Perry Allen AUSTIN, Petitioner-Appellant, v. Lorie DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee, 876 F.3d 757

PRISCILLA R. OWEN, Circuit Judge: Perry Allen Austin was convicted of capital murder in Texas state court and sentenced to death. The Texas Court of 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.] 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.

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.” He also indicated he would accept a death sentence and waive any appeals.

He stated that he was “fully aware of [his] rights and [was] fully competent to stand before you and make these decisions.” Austin explained that he had not had' peace of mind since the murder, that his “mental stability [had] steadily decreased,” and that he was using drugs again. 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.

Austin reasoned that he had not had a disciplinary incident since entering the county jail and that, even though he was charged with capital murder, .he suspected “others in population [had] similar charges.” He further stated that he “[could not] handle prolonged isolation” because he “[has] a very bad problem with depression” and contemplates suicide often when depressed. Several weeks later, Austin again requested an earlier trial date. Austin explained to the state trial court: “No, I don’t have a death wish, or at least you all can’t prove it....

I am fully competent and definitely know the difference between right and wrong.” In his last letter to the state trial court before the pretrial hearing to-determine if Austin could represent himself, Austin again requested to proceed pro se, noting he was “fully aware of the consequences” and “aware that this is within [his] right.” He also stated that he did not wish to participate in jury selection and that he would “not contest any juror the prosecution selects.” 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. The trial court granted counsel’s request, although it appears that counsel did not immediately seek Dr. Brown’s services. The trial court held a conference in chambers six weeks later and explained to Austin that it wanted a psychological evaluation performed before it could decide whether Austin could proceed pro se. The trial court ordered Dr. Brown to evaluate Austin to determine his competency to stand trial. In his report, prepared after meeting with Austin, Dr.

Brown noted that Austin “had no trouble providing relevant and coherent background information,” was able to describe the charges against him and the court proceedings that had occurred, and could explain why he wanted to represent himself. Dr. Brown concluded that Austin was “alert, well-oriented, and able to communicate his ideas without difficulty.” Dr. Brown also noted that Austin displayed no “bizarre verbalizations,” hallucinations, or delusions typically indicative of severe mental illness nor did he exhibit any indication of disorganization, confusion, or other significant difficulties in communication.

Although the report acknowledged Austin’s use of alcohol and drags in prison, it did not otherwise mention any past mental health issues. Dr. Brown concluded that Austin was competent to stand trial. 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. To exercise that right, a defendant must competently, knowingly, and intelligently waive his right to counsel.

At the hearing, the trial court noted that it had read Austin’s letters and spoken with Austin at a prior hearing. The trial court also noted that it was in possession of Dr. Brown’s report summarizing his evaluation of Austin’s competency to stand trial. The trial court asked Austin’s counsel his opinion as to Austin’s competency.

Counsel stated that, in his view, Austin was competent to stand trial and, in fact, “it has been [his] opinion from the first time [he] met him but out of an abundance of caution [he] requested the psychiatric evaluation.” The court then asked Austin a series of questions pertaining to his understanding of the possible consequences of representing himself and of the charges against him. Austin explained that he wanted complete control over trial strategy, although he agreed to standby counsel “[f]or legal advice only.” The court also asked Austin four questions about his mental health history.

Austin stated he had had no mental health issues. The trial court issued findings, granted Austin’s request to proceed to trial pro se, and appointed standby counsel.

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 later sent the trial court another letter requesting “all the evidence the prosecutor had against” him.

He also asked the state trial court about obtaining proper clothing for trial, and stated that he would like Arnold removed as his advisor because Arnold did not answer Austin’s letters and because Austin “[did] not need him.” In another letter to the state trial court before trial, Austin noted that he was “out of seg now so [was] no longer suffering bouts of depression” and that he was “still firm about [his] decision to not fight this case,” H'e also stated that he “decided that it is not necessary for [him] to review [his] case file ... [s]ince [he was] not going to put up any type of defense.” Austin did not participate in jury selection.

The trial court admonished prospective jurors during voir dire that if selected, each would be required to “render a verdict based on the law .., not your person^ al opinion,” Under Texas law, juries on capital cases must decide two special issues in the sentencing phase: (1) “whether there is a probability that the defendant wouíd commit criminal acts of violence that would constitute a continuing threat to society,” and if só, (2) “[w]hether,:taking into' consideration all of the evidence ,.. there is a sufficient mitigating circumstance or circumstances to warrant that a sentence of life imprisonment without parole rather than a death sentence be imposed.” Each juror answered, under oath, that he or she could impartially decide whether Austin should be sentenced to life imprisonment or death, When empaneled, the jurors swore they would render a verdict according to the law and evidence. , .

