     Case: 18-20340      Document: 00514837127         Page: 1    Date Filed: 02/15/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 18-20340                    United States Court of Appeals
                                                                               Fifth Circuit

                                                                             FILED
                                                                      February 15, 2019
CEDRIC TRAVAUGHN HOPES,
                                                                        Lyle W. Cayce
              Petitioner-Appellant,                                          Clerk


v.

LORIE DAVIS, 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. 4:18-CV-1173


Before OWEN, WILLETT, and OLDHAM, Circuit Judges.
PER CURIAM: *
       Cedric Travaughn Hopes seeks a certificate of appealability (COA) to
appeal the district court’s decision after it recharacterized his 28 U.S.C. § 2241
petition as a 28 U.S.C. § 2254 petition and dismissed this reimagined petition
without prejudice for failure to exhaust state court remedies. His underlying
petition asserts various aspects of his state criminal trial violated the Due
Process Clause. Like the district court, we deny a COA.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-20340

                                       I.
      In 2014, a Texas jury convicted Hopes of aggravated robbery with a
deadly weapon. The trial court sentenced him to thirty-five years in prison.
Hopes appealed, arguing the trial court erred at sentencing by considering
certain expert testimony, evidence of his gang affiliation, and evidence of an
extraneous offense. The Fourteenth Court of Appeals affirmed, and the Texas
Court of Criminal Appeals denied discretionary review. Hopes v. State, No. 14-
14-00403-CR, 2015 WL 6759450, at *1 (Tex. App.—Houston [14th Dist.] Nov.
5, 2015, pet. ref'd).
      After his conviction became final, Hopes sought a post-conviction writ of
habeas corpus in state court. See TEX. CODE CRIM. PROC. ANN. art. 11.07.
Hopes argued that: (1) trial counsel was ineffective for advising him not to
testify, failing to object to extraneous evidence, and failing to object to
comments about his decision not testify; (2) the prosecutor committed
misconduct by suborning perjury from a government witness; and (3) appellate
counsel was ineffective for failing to raise claims on direct appeal asserting
prosecutorial misconduct, insufficient evidence, and variance from the
indictment. Appl. for a Writ of Habeas Corpus 6–14 (June 2, 2017); Mem. in
Supp. 7–26 (Aug. 4, 2017).
      In October 2017, Hopes asked the state court to appoint counsel and hold
an evidentiary hearing on his habeas application. According to the docket, the
court has not yet ruled on those motions or forwarded Hopes’s habeas
application to the Texas Court of Criminal Appeals. See Ex Parte Hopes, No.
WR-1342020-A; TEX. CODE CRIM. PROC. ANN. art. 11.07.3(d).
      Hopes filed a federal habeas petition in the U.S. District Court for the
Southern District of Texas while his state habeas application was still pending.
He again argues the prosecutor committed misconduct by suborning perjury.
But his federal petition also adds two other due process claims—that the court


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admitted an impermissibly suggestive identification and insufficient evidence
supported his conviction.
      Although the gravamen of his federal petition is that “his conviction is
pursuant to a State Court Judgment,” Hopes claims he filed it “pursuant to 28
U.S.C. § 2241(c)(2).” Id. The district court disagreed. It “treated [Hopes’s
filing] as a petition for a writ of habeas corpus under 28 U.S.C. § 2254” because
he ultimately sought relief from a state-court conviction. Hopes v. Davis, No.
H-18-1173, 2018 WL 1832323, at *1 (S.D. Tex. April 16, 2018). And because
his state habeas application remained pending, the court dismissed the re-
styled § 2254 petition without prejudice for failure to exhaust. Id. at *2. The
court denied a COA. Id.
      Hopes filed a notice of appeal, challenging the district court’s decision
recharacterizing his § 2241 petition as a § 2254 petition and dismissing it on
exhaustion grounds.    We construe his NOA as an application for a COA. See
FED. R. APP. P. 22(b)(2); Hill v. Johnson, 114 F.3d 78, 81 (5th Cir. 1997).
                                       II.
      We start by considering whether the district court properly determined
Hopes’s § 2241 motion is subject to § 2254. It did. Then we determine whether
a COA should issue. It should not.
                                       A.
      A litigant’s motion isn’t always what it purports to be. Accordingly, a
court may sometimes recharacterize a motion masquerading as something
else. Castro v. United States, 540 U.S. 375, 381–82 (2003). But courts must be
especially careful when exercising this power with a pro se litigant in the post-
conviction context. For example, the Castro Court held that when a district
court “recharacterizes a pro se litigant’s motion as a first § 2255 motion,” it
“must [1] notify the pro se litigant that it intends to recharacterize the
pleading, [2] warn the litigant that this recharacterization means that any


