Lead Opinion
Perry Allen Austin was convicted of capital murder in Texas state court and sentenced to death. The Texas Court of Crim-ina,! Appeals affirmed the trial court’s judgment and subsequently dismissed Austin’s state habeas petition as untimely. Austin filed a federal habeas petition. The federal district court granted summary judgment for the State and denied a certificate of appealability (CQA). This court granted Austin a COA on fourteen - of his twenty-one grounds. We now affirm the district court’s judgment.
I
We briefly recount the pertinent facts leading up to Austin’s trial for capital murder, as outlined in a prior opinion:
In 1978, [Austin] raped one of his adolescent sisters at gunpoint and attempted to rape another, before robbing a third, older sister and his mother.... A jury convicted Austin, of rape, attempted rape, and aggravated robbery.
Following this conviction, Austin was released on parole in 1991 and began a sexual relationship with J.O., a fourteen-year-old female. Through J.O., Austin met D.K., a nine-year-old male. D.K. disappeared in August 1992. While investigating D.K’s disappearance, police discovered Austin’s relationship with J.O, and charges were brought against Austin. He pled guilty to sexual assault of a child and. received a thirty-year sentence. In April 1993, D.K.’s remains were found. Although there was physical evidence connecting Austin to D.K.’s murder and Austin admitted that D.K. had. been in his vehicle the day of D.K.’s disappearance, police did not believe they had sufficient evidence to prove Austin was responsible for D.K.’s murder.
Austin alleges that prison conditions caused his mental health to deteriorate after he was incarcerated for sexually assaulting J.O. In 1995, he stabbed another prisoner and received an additional 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. [Austin stated if that was not guaranteed, he would kill a prison guard as a way of guaranteeing himself the death penalty.]1 Austin was interviewed at the state prison and confessed orally and in writing to slitting D.K’s throat with a knife because Austin was angry at D.K’s brother for allegedly stealing drugs from Austin’s car. Austin was indicted for capital murder on February 15,2001. On March 21, Mack Arnold was appointed to represent Austin.2
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.”
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.
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.
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.
After the Faretta hearing, but before trial began, Austin submitted an affidavit to the state trial court, stating that he wished to have his court order for access to the law library rescinded because he thought “it [was] not necessary for [him] to attend additional [l]aw [library sessions to research the material needed to execute [his] défense.”
Austin did not participate in jury selection.
Austin pleaded guilty tu capital murder.
During the punishment phase, the State provided additional details regarding the offense, including that D.K. was nine years old when he. was Wiled.
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 “[bjecause [he] did it.”
I couldn’t stop dreaming about it, I couldn’t stop seeing pictures of it. So I just kept doing drugs[,l getting in trouble with doing drugs. I had to stay high every day or else I would have to think about it. And it really comes up mostly when I’m locked up in seg in solitary, you know. Cause in seg and solitary;,I can’t do no drugs[.] I just got tired, the drugs weren’t, doing nothing really, they weren’t helping.... I had written the letter a really long time before[,] I think I was depressed when I wrote that letter for at least ten years.... It used to [not] bother me, anything I did, it never bothered me but ever since this thing happened to him I’d be watching TV and I’d be thinking and I would just start crying[,] stuff like that.58
Austin explained that he, had “been going to counseling and psychiatrists since, [he] was a kid,” that he “had behavioral problems,” “was always in trouble at school,” and “was emotionally disturbed.”
Austin for the most part refrained from questioning witnesses and presenting evidence during the punishment phase.
I’ve been like this all my life, and I doubt if I’ll change. What I wanted to say was they think I have a death wish. Well, that’s not true. One of the reasons why I went ahead and confessed [to killing D.K.] was it was bothering me, what I did. Regardless of what everybody thinks, it does. I’ve never killed anybody before. And, ... I also knew that my acts of violence would not stop even though I was in prison.66
He referred to an incident in prison in which he had “come real close to killing a [prison] guard” and that “[t]he only reason” he did not was that someone else stopped him.
On these special issues, there’s no doubt that you will answer yes to No. 1 because if you send me to prison, I will commit further acts of violence.... Jail is a violent place, especially for somebody like me. I’m a homosexual. So, yes, I will commit further acts of violence in prison. Special Issue No. 2, there was no mitigating circumstances that contributed to killing [D.K.]. And fear, anger or whatever can never be considered anywhere near a reason for killing. So I suspect, you know, y’all, by law, have to answer that number as no.71
The jury answered Texas’s special issues such that the trial court imposed a death sentence.
The state trial court held a second Far-etta hearing in which Austin waived his right to both appellate counsel and state habeas counsel.
Austin waived any pursuit of post-conviction relief and the trial court set Austin’s execution date.
Texas Code of Criminal Procedure, art. 11.071, § 4(a) provides that an application for a writ of habeas corpus “must be filed in the convicting court not later than the 180th day after the date the convicting court appoints counsel ... or not later than the 45th day after the date the state’s original brief is filed on direct appeal with the court of criminal appeals, whichever date is later.”
Austin filed a federal habeas petition.
In his petition, Austin outlined his history of mental illness, including suicide attempts in 1975 and 1979, as evidence that he was incompetent to stand trial, plead guilty, and waive counsel.
Austin also asserted that the conditions of his confinement in the Texas prison system were “psychologically aversive”
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 neuropsychologist, Dr. McGarrahan,
In his 2004 affidavit, Dr. Woods described Austin’s suicidal ideation and suicidal behaviors and concluded that Austin’s desire to not have a trial and to plead guilty were evidence he was not acting rationally.
[Austin was not able to rationally assist in the preparation of his defense] given his steadfast desire to die by the hands of the state. This suicidal ideation, based upon his mental disease and reinforced by his cognitively derived inability to effectively weigh and deliberate decisions at the time of their presentation rendered Mr. Austin incompetent to rationally weigh and deliberate his legal decisions.135
Dr. Woods also concurred in Dr. McGarra-han’s diagnosis that Austin suffered from frontal lobe dysfunction.
Austin also attached to his habeas petition an affidavit from Dr. Brown prepared in 2007 after Dr. Brown had reviewed Dr. McGarrahan’s 2004 report.
Dr. Woods and Dr. McGarrahan also submitted affidavits prepared in 2012. Dr. McGarrahan concluded that Austin “has a chronic issue with suicidal depression and that his suicidal depression appears to have been present at the time of his trial and competency evaluation ... and likely impaired his ability to reason and make sound judgments.”
The district court ■ granted summary judgment to the State and denied Austin’s request for an evidentiary hearing.
While Austin’s application for a COA was pending, Austin wrote a letter to this court indicating he desired to withdraw his appeal. He stated:
I wish to drop my appeals but can’t seem to get any type of response nor cooperation. I have informed my attorney of my wishes and according to him, to dróp 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 wáy I could waive the compentency [sic] hearing I would gladly do it. I was given a competency hearing just before my trial, and another just after, but before my direct appeals by the trial court. I was found competent in both of those instances and see no reason for another one.
I have just recently completed the be-ginnersf] course of the Blackstone Paralegal Institute with á[n]' overall score of 99.51%. This is hardly a sign of incompetence. My TDOJ IQ score was 123 and my TDCJ EA Score was 12.9. Again, this is hardly a sign of incompetence. I do have a history of mental health issues, but nothing that can’t be treated satisfactorily with medication and counseling. I chose to abstain from medication and counseling though and so see no reason why my mental health should keep me from dropping my appeals: Also, I recently read a court- case in which your court ruled that a person could be mentally ill, but still be competent to be executed because that person was competent during their trial. In that case, that should also be the case in my case/appeals.149
We requested that the State and Austin’s counsel respond to Austin’s request to withdraw his appeals. Austin’s counsel stated that Austin continues to suffer from serious mental illness and that nothing in Austin’s letter “cause[d] ... counsel to [abandon] the legal and factual propositions” advanced in the habeas petition and the COA.
Before the district court held a competency hearing in, accordance with the remand,- Austin moved to withdraw his pro se request to withdraw his appeal.
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 prison.... When -1 was first bench warranted-back to the county jail in 2001 I was asked what was it I wanted. I asked if I could be guaranteed a Life sentence without ever being brought up for parole. When I was told that couldn’t be guaranteed, I chose death. If you looked at the trial transcript and everything .else you can see that at no point did I contest the state. I only picked up my appeals because in a moment of weakness I allowed a woman to convince me to pick-them up. That woman is no longer a factor in my life.162 ■
In November, 2015, Austin sent another letter to this court requesting denial of his appeal.
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.”
Austin did not file a brief on direct appeal; no federal claims challenging his conviction were presented to the TCCA in its automatic review of his conviction and sentence. The federal claims presented in his state habeas petition were rejected by the TCCA on procedural grounds. Accordingly, there has been no adjudication on the merits of Austin’s habeas claims to which this court can apply § 2254(d) deference.
Ill
We first address whether Austin’s claims are procedurally defaulted. The TCCA held that Austin’s application for habeas relief was untimely under Texas Code of Criminal Procedure, art. 11.071, § 4(a), which sets the filing deadlines for Texas state habeas petitions.
IV
Austin contends that he was not competent to waive his right to counsel, stand trial, or plead guilty (Issue 10) and that the state trial court’s determination as to competency was not entitled a presumption of correctness under 28 U.S.C. § 2254(e)(1) (Issues 2, 3 and 4).
A
“[T]he Constitution does not permit trial of an individual who lacks ‘mental competency.’ ”
Section 2254(e) limits our review of state-court fact findings,
The trial court conducted a pretrial hearing following an expert’s evaluation of Austin’s competence to consider Austin’s motion to proceed pro- se. Although the primary purpose of the hearing was to determine Austin’s ability to represent himself,
Although Austin presents evidence of mental illness in his federal habeas petition, he has not demonstrated by clear and convincing evidence that he was not competent to stand trial, waive counsel, or plead guilty. He contends that the evidence presented in his habeas petition— including records of two suicide attempts over twenty years before his capital murder trial as well as expert reports highlighting his suicidality and depression— demonstrates he was not competent before, during, or after trial. A history of suicidality and depression, however, does not render a defendant incompetent.
Austin argues that his decision to waive counsel and plead guilty to capital murder demonstrates incompetency. The fact that a particular defendant “caus[es] his trial to be conducted in a manner most likely to result in a conviction and the imposition of the death penalty,” however, is not sufficient for a finding of incompetency.
