      Case: 14-11024          Document: 00512770560              Page: 1      Date Filed: 09/16/2014




                  REVISED SEPTEMBER 16, 2014
           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT      United States Court of Appeals
                                                        Fifth Circuit

                                                                                                    FILED
                                                                                            September 16, 2014
                                            No. 14-11024
                                                                                                Lyle W. Cayce
                                                                                                     Clerk
In re: LISA ANN COLEMAN,

                                                 Movant

------------------------------------------------------------------------------------------------------------

CONSOLIDATED WITH 14-70029

LISA ANN COLEMAN,

                                                 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 Northern District of Texas


Before HIGGINBOTHAM, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:
        Lisa Ann Coleman was convicted of capital murder and sentenced to
death for the kidnapping and death of Davontae Williams. She is scheduled to
be executed on September 17, 2014. On September 11, 2014, Coleman filed a
motion under Federal Rule of Civil Procedure (“Rule”) 60(b) in the district court
    Case: 14-11024         Document: 00512770560        Page: 2       Date Filed: 09/16/2014



                             No. 14-11024 c/w No. 14-70029
seeking relief from the district court’s judgment denying her petition for
federal habeas relief. On September 12, 2014, the district court construed the
Rule 60(b) motion as an application for a second or successive habeas petition,
and transferred the case to this court. Coleman appeals the holding that the
motion was a successive writ and applies for a Certificate of Appealability on
that issue. She also moves for a stay of execution.
      We AFFIRM the district court’s holding that the motion was a successive
habeas petition, DENY the application for a second or successive habeas
petition, DENY the application for a Certificate of Appealability, and DENY
the motion for a stay of execution.
                                                  I.
      A detailed factual and procedural background of this case is laid out in
this court’s earlier opinion that denied Coleman’s previous application for a
Certificate of Appealability (“COA”). 1 A brief summary is provided here.
      On the morning of July 26, 2004, emergency services were summoned to
the house of nine-year-old Davontae Williams upon receiving a report that he
was suffering from breathing difficulties.             Davonate was dead when the
paramedics arrived. He was clad only in bandages and a diaper, and was so
emaciated and underweight that one of the paramedics called it “shocking.” A
crime scene investigator, along with a pediatrician, Dr. Konzelmann, examined
Davonate’s body and identified numerous injuries and wounds consistent with
him being bound repeatedly. The cause of death was eventually determined to
be malnutrition with pneumonia.
      Coleman was charged with Davontae’s murder. She was romantically
involved with Davontae’s mother, Marcella Williams, and interacted
repeatedly with Davontae during that time. At trial, witnesses testified, and


      1   Coleman v. Thaler, 716 F.3d 895, 898-901 (5th Cir. 2013).
                                              2
    Case: 14-11024      Document: 00512770560       Page: 3    Date Filed: 09/16/2014



                          No. 14-11024 c/w No. 14-70029
Coleman confirmed, that she had tied up and beaten Davontae on several
occasions, though she denied other accusations, including that she had locked
Davontae in a pantry. Toward the end of his life, Davontae did receive some
medical treatment and nutritional support, although Dr. Konzelmann testified
that such treatment was, in essence, too little, too late. Dr. Konzelmann also
opined that the treatment events were, at least in part, an attempt to prevent
Davontae from coming to the attention of medical authorities, for fear they
would take him away from Marcella Williams and Coleman.
      The State of Texas indicted Coleman for capital murder, which includes
murders committed intentionally “in the course of committing or attempting
to commit kidnapping.” 2 Coleman, the state argued, had aided and abetted
Marcella Williams in kidnapping Davontae in his own home, by restraining
him “with intent to prevent his liberation by . . . secreting or holding him in a
place where is not likely to be found.” 3 Coleman was unanimously found guilty
of murder after fifty-six minutes of deliberation. At the punishment phase of
trial, after less than four hours of deliberation, the jury found that there were
no sufficient mitigating circumstances warranting a sentence of life
imprisonment. As a result, the court, bound by state law, sentenced Coleman
to death.
      The Texas Court of Criminal Appeals affirmed Coleman’s sentence and
conviction on direct appeal in December 2009. 4 After unsuccessfully seeking a
writ of habeas corpus from the Texas state court system, she timely petitioned
for federal habeas relief in the Northern District of Texas, which denied her
petition on the merits in January 2012. 5 She sought a COA from this court,



      2 Id. at 900 n.8 (citing Tex. Penal Code § 19.03(a)(2)).
      3 Id. at 900 n.9 (citing Tex. Penal Code §§ 20.01(2), 20.03(a)).
      4 Coleman v. State, AP-75478, 2009 WL 4696064 (Tex. Crim. App. Dec. 9, 2009).
      5 Coleman v. Thaler, No. 4:11-CV-542-A, 2012 WL 171549 (N.D. Tex. Jan. 20, 2012).

