     Case: 12-70010   Document: 00511834635   Page: 1   Date Filed: 04/25/2012




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

                                                                 FILED
                                                                April 25, 2012

                                 No. 12-70010                   Lyle W. Cayce
                                                                     Clerk

BEUNKA ADAMS,

                                          Petitioner–Appellee
v.

RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

                                          Respondent–Appellant

________________________________________________________________________



                                 No. 12-40436


In re: BEUNKA ADAMS,

                                          Petitioner

Consolidated with 12-70011

BEUNKA ADAMS,

                                          Petitioner–Appellant

v.

RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

                                          Respondent–Appellee
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                        Nos. 12-70010, 12-40436, 12-70011




                Appeals from the United States District Court
                      for the Eastern District of Texas



Before KING, ELROD, and HAYNES, Circuit Judges.
KING, Circuit Judge:
      Beunka Adams was convicted of capital murder and sentenced to death in
Texas state court. He is scheduled to be executed on April 26, 2012. On April
13, 2012, Adams filed a motion in the district court pursuant to Federal Rule of
Civil Procedure 60(b)(6), seeking relief from the district court’s judgment
denying his initial federal habeas corpus petition. He also filed a motion for a
stay of execution. Adams v. Thaler, No. 5:07-cv-00180 (E.D. Tex.). That same
day, in a separate district court action, Adams filed a second-in-time federal
habeas petition and a motion for a stay of execution. Adams v. Thaler, No. 5:12-
cv-00036 (E.D. Tex.).
      On April 23, 2012, the district court granted Adams’s motion to stay his
execution pending the court’s disposition of Adams’s Rule 60(b)(6) motion. In the
separate action related to Adams’s second-in-time federal habeas petition, the
district court transferred the case to this court, in order for us to determine in
the first instance whether Adams’s habeas petition is successive. On April 24,
2012, Rick Thaler filed a motion to vacate the stay of Adams’s execution. For the
following reasons, we VACATE the district court’s grant of a stay of execution;
we DISMISS Adams’s successive federal habeas petition; and we DENY his
motion for a stay of execution.




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                          Nos. 12-70010, 12-40436, 12-70011

              I. FACTUAL AND PROCEDURAL BACKGROUND
       Beunka Adams (“Adams”) was convicted of capital murder and sentenced
to death in Texas state court.1 The Texas Court of Criminal Appeals (“TCCA”)
affirmed Adams’s conviction and sentence on direct appeal, and the Supreme
Court denied review. Adams v. State, No. AP-75023, 2007 WL 1839845 (Tex.
Crim. App. June 27, 2007), cert. denied 552 U.S. 1145 (2008). Adams filed a
state habeas application, in which he asserted various claims, including several
ineffective assistance of counsel claims. After an evidentiary hearing, the state
trial court entered findings of fact and conclusions of law recommending the
denial of Adams’s habeas application. The TCCA adopted these findings of fact
and conclusions of law and denied Adams’s application. Ex parte Adams, No.
WR-68066-01, 2007 WL 4127008 (Tex. Crim. App. Nov. 21, 2007).
       Adams filed a second state habeas application in 2008, asserting two new
claims related to the jury instructions given during the sentencing phase of his
trial. Specifically, he asserted that he was deprived of his Sixth and Fourteenth
Amendment rights to effective assistance of counsel by trial counsel’s and
appellate counsel’s failure to ensure that the jury was properly instructed in the
punishment phase of his trial.2 While the subsequent state application was
pending, Adams filed a federal habeas petition asserting ten claims for relief,
including the two claims presented in his second state habeas application.
Adams simultaneously filed a motion to stay and abate the federal proceedings


       1
        The facts of this case are set forth in our previous opinion. See Adams v. Thaler, 421
F. App’x 322, 324-26 (5th Cir. 2011) (affirming the judgment of the district court denying
Adams’s federal habeas corpus petition).
       2
          Adams’s underlying claim is that the jury instructions in the punishment phase of
his trial were unconstitutional, because the second Texas special issue did not encompass the
constitutional level of intent required by Enmund v. Florida, 458 U.S. 782 (1982), and Tison
v. Arizona, 481 U.S. 137 (1987), for the imposition of the death penalty. Adams contended that
his trial counsel was ineffective for failing to object to the jury instructions and that his
appellate counsel was ineffective for failing to raise the constitutional issue on direct appeal.

