Two men are collected on this page because each left a single published federal appeals opinion. Anthony Allen Shore was convicted in Harris County, Texas, of the capital murder of Maria del Carmen Estrada, twenty-one, whom he confessed to offering a ride, attacking with a pair of shears and strangling. At trial his own lawyers told the jury that he had asked them, against their advice, to request a death sentence. On January 6, 2017, the Fifth Circuit refused to let him appeal the denial of his habeas petition, rejecting his claims that his lawyers had failed to investigate and present evidence of brain damage and that the injury made his execution unconstitutional. He was executed on January 18, 2018.
Joseph Edward Duncan III went, in the early hours of May 16, 2005, to a secluded house near Coeur d’Alene, Idaho, intending to take two of the children who lived there. He bound the family, beat their mother, her boyfriend and her thirteen-year-old son with a hammer, and drove the two youngest children, a boy of nine and a girl of eight, to a campsite in the Lolo National Forest in Montana, where he held them for almost seven weeks. He sexually abused both children and killed the boy. He pleaded guilty in federal court, represented himself at the penalty hearing, and was sentenced to death.
The Ninth Circuit’s opinion of July 11, 2011, is about whether he was competent to do that. Duncan told the district court he did not want to appeal, and the court accepted his waiver, but his standby lawyers appealed the competency rulings anyway. The Ninth Circuit held that the evidence had created a reasonable doubt about his competence to represent himself, that the trial court should have held a full hearing before deciding, and sent the case back for a retrospective competency hearing.
Neither opinion retries the facts. The Shore opinion summarizes them from the district court’s ruling and his confession, and its other killings appear only in the background of the case; the Duncan opinion takes no view on whether he was actually competent, only on whether the court should have held a hearing to find out. What happened at that hearing and afterward is outside this record, and so are Duncan’s convictions in other courts.
Both are public records of the federal courts of appeals. Maria del Carmen Estrada keeps her name. The Ninth Circuit itself identified the Idaho victims only by first names and initials, and we have kept its practice; the family’s full names are widely published, but we have not added them to the court’s text. The lawyers and judges are named as the courts named them.
The Caselaw Access Project text of the Federal Reporter is printed complete, in date order, so the 2011 Duncan opinion comes first. We closed words the printer had split across lines only where the joined form appears elsewhere in the text, and nothing has been spell-checked.
UNITED STATES of America, Plaintiff-Appellee, v. Joseph Edward DUNCAN, III, Defendant-Appellant.
No. 08-99031.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Jan. 12, 2011.
Filed July 11, 2011.
Joseph Schlesinger, Assistant Federal Defender, Sacramento, CA, Mark E. Olive, Law Office of Mark E. Olive, P.A., Tallahassee, FL, for the defendant-appellant.
Wendy J. Olson and Syrena C. Hargrove, Assistant United States Attorneys, Boise, ID, for the plaintiff-appellee.
Before: SUSAN P. GRABER, RAYMOND C. FISHER, and MILAN D. SMITH, JR., Circuit Judges.
[OPINION BY GRABER, Circuit Judge: type=majority]
OPINION
GRABER, Circuit Judge:
Defendant Joseph Edward Duncan, III, pleaded guilty to three capital charges and seven other charges in connection with the kidnapping, sexual abuse, and murder of D.G., a 9-year-old boy, and the kidnapping and sexual abuse of Sh.G., an 8-year-old girl. Defendant exercised his right to represent himself during his penalty phase hearing. His lawyers challenged his competence to do so, but the district court rejected that challenge without having held a hearing. Defendant received a death sentence.
Standby counsel filed a timely notice of appeal but, at a hearing, Defendant told the district court that he did not want to appeal. The district court accepted Defendant’s waiver of appeal, ruling that it had been made competently. We nevertheless agreed to hear this appeal for the limited purpose of reviewing the district court’s competency determinations. In the circumstances, we agree with standby counsel that a competency hearing was required. We therefore reverse and remand for a retrospective competency hearing.
I. Background
In the early hours of May 16, 2005, Defendant drove to a secluded house in Coeur d’Alene, Idaho, intending to kidnap two of the children who lived there. Brenda G. was asleep inside, along with her three children — 13-year-old Sl.G., 9-year-old D.G., and 8-year-old Sh.G. — and Brenda’s boyfriend, Mark M. Defendant had surveilled the house and knew who was inside. He came prepared with a loaded sawed-off shotgun, a hammer, night-vision goggles, duct tape, and a package of zip ties. He wore a hat, a mask, and gloves.
Defendant entered the house through the unlocked back door. He found Brenda asleep in the living room. He awakened her at gunpoint. At Defendant’s direction, Brenda took Defendant to each of the three bedrooms. One by one, Defendant collected the family members, assembled them face-down on the floor of the living room, and bound their arms and legs with zip ties and duct tape.
Defendant then took D.G. and Sh.G. into the back yard and lay them on the grass. He went back into the house to retrieve Sl.G. After leading Sl.G. into the back yard, Defendant hit him in the back of the head with the hammer several times until he fell to the ground and stopped moving. Defendant then went back into the house and killed Brenda and Mark, using the hammer, as they lay on the living room floor. Satisfied that his three victims were dead or nearly so, Defendant took D.G. and Sh.G. to his stolen rental car and drove them to a secluded area of the Lolo National Forest in Montana. There, Defendant set up camp.
