### 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 INSTITU TIONS 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 pet ition. 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 Case: 13-70024 Document: 00514256173 Page: 1 Date Filed: 11/30/2017No. 13

- 70024

2 I
We briefly re count 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 additiona l twenty

year 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. [A ustin stated if that was not guaranteed, h e would kill a prison guard as a way of guarantee ing 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 Austi n 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). Case: 13-70024 Document: 00514256173 Page: 2 Date Filed: 11/30/2017No. 13

- 70024

3 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
indic ated 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 prolon ged 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 Aust in 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. Case: 13-70024 Document: 00514256173 Page: 3 Date Filed: 11/30/2017No. 13

- 70024

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

co uld 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 cont est 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 co unsel’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 de cide 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
note d 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 (evaluat ion conducted on September 20, 2001).
19 CR at 24

- 25.
20 CR at 26. Case: 13-70024 Document: 00514256173 Page: 4 Date Filed: 11/30/2017No. 13

- 70024

5 Austin displayed no “bizarre verbalizations,” hallucinations, or delusions typically indicati ve 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, t he 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 expe rience 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 ma de 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 de fendant’” 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 err or (quoting McKaskle v. Wiggins , 465 U.S. 168, 177 n.8 (1984))).
26 2RR3 (hearing held October 11, 2001).
27 2RR4. Case: 13-70024 Document: 00514256173 Page: 5 Date Filed: 11/30/2017No. 13

- 70024

6 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
himse lf 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 Austi n 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 sta te 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 t reated 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, m a’am.
32 2RR14

- 15; CR at 32

- 33. Case: 13-70024 Document: 00514256173 Page: 6 Date Filed: 11/30/2017No. 13

- 70024

7 material needed to execute [his] defen se.” 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 sta ted that he would like Arnold removed as his advis or 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 s election. 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 i ssues 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 con sideration 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 ins tead 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 Repor ter’s Records ( voir dire beginning Mar. 18, 2002).
39 3RR4. Case: 13-70024 Document: 00514256173 Page: 7 Date Filed: 11/30/2017No. 13

- 70024

8 death sentence be imposed .” 40 Each juror answered, under oath, that he or she could impartially decide whether Au stin 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 addition al details regarding the offense, including that D.K was nine years old when he was
killed. 50 It also introduced the letter S e rge a nt Allen received from Austin in

40 T EX

. C ODE C RIM

. P RO C

. A NN

. 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 se ntence); 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 fo llow 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 9R R7.
43 9RR4.

44 9RR4

- 7.
45 9RR4

- 5.
46 Id.
47 9RR6.
48 9RR7

- 15.
49 9RR16.
50 9RR17. Case: 13-70024 Document: 00514256173 Page: 8 Date Filed: 11/30/2017No. 13

- 70024

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

. K

. if guarantee d 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 r eligious 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 furth er 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 st ay 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 00000 5

- 0000 16.
55 Id. at 0000 20.
56 ROA.840

- 45.
57 ROA.852 (typed transcript of Feb. 21, 2002 interview with Austin cont ained in the federal district court’s record on appeal). Case: 13-70024 Document: 00514256173 Page: 9 Date Filed: 11/30/2017No. 13

- 70024

10 got tired, the drugs weren’t doing nothing really, they were n’ 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
sch ool,” 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 wa y[,] 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 moth er 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. Case: 13-70024 Document: 00514256173 Page: 10 Date Filed: 11/30/2017No. 13

- 70024

11 tell ing 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 ch ange. What I wanted to s ay 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 kil led 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 w as 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 conten tion 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 c o mmit further acts of violence.

