                                                      United States Court of Appeals
                                                               Fifth Circuit
                                                            F I L E D
              IN THE UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT                 October 6, 2005

                                                        Charles R. Fulbruge III
                                                                Clerk
                            No. 05-70043


RONALD RAY HOWARD

                      Petitioner - Appellant

v.

DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION

                      Respondent - Appellee



                 On Motion for a Stay of Execution
           Appeal from the United States District Court
          for the Southern District of Texas, Victoria
                            No. V-05-05


Before KING, Chief Judge, and JOLLY and PRADO, Circuit Judges.

KING, Chief Judge:*

     Petitioner-Appellant Ronald Ray Howard has appealed the

district court’s order denying his motion for a stay of

execution, and he has asked us for a stay of execution.      For the

following reasons, we DENY Howard’s motion for a stay of

execution.




     *
         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that this opinion should not be published and is not precedent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.

                                 -1-
              I.   FACTUAL AND PROCEDURAL BACKGROUND

     In 1993, Howard was found guilty of capital murder in Texas

state court and sentenced to death.     On direct appeal, the Texas

Court of Criminal Appeals overturned his sentence, finding that

the trial court erroneously dismissed a prospective juror over

her ability to answer Texas’s special issues.     Howard v. State,

941 S.W.2d 102, 127-29 (Tex. Crim. App. 1996).     After a second

punishment phase, a new jury answered Texas’s special issues in a

manner again requiring the imposition of a death sentence.

Again, the trial court sentenced Howard to death.     This time, the

Texas Court of Criminal Appeals affirmed the judgment.      Howard v.

State, No. 71,739 (Tex. Crim. App. Dec. 19, 2001) (unpublished).

The United States Supreme Court later denied Howard’s petition

for certiorari.    Howard v. Texas, 535 U.S. 1065 (2002).

     On May 5, 2003, after exhausting his state court remedies,1

Howard filed a federal habeas petition pursuant to 28 U.S.C.

§ 2254 in the United States District Court for the Southern

District of Texas, alleging that his trial counsel provided

ineffective assistance of counsel.     On March 19, 2004, the

district court denied Howard’s habeas petition and denied a


     1
        While his second direct appeal was pending, Howard filed
a state application for habeas relief. The state habeas court
entered findings of fact and conclusions of law recommending the
denial of Howard’s state habeas application. The Texas Court of
Criminal Appeals subsequently denied Howard’s application. Ex
parte Howard, No. 48,825-01 (Tex. Crim. App. Feb. 6, 2002)
(unpublished).

                                 -2-
certificate of appealability (“COA”) on all of his claims.

Howard v. Dretke, No. V-03-48 (S.D. Tex. Mar. 19, 2004).     On

appeal, Howard requested that this court grant a COA only on the

claim that his attorney provided ineffective assistance of

counsel by not objecting during voir dire when the prosecutor

informed potential jurors that a previous jury had sentenced him

to death.   On March 21, 2005, this court denied Howard’s COA

application, finding that he had failed to make a substantial

showing of the denial of a constitutional right.   See Howard v.

Dretke, 125 Fed. Appx. 560, 561, 563, 566 (5th Cir. Mar. 21,

2005) (noting that a petitioner makes a substantial showing of

the denial of a constitutional right by demonstrating that

“‘reasonable jurists would find the district court’s assessment

of the constitutional claims debatable or wrong’” and concluding

that “reasonable jurists could not debate the district court’s

conclusion that the state court did not unreasonably apply

clearly established federal law when it found that Howard’s trial

counsel’s performance was not deficient”) (quoting Miller-El v.

Cockrell, 537 U.S. 322, 338 (2003)).   Following our decision

denying the COA, the mandate issued on March 21, 2005.   The State

of Texas scheduled Howard’s execution for October 6, 2005, at

6:00 p.m. Central Daylight Time.

     On October 4, 2005, Howard filed a motion in the United

States District Court for the Southern District of Texas for



                                -3-
appointment of counsel pursuant to 21 U.S.C. § 848(q)(4)(B) and a

stay of execution under 28 U.S.C. § 2251.         The district court

granted Howard’s motion for appointment of counsel but denied

Howard’s motion for a stay of execution.         Howard v. Dretke, No.

V-05-05 (S.D. Tex. Oct. 4, 2005).         In denying the stay, the

district court determined that: (1) “Howard . . . fail[ed] to

show that this Court has authority to stay his impending

execution” because “[n]o federal habeas petition is pending

before this Court”; and (2) “Howard fail[ed] to show a reasonable

likelihood that he [would] prevail on his claims in the Supreme

Court . . . . [and made] no persuasive showing that the Supreme

Court would find that a COA should issue or even grant an out-of-

time writ of certiorari.”     Id.    On October 5, 2005, Howard filed

this timely appeal challenging the district court’s decision to

deny the stay of execution.       He subsequently filed a motion with

this court asking for a stay of execution.

