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United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
No. 21-70008 Fifth Circuit
____________ FILED
June 19, 2023
Travis James Mullis, Lyle W. Cayce
Clerk
Petitioner—Appellant,
versus
Bobby Lumpkin, Director,
Texas Department of Criminal Justice, Correctional Institutions Division,
Respondent—Appellee.
______________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 3:13-CV-121
______________________________
Before Smith, Higginson, and Willett, Circuit Judges.
Jerry E. Smith, Circuit Judge:
We granted Travis Mullis a partial certificate of appealability
(“COA”) after the district court dismissed his federal habeas corpus
petition under the Antiterrorism and Effective Death Penalty Act
(“AEDPA”).
In his state habeas proceedings, Mullis procedurally defaulted on his
claim of ineffective assistance of trial counsel. He contends that the default
stemmed from ineffective assistance of state habeas counsel and should therefore be excused. Because Mullis has not shown that habeas counsel was inef-
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No. 21-70008
fective, he has not shown cause for the default. We therefore affirm the
dismissal.
I.
We recited the relevant factual and procedural history in our opinion
granting Mullis a partial COA. See Mullis v. Lumpkin, 47 F.4th 380, 383–87
(5th Cir. 2022). In summary, Mullis was sentenced to death for capital murder. After his conviction, and all the way through his federal habeas litigation,
Mullis has flip-flopped time and time again about whether to waive his right
to challenge his conviction and sentence—both directly and collaterally—
and his desire to pursue those challenges pro se.
The volte-face at issue was Mullis’s attempt to waive state collateral
review and to act pro se in any future decisions regarding the filing of a habeas
petition. Mullis was purportedly represented in his state habeas proceedings
by attorneys in the Office of Capital Writs (“OCW”), including Brad Levenson. Although Mullis’s habeas attorneys objected to his decision to waive
collateral review, they did not object to a report by a psychiatrist, Dr. Victor
Scarano, finding that Mullis was mentally competent to make it. The state
court allowed Mullis “to act pro se regarding any decisions concerning waiver
and/or filing a post-conviction writ of habeas corpus,” although the court
also allowed the OCW to “continue to investigate and prosecute” a writ subject to Mullis’s consent (which he was withholding at the time).
Ultimately, Mullis did not timely file a state habeas petition. After his
prospects in state court ended, he filed a habeas petition in federal district
court, which dismissed, finding that he had procedurally defaulted on his
claims. It also denied him a COA.
We in turn granted Mullis a COA in part, limited to the following
questions: (1) Did Mullis’s state habeas counsel render inadequate assistance
by conceding that Mullis was competent to waive review? (2) Can the court
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reach that conclusion based on evidence consistent with Shinn v. Martinez
Ramirez (Ramirez), 142 S. Ct. 1718 (2022)? (3) If Mullis’s state habeas counsel rendered inadequate assistance, was the inadequate assistance a cause
external to Mullis?
II.
We review the district court’s factual findings for clear error and its
legal conclusions de novo. See Sanchez v. Davis, 936 F.3d 300, 304 (5th Cir.
2019) (citing Dorsey v. Stephens,
720 F.3d 309, 314 (5th Cir. 2013)). Ineffective-assistance-of-counsel claims are mixed questions of law and fact.
Strickland v. Washington,
466 U.S. 668, 698 (1984) (citing Cuyler v. Sullivan,
446 U.S. 335, 342 (1980)). Additionally, we “may affirm on any ground supported by the record.” Sanchez,
936 F.3d at 304 (quoting Dorsey,
720 F.3d
at 314).
III.
Mullis contends that his procedural default is excusable because the
OCW failed fully to investigate his mental health despite having concerns
about it. Had it done so, claims Mullis, there was a reasonable probability
that the state court would not have found Mullis competent to waive habeas
review and to proceed pro se. Thus, habeas counsel was ineffective. Mullis
also asserts that any relevant ineffectiveness is a cause “external” to him, a
necessary requirement for excusing procedural default.
We disagree. But before we reach the merits of Mullis’s claims, we
must answer a threshold question: what evidence we may consider.
A.