Austin pleaded guilty tu capital murder. Before accepting Austin’s plea, the trial court questioned Austin about his understanding of the charges against him and the possible penalties. The court also probed whether Austin’s plea was voluntary. Austin stated' he understood and was entering his plea voluntarily. The court accepted the plea. After the jury was sworn and admonished by the state trial court, the State presented the indictment and Austin entered his -guilty plea before the jury. The punishment phase of the trial then proceeded.

During the punishment phase, the State provided additional details regarding the offense, including that D.K. was nine years old when he. was Wiled. It also introduced the letter Sergeant Allen received from Austin in January 2001, in which Austin stated that he would confess to the murder of D.K. if guaranteed the death penalty and, if that was not guaranteed, he would kill a prison guard to ensure, he received the death penalty.

The tapes of Austin’s two interviews with Sergeant Allen—the first .taking place immediately, after Sergeant Allen received Austin’s letter in 2001 and the second occurring before Austin’s trial in 2002—were played to the jury. In the first interview, Sergeant Allen made clear that he could not promise or guarantee Austin anything in exchange for confessing to D.K.’s murder. Austin then described how he committed the crime. When Sergeant Alen asked Austin.why he decided to confess, Austin replied, “I’m tryin[g] to clean myself up....

You know and studying the Bible,- I’m not saying I’m a Christian, I’m not saying I’m getting religious you know.... I need to clear .all this up.” 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.” When Sergeant Alen further inquired why Austin came forward in 2001, Austin answered, “Depression I guess.” Austin stated: 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.

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.” He stated that he “just want[ed] to get this over with and close it up,” and that “[t]he only reason [he hadn’t] killed [himself] is because” he “actually believefs] there is a hell.” He explained: “Put it this way[,] I’m not killing myself, I’m just not putting on a defense.

I regret something I did, I’m gonna pay for it[,] I’m not gonna make no éxeuses for nothing.” Austin for the most part refrained from questioning witnesses and presenting evidence during the punishment phase. He did not testify. He briefly cross-examined an F.B.I. agent about Austin’s relationship with J.O., specifically asking whether J.O.’s mother informed the agent that Austin used to date her before dating J.O. and whether J.O.’s mother told the agent that J.O. looked old enough to drink in bars.

Austin made a closing statement, telling the jury he was violent, mean, and sometimes thought he had no conscience. He also stated: 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.

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. He explained that “one of these days” there would not be someone to stop him, and he would “end up killing again.” Austin contested at closing the State’s contention that he was a pedophile, asserting that J.O. looked older than she was. He stated he was homosexual and described his sexual preferences.

Austin concluded his closing, telling the jury: On these special issues, there’s no doubt that you will answer yes to No. 1 because if you send me to prison, I will 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.

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. The court noted it had previously determined before trial that Austin was competent and it appointed standby appellate counsel. Pursuant to Texas law, Austin’s case was automatically appealed to the Texas Court of Criminal Appeals (TCCA). Austin filed no brief.

The TCCA affirmed his conviction, noting that Austin had chosen to represent himself at trial and on appeal and that the “trial court [had] fully admonished [him] of the dangers and disadvantages of self-representation prior to trial and prior to this appeal.” The TCCA stated it had, in the interests of justice, reviewed the entire record and found no unassigned fundamental error. Austin waived any pursuit of post-conviction relief and the trial court set Austin’s execution date. Six days before his scheduled execution, Austin moved to have state habeas counsel appointed.

The trial court withdrew the execution date and appointed Dick Wheelan as habeas counsel on September 24, 2003. 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.” Wheelan determined that March 22, 2004 was the filing deadline for Austin’s application for a writ of habeas corpus, counting 180 days from the date of his appointment.

Pursuant to Texas Code of Criminal Procedure, art. 11.071, § 4(b), Wheelan later requested a 90-day extension of time. The state trial court granted his request. On April 8, 2004, Wheelan filed with the TCCA a motion for leave to file a skeletal application for a writ of habeas corpus with leave to file an amended original petition by June 20, 2004.

The TCCA issued an order dismissing Whee-lan’s scheduling motion, holding that § 4(a) “should be interpreted” such that “‘the date the convicting court appoints counsel’ ... shall mean the day the applicant waived counsel and chose to represent himself on habeas” and “‘the date the state’s original brief is filed on direct appeal’ ... shall mean the day the State waived its right to file a brief on appeal.” The TCCA subsequently denied Austin’s motion for leave to file an untimely application for a writ of habeas corpus. Austin filed a federal habeas petition.

The State moved to dismiss the petition contending that Austin’s claims were procedurally defaulted in light of the TCCA’s denial of his state petition as untimely. The district court denied the State’s motion. In its answer, the State argued Austin had insufficiently briefed a number of his claims. Austin then filed a first amended petition. The district court granted a stay to permit Austin to exhaust in state court new claims based on legislative changes to Texas’s death penalty scheme. After Austin exhausted those claims, he filed a second amended federal habeas petition. The State filed an answer.

