AG Response To 5th Circuit Appeal

Case: 14-70025
Document: 00512910115
Page: 1
Date Filed: 01/21/2015
No. 14-70025
In The
United States Court of Appeals for the Fifth Circuit

______________________________
DANIEL LEE LOPEZ,
PetitionerAppellant,
v.
WILLIAM STEPHENS, Director,
Texas Department of Criminal Justice,
Correctional Institutions Division,
RespondentAppellee.
______________________________
On Appeal from the United States District Court

For the Southern District of Texas, Corpus Christi Division
______________________________
RESPONDENTAPPELLEES BRIEF
______________________________
KEN PAXTON
Attorney General of Texas
EDWARD L. MARSHALL
Chief, Criminal Appeals Division
CHARLES E. ROY
First Assistant Attorney General
TRAVIS G. BRAGG
Assistant Attorney General
Counsel of Record
Post Office Box 12548, Capitol Station

Austin, Texas 78711
Tel: (512) 936-1400
Fax: (512) 320-8132
Email: Travis.Bragg@texasattorneygeneral.gov
Counsel for RespondentAppellee
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CERTIFICATE OF INTERESTED PERSONS

The undersigned counsel of record certifies that the following listed
persons and entities as described in the fourth sentence of Rule 28.2.1
have an interest in the outcome of this case. These representations are
made in order that the judges of this court may evaluate possible
disqualification or recusal.
RespondentAppellee
William Stephens, Director, Texas Department of Criminal Justice,
Correctional Institutions Division
Counsel for RespondentAppellee
Travis G. Bragg, Assistant Attorney General
Office of the Attorney General of Texas
Prior counsel for the State of Texas (state court)
Carlos Valdez, District Attorney
Mark Skurka, District Attorney / Assistant District Attorney
William R. Ainsworth, Assistant District Attorney
James D. Rosenkild, Assistant District Attorney
Nueces County District Attorneys Office
PetitionerAppellant
Daniel Lee Lopez
Counsel for PetitionerAppellant
James Gregory Rytting, Hilder & Associates, Houston, TX
David R. Dow, University of Houston Law Center, Houston, TX
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Prior counsel for Defendant (state court)

Mark H. Woerner, Corpus Christi, TX
Luis P. Garcia, Corpus Christi, TX
Patricia A. Shackelford, Corpus Christi, TX
Grant Jones, Corpus Christi, TX
s/ Travis G. Bragg
Travis G. Bragg
Counsel of Record
ii
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STATEMENT REGARDING ORAL ARGUMENT

The parties briefs adequately lay out the facts and legal arguments,
and the decisional process would not be significantly aided by oral
argument.
iii
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TABLE OF CONTENTS
CERTIFICATE OF INTERESTED PERSONS ......................................... i
STATEMENT REGARDING ORAL ARGUMENT ................................ iii
TABLE OF CONTENTS .......................................................................... iv
TABLE OF AUTHORITIES ..................................................................... vi
RESPONDENTAPPELLEES BRIEF .................................................... 1
STATEMENT OF THE ISSUES ............................................................... 2
STATEMENT OF THE CASE .................................................................. 2
Facts of the Crime ............................................................................ 2
Lopezs Trial ..................................................................................... 3
Postconviction Proceedings .............................................................. 6
A.
Lopezs direct appeal. .............................................................. 6
B.
Lopezs waiver of state habeas counsel and proceedings.

................................................................................................. 8
C.
Lopezs federal habeas proceedings begin. ........................... 10
D.
The hearing in federal district court. ................................... 14
E.
Filings after the hearing and the district courts

resolution. .............................................................................. 19
SUMMARY OF THE ARGUMENT ........................................................ 20

ARGUMENT ........................................................................................... 21
The Lower Courts Grant of Waiver was well Informed and
Proper. ............................................................................................ 21
iv
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Further Funding for Investigatory and Neuropsychology

Services were Unnecessary Given the Weight of Evidence in
favor of the Courts Grant of Waiver. ............................................ 28
CONCLUSION ........................................................................................ 30
CERTIFICATE OF SERVICE................................................................. 31
CERTIFICATE OF COMPLIANCE ........................................................ 31
ELECTRONIC CASE FILING CERTIFICATIONS ............................... 31
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TABLE OF AUTHORITIES
Cases
Ake v. Oklahoma, 470 U.S. 68 (1985) ..................................................... 29

Autry v. McKaskle, 727 F.2d 358 (5th Cir. 1984) ................................... 25
Barraza v. Cockrell, 330 F.3d 349 (5th Cir. 2003) .................................. 28
Faretta v. California, 422 U.S. 806 (1975).............................................. 22
Floyd v. United States, 427 F.2d 63 (5th Cir. 1970) ............................... 22
Granviel v. Lynaugh, 881 F.2d 185 (5th Cir. 1989)................................ 29
Hill v. Johnson, 210 F.3d 481 (5th Cir. 2000) ......................................... 28
Lenhard v. Wolff, 443 U.S. 1306 (1979) .................................................. 25
Mata v. Johnson, 210 F.3d 324 (5th Cir. 2000) .............................. passim
Moore v. Johnson, 194 F.3d 586 (5th Cir. 1999) ..................................... 22
Rees v. Peyton, 384 U.S. 312 (1966) ........................................... 20, 22, 23
Riley v. Dretke, 362 F.3d 302 (5th Cir. 2004) ......................................... 28
Rivera v. Quarterman, 505 F.3d 349 (5th Cir. 2007) ............................. 22
Rumbaugh v. Procunier, 753 F.2d 395 (5th Cir. 1985) ........ 20, 22, 23, 24
Smith v. Dretke, 422 F.3d 269 (5th Cir. 2005) ....................................... 28
United States v. Davis, 61 F.3d 291 (5th Cir. 1995) .............................. 25
Whitmore v. Arkansas, 495 U.S. 149 (1990)........................................... 22
vi
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Wilcher v. Anderson, 188 F. Appx 279 (5th Cir. 2006) .......................... 23

