     Case: 13-70017       Document: 00512239183         Page: 1     Date Filed: 05/13/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                           May 13, 2013

                                       No. 13-70017                        Lyle W. Cayce
                                                                                Clerk

JEFFREY DEMOND WILLIAMS,

                                                  Petitioner–Appellant
v.

RICK THALER, Director, Texas Department
of Criminal Justice, Correctional Institutions Division,

                                                  Respondent–Appellee



                   Appeal from the United States District Court
                        for the Southern District of Texas
                                  (04-CV-2945)


Before STEWART, Chief Judge, PRADO, and HAYNES, Circuit Judges.
PRADO, Circuit Judge:*
       Petitioner Jeffrey Demond Williams (“Williams”) is scheduled to be
executed by the state of Texas on May 15, 2013. On May 3, 2013, Williams
submitted a motion to stay his execution. For the reasons that follow, Williams’s
request is denied.




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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                                        I
      Williams was convicted and sentenced to death following the May 1999
shooting of Tony Blando, a Houston police officer. Blando was patrolling the
parking lot of a hotel looking for stolen cars. Blando observed a Lexus that a
computer search confirmed had been reported stolen. According to witnesses at
trial, the man driving the Lexus stepped out of the car and Blando approached
him with his weapon drawn, per departmental practice. Blando was not wearing
a police uniform, but he did have a badge around his neck. Blando and the man
began arguing, and a struggle ensued when Blando attempted to handcuff the
man. After Blando had successfully handcuffed one arm, the man turned around
and shot Blando in the chest. Blando died from the injury.
      Williams was arrested near the scene of the shooting a short time later,
wearing one handcuff.        He was read his Miranda rights and, after
acknowledging that he understood his rights, made two inculpatory statements.
The police recovered shell casings from the scene of the shooting, some of which
came from a gun owned by Williams. Police also found Williams’s fingerprints
on both the stolen Lexus and Blando’s unmarked Jeep. Williams was eventually
convicted.
      At trial, Williams’s attorney presented a handful of favorable character
witnesses. Williams’s mother testified that Williams suffered developmental
shortcomings as a child, that Williams was a loner as a child, and that he had
trouble understanding basic instructions. She also discussed Williams’s low IQ
scores and his diagnosis as emotionally disturbed. Members of Williams’s
church testified, stating that Williams was quiet, but got along well with others.
Williams’s direct appeal and request for post-conviction relief were both denied
in state court.
      In his amended federal habeas petition, filed in 2004, Williams claimed
that his appointed state habeas counsel performed inadequately. The district

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                                  No. 13-70017

court rejected this claim on the merits. Williams also sought to allege that his
trial counsel was ineffective for failing to investigate his mental health and to
present adequate mitigating evidence. The district court denied this claim as
procedurally defaulted since it had not been raised in state habeas proceedings.
This Court affirmed the district court and rejected Williams’s claim of ineffective
trial counsel on the merits. See Williams v. Thaler, 602 F.3d 291 (5th Cir. 2010).
Williams has filed the instant appeal seeking to revisit his procedural default in
light of recent Supreme Court precedent. See Martinez v. Ryan, 132 S. Ct. 1309
(2012). The district court denied Williams’s claim as foreclosed by precedent, but
granted a Certificate of Appealability. This appeal followed.
                                        II
      Williams is attempting to avoid the procedural default of his ineffective
assistance of trial counsel claim (“trial IAC claim”) by asserting that ineffective
assistance of state habeas counsel (“habeas IAC claim”) caused the procedural
default. Williams seeks a stay of execution so that he may pursue his trial IAC
claim. As explained below, the controlling precedent regarding Williams’s
procedural default argument is in a state of flux: the Supreme Court has heard
argument in a case that will impact whether Williams’s procedural default
should be excused, but has not yet issued a ruling. We nevertheless deny
Williams’s request for a stay of execution because this Court has previously
considered and denied Williams’s trial IAC claim on the merits.
      A stay is not a matter of right, even if irreparable injury would otherwise
result. Nken v. Holder, 556 U.S. 418, 433 (2009). Rather, it is an exercise of
judicial discretion dependent on the circumstances of a particular case. Id. The
party seeking a stay bears the burden of showing that the circumstances justify
a stay. Id. at 433–34. Four factors govern whether the Court will exercise its
discretion and grant a stay: (1) whether the applicant has made a strong
showing that he is likely to succeed on the merits; (2) whether the applicant will