Defendant held D.G. and Sh.G. at the campsite for almost seven weeks. He threatened to kill them with the shotgun if they tried to leave. During that time, Defendant repeatedly and savagely abused both children. He made video recordings of some of the abuse and stored the recordings on an electronic micro drive, which police later recovered. On or about June 22, 2005, Defendant killed D.G. by shooting the boy with the shotgun.
On July 2, 2005, Defendant decided to take Sh.G. back to Idaho. When they reached Coeur d’Alene, Defendant took Sh.G. to a Denny’s restaurant. A waitress and a customer each recognized Sh.G. and called the police. Police officers arrived, and they arrested Defendant.
In August 2005, the State of Idaho charged Defendant with three counts of first-degree murder and three counts of first-degree kidnapping for the murders of Mark M., Brenda G., and S1.G. After Defendant reached a bargain with the prosecution, he pleaded guilty on all charges. The court sentenced Defendant to three consecutive life sentences on the kidnapping charges but, consistent with the terms of Defendant’s plea bargain, the court deferred sentencing Defendant on the murder charges to await the outcome of this federal case. Idaho retains the right to seek the death penalty on the three murder convictions if these proceedings do not result in a valid death sentence.
In January 2007, a federal grand jury indicted Defendant on ten counts, all related to the kidnapping, rape, and abuse of the two children and the murder of D.G. The United States timely noticed its intent to seek the death penalty, under the Federal Death Penalty Act of 1994, for the three capital charges. At a hearing on December 3, 2007, with the support of counsel and without a deal with the government, Defendant pleaded guilty to all ten charges in the indictment.
Jury selection for Defendant’s penalty phase hearing began as scheduled on April 14, 2008. During the second day of jury selection, though, Defendant informed the court that he wanted to represent himself. The court held a hearing on Defendant’s request, concerned particularly with Defendant’s competence. After examining Defendant, the court directed the parties to confer and to submit the names of three local experts who could evaluate Defendant’s competence to proceed without counsel. One week after that hearing, the court issued an order referring Defendant to a local clinical psychologist whom the parties jointly recommended to evaluate Defendant’s competence. The court stated its preliminary conclusion that Defendant had the competence to proceed.
On May 2, 2008, defense counsel formally moved for an order finding Defendant incompetent or, in the alternative, for a hearing on Defendant’s competence. Counsel filed reports from three experts in support of the motion, all of whom had examined Defendant personally and had found him to be incompetent to represent himself. The doctors all thought that Defendant suffered from delusions that impaired his judgment and rendered him unable to understand the proceedings or to waive his right to counsel intelligently.
On May 8, 2008, the court-appointed psychologist filed his report with the court. The psychologist had interviewed Defendant three times. Although he found Defendant’s thoughts to be “somewhat unusual,” the psychologist concluded that Defendant was not delusional. He opined that Defendant could understand the nature and consequences of the proceedings against him, that Defendant could assist properly in his defense, and that Defendant had waived counsel knowingly, intelligently, and voluntarily.
The government initially moved to have Defendant evaluated by a second expert. But, after receiving the court-appointed psychologist’s report, the government withdrew that motion. Nevertheless, the district court, acting on its own motion, decided to order a second evaluation to be conducted by the Federal Bureau of Prisons. The court sent Defendant to the Metropolitan Detention Center in SeaTac, Washington, for an evaluation. Defendant’s period of assessment began on May 28, 2008, and lasted six weeks.
During that time, a forensic psychologist observed Defendant’s behavior, reviewed Defendant’s medical and mental health records, and spoke extensively with Defendant’s lawyers. She also reviewed the reports prepared by Defendant’s three experts and the other court-appointed psychologist. For the most part, Defendant refused to participate in the evaluation.
The forensic psychologist found no evidence of psychotic behaviors or thought processes. Though Defendant held “some very strong spiritual and ideological viewpoints regarding religion,” the psychologist did not think that those beliefs were delusional because such beliefs are “not uncommon among other subsets of highly religious, devout, or spiritual individuals.” She concluded that Defendant could represent himself competently.
On July 24, 2008, the district court denied defense counsel’s motion for a competency hearing and allowed Defendant to proceed without counsel. The court found the opinions of the court-appointed psychologists to be more credible than those of the defense experts, and the court agreed with the court-appointed psychologists that Defendant’s ideas, though “uncommon,” showed “a level of intelligence more than sufficient to evidence his understanding of [the] proceeding and his competency to proceed.” In addition, the court observed that Defendant had not displayed irrational behavior in court; that Defendant had stated that he understood the nature of the proceedings during his plea hearing; that defense counsel had never before called into question Defendant’s competence; and that no question regarding Defendant’s competence arose during the state court proceedings. For those reasons, and on the recommendations of the court-appointed psychologists, the court denied defense counsel’s motion to declare Defendant incompetent. The court appointed Defendant’s three lawyers to act as Defendant’s standby counsel.
