Beunka ADAMS, Petitioner-Appellee, v. Rick THALER, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellant. In re Beunka Adams, Petitioner. Beunka Adams, Petitioner-Appellant, v. Rick Thaler, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee.
Nos. 12-70010, 12-40436 and 12-70011
United States Court of Appeals, Fifth Circuit
April 25, 2012
679 F.3d 312
Ellen Stewart-Klein, Asst. Atty. Gen., Postconviction Lit. Div., Austin, TX, for Respondent-Appellant.
Before KING, ELROD and HAYNES, Circuit Judges.
KING, Circuit Judge:
Beunka Adams was convicted of capital murder and sentenced to death in Texas state court. He is scheduled to be executed on April 26, 2012. On April 13, 2012,
On April 23, 2012, the district court granted Adams‘s motion to stay his execution pending the court‘s disposition of Adams‘s Rule 60(b)(6) motion. In the separate action related to Adams‘s second-in-time federal habeas petition, the district court transferred the case to this court, in order for us to determine in the first instance whether Adams‘s habeas petition is successive. On April 24, 2012, Rick Thaler filed a motion to vacate the stay of Adams‘s execution. For the following reasons, we VACATE the district court‘s grant of a stay of execution; we DISMISS Adams‘s successive federal habeas petition; and we DENY his motion for a stay of execution.
I. FACTUAL AND PROCEDURAL BACKGROUND
Beunka Adams (“Adams“) was convicted of capital murder and sentenced to death in Texas state court.1 The Texas Court of Criminal Appeals (“TCCA“) affirmed Adams‘s conviction and sentence on direct appeal, and the Supreme Court denied review. Adams v. State, No. AP-75023, 2007 WL 1839845 (Tex.Crim.App. June 27, 2007), cert. denied, 552 U.S. 1145, 128 S.Ct. 1071, 169 L.Ed.2d 816 (2008). Adams filed
Adams filed a second state habeas application in 2008, asserting two new claims related to the jury instructions given during the sentencing phase of his trial. Specifically, he asserted that he was deprived of his Sixth and Fourteenth Amendment rights to effective assistance of counsel by trial counsel‘s and appellate counsel‘s failure to ensure that the jury was properly instructed in the punishment phase of his trial.2 While the subsequent state application was pending, Adams filed a federal habeas petition asserting ten claims for relief, including the two claims presented in his second state habeas application. Adams simultaneously filed a motion to stay and abate the federal proceedings until the TCCA ruled on the second application. The federal district court granted the motion. A few months later, the TCCA found that the two claims in his subsequent state habeas application were procedurally barred, specifically that they did “not satisfy the requirements of
Thereafter, the district court denied Adams‘s federal habeas petition, dismissing the two claims that Adams presented in his second state habeas application and denying the remaining claims. Adams v. Thaler, No. 5:07-cv-180, 2010 WL 2990967 (E.D.Tex. July 26, 2010). The district court determined that Adams had procedurally defaulted his ineffective assistance of trial and appellate counsel claims pursuant to Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). Coleman held that “[i]n all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.” Id. Because the TCCA dismissed these claims as an “abuse of the writ“—an independent and adequate state procedural ground—the district court found that the claims were procedurally defaulted. Furthermore, the court ruled that Adams could not demonstrate “cause” to excuse the procedural default, because, pursuant to Coleman, the ineffectiveness of state habeas counsel in failing to raise these claims in Adams‘s first state habeas application did not constitute “cause.” See id. at 752-53. The court granted Adams a certificate of appealability (“COA“) on eleven issues: on the ten claims he pre-
Adams recently filed another subsequent habeas application in state court, which the TCCA dismissed as an abuse of the writ. Ex parte Adams, No. WR-68066-03, 2012 WL 476538 (Tex.Crim.App. Feb. 15, 2012). On March 13, 2012, Adams petitioned the Supreme Court for review of that dismissal and also filed a motion for a stay of execution. On February 27, 2012, Adams filed in our court a motion for authorization to file a successive petition, but withdrew that motion on March 23, 2012, several days after the Supreme Court issued its decision in Martinez v. Ryan, --- U.S. ----, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012).
In Martinez, the Supreme Court noted that Coleman held that “an attorney‘s negligence in a postconviction proceeding does not establish cause” to excuse procedural default. Id. at 1319. The Court recognized that Coleman “left open ... a question of constitutional law: whether a prisoner has a right to effective counsel in collateral proceedings which provide the first occasion to raise a claim of ineffective assistance at trial.” Id. at 1315. However, the Court did not resolve this constitutional question. Id. Instead, the Court in Martinez “qualifie[d] Coleman by recognizing a narrow exception: Inadequate assistance of counsel at initial-review collateral proceedings3 may establish cause for a prisoner‘s procedural default of a claim of ineffective assistance at trial.” Id. The Court summarized its narrow holding as follows:
Where, under state law, claims of ineffective assistance of trial counsel must be raised in an initial-review collateral proceeding, a procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective.
