                          REVISED JULY 1, 2002
                 IN THE UNITED STATES COURT OF APPEALS

                         FOR THE FIFTH CIRCUIT
                         _____________________

                              No. 02-40755
                         _____________________


     JOHNNY JOE MARTINEZ;
     GARY ETHERIDGE;
     NAPOLEON BEAZLEY

                                 Plaintiffs-Appellants

           v.

     THE TEXAS COURT OF CRIMINAL APPEALS; SHARON KELLER, PRESIDING
     JUDGE; LAWRENCE E. MEYERS, MICHAEL KEASLER, TOM PRICE, BARBARA
     HERVEY, PAUL WOMACK, CHARLES HOLCOLM, CHERYL JOHNSON, CATHY
     COCHRAN, ASSOCIATE JUDGES, TEXAS COURT OF CRIMINAL APPEALS;

     and

     JANIE COCKRELL, DIRECTOR, INSTITUTIONAL DIVISION, TEXAS
     DEPARTMENT OF CRIMINAL JUSTICE,

                                Defendants-Appellees
_________________________________________________________________

             Appeal from the United States District Court
                  for the Southern District of Texas
_________________________________________________________________
                             May 21, 2002
Before KING, Chief Judge, and JONES and STEWART, Circuit Judges.

KING, Chief Judge:

     Plaintiffs-Appellants Johnny Joe Martinez, Gary Etheridge, and

Napoleon Beazley challenge the district court’s judgment dismissing,

for lack of jurisdiction, their complaint alleging claims under 42

U.S.C. § 1983.   For the following reasons, we AFFIRM the judgment of

the district court.   Due to the exigencies of time, we construe this

appeal alternatively as an application for permission to file a

successive habeas corpus petition, which we DENY.
        Plaintiffs-Appellants Johnny Joe Martinez, Gary Etheridge, and

Napoleon Beazley (collectively, “the Plaintiffs”) are all prisoners

under sentence of death in the State of Texas.    Each of the

Plaintiffs was convicted of capital murder.    Each Plaintiff has

directly appealed his conviction, and has collaterally attacked his

conviction by filing petitions seeking a writ of habeas corpus in

both state and federal court.1    None of these post-conviction

challenges has been successful.    Martinez’s sentence of death is

scheduled to be carried out tomorrow, on May 22, 2002.    Etheridge’s

sentence of death is scheduled to be carried out on June 27, 2002.

Beazley’s sentence of death is scheduled to be carried out on May 28,

2002.

        On May 17, 2002, the Plaintiffs filed the instant 42 U.S.C.

§ 1983 action in federal district court against Defendants-Appellees

the Texas Court of Criminal Appeals, the judges comprising that

court, and the Director of the Institutional Division of the Texas

Department of Criminal Justice (collectively, “the Defendants”).      The

essential theory of the complaint is that the Texas Court of Criminal

Appeals has violated the Plaintiffs’ rights under the Sixth, Eighth,



        1
          See Martinez v. Johnson, 255 F.3d 229, 231, 234-37 (5th
Cir. 2001), cert. denied, 122 S.Ct. 1175 (2002) (outlining the
procedural history of Martinez’s case and affirming the district
court’s denial of his petition for federal habeas relief);
Beazley v. Johnson, 242 F.3d 248, 253-55, 274 (5th Cir.), cert.
denied, 122 S.Ct. 329 (2001) (outlining the procedural history of
Beazley’s case and affirming the district court’s denial of his
petition for federal habeas relief); Etheridge v. Johnson, 209
F.3d 718 (5th Cir.) (Unpublished table decision), cert. denied,
531 U.S. 945 (2000) (outlining the procedural history of
Etheridge’s case and denying his request for a certificate of
appealability).


                                    2
and Fourteenth Amendments by engaging in a policy of “knowingly and

intentionally” appointing incompetent lawyers to represent indigent

death row inmates in their state habeas proceedings.   Specifically,

each of the Plaintiffs alleges that he had obvious and potentially

meritorious claims of constitutional error (including, inter alia,

claims of ineffective assistance of trial counsel and/or

prosecutorial misconduct) that were not raised in his petition for

state habeas relief due to the incompetence of his appointed state

habeas counsel.   Each Plaintiff was unsuccessful in his subsequent

attempt to secure federal habeas relief, because the federal courts

were procedurally barred from considering the constitutional claims

omitted from the state habeas petition.   See supra note 1.

