his 

request for a COA or grant his motion to withdraw his appeal.153

Before the district court held a competency hearing in accordance with 

the remand, Austin moved to withdraw his pro se request to withdraw his 

appeal.154 In May 2015, Austin filed a pro se letter with this court again stating 

he did not feel another competency evaluation was necessary and renewing his 

request for an expedited review and denial of his appeals.155 Austin explained: 

“We all know that I am guilty and that all the previous psychological 

evaluations I received that found me to be mentally unstable was in error 

because of my deception.”156 Austin stated he had taken psychology classes 

and was knowledgeable about manipulating others.157 Shortly thereafter, 

Austin sent this court another letter stating that he no longer wished to have 

legal representation, that a competency hearing was not necessary because he 

had already had two, and that he would not answer questions in the event a 

competency evaluation was ordered.158 In July 2015, Austin wrote to the court 

reiterating his request that the court deny his COA.159 He requested that he 

be permitted to proceed pro se.160 He again stated he would not answer 

questions in any court-ordered competency evaluation and that “[a] Faretta 

hearing [was] also not necessary as [he had] already had two of them, once 

 

153 Docket Entry # 73 (letter from Austin to the Fifth Circuit written January 6, 2015 

and received January 12, 2015).

154 Docket Entry # 75 (motion from Austin’s counsel and letter from Austin).

155 Docket Entry # 82 (letter from Austin to the Fifth Circuit dated May 10, 2015).

156 Id.

157 Id.

158 Docket Entry # 84 (letter from Austin to the Fifth Circuit dated May 20, 2015).

159 Docket Entry # 91 (letter from Austin to the Fifth Circuit dated July 26, 2015).

160 Id.

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when [he] chose to represent [himself] during [his] trial and again when [he]

chose to represent [himself] during [his] direct appeal.”161 Austin explained:

If any are wondering what my motives are for all of this, it’s quite 

simple. I wish to be executed. Either that, or give me Life Without 

Parole. One or the other. . . . I do not want out of prison. I am 

probably one of the very few guys in prison who readily admit that 

I belong in prison. . . . When I was first bench warranted back to 

the county jail in 2001 I was asked what was it I wanted. I asked 

if I could be guaranteed a Life sentence without ever being brought 

up for parole. When I was told that couldn’t be guaranteed, I chose 

death. If you looked at the trial transcript and everything else you 

can see that at no point did I contest the state. I only picked up 

my appeals because in a moment of weakness I allowed a woman 

to convince me to pick them up. That woman is no longer a factor 

in my life.162

In November, 2015, Austin sent another letter to this court requesting 

denial of his appeal.163 He restated that he had taken psychology classes, was 

“good [at] manipulation,” and had deceived mental health experts 

previously.164 This court subsequently granted in part and denied in part 

Austin’s COA.165 In November 2016, Austin again wrote to the court 

requesting a denial of his appeal.166 In reference to the claims raised 

concerning his mental health issues, Austin stated he “[could] guarantee this 

court that I am now, and always have been fully competent.”167 He again 

suggested he had previously deceived mental health experts and manipulated 

 

161 Id.

162 Id.

163 Docket Entry # 97 (letter from Austin to the Fifth Circuit filed Nov. 20, 2015).

164 Id.

165 Austin v. Davis, 647 F. App’x 477 (5th Cir. 2016) (per curiam).

166 Docket Entry # 145 (letter from Austin to the Fifth Circuit dated Nov. 27, 2016).

167 Id.

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a polygraph test.168 He also explained that he had refused visits from his 

attorney because the visits often required him to miss meals.169 In this letter, 

he stated he would cooperate with a mental health evaluation but only if it was 

conducted at the prison because he did not want to be bench warranted back 

to the county.170

II

“In a federal habeas corpus appeal, we review the district court’s findings 

of fact for clear error and its conclusions of law de novo.”171 Our review of this

federal habeas petition is governed by the applicable provisions of the AntiTerrorism and Effective Death Penalty Act of 1996 (AEDPA).172 Under 

AEDPA, if a claim was adjudicated on the merits by a state court, § 2254(d)

provides that a federal court cannot issue a writ of habeas corpus unless the 

state court’s decision was “contrary to, or involved an unreasonable application 

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

United States,” or “was based on an unreasonable determination of the facts 

in light of the evidence presented in the State court proceeding.”173 Under 

§ 2254(e)(1), “a determination of a factual issue made by a State court shall be 

presumed to be correct” and “[t]he applicant shall have the burden of rebutting 

the presumption of correctness by clear and convincing evidence.”174

 

168 Id.

169 Id.

170 Id.

171 Graves v. Dretke, 442 F.3d 334, 339 (5th Cir. 2006) (citing Valdez v. Cockrell, 274 

F.3d 941, 946 (5th Cir. 2001)).

172 28 U.S.C. § 2254.

173 28 U.S.C. § 2254(d).

174 28 U.S.C. § 2254(e)(1).

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Austin did not file a brief on direct appeal; no federal claims challenging 

his conviction were presented to the TCCA in its automatic review of his 

conviction and sentence. The federal claims presented in his state habeas 

petition were rejected by the TCCA on procedural grounds. Accordingly, there 

has been no adjudication on the merits of Austin’s habeas claims to which this 

court can apply § 2254(d) deference.175 We consider the standard of review 

applicable to each of Austin’s claims in our analysis of them.

III

We first address whether Austin’s claims are procedurally defaulted. 

The TCCA held that Austin’s application for habeas relief was untimely under 

Texas Code of Criminal Procedure, art. 11.071, § 4(a), which sets the filing 

deadlines for Texas state habeas petitions.176 The TCCA reasoned that § 4(a) 

should be interpreted to require filing no later than 180 days after Austin 

waived habeas counsel or 45 days after the State waived its right to file a brief 

on appeal.177 The district court concluded that the procedural rule had not 

been clearly announced nor regularly followed because the TCCA had never 

before interpreted the statute in such a way.178 Accordingly, it determined that 

the rule could not be the basis for a procedural default.179 We agree. We also 

 

175 Cf. Gonzalez v. Crosby, 545 U.S. 524, 530 (2005) (relying on § 2254(d) to define 

“claim” for purposes of § 2244(b) and stating that both statutes together “make clear that a 

‘claim’ as used in § 2244(b) is an asserted federal basis for relief from a state court’s judgment 

of conviction”); Lambert v. Blodgett, 393 F.3d 943, 969 (9th Cir. 2004) (“[W]e hold that a state 

has ‘adjudicated’ a petitioner’s constitutional claim ‘on the merits’ for the purposes of 

§ 2254(d) when it has decided the petitioner’s right to post conviction relief on the basis of 

the substance of the constitutional claim advanced . . . .”).

176 See Ex Parte Austin, No. 74372, slip op. at 2-4 (Tex. Crim. App. May 26, 2004) (not 

designated for publication). 

177 Id.

178 ROA.2777.

179 Id.

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note that the State has affirmatively set forth in its brief in this court that it 

does not challenge the district court’s ruling that the state procedural ground 

was inadequate.180

IV

Austin contends that he was not competent to waive his right to counsel, 

stand trial, or plead guilty (Issue 10) and that the state trial court’s 

determination as to competency was not entitled a presumption of correctness

under 28 U.S.C. § 2254(e)(1) (Issues 2, 3 and 4).181 He also argues that the 

state trial court’s procedures were not adequate to ensure he was competent

(Issues 6, 7, 8, 9).182 Austin presents evidence of his mental health history

which he contends demonstrates his incompetence.183 In a closely related 

claim, Austin asserts that his waiver of counsel and guilty plea were not 

knowing and voluntary because of his mental illness and the coercive 

conditions of his confinement (Issues 16, 17).184 He also argues that the district 

court improperly deferred to the state trial court’s determinations that Austin’s 

guilty plea and waiver of counsel were knowingly and voluntarily made (Issue 

2 and 15).185

 

180 State Br. at 16 n.3.

181 See Austin Br. at 77, 47, 49. Issue 3 relates to Austin’s assertion that the federal 

district court erred in crediting and relying upon evidence offered by the State in its summary 

judgment motion. As we noted in our partial grant of a COA, these arguments relate to the 

federal district court’s procedure, are not separate grounds for relief, and are arguments we 

consider in connection with Austin’s substantive claims.

182 See Austin Br. at 54, 57.

183 ROA.2145-56; ROA.2161-80.

184 See Austin Br. at 102.

185 See Austin Br. at 47, 93.

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A

“[T]he Constitution does not permit trial of an individual who lacks 

‘mental competency.’”186 A defendant is competent to stand trial if he has 

“sufficient present ability to consult with his lawyer with a reasonable degree 

of rational understanding [and if] he has a rational as well as factual 

understanding of the proceedings against him.”187 The Supreme Court 

concluded in Maggio v. Fulford that competency to stand trial is a question of 

fact.188 In Felde v. Blackburn, this circuit relied on Fulford in determining that 

a state court’s finding of competence to stand trial is a finding of fact.189 We 

have reiterated that holding in a number of cases.190 In Washington v. Johnson

 

186 Indiana v. Edwards, 554 U.S. 164, 170 (2008); see also Drope v. Missouri, 420 U.S. 

162, 171 (1975) (“It has long been accepted that a person whose mental condition is such that 

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 may not be subjected to a trial.”).

187 Dusky v. United States, 362 U.S. 402, 402 (1960) (per curiam); see also Godinez v. 

Moran, 509 U.S. 389, 396 (1993).

188 Maggio v. Fulford, 462 U.S. 111, 117 (1983) (per curiam); see also Thompson v. 

Keohane, 516 U.S. 99, 113 (1995) (noting the “practical considerations that have prompted 

the Court” to consider competency a “factual issue,” namely that the trial court has a 

“superior capacity to resolve credibility issues”); Demosthenes v. Baal, 495 U.S. 731, 735 

(1990) (per curiam) (considering the state court’s conclusion regarding the defendant’s 

competence to be a factual finding); Miller v. Fenton, 474 U.S. 104, 114 (1985) (noting that 

the distinction between questions of fact and questions of law often turns upon which “judicial 

actor is better positioned than another to decide the issue in question;” if “the issue involves 

the credibility of witnesses and therefore turns largely on an evaluation of demeanor, there 

are compelling and familiar justifications for leaving the process of applying law to fact to 

the trial court and according its determinations presumptive weight.”).

189 Felde v. Blackburn, 795 F.2d 400, 402 (5th Cir. 1986) (“The state court’s finding of 

mental competence to stand trial . . . is a finding of fact entitled to a presumption of 

correctness . . . .”) (citing Fulford, 462 U.S. at 116-17).

190 Miller-El v. Johnson, 261 F.3d 445, 454 (5th Cir. 2001) (“A state court’s competency 

determination is a finding of fact entitled to a presumption of correctness under 

§ 2254(d)(2).”), rev’d on other grounds, 537 U.S. 322 (2003); Carter v. Johnson, 131 F.3d 452, 

460 (5th Cir. 1997) (treating the question of competency as a factual determination); Flugence 

v. Butler, 848 F.2d 77, 79 (5th Cir. 1988) (“A medical inquiry into competency is a fact-finding 

exercise, and the factual finding of competence is presumed to be correct.”).

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and Bouchillon v. Collins—two decisions issued after Felde— we treated the 

question of competency as a mixed question of law and fact.191 This circuit’s 

rule of orderliness, however, provides that “one panel of our court may not 

overturn another panel’s decision, absent an intervening change in the law.”192 

Because we are bound by this circuit’s rule of orderliness, and the earlier panel 

decision controls,193 we adhere to Felde and to Fulford and consider

competency a question of fact.194

Section 2254(e) limits our review of state-court fact findings,195 even if 

no claims were presented on direct appeal or state habeas.196 Under 

§ 2254(e)(1), “a determination of a factual issue made by a State court shall be 

 

191 Washington v. Johnson, 90 F.3d 945, 951 (5th Cir. 1996) (“The question of 

competency is treated in our circuit as a mixed question of law and fact.”); Bouchillon v. 

Collins, 907 F.2d 589, 593 n.11 (5th Cir. 1990) (“[T]he determination of competency is not 

solely a ‘factual issue,’ but rather is a mixed question of fact and law.”).

192 Mercado v. Lynch, 823 F.3d 276, 279 (5th Cir. 2016) (per curiam) (quoting Jacobs 

v. Nat’l Drug Intelligence Ctr., 548 F.3d 375, 378 (5th Cir. 2008)).

193 Camacho v. Tex. Workforce Comm’n, 445 F.3d 407, 410 (5th Cir. 2006).

194 Cf. United States v. Saingerard, 621 F.3d 1341, 1343 (11th Cir. 2010) (per curiam) 

(recognizing, on appeal of conviction in federal court, that competency to stand trial is a 

factual determination); United States v. Mackovich, 209 F.3d 1227, 1232 (10th Cir. 2000) 

(same); Vogt v. United States, 88 F.3d 587, 591 (8th Cir. 1996) (same); United States v. Winn, 

577 F.2d 86, 92 (9th Cir. 1978) (same).

195 Virgil v. Dretke, 446 F.3d 598, 610 n.52 (5th Cir. 2006) (applying § 2254(e)(1) to a 

state trial court’s implicit factual finding).

