     Case: 14-70003      Document: 00512508592         Page: 1    Date Filed: 01/22/2014




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

                                                                               FILED
                                      No. 14-70003                      January 22, 2014
                                                                          Lyle W. Cayce
EDGAR ARIAS TAMAYO,                                                            Clerk


                                                 Plaintiff – Appellant
v.

RICK PERRY, Governor; RISSIE OWENS, Chairwoman of the Texas Board of
Pardons and Paroles; ROMULO CHAVEZ, Board Member; JUANITA M.
GONZALEZ, Board Member; DAVID GUTIERREZ, Board Member; JAMES
LAFAVERS, Board Member; MICHELLE SKYRME, Board Member;
CYNTHIA TAUSS, Board Member,

                                                 Defendants – Appellees




                   Appeal from the United States District Court
                        for the Western District of Texas
                              USDC No. 1:14-CV-31


Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges.
PER CURIAM:*
       Appellant Edgar Arias Tamayo (“Tamayo”) is scheduled to be executed
by the State of Texas on January 22, 2014. Tamayo filed a complaint in the
district court asserting a 28 U.S.C. § 1983 claim against several members of
the Texas Board of Pardons and Paroles (the “Defendants”) alleging that the



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-70003
state’s clemency procedures do not comport with fundamental fairness and
violate his Eighth and Fourteenth Amendment rights. He also filed a motion
seeking either a temporary restraining order (“TRO”) or a preliminary
injunction in the district court to prevent the Texas Board of Pardons and
Paroles (the “Board”) from voting on his application and the Governor from
acting on any negative recommendation of the Board.         Accompanying his
discovery requests, Tamayo also filed a motion to stay his execution. After a
hearing, the district denied the request for preliminary injunctive relief and
the alternative request for a stay. We AFFIRM the denial of the preliminary
injunction and DENY the application for a stay.
                        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 the other passenger 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 Officer 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
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                                  No. 14-70003
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. Dec.
11, 1996) (not designated for publication).
      In February 1998, Tamayo sought state habeas relief based on ineffective
assistance of counsel 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. June 11, 2003) (not designated for
publication).
      In September 2003, Tamayo filed his federal habeas application,
reasserting his ineffective assistance of counsel 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, and a claim
that he was ineligible for execution under Atkins v. Virginia, 536 U.S. 304
(2002). The state court dismissed these successive habeas petitions as an
abuse of the writ. See Ex parte Tamayo, No. WR-55690-04, 2010 WL 2332395
(Tex. Crim. App. June 9, 2010) (not designated for publication) (Atkins Claim);
Ex parte Tamayo, No. WR-55690-03, 2008 WL 2673775 (Tex. Crim. App. July
2, 2008) (not designated for publication) (Vienna Convention Claim); Ex parte
Tamayo, No. 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, No. 4:03-cv-3809 (S.D. Tex. Mar. 25,
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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 December 13, 2013, Tamayo filed a written application for clemency
with the Board. Tamayo argues in his application that his death sentence
should be commuted to life imprisonment because, inter alia, he did not receive
his consular rights guaranteed under the Vienna Convention, 1 he should not
receive the death sentence on account of his alleged mental retardation, and
he did not receive a fair trial because the key witness against him—Jesus
Mendoza—was coached by the state and the expert who testified concerning
the gunshot residue on his hands has been subsequently discredited.
       On January 13, 2014, Tamayo filed the present action in federal district
court asserting a § 1983 claim that the Board’s procedures violate his due
process rights. He further sought a TRO or preliminary injunction preventing
the Board from voting and the Governor from acting on the Board’s
recommendation pending the outcome of his lawsuit. He further sought a stay
of execution pending his discovery requests in connection with his § 1983 claim.



