              Case: 14-10486     Date Filed: 02/10/2014    Page: 1 of 20


                                                                           [PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                  No. 14-10486
                              Non-Argument Calendar
                            ________________________

                       D.C. Docket No. 1:14-mc-20119-JEM



JUAN CARLOS CHAVEZ,

                                                                   Plaintiff-Appellant,

                                        versus

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,

                                                                 Defendant-Appellee.

                            ________________________

                    Appeal from the United States District Court
                        for the Southern District of Florida
                          ________________________

                                 (February 10, 2014)

Before CARNES, Chief Judge, WILSON and MARTIN, Circuit Judges.

CARNES, Chief Judge:

      Juan Carlos Chavez, a Florida inmate scheduled to be executed on February

12, 2014, appeals the district court’s denial of his pro se request for the
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appointment of counsel. Through attorney Robert Norgard, who was appointed to

represent Chavez during his initial federal habeas proceedings and has continued to

represent him in both state and federal court, Chavez also seeks a stay of execution

pending disposition of his appeal 1 and the appointment of Norgard as appellate

counsel.

                                                 I.

       Chavez was convicted and sentenced to death in November 1998 for the

kidnapping, sexual battery, and first-degree murder of a nine-year-old child. See

Chavez v. State, 832 So. 2d 730, 736–47 (Fla. 2002). His convictions and sentence

were affirmed on direct appeal by the Florida Supreme Court on November 21,

2002, see id. at 767, and the United States Supreme Court denied his petition for a

writ of certiorari on June 23, 2003, see Chavez v. Florida, 539 U.S. 947, 123 S.Ct.

2617 (2003).

       On May 23, 2003, exactly one month before the Supreme Court denied

certiorari in his direct appeal, attorney John Lipinski was appointed to represent

Chavez in his state post-conviction proceedings. Lipinski did not, however, file a

state post-conviction motion on Chavez’s behalf until July 19, 2004, which

prevented that motion from tolling the one-year limitations period for seeking


       1
         Chavez’s application for a stay of execution specifically requests that “this Court stay
[his] execution and allow [his] appeal to be fully and fairly litigated without an imminent
execution date looming.”
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federal habeas relief because the federal deadline had already expired on June 23,

2004. See 28 U.S.C. § 2244(d)(1)(A), (2). Even then, the state post-conviction

motion filed by Lipinski was not properly sworn. At Chavez’s request, Lipinski

was removed as state collateral counsel and replaced with attorney Lee

Weissenborn, who filed an amended state post-conviction motion on May 5, 2005.

Weissenborn was later permitted to withdraw and Andrea Norgard was appointed

to represent Chavez in the state proceedings. Andrea Norgard filed a second

amended post-conviction motion on Chavez’s behalf on October 4, 2006.

      During the course of his initial state collateral proceedings, Chavez raised

numerous claims of ineffective assistance of trial counsel, including that counsel

failed to (1) locate a witness who could provide potentially exculpatory evidence,

(2) consult with Chavez in preparation for the penalty phase of the trial,

(3) investigate and present evidence that Chavez’s waiver of his Miranda 2 rights

was involuntary, and (4) present expert mental health testimony in mitigation at

sentencing. See Chavez v. State, 12 So. 3d 199, 204 (Fla. 2009). After an

evidentiary hearing, the state trial court denied Chavez’s post-conviction motion on

the merits and, with the assistance of Andrea Norgard’s law partner and husband,




      2
          Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602 (1966).


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Robert Norgard, Chavez appealed to the Florida Supreme Court. 3 The state

supreme court affirmed the denial of post-conviction relief on June 25, 2009, see

id. at 214, and the United States Supreme Court again denied a writ of certiorari on

November 2, 2009, see Chavez v. Florida, — U.S. —, 130 S.Ct. 501 (2009).