. . . Jail is a violen t 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. Case: 13-70024 Document: 00514256173 Page: 11 Date Filed: 11/30/2017No. 13

- 70024

12 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 appoint ed 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

. T he TCCA affirmed his conviction, noting that Austin had chose n 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 purs uit of post

- conviction relief and t he 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 cou rt withdrew the
execution date and appointed Dick Wheelan as habeas counsel on September 24, 2003

. 80

72 11RR31; CR at 78

- 7 9.
73 12RR3, 8; CR at 84

- 85.
74 CR at 86; ROA.22; ROA.595.
75 See T EX

. C ODE C RIM

. P RO C

. A NN . 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, Finding s of Fact, Conclusion/Recommendation and Order, at 2 (June 29, 2004).
78 ROA.23; ROA.595

- 96.
79 ROA.596.
80 Id. Case: 13-70024 Document: 00514256173 Page: 12 Date Filed: 11/30/2017No. 13

- 70024

13 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 la ter 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 det ermined that March 22, 2004 was the filing deadline for Austin’s appl ication 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, 20 04. 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 hims elf 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 T EX

. C ODE C RIM

. P RO C

. A NN . 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; T EX

. C ODE C RIM

. P RO C

. A NN

. art 11.071, § 4(b) (West 1999) (“T he 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 he ard 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. Case: 13-70024 Document: 00514256173 Page: 13 Date Filed: 11/30/2017No. 13

- 70024

14 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 procedural ly defaulted in light of the TCCA’s denial of his state petition as untimely. 89 The district court
d enied 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 ba sed 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 se cond amended petition is otherwise the same as the first amended petition.
96 ROA.1687.
97 ROA.1838; ROA.3488 (sealed). Case: 13-70024 Document: 00514256173 Page: 14 Date Filed: 11/30/2017No. 13

- 70024

15 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 hist ory 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 evi d ence pertinent to Austin’s claims. After his suicide attempt in 1975, he was hosp italized 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 wi th 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 tr ial, 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 ame nded 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

- 0000 43.
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. Case: 13-70024 Document: 00514256173 Page: 15 Date Filed: 11/30/2017No. 13

- 70024

16 while awaiting trial

. 108 After he was convic ted, 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 coun seling 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 Seco nd 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 Amen ded 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

- mutilati on”), 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 u nit 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 T DC 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 (un cooperative); see also Docket Entry #47, Letter from Austin to the Fifth Circuit, received Sept. 17, 2014 (“I chose to abstain from medication and counseling

. . . .”). Case: 13-70024 Document: 00514256173 Page: 16 Date Filed: 11/30/2017No. 13

- 70024

17 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 prisoner 117 and was placed in administrative segregation from 1995 until 1998. He asserts that the co nditions 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 additi onal 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. Case: 13-70024 Document: 00514256173 Page: 17 Date Filed: 11/30/2017No. 13

- 70024

18 neuropsychologist, Dr. McGarrahan , 124 and a neuropsychiatrist, Dr. Woods,
both retained as part of hi s post

- conviction investigation . He also submitted,
i n his motion for an evidentiary hearing , affidavits prepared by Dr. McGarrahan and Dr. Woods in 2012

. 125 In her 2004 repor t , 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
li ve for. ’ ” 126 She opined that Austin’s “overall pattern of cognitive performance suggests dysfunction of pre

- frontal system s .” 127 Dr. McGarrahan described Austin’s thought processes as “goal

- directed, ” but noticed “ he evidenced brief delays in responding to q uestions 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 si gnificant 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 di sorder, 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 00777 9. Case: 13-70024 Document: 00514256173 Page: 18 Date Filed: 11/30/2017No. 13

- 70024

19 In his 2004 affidavit, Dr. Woods described Austin’s suicidal ideation and
suicidal behaviors and concluded that Austin’s desir e 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

con sequences 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 : [Austi n was not able to rationally assist in the preparation of his defense] g iven 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 we igh 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 dysfuncti on. 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 review ed 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. Case: 13-70024 Document: 00514256173 Page: 19 Date Filed: 11/30/2017No. 13

- 70024

20 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

stan d 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 inform ation 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 b een 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. Mc Garrahan 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 jud gments.” 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. Case: 13-70024 Document: 00514256173 Page: 20 Date Filed: 11/30/2017No. 13

