IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 14, 2009
No. 09-70013 Charles R. Fulbruge III
Clerk
MICHAEL ROSALES
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 Northern District of Texas
Before DAVIS, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:
Petitioner Michael Rosales is scheduled to be executed Wednesday, April
15, 2009. On April 8, 2009, he filed motions in the Northern District of Texas for
appointment of counsel to assist in clemency proceedings and for a stay of his
execution. Rosales appeals the district court’s denial of both motions for stay of
execution and for appointment of counsel, asking us to reverse and to grant the
motions. For the reasons set forth below, we AFFIRM the judgment of the
district court.
No. 09-70013
I. BACKGROUND
The procedural history of Rosales’s case is as follows:
In May 1998, Rosales was convicted and sentenced to death for the
murder of Mary Felder, which occurred during the course of a
burglary or robbery. On direct appeal, Rosales’ conviction and
sentence w[ere] affirmed by the Texas Court of Criminal Appeals
(“TCCA”); the United States Supreme Court denied certiorari
review. Rosales also sought state and federal habeas relief, both of
which were denied. On April 7, 2004, less than one week before his
scheduled execution, Rosales filed a successive state habeas
application arguing that he is mentally retarded and thus his
execution is barred by Atkins v. Virginia, 536 U.S. 304 (2002). . . .
On April 12, 2004, one day before his scheduled execution, the
TCCA held that Rosales’ application failed to “set out sufficient facts
to raise a bona fide claim under Atkins ” and therefore dismissed his
application as an abuse of the writ and denied his motion for a stay
of execution. Ex parte Rosales, No. 55, 761-02 (Tex. Crim App.2004).
That same day, Rosales filed a petition for writ of certiorari at the
United States Supreme Court as well as a motion requesting a stay
of execution and authorization to file a successive petition for writ
of habeas corpus in this court. While the Supreme Court denied his
petition on May 17, 2004, this court had already granted his request
for a stay of execution as well as his motion for leave to file a
successive petition on April 13, 2004. On April 15, 2004, Rosales
filed a motion in federal district court requesting the appointment
of counsel, permission to proceed in forma pauperis, permission to
file a skeletal petition, and expenses to retain an investigator and
a mental health expert. The motion was granted on April 22, 2004.
On May 21, 2004, Rosales filed his amended petition and attached
affidavits or declarations from eleven different witnesses. . . .
Rosales v. Quarterman, 291 F. App’x 558, 559-60 (5th Cir. 2008). After
conducting an evidentiary hearing, the district court denied Rosales’s petition.
Rosales then moved this court for a COA. On August 19, 2008, this court
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granted Rosales a COA as to his Atkins claim out of “an abundance of caution.”
Id. at 562. The court concomitantly affirmed the district court judgment
dismissing that claim. Id. at 563. The Supreme Court denied Rosales’s petition
for certiorari on February 23, 2009. Rosales v. Quarterman, 129 S.Ct. 1317
(2009).
After the denial of certiorari, the presiding judge of the 364th Judicial
District Court of Lubbock County, Texas, scheduled Rosales’s execution for
Wednesday, April 15, 2009. Therefore, under Texas law, any application that
Rosales sought to make to the Texas Board of Pardons and Paroles Clemency
Section (“Clemency Board”) was due no later than March 25, 2009. See 37 Tex.
Admin. Code §§ 143.43(a) (requiring the written application on behalf of a
convicted person seeking recommendation of a reprieve from execution to be
delivered to the Clemency Board no later than twenty-one calendar days before
the execution date), 143.57(b) (requiring the written application on behalf of a
convicted person seeking recommendation of commutation of death penalty to
lesser penalty to be delivered to the Clemency Board no later than twenty-one
calendar days before the execution date).
Rosales did not file an application with the Clemency Board for either a
reprieve of execution or commutation of his death penalty prior to the deadline,
nor does the record indicate that he has made any such request or filing to date.
On Wednesday, April 8, 2009, Rosales filed motions for appointment of
counsel and for stay of execution in federal district court, and the State filed its
opposition to both. The same day, in a single-paragraph opinion, the district
court stated that Rosales’s motion should be denied “in all things,” and cited to
Harbison v. Bell, — S.Ct. —, No. 07-8521, 2009 WL 838173, at *4 (Apr. 1, 2009),
which quotes the statutory language from 18 U.S.C. § 3599(e): “once federally
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funded counsel is appointed to represent a state prisoner in § 2254 proceedings,
she ‘shall also represent the defendant in such . . . proceedings for executive or
other clemency as may be available to the defendant’” (emphasis added by
district court). Although the district court did not elaborate on its reasoning,
presumably the emphasis on “as may be available” indicates that the motions
were denied because the court concluded that state clemency relief was no longer
available because Rosales’s deadline to file an application with the Clemency
Board had passed.
