Green v. Quarterman

Filing 42

MEMORANDUM AND ORDER GRANTED 35 Opposed MOTION to Stay Execution (scheduled for October 10, 2012)Opposed MOTION to Stay Execution (scheduled for October 10, 2012) ( Scheduling Conference set for 10/18/2012 at 10:00 AM in Courtroom 9F before Judge Nancy F. Atlas)(Signed by Judge Nancy F. Atlas) Parties notified.(sashabranner, )

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

JONATHAN MARCUS GREEN,
Petitioner,
v.
RICK THALER, Director,
Texas Department of Criminal
Justice-Correctional Institutions
Division,
Respondent.

§
§
§
§
§
§
§
§
§
§
§
§

CIVIL ACTION NO. H-07-827

MEMORANDUM AND ORDER
Jonathan Marcus Green is a Texas death-row inmate. He is scheduled for
execution on October 10, 2012.
On September 28, 2012, Green moved in this court for an order staying his
execution on the ground that he is mentally ill and incompetent to be executed under
the standards set by the United States Supreme Court in Ford v. Wainwright, 477 U.S.
399 (1986), and Panetti v. Quarterman, 551 U.S. 930, 948 (2007). Motion for Stay
of Execution [Doc. # 35] (“Motion”); see Supplement to Motion for Stay of Execution
[Doc. # 38] (“Supp. Motion”).
The United States Supreme Court has held that “‘the Eighth Amendment
prohibits a State from carrying out a sentence of death upon a prisoner who is
insane.’” Panetti, 551 U.S. at 934. This prohibition applies even if a prisoner was
earlier competent to be held responsible for committing a crime and to be tried for it.

Once a prisoner makes a “preliminary showing that his current mental state would bar
his execution, the Eighth Amendment . . . entitles him to an adjudication to determine
his condition.” Id. at 934-35. The record before this court shows that Green has made
that substantial threshold showing, that the Texas state courts did not grant him a fair
opportunity to demonstrate that he is incompetent, and thus the State of Texas denied
him due process.
I.

PROCEDURAL AND FACTUAL BACKGROUND
In 2000, Green was convicted of capital murder and sentenced to death for

murdering 12 year old Christina Neal. The evidence established that Green abducted,
sexually assaulted, and strangled Neal. See Green v. Quarterman, No. H-07-cv-827
(S.D. Tex. Feb. 15, 2008).
The Texas Court of Criminal Appeals (“TCCA”) affirmed Green’s conviction
and sentence. Green v. State, No. AP-74398 (Tex. Crim. App. Dec. 1, 2004), cert.
denied, 547 U.S. 1005 (2006), and denied Green’s state application for a writ of
habeas corpus, Ex Parte Green, No. 61,225-01 (Tex. Crim. App. Mar. 23, 2005).
Green filed a timely initial federal petition for a writ of habeas corpus on March 6,
2007, raising eleven claims for relief, including a claim that he was incompetent to be
executed. This Court denied Green’s claims and dismissed the petition on February
15, 2008. Green’s claim that he was incompetent to be executed was denied without
prejudice as premature. The Fifth Circuit denied a certificate of appealability, and
dismissed his competency claim without prejudice on February 27, 2009. The
Supreme Court denied certiorari on October 5, 2009.
On December 16, 2009, the State set an execution date of June 30, 2010.
Twenty-nine days before the scheduled execution, on June 1, 2010, Green filed a
motion in the state trial court for appointment of counsel and expert assistance to
pursue a claim that he is incompetent to be executed. He also requested an evidentiary
2