196 Appel v. Horn, 250 F.3d 203, 210 (3d Cir. 2001) (concluding that even when 

§ 2254(d) does not apply, § 2254(e) still applies such that a state court’s factual 

determinations are presumed correct); see Sharpe v. Bell, 593 F.3d 372, 379 (4th Cir. 2010) 

(“The deference Section 2254(e)(1) requires has particular salience when a state court’s 

determinations closely track the legal issues before the federal habeas court. Where a state 

court looks at the same body of relevant evidence and applies essentially the same legal 

standard to that evidence that the federal court does . . . , Section 2254(e)(1) requires that 

the state court’s findings of fact not be casually cast aside.”); see also Loden v. McCarty, 778 

F.3d 484, 494 (5th Cir. 2015) (noting that § 2254(e) “constrains the discretion of district courts 

to grant evidentiary hearings,” even “[w]here section 2254(d) does not apply”); Blue v. Thaler, 

665 F.3d 647, 654 (5th Cir. 2011) (Section 2254(e)(1) “pertains only to a state court’s 

determinations of particular factual issues, while § 2254(d)(2) pertains to the state court’s 

decision as a whole”) (citing Miller-El v. Cockrell, 537 U.S. 322, 341-42 (2003)).

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presumed to be correct” and the habeas petitioner bears “the burden of 

rebutting the presumption of correctness by clear and convincing evidence.”197 

To the extent Austin’s claims challenge factual determinations made by the

state trial court, we apply § 2254(e)(1). To the extent Austin’s claims present 

questions of law and mixed questions of law and fact, such that § 2254(e) does 

not apply, we review de novo.198 Because competency is a question of fact, we 

afford the state trial court the deference due under § 2254(e)(1).199 Under 

§ 2254(e)(1), the state trial court’s determination that Austin was competent 

to stand trial, waive counsel, and plead guilty is presumed correct. Austin 

bears the burden of rebutting that presumption of correctness by clear and 

convincing evidence.200 Out of an abundance of caution, however, we will also 

consider, in the alternative, whether Austin is entitled to habeas relief if 

Austin’s competency claims are subject to review as a mixed question of law 

and fact.

The trial court conducted a pretrial hearing following an expert’s 

evaluation of Austin’s competence to consider Austin’s motion to proceed pro 

se. Although the primary purpose of the hearing was to determine Austin’s 

ability to represent himself,201 the trial court addressed the question of 

Austin’s competency to stand trial and waive counsel in making that 

determination.202 The transcript of the hearing also reflects that the state trial 

 

197 28 U.S.C. § 2254(e)(1).

198 See Henderson v. Cockrell, 333 F.3d 592, 597-98 (5th Cir. 2003).

199 See Appel v. Horn, 250 F.3d 203, 210 (3d Cir. 2001).

200 28 U.S.C. § 2254(e)(1).

201 2RR4.

202 See Godinez v. Moran, 509 U.S. 389, 400 (1993) (holding that waiver of the right to 

counsel must be made competently, knowingly and voluntarily to be constitutionally 

effective).

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court was evaluating whether Austin was competent to stand trial.203 In 

finding Austin competent to stand trial and to waive trial counsel, the state 

trial court relied on its own interactions with Austin, his written letters to the 

court, his demeanor in court proceedings, and his responses to the trial court’s 

questions.204 The trial court also relied on the professional opinion of Dr. 

Brown, who conducted a competency evaluation of Austin prior to the first 

Faretta hearing.205 Finally, the trial court relied on the opinion of Austin’s 

counsel as to Austin’s competency.206 We conclude that the state court’s 

competency determination is well supported by the record.

Although Austin presents evidence of mental illness in his federal 

habeas petition, he has not demonstrated by clear and convincing evidence that 

he was not competent to stand trial, waive counsel, or plead guilty. He 

contends that the evidence presented in his habeas petition—including records 

of two suicide attempts over twenty years before his capital murder trial as 

well as expert reports highlighting his suicidality and depression—

demonstrates he was not competent before, during, or after trial. A history of 

suicidality and depression, however, does not render a defendant 

 

203 See 2RR3-6 (referencing and relying upon Dr. Brown’s report, prepared to 

determine if Austin was competent to stand trial, asking Austin’s counsel whether he 

considered Austin to be competent, and asking Austin a series of questions about his mental 

health history); see also 12RR3 (the state trial court noting at a later Faretta hearing that it 

had previously conducted a hearing and found Austin “was competent to represent himself 

and was making that decision freely and voluntarily with full knowledge of the potential 

consequences”).

204 2RR5-14.

205 2RR4 (“[T]he Court appreciates the fact that the evaluation has been done. It is 

probative information for the Court on making a determination on his ability to represent 

himself.”).

206 Id. (Austin’s counsel confirming his personal determination that Austin was 

competent and stating that “it has been [his] opinion from the first time [he] met him but out 

of an abundance of caution I requested the psychiatric evaluation”).

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incompetent.207 Austin clearly demonstrated an understanding of the charges 

against him and the possible consequences, as well as an ability to make 

strategic choices and to communicate clearly to the state trial court. As 

Austin’s own expert explained, “Austin certainly understood the factual issues 

of his trial” and “[h]e knew what he was being charged with.”208 The evidence 

Austin presents is insufficient to overcome the indicators of competence noted 

and relied upon by the state trial court.

Austin argues that his decision to waive counsel and plead guilty to 

capital murder demonstrates incompetency. The fact that a particular 

defendant “caus[es] his trial to be conducted in a manner most likely to result 

in a conviction and the imposition of the death penalty,” however, is not 

sufficient for a finding of incompetency.209 This circuit has recognized that a 

defendant’s deliberate use of the system to obtain the death penalty is evidence 

of rationality, not incompetence.210 Again, we presume the state trial court’s 

 

207 See Mata v. Johnson, 210 F.3d 324, 330 (5th Cir. 2000) (noting a suicide attempt 

must be weighed with other evidence relating to a defendant’s competence); see also Drope v. 

Missouri, 420 U.S. 162, 181 n.16 (1975) (recognizing that “a suicide attempt need not always 

signal ‘an inability to perceive reality accurately, to reason logically and to make plans and 

carry them out in an organized fashion’” (quoting David F. Greenberg, Involuntary 

Psychiatric Commitments to Prevent Suicide, 49 N.Y.U. L. REV. 227, 236 (1974))).

208 Pet. Ex. 95 at 11.

209 Roberts v. Dretke, 381 F.3d 491, 498 (5th Cir. 2004); Autry v. McKaskle, 727 F.2d 

358, 362 (5th Cir. 1984) (per curiam) (recognizing that refusing to “plead for mercy” in a 

capital murder case does not necessarily mean that a defendant is incompetent or acting 

irrationally); see also Taylor v. Horn, 504 F.3d 416, 435 (3d Cir. 2007) (“Taylor’s desire to 

confess and receive the death penalty as punishment, and refusal to allow witnesses during 

the penalty phase, are not indications that he was incompetent. These actions are consistent 

with Taylor’s repeatedly expressed desire to plead guilty and accept the consequences.”).

210 See Roberts v. Dretke, 381 F.3d 491, 494, 498 (5th Cir. 2004) (concluding that the 

defendant’s instruction to trial counsel to “steer the trial towards imposition of the death 

penalty” was not irrational nor evidence of incompetency, but instead suggested that the 

defendant was “quite capable of conversing with his trial counsel regarding trial strategy, 

and was not only able to participate in his defense but was also able to direct it”).

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determination regarding Austin’s competency is correct; Austin has not

overcome that presumption by clear and convincing evidence.211

Even if, in the alternative, we were to consider this claim a mixed 

question of law and fact, such that § 2254(e)(1)’s presumption of correctness 

does not apply to the competency determination and our review is instead de 

novo, Austin has failed to demonstrate that he is entitled to habeas relief. His 

prior mental health issues as well as his strategy before, during, and after trial 

are simply insufficient to support a determination that Austin was 

incompetent.

B

Austin asserts a number of procedural due process claims under Pate v. 

Robinson212 relating to the state trial court’s determination of competency. 

“Under Pate v. Robinson, a trial court must hold a competency hearing when 

there is evidence before the court that objectively creates a bona fide question 

as to whether the defendant is competent to stand trial.”213 “In determining 

whether there is a ‘bona fide doubt’ as to the defendant’s competence, [a] court 

considers: (1) any history of irrational behavior, (2) the defendant’s demeanor 

at trial, and (3) any prior medical opinion on competency.”214 “If the trial court 

received evidence, viewed objectively, that should have raised a reasonable 

doubt as to competency, yet failed to make further inquiry, the defendant has 

 

211 28 U.S.C. § 2254(e)(1).

212 383 U.S. 375, 385 (1966) (holding that a trial court must hold a competency hearing 

when there is evidence before the court that objectively creates a bona fide question as to 

whether the defendant is competent to stand trial); see also Roberts v. Dretke, 381 F.3d 491, 

497 (5th Cir. 2004) (articulating the holding in Pate v. Robinson).

213 Roberts v. Dretke, 381 F.3d 491, 497 (5th Cir. 2004) (citation omitted) (citing Pate, 

383 U.S. 375 (1966)).

214 Mata v. Johnson, 210 F.3d 324, 329 (5th Cir. 2000).

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been denied a fair trial.”215 Austin asserts that the state trial court’s failure to 

hold a standalone pretrial competency hearing denied him a fair trial. He also 

contends that regardless of whether the state trial court’s initial pretrial 

finding of competency was proper, the information about his mental health 

history presented at trial should have alerted the state trial court then to the 

possibility that Austin was not competent—in other words, the information 

created a bona fide doubt as to Austin’s competency such that an additional 

hearing was necessary.

Because we conclude that Austin has failed to demonstrate by clear and 

convincing evidence that he was not competent to stand trial, waive counsel, 

or plead guilty, we similarly reject his procedural claim that the state trial 

court was required to hold a pretrial competency hearing and that because it 

did not, he was denied a fair trial. In concluding that Austin could waive 

counsel and proceed pro se, the state trial court made an implicit finding that 

no bona fide doubt as to competency existed and that a standalone competency 

hearing was therefore not required.216 We presume that this factual finding is 

correct under § 2254(e)(1) and, as noted above, Austin has failed to overcome 

that presumption by clear and convincing evidence. If we were to consider, in 

the alternative, the competency determination as a mixed question of law and 

fact subject to de novo review, rather than a purely factual finding, Austin has 

still failed to demonstrate he was not competent. We therefore conclude that 

this procedural claim is without merit.

Nor is Austin entitled to relief based on his claim that the state trial 

court failed to inquire about Austin’s competency adequately after hearing 

 

215 Id. (citing Carter v. Johnson, 131 F.3d 452, 459 n.10 (5th Cir. 1997)).

216 See Roberts v. Dretke, 381 F.3d 491, 498 (5th Cir. 2004).

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evidence during Austin’s trial about his past mental health issues that 

contradicted what Austin had told the court during earlier competency 

proceedings. To the extent that this procedural claim, not adjudicated on the 

merits by the state court, presents questions of law or mixed questions of law 

and fact, we review de novo.217

In response to several specific questions from the state trial judge during 

the pretrial hearing to consider Austin’s request to proceed pro se, Austin 

stated that he had not had mental health issues in the past, and had not been 

treated nor received counseling for mental health issues. However, during 

trial, contrary evidence was adduced. Though this evidence clearly 

contradicted what Austin had previously told the state court, the trial court 

knew, prior to the pretrial hearing, that Austin had “a very bad problem with 

depression” and that Austin contemplated suicide often when depressed.218 

None of the evidence presented during Austin’s capital murder trial 

undermines confidence in the state trial court’s well-supported pretrial finding 

of competence, a finding based on Austin’s demeanor, Dr. Brown’s evaluation, 

the opinion of Austin’s counsel, and the court’s interactions with Austin, 

including correspondence from Austin indicating an ability to reason logically 

and strategically. As noted above, “[m]ental illness and incompetence . . . are 

not necessarily coexistent conditions.”219 The state trial court’s failure to 

 

217 See Henderson v. Cockrell, 333 F.3d 592, 598 (5th Cir. 2003).

218 See CR at 16 (letter from Austin to the trial court before trial).

219 LaHood v. Davis, 653 F. App’x 253, 263 (5th Cir. 2016) (citing McCoy v. Lynaugh, 

874 F.2d 954, 960-61 (5th Cir. 1989); United States v. Williams, 819 F.2d 605, 608 (5th Cir. 

1987)); see also Drope v. Missouri, 420 U.S. 162, 181 n.16 (1975) (recognizing that “a suicide 

attempt need not always signal ‘an inability to perceive reality accurately, to reason logically 

and to make plans and carry them out in an organized fashion’” (quoting David F. Greenberg, 

Involuntary Psychiatric Commitments to Prevent Suicide, 49 N.Y.U. L. REV. 227, 236 (1974))).

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conduct an additional hearing as to Austin’s competency does not warrant 

habeas relief.