Austin then moved for funds for expert assistance in assessing his mental health and competency, which the district court authorized. Austin subsequently filed a response to the State’s answer and a'motion for an evidentiary hearing, supported by affidavits from mental health experts. ' 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. We recount the evidence pertinent to Austin’s claims.

After his suicide attempt in 1975, he was hospitalized and diagnosed with adolescent adjustment reaction in a mixed personality. Austin subsequently joined the army but was discharged in 1977 for “failure to adapt socially, and emotionally.” Following the aggravated rape of his sister and attempted aggravated rape of another of his sisters, as well as the aggravated robbery of a third sister and his. mother in 1978, Austin-was evaluated by a psychologist, Dr, Franklin Lewis, before the trial occurred on those charges. Dr.

Lewis diagnosed Austin with severe personality disturbance with schizoid thinking and antisocial features as well as latent borderline schizophrenia. He concluded that Austin was, at the time, suffering from 'a mental illness. Austin pleaded not guilty due to insanity. At trial, Dr. Lewis testified that there were indications that Austin had brain dysfunction or brain damage, although further testing would be required to make' a determination. Austin again' attempted suicide in 1979 while awaiting trial.

After he was convicted, he wrote to the trial judge requesting that he be placed at a state hospital to' “get help for [his] problem,” rather than sent to the Texas Department of Corrections (TDC). Although the trial judge forwarded Austin’s letter to the Diagnostic Unit of the TDC, Austin remained with the TDC for the duration of his sentence. A number of physical and psychological evaluations of Austin were conducted during this time period. There is some evidence that Austin did not wish to receive mental health counseling and was not cooperative while in the TDC or the Harris County Sheriffs Office.

Austin also asserted that the conditions of his confinement in the Texas prison system were “psychologically aversive” and that he received no effective mental health treatment while incarcerated. After Austin -returned to the TDC to serve a thirty-year sentence for sexual assault of a child in 1992, he stabbed another prisoner and was placed in administrative segregation from 1995 until 1998.

He asserts that the conditions of his confinement during this period, which he alleges included “unlawful violence by staff, sub-standard physical conditions and food, unlawful denial of exercise and educational materials, and prolonged periods of isolation,” caused his mental health to deteriorate further. Upon release from administrative segregation, Austin was placed in a “safekeeping” unit because he identified as a homosexual. Austin contends that the conditions of safekeeping also negatively affected his mental health.

In 2001, he was again placed in administrative segregation after assaulting a prison guard. A week later, Austin sent the letter to Sergeant Allen confessing to D.K.’s murder. He contends that when he confessed, he was “[ujnder the influence of his mental illness and the severely depressive effects of his conditions of confinement.” 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, and a neuropsy-chiatrist, Dr. Woods, both retained as part of his post-conviction investigation.

He also submitted, in his motion for an evi-dentiary hearing, affidavits prepared by Dr. McGarrahan and Dr. Woods in 2012. In her 2004 report, prepared after reviewing Austin’s records and meeting with him, Dr. McGarrahan noted that Austin “endorsed continual suicidal ideation with a plan to cut his wrists with a razor blade” but “ha[dj no intent at [the] time because he ha[d] ‘something to live for.’ ” She opined that Austin’s “overall pattern of cognitive performance suggests dysfunction of pre-frontal systems.” Dr.

McGarrahan described Austin’s thought processes as “goal-directed,” but noticed “he evidenced brief delays in responding to questions and he occasionally lost his train of thought.” She noted that Austin “denied experiencing any auditory hallucinations and there was no indication of a fixed delusional system.” In Dr.

McGar-rahan’s opinion, “[pjsychological testing revealed significant depression, history of problems with drugs, suicidality, history of physical aggression, antisocial behaviors, anxiety related to a traumatic event, identity problems and potential for self-harm.” She diagnosed Austin with a major depressive disorder, a cognitive disorder not otherwise specified, a polysub-stance disorder, an anxiety disorder, and a personality disorder. 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. Dr. Woods explained that “Austin certainly understood the factual issues of his trial,” “[hje knew what he was being charged with,” and he “understood the potential consequences of his false confession.” In Dr. Woods’ opinion, Austin “was capable of managing impressions and sought to minimize the appearance of any mental illness to ensure that his planned death could proceed.” Nonetheless, Dr.

Woods concluded: [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. Dr. Woods also concurred in Dr. McGarra-han’s diagnosis that Austin suffered from frontal lobe dysfunction. In Dr.

Woods’ opinion, Austin’s “pre-existing and serious mental illness” was the “operating cause in his decision to kill himself.” 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. Brown noted that information “relevant and significant” to his 2001 competency evaluation of Austin was withheld by Austin “which might have provided information critical to the determination of his competency to stand trial.” Dr.

Brown concluded that it was “possible” that Austin’s judgment was “significantly impaired by his mental difficulties” such that Dr. Brown’s determination as to competency was incorrect in 2001. The State included in its answer to Austin’s habeas petition another affidavit from Dr. Brown obtained in 2008. In that affidavit, Dr. Brown explained that, at the time of his 2007 affidavit, Austin had not provided him with the medical information previously withheld. Having reviewed the information not available at the time of his original evaluation of Austin in 2001, Dr.

