Cardenas v. Thaler

• Decision Date: 22 August 2011
• Docket Number: No. 08–70043.,08–70043.
• Citation: 651 F.3d 442,80 Fed.R.Serv.3d 502
• Parties: Ruben Ramirez CARDENAS, Petitioner–Appellantv.Rick THALER, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent–Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

651 F.3d 442

80 Fed.R.Serv.3d 502

Ruben Ramirez CARDENAS, Petitioner–Appellant

v.Rick THALER, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent–Appellee.

No. 08–70043.

United States Court of Appeals, Fifth Circuit.

Aug. 22, 2011.

Neil Martin Fox, Seattle, WA, Maurie Levin, University of Texas School of Law, Capital Punishment Clinic, Austin, TX, Morris H. Moon, Houston, TX, for Petitioner–Appellant.Laura Grant Turbin, Asst. Atty. Gen., Austin, TX, for Respondent–Appellee.Appeal from the United States District Court for the Southern District of Texas.Before GARZA, STEWART, and DENNIS, Circuit Judges.DENNIS, Circuit Judge:

The Petitioner, Ruben Ramirez Cardenas, appeals the district court's dismissal of his 28 U.S.C. § 2254 application as an unauthorized successive habeas petition. Under the Antiterrorism and Effective Death Penalty Act, a certificate of appealability (“COA”) is necessary to proceed with this appeal. See 28 U.S.C. § 2253(c)(1) (“Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals....”); see also Resendiz v. Quarterman, 454 F.3d 456, 458 (5th Cir.2006) (“ ‘[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.’ ” (alteration in original) (quoting Sveum v. Smith, 403 F.3d 447, 448 (7th Cir.2005))).

However, the district court did not rule upon whether a COA is warranted, and “the lack of a ruling on a COA in the district court causes this court to be without jurisdiction to consider the appeal.” Whitehead v. Johnson, 157 F.3d 384, 388 (5th Cir.1998); see also Brewer v. Quarterman, 475 F.3d 253, 255 (5th Cir.2006) (per curiam) (“A district court must deny the COA before a petitioner can request one from this court. A request for COA must be filed in the district court before such a request can be made in the circuit court.” (internal quotation marks omitted)); Miller v. Dretke, 404 F.3d 908, 912 (5th Cir.2005) (“Under Federal Rule of Appellate Procedure 22(b)(1), the district court must first decide whether to grant a COA request before one can be requested here.”); Sonnier v. Johnson, 161 F.3d 941, 946 (5th Cir.1998) (“[T]he lack of a ruling on a COA in the district court causes this court to be without jurisdiction to consider the appeal.”); United States v. Youngblood, 116 F.3d 1113, 1115 (5th Cir.1997) (“Under Muniz

[ v. Johnson, 114 F.3d 43, 45 (5th Cir.1997) ]

, jurisdiction is not vested in this Court because the district court has not yet considered whether [a] COA should issue.”); Muniz, 114 F.3d at 45 (“A district court must deny the COA before a petitioner can request one from this court.”). Accordingly, we lack jurisdiction to consider this appeal and therefore, we must remand to the district court to consider in the first instance whether to grant or deny a COA.

It does not affect our judgment that the jurisdictional rule laid down in the cases cited is grounded in a portion of Rule 22 of the Federal Rules of Appellate Procedure that was removed in 2009. See Supreme Court Order of March 26, 2009, available at http:// www. supremecourt. gov/ orders/ courtorders/ frap 09. pdf. That provision read: “If an appeal is taken by the applicant, the district judge who rendered the judgment shall either issue a certificate of appealability or state the reasons why such a certificate should not issue.” Fed. R.App. P. 22(b) (2008).¹ This appeal was commenced before the 2009 amendments were effective, and these amendments apply to pending appeals, such as this, only “insofar as just and practicable.” See Supreme Court Order of March 26, 2009. We conclude that it would not be just and practicable to apply the amended rules in this case.² At the time this case was heard and decided in the district court, the rules preceding the 2009 amendments were still in effect—that is, the pertinent rule was found in Rule 22 of the Federal Rules of Appellate Procedure and was not, as it is now, consolidated with the other Rules Governing Section 2254 Cases. Accordingly, the parties and the district court did not have the benefit of the 2009 amendments. Further, the parties have not briefed whether the 2009 amendments affect our jurisdictional rule based on former Rule 22. Therefore, we conclude that this case is governed by Rule 22 of the Federal Rules of Appellate Procedure as it existed before the 2009 amendments.

Our precedents have held, unequivocally, that under former Rule 22, “ the lack of a ruling on a COA in the district court causes this court to be without jurisdiction to consider the appeal.” Sonnier, 161 F.3d at 946 (emphases added); see also Brewer, 475 F.3d at 255; Whitehead, 157 F.3d at 388; Youngblood, 116 F.3d at 1115.³ That is, our cases have all said that it is the absence of a ruling on the COA in the district court, and not merely the absence of a COA itself, which deprives us of appellate jurisdiction. In Muniz, we explained the sensible rationale for having the district courts first decide whether a COA should issue:

The rule contemplates that the district court will make the first judgment whether a COA should issue and on which issues, and that the circuit court will be informed by the district court's determination in its own decisionmaking.