C

Competence to plead guilty or to waive the right to counsel is measured 

by the same standard as competence to stand trial.220 Nonetheless, “[a] finding 

that a defendant is competent to stand trial . . . is not all that is necessary 

before he may be permitted to plead guilty or waive his right to counsel.”221 A 

trial court must also “satisfy itself that the [defendant’s] waiver of his 

constitutional rights is knowing and voluntary.”222 Before granting a 

defendant’s clear and unequivocal request to proceed pro se, the trial judge 

“must caution the defendant about the dangers of such a course of action so 

that the record will establish that ‘he knows what he is doing and his choice is 

made with eyes open.’”223 To be voluntary, a plea must “not be the product of 

‘actual or threatened physical harm, or . . . mental coercion overbearing the 

will of the defendant.’”224 A defendant pleading guilty must also be competent, 

have notice of the charges against him, understand the consequences of his 

plea, and have available the advice of competent counsel.225 To the extent 

 

220 Godinez v. Moran, 509 U.S. 389, 398 (1993).

221 Id. at 400.

222 Id. at 400-01 (“In this sense there is a ‘heightened’ standard for pleading guilty and 

for waiving the right to counsel, but it is not a heightened standard of competence.”); see also 

Faretta v. California, 422 U.S. 806, 807 (1975) (holding that the Sixth and Fourteenth 

amendments include the “right to proceed without counsel” when a criminal defendant 

“voluntarily and intelligently elects to do so”).

223 United States v. Cano, 519 F.3d 512, 516 (5th Cir. 2008) (quoting United States v. 

Martin, 790 F.2d 1215, 1218 (5th Cir. 1986)); see also Faretta v. California, 422 U.S. 806 

(1975).

224 Matthew v. Johnson, 201 F.3d 353, 365 (5th Cir. 2000) (quoting Brady v. United 

States, 397 U.S. 742, 750 (1970)).

225 Id.

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Austin’s claim involves subsidiary factual determinations made by the state 

trial court, we apply § 2254(e)(1)’s presumption of correctness, which Austin 

must rebut by clear and convincing evidence.226 We review de novo questions 

of law and mixed questions of law and fact.227

Before accepting Austin’s waiver of counsel, the state trial court 

confirmed that Austin knew and understood the charges against him, as well 

as the possible punishment if convicted.228 The court informed Austin of his 

right to court-appointed counsel and explained the risks and disadvantages to 

proceeding pro se.229 The court also inquired whether Austin’s waiver of 

counsel was made voluntarily, intelligently, and knowingly.230 During this 

exchange, Austin explained that he wanted to proceed pro se so that he would 

be able to make his own decisions about trial strategy.231 A defendant has a 

“right to conduct his own defense,” even though exercising that right “usually 

increases the likelihood of a trial outcome unfavorable to the defendant.”232

The right to self-representation “is based on the fundamental legal principle 

that a defendant must be allowed to make his own choices about the proper 

way to protect his own liberty.”233 Although Austin may not have been trying 

to “protect his own liberty,” he clearly expressed to the state trial court his wish 

to make his own decisions about trial strategy. An improper denial of Austin’s 

 

226 See Miller v. Fenton, 474 U.S. 104, 112 (1985) (recognizing the presumption of 

correctness to subsidiary fact questions under the prior version of 28 U.S.C. § 2254(d)); 

Barnes v. Johnson, 160 F.3d 218, 222 (5th Cir. 1998).

227 See Henderson v. Cockrell, 333 F.3d 592, 598 (5th Cir. 2003).

228 2RR9.

229 2RR9-12.

230 2RR12.

231 2RR13-14.

232 Weaver v. Massachusetts, 137 S. Ct. 1899, 1908 (2017) (quoting McKaskle v. 

Wiggins, 465 U.S. 168, 177 n.8 (1984)).

233 Id.

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right to self-representation by the state trial court would have amounted to 

structural error requiring reversal.234

Before accepting Austin’s guilty plea, the state trial court again 

confirmed that Austin understood the charges against him and the possible 

punishment.235 It also admonished Austin that he had a right to a jury trial

and asked Austin a series of questions to determine if his plea was 

voluntary.236 The court asked Austin if he was of sound mind.237 It explained 

the consequences of pleading guilty.238 The court specifically found, based on 

its prior evaluation of Austin’s competency to stand trial at the first Faretta 

hearing as well as prior conversations with Austin, that Austin was “mentally 

competent to enter [a] plea of guilty” and that he was “doing so freely and 

voluntarily with full knowledge of the consequences.”239

The requirements for a valid guilty plea and waiver of counsel are clearly 

met. Austin contends that his mental illness and the conditions of his 

confinement rendered both his guilty plea and his waiver of trial counsel

invalid because they were not knowing and voluntary.240 In light of our 

conclusion that the trial court’s finding of competency was well-supported and 

correct even if reviewed de novo as a mixed question of law and fact, the 

evidence of depression or other mental illness does not render an otherwise 

 

234 See id.

235 9RR4.

236 9RR4-5 (“Has anyone reached any agreement with you to get you to enter your

plea?”; “Has anybody promised you anything to get you to enter your plea?”; “Has anybody 

threatened you to get you to enter your plea?”).

237 9RR5.

238 Id.

239 9RR6.

240 Austin Br. at 102.

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effective waiver involuntary.241 Similarly, Austin has failed to demonstrate 

that the conditions of his confinement rendered his decisions involuntary or

undermined his otherwise effective waiver. Further, Austin’s letter to the trial 

court approximately a month before the start of trial reflected he was no longer 

dissatisfied with the conditions of his confinement and no longer suffering from 

any depression.242 Even with the complained-of conditions removed, Austin 

indicated, consistent with his prior statements to the court, that he would not 

contest the charges against him.243

As previously noted, Austin has not presented clear and convincing 

evidence sufficient to overcome the state trial court’s determination that he 

was competent to waive counsel and plead guilty.244 Our independent review 

confirms that Austin’s plea and waiver of counsel were not the product of state 

coercion or otherwise rendered involuntary.

V

Austin contends that his appointed trial counsel for the seven-month 

period before he was allowed to proceed pro se was ineffective for failing to 

undertake significant discovery or investigation into Austin’s competency, and 

for failing to ask Austin more questions at the Faretta hearing (Issue 13). The 

district court held that Austin could not show prejudice from counsel’s 

 

241 See Johnson v. United States, 344 F.2d 401, 403-04 & n.4 (5th Cir. 1965) (separating 

the voluntariness inquiry from the mental competence inquiry and determining that because 

the trial judge had “carefully, thoroughly, and separately interrogated each of the defendants 

to ascertain whether the plea as to each separate indictment was freely, voluntarily, and 

understandably made” and had found that each plea was, “there is no suggestion, either in 

the records and papers or in the evidence on the 2255 proceeding, which even raises any 

question about this conclusion, either then or now”). 

242 See CR at 58. 

243 Id.

244 28 U.S.C. § 2254(e)(1). 

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allegedly deficient performance because the evidence supported the state trial 

court’s conclusion that Austin was competent. We review the district court’s 

conclusions of law and its conclusions of mixed law and fact de novo.245

Under the familiar test of Strickland v. Washington, a successful 

ineffective assistance of trial counsel claim requires a petitioner to show that 

(1) “counsel’s performance was deficient” and (2) that “the deficient 

performance prejudiced the defense.”246 Trial counsel “has a duty to make 

reasonable investigations or to make a reasonable decision that makes 

particular investigations unnecessary.”247 In the context of mental health 

investigation, “[t]rial counsel provides deficient performance if he fails to 

investigate a defendant’s medical history when he has reason to believe that 

the defendant suffers from mental health problems.”248

Trial counsel in this case testified that he never doubted his client’s 

competence,249 and, though Austin points to the lack of investigation 

performed, he does not allege any facts that would have alerted counsel to the 

need to investigate Austin’s competency. As we have stated before, suicidality 

and depression are not necessarily indications of incompetence. Additionally, 

a mental health evaluation was conducted prior to the Faretta hearing, which 

determined Austin to be competent.

Even if Austin had shown counsel’s failure to investigate to be deficient 

performance under Strickland, Austin has wholly failed to support his 

 

245 Jones v. Cain, 227 F.3d 228, 230 (5th Cir. 2000).

246 Strickland v. Washington, 466 U.S. 668, 687 (1984). 247 Id. at 691. 248 Roberts v. Dretke, 381 F.3d 491, 498 (5th Cir. 2004). 249 2RR4.

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allegation that counsel’s performance prejudiced his defense.250 Strickland 

requires Austin to show a “reasonable probability that, but for counsel’s 

unprofessional errors, the result of the proceeding would have been 

different.”251 Austin is correct that he need only show “a probability sufficient 

to undermine confidence in the outcome.”252 However, he has failed to do so. 

His briefing claims that had the district court correctly applied this standard, 

he would be entitled to relief.

We agree with the district court that the evidence presented both to the 

state trial court and in post-conviction proceedings strongly supports the state

trial court’s determination that Austin was competent. The fact that Austin 

sought the death penalty is not, in and of itself, sufficient to call into serious 

doubt his competence to proceed to trial in light of the other evidence before 

the court. His letters and colloquy with the judge do not suggest an inability 

to understand the proceedings or charges against him. To the contrary, Austin 

remained articulate and focused in his aim of representing himself and 

refusing to present a defense.253 The court-ordered independent evaluation 

further supports the state trial court’s conclusion that Austin was, in fact, 

competent to represent himself at trial.254 Finally, though Austin details 

various psychiatric treatments, interactions with mental health professionals, 

and the opinions of experts hired post-conviction, nothing suggests he suffered 

any impairment that would bear on his competency to stand trial.255 Even if 

 

250 Bell v. Cone, 535 U.S. 685, 695 (2002) (“Without proof of both deficient performance 

and prejudice to the defense . . . the sentence or conviction should stand.”).

251 Strickland, 466 U.S. at 694. 

252 Id.

253 ROA.645-47.

254 ROA.648.

255 See ROA.652-54.

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the affidavits Austin submitted from medical professionals may be considered 

on federal habeas review since they were not presented to the state courts, an 

issue we pretermit because we are denying relief on the merits with respect to 

this issue, this evidence does not alter our conclusion. Based on our review of 

the record, Austin’s assertion that a more thorough investigation would have 

cast the competency proceedings in such a different light as to undermine 

confidence in their outcome is unpersuasive.

VI

Austin contends that he did not receive a fair trial because five jurors 

gave false or misleading answers during voir dire, indicating that they could 

consider mitigating evidence and vote for a life sentence when in fact, they 

were pre-disposed to imposing the death penalty (Issue 19). He relies on

statements from those jurors obtained during the post-conviction

investigation.

A

“A juror is biased if his ‘views would prevent or substantially impair the 

performance of his duties as a juror in accordance with his instructions and his 

oath.’”256 Austin relies upon McDonough Power Equipment, Inc. v. Greenwood, 

in which the Supreme Court observed that “[o]ne touchstone of a fair trial is 

an impartial trier of fact—‘a jury capable and willing to decide the case solely 

on the evidence before it.’”257 The McDonough Power Equipment case 

concerned a direct appeal in a civil, personal injury suit in which the jury found 

 

256 Hatten v. Quarterman, 570 F.3d 595, 600 (5th Cir. 2009) (quoting Soria v. Johnson, 

207 F.3d 232, 242 (5th Cir. 2000)). 

257 McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 554 (1984) (quoting 

Smith v. Phillips, 455 U.S. 209, 217 (1982)).

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in favor of the defendant.258 The losing plaintiff contended that a new trial 

was required because a juror failed to disclose during voir dire that his son had 

sustained a broken leg as a result of the explosion of a truck tire.259 The

Supreme Court reasoned that “[t]o invalidate the result of a three-week trial 

because of a juror’s mistaken, though honest response to a question, is to insist 

on something closer to perfection than our judicial system can be expected to 

give.”260 The Court then said, “[w]e hold that to obtain a new trial in such a 

situation, a party must first demonstrate that a juror failed to answer honestly 

a material question on voir dire, and then further show that a correct response 

would have provided a valid basis for a challenge for cause.”261 The Fifth 

Circuit has assumed, without deciding, “that a McDonough theory of juror bias 

would be sufficient to obtain federal habeas relief,”262 and we will do the same

in the present case.

It is well-settled that a juror who will automatically vote for the death 

penalty is challengeable for cause.263 Austin contends that none of the jurors 

indicated during voir dire that he or she would automatically vote for the death 

penalty or refuse to consider mitigating evidence and therefore that there was 

no reason to challenge any juror for cause.264 Austin asserts that his 

entitlement to habeas relief can be determined from the transcript of voir dire

when compared to post-trial statements from five jurors made approximately 

two years after trial. Austin does not contend that the trial court erred in 

 

258 Id. at 549-50.

259 Id. at 550-51. 260 Id. at 555.

261 Id. at 556.

262 Montoya v. Scott, 65 F.3d 405, 419 (5th Cir. 1995).

263 See, e.g., Morgan v. Illinois, 504 U.S. 719, 729 (1992).

264 Austin Br. at 109-10.

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failing to hold an evidentiary hearing.265 We will therefore consider only the 

voir dire transcript and the post-trial statements.