The penalty phase hearing convened on August 13, 2008. The government spent ten days presenting its evidence. After the government rested, Defendant called himself as his only witness. Defendant did not make a statement in his defense. When the government indicated that it had no questions, Defendant left the stand and rested his case. After its deliberations, the jury unanimously recommended death sentences on all three capital counts. The district court sentenced Defendant to death.
Standby counsel filed a timely notice of appeal. The government moved to strike the notice because Defendant had informed the government that he had not given his consent to the appeal. Thereafter, the court received a letter from Defendant stating, “This is to inform the Court that if any appeal is initiated on my behalf it is done contrary to my wishes.”
The district court held a hearing on the government’s motion. The court first asked Defendant whether he understood his right to appeal. After several rambling responses, Defendant eventually answered, “I certainly understand my right, my right in quotes, and I have no desire, as I mentioned in the letter I wrote to you, to invoke it.” On the basis of Defendant’s statements, and in view of the court’s previous competency determination, the court ruled that Defendant had knowingly, intelligently, and competently waived his right to appeal. The court therefore granted the government’s motion to strike the notice of appeal.
We nevertheless agreed to hear an appeal limited to two issues: whether we lack jurisdiction because standby counsel has no standing to appeal; and, if we have jurisdiction, whether the district court erred in its determination that Defendant competently could represent himself and waive his right to appeal.
II. Discussion
A. Standards of Review
We review de novo the district court’s ruling on standing. La Asociacion de Trabajadores de Lake Forest v. City of Lake Forest, 624 F.3d 1083, 1087 (9th Cir. 2010). We employ a practical standard to review the denial of a motion for a competency hearing. We ask whether a reasonable judge, situated as was the trial judge who denied the motion, should have experienced doubt with respect to the defendant’s competence, de Kaplany v. Enomoto, 540 F.2d 975, 983 (9th Cir.1976) (en banc). We engage in a “comprehensive” review of the evidence, and we are “not limited by either the abuse of discretion or clearly erroneous standard.” Id.
B. Jurisdiction
We begin, as we must, with the threshold jurisdictional question. When standby counsel filed their notice of intent to appeal, Defendant had no interest in appealing his sentence. We therefore consider whether standby counsel may, against the wishes of their client, appeal from the district court’s competency determination.
We already have answered that question in the affirmative. In Mason ex rel. Marson v. Vasquez, 5 F.3d 1220, 1221 (9th Cir.1993), a death-sentenced state prisoner sought a writ of habeas corpus in federal district court. Before his petition could be heard, the petitioner decided to abandon his petition. When his lawyer opposed that decision, the petitioner discharged him. The lawyer nevertheless moved the district court for an order finding the petitioner incompetent to abandon his petition. The district court convened a competency hearing and, at its conclusion, ruled that the petitioner competently had decided to dismiss his habeas petition. Id.
Undeterred, the lawyer appealed that determination to this court. Id. at 1223. We held that, in the “unusual circumstance in which the petitioner and his appointed attorney are actively contesting the petitioner’s competence” as between themselves, the lawyer, “as a participant for[the petitioner] in the proceedings, is ... entitled to appeal the court’s decision of mental competence, which would otherwise remain unreviewed in a death penalty case.” Id. Indeed, we recognized that in some cases a lawyer bears an “ethical obligation, acting in the best interest of his client, to contest[his client’s] competency to dismiss his action.” Id. (citing Lenhard v. Wolff, 603 F.2d 91, 92-93 (9th Cir.1979) (per curiam)). Although “the petitioner is entitled to guide the course of his litigation, including dismissing his action either on his own or through an attorney of his choice,” he must be “mentally competent to do so.” Id. His lawyer therefore has limited standing to appeal from a finding of mental competence to ensure the validity of a petitioner’s decision to dismiss his habeas petition.
The government would have us distinguish Mason from the facts here because Mason arose in the context of a habeas proceeding, while this case involves Defendant’s direct appeal. We see no legal significance in that distinction. A defense lawyer’s obligation to protect his client from incompetently waiving the right to a direct appeal is at least as strong as is the lawyer’s obligation to prevent his client from incompetently dismissing a federal habeas petition. Indeed, in the former circumstance there has been no process by which to review a defendant’s conviction and sentence, while in the latter circumstance the state courts remain available to perform such a review.
In Mason, for instance, the California Supreme Court had considered the merits of the petitioner’s habeas claims three times. Id. at 1221. Here, by contrast, no court has had an opportunity to decide whether the district court afforded Defendant the process necessary to impose a valid death sentence. Our concern that claims might “otherwise remain unreviewed in a death penalty case,” id. at 1223, is therefore heightened here, not lessened.
The government argues that Defendant’s competence may be challenged by a next Mend in a habeas proceeding brought under 28 U.S.C. § 2255, and so the government urges us to deny standby counsel standing to proceed here and await a § 2255 motion. That suggestion ignores our holding in Mason, 5 F.3d at 1223, that standby counsel have standing for the limited purpose of appealing the district court’s competency determination. That holding is the law of this circuit, and we have no authority to decide not to follow it. Miller v. Gammie, 335 F.3d 889, 899 (9th Cir.2003) (en banc).