       Chavez, still represented by Norgard, filed a 28 U.S.C. § 2254 federal

habeas petition in February 2010. On March 16, 2010, the district court officially

appointed Norgard as federal habeas counsel under 18 U.S.C. § 3599. The court

then dismissed the § 2254 petition as untimely under the one-year statute of

limitations for seeking federal habeas relief, see 28 U.S.C. § 2244(d)(1), and, in

doing so, rejected Chavez’s claim that he was entitled to equitable tolling of the

limitations period based on the actions of his first two state-appointed attorneys,

Lipinski and Weissenborn. See Chavez v. Sec’y Fla. Dep’t of Corr., 647 F.3d

1057, 1063–65, 1070–02 (11th Cir. 2011). We affirmed the dismissal of Chavez’s

§ 2254 petition as time-barred, including the denial of equitable tolling, on July 25,

2011. See id. at 1073. Chavez has never claimed that he was entitled to equitable

tolling based on the conduct of Andrea or Robert Norgard.

       With the aid of federally appointed counsel Norgard, Chavez returned to

state court and filed a successive motion for post-conviction relief on April 17,

2012, contending that Florida’s capital sentencing scheme violates Ring v.

       3
        All references to “Norgard” that appear hereafter are to Robert Norgard. Andrea
Norgard will be referred to by her full name.
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Arizona, 536 U.S. 584, 122 S.Ct. 2428 (2002). He also asserted a claim based on

Martinez v. Ryan, — U.S. —, 132 S.Ct. 1309 (2012), which had been decided a

month earlier, alleging that state post-conviction counsel were ineffective for

failing to properly litigate his initial state collateral proceedings. The state trial

court denied the motion. In affirming that denial, the Florida Supreme Court

rejected Chavez’s Martinez-based claim on the ground that Martinez did “not

provide a new cause of action in state court proceedings” and, in any event, claims

of ineffective assistance of collateral counsel are not cognizable in such

proceedings. Chavez v. State, No. SC12-1470, 2013 WL 5629607 (Fla. Oct. 11,

2013).

      On January 2, 2013, Florida Governor Rick Scott signed Chavez’s death

warrant and the execution was set for Wednesday, February 12, 2014, at 6:00 p.m.

Chavez, again through Norgard, filed a second successive state motion for post-

conviction relief on January 9, 2014, raising an Eighth Amendment challenge to

Florida’s current lethal injection protocol. The state trial court denied that motion

on January 15, 2014, and the Florida Supreme Court affirmed on January 31, 2014.

      In the meantime, on January 10, 2014, Chavez filed a pro se request in the

United States District Court for the Southern District of Florida for the

appointment of counsel to represent him in federal court. Despite being

continuously represented by Norgard in both federal and state court since his


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federal habeas proceeding began, Chavez asserted that he was “unrepresented in

federal court” and that none of his state collateral attorneys were admitted to

practice before the Southern District of Florida, this Court, or the United States

Supreme Court. Chavez requested the appointment of “conflict free” counsel to

investigate and present potential Martinez claims against his state collateral

attorneys — Andrea Norgard, Robert Norgard, Weissenborn, and Lipinski.

Interpreting Martinez to stand for the proposition that “criminal defendants in some

circumstances can raise claims of inadequate assistance of counsel at initial-review

collateral proceedings,” Chavez maintained that he was entitled to counsel “to

investigate and challenge the efficacy of state collateral counsel.”

      On January 15, 2014, the district court denied Chavez’s request, which it

treated as a motion for the appointment of counsel instead of as a motion for the

substitution of another appointed attorney for Norgard. The court concluded that

Chavez’s request for counsel to investigate a possible Martinez claim was based on

a “fundamental misunderstanding of the holding in Martinez,” which merely

crafted a mechanism for excusing the procedural default of claims of ineffective

assistance of trial counsel where state collateral counsel failed to properly preserve

those claims in state court. See generally Arthur v. Thomas, 739 F.3d 611, 629–31

(11th Cir. 2014) (explaining that the Martinez decision applies only to the issue of

cause to excuse the procedural default of an ineffective assistance of trial counsel


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claim that occurred in a state collateral proceeding); Gore v. Crews, 720 F.3d 811,

816 (11th Cir. 2013) (“By its own emphatic terms, the Supreme Court’s decision in