Austin asserts that the jurors’ post-trial statements establish that they

misled the trial court during voir dire because the jurors confirmed to the court 

that they could consider mitigating evidence, when in fact they would not and 

were thus unqualified to serve.266 The federal district court did not consider 

whether Austin’s evidence supported a claim of “actual prejudice,”267 nor 

whether Austin was required to rebut, or had rebutted, by clear and convincing 

evidence,268 any implied finding by the state trial court that the jurors were 

unbiased. Nor did the district court consider whether the jurors’ allegedly 

misleading answers were due to inadequate questioning on voir dire, or were 

a deliberate attempt to mislead the court.269

Because of our disposition of the jury bias claim, we will assume, without 

deciding, that the state trial court made no express or implied findings that 

the jurors were competent and unbiased. We will further assume, without 

deciding, that there are no factual issues decided by the state courts to which 

AEDPA deference is due under 28 U.S.C. § 2254(e)(1).

 

265 Oral Argument at 25:40 (July 12, 2017). 266 ROA.108-09; Austin Reply Br. at 60.

267 See Gomez v. United States, 245 F.2d 344 (5th Cir. 1957) (suggesting waivers of 

challenges to jurors premised on “actual prejudice” or “fundamental incompetence” differ 

from challenges based only on statutory disqualification).

268 See 28 U.S.C. §2254(e); Virgil v. Dretke, 446 F.3d 598, 610 n.52 (5th Cir. 2006).

269 See United States v. Scott, 854 F.2d 697, 700 n.12 (5th Cir. 1988) (comparing cases 

of deliberate or unreasonable omissions to cases involving inadequate or unspecific 

questioning). 

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B

Austin’s brief in our court focuses primarily upon William Gibbs, one of 

the five jurors that Austin contends was biased. Gibbs’s voir dire contained 

the following exchanges:

THE COURT: And if the evidence called for it, [could you] 

answer [the special issues] in such a way that you know a life 

sentence would result?

GIBBS: Yes. 

THE COURT: I take it, then – and correct me if I’m wrong –

that you would be guided by the evidence, listen to all of the 

evidence and answer the questions according to the evidence, 

wherever that might take you?

GIBBS: Yes.

. . .

PROSECUTION: . . . Tell us first in your own words, what 

are your feelings on the death penalty?

GIBBS: I am for it and - - I’m for it. I think it’s necessary 

for a crime deterrent, and that’s about it.

. . .

PROSECUTION: . . . Okay. Can you consider, then, in your 

mind that [the first special issue], depending on the evidence, could 

be answered either yes or no?

GIBBS: Yes.

. . .

PROSECUTION: Can you consider that in Issue No. 2 that 

it could be answered in a yes or no fashion?

GIBBS: Yes.

. . .

PROSECUTION: . . . Do you feel that you can participate in 

that - - the deliberations, deliberating with the jury and assess the 

death penalty if the law and the evidence supports it?

GIBBS: Yes.

. . .

PROSECUTION: . . . are you saying that if you know that 

the defendant is representing himself and you know that he has a 

death wish, if the law and the evidence supports assessing the 

death penalty, are you saying you still could not assess the death 

penalty?

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THE COURT: In other words, if the evidence called for 

answering those questions in such a way that you answered the 

first one yes and the second one no, you know the death penalty 

would result?

GIBBS: Yes. 

THE COURT: Would the fact that you feel that you would be 

giving a defendant something that he wanted cause you in any way 

to change your answers based on the evidence?

GIBBS: No.

THE COURT: So, then, would you - - would you, I guess, 

honor your oath as a juror and base your verdict to those questions 

on the evidence; and if that’s what the evidence proved to you, you 

would answer them in that way?

GIBBS: Yes. 

THE COURT: Even if you feel like it’s kind of unfair to give 

him what he would want?

GIBBS: Exactly. That’s just the way that I feel. That’s not 

the way that - - if that’s what the law states, then that’s how, I 

guess, I would have to vote. But I mean - -

THE COURT: Your personal opinion - -

GIBBS: Personal feelings, I would have to say no; but I 

would say I would vote the death penalty if that’s what the law 

stated and - -

THE COURT: And the evidence showed?

GIBBS: Yes.270

In his post-trial statement, Juror Gibbs made the following assertions: 

I believe that ‘an eye for an eye’ is correct. If you kill 

someone you should face the death penalty.

Once someone is guilty of capital murder I believe that the 

only appropriate penalty is the death penalty. I do not think that 

there is anything that would be mitigating so that a person should 

not get the death penalty, this includes the person being insane. 

Once I heard that Perry Austin had admitted to 

intentionally killing a nine year old boy I was only going to vote 

one way—I was going to vote ‘yes’ he was a future danger and ‘no’ 

 

270 5RR32-33, 38-40, 43-44.

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there was nothing mitigating. I was not going to vote for anything 

other than the death penalty.271

The voir dire and post-trial statements of the other four jurors are set 

forth in section VI(C) below. As noted, Austin relies only on the post-trial

statements to support his contention that each of these jurors was dishonest

in answering questions posed during voir dire. We conclude that the district 

court was foreclosed from considering any of the jurors’ post-trial statements 

by Federal Rule of Evidence 606(b)(1) and the Supreme Court’s decisions 

applying that Rule. Therefore, the district court did not err in failing to grant 

habeas relief on Austin’s juror bias claim.

Rule 606(b)(1) provides:

(b) During an Inquiry Into the Validity of a Verdict or 

Indictment.

(1) Prohibited Testimony or Other Evidence. During an 

inquiry into the validity of a verdict or indictment, a juror may not 

testify about any statement made or incident that occurred during 

the jury's deliberations; the effect of anything on that juror's or 

another juror's vote; or any juror's mental processes concerning the 

verdict or indictment. The court may not receive a juror's affidavit 

or evidence of a juror's statement on these matters.272

The text of the rule is clear, and it explicitly directs that “a juror may not 

testify about . . . the effect of anything on that juror’s . . . vote . . . or any juror’s 

mental processes concerning the verdict or indictment.” The Rule further 

provides, “[t]he court may not receive a juror’s affidavit or evidence of a juror’s 

statement on these matters.” Each of the post-trial statements by jurors comes

within these prohibitions.

 

271 Pet. Ex. 65 at 007525-007526.

272 FED. R. EVID. 606(b)(1).

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The Supreme Court squarely held in Warger v. Shauers that “Rule 606(b) 

applies to juror testimony during a proceeding in which a party seeks to secure 

a new trial on the ground that a juror lied during voir dire.”273 The Court 

rejected the argument that the inquiry under McDonough “begins and ends 

with what happened during voir dire,” and therefore that Rule 606(b) should 

be inapplicable.274 The Court reasoned that “[w]hether or not a juror’s alleged 

misconduct during voir dire had a direct effect on the jury’s verdict, the motion 

for a new trial requires a court to determine whether the verdict can stand.”275 

The Court further explained:

[A] party’s right to an impartial jury remains protected despite 

Rule 606(b)’s removal of one means of ensuring that jurors are 

unbiased. Even if jurors lie in voir dire in a way that conceals bias, 

juror impartiality is adequately assured by the parties’ ability to 

bring to the court’s attention any evidence of bias before the verdict 

is rendered, and to employ nonjuror evidence even after the verdict 

is rendered.276

The Ninth Circuit has similarly applied Rule 606(b) in a direct criminal 

appeal in which a juror’s post-trial affidavit averred that other jurors had 

discussed the evidence against the defendant “and made up their minds about 

his guilt before the start of deliberations.”277 In denying relief, the court 

explained that “[t]he notion that egregious juror conduct will not necessarily 

result in relief from the verdict may seem antithetical to our system of due 

 

273 Warger v. Shauers, 135 S. Ct. 521, 525 (2014).

274 Id. at 528 (quoting a party’s brief).

275 Id.

276 Id. at 529; see also Tanner v. United States, 483 U.S. 107, 127 (1987) (explaining 

that “[t]he suitability of an individual for the responsibility of jury service, of course, is 

examined during voir dire,” and “after the trial a party may seek to impeach the verdict by 

nonjuror evidence of misconduct”).

277 United States v. Leung, 796 F.3d 1032, 1034 (9th Cir. 2015).

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process.”278 But the Ninth Circuit discerned that “[t]he Rule . . . exists for good 

reason—it protects jurors from harassment and maintains the integrity and 

finality of jury verdicts.”279 The court observed, “[w]hile persistent inquiry into 

internal jury processes could ‘in some instances lead to the invalidation of 

verdicts reached after irresponsible or improper juror behavior,’ our very 

system of trial by jury might not ‘survive such efforts to perfect it.’”280

The only exception that the Supreme Court has made to Rule 606(b)(1)’s 

prohibitions is “when, after the jury is discharged, a juror comes forward with 

compelling evidence that another juror made clear and explicit statements 

indicating that racial animus was a significant motivating factor in his or her 

vote to convict.”281 The Court reasoned in Pena-Rodriguez v. Colorado that 

“[a]ll forms of improper bias pose challenges to the trial process. But there is 

a sound basis to treat racial bias with added precaution.”282 The Court 

concluded that “[a] constitutional rule that racial bias in the justice system 

must be addressed—including, in some instances, after the verdict has been 

entered—is necessary to prevent a systemic loss of confidence in jury verdicts, 

a confidence that is a central premise of the Sixth Amendment trial right.”283

There is no suggestion or indication of racial animus or bias in the present 

 

278 Id. at 1036.

279 Id.

280 Id. (quoting Tanner, 483 U.S. at 120); see also United States v. Davis, 960 F.2d 820, 

828 (9th Cir. 1992) (rejecting a defendant’s argument in a direct criminal appeal “that his 

sixth amendment right to an impartial jury was violated because one juror stated during a 

post-trial interview that, ‘[f]rom the first day I knew [Davis] was guilty,’” reasoning that 

“[t]he juror’s statement reflects his personal feelings and beliefs concerning Davis” and that 

“[t]he statement is insufficient to set aside a verdict”).

281 Pena-Rodriguez v. Colorado, 137 S. Ct. 855, 861 (2017).

282 Id. at 869.

283 Id.

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case, and the Supreme Court has not recognized an exception to Rule 606(b)

that would apply to the post-trial statements at issue here.

In our prior, unpublished opinion in this case granting a COA to Austin 

on his jury bias claim, we reasoned:

[P]ost-trial interviews concern the honesty of statements made by 

the jurors during voir dire—not statements made during 

deliberations, the effect of something on the jurors' votes, or the 

jurors' mental processes concerning the verdict. Rule 606(b) does 

not bar admission of post-trial statements to prove that the jurors 

failed to answer a material question honestly during voir dire.284

That analysis was clearly incorrect in light of the Supreme Court’s 

decision and reasoning in Warger v. Shauers, and, after full briefing and 

plenary consideration, we now disavow our prior reasoning and our discussion 

of Rule 606(b) in granting a COA on Austin’s jury bias claim. Though we cited 

Warger in a footnote, our analysis of that decision was not in-depth and was

inaccurate.285

This court’s decision in Hatten v. Quarterman,286 which we also cited in

a footnote in our opinion and order granting a COA on Austin’s jury bias 

claim,287 involved unusual circumstances and does not support Austin’s 

contention that the post-trial statements at issue are admissible to impeach 

the jury’s verdict and require a new trial. In Hatten, questions as to whether 

a juror had been truthful during voir dire and was biased were raised in the 

midst of trial, before the case was submitted to the jury.288 The juror in 

 

284 Austin v. Davis, 647 F. App’x 477, 493 (5th Cir. 2016) (per curiam). 285 Id. at 493 n.63.

286 570 F.3d 595 (5th Cir. 2009).

287 Austin, 647 F. App’x at 493 n.63.

288 Hatten, 570 F.3d at 600-02.

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question testified during a hearing that was held to ascertain whether he had 

lied on his juror questionnaire about whether he had a “drug problem,” among 

other issues.289 Though this court discussed the juror’s post-trial affidavit, in 

which he stated that that “he did, in fact, have a drug problem at the time of 

the trial and that his drug use affected his judgment,”290 we concluded that his

response to the jury questionnaire had been ambiguous.291 Importantly to the 

issue now before us, we concluded that even if the affidavit called into question 

the juror’s truthfulness in responding to the questionnaire, the juror had 

actually testified at the hearing during trial about his questionnaire response, 

the district court had concluded that the juror’s post-trial affidavit should not 

be credited over that testimony, and we found no basis for overturning the 

district court’s factual finding in this regard.292 The salient point is that in 

Hatten, there was no actual holding by this court that a post-trial affidavit 

could or did impeach a verdict. Only an implication can be drawn from Hatten

that if a post-trial affidavit demonstrated a juror’s bias, the affidavit could be 

used to impeach the verdict and a new trial would be necessary. An implication 

is not a holding. In any event, to the extent that it could be argued that Hatten

contained such a holding, Hatten is inconsistent with the Supreme Court’s 

 

289 Id.; see also id. at 600 (reflecting that the claims in the subsequent federal habeas 

proceeding were that “Hatten [the defendant] complains that Hollins's [the juror’s] bias is 

reflected by the facts that: (a) Hollins lied on his juror questionnaire and during his 

questioning regarding his drug use; (b) Hollins concealed the scope of his relationship with 

Isaac Robinson, the victim's father, and with Hatten's [the defendant’s] stepfather; and (c) 

Hollins [the juror] was threatened with prosecution during trial and consequently must have 

favored the prosecution”).