Accordingly, the Plaintiffs were never afforded an opportunity to

present these claims to any state or federal court.

     The Plaintiffs allege that Texas’s “policy” of appointing

incompetent state habeas counsel deprived them of their right of

meaningful access to the courts, as provided by the Fourteenth

Amendment, as well as their Sixth Amendment right to effective

assistance of counsel.   The Plaintiffs further contend that these

procedural inadequacies render their death sentences unreliable, and

thus constitutionally suspect under the Eighth Amendment.     They seek:

(1) a temporary restraining order and preliminary injunction

preventing the Defendants from executing them during the pendency of

this litigation; (2) a permanent injunction directing the Defendants

to appoint competent state habeas counsel in all Texas death penalty

cases; and (3) a declaratory ruling from this court that federal

courts need not apply the procedural bar of 28 U.S.C. § 2254 to


                                   3
procedural defaults occasioned by incompetence of state habeas

counsel if the state does not authorize filing of a successive state

habeas application.

        The district court dismissed the Plaintiffs’ complaint.   Relying

on this court’s suggestion that the “core issue in determining

whether a prisoner must pursue habeas corpus relief rather than a

civil rights action is . . . whether the prisoner challenges the

‘fact or duration’ of his confinement or merely challenges the rules,

customs, and procedures affecting ‘conditions’ of confinement,” Cook

v. Texas Dep’t of Criminal Justice Transitional Planning Dep’t, 37

F.3d 166, 168 (5th Cir. 1994) (quoting Spina v. Aaron, 821 F.2d 1126,

1128 (5th Cir. 1987)), the district court concluded that the

Plaintiffs’ 42 U.S.C. § 1983 claims in the instant case were properly

construed as requests for writs of habeas corpus under 28 U.S.C. §

2254.    The district court determined that dismissal was thus

appropriate because, pursuant to 28 U.S.C. § 2254(b)(3)(A), district

courts lack jurisdiction to consider second or successive habeas

petitions unless this court has granted the petitioners express

permission to file such a petition.     The Plaintiffs timely appealed

the district court’s dismissal of their complaint, requesting that

this court enjoin state officials from carrying out any executions

until the merits of this litigation are resolved and remand this case

to the district court for development of the factual record.      We

review a district court’s dismissal of a § 1983 complaint for lack of

jurisdiction de novo.     See Bazrowx v. Scott, 136 F.3d 1053, 1054

(5th Cir. 1998).

        The Plaintiffs argue that the district court erred in construing


                                    4
their § 1983 action as a petition for a writ of habeas corpus.       They

contend that their § 1983 action cannot be a de facto habeas action

because they are not asking the federal courts to set aside their

state convictions or sentences, as they would in a habeas action.

The Plaintiffs maintain that their only goal in pursuing this action

is to obtain “a forum in which to litigate their Sixth, Eighth, and

Fourteenth Amendment claims.”

     The Supreme Court has determined that state prisoners may not

obtain equitable relief under § 1983 when the federal habeas corpus

statute is the exclusive remedial mechanism for obtaining the

requested relief.   In Preiser v. Rodriguez, 411 U.S. 475 (1973), the

Court considered a § 1983 action brought by state prisoners alleging

that state prison officials had unconstitutionally deprived them of

good-conduct-time credits.   The petitioners sought injunctive relief

compelling restoration of the credits, which would entitle them to

immediate release from prison.    Id. at 476-77.   While the Court

acknowledged that the petitioners’ claims fell within the literal

language of § 1983, id. at 488-89, the Court determined that “the

specific language of the federal habeas corpus statute, explicitly

and historically designed to provide the means for a state prisoner

to attack the validity of his confinement, must be understood to be

the exclusive remedy available in a situation like this where it so

clearly applies.”   Id. at 489.   The Court accordingly held that

habeas corpus is the exclusive remedy for state prisoners seeking

immediate release or speedier release from prison.     Id. at 490.    The

Court reasoned that to hold otherwise would permit prisoners to

circumvent the exhaustion requirement of § 2254(b), thus undermining


                                    5
the considerations of federal-state comity that underlie this

exhaustion requirement.    Id. at 491.