                                          3
     Case: 14-11024        Document: 00512770560          Page: 4     Date Filed: 09/16/2014



                             No. 14-11024 c/w No. 14-70029
which we denied on the merits on May 23, 2013, concluding that she had made
an inadequate showing on three grounds: (a) that her legal team was
constitutionally ineffective for failing to investigate facts related to her
conviction for capital murder, (b) that her counsel was constitutionally
ineffective for failing to investigate and present mitigation evidence, and (c)
that she was incarcerated for an offense of which she is actually innocent. The
Supreme Court denied Coleman’s petition for a writ of certiorari on February
24, 2014. 6
       Coleman filed a subsequent state application for post-conviction relief in
state court on September 5, 2014, which the Texas Court of Criminal Appeals
denied on September 10, 2014. The next day, September 11, 2014, Coleman
moved in federal district court for relief from judgment and a stay of execution
pursuant to Rule 60(b). In that motion, she sought to introduce four affidavits,
which she argued would show that Davontae was not kept in the house, and
thus was not kidnapped. On September 12, 2014, the district court construed
Coleman’s Rule 60(b) petition as a subsequent habeas petition under 28 U.S.C.
§ 2244, determined it was without jurisdiction to hear the case, 7 and
transferred the action to this court. 8
                                                   II.
                                                   A.
       The first issue for this court is whether the district court properly
construed Coleman’s purported Rule 60(b) filing as a subsequent habeas



       6 Coleman v. Stephens, 134 S. Ct. 1306 (2014).
       7 See 28 U.S.C. § 2244(b)(3)(A) (“Before a second or successive application permitted
by this section is filed in the district court, the applicant shall move in the appropriate court
of appeals for an order authorizing the district court to consider the application.”).
       8 While the district court did not clarify the provision by which it transferred this

action, we have previously construed similar transfers as properly filed under 28 U.S.C. §
1631. See Adams v. Thaler, 679 F.3d 312, 322 (5th Cir. 2012).
                                               4
     Case: 14-11024       Document: 00512770560         Page: 5    Date Filed: 09/16/2014



                            No. 14-11024 c/w No. 14-70029
petition. We review the district court’s determination de novo. 9 In Gonzalez
v. Crosby, 10 the Supreme Court distinguished between a subsequent habeas
petition and a Rule 60(b) motion along the lines of substance and procedure. A
motion is substantive – and thus a successive habeas petition – if it “seeks to
add a new ground for relief,” or if it “attacks the federal court’s previous
resolution of a claim on the merits, since alleging that the court erred in
denying habeas relief on the merits is effectively indistinguishable from
alleging that the movant is, under the substantive provisions of the statutes,
entitled to habeas relief.” 11       If, however, the motion challenges “not the
substance of the federal court’s resolution of a claim on the merits, but some
defect in the integrity of the federal habeas proceedings,” then a Rule 60(b)
motion is proper. 12
       Procedural defects are narrowly construed, however.                  They include
“[f]raud on the habeas court,” 13 as well as erroneous “previous ruling[s] which
precluded a merits determination . . . – for example, a denial for such reasons
as failure to exhaust, procedural default, or statute-of-limitations bar.” 14 They
generally do not include “an attack based on the movant’s own conduct, or his
habeas counsel’s omissions,” which “do not go to the integrity of the
proceedings, but in effect ask for a second chance to have the merits
determined favorably.” 15




       9 In re Jasper, 559 F. App’x 366, 370 (5th Cir. 2014) (citing Ward v. Norris, 577 F.3d
925, 932 (8th Cir. 2009)).
       10 545 U.S. 524 (2005).
       11 Id. at 532.
       12 Id.
       13 Id. at 532 n.5.
       14 Balentine v. Thaler, 626 F.3d 842, 846-47 (5th Cir. 2010) (quoting Gonzalez, 545

U.S. at 532 n.4).
       15 Gonzalez, 545 U.S. at 532 n.5.