In sum, our holding in Mason applies as much in the context of a direct appeal as it does in the context of a federal habeas proceeding. Having thus found standby counsel’s standing firmly established in our precedent, we turn to the main issue: whether the district court properly found Defendant to be competent without having held a hearing.
C. The Competency Determination
We begin with first principles. The Constitution provides criminal defendants with the right to be competent during trial. Indiana v. Edwards, 554 U.S. 164, 170, 128 S.Ct. 2379, 171 L.Ed.2d 345 (2008) (citing Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960) (per curiam), and Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975)). At all times before his conviction, a defendant must have “a rational as well as factual understanding of the proceedings against him” and “sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding.” Id. (internal quotation marks and emphasis omitted). If a defendant fails to satisfy either of those requirements, then the proceedings against him may go no further. Id. And the competency right does not end at a conviction. In addition, a defendant must have the “ ‘capacity to appreciate his position and make a rational choice’ ” whether to challenge his conviction or sentence on appeal or in postconviction proceedings. Miller ex rel. Jones v. Stewart, 231 F.3d 1248, 1250 (9th Cir.2000) (quoting Rees v. Peyton, 384 U.S. 312, 313, 86 S.Ct. 1505, 16 L.Ed.2d 583 (1966) (per curiam)). That standard applies as well when a defendant decides to abandon an appeal after having properly filed it. Id.
The difficulty in this case arose when Defendant decided to exercise two other rights given to him by the Constitution. First, he chose to waive his right to counsel and to represent himself during his penalty phase trial. Second, he decided to waive his right to appeal his sentence. Neither of those decisions is valid if not competently made. Id. Here, we must decide whether the district court properly found Defendant competent with respect to the appeal waiver without having held a hearing on the matter before making its decision.
Congress has set out specific procedures for determining a criminal defendant’s mental competence. 18 U.S.C. § 4241. Those procedures apply here because Defendant’s lawyers moved for a competency hearing before the trial. See id. § 4241(a) (governing motions for competency hearings made “[a]t any time after the commencement of a prosecution ... and prior to the sentencing of the defendant”). The statute compels the district court to hold a competency hearing, either on defense counsel’s motion or on its own motion, “if there is reasonable cause to believe that the defendant may presently be suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense.” Id. We must decide whether the evidence established “reasonable cause” to believe that Defendant lacked the competence required to represent himself and to waive his right to an appeal. We think that it did and, thus, that the district court erred when it concluded otherwise.
Standby counsel produced reports from three experts, all well established and highly regarded in the field of neuropsychiatry, who had examined Defendant personally and had found him to suffer from— in the words of one of the experts — “delusional beliefs, paranoia, grandiosity, and psychotic breaks with reality.” All three experts formed the same opinion that — in the words of another of the experts — Defendant’s “mental diseases and defects render him incapable of rationally understanding and participating in the proceedings, and therefore incompetent.”
Standby counsel also produced results from a magnetic resonance imaging (MRI) study and positron emission tomography (PET) scan of Defendant’s brain. The results of those tests, according to one of Defendant’s experts, showed “an unusual brain structure” consistent with behavioral deficits in “the ability to make rational plans and modulate emotions.” The expert opined that Defendant’s brain dysfunction contributes to his “severe psychosis” and “elaborate delusional system,” which “render[ ] him unable to have a rational understanding of the proceedings or to waive his right to counsel and to represent himself.” Defendant’s other two experts agreed with that conclusion.
In addition to the expert evidence, the district court had before it several letters written by Defendant in prison while waiting for his day in court. Often in those letters, Defendant made philosophical observations and arguments rooted in his religious beliefs. Some of those arguments appear rational. For example, Defendant implored his family members not to testify in his defense because, in his words, “there simply is no excuse or mitigating evidence to justify or minimize what I did.” That Defendant wants to accept punishment for his crimes does not necessarily imply incompetence. See Davis v. Woodford, 384 F.3d 628, 645 (9th Cir.2004) (concluding that, even though the defendant was “recalcitrant and acted in ways that were detrimental to his case,” the trial judge was not compelled to hold a competency hearing).
But others of Defendant’s statements are unusual, and his writings suggest that those unusual beliefs played a significant role in his decisions about how to conduct his defense. It does not surprise us that different experts interpreted Defendant’s beliefs differently. Defendant’s experts all think that his beliefs fall too far beyond mainstream religious thought to be considered rational. The court-appointed experts both disagreed. While recognizing that Defendant’s beliefs fall at the outer reaches of mainstream theology, those experts did not find the beliefs unusual enough to be considered delusions.
We express no opinion on which of the experts has the better of the argument. That decision rests in the first instance with the district court. We hold only that the evidence described above creates a “reasonable doubt” about Defendant’s competence, such that § 4241(a) required a full competency hearing before the district court could reach a decision.
III. Conclusion
We remand to the district court for a hearing to determine whether Defendant competently waived his right to appeal. If the court again finds that Defendant competently waived his right to appeal, then the court should reinstate its previous order. If the court finds that Defendant did not competently waive that right, then the court should proceed to determine whether Defendant competently waived his right to counsel before the penalty phase hearing. If the court further finds that Defendant did not competently waive his right to counsel, then it should vacate Defendant’s sentence and convene a new penalty phase hearing with Defendant properly represented. We express no view on the merits of any of those issues.
