
    In re: James Carl Lee DAVIS, Movant.
    No. 97-00312.
    United States Court of Appeals, Fifth Circuit.
    Aug. 27, 1997.
    
      Roy E. Greenwood, Jr., Austin, TX, for Movant.
    Before KING, HIGGINBOTHAM and BARKSDALE, Circuit Judges.
   RHESA HAWKINS BARKSDALE, Circuit Judge:

The State of Texas has scheduled the execution of James Carl Lee Davis for 9 September 1997. Pursuant to 28 U.S.C. § 2244(b)(3), Davis seeks leave to file a successive habeas application in the district court, in order to assert a claim that, under Ford v. Wainwright, 477 U.S. 399, 409-10, 106 S.Ct. 2595, 2602, 91 L.Ed.2d 335 (1986) (“Eighth Amendment prohibits a State from carrying out a sentence of death upon a prisoner who is insane”), he is incompetent to be executed. We DENY the motion.

I.

In 1985, Davis was convicted of capital murder and sentenced to death. See Davis v. Scott, 51 F.3d 457, 459 (5th Cir.1995). The Texas Court of Criminal Appeals affirmed the conviction and sentence, Davis v. State, 782 S.W.2d 211 (Tex.Crim.App.1989); and the United States Supreme Court denied certiorari. Davis v. Texas, 495 U.S. 940, 110 S.Ct. 2193, 109 L.Ed.2d 520 (1990). Davis’ application for state habeas relief was denied. See Davis, 51 F.3d at 459. Davis sought federal habeas relief in 1992, and the district court granted it. Our court reversed, Davis v. Scott, 51 F.3d 457 (5th Cir.1995); and the Supreme Court denied certiorari. Davis v. Scott, — U.S. -, 116 S.Ct. 525, 133 L.Ed.2d 432 (1995).

In December 1995, Davis filed in the state trial court a motion for a competency hearing and appointment of a psychiatric expert to determine his competency, and a motion to declare unconstitutional TexCode Crim. P. art. 11.071 (requirements for consideration of successive state habeas applications). The trial court forwarded the motions to the Texas Court of Criminal Appeals; in December 1996, that court rejected the constitutional challenge and found that Davis did not meet the prerequisites for filing a successive state habeas application. Ex parte Davis, 947 S.W.2d 216 (Tex.Crim.App.1996). The Court of Criminal Appeals did not address Davis’ motion for a competency hearing and for appointment of a psychiatric expert. Davis did not seek Supreme Court review.

In June 1997, Davis moved, pursuant to 28 U.S.C. § 2244(b), for permission to file a successive federal habeas application, asserting that, under Ford v. Wainwright, he is incompetent to be executed. Our court denied the motion without prejudice as premature, because Davis’ execution had not been scheduled. The instant motion for reconsideration was filed after execution was scheduled for 9 September.

II.

It goes without saying that, although Davis’ Ford claim has not been raised before in district court, he seeks leave to present it in a second federal habeas application. Pursuant to the amendments to the habeas statutes resulting from the Anti-Terrorism and Effective Death Penalty Act (AEDPA), a habeas applicant must obtain an order from a court of appeals authorizing the district court to consider such a second or successive application. 28 U.S.C. § 2244(b)(3)(A). And, we may authorize the filing of such an application “only if [we] determine[ ] that [it] makes a prima facie showing that the application satisfies the requirements of [28 U.S.C. § 2244(b)(1) and (2) ]”. 28 U.S.C. § 2244(b)(3)(C).

Pursuant to § 2244(b)(1), “[a] claim presented in a second or successive habeas ... application under section 2254 that was presented in a prior application shall be dismissed.” (Emphasis added.) Again, this Ford claim was not presented in a prior application.

New claims, such as the one in issue, presented in a second or successive federal application by state prisoners are addressed by § 2244(b)(2). It provides:

(2) A claim presented in a second or successive habeas ... application under section 2254 that was not presented in a prior application shall be dismissed unless—
(A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(B)(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and
(ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.

(Emphasis added.)

