       IN THE UNITED STATES COURT OF APPEALS
                FOR THE FIFTH CIRCUIT


                                No. 16-70009                   United States Court of Appeals
                                                                        Fifth Circuit

                                                                      FILED
JOHN DAVID BATTAGLIA,                                           March 30, 2016
                                                                 Lyle W. Cayce
             Petitioner - Appellant                                   Clerk

v.

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

             Respondent - Appellee




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


Before HIGGINBOTHAM, DENNIS, and GRAVES, Circuit Judges.
PER CURIAM:
     Appellant John David Battaglia is currently scheduled to be executed by
the State of Texas on March 30, 2016.      He moved the district court for
appointment of counsel under 18 U.S.C. § 3599 and a stay of execution. The
district court denied both motions. Battaglia now appeals to this Court and
moves for a stay of execution. We REVERSE the district court’s order denying
his motion for appointment of counsel and GRANT his motion for a stay of
execution.
                                           No. 16-70009
                                                  I.
         Appellant John David Battaglia was convicted of capital murder by a
Texas state court and sentenced to death for the murders of his two daughters.
Following an unsuccessful direct appeal 1 and state habeas petition, 2 Battaglia
sought federal habeas relief in the Northern District of Texas. In October 2013,
the district court entered an order denying Battaglia’s habeas petition. 3 We
denied a certificate of appealability in July 2015. 4 The Supreme Court denied
certiorari on January 11, 2016. 5 On February 19, 2016, Battaglia filed in state
trial court a “Motion for Appointment of Counsel to Prepare Article 46.05
Motion.” The State filed a motion to dismiss, but also requested a hearing. On
March 2, 2016, the state trial court summarily denied Battaglia’s motion and
the State’s request for a hearing. Battaglia filed a petition for certiorari, which
remains pending.
                                                 II.
         On March 10, 2016, Battaglia filed a motion for appointment of counsel
in the district court. In his motion, Battaglia sought the appointment of
counsel under 18 U.S.C. § 3599 “to investigate the grounds for a Ford claim
and prepare a habeas application raising one.” Battaglia acknowledged that
the attorney who prepared his application for a COA and petition for
certiorari—Michael C. Gross—had not been given permission to withdraw, but
urged the court to appoint Gregory W. Gardner as substitute counsel because
(a) his relationship with Gross had deteriorated and (b) Gross “lacks the




         1   Battaglia v. State, No. AP-74,348, 2005 WL 1208949 (Tex. Crim. App. May 18, 2005).
         2   Ex Parte Battaglia, No. WR-71939-01, 2009 WL 3042925 (Tex. Crim. App. Sept. 23,
2009).
         3   Battaglia v. Stephens, No. 3-09-CV-1904-B, 2013 WL 5570216 (N.D. Tex. Oct. 9,
2013).
         4   Battaglia v. Stephens, 621 F. App’x 781 (5th Cir. 2015).
         5   Battaglia v. Stephens, 136 S. Ct. 803 (2016).
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capacity to conduct the requisite investigative work necessary to continue
representing” him.       Battaglia also asked for a stay of execution to allow
substitute counsel “to meaningfully investigate the factual bases” of a potential
Ford claim. The district court ordered Gross to file an advisory with the court
disclosing “whether [he] believe[s] that [he is] the current appointed counsel
for Battaglia under 18 U.S.C. § 3599.” In his advisory, Gross explained that
he has concerns about Battaglia’s competency, but believes that state
competency proceedings are “wholly outside the scope” of his representation
under § 3599.
      On March 18, 2016, the district court denied Battaglia’s motion. The
court rejected Battaglia’s suggestion that he was not currently represented by
counsel for purposes of § 3599. This provision provides that “[u]nless 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
. . . all available post-conviction process, together with applications for stays of
execution and other appropriate motions and procedures.” 6 The district court
noted that this Court appointed Gross in 2014 and no court of competent
jurisdiction has since granted a motion to replace him. As a result, the court
concluded that Gross continues to represent Battaglia for purposes of § 3599—
and “Battaglia already has the representation required under this statute.” 7
      The district court then considered Battaglia’s motion to replace Gross
with substitute counsel under § 3599(e). Such motions are reviewed under “the
‘interests of justice’ standard.” 8       Although this standard “contemplates a
peculiarly context-specific inquiry,” the Supreme Court has instructed that


      6 18 U.S.C. § 3599(e).
      7 Op. at 4.
      8 See Martel v. Clair, 132 S. Ct. 1276, 1280 (2012).