290 Id. at 602.

291 Id.

292 See id.

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subsequent decision in Warger and the Supreme Court’s explication of Warger

and Tanner in Pena-Rodriguez.293

The post-trial statements of the five jurors are inadmissible by virtue of 

Rule 606(b). Austin has no other evidence that any of these jurors were less 

than candid during voir dire. Austin’s jury bias claim therefore fails.

C

As an alternative basis for affirming the district court’s judgment with 

respect to Austin’s juror bias claim, we conclude that even were the jurors’ posttrial statements admissible, Austin has not demonstrated that a juror “failed 

to answer honestly a material question on voir dire,” and “that a correct 

response would have provided a valid basis for a challenge for cause.”294

Two special issues were to be submitted to the jury, and potential jurors 

were questioned about these issues during voir dire. The first special issue 

was “[d]o you find from the evidence beyond a reasonable doubt that there is a 

probability that the defendant, Perry Allen Austin, would commit criminal acts 

of violence that would constitute a continuing threat to society.”295 The second 

special issue was “[d]o you find from the evidence, taking into consideration all 

of the evidence, including the circumstances of the offense, the defendant's 

character and background, and the personal moral culpability of the 

defendant, Perry Allen Austin, that there is a sufficient mitigating 

 

293 See Pena-Rodriguez v. Colorado, 137 S. Ct. 855, 865-67 (2017) (observing that 

“since the enactment of Rule 606(b), the Court has addressed the precise question whether 

the Constitution mandates an exception to it in just two instances” and noting that the Sixth 

Amendment did not require an exception in either instance) (citing Warger v. Shauers, 135 

S. Ct. 521, 529 (2014) and Tanner v. United States, 483 U.S. 107, 125 (1987)).

294 McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 556 (1984).

295 Pet. Ex. 36 at 001611; see also TEX. CODE CRIM. PROC. ANN. art. 37.071 § 2(b)(1) 

(West Supp. 2002).

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circumstance or circumstances to warrant that a life imprisonment rather than 

a death sentence be imposed.”296

Before we consider each of the five jurors’ specific voir dire and post-trial

statements, we note that none of these jurors was asked if he or she could 

consider a specific type of mitigation evidence or categories of mitigation 

evidence. They were only asked whether they could potentially answer the 

special issues so as to impose a life sentence if the law and evidence so required. 

We also note that the record reflects that the murder victim’s age, nine years 

old, was not revealed to the jurors until the punishment phase commenced, 

which was after voir dire had been completed.297

Juror Erwin

The relevant portion of Juror Erwin’s voir dire consisted of the following 

exchanges: 

THE COURT: And if the evidence called for it, [could you] 

answer [the special issue] in such a way that you know a life 

sentence would result?

ERWIN: Yes.

THE COURT: I take it, then, sir, that you would listen to the 

evidence, follow the law and be guided by the evidence and the law, 

wherever that might take you in this trial?

ERWIN: Whatever that is, yes.

. . .

ERWIN: There’s a few cases I think you should get the death 

penalty, but that’s just me.

PROSECUTION: Okay, and that would be what? What cases 

would those be?

ERWIN: Anything had to do with hurting the elderly - -

PROSECUTION: Okay.

ERWIN: - - or kids.

 

296 Pet. Ex. 36 at 001612; see also TEX. CODE CRIM. PROC. ANN. art. 37.071 § 2(e)(1) 

(West Supp. 2002). 297 9RR17.

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PROSECUTION: Children?

ERWIN: Children

. . .

PROSECUTOR: Okay. Can you see how Special Issue No. 2 

can be answered either yes or no depending on what evidence you 

hear in the courtroom?

ERWIN: Yes.298

Erwin’s post-trial statement included the following:

I believe that if you are found guilty of capital murder the 

only appropriate penalty is the death penalty. The only thing that 

would make that different is if the person was insane.

After Perry Austin admitted he did the murder the case was 

pretty simple. He wanted the death penalty and we were happy to 

give it to him.299

The first paragraph of the post-trial statement reflects Erwin’s beliefs as 

of the date of the statement. It does not say that Erwin held these beliefs at 

the time of voir dire. Two years after a trial, a juror’s beliefs may have changed, 

particularly after participating in a capital trial and voting to impose a death 

sentence. But even if Erwin thought during voir dire that the only 

circumstance warranting a life sentence as opposed to a death sentence would 

be insanity when the crime was committed, his responses to the questions he 

was asked during voir dire are consistent with that view. He was not asked to 

identify what factors would cause him to vote in favor of a life sentence. He 

was only asked if there were circumstances in which he could vote for a life 

sentence, and his post-trial statement confirms that there was at least one such 

circumstance.

 

298 4RR18-31.

299 Pet. Ex. 68 at 007541-007542. 

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The second paragraph of the post-trial statement does not contradict 

anything that Erwin said in response to questions during voir dire. Nothing 

in the second paragraph is an assertion that the evidence called for a life 

sentence but that Erwin ignored that evidence. Erwin was not required to vote 

for a life sentence simply because there was mitigating evidence. Austin

admitted to murdering a child, and during his pro se closing statement, Austin 

himself set forth facts that he said supported answering the two special issues

in a way that would result in a death sentence. Erwin’s brief characterization 

in his post-trial statement of why the jury voted as it did does not contradict 

anything that Erwin said during voir dire. In fact, Erwin candidly revealed

during voir dire that he thought that someone who killed an elderly person or

a child should receive the death penalty. We do not consider whether there 

may have been cause to strike Erwin based on his voir dire testimony or his 

post-trial statement because Austin has not met the first prong of McDonough, 

that Erwin was dishonest during voir dire. There is no evidence of dishonesty.

Juror Condon

Juror Condon’s voir dire contained the following relevant exchanges:

THE COURT: And if the evidence called for it, [could you] 

answer [the special issues] in such a way that you know a life 

sentence would result?

CONDON: Yes.

THE COURT: All right. I take it, Mr. Condon, your feelings 

are that you would listen to everything, be guided by the evidence 

and the law, wherever that might take you?

CONDON: Yes.

. . .

PROSECUTION: . . . Can you tell us in your own words 

what your feelings are on the death penalty?

CONDON: Well, I feel that in certain cases it’s justifiable 

punishment for - - never been asked to put it in words, I guess. If 

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someone commits a premeditated act of violence against someone 

else, I think it’s justifiable they be repaid in kind.

. . .

PROSECUTION: . . . Could you participate in the jury 

deliberations and assessing the death penalty if the evidence and 

the law directs you to?

CONDON: Yes.

. . .

PROSECUTION: Okay. Do you understand - - can you 

perceive that [the second special] issue could be answered either 

yes or no as well?

CONDON: Yes.

. . .

PROSECUTION: . . . Let’s say you were king of the world. If 

you were the king, would your kingdom have a death penalty?

CONDON: Yes.

PROSECUTION: And why?

CONDON: I just feel that certain crimes deserve the 

ultimate punishment, I guess.300

In his post-conviction statement, Condon made the following assertions:

For me, if somebody is not insane and kills somebody, 

especially a child, the only appropriate penalty is the death 

penalty. Other than showing that it was an accident or the person 

was insane I do not think that any other considerations are 

relevant. If you are found guilty of capital murder you should get 

the death penalty.

. . .

When I was asked at the time the jury was selected whether 

I could consider voting for life I said yes and I was thinking about 

a situation where someone was insane and did not know what they 

were doing.301

 

300 5RR5-17.

301 Pet. Ex. 67 at 007533-007534, 007537-007538. 

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The first paragraph of the post-trial statement reflects Condon’s views 

as of the date of the statement. It does not say that Condon held these view 

during voir dire. But even if he held those views during voir dire, nothing in 

the first paragraph or the second paragraph contradicts Condon’s voir dire

testimony. When asked to “tell us in your own words what your feelings are 

on the death penalty,” Condon responded, “[i]f someone commits a 

premeditated act of violence against someone else, I think it’s justifiable they 

be repaid in kind.” That is a categorical statement. It is entirely consistent 

with both the first and second paragraphs of Condon’s post-trial statement, as 

is Condon’s statement during voir dire that “I just feel that certain crimes 

deserve the ultimate punishment.” Condon was not asked during voir dire

whether the only circumstance that would cause him to vote for a life sentence 

would be the insanity of the defendant. Austin has not established the first 

requirement of McDonough, which is that Condon failed to answer honestly a

material question.

Juror Gibbs

Gibbs’s voir dire contained the following exchanges:

THE COURT: And if the evidence called for it, [could you] 

answer [the special issues] in such a way that you know a life 

sentence would result?

GIBBS: Yes.

THE COURT: I take it, then – and correct me if I’m wrong –

that you would be guided by the evidence, listen to all of the 

evidence and answer the questions according to the evidence, 

wherever that might take you?

GIBBS: Yes.

. . .

PROSECUTION: . . . Tell us first in your own words, what 

are your feelings on the death penalty?

GIBBS: I am for it and - - I’m for it. I think it’s necessary 

for a crime deterrent, and that’s about it.

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. . .

PROSECUTION: . . . Okay. Can you consider, then, in your 

mind that [the first special issue], depending on the evidence, could 

be answered either yes or no?

GIBBS: Yes.

. . .

PROSECUTION: Can you consider that in Issue No. 2 that 

it could be answered in a yes or no fashion?

GIBBS: Yes.

. . .

PROSECUTION: . . . Do you feel that you can participate in 

that - - the deliberations, deliberating with the jury and assess the 

death penalty if the law and the evidence supports it?

GIBBS: Yes.

. . .

PROSECUTION: . . . are you saying that if you know that 

the defendant is representing himself and you know that he has a 

death wish, if the law and the evidence supports assessing the 

death penalty, are you saying you still could not assess the death 

penalty?

THE COURT: In other words, if the evidence called for 

answering those questions in such a way that you answered the 

first one yes and the second one no, you know the death penalty 

would result?

GIBBS: Yes.

THE COURT: Would the fact that you feel that you would be 

giving a defendant something that he wanted cause you in any way 

to change your answers based on the evidence?

GIBBS: No.

THE COURT: So, then, would you - - would you, I guess, 

honor your oath as a juror and base your verdict to those questions 

on the evidence; and if that’s what the evidence proved to you, you 

would answer them in that way?

GIBBS: Yes.

THE COURT: Even if you feel like it’s kind of unfair to give 

him what he would want?

GIBBS: Exactly. That’s just the way that I feel. That’s not 

the way that - - if that’s what the law states, then that’s how, I 

guess, I would have to vote. But I mean - -

THE COURT: Your personal opinion - -

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GIBBS: Personal feelings, I would have to say no; but I 

would say I would vote the death penalty if that’s what the law 

stated and - -

THE COURT: And the evidence showed?

GIBBS: Yes.302

In his post-trial statement, Juror Gibbs made the following assertions: 

I believe that ‘an eye for an eye’ is correct. If you kill 

someone you should face the death penalty.

Once someone is guilty of capital murder I believe that the 

only appropriate penalty is the death penalty. I do not think that 

there is anything that would be mitigating so that a person should 

not get the death penalty, this includes the person being insane.

Once I heard that Perry Austin had admitted to 

intentionally killing a nine year old boy I was only going to vote 

one way—I was going to vote ‘yes’ he was a future danger and ‘no’ 

there was nothing mitigating. I was not going to vote for anything 

other than the death penalty.303

The first two paragraphs reflect Gibbs’ belief as of the date of his 

statement. They are not evidence that he held these views during voir dire. 

The third paragraph reflects Gibbs’ weighing of all the evidence. As discussed 

above, there is no evidence that before or during voir dire, Gibbs had “heard 

that Perry Austin had admitted to intentionally killing a nine year old boy.” 

The record reflects that D.K.’s age was not in evidence until after voir dire.304 

When the facts were presented during trial, Austin gave the fact that Austin 

intentionally killed a nine-year-old child controlling weight. He did not say he 

would do otherwise in his voir dire testimony.

Juror Tamayo

 

302 5RR32-33, 38-40, 43-44.

303 Pet. Ex. 65 at 007525-007526. 304 9RR17.

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The relevant portions of juror Tamayo’s voir dire are as follows:

THE COURT: And I guess the other part of that would be if 

the evidence called for it, could you answer [the special issues] in 

such a way that a life sentence would result?

TAMAYO: Yeah.

THE COURT: So I guess my question is can you assure us 

that you would be guided by the evidence and the law and answer 

those questions accordingly, regardless of which result it might be?

TAMAYO: Yeah.

THE COURT: Yeah?

TAMAYO: Yes.

. . .

PROSECUTION: Well, why don’t you tell me in your own 

words what you think of the death penalty and what purpose do 

you think it serves?

TAMAYO: Well, I think it’s working. I’m for it.

. . .

PROSECUTION: . . . You may hear something that’s 

sufficient enough for you that you think even though he’s a capital 

murderer and he’s probably going to be dangerous, he ought to 

receive life instead of death. Okay. Does that question make sense 

to you?

TAMAYO: It does.

. . .

PROSECUTION: If you were the king and it’s your kingdom 

and you get to write the laws, would your kingdom have a death 

penalty?

TAMAYO: Well, yeah. I think, yeah, it would.

PROSECUTION: Why?

TAMAYO: Because if, you know, the evidence proves that 

he’s going to keep, you know, having - - making trouble and stuff, 

well, then get rid of him, forget it.