Id. at 1320. The Court characterized its decision as an “equitable ruling,” and not a constitutional ruling. Id. at 1319.
On April 13, 2012, Adams filed a motion in the federal district court pursuant to
Also on April 13, 2012, Adams filed a second-in-time federal habeas petition in the district court, a motion for a stay of
On April 19, 2012, Rick Thaler (“Director“), Director of the Texas Department of Criminal Justice, filed a response in opposition to Adams‘s motions for relief from judgment and for stay of execution. The Director argued that the district court should deny Adams‘s Rule 60(b)(6) motion because the Supreme Court‘s decision in Martinez was simply a “change in decisional law after entry of judgment” and does not constitute “extraordinary circumstances.” The Director also filed a motion to dismiss for lack of jurisdiction Adams‘s second-in-time federal habeas petition. The Director contended that it was “undoubtedly [a] successive” petition because his first federal habeas petition “was dismissed with prejudice challenging the same conviction” and “it contained the exact claims Adams now presents the [district court.]” The Director argued that, because Adams did not receive prior authorization from the court of appeals, the district court should dismiss Adams‘s successive petition. See
On April 23, 2012, the district court granted Adams‘s motion to stay his execution pending the court‘s disposition of Adams‘s Rule 60(b)(6) motion. In a one-page order, the court stated, “Having considered the circumstances alleged and authorities cited in the motion [for a stay of execution], the Court finds that it is well-taken and it will be granted.” The court did not rule on Adams‘s Rule 60(b)(6) motion. In the separate action regarding Adams‘s second-in-time habeas petition, the court issued an order pursuant to
On April 24, 2012, the Director filed a motion to vacate the stay of Adams‘s execution. The Director argued that the district court improperly granted a stay of execution because Adams‘s underlying claims have no merit. Furthermore, he argued that the district court improperly granted a stay of execution because it is not “reasonably likely [that] Adams[‘s] motion justifies relief from judgment,” because the Martinez decision does not con-
Finally, on April 24, 2012, Adams appealed the district court‘s transfer order, and he followed that up with a motion, filed on April 25, 2012, asking this court to establish a briefing schedule on the question whether his second-in-time habeas petition is successive. In the alternative, he asks this court to hold that his petition is not successive and to remand it to the district court for consideration. He also asks for a stay of execution.
II. DISCUSSION
A. Stay of Execution
1. Standard of Review
We review a district court‘s grant of a stay of execution for abuse of discretion. Delo v. Stokes, 495 U.S. 320, 322, 110 S.Ct. 1880, 109 L.Ed.2d 325 (1990) (“The District Court abused its discretion in granting a stay of execution.“); Lackey v. Scott, 52 F.3d 98, 100 (5th Cir.1995). The Supreme Court has stated that a “stay of execution is an equitable remedy.” Hill v. McDonough, 547 U.S. 573, 584, 126 S.Ct. 2096, 165 L.Ed.2d 44 (2006). A stay of execution “is not available as a matter of right, and equity must be sensitive to the State‘s strong interest in enforcing its criminal judgments without undue inference from the federal courts.” Id. (citations omitted). “The party requesting a stay bears the burden of showing that the circumstances justify an exercise of [judicial] discretion.” Nken v. Holder, 556 U.S. 418, 433-34, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009) (citations omitted). In deciding whether to grant a stay of execution, the district court was required to consider four factors:
(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.
Id. at 434, 129 S.Ct. 1749 (quoting Hilton v. Braunskill, 481 U.S. 770, 776, 107 S.Ct. 2113, 95 L.Ed.2d 724 (1987)); see also Buxton v. Collins, 925 F.2d 816, 819 (5th Cir.1991).