Woodward v. Epps, 580 F.3d 318 (5th Cir. 2009) ................................... 29
Statutes
18 U.S.C. 3599(f) ................................................................................... 28
28 U.S.C. 2254 ........................................................................................ 1
Fed. R. Civ. P. 52(a)................................................................................. 21
vii
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RESPONDENTAPPELLEES BRIEF
A Texas jury convicted PetitionerAppellee Daniel Lee Lopez and
sentenced him to death for the capital murder of Lieutenant Stuart
Alexander, an onduty police officer. The Texas Court of Criminal
Appeals denied Lopez relief on direct appeal, and he waived his state
habeas proceedings. While his direct appeal was pending in state court,
he filed a petition for writ of habeas corpus under the Antiterrorism and
Effective Death Penalty Act (AEDPA), 28 U.S.C. 2254, believing this
necessary to finalize his conviction and proceed with his sentence. For
over two years, Lopez sought to waive his federal habeas proceedings.
The lower court held a hearing during which Dr. Proctor, a forensic
psychologist, and Lopez testified. Based on the pleadings filed and
testimony elicited at the hearing, the district court found Lopez
competent, granted his waiver, dismissed his petition with prejudice, and
granted a certificate of appealability (COA) on the sole issue of
competency to waive. This Court should affirm the district courts finding
of Lopezs competency and the dismissal of his petition.
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STATEMENT OF THE ISSUES

1.
Whether the district court erred in accepting Lopezs waiver of his
federal habeas proceedings.

2.
Whether the district court erred in relying upon the reports of Drs.
Martinez
and
Proctor
and
denying
Lopezs
application
for
neuropsychologist and investigatory services.

STATEMENT OF THE CASE
Facts of the Crime1
At approximately midnight of March 11, 2009, Officer Stephen Cox
of the Corpus Christi Police Department witnessed Lopez run a stop sign
going nearly sixty miles an hour on neighborhood streets. Lopez believed
there was a warrant for his arrest due to his failure to comply with his
probation conditions. Lopez did not stop when Officer Cox activated his
lights; instead he drove to his residence and stopped his car there. Officer
Cox confronted Lopez, and Lopez physically assaulted him. Lopez
escaped to his vehicle, and a chase ensued involving several officers.
Given the focus of this appealLopezs competency to waive his federal habeas
proceedingsand in the interest of brevity, Respondent Stephens (the Director)
presents only a brief recitation of Lopezs crime. For a full presentation please see the
opinions cited from the lower court and the Texas Court of Criminal Appeals.
1
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The officers used various means to stop Lopezs vehicle, including

laying down stop sticks. During the chase, Lieutenant Stuart
Alexander was deploying stop sticks at an exit of Highway 358. Lopez
swerved his car, struck and killed Lieutenant Alexander, swerved back
onto the highway, and continued fleeing. Even after Lopezs vehicle was
all but immobilized, he continued to use it as a battering ram aiming for
various officers and vehicles. Lopez finally stopped after sustaining
gunshots to his left arm, neck, and upper chest area. ROA.34166
(Memorandum and Order and Final Judgment); Lopez v. State, 2012
WL 5358863 (Tex. Crim. App. Oct. 31, 2012).
Lopezs Trial
Lopez was indicted on ten counts for various offenses, the most
serious being capital murder for the death of Lieutenant Alexander. 1 CR
39.2 Lopez initially plead not guilty on all counts. 2 RR 56.3 Upon a
motion from trial counsel, the judge appointed Dr. Troy Martinez, a
forensic and clinical psychologist, to evaluate Lopez and assist trial
CR refers to the Clerks Record of pleadings and documents filed in the state trial
court. This reference is preceded by the volume number and followed by the pertinent
page numbers.
3 RR refers to the Reporters Record from the trial. This is preceded by the volume
number and followed by the pertinent page numbers.
2
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counsel in preparing a defense. 1 CR 1921. Some months later, in a