Even if, in the alternative, we were to consider this claim a mixed question of law and fact, such that § 2254(e)(l)’s presumption of correctness does not apply to the competency determination and our review is instead de novo, Austin has failed to demonstrate that he is entitled to habeas relief. His prior mental health issues as well as his strategy before, during, and after trial are simply insufficient to support a determination that Austin was incompetent.
B
Austin asserts a number of procedural due process claims under Pate v. Robinson
Because we conclude that Austin has failed to demonstrate by clear and convincing evidence that he was not competent to stand trial, waive counsel, or plead guilty, we similarly reject his procedural claim that the state trial court was required to hold a pretrial competency hearing and that because it did not, he was denied a fair trial. In concluding that Austin could waive counsel and proceed pro se, the state trial court made an implicit finding that no bona fide doubt as to competency existed and that a standalone competency hearing was therefore not required.
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 evidence during Austin’s trial about his , past mental health issues that contradicted what Austin had told the court during earlier competency proceedings. To the extent that this procedural claim, not adjudicated on the merits by the state court, presents questions of law or mixed questions of law and fact, we review de novo.
In response to several specific questions from the state trial judge during the pretrial hearing .to consider Austin’s request to proceed pro se, Austin stated that he had not had mental health issues in the past, and had not been treated nor received counseling for mental health issues. However, during trial, contrary evidence was adduced.' Though this evidence clearly contradicted! what Austin had previously told the state court, the trial court knew, prior to the pretrial hearing, that Austin had “a very bad problem with depression” and that Austin contemplated suicide often when depressed.
C
Competence to plead guilty or to waive the right to counsel is measured by thé same standard as competence to stand trial.
Before accepting Austin’s waiver of counsel,- the state trial court confirmed that Austin knew and understood the charges against him, as well as 'the possible punishment if convicted.
Before accepting Austin’s guilty plea, the state trial court again confirmed that Austin understood the charges against him and the possible punishment.
The requirements for a valid guilty plea and waiver of counsel are clearly met. Austin contends that his mental illness and the conditions of his confinement rendered both his guilty plea and his waiver of trial counsel invalid because they were not knowing and voluntary.
As previously noted, Austin has not presented clear and convincing evidence sufficient to overcome the state trial court’s determination that he was competent to waive counsel and plead guilty.
V
Austin contends that his appointed trial counsel for the seven-month period before he was allowed to proceed pro se was ineffective for failing to undertake significant discovery or investigation into Austin’s competency, and for failing to ask Austin more questions at the Faretta hearing (Issue 13). The district court held that Austin could not show prejudice from counsel’s allegedly deficient performance because the evidence supported the state trial court’s conclusion that Austin was competent. We review the district court’s conclusions of law and its conclusions of mixed law and fact de novo.
Under the familiar test of Strickland v. Washington, a successful ineffective assistance of trial counsel claim requires a petitioner to show that (1) “counsel’s performance was deficient” and (2) that “the deficient performance prejudiced the defense.”
Trial counsel in this case testified that he never doubted his client’s competence,
Even if Austin had shown counsel’s failure to investigate to be deficient performance under Strickland, Austin has wholly failed to support his allegation that counsel’s performance prejudiced his defense.
We agree with the district court that the evidence presented both to the state trial court and in post-conviction proceedings strongly supports the state trial court’s determination that Austin was competent. The fact that Austin sought the death penalty is not, in and of itself, sufficient to call into serious doubt his competence to proceed to trial in light of the other evidence before the court. His letters and colloquy with the judge do not suggest an inability to understand the proceedings or charges against him. To the contrary, Austin remained articulate and focused in his aim of representing himself and refusing to present a defense.
VI
Austin contends that he did not receive a fair trial because five jurors gave false or misleading answers during voir dire, indicating that they could consider mitigating evidence and vote for a life sentence when in fact, they were pre-disposed to imposing the death penalty (Issue 19). He relies on statements from those jurors obtained during the post-conviction investigation.
A
“A juror is biased if his ‘views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.’ ”
It is well-settled that, a juror who will automatically vote for the death penalty is challengeable for cause.
Austin asserts that the jurors’ post-trial statements establish that they misled the trial court during voir dire because the jurors confirmed to the court that they could consider mitigating evidence, when in fact they would not and were thus unqualified to serve.
Because of our disposition of the jury bias claim, we will assume,-without .deciding, that the state trial court made no express or implied findings that the jurors were competent and unbiased. We will further assume, without deciding, that there ape no factual issues decided by the state courts to which AEDPA deference is due under 28 U.S.C. § 2254(e)(1).
B
Austin’s brief in our court focuses primarily upon William Gibbs, one of the five jurors that Austin contends was biased. Gibbs’s voir dire contained'the following exchanges:
THE COURT: And if the evidence called for it, [could you] answer [the special issues] in such a way that you know a life sentence would result?
GIBBS: Yes.
THE COURT: I take it, then—and correct me if I’m wrong—that you would be guided by the evidence, listen to all of the evidence and answer- the questions according to the evidence, wherever that might take you?
GIBBS: Yes.
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- PROSECUTION: . . . Tell us first in your own words, what are' yoür feelings on the death penalty?
GIBBS: I am for it and—I’m for it. I think it’s necessary for a crime deterrent, and that’s about it.
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PROSECUTION: ... Okay. Can you consider, then, in your mind that [the first special issue], depending on the evidence, could be answered either yes or no?
GIBBS: Yes.
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PROSECUTION: Can you consider that in Issue No. 2 that it could be answered in a yes or no fashion?
GIBBS: Yes.
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PROSECUTION: ... Do you feel that you can participate in that—the deliberations, deliberating with the jury and assess the death penalty if the law and the evidence supports it?
GIBBS: Yes.
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PROSECUTION: ... are you saying that if you know that the defendant is representing himself and you know that he has a death wish, if the law and the evidence supports assessing the death penalty, are you saying you still could not assess the death penalty?
THE COURT: In other words, if the evidence called for answering those questions in such a way that you answered the first one yes and the second one no, you know the death penalty would result?
GIBBS: Yes.
THE COURT: Would the fact that you feel that you would be giving a defendant something that he wanted cause you in any way to change your answers based on the evidence?
GIBBS: No.
THE COURT: So, then, would you— would you, I guess, honor your oath as a juror and base your verdict to those questions on the evidence; and if that’s what the evidence proved to you, you would answer them in that way?
GIBBS: Yes.
THE COURT: Even if you feel like it’s kind of unfair to give him what he would want?
GIBBS: Exactly. That’s just the way that I feel. That’s not the way that—if that’s what the law states, then that’s how, I guess, I would have to vote. But I mean—
THE COURT: Your personal opinion—
GIBBS: Personal feelings, I would have to say no; but I would say I would vote the death penalty if that’s what the law stated and—
THE COURT: And the evidence showed?
GIBBS: Yes.270
In his post-trial statement, Juror Gibbs made the following assertions:
I believe that ‘an eye for an eye’ is correct. If you kill someone you should face the death penalty.
Once someone is guilty of capital murder I believe that the only appropriate penalty is the death penalty. I do not think that there is anything that would be mitigating so that a person should not get the death penalty, this includes the person being insane.
Once I heard that Perry Austin had admitted to intentionally killing a nine year old boy I was only going to vote one way—I was going to vote ‘yes’ he was a future danger and ‘no’ there was nothing mitigating. I was not going to vote for anything other than the death penalty.271
The voir dire and post-trial statements of the other four jurors are set forth in section VI(C) below. As noted,'Austin relies- only on the post-trial statements to support his contention that each of these jurors was dishonest in answering questions posed during voir dire. We conclude that the district court was foreclosed from considering any of the jurors’ post-trial statements by Federal Rule of Evidence 606(b)(1) and the Supreme Court’s decisions applying that Rule. Therefore, the district court did not err in failing to grant habeas relief on Austin’s juror bias claim.
Rule 606(b)(1) provides:
(b) During an Inquiry Into the Validity of a Verdict or Indictment.
(1) Prohibited Testimony or Other Evidence. During an inquiry into the validity of a verdict or indictment, a juror máy not testify about any statement made or incident that occurred during the jury’s deliberations; the effect.of anything on that juror’s or another juror’s vote; or any juror’s mental processes concerning the verdict or indictment. The court may not receive a juror’s affidavit or evidence of a juror’s statement on these matters.272
The text of the rule is clear, and it explicitly directs that “a juror may not testify about ... the effect of anything on that juror’s ... vote ... or any juror’s mental processes concerning the verdict or indictment.” The Rule further provides, “[t]he court may not receive a juror’s affidavit or evidence of a juror’s statement on these matters.” Each of the post-trial statements by jurors comes within these prohibitions.
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.”
[A] party’s right to an impartial jury remains protected despite Rule 606(b)’s removal of one means of ensuring that jurors are unbiased. Even if jurors lie in voir dire in a way that conceals bias, juror impartiality is adequately assured by the parties’ ability to bring to the court’s attention any evidence of bias before .the verdict is rendered, and to employ nonjuror evidence even after the verdict is rendered.276
The Ninth Circuit has similarly applied Rule 606(b) in a direct criminal appeal in which a juror’s post-trial affidavit averred that other jurors had discussed the evidence against the defendant “and made up . their minds about his guilt before the start of deliberations.”
The only exception that the Supreme Court has made to Rule 606(b)(l)’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 voté to convict.”
In our prior, unpublished opinion in this ease granting a COA to Austin on his jury bias claim, we reasoned:
[P]ost-trial interviews concern the honesty of statements made by the jurors during voir' dire—not statements made during deliberations, the effect of something on the jurors’ votes, or the jurors’ mental processes concerning the verdict. Rule 606(b) does not bar admission of post-trial statements to' prove that the jurors failed to answer a material question honestly during voir dire.284
That analysis was clearly incorrect in light of the Supreme Court’s decision and reasoning in Warger v. Shauers, and, after full briefing and plenary consideration, we now disavow our prior reasoning and our discussion of Rule 606(b) in granting a COA on Austin’s jury bias claim. Though we cited Warger in a footnote, our analysis of that decision was not in-depth and was inaccurate,
This court’s decision in Hatten v. Quarterman,
The post-trial statements of the five jurors are inadmissible by virtue of Rule 606(b). Austin has no other evidence that any of these jurors were less than candid during vóir 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.”