This panel will assume jurisdiction over any future appeals in this case.
REVERSED and REMANDED with instructions.
Shortly before argument, standby counsel informed us that Defendant has changed his mind and now wishes to endorse this appeal. We need not decide whether a defendant may withdraw his waiver of appeal, because standby counsel have standing in their own right to appeal the district court’s competency ruling. And, because we hold that the district court made that ruling in error, we need not and do not reach any of standby counsel's other arguments. Standby counsel may press those arguments if, after the competency hearing for which we remand, they deem it appropriate to do so.
The "reasonable cause” standard set out in § 4241(a) tracks the standard for deciding the need for a competency hearing that we have used in our cases. See de Kaplany v. Enomoto, 540 F.2d 975, 981 (9th Cir.1976) (en banc) (holding that, at any time "there is any evidence which, assuming its truth, raises a reasonable doubt about the defendant’s competenc[e],” the trial court "sua sponte must order an evidentiary hearing on the competency issue”). At times, we have formulated our standard in slightly different terms, holding that a competency hearing should take place "at any time that there is 'substantial evidence’ that the defendant may be mentally incompetent to stand trial.” Moore v. United States, 464 F.2d 663, 666 (9th Cir.1972) (per curiam). But both of our formulations lead to the same bottom line. As we explained in Moore, "[e]vidence is 'substantial' if it raises a reasonable doubt about the defendant's competenc[e] to stand trial.” Id. Accordingly, the test, whether taken from § 4241(a) or our cases, is the same.
We recognize that the Supreme Court has cautioned against retrospective assessments of a defendant’s competence. See Pate v. Robinson, 383 U.S. 375, 387, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966) (rejecting the state’s suggestion to hold a retrospective competency hearing and requiring the state to retry the defendant instead). But, in circumstances similar to those here, we have held that such assessments can be made. In particular, "when the record contains sufficient information upon which to base a reasonable psychiatric judgment,” we have declined to put the government to the expense of a new trial. Odle v. Woodford, 238 F.3d 1084, 1089-90 (9th Cir.2001); see also de Kaplany, 540 F.2d at 986 n. 11. Because this record falls comfortably within that category, we remand for a retrospective competency hearing.
Anthony SHORE, Petitioner-Appellant, v. Lorie DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee.
No. 16-70008
United States Court of Appeals, Fifth Circuit.
Filed January 6, 2017
Kelley Louise Clark, Marcy Ellen Kurtz, Kevin Knox Nunnally, Bracewell, L.L.P., Kevin Knox Nunnally, McGuireWoods, L.L.P., Houston, TX, for Petitioner-Appellant.
Fredericka Searle Sargent, Assistant Attorney General, Office of the Attorney General, Criminal Appeals Division, Tina J. Miranda, Woodson Erich Dryden, Esq.,, Assistant Attorneys General, Office of the Attorney General, Postconviction Litigation Division, Austin, TX, for Respondent-Appellee.
Before CLEMENT, ELROD, and SOUTHWICK, Circuit Judges.
[OPINION BY PER CURIAM: type=majority]
PER CURIAM:
Petitioner Anthony Shore seeks a certificate of appealability (COA) from this court in order to appeal the district court’s denial of his habeas petition. He asserts the following grounds for relief: (1) Shore was denied his constitutional right to present mitigation evidence to the jury; (2) Shore’s right to counsel was violated by trial counsel’s failure to conduct an adequate mitigation investigation, failure to present evidence of Shore’s brain damage, and failure to represent Shore during the punishment phase of his trial; and (3) Shore’s brain injury renders his execution a violation of the Eighth Amendment prohibition against cruel and unusual punishment. Because reasonable jurists would not debate the district court’s rejection of these claims, we DENY Shore’s application for a COA.
I.
Shore was charged with the capital murder of Maria Del Carmen Estrada during the course of an aggravated sexual assault. Shore v. Stephens, No. H-13-1898, 2016 WL 687563, at *3 (S.D. Tex. Feb. 19, 2016). Shore voluntarily confessed that he offered the twenty-one-year-old a ride in his car, used a pair of shears to aid his attempt to rape her, and ultimately strangled her. Id. at *2. His confession was supported by detailed forensic evidence and witness testimony. Id. at *3, Defense counsel admitted that Shore killed Ms. Estrada and that Shore had sexual relations with her against her will, but argued that Shore should be found guilty of simple murder rather than capital murder. Id. Shore was convicted of capital murder. Id. at *4.
In the opening argument of the trial’s punishment phase, Shore’s defense counsel stated, “Against our advice, against our better judgment, against our 40 years of experience, Anthony has asked on his behalf that we ask you to answer those [special-issue] questions in such a way that he’s sentenced [to] death.” Id. Counsel explained, “It is where he is and it is what he thinks should happen to him based upon how he has lived his life.” Id. Counsel also stated, “Anthony still believes that despite all of that, despite the fact that he’s been able to sit in jail now for over a year and not violate the rules of the institution, it is time for him to sacrifice his life for what he has done.” Id.
