   Case: 13-30058    Document: 00512138071     Page: 1   Date Filed: 02/07/2013




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

                                                                 FILED
                                                             February 7, 2013

                                No. 13-30058                    Lyle W. Cayce
                                                                     Clerk

In re: CHRISTOPHER SEPULVADO,

                                         Movant.


                          ***************



                                No. 13-70004


CHRISTOPHER SEPULVADO,

                                         Petitioner-Appellant,

versus

BURL CAIN, Warden, Louisiana State Penitentiary,

                                         Respondent-Appellee.




                Appeals from the United States District Court
                    for the Western District of Louisiana
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Before STEWART, Chief Judge, SMITH and SOUTHWICK, Circuit Judges.
JERRY E. SMITH, Circuit Judge:


       Christopher Sepulvado is scheduled to be executed February 13, 2013. He
appeals an order transferring his second-in-time petition for writ of habeas cor-
pus, amended motion to appoint counsel, and motion to stay his execution. He
also requests a certificate of appealability (“COA”).1 We affirm the order of
transfer, dismiss the habeas petition and amended motion to appoint counsel,
deny the motion for stay of execution, and dismiss the request for a COA. We
also direct the clerk to notify Sepulvado that, should he wish to file a successive
petition for writ of habeas corpus, a motion for authorization must be filed with
this court pursuant to 28 U.S.C. § 2244(b)(3).


                                              I.
       In 1993, Sepulvado was convicted and sentenced to death for the first-
degree murder of his six-year-old stepson. His conviction and sentence were
affirmed. State v. Sepulvado, 672 So. 2d 158 (La.), cert. denied, 519 U.S. 934,
(1996). Sepulvado sought post-conviction relief in state and federal court. The
federal district court denied habeas relief, Sepulvado v. Cain, No. 00–596 (W.D.
La. Aug. 9, 2002), and denied Sepulvado’s application for a COA. In a detailed
opinion setting out the facts and proceedings, we denied Sepulvado’s request for
a COA on six issues. Sepulvado v. Cain, 58 F. App’x 595, 2003 WL 261769 (5th
Cir.) (unpublished), cert. denied, 540 U.S. 842 (2003).
       Nearly a decade later, Sepulvado filed a second-in-time federal habeas
petition pursuant to 28 U.S.C. § 2241. The district court deemed the petition


       1
         Sepulvado’s motion to intervene in a separate case challenging Louisiana’s execution
protocol, pending in the United States District Court for the Middle District of Louisiana, is
not before us.

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“successive” and thus barred by 28 U.S.C. § 2244(b)(3)(A), which requires an
applicant seeking to file a second or successive petition “to move in the appropri-
ate court of appeals for an order authorizing the district court.” Believing it
lacked jurisdiction to consider Sepulvado’s motions, the district court transferred
them to us “to determine whether he is authorized to file the instant petition.”
See 28 U.S.C. § 1631. Sepulvado appealed the transfer order and filed a brief “in
Support of Application for a Certificate of Appealability and Stay of Execution.”


                                                II.
       We first address, sua sponte, our appellate jurisdiction to hear this case,
which comes to us as an appeal from the district court’s transfer order.2 “[A]s
the transferee court, we have before us both the appeal from the transfer order
and [a habeas] motion,”3 along with Sepulvado’s other related motions. Although
in Bradford the petitioner was a federal prisoner who filed his habeas motion
under 28 U.S.C. § 2255, and Sepulvado is a state prisoner who made his applica-
tion pursuant to § 2241, that distinction does not affect our analysis. As in
Bradford, “the appeal of the transfer order: (1) will conclusively determine the
correctness of the transfer; (2) is separate from the merits of the [habeas]
motion; and (3) is effectively unreviewable if the appeal is dismissed.” Id. We
conclude, therefore, that we have jurisdiction over both the district court’s order
and the motions it transferred thereby. Id.