....

[W]e are cognizant of the district court's superior familiarity with this habeas petition. Its considerable experience with this case should allow it accurately to determine which issues satisfy the COA requirement.

114 F.3d at 45. While Muniz dealt with a slightly different scenario than this case—the district court there had issued a Certificate of Probable Cause, which, unlike a COA, did not require the court to specify particular issues for appeal, and “deciding the COA issue ourselves risk[ed] inconsistent adjudication,” id.—our subsequent decisions in Youngblood, Whitehead, Sonnier, and Brewer all involved the same situation presented here, viz., whether we can rule on an application for a COA in the first instance. See Brewer, 475 F.3d at 255; Whitehead, 157 F.3d at 388; Sonnier, 161 F.3d at 945–46; Youngblood, 116 F.3d at 1115. All of those decisions concluded that the absence of a prior determination by the district court on whether a COA should issue posed a jurisdictional bar to this court's consideration of whether to grant or deny a COA. Brewer, 475 F.3d at 255; Whitehead, 157 F.3d at 388; Sonnier, 161 F.3d at 945–46; Youngblood, 116 F.3d at 1115. Accordingly, we are bound by those decisions to reach the same conclusion. See Burge v. Parish of St. Tammany, 187 F.3d 452, 466 (5th Cir.1999) (“It is a firm rule of this circuit that in the absence of an intervening contrary or superseding decision by this court sitting en banc or by the United States Supreme Court, a panel cannot overrule a prior panel's decision.” (citing Billiot v. Puckett, 135 F.3d 311, 316 (5th Cir.1998))).

The Respondent contends that we can apply Rule 2 of the Federal Rules of Appellate Procedure to avoid the jurisdictional requirement of former Rule 22. We disagree. Rule 2 allows “a court of appeals ... [to] suspend any provision of the[ ] [Federal Rules of Appellate Procedure] in a particular case.” Fed. R.App. P. 2. However, the Respondent cites no authority, and we are aware of none, that has held that Rule 2 allows us to suspend a jurisdictional requirement of the Federal Rules of Appellate Procedure. Indeed, in Torres v. Oakland Scavenger Co., 487 U.S. 312, 108 S.Ct. 2405, 101 L.Ed.2d 285 (1988), the Supreme Court addressed a closely related question and held that “[a court of appeals] may not waive the jurisdictional requirements of Rules 3 and 4 [of the Federal Rules of Appellate Procedure], even for ‘good cause shown’ under Rule 2, if it finds that they have not been met.” Id. at 317, 108 S.Ct. 2405. Likewise, at least two of our sister courts of appeals have held that Rule 2 does not permit avoiding jurisdictional requirements. See, e.g., Lazy Oil Co. v. Witco Corp., 166 F.3d 581, 587 n. 9 (3d Cir.1999) (“We are, of course, mindful of the fact that the authority of Rule 2 cannot be utilized to expand the jurisdiction of the Court.” (citing Torres, 487 U.S. at 315, 108 S.Ct. 2405)); Dura Sys., Inc. v. Rothbury Invs., Ltd., 886 F.2d 551, 555 (3d Cir.1989) (citing Torres, 487 U.S. at 317, 108 S.Ct. 2405, for the proposition that “jurisdictional requirements may not be waived, even for ‘good cause shown’ under Rule 2”); United States v. Stemm, 835 F.2d 732, 734 (10th Cir.1987) (“We interpret [Rule 2] to establish the basis of expedited proceedings in appropriate cases, excepting any action affecting appellate court jurisdiction.”). The several cases cited by the Respondent are all inapposite because they did not involve the application of Rule 2 to suspend a jurisdictional rule. See United States v. Mitchell, 216 F.3d 1126, 1130 (D.C.Cir.2000) (holding first that Rule 22 was not a jurisdictional requirement, and then relying on Rule 2 to avoid former Rule 22 and consider the COA despite the fact that the district court had not first ruled on it); United States v. Sylvester, 143 F.3d 923, 935 n. 12 (5th Cir.1998) (relying on Rule 2 to construe an argument that had been raised by only one defendant-appellant as having been adopted by a co-defendant-appellant); Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1161–63 (5th Cir.1969) (upholding “this Court's power under FRAP Rule 2 to summarily dispose of the appeal” without oral argument). Accordingly, we remain unpersuaded that Rule 2 allows us to avoid the jurisdictional requirement of former Rule 22.

The decisions of the other circuits that have considered a COA without a prior ruling by the district court are similarly inapposite because those circuits did not have binding precedent, as ...