UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 97-00312
_____________________
In re: DAVIS,
Movant.
_________________________________________________________________
Motion to reopen and reconsider original motion
for leave, pursuant to 28 U.S.C. § 2244(b),
to file a successive application for writ of habeas corpus
in the United States District Court
for the Western District of Texas
_________________________________________________________________
August 27, 1997
Before KING, HIGGINBOTHAM, and BARKSDALE, Circuit Judges.
RHESA HAWKINS BARKSDALE, Circuit Judge:
The State of Texas has scheduled the execution of James Carl
Lee Davis for 9 September 1997. Pursuant to 28 U.S.C. §
2244(b)(3), Davis seeks leave to file a successive habeas
application in the district court, in order to assert a claim that,
under Ford v. Wainwright, 477 U.S. 399, 409-10 (1986) (“Eighth
Amendment prohibits a State from carrying out a sentence of death
upon a prisoner who is insane”), he is incompetent to be executed.
We DENY the motion.
I.
In 1985, Davis was convicted of capital murder and sentenced
to death. See Davis v. Scott, 51 F.3d 457, 459 (5th Cir. 1995).
The Texas Court of Criminal Appeals affirmed the conviction and
sentence, Davis v. State, 782 S.W.2d 211 (Tex. Crim. App. 1989);
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and the United States Supreme Court denied certiorari. Davis v.
Texas, 495 U.S. 940 (1990). Davis’ application for state habeas
relief was denied. See Davis, 51 F.3d at 459. Davis sought
federal habeas relief in 1992, and the district court granted it.
Our court reversed, Davis v. Scott, 51 F.3d 457 (5th Cir. 1995);
and the Supreme Court denied certiorari. Davis v. Scott, ___ U.S.
___, 116 S. Ct. 525 (1995).
In December 1995, Davis filed in the state trial court a
motion for a competency hearing and appointment of a psychiatric
expert to determine his competency, and a motion to declare
unconstitutional TEX. CODE CRIM. P. art. 11.071 (requirements for
consideration of successive state habeas applications). The trial
court forwarded the motions to the Texas Court of Criminal Appeals;
in December 1996, that court rejected the constitutional challenge
and found that Davis did not meet the prerequisites for filing a
successive state habeas application. Ex parte Davis, 947 S.W.2d
216 (Tex. Crim. App. 1996). The Court of Criminal Appeals did not
address Davis’ motion for a competency hearing and for appointment
of a psychiatric expert. Davis did not seek Supreme Court review.
In June 1997, Davis moved, pursuant to 28 U.S.C. § 2244(b),
for permission to file a successive federal habeas application,
asserting that, under Ford v. Wainwright, he is incompetent to be
executed. Our court denied the motion without prejudice as
premature, because Davis’ execution had not been scheduled. The
instant motion for reconsideration was filed after execution was
scheduled for 9 September.
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II.
It goes without saying that, although Davis’ Ford claim has
not been raised before in district court, he seeks leave to present
it in a second federal habeas application. Pursuant to the
amendments to the habeas statutes resulting from the Anti-Terrorism
and Effective Death Penalty Act (AEDPA), a habeas applicant must
obtain an order from a court of appeals authorizing the district
court to consider such a second or successive application. 28
U.S.C. § 2244(b)(3)(A). And, we may authorize the filing of such
an application “only if [we] determine[] that [it] makes a prima
facie showing that the application satisfies the requirements of
[28 U.S.C. § 2244(b)(1) and (2)]”. 28 U.S.C. § 2244(b)(3)(C).
Pursuant to § 2244(b)(1), “[a] claim presented in a second or
successive habeas ... application under section 2254 that was
presented in a prior application shall be dismissed.” (Emphasis
added.) Again, this Ford claim was not presented in a prior
application.
New claims, such as the one in issue, presented in a second or
successive federal application by state prisoners are addressed by
§ 2244(b)(2). It provides:
(2) A claim presented in a second or
successive habeas ... 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
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(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 evidence 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.
(Emphasis added.)
