United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 6, 2005
Charles R. Fulbruge III
Clerk
No. 05-70043
RONALD RAY HOWARD
Petitioner - Appellant
v.
DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION
Respondent - Appellee
On Motion for a Stay of Execution
Appeal from the United States District Court
for the Southern District of Texas, Victoria
No. V-05-05
Before KING, Chief Judge, and JOLLY and PRADO, Circuit Judges.
KING, Chief Judge:*
Petitioner-Appellant Ronald Ray Howard has appealed the
district court’s order denying his motion for a stay of
execution, and he has asked us for a stay of execution. For the
following reasons, we DENY Howard’s motion for a stay of
execution.
*
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that this opinion should not be published and is not precedent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.
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I. FACTUAL AND PROCEDURAL BACKGROUND
In 1993, Howard was found guilty of capital murder in Texas
state court and sentenced to death. On direct appeal, the Texas
Court of Criminal Appeals overturned his sentence, finding that
the trial court erroneously dismissed a prospective juror over
her ability to answer Texas’s special issues. Howard v. State,
941 S.W.2d 102, 127-29 (Tex. Crim. App. 1996). After a second
punishment phase, a new jury answered Texas’s special issues in a
manner again requiring the imposition of a death sentence.
Again, the trial court sentenced Howard to death. This time, the
Texas Court of Criminal Appeals affirmed the judgment. Howard v.
State, No. 71,739 (Tex. Crim. App. Dec. 19, 2001) (unpublished).
The United States Supreme Court later denied Howard’s petition
for certiorari. Howard v. Texas, 535 U.S. 1065 (2002).
On May 5, 2003, after exhausting his state court remedies,1
Howard filed a federal habeas petition pursuant to 28 U.S.C.
§ 2254 in the United States District Court for the Southern
District of Texas, alleging that his trial counsel provided
ineffective assistance of counsel. On March 19, 2004, the
district court denied Howard’s habeas petition and denied a
1
While his second direct appeal was pending, Howard filed
a state application for habeas relief. The state habeas court
entered findings of fact and conclusions of law recommending the
denial of Howard’s state habeas application. The Texas Court of
Criminal Appeals subsequently denied Howard’s application. Ex
parte Howard, No. 48,825-01 (Tex. Crim. App. Feb. 6, 2002)
(unpublished).
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certificate of appealability (“COA”) on all of his claims.
Howard v. Dretke, No. V-03-48 (S.D. Tex. Mar. 19, 2004). On
appeal, Howard requested that this court grant a COA only on the
claim that his attorney provided ineffective assistance of
counsel by not objecting during voir dire when the prosecutor
informed potential jurors that a previous jury had sentenced him
to death. On March 21, 2005, this court denied Howard’s COA
application, finding that he had failed to make a substantial
showing of the denial of a constitutional right. See Howard v.
Dretke, 125 Fed. Appx. 560, 561, 563, 566 (5th Cir. Mar. 21,
2005) (noting that a petitioner makes a substantial showing of
the denial of a constitutional right by demonstrating that
“‘reasonable jurists would find the district court’s assessment
of the constitutional claims debatable or wrong’” and concluding
that “reasonable jurists could not debate the district court’s
conclusion that the state court did not unreasonably apply
clearly established federal law when it found that Howard’s trial
counsel’s performance was not deficient”) (quoting Miller-El v.
Cockrell, 537 U.S. 322, 338 (2003)). Following our decision
denying the COA, the mandate issued on March 21, 2005. The State
of Texas scheduled Howard’s execution for October 6, 2005, at
6:00 p.m. Central Daylight Time.
On October 4, 2005, Howard filed a motion in the United
States District Court for the Southern District of Texas for
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appointment of counsel pursuant to 21 U.S.C. § 848(q)(4)(B) and a
stay of execution under 28 U.S.C. § 2251. The district court
granted Howard’s motion for appointment of counsel but denied
Howard’s motion for a stay of execution. Howard v. Dretke, No.
V-05-05 (S.D. Tex. Oct. 4, 2005). In denying the stay, the
district court determined that: (1) “Howard . . . fail[ed] to
show that this Court has authority to stay his impending
execution” because “[n]o federal habeas petition is pending
before this Court”; and (2) “Howard fail[ed] to show a reasonable
likelihood that he [would] prevail on his claims in the Supreme
Court . . . . [and made] no persuasive showing that the Supreme
Court would find that a COA should issue or even grant an out-of-
time writ of certiorari.” Id. On October 5, 2005, Howard filed
this timely appeal challenging the district court’s decision to
deny the stay of execution. He subsequently filed a motion with
this court asking for a stay of execution.