status hearing, Lopez told the court he wanted to plead guilty; however,
the trial judge erroneously said a defendant on trial for capital murder
could not plead guilty. 3 RR 8. Lopez also informed the court he would
refuse to see that psychologist (presumably Dr. Martinez). Id. at 11.
Dr. Martinez noted that Lopez initially would not cooperate in the
evaluation; but Lopez eventually consented, though still at times reticent
to fully disclose information. ROA.23233. Ultimately, Dr. Martinez was
able to complete his report. ROA.22436. In this report Dr. Martinez
noted that Lopez had mixed feelings early on about facing a potential
death sentence. ROA.233. These feelings became increasingly firm over
time such that he made clear his desire for a death sentence rather than
any period of imprisonment (which he perceives as unavoidable). Id. Dr.
Martinez stated:
Asked then about what he planned to tell the jury, he simply
stated that he would say he intentionally struck the officer
with his vehicle, for the purposes of insuring the death
penalty rather than any available alternative; i.e., a long-term
prison sentence.
ROA. 234.
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A week before trial the state offered Lopez a deal of life without
parole in return for his guilty plea. 16 RR 7980. Lopez rejected that deal
and entered a plea of not guilty. Id. at 46, 7980. Prior to closing
argument during the guilt / innocence phase, trial counsel informed the
judge outside the presence of the jury that Lopez insisted on testifying
that he did in fact intentionally run over the officer, despite the fact that
he's told us in earlier discussions that this was not intentional and it was
accidental. 21 RR 99. When the court questioned Lopez, he stated
Whenever I tried to fire him, my counsel at the beginning
[when Lopez wanted to plead guilty], they said they are going
to do what I wanted, and we have to put in their defense and
so we did put in a defense. And now I want to go and testify,
but they are going to be against me.
Id. at 101. After the court admonished Lopez regarding his right to testify
and advised him to carefully consider his counsels guidance, Lopez opted
to not testify. Id. at 10103. The jury found Lopez guilty on all ten counts
including capital murder. 22 RR 48. Following the presentation of
evidence during the punishment phase, the jury returned answers to the
special issue questions requiring a sentence of death. 26 RR 12430; 2
CR 24448.
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Postconviction Proceedings
A.
Lopezs direct appeal.
After Lopez was sentenced, the judge informed him that direct
appeal was automatic by operation of law and the court would appoint
both appellate and state habeas counsel. 26 RR 13031. A week later on
March 10, 2010, at a posttrial hearing (discussed in greater detail below,
see infra Statement of the Case III(B)), the judge reaffirmed this: you've
[Lopez] already told me, on a number of occasions, that you wanted to
waive your appeal, and I have instructed you that that is not an option
to you. 27 RR 12. During this same hearing appellate counsel intimated,
And Mr. Lopez does not want a new trial, and hopes that my efforts on
the appeal will not win him a new trial . . . . Id. at 8.
Approximately a month later, Lopez filed a motion to proceed with
his appeal pro se. 29 RR 4; 2 CR 25051. The judge explained competency
to waive appeal and competency to effectively represent ones self pro se
are scrutinized differently. 29 RR 68. The judge believed Lopez was
competent to waive his appeal if that were an option. Id. at 47. He
remarked, [A]ll along Mr. Lopez . . . wanted to be found guilty, [] he did
not want to go through a lengthy appeal, but wanted to move directly to
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. . . . the punishment that the jury had assessed. 56. However, the judge
denied Lopezs request. Id. at 11. This was not due to a mental defect; in
fact the judge noted the motion literally has laid out the appropriate
findings that I would have to make . . . . Id. at 45. Rather, the judge
based it on Lopezs age, education and lack of experience in dealing in
capital murder cases. Id. at 11. The judge also had questions as to
whether state law would even allow selfrepresentation on a capital
appeal. Id. at 1213.
After the appellate attorney filed his brief with the Court of
Criminal Appeals, Lopez sent a letter dated August 1, 2011, to that court.
In it Lopez stated,
I . . . choose not to fight my conviction or sentence. I accept
full responsibility for my actions and feel my sentence is fare
[sic]. I do not agree with the issues raised by [appellate
counsel] in my appeal. I dont feel the death penalty is
unconstitutional. I do not wish for a new trial. I do not agree
that Im not a future danger. I know Im a danger to others
given the chance.
SHCR EventID: 2474349.4 Months later Lopez sent a second letter to the
court seeking to hasten his appeal. Here he threatened,
SHCR refers to the State Habeas Clerks Record of pleadings and documents for
Lopezs state writ application. This is followed by the EventID number.
4
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Would you like me to hurt some more correction officers to

help speed up the process? Ill know its a yes if I havent heard
from yall within a month because Im looking forward to
starting my life over again or whatever awaits me, cause Im
useless just waiting here.
Lopez v. State, No. AP-76,327, letter dated Dec. 20, 2011. On October 31,
2012, the Court of Criminal Appeals denied relief on direct appeal as to
all claims. Lopez v. State, 2012 WL 5358863, *10 (Tex. Crim. App. Oct.
31, 2012).
B.
Lopezs waiver of state habeas counsel and proceedings.
On March 10, 2010, the court held a posttrial hearing to discuss

Lopezs desire to waive the appointment of state habeas counsel. 27 RR
46. Both trial counsel and appellate counsel advised him on the
importance of state habeas proceedings. Id. at 611. Appellate counsel
specifically cautioned that Lopez may inadvertently waive potential
federal review as well by not pursuing a state writ. Id. at 9. Both believed
he was intelligent enough to understand the proceedings and competent
to make the decision. Id. at 611.
Trial counsel stated, But he still is pretty steadfast in his
resolution to be executed, and so, I'm I'm comfortable that I've
explained and comfortable that he does, indeed, seem to understand what
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he wants to do. Id. at 10. He later said, And what it boils down [sic] is
the fact that he wants the death penalty. Hed like to be executed, maybe
next week, if they could get it done, and it is quite certain hes not gonna
change his mind. Id. at 9. After the judge gave him the admonitions and
instructions, he found Lopez competent to waive and requested that
waiver be reduced to writing. Id. at 1112. The following day, the court
held a second hearing at which Lopez knowingly, voluntarily, and
intelligently pled guilty to four more felonies. 28 RR 415. The judge then
accepted his written waiver of state habeas counsel. Id. at 1516; 2 CR
239 (Lopezs waiver), 240241 (court order). As the judge again
admonished Lopez, the following exchange took place:
The Court: And do you feel youre mentally competent?
[Lopez]:
Yes.
The Court: Never been a doubt in my mind that you

understand what is going on.
28 RR 56.
The trial judge filed with the Court of Criminal Appeals Lopezs
August 1, 2011, letter; his written waiver; a copy of the March 11, 2010,
hearing; and the trial courts order accepting the waiver of state habeas
counsel. SHCR EventID: 2474349. The State filed its habeas brief, and
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predictably, Lopez never filed an application with the convicting court.