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subsequent § 2255 motion will be subject to the restrictions on ‘second or
successive’ motions, and [3] provide the litigant an opportunity to withdraw
the motion or to amend it.” Id. at 383. Otherwise, the “patronized litigant
[may] be harmed rather than assisted by the court’s intervention.” Id. at 386
(Scalia, J., concurring in part and concurring in the judgment).
       Assuming (without deciding) that Castro’s rule regarding § 2255 motions
applies to habeas petitions as well, 1 the district court failed to heed its dictates.
The court understandably recast Hopes’s § 2241 petition as a § 2254 petition
because he challenges his underlying state-court conviction. See Hartfield v.
Osborne, 808 F.3d 1066, 1073 (5th Cir. 2015). But in doing so, the court failed


       1  Most courts of appeals that have considered the question have concluded Castro’s
logic regarding § 2255 motions extends to habeas corpus petitions under § 2254. See
Thurston v. Maryland, 611 F. App’x 112, 113 (4th Cir. 2015) (per curiam); Foster v. Warden
Chillicothe Corr. Inst., 522 F. App’x 319, 321 (6th Cir. 2013) (per curiam); Smith v. Hobbs,
490 F. App’x 833, 834 (8th Cir. 2012) (per curiam); Clark v. Bruce, 159 F. App’x 853, 856 (10th
Cir. 2005); Ponton v. Secretary, Fla. Dep’t of Corr., 891 F.3d 950, 953 n.3 (11th Cir. 2018);
accord Cook v. N.Y. State Div. of Parole, 321 F.3d 274, 281–82 (2d Cir. 2003) (imposing notice-
and-warning requirement in § 2254 cases pre-Castro). Presumably that’s because motions
under § 2255 and petitions under § 2254 are subject to the same second-or-successive
restrictions. Compare 28 U.S.C. § 2244(b), with id. § 2255(h); see In re Bourgeois, 902 F.3d
446, 448 (5th Cir. 2018). We have never weighed in.
        But there is a good reason not to extend Castro’s § 2255 rule to § 2254. In the § 2254
context there is nothing to recharacterize: Properly speaking, § 2254 represents a relitigation
bar applicable to § 2241 petitions; there is no such thing as a “§ 2254 petition.” See Hartfield
v. Osborne, 808 F.3d 1066, 1073 (5th Cir. 2015); Medberry v. Crosby, 351 F.3d 1049, 1058–62
(11th Cir. 2003) (“In sum, § 2254 is not an independent and additional post-conviction remedy
for state prisoners; there is but a single remedy, the writ of habeas corpus.”). The relitigation
bar is simply a restriction on when a court may use the authority it otherwise possesses under
§ 2241 to grant habeas relief to a state prisoner. See 28 U.S.C. § 2241 (“Power to grant writ”).
The federal prisoner (§ 2255 movant) stands at a fork in the road and has the option of filing
a § 2241 habeas petition or a § 2255 motion to vacate his sentence. The state prisoner (§ 2241
petitioner), however, can do only one thing—file a § 2241 petition for a writ of habeas corpus.
A Castro warning makes scant sense for the habeas petitioner who could not have pursued a
different route to relief. See Hartfield, 808 F.3d at 1066 (“The question is not whether his
petition may be recharacterized as brought under § 2254, but whether § 2254 applies to his
petition in addition to § 2241.”); accord United States v. Nelson, 465 F.3d 1145, 1149 (10th
Cir. 2006).
        We need not decide whether our sister circuits have the better view of it because
Castro does not change the outcome here. As discussed below, whether Castro applies at all
is better addressed when, and if, Hopes files another habeas petition.