Brown concluded “there [was] nothing ... that would justify changing my opinion, that would indicate that Mr. Austin’s opportunity for a fair and impartial evaluation had been compromised because of what he withheld, or that additional evaluation, including more psychological testing or psychiatric interviewing, would have made any difference.” 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.” Dr. Woods opined that Austin’s jail records demonstrated he “was suffering from depression, suicidality, frequent crying spells, nightmares, racing thoughts, confusion, reduced sleep, irritability, and poor concentration.” Dr.

Woods concluded that “Austin’s decision to pursue the death penalty was a direct result of contemporaneous depression and active suicidality” and that the decisions he made throughout trial and on appeal were thus irrational and involuntary. The district court ■ granted

summary judgment to the State and denied Austin’s request for an evidentiary hearing. Although the district court held that the TCCA applied a new rule that could not be the basis of a procedural default, it concluded that Austin’s claims were nevertheless foreclosed and denied a COA. 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. 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. Austin’s, counsel subsequently filed a motion for expedited consideration of the COA.

We noted that this motion conflicted with Austin’s request to withdraw and we remanded,, to the district court “for the limited purpose of making findings as to whether Austin [was] presently competent to waive further appeals of his conviction and death sentence, and if Austin [was] found to be competent, whether such waiver is knowing and voluntary,” We subsequently received a letter from Austin, written prior to the remand, stating that he wished us to either deny his request for a COA or grant his motion to withdraw his appeal. ■ 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.

In May 2015, Austin filed a pro se letter with this court again stating he did not feel another competency evaluation was necessary and renewing his request for an expedited review and denial of his appeals. Austin explained: “We all know that I am guilty and that all the previous psychological evaluations I received that found me to be mentally unstable was in error because of my deception.” Austin stated he had taken psychology classes and was knowledgeable about manipulating others.

Shortly thereafter, Austin sent this court another letter, stating that-he no,-longer wished to have legal representation, that a competency hearing was not necessary because he had already had two, and that he would not answer questions in .the .-event a competency evaluation was ordered. In July 2015, Austin wrote to the court reiterating his request that the cpurt deny his COA. He requested that he be permitted to proceed pro se.

He again stated he would not answer questions in any court-ordered competency evaluation and that “[a] Faretta hearing [was] also .not necessary as [he had] already had two of them, once when [he] chose to represent [himself! during [his] trial and again when [he] chose to represent [himself] during [his] direct appeal.” Austin explained: If any are wondering, what my motives are for all- of this, it’s quite simple. I wish to be executed. Either that, or give me Life Without Parole, One or the other.:... I do not. want'out of prison. I am probably one of the very few guys in prison who readily admit that .

I belong 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. ■ In November, 2015, Austin sent another letter to this court requesting denial of his appeal. He restated that he had taken psychology classes, was “good [at] manipulation,” and had deceived mental health experts previously. This court subsequently granted in part and denied in part Austin’s COA. In November 2016, Austin again wrote to the court requesting a denial of his appeal.

In reference to the claims raised concerning his mental health issues, Austin' stated he “[could] guarantee this court that I am now, and always have been fully competent.” He again suggested he had previously deceived mental health experts and manipulated a polygraph test. He also explained that he had refused visits from his attorney because the visits often required him to miss meals. In this letter, he stated he would cooperate with a mental health evaluation but only if it was conducted at the prison because he did not want to be bench warranted back to the county.

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.” Our review of this federal habeas petition is governed by the applicable provisions of the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA). Under AEDPA, if a claim was adjudicated on the merits by a state court, § 2254(

d) provides that a féderal court cannot issue a writ of habeas corpus unless the state court’s decision was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” Under § 2254(e)(1), “a determination of a factual issue made by a State court shall be presumed to be correct” and “[t]he applicant.shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.” 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. We consider the standard of review applicable to each of Austin’s claims in our analysis of them. 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. The TCCA reasoned that § 4(

a) should be interpreted to require filing no later than 180 days after Austin waived habeas counsel or 45 days after the State waived its right to file a brief on appeal, The district court concluded that the procedural rule had not been clearly announced nor regularly followed because the TCCA had never before interpreted the statute in such a way. Accordingly, it determined that the rule could not be the basis for a procedural default. We agree.

We also note that the State has affirmatively set forth in its brief in this court that it does not challenge the district court’s ruling that the state procedural ground was inadequate. 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). He also argues that the state trial court’s procedures were not adequate to ensure he was competent (Issues 6, 7, 8, 9).