Because the time to file passed, the Court of Criminal Appeals accepted
Lopezs competent waiver. Ex parte Lopez, No. WR-77,157-01 (Tex. Crim.
App. Apr. 18, 2012).
Nonetheless, from the date of his conviction in March
2010, applicant has continued to express his desire to waive
habeas review. As recently as August 2011, applicant sent a
letter directly to this Court reemphasizing his desire to
waive habeas review.
***
Because no application was filed and because applicant
expressed his desire to waive habeas review, we will now
accept applicants waiver and note that his failure to timely
file an application constitutes a waiver of all grounds for relief
that were available to him before the last date on which his
application could have been timely filed
Id. Finally, on May 4, 2012, Lopez wrote a letter to the court inquiring
about waiver of federal habeas proceedings; alternatively, he asked about
filing a petition [i]n order to expedite this process to end federal review
before the oneyear limitations period would expire. SHCR EventID:
2484835.
C.
Lopezs federal habeas proceedings begin.
Less than two weeks after sending the above letter to the Court of
Criminal Appeals, Lopez filed his federal habeas petition pro se with the
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lower court on May 17, 2012. ROA.1019. In his petition he asserted only
one ground for relief: The administration of the death penalty in Texas
violates the Eighth Amendment prohibition of cruel and unusual
punishment. ROA.15.5 Because Lopezs direct appeal was still pending
in the Court of Criminal Appeals, the district judge stayed and
administratively closed the case. ROA.32.
Less than a month after the Texas high court denied relief on direct
appeal, Lopez filed what would be his first of many motions to waive his
federal proceedings. ROA.33. After prompting from the district court,
Lopez filed a clear copy of the same motion on December 12, 2012.
ROA.38. He reaffirmed that he filed a federal habeas petition solely
because he thought it would be quicker instead of waiting for the 1 yr
statute of limitation to expire. Id. He further demonstrated a clear
understanding of what the court would require in order to waive: I am
assuming this court will want to make sure Im mentally competent
This lone claim itself supports Lopezs earlier inquiry as to how best to expedite
federal habeas proceedings. First, the law in this area is well settled and allows for a
swift and easy defeat of the claim. Second, he specifically stated in his August 1, 2011,
letter to the Court of Criminal Appeals that he dosent feel the death penalty is
unconstitutional. SHCR EventID: 2474349.
5
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(which I assure you I am which has been proven during my first waiver)
and am willing to undergo any evaluation yall have for me. Id.
In its following order, the district court reopened the case, provided
for the appointment of counsel, later named as Lopezs current counsel
on appeal, and ordered the parties to submit the suggestion of an expert
to evaluate Lopezs competency. ROA.4041.6 Opposing counsel filed
with the court its recommendation for an expert, Dr. Mosnik. ROA.51
53. However, Respondent recommended Dr. Allen. ROA.8082. Lopez
filed a pro se motion to accept the psychological evaluation completed
pretrial by Dr. Martinez. See supra Statement of the Case II; ROA.79.
Failing this, Lopez recommended Dr. Martinez serve as the expert. Id.
Again Lopez demonstrated, as he would throughout these proceedings,
both clarity of the issue at bar and acuity into a quick resolution: I
submit these documents as proof to inform the court that I am competent
enough to waive my federal appeals and also to save time and money
from this process. Id.
The district courts language is worth noting here because it makes apparent from
the outset the courts determination that it will only hear from one expert agreed
upon by both parties.
6
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On March 20, 2013, Lopez filed a pro se response with the court.
ROA.14142. Here Lopez first explained that any determination of
competency should be based on his present state of mind. Id. He further
explained his continuous attempts to waive all appeals. Id. He next
argued that the court should allow him to make the choice to both accept
responsibility for his crimes and own his punishment. Id. He ended with
a clear statement that he did not support his counsels attempts to prove
him incompetent. Id. Following a teleconference involving both parties
and the court, the district judge entered an order appointing Dr. Proctor
as the agreedupon expert to examine Lopez. ROA.14950. Lopez then
filed a pro se Motion to Expedite Mental Evaluation. ROA.151.
After Dr. Proctor issued his report answering the lower courts
questions in such a manner as to find Lopez competent, opposing counsel
filed a motion for further neuropsychological services, again seeking the
appointment of Dr. Mosnik. ROA.15762. In response, Lopez filed pro se
his first motion seeking to dismiss counsel citing their disagreement as
to how to proceed. ROA.164. I now have been proven competent twice by
Dr. Troy Martinez, and Dr. Timothy James Proctor, and would like to
exercise my right once again to proceed pro se. Id. Lopez also filed a
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motion to accept his waiver based on Dr. Proctors report. ROA.166.

About a week later Lopez filed a motion to provide him with school,
medical, and mental health records. ROA.176. Lopez later filed a letter
with the court wherein he requested a copy of all docket entries to date
and asked to be placed on the mailing list. ROA.181.
D.
The hearing in federal district court.
The district court set a hearing to determine competency and

required Dr. Proctor and Lopez to testify on the matter. ROA.17879.
Both witnesses were questioned by the court, opposing counsel, and
counsel for Respondent. ROA.419512. Dr. Proctor began by discussing
his examination of Lopez. ROA.425. He prepared by reviewing
approximately 9,500 pages of records covering school records, general
medical records, psychological reports, including a lengthy psychological
report that had been done by Dr. Martinez in conjunction with his trial;
criminal records, court transcripts, records from TDCJ. ROA.426. He
then conducted an inperson evaluation during which he administered
the Personality Assessment Inventory. ROA.42627.
In assessing Lopez, Dr. Proctor focused on three main issues: 1)
mental disease or defect, 2) level of intelligence, and 3) possible
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depression and / or suicidal ideation. ROA.42933. On the first issue, Dr.