Martinez is limited to claims of ineffective assistance of trial counsel that are

otherwise procedurally barred due to the ineffective assistance of post-conviction

counsel.”). The district court also noted that, “even if Petitioner did have a valid

Martinez claim,” investigating and presenting any such claim would be futile in

light of the applicable statute-of-limitations bar and the general prohibition against

filing successive § 2254 petitions. “Even if post-conviction counsel had been

ineffective for failing to bring certain ineffective assistance of trial counsel claims

. . . in state court,” the district court remarked, none of those claims could be heard

on the merits because they “would be subject to dismissal for lack of jurisdiction”

and “because the statute of limitations for Petitioner’s federal habeas had already

expired.” See Arthur, 739 F.3d at 630 (holding that the Martinez decision has no

application to the operation or tolling of the § 2244(d) statute of limitations).

      On February 3, 2014, which was more than two weeks after the order

denying his motion for counsel and only nine days before his scheduled execution,

Chavez appealed that order. Three days later, Norgard filed in connection with the

appeal a motion for a stay of execution pending disposition of the appeal and a

motion for this Court to appoint him as Chavez’s appellate counsel.




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                                           II.

      An indigent state inmate seeking to challenge his death sentence in federal

court is statutorily entitled to the appointment of counsel “in any post conviction

proceeding under section 2254.” 18 U.S.C. § 3599(a)(2). The Supreme Court has

held that the right to the appointment of counsel “includes a right to legal

assistance in the preparation of a habeas corpus application” and thus “adheres

prior to the filing of a formal, legally sufficient habeas corpus petition.”

McFarland v. Scott, 512 U.S. 849, 855–56, 114 S.Ct. 2568, 2572 (1994). Once

federal habeas counsel has been appointed to represent a state prisoner in a § 2254

proceeding, counsel is required to represent the prisoner “throughout every

subsequent stage of available judicial proceedings,” including “all available post-

conviction process” in state and federal court (such as state clemency proceedings),

until he has been “replaced by similarly qualified counsel upon the attorney’s own

motion or upon motion of the defendant.” 18 U.S.C. § 3599(e); see also Harbison

v. Bell, 556 U.S. 180, 185–88, 129 S.Ct. 1481, 1486–88 (2009). The Supreme

Court has also held, however, that substitution of federally appointed counsel is

warranted only when it would serve “the interests of justice.” Martel v. Clair, —

U.S. —, 132 S.Ct. 1276, 1284 (2012) (quoting 18 U.S.C. § 3006A). Among other

things, that means a district court is not “required to appoint a new lawyer just so

[a state prisoner can] file a futile motion.” Id. at 1289.


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      Although Chavez characterized his motion as a request for the appointment

of federal counsel, and the district court treated it that way, Chavez was effectively

seeking the substitution of counsel. That’s because Norgard had been appointed to

represent Chavez in his federal habeas proceedings and, by statute, was required to

continue representing Chavez in all later stages of available post-conviction

proceedings until his replacement by another attorney. See 18 U.S.C. § 3599(e).

Unless and until an order is entered removing Norgard or substituting another

counsel for him, he remains counsel for Chavez in this and any future federal

habeas proceedings.

      When Chavez’s request is properly viewed as a motion for the substitution

of federally appointed counsel, it is clear that he was not entitled to the

appointment of new counsel for the declared purpose of investigating and litigating

a Martinez-based claim for relief because that claim would be futile. See Martel,

132 S.Ct. at 1289 (“The court was not required to appoint a new lawyer so Clair

could file a futile motion.”). It would be futile because Martinez did not, as

Chavez seems to suggest, create a freestanding claim for challenging a conviction

or sentence based on the alleged ineffective assistance of post-conviction counsel.

