Basso v. Stephens, No. 4:2014cv00213 - Document 6 (S.D. Tex. 2014)
Court Description: MEMORANDUM OPINION AND ORDER dismissing with prejudice 1 Petition for Writ of Habeas Corpus, denying 3 Opposed MOTION to Stay Execution. No Certificate of Appealability shall issue in this case. (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)
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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION § § § § § SUZANNE MARGARET BASSO, Petitioner, v. § CIVIL NO. H-14-213 § § § § § § § § WILLIAM STEPHENS, Director, Texas Department of Criminal Justice-Correctional Institutions Division, Respondent. MEMORANDUM OPINION AND ORDER Suzanne Margaret Basso is a Texas death-row inmate. She is scheduled for execution on February 5, 2014. On January 30, 2014, Basso filed a petition for a writ of habeas corpus alleging that she is mentally ill and incompetent to be executed under the standards set by the United States Supreme Court in Ford v. Wainwright, 477 U.S. 399 Quarterman, 551 U.S. 930, 948 (2007). On January 31, filed a motion for a stay of execution. out of a murder committed years ago, (1986), and Panetti v. 2014, she Although this case arises it is undisputed that Basso raised this claim at the earliest opportunity under the Supreme Court's case law. 1 Basso filed her petition while her competency claim was still pending in the Texas Court of Criminal Appeals ("CCAU). While the claim was not ripe at the time it was filed, the Court 1 The United States Supreme Court has held that "'the Eighth Amendment prohibits a State from carrying out a sentence of death upon a prisoner who is insane.'" Panetti, 551 U.S. at 934. This prohibition applies even if a prisoner was earlier competent to be held responsible for committing a crime and to be tried for it. Once a prisoner makes a "preliminary showing that his current mental state would bar his execution, the Eighth Amendment . entitles him to an adjudication to determine his condition." Id. at 934-35. I. Procedural and Factual Background In September 1999, Basso was convicted of capital murder and sentenced to death for murdering Louis "Buddy" Musso. The facts are set out in detail in this Court's memorandum and order denying Basso's original federal petition for a writ of habeas corpus. Basso v. Quarterman, No. 07-cv-3047 (S.D. Tex. Jan. 26, 2009). The CCA affirmed Basso's conviction and sentence. State, No. 63,672 540 U.S. 864 relief, 2006) . (Tex. Crim. App. Jan. Basso v. 15, 2003), cert. denied, (2003), and denied her application for habeas corpus Ex parte Basso, No. On See January 26, 63,672-01 2009, this (Tex. Crim. App. Sept. 20, Court denied Basso's first acknowledges that Basso filed the petition in anticipation of the CCA's decision, and in recognition of the extremely timesensitive nature of the proceeding. The CCA has since decided that Basso is competent, Basso v. State, No. AP-77,032 (Tex. Crim. App. Feb. 3, 2014), and the petition is now ripe for federal review. 2 federal petition for a writ of habeas corpus. The Fifth Circuit denied Basso's request for a certificate of appealability. Basso v. Thaler, No. 09-70012 (5 th Cir. Jan. 11, 2010), cert. denied, 131 S . Ct. 181 ( 2 010) . On October 1, 2013, Basso sought a competency hearing in the state trial court and filed a motion asking the state trial court to declare the Texas competency statute, 46.05, unconstitutional. TEX. CODE CRIM PROC. art. The state trial court denied that motion on December 13, 2013. The court held an evidentiary hearing on December 13, 2013, at which the experts. court received expert Following that hearing, testimony by court appointed on January 14, 2014, the state trial court entered findings of fact and conclusions of law finding that Basso is competent to be executed. On February 3, 2014, the Texas Court of Criminal Appeals adopted the trial court's findings and denied relief. Basso v. State, No. AP-77,032 (Tex. Crim. App. Feb. 3, 2014). II. The Legal Standards A. The Anti-Terrorism and Effective Death Penalty Act This petition is governed by the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"). Under the AEDPA federal habeas relief based upon claims that were adjudicated on the merits by the state courts cannot be granted unless the state court's decision (1) "was contrary to, or involved an unreasonable application of, clearly 3 established federal law, as determined by the Supreme Court of the United States" or (2) "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 698, 700 (5th Cir. 1999). of law and fact 2254(d); Kitchens v. Johnson, 190 F.3d For