     Case: 19-10960      Document: 00515128028         Page: 1    Date Filed: 09/23/2019




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


                                      No. 19-10960
                                                                                 FILED
                                                                         September 23, 2019
                                                                            Lyle W. Cayce
Consolidated with 19-10970                                                       Clerk

In re: RANDY ETHAN HALPRIN,

              Movant




                          Motions for an order authorizing
                          the United States District Court
                   for the Northern District of Texas to consider
                     a successive 28 U.S.C. § 2254 application
                              USDC No. 3:19-CV-1203
                              USDC No. 3:13-CV-1535


Before SMITH, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*
       While protesting the district court’s conclusion that his application is a
“second or successive” habeas application within the meaning of 28 U.S.C.
§ 2244(b)(3)(A), Randy Halprin petitions this court for permission to present a
successive habeas application to the district court raising claims of bigotry-
based bias by the judge who tried his case. We DENY the application.
       The underlying facts of Halprin’s case are discussed in our recent opinion
denying his certificate of appealability challenging the district court’s decision


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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in his initial federal habeas proceeding. Halprin v. Davis, 911 F.3d 247, 252–
54 (5th Cir. 2018), petition for cert. filed, Case No. 18-9676 (U.S. June 14, 2019);
see also Halprin v. State, 170 S.W.3d 111, 113 (Tex. Crim. App. 2005) (affirming
conviction and sentence on direct appeal). Thus, we do not repeat them here.
Suffice it to say that Halprin was convicted and sentenced to death as one of
the “Texas Seven” who escaped from prison and then shot and killed an Irving
police officer while they were trying to rob a store.
       Relevant here, in his 2003 trial, Halprin’s trial judge was Vickers
Cunningham, who was then the judge of the 283rd District Court of Dallas
County. 1 Some 15 years later, Cunningham was a runoff candidate in the
Dallas County Republican primary seeking a position on the Dallas County
Commissioners Court (the elected body that runs Dallas County). During that
election, allegations were made that Cunningham had racist and anti-Semitic
views (among others). 2 Halprin, who is Jewish, alleges that, until this time,
he had been unaware of any bigotry on the part of Cunningham. His 2018
investigation found further evidence, including affidavits from people who
were insiders with Cunningham to the effect that he had used anti-Semitic
language to describe Halprin. Halprin filed a habeas application in federal
district court and simultaneous state proceedings, which state proceedings are
still pending.




       1  By the time of Halprin’s state habeas proceeding, Cunningham had left the bench
to make an ultimately unsuccessful bid to be the District Attorney in Dallas County.
Halprin’s state habeas proceeding is reported at Ex Parte Halprin, No. WR-77,175-01, 2013
WL 1150018 (Tex. Crim. App. Mar. 20, 2013) (per curiam).
       2  Cunningham has denied some of the allegations, but we will take them as true,
given the procedural posture of this case. Assuming the allegations to be true, Cunningham’s
racism and bigotry are horrible and completely inappropriate for a judge.
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      The district court concluded that Halprin’s application was a “second or
successive” application under § 2244 and, therefore, transferred it to this court
to determine whether to grant permission to file such an application. See 28
U.S.C. § 2244(b)(3). Halprin has appealed the transfer under Case Nos. 19-
70016 and 19-70017. At the same time, he made the present application for
permission to file a successive habeas application in the event that his appeal
of the transfer order was unsuccessful.
      We begin, as we must, with the question of whether Halprin’s claim is a
successive application because, if it is not, there is nothing to decide on this
appeal. We conclude that the application is successive.
      The Supreme Court has “declined to interpret ‘second or successive’ as
referring to all § 2254 applications.” Panetti v. Quarterman, 551 U.S. 930, 944
(2007). However, the Court’s determination that a “second in time” application
was not successive has occurred in only two situations, neither applicable
here. See In re Coley, 871 F.3d 455, 457 (6th Cir. 2017) (per curiam). “The first
is where ripeness prevented, or would have prevented, a court from
adjudicating the claim in an earlier petition,” such as request for relief on a
Ford-based incompetency claim. Id. (citing Stewart v. Martinez-Villareal, 523
U.S. 637, 645 (1998)); see also Panetti, 551 U.S. at 944–45. “The second is
where a federal court dismissed an earlier petition because it contained
exhausted and unexhausted claims and in doing so never passed on the
merits.” Coley, 871 F.3d at 457 (citing Slack v. McDaniel, 529 U.S. 473, 485–
86 (2000)). Our precedent is clear that “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.” In re Cain, 137 F.3d 234, 235 (5th Cir. 1998).


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        Although Halprin asserts that he did not know about Cunningham’s
bigotry until recently, that is not the same thing as a claim’s being unripe. 3
The current claim, of course, is that Cunningham was bigoted all along: now
and during the original Halprin trial. Thus, the claim was ripe in 2003, even
if unknown to Halprin at the time. That fact contrasts with the situations in
Panetti and Stewart, which Halprin cites in support of his contention. In
Panetti and Stewart, the incompetency claim was not available to the
defendants until after their initial habeas petitions because they were not
incompetent until the later date. Panetti, 551 U.S. at 944; Stewart, 523 U.S.
at 639, 643. A party can be competent to stand trial and then become
incompetent thereafter. Here, however, Cunningham either was or was not
biased during the trial, and the trial took place more than 15 years ago.
Therefore, Halprin’s application is successive.
        Turning to whether we should grant permission to proceed, § 2244
provides only two bases for us to permit a successive habeas application, which
can be summarized as either a new rule of law or a new factual predicate (with
additional requirements discussed below). Halprin claims he prevails under
both.
        Examining the first one, § 2244(b)(2)(A), Halprin clearly fails to meet
this standard: “the applicant [must show] that the claim relies on a new rule
of constitutional law, made retroactive to cases on collateral review by the
Supreme Court, that was previously unavailable.” 28 U.S.C. § 2244(b)(2)(A);
see Tyler v. Cain, 533 U.S. 656, 662 (2001) (explaining these requirements).
Halprin’s claim does not rely on a new rule of constitutional law; instead, he