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                      Nos. 12-70010, 12-40436, 12-70011

until the TCCA ruled on the second application. The federal district court
granted the motion. A few months later, the TCCA found that the two claims in
his subsequent state habeas application were procedurally barred, specifically
that they did “not satisfy the requirements of Article 11.071, Section 5,” of the
Texas Code of Criminal Procedure.           Therefore, the TCCA dismissed the
application as an “abuse of the writ.” Ex parte Adams, No. WR-68066-02, 2009
WL 1165001 (Tex. Crim. App. Apr. 29, 2009).
      Thereafter, the district court denied Adams’s federal habeas petition,
dismissing the two claims that Adams presented in his second state habeas
application and denying the remaining claims. Adams v. Thaler, No. 5:07-cv-
180, 2010 WL 2990967 (E.D. Tex. July 26, 2010). The district court determined
that Adams had procedurally defaulted his ineffective assistance of trial and
appellate counsel claims pursuant to Coleman v. Thompson, 501 U.S. 722, 750
(1991). Coleman held that “[i]n all cases in which a state prisoner has defaulted
his federal claims in state court pursuant to an independent and adequate state
procedural rule, federal habeas review of the claims is barred unless the prisoner
can demonstrate cause for the default and actual prejudice as a result of the
alleged violation of federal law, or demonstrate that failure to consider the
claims will result in a fundamental miscarriage of justice.” Id. Because the
TCCA dismissed these claims as an “abuse of the writ”—an independent and
adequate state procedural ground—the district court found that the claims were
procedurally defaulted. Furthermore, the court ruled that Adams could not
demonstrate “cause” to excuse the procedural default, because, pursuant to
Coleman, the ineffectiveness of state habeas counsel in failing to raise these
claims in Adams’s first state habeas application did not constitute “cause.” See
id. at 752-53. The court granted Adams a certificate of appealability (“COA”) on
eleven issues: on the ten claims he presented in his petition and on the issue of
whether his two claims were procedurally barred. We affirmed the district

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                          Nos. 12-70010, 12-40436, 12-70011

court’s judgment denying Adams’s petition. Adams v. Thaler, 421 F. App’x 322
(5th Cir. 2011), cert. denied 132 S. Ct. 399 (2011).
       Adams recently filed another subsequent habeas application in state court,
which the TCCA dismissed as an abuse of the writ. Ex parte Adams, No. WR-
68066-03, 2012 WL 476538 (Tex. Crim. App. Feb. 15, 2012). On March 13, 2012,
Adams petitioned the Supreme Court for review of that dismissal and also filed
a motion for a stay of execution. On February 27, 2012, Adams filed in our court
a motion for authorization to file a successive petition, but withdrew that motion
on March 23, 2012, several days after the Supreme Court issued its decision in
Martinez v. Ryan, 132 S. Ct. 1309 (2012).
       In Martinez, the Supreme Court noted that Coleman held that “an
attorney’s negligence in a postconviction proceeding does not establish cause” to
excuse procedural default. Id. at 1319. The Court recognized that Coleman “left
open . . . a question of constitutional law: 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. However, the Court
did not resolve this constitutional question. Id. Instead, the Court in Martinez
“qualifie[d] Coleman by recognizing a narrow exception: Inadequate assistance
of counsel at initial-review collateral proceedings3 may establish cause for a
prisoner’s procedural default of a claim of ineffective assistance at trial.” Id.
The Court summarized its narrow holding as follows:
       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.

       3
         The Court defined an “initial-review collateral proceeding” as “the first designated
proceeding for a prisoner to raise a claim of ineffective assistance at trial.” Martinez, 132 S.
Ct. at 1315, 1317.

