Beets v. Texas Board of Pardons & Paroles

                   UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT


                        _______________________

                              No. 00-50133
                        _______________________


BETTY LOU BEETS,

                                                  Plaintiff-Appellant,

                                versus

TEXAS BOARD OF PARDONS
& PAROLES; ET AL,

                                                  Defendants-Appellees.


_________________________________________________________________

           Appeal from the United States District Court
                 for the Western District of Texas

_________________________________________________________________
                        February 24, 2000


Before JOLLY, HIGGINBOTHAM, and JONES, Circuit Judges.

PER CURIAM:

           Before us are a notice of appeal and brief on appeal by

death-sentenced petitioner Betty Lou Beets, who seeks review of the

district court’s refusal to stay her execution presently scheduled

for 6:00 p.m. on February 24, 2000.      We agree with the district

court’s determination that it had no authority to stay an execution

in a § 1983 case, and we therefore affirm.

           Some anomalies in the filings before this court should be

noted.   First, petitioner has not formally moved for a stay of

execution and attempted to support her motion with citation to

applicable authority.    Because the final clause of the conclusion
of her appeal brief requests a stay, we assume that the technical

lacunae are filled.       Second, Petitioner has failed to move for IFP

status.    We grant her the benefit of the doubt on that.                  Inasmuch

as the outcome of petitioner’s appeal has been foreshadowed by

guiding law in this circuit for the last year, it is not obvious

why we should make these concessions.              They are appropriate only

because of the lateness of the hour.

               This court has twice held that federal courts lack

jurisdiction under § 1983 to stay executions.               Faulder v. Johnson,

178 F.3d 741 (1999); Moody v. Rodriguez, 164 F.3d 893 (5th Cir.

1999).    As in the previous two cases, petitioner asserts that the

Texas Board of Pardons & Paroles did not properly handle her actual

or   potential      clemency    proceedings.       She   also    alleges    she   is

entitled       to   clemency    review    under    standards      applicable      to

petitioners who were battered spouses.                The essence of Beets’s

petition is a last-minute effort to defeat and delay her execution.

Beets     concedes,      however,        that     Faulder       and   Moody       are

indistinguishable, and this panel is bound by them, absent en banc

review of the full court.

               For the sake of completeness, we note that her claim of

denial    of    due   process    is   without     merit.        Inasmuch    as    the

legislative battered-spouse clemency review resolution -- S.C.R. 26

-- excludes perpetrators of capital crimes, she is ineligible.

Beets was found guilty of murder with the specific intent of

pecuniary gain.        The record established that the shooting of her

husband was carefully premeditated, as was its concealment, and her


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actions after his death were consistent with a profitmaking intent.

There is no record evidence that she was abused by this victim.              On

the contrary, at trial, she blamed his death on her son, denied

mistreatment by Mr. Beets, and professed her love for him.

              That this claim of spousal abuse surfaced six days before

her scheduled execution date detracts from Beets’s petition.               When

S.C.R. 26 was passed, nine years ago, Beets was engaged in her

first federal habeas proceeding, represented by counsel who are

experienced and tenacious.         This issue could have been raised

before the Pardons & Parole Division of the Texas Department of

Criminal Justice, the Texas Board of Pardons & Paroles, and state

or federal courts at any time.          We question how counsel can aver

that   they     were   “unaware”   of       their   alternatives   under   this

resolution until February 4, 2000.

              Confronting a similar situation, the Supreme Court held

that relief should be denied:

              Equity must take into account the state’s
              strong interest in proceeding with its
              judgment   and  [the   petitioner’s]  obvious
              attempt at manipulation. . . . There is no
              good reason for this abusive delay, which has
              been compounded by last-minute attempts to
              manipulate the judicial process. A court may
              consider   the  last-minute   nature  of   an
              application to stay execution in deciding
              whether to grant equitable relief.

Gomez v. United States District Court of the Northern District of

California, 503 U.S. 653, 653-54, 112 S.Ct. 1652, 1653 (1993).

              The judgment of the district court, which granted the

state’s motion for summary judgment and denied a stay of execution,



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declaratory judgment, temporary restraining order and preliminary

injunction, is AFFIRMED.




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