        3  Indeed, if “new facts” were enough to vitiate the need for permission to file a
successive habeas application, there would be no need for § 2244(b)(2)(B).
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relies on a rule that is nearly a century old. His judicial bias claim is based on
Tumey v. Ohio, a Supreme Court case decided in 1927. 273 U.S. 510
(1927).      Tumey       is     not   a   “new       rule”     within     the   meaning      of
§ 2244(b)(2)(A). Indeed, Halprin does not contest this point.
      Second, Halprin’s argument that his judicial bias claim was “previously
unavailable” within the meaning of § 2244(b)(2)(A) also fails. Halprin cites our
decisions in In re Cathey, 857 F.3d 221 (5th Cir. 2017) (per curiam), and In re
Johnson, Nos. 19-20552 & 19-70013, 2019 WL 3814384 (5th Cir. Aug. 14,
2019), as revised (Aug. 15, 2019), for the proposition that newly discovered
evidence can support a claim under subsection (b)(2)(A). But both Cathey and
Johnson involved changes in diagnostic standards for intellectual disabilities,
which then altered the legal standards for granting relief on Atkins 4
intellectual disability claims.           See Johnson, 2019 WL 3814384, at *5–6
(discussing and applying Cathey). Halprin does not argue that his judicial bias
claim under Tumey was legally unavailable when he filed his first
petition. Instead, he asserts that his claim was factually unavailable because
he was unaware of evidence of Cunningham’s judicial bias. But Halprin
incorrectly conflates the “previously unavailable” requirement of subsection
(b)(2)(A) with the new “factual predicate” standard found in subsection
(b)(2)(B)(i). Halprin has not satisfied § 2244(b)(2)(A).
      Turning to the “factual predicate” claim, the rule requires that the
applicant prove that
               (i) the factual predicate for the claim could not have
               been discovered previously through the exercise of due
               diligence; and
               (ii) the facts underlying the claim, if proven and
               viewed in light of the evidence as a whole, would be

      4   Atkins v. Virginia, 536 U.S. 304 (2002).
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            sufficient to establish by clear and convincing evidence
            that, but for constitutional error, no reasonable
            factfinder would have found the applicant guilty of the
            underlying offense.
28 U.S.C. § 2244(b)(2)(B). The district court questioned whether Halprin met
the first subsection, given some indications that information about
Cunningham’s bigotry was available years ago.          We conclude that it is
unnecessary to address whether the factual predicate “could not have been
discovered previously” because we conclude that Halprin fails to meet the
second subsection in any event.
      Halprin fails to present any evidence in his motion showing that
Cunningham’s bias against him would establish by clear and convincing
evidence that, absent such bias, no reasonable factfinder would have found
Halprin guilty of the underlying offense. He argues that structural error, such
as judicial bias, does not have to meet this standard. But our authority to grant
the right to file a successive application for habeas relief stems only from this
statute, the Antiterrorism and Effective Death Penalty Act (“AEDPA”), and it
is very specific. Indeed, structural error is a type of constitutional error. See
United States v. Gonzalez-Lopez, 548 U.S. 140, 148 (2006). As AEDPA clearly
states that the clear and convincing evidentiary requirement applies to
“constitutional error,” we see nothing to suggest that structural error is under
a different, unstated standard. In line with this reasoning, the Ninth Circuit
has held that a complaint about the presiding judge’s racial bias “does not add
to or subtract from the evidence of [a defendant’s] guilt” as it “does not
demonstrate, by clear and convincing evidence, that [the defendant] is actually




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innocent of the crime for which he stands convicted.” Villafuerte v. Stewart,
142 F.3d 1124, 1126 (9th Cir. 1998). 5
       Second, Congress enacted AEDPA, “at least in part, to ensure comity,
finality, and deference to state court habeas determinations by limiting the
scope of collateral review and raising the standard for federal habeas
relief.” Robertson v. Cain, 324 F.3d 297, 306 (5th Cir. 2003). In that regard,
permitting a defendant to file a successive petition is “an exception that may
be invoked only when the demanding standard set by Congress is
met.” Pizzuto v. Blades, 673 F.3d 1003, 1007 (9th Cir. 2012) (quoting Bible v.
Schriro, 651 F.3d 1060, 1063 (9th Cir. 2011) (per curiam)). Congress set the
demanding standard in § 2244(b)(3)(C)—“[t]he court of appeals may authorize
the filing of a second or successive application only if it determines that the
application makes a prima facie showing that the application satisfies the
requirements of this subsection.” See In re Raby, 925 F.3d 749, 754 (5th Cir.
2019) (“We permit the filing of a successive petition only if we conclude that
[the petitioner’s] application makes a prima facie showing that it satisfies the
strict requirements in § 2244(b)”). Thus, Congress’s intent in enacting AEDPA
supports applying the statute as written, which requires a prima facie showing
of clear and convincing evidence that, absent constitutional error, no
reasonable factfinder would have otherwise found Halprin guilty of the
underlying offense. Nothing close to such a showing was presented here.
       In sum, as reprehensible as Cunningham’s remarks are, we are bound to
apply the law as written. It provides no basis for us to grant relief here in the




      5   We note that the facts in that case were different, as no evidence of direct bias
against the defendant was presented. Id. at 1125–26.
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form of allowing a successive habeas application to proceed. Accordingly, the
application to file a successive habeas application is DENIED.




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