. . .

PROSECUTION: . . . Hypothetically, let’s assume during 

the course of the trial, if you’re selected to sit on the jury, you find 

out not only that he’s representing himself but that he has a death 

wish. He’s not asking any questions. He just sits there, and he 

wants y’all to give him the death penalty. How does that make you 

feel?

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TAMAYO: Well, it’s not whether he wants it or not. It’s just 

whether it’s given to him or not.

PROSECUTION: Based on the law and evidence?

TAMAYO: Right.305

Juror Tamayo’s post-trial statement contained the following:

The death penalty is especially appropriate for child killers. 

I do not consider mental illness to be mitigation because it is too 

easy for defendants to lie and manipulate circumstances.306

Tamayo’s post-trial statement does not say that he held these views 

during voir dire. The statement reflects his beliefs two years after trial. In 

any event, the statement expresses the weight that Tamayo would give to two

factors. His belief that the death penalty is especially appropriate for child 

killers and that he does not consider mental illness to be mitigating is simply 

how he weighs such evidence. He does not consider mental illness to be “a 

sufficient mitigating circumstance,” and the special issue asked only if there is 

“a sufficient mitigating circumstance or circumstances.” If Austin’s position 

were correct, a prospective juror would be required to confirm during voir dire

that he or she would vote for a life sentence if there were evidence of mental 

illness, at least in some circumstances. Neither the law nor the issues put to 

Austin’s jury requires this. The Supreme Court has long recognized that 

evidence of mental illness is a two-edged sword when a jury is deciding whether 

a death sentence is appropriate.307

Juror Finnegan

Juror Finnegan’s voir dire proceeded, in relevant part, as follows:

 

305 5RR46-60. 

306 Pet. Ex. 85 at 007645. 307 See Brewer v. Quarterman, 550 U.S. 286, 292-93 (2007) (“As did Penry's, Brewer's 

mitigating evidence served as a ‘two-edged sword’ because it tended to confirm the State's 

evidence of future dangerousness as well as lessen his culpability for the crime.”).

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THE COURT: And, on the other hand, if the evidence called 

for it, [could you] answer [the special issues] in such a way that a 

life sentence would result?

FINNEGAN: Absolutely.

THE COURT: All right. So then I take it, Mr. Finnegan, 

what you’re telling us is that you would listen to all of the evidence, 

follow the law and answer those questions according to the law and 

the evidence, wherever that might lead you?

FINNEGAN: Absolutely.

. . .

PROSECUTION: Okay. Is there anything about your 

experience working with the F.B.I. or having been a police officer 

for as many years as you had that would affect your ability to be a 

juror in a criminal case?

FINNEGAN: I’d say no.

PROSECUTION: Okay. Anything about your experience in 

law enforcement dealing with defense attorneys or prosecutors 

that would affect your ability to be a juror in a criminal case?

FINNEGAN: No. Purely professional. 

PROSECUTION: Okay. All right. Now, why don’t you tell 

me, Mr. Finnegan, if you will, what your feelings are about the 

death penalty and what purpose do you think it serves in our 

society?

FINNEGAN: Feelings?

PROSECUTION: Yes, sir.

FINNEGAN: First, it’s a necessary evil - -

PROSECUTION: Okay.

FINNEGAN: - - I would say. And the reason being is that 

I’m a - - what right do I have to take another life? However, along

those same lines, there are certain crimes which I consider heinous 

crimes which I think the person, if he or she has absolutely no 

remorse and possesses [sic] a continuing threat, I could absolutely 

be in favor of.

PROSECUTION: . . . [W]hen you say “heinous crimes,” what 

types of offenses came to your mind where you thought the death 

penalty might be appropriate?

FINNEGAN: Violent crimes against a child.

PROSECUTION: Okay.

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FINNEGAN: That would be, you know - - and purely 

innocent type of victim without any defense, something along those 

lines. That’s what first issue came to my mind. 

. . .

PROSECUTION: Can you see how special issue No. 2 can be 

answered yes or no just depending on what you hear in the 

courtroom?

FINNEGAN: I do.308

In his post-trial statement, Juror Finnegan made the following assertions:

I believe that once Austin was found guilty of the murder of 

the victim the only appropriate sentence was death in accordance 

with Texas law. I believe that the prosecutors chose me to be on 

Austin’s jury because Perry wanted to die and Perry knew that 

with me working in law enforcement I would sentence him to 

death. Perry allowed me to stay on his jury.309

Nothing in Finnegan’s post-trial statement indicates that he was 

dishonest in responding to questions during voir dire. Finnegan’s statement 

refers to “the victim,” not murder victims generically. Finnegan did not say 

that he would automatically vote for the death penalty in every case.310 The 

victim in this case was a nine-year-old boy. For the reasons discussed above, 

Finnegan’s post-trial statement is evidence of the weight that he gave to the 

nature of the crime, not evidence that Finnegan failed to respond truthfully to 

inquiries during voir dire.

None of the post-trial statements establish that a juror answered a 

question dishonestly during voir dire.

 

308 5RR66-83. 

309 Pet. Ex. 94 at 007738-007739. 310 See Morgan v. Illinois, 504 U.S. 719, 729 (1992) (“A juror who will automatically 

vote for the death penalty in every case will fail in good faith to consider the evidence of 

aggravating and mitigating circumstances as the instructions require him to do.”).

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VII

Austin contends that the district court erred in denying his request for 

an evidentiary hearing (Issue 1). Section 2254(e)(2) controls whether a habeas 

petitioner may receive an evidentiary hearing in federal district court on the 

claims for which the applicant failed to develop the factual basis in state 

courts.311 It “constrains the discretion of district courts to grant evidentiary 

hearings,” even “[w]here section 2254(d) does not apply.”312 The phrase “failed 

to develop” means a “lack of diligence, or some greater fault, attributable to the 

prisoner or the prisoner’s counsel.”313

The parties dispute whether Austin was diligent in pursuing his 

competency claims, such that § 2254(e)(2) does not apply. We need not resolve 

the issue with regard to Austin’s incompetency claims. “A district court may 

refuse an evidentiary hearing where there is not ‘a factual dispute which, if 

resolved in [the prisoner’s] favor, would entitle him to relief.’”314 We note that 

the district court granted Austin time and funding to investigate his claims,315

and concluded that an evidentiary hearing was unnecessary to resolve the 

claims presented in his petition.316 Austin still fails to adduce evidence that 

creates a factual dispute that, if resolved in his favor, would entitle him to 

relief on his competency claim. Austin’s experts certainly opine that he 

 

311 Williams v. Taylor, 529 U.S. 420, 429 (2000); Norman v. Stephens, 817 F.3d 226, 

234 (5th Cir. 2016).

312 Loden v. McCarty, 778 F.3d 484, 494 (5th Cir. 2015); see also Cullen v. Pinholster, 

563 U.S. 170, 185-86 (2011) (“At a minimum, . . . § 2254(e)(2) still restricts the discretion of 

federal habeas courts to consider new evidence when deciding claims that were not 

adjudicated on the merits in state court.”).

313 Norman, 817 F.3d at 234 (quoting Williams, 529 U.S. at 432). 314 Id. at 235 (quoting Clark v. Johnson, 202 F.3d 760, 766 (5th Cir. 2000)).

315 ROA.1915; ROA.1924.

316 ROA.2747-48; ROA.2766 (noting that the court would “call for an evidentiary 

hearing if it determines that one is necessary”). 

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suffered from depression and suicidality. But, as previously discussed, mere 

presence of mental illness does not render a defendant incompetent. The 

district court did not abuse its discretion in denying an evidentiary hearing on 

the issue of competence.

With respect to the jury bias claim, it appears that Austin pursued an 

evidentiary hearing in the federal district court only on the issue of 

competence.317 Austin now concedes that further factual development with 

regard to his juror bias claim is not necessary.318 However, out of an 

abundance of caution, and to the extent he sought an evidentiary hearing in 

relation to his juror bias claims in his briefing in our court,319 we address 

whether the district court erred in failing to conduct an evidentiary hearing 

regarding juror bias. We conclude that the district court did not abuse its 

discretion in denying an evidentiary hearing.

We can determine from the record that the post-trial juror statements at 

issue can be reconciled with each juror’s statements during voir dire. Further 

factual development in an evidentiary hearing is not warranted. Austin does 

not identify another factual dispute regarding his juror bias claim which might 

independently require further factual development.

* * *

For the foregoing reasons, we AFFIRM the district court’s judgment 

denying relief on Austin’s claims.

 

317 ROA.2126-31 (motion for evidentiary hearing); ROA.2133 (exhibit list for Austin’s 

motion showing exhibits appearing to relate only to Austin’s mental health).

318 Oral Argument at 25:40 (July 12, 2017).

319 Austin Br. at 47 (“Another factual dispute requiring relief if decided in Petitioner’s 

favor is whether jurors in the case were biased, in particular, whether the disqualifying bias 

they now express was present at the time of trial.”).

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PRISCILLA R. OWEN, Circuit Judge, concurring:

I write separately to provide additional reasons that habeas relief should 

be denied in this case.

I

In Pena–Rodriguez, the Supreme Court observed that before Rule 

606(b)’s adoption the Court had “noted the possibility of an exception to the 

[common-law no-impeachment rule] in the ‘gravest and most important 

cases.’”1 “Yet since the enactment of Rule 606(b),” the Court continued, it “has 

addressed the precise question whether the Constitution mandates an 

exception to [the common-law no-impeachment rule] in just two instances.”2 

Those two instances were Tanner,3 in which “the Court rejected a Sixth 

Amendment exception for evidence that some jurors were under the influence 

of drugs and alcohol during the trial,”4 and Warger,5 in which “[t]he Court 

again rejected the argument that, in the circumstances there, the jury trial 

right required an exception to the no-impeachment rule.”6 The Court had 

noted in Warger that “[t]here may be cases of juror bias so extreme that, almost 

by definition, the jury trial right has been abridged. If and when such a case 

arises, the Court can consider whether the usual safeguards are or are not 

sufficient to protect the integrity of the process.”7 Neither the Supreme Court 

 

1 Pena–Rodriguez v. Colorado, 137 S. Ct. 855, 865-66 (2017) (quoting United States v. 

Reid, 12 How. 361, 366, 13 L. Ed. 1023 (1852) and McDonald v. Pless, 238 U.S. 264, 269 

(1915)).

2 Id.

3 Tanner v. United States, 483 U.S. 107 (1987).

4 Pena–Rodriguez, 137 S. Ct. at 866 (citing Tanner, 483 U.S. at 125).

5 Warger v. Shauers, 135 S. Ct. 521 (2014).

6 Pena–Rodriguez, 137 S. Ct. at 866 (citing Warger, 135 S. Ct. at 529).

7 Warger, 135 S. Ct. at 529 n.3.

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nor this court has recognized an exception to Rule 606(b) in a case like the 

present one.

An exception to the no-impeachment rule should not be recognized here. 

Even assuming arguendo that one or more of the five jurors answered a 

material question dishonestly during voir dire, habeas relief remains 

unwarranted. The record amply supports, and in fact compels, the conclusion 

that Austin had resolved to accept all jurors that the State accepted and that 

if, during voir dire, the five jurors had expressed the views contained in their 

post-trial statements, Austin would not have challenged any of those jurors for 

cause, because Austin’s trial strategy was to obtain the death penalty. Austin 

cannot now claim in a habeas proceeding that had he known the jurors’ actual 

views, or had he known that they had predilections and a bias in favor of the 

death penalty, he would have challenged them for cause and thereby preserved 

the issue for appeal or collateral review. The record is clear that he would not 

have challenged any of the five jurors for cause during the trial even had there 

been a basis for doing so.

It is undisputed that when voir dire occurred, Austin intended to plead 

guilty, and after the jurors were seated, Austin entered a guilty plea in their 

presence. The jury was empaneled only to decide whether Austin would 

receive a life sentence or a death sentence. During closing arguments, Austin 

personally argued to the jury that, because of the nature of his crime and 

because of his past and future dangerousness, it should answer the two 

questions submitted in a way that would require imposition of the death 

penalty. The Supreme Court has never held that, consistent with a defendant’s 

trial strategy, a defendant may knowingly accept a biased juror and then, after 

a change of heart in collateral proceedings, obtain automatic reversal because 

of that juror’s bias.

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To the contrary, the Supreme Court explained in McDonough Power 

Equipment, Inc. v. Greenwood, the primary case on which Austin relies, that 

“[i]t is not clear from the opinion of the Court of Appeals whether the 

information stated in Greenwood’s affidavit was known to respondents or their 

counsel at the time of the voir dire examination.”8 Importantly, the Court 

admonished that “[i]f it were, of course, [defendants] would be barred from 

later challenging the composition of the jury when they had chosen not to 

interrogate [the potentially biased juror] further upon receiving an answer 

which they thought to be factually incorrect.”9 The Supreme Court cited a 

decision from the Eighth Circuit in support of this conclusion,10 which held 

that “‘[t]he right to challenge the panel or to challenge a particular juror may 

be waived, and in fact is waived by failure to seasonably object.’”11 The Eighth 

Circuit explained that

It is established that failure to object at the time the jury is 

empaneled operates as a conclusive waiver if the basis of the 

objection is known of [sic] might have been known or discovered 

through the exercise of reasonable diligence, or if the party is 

otherwise chargeable with knowledge of the ground of the 

objection.12

 

8 McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548, 550 n.2 (1984).

9 Id.

10 Id. (citing Johnson v. Hill, 274 F.2d 110, 115-116 (8th Cir. 1960)).

11 Johnson, 274 F.2d at 116 (quoting Batsell v. United States, 217 F.2d 257, 260 (8th

Cir. 1954) (citing Carruthers v. Reed, 102 F.2d 933, 939 (8th Cir. 1939))).

