IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 02-21208
_____________________
JAMES BLAKE COLBURN
Petitioner - Appellant
v.
JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, INSTITUTIONAL DIVISION
Respondent - Appellee
_________________________________________________________________
On Application for a Certificate of Appealability
Appeal from the United States District Court
for the Southern District of Texas
No. H-02-4180
_________________________________________________________________
November 6, 2002
Before KING, Chief Judge, and JOLLY and DeMOSS, Circuit Judges.
PER CURIAM:*
Petitioner-Appellant James Blake Colburn, who is scheduled
to be executed at 6 pm on November 6, 2002, seeks a certificate
of appealability (COA) in order to appeal the Order of the
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
District Court for the Southern District of Texas denying his
Motion for Stay of Execution, Motion for Appointment of Counsel
and Motion for Constitutionally Adequate Determination of Mr.
Colburn’s Present Competency To Be Executed. Colburn’s motions
to the district court were premised on his argument that he is
incompetent to be executed under the standards set forth in Ford
v. Wainwright, 477 U.S. 399 (1986). We decline to issue a COA.
I. FACTS AND PROCEDURAL HISTORY
Briefly, Colburn was convicted and sentenced to death in
1995 for the murder of a woman hitchhiking near his home. The
Court of Criminal Appeals denied his appeal; in doing so, it
refused to consider the claim that he was incompetent to be
executed, finding it unripe for consideration because Colburn’s
execution was not imminent. Colburn v. State, 966 S.W.2d 511,
513 (Tex. Crim. App. 1998). After exhausting state habeas
relief, he filed a federal petition for a writ of habeas corpus
in the District Court for the Southern District of Texas in 1999.
In that petition, Colburn raised several issues, including his
lack of competency to stand trial. However, Colburn did not
raise the claim that he was incompetent to be executed under the
Ford standard. The district court denied his request for relief.
In an unpublished opinion, we denied his request for a COA on any
of the issues raised.
Execution was set for November 6, 2002. On September 24,
2002, the state filed a request in state court for a mental
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evaluation of Colburn’s competency to be executed. Colburn filed
a Motion to Stop Involuntary Psychiatric Treatment; and To
Conduct Competency Examination After Proper Diagnosis of
Psychiatric Disorder. He also moved to stay his date of
execution and for appointment of, and funding for, an independent
psychiatric expert. The state court denied all of Colburn’s
motions.
Colburn was evaluated by two experts appointed by the court
(but recommended by the state); the experts agreed that, while
Colburn suffered from some form of schizoaffective disorder, he
understood the reasons he was being executed and otherwise
satisfied the Ford requirements. Colburn then filed an
additional motion for a new competency evaluation by a
“qualified” expert; with it, he filed an affidavit from an expert
who argued that the court’s experts had misdiagnosed Colburn and
that he could not definitively be found competent to be executed
without much more extensive psychiatric testing. The state court
denied that motion as well.
On November 6, Colburn filed in federal district court a
Motion for Stay of Execution, Motion for Appointment of Counsel
and Motion for Constitutionally Adequate Determination of Mr.
Colburn’s Present Competency To Be Executed. Colburn argued that
the Texas statutory provisions for determining competency to be
executed provided inadequate due process in violation of the
Eighth and Fourteenth Amendments. See TEX. CRIM. PRO. CODE ANN. §
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46.05 (Vernon 2002) (setting forth the procedure for determining
competency to be executed). The district court, treating
Colburn’s motion as a petition for writ of habeas corpus, first
found that Colburn had not raised a Ford claim in his original
habeas petition. Because this was a successive petition, the
court held that Colburn could not file it in the district court
until he had “move[d] in the appropriate court of appeals for an
order authorizing the district court to consider the
application.” 28 U.S.C. § 2244(3) (A) (2000). Therefore, the
court denied Colburn’s request for relief.
The district court denied Colburn’s request for a COA on the
question of whether the court had jurisdiction to rule on his
claims. Colburn now appeals to this court seeking a COA on his
jurisdictional question.
II. APPLICABLE LAW
Under the Anti-Terrorism and Effective Death Penalty Act
(“AEDPA”), a petitioner must obtain a COA before he can receive
full appellate review of the lower court’s denial of habeas
relief. See 28 U.S.C. § 2253(c)(1)(A) (2000) (“Unless a circuit
justice or judge issues a certificate of appealability, an appeal
may not be taken to the court of appeals from the final order in
a habeas corpus proceeding in which the detention complained of
arises out of process issued by a State court.”). We may grant
the petitioner’s request for a COA only if he makes a
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“substantial showing of the denial of a constitutional right.”
Id. § 2253(c)(2).
To make such a showing, Colburn must demonstrate that
“reasonable jurists could debate whether (or, for that matter,
agree that) the petition should have been resolved in a different
manner or that the issues presented were adequate to deserve
encouragement to proceed further.” Dowthitt v. Johnson, 230 F.3d
733, 740 (5th Cir. 2000), cert. denied, 532 U.S. 915 (2001)
(quoting Slack v. McDaniel, 529 U.S. 473, 483-84 (2000)).
