     Case: 09-70003      Document: 00512996621         Page: 1    Date Filed: 04/07/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 09-70003                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                             April 7, 2015
Consolidated with No. 14-70018
                                                                           Lyle W. Cayce
STEVEN ANTHONY BUTLER,
                                                                                Clerk


              Petitioner - Appellant

v.

WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

              Respondent - Appellee


                  Appeals from the United States District Court
                       for the Southern District of Texas
                            USDC No. 4:07-CV-2103


Before JOLLY, OWEN, and HAYNES, Circuit Judges.
PER CURIAM:*
       Having considered the parties’ briefs and oral arguments, Steven
Butler’s motions for certificates of appealability and associated responses and
briefing, and the state and district court’s orders on Butler’s habeas petitions
and Federal Rule of Civil Procedure 60(b) motion, we have determined as


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                            No. 09-70003 cons/w No. 14-70018

follows:
   (1) As urged by the State, we hereby treat Butler’s appellate brief as a
       request for a certificate of appealability (“COA”) from the district court’s
       denial of his Rule 60(b) motion, which sought relief from the district
       court’s previous denial of his Atkins 1 claim. See Butler v. Stephens, No.
       4:07-CV-2103, 2014 WL 1248037 (S.D. Tex. Mar. 25, 2014). We GRANT
       a COA on the district court’s denial of Butler’s Rule 60(b) motion. See 28
       U.S.C. § 2253(c). Jurists of reason “could conclude the issues presented
       are adequate to deserve encouragement to proceed further”; additionally,
       “any doubt as to whether a COA should issue in a death-penalty case
       must be resolved in favor of the petitioner.” Pippin v. Dretke, 434 F.3d
       782, 787 (5th Cir. 2005) (citation and internal quotation marks omitted). 2



       1   Atkins v. Virginia, 536 U.S. 304 (2002).
       2   In the district court, the parties briefed whether Butler’s Rule 60(b) motion should
be construed as a second or successive habeas petition under § 2244(b). Although not briefed
before this court, we address this jurisdictional issue sua sponte. See Bailey v. Cain, 609 F.3d
763, 765 (5th Cir. 2010). Butler filed his Rule 60(b) motion after the district court denied his
initial habeas petition, while that petition awaited review in this court. We conclude that
this second-in-time Rule 60(b) motion is not a “second or successive” habeas petition within
the meaning of § 2244(b). It merely sought reconsideration of the district court’s original
denial of Butler’s habeas petition based on new proceedings and orders issued by the state
habeas court and the Texas Court of Criminal Appeals (“TCCA”) after the TCCA expressly
ordered subsequent state proceedings based upon events that occurred after the district
court’s original decision. The TCCA ordered the state habeas court to reconsider Butler’s
petition in light of the recent censure of the expert who testified for the state during Butler’s
state habeas proceedings. See Leal Garcia v. Quarterman, 573 F.3d 214, 222–24 (5th Cir.
2009) (listing second-in-time habeas petitions attacking an allegedly “defective habeas
proceeding” among non-successive petitions, especially where “the purported defect did not
arise, or the claim did not ripen, until after the conclusion of the previous petition”); In re
Trotter, 544 F. App’x 392, 393 (5th Cir. 2013) (unpublished) (“An application is not successive
merely because it follows an earlier application. Rather, an application is successive when it
raises a claim that was ‘ripe’ at the time the applicant filed his prior application or when the
application otherwise constitutes an abuse of the writ.” (citing Leal Garcia, 573 F.3d at 220–
22)); cf. Whab v. United States, 408 F.3d 116, 118–19 (2d Cir. 2005) (holding that a second-
in-time petition was not a successive petition in part due to the pendency of appellate review
on the initial petition).
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                  No. 09-70003 cons/w No. 14-70018

(2) We GRANT a COA on Claim 2 of Butler’s Amended Petition for Writ of
  Habeas Corpus (“Federal Habeas Petition”), for ineffective assistance of
  trial counsel (“IATC”) in failing to investigate and raise Butler’s mental
  state regarding his competence to stand trial and as mitigation evidence
  during sentencing.      The district court rejected these claims as
  procedurally defaulted before Martinez v. Ryan, 132 S. Ct. 1309 (2012),
  was decided. Reasonable jurists could debate whether Butler may now
  show cause and prejudice for the procedural default of Claim 2 under
  Martinez. See id. at 1318–19; Trevino v. Thaler, 133 S. Ct. 1911, 1915
  (2013); see also Newbury v. Stephens, 756 F.3d 850, 871–72 (5th Cir.
  2014), cert. denied, 135 S. Ct. 1197 (Feb. 4, 2015); Escamilla v. Stephens,
  749 F.3d 380, 392 (5th Cir. 2014).          The parties should submit
  supplemental briefing addressing the effect of the “uncalled witness”
  rule on these claims. See, e.g., Day v. Quarterman, 566 F.3d 527, 538–
  39 (5th Cir. 2009); Woodfox v. Cain, 609 F.3d 774, 808 (5th Cir. 2010).

