    Case: 19-11017     Document: 00515231341       Page: 1   Date Filed: 12/10/2019




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

                                    No. 19-11017                     FILED
                                                              December 10, 2019
                                                                Lyle W. Cayce
In re: ROBERT SPARKS,                                                Clerk

            Movant



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


Before HIGGINBOTHAM, JONES, and COSTA, Circuit Judges.
EDITH H. JONES, Special Concurrence:
      This concurrence follows a brief order of this court entered September 24,
2019, which denied authorization to file a successive habeas petition. A copy
of that order is attached hereto.
      My colleagues apparently see no problem in counsel’s plain evasion of
our rules governing last-minute capital habeas filings, see Fifth Circuit Local
Rule 8.10, but this practice is again becoming common. Consequently, I think
it high time not only to issue a warning to Jonathan Landers that no further
manipulation of habeas proceedings will be tolerated by this court, but to place
all capital habeas counsel on notice that disorderly presentation of cases is an
affront to the judicial process.
      Sparks was scheduled to be executed by the State of Texas, and was
executed, on September 25, 2019. On September 16, 2019, nine days before
the execution, Sparks’s counsel, Mr. Landers, filed in this court a motion for
authorization to file a successive habeas petition pursuant to 28 U.S.C.
§ 2244(b)(2) based solely on the contention that Sparks suffered from mental
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                                 No. 19-11017


disability and was therefore ineligible for execution. See Atkins v. Virginia,
536 U.S. 304, 321, 122 S. Ct. 2242, 2252 (2002).
      In response to a request sent by this court on September 16, 2019,
Mr. Landers explained in detail the timeline whereby Sparks’s alleged mental
disability claim had been raised in state and federal courts. The timeline is
reproduced below.     Mr. Landers conceded that he filed the motion for
authorization (and related motion to stay) on September 16, 2019, to avoid
potential consequences from a filing made less than seven business days before
the scheduled execution. Mr. Landers was well aware of this court’s Local
Rule 8.10, which states in relevant part:
      Time Requirements for Challenges to Death Sentences
      and/or Execution Procedures. Inmates sentenced to death . . .
      who seek permission to file a successive petition . . . must exercise
      reasonable diligence in moving . . . for permission to file a second
      or successive habeas petition . . . and a stay of execution with the
      clerk of this court at least seven days before the scheduled
      execution.

5th Cir. Local Rule 8.10.

      As Mr. Landers also well knew, his motion for authorization was at least
premature, because at the date of filing, he had not exhausted his client’s
Atkins claim in the state court proceedings. In other words, on September 16,
2019, and for several days afterward, this court had no authority to grant relief
of any sort. AEDPA authorizes federal court jurisdiction only over habeas
claims in which state courts have had the first opportunity to rule on the
merits. 28 U.S.C. § 2254. And, as this timeline demonstrates, Sparks had
ample opportunity, for at least two years preceding the setting of an execution
date, to raise his mental disability claim in state and then federal courts:

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                            No. 19-11017


• 2008: Sparks is convicted and sentenced to death

• 2010–2011: Sparks’s conviction and sentence are affirmed on direct
  appeal by the Texas Court of Criminal Appeals, and the United States
  Supreme Court denies certiorari

• 2011–2012: The Texas Court of Criminal Appeals denies relief on
  Sparks’s first state habeas petition, and the Supreme Court denies
  certiorari

• December 2012: Sparks files his first federal habeas petition

• May 2013: The DSM-5 is published

• January 2014: The federal district court stays Sparks’s first federal
  habeas proceedings, pending Sparks’s exhaustion of his non-Adkins
  claims in state court

• February 2014: Sparks files a second state habeas petition (not raising
  an Adkins claim)

• May 2014: The Texas Court of Criminal Appeals dismisses Sparks’s
  second habeas petition as an abuse of the writ

• March 2017: The Supreme Court releases Moore v. Texas

• March 2018: The federal district court denies Sparks’s first federal
  habeas petition

• December 2018: This court denies Sparks’s motion for a certificate of
  appealability

• June 2019: Sparks’s execution date is set for September 25, 2019

• September 10, 2019: Sparks files a third state habeas petition,
  asserting his Atkins claim for the first time in state court



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                                 No. 19-11017


   • September 16, 2019: Sparks moves this court for authorization to file
     a successive habeas petition, asserting his Atkins claim for the first time
     in federal court