II. DISCUSSION
A. Standard of Review
This court reviews a district court’s decision to grant or
deny a stay of execution for abuse of discretion. See Brewer v.
Johnson, 139 F.3d 491, 493 (5th Cir. 1998). Because a capital
defendant’s request for a stay is a request for the district
court to enjoin the defendant’s execution, this court has
“jurisdiction to review any decision by the district court to
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grant, continue, modify, refuse or dissolve an injunction.”
Mines v. Dretke, 118 Fed. Appx. 806, 812, n.27 (5th Cir. Dec. 16,
2004) (noting that a COA is not required to review a district
court’s grant or denial of a motion for a stay of execution).
Alternatively, this court, if it has jurisdiction, can issue
a stay of execution if we determine that “there is a reasonable
probability that 4 members of the Supreme Court would consider
the underlying issues sufficiently meritorious for the grant of
certiorari and . . . there is a substantial possibility of
reversal of [our] decision . . . .” 5TH CIR. R. 8.9 (“Stays to
permit the filing and consideration of a petition for writ of
certiorari ordinarily will not be granted.”). See also Maggio v.
Williams, 464 U.S. 46, 48 (1983).
B. Analysis
Howard’s brief on appeal does not clearly state whether he
is (1) challenging the district court’s decision to deny the
stay, or (2) asking this court to grant a stay of execution.
Rather, Howard’s brief generally states that he
appeals to this Court, pursuant to McFarland v. Scott,
512 U.S. 849 (1994), In re Hearn, 389 F.3d 122 (5th Cir.
2004), and Rule 8.9 of the Internal Operating Procedures
of this Court, seeking a stay of his imminent execution,
so that newly-appointed counsel has time to file a
petition for writ of certiorari, asking the Supreme Court
to review the judgment of this Court.
Accordingly, we will address (1) whether the district court
abused its discretion in denying the stay of execution, and
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(2) whether this court can independently issue a stay of
execution even though our mandate has issued.
1. District Court’s Denial of the Stay of Execution
Underlying the district court’s decision to deny the stay
are two independent conclusions: (1) the district court lacked
jurisdiction, and (2) Howard made no showing that he would likely
prevail on the merits of his claims in the Supreme Court. First,
after examining both McFarland v. Scott and 28 U.S.C. § 2251, the
district court concluded that it lacked the authority to stay the
execution. Specifically, the district court found that no
federal habeas petition was pending before it, and thus under
§ 2251 of the Antiterrorism and Effective Death Penalty Act
(AEDPA), it had no authority to stay Howard’s execution.2 See 28
U.S.C. § 2251 (2000) (“A justice or judge of the United States
before whom a habeas corpus proceeding is pending, may, before
final judgment or after final judgment of discharge, or pending
appeal, stay any proceeding against the person detained in any
State court . . . .”) (emphasis added).
In McFarland v. Scott, the Supreme Court interpreted § 2251,
which instructs when a federal judge may grant a stay of
execution for a prisoner held by the state, in conjunction with
§ 2254 and § 2255 of the AEDPA to decide whether a district court
2
Howard’s claim is governed by the AEDPA because he filed
his § 2254 petition on May 5, 2003, after AEDPA’s April 24, 1996
effective date. See Fisher v. Johnson, 174 F.3d 710, 711 (5th
Cir. 1999) (citing Lindh v. Murphy, 521 U.S. 320, 326 (1997)).
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appointing counsel pursuant to § 848(q)(4)(B) had jurisdiction to
stay an execution. McFarland v. Scott, 512 U.S. 849, 857-58
(1994). The Court concluded that “a district court has
jurisdiction to enter a stay of execution where necessary to give
effect to that statutory right [found in § 848(q)(4)(B)].” Id.
