     Case: 15-20022      Document: 00512941848         Page: 1    Date Filed: 02/20/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 15-20022                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
In re: GARCIA GLENN WHITE,                                               February 20, 2015
                                                                           Lyle W. Cayce
              Movant                                                            Clerk




                       On Motion for Authorization to File
                      Successive Petition for Writ of Habeas
                    Corpus in the United States District Court
                        for the Southern District of Texas


Before KING, CLEMENT, and HIGGINSON, Circuit Judges.
EDITH BROWN CLEMENT, Circuit Judge:*
       Garcia Glenn White (“White”), a prisoner in the custody of the Texas
Department of Criminal Justice, moves this court for authorization to file a
successive petition for a writ of habeas corpus pursuant to 28 U.S.C. §
2244(b)(2)(A) and for a stay of execution. For the reasons explained below,
White’s motion for authorization is DENIED and his motion for a stay of
execution is DISMISSED.
                              FACTS AND PROCEEDINGS
       In December 1989 Bonita Edwards was murdered in her home alongside
her two sixteen-year-old daughters, Bernette and Annette Edwards



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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(respectively, “Bonita,” “Bernette,” and “Annette”). The murder remained
unsolved for several years. Police arrested White on July 21, 1995 in connection
with an unrelated murder that occurred on July 13, 1995. Shortly after White’s
arrest, investigators received a tip from one of White’s acquaintances that
White had been involved in the Edwards murders.
      Police questioned White about the Edwards murders for the first time on
July 22, 1995. White admitted that he was present when the murders occurred,
but he stated that a man named Terrance Moore had actually killed the
victims. After the July 22 interview, police discovered that Moore had been
killed several months before the Edwards murders occurred. Police decided to
question White about the Edwards murders a second time on July 28, 1995. At
the beginning of the July 28 interview, a police officer read White his Miranda
rights and asked if he understood them. White responded: “[T]hat’s the
statement I was telling you about right there. I have the right to a, one . . . I
definitely have the right to have a lawyer present.” The officer said, “That’s
right,” and again asked whether White understood his rights. White stated
that he did. The officer then asked White if he agreed to waive his Miranda
rights and talk about the Edwards murders. White did not respond, and the
officer again asked whether he was willing to waive his Miranda rights. White
stated that he agreed to waive his rights. White then admitted that he had
made up the details about Moore and confessed to killing Bonita, Bernette, and
Annette.
      White was convicted and sentenced to death for the murders of Bernette
and Annette in July 1996. 1 The Texas Court of Criminal Appeals (“TCCA”)
affirmed White’s conviction and sentence on direct review on June 17, 1998.
See White v. State, No. 72,580 (Tex. Crim. App. June 17, 1998).


      1   White was never indicted for Bonita’s murder.
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                                 No. 15-20022
      White has filed several petitions for post-conviction relief in state and
federal court since his conviction. In state court, White filed his initial
application for a writ of habeas corpus in 2000. The trial court entered findings
of fact and conclusions of law recommending that White be denied relief, and
the TCCA adopted the trial court’s findings and conclusions on February 21,
2001. See Ex parte White, No. WR-48,152-01 (Tex. Crim. App. Feb. 21, 2001).
White filed a second state habeas application, which the TCCA denied as an
abuse of the writ on April 24, 2002. See Ex parte White, No. WR-48,152-02 (Tex.
Crim. App. Apr. 24, 2002). White filed a third and fourth state habeas
application, both of which the TCCA denied as an abuse of the writ on May 6,
2009. See Ex parte White, Nos. WR-48,152-03, WR-48,152-04, 2009 WL
1272551 (Tex. Crim. App. May 6, 2009) (per curiam). White filed a fifth state
habeas application and a motion for stay of execution, both of which the TCCA
denied on January 15, 2015. See Ex parte White, No. WR-48,152-06 (Tex. Crim.
App. Jan. 15, 2015) (mem.). At the same time that White filed the fifth
application and motion for stay of execution, White filed a separate motion for
leave to file an original application for a writ of prohibition, for a temporary
stay of execution, and for appointment of new state habeas counsel. The TCCA
denied these motions on January 15, 2015. See Ex parte White, No. WR-48,152-
05 (Tex. Crim. App. Jan 15, 2015) (mem.). White filed a second motion for leave
to file an application for a writ of prohibition, which the TCCA denied on
January 21, 2015. See Ex parte White, No. WR-48,152-07 (Tex. Crim. App. Jan.
21, 2015) (mem.). White filed a sixth state habeas application on January 20,
2015. See Subsequent Writ of Habeas Corpus, Ex parte White, No. WR-48,152-
08 (Tex. Crim. App. docketed Jan. 22, 2015). In response to White’s January
20 application, the TCCA stayed White’s execution “pending further order” of
that court. See Ex parte White, No. WR-48,152-08, 2015 WL 375733 (Tex. Crim.