Where, as here, the district court has denied the petitioner’s
claim on procedural grounds, the petitioner must demonstrate both
that “jurists of reason would find it debatable whether the
petition states a valid claim of the denial of a constitutional
right and that jurists of reason would find it debatable whether
the district court was correct in its procedural ruling” in order
to obtain a COA. Slack, 529 U.S. at 484.
III. COLBURN’S ATTEMPT TO FILE A SUCCESSIVE PETITION
The district court’s procedural ruling in this case was that
it lacked the jurisdiction to consider Colburn’s request for
relief because he was presenting it as part of a successive
habeas petition without first getting permission to do so as
required by § 2244(3)(A). As already discussed, Colburn has
previously filed a petition for habeas relief in federal court;
that petition was denied. Therefore, the district court disposed
of Colburn’s petition on appropriate procedural grounds unless it
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would be debatable among jurists of reason whether Colburn’s
petition was actually a successive petition within the meaning of
the AEDPA.
The AEDPA does not define “second or successive.” However,
this court has held that a petitioner’s application is “second or
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.” United States v. Orozco-Ramirez, 211 F.3d
862, 867 (5th Cir. 2000). Colburn argues that this is not a
successive petition because he could not have raised the issue in
his initial habeas petition. He argues that, had he done so, the
district court would have been forced to dismiss his petition for
containing both exhausted and unexhausted claims. Rose v. Lundy,
455 U.S. 509 (1982). Upon dismissal, he would have returned to
state court and the Court of Criminal Appeals would have again
found his Ford claim unripe. Ultimately, he argues that he would
have been foreclosed from raising any habeas petition at all
until an execution date had been set (thereby making his Ford
claim ripe for appeal).
However, nothing in Rose says that an argument must have
been adjudicated to be found exhausted. Exhaustion requires only
that the state court be provided with a “fair opportunity” to
consider the claim. Duncan v. Henry, 513 U.S. 364, 365 (1995).
If Colburn had raised the claim in the state court (as he did
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here) and then presented his claim in his original federal habeas
petition, the district court could have dismissed it as unripe
without running afoul of Rose’s proscription against mixed habeas
petitions.
The Supreme Court has held that a petitioner who raises a
Ford claim in his original petition and then re-raises it in a
later petition once it is ripe for adjudication (because the
execution date is imminent) is not presenting a “second or
successive” petition within the meaning of § 2244. Stewart v.
Martinez-Villareal, 523 U.S. 637, 644 (1998). Instead, the Ford
claim is treated “in the same manner as the claim of a petitioner
who returns to a federal habeas court after exhausting state
remedies.” Id. The Court left open the question of whether a
petitioner who did not present his Ford claim in his original
petition, but raised it later on, was raising it in a successive
petition. Id. at 645 n.1.
However, the well-established law of this circuit is that a
petitioner who fails to raise his Ford claim in his original
habeas petition may not later raise it as part of a subsequent
petition. In re Davis, 121 F.3d 952, 955-56 (5th Cir. 1997).
While the vitality of Davis was questioned after Stewart, we
recently reconsidered Davis in the light of Stewart and
reaffirmed the Davis holding. Richardson v. Johnson, 256 F.3d
257, 258-59 (5th Cir. 2001).
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In Richardson, we considered the argument that § 2244 should
not apply to Ford claims because they cannot become ripe until
execution is imminent. We noted that accepting such an argument
“would mean as a practical matter that no Ford claim would need
to be presented in a first filed habeas, given that state courts,
in part at our urging, now seldom set execution dates until after
the first round of appeals and habeas.” Id. at 259.
Furthermore, focusing on the first Slack inquiry - whether
jurists of reason would find it debatable whether the petition
states a valid claim of the denial of a constitutional right -
like the petitioner in Richardson, Colburn here has pointed “to
nothing which shows that he is presently incompetent to be
executed.” Id. The state court appointed two qualified mental
health experts as a precautionary measure to evaluate his
competence to be executed. Both reported that Colburn was
competent to be executed, as required by Ford and TEX. CRIM. PRO.
CODE ANN. § 46.05.
Colburn’s motions basically come down to an argument that
the state court’s procedure was unconstitutional because it
failed to permit him to be evaluated by his own expert. However,
we have previously determined that the statutory procedure under
§ 46.05 is constitutionally adequate and that the defendant has
no right to an expert of his own choosing. Caldwell v. Johnson,
226 F.3d 367, 370 (5th Cir.), cert. denied, 530 U.S. 1298 (2000).
IV. CONCLUSION
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It is not debatable among jurists of reason whether Colburn
was presenting his Ford claim as part of a successive habeas
petition. Therefore, the district court properly refused to rule
on Colburn’s motions because he had failed to apply for
permission to file a successive petition as required by
§ 2244(3)(A). We deny his request for a COA.
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