Buntion v. Lumpkin

• Citation: 31 F.4th 952
• Decision Date: 20 April 2022
• Docket Number: 22-70003 consolidated with No. 22-70004
• Parties: Carl Wayne BUNTION, Petitioner—Appellant, v. Bobby LUMPKIN, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent—Appellee, Carl Wayne Buntion, Plaintiff—Appellant, v. Bryan Collier, Bobby Lumpkin, Dennis Crowley, Defendants—Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

31 F.4th 952

Carl Wayne BUNTION, Petitioner—Appellant,

v.Bobby LUMPKIN, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent—Appellee,Carl Wayne Buntion, Plaintiff—Appellant,

v.Bryan Collier, Bobby Lumpkin, Dennis Crowley, Defendants—Appellees.

No. 22-70003 consolidated with No. 22-70004

United States Court of Appeals, Fifth Circuit.

FILED April 20, 2022

David R. Dow, Jeffrey R. Newberry, University of Houston, Law Center, Houston, TX, for Petitioner-Appellant.

Cara Hanna, Assistant Attorney General, Office of the Attorney General for the State of Texas, Austin, TX, for Respondent-Appellee.

Before Costa, Duncan, and Oldham, Circuit Judges.

Per Curiam:^*

Carl Buntion killed a police officer. The State of Texas prosecuted him for capital murder, and a jury convicted him. He has been sentenced to death twice. He has unsuccessfully applied for postconviction relief in state and federal court, several times each. Most recently, a federal district court denied him a certificate of appealability ("COA"), dismissed his related 42 U.S.C. § 1983 suit, and refused to stay his execution. We consolidated Buntion's last-minute proceedings before our court. We now deny a COA, affirm the district court's § 1983 dismissal, and affirm the district court's denial of a stay.

I.

A.

Our court has narrated the following facts twice before. See Buntion v. Quarterman (Buntion I) , 524 F.3d 664, 666–69 (5th Cir. 2008) ; Buntion v. Lumpkin (Buntion II) , 982 F.3d 945, 947 (5th Cir. 2020) (per curiam). On June 27, 1990, Houston Police Officer James Irby pulled over a car in which Buntion was a passenger. Id. Buntion first ignored Officer Irby's orders.

Id. Then Buntion shot him in the head without provocation. Id. After Officer Irby fell to the ground, Buntion shot him two more times. Id. "Officer Irby died almost instantly." Id.

Buntion fled. He tried to steal a car by shooting at the driver. Id. That did not work, so he "walked into a nearby warehouse and pointed his gun" at two different employees. See id. After he tried to steal one of their vehicles, a police officer arrested him. See id.

A Texas jury convicted Buntion of capital murder in 1991, and that same jury recommended a sentence of death. See id. ; Buntion I , 524 F.3d at 668. The trial court imposed that sentence.

B.

1.

Buntion tried and failed to obtain relief on direct appeal. See Buntion I , 524 F.3d at 668–69 (describing those attempts). He tried and failed to obtain relief in state habeas proceedings. See id. (describing those attempts). Then he tried to obtain relief in federal habeas proceedings. That attempt was unsuccessful as well. See id. at 676 (denying federal habeas relief), cert. denied , 555 U.S. 1176, 129 S.Ct. 1306, 173 L.Ed.2d 593 (2009).

Buntion petitioned for state habeas relief once more. "This time, the Texas Court of Criminal Appeals (‘CCA’) granted the application." Buntion II , 982 F.3d at 947 (citing Ex parte Buntion , No. AP-76236, 2009 WL 3154909 (Tex. Crim. App. Sept. 30, 2009) (per curiam)). After concluding that the jury instructions at Buntion's first trial were inadequate—on the ground that they unjustifiably downplayed his mitigating evidence at the sentencing stage—the CCA remanded for a new punishment hearing. See Ex parte Buntion , 2009 WL 3154909, at *2.

After that hearing, another jury concluded that Buntion should be sentenced to death. See Buntion v. State , 482 S.W.3d 58, 66 (Tex. Crim. App. 2016) (appeal from that determination); see also Buntion II , 982 F.3d at 947–48 (summing up some of the cardinal issues at play in the second hearing). The CCA, Texas's highest court for criminal cases, affirmed that conviction and sentence. See Buntion v. State , 482 S.W.3d at 106 (on direct review). And the Supreme Court once again denied certiorari. Buntion v. Texas , 579 U.S. 934, 136 S. Ct. 2521, 195 L.Ed.2d 851 (2016). Buntion then raised various claims in another state habeas petition, and "[t]he state habeas court denied all of them—some on the merits and some for Buntion's failure to raise them on direct appeal." Buntion II , 982 F.3d at 948.

