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Simon v. McCarty

United States District Court, N.D. Mississippi, Delta Division

December 22, 2014

ROBERT SIMON, JR., Petitioner,
v.
RICK McCARTY[1] and JIM HOOD, Respondents.

MEMORANDUM OPINION AND ORDER

SHARION AYCOCK, District Judge.

Petitioner Robert Simon, Jr., a death-row inmate in the custody of the Mississippi Department of Corrections, has filed a petition, as amended, for writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his competence to be executed under the standards as set forth in Ford v. Wainwright, 477 U.S. 399 (1986) and Panetti v. Quarterman, 551 U.S. 930 (2007). Having held an evidentiary hearing in this cause where the Court heard witness testimony and reviewed exhibits, and having considered the parties' pleadings and the applicable law, the Court concludes that the instant petition should be denied, for the reasons that follow.

I. Procedural History[2]

In 1990, Robert Simon, Jr., was convicted and sentenced to death for the murder of three family members in Marks, Mississippi. By 2011, Simon had exhausted State and Federal avenues to review his convictions and death sentences. On March 21, 2011, the State of Mississippi filed a motion to set an execution date for Simon. Approximately one week later, on March 29, 2011, Simon filed a response to the State's motion alleging that he received a head injury on or about January 7, 2011, that renders him incompetent to be executed. A few days later, Simon filed with the Mississippi Supreme Court a motion for leave to proceed in the trial court on a petition for post-conviction relief to determine his competency to be executed. He also requested resources to secure an expert evaluation. On May 5, 2011, the Mississippi Supreme Court denied Simon's motion, and it granted the State's motion to set an execution date. Simon's execution was set for May 24, 2011.

On May 13, 2011, Simon filed a federal habeas petition and motion to stay his execution on the ground that he is presently incompetent to be executed under the standards set forth in Ford v. Wainwright 477 U.S. 399 (1986) and Panetti v. Quarterman . U.S. 930 (2007).[3] On May 20, 2011, this Court denied Simon's motion to stay and dismissed his petition for writ of habeas corpus, but it granted a Certificate of Appealability on Simon's substantive claim, as well as his claim that his due process rights were violated by the Mississippi Supreme Court's refusal to grant an evidentiary hearing where his competency could be assessed. On May 24, 2011, the date of his scheduled execution, the Fifth Circuit Court of Appeals granted Simon's motion to stay his execution in order to consider his appeal. On March 1, 2012, the Fifth Circuit reversed the denial of the petition and remanded the case for further proceedings, finding that the procedures employed failed to provide Simon a fair hearing on the issue of his competence to be executed. Simon v. Epps, No. 11-70015, 463 F.Appx. 339, 347 (5th Cir. 2012) (holding "that the procedures in this case, which allowed the State to present expert evaluations while Simon was prevented from presenting countervailing expert evaluations, violated fundamental fairness and due process").

On May 23, 2012, this Court, sua sponte, entered an order setting deadlines and authorizing Simon funds to retain the services of Dr. John Goff[4], a clinical psychologist and neuropsychologist, to investigate Simon's Ford/Panetti claim. ( See ECF No. 21). The Court set a deadline for Simon to file an amended petition on or before August 17, 2012, and it ordered Simon to attach to his amended petition a report prepared by his expert that specifically addressed "the expert's opinion as to Simon's present competency to be executed." ( See id. ). The Court subsequently granted Respondents' request to have psychologist Dr. Gilbert Macvaugh examine Simon to determine whether Simon is competent to be executed.

Thereafter, Simon filed an amended petition for habeas corpus relief asserting that he is incompetent to be executed, and Respondents filed an answer disputing Simon's claim. On October 3, 2013, this Court held an evidentiary hearing, where it heard live testimony and received exhibits. The parties filed post-hearing briefs. After reviewing the briefs, the Court ordered supplemental briefing on the burden of proof in this matter, which the parties have provided. This matter is ripe for review.