Two special issues were to be submitted to the jury, and potential jurors were questioned about these issues during voir dire. The first special issue was “[d]o you find from the evidence beyond a reasonable doubt that there is a probability that the defendant, Perry Allen Austin, would commit criminal acts of violence that would constitute a continuing threat to society.”
Before we consider each of the five jurors’ specific voir dire and post-trial statements, we note that none of these jurors was asked if he or she could consider a specific type of mitigation evidence or categories of mitigation evidence. They were only asked whether they could potentially answer the special issues so as to impose a life sentence if the law and evidence so required. We also note that the record reflects that the murder victim’s age, nine years old, was not revealed to the jurors until the punishment phase commenced, which was after voir dire had been completed.
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.
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ERWIN: There’s a few cases I think you should get the death penalty, but that’s just me.
PROSECUTION: Okay, and that would be what? What cases would those be?
ERWIN: Anything had to do with hurting the elderly—
PROSECUTION: Okay.
ERWIN:—or kids.
PROSECUTION: Children?
ERWIN: Children
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PROSECUTOR: Okay. Can you see how Special Issue No. 2 can be answered either yes or no depending on what evidence you hear in the courtroom?
ERWIN: Yes.298
Erwin’s post-trial statement included the following:
I believe that if you are found guilty of capital murder the only appropriate penalty is the death penalty. The only thing that would make that different is if the person was insane.
After Perry Austin admitted he did the murder the case was pretty simple. He wanted the death penalty and we were happy to give it to him.299
The first paragraph of the post-trial statement reflects Erwin’s beliefs as of the date of the statement. It does not say that Erwin held these beliefs at the time of voir dire. Two years after a trial, a juror’s beliefs may have changed, particularly after participating in a capital trial and voting to impose a death sentence. But even if Erwin thought during voir dire that the only circumstance warranting a life sentence as opposed to a death sentence would be insanity when the crime was committed, his responses to the questions he was asked during voir dire are consistent with that view. He was not asked to identify what factors would cause him to vote in favor of a life sentence. He was only asked if there were circumstances in which he could vote for a life sentence, and his post-trial statement confirms that there was at least one such circumstance.
The second paragraph of the post-trial statement does not contradict anything that Erwin said in response to questions during voir dire. Nothing in the second paragraph is an assertion that the evidence called for a life sentence but that Erwin ignored that evidence. Erwin was not required to vote for a life sentence simply because there was mitigating evidence. Austin admitted to murdering a child, and during his pro se closing statement, Austin himself set forth facts that he said supported answering the two special issues in a way that would result in a death sentence. Erwin’s brief characterization in his post-trial. statement of why the jury voted as it did does not contradict .anything that Erwin said during voir dire. In fact, Erwin candidly revealed during voir dire that he thought that someone who killed an elderly person or a child should receive the death penalty. We do not consider whether there may have been cause to strike Erwin based on his voir dire testimony or his post-trial statement because Austin has not met the first prong of McDonough, that Erwin was dishonest during voir dire. There is no evidence of dishonesty.
Juror Condon
Juror Condon’s voir dire contained the following relevant exchanges:
THE COURT: And if the evidence called for it, [could you] answer [the special issues] in such a way that you know a life sentence would result?
CONDON: Yes.
THE COURT: All right. I take it, Mr. Condon, your feelings are that you would listen to everything, be guided by the evidence and the law, wherever that might take you?
CONDON: Yes.
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PROSECUTION: ... Can you tell us in your own words what your feelings are on the death penalty?
CONDON: Well, I feel that in certain cases it’s justifiable punishment for— never been asked to put it in words, I guess. If someone commits a premeditated act. of violence against someone else, I think it’s justifiable they be repaid-in kind.
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■ PROSECUTION: ... Could you participate in the jury deliberations and assessing the death penalty .if the evidence and the law directs you to?
CONDON: Yes.
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PROSECUTION: Okay. Do you understand—can you perceive that [the second special] issue could be answered either yes or no as well?
CONDON: Yes.
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PROSECUTION:. Let’s say you were king of the world. If you were the king, would your kingdom have a death penalty?
CONDON: Yes.
PROSECUTION: And why?
CONDON: I just feel that certain crimes deserve the ultimate punishment, I guess.300
In his post-conviction statement, Condon made the following assertions:
For me, if somebody is not insane and kills somebody, especially a child, the only appropriate penalty is the' death penalty. Other than showing that it was an accident or the person was insane I do not think that any other considerations are relevant. If you are found guilty of capital murder you should get the death penalty.
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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
The first paragraph of the post-trial statement reflects Condon’s views' as of the date of the statement. It does not say that Condon held these view during voir dire. But even if he held those views during voir dire, nothing in the first paragraph or the second paragraph contradicts Condon’s voir dire testimony. When asked to “tell us in your own words what your feelings are on the death penalty,” Condon responded, “[i]f someone commits a premeditated act of violence against someone else, I think it’s justifiable they be repaid in kind.” That is a categorical statement. It is entirely consistent with both the first and second paragraphs of Condon’s post-trial statement, as is Condon’s statement during voir dire that “I just feel that certain crimes deserve the ultimate punishment.”. Condon was not asked during voir dire whether the only circumstance that would cause him to vote for a life sentence, would be the insanity of the defendant, Austin has not established the first requirement of Mc-Donough, which is that Condon failed to answer honestly a material question.
Juror Gibbs
Gibbs’s voir dire contained the following exchanges:
THE COURT: And if the evidence called for it, [could • you] answer [the special issues] in such a way that you know a life sentence would result?
GIBBS: Yes.
THE COURT: I take it, then—and correct me if I’m wrong—that you would be guided by the evidence, listen to all of the evidence and answer the questions according to the evidence, wherever that might take you?
GIBBS: Yes.
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PROSECUTION: ... Tell us first in your own words, what are your feelings on the death penalty?
GIBBS: I am for it and—I’m for it. I think it’s necessary for a crime deterrent, and that’s about it. '
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PROSECUTION:. ... Okay. Can you consider, then, in your mind that [the first special issue], depending on the evidence, could be answered either yes or no?
GIBBS: Yes.
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PROSECUTION: Can you consider that in Issue No. 2 that it could be answered in a yes or no fashion?
GIBBS: Yes.
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PROSECUTION: ... Do you feel that you can participate in that—the deliberations, deliberating with the jury and assess the death penalty if the law and the evidence supports it?
GIBBS: Yes.
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PROSECUTION: ... are you saying that if you know that the defendant is representing himself and you know that he has a death wish, if the law and the evidence supports assessing the death penalty, are you saying you still could not assess the death penalty?
THE COURT: In other words, if the evidence called for answering those questions in such a way that you answered the first one yes and the second one no, you know the death penalty would result?
GIBBS: Yes.
THE COURT: Would the fact that you feel that you would be giving a . defendant something that he wanted cause you in any way to change your answers based on the evidence?
GIBBS: No.
THE COURT: So, then, would you— would you, I guess, honor your oath as a juror and base your verdict to those questions on the evidence; and if that’s what the evidence proved to you, you would answer them in that way?-
GIBBS: Yes.
THE COURT: Even if you feel like it’s kind of unfair to give him what he would want?
GIBBS: Exactly. That’s just the way that I feel. That’s not the .way that—if that’s what the law states, then that’s how, I-guess, I would have to vote. But I mean—
■ THE COURT: Your personal opinion— -
GIBBS: Personal feelings, I would have to say no; but I would say I would vote the death penalty if that’s what the law stated and— ■ .-
THE COURT: And the evidence showed?
GIBBS: Yes.302
In his post-trial statement, Juror Gibbs made the following assertions:
I believe that ‘an eye for an eye’ is correct. If you kill someone you should face the death penalty.
Once someone is guilty of capital murder I believe that the only appropriate penalty is the death penalty. I do not think that there is anything that would be mitigating so that a person should not get the death penalty, this includes the person being insane.
Once I heard that Perry Austin had admitted to intentionally killing a nine year old boy I was only going to vote one way—I was going to vote ‘yes’ he was a future danger and ‘no’ there was nothing mitigating. I was not going to vote for anything other than the death penalty.303
The first two paragraphs reflect Gibbs’ belief as of the date of his statement. They are not evidence that he held these views during voir dire. The third paragraph reflects Gibbs’ weighing of all the evidence. As discussed above, there is no evidence that before or during voir dire, Gibbs had “heard that Perry Austin had admitted to intentionally killing a nine year old boy.” The record reflects that D.K.’s age was not in evidence until after voir dire.
Juror Tamayo
The relevant portions of juror Tamayo’s voir dire are as follows:
. THE COURT: And I guess the other part of that would be if the evidence called for it, could you answer [the special issues] in such a way that a life sentence would result?
TAMAYO: Yeah.
THE COURT: So I guess my question is can you assure us that you would be guided by the evidence and the law and answer those questions accordingly, regardless of which result it might be?
TAMAYO: Yeah.
THE COURT: Yeah?
TAMAYO: Yes.
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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.
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PROSECUTION: ... You may hear something that’s sufficient enough for you that you think even though he’s a capital murderer and he’s probably going to be dangerous, he ought to receive life instead of death. Okay. Does that question make sense to you?
TAMAYO: It does.
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PROSECUTION: If you were the king and it’s your kingdom and you get to write the laws, would your kingdom have a death penalty?
TAMAYO: Well, yeah. I think, yeah, it would.
PROSECUTION: Why?
TAMAYO: Because if, you know, the evidence proves that he’s going to keep, you know, having—making trouble and stuff, well, then get rid of him, forget it.
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PROSECUTION: ... Hypothetically, let’s assume during the course of the trial, if you’re selected to sit on the jury, you find out not only that he’s representing himself but that he has a death wish. He’s not asking any questions. He just sits there, and he wants y’all to give him the death penalty. How does that make you feel?
TAMAYO: Well, it’s not whether he wants it or not. It’s just whether it’s given to him or not.
PROSECUTION: Based on the law and evidence?