Austin presents evidence of his mental health history which he contends demonstrates his incompetence. In a closely related claim, Austin asserts that his waiver of counsel and guilty plea were not knowing and voluntary because of his mental illness and the coercive conditions of his confinement (Issues 16, 17). He also argues that the district court improperly deferred to the state trial court’s determinations that Austin’s guilty plea and waiver of counsel were knowingly and voluntarily made (Issue 2 and 15).

A “[T]he Constitution does not permit trial of an individual who lacks ‘mental competency.’ ” A defendant is competent to stand trial if he has “sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding [and if] he has a rational as well as factual understanding of the proceedings against him.” The Supreme Court concluded in Maggio v. Fulford that competency to stand trial is a question of fact. In Felde v. Blackburn, this circuit relied on Fulford in determining that a state court’s finding of competence to stand trial is a finding of fact.

We have reiterated that holding -in a number of cases. In Washington v. Johnson and Bouchillon v. Collins—two decisions issued after Felde—we treated the question of competency as a mixed question of law and fact. This circuit’s rule of orderliness, however, provides that “one panel of our court may not overturn another panel’s decision, absent an intervening change in the law.” Because we are bound by this circuit’s rule of orderliness, and the earlier panel decision controls, we adhere to Felde and to Fulford and consider competency a, question of fact.

Section 2254(

e) limits our review of state-court fact findings, even- if no claims were presented on direct appeal or state habeas. Under § 2254(e)(1), “a determination of a factual issue .¡made by a State court shall- be presumed to be correct” and the habeas petitioner bears “the burden of rebutting the presumption of correctness by- clear and convincing evidence.” To the .extent Austin’s claims challenge factual- determinations made by the state trial court, we-apply § 2254(e)(1). To the extent Austin’s claims present questions-'of law and mixed questions of law and fact, such that § 2254(

e) does not apply, we review de novo. Because competency is a question of fact, we afford the state trial court the deference due under §• 2254(e)(1). Under § 2254(e)(1), the state trial court’s determination that Austin was competent to stand trial, waive counsel, and plead guilty is presumed correct. Austin bears the burden of rebutting that presumption of correctness by clear and convincing evidence.

Out of an abundance of caution, however, we will also consider, in the alternative, whether Austin is entitled to habeas relief if Austin’s competency claims are subject to ¡review as a mixed question of. law and fact. The trial court conducted a pretrial hearing following an expert’s evaluation of Austin’s competence to consider Austin’s motion to proceed pro- se. Although the primary purpose of the hearing was to determine Austin’s ability to represent himself, the trial court addressed the question of Austin’s competency to stand trial and waive counsel in making that determination.

The transcript of the hearing also, reflects that-the state trial court was evaluating whether Austin was competent to stand trial. In finding Austin competent to stand trial and to waive trial counsel, the state trial court relied on its own interactions with Austin, his written letters to’the court, his demeanor in court proceedings, and his responses to the trial court’s' questions. The trial court also relied on the professional opinion of Dr. Brown, who conducted a competency evaluation of Austin prior to the first Far- etta hearing.

Finally, the trial court relied on the opinion of Austin’s counsel as to Austin’s competency. We conclude that the state court’s competency determination is well supported by the record. Although Austin presents evidence of mental illness in his federal habeas petition, he has not demonstrated by clear and convincing evidence that he 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 clearly demonstrated an understanding of the charges against him and the possible consequences, as well as an ability to make strategic choices and to communicate clearly to the state trial court.

As Austin’s own expert explained, “Austin certainly understood the factual issues of his trial” and “[h]e knew what he was being charged with.” The evidence Austin presents is insufficient to overcome the indicators of competence noted and relied upon by the state trial court. Austin argues that his decision to waive counsel and plead guilty to capital murder 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.

This circuit has recognized that a defendant’s deliberate use of the system to obtain the death penalty is evidence of rationality, not incompetence. Again, we presume the state trial court’s determination regarding Austin’s competency is correct; Austin has not overcome that' presumption by clear and convincing evidence.

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 relating to the state trial court’s determination of competency. “Under Pate v.

Robinson, a.trial court must hold a competency hearing when there is evidence before the court that objectively creates a bona fide question as to whether the defendant is competent to stand trial.” “In determining whether there is a ‘bona fide doubt’ as to the defendant’s competence, [a] court considers: (1) any history of irrational behavior, (2) the defendant’s demeanor at trial, and (3) any prior medical opinion on competency.” “If the trial court received evidence, viewed objectively, that should have raised a reasonable doubt as to competency, yet failed to make further inquiry, the defendant has been denied a fair trial.” Austin asserts that the state trial court’s failure to hold a standalone pretrial competency hearing denied him a fair trial.

He also contends that regardless of whether the state trial court’s initial pretrial finding of. competency was proper, the information about his mental health history presented at trial should have alerted the state trial court then- to the possibility that Austin was not competent—in other words, the information created a bona fide doubt as to Austin’s competency such that an additional hearing was necessary.

Because we conclude that Austin has failed to demonstrate by clear and convincing evidence that he was not competent to stand trial, waive counsel, or plead guilty, we 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.