                            II.    DISCUSSION

A.   Standard of Review

     This court reviews a district court’s decision to grant or

deny a stay of execution for abuse of discretion.         See Brewer v.

Johnson, 139 F.3d 491, 493 (5th Cir. 1998).         Because a capital

defendant’s request for a stay is a request for the district

court to enjoin the defendant’s execution, this court has

“jurisdiction to review any decision by the district court to


                                    -4-
grant, continue, modify, refuse or dissolve an injunction.”

Mines v. Dretke, 118 Fed. Appx. 806, 812, n.27 (5th Cir. Dec. 16,

2004) (noting that a COA is not required to review a district

court’s grant or denial of a motion for a stay of execution).

     Alternatively, this court, if it has jurisdiction, can issue

a stay of execution if we determine that “there is a reasonable

probability that 4 members of the Supreme Court would consider

the underlying issues sufficiently meritorious for the grant of

certiorari and . . . there is a substantial possibility of

reversal of [our] decision . . . .”   5TH CIR. R. 8.9 (“Stays to

permit the filing and consideration of a petition for writ of

certiorari ordinarily will not be granted.”).     See also Maggio v.

Williams, 464 U.S. 46, 48 (1983).

B.   Analysis

     Howard’s brief on appeal does not clearly state whether he

is (1) challenging the district court’s decision to deny the

stay, or (2) asking this court to grant a stay of execution.

Rather, Howard’s brief generally states that he

     appeals to this Court, pursuant to McFarland v. Scott,
     512 U.S. 849 (1994), In re Hearn, 389 F.3d 122 (5th Cir.
     2004), and Rule 8.9 of the Internal Operating Procedures
     of this Court, seeking a stay of his imminent execution,
     so that newly-appointed counsel has time to file a
     petition for writ of certiorari, asking the Supreme Court
     to review the judgment of this Court.

Accordingly, we will address (1) whether the district court

abused its discretion in denying the stay of execution, and



                               -5-
(2) whether this court can independently issue a stay of

execution even though our mandate has issued.

     1.   District Court’s Denial of the Stay of Execution

     Underlying the district court’s decision to deny the stay

are two independent conclusions: (1) the district court lacked

jurisdiction, and (2) Howard made no showing that he would likely

prevail on the merits of his claims in the Supreme Court.     First,

after examining both McFarland v. Scott and 28 U.S.C. § 2251, the

district court concluded that it lacked the authority to stay the

execution.   Specifically, the district court found that no

federal habeas petition was pending before it, and thus under

§ 2251 of the Antiterrorism and Effective Death Penalty Act

(AEDPA), it had no authority to stay Howard’s execution.2     See 28

U.S.C. § 2251 (2000) (“A justice or judge of the United States

before whom a habeas corpus proceeding is pending, may, before

final judgment or after final judgment of discharge, or pending

appeal, stay any proceeding against the person detained in any

State court . . . .”) (emphasis added).

     In McFarland v. Scott, the Supreme Court interpreted § 2251,

which instructs when a federal judge may grant a stay of

execution for a prisoner held by the state, in conjunction with

§ 2254 and § 2255 of the AEDPA to decide whether a district court

     2
        Howard’s claim is governed by the AEDPA because he filed
his § 2254 petition on May 5, 2003, after AEDPA’s April 24, 1996
effective date. See Fisher v. Johnson, 174 F.3d 710, 711 (5th
Cir. 1999) (citing Lindh v. Murphy, 521 U.S. 320, 326 (1997)).

                                -6-
appointing counsel pursuant to § 848(q)(4)(B) had jurisdiction to

stay an execution.    McFarland v. Scott, 512 U.S. 849, 857-58

(1994).   The Court concluded that “a district court has

jurisdiction to enter a stay of execution where necessary to give

effect to that statutory right [found in § 848(q)(4)(B)].”       Id.