The Supreme Court has long held that there is no constitutional right to counsel in

post-conviction proceedings, even in capital cases, which necessarily means that a

habeas petitioner cannot assert a viable, freestanding claim for the denial of the


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effective assistance of counsel in such proceedings. See Coleman v. Thompson,

501 U.S. 722, 752, 111 S.Ct. 2546, 2566 (1991); see also 28 U.S.C. § 2261(e)

(“The ineffectiveness or incompetence of counsel during State or Federal post-

conviction proceedings in a capital case shall not be a ground for relief in a

proceeding arising under section 2254.”).

      The Supreme Court’s decision in Martinez did not alter that longstanding

Supreme Court precedent or statute. Instead, it reiterated them, expressly

acknowledging that a habeas petitioner is precluded from “relying on the

ineffectiveness of his postconviction attorney as a ground for relief.” Martinez,

132 S.Ct. at 1320 (quotation marks omitted). What the Martinez decision did —

and the only thing it did — was create a narrow, equitable exception to the general

rule that a petitioner cannot rely on the ineffectiveness of collateral counsel to

serve as cause for excusing the procedural default of a claim in state court, thereby

permitting federal habeas review of the merits of that claim. Id. at 1315–20. As

the Court put it: “Where, 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.




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        Since Martinez was decided, we have repeatedly underscored its narrow

scope. See Arthur, 739 F.3d at 629 (explaining that Martinez “announced a

‘narrow exception’ to Coleman’s procedural default rule in the limited

circumstances where a state law ‘requires a prisoner to raise an ineffective-

assistance-of-trial-counsel claim in a collateral proceeding’” and, among other

things, state collateral counsel “was ineffective by not raising ineffective-trial-

counsel-claims” in the state proceedings); Gore, 720 F.3d at 816 (“By its own

emphatic terms, the Supreme Court’s decision in Martinez is limited to claims of

ineffective assistance of trial counsel that are otherwise procedurally barred due to

the ineffective assistance of post-conviction counsel.”). We have emphasized that

the equitable rule established in Martinez applies only “to excusing a procedural

default of ineffective-trial-counsel claims” and, for that reason, has no application

to other matters like the one-year statute of limitations period for filing a § 2254

petition. Arthur, 739 F.3d at 630. So, to the extent that Chavez requested the

appointment of new counsel to investigate and present a freestanding Martinez

claim for relief based on the ineffective assistance of his state collateral counsel,

any such claim would be futile because it does not constitute a valid ground for

habeas relief. See 28 U.S.C. § 2261(e); Coleman, 501 U.S. at 752, 111 S.Ct. at

2566.




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      And to the extent Chavez requested new counsel to raise any claim of

ineffective assistance of trial counsel that was not properly preserved in state court

due to the ineffectiveness of state collateral counsel, substituting counsel for

purposes of raising that claim would also be futile. The claim would be both time-

barred under § 2244(d) and impermissibly successive under § 2244(b). Chavez’s

initial § 2254 petition was dismissed as untimely because it was filed more than

one year after his convictions became final on direct review, see 28 U.S.C.

§ 2244(d)(1)(A), and nothing in Martinez alters that fact. While § 2244(d)(1)

includes a number of alternate triggering dates for calculating the one-year

deadline, the only one even potentially relevant here — “the date on which the

constitutional right asserted was initially recognized by the Supreme Court, if the

right has been newly recognized by the Supreme Court and made retroactively

applicable to cases on collateral review” — is inapplicable because Martinez did

not announce a new rule of constitutional law. See 28 U.S.C. § 2244(d)(1)(C);

Arthur, 739 F.3d at 629 (“The Martinez rule is not a constitutional rule but an

equitable principle.”); see also Buenrostro v. United States, 697 F.3d 1137, 1139

(9th Cir. 2012) (holding that Martinez “did not announce a new rule of

constitutional law”). And while the federal limitations period is subject to

equitable tolling in certain circumstances, we have rejected the notion that

anything in Martinez provides a basis for equitably tolling the filing deadline.


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Arthur, 739 F.3d at 630–31 (“Because Arthur’s § 2254 petition was denied due to

his complete failure to timely file that § 2254 petition, the Supreme Court’s

analysis in Martinez . . . of when and how ‘cause’ might excuse noncompliance

with a state procedural rule is wholly inapplicable here.”).