We presume that this factual finding is correct under § 2254(e)(1) and, as noted above, Austin has failed to overcome that presumption by clear and convincing evidence. If we were to consider, in the alternative, the competency determination as a mixed question of law and fact subject to de novo, review, rather than a purely factual finding, Austin has still failed to demonstrate he was not competent. We therefore conclude that this procedural claim is without merit..

Nor is Austin entitled to relief based on his claim that the state trial court failed to inquire about Austin’s competency adequately after hearing 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.

None of the evidence presented during Austin’s capital murder trial undermines confidence in the state trial court’s well-supported pretrial finding of competence, a finding based on Austin’s demeanor, Dr. Brown’s evaluation, the opinion of Austin’s counsel, and the court’s interactions with Austin, including correspondence from Austin indicating an ability to reason logically and strategically.

As noted above, “[m]ental illness and incompetence ... are not necessarily coexistent conditions.” The state trial court’s failure to conduct an additional hearing as to Austin’s competency does not warrant ha-beas relief. C Competence to plead guilty or to waive the right to counsel is measured by thé same standard as competence to stand trial.

Nonetheless, “[a] finding that a defendant is competent to stand trial ... is not all that is necessary before he may be permitted to plead guilty or waive his right to counsel.”A trial court must also “satisfy itself that the [defendant’s] waiver of his constitutional rights is knowing and voluntary.” Before granting a defendant’s clear and unequivocal request to proceed pro se, the trial judge “must caution the defendant about the dangers of such a course of action so that the record ■will establish that ‘he knows what he is doing and his choice is made with eyes open,”’ To be voluntary, a plea must “not be the product of ‘actual or threatened physical harm, or .,, mental coercion overbearing the will of the defendant.’” A defendant pleading, guilty must also be competent, have notice of the charges against him, understand the consequences of his plea, and have available the advice of competent counsel.

To the extent Austin’s claim involves subsidiary factual determinations .made by the state trial court, .we apply § 2254(e)(l)’s presumption of correctness, which Austin must rebut by clear and convincing evidence. We review de novo questions of law and mixed questions of law and fact. 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.

The court informed Austin of his right to. court-appointed counsel and explained the risks and disadvantages to proceeding pro se.?9 The court also, inquired .whether Austin’s waiver of counsel was made voluntarily, intelligently, and knowingly. During this exchange, Austin explained that he wanted to proceed pro se so that he would be able to make his own decisions about trial strategy.

A defendant has .a “right to conduct his own defense,” even though exercising that right “usually increases the likelihood of a trial outcome unfavorable to the defendant.” The right to self-representar tion “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.” Although Austin may not have been trying to “protect his own liberty,” he clearly expressed to the state trial- court his wish to make his own-decisions about trial strategy.

An improper denial of Austin’s right to self-representation by the state trial court would have amounted to structural error requiring reversal. Before accepting Austin’s guilty plea, the state trial court again confirmed that Austin understood the charges against him and the possible punishment. It also admonished Austin that he had a right to a jury trial and asked Austin a series of questions to determine if his plea was voluntary. The court asked Austin if he was of sound mind. It explained the consequences of pleading guilty.

The court specifically found, based on its prior evaluation of Austin’s competency to stand trial at the first Faretta hearing as well as prior conversations with Austin, that Austin was “mentally competent to enter [a] plea of guilty” and that he was “doing so freely and voluntarily with full knowledge of the consequences.” 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.

In light of our conclusion that the trial court’s finding of competency was well-supported and correct even if reviewed de novo as a mixed question of law and fact, the evidence of depression or other mental illness does not render an otherwise effective waiver involuntary. Similarly, Austin has- failed to demonstrate that the conditions of his confinement rendered his decisions involuntary or undermined his otherwise effective waiver.

Further, Austin’s letter to the trial court approximately a month before the start of trial reflected he was no longer dissatisfied with the conditions of his confinement and no longer suffering from any depression. Even with the complained-of conditions removed, Austin indicated, consistent with his prior statements to the court, that he would not contest the charges against him. 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.

Our independent review confirms that Austin’s plea and waiver of counsel were not the product of state coercion or otherwise rendered involuntary. V Austin contends that his appointed trial counsel for the seven-month period before he was allowed to proceed pro se was ineffective for failing to undertake significant discovery or investigation into Austin’s competency, and for failing to ask Austin more questions at the Faretta hearing (Issue 13).

The 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 “has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” In the context of mental health investigation, “[t]rial counsel provides deficient performance if he fails to investigate a defendant’s medical history when he has reason to believe that the defendant suffers from mental health problems.” Trial counsel in this case testified that he never doubted his client’s competence, and, though Austin points to the lack of investigation performed, he does not allege any facts that would have alerted counsel to the need to investigate Austin’s competency.