at 859.   Despite McFarland’s seemingly broad pronouncement of

jurisdiction, we must read the Court’s decision in context and in

light of our prior decisions.   The Court’s decision that the

district court would have jurisdiction to stay an execution upon

the filing of a motion for appointment of counsel was directly

related to the fact that the petitioner’s request for counsel

initiated a “habeas corpus proceeding” before the district court

under § 2251.    See McFarland, 512 U.S. at 857-58 (noting that the

petitioner argued that “his request for counsel in a ‘post

conviction proceeding’ under § 848(q)(4)(B) initiated a ‘habeas

corpus proceeding’ within the meaning of § 2251” before the

district court and ultimately agreeing with the petitioner’s

position).   In other words, in McFarland, the filing of the

motion for appointment of counsel under § 848(q)(4)(B) actually

initiated habeas corpus proceedings for § 2251 purposes, thus

giving the district court the jurisdiction, under § 2251, to stay

the execution.   See id. at 858 (concluding that “[s]ection

848(q)(4)(B) expressly applies to any post conviction proceeding

under section 2254 or 2255--the precise habeas corpus

proceeding[s] that § 2251 involves” and reading these statutes

                                 -7-
together to conclude that the motion for appointed counsel under

§ 848(q)(4)(B) starts the habeas corpus proceeding referred to in

§ 2251 so that the district court has jurisdiction to stay the

execution) (alteration in original) (internal quotations

omitted).   In contrast to the petitioner in McFarland, here, as

the district court recognized, Howard’s motion was not directed

at a pending or proposed habeas proceeding before the district

court.   Instead, Howard filed the § 848(q)(4)(B) motion with the

intent to petition for an original application for habeas relief

in the Supreme Court or an out-of-time petition to appeal this

court’s denial of the COA.   Thus, unlike the district court at

issue in McFarland, there was no pending habeas proceeding before

the district court--nor contemplation of one--because the

§ 848(q)(4)(B) motion is not initiating a habeas corpus

proceeding.

     The district court’s conclusion that it lacked jurisdiction

is supported not only by a close reading of McFarland but also by

our precedent.   In Williams v. Cain, we held that when the habeas

petition has been ruled on, the appellate mandate has issued, and

the case is no longer before the court, “the only reasonable

analysis is that the habeas petition is no longer pending before

the district court, and the court therefore lacks jurisdiction to

enter a stay under the clear terms of the statute.”   Williams v.

Cain, 143 F.3d 949, 950 (5th Cir. 1998) (concluding that when a

petitioner seeks a stay of execution pending the disposition of a

                                -8-
writ of certiorari, “he should seek that stay in the Supreme

Court itself”).   See also Teague v. Johnson, 151 F.3d 291, 291

(5th Cir. 1998) (reaching the same conclusion).   Accordingly, we

do not think the district court erred (or abused its discretion)

when it concluded as a matter of law that it lacked jurisdiction.

      The district court’s second conclusion--that Howard did not

demonstrate that he was reasonably likely to prevail on his

claims in the Supreme Court--is also not an abuse of discretion.

The district court determined that, under the factors a court

must consider in granting a stay of execution,3 “Howard’s claims

did not meet the threshold standard for a COA by showing the

substantial denial of a constitutional right.”    Howard, No. V-05-

05.   Both the district court and this court concluded that

Howard’s claims failed to show the substantial denial of a

constitutional right, as required under the AEDPA to grant a COA.

See 28 U.S.C. § 2253(c)(2); see also Miller-El, 537 U.S. at 327

(“A petitioner satisfies this standard by demonstrating that

jurists of reason could disagree with the district court’s


      3
        “In deciding whether to issue a stay of execution, we are
required to consider four factors:
     (1) whether the movant has made a showing of likelihood
     of success on the merits, (2) whether the movant has
     made a showing of irreparable injury if the stay is not
     granted, (3) whether the granting of the stay would
     substantially harm the other parties, and (4) whether
     the granting of the stay would serve the public
     interest.”
Buxton v. Collins, 925 F.2d 816, 819 (5th Cir. 1991), cert.
denied, 498 U.S. 1128 (1991).

                                -9-
resolution of his constitutional claims or that jurists could

conclude the issues presented are adequate to deserve

encouragement to proceed further.”).   Because we agree with the

district court that Howard alleges no new constitutional

violation from his previous application and makes no persuasive

showing that the Supreme Court would grant relief on the merits,

we conclude that the district court did not abuse its discretion.

See Gonzales v. Crosby, __ U.S. __, 125 S. Ct. 2641, 2655 n.7

(2005) (Stevens, J., dissenting) (“A petition for certiorari

seeking review of a denial of a COA has an objectively low chance

of being granted.   Such a decision is not thought to present a

good vehicle for resolving legal issues, and error-correction is

a disfavored basis for granting review . . . .”).