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App. Jan. 27, 2015) (per curiam). White’s sixth state habeas application
remains pending before the TCCA. 2
       In federal court, White filed a habeas petition on May 3, 2002. In 2003
the district court stayed White’s federal habeas proceeding so he could pursue
additional remedies in state court related to the DNA evidence used at his trial.
The district court reopened the proceeding in 2009. The district court denied
White’s habeas petition and his request for a certificate of appealability
(“COA”) on September 30, 2011. See White v. Thaler, No. H-02-1805, 2011 WL
4625361 (S.D. Tex. Sept. 30, 2011). This court denied White’s request for a COA
on April 1, 2013. See White v. Thaler, 522 F. App’x 226 (5th Cir. 2013). The
United States Supreme Court denied White’s petition for a writ of certiorari on
January 13, 2014. See White v. Stephens, 134 S. Ct. 907 (2014) (mem.).
       White filed a request for authorization to file a successive application for
a writ of habeas corpus pursuant to 28 U.S.C. § 2244(b)(2)(A) and for a stay of
execution in this court on January 15, 2015. We ordered White to refile his
motion for authorization by January 20, 2015 because his initial motion failed
to comply with the court’s filing requirements. 3 White filed a second document


       2 Although the TCCA has yet to rule on the pending state habeas application—which
contains the same arguments raised here—we are statutorily required to “grant or deny the
authorization to file a second or successive application not later than 30 days after the filing
of the motion.” 28 U.S.C. § 2244(b)(3)(D). In any event, we need not consider at this stage
whether White’s claims have been exhausted. See Hatch v. Oklahoma, 92 F.3d 1012, 1016
(10th Cir. 1996) (per curiam) (“Exhaustion is not, however, a precondition to our
consideration of this Application for Order Authorizing a Successive Petition for Habeas
Corpus Relief. Were we to grant this application, the district court would then have before it
the merits of Hatch’s habeas petition, and in that context the district court would need to
decide whether the claim was exhausted or whether waiver of the exhaustion requirement is
warranted.”), overruled on other grounds by Daniels v. United States, 254 F.3d 1180 (10th
Cir. 2001).
       3 As explained in the Fifth Circuit’s practitioner’s guide, parties filing motions for

authorization to file a second or successive habeas corpus petition must attach, inter alia, a
copy of the proposed § 2254 petition the party seeks to file in the district court; copies of all
previous § 2254 petitions challenging the judgment or sentence received; and all court
opinions and orders disposing of the claims advanced in previous § 2254 petitions. See
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                                        No. 15-20022
on January 20, but he still has not filed several required documents, such as a
copy of the § 2254 petition that he filed in federal district court in 2002.
Because we have been able to independently obtain the relevant documents in
this case, we exercise our discretion and consider White’s motion as it was
submitted.
                                         DISCUSSION
                                                I.
       “Our duties with regard to a second or successive petition are set forth
in 28 U.S.C. § 2244(b) . . . .” In re Coleman, 768 F.3d 367, 373 (5th Cir. 2014)
(per curiam). That section provides, in relevant part, that:
       (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.
       (2) A claim presented in a second or subsequent habeas corpus
       application under section 2254 that was not presented in a prior
       application shall be dismissed unless—
       (A) 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 . . . .
28 U.S.C. § 2244(b)(1)-(2)(A). White has the burden to make a “prima facie
showing that [his] application satisfies the requirements” of subsection
§ 2244(b). 28 U.S.C. § 2244(b)(3)(C).
       White provides evidence that he has “limited intellectual capacity.” 4 In
light of his limited intellectual capacity, White argues the State violated his