As we have stated before, suicidality and depression are not necessarily indications of incompetence. Additionally, a mental health evaluation was conducted prior to the Faretta hearing, which determined Austin to be competent. Even if Austin had shown counsel’s failure to investigate to be deficient performance under Strickland, Austin has wholly failed to support his allegation that counsel’s performance prejudiced his defense.

Strickland requires Austin to show a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Austin is correct that he need only show “a probability sufficient to undermine confidence in the outcome.” However, he has failed to do so. His briefing claims that had the district court correctly applied this standard, he would be entitled to relief.

We agree with the district court that the evidence presented both to the state trial court and in post-conviction proceedings strongly supports the state trial court’s determination that 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. The court-ordered independent evaluation further supports the state trial court’s conclusion that Austin was, in fact, competent to represent himself at trial.

Finally, though Austin details various psychiatric treatments, interactions with mental health professionals, and the opinions of experts hired post-conviction, nothing suggests he suffered any impairment that would bear on his competency to stand trial, Even if the affidavits Austin submitted from medical professionals may be considered on federal habeas review since they were not presented to the state courts, an issue we preter-mit because we are denying relief on the merits with respect to this issue, this evidence does not alter our conclusion.

Based on our-review of the record, Austin’s assertion that a more thorough investigation would have cast the competency proceedings ’in' such a different light as to undermine confidence in their outcome'is unpersuasive. VI Austin contends that he did not receive a fair trial because five jurors gave false or misleading answers during voir dire, indicating that they could consider mitigating evidence and vote for a life sentence when in fact, they were pre-disposed to imposing the death penalty (Issue 19). He relies on statements from those jurors obtained during the post-conviction investigation.

A “A juror is biased if his ‘views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.’ ” Austin relies upon McDonough Power Equipment, Inc. v. Greenwood, in which the Supreme Court observed that “[o]ne touchstone of a fair trial is an impartial trier of fact—‘a jury capable and willing to decide the case' solely on the evidence before it’.’” The McDonough Power Equipment case concerned a direct appeal in a civil, personal injury suit in which the jury found in favor of the defendant.

The losing plaintiff contended that a new trial was required because a juror failed to disclose during voir dire that his son had sustained a broken leg as a result of the explosion of a truck tire.

The Supreme Court reasoned that “[t]o invalidate the result of a three-week trial because of a juror’s mistaken, though honest response to a question, is to insist orí something closer to perfection than our judicial system can be expected to give.” The Court then said, “[w]e hold that to obtain a new trial in such a situation, a party must first.demonstrate that a juror failed to answer honestly a material question on voir dire, and then further show that a correct response would have provided a valid basis for a challenge for cause.” The Fifth, Circuit has assumed, without deciding, “that a McDonough theory of juror bias would be sufficient to obtain federal habeas relief,” and we will do the same in the present case.

It is well-settled that, a juror who will automatically vote for the death penalty is challengeable for cause. Austin, contends that none of the jurors indicated during voir, dire that he ■ or she -would automatically vote for the death penalty or refuse to consider mitigating evidence and therefore that there was no reason to challenge any juror for cause. Austin asserts that his entitlement to habeas relief can be determined from the transcript of voir dire when compared to post-trial statements from five jurors made approximately two years after trial.

Austin does not contend that the trial court erred in failing to hold an evidentiary hearing. We will therefore consider only the voir dire, transcript and the post-trial statements. 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.

The federal district court did not consider whether Austin’s evidence supported a claim of “actual prejudice,” nor whether Austin was required to rebut, or had rebutted, by clear and convincing evidence, any implied finding by the state trial court that the jurors were unbiased.

Nor did the district court consider whether the jurors’ allégedly misleading answers were due to inadequate questioning on voir dire; or were a deliberate attempt to mislead the court: 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. - 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. PROSECUTION: ... Okay. Can you consider, then, in your mind that [the first special issue], depending on the evidence, could be answered either yes or no? GIBBS: Yes. PROSECUTION: Can you consider that in Issue No. 2 that it could be answered in a yes or no fashion? GIBBS: Yes. PROSECUTION: ...

Do you feel that you can participate in that—the deliberations, deliberating with the jury and assess the death penalty if the law and the evidence supports it? GIBBS: Yes. PROSECUTION: ... are you saying that if you know that the defendant is representing himself and you know that he has a death wish, if the law and the evidence supports assessing the death penalty, are you saying you still could not assess the death penalty?

THE COURT: In other words, if the evidence called for answering those questions in such a way 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. 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.

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.