                                               III.
       In concluding that it lacked jurisdiction to consider Sepulvado’s second-in-


       2
          See Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir.1987) (“This Court must examine the
basis of its jurisdiction, on its own motion, if necessary.”); Martin v. Halliburton, 618 F.3d 476,
481 (5th Cir. 2010) (“We have jurisdiction to determine our own jurisdiction.”).
       3
           In re Bradford, 660 F.3d 226, 229 (5th Cir. 2011) (per curiam)

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time habeas petition, the district court relied on § 2244(b), which sharply limits
the federal courts’ consideration of “second or successive” habeas applications.
The district court determined that
      before this petition can be considered on the merits by this Court,
      Petitioner must obtain authorization from the United States Fifth
      Circuit Court of Appeals, in accordance with 29 U.S.C. § 2244(b)(3),
      by making a prima facie showing to the appellate court that his peti-
      tion may be considered under the requirements set forth in 28
      U.S.C. § 2244(b)(2). Until such time as Petitioner obtains said
      authorization, this Court is without jurisdiction to proceed on the
      petition or the ancillary motions.

“The question of whether the district court lacked jurisdiction over [a] second-in-
time federal habeas petition depends on whether [the] petition is a ‘second or
successive’ petition within the meaning of 28 U.S.C. § 2244.” Adams v. Thaler,
679 F.3d 312, 321 (5th Cir. 2012). The Antiterrorism and Effective Death Pen-
alty Act of 1996 (“AEDPA”), however,
      does not define “second or successive.” The Supreme Court has
      stated that the term “takes its full meaning from [the Court’s] case
      law, including decisions predating the enactment of [AEDPA].” Pan-
      etti v. Quarterman, 551 U.S. 930, 943–44 . . . (2007). “The Court has
      declined to interpret ‘second or successive’ as referring to all § 2254
      applications filed second or successively in time, even when the later
      filings address a state-court judgment already challenged in a prior
      § 2254 application.” Id. at 944 . . . . For instance, in Slack v.
      McDaniel, 529 U.S. 473 . . ., the Court concluded that “[a] habeas
      petition filed in the district court after an initial habeas petition was
      unadjudicated on its merits and dismissed for failure to exhaust
      state remedies is not a second or successive petition.” Id. at 485–86
      . . . ; see also Panetti, 551 U.S. at 944–46 . . . (holding that “a § 2254
      application raising a Ford [v. Wainwright]-based[4] incompetency
      claim filed as soon as that claim is ripe” is not a successive petition);
      Stewart v. Martinez–Villareal, 523 U.S. 637, 643–45 . . . (1998)
      (holding that a second-in-time federal habeas petition is not “succes-
      sive” when it only raises a Ford claim that was previously dismissed


      4
          477 U.S. 399 (1986).

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       as premature).

Id. Although “[a] prisoner’s application is not second or successive simply
because it follows an earlier federal petition,” In re Cain, 137 F.3d 234, 235 (5th
Cir. 1998), it is the well-settled law of this circuit that “a later petition is succes-
sive 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 consti-
tutes an abuse of the writ,” id.5
       According to Sepulvado’s brief, his second-in-time habeas petition alleges
       that his [state] post-conviction counsel—who was also his federal
       habeas counsel—was ineffective for failing to investigate and pre-
       sent the following claims in state or federal court: (1) petitioner was
       deprived of his right to conflict[-]free trial counsel and this, in turn,
       excused the default of his meritorious Campbell claim; (2) the jury
       was not fair and impartial because it was exposed to extraneous and
       prejudicial influences; and, (3) trial counsel was ineffective for fail-
       ing to raise the juror misconduct claim in a post-trial motion.

Sepulvado urges that his instant claimsSSbrought a full decade after we denied
a COA for claims raised in his first habeas petition—were not ripe before Mar-
tinez v. Ryan, 132 S. Ct. 1309 (2012).
       To the extent that Sepulvado relies on a supposed constitutional right to
the effective assistance of post-conviction counsel, he misapprehends the holding
and import of Martinez, which did not alter our rule that “the Sixth Amendment
does not apply in habeas proceedings.”6 “Because appointment of counsel on
state habeas is not constitutionally required, any error committed by an attorney

       5
          See also United States v. Orozco–Ramirez, 211 F.3d 862, 867 (5th Cir.2000) (finding
the In re Cain standard “consistent with the Supreme Court’s views as expressed in” Martinez-
Villareal and Slack); Hardemon v. Quarterman, 516 F.3d 272, 275 (5th Cir. 2008) (stating that
we “look to pre-AEDPA abuse of the writ principles in determining whether [a] petition is
successive”) (citation and internal quotation marks omitted).
       6
         Shamburger v. Cockrell, No. 01-20822, 34 F. App’x 962 (5th Cir. 2002) (unpublished)
(citing Pennsylvania v. Finley, 481 U.S. 551, 555–56 (1987)).