TAMAYO: Right.305
Juror Tamayo’s post-trial statement contained the following:
The death penalty is especially appropriate for child killers. I do not consider mental illness to be mitigation because it is too easy for defendants to he and manipulate circumstances.306
Tamayo’s post-trial statement does not say that he held these views during voir dire. The statement reflects his beliefs two years after trial. In any event, the statement expresses the weight that Tamayo would give to two factors. His belief that the death penalty is especially appropriate for child killers and that he does not consider mental illness to be mitigating is simply how he weighs such evidence. He does not consider mental illness to be “a sufficient mitigating circumstance,” and the special issue asked only if there is “a sufficient mitigating circumstance or circumstances.” If Austin’s position were correct, a prospective juror would be required to confirm during voir dire that he or she would vote for a life sentence if there were evidence of mental illness, at least in some circumstances. Neither the law nor the issues' put to Austin’s jury requires this. The Supreme Court has long recognized that evidence of mental illness is a two-edged sword when a jury is deciding whether a death sentence is appropriate.
Juror Finnegan
Juror Finnegan’s voir dire proceeded, in relevant part, as follows:
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.
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PROSECUTION: Okay. Is there anything about your experience working with the F.B.I. or having been a police officer for as many years as you had that would affect your ability to be a juror in a criminal case?
FINNEGAN: I’d say no.
PROSECUTION: Okay. Anything about your experience in law enforcement dealing with defense attorneys or prosecutors that would affect your ability to be a juror in a criminal case?
FINNEGAN: No. Purely professional.
PROSECUTION: Okay. All right. Now, why don’t you tell me, Mr. Finnegan, if you will, what your feelings are about the death penalty and what purpose do you think it serves in our society?
FINNEGAN: Feelings?
PROSECUTION: Yes, sir.
FINNEGAN: First, it’s a necessary evil—
PROSECUTION: Okay.
FINNEGAN:—I would say. And the reason being is that I’m a—what right do I have, to take another life? .However, along those same lines, there are certain crimes which I consider heinous crimes which I think the person, if he or she has absolutely no remorse and possesses [sic] a continuing threat, I could absolutely be in favor of.
PROSECUTION: ... [W]hen you say “heinous crimes,” what types of offenses came to your mind where you thought the death penalty might be appropriate?
FINNEGAN: Violent crimes against a child.
PROSECUTION: Okay.
'FINNEGAN: That would be, you know—and purely innocent type of victim without any defense, something along those lines." That’s what first issue came to my mind.
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PROSECUTION: Can you- see how special issue No. 2 can be answered yes or ho just dépending on what you hear in the courtroom?
FINNEGAN: I do.308
In his post-trial statement, Juror Finnegan made the following assertions:
I believe that once Austin was found guilty of the murder of the victim the only appropriate sentence was death in accordance with Texas law. I believe that the prosecutors chose me to be on Austin’s jury because Perry wanted to die and Perry knew that with me working in law enforcement I would sentence him to death. Perry allowed me to stay on his jury.309
Nothing in Finnegan’s post-trial statement indicates that he was dishonest in responding to questions during voir dire. Finnegan’s statement refers to “the victim,” not murder victims generically. Finnegan did not say that he would automatically vote for the -death penalty in every case.
None of-the post-trial statements establish that a juror answered a question dishonestly during voir dire.
VII
Austin contends that the district court erred in denying his request for an evidentiary hearing (Issue 1). Section 2254(e)(2) controls whether a habeas petitioner may receive an evidentiary hearing in federal district court on the claims for which the applicant failed to develop the factual basis in state courts.
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.’”
With respect to the jury bias claim, it appears that Austin pursued an evidentiary hearing in the federal district court only on the issue of competence.
We can determine from the record that the post-trial juror statements at issue can be reconciled with each juror’s statements during voir dire. Further factual development in an evidentiary hearing is not warranted. Austin does not identify ánother factual dispute regarding his juror bias claim which might independently require further factual development.
⅜ ⅛ ¾⅜
For the foregoing reasons, we AFFIRM the district court’s judgment denying relief on Austin’s claims.
. 14RR24.
. Austin v. Davis, 647 Fed.Appx. 477, 480 (5th Cir. 2016) (per curiam).
. CR at 5 (letter from Austin to the trial court file stamped May 15, 2001).
. Id.
. Id.
. Id.
. CR at 16 (letter from Austin to the trial court dated July 19, 2001); ROA.629.
. CR at 16; ROA.629.
.' CR at 16.
. CR at 18 (letter from Austin to the trial court dated Aug. 8, 2001).
. Id.
. CR at 20 (letter from Austin to the trial court dated Aug. 14, 2001).
. Id.
. CR at 12-13 (motion submitted May 30, 2001).
. CR at 11 (granting motion on July 13, 2001).
. 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).
. 2RR3-4.
. CR at 24 (evaluation conducted on September 20, 2001).
. CR at 24-25.
. CR at 26.
. Id.
. CR at 24-26.
. CR at 26.
. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).
. Id. at 835, 95 S.Ct. 2525 ("When an accused manages his own defense, he relinquishes, as a purely factual matter, many of the traditional benefits associated with the right to counsel. For this reason, in order to represent himself, the accused must 'knowingly and intelligently’ forgo those relinquished benefits. Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that 'he knows what he is doing and his choice is made with eyes open.’ ’’) (internal citations omitted); see also Weaver v. Massachusetts, — U.S. —, 137 S.Ct. 1899, 1908, 198 L.Ed.2d 420 (2017) (noting that a defendant's "right to conduct his own defense ... 'usually increases the likelihood of a trial outcome unfavorable to the defendant’ " but recognizing that the "right is based on the fundamental legal principle that a defendant must be allowed to make his own choices about the proper way to protect his own liberty” and that improper denial of the right constitutes structural error (quoting McKaskle v. Wiggins, 465 U.S. 168, 177 n.8, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984))).
. 2RR3 (hearing held October 11, 2001).
. 2RR4.
. Id.
. 2RR13.
. 2RR6-7.
. Id.
THE COURT; Have you ever been declared mentally incompetent?
AUSTIN: No, ma’am.
THE COURT: Have you ever been treated for any mental health disorder?
AUSTIN: No, ma’am.
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THE COURT: Okay. Ever have any mental health problems while you were in the Army?
AUSTIN: No, ma’am.
THE COURT: Ever seek any mental health counseling while you were in the Army?
AUSTIN: No, ma'am.
. 2RR14-15; CR at 32-33.
. CR at 36 (affidavit sworn on Dec. 5, 2001).
. CR at 60 (letter from Austin to the trial court dated Dec. 30, 2001).
. CR at 60-61. A handwritten note on the letter, which appears to be mistakenly dated January 25, 2001 instead of January 25, 2002, suggests that Austin later stated at a hearing in open court that he would accept Arnold as standby counsel at trial.
. CR at 58 (letter from Austin to the trial court dated Feb. 19, 2002).
. Id. -
. See generally vol. 3-8 of Reporter's Records {voir dire beginning Mar. 18, 2002).
. 3RR4.
. Tex. Code Crim. Puoc. Ann. art. 37.071, § 2(b)(1), (e)(1) (West Supp'. 2002).
. E.g., 4RR18-19 (juror Erwin’s assurance that he could answer the special issues so as to produce a life or death'sentence); 5RR4-5 (juror Condon’s assurance that he could answer the special issues so as to produce a life or death sentence); 5RR32, 44 (juror Gibbs’s . assurance that he could answer the special issues so as to produce a life or death sentence, and would follow the law); 5RR48 (juror Tamayo’s assurance that he could answer the special issues so as to produce a life or death sentence); 5RR67-68 (juror Finnegan’s assurance that he could answer the special issues so as to produce a life or death sentence).
. 9RR7.
, 9RR4.
. 9RR4-7,
. 9RR4-5,
. Id.
. 9RR6.
. 9RR7-15.
. 9RR16.
. 9RR17.
. 10RR25.
. 10RR28,34-35.
. Pet. Ex. 34 at 000005.
. Id. at 000005-000016.
. Id. at 000020.
. ROA. 840-45.
. ROA.852 (typed transcript of Feb, 21, 2002 interview with Austin contained in the federal district court’s record on appeal).
. Id.
. ROA.853.
. Id.
. Id.
. See generally Reporter’s Record vols. 9-11.
. 10RR78.
. 9RR125-26.
. 11RR15.
. 11RR15-16.
. 11RR16.
. Id.
. 11RR16-17, 19.
. 11RR18.
.11RR19-20.
. 11RR31; CR at 78-79.
. 12RR3, 8; CR at 84-85.
. CR at 86; ROA.22; ROA.595.
. See Tex. Code Crim. Proc. Ann. art. 37.071, § 2(h) (West Supp. 2002).
. See Austin v. State, No. 74372, 2003 WL 1799020 (Tex. Crim. App. Apr. 2, 2003).
. Id.; Ex Parte Austin, No. 870377, Findings of Fact, Conclusion/Recommendation and Order, at 2 (June 29, 2004).
. ROA.23; ROA.595-96.
. ROA.596.
. Id.
. Tex. Code Crim. Proc. Ann. art. 11.071, § 4(a) (West 1999).
. Pet.’s Mtn. to Extend Time, Ex Parte Austin, No. 870377-A at *1-2 (Mar. 15, 2004); ROA.596.
. ROA.596; Tex Code Crim. Proc. Ann, art 11.071, § 4(b) (West 1999) (“The convicting court, before the filing date that is applicable to the applicant under Subsection (a), may for good cause shown and after notice and an opportunity to be heard by the attorney representing the state grant one 90-day extension that begins on the filing date applicable to the defendant under Subsection (a).”).
. Ex Parte Austin, No. 870377, Findings of Fact, Conclusion/Recommendation and Order, at 3 (June 29, 2004).
. ROA.596.
. Ex Parte Austin, No. 74372, slip op. at 3 (Tex. Crim. App. May 26, 2004) (not designated for publication).
. Id. at 4.
. ROA.20 (Austin's state habeas petition and his federal habeas petition are the same, according to the parties and the district court).
. 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).
. ROA.598.
. Id.
. Id.
. ROA.1390; ROA.1465.
. Ex Parte Austin, No. 59527-02 (Tex. Crim. App. Apr. 5, 2006) (per curiam) (not designated for publication).
. ROA.5 (district court docket entry #38, not included in record on appeal but on file). This court denied a COA on Austin's Eight Amendment claims added in this second amended petition. The second amended petition is otherwise the same as the first amended petition,
. ROA. 1687.
. ROA.1838; ROA.3488 (sealed).
. ROA.1930; ROA.2126.
. See Second Amended Pet. at 13; ROA.607; ROA.610.
. Second Amended Pet. at 14; ROA.607 (same assertion in first amended petition).
