Christopher Sepulvado, Petitioner--Appellant, v. Burl Cain, Warden, Louisiana State Penitentiary, Respondent-Appellee.
Nos. 13-30058, 13-70004.
United States Court of Appeals, Fifth Circuit.
Feb. 7, 2013.
707 F.3d 550
In re Christopher SEPULVADO, Movant.
Holding the debt nondischargeable pursuant to
The court concludes that the debt is nondischargeable under
Richard Zemry Johnson, Jr., Attorney, District Attorney‘s Office for the 11th Judicial District, Mansfield, LA, for Respondent-Appellee.
Before STEWART, Chief Judge, SMITH and SOUTHWICK, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Christopher Sepulvado is scheduled to be executed February 13, 2013. He appeals an order transferring his second-in-time petition for writ of habeas corpus, amended motion to appoint counsel, and
I.
In 1993, Sepulvado was convicted and sentenced to death for the first-degree murder of his six-year-old stepson. His conviction and sentence were affirmed. State v. Sepulvado, 672 So.2d 158 (La.), cert. denied, 519 U.S. 934, 117 S.Ct. 310, 136 L.Ed.2d 227 (1996). Sepulvado sought post-conviction relief in state and federal court. The federal district court denied habeas relief, Sepulvado v. Cain, No. 00-596 (W.D.La. Aug. 9, 2002), and denied Sepulvado‘s application for a COA. In a detailed opinion setting out the facts and proceedings, we denied Sepulvado‘s request for a COA on six issues. Sepulvado v. Cain, 58 Fed.Appx. 595, 2003 WL 261769 (5th Cir.) (unpublished), cert. denied, 540 U.S. 842, 124 S.Ct. 110, 157 L.Ed.2d 76 (2003).
Nearly a decade later, Sepulvado filed a second-in-time federal habeas petition pursuant to
II.
We first address, sua sponte, our appellate jurisdiction to hear this case, which comes to us as an appeal from the district court‘s transfer order.2 “[A]s the transferee court, we have before us both the appeal from the transfer order and [a habeas] motion,”3 along with Sepulvado‘s other related motions. Although in Bradford the petitioner was a federal prisoner who filed his habeas motion under
In concluding that it lacked jurisdiction to consider Sepulvado‘s second-in-time habeas petition, the district court relied on
before this petition can be considered on the merits by this Court, Petitioner must obtain authorization from the United States Fifth Circuit Court of Appeals, in accordance with
29 U.S.C. § 2244(b)(3) , by making a prima facie showing to the appellate court that his petition may be considered under the requirements set forth in28 U.S.C. § 2244(b)(2) . Until such time as Petitioner obtains said authorization, this Court is without jurisdiction to proceed on the petition or the ancillary motions.
“The question of whether the district court lacked jurisdiction over [a] second-in-time federal habeas petition depends on whether [the] petition is a ‘second or successive’ petition within the meaning of
Id. Although “[a] prisoner‘s application is not second or successive simply because it follows an earlier federal petition,” In re Cain, 137 F.3d 234, 235 (5th Cir.1998), it is the well-settled law of this circuit 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,” id.5
According to Sepulvado‘s brief, his second-in-time habeas petition alleges
Sepulvado urges that his instant claims—brought a full decade after we denied a COA for claims raised in his first habeas petition—were not ripe before Martinez v. Ryan, 566 U.S. 1, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012).
To the extent that Sepulvado relies on a supposed constitutional right to the effective assistance of post-conviction counsel, he misapprehends the holding and import of Martinez, which did not alter our rule that “the Sixth Amendment does not apply in habeas proceedings.”6 “Because appointment of counsel on state habeas is not constitutionally required, any error committed by an attorney in such a proceeding ‘cannot be constitutionally ineffective.‘”7 Martinez explicitly left open the constitutional question “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.
