     Case: 14-70002     Document: 00512507800   Page: 1   Date Filed: 01/22/2014




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


                                 No. 14-70002                         FILED
                                                                 January 22, 2014
                                                                  Lyle W. Cayce
                                                                       Clerk
EDGAR ARIAS TAMAYO,
                                           Petitioner - Appellant

v.

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

                                           Respondent - Appellee



                  Appeal from the United States District Court
                       for the Southern District of Texas


Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges.
PER CURIAM:
      Edgar Arias Tamayo (“Tamayo”) is scheduled to be executed by the State
of Texas on January 22, 2014. Among other proceedings filed in the last week,
Tamayo moved the district court that issued his original federal habeas
decision, see Tamayo v. Thaler, No. 4:03-cv-03809 (S.D. Tex. Mar. 25, 2011), for
relief under Rule 60(b). The district court denied relief, but granted a
certificate of appealability (“COA”) authorizing him to appeal the district
court’s denial of relief.
      Tamayo’s motion to proceed in forma pauperis on appeal is GRANTED.
We AFFIRM the district court denial of relief under Rule 60(b); his associated
request for stay of execution is DENIED.
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                            Factual and Procedural History
      Tamayo and Jesus Mendoza were arrested in the parking lot of a bar in
Harris County, Texas on January 31, 1994, for robbing a patron. After the men
were searched and handcuffed, Officer Guy Gaddis of the Houston Police
Department placed them in a patrol car, with Tamayo seated behind Officer
Gaddis. When Officer Gaddis stopped to make a phone call, Tamayo revealed
to Mendoza that he had a gun in his waistband. The evidence at trial showed
that Tamayo managed to remove the gun from his waistband despite the fact
that he was handcuffed. When Officer Gaddis returned to the vehicle and
drove away, Tamayo shot Officer Gaddis multiple times.             The patrol car
crashed into a residence, and Tamayo escaped through a broken window. The
police were called to the scene and captured Tamayo as he ran down the street
near the crash, still handcuffed. Officer Gaddis was taken to the hospital
immediately, but he was pronounced dead upon arrival.
      Tamayo gave two written statements admitting that he had the gun in
the police car, that he shot Gaddis, and that he knew Gaddis was a police
officer. The State presented evidence that Tamayo had purchased the gun
several days before the murder. According to Tamayo, approximately one week
before the trial, the Mexican consulate learned of his case.          At trial, the
evidence indicated that Tamayo, rather than Mendoza, was the shooter
(logically, it could be only one or the other, or both in concert, as Officer Gaddis
could not have shot himself in the back of the head three times). The jury
found Tamayo guilty of capital murder and subsequently sentenced him to
death. Tamayo appealed to the Texas Court of Criminal Appeals (“CCA”),
which affirmed his conviction. Tamayo v. State, No. AP-72,033 (Tex. Crim.
App. 1996).




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      In February 1998, Tamayo sought state habeas relief based on ineffective
assistance of counsel (“IAC”) for failing to investigate evidence of organic brain
damage. The CCA rejected Tamayo’s claim in June 2003. Ex parte Tamayo,
No. WR-55,690-01 (Tex. Crim. App. 2003) (not designated for publication).
      In September 2003, Tamayo filed his federal habeas application,
reasserting his IAC claim based on counsel’s failure to investigate the alleged
organic brain injury. Tamayo moved to stay the proceedings in 2005 to allow
him to return to state court to present additional claims, including two claims
under the International Court of Justice’s decision concerning the alleged
violation of his consular notification rights under the Vienna Convention on
Consular Relations (the “Vienna Convention”), Apr. 24, 1963, 21 U.S.T. 77,
T.I.A.S. No. 6820 and a claim that he was ineligible for execution under Atkins
v. Virginia, 536 U.S. 304 (2002). The CCA dismissed these successive habeas
petitions as an abuse of the writ. See Ex parte Tamayo, 2010 WL 2332395 (Tex.
Crim. App. 2010) (not designated for publication) (Atkins Claim); Ex parte
Tamayo, 2008 WL 2673775 (Tex. Crim. App. 2008) (not designated for
publication) (Vienna Convention Claim); Ex parte Tamayo, WR-55,690-02
(Tex. Crim. App. Sept. 10, 2003) (not designated for publication) (Vienna
Convention Claim).
      Tamayo amended his federal habeas petition, adding his Vienna
Convention and Atkins claims. In March of 2011, the federal district court
denied Tamayo federal habeas relief on his claims and determined that he was
not entitled to a COA. Tamayo, No. 4:03-cv-03809.
      Tamayo then sought a COA from this court, which we denied in
December of 2011. Tamayo v. Thaler, No. 11-70005 (5th Cir. Dec. 21, 2011).
In this opinion, we addressed Tamayo’s IAC claims. We concluded that his
claim of IAC predicated on a failure to investigate and present evidence of his