Buntion filed another federal habeas petition. He raised seven claims in district court, but the district court denied relief. See Buntion II , 982 F.3d at 948. Buntion sought a COA, see 28 U.S.C. § 2253(c), but the district court denied that too. See Buntion II , 982 F.3d at 948.

Then, in the case we've been referring to as Buntion II , Buntion sought a COA from our court based on three of his seven claims. 982 F.3d at 948. We "review[ed] and reject[ed] each claim in turn." Id. Buntion's first claim was an Eighth-and Fourteenth-Amendment challenge, based on the contention that his sentence was unconstitutionally "based on the jury's unreliable and inaccurate predictions about his future dangerousness." Id. We refused a COA on that claim on the ground that it was procedurally defaulted and, in the alternative, meritless. Id. at 949–51. Buntion next argued that the delay between his initial sentencing hearing and his second sentencing hearing "violate[d] the Due Process Clause." Id. at 951. We likewise refused a COA on that argument, on the grounds that it was defaulted and meritless. Id. Third and finally, Buntion argued that the Constitution prohibited his execution "because of how much time he has spent on death row." Id. at 952 ; see also Lackey v. Texas , 514 U.S. 1045, 115 S.Ct. 1421, 131 L.Ed.2d 304 (1995) (memorandum of Stevens, J., respecting the denial of certiorari). We refused a COA on that argument on the ground that it was unexhausted. And we held in the alternative that it was, likewise, "undebatably meritless." Buntion II , 982 F.3d at 952. Accordingly, we denied Buntion's COA application. See id. at 953. And the Supreme Court then denied certiorari for a third time. See Buntion v. Lumpkin , ––– U.S. ––––, 142 S. Ct. 3, 211 L.Ed.2d 151 (2021) (mem.).

2.

On January 4, 2022, Texas scheduled Buntion's execution for April 21, 2022. Buntion subsequently filed another habeas petition in state court. See Ex parte Buntion , No. WR-22,548-05, 2022 WL 946264, at *1 (Tex. Crim. App. Mar. 30, 2022) (describing the petition). That petition raised two claims that we rejected in Buntion II —namely, the Lackey claim and the future-dangerousness claim. Id. His third claim was that "[t]he evolving standards of decency that mark the progress of a maturing society under the Eighth and Fourteenth Amendments prohibit executions as a punishment for murder." Id. (quotation omitted).

Pursuant to Texas Code of Criminal Procedure article 11.071, § 5, the CCA "dismiss[ed] [Buntion's] subsequent application as an abuse of the writ without considering the claims' merits." Id. ; see also TEX. CODE CRIM. PROC. ART. 11.071, § 5(a) (providing that "[i]f a subsequent application for a writ of habeas corpus is filed after filing an initial application, a court may not consider the merits of or grant relief based on the subsequent application unless the application contains sufficient specific facts establishing that ..." and going on to explain the relevant showings).

On April 6, 2022, Buntion filed another federal habeas petition. That is the petition at issue in this case. Under 28 U.S.C. § 2244, "[b]efore a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application." § 2244(b)(3)(A). Rather than filing such a motion, Buntion simply filed his habeas petition in the district court.

The district court held that § 2244(b) bars Buntion's petition. The district court reasoned that, because this is a successive federal habeas petition, § 2244(b) applies. And both of the arguments raised in the petition (namely, the future-dangerousness claim and Lackey claim) were raised in a prior habeas petition and hence are barred. See § 2244(b)(1) ("A claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed."). It rejected Buntion's arguments to the contrary and dismissed his petition for lack of jurisdiction. See Williams v. Thaler , 602 F.3d 291, 301 (5th Cir. 2010) ("A petitioner's failure to seek authorization from an appellate court before filing a second or successive habeas petition acts as a jurisdictional bar." (quotation omitted)). In the same order, the district court denied Buntion's motion for a COA. Buntion timely applied for a COA in this court.

3.

On April 7, 2022, Buntion sued various Texas officials in their official capacities in federal district court. See 42 U.S.C. § 1983. His complaint included one claim: the Lackey claim. One week later, on April 14, Buntion moved the district court for a stay of his execution based on that claim.

The district court denied the stay. It applied the Supreme Court's four-factor test for emergency equitable relief, see Nken v. Holder , 556 U.S. 418, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009), and held that Buntion failed to make the requisite showing. Specifically, it held Buntion had not made a strong showing of likely success on the merits, that a stay would substantially injure the other party in this case (Texas), and that the public interest did not favor a stay. It concluded that, even though Buntion's impending execution amounted to irreparable injury, a stay was not warranted. The court also noted the last-minute nature of Buntion's suit and suggested Buntion should have sued earlier. In the same order, the district court also dismissed Buntion's complaint with prejudice. See 28 U.S.C. § 1915A (directing district courts to review "before docketing, if feasible or, in any event, as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity," and to dismiss the complaint if it ...