Rather than establish a new rule of constitutional law, Martinez is an “equitable ruling” that “qualifies Coleman by recognizing a narrow exception: inadequate assistance of counsel at initial-review collateral proceedings may establish cause for a prisoner‘s procedural default of a claim of ineffective assistance at trial.”8 Ordinarily, the doctrine of procedural default means that “federal courts will not review the merits of claims, including constitutional claims, that a state court declined to hear because the prisoner failed to abide by a state procedural rule.” Id. at 1309. Sepulvado‘s habeas petition argues that, under Martinez, the ineffective assistance of Sepulvado‘s post-conviction counsel establishes cause for the procedural default of two claims: (1) that one of Sepulvado‘s trial counsel had an actual conflict of interest that prevented him from raising a meritorious claim under Campbell v. Louisiana, 523 U.S. 392, 118 S.Ct. 1419, 140 L.Ed.2d 551 (1998); and (2) that trial counsel were ineffective for failing to raise a jury-misconduct claim in a motion for new trial.
It is far from evident that either of Sepulvado‘s ineffective-assistance-of-trial-counsel claims is procedurally defaulted.9
In essence, Sepulvado argued that his trial counsel should have anticipated the rule of law announced by the Supreme Court in Campbell six years after he was indicted. Id. at *5. In denying a COA, we concluded Sepulvado had failed to show that his trial counsel‘s “failure to raise such a claim in 1992 fell below the objective level of competence required by Strickland [v. Washington], 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984),” and we stated that
[i]n the alternative, Sepulvado has not satisfied the COA standard concerning the prejudice portion [also a required showing under Strickland v. Washington] for “cause” and “prejudice“. The report and recommendation, adopted by the district court, noted:
Petitioner has not attempted to articulate how the foreman selection process (in connection with a grand jury that indicts on mere probable cause found by 9 of 12 members) worked to his actual prejudice when he was convicted by a lawfully chosen petit jury of twelve persons who unanimously found him guilty beyond a reasonable doubt.
Sepulvado states that, had a timely motion to quash been made, the judgment would have been reversed on appeal on that basis; and, on remand, he might have been offered a life sentence plea. He offers no basis for this conclusory plea-claim.
In the alternative, Sepulvado urges that, absent a plea on remand, a second trial would not have resulted in the death penalty. Again, he provides no support for this conclusory claim. (Along this line, Sepulvado does not make an “actual innocence” claim as an alternative to a required showing of “cause” and “prejudice“.)
Id. at *6.
Assuming without deciding that Martinez applies to conflict-of-interest claims10 and that Sepulvado‘s conflict-of-interest claim is procedurally defaulted, Sepulvado‘s reliance on Martinez is still unavailing, because Martinez does not apply to Louisiana prisoners. It is limited to “initial-review collateral proceedings,” which it defines as “collateral proceedings which provide the first occasion to raise a claim of ineffective assistance at trial.” Martinez, 132 S.Ct. at 1315 (emphasis added). In other words, Martinez applies only “where the State barred the defendant from raising the claims on direct appeal.” Id. at 1320.
In Ibarra, 687 F.3d at 227, we declined to extend Martinez to circumstances in which the state permitted a defendant to raise ineffectiveness-of-trial-counsel
Louisiana, like Texas, allows a prisoner to raise ineffective assistance of counsel on direct appeal “when the record contains sufficient evidence to decide the issue and the issue is properly raised by assignment of error on appeal.” State v. Brashears, 811 So.2d 985 (La.App. 5 Cir. 2002). See also State v. Williams, 738 So.2d 640, 651-52 (La.App. 5 Cir.1999) (“Ineffective assistance of counsel claims are most appropriately addressed on application for post conviction relief, rather than on direct appeal, so as to afford the parties adequate opportunity to make a record for review. However, when an ineffective assistance claim is properly raised by assignment of error on direct appeal and the appellate record contains sufficient evidence to evaluate the claim, the reviewing court may address the ineffective assistance claim in the interest of judicial economy.“).