Proctor stated, I did not find any indication of any severe mental disease
of defect. ROA.428.
When someone's incompetent for any reason, typically
it's because, one, they have some kind of what we call a
psychotic disorder. I did not see any evidence of that type of
disorder with Mr. Lopez. I didn't see that he had been
diagnosed with that previously, and I didn't see evidence of it
in my evaluation.
ROA.431. He continued, The next issue that comes up in competency is
one I've already addressed, which is low intelligence. I did not see that as
being an issue . . . . ROA.432. Finally,
The third issue which, as I said, I really did pay careful
attention to here is depression. You know, is Mr. Lopez
someone who is so depressed that they are, that he's unable
to consider the options before him? That he is unable to make
a logical and rational choice regarding his situation?
And I did not see evidence of that in my evaluation of him. I
certainly know his history of depression, but he did not
present to me as someone who is currently in a clinically
depressed state and is attempting suicide and is, and is, in
particular, unaware of the options and choices before him in
his case.
To the contrary, you know, he went into detail about why he
was making the decisions that he was making. He talked
about that he believes his conditions in prison are liveable
[sic]. He said he's not just trying to escape that environment.
And he explained more about the underpinnings of his
decision.
15
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***
I will point out neither did Dr. Martinez, who saw him in
2010, and I did not see evidence that that was, that there was
a depressive disorder that was contributing to him being
incompetent at this time.
Id.
When later questioned by opposing counsel about the possibility of
the execution serving as a de facto assisted suicide, Dr. Proctor explained,
I think its something I spent a lot of time considering. To me,
there is a distinction there between is this somebody who is
saying, Im going to use the court system I want to commit
suicide. Im going to use the court system as a way to commit
suicide. Or is this someone who is saying, This is the
situation before me. These are the choices I have. This is the
sentence that I believe I'm going to get at trial, or that I have
now. And given all the circumstances, I'm going to accept this
punishment and go along with it.
ROA.45354. He again came back to this explanation: But for a person
to think, Look, what I did I think meets the punishment Im being given,
whether we would all agree with it or not, thats a decision someone could
make without being irrational. ROA.459.7 Based on the above Dr.
Proctor concluded,
And ultimately it was my opinion, as you said, Your
Honor, that he is competent to waive his federal habeas
review. I believe he has the capacity to appreciate his position
7
Lopezs own testimony would later echo this very sentiment.
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and make a rational choice with respect to continuing or

abandoning his further litigation. As I said, I don't believe he's
suffering from any type of mental disease, disorder, defect,
which substantially affects his capacity or prevents him from
understanding his legal positions, the options available to
him, or prevents him from making a rational choice among his
options.
ROA.42829.
In his testimony Lopez was steadfast in his resolve to waive his
federal habeas petition. The following exchanges occurred during the
courts examination:
Q:
So when you filed your federal habeas appeal . . . you

thought you had to . . . file an appeal?
A:
Yes. I was told I was going to be appointed a lawyer if I

didn't file nothing myself. So and on top of that, I
wanted to expedite the process. So I went ahead and
filed it. And once you accepted it, I put in my motion for
waiver of appeals.
Q:
Okay. So did you want to appeal at that time?
A:
No, maam.
***
Q:
Okay. So from the beginning, you have not wanted to file

an appeal, and youre saying you didnt want to file even
this federal habeas petition?
A:
Yes, because I accepted my punishment.
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***
Q:
And if you waive your federal appeals, if you ask me to

terminate your federal habeas petition and I do that,
and I dismiss your claim, that conviction and your death
sentence is final, and you will be executed. . . . . There
are no more challenges. If I dismiss your if I find you
competent to waive your federal habeas review, you
dont get to say I change my mind later.
A:
I understand that.
Q:
Because you know what will happen then? The Fifth

Circuits going to say, No, you cant do that. And Texas,
you go forward and execute this man.
A:
And Ive had four years to, to understand that. And I

still agree with waiving my appeals.
ROA.47580.8 Finally, the court ended with this question:

Q:
So if I dismiss your petition as youre asking me to, you

understand the State of Texas is going to ask for an
execution date, rather quickly?
***
A:
The decision this whole time has been constant, and Ive
never changed it. So yes, I understand that.
ROA.48283.
For ease of reading, portions of the transcript consisting of interruptions or non

sequitous questions and answers were omitted.
8
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A particular exchange between Lopez and opposing counsel offers

striking relief to his awareness of the proceedings and potential
outcomes. Opposing counsel began questioning Lopez regarding a letter
Lopez sent to counsel, apparently dated October 25th, 2012. ROA.497.
Counsel properly authenticated the document was written by Lopez.
ROA.498. However before counsel could further question him regarding
its contents, Lopez asserted his attorneyclient privilege. Id. Lopez
evaluated a potential piece of evidence, assessed its value for his intended
outcome, and exercised a rule of evidence to bar its admission into the
hearing. Lopez concluded his testimony, and each side made final
arguments on the issue.
E.
Filings after the hearing and the district courts resolution.
Two weeks after the hearing, Lopez filed a letter with the court
covering some topics that arose during testimony. ROA.19394. He
continued to assert that he was merely wanting to accept his punishment
and was not suicidal as suggested by opposing counsel. Id. He also
stressed to the court that the purpose of the hearing was simply to
determine competency; it was not a platform for his counsel to press
potential claims for relief. Id. Yet again he displayed a clear awareness
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of the proceedings at hand. Lopez later filed a second pro se motion to