. Second Amended Pet. at 15.
. Pet. Ex. 3 at 005306, 005333; Pet. Ex. 5 at 001682.
. Pet. Ex. 28 at 002842-000043.
. Second Amended Pet. at 17; Pet, Ex. 28 at 002843.
. 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).
. Pet. Ex. 5 at 001699; Pet. Ex. 28 at 002831.
. Second Amended Pet. at 17; Pet. Ex. 17 at 003674.
. Second Amended Pet. at 17; Pet. Ex. 28 at 002831.
. Second Amended Pet. at 17-18; Pet. Ex. 5 at 001699-001701 ("I [] did not [plead insanity] just to get out of going to T.D.C. I did it because I want help and I need help.... I know there[’]s something wrong with me and I don’t think prison[']s going to go help me any. I want to go to Rusk to get help for my problem.... All I’m asking is that you send me to Rusk until the. doctors solve me of my problem then go ahead and send me to T.D.C. for life if you want to.”).
. Pet. Ex. 5 at 001697.
. Second Amended Pet. at 18.
. E.g., Pet. Ex. 28 at 002803 (TDC clinic notes 11/7/83; noting "probable nervous condition”), 002827 (mental health services notes 1/26/84; "has a history of antisocial behavior, substance abuse and sexual sadism coupled with self-mutilation”), 002825 (TDC clinic notes 5/6/86; referring him to psychiatric personnel), 002824 (clinic notes 2/3/88; "patient had good eye contract, oriented to time, person, and place and communicated effectively”); 002822 (clinic notes 12/18/89; "will refer to unit psychologist due to past ., ■, had not been seen since 8/10/88, had past suicide attempts”). , . L, Í
. Pet, Ex. 15 at 004059 (Harris County Sheriff’s Office Medical Services Division notes, 4/8/02; "Consumer states that he does not plan to seek counseling in TDC because only group therapy is offered and he does not want to discuss his problems in a group. He states that he feels that individual counseling has helped him;”);. 004071 (Pre-trial/screen-ing 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 i.n 1976); 004083 (Harris County Sheriff’s Office Medical Services Division notes 1/24/02; Austin "strongly expressed that he did not want any services from MHMRA”); 004085 (Harris County Sheriff’s Office Medical Services Division notes 10/18/01; Austin "states that he has no interest in obtaining psychiatric assistance”); 004094-99 ^uncooperative);' see also Docket Entry #47, Letter ffiom .Austin to the Fifth Circuit, received Sept. 17, 2014 ("I chose to abstain from medication and counseling....’’).
. Austin Br. at 10.
. ROA.612-13,
. 14RR110.
. 14RR113 (judgment and sentence of additional twenty years on plea of guilty for aggravated’ assault with a deadly weapon).
. Austin Br. at 11; accord Second Amended Pet. at 28,
. Second Amended Pet. at 31; Pet, Ex. 36 at 001487.
. Second Amended Pet. at 31-32.
. Id. at 32; Pet. Ex. 26 at 003259 (offense report).
. 14RR24.
. Second Amended Pet. at 32.
. Dr. McGarrahan used her maiden name, Cicerello, in 2004.
. . Austin Br. at 26; ROA.2145-56; ROA. 2161-80.
.Pet. Ex. 93 at 007775.
. Id. at 007778.
. Id. at 007775.
. Id.
. Id. at 007778.
. Mat 007779.
. Pet. Ex. 95 at 8-9.
. Id. at 11.
. Id.
. Id.
. Id. at 15.
. Id. at 16.
. Pet. Ex. 96.
. Id.
. Id.
. ROA. 1710; ROA.1806-08.
. ROA. 1806.
. ROA. 1806-07.
. ROA.2150.
. ROA.2174.
. ROA.2177.
. Austin v. Thaler, 2012 WL 12537415 at *15 (S.D. Tex, Aug. 21, 2012); ROA.2767 (granting summary judgment and denying relief); ROA.2747 (denying motion for evidentia-ry hearing),
. Austin v. Thaler, 2012 WL 12537415 at *6, *15 (S.D. Tex. Aug. 21, 2012).
. Docket Entry # 47. (letter from Austin to the Fifth Circuit received Sept. 17, 2014).
. Docket Entry # 53 (filed Oct. 9, 2014),
. Docket Entry # 62 (filed Nov. 14, 2014).
. Austin v. Stephens, 596 Fed.Appx. 277, 278 (5th Cir. 2015) (per curiam).
. Docket Entry # 73 (letter from Austin to the Fifth Circuit written January 6, 2015 and received January 12, 2015).
. Docket Entry # 75 (motion from Austin’s counsel and letter from Austin),
. Docket Entry # 82 (letter from Austin to the Fifth Circuit dated May 10, 2015).
. Id.
. Id.
. Docket Entry # 84 (letter from Austin to the Fifth Circuit dated May 20, 2015),
. Docket Entry # 91 (letter from Austin to the Fifth Circuit dated July 26, 2015).
. Id.
. Id.
. Id.
. Docket Entry #• 97 (letter from Austin to the Fifth Circuit filed Nov, 20, .2015).
. Id.
. Austin v. Davis, 647 Fed.Appx. 477 (5th Cir. 2016) (per curiam).
. Docket Entry # 145 (letter from Austin to the Fifth Circuit dated Ñov, 27, 2016).
. Id.
. Id.
. Id.
. Id.
. Graves v. Dretke, 442 F.3d 334, 339 (5th Cir. 2006) (citing Valdez v. Cockrell, 274 F.3d 941, 946 (5th Cir. 2001)).
. 28 U.S.C. § 2254.
. 28 U.S.C. § 2254(d).
. 28 U.S.C. § 2254(e)(1).
. Cf. Gonzalez v. Crosby, 545 U.S. 524, 530, 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005) (relying on § 2254(d) to define "claim” for purposes of § 2244(b) and stating that both statutes together "make clear that a ‘claim’ as used in § 2244(b) is an asserted federal basis for relief from a state court’s judgment of conviction”); Lambert v. Blodgett, 393 F.3d 943, 969 (9th Cir. 2004) ("[W]e hold that a state has ‘adjudicated’ a petitioner’s constitutional claim ‘on the merits’ for the purposes of § 2254(d) when it has decided the petitioner's right to post conviction relief on the basis of the substance of the constitutional claim advanced....”).
.See Ex Parte Austin, No. 74372, slip op. at 2-4 (Tex. Crim. App. May 26, 2004) (not designated for publication).
. Id.
. ROA.2777.
. Id.
. State Br. at 16 n.3,
. See Austin Br. at 77, 47, 49. Issue 3 relates to Austin’s assertion that the federal district court erred in crediting and relying upon evidence offered by the State in its summary judgment motion. As we noted in our partial grant of a COA, these arguments relate to the federal district court’s procedure, are not separate grounds for relief, and are arguments we consider in connection with Austin’s substantive claims.
. See Austin Br. at 54, 57.
. ROA.2145-56; ROA.2161-80.
. See Austin Br. at 102.
. See Austin Br. at 47, 93.
. Indiana v. Edwards, 554 U.S. 164, 170, 128 S.Ct. 2379, 171 L.Ed.2d 345 (2008); see also Drope v. Missouri, 420 U.S. 162, 171, 95 S.Ct. 896, 43 L.Ed.2d 103 (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.”).
. Dusky v. United States, 362 U.S. 402, 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960) (per curiam); see also Godinez v. Moran, 509 U.S. 389, 396, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993).
. Maggio v. Fulford, 462 U.S. 111, 117, 103 S.Ct. 2261, 76 L.Ed.2d 794 (1983) (per curiam); see also Thompson v. Keohane, 516 U.S. 99, 113, 116 S.Ct. 457, 133 L.Ed.2d 383 (1995) (noting the “practical considerations that have prompted the Court” to consider competency a “factual issue,” namely that the trial court has a "superior capacity to resolve credibility issues”); Demosthenes v. Baal, 495 U.S. 731, 735, 1-10 S.Ct. 2223, 109 L.Ed.2d 762 (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, 106 S.Ct. 445, 88 L.Ed.2d 405 (1985) (noting that the distinction between questions of fact- and questions of law .often turns upon which, "judicial actor is better positioned than another to decide the issue in question;” if “the issue involves the credibility of witnesses and therefore turns largely on an evaluation of demeanor, there are compelling and familiar justifications for leaving the process of applying law to fact to the trial court and according its determina? tions presumptive weight,”).
. Felde v. Blackburn, 795 F.2d 400, 402 (5th Cir. 1986) (“The state court’s finding of mental competence to - stand trial ... is a finding of fact, entitled to a presumption of correctness..,.”) (citing Fulford, 462 U.S. at 116-17, 103 S.Ct. 2261).
. 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, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003); Carter v. Johnson, 131 F.3d 452, 460 (5th Cir. 1997) (treating the question of competency as a factual determination); Flugence v. Butler, 848 F.2d 77, 79 (5th Cir. 1988) ("A medical inquiry into competency is a fact-finding exercise, and the factual finding of competence is presumed to be" correct.”).
. 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) ("[Tjhe determination of competency is not solely a 'factual issue,’ but rather is a mixed question of fact and law.”).
. 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)).
. Camacho v. Tex. Workforce Comm'n, 445 F.3d 407, 410 (5th Cir. 2006).
. Cf. United States v. Saingerard, 621 F.3d 1341, 1343 (11th Cir. 2010) (per curiam) (recognizing, on appeal of conviction in federal court, that competency to stand trial is a factual determination); United States v. Mackovich, 209 F.3d 1227, 1232 (10th Cir. 2000) (same); Vogt v. United States, 88 F.3d 587, 591 (8th Cir. 1996) (same); United States v. Winn, 577 F.2d 86, 92 (9th Cir. 1978) (same).
