In Re: Christopher Sepulvado, 707 F.3d 550

Background

Sepulvado was convicted and sentenced to death for first-degree murder of his six-year-old stepson in 1993; conviction and sentence affirmed on direct appeal.
He pursued state and federal post-conviction relief; the federal district court denied habeas relief and denied a COA.
Nearly a decade later, he filed a second-in-time federal habeas petition under 28 U.S.C. § 2241, which the district court treated as “successive.”
The district court transferred the petition and related motions to the Fifth Circuit for authorization to file a successive petition under § 2244(b)(3).
Sepulvado appeals the transfer order, seeking (i) relief on the habeas petition and related motions, and (ii) a certificate of appealability (COA); execution is scheduled for February 13, 2013.
The court affirms the transfer order, dismisses the petition and amended motion to appoint counsel, denies the stay, and dismisses the COA request, noting Martinez does not apply to Louisiana prisoners and that authorization under § 2244(b)(3) is required for a successive petition.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the court has appellate jurisdiction to review the district court's transfer order.	Sepulvado contends the circuit lacks jurisdiction to review the transfer order; he seeks COA and related relief.	The circuit is the proper review conduit for the transfer order under controlling precedent.	We have jurisdiction to review the transfer order and related motions.
Whether Sepulvado’s second-in-time petition is “second or successive” under AEDPA §2244(b).	Sepulvado contends Martinez-based doctrine may render his claims viable and not barred as successive.	Martinez does not apply to Louisiana prisoners, and the petition is an abuse of the writ because it raises or could have raised claims earlier.	The petition is successive; not authorized without §2244(b)(3) authorization.
Whether Martinez applies to provide cause for procedural default or to extend rights to post-conviction counsel in this Louisiana case.	Sepulvado relies on Martinez to show ineffective post-conviction counsel created cause for defaulting certain claims.	Martinez does not apply to Louisiana or to the asserted claims; it does not create a constitutional right to post-conviction counsel.	Martinez does not apply; it does not cure the default or justify relief here.
Whether Sepulvado is entitled to a stay of execution while his petition is litigated.	Sepulvado seeks a stay to avoid execution.	Stayed relief is not warranted where jurisdiction is lacking and the state has a strong interest in enforcing judgments.	No stay; lack of jurisdiction precludes relief.
Whether Sepulvado properly sought a COA in circuit after district court did not rule on COA.	Sepulvado asserts COA may be sought in the circuit court.	COA must be ruled on by the district court first; lack of district ruling deprives circuit of jurisdiction for COA.	COA request dismissed for lack of district-court ruling; no jurisdiction to review COA here.

Key Cases Cited

Panetti v. Quarterman, 551 U.S. 930 (2007) (definition of 'second or successive' and its limits; pre-AEDPA context guidance)
Slack v. McDaniel, 529 U.S. 473 (2000) (habeas petition filed after initial petition may not be second or successive if not adjudicated on the merits)
Martinez v. Ryan, 132 S. Ct. 1309 (2012) (ineffective-assistance-of-counsel in collateral proceedings; limited to initial-review collateral proceedings; not applicable here for Louisiana prisoners)
In re Cain, 137 F.3d 234 (1998) (establishes standard for determining whether a petition is second or successive)
Adams v. Thaler, 679 F.3d 312 (2012) (addressing §2244(b)(3) authorization and related sequential requirements)
Ibarra v. Thaler, 687 F.3d 222 (2012) (Martinez applicability; discusses state access to ineffectiveness claims on direct appeal vs collateral proceedings)
Bradford v. Cozby, ? (?) ( cited for jurisdictional framework in transfer/appellate review (unhelpful placeholder))