Resendiz v. Quarterman

• Decision Date: 27 June 2006
• Docket Number: No. 06-70028.,06-70028.
• Parties: Angel Maturino RESENDIZ, Petitioner-Appellant, v. Nathaniel QUARTERMAN, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

454 F.3d 456

Angel Maturino RESENDIZ, Petitioner-Appellant, v. Nathaniel QUARTERMAN, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee.

No. 06-70028.

United States Court of Appeals, Fifth Circuit.

June 27, 2006.

Jack B. Zimmermann, Zimmermann & Lavine, Houston, TX, for Resendiz.

Edward Larry Marshall, Austin, TX, for Quarterman.

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, 106 S.Ct. 2595, 91 L.Ed.2d 335 (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 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, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003).

In In re Davis, 121 F.3d 952 (5th Cir. 1997), this Court held 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, 118 S.Ct. 1618, 140 L.Ed.2d 849 (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. *, 118 S.Ct. 1618. 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...