     Case: 16-70007      Document: 00514101235         Page: 1    Date Filed: 08/03/2017




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

                                      No. 16-70007
                                                                             Fifth Circuit

                                                                           FILED
                                                                      August 3, 2017

RAY MCARTHUR FREENEY,                                                 Lyle W. Cayce
                                                                           Clerk
              Petitioner–Appellant,

v.

LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

              Respondent–Appellee.




                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 4:14-CV-373


Before HIGGINBOTHAM, SMITH, and OWEN, Circuit Judges.
PER CURIAM: *


       IT IS ORDERED that Appellant’s motion to remand to the district court
to allow newly appointed counsel an opportunity to develop and present any
defaulted IATC claims and to seek to establish cause for the default 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                    No. 16-70007

                                           I
      Freeney was convicted in Texas state court of capital murder and
sentenced to death. James Leitner was appointed as his state habeas counsel,
and he, with the help of Michael Charlton, filed a habeas petition on January
24, 2005, asserting, in relevant respect, a claim that Freeney’s trial counsel
rendered ineffective assistance (IATC) “by not investigating, developing, and
presenting readily available evidence during the punishment phase.”
      Over three years later, Leitner moved to withdraw. The state trial court
granted the motion and subsequently appointed Donald Vernay. Three years
later, the State filed a motion pursuant to Texas Code of Criminal Procedure
article 11.071 § 8 to have a factual issue concerning the IATC claim designated
as unresolved. Both parties filed proposed findings of fact and conclusions of
law. The state trial court adopted the State’s propositions and recommended
that the Texas Court of Criminal Appeals (TCCA) deny relief on the merits,
concluding that Freeney had established neither ineffective assistance nor
prejudice. The TCCA subsequently instructed the state trial court to resolve
certain factual issues that remained; 1 the state trial court did so and again
recommended that the TCCA deny relief because Freeney had established
neither ineffective assistance nor prejudice; and the TCCA adopted the state
trial court’s findings and conclusions, resulting in an order denying Freeney
habeas relief. 2
      Vernay filed a motion in federal district court to have himself and
Charlton appointed as federal habeas counsel. After the district court granted
the motion, Charlton moved to withdraw. In his motion, filed on October 27,


      1  Ex parte Freeney, No. WR-78109-01, 2013 WL 1182745, at *2 (Tex. Crim. App. Mar.
20, 2013).
       2 Ex parte Freeney, No. WR-78109-01, 2014 WL 333695, at *1 (Tex. Crim. App. Jan.

29, 2014).
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                                    No. 16-70007

2014, Charlton stated that Martinez v. Ryan 3 necessitated his withdrawal
because “[h]e was responsible for the investigation of Mr. Freeney’s claims and
for the development and filing of Mr. Freeney’s petition for writ of habeas
corpus” in state court. He also noted that “[a]fter careful consideration,” both
he and Vernay concluded that “it [was] in Mr. Freeney’s interest that Mr.
Vernay be permitted to proceed acting as Mr. Freeney’s sole counsel.” The
district court granted the motion on November 19, 2014, and on January 26,
2015, Vernay filed Freeney’s federal habeas petition.
      The Director of the Correctional Institutions Division of the Texas
Department of Criminal Justice (the Director) moved for summary judgment,
asserting, in pertinent part, that 28 U.S.C. § 2254(d) barred relief on Freeney’s
IATC claim. The district court granted the motion. It reasoned that the state
habeas court’s resolution of his IATC claim “was not contrary to, or an
unreasonable application of federal law.” The district court also declined to
issue a certificate of appealability (COA).
      Freeney sought a COA from this court.           While the application was
pending, Vernay retired from legal practice. This court appointed new counsel
on December 12, 2016. Five months later, on May 24, 2017, Freeney’s new
counsel moved to remand the case to district court and requested a stay of the
appellate proceeding “pending the conclusion of the district court’s review.”
                                          II
      Freeney seeks remand so that “the district court [may] consider, in the
first instance, whether Mr. Freeney can establish cause for the procedural
default of any [IATC] claims he may raise, and if so, whether those claims merit
relief.” Although he states his purpose broadly, he limits the substantive
content of his briefing to an argument that Vernay failed to develop the factual


      3   566 U.S. 1 (2012).
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                                        No. 16-70007

basis for the IATC claim raised in Freeney’s state habeas petition. A fully
developed claim, Freeney asserts, would be in a “significantly different and
stronger evidentiary posture,” rendering it unexhausted and, according to
Freeney, procedurally defaulted. 4 Freeney argues that Vernay’s failure to
develop the claim equates to ineffective assistance of counsel providing cause,
pursuant to Martinez and Trevino v. Thaler,                   5   to excuse the purported
procedural default. Because “Vernay . . . could not evaluate the shortcomings
of his own work,” Freeney maintains, Vernay labored under a conflict of
interest, which violated Freeney’s “statutory right to conflict-free counsel” and
requires remand.
       In support of his motion, he principally relies on Speer v. Stephens 6 and
Mendoza v. Stephens, 7 two recent Fifth Circuit cases he views as “essentially
identical” to this case. This assertion, however, is both legally and factually
inaccurate. First, in Speer and Mendoza, the court remanded so that the
district court, in light of Martinez and Trevino, could appoint supplemental
counsel pursuant to 18 U.S.C. § 3599(e). 8 The analysis of a motion to appoint
supplemental counsel is driven by the Supreme Court’s reasoning in
Christeson v. Roper 9 and Martel v. Clair, 10 both of which addressed motions to
substitute counsel—not motions to remand after the petitioner already had
conflict-free counsel. 11 Second, as the concurrence in Mendoza notes, the