dismiss opposing counsel. ROA.31820. Finally, Lopez filed a motion in
opposition of counsels renewed application for reasonably necessary
services. ROA.32836.
Taking everything into consideration, the district court, in its final
order and judgment, granted Lopez his waiver, granted Lopezs motion
to dismiss counsel upon the conclusion of appeal, and dismissed the case
with prejudice. ROA.34166. However, the court granted a COA on the
sole issue of competency to waive. ROA.364. Opposing counsel filed a
notice of appeal to this court. ROA.367. Lopez responded by filing a pro
se motion to withdraw the notice of appeal. ROA.414.
SUMMARY OF THE ARGUMENT
Opposing counsel raises two claims on appeal. First, counsel asserts
the district court erred in accepting Lopezs waiver of his federal habeas
proceedings. The district court applied the Supreme Courts standard for
competency to waive federal proceedings as set out in Rees v. Peyton, 384
U.S. 312 (1966) and applied by this Court in Rumbaugh v. Procunier, 753
F.2d 395 (5th Cir. 1985) and its progeny. There was no evidence before
the court that Lopez failed any prong of the Rumbaugh test. On the
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contrary, there was ample evidence to show Lopez did not suffer from any
mental disease or defect, he had a thorough understanding of his legal
position and the available options, and he was rational in his choice to
waive. Any argument to the contrary is without foundation.
Counsel also alleges the district court erred in relying upon the
reports of Drs. Martinez and Proctor and denying Lopezs application for
neuropsychologist and investigatory services. The first issue informs the
district courts valid denial of counsels motions for further funding and
testing. The weight of evidence in favor of granting Lopezs request for
waiver did not require further investigation. Further, such requests are
not a matter of right but rather are at the courts discretion. Finally, the
court was correct to rely upon the expert agreed upon by both parties. For
these reasons this Court should affirm the lower courts decision.
ARGUMENT
The Lower Courts Grant of Waiver was well Informed and Proper.
Upon review by this Court, a district courts determination of an
inmates competency to waive his federal habeas proceeding is thus
protected by the shield and buckler of Fed. R. Civ. P. 52(a), and must be
accepted unless shown to be clearly erroneous. Rumbaugh, 753 F.2d at
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399 (citing Floyd v. United States, 427 F.2d 63 (5th Cir. 1970)). A finding
is clearly erroneous only if it is implausible in the light of the record
considered as a whole. Rivera v. Quarterman, 505 F.3d 349, 361 (5th
Cir. 2007). Opposing counsel first claims the district court erred in
accepting Lopezs waiver of his federal habeas proceedings. Appellants
Br. 1521 (Br.). Generally, a criminal defendant has the right to make
his defense because it is he who suffers the consequences if the defense
fails. Faretta v. California, 422 U.S. 806, 81920 (1975). He is the
master of his own defense. Moore v. Johnson, 194 F.3d 586, 606 (5th
Cir. 1999). Specifically, an inmate under a sentence of death may waive
his federal habeas proceeding if he is competent to make such a decision.
Whitmore v. Arkansas, 495 U.S. 149, 16566 (1990); Rees, 384 U.S. at
314.
[A] habeas court must conduct an inquiry into the defendants
mental capacity, either sua sponte or in response to a motion by
petitioners counsel, if the evidence raises a bona fide doubt as to his
competency. Mata v. Johnson, 210 F.3d 324, 330 (5th Cir. 2000). The
wellestablished standard for competency to abandon federal habeas
review asks whether he has capacity to appreciate his position and make
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a rational choice with respect to continuing or abandoning further

litigation or on the other hand whether he is suffering from a mental
disease, disorder, or defect which may substantially affect his capacity in
the premises. Rees, 384 U.S. at 314. This Court laid out a three part test
to satisfy the Rees standard:
(1)
Is the person suffering from a mental disease or defect?
(2) If the person is suffering from a mental disease or defect,

does that disease or defect prevent him from understanding
his legal position and the options available to him?
(3) If the person is suffering from a mental disease or defect
which does not prevent him from understanding his legal
position and the options available to him, does that disease or
defect, nevertheless, prevent him from making a rational
choice among his options?
Rumbaugh, 753 F.2d at 398.9

If the answer to the first question is no, the court need go no
further, the person is competent. If both the first and second
questions are answered in the affirmative, the person is
incompetent and the third question need not be addressed. If
the first question is answered yes and the second question is
answered no, the third question is determinative; if yes, the
person is incompetent, and if no, the person is competent.
The lower court noted that at times this test has been collapsed into two questions.
ROA.357; see Wilcher v. Anderson, 188 F. Appx 279, 281 (5th Cir. 2006); Mata, 210
F.3d at 328.
9
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Id. This Court has further held that adequate due process in these
circumstances may require,
ordering and reviewing a current examination by a qualified
medical or mental health expert, allowing the parties to
present any other evidence relevant to the question of
competency and, on the record and in open court, questioning
the petitioner concerning the knowing and voluntary nature
of his decision to waive further proceedings.
Mata, 210 F.3d at 331.

To that end the district court here, upon agreement of both parties,
appointed Dr. Proctor to examine Lopez and
determine whether Lopez is competent to waive federal
habeas review, evaluating (1) whether he has capacity to
appreciate his position and make a rational choice with
respect to continuing or abandoning further litigation or (2)
whether he is suffering from a mental disease, disorder, or
defect which may substantially affect his capacity, such that
it prevents him from understanding his legal position and the
options available to him and prevents him from making a
rational choice among his options.
ROA.149 (citations omitted). As to the first question of mental disease or
defect, Dr. Proctor testified he spent a significant portion of his document
review and examination considering both potential depression and
possible suicidal ideation. ROA.42832, 45354. Ultimately, he did not
find any indication of any severe mental disease or defect. ROA.428. As
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discussed above, he maintained this view even when opposing counsel