questions of law or mixed questions adjudicated on the merits in state court, court may grant federal habeas relief under 28 U.S.C. this 2254 (d) (1) § only if the state court decision "was contrary to, or involved an unreasonable application of, precedent]." See Martin v. clearly established Cain, cert. denied, 534 U.S. 885 (2001). this court may afford habeas 246 F.3d 471, [Supreme Court 475 (5th Cir.), Under the "contrary to" clause, relief only if "'the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than . [the Supreme Court] has on a set of materially indistinguishable facts.'" Dowthitt v. Johnson, 230 F.3d 733, 740-41 (5th Cir. 2000), cert. denied, 532 U.S. 915 (2001) (quoting Williams v. Taylor, 529 U.S. 362, 406 (2000)). The "unreasonable application" standard permi ts federal habeas relief only if governing legal unreasonably a state court decision "identifies rule from [the applies it to the Supreme facts of Court] the the correct cases particular but state prisoner's case" or "if the state court either unreasonably extends a legal principle from [Supreme Court] precedent to a new context 4 where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." Williams, 529 "In applying this standard, we must decide (1) what u.s. at 406. was the decision of the state courts with regard to the questions before us and (2) whether there is any established federal law, as explicated by the Supreme Hoover v. decision conflicts." Cir. A 1999). Court, federal with Johnson, court's which the state 193 F.3d 366, "focus on the court 368 (5th 'unreasonable application' test under Section 2254(d) should be on the ultimate legal conclusion that the state court reached and not on whether the state court evidence." aff'd, considered Neal v. Puckett, 286 F.3d 230 nom. Neal v. Epps, and discussed 239 F.3d 683, (5th Cir. 2002) 537 u.S. 1104 every 696 (en banc) , (2003). angle (5th Cir. of the 2001), cert. denied sub The sole inquiry for a federal court under the "unreasonable application" prong becomes "whether the state court's determination is 'at least minimally consistent with the facts and circumstances of the case.'" Id. (quoting Hennon v. Cooper, 109 F.3d 330, 335 (7th Cir. 1997)); see also Gardner v. Johnson, 247 F.3d 551, 560 (5th Cir. 2001) ("Even though we cannot reverse a decision merely because we would reach a different outcome, we must reverse when we conclude that the state court decision applies the correct legal rule to a given set of facts in a manner that is so 'unreasonable.''') . 5 patently incorrect as to be The AEDPA precludes federal habeas relief on factual issues unless the state court's adjudication of the merits was based on an unreasonable determination of the facts in light of the evidence presented § in the state court See proceeding. 28 U.S.C. 2254 (d) (2); Hill v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000), cert. denied, 532 u.S. 1039 (2001) The state court's factual determinations are presumed correct unless rebutted by "clear and convincing evidence." 28 U.S.C. § 2254(e) (1); see also Jackson v. Anderson, 112 F.3d 823, 824-25 (5th Cir. 1997), cert. denied, 522 u.s. 1119 (1998). B. The Ford Standard In Ford v. Wainwright, 477 u.s. 399 (1986), the Supreme Court held that "[tlhe Eighth Amendment prohibits the State from inflicting the penalty of death upon a prisoner who is insane." Id. at 410. A prisoner is incompetent to be executed when her "mental illness prevents [herl from comprehending the reasons for the penalty or its implications." Id. at 417. Once a petitioner makes a substantial threshold showing of insanity, she is entitled to a fair hearing on her competency to be executed in accord with fundamental fairness. (2007) submit Pan e t t i v . Qua r t erma n , (citing Ford, 477 u.s. at 426). evidence and argument, 6 930, 94 8 This includes the right to including evidence. 551 u. S . expert psychiatric Analysis III. Article 46.05 A. In her first claim for relief, Basso argues that TEX. CODE CRIM PROC. art. 46.05 is unconstitutional. It is unnecessary for this Court to address the broad constitutionality of the statute. The questions before this Court are whether Basso's court competency requirements set proceedings out comported in Panetti and, if with so, the due state process whether the state court's findings and conclusions were "contrary to, or involved an unreasonable application of, determined by the clearly established federal law, as Supreme Court of the United States" or were "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." § 28 U.S.C. 2254(d); Kitchens v. Johnson, 190 F.3d 