II. The Issue of Deference

In its opinion remanding this case, the Fifth Circuit held "that under the facts and circumstances of this case, set out in this opinion, the Mississippi Supreme Court unreasonably applied clearly established federal law by failing to apply fundamental due process principles to the first stage of Simon's competency evaluation. The process that Simon received deprived him of a meaningful opportunity to make a substantial threshold showing of incompetence and thus violated his due process rights." Simon, 463 F.Appx. at 349. Accordingly, this Court determines the issue of Simon's competency to be executed without application of the deferential standards of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See, e.g., Panetti, 551 U.S. at 953-54; Ford, 477 U.S. at 418 (holding that where the state's procedures for determining competence or sanity are inadequate, the petitioner is entitled to a de novo hearing on his competency to be executed).

III. Standard for Competency to be Executed

The Eighth Amendment to the United States Constitution, applicable to the states through the Fourteenth Amendment, prohibits the execution of a person who lacks a rational understanding of "the fact of [his] impending execution" and "the reason for it." Ford v. Wainwright, 477 U.S. 399, 422 (1986) (Powell, J., concurring in part and concurring in the judgment); Panetti v. Quarterman, 551 U.S. 930, 934 (2007); see also Billiot v. Epps, 671 F.Supp.2d 840, 853 (S.D.Miss. Nov. 3, 2009) (framing the competency to be executed inquiry as "whether the defendant has a rational understanding of his conviction, his impending execution, and the relationship between the two").

Among the various rationales for the constitutional restriction is that the execution of an insane prisoner serves no retributive purpose. See Ford, 477 U.S. at 408; Panetti, 551 U.S. at 958. In Panetti v. Quarterman , the United States Supreme Court noted that "[t]he potential for a prisoner's recognition of the severity of the offense and the objective of community vindication are called in question... if the prisoner's mental state is so distorted by a mental illness that his awareness of the crime and punishment has little or no relation to the understanding of those concepts shared by the community as a whole." Panetti, 551 U.S. at 958-59. Therefore, where a condemned's mental state is such that he "has no comprehension of why he has been singled out and stripped of his fundamental right to life[, ]" his execution serves no retributive purpose and is prohibited. Panetti, 551 U.S. at 957; see also Panetti v. Stephens, 727 F.3d 398, 410 (5th Cir. 2013) (finding that the district court applied the correct standard when it determined that a condemned must possess "both a factual and rational understanding of his crime, his impending death, and the causal retributive connection between the two").

The Supreme Court has declined to establish a rule governing all competency determinations, and it has declined to set the parameters of what a "rational understanding" requires. Panetti, 551 U.S. at 959 (acknowledging that "a concept like rational understanding is difficult to define"). Beyond the constitutional floor established by Ford and Panetti, the decision of how to appropriately restrict death sentences of incompetent or insane prisoners has been left to the states. See Ford, 477 U.S. at 416-17. Under Mississippi law, a prisoner is incompetent for purposes of execution if "the court finds that the offender does not have sufficient intelligence to understand the nature of the proceedings against him, what he was tried for, the purpose of his punishment, the impending fate that awaits him, and a sufficient understanding to know any fact that might exist that would make his punishment unjust or unlawful and the intelligence requisite to convey that information to his attorneys or the court." See Miss. Code Ann. § 99-19-57(2)(a), (b).

The Mississippi statute makes no reference to the burden of proof.[5] After the parties in this case filed their post-hearing briefs, the Court ordered supplemental briefing, noting that Mississippi case law imposes the burden of proving incompetency to execute on the movant by both "reasonable probability" and "preponderance of the evidence" standards in various cases. ( See ECF No. 64, citing Billiot v. State, 478 So.2d 1043, 1045 (Miss. 1985) (reasonable probability); Johnson v. State, 508 So.2d 1126, 1127 (Miss. 1987) (reasonable probability); Billiot v. State, 655 So.2d 1, 14-15 (Miss. 1995) (preponderance of the evidence)). In response to the Court's order, Simon maintains that he bears the burden of proof on this issue by a reasonable probability, the less onerous of the two standards, while Respondents maintain that Simon bears the burden of proof on the issue by a preponderance of the evidence.