- 70024

21 opined that Austi n’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 su mmary judgment to the State and denied Austin’s request for an evidentiary hearing. 147 Although t he district court held that the TCCA applied a new rule that could not be the basis of a procedura l 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 st ated : I wish to drop my appeals but can’t seem to get any type of response

n or cooperat ion. I have informed m y 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] hea ring 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, 2 012); 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). Case: 13-70024 Document: 00514256173 Page: 21 Date Filed: 11/30/2017No. 13

- 70024

22 I have just re cently 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

ca se/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]

. . . cou nsel to [abandon] the legal and factual propositions” advance d 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 withdr aw 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 waive r is knowing and voluntary.” 152 We subsequently received a letter from Austin,

149 Docket Entry # 47 (letter from Austin to the Fifth Circuit receiv ed 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). Case: 13-70024 Document: 00514256173 Page: 22 Date Filed: 11/30/2017No. 13

- 70024

23 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 competen cy 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 nece ssary 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 permitte d 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. Case: 13-70024 Document: 00514256173 Page: 23 Date Filed: 11/30/2017No. 13

- 70024

24 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 guarante ed 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 th is court requesting denial of his appe al. 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 th e court requesting a denial o f 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. Case: 13-70024 Document: 00514256173 Page: 24 Date Filed: 11/30/2017No. 13

- 70024

25 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 evalu ation 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 A nti

Terrorism and Effective Deat h 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 de termined 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 t he 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. 200 1)).
172 28 U.S.C. § 2254.
173 28 U.S.C. § 2254(d).
174 28 U.S.C. § 2254(e)(1). Case: 13-70024 Document: 00514256173 Page: 25 Date Filed: 11/30/2017No. 13

- 70024

26 Austin did no t 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 se ntence

. The federal claims presented in his state habeas petition were rejected by the TCCA on procedural grounds. Accordingly, t here has been no adjudication on the merits o f 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 Cod e of Criminal Procedure, art. 11.071, § 4(a) , which set s 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 aft er 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, i t 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 d efine “claim” for purposes of § 2244(b) and stating that both statutes together “make cl ear 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 mer its’ 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. 74 372, slip op. at 2

- 4 (Tex. Crim. App. May 26, 2004) (not designated for publication).
177 Id.
178 ROA.2777.
179 Id. Case: 13-70024 Document: 00514256173 Page: 26 Date Filed: 11/30/2017No. 13

- 70024

27 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 gro und 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) (Issue s 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 contend s 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 dis trict 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 Sta te 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 clai ms. 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. Case: 13-70024 Document: 00514256173 Page: 27 Date Filed: 11/30/2017No. 13

- 70024

28 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 again st him. ” 187 The Supreme Court
concluded in Maggio v. Fulford that competency to stand t rial 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 prompt ed 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 accord ing 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 Fulf ord , 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 find ing of competence is presumed to be correct.”). Case: 13-70024 Document: 00514256173 Page: 28 Date Filed: 11/30/2017No. 13

- 70024

29 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 orde rliness , 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 w e adhere t o 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 issu e 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 st and 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. Dretk e , 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 ev en 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 f act 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. Tha ler , 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, 34 1

- 42 (2003)). Case: 13-70024 Document: 00514256173 Page: 29 Date Filed: 11/30/2017No. 13

- 70024

30 presumed to be corr ect” 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 t rial 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 presumpti on 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 t he primary purpose of the hearing was to determine Austin’s ability to represent himself, 201 t he 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 reflect s 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 th at waiver of the right to counsel must be made competently, knowingly and voluntarily to be constitutionally effective). Case: 13-70024 Document: 00514256173 Page: 30 Date Filed: 11/30/2017No. 13

- 70024

31 court was evaluating whether Austin was competent to s tand 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 co mpetency

. 206 We conclude that the state court’s

c ompetency 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 wa s not competent to stand trial, waive counsel, or plead guilty. He contends that the evidence pr esented in his habeas petition