Only two circuits appear to have considered the applicability of § 2244(b) to Ford claims. In In re Medina, 109 F.3d 1556 (11th Cir.1997), the Eleventh Circuit denied leave to file a second habeas application, explaining that the movant could not satisfy § 2244(b)(2)(A), because Ford is not a new rule of constitutional law, and that he could not satisfy § 2244(b)(2)(B), because the factual predicate for the claim had nothing to do with his guilt or innocence of the underlying offense. Id. at 1564-65. The court decided that, “although the provisions of § 2244(b), as amended, operate to foreclose review of competency to be executed claims in second habeas applications, federal court consideration of such claims is not entirely foreclosed”: the provisions of § 2244(b) do not restrict the Supreme Court’s original habeas authority to consider competency claims, see Felker v. Turpin, — U.S. -, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996); and federal review may also be obtained through certiorari review of the state court competency proceedings. 109 F.3d at 1564.

In Martinez-Villareal v. Stewart, 118 F.3d 628 (9th Cir.1997), the movant had presented a Ford claim in his first habeas application. The district court had dismissed the claim without prejudice as premature, but granted relief on other grounds. The Ninth Circuit had reversed the grant of relief; and, on remand, Martinez-Villareal had moved to reopen the first habeas proceeding. The district court held that, under AEDPA, it did not have jurisdiction to entertain the Ford claim. The Ninth Circuit reversed, holding that the movant’s Ford claim was not subject to the restrictions imposed by § 2244(b).

The Ninth Circuit noted that a Ford claim will always be premature if asserted in a first habeas application, either because no execution date has been scheduled, or because of the automatic stay provision applicable, under certain circumstances, to first habeas applications, see 28 U.S.C. § 2262. The court explained that a Ford claim cannot be raised in a successive habeas application: if the claim was raised in a previous application, § 2244(b)(1) requires dismissal; and if the claim is to be raised for the first time in a second application, as here, the movant cannot make the required prima facie showing under either subpart (b)(2)(A), because the rule of constitutional law upon which the claim is based was announced in Ford in 1986 and is therefore not “new”, or under subpart (b)(2)(B), because the factual predicate for the claim does not establish guilt or innocence of the underlying offense. Postulating, pursuant to Felker, that the Supreme Court would consider itself bound by the restrictions of subparts (b)(2)(A) and (B), the court concluded that § 2244(b) presented a “serious constitutional problem” because a state prisoner’s Ford claim could never be heard by any federal court. 118 F.3d at 631-33.

To avoid this perceived constitutional problem, the Ninth Circuit decided that § 2244 does not apply to a Ford claim that has been dismissed as premature in a first habeas application. Under the Ninth Circuit’s “narrow” holding,

a competency claim must be raised in a first habeas petition, whereupon it also must be dismissed as premature due to the automatic stay that issues when a first petition is filed. Once the state issues a second warrant of execution and the state court considers the now-ripe competency claim, a federal court may hear that claim — and only that claim — because it was originally dismissed as premature and therefore falls outside of the rubric of “second or successive” petitions.

118 F.3d at 634.

Were we to adopt the rule of Martinez, it would not help Davis. Unlike the movant there, whose Ford claim was presented in his first federal habeas application and dismissed as premature, Davis did not present a Ford claim in his first federal application. Instead, as discussed supra, he seeks to present his Ford claim for the first time in a second habeas application. Likewise, because this is a second application, Davis would not be helped even were we to extend In re Gasery, 116 F.3d 1051 (5th Cir.1997) (habeas application refiled after dismissal without prejudice for failure to exhaust state remedies is neither second nor successive), to Ford claims sought to be reasserted after dismissal without prejudice as premature when presented in a first, not — as here— second, habeas application.

A.

Before addressing Davis’ contentions, we turn to the State’s assertion that a Ford claim does not state a basis for federal habeas relief because it does not seek to invalidate the conviction or sentence, and the relief sought — an indefinite stay of execution — is not available in a habeas proceeding. The language of § 2254(a) seems to support this position:

The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution of laws or treaties of the United States.

(Emphasis added.)