       1In connection with this claim, Tamayo points out that United States Secretary of
State John Kerry sent a letter to Governor Perry requesting that Tamayo’s execution be
delayed until it is determined whether Tamayo was prejudiced by the denial of his consular
rights under the Vienna Convention. He explained that Texas’s non-compliance with the
consular notification provision of the Vienna Convention is potentially damaging to the
United States’ interests abroad and could “impact the way American citizens are treated in
other countries.” We take no position on this issue, but to observe that the Supreme Court
has determined that while “the Avena decision . . . constitutes an international law obligation
on the part of the United States,” the President does not have the authority to compel Texas
to comply with the decision. Medellin v. Texas, 552 U.S. 491, 504 (2008).

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      The same day, Tamayo filed a successive habeas petition in Texas state
court, alleging that he did not receive a fair trial in light of alleged newly
discovered evidence that the Harris County District Attorney’s office coached
Mendoza by “instruct[ing] him how he was to testify, and what he should—and
should not—say.” 2 On January 16, 2014, Tamayo filed another 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 Rights (“Human Rights Decision”). The
Human Rights Decision concluded, inter alia, that Tamayo has raised evidence
that he is mentally retarded and the denial of his consular notification rights
prejudiced him. 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 Human Rights Decision by Texas state courts. The CCA denied relief. Ex
parte Tamayo, Nos. WR-55,690-05, WR-55,690-06, 2014 Tex. Crim. App.
Unpub. LEXIS 59, at *3 (Tex. Crim. App. Jan. 21, 2014) (not designated for
publication).
      Following a hearing on January 21, 2014, before the federal district court
in this § 1983 action, the district court concluded that “the Board’s procedures
provided Tamayo adequate due process in conformance with current Supreme
Court and Fifth Circuit precedent.” Tamayo v. Perry, 1:14-CV-31 (W.D. Tex.
Jan. 21, 2014). The court accordingly denied the application for a temporary
restraining order and preliminary injunction and the alternative request for a
stay of execution.



      2 We have no opportunity here to consider Tamayo’s successive habeas petition and,
therefore, take no position as to the veracity of this serious allegation.
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                                  Discussion
      A district court’s denial of a stay of execution and of a preliminary
injunction is reviewed for abuse of discretion. See Diaz v. Stephens, 731 F.3d
370, 374 (5th Cir. 2013); Adams v. Thaler, 679 F.3d 312, 318 (5th Cir. 2012).
To be entitled to a preliminary injunction or a stay of execution, Tamayo must
show “a substantial likelihood of success on the merits.” See Adams, 679 F.3d
at 318 (stay of execution); Janvey v. Alguire, 647 F.3d 585, 595 (5th Cir. 2011)
(preliminary injunction).
      As an initial matter, we acknowledge our prior caselaw holding that
federal courts lack authority to issue stays of execution pending resolution of
a § 1983 claim. See Beets v. Tex. Bd. of Pardons & Paroles, 205 F.3d 192, 193
(5th Cir. 2000) (“This court has twice held that federal courts lack jurisdiction
under § 1983 to stay executions.”); Faulder v. Johnson, 178 F.3d 741, 742 (5th
Cir. 1999) (“[W]e reiterate this court’s recent holding that federal courts lack
jurisdiction to stay executions under § 1983 . . . .”); Moody v. Rodriguez, 164
F.3d 893, 893 (5th Cir. 1999) (“Federal courts lack jurisdiction to stay
executions under § 1983.” (citation and quotation marks omitted)). These
cases, however, were premised on the principle that the only action available
to a prisoner to challenge any aspect of his conviction or sentence was the
habeas process under 28 U.S.C. § 2254 and related statutes. Arguably that
principle, however, no longer applies in cases such as this one that do not
directly challenge the conviction but instead challenge something that does not
“necessarily imply the unlawfulness of the State’s custody.” Skinner v. Switzer,
131 S. Ct. 1289, 1293 (2011) (alteration, citation, and quotation marks omitted)
(holding that a § 1983 action is available to a defendant seeking to challenge a
state’s procedures for DNA testing). Indeed, in Skinner, the Court granted a
stay of execution. Skinner v. Switzer, 559 U.S. 1033 (2010). Since that case,
we have exercised jurisdiction over appeals regarding stays of execution
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arising in § 1983 cases. See, e.g., Sepulvado v. Jindal, 729 F.3d 413, 420–21
(5th Cir. 2013) (a § 1983 case evaluating a district court’s grant of a preliminary
injunction and stay on its merits). We need not reach this issue, however,
because we conclude that we clearly have jurisdiction over the denial of the
preliminary injunction, and the same merits analysis underlies both forms of
relief sought by Tamayo.
       Our analysis of Tamayo’s claim is governed by our decision in Faulder v.
Tex. Bd. of Pardons & Paroles, 178 F.3d 343 (5th Cir. 1999). In Faulder, we
assessed a death-row inmate’s § 1983 claim alleging that Texas’s clemency
proceedings violated his due process rights. 3 Relying on Ohio Adult Parole
Auth. v. Woodard, 523 U.S. 272 (1998), we explained that Texas’s clemency
proceedings satisfied the “minimal procedural safeguards” required in such
proceedings. See Faulder, 178 F.3d at 344. We observed that these safeguards
are violated only where “a state official ‘flipped a coin’ to determine whether to
grant clemency, or the state arbitrarily denied a prisoner any access to its
clemency process.” Id. at 344 (quoting Woodard, 523 U.S. at 289 (O’Conner, J.,
concurring)). Applying this standard, we concluded that Texas’s clemency
proceedings provided “minimal procedural safeguards.”                      Id. at 344–45.
According to the uncontested evidence presented by the state, Texas’s clemency
proceedings have not changed in any substantial way since Faulder.
Therefore, to the extent Tamayo brings a facial challenge to the Texas