at 859. Despite McFarland’s seemingly broad pronouncement of
jurisdiction, we must read the Court’s decision in context and in
light of our prior decisions. The Court’s decision that the
district court would have jurisdiction to stay an execution upon
the filing of a motion for appointment of counsel was directly
related to the fact that the petitioner’s request for counsel
initiated a “habeas corpus proceeding” before the district court
under § 2251. See McFarland, 512 U.S. at 857-58 (noting that the
petitioner argued that “his request for counsel in a ‘post
conviction proceeding’ under § 848(q)(4)(B) initiated a ‘habeas
corpus proceeding’ within the meaning of § 2251” before the
district court and ultimately agreeing with the petitioner’s
position). In other words, in McFarland, the filing of the
motion for appointment of counsel under § 848(q)(4)(B) actually
initiated habeas corpus proceedings for § 2251 purposes, thus
giving the district court the jurisdiction, under § 2251, to stay
the execution. See id. at 858 (concluding that “[s]ection
848(q)(4)(B) expressly applies to any post conviction proceeding
under section 2254 or 2255--the precise habeas corpus
proceeding[s] that § 2251 involves” and reading these statutes
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together to conclude that the motion for appointed counsel under
§ 848(q)(4)(B) starts the habeas corpus proceeding referred to in
§ 2251 so that the district court has jurisdiction to stay the
execution) (alteration in original) (internal quotations
omitted). In contrast to the petitioner in McFarland, here, as
the district court recognized, Howard’s motion was not directed
at a pending or proposed habeas proceeding before the district
court. Instead, Howard filed the § 848(q)(4)(B) motion with the
intent to petition for an original application for habeas relief
in the Supreme Court or an out-of-time petition to appeal this
court’s denial of the COA. Thus, unlike the district court at
issue in McFarland, there was no pending habeas proceeding before
the district court--nor contemplation of one--because the
§ 848(q)(4)(B) motion is not initiating a habeas corpus
proceeding.
The district court’s conclusion that it lacked jurisdiction
is supported not only by a close reading of McFarland but also by
our precedent. In Williams v. Cain, we held that when the habeas
petition has been ruled on, the appellate mandate has issued, and
the case is no longer before the court, “the only reasonable
analysis is that the habeas petition is no longer pending before
the district court, and the court therefore lacks jurisdiction to
enter a stay under the clear terms of the statute.” Williams v.
Cain, 143 F.3d 949, 950 (5th Cir. 1998) (concluding that when a
petitioner seeks a stay of execution pending the disposition of a
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writ of certiorari, “he should seek that stay in the Supreme
Court itself”). See also Teague v. Johnson, 151 F.3d 291, 291
(5th Cir. 1998) (reaching the same conclusion). Accordingly, we
do not think the district court erred (or abused its discretion)
when it concluded as a matter of law that it lacked jurisdiction.
The district court’s second conclusion--that Howard did not
demonstrate that he was reasonably likely to prevail on his
claims in the Supreme Court--is also not an abuse of discretion.
The district court determined that, under the factors a court
must consider in granting a stay of execution,3 “Howard’s claims
did not meet the threshold standard for a COA by showing the
substantial denial of a constitutional right.” Howard, No. V-05-
05. Both the district court and this court concluded that
Howard’s claims failed to show the substantial denial of a
constitutional right, as required under the AEDPA to grant a COA.
See 28 U.S.C. § 2253(c)(2); see also Miller-El, 537 U.S. at 327
(“A petitioner satisfies this standard by demonstrating that
jurists of reason could disagree with the district court’s
3
“In deciding whether to issue a stay of execution, we are
required to consider four factors:
(1) whether the movant has made a showing of likelihood
of success on the merits, (2) whether the movant has
made a showing of irreparable injury if the stay is not
granted, (3) whether the granting of the stay would
substantially harm the other parties, and (4) whether
the granting of the stay would serve the public
interest.”
Buxton v. Collins, 925 F.2d 816, 819 (5th Cir. 1991), cert.
denied, 498 U.S. 1128 (1991).
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resolution of his constitutional claims or that jurists could
conclude the issues presented are adequate to deserve
encouragement to proceed further.”). Because we agree with the
district court that Howard alleges no new constitutional
violation from his previous application and makes no persuasive
showing that the Supreme Court would grant relief on the merits,
we conclude that the district court did not abuse its discretion.
See Gonzales v. Crosby, __ U.S. __, 125 S. Ct. 2641, 2655 n.7
(2005) (Stevens, J., dissenting) (“A petition for certiorari
seeking review of a denial of a COA has an objectively low chance
of being granted. Such a decision is not thought to present a
good vehicle for resolving legal issues, and error-correction is
a disfavored basis for granting review . . . .”).