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                          Nos. 12-70010, 12-40436, 12-70011

Id. at 1320. The Court characterized its decision as an “equitable ruling,” and
not a constitutional ruling. Id. at 1319.
       On April 13, 2012, Adams filed a motion in the federal district court
pursuant to Federal Rule of Civil Procedure 60(b)(6), seeking relief from the
district court’s judgment denying his federal habeas petition. Adams v. Thaler,
No. 5:07-cv-00180 (E.D. Tex.). In his Rule 60(b)(6) motion, Adams stated that
the district court relied on Coleman to conclude that Adams’s ineffective
assistance of trial and appellate counsel claims were procedurally defaulted and
that ineffective assistance of state post-conviction counsel could not constitute
cause to excuse the default. Adams asserted that, since the district court’s
judgment, the Supreme Court had decided Martinez, which created an exception
to Coleman’s holding that ineffective assistance of state habeas counsel cannot
constitute cause to excuse procedural default. Adams argues that Martinez
constitutes “extraordinary circumstances” entitling him to Rule 60(b)(6) relief.
Adams also filed a motion for a stay of execution pending disposition of his Rule
60(b)(6) motion.
       Also on April 13, 2012, Adams filed a second-in-time federal habeas
petition in the district court, a motion for a stay of execution, and a motion to
proceed in forma pauperis. Adams v. Thaler, No. 5:12-cv-00036 (E.D. Tex.).
Adams argued that his second-in-time federal habeas petition was not a
“successive” petition and therefore that the court had jurisdiction to entertain
it without our prior authorization. In his petition, Adams asserted that, given
Martinez, he could now demonstrate cause for his procedural default and was
therefore entitled to an adjudication of his ineffective assistance of trial and
appellate counsel claims.4 In his motion for a stay of execution, Adams argued


       4
        Although we need not, and do not, address the impact of Martinez on the Texas
habeas landscape, we note that Texas does not require a defendant to raise an ineffective
assistance of trial counsel claim only in state habeas proceedings, see Lopez v. Texas, 343 S.W.

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                          Nos. 12-70010, 12-40436, 12-70011

that the district court “should stay the execution and set a briefing schedule so
the parties and the Court can meaningfully examine Martinez’s implications.”
       On April 19, 2012, Rick Thaler (“Director”), Director of the Texas
Department of Criminal Justice, filed a response in opposition to Adams’s
motions for relief from judgment and for stay of execution. The Director argued
that the district court should deny Adams’s Rule 60(b) motion because the
Supreme Court’s decision in Martinez was simply a “change in decisional law
after entry of judgment” and does not constitute “extraordinary circumstances.”
The Director also filed a motion to dismiss for lack of jurisdiction Adams’s
second-in-time federal habeas petition. The Director contended that it was
“undoubtedly [a] successive” petition because his first federal habeas petition
“was dismissed with prejudice challenging the same conviction” and “it contained
the exact claims Adams now presents the [district court.]” The Director argued
that, because Adams did not receive prior authorization from the court of
appeals, the district court should dismiss Adams’s successive petition. See 28
U.S.C. § 2244(b)(3)(A).
       On April 23, 2012, the district court granted Adams’s motion to stay his
execution pending the court’s disposition of Adams’s Rule 60(b)(6) motion. In a
one-page order, the court stated, “Having considered the circumstances alleged
and authorities cited in the motion [for a stay of execution], the Court finds that
it is well-taken and it will be granted.” The court did not rule on Adams’s Rule
60(b)(6) motion.      In the separate action regarding Adams’s second-in-time
habeas petition, the court issued an order pursuant to 28 U.S.C. § 1631
transferring the case to this court, for us to determine in the first instance
whether Adams’s petition is successive. The court explained that “[w]hether


3d 137, 143 (Tex. Crim. App. 2011), and that ineffective assistance claims (particularly those,
like Adams’s claim, involving trial counsel’s failure to object to jury instructions) are often
brought on direct appeal, with mixed success.