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childhood circumstances was procedurally barred as unexhausted. Id. at *8.
We concluded that jurists of reason would not debate the reasonableness of the
state court’s disposition of his IAC claim based upon the failure to investigate
and present mitigating evidence of organic brain damage. Id. at *9. In this
regard, we analyzed the standards of Strickland v. Washington, 466 U.S. 668,
687 (1984), which requires both ineffectiveness and prejudice in order for an
IAC claim to be successful. Tamayo, 11-70005, *9. We concluded that Tamayo
had not raised a debatable issue on the prejudice prong because of the “double-
edged sword” nature of the proffered evidence. Tamayo, 11-70005, *9-12. We
also addressed Tamayo’s claim of mental retardation under Atkins v. Virginia,
536 U.S. 304, 321 (2002). We noted the untimeliness of his claim under federal
law and further stated:
        The record indicates that Tamayo’s habeas counsel exercised due
        diligence after Atkins was decided and had Tamayo tested; however, the
        initial test showed that Tamayo was not mentally retarded. It was only
        after Tamayo was tested again after the limitations period had run that
        he was diagnosed as mentally retarded. The factual predicate for the
        claim—Tamayo’s alleged mental retardation—was available when
        Tamayo was tested initially; it was the person evaluating the factual
        predicate that changed.
Tamayo, 11-70005, *13. Finally, we denied his COA application as to a Vienna
Convention violation claim because “[t]he United States Supreme Court has
never held that the Vienna Convention creates a private right of action that is
enforceable by an individual.” Id. at *14. The Supreme Court denied Tamayo’s
petition for certiorari in November of 2012. Tamayo v. Thaler, 133 S. Ct. 608
(2012). On September 17, 2013, in response to the state’s motion, the 209th
Harris County District Court scheduled Tamayo to be executed on January 22,
2014.
        On December 13, 2013, Tamayo filed a written application for clemency
with the Texas Board of Pardons and Paroles (the “Board”).       On January 13,

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2014, Tamayo filed a § 1983 claim in federal district court asserting that the
Board’s procedures violate his due process rights. He further sought a TRO or
preliminary injunction preventing the Board from voting and the Governor
from acting on the Board’s recommendation pending the outcome of his
lawsuit. He further sought a stay of execution pending his discovery requests
in connection with his § 1983 claim. On January 21, 2014, the district court
denied his request for a temporary restraining order and for a preliminary
injunction. The Board declined to recommend clemency for Tamayo on January
21, 2014.
       On January 14, 2014, Tamayo filed a successive habeas petition in Texas
state court, alleging, among other things, that he did not receive a fair trial in
light of “newly discovered evidence” that the Harris County District Attorney’s
office coached Mendoza by “instruct[ing] him how he was to testify, and what
he should—and should not—say.”
       On January 16, 2014, Tamayo filed another successive habeas petition
in Texas state court, arguing that his sentence of death is “illegal and
unconstitutional” based on his alleged mental retardation. In support of this
claim, he relied on the newly-released decision of the Inter-American
Commission on Human Rights (“IACHR”). The IACHR’s decision concluded,
inter alia, that Tamayo presented evidence of mental disability that should
have been reviewed on the merits by the state courts 1 and that the state’s
violation of the Vienna Convention through its denial of his consular




       1Specifically, the IACHR’s decision stated: “[T]he [IACHR] concludes that the United
States violated Articles I and XXVI of the American Declaration to the detriment of Mr.
Tamayo by refusing to provide funds for an independent expert evaluation and by denying
any opportunity to present evidence regarding this mental and intellectual disability and be
heard on the merits of that evidence.” IACHR’s Decision at p. 37.


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notification rights prejudiced Tamayo. 2 In connection with this successive
habeas petition, Tamayo filed a request for a stay of execution in light of what
he believes are novel issues of law—including the amount of deference, if any,
that should be given the IACHR’s decision by Texas state courts.
       The CCA denied both of Tamayo’s subsequent writ application as abuses
of the writ, holding that he failed to satisfy the dictates of Article 11.071 § 5 of
the Texas Code of Criminal Procedure. Ex parte Tamayo, WR-55,690-05 & WR-
55,690-06, at *3, 2014 Tex. Crim. App. Unpub. LEXIS 59, 62 (Tex. Crim. App.
Jan. 21, 2013) (unpublished). The CCA further refused to exercise original
habeas jurisdiction with regard to his claim based on the IACHR decision. Id.
The CCA also denied both of Tamayo’s associated motions to stay his execution.
Id. at *4.
       On January 20, 2014, Tamayo filed the instant action seeking a Rule
60(b)(6) motion to set aside the district court’s prior ruling. The district court
denied the motion as not filed within a “reasonable time” as contemplated by
Rule 60(b). However, it granted a certificate of appealability to allow review
by this court.
                                        Discussion
       We first address whether the district court had jurisdiction over the Rule
60(b) motion. If an application is a “second or successive petition” the district
court cannot consider it without authorization from this court under 28 U.S.C.
§ 2244(b)(2). See 28 U.S.C § 2244(b)(3). A Rule 60(b) is considered “successive”
if it raises a new claim or attacks the merits of the district court’s disposition