The State provided the jury a recording of Shore’s full confession, which described additional murders and sexual assaults. Id. at *5. Shore strangled three women besides Estrada to death. Id. at *2-3. The first was a fourteen-year-old whom he had sexually assaulted. Id. at *2. The second was a nine-year-old whom he raped or attempted to rape. Id. at *3. The third was a sixteen-year-old whom Shore touched and stripped, but whom he claimed he did not sexually assault. Id. Shore also raped a fourteen-year-old girl whom he did not murder, but whom he threatened to kill, along with her family, if she reported his crime. Id. at *2. Shore stated during his confession that this rape proved he could “beat the evilness” by raping a woman without killing her. Id.
The State supplemented Shore’s confession with extensive evidence and testimony. The State corroborated Shore’s murders with forensic evidence, including photographs of his victims’ corpses. Id. at *5. It also called thirty-five witnesses, including Shore’s sister, daughters, and wife, three of Shore’s former girlfriends, and the clinical director of a sex offender program in which Shore had participated for five years. Id. Shore’s sister testified that he stabbed a kitten to death when he was four or five, that he pushed a screwdriver through his sister’s head when they were children, and that he used his sister to get girls in the neighborhood to come out of their houses so he could grope and try to kiss them. Id. Shore’s daughters testified about being abused, drugged, and molested by Shore. Id. His wife and former girlfriends testified that he drugged and raped them, choked them while having sex, used drugs, and kept pornography of young girls. Id. The clinical director of Shore’s sex offender program testified that he had superior intellectual and abstract reasoning abilities; was grandiose, opportunistic, manipulative, and narcissistic; understood what was socially acceptable but had sexual deviations and would break a law if he thought he could get away with it; and scored high on a measure of psychopathy. Id.
After the State had presented its case, Shore’s counsel told the trial court that additional discussion had not changed Shore’s mind about requesting the jury to give him the death penalty. Id. at *6. Counsel expressly stated that Shore “made it quite clear ... that he doesn’t want [his attorneys] to in any way argue to the contrary” and that this was the reason counsel was waiving a closing argument. Id. The trial court asked Shore if his counsel had accurately represented his instructions, and Shore replied, “That is very accurate.” The jury sentenced Shore to death. Id. at *6..
Shore sought direct and collateral relief in state court. The Texas Court of Criminal Appeals affirmed his conviction on direct appeal. Shore v. State, No. AP-75049, 2007 WL 4375939, at *1 (Tex. Crim. App. Dec. 12, 2007) (not designated for publication). Shore’s state habeas petition raised numerous points of error, including constitutional claims based on the trial court’s failure to inquire on the record whether Shore’s decision to waive the presentation of mitigating evidence was competent, knowing, and voluntary; the trial court’s failure to inquire on the record whether there had been any investigation for mitigating evidence and what the results of any such investigation were; counsel’s decision to sit silent during the punishment phase.of the trial; and counsel’s failure to object to various pieces of evidence. The state trial court rejected these arguments and denied Shore’s habeas petition, adopting the State’s proposed findings of fact and conclusions of law without an evidentiary hearing. Ex Parte Shore, No. WR78133-01, 2013 WL 173017, at *1 (Tex. Crim. App. Jan. 16, 2013) (not designated for publication). The Texas Court of Criminal Appeals also rejected Shore’s habeas petition, adopting the trial court’s findings and conclusions. Id.
Shore then filed a federal habeas petition supported by seven new exhibits. The district court denied Shore relief on his habeas petition and declined to issue a COA. Shore, 2016 WL 687563, at *20. The district court rejected Shore’s claim that the trial court failed to obtain a valid waiver of his right to challenge the State’s punishment case. It reasoned that no Supreme Court precedent required trial courts to obtain a knowing waiver on the record and that Shore had provided no basis for challenging the state courts’ finding of a valid waiver, which was supported by the record. Id. at *8-10. The district court rejected Shore’s Strickland claims regarding trial counsel’s failure to conduct a reasonable investigation into mitigating evidence, failure to present evidence of organic brain damage, and failure to contest the State’s punishment case because Shore’s waiver barred these claims. It reasoned that these claims relied on evidence barred by Pinholster and that, even with the benefit of his newly-proffered evidence, Shore could not show that counsel was deficient or that counsel’s alleged deficiencies prejudiced his defense. Id. at *10-18. Finally, the district court rejected Shore’s claim that his brain damage made his execution unconstitutional under the Eighth and Fourteenth Amendments. It reasoned that this claim was unexhausted and therefore not properly before the court and that this claim sought to create and apply a new rule of constitutional law in violation of Teague. Id. at *19. Shore applied to this court for a COA in order to appeal the denial of his federal habeas petition. After thorough review of the briefing and careful consideration of the positions taken at oral argument, we conclude that Shore’s application must be denied.
II.