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in such a proceeding ‘cannot be constitutionally ineffective.’”7 Martinez explicitly
left open the constitutional question “whether a prisoner has a right to effective
counsel in collateral proceedings which provide the first occasion to raise a claim
of ineffective assistance at trial.” Id. at 1315.
       Rather than establish a new rule of constitutional law, Martinez is an
“equitable ruling” that “qualifies Coleman by recognizing a narrow exception:
inadequate assistance of counsel at initial-review collateral proceedings may
establish cause for a prisoner’s procedural default of a claim of ineffective assist-
ance at trial.”8 Ordinarily, the doctrine of procedural default means that “federal
courts will not review the merits of claims, including constitutional claims, that
a state court declined to hear because the prisoner failed to abide by a state
procedural rule.” Id. at 1309. Sepulvado’s habeas petition argues that, under
Martinez, the ineffective assistance of Sepulvado’s post-conviction counsel estab-
lishes cause for the procedural default of two claims: (1) that one of Sepulvado’s
trial counsel had an actual conflict of interest that prevented him from raising
a meritorious claim under Campbell v. Louisiana, 523 U.S. 392 (1998); and
(2) that trial counsel were ineffective for failing to raise a jury-misconduct claim
in a motion for new trial.
       It is far from evident that either of Sepulvado’s ineffective-assistance-of-
trial-counsel claims is procedurally defaulted.9 He did raise several ineffective-


       7
        Fairman v. Anderson, 188 F.3d 635, 643 (5th Cir. 1999) (quoting Coleman v. Thomp-
son, 501 U.S. 722, 752 (1991)). See also Martinez, 132 S. Ct. at 1315 (referring to the “general
rule that there is no constitutional right to counsel in collateral proceedings”).
       8
         Martinez, 132 S. Ct. at 1315, 1319. See also Adams, 679 F.3d at 322 n.6.; Ibarra v.
Thaler, 687 F.3d 222, 224 (5th Cir. 2012) (noting that “Martinez, by its terms, applies only to
ineffective-assistance-of-trial-counsel claims”) (emphasis added).
       9
          See Sepulvado v. Cain, 2003 WL 261769, at *2 (noting that Sepulvado raised eleven
claims in his filing for state post-conviction relief, including ineffective assistance of counsel);
id. at *3 (noting that Sepulvado raised the “same 11 issues” in federal court as in state court);
                                                                                      (continued...)

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assistance-of-trial-counsel claims in his initial petition for state-court relief,
which this court addressed on the merits. See Sepulvado v. Cain, 2003 WL
261769, at *3–5. Jury misconduct, however, was not among them, though it
could have been raised then, thus rendering any attempt to raise it now as suc-
cessive. In the opinion that we issued, we did discuss Sepulvado’s procedurally-
defaulted argument that his trial counsel was ineffective—rather than conflicted
—for failing to raise the argument that Louisiana discriminated against black
venire members in the selection of grand jury forepersons. Id. at *5–6.
       In essence, Sepulvado argued that his trial counsel should have antici-
pated the rule of law announced by the Supreme Court in Campbell—six years
after he was indicted. Id. at *5. In denying a COA, we concluded Sepulvado had
failed to show that his trial counsel’s “failure to raise such a claim in 1992 fell
below the objective level of competence required by Strickland [v. Washington,
466 U.S. 668 (1984)],” and we stated that
       [i]n the alternative, Sepulvado has not satisfied the COA standard
       concerning the prejudice portion [also a required showing under
       Strickland v. Washington] for “cause” and “prejudice”. The report
       and recommendation, adopted by the district court, noted:

              Petitioner has not attempted to articulate how the fore-
              man selection process (in connection with a grand jury
              that indicts on mere probable cause found by 9 of 12
              members) worked to his actual prejudice when he was
              convicted by a lawfully chosen petit jury of twelve per-
              sons who unanimously found him guilty beyond a rea-
              sonable doubt.

         Sepulvado states that, had a timely motion to quash been made,
       the judgment would have been reversed on appeal on that basis;
       and, on remand, he might have been offered a life sentence plea. He


       9
          (...continued)
id. at *3-6 (discussing Sepulvado’s ineffective-assistance-of-counsel claims at length but omit-
ting any mention of either conflict of interest or jury misconduct).