       4 See TEX. CODE CRIM. P. 11.071 § 5(a); Kittelson v. Dretke, 426 F.3d 306, 315 (5th Cir.
2005) (“[I]f the prisoner fails to exhaust available state remedies, and the state court to which
the prisoner would have to present his claims in order to exhaust them would find the claims
procedurally barred, the prisoner has defaulted those claims.”).
       5 133 S. Ct. 1911 (2013).
       6 781 F.3d 784 (5th Cir. 2015).
       7 783 F.3d 203 (5th Cir. 2015) (per curiam).
       8 Speer, 781 F.3d at 785-86; Mendoza, 783 F.3d at 204 (OWEN, J., concurring).
       9 135 S. Ct. 891 (2015) (per curiam).
       10 565 U.S. 648 (2012).
       11 Christeson, 135 S. Ct. at 893-94; Martel, 565 U.S. at 657 (assessing the “standard

that district courts should use to adjudicate federal habeas petitioners’ motions to substitute
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                                       No. 16-70007

petitioner in that case moved for supplemental counsel sixty-five days after the
Supreme Court issued Trevino.              12   The petitioner in Speer moved for
supplemental counsel eighty-seven days after Trevino issued. 13 As is evident
from the nature of the motions filed in Speer and Mendoza, neither petitioner
had conflict-free counsel before filing. Conversely, Freeney received conflict-
free counsel on December 12, 2016, and filed a motion to remand to assert a
claim pursuant to Martinez and Trevino on May 24, 2017—163 days after
receiving conflict-free counsel and almost four years after the Court decided
Trevino. One of Freeney’s attorneys, citing Martinez, withdrew on October 27,
2014, before Freeney filed his federal habeas petition, a filing which also
occurred well after Trevino issued.
       This court’s statutory authority to remand derives from 28 U.S.C. § 2106,
which states that “any . . . court of appellate jurisdiction . . . may remand the
cause and . . . require such further proceedings to be had as may be just under
the circumstances.” This statute grants appellate courts “broad authority to
dispose of district court judgments as they see fit,” 14 but, as the Supreme Court
has repeatedly admonished, discretionary decisions must nevertheless “be
guided by sound legal principles.” 15



counsel in capital cases” and then determining “whether the District Court abused its
discretion in denying [the petitioner’s] second request for new counsel under § 3599’s
‘interests of justice’ standard”).
        12 Mendoza, 783 F.3d at 209 (OWEN, J., concurring).
        13 Compare Motion to Abate Appeal and Appoint Counsel at 5, Speer v. Stephens, 781

F.3d 784 (5th Cir. 2015) (No. 13-70001) (reflecting that the petitioner filed the motion on
August 23, 2013), with Trevino v. Thaler, 133 S. Ct. 1911 (2013) (Decided on May 28, 2013).
        14 GuideOne Specialty Mut. Ins. Co. v. Missionary Church of Disciples of Jesus Christ,

687 F.3d 676, 682 n.3 (5th Cir. 2012) (citing § 2106); accord United States v. Macias, 435 F.2d
1294, 1295 (5th Cir. 1971) (per curiam) (noting that the Fifth Circuit has “broad discretion to
‘require such further proceedings to be had as may be just under the circumstances’” (quoting
§ 2106)).
        15 Halo Elecs., Inc. v. Pulse Elecs., Inc., 136 S. Ct. 1923, 1932 (2016) (quoting Martin

v. Franklin Capital Corp., 546 U.S. 132, 139 (2005)).
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                                         No. 16-70007

       Freeney initiated federal habeas proceedings after the issuance of
Trevino and after one of his two attorneys withdrew because “[h]e was
responsible for the investigation of Mr. Freeney’s claims and for the
development and filing of Mr. Freeney’s petition for writ of habeas corpus” in
state court. By at least this latter point, Freeney should have known of the
ineffectiveness of state habeas counsel claim that he contends should provide
cause to excuse the procedural default of an ineffective assistance of trial
counsel claim. Yet at no point did Freeney seek additional counsel to explore
the claim he now wishes to raise on remand. He did not raise this claim until
approximately two years and six months after his attorney withdrew and
nearly four years after Trevino issued. It cannot be doubted that this delay
was unreasonable, 16 and Freeney has not argued to the contrary. To the extent
that responsibility for Vernay’s purported conflict is relevant, 17 Freeney bears
substantial responsibility for failing to request Vernay’s removal despite the
notice the withdrawal of his other attorney provided.
                                     *        *         *
              Accordingly, the motion to remand is DENIED.




       16 See Martel, 565 U.S. at 662 (noting that, in the context of a request for appointment
of substitute counsel, “[p]rotecting against abusive delay is an interest of justice”).
       17 See id. at 663 (noting that the client’s responsibility for a conflict is relevant in

considering a request for appointment of substitute counsel).
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