      Thus, in the worst-case scenario, Mr. Landers was doing his client a
grave disservice, if he thought the claim of mental disability had merit, by
pursuing it within less than one month before the scheduled execution. There
was every possibility, given the applicable state and federal procedures, that
any execution delay would take some time for proper consideration. And
several years had passed since the issuance of the expert guidelines (the DSM-
5) that formed the basis of his claim and the Supreme Court’s Moore decision,
which required Texas to align its diagnostic requirements with those of the
experts. It is hard to envision competent counsel’s having sat on a potentially
meritorious exclusion from capital punishment until the eve of execution.
      In the end, the most likely inference, based on his own admissions, is
that Mr. Landers chose to file a facially inadequate pleading in this court for
the purpose of evading our Local Rule 8.10 and pushing this court into a last-
minute evaluation of Sparks’s never-before-raised claim. See Rhines v. Weber,
244 U.S. 299, 277–78, 125 S. Ct.1528, 1535 (2005) (“In particular, capital
petitioners might deliberately engage in dilatory tactics to prolong their
incarceration and avoid execution of the sentence of death. Without time
limits, petitioners could frustrate AEDPA’s goal of finality by dragging out
indefinitely their federal habeas review.”). The court was pushed, because the
Texas Court of Criminal Appeals was unable to rule on the claim until Monday,
September 23, 2019, ultimately dismissing it as an abuse of the writ. This
court was left with less than forty-eight hours to issue our ruling.



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                                 No. 19-11017


      Our Local Rule was promulgated before AEDPA was enacted in an
attempt to regularize capital habeas proceedings and prevent the filing of last-
minute, frivolous petitions, meant only to obtain further stays of duly
prescribed and reviewed punishment. Mr. Landers’s patent evasion of this
rule is inexcusable. Credit is due for his imaginativeness in manufacturing a
premature filing, a device that has not been used before in this court. I hope
this is the last time counsel may undertake such actions without facing adverse
consequences.




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                                       No. 19-11017


                                                             ATTACHMENT



           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                       No. 19-11017                        United States Court of Appeals
                                                                                  Fifth Circuit


                                                                                   FILED
                                                                         September 24, 2019
In re: ROBERT SPARKS,
                                                                            Lyle W. Cayce
                      Movant                                                          Clerk




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




O R D E R:
Before HIGGINBOTHAM, JONES, and COSTA, Circuit Judges.
       Nine days before his scheduled execution date on September 25, 2019,
Sparks filed a motion in this court to authorize filing a successive federal
habeas petition pursuant to 28 U.S.C. § 2244(b). 1 Since 2008, Sparks has



       1 The timing of this last-minute filing is no accident, because this court’s Local Rule
8.10, tailored to prevent last-minute capital habeas filings, requires petitioners to present
their claims no later than eight days before a scheduled execution. Petitioner’s counsel
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                                     No. 19-11017


been through state and federal proceedings concerning his capital crime and
death sentence for the brutal murders of two boys. He never raised an Atkins
claim alleging intellectual disability until late this summer.
      No extended recap of the horrendous crime or criminal proceedings is
necessary. Sparks murdered his two stepsons and their mother, and raped
his two stepdaughters in the same vicious transaction. He was convicted and
sentenced to death in 2008, and his conviction was affirmed on direct appeal
to the Texas Court of Criminal Appeals in 2010. The Supreme Court denied
cert. in 2011. Sparks pursued a state habeas proceeding, was denied relief in
the state trial court and on appeal, and cert. was again denied in 2012. During
the pendency of the state habeas, Sparks filed his first federal habeas
proceeding, which the court abated pending exhaustion in another round of
state habeas. Following this excursion, the federal court considered and
rejected Sparks’s amended habeas petition. This court affirmed the district
court’s order denying relief in late 2018 and denied rehearing in January
2019. A petition for cert. following this court’s decision remains pending in
the Supreme Court.
      The state requested and obtained the September 25 execution setting
in June. In late July, Sparks, through his counsel Jonathan Landers and Seth
Kretzer, filed an application for funding for a neuropsychologist and a stay of
execution, which the district court denied. He also commenced a subsequent
state court habeas proceeding premised on the theory that he is intellectually
disabled and therefore ineligible for the death penalty. The Texas Court of