Practitioner’s Guide to the U.S. Court of Appeals for the Fifth Circuit 115-17 (January 2015),
http://www.ca5.uscourts.gov/docs/default-source/forms-and-documents---clerks-office/documents/
practitionersguide.pdf.
        4 A psychologist who evaluated White determined that he functions “within the

[b]orderline range of intelligence,” and that “borderline intellectual functioning [is] just above
mild mental retardation.” The psychologist stated that individuals with White’s intelligence
“do not qualify for the [mental retardation] diagnosis.” We construe White’s allegation that
he has limited intellectual capacity as an assertion that he has borderline intellectual
functioning as described by the psychologist.
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                                       No. 15-20022
Sixth and Fourteenth Amendment rights when it failed to generously construe
his July 28, 1995 statements as an invocation of his constitutional right to
counsel. Because we do not have access to all of the filings White submitted in
relation to his state habeas petitions, we assume without deciding that his
claim is not procedurally barred. Because it will not change the outcome of this
case, we assume without deciding that White has never presented this claim
in a prior federal habeas petition. 5
      Before we can consider the merits of White’s claim, White must show
that the claim satisfies one of the two requirements specified in § 2244(b)(2).
White argues that his 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). He cites Atkins v. Virginia,
536 U.S. 304 (2002), Roper v. Simmons, 543 U.S. 551 (2005), and Hall v.
Florida, 134 S. Ct. 1986 (2014) as cases containing a relevant new rule of
constitutional law. These opinions hold, respectively, that it is a violation of
the Eighth Amendment’s “cruel and unusual punishment” clause to (1) execute
an intellectually disabled defendant, Atkins, 536 U.S. at 321; (2) execute a
person who was under eighteen years of age at the time he committed the
capital crime, Roper, 543 U.S. at 574-75; or (3) create an evidentiary rule
foreclosing exploration of a defendant’s intellectual disability if the defendant
is deemed to have an IQ above 70, because doing so creates an unacceptable
risk that persons with an intellectual disability will be executed, Hall, 134 S.
Ct. at 1990, 2001. White does not raise an Eighth Amendment claim; and he
does not contend that he is intellectually disabled within the meaning of Atkins
and Hall, or that he was under the age of eighteen at the time of the Edwards
murders. Atkins, Roper, and Hall are not relevant to White’s claim that the


      5   The State argues that White presented the same claim in his prior petition.
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                                 No. 15-20022
State violated his Sixth and Fourteenth Amendment rights, and they do not
create a new rule of constitutional law applicable to his Sixth and Fourteenth
Amendment claims.
        White fails to cite any new rule of constitutional law that satisfies
§ 2244(b)(2)(A). Accordingly, we hold that he has failed to make a prima facie
showing that his application satisfies the requirements of § 2244(b).
                                      II.
        White also moves for a stay of execution. However, after White moved
for a stay in this court, the TCCA stayed White’s execution pending further
order of that court. Because White’s execution date has come and passed, and
because no new execution date has been set, there is no scheduled execution to
stay. Accordingly, White’s motion for a stay of execution must be dismissed as
moot.
                                 CONCLUSION
        For the foregoing reasons, White’s motion for authorization to file a
successive petition for a writ of habeas corpus pursuant to 28 U.S.C. §
2244(b)(2)(A) is DENIED, and his motion for a stay of execution is
DISMISSED.




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