Mullis and the state disagree about what evidence we are permitted to
review. Mullis maintains that he is able to expand the record beyond the one
developed in state court. He wants to introduce evidence from his so-called
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“Martinez hearing” in district court, which is a hearing set to determine
whether there was ineffective assistance of state habeas counsel—an excuse
for procedural default under Martinez v. Ryan, 566 U.S. 1, 17 (2012). The
state counters that the relevant record comprises only the state trial and
waiver records that satisfied the state’s procedural requirements.
Given our precedent, Mullis is correct. Under AEDPA, federal district courts in habeas cases may not hold evidentiary hearings “[i]f the applicant has failed to develop the factual basis” of the “claim in [s]tate court proceedings.” 28 U.S.C. § 2254(e)(2).1 This case turns on what the term
“claim” refers to. Does it refer to any claim made in the habeas context
(including excuses for procedural default), or does it refer only to the underlying merits claim?
Rephrasing the question, does § 2254(e)(2) bar us from considering
evidence that is outside of the state record when we are adjudicating a Martinez claim?
Although the parties focus on recent Supreme Court decisions, we
must take a step back and consider the state of our circuit’s law. Historically,
this circuit has construed “claim” in the narrower sense. We have therefore
declined to apply AEDPA’s evidentiary bar to showings that a procedural
default is excused. In Segundo v. Davis, 831 F.3d 345, 351 (5th Cir. 2016), for
example, we held that evidentiary hearings on Martinez claims are permitted
but not required. We therefore allowed the district court to consider an affidavit “presented for the first time in federal court” when determining
whether the defendant’s procedural default was excused.
Id. at 350. In other
cases, we have come to the same conclusion: Evidence outside the state
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1
Subject to two exceptions not relevant here. See 28 U.S.C. § 2254(e)(2)(A).
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record may be considered when assessing a Martinez claim.2
We now turn to whether recent Supreme Court jurisprudence has
abrogated that caselaw. In Ramirez, the Court held that Martinez does not
permit federal courts “to dispense with § 2254(e)(2)’s narrow limits because
a prisoner’s state postconviction counsel negligently failed to develop the
state-court record.” 142 S. Ct. at 1728. But at issue in Ramirez was the use
of evidence developed in a Martinez hearing to assess the defendant’s
underlying merits claim of ineffective assistance of trial counsel. Id. at 1729–
30. Shinn did not reach—and indeed expressly reserved—resolution of the
current situation: the use of evidence outside the state record in the Martinez
context to establish cause and prejudice. See id. at 1738 (noting that while
there are “good reasons to doubt” the proposition that Martinez hearings are
not “hearing[s] on the claim” for § 2254(e)(2) purposes, there was no need
for the Court to address it).3
One month later, the Court handed down Shoop v. Twyford, 142 S. Ct.
2037 (2022), which reaffirmed Ramirez. Twyford involved the transportation
of the defendant to a hospital for medical testing, evidence that the defendant
asserted would be helpful in obtaining habeas relief.
Id. at 2041. He
“asserted in passing that the desired evidence could ‘plausibly’ bear on the
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2
See Charles v. Stephens, 736 F.3d 380, 387 n.3 (5th Cir. 2013) (per curiam) (“Charles does not claim that his state habeas counsel was ineffective and, therefore, cannot rely
on . . . Trevino v. Thaler, [
569 U.S. 413] (2013), [affirming Martinez,] to argue that . . . [the]
presentation of new evidence in federal court [is not barred].”); Shore v. Davis,
845 F.3d
627, 633 (5th Cir. 2017) (per curiam) (“Because Shore cannot effectively invoke Trevino
and Martinez, . . . the new evidence on which Shore seeks to rely is not properly before this
court.”).
3
In dictum, the Court has signaled that Martinez hearings fall within § 2254(e)(2)’s
ambit. See Ramirez, 142 S. Ct. 1738–39. Though we acknowledge the importance of dicta
in Supreme Court opinions, see United States v. Becton, 632 F.2d 1294, 1296 n.3 (5th Cir.
1980), our rule of orderliness still governs, as discussed infra.
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question whether to excuse procedural default.” Id. at 2046. His argument,
however, was lacking in detail and failed to specify which defaulted claims he
intended to bring. In holding that the district court erred in ordering the
transportation because the defendant failed to show that any resulting evidence was admissible, the Court noted the following: “And in any event, this
Court has already held that, if § 2254(e)(2) applies and the prisoner cannot
meet the statute’s standards for admitting new merits evidence, it serves no
purpose to develop such evidence just to assess cause and prejudice.” Id.