pressed him on the issue. See supra Statement of the Case III(D).
Opposing counsel now argues that possible suicide attempts and
depression in his teenage years, as well as a familial history of
depression, are conclusive on this first question. This is incorrect. Rather,
[t]he extent and severity of the petitioner's history of mental health
problems which have been brought to the courts attention influence the
breadth and depth of the competency inquiry required. Mata, 210 F.3d
at 330. Even suicide attempts alone are not dispositive. United States v.
Davis, 61 F.3d 291, 304 (5th Cir. 1995). This must be weighed in
conjunction with all other evidence presented with respect to a
defendants mental stability and competence. Mata, 210 F.3d at 330.
This Court spoke squarely on the topic:
The idea that the deliberate decision of one under sentence of
death to abandon possible additional legal avenues of attack
on that sentence cannot be a rational decision, regardless of
its motive, suggests that the preservation of ones own life at
whatever cost is the summum bonum, a proposition with
respect to which the greatest philosophers and theologians
have not agreed and with respect to which the United States
Constitution by its terms does not speak.
Autry v. McKaskle, 727 F.2d 358, 363 (5th Cir. 1984) (quoting Lenhard
v. Wolff, 443 U.S. 1306, 1313 (1979) (Rhenquist, J., in chambers)). Indeed,
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Dr. Proctor testified at the hearing that Lopezs attempt to waive his
proceedings is born out of a desire to accept his punishment. ROA.453
54. Lopez has continued to say these words in various written pleading
and at the federal evidentiary hearing. See supra Statement of the Case
II & III. Based on all the pleadings and hearing testimony, the court
properly found that there was no evidence of mental disease or defect.
The court could have ended the inquiry here; but it properly decided to
examine all three parts of the test.
There is no question based on this record that Lopez understands
his legal position and his options. From the time that Lopez first
attempted to plead guilty, he has maintained that he killed Lieutenant
Alexander. Immediately after the jury imposed the sentence of death,
Lopez began strategically planning how to best expedite his appeals. He
attempted to represent himself pro se on direct appeal, he waived his
right to state habeas counsel, and he waived his federal habeas
proceeding. In fact, he only filed his federal habeas petition because he
believed it would expedite the carrying out of his sentence. Had he known
that there was no legal impediment to setting an execution date once his
direct appeal was denied, he may very well have never filed. Even at the
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federal hearing when opposing counsel attempts to question him

regarding a letter he received from Lopez, Lopez asserted his attorney
client privilege to block the letter from consideration by the court.
Finally, Lopezs choice appears to be nothing if not rational. During
the punishment phase, the State read into evidence a letter from Lopez:
My lawyer told me if I take the death penalty and waive all
my appeals they will kill me in three years, which I need to
die because I am not a good person. When I die in three years,
all my kids will get $300 to $400 a month from SSI till they
turn 18 years old.
24 RR 89. During the federal habeas hearing he repeatedly discussed
with the district judge his wish to accept what he viewed as a just
punishment for his crime. As the district judge said, Since his arrest,
Lopez has singlemindedly pursued a course towards ensuring that the
State of Texas will execute him. ROA.343. Indeed his numerous pro se
pleadings in federal and state court have unwaveringly conveyed his
hope to end all legal challenges. ROA.350. In Lopezs own words: I want
to get this over with. I want to move on with my life. I accept my
punishment. . . . . And I wish yall would respect that. And even though
yall might not agree with me, but respect my decision.
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Further Funding for Investigatory and Neuropsychology Services

were Unnecessary Given the Weight of Evidence in favor of the
Courts Grant of Waiver.
Second, opposing counsel alleges the district court erred in relying
upon the reports of Drs. Martinez and Proctor and denying Lopezs
application for neuropsychologist and investigatory services. Br. 2128.
A court has discretion to provide funding for expert assistance upon a
showing that it is reasonably necessary. 18 U.S.C. 3599(f); Smith v.
Dretke, 422 F.3d 269, 28889 (5th Cir. 2005). Funding may be denied
where it would only provide evidence on a procedurally defaulted claim,
on a claim that is meritless, or where the assistance would merely
supplement prior evidence. Riley v. Dretke, 362 F.3d 302, 30708 (5th
Cir. 2004); Barraza v. Cockrell, 330 F.3d 349, 352 (5th Cir. 2003); Hill v.
Johnson, 210 F.3d 481, 48687 (5th Cir. 2000). Ultimately, opposing
counsel believes further funding was needed for a second expert opinion.
Although they agreed to the appointment of Dr. Proctor, they argue his
evaluation did not meet the standard laid out in Mata because his opinion
was illinformed.
As discussed above, Dr. Proctor reviewed 9,500 pages of records,
including a report by Dr. Martinez, and took those records into
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consideration when forming his opinion. See supra Statement of the Case
III(D). Dr. Proctor gave a full evaluation both in his report and at the
federal evidentiary hearing. Based on this testimony, Lopezs testimony,
and the pleadings in the case, the district court made a correct
determination in granting the waiver. See supra Argument I. Thus, any
evidence resulting from the funding would have at best supplemented the
record.
There is no evidence that Dr. Proctors assessment was inadequate.
Rather, its fair to assume opposing counsels argument simply indicates
displeasure with Dr. Proctors conclusions and the courts reliance on
them. But a defendant does not have a right to the appointment of [an
expert] who will reach biased or only favorable conclusions. Granviel v.
Lynaugh, 881 F.2d 185, 192 (5th Cir. 1989). Nor is a defendant entitled
to choose [an expert] of his personal liking. Woodward v. Epps, 580 F.3d
318, 331 (5th Cir. 2009) (citing Ake v. Oklahoma, 470 U.S. 68, 83 (1985)).
Because the Court appointed a neutral expert agreed upon by all parties,
it was unnecessary for the Court to permit Lopezs counsel to shop for
another. Thus, the district court correctly denied further funding.
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CONCLUSION
For the above reasons the Director respectfully requests this Court
affirm the lower courts decision to grant Lopezs waiver of his federal
habeas proceedings.
Respectfully submitted,
KEN PAXTON
Attorney General of Texas
CHARLES E. ROY
First Assistant Attorney General
ADRIENNE McFARLAND
Deputy Attorney General
for Criminal Justice
EDWARD L. MARSHALL
Chief, Criminal Appeals Division
s/ Travis G. Bragg
TRAVIS G. BRAGG
State Bar No. 24076286
Counsel of Record
P.O. Box 12548, Capitol Station