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                       Nos. 12-70010, 12-40436, 12-70011

Adams’s current application is a second or successive petition as those terms are
defined in 28 U.S.C. § 2244 is a close case, and in light of that statute the most
efficient and economical approach to answering that question is to allow the
United States Court of Appeals for the Fifth Circuit to make the initial
determination.”
      On April 24, 2012, the Director filed a motion to vacate the stay of Adams’s
execution. The Director argued that the district court improperly granted a stay
of execution because Adams’s underlying claims have no merit. Furthermore,
he argued that the district court improperly granted a stay of execution because
it is not “reasonably likely [that] Adams[’s] motion justifies relief from
judgment,” because the Martinez decision does not constitute extraordinary
circumstances. Therefore, the Director asserted that “Adams cannot prove that
his pending Rule 60(b)(6) motion would provide a sufficient basis for a stay.”
The Director also filed a response in opposition to the district court’s order
transferring Adams’s second-in-time habeas petition to this court. The Director
argued that the district court erroneously transferred the petition to us, as the
district court should have dismissed the petition as an unauthorized successive
petition. The Director asserted that we should dismiss Adams’s successive
petition, as it is barred under 28 U.S.C. § 2244(b)(1).
      Finally, on April 24, 2012, Adams appealed the district court’s transfer
order, and he followed that up with a motion, filed on April 25, 2012, asking this
court to establish a briefing schedule on the question whether his second-in-time
habeas petition is successive. In the alternative, he asks this court to hold that
his petition is not successive and to remand it to the district court for
consideration. He also asks for a stay of execution.
                               II. DISCUSSION
A. Stay of Execution
      1. Standard of Review

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      We review a district court’s grant of a stay of execution for abuse of
discretion. Delo v. Stokes, 495 U.S. 320, 322 (1990) (“The District Court abused
its discretion in granting a stay of execution.”); Lackey v. Scott, 52 F.3d 98, 100
(5th Cir. 1995). The Supreme Court has stated that a “stay of execution is an
equitable remedy.” Hill v. McDonough, 547 U.S. 573, 584 (2006). A stay of
execution “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
inference from the federal courts.” Id. (citations omitted). “The party requesting
a stay bears the burden of showing that the circumstances justify an exercise of
[judicial] discretion.” Nken v. Holder, 556 U.S. 418, 433-34 (2009) (citations
omitted). In deciding whether to grant a stay of execution, the district court was
required to consider four factors:
      (1) whether the stay applicant has made a strong showing that he
      is likely to succeed on the merits; (2) whether the applicant will be
      irreparably injured absent a stay; (3) whether issuance of the stay
      will substantially injure the other parties interested in the
      proceeding; and (4) where the public interest lies.
Id. at 434 (quoting Hilton v. Braunskill, 481 U.S. 770, 776 (1987)); see also
Buxton v. Collins, 925 F.2d 816, 819 (5th Cir. 1991).
      2. The District Court Improperly Granted A Stay
      In granting Adams’s motion for a stay of execution, the district court did
not rule on Adams’s Rule 60(b)(6) motion. Nor did the court explicitly address
the merits of Adams’s Rule 60(b)(6) motion. However, as explained above, in
order to grant a stay of execution, the district court was required to consider four
factors, including that “the stay applicant has made a strong showing that he is
likely to succeed on the merits.” Nken, 556 U.S. at 434. Therefore, in granting
the stay, the district court made an implicit determination that it was
reasonably likely that Adams’s Rule 60(b)(6) motion justified relief from
judgment. Thus, in order to assess whether the district court properly exercised