     The Court subsequently extended this holding to claims

challenging method of execution.    In Gomez v. United States District

Court for the Northern District of California, 503 U.S. 653 (1992),

the Court considered a § 1983 claim brought by a capital offender

alleging that the State of California’s method of execution (i.e.,

lethal gas) was cruel and unusual punishment in violation of the

Eighth Amendment.    The Court determined that the § 1983 suit was “an

obvious attempt to avoid the application of” the Court’s prior

holding in McClesky v. Zant, 499 U.S. 467 (1991), barring assertion

of claims in subsequent habeas petitions that could have been raised

in prior habeas petitions.    Gomez, 503 U.S. at 653.   Thus, the Court

implicitly determined that the petitioner’s challenge to his method

of execution was properly considered a de facto habeas challenge

rather than a § 1983 action.2

     The Court also clarified its Preiser holding in Edwards v.

Balisok, 520 U.S. 641 (1997).      In Edwards, an inmate challenged the

procedures used by state prison officials in his disciplinary

hearing, alleging that these procedures violated his Fourteenth

Amendment due process rights.    He requested declaratory relief and

monetary damages;    he did not, however, request restoration of his

good-time credits.    The Supreme Court found that habeas corpus was

the exclusive remedy for this claim because the “principal procedural


     2
          The Court held, in the alternative, that even if the
petitioner’s claim could properly be considered as a § 1983
action, numerous equitable considerations, including “the State’s
strong interest in proceeding with its judgment,” argued against
granting equitable relief. Gomez, 503 U.S. at 654.

                                     6
defect complained of by the petitioners (i.e., deceit and bias on the

part of the decisionmaker) would, if established, necessarily imply

the invalidity of the deprivation of his good-time credits,” and,

thus, necessarily imply a need for immediate or speedier release from

prison.   Id. at 648.   However, in considering the petitioner’s

related due process claim for prospective injunctive relief requiring

state prison officials to date-stamp witness statements in

disciplinary proceedings, the Edwards Court clearly held open the

possibility that a prisoner’s complaint challenging the procedures of

a disciplinary proceeding could be maintained as a § 1983 action if

the relief requested would not necessarily imply the invalidity of

his continued detention.    Id.

     This court has elaborated on this line of authority on a number

of occasions.    For example, in Cook, this court considered a

prisoner’s § 1983 challenge to a parole board procedure allowing the

board to take voided prior convictions into consideration when making

parole eligibility determinations.       This court considered whether

this claim was cognizable under § 1983, or must instead “be brought

after exhausting state remedies, as a habeas corpus claim.”       Cook, 37

F.3d at 167.    Acknowledging that “the line between claims which must

initially be pressed by writ of habeas corpus and those cognizable

under § 1983 is a blurry one,” we held that “the core issue in

determining whether a prisoner must pursue habeas corpus relief

rather than a civil rights action is to determine whether the

prisoner challenges the ‘fact or duration’ of his confinement or

merely the rules, customs, and procedures affecting ‘conditions’ of

confinement.”    Id. at 168 (quoting Spina, 821 F.2d at 1128).     We


                                     7
found that “a distinction must be made between claims that would

merely enhance eligibility for accelerated release and those that

would create an entitlement to such relief” and determined that the

petitioner’s claim could be maintained as a § 1983 action because he

did not challenge

“the fact of his conviction or confinement” but instead merely sought

future injunctive relief to “avoid what he believes is an

unconstitutional procedure by the Board.”     Id.   This decision did not

directly question the validity of the petitioner’s continued

incarceration and could, thus, properly be maintained as a § 1983

action.

     Four years later, in Clarke v. Stalder, 154 F.3d 186 (5th Cir.