       3 Subsequent to our decision in Faulder, the Supreme Court recognized the right of
prisoners to bring § 1983 claims complaining of unconstitutional state action when such
actions would not “necessarily imply” the invalidity of the prisoner’s conviction. See Skinner,
131 S. Ct. at 1298–99. Because a challenge of a state’s clemency proceeding in no way implies
that the prisoner’s conviction was invalid, Skinner applies such that Tamayo may bring a
§ 1983 claim challenging the constitutionality of a state’s clemency proceedings. Faulder,
178 F.3d at 344.

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procedures, under Faulder, Tamayo cannot prove that he has a likelihood of
success in his § 1983 challenge of the clemency proceedings.
      Tamayo argues that we should revisit Faulder in light of “evolving
standards of decency,” primarily relying on studies and reviews such as one
conducted by the American Bar Association. We respect these sources, but we
are bound by our court’s rule of orderliness which mandates that one panel
cannot overrule a prior panel in the absence of an intervening change in the
law in the form of a Supreme Court opinion, an en banc opinion of this court,
or a statutory or regulatory change. See Jacobs v. Nat’l Drug Intelligence Ctr.,
548 F.3d 375, 378 (5th Cir. 2008). “Evolving standards of decency” are not a
ground upon which we can disregard prior precedent. See id.
      Tamayo suggests that Faulder’s “minimal procedural safeguard”
standard is no longer binding because subsequent Supreme Court decisions
have suggested that an inmate is entitled to a higher level of review of state
clemency proceedings. However, the two cases cited by Tamayo in support of
this position are inapposite. First, Dist. Attorney’s Office for Third Judicial
Dist. v. Osborne involved a due process challenge concerning DNA testing in
the context of post-conviction relief, which is different from an inmate
challenging the executive’s clemency proceedings. See 557 U.S. 52, 56 (2009);
see also Connecticut Bd. of Pardons v. Dumschat, 452 U.S. 458, 464 (1981)
(“Unlike probation, pardon and commutation decisions have not traditionally
been the business of courts; as such, they are rarely, if ever, appropriate
subjects for judicial review.”). Second, Harbison v. Bell did not involve a due
process challenge to clemency proceedings, but rather interpreted a federal
statute to allow for federal appointment and compensation of attorneys in state
clemency proceedings. See 556 U.S. 180, 183-84 (2009). We conclude that we
are bound by Faulder.