hearing if the expert reports left material questions about his competency. On June
6, 2010, the trial court granted the motion for counsel and expert assistance and
ordered psychological reports by Green’s expert, Dr. Diane M. Mosnik, and the
State’s expert, Dr. Mark S. Moeller.
On June 21, 2010, Dr. Mosnik submitted a report concluding that Green
suffered from severe mental illness and was incompetent, as of June 2010, to be
executed. Dr. Moeller submitted a report agreeing that Green was mentally ill, but
concluding that he was competent. On June 23, 2010, Green requested a competency
hearing and a stay of execution. The State agreed to Green’s request for a hearing, but
opposed the request for a stay. On June 23, 2010, the trial court scheduled a hearing
for June 28, but denied the stay. On June 23, 2010, the State produced documents
revealing inter alia that mental health professionals with the Texas Department of
Criminal Justice (“TDCJ”) had concluded after observation in an inpatient clinical
setting and psychological tests that Green suffered from delusions and hallucinations.
He has been diagnosed as suffering from schizophrenia, undifferentiated type. Testing
indicated that he was not malingering. See, e.g., Motion, Exh. C, at 32-33. Green
points out that the trial court gave him only two business days’ notice of the hearing,
which was inadequate time to prepare.1 Green objected and requested a continuance
to meet with and summon witnesses disclosed in documents produced by the State on
June 23, 2010. The state trial court overruled the objection. A hearing took place first
thing Monday, June 28, 2010. The trial court issued an oral ruling finding Green
competent to be executed.
Following the oral ruling from the bench, on June 28, 2010, the trial court made
an ex parte request to the Montgomery County District Attorney’s Office to submit
1

June 23, 1010, the day the state court ordered the hearing and denied the stay, was a
Wednesday. The hearing took place the following Monday, June 28, 2010.
3

an order including proposed findings of fact and conclusions of law. Without giving
Green notice of submission of the order or a chance to object to its contents, the trial
court signed the proposed order without change on June 29, 2010. The order
submitted by the District Attorney includes credibility findings about the parties’
expert witnesses, including a finding that Green’s expert was not credible in part
because she has testified for the defense in several capital cases, but never for the
prosecution.
Green appealed the trial court’s ruling to the Texas Court of Criminal Appeals.
On June 30, 2010, the TCCA stayed Green’s execution. The TCCA also ordered the
trial court to clarify its ruling because the standards used by the trial court were
unclear. See Motion, Exh. G, at 2-4. The state trial court did so on July 14, 2010.
Id., Exh. G, at 5-7. On June 27, 2012, the Court of Criminal Appeals affirmed the trial
court’s finding that Green is competent to be executed. Supp. Motion, Exh. D. The
mandate issued on September 17, 2012. Id., Exhs. A, B, & C. Green now seeks a stay
of execution in this Court.
II.

APPLICABLE LEGAL STANDARDS
A.

Jurisdiction

This is a petition for a writ of habeas corpus. Green was convicted of capital
murder following a trial in Montgomery County, Texas. There is no dispute that
Green’s claim that he is incompetent to be executed did not become ripe until his
execution was imminent. Therefore, Green’s petition does not qualify as a successive
petition, see Panetti, 551 U.S. at 943-47, and this Court has jurisdiction over the
petition pursuant to 28 U.S.C. §§ 2241 and 2254.
B.

Competency To Be Executed

In Ford v. Wainwright, 477 U.S. 399 (1986), the Supreme Court held that “[t]he
Eighth Amendment prohibits the State from inflicting the penalty of death upon a
4

prisoner who is insane.” Id. at 410. A prisoner is incompetent to be executed when
his “mental illness prevents him from comprehending the reasons for the penalty or
its implications.” Id. at 417. Panetti makes clear that this comprehension requires
more than the petitioner merely knowing “the fact of his impending execution and the
factual predicate for the execution.” Id. at 942, 954-55 (internal quotation marks and
citations omitted).
C.

Due Process

Once a prisoner seeking a stay of execution makes a “substantial threshold
showing of insanity,” due process requires a fair hearing on his competency to be
executed, in accord with fundamental fairness. Id. at 426; Panetti, 551 U.S. at 949.
This includes the right to submit evidence and argument in a meaningful manner. Id.
D.