The Court finds persuasive Respondents' argument that Mississippi courts apply the "reasonable probability" standard at the application stage where a movant is seeking an evidentiary hearing, but that the "preponderance of the evidence" standard applies to address the proof adduced after an evidentiary hearing has been held. Accordingly, the Court finds that in this case, the burden falls on Simon to establish his incompetence to be executed by a preponderance of the evidence. See, e.g., Billiot v. State, 655 So.2d 1, 14-15 (Miss. 1995) (requiring petitioner to show entitlement to relief by a preponderance of the evidence following remand for evidentiary hearing); Miss. Code Ann. § 99-39-23(7) (stating that no post-conviction relief may be granted under the section unless claim proved by a preponderance of the evidence).

IV. Reports of Simon's Condition[6]

Simon contends that in January 2011, he suffered a brain injury that resulted in a global amnesia, which prevents him from understanding the reason for his convictions and execution, and which renders useless any retributive purpose to the death penalty. Respondents contend that Simon has failed to carry the burden of proof as to this issue, as the expert opinions in this case suggest that he is feigning incompetence.

Simon does not allege a long history of mental illness, nor does he assert that he is suffering with symptoms of psychosis, such as delusions or hallucinations. Rather, he alleges that he has lost his memory. Therefore, the Court's inquiry is whether Simon's alleged amnesic condition prevents a rational understanding of his punishment and the reasons for it. The following evidence of Simon's current medical condition has been presented to the Court for consideration.

A. Attached Medical Records

At around 5:45 a.m. on January 7, 2011, Simon was transported to the prison infirmary by ambulance after a "man down" notice was issued. ( See Amend. Pet. Ex. D, 21). At that time, Simon was described as nonverbal, and it was noted that Simon had bruises spiraled down his face. ( Id. ). Simon was placed under observation until Dr. Juan Santos examined him at around 7:30 a.m., at which time Simon stated that he did not understand English. ( Id. ). Dr. Santos recorded in a progress note that Simon "[c]laimed he slipped and fell, " and he noted that Simon had "sustained superficial scratches" on his forehead and the right side of his face. ( Id. at 19). Shortly thereafter, Simon was discharged with a diagnosis of "Hypertension." ( Id. at 22).

Simon was readmitted to the infirmary around 11:00 a.m. the same day after an apparent loss of consciousness. ( Id. at 17). He was admitted with complaints of "confusions, " and he reportedly exhibited an "[a]ltered neurological function" and was speaking with "word salad." ( Id. at 7, 18). A nursing note recorded that at 12:35 p.m. Simon stated that he did not know what had happened to him, and it noted that he was unable to provide personal data and claimed that he could not understand English. ( Id. at 28). Prison physician, Dr. Ho Young Kim, noted that Simon was complaining of confusion, an inability to recall what had happened, and severe headache. ( Id. at 12). Simon was prescribed Tylenol as needed for ten days. ( See, e.g., id. at 9).

Simon was admitted to the infirmary. A nursing progress report stated that Simon was "alert and verbally responsive" at 7:15 p.m. on January 7, 2011, and an entry at 11:55 p.m. noted that Simon was "asleep in bed, no further complaints made, status unchanged, [with] no incidence of fall and loss of consciousness[.]" ( Id. at 25). At around 1:10 a.m. on January 8, 2011, however, Simon was described as disoriented and asking questions such as "what happened?" and "where am I?" ( Id. at 37). Another record states that Simon was able to "respond appropriately to verbal commands" and experienced no loss of consciousness or confusion during the 8:00 a.m. to 4:00 p.m. shift. ( Id. at 35). A progress note recorded that at 6:15 p.m. on January 8, 2011, Simon as "awake in bed [and] alert, " though he would apparently "just stare" when asked a question. ( Id. at 33). The nurse reporting at 6:15 p.m appended the progress report at approximately 11:30 p.m. to record that it had been reported to her that Simon "did not touch his food." ( Id. at 34).

