           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                            No. 18-10337               United States Court of Appeals
                                                                                Fifth Circuit

                                                                              FILED
In re: ROSENDO RODRIGUEZ, III,                                             June 5, 2018
                                                                         Lyle W. Cayce
                Movant                                                        Clerk


                                            No. 18-10350


In re: ROSENDO RODRIGUEZ, III,

                Movant

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CONSOLIDATED WITH 18-70010

ROSENDO RODRIGUEZ, III,

                Petitioner - Appellant

v.

LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

                Respondent - Appellee


                       ORDER ON MOTION TO SHOW CAUSE
                            Nos. 18-10337, 18-10350, 18-70010


Before JONES, SMITH, and DENNIS, Circuit Judges.
PER CURIAM: ∗
       On March 29, 2018, we issued an Order to Show Cause to Counsel of
record for Rosendo Rodriguez in this last minute capital case successive habeas
filing, seeking answers to two questions: (1) Precisely when and under what
circumstances did counsel “first became aware” of the lawsuit that was filed by
Dr. Florez in 2015 and settled at the latest in November 2017 but was allegedly
not known of by counsel until February 2018? and (2) Why, in connection with
the above matters, and as far as this court can discern, in the filings before the
federal district court and the United States Supreme Court, did Movant never
once refer to the eyewitness affidavit filed by the State on February 26, 2018
of former Lubbock County homicide investigator Garland Timms who
personally witnessed the autopsy of Summer Baldwin performed by
Dr. Natarajan?
       After retaining counsel, the Counsel responded. The Order to Show
Cause was predicated on potential violations of this court’s Local Rule 8.10,
requiring these petitions to be filed no later than seven business days prior to
a scheduled execution date, 1 and on Federal Rule of Civil Procedure 11. As to
the first question, Counsel claimed their client, now executed, informed them
about the lawsuit filed by Dr. Florez in February 2018, which precipitated their
filings. Counsel nevertheless failed directly to answer the second question, and


       ∗
           Judge Dennis did not participate in deciding this matter.

       1  See Fifth Cir. Local R. 8.10 (“Counsel who seek a certificate of appealability,
permission to file a successive petition, or an appeal from a district court judgment less than
7 days before the scheduled execution must attach to the proposed filing a detailed
explanation stating under oath the reason for the delay. If the motions are filed less than
7 days before the scheduled execution, the court may direct counsel to show good cause for
the late filing. If counsel cannot do so, counsel will be subject to sanctions.”).
                                               2
                      Nos. 18-10337, 18-10350, 18-70010


instead asserted unpersuasive, post-hoc arguments as to why this court should
have discredited the affidavit.      After reviewing Counsels’ submissions
carefully, we do not impose sanctions, but we chastise habeas Counsel for
failing to even acknowledge, much less attempt, to rebut an affidavit timely
offered by the State that on its face contradicted the factual basis for the last
minute successive petition.
      This court takes very seriously its duty to review all petitions on behalf
of petitioners facing execution. Our task is made all the more difficult when
counsel, having already pressed against an impending execution date, simply
ignore facts brought to bear by the State that undermine their newly
discovered theories. There is no excuse for such defaults.
      We impose no more onerous Rule 11 sanction today for counsels’ failure
to address a crucial fact militating against their last-minute petition. This
bespeaks lack of candor to the court and arguably lack of a good-faith basis for
the positions they espoused.     However, attorneys Seth Kretzer and Carlo
D’Angelo are admonished that their pleadings and filings in future cases will
be scrutinized for accuracy, completeness and compliance with Rule 11.




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