— including records of two s uicide attempts over twenty years before his capital murder trial as well as expert reports highlighti ng 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 Aus tin’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 fou nd 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 “i t has been [his] opinion from the first time [he] met him but out of an abundance of caution I requested the psychiatric evaluation”). Case: 13-70024 Document: 00514256173 Page: 31 Date Filed: 11/30/2017No. 13

- 70024

32 incompetent. 207 Austin cle arly demonstrated an understanding of the charges

ag ainst him and the possible consequences , as well as an ability to make strategic cho ices 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 wh at 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 demon strates 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 cir cuit has recognized that a defendant’s deliberate use of the system to obtain the death penalty is evidence of rationality, not incompetence. 210 Again, w e 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. Mi ssouri , 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. R EV . 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 re fusing 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. Dretk e , 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 w as “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”). Case: 13-70024 Document: 00514256173 Page: 32 Date Filed: 11/30/2017No. 13

- 70024

33 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 a nd 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.
Robinson 212 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 eviden ce 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 irr ational behavior, (2) the defenda nt’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 ho ld 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). Case: 13-70024 Document: 00514256173 Page: 33 Date Filed: 11/30/2017No. 13

- 70024

34 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 initi al 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 simi larly reject his procedural claim that the state trial

court was requir ed 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 cour t 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 fail ed 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). Case: 13-70024 Document: 00514256173 Page: 34 Date Filed: 11/30/2017No. 13

- 70024

35 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 ext ent 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 men tal 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 wi th 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 incompeten ce

. . . are
not ne cessarily 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) (c iting 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. R EV . 227, 236 (1974)))

. Case: 13-70024 Document: 00514256173 Page: 35 Date Filed: 11/30/2017No. 13

- 70024

36 conduct an additional hearing as to Austin’s competency does not w arrant 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
b efore 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 “n ot 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 ple a , 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) (quo ting 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. Case: 13-70024 Document: 00514256173 Page: 36 Date Filed: 11/30/2017No. 13

- 70024

37 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 convinc ing 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 punishmen t if convicted. 228 T he 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 knowin gly

. 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
incre ases the likelihood of a trial outco me 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, 5 98 (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. Case: 13-70024 Document: 00514256173 Page: 37 Date Filed: 11/30/2017No. 13

- 70024

38 right to self

- representation by the state trial court would have amounted to structural error requiring reversal. 234 Before accepting Austin’s guilty pl ea, the state trial court again confirmed that Austin understood the charges against him and the possible punishment. 235 It also admonished Austin that h e 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 m ind. 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 know ledge 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
invali d because they w ere 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 yo u 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. Case: 13-70024 Document: 00514256173 Page: 38 Date Filed: 11/30/2017No. 13

- 70024

39 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 let ter to the trial court approximately a month before the start of trial reflected he was no longer dissatisfied with the condition s of his confinement and no longer suffering from any depression. 242 Even with the complained

- of conditions removed, Austin
indi cated, 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

w as 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
distri ct 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 conc lusion, either then or now”).
242 See CR at 58.
243 Id.
244 28 U.S.C. § 2254(e)(1). Case: 13-70024 Document: 00514256173 Page: 39 Date Filed: 11/30/2017No. 13

- 70024

40 allegedly deficient performance because the evidence supported the state trial
court’s conclus ion that Austin was competent. We review the district court’s conclusions of law and its conclu sions 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 per formance was deficient” and (2) that “the deficient

p erformance 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 indication s of incompetence. Additionally , a mental health evaluation was conducted prior to the Faretta hearing, which
dete rmined 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, 6 87 (1984)

. 247 Id. at 691

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

. 249 2RR 4. Case: 13-70024 Document: 00514256173 Page: 40 Date Filed: 11/30/2017No. 13