      Likewise, a district court has no jurisdiction to consider a claim presented in

a second or successive § 2254 petition unless the court of appeals first grants

authorization to file such a petition, which it may do only where the claim either

“relies on a new rule of constitutional law, made retroactive to cases on collateral

review by the Supreme Court, that was previously unavailable,” or on facts that

“could not have been discovered previously through the exercise of due diligence”

and that are sufficient to show that “no reasonable factfinder would have found the

applicant guilty of the underlying offense.” 28 U.S.C. § 2244(b)(2)(A)–(B); see

also Williams v. Chatman, 510 F.3d 1290, 1295 (11th Cir. 2007). A claim of

ineffective assistance of trial counsel, even one that can be excused from the

application of the procedural default doctrine based on the equitable, non-

constitutional rule announced in Martinez, does not satisfy either of these criteria.

Substitution of counsel, whether characterized as such or as a motion for

appointment of new counsel, to investigate and raise new ineffective assistance of

counsel claims in a second § 2254 petition would be futile because those claims

could not form the basis for relief. See Buenrostro, 697 F.3d at 1139 (“Martinez


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cannot form the basis for an application for a second or successive motion because

it did not announce a new rule of constitutional law.”).

      Finally, even if Norgard had never been appointed as federal habeas counsel,

or had somehow been relieved from that appointment, so that Chavez’s motion

could accurately be construed as a motion for the appointment of counsel, Chavez

would still not be entitled to have counsel appointed to pursue claims that could

form the basis for federal habeas relief. While it is true, as Chavez notes, that “a

substantive, merits assessment of [an actual or proposed § 2254 petition] is

irrelevant to the appointment of counsel” under § 3599, Weeks v. Jones, 100 F.3d

124, 127 (11th Cir. 1996), that does not preclude courts from considering whether

a proposed petition would clearly be barred for a reason unrelated to the merits of

any substantive claim for relief, such as a statute-of-limitations bar. See In re

Hearn, 376 F.3d 447, 455 (5th Cir. 2004) (“[P]otential procedural bars may be so

conclusive that the right to counsel under [§ 3599] becomes unavailable.”); Cantu-

Tzin v. Johnson, 162 F.3d 295, 298 (5th Cir. 1998) (“Appointment of counsel for a

capital-convicted defendant would be a futile gesture if the petitioner is time-

barred from seeking federal habeas relief.”). Because Chavez cannot bring any

Martinez-based claims within the one-year statute of limitations for seeking federal

habeas relief, and because binding precedent forecloses any argument that

Martinez can excuse or equitably toll that limitations period, the appointment of


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counsel to investigate and pursue such claims would be a wholly futile gesture that

renders § 3599’s right to federally-funded counsel unavailable. See In re Hearn,

376 F.3d at 455; Cantu-Tzin, 162 F.3d at 298.4

       For these reasons, we AFFIRM the denial of Chavez’s request for the

appointment of counsel, regardless of whether that request is properly treated as a

motion for substitution of counsel. We DENY AS MOOT Chavez’s application

for a stay of execution pending the outcome of this appeal 5 and for the appointment

of counsel on appeal.




       4
          Because a future federal habeas petition would clearly be barred under the one-year
statute of limitations period, we need not address whether or when the limits on second or
successive § 2254 petitions can warrant denial of a request for appointment of federal habeas
counsel. See In re Hearn, 376 F.3d at 454–55 (holding that “courts are not barred from
appointing [] counsel to prepare an application for authority to file a successive habeas petition,”
provided that the prisoner has not “had a sufficient opportunity to investigate the factual bases of
his proposed habeas claim” and that claim is colorable).
       5
          Even if the motion for a stay of execution were somehow not moot, we would still deny
it. A stay is an equitable remedy which requires, among other things, that Chavez show a
substantial likelihood of success on the merits of the issue involved in this appeal. See Hill v.
McDonough, 547 U.S. 573, 584, 126 S.Ct. 2096, 2104 (2006) (emphasizing that “a stay of
execution is an equitable remedy” that “is not available as a matter of right,” and that an inmate
seeking a stay of execution must “satisfy all of the requirements for a stay, including a showing
of a significant possibility of success on the merits”). For the reasons discussed in this opinion,
Chavez has not done that, and he cannot do that. Nor has he identified in this proceeding a
single merits-based claim going to the validity of his convictions, death sentence, or imminent
execution that would provide a substantial ground on which to grant federal habeas relief. See
Bowersox v. Williams, 517 U.S. 345, 346, 116 S.Ct. 1312, 1312 (1996) (“A stay of execution
pending disposition of a second or successive federal habeas petition should be granted only
when there are substantial grounds upon which relief might be granted.”) (quotation marks
omitted).
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MARTIN, concurring in the judgment:

       Mr. Chavez appeals the denial of the District Court’s denial of his pro se

motion to appoint him conflict-free counsel to represent him in his warrant

litigation and to investigate and present claims against his state postconviction

counsel pursuant to Martinez v. Ryan, ___ U.S. ___, 132 S. Ct. 1309 (2012). He

also seeks a stay of his imminent execution on February 12, 2004 at 6:00 p.m.

       The Majority opinion properly analyzes Mr. Chavez’s pro se motion as one

for substitution of counsel under Martel v. Clair, ___ U.S. ___, 132 S. Ct. 1276

(2012). The U.S. District Court for the Southern District of Florida appointed

Robert Norgard on March 16, 2010 to represent Mr. Chavez in his initial federal

habeas corpus proceedings, pursuant to 18 U.S.C. § 3006A and § 3599.1 To my

knowledge, Mr. Norgard has never been replaced by order of any federal court.

See 18 U.S.C. § 3599(e). Section 3599(e) is instructive on this point:

              Unless replaced by similarly qualified counsel upon the
       attorney’s own motion or upon motion of the defendant, each attorney
       so appointed shall represent the defendant throughout every
       subsequent stage of available judicial proceedings, including pretrial
       proceedings, trial, sentencing, motions for new trial, appeals,
       applications for writ of certiorari to the Supreme Court of the United
       States, and all available post-conviction process, together with
       applications for stays of execution and other appropriate motions and
       procedures, and shall also represent the defendant in such competency

1
  The District Court later granted Mr. Norgard’s request to make his appointment retroactive,
nunc pro tunc to November 3, 2009, the day after the U.S. Supreme Court denied Mr. Chavez’s
petition for certiorari from the denial of his state postconviction proceedings. See Chavez v.
Florida, 558 U.S. 996, 130 S. Ct. 501 (Nov. 2, 2009).
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      proceedings and proceedings for executive or other clemency as may
      be available to the defendant.

Id. Mr. Norgard, therefore, is required by statute to continue representing Mr.

Chavez “in all later stages of available post-conviction proceedings,” Maj. Op. at

9, as well as “other appropriate motions and procedures . . . as may be available to

the defendant.” 18 U.S.C. § 3599(e).

      I also agree with the Majority that Clair requires us to apply the “interests of

justice” standard to motions for substitution of counsel brought by indigent capital

defendants who were appointed counsel under § 3599. Clair, 132 S. Ct. at 1281,

1283–87. This is the same standard federal courts apply “in non-capital cases

under a related statute, § 3006A of Title 18.” Id. at 1281; id. at 1285 (“[U]tilizing

§ 3006A’s standard comports with the myriad ways that § 3599 seeks to promote

effective representation for persons threatened with capital punishment.”). This

being the case, federal courts must be guided by the body of law interpreting and

applying the “interests of justice” test when evaluating motions by indigent capital

defendants. As the Supreme Court emphasized in Clair, “the ‘interests of justice’

standard contemplates a peculiarly context-specific inquiry.” Id. at 1287.

      It is the peculiar “context” of Mr. Chavez’s case that leads me to conclude

the District Court did not abuse its discretion in denying Mr. Chavez’s pro se

request for substitution of counsel. Although Clair noted “any attempt to provide a

general definition of the [interests of justice] standard would” likely be unhelpful
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in light of the need for a context-specific inquiry, it did note that one of the

relevant factors was “the timeliness of the motion.” Id. It is the timing of Mr.