1998), we clarified our interpretation of the distinction between

claims that can be brought as § 1983 actions and claims that must be

brought as habeas actions, in light of the Supreme Court’s decision

in Edwards.    In Clarke, we considered a state inmate’s constitutional

challenge to a Louisiana corrections rule prohibiting inmates from

threatening prison employees with legal redress during “confrontation

situations.”    Id. at 188.   We held that the inmate was precluded from

bringing a facial challenge to the corrections rule in a § 1983

action.   While we acknowledged Edwards’s suggestion that claims for

prospective injunctive relief can appropriately be maintained as

§ 1983 actions if they do not imply the invalidity of a previous

conviction (or of a prisoner’s continued detention), id. at 189, we

distinguished the request for prospective injunctive relief at issue

in Edwards, which “may have only an ‘indirect impact’ on the validity

of a prisoner’s conviction,” from the type of prospective injunctive


                                     8
relief at issue in Clarke.    Id.   We concluded that the type of

prospective injunctive relief at issue in Clarke was “so intertwined

with his request for damages and reinstatement of his lost good-time

credits that a favorable ruling on the former would ‘necessarily

imply’ the invalidity of his loss of good-time credits.”     Id.

Because the claims were interrelated in this manner, we found that

the legal issues necessary to decide the § 1983 claim would

effectively determine the validity of the disciplinary result and the

plaintiff’s lengthened sentence.    Accordingly, we concluded that the

plaintiff’s request for declaratory and injunctive relief could not

be maintained as a § 1983 action.     Id. at 191.

     More recently, in a series of cases exemplified by Moody v.

Rodriguez, 164 F.3d 893 (5th Cir. 1999), Faulder v. Johnson, 178 F.3d

741 (5th Cir. 1999), and Beets v. Texas Board of Pardons and Paroles,

205 F.3d 192 (5th Cir. 2000), this court has examined whether habeas

corpus is the exclusive remedy for a capital offender seeking a last-

minute stay of execution.    In each of these cases, we considered

whether a prisoner sentenced to death could bring a § 1983 action

challenging the procedural defects in his state clemency proceeding.

We determined that federal courts lacked jurisdiction to stay the

petitioners’ executions pursuant to § 1983, reasoning that

“[p]risoner challenges to the result of a single allegedly defective

clemency proceeding must be pursued by writ of habeas corpus, not by

suits under 1983.”   Moody, 164 F.3d at 893 (citing Preiser, 411 U.S.

475); accord Faulder, 178 F.3d at 742; Beets, 205 F.3d at 193; see

also Gilreath v. State Bd. of Pardons and Paroles, 273 F.3d 932, 933

(11th Cir. 2001) (concluding that a petitioner’s due process

                                     9
challenge to the state’s consideration of his clemency application

was a de facto petition for habeas relief).    Although none of these

cases significantly elaborates the rationale underlying this

determination, Moody’s reliance on Preiser indicates our implicit

conclusion that a request for a stay of execution entails a potential

federal interference with state penal interests that is equivalent

to, if not greater than, the request for immediate release (or

speedier release) from prison that was at issue in Preiser.

Accordingly, § 1983 challenges to an impending execution (like § 1983

challenges to a state’s method of execution or § 1983 challenges

seeking immediate or speedier release from prison) must be brought as

habeas actions.

        We now apply this line of authority to the facts of the instant

case.    As the above-referenced cases make clear, in determining

whether an action is properly considered as a de facto habeas action

or a § 1983 action, we look at the kind of relief the petitioner

seeks from the federal courts.    See, e.g., Moody, 164 F.3d at 893;

accord Gilreath, 273 F.3d at 933.    The first kind of relief the

petitioner sought from the district court was a “temporary

restraining order and preliminary injunction preventing defendants

and all persons acting under their authority, direction, or control,

or acting in privity or with identity of interest, from carrying out

the execution of the Plaintiffs until this litigation has run its

course.”    As the district court correctly recognized, this request is

the functional equivalent of a request for a stay of execution.     It

is well-established under Moody and its progeny that a petition for a

writ of habeas corpus is the exclusive remedy for a petitioner

                                    10
seeking stay of execution.   Construing the Plaintiffs’ requests for

stays of execution as habeas claims, the district court properly

determined that it was without jurisdiction to consider these claims

in the absence of express authorization by this court pursuant to 28

U.S.C. § 2244(b)(3)(A).