2. Staying the Execution as an Original Matter
Either alternatively or in addition to his request that we
reverse the district court’s decision to deny the stay, Howard
asks this court to stay the execution. Rule 8.9 of this
circuit’s internal operating procedures delineates the standards
we use in deciding to stay an execution. Rule 8.9, however, is
not a grant of jurisdiction. Rather, if this court has
jurisdiction, Rule 8.9 sets forth when we will consider staying
an execution to permit the filing and consideration of a petition
for writ of certiorari. See 5TH CIR. R. 8.9 (allowing the court
to issue a stay of execution when a reasonable probability exists
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that four members of the Supreme Court would find the underlying
issue sufficiently meritorious for the grant of certiorari and a
substantial possibility of reversal of our decision exists).
Here, our mandate issued on March 21, 2005--over six months
ago. Thus, while we do have jurisdiction to review the district
court’s decision to deny the stay, see 28 U.S.C. § 1292(a)(1), we
do not have jurisdiction to independently stay Howard’s
execution. Our decision in Williams v. Cain echoes this
conclusion. In Williams, we determined that “the McFarland rule
. . . has nothing to say about the jurisdiction of [the] court to
enter a stay pending disposition of certiorari when the habeas
petition has already been ruled on, the appellate mandate has
issued, and the case is no longer before the court in any
fashion.” Williams, 143 F.3d at 950. See also Teague, 151 F.3d
at 291 (“[O]nce the appellate mandate issues, a habeas petition
is no longer pending before the court of appeals, and we have no
jurisdiction to stay proceedings under § 2251.”). Accordingly,
because our mandate issued over six months ago and Howard’s case
is no longer pending before this court, we therefore lack the
jurisdiction to enter a stay under the clear terms of the AEDPA.
See id. (noting that where the mandate has issued and the
petitioner is seeking stay of his execution pending the
disposition of a writ of certiorari in the Supreme Court, “the
court therefore lacks jurisdiction to enter a stay”); see also 28
U.S.C. § 2251.
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C. Statutory Right to Appointed Counsel
There is at least a question whether Howard’s statutory
right to have appointed counsel represent him throughout every
subsequent stage of available habeas corpus proceedings,
including an application for a writ of certiorari, may have been
violated. Under 21 U.S.C. §§ 848(q)(4)(B),
[i]n any post conviction proceeding under section 2254 or
2255 of title 28 seeking to vacate or set aside a death
sentence, any defendant who is or becomes financially
unable to obtain adequate representation . . . shall be
entitled to the appointment of [counsel] . . . .
The statute further provides:
Unless replaced by similarly qualified counsel upon the
attorney’s own motion or upon motion of the defendant,
each attorney so appointed shall represent the defendant
throughout every subsequent stage of available judicial
proceedings, including . . . applications for writ of
certiorari to the Supreme Court of the United States, and
all available post-conviction process . . . .
21 U.S.C. § 848(q)(8) (2000). According to Howard’s affidavit,
his most recent appointed counsel, Steve Baxley, failed to inform
Howard that (1) this court had denied Howard’s COA, (2) he no
longer represented Howard, and (3) he did not intend to file a
petition for writ of certiorari with the Supreme Court.
Howard has had a string of counsel represent him throughout
his federal habeas corpus proceedings. Keith Weiser represented
Howard on his initial proceedings before the district court.
Howard v. Dretke, No. V-02-01 (S.D. Tex. Jan. 17, 2002).
However, the district court granted Weiser’s motion to withdraw
from representation after the district court’s proceedings.
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Howard v. Dretke, No. V-03-48 (S.D. Tex. Apr. 14, 2004). The
district court then appointed Baxley “to represent Howard
throughout the remainder of his federal proceedings.” Id. In
September 2005, William Zapalac, counsel to the clerk’s office of
United States Court of Appeals for the Fifth Circuit, e-mailed
Baxley, “inquiring whether [Baxley] intend[ed] to file anything
in this court on behalf of Mr. Howard prior to his scheduled
execution.” E-mail from William Zapalac, Counsel to the U.S.
Court of Appeals for the Fifth Circuit Clerk’s Office, to Steve
Baxley (Sept. 21, 2005, 11:56:00 CDT). Baxley’s complete
response follows: “My understanding is that I no longer represent
Mr. Howard and that I was only appointed for the limited purpose
of filing an appeal regarding the denial of the certificate of
appealability.” Id. Judging by his response to this court,
Baxley may not have understood that he had any obligation beyond
filing an appeal regarding the district court’s denial of a COA.
That said, we do not believe that there is any reasonable
probability that, had Baxley filed a petition for a writ of
certiorari, the writ would have been granted or a substantial
possibility that our decision to deny a COA would have been
reversed.
III. CONCLUSION
For the foregoing reasons, we DENY Howard’s motion for a stay
of execution.
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