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relevant factors typically include “the timeliness of the motion; the adequacy
of the district court’s inquiry into the defendant’s complaint; and the asserted
cause for that complaint, including the extent of the conflict or breakdown in
communication between lawyer and client (and the client’s own responsibility,
if any, for that conflict).” 9 The district court determined that the timing of
Battaglia’s motion—filed less than twenty days before his scheduled
execution—weighed heavily against substitution. The court also reasoned that
Battaglia’s asserted reasons for seeking new counsel were not compelling,
“particularly on the eve of his scheduled execution.” 10 Although Battaglia
alleges that Gross is part of a conspiracy to secure his execution, the district
court recounted that he has made similar complaints about every prior
attorney that has represented him in these proceedings. 11 The court further
found it significant that Battaglia did not lodge any specific complaints against
the adequacy of Gross’s representation. 12 Accordingly, the court concluded
that substitution would not be “in the interests of justice.”
      Finally, the district court addressed Battaglia’s motion for stay of
execution. The court observed that jurisdiction to enter such a stay inheres in
a court “before whom a habeas corpus proceeding is pending.” 13 It noted
Battaglia’s “emphas[is] that he is not presently making any habeas challenge,
but merely seeking to substitute counsel in connection with a possible future
challenge.” 14 In turn, the court concluded, no habeas proceeding was pending
before it, and it lacked jurisdiction to enter a stay. 15




      9 Id. at 1287.
      10 Op. at 7.
      11 Id.
      12 Id.
      13 28 U.S.C. § 2251(a)(1).
      14 Op. at 9.
      15 Id.

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       In the alternative, the district court considered the merits of Battaglia’s
stay request, applying the four-factor test articulated in Nken v. Holder. 16
First, it found that Battaglia was unlikely to succeed on the merits of his claim.
Insofar as his claim was a request for counsel, the court explained, Battaglia
failed to exhaust it in state court, rendering it off-limits in the district court;
moreover, the request was meritless, as Battaglia had had federally appointed
counsel since 2009.         The court also deemed Battaglia unlikely to succeed
insofar as he was asserting (or ultimately intended to assert) his incompetence
to be executed, not least because his pro se filings, upon which he relied
extensively in his motion for a stay, “consistently reveal[ed] his awareness
that, whether rightly or wrongly, the state court convicted him and sentenced
him to death for the murder of his daughters, and that unless some legal relief
is granted, the enforcement of that sentence will result in his execution.” 17
       For similar reasons, the district court found that Battaglia would not be
irreparably harmed if denied a stay of execution: although “it is certain that
[the] execution will permanently end his ability to raise further claims, it does
not appear that he has any.” 18 Finally, it concluded that the interests of his
surviving victims and of the public would not be served in granting him




       16  556 U.S. 418, 433-34 (2009); see, e.g., Green v. Thaler, 699 F.3d 404, 411 (5th Cir.
2012), as revised (Oct. 31, 2012) (discussing Nken).
        17 Op. at 14; see also id. at 14-15 (“‘The mental state requisite for competence to suffer

capital punishment neither presumes nor requires a person who would be considered
“normal,” or even “rational,” in a layperson’s understanding of those terms.’ . . . Although
Battaglia presents evidence indicating mental illness, he does not present a substantial case
on the merits of a challenge to his competence to be executed.” (quoting Panetti v.
Quarterman, 551 U.S. 930, 959-60 (2007))).
        18 Op. at 16; see Walker v. Epps, 287 F. App’x 371, 375 (5th Cir. 2008) (“[T]he merits