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                                   No. 13-70017

be irreparably harmed absent a stay; (3) whether issuance of a stay will
substantially injure other interested parties; and (4) where the public interest
lies. Id. at 434. The first two factors are the most important; and showing a
likelihood of success on the merits requires that the chance of success be “better
than negligible.” Id. A court may grant relief from a final judgment for any
reason that justifies relief. Fed. R. Civ. P. 60(b)(6).
      Williams seeks relief from his procedural default on the basis of the
Supreme Court’s ruling in Martinez v. Ryan, 132 S. Ct. 1309 (2012).             In
Martinez, the petitioner’s habeas attorney did not raise a trial IAC claim during
his state habeas proceeding and the claim was subsequently barred as a result.
132 S. Ct. at 1313.      In Arizona, where Martinez’s case arose, convicted
individuals are not permitted to raise trial IAC claims on direct review; they
must wait until state habeas proceedings. Id. State habeas counsel thus failed
to raise Martinez’s trial IAC claim at the only juncture where such a claim could
be brought. In a second state habeas petition, Martinez thereafter sought to
excuse his procedural default on the basis of ineffective assistance of habeas
counsel. Id.
      The Supreme Court ultimately ruled in Martinez’s favor, holding that
            [w]here, under state law, claims of ineffective
            assistance of trial counsel must be raised in an initial-
            review collateral proceeding, a procedural default will
            not bar a federal habeas court from hearing a
            substantial claim of ineffective assistance at trial if, in
            the initial-review collateral proceeding, there was no
            counsel or counsel in that proceeding was ineffective.
Id. at 1320. Williams seizes on the Martinez ruling in an attempt to avoid his
own procedurally defaulted trial IAC claim, i.e., he claims that the
ineffectiveness of his state habeas counsel should excuse his procedural default.
      In Ibarra v. Thaler, 687 F.3d 222 (5th Cir. 2012), the Fifth Circuit
explicitly held that Martinez does not apply to Texas inmates because—unlike

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Arizona—Texas law allows inmates to raise trial IAC claims on direct review,
meaning they have multiple opportunities to raise such claims with the
assistance of counsel. 687 F.3d at 227. Four months after Ibarra was decided,
the Supreme Court granted certiorari in Trevino v. Thaler, 449 F. App’x 415 (5th
Cir. 2011) (unpublished), cert. granted, 133 S. Ct. 524 (2012), in order to “address
precisely the question whether Martinez applies to habeas cases arising from
Texas courts.” Haynes v. Thaler, 133 S. Ct. 639, 639 (2012). Moreover, two
weeks after granting certiorari in Trevino, the Supreme Court granted a stay of
execution in Haynes, a case where the Court faced the same question presented
here: whether the procedural default of a trial IAC claim can be excused by the
ineffectiveness of state habeas counsel under Texas law.1
       The extant dispute over Williams’s procedural claim notwithstanding, we
nevertheless deny Williams’s request for a stay of execution because this Court
has previously held that Williams’s underlying trial IAC claim fails on the
merits. See Williams v. Thaler, 602 F.3d 291, 310–11 (5th Cir. 2010). Williams
has thus already had his trial IAC claim heard and adjudicated. As this Court
stated then, “[w]hen compared with the evidence introduced by the State at
Williams’s trial . . . we cannot say Williams’s counsel’s alleged deficiency
undermines our confidence in Williams’s sentence.” Id. Moreover, the Fifth
Circuit has held that Martinez does not constitute the sort of “extraordinary
circumstance” required to succeed on a Rule 60(b)(6) motion. Adams v. Thaler,
679 F.3d 312, 319 (5th Cir. 2012), stay denied, 132 S. Ct. 1995 (2012). Williams’s


       1
         The Supreme Court granted a stay in Haynes because the Fifth Circuit denied the
petitioner’s request for a stay on the basis of Ibarra, without assessing the merits of Haynes’s
claim. Haynes, 133 S. Ct. at 639 (“[T]he Court of Appeals has never addressed the District
Court’s merits ruling, and has instead relied solely on procedural default.”). The Supreme
Court thus chose to grant the stay “rather than assume the correctness of the District Court’s
unreviewed merits decision[.]” Id. Here, by contrast, we have already fully adjudicated
Williams’s claim on the merits. Moreover, were we to revisit the merits of Williams’s claim,
we would still find that he has not established a viable trial IAC claim.

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claim fails on this ground as well. Therefore, we deny Williams’s request for a
stay of execution.
                                      III
      For the reasons discussed above, Williams’s request for a stay of execution
is DENIED.




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