- 70024

41 allegation that counsel’s performance prejudiced his defense. 250 Strickland requires Austin to show a “reasonable probability that, but for counsel’s unprofessional error s , the result of the proceeding would have been diffe rent.” 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 t o 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 A ustin was competent. The fact that Austin sought the deat h 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 Aust in 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 im pairment 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

. Case: 13-70024 Document: 00514256173 Page: 41 Date Filed: 11/30/2017No. 13

- 70024

42 the affidavits Austin submi t t ed 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 a re denying relief on the merits with respect to this issue, this evidence do es 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 differen t 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 substa ntially 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))

. Case: 13-70024 Document: 00514256173 Page: 42 Date Filed: 11/30/2017No. 13

- 70024

43 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 re sult 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 i n 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 chall engeable 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 f or cause. 264 Austin asserts that h is
entitle ment 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 co urt erred in

258 Id. a t 549

- 50.
259 Id. at 550

- 51

. 260 Id. at 555.
261 Id. at 556.
262 Montoya v. Scott , 65 F.3d 405, 419 (5 th Cir. 1995).
263 See, e.g. , Morgan v. Illinois , 504 U.S. 719, 729 (1992).
264 Austin Br. at 109

- 10. Case: 13-70024 Document: 00514256173 Page: 43 Date Filed: 11/30/2017No. 13

- 70024

44 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 th ey 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 pr ejudice ,” 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
misleadi ng 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 findi ngs that the jurors were competent and unbiased. We will further assume, without deciding, that there are no factual issue s 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 R eply 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)

. Case: 13-70024 Document: 00514256173 Page: 44 Date Filed: 11/30/2017No. 13

- 70024

45 B Austin’s brief in our court focuses p rimarily 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 l ife 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? GIB BS: 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 i t? 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? Case: 13-70024 Document: 00514256173 Page: 45 Date Filed: 11/30/2017No. 13

- 70024

46 THE COURT: In other words, if the evidence called for answering those questions in such a way that you answered the first on e 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 evid ence 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 s tates, 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: An d 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 a dmitted 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. Case: 13-70024 Document: 00514256173 Page: 46 Date Filed: 11/30/2017No. 13

- 70024

47 there was nothing mitigating. I was not going to vote for anything other than the death penalty. 271

The voir dir e 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

- tria l

statement s to support his contention that each of these jurors w as dis honest
in answer ing questions posed during voir dire . We conclude that the district court was foreclosed from considering any of the juror s ’ 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 f ailing 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 indict ment, 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 cou rt 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 j uror’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 thes e prohibitions.

271 Pet

. Ex. 65 at 007525

- 007526.
272 F ED

. R. E VID . 606(b)(1). Case: 13-70024 Document: 00514256173 Page: 47 Date Filed: 11/30/2017No. 13

- 70024

48 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 a rgument 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 ef fect 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 ensur ing 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 emplo y 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 “an d 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. Le ung , 796 F.3d 1032, 1034 (9 th Cir. 2015). Case: 13-70024 Document: 00514256173 Page: 48 Date Filed: 11/30/2017No. 13

- 70024

49 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 Th e court observed, “[w]hile persistent inquiry into internal ju ry 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] c onstitutional 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 t he 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 State s v. Davi s , 960 F.2d 820, 828 (9 th Cir. 1992) (rejecting a defendant’s argument in a direct criminal appeal “that his sixth amendme nt 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. Case: 13-70024 Document: 00514256173 Page: 49 Date Filed: 11/30/2017No. 13

- 70024

50 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 p rior, unpublished opinion in this case granting a COA to Austin
on h is 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 somet hing 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 cle arly incorrect in light of the Supreme Court’s decision and reasoning in Warger v. Shauer s , 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 cla im

. 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

c laim , 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 durin g 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 (5 th Cir. 2016) (per curiam)

. 285 Id. at 493 n.63.
286 570 F.3d 595 (5 th Cir. 2009).
287 Austin , 647 F. App’x at 493 n.63.
288 Hatten , 570 F.3d at 600