                                             5
     Case: 14-11024        Document: 00512770560          Page: 6     Date Filed: 09/16/2014



                             No. 14-11024 c/w No. 14-70029
       Coleman argues that there was a defect in the integrity of her original
habeas petition, namely that “the additional evidence from the four witnesses
recently discovered and relevant to the ‘kidnapping’ issue was unavailable to
this Court when it decided the claim previously, and the attached affidavits
and the evidence contained therein are now available.” Her counsel’s failure
to discover and present this evidence, she argues, indicated that they were
constitutionally ineffective. 16          This claim, however, is fundamentally
substantive – she argues that the presence of new facts would have changed
this court’s original result. 17 Moreover, Coleman does not allege that the court
or prosecution prevented her from presenting such evidence, but rather argues
that her own counsel was ineffective in failing to present such evidence. 18 The


       16   Coleman is not clear about whether she argues that her trial counsel was
constitutionally ineffective in discovering the evidence, which, had it been presented, would
have led to a “reasonable probability that . . . the result of the proceeding would have been
different,” Strickland v. Washington, 466 U.S. 668, 694 (1984), or whether she is making a
freestanding claim that the new evidence would show that she is actually innocent. We have
previously held that “[c]laims of actual innocence based on newly discovered evidence have
never been held to state a ground for federal habeas relief absent an independent
constitutional violation occurring in the underlying state criminal proceeding.” Coleman v.
Thaler, 716 F.3d 895, 908 (5th Cir. 2013) (quoting Dowthitt v. Johnson, 230 F.3d 733, 741
(5th Cir. 2000)). Given the unavailability of the latter argument, we will construe Coleman’s
petition as making an ineffective assistance claim.
        17 See In re Jasper, 559 F. App’x 366, 371 (5th Cir. 2014) (“[A] motion that ‘asks the

district court for an opportunity to offer facts that (in the petitioner’s view) will prove that
his conviction was constitutionally infirm,’ raises ‘a paradigmatic habeas claim.’”) (quoting
Rodwell v. Pepe, 324 F.3d 66, 71-72 (1st Cir. 2003)).
        18 Coleman cites to several cases in our sister circuits where actions by the prosecution

or the courts marred the integrity of the habeas proceeding. See, e.g., In re Pickard, 681 F.3d
1201, 1205-06 (10th Cir. 2012) (claim that prosecution improperly withheld exculpatory
evidence, preventing them from obtaining discovery to establish their claims, was a flaw in
the procedure, and did not constitute a second-or-successive claim); Mitchell v. Rees, 261 F.
App’x 825, 829 (6th Cir. 2008) (court’s failure to provide an evidentiary hearing is a defect in
the integrity of the habeas procedure); United States v. Marizcales-Delgadillo, 243 F. App’x
435, 438 (10th Cir. 2007) (court’s denial of habeas motion “without giving [petitioner] an
adequate opportunity to access record documents and amend the motion to present his claims
properly,” had “call[ed] into question the integrity of the proceedings from the point of view
of procedural due process”). Such precedent is simply inapposite in this factual context,
where there are no allegations that the court or state took any actions to hinder Coleman’s
ability to present evidence in her case.
                                               6
     Case: 14-11024        Document: 00512770560          Page: 7     Date Filed: 09/16/2014



                             No. 14-11024 c/w No. 14-70029
Supreme Court has held that such an argument sounds in substance, not
procedure. 19      Nor is Coleman’s alleged defect similar in kind to those
highlighted by the Supreme Court as examples of procedural failures, such as
statute-of-limitations or exhaustion rulings. 20              As such, we AFFIRM the
decision of the district court, and treat Coleman’s petition as a second or
subsequent habeas application. 21
                                                   B.
       Our duties with regard to a second or successive petition are set forth in
28 U.S.C. § 2244(b), which, in relevant part, states:
       (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; or