The Anti-Terrorism and Effective Death Penalty Act

This federal petition for habeas corpus relief is governed by the applicable
provisions of the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”). See
Lindh v. Murphy, 521 U.S. 320, 335-36 (1997). Under the AEDPA, federal habeas
relief based upon claims that were adjudicated on the merits by the state courts cannot
be granted unless the state court’s decision (1) “was contrary to, or involved an
unreasonable application of, clearly established federal law, as determined by the
Supreme Court of the United States” or (2) “was based on an unreasonable
determination of the facts in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d); Kitchens v. Johnson, 190 F.3d 698, 700 (5th Cir.
1999).
For questions of law or mixed questions of law and fact adjudicated on the
merits in state court, this Court may grant habeas relief under 28 U.S.C. § 2254(d)(1)
only if the state court decision “was contrary to, or involved an unreasonable
application of, clearly established [Supreme Court precedent].” See Martin v. Cain,
5

246 F.3d 471, 475 (5th Cir.), cert. denied, 534 U.S. 885 (2001). Under the “contrary
to” clause, this Court may afford habeas relief only if “‘the state court arrives at a
conclusion opposite to that reached by . . . [the Supreme Court] on a question of law
or if the state court decides a case differently than . . . [the Supreme Court] has on a
set of materially indistinguishable facts.’” Dowthitt v. Johnson, 230 F.3d 733, 740-41
(5th Cir. 2000) (quoting Williams v. Taylor, 529 U.S. 362, 406 (2000)), cert. denied,
532 U.S. 915 (2001).
The “unreasonable application” standard permits federal habeas corpus relief
only if a state court decision “identifies the correct governing legal rule from [the
Supreme Court] cases but unreasonably applies it to the facts of the particular state
prisoner’s case” or “if the state court either unreasonably extends a legal principle
from [Supreme Court] precedent to a new context where it should not apply or
unreasonably refuses to extend that principle to a new context where it should apply.”
Williams, 529 U.S. at 406. “In applying this standard, we must decide (1) what was
the decision of the state courts with regard to the questions before us and (2) whether
there is any established federal law, as explicated by the Supreme Court, with which
the state court decision conflicts.” Hoover v. Johnson, 193 F.3d 366, 368 (5th Cir.
1999). A federal court’s “focus on the ‘unreasonable application’ test under Section
2254(d) should be on the ultimate legal conclusion that the state court reached and not
on whether the state court considered and discussed every angle of the evidence.”
Neal v. Puckett, 239 F.3d 683, 696 (5th Cir. 2001), aff’d, 286 F.3d 230 (5th Cir. 2002)
(en banc), cert. denied, 537 U.S. 1104 (2003). The focus for a federal court under the
“unreasonable application” prong becomes “whether the state court’s determination
is ‘at least minimally consistent with the facts and circumstances of the case.’” Id.
(quoting Hennon v. Cooper, 109 F.3d 330, 335 (7th Cir. 1997)); see also Gardner v.
Johnson, 247 F.3d 551, 560 (5th Cir. 2001) (“Even though we cannot reverse a
6

decision merely because we would reach a different outcome, we must reverse when
we conclude that the state court decision applies the correct legal rule to a given set
of facts in a manner that is so patently incorrect as to be ‘unreasonable.’”)
The AEDPA precludes federal habeas relief on factual issues unless the state
court’s adjudication of the merits was based on an unreasonable determination of the
facts in light of the evidence presented in the state court proceeding. See 28 U.S.C.
§ 2254(d)(2); Hill v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000), cert. denied, 532
U.S. 1039 (2001). The state court’s factual determinations are presumed correct
unless rebutted by “clear and convincing evidence.” 28 U.S.C. § 2254(e)(1); see also
Jackson v. Anderson, 112 F.3d 823, 824-25 (5th Cir. 1997), cert. denied, 522 U.S.
1119 (1998).
III.