- 0 2

. Case: 13-70024 Document: 00514256173 Page: 50 Date Filed: 11/30/2017No. 13

- 70024

51 question testified during a hearing that was held to ascertain whether he had lied on his juror questionnaire about whether he had a “dr ug problem , ” among other issues. 289 Though this court discuss ed 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 hi s response to the jury questionnaire had been a mbiguous. 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,

t he 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 thi s 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 Cou rt’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 i s 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 mu st have favored the prosecution”).
290 Id. at 602.
291 Id.
292 See id. Case: 13-70024 Document: 00514256173 Page: 51 Date Filed: 11/30/2017No. 13

- 70024

52 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 w ere 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’ post

trial 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 ju ry, 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 c ontinuing 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 an d 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. Sh auers , 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 T EX

. C ODE C RIM

. P ROC

. A NN

. art. 37.071 § 2(b)(1) (West Supp. 2002 )

. Case: 13-70024 Document: 00514256173 Page: 52 Date Filed: 11/30/2017No. 13

- 70024

53 circumstance or circumstances to warrant that a life imprisonment rather than a death sentence be imposed. ” 296 Before we consider eac h 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

. T hey were only asked whether they coul d 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 comm enced, 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 kid s.

296 Pet. Ex. 36 at 001612; see also T EX

. C ODE C RIM

. P ROC

. A NN

. art. 37.071 § 2(e)(1) (West Supp. 2002 )

. 297 9RR17. Case: 13-70024 Document: 00514256173 Page: 53 Date Filed: 11/30/2017No. 13

- 70024

54 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 po st

- trial statement reflects Erwin’s belief s as of the date of the statement. It does not say that Erwin held these beliefs at
the time of voir dire

. Two y ears after a trial, a juror’s beliefs may have changed, particularly after participating in a capital trial and vot ing 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

. Case: 13-70024 Document: 00514256173 Page: 54 Date Filed: 11/30/2017No. 13

- 70024

55 The second paragraph of the post

- trial statement does not contradict anything th at 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 b rief 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 pe nalty. 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

. T here 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 issue s ] in such a way that you know a lif e 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 te ll 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 Case: 13-70024 Document: 00514256173 Page: 55 Date Filed: 11/30/2017No. 13

- 70024

56 someone commits a premeditated act of violence against som eone 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 u nderstand

- - 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: Y es. 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

. Case: 13-70024 Document: 00514256173 Page: 56 Date Filed: 11/30/2017No. 13

- 70024

57 The first paragraph of the post

- trial statem ent 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 no t 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 ta ke 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. Case: 13-70024 Document: 00514256173 Page: 57 Date Filed: 11/30/2017No. 13

- 70024

58 . . . PROSECUTION:

. . . Okay. Can you consider, then, in your mind that [the first specia l 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 par ticipate 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 tha t you answered the first on e 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 b ased 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? G IBBS: 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. Bu t I mean

- - THE COURT: Your personal opinion

- - Case: 13-70024 Document: 00514256173 Page: 58 Date Filed: 11/30/2017No. 13

- 70024

59 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 st atement, 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 pe nalty. 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

s tatement. Th ey are not evidence that he held these views during voir dire

. The third paragraph reflects Gibbs’ weighing of all the evidence. As discussed above, t here 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 chi ld 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

. E x. 65 at 007525

- 007526

. 304 9RR17. Case: 13-70024 Document: 00514256173 Page: 59 Date Filed: 11/30/2017No. 13

- 70024

60 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, co uld 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, regardles s 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 mak e 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, yea h . I think, yeah, it would. PROSECUTION: Why? TAMAYO: Because if, you k now, 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 ju ry, 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? Case: 13-70024 Document: 00514256173 Page: 60 Date Filed: 11/30/2017No. 13