of his case are essential to our determination of whether [a prisoner] will suffer irreparable
harm if a stay does not issue.”).
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additional time to pursue apparently meritless claims of incompetency. Thus,
all four Nken factors weighed against a stay, and the court denied him one. 19
                                            III.
       Battaglia now appeals to this Court. He urges that the district court
erred in refusing to appoint new counsel because Gross has effectively
abandoned him. We agree. The district court was correct that Battaglia
technically has counsel for purposes of § 3599. Under § 3599(e), a lawyer
appointed to represent a capital defendant is obligated to continue
representing his client until a court of competent jurisdiction grants a motion
to withdraw. 20     But the Supreme Court has recognized that—apart from
whether substitution is warranted—a court must “appoint new counsel if the
first lawyer . . . abandon[s] the client.” 21           Regardless of whether Gross
continues to represent Battaglia in other matters, he has “abandoned”
Battaglia with respect to state competency proceedings. 22
       In his advisory, Gross expressly stated that he believes that his
representation does not extend to state competency proceedings.                 This belief
is mistaken.       Under § 3599(e), counsel “shall represent the defendant
throughout every subsequent stage of available judicial proceedings, . . . and
shall also represent the defendant in such competency proceedings and
proceedings for executive or other clemency as may be available to the


       19 The court also noted the last-minute timing of Battaglia’s motion and observed that
his counsel appeared to have had concerns about Battaglia’s competency for some time. Op.
at 17-18 & n.10; see Hill v. McDonough, 547 U.S. 573, 584 (2006) (“A court considering a stay
must . . . apply ‘a strong equitable presumption against the grant of a stay where a claim
could have been brought at such a time as to allow consideration of the merits without
requiring entry of a stay.’” (quoting Nelson v. Campbell, 541 U.S. 637, 650 (2004))).
       20 See Rosales v. Quarterman, 565 F.3d 308, 312 (5th Cir. 2009) (per curiam).
       21 See Martel v. Clair, 132 S. Ct. 1276, 1286 (2012).
       22 See Christeson v. Roper, 135 S. Ct. 891, 895 (2015) (per curiam) (deeming it

irrelevant that counsel might have been “actively representing [the capital defendant] in
some matters [because] their conflict prevented them from representing him in this
particular matter”).
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defendant.”     In Harbison v. Bell, the Supreme Court held that attorneys
appointed under § 3599 are obligated to represent their clients in state
clemency proceedings, and expressly rejected the government’s argument that
§ 3599 “is intended to furnish representation only in federal proceedings and
that all proceedings listed in subsection (e), including clemency proceedings,
should be understood to be federal.” 23 Although the Court has not specifically
held since that “competency proceedings” as used in § 3599 extend to state
proceedings, the logic of Harbison clearly applies. 24 But Gross’s erroneous
belief is of no moment to the question of abandonment. Whether or not Gross
should have represented Battaglia in state competency proceedings, he did not
do so. Accordingly, we conclude that Gross “abandoned” Battaglia for purposes
of pursuing a Ford claim.
       The State argues that we should still not appoint new counsel because
any Ford claim that Battaglia might bring would be unexhausted and
meritless. This Court has held that the appointment of counsel is not required
when the inmate’s claims are “indisputably” barred by procedural rules. 25 But
this is a rare circumstance. A court may only deny appointment of counsel if
litigation of the inmate’s claims would be a “wholly futile enterprise.” 26 This
is not the case here. Though Battaglia’s Ford claim appears to be unexhausted,
he may return to state court and file an Article 46.05 petition. As Battaglia



       23 556 U.S. 180, 186-87 (2009).
       24 See Gore v. Crews, 720 F.3d 811, 814 n.1 (11th Cir. 2013) (per curiam); Irick v. Bell,
636 F.3d 289, 291-92 (6th Cir. 2011) (assuming that capital defendant would be entitled to
counsel in state competency proceedings under § 3599 if state failed to provide adequate
counsel).
       25 Cantu-Tzin v. Johnson, 162 F.3d 295, 296-97 (5th Cir. 1998); see also In re Hearn,