THE RECORD2
In support of the relief sought, Green submits evidence that he is schizophrenic

and delusional, and believes that he is going to be killed as a result of demons
conducting spiritual warfare over him. Dr. Mosnik, who performed numerous
psychological tests on Green, interviewed him extensively and reviewed extensive
records, diagnosed Green as schizophrenic. Dr. Mosnik opined that Green is suffering
from severe delusions, hallucinations, and formal thought disorders that interfere with
his overall level of functioning and that have been present for more than six months.
Motion, Exh. A, at 6. TDCJ records dating to 2003 show progressing mental illness,
including visual, auditory, and somatic hallucinations. For instance, Green has stuffed
toilet paper in his ears to try to stop the voices in his head. On several occasions, he
required medical attention to remove the impacted toilet paper from his ears. See, e.g.,
Motion, Exh. C, at 41-42.
2

Because of the press of time, the Court necessarily provides only an abbreviated
summary of the record.
7

In connection with a prior motion filed before the TCCA stayed Green’s
execution in 2010, Green’s sister Tina, who is a mental health professional, submitted
an affidavit. She stated that Green had rambling conversations during jailhouse visits
before his trial. She asked if he was hearing voices and he said that he was. June 28,
2010 Motion For Stay of Execution [Doc. # 27], Exh. C, at 1-2.
Green’s sister Edwina submitted an affidavit stating that, during death row
visits, Green talked about people controlling his body and changing his body, face and
eyes. He called them “Sapphires” and told Edwina that a Sapphire was inside her and
was making her sick. Id., Exh. D, at 1-2. Green’s attorney submitted an affidavit
substantially corroborating the sisters’ statements. In addition to claiming that these
beings are changing his body, Green claims that they force him to hurt himself by,
among other things, banging his head against the wall. He also claims that the voices
order him to commit sexual acts. Id., Exh. E, at 1.
In connection with the current motion, Green also submits an affidavit by death
row inmate Thomas Bartlett Whitaker. Motion, Exh. H. Whitaker states that he has
occupied the cell next to Green during two different periods of time, covering most
of the period from June 15, 2010, to October 15, 2011, and had extensive
opportunities to observe Green. He states that Green was often in a stupor caused by
antipsychotic drugs, exhibited bizarre behavior, and did not maintain even basic
personal hygiene. Whitaker also states that Green is confused about his situation.
Among the specific examples of such confusion are Green’s statement that he did not
have a lawyer, despite receiving regular correspondence from his counsel. Green also
expressed the belief that he was being tormented by demons.
The State’s expert, Dr. Moeller, reviewed records and met with Green twice,

8

apparently for less than an hour on each occasion, on June 16 and June 18, 2010.3 Dr.
Moeller performed no tests. He testified at the June 28, 2010 hearing that he agreed
that Green is mentally ill, but disagreed that Green was schizophrenic. Dr. Moeller
testified that he did not believe that Green exhibited consistent and progressive
thought disorganization or other symptoms of schizophrenia. Dr. Moeller did agree,
however, that Green suffered from intermittent hallucinations and disorganized
behaviors. Motion, Exh. B, at 5.
IV.

ANALYSIS
A.

Timeliness

Respondent argues that Green is not entitled to a stay because he was dilatory
in raising his claim of incompetency. The record does not support Respondent’s
argument.
First, Respondent contends that Green waited until June 23, 2010, a mere seven
days before his execution, to file his successive application in state court.4 This
statement is true, but misleading. As discussed below, there was confusion in the state
courts as to whether this claim was to proceed as a successive application for a writ
of habeas corpus under TEX. CODE CRIM. PRO. art. 11.071, or under TEX. CODE CRIM.
PRO. art. 46.05, governing incompetency-to-be-executed claims. Green filed this
incompetency claim on June 1, 2010, 29 days before his execution. The TCCA noted
that Green’s request for a hearing was timely as a matter of Texas law. See TEX.
3

Dr. Moeller’s billing record reflects that he spent a total of 4.25 and 4 hours,
respectively, on June 16 and June 18, 2010, to travel to the Polunsky unit and meet
with, and evaluate, Green. According to Google Maps, the Polunsky Unit, which is
in Livingston, Texas, is 81.3 miles from Dr. Moeller’s office in Bellaire, Texas, and
is at least a 1.5 hours drive from that office.