(citing Ramirez, 142 S. Ct. at 1738).
That language reflects Ramirez’s suspicion of admitting evidence outside the state record to determine whether procedural default is excused.4 It
is, however, seemingly dictum.
More importantly, the Court’s observation is directed at a different
set of facts, where the defendant made no specific claims at all about how the
proposed evidence would support his claim for habeas relief generally, and
where the district court likewise failed to explain how the evidence would
help the defendant’s cause, given the application of § 2254(e)(2)’s evidentiary bar to his merits claim. See Twyford, 142 S. Ct. at 2045–46. In other
words, the defendant’s assertion that the testing would probe his Martinez
claim appears to have been little more than a Hail Mary pass in his attempt
to get the evidence admitted on his merits claim. Here, by contrast, the
evidence Mullis seeks to admit undeniably pertains to his Martinez claim and
would be used in that context alone.
Although the Supreme Court may, some day, extend AEDPA’s evi-
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4
See Ramirez, 142 S. Ct. at 1738 (“While we agree that any such Martinez hearing
would serve no purpose, that is a reason to dispense with Martinez hearings altogether, not
to set § 2254(e)(2) aside.”).
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dentiary restrictions to the Martinez context (or, as it has suggested, dispense
with Martinez hearings altogether), we may not violate our rule of orderliness
to do so. See United States v. Traxler, 764 F.3d 486, 489 (5th Cir. 2014). In
the absence of any on-point intervening law, whether in a statute or in a
Supreme Court opinion, we must follow our narrow construction of “claim”
in § 2254(e)(2). Accordingly, evidence outside the state record is admissible
in Martinez claims for the limited purpose of establishing an excuse for procedural default, even in the wake of Ramirez and Twyford.5
B.
We now address the merits of Mullis’s claims and conclude that he
has not demonstrated cause that would excuse his procedural default. We
therefore need not reach the questions of prejudice or externality.
Procedural default “prevents federal habeas corpus review of the
defaulted claim, unless the petitioner can demonstrate cause and prejudice
for the default.” Gray v. Netherland, 518 U.S. 152, 162 (1996) (collecting
cases). Cause exists where “some objective factor external to the defense”
impeded a petitioner’s efforts to comply with the relevant state procedural
rule. Coleman v. Thompson,
501 U.S. 722, 753 (1991) (quoting Murray v.
Carrier,
477 U.S. 478, 488 (1986)).
One such factor is ineffective assistance of habeas counsel, at least in
states—such as Texas—that functionally require ineffective-assistance-of-
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5
We acknowledge the circuit split on the question. Compare Williams v. Superintendent Mahanoy SCI, 45 F.4th 713, 723 (3d Cir. 2022) (holding that Ramirez did not
abrogate the circuit’s holding that AEDPA does not forbid factual development regarding
excusing procedural default), with Stokes v. Stirling,
64 F.4th 131, 136 (4th Cir. 2023)
(concluding that Ramirez prohibits the introduction of new evidence in support of Martinez
claims). Our rule of orderliness precludes our taking sides in the split, absent en banc
reconsideration.
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trial-counsel claims to be brought in initial-review collateral proceedings.
See Martinez, 566 U.S. at 9–12; Trevino v. Thaler, 569 U.S. 413, 417 (2013).
In the relevant context, “the proper standard for attorney performance is that
of reasonably effective assistance.” Washington,
466 U.S. at 687 (citing
Trapnell v. United States,
725 F.2d 149, 151–52 (2d Cir. 1983)). That standard
is objective and tethered to “prevailing professional norms.” See id. at 688.
Mullis’s claims that his habeas attorneys were ineffective center on
the state habeas court’s determination that he was competent to waive state
habeas review and habeas representation. In particular, Mullis contends that
his counsel did not adequately investigate his mental health.
Mullis posits several deficiencies. The first is that although his habeas
attorneys requested that Mullis be evaluated by a court-appointed mental-health expert, they failed to provide the expert with relevant mental-health
records, trial transcripts, and other information that Mullis says were
“critical” to the evaluation. The second is that habeas counsel failed to
object to the report or challenge Mullis’s waiver at the waiver hearing—the
result of an “unethical promise” not to challenge Mullis’s competence if an
independent expert found him competent. We are persuaded by neither.