376 F.3d 447, 455-56 (5th Cir.), as clarified on denial of reh’g en banc, 389 F.3d 122 (5th Cir.
2004).
       26 Cantu-Tzin, 162 F.3d at 296; see also Christeson, 135 S. Ct. at 895 (stating that a

court may deny a substitution motion if “any subsequent motion that substitute counsel
might file . . . would be futile”).
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notes, there is no procedural barrier or time limit that would prevent him from
taking this step. And the plain language of § 3599(e) expressly provides that
Battaglia would be entitled to the assistance of federal counsel—supported by
federal funding—during this proceeding. 27 It is also not “indisputabl[e]” that
Battaglia will be unable to make a threshold showing of incompetency. We
decline to comment on the merits of his Ford claim, but he has presented some
evidence of mental illness and delusions. His newly appointed counsel may
locate and produce more. As a result, we conclude that the district court erred
in declining to appoint new counsel under § 3599.
                                              IV.
       We next consider Battaglia’s motion for a stay of execution. We conclude,
contrary to the district court, that we have the power to grant that stay:
“‘[O]nce a capital defendant invokes his § 3599 right, a federal court also has
jurisdiction under [28 U.S.C.] § 2251 to enter a stay of execution’ to make the
defendant’s § 3599 right effective.” 28
       Again, Battaglia effectively lacked counsel to prepare his claim of
incompetency. In our view, it would be improper to approve his execution
before his newly appointed counsel has time to develop his Ford claim. 29 A
stay is needed to make Battaglia’s right to counsel meaningful.
       In ruling otherwise, the district court applied the four-factor test of Nken
v. Holder. 30 We recently noted in a similar context that “[i]t is not clear



       27  See Gore, 720 F.3d at 814 n.1.
       28  Charles v. Stephens, 612 F. App’x 214, 219 (5th Cir.) (alteration omitted) (quoting
McFarland v. Scott, 512 U.S. 849, 858 (1994)), cert. denied, 135 S. Ct. 2075 (2015).
        29 Cf. McFarland, 512 U.S. at 858 (“[T]he right to counsel necessarily includes a right

for that counsel meaningfully to research and present a defendant’s habeas claims. Where
this opportunity is not afforded, ‘approving the execution of a defendant before his petition is
decided on the merits would clearly be improper.’” (alterations omitted) (quoting Barefoot v.
Estelle, 463 U.S. 880, 889 (1983))).
        30 556 U.S. 418, 433-34 (2009).

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whether [a] motion for stay is governed by McFarland or by the Nken factors.” 31
But even assuming (without deciding) that the apparently more stringent
Nken test applies, 32 we conclude, contrary to the district court, that a stay is
warranted. First, the district court’s Nken analysis appeared to rely to some
extent on that court’s finding that Battaglia was already meaningfully
represented by counsel, a finding we reject. Second, and relatedly, Battaglia’s
lack of counsel has stunted the evidence developed thus far as to the merit of
his underlying Ford claim, making a declaration that the claim is unlikely to
succeed premature. Third, “[i]n a capital case, the possibility of irreparable
injury weighs heavily in the movant’s favor,” especially when his claim has
some merit—a possibility we cannot yet dismiss. 33 Fourth, to the extent that
his filings are late in arriving, this is due in significant part to the nature of a
Ford claim (which ripens only in proximity to execution) and to appointed
counsel’s failure to realize the scope of his duty, not to dilatory conduct on
Battaglia’s part. 34
      The State urges that proceeding to the state trial court with a claim of a
due process-footed right to counsel before seeking substitution of counsel was
tactical—an effort to force the grant of a stay. The State’s argument has some
purchase, as noted by the able district judge. But we are left with a prisoner
effectively unrepresented for critical periods of time. It is the present counsel’s
responsibility now appointed to take the case he has—and that may be




      31   Charles, 612 F. App’x at 222 (considering motion for a stay related to a § 3599
petition for authorization to hire experts in order to prepare a Ford claim).
        32 In contrast to Nken’s multifactor analysis, “[u]nder McFarland, if a prisoner

succeeds on his § 3599 motion but has insufficient time to meaningfully exercise that right
because of an impending execution, the Supreme Court has instructed federal courts to grant
a stay.” Id.
        33 O’Bryan v. Estelle, 691 F.2d 706, 708 (5th Cir. 1982) (per curiam).
        34 See Op. at 17-18 (discussing timing in the context of Nken analysis).

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developed during the time gained—to state court. Fear of not prevailing is no
excuse to ignore the state court’s primary right of first decision.
                                        V.
      We REVERSE the district court’s order denying Battaglia’s motion for
appointment of counsel and GRANT his motion for a stay of execution.




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