Sepulvado v. Cain (In re Sepulvado)

• Decision Date: 07 February 2013
• Docket Number: 13–70004.,Nos. 13–30058,s. 13–30058
• Citation: 707 F.3d 550
• Parties: In re Christopher SEPULVADO, Movant. Christopher Sepulvado, Petitioner–Appellant, v. Burl Cain, Warden, Louisiana State Penitentiary, Respondent–Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

707 F.3d 550

In re Christopher SEPULVADO, Movant.Christopher Sepulvado, Petitioner–Appellant,

v.Burl Cain, Warden, Louisiana State Penitentiary, Respondent–Appellee.

Nos. 13–30058, 13–70004.

United States Court of Appeals,Fifth Circuit.

Feb. 7, 2013.

Gary Patrick Clements, Kathleen Ann Kelly, Capital Post–Conviction Project of Louisiana, New Orleans, LA, for Movant/Petitioner–Appellant.

Richard Zemry Johnson, Jr., Attorney, District Attorney's Office for the 11th Judicial District, Mansfield, LA, for Respondent–Appellee.

Appeals from the United States District Court for the Western District of Louisiana.

Before STEWART, Chief Judge, SMITH and SOUTHWICK, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Christopher Sepulvado is scheduled to be executed February 13, 2013. He appeals an order transferring his second-in-time petition for writ of habeas corpus, amended motion to appoint counsel, and motion to stay his execution. He also requests a certificate of appealability (“COA”).¹ We affirm the order of transfer, dismiss the habeas petition and amended motion to appoint counsel, deny the motion for stay of execution, and dismiss the request for a COA. We also direct the clerk to notify Sepulvado that, should he wish to file a successive petition for writ of habeas corpus, a motion for authorization must be filed with this court pursuant to 28 U.S.C. § 2244(b)(3).

I.

In 1993, Sepulvado was convicted and sentenced to death for the first-degree murder of his six-year-old stepson. His conviction and sentence were affirmed. State v. Sepulvado, 672 So.2d 158 (La.),cert. denied,519 U.S. 934, 117 S.Ct. 310, 136 L.Ed.2d 227 (1996). Sepulvado sought post-conviction relief in state and federal court. The federal district court denied habeas relief, Sepulvado v. Cain, No. 00–596 (W.D.La. Aug. 9, 2002), and denied Sepulvado's application for a COA. In a detailed opinion setting out the facts and proceedings, we denied Sepulvado's request for a COA on six issues. Sepulvado v. Cain, 58 Fed.Appx. 595, 2003 WL 261769 (5th Cir.) (unpublished), cert. denied,540 U.S. 842, 124 S.Ct. 110, 157 L.Ed.2d 76 (2003).

Nearly a decade later, Sepulvado filed a second-in-time federal habeas petition pursuant to 28 U.S.C. § 2241. The district court deemed the petition “successive” and thus barred by 28 U.S.C. § 2244(b)(3)(A), which requires an applicant seeking to file a second or successive petition “to move in the appropriate court of appeals for an order authorizing the district court.” Believing it lacked jurisdiction to consider Sepulvado's motions, the district court transferred them to us “to determine whether he is authorized to file the instant petition.” See28 U.S.C. § 1631. Sepulvado appealed the transfer order and filed a brief “in Support of Application for a Certificate of Appealability and Stay of Execution.”

II.

We first address, sua sponte, our appellate jurisdiction to hear this case, which comes to us as an appeal from the district court's transfer order. ² “[A]s the transferee court, we have before us both the appeal from the transfer order and [a habeas] motion,” ³ along with Sepulvado's other related motions. Although in Bradford the petitioner was a federal prisoner who filed his habeas motion under 28 U.S.C. § 2255, and Sepulvado is a state prisoner who made his application pursuant to § 2241, that distinction does not affect our analysis. As in Bradford, “the appeal of the transfer order: (1) will conclusively determine the correctness of the transfer; (2) is separate from the merits of the [habeas] motion; and (3) is effectively unreviewable if the appeal is dismissed.” Id. We conclude, therefore, that we have jurisdiction over both the district court's order and the motions it transferred thereby. Id.

III.

In concluding that it lacked jurisdiction to consider Sepulvado's second-in-time habeas petition, the district court relied on § 2244(b), which sharply limits the federal courts' consideration of “second or successive” habeas applications. The district court determined that

before this petition can be considered on the merits by this Court, Petitioner must obtain authorization from the United States Fifth Circuit Court of Appeals, in accordance with 29 U.S.C. § 2244(b)(3), by making a prima facie showing to the appellate court that his petition may be considered under the requirements set forth in 28 U.S.C. § 2244(b)(2). Until such time as Petitioner obtains said authorization, this Court is without jurisdiction to proceed on the petition or the ancillary motions.