. Virgil v. Dretke, 446 F.3d 598, 610 n.52 (5th Cir. 2006) (applying § 2254(e)(1) to a state trial court's implicit factual finding). '
. Appel v. Horn, 250 F.3d 203, 210 (3d Cir. 2001) (concluding that even when § 2254(d) does not apply, § 2254(e) still applies such that a state court's factual determinations are presumed correct); see Sharpe v. Bell, 593 F.3d 372, 379 (4th Cir. 2010) (“The deference Section 2254(e)(1) requires has particular salience when a state court's determinations closely track the legal issues before the federal habeas court. Where a state court looks at the same body of relevant evidence and applies essentially the same legal standard to that evidence that the federal court does .... Section 2254(e)(1) requires that the state court's findings of fact not be’ casually cast aside.’’); see also Loden v. McCarty, 778 F.3d 484, 494 (5th Cir. 2015) (noting that § 2254(e) "constrains the discretion of district courts to grant evidentiary hearings," even "[wjhere section 2254(d) does not apply”); Blue v. Thaler, 665 F.3d 647, 654 (5th Cir. 2011) (Section 2254(e)(1) “pertains only to a state court's determinations of particular factual issues, while'§ 2254(d)(2) pertains to the state court's decision as a whole”) (citing Miller-El v. Cockrell, 537 U.S. 322, 341-42, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003)).
. 28 U.S.C. § 2254(e)(1).
. See Henderson v. Cockrell, 333 F.3d 592, 597-98 (5th Cir. 2003).
. See Appel v. Horn, 250 F.3d 203, 210 (3d Cir. 2001).
. 28 U.S.C. § 2254(e)(1).
. 2RR4.
. See Godinez v. Moran, 509 U.S. 389, 400, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993) (holding that waiver of the right to counsel must be made competently, knowingly and voluntarily to be constitutionally effective).
. See 2RR3-6 (referencing and relying upon Dr. Brown’s report, prepared to determine if Austin was competent to stand trial, asking Austin’s counsel whether he considered Austin to be competent, and asking Austin a series of questions about his mental health history); see also 12RR3 (the state trial court noting at a later Faretta hearing that it had previously conducted a hearing and found Austin "was competent to represent himself and was making that decision freely and' voluntarily with full knowledge of the potential consequences”).
. 2RR5-14.
. 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.”).
. Id. (Austin's counsel confirming his personal determination that Austin was competent and stating that "it has been [his] opinion from the first time [he] met him but out of an abundance of caution I requested the psychiatric evaluation”).
. See Mata v. Johnson, 210 F.3d 324, 330 (5th Cir. 2000) (noting a suicide attempt must be weighed with other evidence relating to a defendant's competence); see also Drope v. Missouri, 420 U.S. 162, 181 n.16, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975) (recognizing that "a suicide attempt need not always signal 'an inability to perceive reality accurately, to reason logically and to make plans and carry them out in an organized fashion' ” (quoting David F. Greenberg, Involuntary Psychiatric Commitments to Prevent Suicide, 49 N.Y.U. L. REV. 227, 236 (1974))).
. Pet. Ex. 95 at 11.
. Roberts v. Dretke, 381 F.3d 491, 498 (5th Cir. 2004); Autry v. McKaskle, 727 F.2d 358, 362 (5th Cir. 1984) (per curiam) (recognizing that refusing to "plead for mercy” in a capital murder case does not necessarily mean that a defendant is incompetent or acting irrationally); see also Taylor v. Horn, 504 F.3d 416, 435 (3d Cir. 2007) ("Taylor’s desire to confess and receive the death penalty as punishment, and refusal to allow witnesses during the penalty phase, are not indications that he was incompetent. These actions are consistent with Taylor's repeatedly expressed desire to plead guilty and accept the consequences.”).
. See Roberts v. Dretke, 381 F.3d 491, 494, 498 (5th Cir. 2004) (concluding that the defendant’s instruction to trial counsel to "steer the trial towards imposition of the death penalty” was not irrational nor evidence of incompetency, but instead suggested that the defendant was "quite capable of conversing with his trial counsel regarding trial strategy, and was not only able to participate in his defense but was also able to direct it”).
. 28 U.S.C. § 2254(e)(1);
. 383 U.S. 375, 385, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966) (holding that a trial court must hold a competency hearing when there is evidence before the court that objectively creates a bona fide question as to whether the defendant is competent to stand trial); see also Roberts v. Dretke, 381 F.3d 491, 497 (5th Cir. 2004) (articulating the holding in Pate v. Robinson).
. Roberts v. Dretke, 381 F.3d 491, 497 (5th Cir. 2004) (citation omitted) (citing Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966)).
. Mata v. Johnson, 210 F.3d 324, 329 (5th Cir. 2000).
. Id. (citing Carter v. Johnson, 131 F.3d 452, 459 n.10 (5th Cir. 1997)).
. See Roberts v. Dretke, 381 F.3d 491, 498 (5th Cir. 2004).
. See Henderson v. Cockrell, 333 F.3d 592, 598 (5th Cir. 2003).
. See CR at 16 (letter from Austin to the trial court before trial).
. LaHood v. Davis, 653 Fed.Appx. 253, 263 (5th Cir. 2016) (citing McCoy v. Lynaugh, 874 F.2d 954, 960-61 (5th Cir. 1989); United States v. Williams, 819 F.2d 605, 608 (5th Cir. 1987)); see also Drope v. Missouri, 420 U.S. 162, 181 n.16, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975) (recognizing that "a suicide attempt need not always signal 'an inability to perceive reality accurately, to reason logically arid to make plans and carry them out in an organized fashion’ ” (quoting David F. Green-berg, Involuntary Psychiatric Commitments to Prevent Suicide, 49 N.Y.U. L. Rev. 227, 236 (1974))).
. Godinez v. Moran, 509 U.S. 389, 398, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993).
. Id. at 400, 113 S.Ct. 2680.
. Id. at 400-01, 113 S.Ct. 2680 ("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, 95 S.Ct. 2525, 45 L.Ed.2d 562 (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").
. United States v. Cano, 519 F.3d 512, 516 (5th Cir. 2008) (quoting United States v. Martin, 790 F.2d 1215, 1218 (5th Cir. 1986)); see also Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).
. Matthew v. Johnson, 201 F.3d 353, 365 (5th Cir. 2000) (quoting Brady v. United States, 397 U.S. 742, 750, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970)).
. Id.
. See Miller v. Fenton, 474 U.S. 104, 112, 106 S.Ct. 445, 88 L.Ed.2d 405 (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).
. See Henderson v. Cockrell, 333 F.3d 592, 598 (5th Cir. 2003).
. 2RR9.
. 2RR9-12.
. 2RR12.
. 2RR13-14.
. Weaver v. Massachusetts, — U.S. —, 137 S.Ct. 1899, 1908, 198 L.Ed.2d 420 (2017) (quoting McKaskle v. Wiggins, 465 U.S. 168, 177 n.8, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984)).
. Id.
. See id.
. 9RR4.
. 9RR4-5 ("Has anyone reached any agreement with you to get you to enter your plea?”; “Has anybody promised you anything to get you to enter your plea?”; "Has anybody threatened you to get you to enter your plea?”).
. 9RR5.
. Id.
. 9RR6.
. Austin Br. at 102.
. See Johnson v. United States, 344 F.2d 401, 403-04 & n.4 (5th Cir. 1965) (separating the voluntariness inquiry from the mental competence inquiry and determining that because the trial judge had "carefully, thoroughly, and separately interrogated each of the defendants to ascertain whether the plea as to each separate indictment was freely, voluntarily, and understandably made” and had found that each plea was, "there is no suggestion, ■ either in the records and papers or in the evidence on the 2255 proceeding, which even raises any question about this conclusion, either then or now”).
. See CR at 58.
. Id.
. 28 U.S.C. § 2254(e)(1).
. Jones v. Cain, 227 F.3d 228, 230 (5th Cir. 2000).
. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
. Id. at 691, 104 S.Ct. 2052.
. Roberts v. Dretke, 381 F.3d 491, 498 (5th Cir. 2004).
. 2RR4.
. Bell v. Cone, 535 U.S. 685, 695, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002) ("Without proof of both deficient performance and prejudice to the defense ... the sentence or conviction should stand.").
. Strickland, 466 U.S. at 694, 104 S.Ct. 2052.
. Id.
. ROA.645-47.
. ROA.648.
. See ROA.652-54.
. Hatten v. Quarterman, 570 F.3d 595, 600 (5th Cir. 2009) (quoting Soria v. Johnson, 207 F.3d 232, 242 (5th Cir. 2000)).
. McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 554, 104 S.Ct, 845, 78 L.Ed.2d 663 (1984) (quoting Smith v. Phillips, 455 U.S. 209, 217, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982)).
. Id. at 549-50, 104 S.Ct. 845.
. Id. at 550-51, 104 S.Ct. 845.
. Id. at 555, 104 S.Ct. 845.
. Id. at 556, 104 S.Ct. 845.
. Montoya v. Scott, 65 F.3d 405, 419 (5th Cir. 1995).
. See, e.g., Morgan v. Illinois, 504 U.S. 719, 729, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992).
. Austin Br. at 109-10.
. Oral Argument at 25:40 (July 12, 2017).
. ROA.108-09; Austin Reply Br. at 60.
. 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).
. See 28 U.S.C. § 2254(e); Virgil v. Dretke, 446 F.3d 598, 610 n.52 (5th Cir. 2006).
. 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).
. 5RR32-33, 38-40, 43-44.
. Pet. Ex. 65 at 007525-007526.
. Fed. R. Evid. 606(b)(1).
. Warger v. Shauers, — U.S. —, 135 S.Ct. 521, 525, 190 L.Ed.2d 422 (2014).
. Id. at 528 (quoting a party’s brief).
. Id.
. Id. at 529; see also Tanner v. United States, 483 U.S. 107, 127, 107 S.Ct. 2739, 97 L.Ed.2d 90 (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”).
. United States v. Leung, 796 F.3d 1032, 1034 (9th Cir. 2015).
. Id. at 1036.
. Id.
. Id. (quoting Tanner, 483 U.S. at 120, 107 S.Ct. 2739); see also United States v. Davis, 960 F.2d 820, 828 (9th Cir. 1992) (rejecting a defendant's argument in a direct criminal appeal "that his sixth amendment right to an impartial jury was violated because one juror stated during a post-trial interview that, ‘[f|rom the first day I knew [Davis] was guilty,’ ” reasoning that “[t]he juror’s statement reflects his personal feelings and beliefs concerning Davis” and that "[t]he statement is insufficient to set aside a verdict”).
. Pena-Rodriguez v. Colorado, — U.S. —, 137 S.Ct. 855, 861, 197 L.Ed.2d 107 (2017).
. Id. at 869.
. Id.
. Austin v. Davis, 647 Fed.Appx. 477, 493 (5th Cir. 2016) (per curiam).