On January 9, 2011, at approximately 6:00 a.m., Simon refused to allow his vital signs to be taken[7] and refused his medications. ( See id. at 41). It was reported that Simon presented as disoriented at that time, and that he stated that the medications provided to him were not his. ( Id. ). A nursing note records that at 7:16 a.m., Simon was "alert & oriented x3, patient accepted meds, pleasant and cooperative[.]" ( Id. at 43). At 10:40 a.m., Simon was described in a nursing note as "alert & oriented to person & place at this time, states he don't have any water in his cell, security did check and the water is operational, " and it was noted that he again refused his vital signs. ( Id. at 45).

On January 10, 2010, Simon refused vital signs and his medications. ( See id. at 49-52; 72). At 10:45 a.m. he asked if he could be discharged "back to camp." ( Id. at 57). Simon met with a psychologist on January 11, 2011, who reported that Simon "states he is OK" and who noted that Simon was alert and oriented, and that he denied hallucinations and suicidal or homicidal ideations. ( Id. at 64). On or about January 11, 2011[8], Simon was discharged with a diagnosis of Hypertension, and Dr. Kim noted that Simon was "doing well" at the time of discharge without further confusion or loss of consciousness. ( Id. at 55-56).

On February 24, 2011, Dr. Kim requested a psychiatric consult for Simon. ( Id. at 88). The request noted that Simon had displayed "[v]ery unusual behavior" in the previous two months, particularly in that Simon repeated words and "talk[ed] unusual[ly]." ( Id. ). Dr. Kim Nagel conducted a psychiatric assessment of Simon on March 1, 2011. ( Id. at 97). He concluded:

The inmate has made a change in his communication pattern in the last couple months. He has done things such as substitute the word "me" in place of "I" when he refers to himself. When I asked him about this, he said "they mean the same thing don't they." In effect he is talking baby talk. He realizes this and it appears that staff like the case manager Ms. Craft, who sees him fairly often, see this as a coping mechanism to deal with prison. He referred to one of his friends in a neighboring cell helping him out and he likes this. He was in the hospital for several days at the beginning of this change. He did not like the isolation of the hospital and said that there was nothing wrong with him. At present he seems to be totally in control of this desire to change his method of communication and has no complaints about his current status in general. I will continue to check on him on occasion, and especially make sure that Ms. Craft, who has known him for years, is comfortable with his functioning. He is oriented and able to care for himself adequately at present. I do not see any current need for further intervention.

( Id. at 97).

A few days later, on March 21, 2011, the United States Supreme Court denied Simon's petition for writ of certiorari, Simon v. Epps, 131 S.Ct. 1677 (2011), and the Mississippi Attorney General moved to set an execution date. That same day, Dr. Barry Beaven met with Simon at the request of the prison superintendent, Mr. Sparkman, in order to evaluate Simon's "memory and confusion since a previous fall." ( Id. at 95). He noted that Simon reported always having a headache. ( Id. ). In describing his observations of Simon, Dr. Beaven reported that Simon "[d]oesn't know president, home phone, day/year, age, birthday. Doesn't know mother[']s name. Can't spell world backwards. Doesn't remember ball, flag, tree. Says me want this - 3rd person speech." ( Id. at 95). Dr. Beaven noted:

[Simon] asked about his TV and was told that it hadn't come in yet. He knew that his closthes [ sic ] size was too small. He does have apparent memory about things he wanted. Direct questioning made all responses invalid.

( Id. at 96). Dr. Beaven diagnosed Simon with headaches and memory disorder, both of an unknown type.[9] ( Id. at 95).