12 Id. (quoting Batsell, 217 F.2d at 260 (citing 50 C.J.S. Juries § 251)); see also United 

States v. Pennington, 168 F.3d 1060, 1067 (8th Cir. 1999) (holding in a direct criminal appeal 

that the defendant “waived this [juror bias] issue by not challenging the juror when the jury 

was empaneled because the basis for the objection was then known”). But see Franklin v. 

Anderson, 434 F.3d 412, 426-28 (6th Cir. 2006) (holding in a habeas proceeding that a juror 

“was biased because she could not understand the law,” that “[t]here is no situation under 

which the impaneling of a biased juror can be excused,” that “the State can [accordingly] 

make no argument that [the defendant’s] trial counsel acted strategically in keeping [the 

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Similarly, the Eleventh Circuit has held that reversal of a verdict is 

inappropriate when a defendant permits a potentially or actually biased juror 

to be seated as part of trial strategy.13

The point of citing these authorities is twofold. First, Austin may well 

have elicited the same information that is contained in the jurors’ post-trial 

statements had he questioned these jurors during voir dire.14 Second, and 

more importantly, even had the jurors expressed during voir dire what they 

said in their post-trial statements, Austin would have had to have asserted a 

challenge for cause to have preserved a claim of juror bias for consideration on 

appeal or in a habeas proceeding. The record establishes that Austin would 

not have challenged them for cause.

Prior to trial Austin declared that he would accept every juror that the 

State accepted and that he would not exercise any peremptory challenges.15

During voir dire at least two of the jurors that Austin now contends were biased 

made statements that should have at least prompted inquiry, if not challenges 

for cause, by Austin regarding bias or pre-judgment of the issues to be decided 

by the jury.

During the voir dire of Juror Erwin, the following exchange occurred:

ERWIN: There’s a few cases I think you should get the death 

penalty, but that’s just me. 

 

biased juror] on the panel” and that “[t]o permit this would be to allow trial counsel to waive 

the defendant’s right to an impartial jury”).

13 See generally United States v. Simmons, 961 F.2d 183, 186 (11th Cir. 1992) (holding 

that a district court did not commit plain error by failing to excuse, sua sponte, certain jurors 

for cause, because defense counsel’s failure to exercise two remaining peremptory strikes 

“may well have been a strategic decision to retain the four jurors in question”).

14 See generally Robinson v. Monsanto Co., 758 F.2d 331, 335 (8th Cir. 1985) (holding 

in a civil case that “the right to challenge a juror is waived by failure to object at the time the 

jury is empaneled if the basis for objection might have been discovered during voir dire”).

15 See generally Reporter’s Record vols. 3-8; CR at 20.

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PROSECUTION: Okay, and that would be what? What 

cases would those be?

ERWIN: Anything had to do with hurting the elderly—

PROSECUTION: Okay.

ERWIN: —or kids.

PROSECUTION: Children?

ERWIN: Children.

Similarly, during the voir dire of Juror Finnegan, this exchange 

occurred:

PROSECUTION: Okay. All right. Now, why don’t you tell 

me, Mr. Finnegan, if you will, what your feelings are about the 

death penalty and what purpose do you think it serves in our 

society?

FINNEGAN: Feelings?

PROSECUTION: Yes, sir. 

FINNEGAN: First, it’s a necessary evil—

PROSECUTION: Okay. 

FINNEGAN: —I would say. And the reason being is that I’m 

a—what right do I have to take another life? However, along those 

same lines, there are certain crimes which I consider heinous 

crimes which I think the person, if he or she has absolutely no 

remorse and possesses [sic] a continuing threat, I could absolutely 

be in favor of.

PROSECUTION: [W]hen you say “heinous crimes,” what 

types of offenses came to your mind where you thought the death 

penalty might be appropriate?

FINNEGAN: Violent crimes against a child.

PROSECUTION: Okay.

FINNEGAN: That would be, you know—and purely innocent 

type of victim without any defense, something along those lines. 

That’s what first issue came to my mind. 

Though Austin’s sentence for the murder of a child would depend on the 

jury’s findings in favor of either life or death, Austin remained silent 

throughout voir dire. He has offered no reason for failing to question Erwin or 

Finnegan as to the views they expressed during voir dire regarding the death 

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penalty when a child was the victim. He has not asserted in habeas 

proceedings that his counsel (himself) was ineffective for failing to question 

these jurors during voir dire or for failing to challenge them for cause. His only 

contention is that, if he had known during voir dire the substance of the five 

jurors’ post-trial statements, he would have had grounds to challenge each of 

them for cause. If grounds to remove them for cause did exist, and had those 

grounds been revealed during voir dire, then it would have been incumbent 

upon Austin actually to raise challenges for cause. Otherwise, as the Eighth 

Circuit cogently explained, “‘[i]f a defendant is allowed to . . . forego challenges 

for-cause to a biased juror and then allowed to have the conviction reversed on 

appeal because of that juror’s service, that would be equivalent to allowing the 

defendant to plant an error and grow a risk-free trial.’”16

It rings hollow for Austin now to contend that had he known the five 

jurors’ views he would have challenged them for cause. Austin’s actions, and 

more importantly inactions, in declining to ask any questions during voir dire, 

deciding before trial to accept all jurors the State accepted, and declining to 

exercise any preemptory challenges are entirely consistent with his trial 

strategy, which he set forth in letters to the trial court. Prior to trial, Austin 

advised the trial court that he was “still firm about [his] decision to not fight 

this case” and that “since [he was] not going to put up any type of defense,” he 

had “decided that it [was] not necessary for [him] to review [his] case file.”17

The Supreme Court has never held that juror bias is structural error 

requiring automatic reversal. In addition to its discussion in McDonough,18

 

16 United States v. Johnson, 688 F.3d 494, 501-02 (8th Cir. 2012) (quoting United 

States v. Brazelton, 557 F.3d 750, 755 (7th Cir. 2009) (internal quotations marks and citations 

omitted)).

17 CR at 58 (letter from Austin to the trial court dated Feb. 19, 2002).

18 McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 550 n.2 (1984).

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the Supreme Court has indicated that when grounds for cause to challenge a 

juror are apparent, the defendant must properly preserve his right to challenge 

for cause. 

In Ross v. Oklahoma, a defendant in a capital case moved to excuse a 

potential juror for cause because that member of the venire “declared that if 

the jury found [the defendant] guilty, he would vote to impose death 

automatically.”19 When the trial court refused to excuse the potential juror for 

cause, the defendant exercised a peremptory challenge to prevent the seating 

of that individual on the jury.20 The Supreme Court’s actual holding in Ross

was that the trial court had erred in refusing to strike the person for cause, but 

the Court “reject[ed] the notion that the loss of a peremptory challenge 

constitutes a violation of the constitutional right to an impartial jury” because 

“[w]e have long recognized that peremptory challenges are not of constitutional 

dimension.”21 The Court concluded that “[s]o long as the jury that sits is 

impartial, the fact that the defendant had to use a peremptory challenge to 

achieve that result does not mean the Sixth Amendment was violated.”22 The 

Court also said that “[i]t is well settled that the Sixth and Fourteenth 

Amendments guarantee a defendant on trial for his life the right to an 

impartial jury,”23 but the sentence following that statement contained 

qualifiers material to the inquiry presently before us. The Court said, “[h]ad 

[the biased juror] sat on the jury that ultimately sentenced [the defendant] to 

death, and had the petitioner properly preserved his right to challenge the trial 

 

19 Ross v. Oklahoma, 487 U.S. 81, 83-84 (1988).

20 Id. at 84.

21 Id. at 88.

22 Id.

23 Id. at 85.

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court’s failure to remove [the biased juror] for cause, the sentence would have 

to be overturned.”24 The prerequisite in the Court’s analysis of when a 

sentence would have to be overturned was a challenge for cause that was 

denied by the trial court.

The Supreme Court also discussed in Ross the requirement of Oklahoma 

law “that a defendant who disagrees with the trial court’s ruling on a for-cause 

challenge must, in order to preserve the claim that the ruling deprived him of 

a fair trial, exercise a peremptory challenge to remove the juror,” and that 

“[e]ven then, the error is grounds for reversal only if the defendant exhausts 

all peremptory challenges and an incompetent juror is forced upon him.”25

In United States v. Martinez–Salazar, the Supreme Court reiterated that 

reversal would be “require[d]” when (1) a biased juror is seated after (2) the 

trial court erroneously overruled an objection that the juror should be excused 

for cause.26 In Martinez–Salazar, a potential juror had indicated repeatedly 

and consistently that he would favor the prosecution,27 and the trial court erred 

in failing to dismiss that person for cause.28 The actual holding of the Supreme 

Court was that even though the defendant used a peremptory challenge to 

remove the biased member of the venire and subsequently exhausted his 

remaining peremptory challenges, the defendant was “not deprived of any 

rule-based or constitutional right,” because the jury that convicted him did not 

 

24 Id. (emphasis added).

25 Id. at 89 (citing Ferrell v. State, 475 P.2d 825, 828 (Okla. Crim. App. 1970) and Stott 

v. State, 538 P.2d 1061, 1064-1065 (Okla. Crim. App. 1975)).

26 United States v. Martinez–Salazar, 528 U.S. 304, 316 (2000) (citing Ross v. 

Oklahoma, 487 U.S. 81, 85 (1988)).

27 Id. at 308.

28 Id. at 307 (“We focus on this sequence of events: the erroneous refusal of a trial 

judge to dismiss a potential juror for cause, followed by the defendant’s exercise of a 

peremptory challenge to remove that juror.”).

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include a biased juror.29 But, in dicta, the Court discussed when the seating of 

a biased juror “would require reversal.”30 The Court first stated that had the 

district court’s erroneous refusal to dismiss the potential juror for cause 

“result[ed] in the seating of [a] juror who should have been dismissed for 

cause,” then “that circumstance would require reversal.”31 The “circumstance” 

requiring reversal included the denial of a challenge for cause. The Court then 

quoted its statement in Ross: “‘Had [the biased juror] sat on the jury that 

ultimately sentenced petitioner to death, and had petitioner properly 

preserved his right to challenge the trial court’s failure to remove [the juror] 

for cause, the sentence would have to be overturned.’”32

The Supreme Court’s listings of “structural errors” that require 

automatic reversal do not include jury bias, either when it is raised in a direct 

appeal or in habeas proceedings.33 A plurality opinion of the Supreme Court 

 

29 Id.

30 Id. at 316.

31 Id. (quoting Ross, 487 U.S. at 85).

32 Id. (alterations in original) (quoting Ross v. Oklahoma, 487 U.S. 81, 87 (1988)).

33 See, e.g., Weaver v. Massachusetts, 137 S. Ct. 1899, 1907-09, 1911 (2017) (explaining 

in a habeas proceeding that “[t]he purpose of the structural error doctrine is to ensure 

insistence on certain basic, constitutional guarantees that should define the framework of 

any criminal trial”; identifying “three broad rationales” for why the Court has sometimes 

deemed a particular error structural: (1) when “the right at issue is not designed to protect 

the defendant from erroneous conviction but instead protects some other interest” and, “when 

exercised, ‘usually increases the likelihood of a trial outcome unfavorable to the defendant,’” 

such as “the defendant’s right to conduct his own defense”; (2) when the “effects of the error 

are simply too hard to measure,” such as the denial of a defendant’s “right to select his or her 

own attorney”; and (3) when “the error always results in fundamental unfairness,” such as 

denying an indigent defendant an attorney or failing “to give a reasonable-doubt instruction”; 

emphasizing that “[a]n error can count as structural even if the error does not lead to 

fundamental unfairness in every case”; and holding that “when a defendant raises a 

public-trial violation via an ineffective-assistance-of-counsel claim, Strickland prejudice is 

not shown automatically”); United States v. Davila, 569 U.S. 597, __, 133 S. Ct. 2139, 2149 

(2013) (explaining that the Court has “characterized as ‘structural’ ‘a very limited class of 

errors’ that trigger automatic reversal because they undermine the fairness of a criminal 

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said in a direct criminal appeal that “[t]he right to an impartial adjudicator, be 

it judge or jury, is” among the constitutional rights can never be treated as 

harmless error.34 But the Court has not held that automatic reversal is 

required whenever a biased juror is seated and a verdict is rendered by that 

jury. In Gomez v. United States, the Supreme Court quoted the plurality 

opinion in Gray,35 but Gomez did not involve a biased juror. The Court held in 

Gomez, a direct criminal appeal, that the harmless error rule did not apply 

when, over the objection of the defendant, a magistrate judge exceeded his 

jurisdiction when he presided over the selection of a jury in a criminal case.36

Prior to the Supreme Court’s decision in Olano,37 more than one federal 

Circuit Court of Appeals held in the context of a direct criminal appeal that a 

defendant’s failure to raise a juror’s lack of impartiality would not be 

considered if the issue was not raised at trial and the factual basis of the bias 

claim was known at the time of trial. In United States v. Uribe, a direct 

criminal appeal involving convictions for drug trafficking, one of the 

 

proceeding as a whole” and observing that “[e]rrors of this kind include denial of counsel of 

choice, denial of self-representation, denial of a public trial, and failure to convey to a jury 

that guilt must be proved beyond a reasonable doubt”) (citations omitted); Neder v. United 

States, 527 U.S. 1, 8 (1999) (identifying as structural errors “complete denial of counsel,” 

“biased trial judge,” “racial discrimination in selection of grand jury,” “denial of selfrepresentation at trial,” “denial of public trial,” and “defective reasonable-doubt instruction”). 