       2 Specifically, the IACHR’s decision stated: “Given the comprehensive assistance
provided by the Mexican Government to its citizens in death penalty cases in the United
States, the IACHR believes that there is a reasonable probability that, had Mr. Tamayo
received consular assistance at the time of his arrest, this would have had a positive impact
in the development of his criminal case.” IACHR’s Decision at p. 31.

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of the case. Adams v. Thaler, 679 F.3d 312, 319 (5th Cir. 2012). A Rule 60(b)
directed to a procedural ruling that barred consideration of the merits, such as
a procedural default, is not considered a “successive” petition and is properly
brought as a Rule 60(b) motion. Id. (citing Gonzalez v. Crosby, 545 U.S. 524
(2005)).
      We conclude that Tamayo’s motion falls in the latter category and,
therefore, that the district court had jurisdiction to consider it.     Tamayo
challenges a prior ruling of the district court that found his Atkins claim
procedurally defaulted. Tamayo contends that this ruling is in error in light of
the subsequent decision in McQuiggin v. Perkins, 133 S. Ct. 1924 (2013). In
McQuiggin, the Court concluded that a properly supported claim of actual
innocence of the crime charged could excuse the failure to comply with the
statute of limitations of the Anti-Terrorism and Effective Death Penalty Act
(“AEDPA”) for a first-time habeas petition. Id. at 1928. Tamayo contends that
this ruling excuses the previously-found procedural default and untimeliness.
See Tamayo, No. 4:03-cv-03809, at *29-30; see also Tamayo, No. 11-70005, at
*12-13.
      We turn, then, to the merits of his Rule 60(b) application. As we have
repeatedly held, “the decision to grant or deny relief under Rule 60(b) lies
within the sound discretion of the district court and will be reversed only for
an abuse of that discretion.” Rocha v. Thaler, 619 F.3d 387, 400 (5th Cir. 2010)
(citation and quotation marks omitted). Even assuming McQuiggin’s analysis
based on claims of actual innocence of the crime charged applies equally to
claims based on actual innocence of the death penalty, a question we do not
decide here, we have held, following Supreme Court precedent, that a “change
in decisional law” does not constitute the “extraordinary circumstances”
necessary to support Rule 60(b) relief.    Adams, 679 F.3d at 319-20 (“[I]n


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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).”).
       Finally, we agree with the district court that Tamayo’s claim was not
brought within a “reasonable time.” See, e.g., In re Osborne, 379 F.3d 277, 283
(5th Cir. 2004). The Court’s opinion in McQuiggin was issued on May 28, 2013,
nearly 8 months ago. 3 Tamayo waited until January 20, 2014, two days before
his scheduled execution, to file this motion. The district court did not abuse its
discretion in concluding that this was not a “reasonable time” and in denying
the motion. 4
       We nonetheless issue this opinion as quickly as possible, to allow Tamayo
the ability to present his arguments for overruling or revising the above-
described precedents to the Supreme Court.
       AFFIRMED; IFP GRANTED; STAY DENIED.




       3  We note that the petition for certiorari was granted in McQuiggin on October 29,
2012, at a time when the petition for certiorari was pending in Tamayo’s federal habeas case.
See McQuiggin v. Perkins, 133 S. Ct. 527 (2012) (granting certiorari). Yet, the Supreme Court
did not hold Tamayo’s case to await the outcome in McQuiggin. Instead, it denied certiorari
two weeks later. See Tamayo v. Thaler, 133 S. Ct. 608 (2012)(denying certiorari on November
13, 2012).

       4  We agree with the district court that the IACHR decision last week was not a
prerequisite to the Rule 60(b) motion and, therefore, does not excuse the delay in filing this
motion.

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      PATRICK E. HIGGINBOTHAM, Circuit Judge, concurring:
      I concur but only in affirming the decision of the district court for the
reasons it gave. I would affirm the district court’s rejection of the Rule 60
submission as untimely. I would not reach the question of whether a claim of
exemption from the death penalty—actual innocence—with its override of
finality interests is only a change in decisional law that under Rule 60 is
outweighed by finality interests. Tamayo was forced onto a successive petition
track with its narrowed acceptance of his claim to be exempt from a death
sentence by rulings later found to be in error. To foreclose access here as a
first filed petition with its unchecked treatment of a claim of innocence is to
these eyes passing strange.    At the least we ought not do so when it is
unnecessary.




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