Austin, Texas 78711-2548
Tel: (512) 936-1400
Fax: (512) 936-1280
Email: Travis.Bragg@texas
attorneygeneral.gov
Counsel for Respondent
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CERTIFICATE OF SERVICE
I hereby certify that on January 21, 2014, I electronically filed the
foregoing brief with the Clerk of the Court for the United States Court of
Appeals for the Fifth Circuit using the electronic casefiling system of
the Court. The electronic casefiling system sent a Notice of Electronic
Filing to the following attorney of record, who consented in writing to
accept this notice as service of this document by electronic means:
James Gregory Ryttng
Hilder & Associates, P.C.
819 Lovett Blvd.
Houston, TX 77006
David R. Dow
University of Houston Law Center
100 Law Center
Houston, TX 77204
s/ Travis G. Bragg
TRAVIS G. BRAGG
CERTIFICATE OF COMPLIANCE
This brief complies with Rule 32(a)(7)(C) of the Federal Rules of
Appellate Procedure. It contains 6,505 words, Microsoft Word 2010,
Century, 14 points.
s/ Travis G. Bragg
TRAVIS G. BRAGG
ELECTRONIC CASE FILING CERTIFICATIONS
I hereby certify that: (1) all required privacy redactions have been
made; (2) this electronic submission is an exact copy of the paper
document; and (3) this document has been scanned using the most recent
version of a commercial virus scanning program and is free of viruses.
s/ Travis G. Bragg
TRAVIS G. BRAGG
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United States Court of Appeals

FIFTH CIRCUIT
OFFICE OF THE CLERK
LYLE W. CAYCE
CLERK
TEL. 504-310-7700
600 S. MAESTRI PLACE
NEW ORLEANS, LA 70130
January 21, 2015

Mr. Travis Golden Bragg
Office of the Attorney General
for the State of Texas
P.O. Box 12548
Capitol Station
Austin, TX 78711-2548
No. 14-70025
Daniel Lopez v. William Stephens, Director

USDC No. 2:12-CV-160
Dear Mr. Bragg,

You must submit the seven (7) paper copies of your brief required
by 5TH CIR. R. 31.1 within five (5) days of the date of this notice
pursuant to 5th Cir. ECF Filing Standard E.1.
Sincerely,
LYLE W. CAYCE, Clerk
By: _________________________
Monica R. Washington, Deputy Clerk
504-310-7705
cc:
Mr. David R. Dow

Mr. James Gregory Rytting

AG Response To 5th Circuit Appeal

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AG Response To 5th Circuit Appeal

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Case: 14-70025

Date Filed: 01/21/2015

United States Court of Appeals for the Fifth Circuit

On Appeal from the United States District Court

Post Office Box 12548, Capitol Station

Counsel for RespondentAppellee

Date Filed: 01/21/2015

CERTIFICATE OF INTERESTED PERSONS

Date Filed: 01/21/2015

Prior counsel for Defendant (state court)

Date Filed: 01/21/2015

STATEMENT REGARDING ORAL ARGUMENT

Date Filed: 01/21/2015

Lopezs direct appeal. .............................................................. 6

Lopezs waiver of state habeas counsel and proceedings.

Lopezs federal habeas proceedings begin. ........................... 10

The hearing in federal district court. ................................... 14

Filings after the hearing and the district courts

SUMMARY OF THE ARGUMENT ........................................................ 20

Date Filed: 01/21/2015

Further Funding for Investigatory and Neuropsychology

Date Filed: 01/21/2015

Ake v. Oklahoma, 470 U.S. 68 (1985) ..................................................... 29

Date Filed: 01/21/2015

Wilcher v. Anderson, 188 F. Appx 279 (5th Cir. 2006) .......................... 23

Date Filed: 01/21/2015

Date Filed: 01/21/2015

STATEMENT OF THE ISSUES

Whether the district court erred in accepting Lopezs waiver of his

federal habeas proceedings.

neuropsychologist and investigatory services.

Date Filed: 01/21/2015

The officers used various means to stop Lopezs vehicle, including

Date Filed: 01/21/2015

counsel in preparing a defense. 1 CR 1921. Some months later, in a

Date Filed: 01/21/2015

Date Filed: 01/21/2015

Lopezs direct appeal.

Date Filed: 01/21/2015

Date Filed: 01/21/2015

Would you like me to hurt some more correction officers to

Lopezs waiver of state habeas counsel and proceedings.

On March 10, 2010, the court held a posttrial hearing to discuss

Date Filed: 01/21/2015

The Court: Never been a doubt in my mind that you

Date Filed: 01/21/2015

predictably, Lopez never filed an application with the convicting court.

Lopezs federal habeas proceedings begin.

Date Filed: 01/21/2015

Date Filed: 01/21/2015

Date Filed: 01/21/2015

Date Filed: 01/21/2015

motion to accept his waiver based on Dr. Proctors report. ROA.166.

The hearing in federal district court.

The district court set a hearing to determine competency and

Date Filed: 01/21/2015

depression and / or suicidal ideation. ROA.42933. On the first issue, Dr.

Date Filed: 01/21/2015

Lopezs own testimony would later echo this very sentiment.

Date Filed: 01/21/2015

and make a rational choice with respect to continuing or

So when you filed your federal habeas appeal . . . you

Yes. I was told I was going to be appointed a lawyer if I