On April 9, 2009, Rosales appealed, and the parties completed their
briefing the next day.
II. DISCUSSION
A. Application for Stay of Execution
Rosales argues that the district court has the power to stay his execution
to allow his new counsel time to prepare and make a filing with the Clemency
Board under McFarland v. Scott, 512 U.S. 849, 857-58 (1994). However,
McFarland does not grant the district court or this court greater authority to
stay an execution than is found in the statutory language of 28 U.S.C. § 2251,
and Rosales’s reliance on the case for a broad reading of the district court’s
power to issue a stay is misplaced.
“Federal courts cannot enjoin state-court proceedings unless the
intervention is authorized expressly by federal statute or falls under one of two
other exceptions to the Anti-Injunction Act.” McFarland, 512 U.S. at 857.
However, “[t]he federal habeas corpus statute grants any federal judge ‘before
whom a habeas corpus proceeding is pending’ power to stay a state-court action
“for any matter involved in the habeas corpus proceeding.” Id. (quoting § 2251)
(emphasis added); see also Williams v. Cain, 143 F.3d 949, 950 (5th Cir. 1998).
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The power to issue a stay of execution comes from § 2251, and the question
is whether there is a pending or potential habeas corpus proceeding before the
court. See Teague v. Johnson, 151 F.3d 291 (5th Cir. 1998) (“once 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”);
Williams, 143 F.3d at 950 (holding district court has no power under § 2251 to
stay execution when there is no pending habeas proceeding); see also Howard v.
Dretke, 157 F. App’x 667, 570-72 (5th Cir. 2005) (unpublished) (holding both the
district court and this court lacked jurisdiction to grant stay of execution in
conjunction with motion for appointment of counsel that was not tied to pending
or proposed habeas proceeding in the district court, relying on the language of
§ 2251, Williams, and Teague). There is no dispute in this matter that no
habeas petition remains pending in the federal courts. Therefore, both the
district court and this court are without jurisdiction to enter a stay of execution.
B. Motion for Appointment of Counsel
Rosales argues that he is entitled to appointed counsel to investigate and
present his argument for clemency to the Clemency Board, pursuant to the
recent holding of the United States Supreme Court in Harbison v. Bell, — S.Ct.
—, No. 07-8521, 2009 WL 838173 (Apr. 1, 2009). In Harbison, the Supreme
Court announced that 18 U.S.C. § 3599 authorizes federally appointed counsel
to represent their clients in state clemency proceedings and entitles them to
compensation for that representation.
[O]nce federally funded counsel is appointed to represent a state
prisoner in § 2254 proceedings, she “shall also represent the
defendant in such . . . proceedings for executive or other clemency
as may be available to that defendant.” § 3599(e). Because state
clemency proceedings are “available” to state petitioners who obtain
representation pursuant to subsection (a)(2), the statutory language
indicates that appointed counsel’s authorized representation
includes such proceedings.
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2009 WL 838173 at *4. Until the Harbison decision, this court’s precedent
denied appointment of federal counsel for post-habeas state clemency
proceedings. See Clark v. Johnson, 278 F.3d 459 (2002).
However, we do not read Harbison so broadly as to require the
appointment of new counsel where the already-appointed counsel has never
withdrawn from the case and is well familiar with the facts on which the
petitioner claims his clemency petition should be based. Reviewing the record,
attorneys were appointed counsel to Rosales in April 2004 to file a successive
habeas petition containing his Atkins claim. As those attorneys have never
withdrawn from the case, we agree with the State that Rosales had appointed
counsel during the time in which he could have made an application to the
Clemency Board.
Moreover, in reviewing the papers submitted to this court, we note that
there is no assertion made that there is any additional evidence in support of
Rosales’s Atkins claim beyond that which was presented to the district court and
Fifth Circuit in his habeas proceeding. Rosales’s motion asserts that there might
be evidence of a pre-age eighteen onset of mental retardation to be uncovered
with additional resources. But beyond that speculative assertion, he does not
specify what evidence might be uncovered that was not discovered during his
habeas litigation.
Finding this case factually and procedurally distinguishable from
Harbison, we find no abuse of discretion in the district court’s denial of Rosales’s
motion for the appointment of counsel.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the district court.
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