     Case: 14-20051      Document: 00512508607         Page: 1    Date Filed: 01/22/2014




                          REVISED JANUARY 22, 2014

              IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT


                                      No. 14-20051
                                                                             United States Court of Appeals
                                                                                      Fifth Circuit

                                                                                    FILED
                                                                             January 21, 2014
                                                                               Lyle W. Cayce
In re: EDGAR ARIAS TAMAYO                                                           Clerk

                                                 Movant



                        On Transfer from District Court
                        Motion for an Order Authorizing
                the United States District Court for the Southern
                          District of Texas to Consider
                    a Successive 28 U.S.C. § 2254 Application


Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges.
PER CURIAM:*
       Edgar Arias Tamayo (“Tamayo”) is scheduled to be executed by the State
of Texas on January 22, 2014. He filed a federal habeas petition in district
court which the court construed as a successive habeas petition requiring
transfer to our court under 28 U.S.C. § 1631. We therefore must determine
whether this application is a successive habeas petition and, if so, whether we
should grant authorization. Concluding that this action is not a successive
habeas petition, we REMAND the application back to the district court.



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                  No. 14-20051



                           Factual and Procedural History
      Tamayo and Jesus Mendoza were arrested in the parking lot of a bar in
Harris County, Texas on January 31, 1994, for robbing a patron. After the men
were searched and handcuffed, Officer Guy Gaddis of the Houston Police
Department placed them in a patrol car, with Tamayo seated behind Officer
Gaddis. When Officer Gaddis stopped to make a phone call, Tamayo revealed
to Mendoza that he had a gun in his waistband. The evidence at trial showed
that Tamayo managed to remove the gun from his waistband despite the fact
that he was handcuffed. When Officer Gaddis returned to the vehicle and
drove away, Tamayo shot Officer Gaddis multiple times.           The patrol car
crashed into a residence, and Tamayo escaped through a broken window. The
police were called to the scene and captured Tamayo as he ran down the street
near the crash, still handcuffed. Officer Gaddis was taken to the hospital
immediately, but he was pronounced dead upon arrival.
      Tamayo gave two written statements admitting that he had the gun in
the police car, that he shot Gaddis, and that he knew Gaddis was a police
officer. At trial, the evidence indicated that Tamayo, rather than Mendoza,
was the shooter.     The State also presented evidence that Tamayo had
purchased the gun several days before the murder. The jury found Tamayo
guilty of capital murder and subsequently sentenced him to death. Tamayo
appealed to the Texas Court of Criminal Appeals (“CCA”), which affirmed his
conviction. Tamayo v. State, No. AP-72,033 (Tex. Crim. App. 1996).
      In February 1998, Tamayo sought state habeas relief based on ineffective
assistance of counsel (“IAC”) for failing to investigate evidence of organic brain
damage. The CCA rejected Tamayo’s claim in June 2003. Ex parte Tamayo,
No. WR-55,690-01 (Tex. Crim. App. 2003) (not designated for publication).


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      In September 2003, Tamayo filed his federal habeas application,
reasserting his IAC claim based on counsel’s failure to investigate the alleged
organic brain injury. Tamayo moved to stay the proceedings in 2005 to allow
him to return to state court to present additional claims, including two claims
under the    Vienna Convention on          Consular   Relations (the “Vienna
Convention”), Apr. 24, 1963, 21 U.S.T. 77, T.I.A.S. No. 6820 and a claim that
he was ineligible for execution under Atkins v. Virginia, 536 U.S. 304 (2002).
The CCA dismissed these successive habeas petitions as an abuse of the writ.
See Ex parte Tamayo, 2010 WL 2332395 (Tex. Crim. App. 2010) (not designated
for publication) (Atkins Claim); Ex parte Tamayo, 2008 WL 2673775 (Tex.
Crim. App. 2008) (not designated for publication) (Vienna Convention Claim);
Ex parte Tamayo, WR-55,690-02 (Tex. Crim. App. Sept. 10, 2003) (not
designated for publication) (Vienna Convention Claim).
      Tamayo amended his federal habeas petition, adding his Vienna
Convention and Atkins claims. In March of 2011, the federal district court
denied Tamayo federal habeas relief on his claims and determined that he was
not entitled to a COA. Tamayo v. Thaler, 4:03-cv-03809 (S.D. Tex. Mar. 25,
2011).   Tamayo then sought a COA from this court, which we denied in
December of 2011. Tamayo v. Thaler, No. 11-70005 (5th Cir. Dec. 21, 2011).
The Supreme Court denied Tamayo’s petition for certiorari in November of
2012. Tamayo v. Thaler, 133 S. Ct. 608 (2012). On September 17, 2013, in
response to the state’s motion, the 209th Harris County District Court
scheduled Tamayo to be executed on January 22, 2014.
      On January 16, 2014, Tamayo filed a successive habeas petition in Texas
state court, arguing that his sentence of death is “illegal and unconstitutional”
based on his alleged mental retardation. In support of this claim, he relied on
the newly-released decision of the Inter-American Commission on Human


