Mullis v. Davis

CourtDistrict Court, S.D. Texas
DecidedMarch 16, 2021
Docket3:13-cv-00121
StatusUnknown

This text of Mullis v. Davis (Mullis v. Davis) is published on Counsel Stack Legal Research, covering District Court, S.D. Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mullis v. Davis, (S.D. Tex. 2021).

Opinion

□ Southern District of Texas ENTERED UNITED STATES DISTRICT COURT March 16, 2021 SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk GALVESTON DIVISION TRAVIS JAMES MULLIS, § = « Petitioner, § VS. § CIVIL ACTION NO. 3:13-cv-121 § BOBBY LUMPKIN, § § Respondent. § § ORDER Petitioner Travis James Mullis, an inmate on Texas’ death row, has filed a federal petition for a writ of habeas corpus. (Docket Entry No. 94). Respondent Bobby Lumpkin has moved for summary judgment (Docket Entry No. 147) and Mullis has filed

a reply (Docket Entry No. 159). For the reasons discussed below, the Court needs additional briefing before deciding whether to authorize factual development or proceed to adjudication. Accordingly, the Court will DENY Respondent’s motion for summary judgment WITHOUT PREJDUICE. BACKGROUND For the purposes of this Order, the Court will not review the crime which led to Mullis’ capital conviction and death sentence. The Court, however, will provide a succinct summary of the state proceedings that have given rise to the issues needing development. A Texas jury convicted Mullis of capital murder. He received a death sentence. After appointed appellate counsel filed a motion for a new trial, Mullis elected to proceed 1/17

pro se on direct appeal. On May 20, 2011, the trial court held a hearing in which it conducted a colloquy with Mullis regarding his desire to represent himself. The trial court fully interrogated Mullis about his knowledge of the legal process, his decision to waive review, and his mental health. The trial court also questioned appellate counsel about Mullis’ decision. The trial court then granted Mullis’ request to dismiss his appellate attorney and proceed pro se. Review in the Texas Court of Criminal Appeals is automatic in capital cases. Mullis, nevertheless, asked to waive direct appeal. The State filed a motion indicating that it would not submit an appellate brief. Because Mullis filed no briefing, the Court of Criminal Appeals entered an order on April 25, 2012 finding “no unassigned fundamental error” and “affirming the trial court’s judgment.” Mullis v. State, 2012 WL 1438685 (Tex. Crim. App. 2012) (unpublished). Under Texas procedure, direct appeal and habeas review proceed concurrently. On the same day that the trial court appointed appellate counsel, Brad Levenson of the Office of Capital Writs (“state habeas counsel”) was appointed to represent Mullis on state post-conviction review. Only a few months after the trial court found that Mullis could represent himself on direct appeal, state habeas counsel filed a notice that Mullis wished to waive state habeas review. The trial court assigned Dr. Victor Scarano to assess whether Mullis was competent to waive habeas proceedings. Dr. Scarano performed a comprehensive evaluation of Mullis. On October 12, 2011, the trial court held a hearing regarding Mullis’ waiver. The trial court came to the hearing with broad experience having 2/17

presided over trial and Mullis’ recent waiver of appellate review. The trial court engaged Mullis in a colloquy similar to, but briefer than, the discussion only months earlier when it found him able to represent himself on appeal. The trial court held that Mullis was “permitted to act po se regarding any decision concerning waiver and/or filing a post- conviction writ of habeas corpus.” The trial court allowed state habeas counsel to “investigate and prosecute” a habeas writ, but not file one “if Mr. Mullis persists in electing to waive filings.” Mullis, however, soon gave habeas counsel a “standing directive” to “NOT file a writ of habeas corpus.” The parties in the instant lawsuit now debate what responsibilities state habeas counsel held thereafter. Despite the limitations placed by Mullis, the record shows that state habeas counsel sought for, and received, an extension of time to file a habeas application. The circumstances, however, presented a difficult question about when a habeas application would be due. Texas requires a capital inmate to file his habeas application after the later of two dates: “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.” Tex. Code Crim. Pro. 11.071 §4(a). An inmate waives his claims when he fails to file a timely application. Tex. Code Crim. Pro. art. 11.071 §4(e) (“A failure to file an application before the filing date applicable to the applicant under Subsection (a) or (b) constitutes a waiver of all grounds for relief that were available to the applicant before the last date on which an application could be timely filed, except as provided by Section 4A.”). The 3/17

lack of an appellate brief by the State and questions about habeas counsel’s role resulted in confusion about the due date for any habeas application. Eventually it became clear that Mullis would not permit the filing of a habeas application and that he would not file one himself. The state habeas court notified the Court of Criminal Appeals that Mullis had not filed a habeas application. In late August 2012, however, Mullis wrote a letter saying that unspecified “new evidence” caused him to change his mind about pursuing habeas remedies. In the eyes of the Court of Criminal Appeals, however, that letter came too late. On September 12, 2012, the Texas Court of Criminal Appeals entered an order recognizing Mullis’ earlier waiver. Because of uncertainty about the triggering date for the beginning of the period to file Mullis’ habeas application, the Court of Criminal Appeals found “[u]nder the best possible scenario” that Mullis’ application should have been due in the trial court “on or before July 2, 2012.”! The Court of Criminal Appeals found that, by failing to file a timely application Mullis “waiv[ed] . . . all grounds for relief.” Ex parte Mullis, No. WR-76,632-01 (Tex. Crim. App. Sept. 12, 2012). In its dismissal order, the Court of Criminal Appeals instructed: “[S]hould [Mullis] or pro bono counsel working on his behalf file an untimely writ application or a motion for a new filing date under Article 11.071 § 4A, then the filer will have to show good cause as to why an application was not filed on or before the statutorily applicable due date.” Jd. at 2-3.

: The parties debate the validity of, and reasoning behind, this computation. 4/17

In the next day, however, Mullis wrote a letter indicating that he had made a final decision not to appeal. Still, state habeas counsel (now acting pro bono) filed a motion on Mullis’ behalf for leave to submit a habeas application. Ex part Mullis, WR-76,632- 02. State habeas counsel did not submit a proposed habeas application but requested an extension of time to prepare one. State habeas counsel attempted to meet the “good cause” showing for filing a late application by arguing that Mullis had previously been incompetent to waive review. State habeas counsel had retained a psychologist, Dr. Michael Fuller, to evaluate Mullis for competency on November 1, 2012. Dr. Fuller reviewed the report prepared by Dr. Scarano, evaluated Mullis, and concluded that he “had not been competent to waive his rights in October 2011 due to mental illness, depression, suicidal ideation, and fear of violence in prison outside the locked-down death row unit.” (Docket Entry No. 94 at 14). State habeas counsel relied on Dr. Fuller’s report to ask for a new habeas filing date. The Court of Criminal Appeals denied the request to restart habeas review because “neither counsel’s motion nor Fuller’s report show that applicant was incompetent on August 22, 2012, when he tried to reinstate his appeals or on September 13, 2012, when he again re-urged his desire to waive review of his conviction.” Ex parte Mullis, No. WR-76,632-01 (Tex. Crim. App. Dec. 12, 2012).

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Bluebook (online)
Mullis v. Davis, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mullis-v-davis-txsd-2021.