Only two circuits appear to have considered the applicability
of § 2244(b) to Ford claims. In In re Medina, 109 F.3d 1556 (11th
Cir. 1997), the Eleventh Circuit denied leave to file a second
habeas application, explaining that the movant could not satisfy §
2244(b)(2)(A), because Ford is not a new rule of constitutional
law, and that he could not satisfy § 2244(b)(2)(B), because the
factual predicate for the claim had nothing to do with his guilt or
innocence of the underlying offense. Id. at 1564-65. The court
decided that, “although the provisions of § 2244(b), as amended,
operate to foreclose review of competency to be executed claims in
second habeas applications, federal court consideration of such
claims is not entirely foreclosed”: the provisions of § 2244(b) do
not restrict the Supreme Court’s original habeas authority to
consider competency claims, see Felker v. Turpin, ___ U.S. ___, 116
S. Ct. 2333 (1996); and federal review may also be obtained through
certiorari review of the state court competency proceedings. 109
F.3d at 1564.
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In Martinez-Villareal v. Stewart, ___ F.3d ___, 1997 WL 351258
(9th Cir. June 23, 1997), the movant had presented a Ford claim in
his first habeas application. The district court had dismissed the
claim without prejudice as premature, but granted relief on other
grounds. The Ninth Circuit had reversed the grant of relief; and,
on remand, Martinez-Villareal had moved to reopen the first habeas
proceeding. The district court held that, under AEDPA, it did not
have jurisdiction to entertain the Ford claim. The Ninth Circuit
reversed, holding that the movant’s Ford claim was not subject to
the restrictions imposed by § 2244(b).
The Ninth Circuit noted that a Ford claim will always be
premature if asserted in a first habeas application, either because
no execution date has been scheduled, or because of the automatic
stay provision applicable, under certain circumstances, to first
habeas applications, see 28 U.S.C. § 2262. The court explained
that a Ford claim cannot be raised in a successive habeas
application: if the claim was raised in a previous application, §
2244(b)(1) requires dismissal; and if the claim is to be raised for
the first time in a second application, as here, the movant cannot
make the required prima facie showing under either subpart
(b)(2)(A), because the rule of constitutional law upon which the
claim is based was announced in Ford in 1986 and is therefore not
“new”, or under subpart (b)(2)(B), because the factual predicate
for the claim does not establish guilt or innocence of the
underlying offense. Postulating, pursuant to Felker, that the
Supreme Court would consider itself bound by the restrictions of
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subparts (b)(2)(A) and (B), the court concluded that § 2244(b)
presented a “serious constitutional problem” because a state
prisoner’s Ford claim could never be heard by any federal court.
1997 WL 351258, at *3-*4.
To avoid this perceived constitutional problem, the Ninth
Circuit decided that § 2244 does not apply to a Ford claim that has
been dismissed as premature in a first habeas application. Under
the Ninth Circuit’s “narrow” holding,
a competency claim must be raised in a first
habeas petition, whereupon it also must be
dismissed as premature due to the automatic
stay that issues when a first petition is
filed. Once the state issues a second warrant
of execution and the state court considers the
now-ripe competency claim, a federal court may
hear that claim—and only that claim—because it
was originally dismissed as premature and
therefore falls outside of the rubric of
“second or successive” petitions.
1997 WL 351258, at *6.
Were we to adopt the rule of Martinez, it would not help
Davis. Unlike the movant there, whose Ford claim was presented in
his first federal habeas application and dismissed as premature,
Davis did not present a Ford claim in his first federal
application. Instead, as discussed supra, he seeks to present his
Ford claim for the first time in a second habeas application.
Likewise, because this is a second application, Davis would not be
helped even were we to extend In re Gasery, 116 F.3d 1051 (5th Cir.
1997) (habeas application refiled after dismissal without prejudice
for failure to exhaust state remedies is neither second nor
successive), to Ford claims sought to be reasserted after dismissal
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without prejudice as premature when presented in a first, not—as
here—second, habeas application.
A.
Before addressing Davis’ contentions, we turn to the State’s
assertion that a Ford claim does not state a basis for federal
habeas relief because it does not seek to invalidate the conviction
or sentence, and the relief sought — an indefinite stay of
execution — is not available in a habeas proceeding. The language
of § 2254(a) seems to support this position:
The Supreme Court, a Justice thereof, a
circuit judge, or a district court shall
entertain an application for a writ of habeas
corpus in behalf of a person in custody
pursuant to the judgment of a State court only
on the ground that he is in custody in
violation of the Constitution of laws or
treaties of the United States.