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Rights (“IACHR”). The IACHR concluded, inter alia, that Tamayo presented
evidence of mental disability that should have been reviewed on the merits by
the state courts 1 and that the state’s violation of the Vienna Convention
through its denial of his consular notification rights prejudiced Tamayo. 2 In
connection with this successive habeas petition, Tamayo filed a request for a
stay of execution in light of what he believes are novel issues of law—including
the amount of deference, if any, that should be given the IACHR’s decision by
Texas state courts. The CCA denied relief on January 21, 2014. Ex parte
Tamayo, WR-55,690-05 & WR-55,690-06, at *3 (Tex. Crim. App. Jan. 21, 2013)
(not designated for publication).
                                        Discussion
       Examining Tamayo’s application for habeas relief with respect to the
newly released IACHR decision, we conclude that his petition is not successive
on this point. As we have previously held:
       A prisoner’s application is not second or successive simply because
       it follows an earlier federal petition. Instead, section 2244—one of
       the gatekeeping provisions of the [Anti-Terrorism and Effective
       Death Penalty Act]—was enacted primarily to preclude prisoners
       from repeatedly attacking the validity of their convictions and
       sentences. Thus, 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.


       1  Specifically, the IACHR decision stated: “[T]he [IAC] concludes that the United
States violated Articles I and XXVI of the American Declaration to the detriment of Mr.
Tamayo by refusing to provide funds for an independent expert evaluation and by denying
any opportunity to present evidence regarding this mental and intellectual disability and be
heard on the merits of that evidence.” IACHR Decision at p. 37.

       2 Specifically, the IACHR decision stated: “Given the comprehensive assistance
provided by the Mexican Government to its citizens in death penalty cases in the United
States, the IACHR believes that there is a reasonable probability that, had Mr. Tamayo
received consular assistance at the time of his arrest, this would have had a positive impact
in the development of his criminal case.” IACHR Decision at p. 31.

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In re Cain, 137 F.3d 234, 235 (5th Cir. 1998) (citations omitted); see also In re
Flowers, 595 F.3d 204, 205 (5th Cir. 2009) (explaining that a petition is
successive when the claims raised “were or could have been raised in [the] first
[28 U.S.C.] § 2254 application” (emphasis added)).
       Here, Tamayo could not have raised his claim based on the January 2014
IACHR decision in his first federal habeas petition in September 2003.
Therefore, it is unnecessary for Tamayo to seek authorization to file a
successive habeas petition concerning the IACHR decision and instead he
properly filed his habeas petition in the district court under § 2254. 3
                                         Conclusion
       The application transferred to this court predicated on the IACHR
decision is REMANDED to the district court for consideration.




       3 Our consideration of Tamayo’s claim based on the IACHR decision is limited in this
context. Specifically, we cannot consider the merits of his argument because our role in
deciding an application for a subsequent habeas petition is limited to determining merely
whether the applicant has presented a prima facie case entitling him to file a successive
petition. See In re Henderson, 462 F.3d 413, 415 (5th Cir. 2006) (explaining the court’s role
in deciding a petitioner’s request for authorization to file a successive application for a writ
of habeas is to evaluate the “prima facie showing of entitlement to proceed with his federal
habeas application,” which is distinct from a consideration of the merits of the petitioner’s
claim); see also In re Swearingen, 556 F.3d 344, 347 (5th Cir. 2009) (same).

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