Storey v. Lumpkin

• Citation: 8 F.4th 382
• Decision Date: 06 August 2021
• Docket Number: 20-10805,No. 20-70014 consolidated with Nos. 20-70016, 20-70017,20-70014 consolidated with Nos. 20-70016
• Parties: Paul David STOREY, Petitioner—Appellant, v. Bobby LUMPKIN, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent—Appellee, In re: Paul David Storey, Movant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

8 F.4th 382

Paul David STOREY, Petitioner—Appellant,

v. Bobby LUMPKIN, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent—Appellee,In re: Paul David Storey, Movant.

No. 20-70014 consolidated with Nos. 20-70016

20-70017

20-10805

United States Court of Appeals, Fifth Circuit.

FILED August 6, 2021

Michael Ware, Fort Worth, TX, Keith S. Hampton, Austin, TX, for Petitioner-Appellant.

Travis Golden Bragg, Assistant Attorney General, Office of the Attorney General, Criminal Appeals Division, Austin, TX, Edward Larry Marshall, Office of the Attorney General, Financial Litigation & Charitable Trusts Division, Austin, TX, for Respondent-Appellee.

Before Smith, Haynes, and Higginson, Circuit Judges.

Stephen A. Higginson, Circuit Judge:

In September 2008, Petitioner Paul David Storey was convicted of capital murder and sentenced to death in Criminal District Court No. 3 of Tarrant County, Texas, for the murder of Jonas Cherry. His efforts to challenge his conviction and sentence were unsuccessful on direct review and in initial state and federal habeas proceedings. The state trial court scheduled Storey's execution for April 12, 2017. Ex parte Storey , 584 S.W.3d 437, 438 (Tex. Crim. App. 2019) (per curiam).

Storey claims that in the weeks leading up to his execution, his counsel learned that the victim's parents—Judith and Glenn Cherry—were opposed to Storey's receiving the death penalty and had conveyed that opposition to the prosecutors prior to trial. Nevertheless, despite knowing the Cherrys’ opposition, the prosecutors stated during closing argument at the punishment phase of trial that "all of [the victim's] family and everyone who loved him believe the death penalty is appropriate." Id. (alteration in original).

After discovering this alleged prosecutorial misconduct, Storey filed a successive state habeas petition asserting a number of federal constitutional claims premised on the misconduct. Id. Ultimately, the Texas Court of Criminal Appeals ("TCCA") dismissed Storey's new petition as failing to satisfy Texas's abuse-of-the-writ procedural bar. Id. at 438-40 (citing TEX. CODE CRIM. PROC. ANN. art. 11.071, § 5 ).

Following the TCCA's decision, Storey took several actions in federal district court seeking relief. The district court ruled against Storey in each instance. Storey's counsel also sought compensation from the district court for their efforts working on Storey's successive state habeas proceedings. The district court also denied that request.

Storey filed appeals in this court challenging each decision. We consolidated the appeals and now resolve them. We AFFIRM the district court's rulings, for the reasons stated below.

I. BACKGROUND

We begin with a description of Storey's various actions in federal district court following the TCCA's decision.

A. Rule 60(b) Motion and Motion Invoking the All Writs Act

Under the cause number for his initial federal habeas petition, No. 4:11-CV-433, Storey filed two separate motions in federal district court. The first is a purported motion under Federal Rule of Civil Procedure 60(b). The second motion, which Storey now describes as a "Motion for Exercise of Residual Power," sought to have the district court exercise authority under the All Writs Act, 28 U.S.C. § 1651(a). Both motions sought the same relief. Effectively, Storey requested that the district court overrule the TCCA's decision with respect to the application of the state procedural bar and then "remand" the cause to the TCCA for it to consider the merits of his successive state habeas petition.

The district court dismissed both motions for lack of jurisdiction. Following the district court's dismissal, Storey simultaneously filed both a motion for a Certificate of Appealability ("COA") and a Notice of Appeal for each dismissed motion. The district court denied COAs. Storey has now filed a motion for a COA from this court even though, as will be discussed below, Storey disputes that he is required to obtain a COA to appeal the dismissal of his motions.

B. New Federal Habeas Petition

Under a new cause number, 4:20-CV-685, Storey filed a new federal habeas petition under 28 U.S.C. § 2254 raising several of the same constitutional claims that were advanced in his successive state habeas petition relating to the alleged prosecutorial misconduct surrounding the treatment of the Cherrys’ opposition to Storey's death sentence. Specifically, Storey asserted that the State had denied his right to Due Process under the Fourteenth Amendment for "arguing aggravating evidence the prosecution knew to be false," "introduc[ing] false evidence," and "suppressing mitigating evidence." Storey also asserted that this same misconduct constituted an Eighth Amendment violation by rendering his death sentence "unreliable."