Texas law allows inmates to waive state habeas review. Ex parte Reynoso, 228 S.W.3d 163, 165 (Tex. Crim. App. 2007) (per curiam). It also
permits them to waive habeas representation, provided that the waiver is
“intelligent and voluntary.”6
The Fifth Circuit has described the inquiry for postconviction compe-
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6
Tex. Code Crim. Proc. Ann. art. 11.071 § 2(a); see also Ex Parte Gallo,
448 S.W.3d 1, 5 n.23 (Tex. Crim. App. 2014). The competency inquiry differs from the
knowing-and-voluntary inquiry. Mullis,
47 F.4th at 390 & n.21 (citing Godinez v. Moran,
509 U.S. 389, 401 n.12 (1993)). Given Mullis’s arguments, however, the distinction is
irrelevant here. See
id.
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tency as follows: First, does the individual suffer from a mental disease,
disorder, or defect? Second, if so, does that condition prevent him from
understanding his legal position and the options available to him? Third, if
not, does that condition nevertheless prevent him from making a rational
choice among his options? Mata v. Johnson, 210 F.3d 324, 328 (5th Cir. 2000)
(citing Rumbaugh v. Procunier,
753 F.2d 395, 398 (5th Cir. 1985)).
Considering the totality of the circumstances, Mullis’s habeas counsel
provided reasonably effective assistance. Leading up to the waiver hearing,
Mullis maintained that he wanted to waive habeas review and dismiss his
attorneys. His habeas attorneys were therefore caught between their duty to
investigate Mullis’s mental health, see Profitt v. Waldron, 831 F.2d 1245,
1248–49 (5th Cir. 1987), and their obligation to follow their client’s desire to
waive, cf. McCoy v. Louisiana,
138 S. Ct. 1500, 1508 (2018).
Accordingly, Mullis’s habeas attorneys agreed that if an expert found
Mullis competent, they would not challenge his waiver. To that end, they
requested that the court order a mental-health evaluation. The court
appointed Dr. Scarano. As part of his evaluation, Scarano considered various
sources, including prison medical records, court transcripts (albeit not of the
trial), and a video interview of Mullis conducted by a reporter. As part of the
evaluation, Scarano interviewed Mullis and performed seven forensic psychiatric tests. He also considered Mullis’s descriptions of his mental-health
history, including his diagnosis of bipolar disorder, his suicidality as an adolescent, his past drug abuse, and his childhood sexual abuse. Scarano then
explained, in a twenty-page report, his finding that Mullis was competent to
waive his right to habeas review.
It is certainly true that habeas counsel could have provided more material to Scarano. Levenson did state that he spoke with Scarano before the
evaluation and told him what the trial experts had said about Mullis’s mental-
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health history and about Mullis’s fear of being raped if put into general
population. But he could have provided more medical files and notes (to
which he had access) prepared by mental-health experts who testified at
Mullis’s trial. And although the trial had not yet been transcribed, Levenson
could have tried to postpone the waiver hearing until after the transcript was
produced.
More concerningly, the habeas attorneys were surprised by the fact
that, despite Mullis’s mental-health history and diagnoses, Scarano did not
diagnose him with any Axis I (mental-health and substance-abuse disorders)
or Axis II (personality disorders and mental retardation) conditions. Scarano
did, however, find that Mullis had “Features of Borderline Personality Disorder,” an Axis II disorder. But the attorneys did not sit idle: Levenson called
Scarano to discuss the “discrepancies,” whereupon Scarano informed Levenson that “his findings were based upon his current observations” of Mullis
at the time.