       19  See Gonzalez, 545 U.S. at 532 n.5 (“We note that an attack based on the movant’s
own conduct, or his habeas counsel’s omissions, ordinarily does not go to the integrity of the
proceedings, but in effect asks for a second chance to have the merits determined favorably.”).
        20 See id. at 532 n.4.
        21 Coleman raises an argument that she is entitled to review under the rule set out in

Martinez v. Ryan, 132 S. Ct. 1309 (2012), and Trevino v. Thaler, 133 S. Ct. 1911 (2013). These
cases hold that, under certain circumstances, state law procedural default of a substantive
claim of ineffective assistance of trial counsel may be excused if counsel was ineffective during
the initial state-habeas review. See Trevino, 133 S. Ct. at 1914-15. Here, Coleman’s
ineffective assistance of trial counsel claim was presented to this court, and was addressed
on the merits, during her federal habeas petition. Coleman, 716 F.3d 895, 903-08 (5th Cir.
2013). As such, Coleman cannot point to any state law procedural default permitting relief
under Martinez and Trevino.
                                               7
     Case: 14-11024      Document: 00512770560        Page: 8     Date Filed: 09/16/2014



                           No. 14-11024 c/w No. 14-70029
             (B)    (i) the factual predicate for the claim could not have
                    been discovered previously through the exercise of due
                    diligence; and

                    (ii) the facts underlying the claim, if proven and
                    viewed in light of the evidence as a whole, would be
                    sufficient to establish by clear and convincing evidence
                    that, but for the constitutional error, no reasonable
                    factfinder would have found the applicant guilty of the
                    underlying offense. 22
       In our previous opinion, we held that the failure of Coleman’s trial
counsel to present similar affidavits suggesting that Davontae was allowed to
leave his house, and thus had not been kidnapped, did not rise to the level of
constitutional ineffectiveness. 23 Coleman raises essentially the same claim
here, albeit with additional affidavits, and thus her claim is barred as
previously raised under section 2244(b)(1). 24
       Even if we construed her claim as new, however, it still must be
dismissed. Coleman does not argue, nor can she, that her claim is based on a
new rule of constitutional law. Her only avenue for relief, then, is to show both
that (1) the factual predicate for her claim could not have been discovered
through due diligence, and (2) that the facts, taken as true, would have shown
by clear and convincing evidence that but for the constitutional error, in this
case, the ineffective assistance of her trial counsel, no reasonable factfinder
would have found her guilty of kidnapping. This she cannot do.
       In an ineffective assistance of counsel claim, both conditions cannot be
true. If the new evidence – in this case the four affiants – could not have been
discovered earlier through due diligence, as the statute requires, then the trial


       22 28 U.S.C. § 2244(b) (emphasis added).
       23 See Coleman, 716 F.3d at 903-08.
       24 In this sense, she raises new facts, but not a new claim. We have held that such

situations count as the “same claim” for the purposes of this section. See Adams v. Thaler,
679 F.3d 312, 322 (5th Cir. 2012).
                                            8
     Case: 14-11024      Document: 00512770560        Page: 9    Date Filed: 09/16/2014



                           No. 14-11024 c/w No. 14-70029
counsel would not have been ineffective, as the Supreme Court, in Strickland
v. Washington, requires that “counsel’s performance [be] deficient.” 25 In that
case, there would be no constitutional error, and Coleman would fail section
2244(b)(2)(B)’s second prong. And if the evidence could have been discovered
through due diligence, Coleman would fail the first prong. Accordingly, we
DENY her application for a second or successive habeas petition.
                                           III.
      Coleman also moves for a stay of execution. In determining whether to
issue a stay of execution, we must consider:
      (1)    whether the stay applicant has made a strong showing that
      he is likely to succeed on the merits; (2) whether the applicant will
      be irreparably injured absent a stay; (3) whether issuance of the
      stay will substantially injure the other parties interested in the
      proceedings; and (4) whether the public interest lies. 26
Here, Coleman has not made a showing that she is likely to succeed on the
merits. As a result, we DENY her motion for a stay of execution.




      25 466 U.S. 688, 682 (1984).
      26 Diaz v. Stephens, 731 F.3d 370, 379 (5th Cir. 2013) (quoting Green v. Thaler, 699
F.3d 404, 441 (5th Cir. 2012)).
                                            9