Section 2254 of the Antiterrorism and Effective Death Penalty Act (AED-PA), 28 U.S.C. § 2254, governs this court’s consideration of Shore’s request for a COA. Under AEDPA, a state habeas petitioner must obtain a COA before he can appeal the federal district court’s denial of habeas relief. 28 U.S.C. § 2253(c)(1)(A). A COA is warranted upon a “substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2258(c)(2). This is a showing that “reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Miller-El v. Cockrell, 537 U.S. 322, 338, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). To obtain a COA after a district court has denied relief on procedural grounds, a petitioner must show both a debatable claim on the merits and that the district court’s procedural ruling is debatable. See id. at 349, 123 S.Ct. 1029. “This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims. In fact, the statute forbids it.” Id. at 336,123 S.Ct. 1029.
The court evaluates the debatability of Shore’s constitutional claims through the lens of AEDPA’s highly deferential standard, which “demands that state-court decisions be given the benefit of the doubt.” Renico v. Lett, 559 U.S. 766, 773, 130 S.Ct. 1855, 176 L.Ed.2d 678 (2010). A federal court may not grant habeas relief unless the petitioner has first exhausted state remedies with respect to the claim at issue. 28 U.S.C. § 2254(b). A habeas petitioner must prove that the state court’s constitutional adjudication “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established [fjederal law, as determined by the Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1), or “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding,” 28 U.S.C. § 2254(d)(2). Clearly established federal law is comprised of “the holdings, as opposed to the dicta, of [the Supreme] Court’s decisions as of the time of the relevant state-court decision.” Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). A state-court decision is contrary to clearly established federal law if it “identifies the correct governing legal rule from [the Supreme Court’s] cases but unreasonably applies it to the facts of the particular state prisoner’s case” or “extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply.” Id. at 407, 413,120 S.Ct. 1495.
When ruling on a petition for a writ of habeas corpus, the federal district court must defer to the factual findings of state trial and habeas courts. Moody v. Quarterman, 476 F.3d 260, 267-68 (5th Cir. 2007); Young v. Dretke, 356 F.3d 616, 629 (5th Cir. 2004). Federal courts are limited to the record before the state courts. Cullen v. Pinholster, 563 U.S. 170, 181, 131 S.Ct. 1388, 179 L.Ed.2d 557 (2011). The district court reviews “only the ultimate legal determination by the state court — not every link in its reasoning.” Trottie v. Stephens, 720 F.3d 231, 241 (5th Cir. 2013) (citing Neal v. Puckett, 286 F.3d 230, 246 (5th Cir. 2002) (en banc); Catalan v. Cockrell, 315 F.3d 491, 493 (5th Cir. 2002)). Where a state court habeas decision is unaccompanied by explanation, “a federal court must ‘determine what arguments or theories ... could have supported the state court’s decision,’ and then ask ‘whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision’ of the Supreme Court.’' Williams v. Thaler, 684 F.3d 597, 603 (5th Cir. 2012) (quoting Harrington v. Richter, 562 U.S. 86, 88,131 S.Ct. 770,178 L.Ed.2d 624 (2011)).
III.
Shore is not entitled to a COA on his claim that he was denied his constitutional right to present mitigation evidence to the jury under Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). The Supreme Court held in Lockett that the Eighth and Fourteenth Amendments require individualized consideration of mitigating factors. Id. at 604-08, 98 S.Ct. 2954. However, Shore waived the right to present mitigation evidence by instructing trial counsel not to argue against the death penalty. Shore argues that this waiver was invalid because it was not reflected on the record and because he could not have knowingly waived the right to present evidence of brain damage when he was not aware of that evidence. This argument is barred by Teague and is not adequately supported by the evidence.
The Supreme Court’s decision in Teague bars federal courts from applying new constitutional rules to upset state convictions on collateral review. Teague v. Lane, 489 U.S. 288, 310, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989); see also 28 U.S.C. § 2254(d)(1). Shore’s argument depends on a proposed rule of constitutional law requiring that a waiver of the right to present mitigation evidence be made knowingly and on the record. The district court correctly observed that the Supreme Court has never imposed such a requirement. Shore, 2016 WL 687563, at *10 (quoting Schriro v. Landrigan, 550 U.S. 465, 479, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007)). It is unde-batable among jurists of reason that to create such a new requirement and impose it here would violate Teague. Therefore, Shore is not entitled to a COA on his Lockett claim.
Even if Shore’s argument were not barred by Teague, reasonable jurists would not debate that Shore has failed to present evidence sufficient to overcome the presumption of correctness afforded to the state habeas courts’ implicit finding that the record shows a knowing, intelligent, and voluntary waiver. See 28 U.S.C. § 2254(e)(1); Dretlce, 356 F.3d at 629. In the face of this presumption of correctness, Shore argues that his waiver was not knowing as to subsequently discovered evidence of brain damage, relying on two reports to show that a subsequent discovery of evidence occurred. Setting aside any questions about the strength of this evidence, Shore’s reports are not properly presented for our consideration on habeas review because they were not presented in state court. See Pinholster, 563 U.S. at 182, 131 S.Ct. 1388; see also 28 U.S.C. § 2254(d)(2). Thus, the evidence Shore cites would be insufficient to displace the state courts’ finding of a valid waiver even if his Lockett claim were not barred by Teague. For this reason also, Shore is not entitled to the relief he seeks under Lockett.
IV.
