8 F.4th 382
5th Cir.2021Background
- Paul David Storey was convicted of capital murder in Texas and sentenced to death; he later learned prosecutors allegedly misrepresented that the victim’s family supported the death penalty despite the Cherrys opposing it.
- Storey filed a successive state habeas petition raising due process and Eighth Amendment claims based on that alleged prosecutorial misconduct; the Texas Court of Criminal Appeals dismissed it as an abuse of the writ.
- In federal court Storey filed (1) a purported Rule 60(b) motion and (2) a motion invoking the All Writs Act seeking to vacate the TCCA’s procedural-bar ruling and remand for merits review; the district court dismissed both for lack of jurisdiction.
- Storey then filed a new § 2254 petition raising substantially the same prosecutorial-misconduct claims; the district court transferred it to the Fifth Circuit as a “second or successive” petition under § 2244(b).
- Storey’s federally appointed counsel sought reimbursement under 18 U.S.C. § 3599 for work on Storey’s successive state habeas proceedings; the district court denied compensation.
- The Fifth Circuit consolidated Storey’s appeals and affirmed the district court: (a) decline to issue COAs for the Rule 60(b)/All Writs dismissals; (b) affirmed the transfer/dismissal of the new § 2254 petition as successive; (c) affirmed denial of § 3599 compensation.
Issues
| Issue | Plaintiff's Argument (Storey) | Defendant's Argument (Respondent/State) | Held |
|---|---|---|---|
| Whether a COA is required to appeal the district court’s dismissal of Storey’s Rule 60(b) motion as an unauthorized successive habeas petition | Gonzalez/Harbison allow direct appeal without COA; no COA should be required for jurisdictional dismissal | Fifth Circuit precedent requires a COA to appeal Rule 60(b) dismissals construed as successive petitions | COA required; court declined to issue one because dismissal was not debatable |
| Whether the Rule 60(b) motion and All Writs Act motion could be used to vacate a state-court procedural-bar ruling and remand for merits | The district court can vacate the TCCA’s bar ruling via Rule 60(b) or the All Writs Act to permit merits review | Rule 60(b) and the All Writs Act cannot be used to circumvent § 2244; motions asserted new substantive relief and were successive petitions | Motions were properly dismissed for lack of jurisdiction as disguised successive § 2254 petitions |
| Whether the district court erred by transferring Storey’s new § 2254 petition to the Fifth Circuit as "second or successive" under § 2244(b) | The Magwood/new-judgment exception and other doctrines mean this petition is not successive | The petition attacks the original judgment and is second-in-time and therefore successive under § 2244(b) | Transfer was proper; petition is successive and was dismissed for lack of authorization |
| Whether appointed federal counsel are entitled to § 3599 compensation for work on successive state habeas proceedings | Counsel argue their appointment covered subsequent state postconviction work and seek reimbursement | Harbison limits § 3599(e) to proceedings subsequent to federal habeas; state habeas after federal habeas is a new proceeding outside § 3599(e) | Denial of compensation affirmed; successive state habeas work falls outside § 3599 scope |
Key Cases Cited
- Gonzalez v. Crosby, 545 U.S. 524 (distinguishing proper Rule 60(b) motions from successive habeas petitions)
- Harbison v. Bell, 556 U.S. 180 (interpreting § 3599 and holding appointed counsel may handle state clemency but limiting § 3599’s reach as to state habeas after federal habeas)
- Magwood v. Patterson, 561 U.S. 320 (holding resentencing that produces a new judgment is not a successive petition)
- Panetti v. Quarterman, 551 U.S. 930 (explaining limits on successive-petition treatment for certain claims)
- Slack v. McDaniel, 529 U.S. 473 (standards for issuing a COA on procedural rulings)
- Pa. Bureau of Corr. v. U.S. Marshals Serv., 474 U.S. 34 (All Writs Act does not override statutory remedies)
- Vialva v. United States, 904 F.3d 356 (5th Cir.) (Fifth Circuit precedent requiring COA to appeal Rule 60(b) dismissals construed as successive)
- Gilkers v. Vannoy, 904 F.3d 336 (5th Cir.) (applying Gonzalez to distinguish proper Rule 60(b) relief and successive petitions)
- In re Hensley, 836 F.3d 504 (5th Cir.) (explaining "second or successive" as a term of art)
- Blackman v. Davis, 909 F.3d 772 (5th Cir.) (holding Brady/Giglio/Napue claims in second-in-time petitions are successive)