In Re Mauriceo Mashawn BROWN, Movant.
No. 06-50838.
United States Court of Appeals, Fifth Circuit.
July 19, 2006.
442 F.3d 392
Before WIENER, BENAVIDES, and DENNIS, Circuit Judges. BENAVIDES, Circuit Judge:
even though it was not filed until four days prior to his execution. Instead, the Court reversed the Eleventh Circuit‘s judgment that the suit was a functional equivalent to a successive habeas petition. Id. at 2103. The Court also reiterated that “a stay of execution is an equitable remedy” and that there is “a strong equitable presumption” against granting a stay where the claim could have been raised ““at such a time as to allow consideration of the merits without requiring entry of a stay.“” Hill, 126 S. Ct. at 2104, citing Nelson v. Campbell, 541 U.S. 637, 650, 124 S.Ct. 2117, 158 L.Ed.2d 924 (2004). The Court made clear that “federal courts can and should protect States from dilatory or speculative suits,” and potentially also from “repetitive or piecemeal litigation” which might raise similar concerns, but it did not address the method by which we may do so. Id. It did, however, make clear that a stay under these circumstances must satisfy all the traditional requirements, such as proof of the likelihood of success on the merits. Id. at 2104. It also did not give carte blanche approval to any of the lower court decisions it referred to, but merely noted that dilatoriness was a valid and significant problem that courts are within their powers to address. Id. I do not read the Court‘s opinion as encouraging us to overlook all other considerations that are called for in equity, which, after all, should be a recourse to principles of justice and fairness to correct or supplement the law as applied to particular circumstances. Consequently, equity in cases of this nature requires courts to consider the particular circumstances of each case and to examine them for whether or not the challenge has been brought dilatorily or for improper purposes (i.e., to delay the execution), and, if not, whether it should be allowed to proceed.
In this case, the district court and the majority have not analyzed the case on the basis of the factors indicated in Hill, including the likelihood of success on the merits.1 Accordingly, it is difficult to determine quickly whether the result they reached is congruent with the Supreme Court‘s decisions in Nelson and Hill. Further, it is now clear that a reevaluation and rethinking of our prior decisions in the light of Nelson and Hill is appropriate. Therefore, I respectfully dissent and would stay the execution in this case pending briefing and oral argument for that purpose.
BENAVIDES, Circuit Judge:
Mauriceo Brown is scheduled to be executed July 19, 2006. Through counsel, on July 18, 2006, Brown filed a motion for authorization to file a successive petition pursuant to
I. STANDARD TO FILE SUCCESSIVE PETITION
Pursuant to
A claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior application shall be dismissed unless—
(A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(B)(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and
(ii) the facts underlying the claim, if proven and viewed in light of the evi-dence
as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.
“This standard has been described as ‘a strict form of innocence, ... roughly equivalent to the Supreme Court‘s definition of innocence or manifest miscarriage of justice in Sawyer v. Whitley [505 U.S. 333, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992)].‘” Johnson v. Dretke, 442 F.3d 901, 911 (5th Cir.2006) (quoting 2 RANDY HERTZ & JAMES S. LIEBMAN, FEDERAL HABEAS CORPUS PRACTICE & PROCEDURE § 28.3e, at 1459-60 (5th ed.2005)).
II. ANALYSIS
A. CONFRONTATION CLAUSE CLAIMS
1. ADMISSION OF WITNESS‘S STATEMENT
Brown first argues that his right of confrontation as guaranteed under the Sixth Amendment and interpreted in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), was violated by the admission of his non-testifying codefendant‘s statement into evidence. We find Brown‘s reliance on Crawford misplaced. Foster‘s confession was admitted against Foster, and the jury was specifically admonished that the evidence could not be considered against Brown. Thus, the testimony as presented was not testimony against Brown and did not violate the rule in Crawford. Moreover, this Court has held that Crawford does not apply retroactively on federal habeas. Lave v. Dretke, 444 F.3d 333, 334-36 (5th Cir.2006).1
2. LIMITED CROSS-EXAMINATION
Brown next argues that he was denied his right of confrontation as guaranteed under the Sixth Amendment as interpreted by Crawford by the trial court‘s limited cross-examination of Mary Patrick, the only witness who was not an accomplice to the crime. First, Crawford is not applicable to this case. Indeed, Brown was able to cross-examine Patrick in open court. Brown‘s real complaint was that he was limited in his cross-examination. Second, because Brown previously raised this supposed confrontation clause violation in his motion for certificate of appealability (COA), which was denied by this Court, this claim must be dismissed.
B. CLAIM OF FREESTANDING INNOCENCE
Brown attempts to raise a freestanding claim of innocence. Brown‘s claim of innocence is based on the theory that he took the blame for the murder because he was threatened. However, it is apparent that, if such threats were made, Brown would have been acutely aware of them even before his trial. Thus, the basis
C. EIGHTH AMENDMENT CLAIM
Relying on Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), which categorically bars the execution of mentally retarded persons, Brown argues that his execution would be in violation of the Eighth Amendment. This Court has explained that to obtain permission to file a successive petition based on the new constitutional rule announced in Atkins, a petitioner must make a prima facie showing that “(1) his claim has not previously been presented in a prior application to this court, (2) his claim relies on a decision that stated a new, retroactively applicable rule of constitutional law that was previously unavailable to him, and (3) that he is mentally retarded.” In re Hearn, 418 F.3d 444, 444-45 (5th Cir.2005).
Brown did not raise an Atkins claim in his previous COA to this Court. With respect to whether an Atkins claim was available to him, Brown filed his initial federal petition in district court on February 2, 2002, and the Supreme Court issued its decision in Atkins on June 20, 2002. The district court denied Brown‘s petition in 2004. Under these circumstances, our case law indicates that an Atkins claim was not available to Brown. In In re Wilson, 442 F.3d 872 (5th Cir.2006), this Court explained that Texas courts abided by a “two-forum rule” that prevented consideration of claims pending at the same time in federal court. Thus, “[n]ot only did the two-forum rule prevent Wilson from filing his Atkins claim in state court, it also kept him from amending his federal application to include an Atkins claim because it would have been dismissed as unexhausted.” Id. at 876. Thus, it appears that Brown has made a prima facie showing on the first two requirements for obtaining permission to file a successive Atkins claim.
The next question is whether Brown has made a prima facie showing of mental retardation. Subsequent to Atkins, Texas courts have followed the definition of mental retardation adopted by the American Association on Mental Retardation and the nearly identical definition set forth in
Brown has failed to make a prima facie showing of mental retardation. In this regard, Brown fails to make a prima facie showing of either: significantly subaverage intellectual functioning; a deficit in adaptive functioning; or onset of mental
Finally, as previously set forth, the motion for stay of execution was filed one day prior to the scheduled day of execution. We note additionally that, in contradiction of our local rules, counsel failed to attach a statement providing a detailed explanation under oath detailing the reason for the late filing. See Fifth Circuit Local Rule 8.10 (requiring such an explanation if permission to file a successive petition is filed within 5 days of the scheduled execution). Accordingly, we direct the Clerk to issue the mandate instanter. Fifth Circuit Local Rule 8.8. The request for leave to file a successive petition is DENIED. The motion for stay of execution is DENIED.