(3) We DENY a COA on Claim 3 of Butler’s Federal Habeas Petition, that
  his Fourteenth Amendment due process rights were violated because he
  was incompetent to stand trial. Jurists of reason would not debate that
  this claim has been procedurally defaulted. See Slack v. McDaniel, 529
  U.S. 473, 477–78 (2000).

(4) We GRANT a COA on Claim 4 of Butler’s Federal Habeas Petition, that
  the prosecution violated Brady v. Maryland, 373 U.S. 83 (1963), by
  withholding allegedly exculpatory or impeachment evidence related to
  several crimes of which Butler was accused during the punishment
  phase of his trial. Resolving doubts in favor of Butler, reasonable jurists
  could debate whether Butler procedurally defaulted his Brady claims
  and “whether the petition states a valid claim of the denial of a

                                   3
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                           No. 09-70003 cons/w No. 14-70018

       constitutional right.” Slack, 529 U.S. at 478; cf. Banks v. Dretke, 540
       U.S. 668, 695–96 (2004); Mathis v. Dretke, 124 F. App’x 865, 877 (5th Cir.
       2005) (unpublished).

       (5)    We DENY a COA on Claim 5 of Butler’s Federal Habeas Petition,
       for IATC in failing to challenge his confession as involuntary. Jurists of
       reason would not debate the district court’s resolution of this claim. See
       Slack, 529 U.S. at 484. Butler failed to show that the actions of law
       enforcement during his arrest and questioning amount to official
       coercion such that his confession was involuntary.                  See, e.g., United
       States v. Blake, 481 F. App’x 961, 962 (5th Cir. 2012) (unpublished) 3
       (“While a defendant’s mental condition ‘may be a significant factor in the
       voluntariness calculus, this fact does not justify a conclusion that a
       defendant’s mental condition, by itself and apart from its relation to
       official coercion, should ever dispose of the inquiry into constitutional
       voluntariness.’” (quoting Colorado v. Connelly, 479 U.S. 157, 163–67
       (1986)); see also Carter v. Johnson, 131 F.3d 452, 464 (5th Cir. 1997)
       (“[I]n the absence of any evidence of official coercion, [petitioner] has
       failed to establish that his confession was involuntary.”). Therefore,
       Butler has not made “a substantial showing of the denial of a
       constitutional right” as required for a COA. 28 U.S.C. § 2253(c)(2).

   (6) Finally, we GRANT a COA on Claim 7 of Butler’s Federal Habeas
       Petition, that the trial court failed to properly remedy the prosecution’s
       racially-discriminatory exclusion of a juror, in violation of Batson v.
       Kentucky, 476 U.S. 79 (1986). See generally Pippin, 434 F.3d at 787



       3 Although Blake is not “controlling precedent,” it “may be [cited as] persuasive
authority.” Ballard v. Burton, 444 F.3d 391, 401 n.7 (5th Cir. 2006) (citing 5TH CIR. R. 47.5.4).
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                           No. 09-70003 cons/w No. 14-70018

       (noting a COA may be granted where issues deserve encouragement to
       proceed and that doubts about whether to issue a COA to a death-penalty
       petitioner must be resolved in his favor).

       This case has been extensively briefed and stayed numerous times in
light of the events transpiring after the district court’s opinion issued.
Nevertheless, in order to insure that the parties have had a full opportunity to
brief all matters on which a COA is granted, we will hereby grant a limited,
abbreviated opportunity for briefing on these matters. 4                 However, given the
number of years it has been since Butler was first sentenced, we expressly
direct the clerk of court to submit any requests for an extension of time to this
panel for ruling, and we advise the parties that we will not grant any such
extension without a showing of good cause and exceptional circumstances.
       Any additional briefing Butler wishes to submit must be filed within
thirty (30) days from the date of this order. The state must respond with any
additional briefing it wishes to submit by thirty (30) days from the date on
which Butler’s brief is filed. No reply is permitted.
       COA GRANTED IN PART; 5 COA DENIED IN PART.




       4   Except as specifically provided herein, to the extent counsel does not find it
necessary to submit additional briefing because the relevant arguments have been fully made
in previous briefs, counsel may refer to or incorporate by reference any prior briefs filed in
this court without further briefing.
       5  The district court granted a COA on its original Atkins ruling, which addressed
Claim 1 of Butler’s Federal Habeas Petition. See Butler v. Quarterman, 576 F. Supp. 2d 805,
832 (S.D. Tex. 2008). The State contends that this COA grant is unclear. We construe the
district court’s original COA grant as encompassing the entire Atkins issue decided in its
2008 Memorandum Opinion and Order and in its Final Judgment. See, e.g., id. (“The court
will grant a certificate of appealability as to Butler’s First Claim for Relief.”). Alternatively,
we grant a COA on Claim 1 of Butler’s Federal Habeas Petition, that the Eighth Amendment
prohibits Butler’s execution because he is intellectually disabled under Atkins. See id. at 810.
                                                5
