In re David Leonard WOOD, Movant.
No. 14-11374.
United States Court of Appeals, Fifth Circuit.
May 12, 2016.
Additionally, Sanchez asserts the court‘s ruling on his mother‘s citizenship—even though he concedes he withdrew his claim of derivative citizenship—was “highly prejudicial“. He avers that, because he was not able to present evidence in her favor or contradict any evidence presented against her, her Fifth Amendment due process right was violated.
Furthermore, with regard to the court‘s dismissing several claims for lack of subject matter jurisdiction, Sanchez asserts the court determined
Finally, Sanchez maintains the court erred in denying his motion for a new trial. He asserts he could not have discovered the two Mexican birth records and the expert report analyzing them before or during trial, and that he met the requirements for newly discovered evidence. He claims he did not discover the evidence until after trial when DOS provided him with it. Alternatively, he avers his fingerprint on the birth certificate, a marker of authenticity cited by the district court in its findings of fact and denial of his motion for a new trial, was not established in the record.
III.
Having considered the briefs, the pertinent parts of the record, the oral arguments here, and the applicable law, and essentially for the reasons stated in the district court‘s comprehensive and well-reasoned opinions dated 24 January 2012, 27 June 2014, and 26 November 2014, the judgment is AFFIRMED.
Gregory William Wiercioch, University of Wisconsin Law School, Madison, WI, for Movant.
Before HIGGINBOTHAM, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*
David Leonard Wood, a death-row prisoner, contends that he is intellectually disabled and therefore is constitutionally ineligible for the death penalty under Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002).1
I
In 1992, Wood was convicted of murder and sentenced to death. Wood appealed the conviction to the Texas Court of Criminal Appeals (CCA), which affirmed his conviction and sentence. Wood v. State, No. 71,594 (Tex. Crim. App. Dec. 13, 1995). Wood filed a state application for writ of habeas corpus on December 19, 1997, alleging that (1) his indictment was constitutionally defective, (2) trial and appellate counsel were ineffective for failing to object to the alleged defects in the indictment, and (3) the trial court erred in admitting evidence of an extraneous offense. The CCA denied relief in 2001. Ex Parte Wood, No. 45,746-01 (Tex. Crim. App. Sept. 19, 2001).
After his state habeas petition was denied, Wood was appointed federal habeas counsel. On May 6, 2002, Wood filed an initial federal petition for writ of habeas corpus; he filed an amended petition on October 2, 2002. In his amended petition, he raised all three of his previously exhausted claims as well as several dozen unexhausted claims. Atkins was decided
Wood then obtained pro bono counsel, who obtained a stay of execution and conducted an expedited investigation into an Atkins claim. As a result of the investigation, Wood filed a successive habeas application in state court raising an Atkins claim. The state court held an Atkins hearing in October 2011. On October 1, 2013, the state court found that Wood was not intellectually disabled and denied his habeas application. The CCA affirmed in November 2014, and Wood moved for authorization to file a successive federal habeas petition on January 5, 2015.
II
Because Wood has previously filed a federal habeas petition, he must receive authorization from this court before he may file another.
Our court has adopted the following definition of prima facie showing: We understand it to be simply a sufficient showing of possible merit to warrant a fuller exploration by the district court. If in light of the documents submitted with the application it appears reasonably likely that the application satisfies the stringent requirement for the filing of a second or successive petition, we shall grant the application.
Id. at 530 (internal quotations and citations omitted). In other words, this court should not, at this stage, rule on the merits, but merely determine whether Wood‘s claim deserves further exploration by the district court.
Wood asserts that his successive petition falls within the exception of
This court has apparently not directly ruled on whether a rule was “available” if, as in Wood‘s case, it was announced while a defendant‘s first federal habeas petition was pending. In Leal Garcia v. Quarterman, 573 F.3d 214, 223 (5th Cir. 2009), the court suggested that a new constitutional rule that was announced while a petition was pending might, under certain circumstances, be considered to have been “previously available.” However, the court ultimately declined to rule on the issue, and, in a footnote, acknowledged that “other courts have considered the fact that a new claim arose during the pendency of a petitioner‘s first petition relevant, but not determinative, of whether his later habeas petition was successive.” Id. at n. 47. Indeed, it appears that every court that has been faced with this issue has declined to adopt a categorical rule. For example, the Eleventh Circuit has created a standard that takes into account the particular circumstances of the previous habeas proceeding: “[i]f the new rule was announced while the original § 2254 petition was pending the applicant must demonstrate that it was not feasible to amend his or her pending petition to include the new claim.” In re Everett, 797 F.3d 1282, 1288 (11th Cir. 2015) (citing In re Hill, 113 F.3d 181, 182-84 (11th Cir. 1997)). Similarly, in Davis v. Norris, 423 F.3d 868, 879 (8th Cir. 2005), the Eighth Circuit held that the petitioner‘s Atkins claim was previously available only after it determined, based on the record before it, that “he could have raised the issue while he was litigating his habeas petition in the district court.”
We agree with the Eleventh Circuit and adopt the feasibility standard. Under this test, Wood has not made a prima facie showing of previous unavailability. Wood argues that had he amended his petition to include an Atkins claim without first exhausting that claim in state court, his federal petition would have included both exhausted and unexhausted claims; therefore, his entire petition would have been dismissed without prejudice. Rose v. Lundy, 455 U.S. 509, 522, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982) (“[A] district court must dismiss habeas petitions containing both unexhausted and exhausted claims.“). This dismissal would have jeopardized his exhausted claims, which would no longer have been protected by the tolling provisions of
Until 2004, “the Texas Court of Criminal Appeals dismissed any state habeas application without prejudice if the applicant had a parallel application arising from the same conviction pending in federal court, even if the federal court stayed its own proceeding.” Mathis v. Thaler, 616 F.3d 461, 468 (5th Cir. 2010). Wood is correct
The district court did not rule on Wood‘s initial federal habeas petition until April 4, 2006.2 Between the Supreme Court‘s announcement of Rhines on March 30, 2005, and the district court‘s ruling on April 4, 2006, Wood had more than a year in which to seek amendment of his federal petition, stay of federal proceedings, and the pursuit of his Atkins claim in state court. And in fact Wood did seek, unsuccessfully, to stay federal proceedings so that he could return to state court to litigate claims other than an Atkins claim: on May 19, 2006, in response to the state‘s motion to amend the judgment to dismiss all of the claims with prejudice, Wood filed a request for stay and abeyance so that he could return to state court to exhaust his previously unexhausted claims.3 Wood has not demonstrated that his representation in the initial federal habeas proceedings was so deficient as to render the Atkins claim functionally unavailable; nor has he given any other explanation that could excuse his failure to amend his petition to include an Atkins claim and seek a stay and abeyance thereof.
Atkins was not available to Wood as soon as it was decided. However, Soffar and Rhines lifted the procedural barrier that made the Atkins rule inaccessible, and Wood has not alleged any other circumstances that made amendment of his complaint unfeasible between March 30, 2005, and April 4, 2006. He has thus not made a prima facie showing of unavailability. See, e.g., In re Everett, 797 F.3d at 1288; Felker v. Turpin, 83 F.3d 1303, 1306 (11th Cir. 1996) (rejecting an attempt to include a claim in a successive habeas petition based in part upon the petitioner‘s failure to seek amendment of a petition that was pending when the particular Supreme Court decision relied upon was issued).
III
Because Wood theoretically had more than a year in which he could have sought
PER CURIAM