2. The District Court Improperly Granted A Stay
In granting Adams‘s motion for a stay of execution, the district court did not rule on Adams‘s Rule 60(b)(6) motion. Nor did the court explicitly address the merits of Adams‘s Rule 60(b)(6) motion. However, as explained above, in order to grant a stay of execution, the district court was required to consider four factors, including that “the stay applicant has made a strong showing that he is likely to succeed on the merits.” Nken, 556 U.S. at 434, 129 S.Ct. 1749. Therefore, in granting the stay, the district court made an implicit determination that it was reasonably likely that Adams‘s Rule 60(b)(6) motion justified relief from judgment. Thus, in order to assess whether the district court properly exercised its discretion in granting a stay, we determine whether Adams has shown a
As a preliminary matter, we determine whether the district court had jurisdiction to rule on Adams‘s Rule 60(b)(6) motion. In Gonzalez v. Crosby, 545 U.S. 524, 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005), the Supreme Court stated that a Rule 60(b) motion does not contain a habeas corpus “claim,” and thus should not be construed as a successive petition, when the motion “attacks, not the substance of the federal court‘s resolution of a claim on the merits, but some defect in the integrity of the federal habeas proceedings.” Id. at 532, 125 S.Ct. 2641 (footnote omitted). Specifically, the Court held that a petitioner does not make a “habeas corpus claim ... when he merely asserts that a previous ruling which precluded a merits determination was in error—for example, a denial for such reasons as failure to exhaust, procedural default, or statute-of-limitations bar.” Id. at 532 n. 4, 125 S.Ct. 2641. In his Rule 60(b)(6) motion, Adams challenges the district court‘s determination that his claims were procedurally defaulted. Thus, Adams‘s Rule 60(b)(6) motion is not to be construed as an improper successive habeas petition and is properly before the district court. See Williams v. Thaler, 602 F.3d 291, 305 (5th Cir.2010) (noting that the court had jurisdiction to consider petitioner‘s Rule 60(b) motion where petitioner challenged the district court‘s ruling on procedural default); Rocha v. Thaler, 619 F.3d 387, 399 n. 26 (5th Cir.2010) (same).
Next, in order to determine whether the district court properly entered a stay of execution, we assess whether Adams has demonstrated a likelihood of success on the merits of his Rule 60(b)(6) motion. Pursuant to
In contending that “extraordinary circumstances” exist to warrant Rule 60(b)(6) relief, Adams first points to the Supreme Court‘s decision in Martinez, which was issued after the district court‘s judgment. He asserts that Martinez represents a “jurisprudential sea change” in federal habeas corpus law, recognizing an exception to Coleman‘s holding that ineffective assistance of post-conviction counsel cannot constitute cause for procedural default. Also, Adams points to the “capital nature of the case and the equitable imperative that the true merit of the cause be heard” as factors that, when combined with Martinez, constitute “extraordinary circumstances” and warrant Rule 60(b)(6) relief.
Our precedents hold that “[a] change in decisional law after entry of judgment does not constitute exceptional circumstances and is not alone grounds for relief from a final judgment” under Rule 60(b)(6). Bailey v. Ryan Stevedoring Co., 894 F.2d 157, 160 (5th Cir.1990) (citations omitted); see also Batts v. Tow-Motor Forklift Co., 66 F.3d 743, 747-48 (5th Cir.1995).
Indeed, in Gonzalez, the Supreme Court concluded that a change in decisional law, concerning the interpretation of AEDPA‘s statute of limitations, after the entry of the district court‘s judgment dismissing the habeas petition did not constitute “extraordinary circumstances” under Rule 60(b)(6). The Court explained that the district court‘s “interpretation was by all appearances correct under the Eleventh Circuit‘s then-prevailing interpretation of [AEDPA].” 545 U.S. at 536, 125 S.Ct. 2641. The Court stated that “[i]t is hardly extraordinary” that, subsequent to the district court‘s judgment, the Supreme “Court arrived at a different interpretation.” Id. The Court explained that “not every interpretation of the federal statutes setting forth the requirements for habeas provides cause for reopening cases long since final.” Id. In Hernandez v. Thaler, we found that the district court properly dismissed, under then-controlling precedent, petitioner‘s habeas petition as barred under the AEDPA statute of limitations. 630 F.3d at 429. We concluded that the Supreme Court‘s later change in law regarding the calculation of AEDPA‘s limitations period—which would have rendered petitioner‘s habeas petition timely—did not constitute “extraordinary circumstances.” Id. at 430. We reasoned that “[w]ell-settled precedent dictates that [petitioner] may not use Rule 60(b)(6) to claim the benefit of the Supreme Court‘s decision in Jimenez [v. Quarterman, 555 U.S. 113, 129 S.Ct. 681, 172 L.Ed.2d 475 (2009)].” Id.
Similarly, in the present case, in denying Adams‘s initial federal habeas petition, the district court correctly determined that Adams‘s claims were procedurally defaulted pursuant to the then-prevailing Supreme Court precedent of Coleman. The Supreme Court‘s later decision in Martinez, which creates a narrow exception to Coleman‘s holding regarding cause to excuse procedural default, does not constitute an “extraordinary circumstance” under Supreme Court and our precedent to warrant Rule 60(b)(6) relief. See Gonzalez, 545 U.S. at 536, 125 S.Ct. 2641; Bailey, 894 F.2d at 160. The Martinez Court‘s crafting of a narrow, equitable exception to Coleman‘s holding is “hardly extraordinary.” Gonzalez, 545 U.S. at 536, 125 S.Ct. 2641; see also Martinez, 132 S.Ct. at 1320 (“The rule of Coleman governs in all but the limited circumstances recognized here.“).