. Id. at 493 n.63.
. 570 F.3d 595 (5th Cir. 2009).
. Austin, 647 Fed.Appx. at 493 n.63.
. Hatten, 570 F.3d at 600-02.
. Id.; see also id. at 600 (reflecting that the claims in the subsequent federal habeas proceeding were that "Hatten [the defendant] complains that Hollins’s [the juror's] bias is reflected by the facts that: (a) Hollins lied on his juror questionnaire and during his questioning regarding his drug use; (b) Hollins concealed the scope of his relationship with . Isaac Robinson, the victim's father, and with Hatten’s [the defendant's] stepfather; and (c) Hollins [the juror] was threatened with prosecution during trial and consequently must have favored the prosecution'').
. Id. at 602.
. Id.
. See id.
. See Pena-Rodríguez v. Colorado, — U.S. —, 137 S.Ct. 855, 865-67, 197 L.Ed.2d 107 (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. Shauer, — U.S. —, 135 S.Ct. 521, 529, 190 L.Ed.2d 422 (2014) and Tanner v. United States, 483 U.S. 107, 125, 107 S.Ct. 2739, 97 L.Ed.2d 90 (1987)).
. McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 556, 104 S.Ct 845, 78 L.Ed.2d 663 (1984).
. Pet. Ex. 36 at 001611; see also Tex. Code Crim. Proc. Ann. art. 37.071 § 2(b)(1) (West Supp. 2002).
. Pet. Ex. 36 at 001612; see also Tex. Code Crim. Proc. Ann. art. 37.071 § 2(e)(1) (West Supp. 2002).
. 9RR17.
. 4RR18-31.
. Pet. Ex. 68 at 007541-007542.
. 5RR5-17.
. Pet. Ex. 67 at 007533-007534, 007537-007538.
. 5RR32-33, 38-40, 43-44.
. Pet. Ex. 65 at 007525-007526.
. 9RR17.
. 5RR46-60.
. Pet. Ex. 85 at 007645.
. See Brewer v. Quarterman, 550 U.S. 286, 292-93, 127 S.Ct. 1706, 167 L.Ed.2d 622 (2007) (“As did Penry’s, Brewer’s mitigating evidence served as a ‘two-edged sword’ because it tended to confirm the State’s evidence of future dangerousness as well as lessen his culpability for the crime.”).
. 5RR66-83.
. Pet. Ex. 94 at 007738-007739.
. See Morgan v. Illinois, 504 U.S. 719, 729, 112 S.Ct. 2222, 119 L.Ed.2d 492 (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.”).
. Williams v. Taylor, 529 U.S. 420, 429, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000); Norman v. Stephens, 817 F.3d 226, 234 (5th Cir. 2016).
. Loden v. McCarty, 778 F.3d 484, 494 (5th Cir. 2015); see also Cullen v. Pinholster, 563 U.S. 170, 185-86, 131 S.Ct. 1388, 179 L.Ed.2d 557 (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.”).
. Norman, 817 F.3d at 234 (quoting Williams, 529 U.S. at 432, 120 S.Ct. 1479).
. Id. at 235 (quoting Clark v. Johnson, 202 F.3d 760, 766 (5th Cir. 2000)).
. ROA.1915; ROA.1924.
. ROA.2747-48; ROA.2766 (noting that the court would "call for an evidentiary hearing if it determines that one is necessary”).
. 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).
. Oral Argument at 25:40 (July 12, 2017).
. Austin Br. at 47 ("Another factual dispute requiring relief if decided in Petitioner’s favor is whether jurors in the case were biased, in particular, whether the disqualifying bias they now express was present at the time of trial.”).
Concurrence Opinion
concurring:
I write separately to provide additional reasons that habeas relief should be denied in this case.
I
In Pena-Rodriguez, the Supreme Court observed that before Rule 606(b)’s adoption the Court had “noted the possibility of an exception to the [common-law no-im-peaehment rule] in the ‘gravest and most important cases.’ ”
An exception to the no-impeachment rulé should not be recognized here. Even assuming arguendo that one or more of the five jurors answered a material question dishonestly during voir dire, habeas relief remains unwarranted. The record amply supports, and in fact compels, the conclusion that Austin had resolved to accept all jurors that the State accepted and that if, during.wfr dire, the five.jurors had expressed the views contained in their post-trial statements, Austin would not have challenged any of those jurors for cause, because Austin’s trial strategy was to obtain the death penalty. Austin cannot now claim in a habeas proceeding that had he known the jurors’ actual views, or had he known that they had predilections and a bias in favor of the death penalty, he would have challenged them for cause and thereby preserved the issue for appeal or collateral review. The record is clear that 'he would not have challenged any of the five jurors for cause during the trial even had there been a basis for doing so.
It is undisputed that when voir dire occurred, Austin intended to plead guilty, and after the jurors were seated, Austin entered a guilty plea in their presence. The jury was empaneled only to decide whether Austin would receive á 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.
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.”
It is established that failure to object at the time the jury is empaneled operates as a conclusive waiver if the basis of the objection is known of [sic] might have been known or discovered through the exercise of reasonable diligence, or if the party is otherwise chargeable with knowledge of the ground of the objection.12
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.
The point of citing these authorities is twofold. First, Austin may well have elicited the same information that is contained in the jurors’ post-trial statements had he questioned these jurors during voir dire.
Prior to trial Austin declared that he would accept every juror that the State accepted and that he would not exercise any peremptory challenges,
During the voir dire of Juror Erwin, the following exchange occurred:
ERWIN: There’s a few cases I think you should get the death penalty, but that’s just me.v
PROSECUTION; Okay, and that would be what?. What cases would those be?
ERWIN: Anything had to do with hurting the elderly—
PROSECUTION: Okay.
ERWIN:—or kids.
PROSECUTION: Children?
ERWIN: Children. .. .
Similarly, during the voir dire of Juror Finnegan, this exchange occurred:
PROSECUTION: Okay. ' All right. Now, why don’t you tell me, Mr. Finnegan, if you will, what your feelings are about the death penalty and what purpose do you think it serves in our society?.'
FINNEGAN: Feelings? .
PROSECUTION: Yes, sir.
FINNEGAN: First,.it’s a necessary evil— -■
PROSECUTION: Okay.
FINNEGAN:—I-would say.-And the reason being is that I’m a—what right do I have to take another life? However, along those same lines, there are certain crimes which I consider heinous crimes which I think the person, if he or she has absolutely no remorse and possesses [sic] a continuing threat, I could absolutely be in favor of.
PROSECUTION: [W]hen you say “heinous crimes,” what types of offenses came to your mind where you thought the death penalty might be appropriate?
FINNEGAN: Violent crimes against a child.
PROSECUTION: Okay.
FINNEGAN: That would be, you know—and purely innocent type of victim without any defense, something along those lines. That’s what first issue came to my mind.
Though Austin’s sentence for the murder of a child would depend on the jury’s findings in favor of either life or death, Austin remained silent throughout. voir dire. He has offered no reason for failing to question Erwin or Finnegan as to. the views they expressed during voir dire regarding the death penalty when a child was the victim. He has not asserted in habeas proceedings that his counsel (himself) was ineffective for failing to question these jurors during voir dire or for failing to challenge them for cause. His only contention is that, if he had known during voir dire the substance of the five jurors’ post-trial statements, he would have had grounds to challenge each of them for cause. If grounds to remove them for cause did exist, and had those grounds been revealed during voir dire, then it would have been incumbent upon Austin actually to raise challenges for cause. Otherwise, as the Eighth Circuit cogently explained, “ ‘[i]f a defendant is allowed to ... forego challenges for-cause tó 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.’ ”
It rings hollow for Austin now to contend that had he known the five jurors’ views he would have challenged them for cause. Austin’s actions, and more importantly inactions, in declining to ask any questions during voir dire, deciding before trial to accept all jurors the State accepted, and declining to exercise any preemp-tory challenges are entirely consistent with his trial strategy, which he set forth in letters to the trial court. Prior to trial, Austin advised the trial-court that he was “still firm about [his] decision to not fight this case” and that “since [he was] not going to put up any type of defense,” he had “decided that it [was] not necessary for [him] to review [his] -case file.”
The Supreme Court has' never held that juror bias is structural error requiring automatic reversal. In addition to its discussion in McDonough,
In Ross v. Oklahoma, a defendant in a capital case moved to excuse a potential juror for cause because that member of the venire “declared that if the jury found [the defendant] guilty, he would vote to impose death automatically.”
The Supreme Court also discussed in Ross the requirement of. Oklahoma law “that a defendant who disagrees with the trial court’s ruling on a for-cause challenge must, in order to- preserve the claim that the ruling deprived him of a fair trial, exercise a peremptory challenge to remove the juror,” and that “[e]ven then, the error is grounds for reversal only if the defendant exhausts all peremptory challenges and an incompetent juror is forced upon him.”
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.
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.
Prior to the Supreme Court’s decision in Olano,
Similarly, in United States v. Rodriguez-Garcia, a direct criminal appeal decided before Olano, the Tenth Circuit affirmed a conviction and refused to consider a claim of juror bias raised for the first time on appeal when .the basis for the bias could have been pursued with the trial court.
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.
In the present case, the district court denied Austin’s juror bias claim on the sole basis that “Austin had an opportunity to question the potential jurors, and challenge those he thought unsuitable, but he chose not to do so”
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 tha,t a correct response would have provided a valid basis for a challenge for cause”
II
It is unclear whether, in a habeas proceeding, a defendant would be entitled to have a jury’s verdict set aside upon establishing the elements of McDonough, without an assessment of the impact of the constitutional error on the state-court criminal trial. It is also unclear whether 28 U.S.C. § 2111 applies. It provides that “[o]n the hearing of any appeal or writ of certiorari in any case, the court shall give judgment after an examination of the record without regard to errors or defects which do not affect the substantial rights of the parties.”
In assessing harmlessness on direct review, the Government bears the burden of proving that a constitutional error was “harmless beyond a reasonable doubt.”
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.
. Pena-Rodriguez v. Colorado, — U.S. —, 137 S.Ct. 855, 865-66, 197 L.Ed.2d 107 (2017) (quoting United States v. Reid, 12 How. 361, 366, 13 L.Ed. 1023 (1852) and McDonald v. Pless, 238 U.S. 264, 269, 35 S.Ct. 783, 59 L.Ed. 1300 (1915)).
