Whether a defendant's severe mental illness and state habeas counsel's abandonment can constitute cause to excuse procedural default in a capital case under Murray v. Carrier

No question identified. : 3. Petitioner has conferenced this Motion with counsel for Respondent, Mr. Arie Cuenin, Assistant Attorney General for the State of Texas, who stated Respondent does not oppose the extension of time requested in the Motion. 4. For purposes of timing of this motion, the following dates are relevant: On May 4, 2023, Petitioner filed a Petition for Rehearing En Banc. On September 5, 2023, the Fifth Circuit the Fifth Circuit, treating the petition for rehearing as petition for panel rehearing, denied the Petition. 5. This is a complex capital case with a lengthy procedural history partially set forth below. Several issues potentially worthy of this Court’s consideration on certiorari, which are set forth skeletally below, involve severe mental illness, abandonment of counsel under Maples v. Thomas, 565 U.S. 266 (2012), and the ramifications that these psychiatric and legal issues may have for establishing cause for procedural default under Murray v. Carrier, 477 U.S. 478 (1986). Finally, undersigned counsels’ schedule precludes adequate briefing of these issues by the December 3, 2023, deadline. 6. Two decades ago, on March 26, 2001, Petitioner was convicted in of capital murder and sentenced to death in State v. Green, no. 832865, in the 209th District Court of Harris County, Texas. Twelve years later, on March 6, 2013, the Texas Court of Criminal Appeals ultimately denied state post-conviction relief. 7. On March 6, 2014, Petitioner timely filed a petition for federal habeas relief. On January 1, 2021, in the District Court for the Southern District of Texas, in cause no. 4:13-cv-01899, granted relief, after a three-day evidentiary hearing, on 2 Petitioner’s competency to stand trial claim and his penalty phase ineffectiveness of counsel claim. Green v. Davis, 479 F. Supp. 3d 442, 448 (S.D.Tex. 2020) (“Green I”). 8. On April 13, 2023, the Fifth Circuit reversed the District Court’s decision to order relief. Green v. Lumpkin, 2023 U.S. App. LEXIS 8894, *1 (5th Cir. 2023) (“Green II’). The bases for reversal were procedural; according to the Panel, Petitioner had not shown that State Habeas Counsel had abandoned him under Maples and, further, the Panel was foreclosed by Fifth Circuit precedents from considering Petitioner’s mental illness an excuse for procedural default. Jd. at 12 & n. 2. 9. Relief in the District Court followed a six-day evidentiary hearing in which the District Court heard from multiple family members, trial counsel, both prosecutors, inmates and forensic psychologists from each side. Green I, 479 F. Supp. 3d at 463. As the District Court found, the developed record showed state habeas counsel never contacted Petitioner and filed, at the last minute, a state habeas application containing three claims already considered and denied on direct appeal, along with four other skeletal claims consisting in headings with no argument or authority. Id. at 459. 10. The state application therefore was not cognizable. Id. at 460. State habeas counsel promised to investigate the skeletal claims after the filing deadline but instead of doing so, he filed a pleading repudiating each one with the declaration that he could not in good faith argue for relief for his death sentence client. Id. at 460461. 11. Because Petitioner represented himself, the District Court had the benefit of an extensive and rich record of Petitioner’s speech. Id. at 482. With the aid of expert forensic testimony, the District Court found substantial evidence that Petitioner suffered at the time of trial and thereafter from a debilitating formal thought disorder definitive of schizophrenia. Jd. 473. The diagnosis of schizophrenia had nonetheless remained completely unknown to the courts until federal proceedings commenced. One reason for the belated discovery is that state habeas counsel suppressed and misrepresented his own client’s psychiatric records. Id. 460. 12. Six years after he filed Petitioner’s non-cognizable state ha