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       offers no basis for this conclusory plea-claim.

         In the alternative, Sepulvado urges that, absent a plea on remand,
       a second trial would not have resulted in the death penalty. Again,
       he provides no support for this conclusory claim. (Along this line,
       Sepulvado does not make an “actual innocence” claim as an alterna-
       tive to a required showing of “cause” and “prejudice”.)

Id. at *6.
       Assuming without deciding that Martinez applies to conflict-of-interest
claims10 and that Sepulvado’s conflict-of-interest claim is procedurally defaulted,
Sepulvado’s reliance on Martinez is still unavailing, because Martinez does not
apply to Louisiana prisoners. It is limited to “initial-review collateral proceed-
ings,” which it defines as “collateral proceedings which provide the first occasion
to raise a claim of ineffective assistance at trial.” Martinez, 132 S. Ct. at 1315
(emphasis added). In other words, Martinez applies only “where the State
barred the defendant from raising the claims on direct appeal.” Id. at 1320.
       In Ibarra, 687 F.3d at 227, we declined to extend Martinez to circum-
stances in which the state permitted a defendant to raise ineffectiveness-of-
trial-counsel claims on direct appeal. As Judge Graves explained there in his
separate opinion, Ibarra applies here:
       Louisiana, like Texas, allows a prisoner to raise ineffective assist-
       ance of counsel on direct appeal “when the record contains sufficient
       evidence to decide the issue and the issue is properly raised by
       assignment of error on appeal.” State v. Brashears, 811 So. 2d 985
       (La. App. 5 Cir. 2002). See also State v. Williams, 738 So. 2d 640,
       651–52 (La. App. 5 Cir.1999) (“Ineffective assistance of counsel
       claims are most appropriately addressed on application for post con-
       viction relief, rather than on direct appeal, so as to afford the parties
       adequate opportunity to make a record for review. However, when
       an ineffective assistance claim is properly raised by assignment of

       10
           See United States v. Infante, 404 F.3d 376, 389 (5th Cir. 2005) (characterizing
conflict-of-interest-claims as a species of ineffective-assistance-of-counsel claims) (quotation
and citations omitted).

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       error on direct appeal and the appellate record contains sufficient
       evidence to evaluate the claim, the reviewing court may address the
       ineffective assistance claim in the interest of judicial economy.”).

Ibarra, 687 F.3d at 230 (Graves, J., concurring in part and dissenting in part).
Therefore, because, as Judge Graves observed, “Louisiana, like Texas, allows a
prisoner to raise ineffective assistance of counsel on direct appeal” in some cir-
cumstances, id., Ibarra is an “insurmountable hurdle”11 for Sepulvado.
       In sum, Martinez does not provide the basis for the relief Sepulvado seeks.
It does not confer a constitutional right to effective assistance of post-conviction
counsel, nor does it apply to any of Sepulvado’s ineffective-assistance-of-trial-
counsel claims that are not procedurally defaulted. Even assuming arguendo
that Sepulvado presents any procedurally-defaulted ineffective-assistance-of-
trial-counsel claims, current circuit precedent dictates that Martinez does not
apply to Louisiana prisoners at all.12
       Because Martinez is of no moment here, Sepulvado’s second-in-time
habeas petition is an abuse of the writ and is therefore successive. See In re
Cain, 137 F.3d at 235; see also Adams, 679 F.3d at 321–22. Because the petition
is successive, the district court did not have jurisdiction to consider it in light of
the fact that Sepulvado did not obtain our prior authorization pursuant to
§ 2244(b)(3)(A).13



       11
         Balentine v. Thaler, No. 12–70023, 2012 U.S. App. LEXIS 17370, at *9 (5th Cir.
Aug. 17, 2012) (per curiam) (unpublished).
       12
          Even if Martinez is held to apply to Sepulvado and thus provides the basis for the fil-
ing of a second-in-time habeas petition, it allows Sepulvado to establish cause for his proce-
dural default only if post-conviction counsel was ineffective under the standards of Strickland;
and (2) his “underlying ineffective-assistance-of-trial-counsel claim has . . . some merit.” Mar-
tinez, 132 S. Ct. at 1318–19. As we noted over a decade ago, the state post-conviction court
characterized all of Sepulvado’s ineffective-assistance-of-trial-counsel claims as “completely
without a scintilla of merit.” Sepulvado v. Cain, 2003 WL 261769, at *3.
       13
            See Adams, 679 F.3d at 321–22 (citing Burton v. Stewart, 549 U.S. 147, 152 (2007)).