Ibarra, 687 F.3d at 230 (Graves, J., concurring in part and dissenting in part). Therefore, because, as Judge Graves observed, “Louisiana, like Texas, allows a prisoner to raise ineffective assistance of counsel on direct appeal” in some circumstances, id., Ibarra is an “insurmountable hurdle”11 for Sepulvado.
In sum, Martinez does not provide the basis for the relief Sepulvado seeks. It does not confer a constitutional right to effective assistance of post-conviction counsel, nor does it apply to any of Sepulvado‘s ineffective-assistance-of-trial-counsel claims that are not procedurally defaulted. Even assuming arguendo that Sepulvado presents any procedurally-defaulted ineffective-assistance-of-trial-counsel claims, current circuit precedent dictates that Martinez does not apply to Louisiana prisoners at all.12
Because Martinez is of no moment here, Sepulvado‘s second-in-time habeas petition is an abuse of the writ and is therefore successive. See In re Cain, 137 F.3d at 235; see also Adams, 679 F.3d at 321-22. Because the petition is successive, the district court did not have jurisdiction to consider it in light of the fact that Sepulvado did not obtain our prior authorization pursuant to
IV.
Sepulvado has not filed in this court a motion for authorization to file a successive petition in the district court. We direct the clerk‘s office to notify Sepulvado that “(1) a motion pursuant to
Bearing in mind the scheduled execution date, we will grant authorization only if the successive application is permitted by
V.
“A stay of execution is an equitable remedy. It 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 interference from the federal courts.” Hill v. McDonough, 547 U.S. 573, 584, 126 S.Ct. 2096, 165 L.Ed.2d 44 (2006) (citations omitted). Because we lack jurisdiction, there is no basis for a stay. Accord Adams, 679 F.3d at 323.
VI.
Sepulvado did not request a COA from the district court but asserts in his brief that “[t]his court may direct issue a COA bypassing the District Court.” Relying on Williams v. United States, 150 F.3d 639, 641 (7th Cir.1998), Sepulvado ignores voluminous precedent from this court:
[T]he district court did not rule upon whether a COA is warranted, and “the lack of a ruling on a COA in the district court causes this court to be without jurisdiction to consider the appeal.” Whitehead v. Johnson, 157 F.3d 384, 388 (5th Cir.1998); see also Brewer v. Quarterman, 475 F.3d 253, 255 (5th Cir.2006) (per curiam) (“A district court must deny the COA before a petitioner can request one from this court. A request for COA must be filed in the district court before such a request can be made in the circuit court.” (internal quotation marks omitted)); Miller v. Dretke, 404 F.3d 908, 912 (5th Cir.2005) (“Under Federal Rule of Appellate Procedure 22(b)(1), the district court must first decide whether to grant a COA request before one can be requested here.“); Sonnier v. Johnson, 161 F.3d 941, 946 (5th Cir.1998) (“[T]he lack of a ruling on a COA in the district court causes this court to be without jurisdiction to consider the appeal.“); United States v. Youngblood, 116 F.3d 1113, 1115 (5th Cir.1997) (“Under Muniz [v. Johnson], 114 F.3d 43, 45 (5th Cir.1997), jurisdiction is not vested in this Court because the district court has not yet considered whether [a] COA should issue.“); Muniz, 114 F.3d at 45 (“A district court must deny the COA before a petitioner can request one from this court.“).
Cardenas v. Thaler, 651 F.3d 442, 443-44 (5th Cir.2011) (per curiam). In Cardenas, moreover, we expressly distinguished Williams. Id. at 446-47.
In summary, the order of transfer is AFFIRMED. The petition for writ of habeas corpus is DISMISSED for want of jurisdiction. The amended motion to appoint counsel is DISMISSED for want of jurisdiction. The motion for stay of execution is DENIED. The request for a COA is DISMISSED.