698, 700 (5th Cir. 1999). If the actual process provided to Basso comports with due process, then her constitutional rights were not violated. If the state court's findings and conclusions meet the reasonableness standards, then they are entitled to deference under the AEDPA. Panetti's due process requirement merely requires that a person who makes a threshold showing that she is incompetent to be executed have an opportunity to develop her claim in state court, to present testimony and other evidence, and to have the assistance of counsel and experts. Cir. 2012) See Green v. Thaler, 699 F.3d 404, 413 (5 th Basso does not dispute that she had an evidentiary 7 hearing at which she was able to submit records and testimony, including expert testimony, and that she was assisted by counsel. The state court hearing therefore provided sufficient due process, the proceeding met constitutional requirements, and the AEDPA applies. Basso because also it argues places that article 46.05 is unconstitutional the burden on the petitioner to prove by a preponderance of the evidence that she is incompetent. As Basso acknowledges, however, "'the Supreme Court has never established who bears the Thus, claim. ' Section 2254 Cir. 2000)) proof in there is no a competency-to-be-executed 'clearly established' law for Petitioner's Memorandum of Law " at 19 (quoting Coe v. Bell, 209 F.3d 815, 827 (6 th Because there is no clearly established law on this the state court's decision cannot be contrary to clearly established law. B. of purposes (Document # 4) point, burden AEDPA thus requires deference to that decision. Competency To be Executed During the state court competency hearing, the court received expert reports by Mark Moeller, M.D., a psychiatrist, and Walter Quijano, Ph.D., a clinical psychologist. Following the hearing, the trial court entered findings of fact and conclusions of law. The State presented affidavits Knapp, and Diane Livanec, regular contact with Basso. from Patricia Glass, TDCJ correctional officers who Sally have Glass states that she interacts with 8 Basso and that Basso's conversation is Basso appropriate. threatened self-harm shortly after her arrival at the Estelle Unit, but resumed normal staff. lack behavior after receiving attention by unit Knapp and Livanec reported similar lucid conversations and of evidence of Li vanec psychosis. noted that Basso has periodically acted out and claimed to hear voices, but states that Basso never acted as if she actually heard voices. CR at 98-99, 102, 104. 2 Nathaniel Robertson, M.D., Basso's treating physician since Dr. Robertson stated November 2011, also submitted an affidavit. that Basso never related any auditory or visual hallucinations to Basso has had rational discussions with Robertson about a him. number of health-related issues. Sister Elizabeth Riebschlaeger, a Catholic nun, testified at the hearing. She is Basso's spiritual advisor. Sister Riebschlaeger testified that Basso reported delusional facts about her life, including claims that she is cousins with Cardinal O'Malley of Boston, and that she was good friends with former New York Governor and Vice President of the United States Nelson Rockefeller and his wife, Happy. 1 RR at 21-23. 3 Basso also told Sister Riebschlaeger that she was beaten by the police 2 "CR N refers to the Clerk's record. 3 "RR N refers to the Reporter's Record of the competency hearing. 9 after her arrest for capital murder. Id. at 39-40. State District Judge Mary Lou Keel presided over both Basso's FF at 12.4 trial and competency hearing. The state court found that Drs. Moeller and Quijano, while both noting symptoms of mental illness, both concluded that Basso is competent to be executed. Id. at 11; 1 RR at 258. The court noted that a competency hearing was conducted at the time of Basso's trial in 1999. hearing, two malingered mental symptoms health of During that competency FF at 13. her competent to stand trial. professionals mental A jury found testified Jerome illness. that Brown, Basso Ph.D., testified that Basso had a history of using manipulative behavior to obtain her goals. He detected a pattern of deception in Basso's performance on tests and concluded that her efforts to present herself as mentally ill was deliberate and contrived. Ferguson, M.D., testified that Basso malingered Melissa auditory hallucinations that were inconsistent with actual psychosis. at 14. Id. The testimony of Drs. Brown and Ferguson were also noted in this Court's 2009 habeas corpus opinion. See Basso v. Quarterman, No. 07-cv-3047(S.D. Tex. Jan. 26, 2009) at 20-22. At Basso's 2013 competency hearing, Basso testified on her own behalf. 