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.” The Court rejected the argument that the inquiry under McDonough “begins and ends with what happened during voir dire,” and therefore that Rule 606(

b) should be inapplicable. The Court reasoned that “[w]hether or not a juror’s alleged misconduct during voir dire had a direct effect on the jury’s verdict, the motion for a new trial requires a court to determine whether the verdict can stand.” The Court further explained: [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. 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.” In denying relief, the court explained that “[t]he notion that egregious juror conduct will not necessarily result in relief from the verdict may seem antithetical to our system of due process.” But the Ninth Circuit discerned that “[t]he Rule ... exists for good reason—it protects jurors from harassment and maintains the integrity and finality of jury verdicts.” The court observed, “[w]hile persistent inquiry into internal jury processes could ‘in some instances lead to the invalidation of verdicts reached after irresponsible or improper juror behavior,’ our very system of trial by jury might not ‘survive such efforts to perfect it.* ” 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.” The Court reasoned in Pena-Rodriguez v.

Colorado that “[a]ll forms of iihproper bias pose challenges to the trial process. But there is a sound basis to treat racial bias with added precaution.” The Court concluded that “[a] constitutional rule that racial bias in the justice system must be addressed-—including, in some instances, after. the verdict has been entered—is necessary to prevent a systemic loss of confidence in jury verdicts, a confidence that is a central premise pf the Sixth Amendment trial right” .

There is no suggestion or indication of racial animus, or bias in the present case, and the Supreme Court has not recognized an exception to Rule 606(

b) that would apply to the post-trial, statements at issue here. In our 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. 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, which we also cited in a footnote in our opinion and order granting a COA on Austin’s jury bias claim, involved unusual circumstances and does not support Austin’s contention that the post-trial statements at issue are admissible to impeach the jury’s verdict and require a new trial.

In Hatten, questions as to whether a juror had been truthful during voir dire and was biased were raised in the midst of trial, before the case was submitted to the jury. The juror in question testified during a hearing that was held to ascertain whether he had lied on his juror questionnaire about whether he had a “drug problem,” among other issues.

Though this court discussed the juror’s post-trial affidavit, in which he stated that that “he did, in fact, have a drug problem at the time of the trial and that his drug use affected his judgment,” we concluded that his response to the jury questionnaire had been ambiguous.

Importantly to the issue now before us, we concluded that even if the affidavit called into question the juror’s truthfulness in responding to the question-name, the juror had actually testified at the hearing during trial about his questionnaire response, the district court had concluded that the juror’s post-trial affidavit should not be credited over that testimony, and we found no basis for overturning the district court’s factual finding in this regard. The salient point is that in Hatten, there was no actual holding by this court that a post-trial affidavit could or did impeach a verdict.

Only an implication can be drawn from 'Hatten that if a post-trial affidavit demonstrated a juror’s bias, the affidavit could be used to impeach the verdict and a new trial would be necessary. An implication is not a holding. In any event, to the extent that it could be argued that Hatten contained such a hoíding, Hat-ten is inconsistent with the Supreme Court’s subsequent decision in Warger and the Supreme Court’s explication of Warger and Tanner in Pena-Rodriguez. 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.” The second special issue was “[d]o you find from the evidence, taking into consideration all of the evidence, including the circumstances of the offense, the defendant’s character and background, and the personal moral culpability of the defendant, Perry Allen Austin, that there is a sufficient mitigating circumstance or circumstances to warrant that a life imprisonment rather than a death sentence be imposed.” 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. 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 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. 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. 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. 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. ■ PROSECUTION: ...

Could you participate in the jury deliberations and assessing the death penalty .if the evidence and the law directs you to? CONDON: Yes. PROSECUTION: Okay. Do you understand—can you perceive that [the second special] issue could be answered either yes or no as well? CONDON: Yes. PROSECUTION:. Let’s say you were king of the world. If you were the king, would your kingdom have a death penalty? CONDON: Yes. PROSECUTION: And why? CONDON: I just feel that certain crimes deserve the ultimate punishment, I guess.

In his post-conviction statement, Condon made the following assertions: For me, if somebody is not insane and kills somebody, especially a child, the only appropriate penalty is the' death penalty. Other than showing that it was an accident or the person was insane I do not think that any other considerations are relevant. If you are found guilty of capital murder you should get the death penalty. When I was asked at the time the jury was selected whether I could consider voting for life I said yes and I was thinking about a situation where someone was insane and did not know what they were doing.

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. PROSECUTION: ... Tell us first in your own words, what are your feelings on the death penalty? GIBBS: I am for it and—I’m for it.

I think it’s necessary for a crime deterrent, and that’s about it. ' PROSECUTION:. ... Okay. Can you consider, then, in your mind that [the first special issue], depending on the evidence, could be answered either yes or no? GIBBS: Yes. PROSECUTION: Can you consider that in Issue No. 2 that it could be answered in a yes or no fashion? GIBBS: Yes. PROSECUTION: ... Do you feel that you can participate in that—the deliberations, deliberating with the jury and assess the death penalty if the law and the evidence supports it? GIBBS: Yes.

PROSECUTION: ... are you saying that if you know that the defendant is representing himself and you know that he has a death wish, if the law and the evidence supports assessing the death penalty, are you saying you still could not assess the death penalty? THE COURT: In other words, if the evidence called for answering those questions in such a way 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. 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

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