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its discretion in granting a stay, we determine whether Adams has shown a
likelihood of success on the merits of his Rule 60(b)(6) motion.
      As a preliminary matter, we determine whether the district court had
jurisdiction to rule on Adams’s Rule 60(b)(6) motion. In Gonzalez v. Crosby, 545
U.S. 524 (2005), the Supreme Court stated that a Rule 60(b) motion does not
contain a habeas corpus “claim,” and thus should not be construed as a
successive petition, when the motion “attacks, not the substance of the federal
court’s resolution of a claim on the merits, but some defect in the integrity of the
federal habeas proceedings.” Id. at 532 (footnote omitted). Specifically, the
Court held that a petitioner does not make a “habeas corpus claim . . . when he
merely asserts that a previous ruling which precluded a merits determination
was in error—for example, a denial for such reasons as failure to exhaust,
procedural default, or statute-of-limitations bar.” Id. at 532 n.4. In his Rule
60(b)(6) motion, Adams challenges the district court’s determination that his
claims were procedurally defaulted. Thus, Adams’s Rule 60(b)(6) motion is not
to be construed as an improper successive habeas petition and is properly before
the district court. See Williams v. Thaler, 602 F.3d 291, 305 (5th Cir. 2010)
(noting that the court had jurisdiction to consider petitioner’s Rule 60(b) motion
where petitioner challenged the district court’s ruling on procedural default);
Rocha v. Thaler, 619 F.3d 387, 399 n.26 (5th Cir. 2010) (same).
      Next, in order to determine whether the district court properly entered a
stay of execution, we assess whether Adams has demonstrated a likelihood of
success on the merits of his Rule 60(b)(6) motion. Pursuant to Federal Rule of
Civil Procedure 60(b)(6), a court may reopen a final judgment when a party
shows “any other reason that justifies relief.”      “We have interpreted Rule
60(b)(6)’s ‘any other reason’ language to mean any other reason than those
contained in the preceding five enumerated grounds of Rule 60(b).” Rocha, 619
F.3d at 400. “While Rule 60(b)(6) is commonly referred to as a ‘grand reservoir

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of equitable power to do justice,’ the rule is only invoked in ‘extraordinary
circumstances.’” Id. (citation omitted); see also Gonzalez, 545 U.S. at 535 (“[O]ur
cases have required a movant seeking relief under Rule 60(b)(6) to show
‘extraordinary circumstances’ justifying the reopening of a final judgment.”)
(quoting Ackermann v. United States, 340 U.S. 193, 199 (1950)). The Supreme
Court has stated that “[s]uch circumstances will rarely occur in the habeas
context.” Gonzalez, 545 U.S. at 535.
      In contending that “extraordinary circumstances” exist to warrant Rule
60(b)(6) relief, Adams first points to the Supreme Court’s decision in Martinez,
which was issued after the district court’s judgment. He asserts that Martinez
represents a “jurisprudential sea change” in federal habeas corpus law,
recognizing an exception to Coleman’s holding that ineffective assistance of post-
conviction counsel cannot constitute cause for procedural default. Also, Adams
points to the “capital nature of the case and the equitable imperative that the
true merit of the cause be heard” as factors that, when combined with Martinez,
constitute “extraordinary circumstances” and warrant Rule 60(b)(6) relief.
      Our precedents hold that “[a] change in decisional law after entry of
judgment does not constitute exceptional circumstances and is not alone grounds
for relief from a final judgment” under Rule 60(b)(6). Bailey v. Ryan Stevedoring
Co., 894 F.2d 157, 160 (5th Cir. 1990) (citations omitted); see also Batts v. Tow-
Motor Forklift Co., 66 F.3d 743, 747-48 (5th Cir. 1995). We have held that “[t]his
rule applies with equal force in habeas proceedings under” the Antiterrorism and
Effective Death Penalty Act (“AEDPA”). Hernandez v. Thaler, 630 F.3d 420, 430
(5th Cir. 2011); see Hess v. Cockrell, 281 F.3d 212, 216 (5th Cir. 2002) (“Under
our precedents, changes in decisional law . . . do not constitute the ‘extraordinary
circumstances’ required for granting Rule 60(b)(6) relief. . . . The dicta in Batts
suggesting that the rule for changes in decisional law might be different in the



