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

                                                                            FILED
                                                                         January 28, 2009

                                       No. 09-70004                   Charles R. Fulbruge III
                                                                              Clerk

VIRGIL EURISTI MARTINEZ

                                                  Petitioner-Appellant
v.

NATHANIEL QUARTERMAN, Director, Texas Department of Criminal
Justice, Correctional Institutions Division

                                                  Respondent-Appellee



                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 3:02-cv-718


Before HIGGINBOTHAM, DAVIS, and PRADO, Circuit Judges.
PER CURIAM:*
       Petitioner Virgil Euristi Martinez (“Petitioner”) appeals the district court’s
denial of his Motion to Stay Execution. He seeks a stay of his execution so that
he can develop the basis of a claim that he is incompetent to be executed.
Petitioner candidly admits that he is currently unable to make “a substantial
threshold showing of insanity” that would entitle him to the due process
protections of Panetti v. Quarterman, ___ U.S. ____, 127 S. Ct. 2842 (2007), and


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                 No. 09-70004

Ford v. Wainwright, 477 U.S. 399 (1986). He asserts instead that he has made
a “colorable showing” of incompetency to be executed and that due process thus
requires this court to stay his execution and appoint counsel to assist in
developing a habeas petition to bring a Panetti/Ford claim. Cf. In re Hearn, 376
F.3d 447 (5th Cir.), clarified by 389 F.3d 122 (5th Cir. 2004); Wood v.
Quarterman, 572 F. Supp. 2d 814 (W.D. Tex. 2008). Assuming that Ford and
Panetti apply to the present situation—and that there is a presumably-lower
threshold showing required to garner such “pre-Panetti” relief—the district court
correctly concluded that Petitioner’s evidence of incompetency was insufficient.
Volunteer counsel, in a brief span of time, was able to develop an extensive
history of mental health that still falls short of any threshold showing of
incompetency to be executed. We therefore AFFIRM the judgment of the district
court.
         AFFIRMED.




                                       2