B. Simon's Attorneys

In early 2011, one of Simon's attorneys, T.H. ("Tom") Freeland, IV, received a letter from another prisoner in Simon's unit stating that something was "seriously wrong" with Simon after he fell and injured his head. (Amend Pet. Ex. A, Aff. of Tom Freeland dated March 9, 2011, "First Freeland Aff."). On March 16, 2011, Freeland and one of his associates, Forrest Jenkins, visited Simon in prison in order to discuss Simon's case with him, including the possibility that an execution date might be set in the near future. ( See id. at 2-3). Freeland states that at that visit, Simon did not appear to recognize him, even though Freeland had represented Simon for over ten years at that point and had met with him numerous times in the past. ( Id. at 2). Jenkins, who had never met Simon prior to March 16, 2011, also states that Simon acted as though he had never met Freeland before, and that Simon's eyes were glassy and unfocused. (Amend. Pet. Ex. B., Aff. of Forrest A. Jenkins dated March 28, 2011, "Jenkins Aff.").

Freeland and Jenkins state that during their March 2011 meeting, Simon seemed not to recall the names of his family members, seemed not to recall the names or amounts of his medications, and appeared not to understand that his attorneys were not meeting with him to get him out of prison, but rather, to stop the State of Mississippi from carrying out his execution. ( See First Freeland Aff.; Jenkins Aff.). Jenkins notes that the meeting "reached a point where [Simon] simply shut down and stared at us with a blank expression" when asked about his medication. (Jenkins Aff. at 2, ¶ 4). She states that Simon nodded his head to some of her statements, but that he appeared to nod in agreement just to be agreeable. ( Id. at 2-3, ¶ 6). She states that Simon could not recall the names of his family members, even after Freeland prompted Simon by giving him the names of Simon's mother and a brother. ( Id. at 3, ¶7).

Jenkins reports that Simon asked "Me?" when it was explained to him that an execution date could be set for him, and that he asked whether he was going to get out of prison. ( Id. at 3, ¶ 7, ¶8). Jenkins states that Simon became very emotional and started to cry when he was informed that he would not be released from prison, and that he asked Freeland and a guard if Freeland was really his attorney. ( Id. at 3-4). Both attorneys report that Simon became uncommunicative and distraught after learning of the reason for their visit, and that he thereafter called the guard and ended the meeting. (First Freeland Aff. at 2; Jenkins Aff. at 4).

In an affidavit dated September 14, 2012, Freeland states that he had recently spoken with Simon, and that the conversation was essentially the same as it had been one year prior. (Amend. Pet. Ex. K, Aff. of T.H. Freeland, IV dated September 14, 2012, "Third Freeland Aff.").[10] Freeland reports: "[Simon] stated that he did not know me, although I have been his lawyer for over twelve years, and does not understand why I am representing him or remember anything about my representation." ( Id. at ¶ 3).

Respondents' expert, Dr. Macvaugh, had several telephone conversations with Freeland as part of his evaluation into Simon's competency to be executed. Dr. Macvaugh notes that he asked Freeland to speak with Simon and encourage Simon's cooperation prior to Dr. Macvaugh's second attempt to evaluate Simon.[11] ( See Response to Amend. Pet. Ex. B, Report of Gilbert S. Macvaugh, III, "Macvaugh Report" at 56). According to Dr. Macvaugh, Freeland stated that Simon, while accepting of the fact that Freeland is his attorney, does not appear to recognize Freeland. ( Id. ). Dr. Macvaugh reports that Freeland expressed his belief that Simon does not understand that he is facing possible execution, and that Freeland described Simon as confused by Freeland's attempt to explain the process. ( See id. ). Dr. Macvaugh reports that Freeland spoke with Simon in advance of Dr. Macvaugh's second meeting with Simon and encouraged Simon to cooperate with the evaluation. ( See id. ).