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to warn Hopes about the consequences of recasting his petition and to give him
an opportunity to withdraw it. Castro, 540 U.S. at 383. That hypothetical
Castro failure, however, doesn’t change the outcome here.
      The consequences of violating the Castro rule are limited. That rule
seeks to prevent prisoners from running headfirst and blind into AEDPA’s
second-or-successive restrictions. The remedy is therefore keyed to that harm.
See United States v. Marzon, 177 F. App’x 382, 383 (5th Cir. 2006) (per curiam).
If a prisoner never received a Castro warning and later files another petition,
the earlier, recharacterized motion (or petition) cannot count as his “first”
motion triggering the second-or-successive hurdles. See Williams v. McLaren,
2018 WL 3203426, at *3 (6th Cir. June 29, 2018); Smith, 490 F. App’x at 834–
35 (Colloton, J., dissenting); Clark, 159 F. App’x at 856.
      We have no need to vacate and remand. Hopes’s filing is subject to
AEDPA’s strictures, including the COA requirement—regardless of whether
we think of it as a recharacterized § 2254 petition or a § 2241 petition that just
happens to be limited by § 2254. Because Hopes’s petition complains about
detention arising out of a state-court judgment, he needs a COA. 28 U.S.C.
§ 2253(c)(1)(A). And although the district court failed to comply with Castro
when recasting his petition, Hopes can litigate any Castro error—including
whether it applies in this context at all—if he later sees fit to file another
habeas corpus petition.
                                       B.
      A COA may issue only if the applicant makes “a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). When the district
court’s denial of federal habeas relief is based on procedural grounds, “a
COA should issue when the prisoner shows, at least, [1] that jurists of reason
would find it debatable whether the petition states a valid claim of the denial
of a constitutional right and [2] that jurists of reason would find it debatable


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whether the district court was correct in its procedural ruling.”             Slack
v. McDaniel, 529 U.S. 473, 484 (2000).
      Our court has held that “inordinate and unjustified delay in the state
corrective process” may justify excusing the court-fashioned exhaustion
requirement in habeas cases. Rheuark v. Wade, 540 F.2d 1282, 1283 (5th Cir.
1976) (per curiam); see Ex Parte Royall, 117 U.S. 241 (1886). We have not
applied our unjustified-delay excuse after Congress passed AEDPA in 1996.
See 28 U.S.C. § 2254(b)(1)(B); Lee v. Stickman, 357 F.3d 338, 341 (3d Cir. 2004).
The district court did not make express findings as to whether the reason for a
nearly one-and-half-year delay on Hopes’s state habeas petition was
justifiable.
      But reasonable jurists still could not question the district court’s
procedural ruling dismissing the petition for failure to exhaust. State court
records show the state courts are currently processing Hopes’s state habeas
application. On January 4, 2019, Hopes petitioned the Texas Court of Criminal
Appeals for a writ of mandamus. On January 16, 2019, the Texas Court of
Criminal Appeals ordered the Harris County District Court Clerk to respond
by forwarding the records from Hopes’s state habeas proceedings.              That
response is due on February 15, 2019. These proceedings illustrate how the
exhaustion requirement “protect[s] the state courts’ role in the enforcement of
federal law and prevent[s] disruption of state judicial proceedings.” Rose v.
Lundy, 455 U.S. 509, 518 (1982).
                                  *      *     *
      Because the state courts are currently acting on Hopes’s state habeas
petition, reasonable jurists could not debate the district court’s conclusion that
petitioner has failed to exhaust his state court remedies. The motion for a COA
is DENIED.



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