4

Green’s federal petition is not successive under 28 U.S.C. § 2254 because the issue
of his competency to be executed was a claim originally raised but not ripe when the
other claims were addressed by the state court and this Court.
9

CODE CRIM. PRO. art. 46.05 § l-1 (a competency petition must be filed no later than
20 days before the scheduled execution); Green v. State, ___ S.W.3d ___, 2012 WL
2400651 at *10 (Tex. Crim. App. June 27, 2012) (“Green timely filed his motion to
have competency determined under the statute—that is to say, he filed it sufficiently
early that this Court is not foreclosed from reviewing the trial court's ruling thereon”).
Because Green complied with statutorily prescribed time limits, he was not dilatory
in pursuing his rights in state court.
Respondent also states that Green waited until after business hours on Friday,
September 28, 2012, to file this federal stay motion. This statement is correct. Green
notes, however, that the State set his execution date on August 14, 2012, and counsel
did not receive notice of the execution date until August 20, 2012. Green filed
objections in state court, arguing that Green’s condition changed since the previous
hearing more than two years earlier. It is not apparent from the record when these
state court proceedings concluded, but it is clear that Green did not wait an
inordinately long amount of time to file this federal petition.
Respondent’s argument regarding the timing of the pending federal petition,
Green’s Motion, might carry some weight if this Court was inclined to grant a stay
based solely on a perceived need to further develop the record or allow additional
argument. As discussed below, however, this Court concludes that the Texas state
courts failed to provide due process and applied incorrect legal standards. The
inadequacies of the state court’s process and the resulting constitutional violations
require this Court to stay Green’s execution.

These deficiencies would have

necessitated a stay and additional federal proceedings even if Green had filed the
Motion a month earlier. There accordingly is no prejudice to Respondent attributable

10

to the timing of Green’s Motion.5
B.

Substantial Threshold Showing Of Insanity

Green has made a substantial threshold showing of insanity. He has submitted
evidence from lay observers about his bizarre behavior and his delusional statements.
He has submitted expert evidence corroborating these lay observations, opining that
he is likely psychotic.
In light of Green’s evidence, due process required the state habeas court to grant
Green “a ‘fair hearing’ in accord with fundamental fairness.” Panetti, 551 U.S. at 949
(citing Ford, 477 U.S. at 426). A fair hearing “include[s] an opportunity to submit
evidence and argument from the prisoner’s counsel. . . .” Id. at 950 (internal quotation
marks and citation omitted).
C.

Fair Hearing

Green argues that, because he had only two business days between the date the
state court scheduled the hearing and the date on which the hearing occurred, he did
not have time to locate and obtain the presence of several important witnesses. These
include TDCJ mental health professionals who treated Green at the Jester IV unit, a
TDCJ mental health unit. Green notes that his inability to call these witnesses is
especially important because the state court relied heavily on its determination of the
relative credibility of the expert witnesses the parties called live at the hearing. The
TDCJ witnesses would likely have further substantiated Dr. Mosnik’s conclusions.
These mental health professionals have examined, interacted with, and diagnosed
Green for years during his imprisonment, and concluded that he was not malingering.
5

It also appears that, due to the passage of time since the state court competency
hearing and stay, that Green is entitled to a re-review of his competency in state court.
See TEX. CODE CRIM. PRO. art. 46.05(m). The question whether this case should be
stayed to allow Green to seek a new hearing in state court will be taken up in a
conference with the parties.
11

This is a psychiatric conclusion directly contrary to the State’s sole witness, Dr.
Moeller, a conclusion on which the state trial court relied for her finding of
competency.6 Green requested, and was denied, a continuance of the hearing and
authorization to serve process on these witnesses.
Green’s inability to present these fact witnesses is closely analogous to the
process found unconstitutional in Panetti, where the state court relied on courtappointed experts’ opinions to conclude that petitioner Panetti was malingering his
symptoms of mental illness. Panetti requested, and was denied, an opportunity to
present his own expert’s opinion in rebuttal. Panetti, 551 U.S. at 951.
While Green was able to present evidence through an expert of his own
choosing, he was denied the opportunity to present additional significant evidence by
mental health professionals who had treated and observed him over the course of
several years. These professionals had far greater foundation for their opinions than
the state’s, or even Green’s own, expert. Based on the voluminous medical records
presented in support of this motion, there is a reasonable probability that these
witnesses would have corroborated Dr. Mosnik’s conclusion that Green was not
malingering, and would have rebutted Dr. Moeller’s conclusion to the contrary.
Respondent now argues that the live testimony of these witnesses would have
been irrelevant because the State stipulated to the accuracy of the medical records, and
stipulated that the witnesses would have testified in accordance with those records.
This contention is without merit. The state court’s conclusion did not rest on the
presence of symptoms; instead, the court focused on the credibility of witnesses and
the question of whether Green was malingering, i.e., faking or exaggerating his