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habeas corpus context because finality is not a concern is now flatly contradicted
by, among other things, AEDPA.”).
      Indeed, in Gonzalez, the Supreme Court concluded that a change in
decisional law, concerning the interpretation of AEDPA’s statute of limitations,
after the entry of the district court’s judgment dismissing the habeas petition did
not constitute “extraordinary circumstances” under Rule 60(b)(6). The Court
explained that the district court’s “interpretation was by all appearances correct
under the Eleventh Circuit’s then-prevailing interpretation of [AEDPA].” 545
U.S. at 536.    The Court stated that “[i]t is hardly extraordinary” that,
subsequent to the district court’s judgment, the Supreme “Court arrived at a
different interpretation.” Id. The Court explained that “not every interpretation
of the federal statutes setting forth the requirements for habeas provides cause
for reopening cases long since final.” Id. In Hernandez v. Thaler, 630 F.3d 420
(5th Cir. 2011), we found that the district court properly dismissed, under then-
controlling precedent, petitioner’s habeas petition as barred under the AEDPA
statute of limitations. Id. at 429. We concluded that the Supreme Court’s later
change in law regarding the calculation of AEDPA’s limitations period—which
would have rendered petitioner’s habeas petition timely—did not constitute
“extraordinary circumstances.” Id. at 430. We reasoned that “[w]ell-settled
precedent dictates that [petitioner] may not use Rule 60(b)(6) to claim the benefit
of the Supreme Court’s decision in Jimenez.” Id.
      Similarly, in the present case, in denying Adams’s initial federal habeas
petition, the district court correctly determined that Adams’s claims were
procedurally defaulted pursuant to the then-prevailing Supreme Court
precedent of Coleman. The Supreme Court’s later decision in Martinez, which
creates a narrow exception to Coleman’s holding regarding cause to excuse
procedural default, does not constitute an “extraordinary circumstance” under
Supreme Court and our precedent to warrant Rule 60(b)(6) relief. See Gonzalez,

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545 U.S. at 536; Bailey, 894 F.2d at 160. The Martinez Court’s crafting of a
narrow, equitable exception to Coleman’s holding is “hardly extraordinary.”
Gonzalez, 545 U.S. at 536; see also Martinez, 132 S. Ct. at 1320 (“The rule of
Coleman governs in all but the limited circumstances recognized here.”).
      Because the Martinez decision is simply a change in decisional law and is
“not the kind of extraordinary circumstance that warrants relief under Rule
60(b)(6),” Adams’s 60(b)(6) motion is without merit. Hernandez, 630 F.3d at 429.
Because Adams has not made a showing of a likelihood of success on the merits
of his Rule 60(b)(6) motion, the district court abused its discretion in granting
a stay of his execution pending the resolution of this motion. We therefore
vacate the district court’s grant of a stay of Adams’s execution.
B. The District Court’s Transfer of Adams’s Successive Habeas Petition
      The district court transferred Adams’s second-in-time federal habeas
petition and accompanying motion for a stay of execution to this court so that we
could determine in the first instance whether his petition is a “second or
successive” petition under 28 U.S.C. § 2244.
      We first must consider whether we have jurisdiction over this case. See
Martin v. Halliburton, 618 F.3d 476, 481 (5th Cir. 2010) (“We have jurisdiction
to determine our own jurisdiction.”) (citations omitted). A threshold question in
determining whether we have jurisdiction is whether the district court had the
authority to transfer the case to us. The district court transferred the case to us
pursuant to 28 U.S.C. § 1631. Under this statute, entitled “Transfer to cure
want of jurisdiction,” when a civil action is filed in a court and “that court finds
that there is a want of jurisdiction,” the court “shall, if it is in the interest of
justice, transfer such action or appeal to any other such court in which the action
or appeal could have been brought at the time it was filed.” 28 U.S.C. § 1631
(emphasis added). Therefore, in order for the district court to have had the



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authority to transfer the case to us pursuant to the statute, the district court
must have lacked jurisdiction over the action.
      The question of whether the district court lacked jurisdiction over Adams’s
second-in-time federal habeas petition depends on whether Adams’s petition is
a “second or successive” petition within the meaning of 28 U.S.C. § 2244. If
Adams’s petition is successive, then the district court did not have jurisdiction
to consider the petition because Adams did not obtain our prior authorization
pursuant to 28 U.S.C. § 2244(b)(3)(A). See Burton v. Stewart, 549 U.S. 147, 152
(2007). Therefore, we examine Adams’s petition to determine whether it is
successive.
      AEDPA 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].”                Panetti 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 (2000), 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-based 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 “successive” when it only raises a Ford claim that
was previously dismissed as premature).
      Adams argues that his second-in-time habeas petition is not successive
because “the Supreme Court has consistently determined that a petition filed