4 The court also heard expert testimony by Drs. Moeller and "FF U refers to the state trial court's findings of fact and conclusions of law, entered on January 14, 2014. The number refers to the numbered findings. The findings of fact are located at pages 106-17 of the Clerk's Record. 10 Quijano, and by licensed professional counselor Stephanie Kosut. Drs. Moeller and Quij ano agreed that Basso is competent to be executed under the Ford standard. The court found that Quij ano based his conclusion on his interview and testing of Basso in October 2013 and his review of relevant records. rd. at 18. Moeller based his conclusion on his November 2013 interview of Basso, conversations with a psychiatrist who treated Basso relevant records. The court over the past several years, and found that Basso and borderline personality disorder. was diagnosed during Moeller, her recurrent, She was prescribed Prozac for She was not receiving any antipsychotic medications at the time of her 2013 evaluations by Drs. Quijano and Moeller. at 20-21. of rd. at 19. incarceration in TDCJ with major depressive disorder, depression. review rd. The court further found, based on statements by Basso, and a TDCJ psychiatrist, that Basso was not having hallucinations or delusions during her 2013 competency evaluations and is not delusional or psychotic. Basso acknowledged at the statements about her background. rd. at 22. hearing that she made untrue The court found that she knew the difference between the truth and a lie. rd. at 23-24; 1 RR at 258. The court further found that Basso has a history of malingering and engaging in attention-seeking behavior, and a history of falsifying physical and psychiatric symptoms. FF at 25. 11 Based on the hearing evidence, the court rej ected Basso's claim that she could not remember her capital murder trial. Based on her history of malingering, the court found not credible Basso's claimed difficulty in understanding certain words or the rudiments of the competency hearing. Id. at 27-28. During her clinical evaluation by Quijano, Basso took two IQ tests, the Wechsler Adult Intelligence Scale-IV the Wechsler Memory Scale-III ("WMS-III"). WAIS-IV, ("WAIS-IV"), and She scored a 55 on the and had scores ranging from 78 to 100 on the WMS-III. Quijano considered the WAIS-IV score, which is at the low end of the range for mild mental retardation, inconsistent with Basso's actions and behavior, and her vocabulary, flow of speech, and work history. 1 RR at 143, 152-55. Ms. Kosut, the licensed professional counselor who administered the tests, stated that the WAIS-IV score was unexpected. ways that were She found Basso to be articulate in inconsistent with an IQ of 55. Based on this evidence, the court fount the WAIS-IV score unreliable. Id. at 2934. The court found Sister Riebschlaeger's opinions regarding Basso's mental health unpersuasive because Riebschlaeger is not a mental health professional, the opinion was based on self-serving information provided by Basso, and Riebschlaeger acknowledged that some of her resollections of her visits with Basso may have been faulty. Id. at 37. The court also doubted Basso's self-reported 12 delusions based on their periodic nature and Basso's history of malingering. Id. at 38. Based on all the evidence, the court found that Basso has a factual and rational understanding of the fact of her upcoming execution and the reasons for the execution. Id. at 40-41. All of the court's factual supported by the record. under the noted above are well- They are therefore entitled to deference Based AEDPA. findings on the court's well-grounded factual findings, the court's conclusion that Basso is competent under the standards of Ford and Panetti is not an unreasonable application of Supreme Court precedent. Basso now argues that her competency is based on "synthetic competency," medicated. i. e. that she is competent only because she is Dr. Quijano testified that Basso is competent but, if taken off her medications would become psychotic and, incompetent. 