6

The importance of these witnesses is highlighted by the fact that Dr. Moeller’s
assessment was based on relatively brief meetings with Green. See note 3 and
accompanying text, supra.
12

symptoms for the purpose of delaying or halting his execution.7 The state court also
made findings on Green’s psychological state. The TDCJ medical personnel had
strongly probative evidence to offer through their observations of Green and their
opinions on whether his symptoms were real, as well as the degree and type of
psychological deficits he possessed. Considering the heavy reliance the state court’s
opinion places on its credibility determinations of the two experts and the notable
absence of any reference to the TDCJ medical records in the state court findings, the
state court’s denial to Green of the opportunity to present the TDCJ witnesses casts
serious doubt on the fundamental fairness of the competency proceeding. See Panetti,
551 U.S. at 952 (holding open the possibility that “other procedures, such as the
opportunity for discovery or for the cross-examination of witnesses would in some
cases be required under the Due Process Clause”).
D.

State Court’s Ex Parte Solicitation and Reliance on State’s
Proposed “Findings of Fact”

Green also objects that the trial court followed an unconventional procedure in
its ex parte solicitation of written proposed findings of fact from the State, without
giving Green notice or an opportunity to object. See Motion, Exh. E. Respondent
argues that the circumstances surrounding this order are irrelevant because the state
court announced a decision against Green from the bench. The order provided by the
State, however, did not merely state a decision by the court, but also contained
specific findings of fact requiring deference by the TCCA on review. Green was
never given notice that these findings would be entered, or an opportunity to object.
The TCCA appears to have relied on the existence of these written findings.

7

The state court also determined that Green had a rational understanding of the fact of,
and reasons for, his execution. As discussed infra, that court’s apparent definition of
Green’s “rational understanding” was too narrow under the Panetti legal standard.
13

The convicting court, at the request of the TCCA, later issued a “clarification”
due to apparent confusion over which legal standards she applied. See Motion, Exh.
G, at 5-7. While the clarification states that the decision was based, in part, on the
judge’s observations in the courtroom, the observations she specifies relate primarily
to Green’s appearance and demeanor. In any event, the procedure employed by the
judge denied Green any opportunity to object or seek changes or clarifications to the
findings. The ex parte procedure by itself renders the state court’s findings less
deserving of deference. See, e.g., Jefferson v. Upton, ___ U.S. ___, 130 S. Ct. 2217,
2223 (2010).
E.

Conclusions of Law

It also appears that the state trial court applied incorrect legal standards. That
court sought to determine whether there was a change in Green’s mental capacity
since his imprisonment in 2002. See Motion, Exh. G, at 3.8 The correct question was
whether Green was presently competent, regardless of his comparative mental status
between 2002 and 2010.