But see, e.g., Gray v. Mississippi, 481 U.S. 648, 668 (1987) (BLACKMUN, J., plurality opinion). 

(holding in a direct criminal appeal that a harmless-error analysis did not apply when a state 

trial court excused a prospective juror for cause even though the juror was qualified to serve 

and had not exhibited bias).

34 Gray, 481 U.S. at 668.

35 Gomez v. United States, 490 U.S. 858, 876 (1989) (quoting Gray, 481 U.S. at 668).

36 Id.

37 United States v. Olano, 507 U.S. 725, 732-37 (1993) (explaining, in a direct criminal 

appeal, the plain-error doctrine embodied in FED. R. CRIM. P. 52(b), and setting forth its 

elements).

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defendants, Rave, recognized a juror during empanelment,38 but Rave did not 

“raise the matter” in the trial court.39 After a guilty verdict was returned, the 

juror testified that he had rented a hoist to Rave and “experienced some 

problems getting it back,” but “that, after some travail, Rave returned the 

equipment and paid for its use.”40 There was also evidence that there were 

“hard feelings” between this juror and another defendant with whom Rave was 

jointly tried because the other defendant had not paid the juror for automobile 

repairs.41 The First Circuit held that “[a]lthough Rave . . . attempts to argue 

that [the juror’s] presence tainted his conviction, he never raised the matter 

below. He is, therefore, foreclosed on appeal.”42 The court reasoned that 

“[s]urely, the raise-or-waive rule is fully operative in respect to these rulings”43

and that the “plain-error doctrine [is] to be invoked ‘sparingly’ and only to avert 

‘miscarriage of justice.’”44

Similarly, in United States v. Rodriguez-Garcia, a direct criminal appeal 

decided before Olano, the Tenth Circuit affirmed a conviction and refused to 

consider a claim of juror bias raised for the first time on appeal when the basis 

for the bias could have been pursued with the trial court.45 In that case, the 

defendant contended “that he did not receive an impartial jury as guaranteed 

by the Sixth Amendment and [was] therefore entitled to a new trial” because 

he knew and had worked at a hospital with one of the jurors, and that juror 

 

38 890 F.2d 554, 560 (1st Cir. 1989).

39 Id. at 560 n.4.

40 Id. at 560.

41 Id.

42 Id. at 560 n.4.

43 Id. (citing United States v. Griffin, 818 F.2d 97, 100 (1st Cir. 1987) and United States 

v. Frady, 456 U.S. 152, 163 n. 14 (1982)).

44 Id. (quoting Frady, 456 U.S. at 163 n.14).

45 United States v. Rodriguez–Garcia, 983 F.2d 1563, 1572-73 (10th Cir. 1993).

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had not admitted to knowing him.46 The defendant’s “counsel failed to 

challenge this juror” and raised the “claim of juror bias” for the first time on 

appeal.47 The Tenth Circuit reasoned that “[t]his court has observed that 

‘there may be situations where the litigant waives any objection to the 

composition of the jury by failing to pursue the matter in timely fashion [which] 

is consistent with the general rule that a defendant, by accepting a jury, waives 

his right to object to the panel.’”48 This decision likewise indicates that the 

Tenth Circuit did not view potential juror bias known to a defendant or counsel 

as automatically requiring reversal when no for-cause challenge was raised in 

the trial court.49

Even after Olano, as discussed above, the Eighth Circuit has held that 

when the basis for a bias claim is known at the time of trial and no for-cause 

challenge is made, a defendant cannot obtain reversal on appeal, because that 

would be tantamount to insuring a risk-free trial.50 In Johnson, Juror S.R. 

stated during voir dire that there was a possibility that she could not be 

objective and might give more weight or find more credible the testimony of a 

law enforcement officer because her former roommate and very good friend was 

a parole and probation officer.51 The Eighth Circuit concluded that “by failing 

 

46 Id. at 1572.

47 Id.

48 Id. at 1572-73 (alteration in original) (quoting United States v. Diaz–Albertini, 772 

F.2d 654, 657 (10th Cir. 1985)).

49 See also United States v. Harris, 530 F.2d 576, 579-80 (4th Cir. 1976) (rejecting in 

a direct criminal appeal the defendant’s contention that “one of the jurors knew him before 

trial and may have been prejudiced against him,” reasoning that “[w]here the basis for a 

challenge to a juror could be timely shown the failure of the defendant to object at the 

inception of the trial constituted a waiver of his right to challenge the constitution of the 

jury”).

50 See United States v. Johnson, 688 F.3d 494, 501-02 (8th Cir. 2012).

51 Id. at 500.

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to object to the seating of Juror S.R. during voir dire, [the defendant] 

‘intentional[ly] relinquish[ed] or abandon[ed] . . . a known right’” within the 

meaning of Olano and “thereby waived his right to challenge the impaneling 

of an allegedly biased juror on direct appeal.”52 The Eighth Circuit also 

disavowed a prior decision in a habeas proceeding that had reasoned “[w]hen 

a defendant fails to object to the qualifications of a juror, he is without remedy 

only if he fails to prove actual bias,” reasoning that the habeas decision was 

contrary to an earlier opinion of the Eighth Circuit, which controlled.53 The 

court further expressed its conclusion that the earlier decision correctly set 

forth the standard of review since otherwise a defendant could choose to 

withhold an objection for cause, await a verdict, then appeal and reverse an 

adverse judgment.54

In the present case, the district court denied Austin’s juror bias claim on 

the sole basis that “Austin had an opportunity to question the potential jurors, 

and challenge those he thought unsuitable, but he chose not to do so”55 and 

that “[h]e has therefore waived this claim.”56 In our order granting a COA on 

Austin’s juror bias issue, we said that “claims based on actual bias, as opposed 

to implied bias, are not waived by a failure to object during voir dire.”57 This 

was not intended as an all-encompassing, broadly sweeping proposition of law. 

The sole decision we cited for this statement was vacated in its entirety by the 

 

52 Id. at 501.

53 Id. (citing and quoting Johnson v. Armontrout, 961 F.2d 748, 751 (8th Cir. 1992)).

54 Id. at 501-02. But see United States v. Brown, 26 F.3d 1124, 1126 (D.C. Cir. 1994) 

(concluding that “plain error analysis is applicable to a sixth amendment claim not raised at 

trial”).

55 ROA.2799 (citing 3 Tr. at 3-79; 4 Tr. at 3-66; 5 Tr. at 3-90).

56 Id.

57 Austin v. Davis, 647 F. App’x 477, 493 (5th Cir. 2016).

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grant of en banc rehearing in our court58 and therefore was not a precedential 

decision. Additionally, the statement in the vacated opinion was dicta.59 A 

claim of actual bias may be raised even if no objection was made during voir 

dire, depending on the facts of a particular case and its procedural posture. 

This would be the case, for example, when neither a defendant nor her counsel 

had a reason to know of the bias and voir dire questioning would not have 

revealed the bias. But the decided weight of the authorities in this area, 

discussed above, concludes that there are circumstances when the failure to 

object or move to strike a juror for cause precludes reversal of the verdict on 

appeal or in habeas proceedings based on juror bias.

To be clear, I am not suggesting that Austin waived his claim of juror 

bias by failing to question the jurors during voir dire. Rather, an alternate 

ground for affirming the district court’s judgment regarding the jury bias claim 

is that one of McDonough’s requirements—that besides showing “that a juror 

failed to answer honestly a material question on voir dire” a claimant must 

“further show that a correct response would have provided a valid basis for a 

challenge for cause”60—necessarily assumes that, had voir dire provided a 

valid basis for making a for-cause challenge, the claimant would have made 

the challenge. Because Austin made a conscious decision as a matter of trial 

strategy to accept all jurors accepted by the State, and because the record 

supports the conclusion that Austin would not have challenged the jurors for 

cause had they expressed during voir dire what they expressed in the post-trial 

 

58 Id. at 493 n.64 (citing United States v. Wilson, 116 F.3d 1066, 1086-87 (5th 

Cir.1997), rev'd on other grounds, United States v. Brown, 161 F.3d 256, 258 (5th Cir.1998) 

(en banc)).

59 See Wilson, 116 F.3d at 1087.

60 McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 556 (1984).

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statements, Austin cannot now say that he has met McDonough’s 

requirements.

II

It is unclear whether, in a habeas proceeding, a defendant would be 

entitled to have a jury’s verdict set aside upon establishing the elements of 

McDonough, without an assessment of the impact of the constitutional error 

on the state-court criminal trial. It is also unclear whether 28 U.S.C. § 2111 

applies. It provides that “[o]n the hearing of any appeal or writ of certiorari in 

any case, the court shall give judgment after an examination of the record 

without regard to errors or defects which do not affect the substantial rights of 

the parties.”61 It would seem that in many if not most cases when both prongs 

of McDonough are met the impact on the trial would obviously be injurious or 

the substantial rights of a party would be affected. But the present case is a 

relatively unusual one. To the extent that the analysis set forth by the 

Supreme Court in Fry v. Pliler,62 and Brecht v. Abrahamson63 applies, any 

constitutional error that occurred because any one of the five challenged jurors 

participated in the verdict did not have a substantial and injurious impact on 

the verdict.

In assessing harmlessness on direct review, the Government bears the 

burden of proving that a constitutional error was “harmless beyond a 

reasonable doubt.”64 On collateral review, however, “concerns about finality, 

comity, and federalism,”65 mandate that a federal habeas petitioner bears the 

 

61 28 U.S.C. § 2111.

62 551 U.S. 112 (2007).

63 507 U.S. 619 (1993).

64 Chapman v. California, 386 U.S. 18, 24 (1967).

65 Fry v. Pliler, 551 U.S. 112, 116 (2007).

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burden, and the standard is whether the error actually prejudiced him.66 To 

determine whether an error actually prejudiced the petitioner, courts inquire 

whether the error had “a substantial and injurious effect or influence” on a jury 

verdict,”67 meaning “there is more than a mere reasonable possibility that it 

contributed to the verdict.”68

In this case, Austin’s guilt was not in question. He pled guilty. During 

the trial on the question of the appropriate penalty—life or death—Austin 

consistently vocalized and pursued a strategy designed to persuade the jury to 

answer the Texas special issues such that he received the death penalty. 

Austin did not testify.69 He did cross-examine one witness and make a closing 

statement; during both, he only contested the State’s suggestion to the jury 

that he was a pedophile.70 Austin expressed to the jury at closing that he would 

kill again and explained why the jury should answer the special issues such 

that he received a death sentence.71 Although some evidence of Austin’s 

 

66 Brecht v. Abrahamson, 507 U.S. 619, 637 (1993); see also Fry, 551 U.S. at 117, 121-

22 (noting that Brecht “clearly assumed that the Kotteakos standard would apply in virtually 

all § 2254 cases” and “suggested an exception only for the ‘unusual case’ in which ‘a deliberate 

and especially egregious error of the trial type, or one that is combined with a pattern of 

prosecutorial misconduct, . . . infects the integrity of the proceeding’” and holding that the 

Brecht standard applies “whether or not the state appellate court recognized the error and 

reviewed it for harmlessness under the ‘harmless beyond a reasonable doubt’ standard set 

forth in Chapman”); Hogue v. Johnson, 131 F.3d 466, 498-99 (5th Cir. 1997) (concluding that 

the Brecht standard applies to determine whether a constitutional error was harmless in a 

federal habeas challenge even when no state court reviewed petitioner’s claim and therefore 

never determined whether the error was harmless).

67 Brecht, 507 U.S. at 637; see also Fitzgerald v. Greene, 150 F.3d 357, 366 (4th Cir. 

1998) (“Based upon the forgoing circumstances, combined with the overwhelming evidence of 

Fitzgerald’s guilt, his propensity for future dangerousness, and the vileness of his crimes, we 

are confident that Bradshaw’s presence on the jury did not result in actual prejudice to 

Fitzgerald.”).

68 Woods v. Johnson, 75 F.3d 1017, 1026 (5th Cir. 1996) (emphasis in original); see also

United States v. Bowen, 799 F.3d 336, 356 (5th Cir. 2015).

69 10RR78.

70 9RR125-26; 11RR15-18.

71 11RR16, 19-20.

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mental health history was presented to the jury during the sentencing phase, 

Austin himself presented no mitigating evidence. It cannot be said that any 

error had a substantial and injurious effect on the verdict.

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