Shore is also not entitled to a COA on his claims under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Shore argues that his trial counsel was constitutionally deficient for faffing to conduct an adequate mitigation investigation, to present evidence of Shore’s brain damage, and to represent Shore during the punishment phase of the trial. These arguments are foreclosed both by Shore’s instructions to his counsel and by the fact that they are based on new evidence and legal theories.
A defendant cannot raise a Strickland claim based on counsel’s compliance with his instructions. See United States v. Masat, 896 F.2d 88, 92 (5th Cir. 1990) (“[A defendant cannot] avoid conviction on the ground that his lawyer did exactly what he asked him to do.”); Autry v. McKaskle, 727 F,2d 358, 361 (5th Cir. 1984) (“By no measure can [a defendant] block his lawyer’s efforts and later claim the resulting performance was constitutionally deficient.”). If a defendant instructs his attorney not to present mitigation evidence, the failure to present this evidence does not give rise to a Strickland claim. Sonnier v, Quarterman, 476 F.3d 349, 362 (5th Cir. 2007). Such an instruction also bars the defendant from raising a Strickland claim based on failure to investigate mitigation evidence. Landrigan, 550 U.S. at 475-76, 127 S.Ct. 1933. In light of Shore’s confirmation that he instructed counsel not to argue against the death penalty, the state habeas courts acted reasonably in rejecting Shore’s claim, and the district court correctly affirmed.
Shore’s Strickland claims also violate the rule prohibiting federal habeas courts from considering evidence that was not presented in state court. See Pinholster, 563 U.S. at 182, 131 S.Ct. 1388; see also 28 U.S.C. § 2254(b). Shore argues that two of his Strickland claims are unexhausted and that Pinholster does not bar consideration of new evidence in connection with unexhausted claims. Assuming arguendo that this is correct, Shore’s new evidence is admissible only if he can show that his unexhausted claims are properly before this court. To do so, he invokes Trevino v. Thaler, — U.S.-, 133 S.Ct. 1911, 185 L.Ed.2d 1044 (2013) and Martinez v. Ryan, 566 U.S. 1, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012). However, Shore’s invocation of Trevino and Martinez is unavailing for two reasons. First, the argument is abandoned because it was not raised in Shore’s initial brief on appeal. See Cinel v. Connick, 15 F.3d 1338, 1345 (5th Cir. 1994). Second, the briefing provides no factual basis for an allegation that habeas counsel was deficient. See Martinez, 132 S.Ct. at 1318. Because Shore cannot effectively invoke Trevino and Martinez, his unexhausted Strickland claims are not properly before this court. His remaining Strickland claims are subject to Pinholster. Therefore, the new evidence on which Shore seeks to rely is not properly before this court. Shore is not entitled to a COA on his Strickland claims.
V.
Finally, Shore is not entitled to a COA on his Eighth Amendment claim that his execution would be cruel and unusual in light of his brain injury. The district court correctly found that this claim is procedurally barred because it was not raised on state habeas review. Shore, 2016 WL 687563, at *19; see also Duncan v. Henry, 513 U.S. 364, 365-66,115 S.Ct. 887, 130 L.Ed.2d 865 (1995); Coleman v. Thompson, 501 U.S. 722, 735 n.1, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); Nobles v. Johnson, 127 F.3d 409, 419-20 (5th Cir. 1997). It is also barred by Teague because it does not rely on the holding of any Supreme Court precedent but instead seeks to extend the reasoning of Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), and Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005). Finally, this argument is foreclosed by the numerous Fifth Circuit precedents rejecting the proposition that the Eighth Amendment prohibits execution of those who have brain problems but are not intellectually disabled, as Shore’s counsel acknowledged at oral argument. See Mays v. Stephens, 757 F.3d 211, 219 (5th Cir. 2014), cert. denied, — U.S.-, 135 S.Ct. 951, 190 L.Ed.2d 844 (2015); ShisInday v. Quarterman, 511 F.3d 514, 521 (5th Cir. 2007); In re Neville, 440 F.3d 220, 221 (5th Cir. 2006).
VI.
For the reasons stated above, we conclude that the district court’s denial of Shore’s habeas petition would not be debatable among jurists of reason. Accordingly, we DENY Shore’s application for a COA.
Shore's trial counsel moved to withdraw. The trial court appointed a new attorney to represent Shore on direct appeal and then appointed a different attorney to represent Shore on state habeas review. See Shore, 2016 WL 687563, at *6.
Shore's briefing expressly states that his competence is not at issue and that he is not claiming that he is intellectually disabled. At oral argument, Shore’s counsel again conceded Shore's intelligence and affirmed that Shore’s competence is not at issue.
The parties agree that Shore has not exhausted his claim that counsel should have investigated mitigation evidence other than evidence of brain damage. Shore argues that he also has not exhausted his claim that counsel failed to represent him during the punishment phase because his new evidence makes the argument fundamentally different from the one presented to the state habeas courts.
Shore argues that the miscarriage of justice exception to the procedural bar on unexhausted claims applies here. This exception requires a petitioner to show that he has a colorable claim of factual innocence. Sawyer v. Whitley, 505 U.S. 333, 339, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992). Because Shore has not made this showing, the exception does not apply.