In response to Storey's new petition, the district court issued a show cause order requiring Storey to explain why the petition should not be transferred to this court, via 28 U.S.C. § 1631, as a "second or successive" petition within the meaning of 28 U.S.C. § 2244(b). After Storey filed a response, the district court transferred the petition to this court. See 28 U.S.C. § 2244(b)(3)(A) ; id. § 1631. Storey objected to the transfer order in the district court and then filed a timely notice of appeal.

C. Request for Attorney Compensation Under 18 U.S.C. § 3599

Storey's current counsel were appointed by the district court pursuant to 18 U.S.C. § 3599(a)(2) during Storey's initial federal habeas proceedings. Following the initial federal habeas proceedings, Storey's counsel prepared his state clemency application and were compensated for that work by the district court pursuant to § 3599(e). See Harbison v. Bell , 556 U.S. 180, 194, 129 S.Ct. 1481, 173 L.Ed.2d 347 (2009). Storey's counsel also requested compensation under § 3599 for their work on the successive state habeas proceedings relating to the alleged prosecutorial misconduct. The district court denied that request and Storey filed a timely notice of appeal.

II. DISCUSSION

This court consolidated Storey's various actions in order to resolve them in one decision. We now take each issue in turn.

A. Whether the District Court Erred in Dismissing Storey's Rule 60(b) Motion and Motion Invoking the All Writs Act

1. Standard of Review

i. Whether Storey Needs a COA to Appeal the Dismissal of His Purported Rule 60(b) Motion as a Disguised Successive Habeas Petition

A threshold question Storey raises is whether he needs to obtain a COA in order to appeal the district court's decision to construe his purported Rule 60(b) motion as a "second or successive" habeas petition (and thus dismiss it for lack of jurisdiction). Established precedent in this circuit holds that he does. United States v. Vialva , 904 F.3d 356, 359 (5th Cir. 2018) ; Gonzales v. Davis , 788 F. App'x 250, 252 & n.2 (5th Cir. 2019) (per curiam) (unpublished) (citing Resendiz v. Quarterman , 454 F.3d 456, 458 (5th Cir. 2006) ); see also Ochoa Canales v. Quarterman , 507 F.3d 884, 888 (5th Cir. 2007) (holding that "[b]ecause the denial of a Rule 60(b) motion is a final, appealable order, it fits within the definition of a final order in a habeas corpus proceeding" and requires a COA to appeal, except when the only purpose of the motion is to "reinstate appellate jurisdiction over the original denial of habeas relief").

Nevertheless, Storey urges us to follow the lead of the Fourth Circuit, which recently reconsidered its similar precedent in light of two Supreme Court decisions. See United States v. McRae , 793 F.3d 392, 397-400 (4th Cir. 2015). In McRae , the panel majority concluded that the Supreme Court's reasoning in Gonzalez v. Crosby , 545 U.S. 524, 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005) and Harbison v. Bell , 556 U.S. 180, 129 S.Ct. 1481, 173 L.Ed.2d 347 (2009) effectively overruled existing circuit precedent and required the court to "hold that the COA requirement in § 2253(c) allows us to review, without first issuing a COA, an order dismissing a Rule 60(b) motion as an improper successive habeas petition." McRae , 793 F.3d at 398.

Although this court has issued decisions post-dating Gonzalez and Harbison that required a COA to review orders dismissing Rule 60(b) motions as successive petitions, e.g. , Vialva , 904 F.3d at 359, we have not squarely addressed the impact of Gonzalez / Harbison on our precedent in a published decision. See Gonzales v. Davis , 788 F. App'x at 252 n.2 (acknowledging the petitioner's Harbison argument but declining to reach it because it had been improperly raised); cf. United States v. Fulton , 780 F.3d 683, 686-88 (5th Cir. 2015) (applying Harbison to conclude that a COA is not required to appeal a district court's order transferring a § 2255 petition as successive). We do so now and conclude our precedent remains undisturbed.

As will be discussed more below, in Gonzalez the Supreme Court explained how to distinguish between proper Rule 60(b) motions and disguised "second or successive" habeas petitions. 545 U.S. at 531-32, 125 S.Ct. 2641. And it held that a proper Rule 60(b) motion does not need to meet the requirements of 28 U.S.C. § 2244(b), such as the precertification requirement of § 2244(b)(3). Id. at 538, 125 S.Ct. 2641. The Court, however, expressly declined to consider whether a petitioner would need to obtain a COA to appeal the denial of a Rule 60(b) motion, as it acknowledged several circuits already require. Id. at 535 & n.7, 125 S.Ct. 2641.¹

Four years later, in Harbison , the Court held that a COA is not required to appeal an order denying a request for federally appointed counsel pursuant to 18 U.S.C. § 3599. 556 U.S. at 182-83, 129 S.Ct. 1481. The Court explained that a COA is required to appeal "final orders that dispose of the merits of a habeas corpus proceeding" and that an order denying appointment of counsel under § 3599 is not such an order. Id. at 183, 129 S.Ct. 1481 (emphasis added).

In short, the Court in ...