United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 22, 2004
_____________________
Charles R. Fulbruge III
No. 03-00042 Clerk
_____________________
JAMES E. BILLIOT,
Plaintiff - Petitioner,
versus
CHRISTOPHER B. EPPS, COMMISSIONER,
MISSISSIPPI DEPARTMENT OF CORRECTIONS,
Defendant - Respondent.
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Appeal from the United States District Court
for the Southern District of Mississippi
(No. 86-CV-0549)
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Before JOLLY, SMITH, and WIENER, Circuit Judges.
PER CURIAM:*
James Billiot, who was found guilty of murder and sentenced to
death, is currently before this court seeking permission under 28
U.S.C. § 1292(b) to appeal the district court’s denial of his
federal habeas claims challenging his sentence. The district court
certified those issues for interlocutory appeal, under § 1292(b),
and retained jurisdiction over Billiot’s claim under Ford v.
Wainwright, 477 U.S. 399 (1986), that he is insane and incompetent
to be executed.
*
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this opinion should not be published and is not precedent except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.
We ordered the parties to submit supplemental briefing on
jurisdictional matters, addressing: (1) whether this court has
jurisdiction under 28 U.S.C. § 2253(a) to review claims denied by
the district court in a non-final order certified by that court
under 28 U.S.C. § 1292(b); (2) whether the district court’s order
denying habeas relief on fewer than all of Billiot’s claims may and
should be construed as a final order under Fed. R. Civ. P. 54(b);
and (3) whether a certificate of appealability (“COA”) under 28
U.S.C. § 2253(c) is required for this court to review the merits of
Billiot’s claims certified by the district court for interlocutory
appeal under § 1292(b).
The State contends in its supplemental brief that (1) the
district court’s order is not an appealable final judgment and
cannot be construed as a final judgment under Rule 54(b) because
the district court did not expressly determine that there is no
just reason for delay; and (2) a COA is required. Billiot contends
that we should construe the district court’s § 1292(b)
certification as a final judgment under Rule 54(b) and also as a
grant of a COA for each of the certified issues.
Having reviewed the parties’ submissions and the applicable
law, we DENY Billiot’s petition for permission to appeal. The
parties cited no authority for construing 28 U.S.C. § 2253(a)
(authorizing appeals from “final” orders in habeas corpus
proceedings) to permit an appeal from an interlocutory order
certified under 28 U.S.C. § 1292(b). Under the circumstances of
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this case, we decline to decide whether the district court’s §
1292(b) certification order can, or should be, construed as a final
judgment under Fed. R. Civ. P. 54(b), or as a certificate of
appealability under 28 U.S.C. § 2253(c). The district court denied
relief on all of Billiot’s claims except his Ford claim that he is
presently incompetent to be executed. Because an execution date
has not been scheduled and Billiot’s execution is not imminent, his
Ford claim is premature. Although the Ford claim had to be raised
in Billiot’s first federal habeas petition so that it will not be
barred as successive once the claim becomes ripe, under our
precedent such claims are subject to dismissal without prejudice.
See Patterson v. Dretke, 370 F.3d 480 (5th Cir. 2004) (addressing
ripe Ford claim raised in subsequent habeas action after claim was
dismissed without prejudice in prior habeas proceeding); Patterson
v. Cockrell, No. 01-40447 (5th Cir. May 23, 2003) (unpublished)
(dismissing without prejudice Ford claim where execution was not
imminent); Stewart v. Martinez-Villareal, 523 U.S. 637, 644-45
(1998) (Ford claim raised for second time in subsequent federal
habeas petition, when it is ripe because the execution is imminent,
is not “second or successive” within the meaning of 28 U.S.C. §
2244 when claim raised in first federal habeas petition was
dismissed without prejudice as unripe). In the light of the fact
that the unripe Ford claim is the only obstacle to a final judgment
as to all of the claims in this case, it is neither necessary nor
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prudent for us to address the difficult jurisdictional issues
presented in this case.
PETITION FOR PERMISSION TO APPEAL DENIED.1
1
Now that we have denied the petition for permission to
appeal, the district court is free to dismiss without prejudice the
Ford claim, and to enter final judgment in this case. At such
time, an appeal to this court will be available to any aggrieved
party, provided that the requirements of 28 U.S.C. § 2253(c) are
satisfied.
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