Because the Martinez decision is simply a change in decisional law and is “not the kind of extraordinary circumstance that warrants relief under Rule 60(b)(6),” Adams‘s 60(b)(6) motion is without merit. Hernandez, 630 F.3d at 429. Because Adams has not made a showing of a likelihood of success on the merits of his Rule 60(b)(6) motion, the district court abused its discretion in granting a stay of his execution pending the resolution of this motion. We therefore vacate the district court‘s grant of a stay of Adams‘s execution.
B. The District Court‘s Transfer of Adams‘s Successive Habeas Petition
The district court transferred Adams‘s second-in-time federal habeas petition and
We first must consider whether we have jurisdiction over this case. See Martin v. Halliburton, 618 F.3d 476, 481 (5th Cir.2010) (“We have jurisdiction to determine our own jurisdiction.“) (citations omitted). A threshold question in determining whether we have jurisdiction is whether the district court had the authority to transfer the case to us. The district court transferred the case to us pursuant to
The question of whether the district court lacked jurisdiction over Adams‘s second-in-time federal habeas petition depends on whether Adams‘s petition is a “second or successive” petition within the meaning of
AEDPA does not define “second or successive.” The Supreme Court has stated that the term “takes its full meaning from [the Court‘s] case law, including decisions predating the enactment of [AEDPA].” Panetti v. Quarterman, 551 U.S. 930, 943-44, 127 S.Ct. 2842, 168 L.Ed.2d 662 (2007). “The Court has declined to interpret ‘second or successive’ as referring to all § 2254 applications filed second or successively in time, even when the later filings address a state-court judgment already challenged in a prior § 2254 application.” Id. at 944, 127 S.Ct. 2842. For instance, in Slack v. McDaniel, 529 U.S. 473, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000), the Court concluded that “[a] habeas petition filed in the district court after an initial habeas petition was unadjudicated on its merits and dismissed for failure to exhaust state remedies is not a second or successive petition.” Id. at 485-86, 127 S.Ct. 2842; see also Panetti, 551 U.S. at 944-46, 127 S.Ct. 2842 (holding that “a § 2254 application raising a Ford-based incompetency claim filed as soon as that claim is ripe” is not a successive petition); Stewart v. Martinez-Villareal, 523 U.S. 637, 643-45, 118 S.Ct. 1618, 140 L.Ed.2d 849 (1998) (holding that a second-in-time federal habeas petition is not “successive” when it only raises a Ford claim that was previously dismissed as premature).
Adams argues that his second-in-time habeas petition is not successive because “the Supreme Court has consistently determined that a petition filed after [a] technical procedural barrier is removed is not ‘second or successive.‘” Adams argues that his case is similar to the Court‘s decisions in Panetti, Slack, and Martinez-Villareal because his two ineffective assistance of counsel claims in his initial federal habeas petition were dismissed on purely “technical” grounds—for procedural default. Adams asserts that Martinez has removed this technical barrier to federal
We reject Adams‘s argument and conclude that his habeas petition is clearly successive. We have stated that “a later petition is successive when it: 1) raises a claim challenging the petitioner‘s conviction or sentence that was or could have been raised in an earlier petition; or 2) otherwise constitutes an abuse of the writ.” In re Cain, 137 F.3d 234, 235 (5th Cir.1998) (citations omitted); see United States v. Orozco-Ramirez, 211 F.3d 862, 867 (5th Cir.2000) (finding the In re Cain standard “consistent with the Supreme Court‘s views as expressed in” Martinez-Villareal and Slack).
In his second-in-time habeas petition, Adams raises two claims—ineffective assistance of trial and appellate counsel for failing to ensure the jury was properly instructed in the punishment phase of his trial—that are identical to the two claims presented in his initial federal habeas petition, filed with the district court in 2009. Thus, pursuant to In re Cain, because Adams has raised claims that were already brought in a prior petition, we must construe his second-in-time habeas petition as successive. 137 F.3d at 235; see also Hernandez, 630 F.3d at 427; In re Flowers, 595 F.3d 204, 205 (5th Cir.2009) (holding that “[b]ecause the claims [petitioner] raises in his proposed § 2254 application were or could have been raised in his first § 2254 application, which ... was dismissed as time-barred[,] ... the instant application is successive.“) (citations omitted).5
Because we conclude that Adams‘s petition is successive, the district court did not have jurisdiction to consider the petition. Therefore, we conclude that, to the extent that the petition is construed as an application for a successive petition, the district court correctly transferred the case to us pursuant to
III. CONCLUSION
For the foregoing reasons, we VACATE the district court‘s grant of a stay of execution; we DISMISS Adams‘s successive federal habeas petition; we DENY his motion to set a briefing schedule or, in the alternative, to remand his petition to the district court; and we DENY his motion for a stay of execution. The mandate shall issue forthwith.