Given the context, the habeas attorneys were reasonable in not challenging Scarano’s conclusions. Segundo, 831 F.3d at 352. It is true that the
opinion of a court-appointed psychiatrist does not always exonerate counsel
of any duty to investigate further. Profitt,
831 F.2d at 1249. But considering
all the circumstances, see Washington,
466 U.S. at 691, Mullis’s habeas attorneys did not have a duty to investigate more than they did. Worried about
Mullis’s competency, they sought a mental-health evaluation. And although
they did not provide Scarano with every medical or other relevant record
possible, Scarano was aware—both through Levenson and Mullis himself—
of the contours of Mullis’s diagnoses and mental-health history.7
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7
Cf. Roberts v. Dretke, 381 F.3d 491, 499 (5th Cir. 2004) (“There is no doubt that
[defense counsel] neither collected [the defendant’s] medical records nor did he contact
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In brief, the evaluation ultimately concluded that Mullis was competent. Counsel followed up with Scarano with questions about his findings.
That was enough.8
Mullis’s contrary assertions are unavailing. He points, for example,
to Profitt, 831 F.2d at 1249, where we held that trial counsel had a duty to
investigate further the defendant’s mental health even though a court-appointed doctor found that he was competent to stand trial. The report,
however, was provided to counsel on the very day of the competency hearing
and the day before the trial, hardly allowing counsel much time to review it
thoroughly. Counsel was also on constructive notice that Profitt had been
adjudicated insane a mere eight months before his trial.
Id.
Here, by contrast, Mullis’s habeas counsel had the opportunity to
consider Scarano’s report and to follow up with him about the results. And
there was no similar adjudication of incompetence. To the contrary, Mullis
endured his entire trial without being found legally incompetent by the court
and, by the time of his habeas waiver, had already been found competent to
waive his direct appeal—with the same judge presiding throughout.
Moreover, the court-appointed expert in Profitt also concluded that
Profitt was sane at the time of his offense. On that basis, trial counsel decided
not to plead an insanity defense—the only defense that counsel had intended
to present. 831 F.2d at 1247. We noted that where there is “no advantage in
the decision to bypass the insanity defense,” a decision to abandon it
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[his] treating physicians regarding [his] suicide ideation or his subsequent treatment for
related depression . . . . However, it is clear from Dr. Arambula’s report that the doctor
was well aware of the fact that Roberts had previously had suicidal thoughts.”).
8
Several of Mullis’s mental-health conditions, including “suicidality and depression[,] are not necessarily indications of incompetence.” Austin v. Davis, 876 F.3d 757, 785
(5th Cir. 2017).
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(especially based on faulty information) was not a “tactical” decision. Id.
at 1249.
But Mullis’s case is not in a trial posture, and the failure of Mullis’s
counsel to challenge his competence to waive habeas review is not analogous
to a strategic or tactical choice regarding trial defenses. It was merely acquiescence to Mullis’s wishes in light of a court-appointed expert’s finding that
Mullis was competent—wishes that are permissible given that defendants
need not pursue habeas relief at all. In sum, Profitt is easily distinguishable.
Mullis’s reliance on Bouchillon v. Collins, 907 F.2d 589 (5th Cir. 1990),
is likewise misplaced. Bouchillon pleaded guilty of robbery but later petitioned for habeas corpus, claiming that he was both insane at the time of the
offense and incompetent at the time of his plea.
Id. at 590–91. As in Profitt,
the only available defense appeared to be insanity. And although Bouchillon’s trial counsel was aware of his history in mental institutions, counsel
failed to investigate his mental health at all, not even seeking a psychiatric
evaluation.
Id. at 597. “To do no investigation at all on an issue that not only
implicates the accused’s only defense, but also his present competency, is
not a tactical decision.”
Id.
Mullis’s counsel, in stark contrast, did investigate by requesting a
medical evaluation. And, again, his attorneys were not mounting a defense
at trial but instead were determining whether they could acquiesce to Mullis’s desire to waive habeas relief and dismiss them. Bouchillon is distinguishable for largely the same reasons Profitt is. Cf. Green v. Johnson,
116 F.3d 1115, 1123 (5th Cir. 1997) (distinguishing both Profitt and Bouchillon
for similar reasons).
In conclusion, Mullis’s habeas attorneys provided reasonably effective representation, even if their efforts were sometimes imperfect. The
investigation into Mullis’s competence was adequate, given the available
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facts. Theriot v. Whitley, 18 F.3d 311, 313 (5th Cir. 1994). And considering
the procedural history and Scarano’s findings, habeas counsel reasonably
decided not to challenge Scarano’s conclusion that Mullis was competent to
waive his right to review.
The dismissal of Mullis’s habeas petition is AFFIRMED.