     2.   Staying the Execution as an Original Matter

     Either alternatively or in addition to his request that we

reverse the district court’s decision to deny the stay, Howard

asks this court to stay the execution.   Rule 8.9 of this

circuit’s internal operating procedures delineates the standards

we use in deciding to stay an execution.   Rule 8.9, however, is

not a grant of jurisdiction.   Rather, if this court has

jurisdiction, Rule 8.9 sets forth when we will consider staying

an execution to permit the filing and consideration of a petition

for writ of certiorari.   See 5TH CIR. R. 8.9 (allowing the court

to issue a stay of execution when a reasonable probability exists



                               -10-
that four members of the Supreme Court would find the underlying

issue sufficiently meritorious for the grant of certiorari and a

substantial possibility of reversal of our decision exists).

       Here, our mandate issued on March 21, 2005--over six months

ago.    Thus, while we do have jurisdiction to review the district

court’s decision to deny the stay, see 28 U.S.C. § 1292(a)(1), we

do not have jurisdiction to independently stay Howard’s

execution.    Our decision in Williams v. Cain echoes this

conclusion.    In Williams, we determined that “the McFarland rule

. . . has nothing to say about the jurisdiction of [the] court to

enter a stay pending disposition of certiorari when the habeas

petition has already been ruled on, the appellate mandate has

issued, and the case is no longer before the court in any

fashion.”    Williams, 143 F.3d at 950.   See also Teague, 151 F.3d

at 291 (“[O]nce the appellate mandate issues, a habeas petition

is no longer pending before the court of appeals, and we have no

jurisdiction to stay proceedings under § 2251.”).    Accordingly,

because our mandate issued over six months ago and Howard’s case

is no longer pending before this court, we therefore lack the

jurisdiction to enter a stay under the clear terms of the AEDPA.

See id. (noting that where the mandate has issued and the

petitioner is seeking stay of his execution pending the

disposition of a writ of certiorari in the Supreme Court, “the

court therefore lacks jurisdiction to enter a stay”); see also 28

U.S.C. § 2251.

                                -11-
C.   Statutory Right to Appointed Counsel

     There is at least a question whether Howard’s statutory

right to have appointed counsel represent him throughout every

subsequent stage of available habeas corpus proceedings,

including an application for a writ of certiorari, may have been

violated.   Under 21 U.S.C. §§ 848(q)(4)(B),

     [i]n any post conviction proceeding under section 2254 or
     2255 of title 28 seeking to vacate or set aside a death
     sentence, any defendant who is or becomes financially
     unable to obtain adequate representation . . . shall be
     entitled to the appointment of [counsel] . . . .

The statute further provides:

     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 . . . applications for writ of
     certiorari to the Supreme Court of the United States, and
     all available post-conviction process . . . .

21 U.S.C. § 848(q)(8) (2000).   According to Howard’s affidavit,

his most recent appointed counsel, Steve Baxley, failed to inform

Howard that (1) this court had denied Howard’s COA, (2) he no

longer represented Howard, and (3) he did not intend to file a

petition for writ of certiorari with the Supreme Court.

     Howard has had a string of counsel represent him throughout

his federal habeas corpus proceedings.   Keith Weiser represented

Howard on his initial proceedings before the district court.

Howard v. Dretke, No. V-02-01 (S.D. Tex. Jan. 17, 2002).

However, the district court granted Weiser’s motion to withdraw

from representation after the district court’s proceedings.
                                -12-
Howard v. Dretke, No. V-03-48 (S.D. Tex. Apr. 14, 2004).      The

district court then appointed Baxley “to represent Howard

throughout the remainder of his federal proceedings.”    Id.     In

September 2005, William Zapalac, counsel to the clerk’s office of

United States Court of Appeals for the Fifth Circuit, e-mailed

Baxley, “inquiring whether [Baxley] intend[ed] to file anything

in this court on behalf of Mr. Howard prior to his scheduled

execution.”   E-mail from William Zapalac, Counsel to the U.S.

Court of Appeals for the Fifth Circuit Clerk’s Office, to Steve

Baxley (Sept. 21, 2005, 11:56:00 CDT).    Baxley’s complete

response follows: “My understanding is that I no longer represent

Mr. Howard and that I was only appointed for the limited purpose

of filing an appeal regarding the denial of the certificate of

appealability.”   Id.   Judging by his response to this court,

Baxley may not have understood that he had any obligation beyond

filing an appeal regarding the district court’s denial of a COA.

That said, we do not believe that there is any reasonable

probability that, had Baxley filed a petition for a writ of

certiorari, the writ would have been granted or a substantial

possibility that our decision to deny a COA would have been

reversed.



                          III.   CONCLUSION

     For the foregoing reasons, we DENY Howard’s motion for a stay

of execution.
                                 -13-