     The Plaintiffs also requested from the district court (1) a

permanent injunction directing the Defendants to appoint competent

state habeas counsel in all Texas death penalty cases; and (2) a

declaratory ruling from this court that federal courts need not apply

the procedural bar of 28 U.S.C. § 2254 to procedural defaults

occasioned by incompetence of state habeas counsel if the state does

not authorize filing of a successive state habeas application.     These

requests form the basis of the Plaintiffs’ contention that Preiser is

inapplicable to their § 1983 claims because they ultimately seek only

a “forum” in which to present their constitutional claims, rather

than a reversal of their convictions or sentences.   However, we find,

pursuant to our decision in Clarke v. Stalder, that these requests

for declaratory and injunctive relief are “so intertwined” with the

Plaintiffs’ request for injunctive relief from their impending

executions that a favorable ruling on the Plaintiffs’ challenges to

Texas’s system for appointing state habeas counsel is likely to

effectively determine the validity of their death sentences.

Accordingly, these claims for declaratory and injunctive relief are

not cognizable in a § 1983 action.     See Clarke, 154 F.3d at 191.

     In the alternative, even if the Plaintiffs’ requests for

declaratory and injunctive relief imposing systemic reform of Texas’s



                                  11
habeas corpus procedures could properly be addressed as § 1983 claims

under Cook, the requested relief is foreclosed by this court’s

precedents.   As the Defendants correctly point out, both this court

and the Supreme Court have already determined on numerous occasions

that there is no constitutional right to state habeas corpus counsel.

See, e.g., Pennsylvania v. Finley, 481 U.S. 551, 554 (1987); Jones v.

Johnson, 171 F.3d 270, 277 (5th Cir. 1999).     Accordingly, the

alleged ineffectiveness of state habeas counsel cannot constitute

cause sufficient to avoid application of a procedural bar on federal

habeas review to claims defaulted in state court.     Jones, 171 F.3d at

277.   In their second and third claims for relief, the Plaintiffs

effectively ask the district court to reverse longstanding Supreme

Court precedent and to rewrite the federal habeas statute.    The

district court properly declined this invitation.

       Because we conclude (in accordance with the holding of the

district court) that the Plaintiffs’ claims should have been brought

as a habeas corpus action, in the interests of judicial economy (and

due to the time constraints at issue in this challenge to impending

executions), we construe the Plaintiffs’ appeal of the district

court’s judgment alternatively as an application for permission to

file a successive habeas corpus petition.     See, e.g., Cooper v.

Calderon, 274 F.3d 1270, 1275 (9th Cir. 2001) (construing a

petitioner’s request for a certificate of appealability as a request

for authorization to file a second or successive habeas petition);

Allen v. Massie, 236 F.3d 1243, 1245-46 (10th Cir. 2001) (construing

a petitioner’s request, made on the eve of her execution, to recall

the mandate in her federal habeas action as an application to file a

                                   12
second or successive habeas petition).    We find that the claims

alleged in the Plaintiffs’ complaint do not meet the standard

established in 28 U.S.C. § 2244(b).    Even if we assume, arguendo,

that the Plaintiffs’ challenges to Texas’s “policy” of appointing

ineffective state habeas counsel can be conceptually distinguished

from their challenges to the ineffectiveness of their own state

habeas counsel asserted in their first habeas corpus proceedings,

these claims neither “rel[y] on a new rule of constitutional law,

made retroactive to cases on collateral review by the Supreme Court,”

id. § 2244(b)(2)(A), nor rely on newly-discovered facts that “would

be sufficient to establish by clear and convincing evidence that, but

for constitutional error, no reasonable factfinder would have found”

the Plaintiffs guilty of their underlying offenses, id. §

2244(b)(2)(B).   Accordingly, the Plaintiffs’ request for permission

to file a successive habeas petition is denied.

     For the foregoing reasons, the judgment of the district court is

AFFIRMED, and the Plaintiffs’ request to this court for injunctive

relief is DENIED.   The Plaintiffs’ alternative request for permission

to file a successive petition for a writ of habeas corpus is DENIED.




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