C. Mary Craft Cotton

At the time of Simon's alleged injury in January 2011, Mary Craft Cotton had been his on-and-off caseworker at the Mississippi State Penitentiary at Parchman ("Parchman") for approximately ten years. ( See, e.g., Amend. Pet. Ex. C., Aff. of T.H. Freeland, IV, dated April 19, 2011, "Second Freeland Aff."; Macvaugh Report at 28). Freeland, who was unable to obtain an affidavit from Cotton at the time he filed the original petition in this matter, submitted his own affidavit recounting the details of a telephone conversation he had with Cotton on April 19, 2011. (Second Freeland Aff.).[12] Freeland maintains that Cotton informed him that upon Simon's return from the infirmary, Simon had to be reintroduced to other inmates and shown around his housing unit, despite the fact that he had been incarcerated on the same unit for decades. ( Id. at ¶¶ 6-7). Freeland reports that Cotton stated that Simon could not remember who his friends and family were, and that he could not remember how to perform previously well-known tasks, such as how to use his prison account. ( Id. at ¶¶ 7-9). He notes that Cotton reported that Simon could remember people that he had been "reintroduced" to after his return to the hospital, although he failed to show any signs that he knew them before his hospitalization. ( Id. at ¶ 9). Freeland states that Cotton reported that Simon's condition had remained virtually unchanged since his return from the hospital. ( Id. at ¶6).

In his report, Dr. Macvaugh references several Mississippi Department of Corrections ("MDOC") records from Simon's "Offender Log" containing entries created by Cotton. These entries, as recited by Dr. Macvaugh, report the following:

• April 6, 2011 - Simon was "given an account statement from 3-1-11 to present upon request." (Macvaugh Report at 29).

• May 19, 2011 - "Offender Simon slipped a noose over Chaplain Whisnant's head and around his neck in an attempt to strangle him to death while Chaplain Whisnant stood at his cell with a bowed head, praying with him. Chaplain Whisnant was able to break the string before any damage was done." ( Id. at 29).

• May 24, 2011 - Cotton notes that Simon had been moved to Unit 17 on May 20, 2011, to await scheduled execution on May 24, 2011. ( Id. ).

• May 24, 2011 - Cotton notes that Simon received a stay of execution and was returned to death row. ( Id. ).

• May 25, 2011 - Cotton inquired whether Simon needed anything, and he reportedly stated "that he will be alright in a little while. He further advised that he needed his TV that was never found. He stated that he was not going to buy another TV." ( Id. ).

• May 26, 2011 - "Was advised that Offender Simon stated on the tier after he returned from Unit 17 that he had let one white boy get away, but that he was going to kill a white boy before they kill him." ( Id. ).

• May 27, 2011 -

Offender advised that he was not doing okay. He stated, Me still need my TV.' CM [case manager] asked him what happened. He stated, TV gone when they said taking me to see attorney but took me and tried to kill me and call me monster.' He was advised that CM would follow up with Capt. Morris. Offender Simon then stated, Not do any good. Me know how to get TV. Say I'm mean and a monster. Now me going hunting.' Administration was advised. ( Id. ).

• August 17, 2011 - Cotton noted that Simon assaulted another inmate, Offender Keller, "by leaving his assigned area and r[unning] over to where offender Keller was seated on the floor. Offender Simon tried to maneuver his waist chains around offender Keller's neck in an attempt to choke him... Offender Keller verified that he has never been housed around Offender Simon before and had never seen him before.... [T]hey did not have any conflict." ( Id. ).