. Id.
. Tanner v. United States, 483 U.S. 107, 107 S.Ct. 2739, 97 L.Ed.2d 90 (1987).
. Pena-Rodriguez, 137 S.Ct. at 866 (citing Tanner, 483 U.S. at 125, 107 S.Ct. 2739).
. Warger v. Shauers, — U.S. —, 135 S.Ct. 521, 190 L.Ed.2d 422 (2014).
. Pena-Rodriguez, 137 S.Ct. at 866 (citing Warger, 135 S.Ct. at 529).
. Warger, 135 S.Ct. at 529 n.3.
. McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548, 550 n.2, 104 S.Ct. 845, 78 L.Ed.2d 663 (1984).
. Id.
. Id. (citing Johnson v. Hill, 274 F.2d 110, 115-116 (8th Cir. 1960)).
. Johnson, 274 F.2d at 116 (quoting Batsell v. United States, 217 F.2d 257, 260 (8th Cir. 1954) (citing Carruthers v. Reed, 102 F.2d 933, 939 (8th Cir. 1939))).
. Id. (quoting Batsell, 217 F.2d at 260 (citing 50 C.J.S. Juries § 251)); see also United States v. Pennington, 168 F.3d 1060, 1067 (8th Cir. 1999) (holding in a direct criminal appeal that the defendant "waived this [juror bias] issue by not challenging the juror when the jury was empaneled because the basis for the objection was then known”). But see Franklin v. Anderson, 434 F.3d 412, 426-28 (6th Cir. 2006) (holding in a habeas proceeding that a juror "was biased because she could not understand the law,” that "[t]here is no situation under which the impaneling of a biased juror can be excused,” that "the State can [accordingly] make no argument that [the defendant’s] trial counsel acted strategically in keeping [the biased juror] on the panel” and that ”[t]o. permit this would be to allow trial counsel to waive the defendant's right to an impartial jury”).
. See generally United States v. Simmons, 961 F.2d 183, 186 (11th Cir. 1992) (holding that a district court did not commit plain error by failing to excuse, sua sponte, certain jurors for cause, because defense counsel’s failure to exercise two remaining peremptory strikes "may well have been a strategic decision to retain the four jurors in question”).
. See generally Robinson v. Monsanto Co., 758 F.2d 331, 335 (8th Cir. 1985) (holding in a civil case that "the right to challenge a juror is waived by failure to object at the time the jury is empaneled if the basis for objection might have been discovered during voir dire").
. See generally Reporter’s Record vols. 3-8; CR at 20.
. United States v. Johnson, 688 F.3d 494, 501-02 (8th Cir. 2012) (quoting United States v. Brazelton, 557 F.3d 750, 755 (7th Cir. 2009) (internal quotations marks and citations omitted)).
. CR at 58 (letter from Austin to the trial court dated Feb. 19, 2002).
. McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 550 n.2, 104 S.Ct. 845, 78 L.Ed.2d 663 (1984).
. Ross v. Oklahoma, 487 U.S. 81, 83-84, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988).
. Id. at 84, 108 S.Ct. 2273.
. Id. at 88, 108 S.Ct. 2273.
. Id.
. Id. at 85, 108 S.Ct. 2273.
. Id. (emphasis added).
. Id. at 89, 108 S.Ct. 2273 (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)).
. United States v. Martinez-Salazar, 528 U.S. 304, 316, 120 S.Ct. 774, 145 L.Ed.2d 792 (2000) (citing Ross v. Oklahoma, 487 U.S. 81, 85, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988)).
. Id. at 308, 120 S.Ct. 774.
. Id. at 307, 120 S.Ct. 774 (“We focus on this sequence of events: the erroneous refusal of a trial judge to dismiss a potential juror for cause, followed by the defendant’s exercise of a peremptory challenge to remove that juror.”).
. Id.
. Id. at 316, 120 S.Ct. 774.
. Id. (quoting Ross, 487 U.S. at 85, 108 S.Ct. 2273).
. Id. (alterations in original) (quoting Ross v. Oklahoma, 487 U.S. 81, 87, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988)).
. See, e.g., Weaver v. Massachusetts, — U.S. —, 137 S.Ct. 1899, 1907-09, 1911, 198 L.Ed.2d 420 (2017) (explaining in a habeas proceeding that "[t]he purpose of the structural error doctrine is to ensure insistence on certain basic, constitutional guarantees that should define the framework of any criminal trial”; identifying "three broad rationales” for why the Court has sometimes deemed a particular error structural: (1) when "the right at issue is not designed to protect the defendant from erroneous conviction but instead protects some other interest” and, "when exercised, 'usually increases the likelihood of a trial outcome unfavorable to the defendant,’ ” such as "the defendant’s right to conduct his own defense”; (2) when the "effects of the error are simply too hard to measure,” such as the denial of a defendant’s "right to select his or her own attorney”; and (3) when “the error always results in fundamental unfairness,” such as denying an indigent defendant an attorney or failing “to give a reasonable-doubt instruction”; emphasizing that "[a]n error can count as structural even if the error does not lead to fundamental unfairness in every case”; and holding that "when a defendant raises a public-trial violation via an ineffective-assistance-of-counsel claim, Strickland prejudice is not shown automatically”); United States v. Davila, 569 U.S. 597, 611, 133 S.Ct. 2139, 2149, 186 L.Ed.2d 139 (2013) (explaining that the Court has "characterized as ‘structural’ 'a very limited class of errors’ that trigger automatic reversal because they undermine the fairness of a criminal proceeding as a whole” and observing that “[ejrrors of this ldnd include denial of counsel of choice, denial of self-representation, denial of a public trial, and failure to convey to a jury that guilt must be proved beyond a reasonable doubt”) (citations omitted); Neder v. United States, 527 U.S. 1, 8, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999) (identifying as structural errors “complete denial of counsel,” "biased trial judge,” "racial discrimination in selection of grand jury,” "denial of self-representation at trial,” "denial of public trial,” and “defective reasonable-doubt instruction”). But see, e.g., Gray v. Mississippi, 481 U.S. 648, 668, 107 S.Ct. 2045, 95 L.Ed.2d 622 (1987) (Blackmun, J., plurality opinion), (holding in a direct criminal appeal that a harmless-error analysis did not apply when a state trial court excused a prospective juror for cause even though the juror was qualified to serve and had not exhibited bias).
. Gray, 481 U.S. at 668, 107 S.Ct. 2045.
. Gomez v. United States, 490 U.S. 858, 876, 109 S.Ct. 2237, 104 L.Ed.2d 923 (1989) (quoting Gray, 481 U.S. at 668, 107 S.Ct. 2045).
. Id.
. United States v. Olano, 507 U.S. 725, 732-37, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) .(explaining, in a direct criminal appeal, the plain-error doctrine embodied in Fed. R. Crim. P. 52(b), and setting forth its elements).
. 890 F.2d 554, 560 (1st Cir. 1989).
. Id. at 560 n.4.
. Id. at 560.
. Id.
. Id. at 560 n.4.
. 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, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982)).
. Id. (quoting Frady, 456 U.S. at 163 n.14, 102 S.Ct. 1584).
. United States v. Rodriguez-Garcia, 983 F.2d 1563, 1572-73 (10th Cir. 1993).
. Id. at 1572.
. Id.
. Id. at 1572-73 (alteration in original) (quoting United States v. Diaz-Albertini, 772 F.2d 654, 657 (10th Cir. 1985)).
. See also United States v. Harris, 530 F.2d 576, 579-80 (4th Cir. 1976) (rejecting in a direct criminal appeal the defendant's contention that "one of the jurors knew him before trial and may have been prejudiced against him,” reasoning that “[w]here the basis for a challenge to a juror could be timely shown the failure of the defendant'to object at the ‘ inception of the trial constituted a waiver of his 'right to challenge the constitution of the jury”).
. See United States v. Johnson, 688 F.3d 494, 501-02 (8th Cir. 2012).
. Id. at 500.
. Id. at 501.
. Id. (citing and quoting Johnson v. Armontrout, 961 F.2d 748, 751 (8th Cir. 1992)).
. Id. at 501-02. But see United States v. Brown, 26 F.3d 1124, 1126 (D.C. Cir. 1994) (concluding that "plain error analysis is applicable to a sixth amendment claim not raised at trial”).
. ROA.2799 (citing 3 Tr. at 3-79; 4 Tr. at 3-66; 5 Tr. at 3-90).
. Id.
. Austin v. Davis, 647 Fed.Appx. 477, 493 (5th Cir. 2016).
. Id. at 493 n.64 (citing United States v. Wilson, 116 F.3d 1066, 1086-87 (5th Cir. 1997), rev’d on other grounds, United States v. Brown, 161 F.3d 256, 258 (5th Cir. 1998) (en banc)).
. See Wilson, 116 F.3d at 1087.
. McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 556, 104 S.Ct. 845, 78 L.Ed.2d 663 (1984).
. 28 U.S.C. § 2111.
. 551 U.S. 112, 127 S.Ct. 2321, 168 L.Ed.2d 16 (2007).
. 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993).
. Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).
. Fry v. Pliler, 551 U.S. 112, 116, 127 S.Ct. 2321, 168 L.Ed.2d 16 (2007).
. Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993); see also Fry, 551 U.S. at 117, 121-22, 127 S.Ct. 2321 (noting that Brecht "clearly assumed that the Kotteakos standard would apply in virtually all § 2254 cases” and "suggested an exception only for the 'unusual case’ in which 'a deliberate and especially egregious error of the trial type, or one that is combined with a pattern of prosecutorial misconduct, ... infects the integrity of the proceeding’ ” and holding that the Brecht standard applies "whether or not the state appellate court recognized the error and reviewed it for harmlessness under the 'harmless beyond a reasonable doubt’ standard set forth in Chapman"); Hogue v. Johnson, 131 F.3d 466, 498-99 (5th Cir. 1997) (concluding that the Brecht standard applies to determine whether a constitutional error was harmless in a federal habeas challenge even when no state court reviewed petitioner’s claim and therefore never determined whether the error was harmless).
. Brecht, 507 U.S. at 637, 113 S.Ct. 1710; 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.”).
. 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).
. 10RR78.
. 9RR125-26; 11RR15-18.
. 11RR16, 19-20.