“The question of whether the district court lacked jurisdiction over [a] second-in-time federal habeas petition depends on whether [the] petition is a ‘second or successive’ petition within the meaning of 28 U.S.C. § 2244.” Adams v. Thaler, 679 F.3d 312, 321 (5th Cir.2012). The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), however,

does not define “second or successive.” The Supreme Court has stated that the term “takes its full meaning from [the Court's] case law, including decisions predating the enactment of [AEDPA].” Panetti v. Quarterman, 551 U.S. 930, 943–44 [127 S.Ct. 2842, 168 L.Ed.2d 662] (2007). “The Court has declined to interpret ‘second or successive’ as referring to all § 2254 applications filed second or successively in time, even when the later filings address a state-court judgment already challenged in a prior § 2254 application.” Id. at 944 For instance, in Slack v. McDaniel, 529 U.S. 473 [120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) ], the Court concluded that “[a] habeas petition filed in the district court after an initial habeas petition was unadjudicated on its merits and dismissed for failure to exhaust state remedies is not a second or successive petition.” Id. at 485–86 ;see also Panetti, 551 U.S. at 944–46 (holding that “a § 2254 application raising a Ford [ v. Wainwright]-based⁴ incompetency claim filed as soon as that claim is ripe” is not a successive petition); Stewart v. Martinez–Villareal, 523 U.S. 637, 643–45 [118 S.Ct. 1618, 140 L.Ed.2d 849] (1998) (holding that a second-in-time federal habeas petition is not “successive” when it only raises a Ford claim that was previously dismissed as premature).

Id. Although “[a] prisoner's application is not second or successive simply because it follows an earlier federal petition,” In re Cain, 137 F.3d 234, 235 (5th Cir.1998), it is the well-settled law of this circuit that “a later petition is 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,” id.⁵

According to Sepulvado's brief, his second-in-time habeas petition alleges that his [state] post-conviction counsel—who was also his federal habeas counsel—was ineffective for failing to investigate and present the following claims in state or federal court: (1) petitioner was deprived of his right to conflict[-]free trial counsel and this, in turn, excused the default of his meritorious Campbell claim; (2) the jury was not fair and impartial because it was exposed to extraneous and prejudicial influences; and, (3) trial counsel was ineffective for failing to raise the juror misconduct claim in a post-trial motion.

Sepulvado urges that his instant claims—brought a full decade after we denied a COA for claims raised in his first habeas petition—were not ripe before Martinez v. Ryan, ––– U.S. ––––, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012).

To the extent that Sepulvado relies on a supposed constitutional right to the effective assistance of post-conviction counsel, he misapprehends the holding and import of Martinez, which did not alter our rule that “the Sixth Amendment does not apply in habeas proceedings.” ⁶ “Because appointment of counsel on state habeas is not constitutionally required, any error committed by an attorney in such a proceeding ‘cannot be constitutionally ineffective.’ ” ⁷Martinez explicitly left open the constitutional question “whether a prisoner has a right to effective counsel in collateral proceedings which provide the first occasion to raise a claim of ineffective assistance at trial.” Id. at 1315.

Rather than establish a new rule of constitutional law, Martinez is an “equitable ruling” that “qualifies Coleman by recognizing a narrow exception: inadequate assistance of counsel at initial-review collateral proceedings may establish cause for a prisoner's procedural default of a claim of ineffective assistance at trial.” ⁸ Ordinarily, the doctrine of procedural default means that “federal courts will not review the merits of claims, including constitutional claims, that a state court declined to hear because the prisoner failed to abide by a state procedural rule.” Id. at 1309. Sepulvado's habeas petition argues that, under Martinez, the ineffective assistance of Sepulvado's post-conviction counsel establishes cause for the procedural default of two claims: (1) that one of Sepulvado's trial counsel had an actual conflict of interest that prevented him from raising a meritorious claim under Campbell v. Louisiana, 523 U.S. 392, 118 S.Ct. 1419, 140 L.Ed.2d 551 (1998); and (2) that trial counsel were ineffective for failing to raise a jury-misconduct claim in a motion for new trial.

It is far from evident that either of Sepulvado's ineffective-assistance-of-trial-counsel claims is procedurally defaulted.⁹He did raise several ineffective-assistance-of-trial-counsel claims in his initial petition for state-court relief, which this court addressed on the merits. See Sepulvado v. Cain, 58 Fed.Appx. 595, 2003 WL 261769, at *3–5. Jury misconduct, however, was not among them, though it could have been raised then, thus rendering any attempt to raise it now as successive. In the opinion that we issued, we did discuss Sepulvado's procedurally-defaulted argument that his trial counsel was ineffective—rather than conflicted—for failing to raise the...