1 RR at 189-92. synthetically competent possibly, She argues that one who is merely cannot, with consistent the Eighth Amendment, be executed. Dr. Quij ano medical doctor. is a clinical psychologist, but he is not a Dr. Moeller, who is a medical doctor, disagreed with Dr. Quijano's conclusion on this point. Dr. Moeller pointed out that Basso's medications were prescribed for mood disorders, not a delusional understands both disorder. the fact Id. of her 13 at 212. impending He opined execution that she and the it, for reasons including responsibility for, the murder. her own involvement in, and Id. at 242-47. It is the province of the finder of fact "to weigh conflicting evidence and 2012) this and determine the credibility of 692 (5 th (internal quotation marks and citation omitted). In Roman v. Western Mfg., witnesses." Cir. inferences, case, the evidence strongly Inc., 691 F.3d 686, supports the state court's findings. Both experts agreed that Basso is competent to be executed. The only area of disagreement on this point was that Dr. Quijano, who is not a medical doctor, opined that Basso would not be competent if taken off her medication while Dr. Moeller, who is a medical doctor, disagreed. The court was well within its bounds to find Dr. Moeller's opinion on this point more convincing. The court was also well within its bounds as finder of fact in determining that Basso's claims of delusions are not credible. Basso has a long history of malingering symptoms. Those who have regular contact with her, including three correctional officers and her treating physician, reported seeing no evidence of delusional behavior from Basso. In sum, the court's findings were reasonable based on the factual record, and its conclusion that Basso is competent to be executed is a reasonable application of Ford and Panetti to the facts of this case. Therefore, under the AEDPA, the state court's 14 judgment is entitled to deference, and Basso is not entitled to relief. IV. Certificate of Appealability Basso has not requested a certificate of appealability ("COA"), but this court may determine whether she is entitled to See Alexander v. this relief in light of the foregoing rulings. Johnson, 211 F.3d 895, 898 (5th eir. 2000) ("It is perfectly lawful for district court's [sic] to deny a COA sua sponte. The statute does not require that a petitioner move for a COA; it merely states that an appeal may not be taken without a certificate of appealability having been issued."). A petitioner may obtain a eOA ei ther an from the district court or appellate court, but an appellate court will not consider a petitioner's request for a COA until the district court has denied such a request. v. Johnson, Johnson, 157 F.3d 384, 114 F.3d 78, 82 388 (5th Cir. (5th Cir. 1997) See Whitehead 1988); see also Hill v. ("[T]he district court should continue to review COA requests before the court of appeals does."). A COA may issue only if the petitioner has made a "substantial showing § of the denial of a constitutional right." 28 U.S.C. 2253(c) (2); see also United States v. Kimler, 150 F.3d 429, 431 (5th Cir. 1998). demonstrates A petitioner "makes a substantial showing when he that his application involves issues that are debatable among jurists of reason, that another court could resolve 15 the issues differently, or that the issues are suitable enough to deserve encouragement to proceed further." 213 F.3d 243, 248 Hernandez v. Johnson, (5th Cir.), cert. denied, 531 U.S. 966 (2000). The Supreme Court has stated that Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484 of whether a COA should issue "[T]he determination (2000). must be made by viewing the petitioner's arguments through the lens of the deferential scheme laid out in 28 U.S.C. § 2254(d) " Barrientes v. Johnson, 221 F.3d 741, 772 (5th Cir. 2000), cert. dismissed, 531 U.S. 1134 (2001). This court has carefully considered Basso's claims and concludes that they are foreclosed by clear, binding precedent. The court concludes that under such precedents Basso has failed to make a "substantial showing of the denial of a constitutional right." U.S.C. § 2253 (c) (2). 28 The court therefore concludes that Basso is not entitled to a certificate of appealability on her claims. v. Stay Of Execution Basso has also filed a motion for a stay of execution to allow this Court time to adj udicate her petition. concludes that Basso is not entitled to Because this Court relief and no stay is necessary to allow time to adjudicate the petition, Basso's motion 16 for a stay of execution is denied. VI. Conclusion and Order For the foregoing reasons, it is ORDERED as follows: 1. Petitioner Suzanne Margaret Basso's Petition for a Wri t of Habeas Corpus (Document No.1) is in all respects DENIED and Basso's Petition is DISMISSED WITH PREJUDICE; 2. No Certificate of Appealability shall issue in this case; and 3. Basso's Motion for a Stay of Execution (Document No.3) is DENIED. SIGNED at Houston, Texas, on this the 3rd day of February, 2014. ~KE UNITED STATES DISTRICT JUDGE 17
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