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      The district court did not abuse its discretion in concluding that Tamayo
failed to show that he had a substantial likelihood of success in his § 1983
claim.    In his complaint, Tamayo argued that the Board violated his due
process rights in at least two respects.
      First, he points out that Title 37 of the Texas Administrative Code
provides that “[u]nless required for the disposition of matters authorized by
law, hearing officers, board members and parole commissioners assigned to
render a decision or to make findings of fact and conclusions of law in an
individual case may not communicate, directly or indirectly, in connection with
any issue of fact or law with any party, except on notice and opportunity for all
parties to participate.” 37 Tex. Admin. Code § 147.3. He alleged, based on
information and belief, that certain Defendants have communicated with
interested parties (including the Harris County District Attorney, the Houston
Police Department, and the Harris County Sheriff’s Department) concerning
his application without providing him notice or an opportunity to participate.
Notably, Tamayo asserts that he subsequently requested to view information
submitted in opposition to his application. The Board denied this request and
he argued to the district court that the failure to provide him with the
information “violates fundamental fairness and creates an impermissible risk
that the Board’s decision will rest on false or misleading information.” The
district court ordered that the Board comply with Tamayo’s discovery request
for his clemency file by submitting that file in camera to that court. 4 Upon
review of that file, the district court concluded that the Board does not “operate




      4  The court ordered these materials produced in camera because the Board is
prohibited by law from releasing this information to Tamayo pursuant to Tex. Gov’t Code §§
508.313(a)(1)-(3) and 552.101, which together provide that information obtained and
maintained by the Board concerning an inmate subject to executive clemency is confidential
and can only be released in limited circumstances not relevant here.
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in any way that significantly differs from how it operated at the time of
Faulder.”
      Second, Tamayo requested that Defendant Romulo Chavez, who is a
member of the Board, disqualify himself from voting on his clemency
proceeding pursuant to Title 37 of the Texas Administrative Code, which
provides that a member of the Board should disqualify himself when, inter alia,
the individual’s impartiality may be questioned or the individual has personal
bias concerning the subject matter. 37 Tex. Admin. Code § 150.55. Since
Tamayo filed this complaint, the Board has filed a letter from Mr. Chavez
voluntarily recusing himself from Tamayo’s case. Accordingly, although not
directly addressed in the district court’s opinion, we conclude that this
challenge is moot.
      To the extent Tamayo challenges the Board’s proceedings as applied to
him, he has failed to demonstrate that those proceedings do not provide him
with “minimal procedural safeguards.” The Board’s refusal to allow Tamayo
to review his records does not rise to the level of a “coin-flip adjudication” that
we described in Faulder. Indeed, these practices do not result in any arbitrary
denial of Tamayo’s access to Texas’s clemency process.
      We conclude that he has failed to show a substantial likelihood that he
could demonstrate the Board violated its policies.          Section 147.3 allows
communication with parties interested in clemency proceedings so long as the
Board provides “notice and opportunity for all parties to participate.” Tamayo
clearly has notice of the proceedings and he has been given an opportunity to
participate through his filing of an application for clemency and a
supplemental application of clemency, as well as his attorneys’ ongoing contact
with the Board’s general counsel.
      Concluding that the Board provided Tamayo the required “minimal
procedural safeguards,” we recognize our narrow role in the uniquely executive
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task of considering clemency and, therefore, express no further opinion
regarding Texas’s clemency proceedings. See Woodard, 523 U.S. at 280-81
(Rehnquist, C.J., concurring) (“[T]he heart of executive clemency . . . is to grant
clemency as a matter of grace, thus allowing the executive to consider a wide
range of factors not comprehended by earlier judicial proceedings and
sentencing determinations.”); Hunter v. Tamez, 622 F.3d 427, 431 (5th Cir.
2010) (“The Constitution unquestionably vests the discretionary power to
commute a sentence in the executive branch.”).
                                   Conclusion
      The district court did not abuse its discretion in denying relief to Tamayo
in this case. Therefore, we AFFIRM the district court’s denial of relief; his
associated request for stay of execution is DENIED.




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