- 70024

61 TAMAYO: Well, it’s not whether he wa nts 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 co nsider 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 tr ial. In any event, the statement expresse s 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 weig hs such evidence. He does not consider mental illness to be “a sufficient mitigating circumstance,” and the special issue ask ed only if there is “a sufficient mitigating circumstance or circumstances

. ” If Austin’s position were correct, a prospective jur or 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 a s a ‘ two

- edged sword ’ because it tended to confirm the State's evidence o f future dangerousness as well as lessen his culpability for the crime. ”). Case: 13-70024 Document: 00514256173 Page: 61 Date Filed: 11/30/2017No. 13

- 70024

62 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 p olice 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 “hein ous 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. Case: 13-70024 Document: 00514256173 Page: 62 Date Filed: 11/30/2017No. 13

- 70024

63 FINNEGAN: That would be, you know

- - and purely innocent type of victim without an y 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 statem ent, 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 question s 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 reason s 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 jur or answered a question dishonestly during voir dire

.

308 5RR66

- 83.
309 Pet. Ex. 94 at 007738

- 007739

. 310 See Morgan v. Illinoi s, 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.”). Case: 13-70024 Document: 00514256173 Page: 63 Date Filed: 11/30/2017No. 13

- 70024

64 VI I 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 hearin g 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 p hrase “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 t hat 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 dis pute 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. 276 6 (noting that the court would “call for an evi dentiary hearing i f it determines that one is necessary”). Case: 13-70024 Document: 00514256173 Page: 64 Date Filed: 11/30/2017No. 13

- 70024

65 suffered from depression and suicidality. But, as previously discussed , mere presence of mental illness does not render a d efendant 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 on ly 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 t o the extent he sought an evidentiary hearing in relation to his jur or 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. W e conclude that the district court did not abuse its discretion in denying an evidentiary hearing

. W e can determine from th e record that the post

- trial juror statements at issue can be reconciled with each juror’s statements during voir dire

. F urther factual development in an evidentiary hearing is not warranted. Austin does

not identify another fac tual 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 ex p ress was present at the time of trial.”). Case: 13-70024 Document: 00514256173 Page: 65 Date Filed: 11/30/2017No. 13

- 70024

66 PRISCILLA R. OWEN, C ircuit 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 exc eption 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 w hich “[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 defi nition, 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

– Rodr iguez 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. Case: 13-70024 Document: 00514256173 Page: 66 Date Filed: 11/30/2017No. 13

- 70024

67 nor this court has recogniz ed 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 , hab eas 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 kn own 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. Case: 13-70024 Document: 00514256173 Page: 67 Date Filed: 11/30/2017No. 13

- 70024

68 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 E ighth 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 establis hed 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 char geable 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 (8 th Cir. 1960)).

11 Johnson , 274 F.2d at 116 (quoting Batsell v. United States , 217 F.2d 257, 260 (8 th Cir. 1954) (citing Carruthers v. Reed , 102 F.2d 933, 939 (8th Cir. 1939))).
12 Id. (q uoting Batsell , 217 F.2d at 260 (citing 50 C.J.S. Juries § 251)); see also United States v. Pennington , 168 F.3d 1060, 1067 (8 th 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”). B ut see Franklin v. Anderson , 434 F.3d 412, 426

- 28 (6 th 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 Case: 13-70024 Document: 00514256173 Page: 68 Date Filed: 11/30/2017No. 13

- 70024

69 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 o f 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 ex pressed 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 oc curred: 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 pe rmit 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 (11 th Cir. 1992) (holding that a district court did not commit plain error by failing to excuse, su a 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 (8 th 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. Case: 13-70024 Document: 00514256173 Page: 69 Date Filed: 11/30/2017No. 13

- 70024

70 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 lif e? 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 y ou 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 wi thout 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 Case: 13-70024 Document: 00514256173 Page: 70 Date Filed: 11/30/2017No. 13