See, e.g., Panetti, 551 U.S. at 934 (“Prior findings of

competency do not foreclose a prisoner from proving he is incompetent to be executed
because of his present mental condition) (emphasis added). The TCCA recognized
that “some of the standards mentioned [by the convicting court] are not applicable in
this instance. . . .” Motion, Exh. G, at 3.
Moreover, Green testified that he understood he was to be executed for
murdering Christina Neal, but that he did not kill her. Other evidence suggests that
Green believes he will be executed “as a result of the war between the ‘good and evil
8

While the convicting court’s written “clarification” states that she applied the
standards of article 46.05, her oral statements in court, quoted by the TCCA on page
3 of Exhibit G, clearly state the standards of article 11.071. This raises questions
about whether her post hoc clarification accurately describes the standards she applied
in reaching her decision.
14

personalities constantly fighting for control of his body in order to kill him.’” Mosnik
Report, Motion, Exh. A, at 5-6. Based on Green’s testimony that he understood he
was convicted of killing Neal and was to be executed based on that crime, the state
court found that he had a rational understanding of the reason for his execution.
The petitioner in Panetti also understood that he was to be executed for
murdering his victims, but believed this justification to be a sham. Instead, he
believed he was to be executed as a result of “spiritual warfare” between demons and
God. 551 U.S. at 940, 954-55. The Supreme Court rejected the notion that
competency to be executed merely “requires the petitioner know no more than the fact
of his impending execution and the factual predicate for the execution.” Id. at 942,
954-55 (internal quotation marks and citations omitted).
Like Panetti, Green has evidence that he believes the reason for his impending
execution is something other than the stated legal justification. The state court’s
primary reliance on his understanding of the legal justification is unreasonable in light
of Panetti.
F.

New Evidence

Respondent argues that this Court cannot consider Green’s new evidence under
the Supreme Court’s decision in Cullen v. Pinholster, ___ U.S. ___, 131 S.Ct. 1388
(2011). Pinholster held that a federal habeas court, in determining whether a state
court’s adjudication was an unreasonable determination of the facts or an
unreasonable application of Supreme Court precedent may consider only the record
that was before the state court. Id. at 1398.
In granting Green’s Motion for a stay, this Court finds that the state court
prevented Green from presenting relevant evidence he wished to present. The
procedure employed by the state court denied Green due process. The conclusion that
Green is entitled to a stay of execution is based on the unconstitutionally defective
15

process employed by the state court, as well as on the state court’s unreasonable
application of Supreme Court precedent. As to the procedural inadequacies, which
are described above, it is circular, at best, to contend that a state court may actively
prevent a petitioner from presenting admissible evidence, and then claim that the
evidence is forever barred from federal review because it was not presented in state
court. Regarding the unreasonable application of the Supreme Court precedent, the
Court relies on the state court’s misstatement of the controlling legal standard, and its
misapplication of the Panetti standard.
Because the state court unreasonably applied Supreme Court precedent and
failed to provide due process, a stay of execution is necessary under Panetti. The
Court here is concerned only with the question whether Green is entitled to a stay of
execution and not with the ultimate question of whether he is incompetent to be
executed. If the Court later has the duty to address the ultimate question of Green’s
competency, however, the Court will not be prevented from conducting an evidentiary
hearing or considering other evidence because, simply, Green did not “fail[] to
develop the factual basis of his claim . . ..” 28 U.S.C. § 2254(e)(2). Rather, he was
prevented from doing so. Where a petitioner makes a diligent effort to develop the
factual record in state court, a federal habeas court can conduct an evidentiary hearing
into the claim where appropriate. See Williams v. Taylor, 529 U.S. 420, 430-37
(2000).
G.

Conclusion

Green presents sufficient evidence to require the basic protections outlined in
Ford and Panetti. It is clear from the record that, at a minimum, the trial court
prevented Green from presenting testimony by treating mental health professionals,
relied on an order solicited from and drafted by the State to which Green had no
opportunity to object, and applied at least one incorrect legal standard.
16

By employing procedures that denied Green due process, the state court thus
made an unreasonable determination of the facts. By using incorrect legal standards,
the state court engaged in an unreasonable application of Supreme Court precedent.
Green is therefore entitled to a stay of execution, the state court findings are entitled
to no deference under the AEDPA, and Green is entitled to an opportunity to further
develop the record.
V.

ORDER
1.

Green’s Motion To Stay Execution (Doc. # 35) is GRANTED. Green’s
execution is STAYED.

2.

A scheduling conference will be held on October 18, 2012 at 10:00 a.m.

SIGNED at Houston, Texas, this 8th day of October 2012.

17