United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
June 27, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
06-70028
ANGEL MATURINO RESENDIZ,
Petitioner-Appellant,
v.
NATHANIEL QUARTERMAN, Director,
Texas Department of Criminal Justice,
Correctional Institutions Division,
Respondent-Appellee.
Appeal from the United States District Court
for the Southern District of Texas
Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:
Petitioner-Appellant, Angel Maturino Resendiz, was convicted
of capital murder in Texas and sentenced to death. His execution
is scheduled for June 27, 2006. In his first petition for writ of
habeas corpus, Resendiz argued that it was unconstitutional for a
defendant to have the burden of proving circumstances that mitigate
against the death penalty. The district court denied relief on the
merits, and this Court dismissed the appeal for lack of
jurisdiction because of an untimely notice of appeal.
Resendiz returned to district court and filed a petition for
writ of habeas corpus, alleging that his mental illness rendered
him incompetent to be executed. See Ford v. Wainwright, 477 U.S.
399 (1986). He moved the district court to stay his impending
execution to allow him to prove his incompetency to be executed.
Applying Fifth Circuit precedent, the district court determined
that Resendiz’s petition constituted a successive habeas petition
under the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”).
Richardson v. Johnson, 256 F.3d 257 (5th Cir. 2001). Because it
was a successive petition under AEDPA, the district court had no
jurisdiction. See 28 U.S.C. § 2244(b)(3)(A). The district court
then transferred the petition pursuant to 28 U.S.C. § 2244(b)(2)
for this Court to determine whether Resendiz is authorized to file
a successive habeas petition.1
Relatedly, in Texas state court, Resendiz filed a motion
claiming incompetency to be executed pursuant to Tex. Code Crim.
Proc. art. 46.05. After numerous mental health experts examined
Resendiz, the state district court held a competency hearing during
which five experts testified regarding Resendiz’s competency.
After the hearing, the state court found that “Drs. Stewart,
Puente, and Patino concluded that the defendant is incompetent to
1
In this proceeding, Resendiz does not seek authorization
to file a successive habeas petition. In any event, to the
extent that his arguments could be construed as a request for
authorization to file a successive petition, he woefully fails to
meet the requirements of 28 U.S.C. § 2244(b)(2).
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be executed and that Drs. Gripon, Brown, and Moeller concluded that
the defendant is competent to be executed.” The court further
found, among other things, “based on the reports and hearing
testimony, that the defendant understands he is to be executed and
that the execution is imminent, and the reason he is being
executed.” Thus, the state court found Resendiz competent to be
executed.
Resendiz thereafter sought a Certificate of Appealability
(“COA”) in the district court, which denied it. We have before us
Resendiz’s contention that his Ford claim does not constitute a
successive petition. “[A] district court’s dismissal of a motion
on the ground that it is an unauthorized successive collateral
attack constitutes a final order within the scope of 28 U.S.C. §
2253(c), and therefore a certificate of appealability is required.”
Sveum v. Smith, 403 F.3d 447, 448 (7th Cir. 2005).
A COA will be granted only if the petitioner makes “a
substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2). “A petitioner satisfies this standard by
demonstrating that jurists of reason could disagree with the
district court's resolution of his constitutional claims or that
jurists could conclude the issues presented are adequate to deserve
encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S.
322, 327 (2003).
In In re Davis, 121 F.3d 952 (5th Cir. 1997), this Court held
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that a claim of incompetency to be executed that was raised for the
first time in a second habeas petition was barred as a successive
claim under AEDPA. Subsequently, the Supreme Court held that a
petitioner’s claim of incompetency to be executed, raised in a
second petition after his first claim of incompetency was dismissed
by the district court as premature, was not a “second or
successive” application under AEDPA. Stewart v. Martinez-
Villareal, 523 U.S. 637 (1998). However, the Supreme Court
expressly stated that it was not addressing a case in which the
petitioner had failed to bring the claim in the first habeas
petition, which is what happened in the case at bar. Id. at 644
n.*. Further, this Court has opined that Martinez-Villareal did
not “overrul[e] or cast[ ] doubt on our decision in In re: Davis.”
Richardson, 256 F.3d at 259.
Richardson controls this case. In Richardson, as in the
instant case, the petitioner did not raise the claim of
incompetency to be executed in his first federal habeas petition.
256 F.3d at 258. Richardson, like Resendiz, raised the claim for
the first time in a second petition. Id. We rejected Richardson’s
assertion that the factual basis for his incompetency claim could
not have been discovered prior to filing his first petition,
stating that such a claim was refuted by his own expert witness and
“the assertion that he has long suffered this bipolar disorder.”
Id. at 259. Resendiz also had a history of mental illness prior to
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filing his first petition. Indeed, at the guilt phase of his
capital murder trial, Resendiz called an expert witness to testify
that he was insane at the time of the instant offense. Resendiz v.
State, 112 S.W.3d 541, 544 (Tex.Crim.App. 2003). Ultimately,
treating Richardson’s competency claim as a successive writ, this
Court denied a COA and stay of execution. Richardson, 256 F.3d at
259. Under these circumstances, Resendiz has not demonstrated that
jurists of reason could disagree with the district court’s
treatment of his competency claim as a successive petition or that
jurists could conclude the issue presented is adequate to deserve
encouragement to proceed further.
For the above reasons, Resendiz’s application for a COA is DENIED. The motion for stay
of execution is DENIED. The panel directs that the mandate issue instanter. See Rule 8.8 of the
Fifth Circuit Local Rules.
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