• August 19, 2011 - Cotton records Simon's version of the events that took place on August 17, 2011 as follows:

He stated, I came out cell and saw Doss' cell opened. Me saw him setting on floor and me went to get him. When me get there, wasn't Doss. Since me was there, me say, him white. Might as well get him.' Me coulda hurt him bad, but me didn't.["] When asked why he wanted to get offender Doss, he stated, "Had words. It lots more of them. Me gonna git. They talk bad to me. Me can't argue, but me don't forget. Some say glad me wasn't executed. One say, "I don't like you, Simon, but glad you not executed." But shouldn't be glad. Me still gonna git em. Next time me gonna git em bad.' [W]anted to know his account balance. He was advised. He advised that he had not eaten since he was behind the solid door because his spoon was taken. He wanted to know if his spoon was supposed to have been taken. Lt. Binion advised him that he is on property restriction, but he would give him a spoon to eat with. He wanted to know the protocol for property restriction in regards to his necessities. Lt. Binion advised him. He stated that he wanted to remain behind the solid door and did not want to return to his cell. He was advised that he cannot remain behind the solid door. He will have to return to his assigned cell when he has been released off detention. He stated, "Me know how to stay." And he threw up his thumb and winked his eye.

( Id. at 29-30).

• September 29, 2011 - Cotton reports that Simon "wanted to know who could visit him. CM reviewed his approved visiting list and advised him that two lawyers, Thomas Freeland and Forrest Jenkins, were approved to visit him." ( Id. at 30).

• October 13, 2011 - "Lt. Binion advised that when Officer Taylor and he took Offender Simon to the Clinic today, Offender Simon stated, Me hate you brought me cause me came to choke Doctor. Now me can't do it.' Area I Administration was advised." ( Id. ).

• December 2, 2011 - "Offender wanted to know if a Christmas package had been ordered for him." ( Id. ).

• May 15, 2012 - "Offender waved at CM and stated, Hey, nice lady. Can you get me on your machine' and see if one of those special packages for me?' He ended with a big grin and one thumb up. CM advised that CM would check for him. He was advised that a summer package had been ordered on 5/9/12, and had been shipped." ( Id. ).

• July 18, 2012 - Cotton recorded the following about a meeting with Simon:

After CM had exited A-zone, CM was called back to the zone to see offender Simon. CM advised him that he was asleep when CM first walked through and re-affirmed that he did not want to be awakened if he was asleep. Offender stated, "No, don't wake me up. Me try to do orange sheet for store but ended up with lots stuff me not need. Curt and Gary did sheet for me. (He's referring to Henry Curtis Jackson and Gary Simmons who were both executed last month.) Got no convict to help me. Will you help me?" CM agreed to assist him. He asked CM what was her name. CM told him. He replied, "Me call you Bank Account Lady.' He was advised that CM would get him to her office so they could complete his canteen order form. He was advised to bring his list price with him.

( Id. ).

• July 18, 2012 - Cotton recorded that she assisted Simon with his canteen order form:

CM advised [Simon] of the cost including taxes. He then asked, "Me paying taxes cause you doing it?" CM explained to him that he would have to pay taxes regardless of who helped him to complete the order form. CM advised him that he had $56.56 left. CM asked if he wanted to order anything else. He stated, "No, me don't want nothing else." Offender was given the completed form to sign his name and to give to 3rd Watch staff.

( Id. ).

• August 17, 2012 - Cotton records that she informed Simon of his birthdate and age upon his request. He also inquired whether MP3 players had an electrical cord or would need batteries, and Cotton stated that she forwarded the inquiry to Mr. Flemmons. ( Id. ).

• August 29, 2012 - "Offender requested assistance with completing his canteen order form. CM completed form for him. He told CM When white inmate come out cell on black woman guard, me almost cry cause me couldn't get to him. Me thought he was going to hurt her.'" ( Id. at 31).

• September 14, 2012 - Cotton notes the following regarding a statement Simon made to her referring to his recent meeting with defense expert, Dr. John Goff:

Offender Simon wanted CM to call his attorney and let him know that the man he met with did not come back like he said he would. He told CM about his interview last week. He stated, "Man say, Mr. Simon, don't fear me; here to help you. Your attorneys sent me.' Me not scared of him. Me thought he ...

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