freely admits his timing of this premature, and untimely, petition was designed to evade
the deadline.
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Criminal Appeals dismissed the writ as an abuse yesterday, September 23,
2019.
        Nevertheless, Sparks asks this court to approve his motion to file a
successive federal habeas petition based solely on the Atkins claim.          He
contends that he has made a prima facie case supporting the prerequisites for
a successive filing as either a new rule of constitutional law, made retroactive,
that was previously unavailable, Section 2244(b)(2)(A), or previously
unavailable facts that call into question the accuracy of his conviction for
capital murder, Section 2244(b)(2)(B).
        The state’s response to Sparks’s brief contends that he meets neither of
these statutory criteria and in any event, his petition is untimely pursuant 28
U.S.C. § 2244(d)(1). For the following reasons, we DENY the application.
        1.    Sparks is unable to establish a prima facie case that his petition,
even if exhausted, is based on a “new rule” of constitutional law, that was
“previously unavailable” but made retroactively applicable to cases on
collateral review. Sparks killed his victims long after Atkins had eliminated
capital punishment for mentally disabled individuals. During his trial in
2008, Sparks’s own expert testified that he was not so disabled.
        He contends that in Moore v. Texas, 137 S. Ct. 1039 (2017), the
Supreme Court rejected Texas’s previous framework for determining
intellectual disability in this context and thus facilitated a successive Atkins
claim. This contention contradicts the Court’s holding in Shoop v. Hill, 139
S. Ct. 504, 507–09 (2019). But even if we count Moore as the starting date for
Sparks’s realization that the former Texas guidelines for intellectual
disability would not stymie his Atkins claim, the statutory time limit for
asserting this claim is one year following Moore.           28 U.S.C. § 2244.
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Consequently, Sparks’s delay in filing this application nearly three years after
Moore is untimely. Section 2244(d)(1)(C).
       2.     Alternatively, Sparks contends that the “factual basis” for his
postMoore claim “could not have been discovered by the exercise of due
diligence” until his current expert’s re-evaluation of his old, pretrial testing.
28 U.S.C. §§ 2244(b)(2)(B)(i), (d)(1)(D). He attempts to claim that the experts’
trial testimony from 11 years ago yielded uncertain results about his IQ and
somehow eliminates any duty of diligence to have investigated an Atkins
claim for more than a year after Moore. Aside from its lack of legal support,
this argument is incoherent.         Using Moore as the touchstone for his failure
to reconsider intellectual disability ignores that the DSM-5 diagnostic
protocol, which loosened the basis for such findings, was published in May
2013. So, this petition falls six years after the alleged new factual predicate,
rendering it five years untimely.
       Sparks’s invocation of McQuiggin to satisfy the additional prerequisite
of 28 U.S.C. § 2244(b)(2)(B) is also unavailing, because that provision is
directed to new facts that, if proven, would have shown Sparks not guilty of
the underlying offense “by clear and convincing evidence.” 2244(b)(2)(B)(ii);
McQuiggin v. Perkins, 569 U.S. 383, 395–96 (2013); see also Busby v. Davis,
925 F.3d 699, 712 (5th Cir. 2019) (footnotes omitted).                   Sparks has not
attempted to demonstrate actual innocence of the crime. And even if “actual
innocence of the death penalty” suffices under McQuiggin, 2 a petitioner is still
responsible for pursuing his claim within the AEDPA limitations period.


       2 Throughout this opinion we refer to propositions asserted by Sparks with the
conditional “even if.” Doing so does not indicate that any of those propositions has any merit.

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                                     No. 19-11017


Henderson v. Thaler, 626 F.3d 773. 781 (5th Cir. 2010).
      3.     We decline Sparks’s request to remand the timeliness issue while
granting him a further opportunity to expand on proof of his Atkins claim.
Even if he had presented prima facie evidence of intellectual disability, such
evidence cannot bootstrap a plainly untimely claim. Unlike other petitioners
for which this court has granted remand to proceed with successive petitions
based on Atkins, Sparks had proceedings pending in this court and the state
courts throughout the evolution of the Supreme Court’s approach to Texas’s
application of Atkins and when the DSM-5 was published. 3 He had ample
time and opportunity to explore and properly raise an intellectual disability
claim.
      Because Sparks has failed to set up a basis for filing a successive habeas
      petition, we have no authority to grant a stay of execution.


                                 Motion for Authorization to File is DENIED.
                                  Motion for a Stay of Execution is DENIED.




      3  Cf. In re Johnson, 935 F.3d 284, 293 (5th Cir. 2019) (amendment to first habeas
petition in light of publication of DSM-5 was “not feasible” because the DSM-5 was
published “only 17 days before” the petition was denied); In re Cathey, 857 F.3d 221, 230
(5th Cir. 2017) (judicial recognition of the Flynn Effect and the abandonment of rule-of-
thumb for a maximum IQ level were not available at the time of the first petition and its
disposition).
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