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after [a] technical procedural barrier is removed is not ‘second or successive.’”
Adams argues that his case is similar to the Court’s decisions in Panetti, Slack,
and Martinez–Villareal because his two ineffective assistance of counsel claims
in his initial federal habeas petition were dismissed on purely “technical”
grounds—for procedural default. Adams asserts that Martinez has removed this
technical barrier to federal habeas review of his claims, and therefore we should
not treat his petition as “second or successive.”
      We reject Adams’s argument and conclude that his habeas petition is
clearly successive. We have stated 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) (citations
omitted); see 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).
      In   his     second-in-time   habeas     petition,   Adams      raises   two
claims—ineffective assistance of trial and appellate counsel for failing to ensure
the jury was properly instructed in the punishment phase of his trial—that are
identical to the two claims presented in his initial federal habeas petition, filed
with the district court in 2009. Thus, pursuant to In re Cain, because Adams
has raised claims that were already brought in a prior petition, we must
construe his second-in-time habeas petition as successive. 137 F.3d at 235; see
also Hernandez, 630 F.3d at 427; In re Flowers, 595 F.3d 204, 205 (5th Cir. 2009)
(holding that “[b]ecause the claims [petitioner] raises in his proposed § 2254
application were or could have been raised in his first § 2254 application,




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                           Nos. 12-70010, 12-40436, 12-70011

which . . . was dismissed as time-barred[,] . . . the instant application is
successive.”) (citations omitted).5
       Because we conclude that Adams’s petition is successive, the district court
did not have jurisdiction to consider the petition. Therefore, we conclude that,
to the extent that the petition is construed as an application for a successive
petition, the district court correctly transferred the case to us pursuant to 28
U.S.C. § 1631 and we have jurisdiction to consider that application. However,
in his April 25, 2012 motion, Adams disclaims seeking our authorization to file
a successive petition in the district court, correctly, as he cannot meet the
requirements of 28 U.S.C. § 2244(b). Because Adams brings the same two claims
in his successive habeas petition as he did in his initial federal habeas petition,
Adams’s petition is barred under 28 U.S.C. § 2244(b)(1) (“A claim presented in
a second or successive habeas corpus application under section 2254 that was
presented in a prior application shall be dismissed.”).6 Therefore, the federal
courts lack jurisdiction over this petition, and we dismiss Adams’s successive


       5
         Our conclusion that Adams’s petition is successive is consistent with the pre-AEDPA
“abuse of the writ” doctrine. See 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). In Bates v. Whitley,
19 F.3d 1066 (5th Cir. 1994), we stated that “Rule 9(b) of the Rules Governing § 2254
Proceedings precludes federal review of a state prisoner’s second federal habeas petition if the
petition ‘fails to allege new or different grounds for relief and the prior determination was on
the merits.’” Id. at 1067 (emphasis added). We reasoned that “[a] federal habeas court’s
rejection of a petitioner’s constitutional claim because of state procedural default and a failure
to show cause and prejudice must be regarded as a determination on the merits in examining
whether a subsequent petition is successive.” Id. (citation omitted). Thus, Adams’s second-in-
time petition constitutes an “abuse of the writ.”
       6
          Assuming without deciding that Adams may rely on 28 U.S.C. § 2244(b)(2) as
authority to file this successive habeas petition, we nevertheless conclude that he is not
entitled to authorization. Pursuant to 28 U.S.C. § 2244(b)(2)(A), if a claim was not presented
in a prior habeas corpus application, it “shall be dismissed unless . . . the applicant shows 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.” Martinez does not provide
a basis for authorization under § 2244(b)(2)(A), as the Court’s decision was an “equitable
ruling” that did not establish “a new rule of constitutional law.” 132 S. Ct. at 1319.

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                       Nos. 12-70010, 12-40436, 12-70011

habeas petition. As there is no basis for a stay, we deny his motion for a stay of
execution.
                              III. CONCLUSION
      For the foregoing reasons, we VACATE the district court’s grant of a stay
of execution; we DISMISS Adams’s successive federal habeas petition; we DENY
his motion to set a briefing schedule or, in the alternative, to remand his petition
to the district court; and we DENY his motion for a stay of execution. The
mandate shall issue forthwith.




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