(Emphasis added.)
As the State correctly notes, a Ford claim (incompetency to be
executed) does not invalidate the conviction or sentence, and Davis
would not be entitled to be released from custody even if he were
found incompetent in this regard. Instead, “the only question
raised is not whether, but when, his execution may take place.”
Ford, 477 U.S. at 425 (Powell, J., concurring) (emphasis in
original).
Nevertheless, we must reject this contention. Section 2254(a)
was not amended by AEDPA. Ford is a habeas case, and our court has
considered Ford claims in habeas proceedings. See Fearance v.
Scott, 56 F.3d 633, 640 (5th Cir.) (pre-AEDPA case rejecting Ford
claim on the merits), cert. denied, ___ U.S. ___, 115 S. Ct. 2603
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(1995); Barnard v. Collins, 13 F.3d 871 (5th Cir.) (pre-AEDPA case
denying certificate of probable cause as to Ford claim), cert.
denied, 510 U.S. 1102 (1994).
B.
Accordingly, we turn to Davis’ contentions. Both Fearance and
Barnard noted that no federal case had denied relief on a Ford
claim on grounds of abuse of the writ; but, as noted, both were
pre-AEDPA cases. In short, the gatekeeping provisions of § 2244(b)
were not applicable. See Fearance, 56 F.3d at 640; Barnard, 13
F.3d at 878.
1.
Davis concedes that he cannot satisfy § 2244(b)(2)(B)
(concerning guilt), but contends that subpart (b)(2)(A) can be
interpreted to permit consideration of his Ford claim in a
successive habeas application. Again, that subpart requires
showing “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”. (Emphasis added.)
Davis maintains that Ford applies retroactively and is “solely
applicable” to cases involving death penalty defendants whose
mental states prevent an understanding of the nature and
consequences of the pending execution. He asserts that, therefore,
Ford is a “new rule of constitutional law” because it is applicable
for the “first time” only when both the execution date is imminent
and the petitioner is incompetent. He states also that Ford was
“previously unavailable” to him because a Ford claim is premature
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until both an execution date is set and the applicant is
incompetent.
Davis’ proposed interpretation is at odds with the plain
language of subpart (b)(2)(A). Needless to say, the 1986 decision
in Ford is not a new rule of constitutional law. The legal basis
of Davis’ claim has been available since at least 1986; it is only
the factual basis of the claim that was previously unavailable.
Accordingly, Davis cannot satisfy the criteria of § 2244(b)(2)(A).
2.
Davis maintains that we should interpret § 2244(b) in the
light of the fact that its purpose is to prevent abuse of the writ
in federal habeas cases. He asserts that his Ford claim does not
constitute such an abuse, because he could not have raised the
claim previously, inasmuch as it was unavailable until he was both
incompetent and his execution scheduled. Accordingly, he contends
that Medina is distinguishable because the movant failed to present
his Ford claim at the first available opportunity. Although we
agree that § 2244(b) is designed to prevent abuse of the writ, and
will assume that Davis is seeking to assert his Ford claim at the
first properly available opportunity, we cannot disregard the plain
wording of § 2244(b) in order to create such an equitable
exception.
3.
Anticipating our holding, discussed supra, that his Ford claim
does not satisfy the criteria of § 2244(b)(2)(A), Davis contends
alternatively that § 2244(b) is unconstitutional, because it
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precludes consideration by a federal court of a mature Ford claim
presented for the first time. See U.S. CONST., Art. I, § 9, cl. 2
(“The Privilege of the Writ of Habeas Corpus shall not be
suspended, unless when in Cases of Rebellion or Invasion the public
Safety may require it”). We disagree, for the reasons stated by
the Eleventh Circuit in Medina, 109 F.3d at 1564.
Assuming arguendo that Ford guarantees a federal court
determination of a competency-to-be-executed claim, the relevant
provisions of AEDPA do not foreclose such review. A federal court
determination of the issue can be sought through Supreme Court
review of the state court competency proceedings. As noted, the
state court’s opinion did not address Davis’ motion for a
competency hearing; Davis chose not to seek such review of that
decision. Alternatively, the claim can be raised in an original
habeas application to the Supreme Court.
III.
For the foregoing reasons, leave to file a successive habeas
application is
DENIED.
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