Chavez’s motion—filed after his death warrant was signed and approximately two

and a half years after this Court affirmed the dismissal of his initial § 2254

petition 2—that is compelling to me.

       I am also aware that this Circuit’s binding precedent all but forecloses any

attempt by Mr. Chavez to reopen his habeas corpus proceedings by filing a Federal

Rule of Civil Procedure 60(b) motion based on Martinez. See generally Arthur v.

Thomas, 739 F.3d 611, 629–31 (11th Cir. 2014). Finally, in terms of what is not

now available to him, it is difficult to see how Mr. Chavez might successfully

obtain authorization to file a second or successive § 2254 petition pursuant to 28

U.S.C. § 2244(b)(3), especially given that the Supreme Court’s decision in

Martinez was an equitable decision that did not announce a new rule of

constitutional law. See Martinez, 132 S. Ct. at 1318. It is important that Mr.

Chavez has neither requested nor alleged that he needs conflict-free counsel to

prove his actual innocence. See 2244(b)(2)(B); McQuiggin v. Perkins, ___ U.S.

___, 133 S. Ct. 1924, 1928 (2013) (“We hold that actual innocence, if proved,

serves as a gateway through which a petitioner may pass whether the impediment


2
  We affirmed the dismissal of Mr. Chavez’s initial § 2254 petition for writ of habeas corpus on
July 25, 2011. Chavez v. Sec’y Fla. Dep’t of Corr., 647 F.3d 1057 (11th Cir. 2011), cert. denied
sub nom., Chavez v. Tucker, ___ U.S. ___, 132 S. Ct. 1018 (2012).
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is a procedural bar . . . or . . . expiration of the statute of limitations.”). Thus, I am

compelled to agree that under our existing and binding precedent, any attempt by

Mr. Chavez to file a Rule 60(b) motion or obtain authorization to file a second or

successive § 2254 petition is probably futile.

       I am less confident, however, that conflict-free counsel could not

meaningfully assist Mr. Chavez in other ways. For example, Mr. Chavez, like all

capital habeas petitioners, is free to file an original habeas corpus petition in the

United States Supreme Court. See Felker v. Turpin, 518 U.S. 651, 660, 116 S. Ct.

2333, 2338 (1996) (concluding that AEDPA did not repeal the Supreme Court’s

“authority to entertain original habeas petitions.”); see also id. at 661, 116 S. Ct. at

2339 (rejecting suspension of the writ challenge to AEDPA’s gatekeeping system

in part because the Supreme Court still retained jurisdiction to hear original habeas

corpus petitions). We know, for example, that the Supreme Court’s original

habeas corpus jurisdiction is not restricted by 28 U.S.C. § 2244(b)(3)’s

gatekeeping system for filing second or successive habeas applications in the same

way applicable to second or successive § 2254 petitions filed in the District Courts.

Id. at 662, 116 S. Ct. at 2339 (“Section 2244(b) addresses second or successive

habeas petitions. Section 2244(b)(3)’s ‘gatekeeping’ system for second petitions

does not apply to our consideration of habeas petitions because it applies to

applications ‘filed in the district court.’ § 2244(b)(3)(A).”). However, neither Mr.


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              Case: 14-10486     Date Filed: 02/10/2014    Page: 20 of 20


Chavez’s pro se motion nor his counseled pleadings has specifically requested

conflict-free counsel for the purpose of presenting an original habeas corpus

petition to the United States Supreme Court based on an ineffective assistance of

trial counsel claim that his initial-review state collateral counsel ineffectively failed

to present.

      Nor has Mr. Chavez or his counsel specifically requested the assistance of

conflict-free counsel to pursue state clemency. Although the Governor of Florida

has previously denied Mr. Chavez clemency, I am not aware of any state law

which limits his ability to seek further relief by way of clemency or precludes him

from seeking clemency on any basis.




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