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                                           IV.
        Sepulvado has not filed in this court a motion for authorization to file a
successive petition in the district court. We direct the clerk’s office to notify
Sepulvado that “(1) a motion pursuant to § 2244(b)(3) must be filed with the
court of appeals within a specified time from the date of the clerk’s notice and
(2) failure to do so timely will result in the entry of an order denying authoriza-
tion.” In re Epps, 127 F.3d 364, 365 (5th Cir. 1997). The clerk shall also instruct
Sepulvado to attach relevant documents analogous to those described in Epps.
Id.
        Bearing in mind the scheduled execution date, we will grant authorization
only if the successive application is permitted by § 2244(b). We reiterate that,
even where it applies, Martinez is not “a new rule of constitutional law.”14 Sepul-
vado’s motion to appoint counsel, which we lack jurisdiction to consider, “should
have been brought in this court as part of his § 2244(b)(3) petition for authoriza-
tion to file a successive habeas petition in the district court.” United States v.
Key, 205 F.3d 773, 774 (5th Cir. 2000).


                                            V.
        “A stay of execution is an equitable remedy. It is not available as a matter
of right, and equity must be sensitive to the State’s strong interest in enforcing
its criminal judgments without undue interference from the federal courts. Hill
v. McDonough, 547 U.S. 573, 584 (2006) (citations omitted). Because we lack
jurisdiction, there is no basis for a stay. Accord Adams, 679 F.3d at 323.




        14
         Adams, 679 F.3d at 322 n.6. See also Buenrostro v. United States, 697 F.3d 1137,
1139–40 (9th Cir. 2012) (“Martinez cannot form the basis for an application for a second or
successive motion because it did not announce a new rule of constitutional law.”).

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                                       VI.
      Sepulvado did not request a COA from the district court but asserts in his
brief that “[t]his court may direct issue a COA bypassing the District Court.”
Relying on Williams v. United States, 150 F.3d 639, 641 (7th Cir. 1998), Sepul-
vado ignores voluminous precedent from this court:
      [T]he district court did not rule upon whether a COA is warranted,
      and “the lack of a ruling on a COA in the district court causes this
      court to be without jurisdiction to consider the appeal.” Whitehead
      v. Johnson, 157 F.3d 384, 388 (5th Cir.1998); see also Brewer v.
      Quarterman, 475 F.3d 253, 255 (5th Cir.2006) (per curiam) (“A
      district court must deny the COA before a petitioner can request one
      from this court. A request for COA must be filed in the district
      court before such a request can be made in the circuit court.” (inter-
      nal quotation marks omitted)); Miller v. Dretke, 404 F.3d 908, 912
      (5th Cir. 2005) (“Under Federal Rule of Appellate Procedure
      22(b)(1), the district court must first decide whether to grant a COA
      request before one can be requested here.”); Sonnier v. Johnson, 161
      F.3d 941, 946 (5th Cir.1998) (“[T]he lack of a ruling on a COA in the
      district court causes this court to be without jurisdiction to consider
      the appeal.”); United States v. Youngblood, 116 F.3d 1113, 1115 (5th
      Cir. 1997) (“Under Muniz [v. Johnson, 114 F.3d 43, 45 (5th Cir.
      1997)], jurisdiction is not vested in this Court because the district
      court has not yet considered whether [a] COA should issue.”);
      Muniz, 114 F.3d at 45 (“A district court must deny the COA before
      a petitioner can request one from this court.”).
Cardenas v. Thaler, 651 F.3d 442, 443–44 (5th Cir. 2011) (per curiam). In Car-
denas, moreover, we expressly distinguished Williams. Id. at 446–47.
      In summary, the order of transfer is AFFIRMED. The petition for writ of
habeas corpus is DISMISSED for want of jurisdiction. The amended motion to
appoint counsel is DISMISSED for want of jurisdiction. The motion for stay of
execution is DENIED. The request for a COA is DISMISSED.




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