- 70024

71 penalty when a child was the victim. He has not asserted in habeas proceedings that his counsel (himself) was ineffec tive 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 chal lenge 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 coge ntly 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 voi r 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 th e 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 n ever 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 (8 th Cir. 2012) (quoting United States v. Brazelton , 557 F.3d 750, 755 (7 th Cir. 2009) (internal quotations marks and citations omitted)).
17 CR at 58 (letter from Austin to the trial court d ated Feb. 19, 2002).
18 McDonough Power Equip

. , Inc. v. Greenwood , 464 U.S. 548, 550 n.2 (1984). Case: 13-70024 Document: 00514256173 Page: 71 Date Filed: 11/30/2017No. 13

- 70024

72 the Supreme Court has indicated that when grounds for cause to challenge a juror are apparent, the defendant must properly preserve hi s 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

automa tically.” 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 ha d 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 ch allenges 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 pr esently 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. Case: 13-70024 Document: 00514256173 Page: 72 Date Filed: 11/30/2017No. 13

- 70024

73 court’s failure to remove [the biased juror] for ca use , 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]ve n 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 focu s 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.”). Case: 13-70024 Document: 00514256173 Page: 73 Date Filed: 11/30/2017No. 13

- 70024

74 include a biased juror. 29 But, in dicta, the Court discussed when the seating of a biased juror “would require re versal.” 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 en sure 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 h is 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 indige nt 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 ver y limited class of

errors ’ that trigger automatic reversal because they undermine the fairness of a criminal Case: 13-70024 Document: 00514256173 Page: 74 Date Filed: 11/30/2017No. 13

- 70024

75 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 no t 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 i n 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 i f 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 co unsel of choice, denial of self

- representation, denial of a pu blic 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,” “racia l discrimination in selection of grand jury,” “denial of self

representation at trial,” “denial of public trial,” and “defective reasonable

- doubt instruction”). B ut see , e.g., Gray v. Mississippi , 481 U.S. 648, 668 (1987) ( B LACKMUN , 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 F ED

. R. C RIM

. P. 52(b), and setting forth i ts elements). Case: 13-70024 Document: 00514256173 Page: 75 Date Filed: 11/30/2017No. 13

- 70024

76 defendants, Rave, recognized a juror dur ing 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 ret urned 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 , t he 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 rece ive 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 (1 st 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). Case: 13-70024 Document: 00514256173 Page: 76 Date Filed: 11/30/2017No. 13

- 70024

77 had not admitted to knowing him. 46 The defendant’s “counsel failed t o 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 ju ror 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 (10 th Cir. 1985)).
49 See also United States v. Harris , 530 F.2d 576, 579

- 80 (4 th 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 (8 th C ir. 2012).
51 Id. at 500. Case: 13-70024 Document: 00514256173 Page: 77 Date Filed: 11/30/2017No. 13

- 70024

78 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 de cision 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 obj ection 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 thos e 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 fai lure 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 (8 th Cir. 1992)).
54 Id. at 501

- 02. B ut see United States v. Brown , 26 F.3d 1124, 1126 (D.C. Cir. 1994) (concluding that “plain error analysis is appl icable 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 (5 th Cir. 2016). Case: 13-70024 Document: 00514256173 Page: 78 Date Filed: 11/30/2017No. 13

- 70024

79 grant of en banc rehearing in our court 58 and therefore w as 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.
T his 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 th at 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 claim ant 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 25 6, 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). Case: 13-70024 Document: 00514256173 Page: 79 Date Filed: 11/30/2017No. 13

- 70024

80 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 appea l 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 p rongs 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 Fr y v. Pliler , 62 and Brecht v. Abrahamson 63 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 d irect 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 bea rs 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). Case: 13-70024 Document: 00514256173 Page: 80 Date Filed: 11/30/2017No. 13

- 70024

81 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 me aning “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 contes ted 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 Kott eakos 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. Case: 13-70024 Document: 00514256173 Page: 81 Date Filed: 11/30/2017No. 13

- 70024

82 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. Case: 13-70024 Document: 00514256173 Page: 82 Date Filed: 11/30/2017