As the State correctly notes, a Ford claim (incompetency to be executed) does not invalidate the conviction or sentence, and Davis would not be entitled to be released from custody even if he were found incompetent in this regard. Instead, “the only question raised is not whether, but when, his execution may take place.” Ford, 477 U.S. at 425, 106 S.Ct. at 2610 (Powell, J., concurring) (emphasis in original).

Nevertheless, we must reject this contention. Section 2254(a) was not amended by AEDPA. Ford is a habeas case, and our court has considered Ford claims in habeas proceedings. See Fearance v. Scott, 56 F.3d 633, 640 (5th Cir.) (pre-AEDPA case rejecting Ford claim on the merits), cert. denied, 515 U.S. 1153, 115 S.Ct. 2603, 132 L.Ed.2d 847 (1995); Barnard v. Collins, 13 F.3d 871 (5th Cir.) (pre-AEDPA case denying certificate of probable cause as to Ford claim), cert. denied, 510 U.S. 1102, 114 S.Ct. 946, 127 L.Ed.2d 363 (1994).

B.

Accordingly, we turn to Davis’ contentions. Both Fearance and Barnard noted that no federal ease had denied relief on a Ford claim on grounds of abuse of the writ; but, as noted, both were pre-AEDPA cases. In short, the gatekeeping provisions of § 2244(b) were not applicable. See Fearance, 56 F.3d at 640; Barnard, 13 F.3d at 878.

1.

Davis concedes that he cannot satisfy § 2244(b)(2)(B) (concerning guilt), but contends that subpart (b)(2)(A) can be interpreted to permit consideration of his Ford claim in a successive habeas application. Again, ‘that subpart requires showing “that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable”. (Emphasis added.)

Davis maintains that Ford applies retroactively and is “solely applicable” to cases involving death penalty defendants whose mental states prevent an understanding of the nature and consequences of the pending execution. He asserts that, therefore, Ford is a “new rule of constitutional law” because it is applicable for the “first time” only when both the execution date is imminent and the petitioner is incompetent. He states also that Ford was “previously unavailable” to him because a Ford claim is premature until both an execution date is set and the applicant is incompetent.

Davis’ proposed interpretation is at odds with the plain language of subpart (b)(2)(A). Needless to say, the 1986 decision in Ford is not a new rule of constitutional law. The legal basis of Davis’ claim has been available since at least 1986; it is only the factual basis of the claim that was previously unavailable. Accordingly, Davis cannot satisfy the criteria of § 2244(b)(2)(A).

2.

Davis maintains that we should interpret § 2244(b) in the light of the fact that its purpose is to prevent abuse of the writ in federal habeas cases. He asserts that his Ford claim does not constitute such an abuse, because he could not have raised the claim previously, inasmuch as it was unavailable until he was both incompetent and his execution scheduled. Accordingly, he contends that Medina is distinguishable because the movant failed to present his Ford claim at the first available opportunity. Although we agree that § 2244(b) is designed to prevent abuse of the writ, and will assume that Davis is seeking to assert his Ford claim at the first properly available opportunity, we cannot disregard the plain wording of § 2244(b) in order to create such an equitable exception.

3.

Anticipating our holding, discussed supra, that his Ford claim does not satisfy the criteria of § 2244(b)(2)(A), Davis con-, tends alternatively that § 2244(b) is unconstitutional, because it precludes consideration by a federal court of a mature Ford claim presented for the first time. See U.S. Const., Art. I, § 9, cl. 2 (“The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require-it”). We disagree, for the reasons stated by the Eleventh Circuit in Medina, 109 F.3d at 1564.

Assuming arguendo that Ford guarantees a federal court determination of a competency-to-be-exeeuted claim, the relevant provisions of AEDPA do not foreclose such review. A federal court determination of the issue can be sought through Supreme Court review of the state court competency proceedings. As noted, the state court’s opinion did not address Davis’ motion for a competency hearing; Davis chose not to seek such review of that decision. Alternatively, the claim can be raised in an original habeas application to the Supreme Court.

III.

For the foregoing reasons, leave to file a successive habeas application is

DENIED.  