Gilmar Guevara v. William Stephens, Director

Filing

UNPUBLISHED OPINION ORDER FILED. [16-70004 Affirmed ] Judge: ECP , Judge: PRO , Judge: JEG; denying motion for certificate of appealability filed by Appellant Mr. Gilmar Alexander Guevara [8169474-2] [16-70004]

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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 16-70004

United States Court of Appeals
Fifth Circuit

FILED
GILMAR ALEXANDER GUEVARA,

February 9, 2017

Petitioner–Appellant,

Lyle W. Cayce
Clerk

v.
LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,
Respondent–Appellee.

Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:08-CV-1604
Before PRADO, OWEN, and GRAVES, Circuit Judges.
PER CURIAM:*
Gilmar Alexander Guevara requests that this court grant a certificate of
appealability (COA) to review the district court’s denial of his Federal Rule of
Civil Procedure 60(b)(6) motion for relief from judgment.

Because no

reasonable jurist could conclude that the district court abused its discretion in
denying the motion, we deny the application for a COA.

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
*

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I
Guevara was convicted of capital murder and sentenced to death in
Texas state court in 2001. After unsuccessfully appealing, 1 he filed a state
post-conviction application.

Before the Texas Court of Criminal Appeals

(TCCA) had ruled on the post-conviction application, he filed a subsequent
application raising additional claims based on Atkins v. Virginia, which
prohibits the imposition of the death penalty when a defendant is intellectually
disabled. 2 He asserted that he could make a prima facie case for intellectual
disability, entitling him to an evidentiary hearing on the issue. The TCCA
dismissed the subsequent application as an abuse of the writ because the
application failed to meet any one of the exceptions provided in Texas Code of
Criminal Procedure art. 11.071, § 5(a) that would permit a subsequent
application to be filed. 3
Guevara filed a federal habeas petition in 2008, again raising an Atkins
claim. The district court construed the TCCA’s dismissal of Guevara’s Atkins
claim as a ruling on the merits, allowing consideration of the claim on federal
habeas. 4 The court acknowledged that it should not review the claim with
deference to the state court through the lens of the Antiterrorism and Effective
Death Penalty Act (AEDPA) 5 if the “state court dismisse[d] a prima facie valid
Atkins claim without having afforded the petitioner an adequate opportunity

See Guevara v. State, 97 S.W.3d 579, 584 (Tex. Crim. App. 2003).
536 U.S. 304, 321 (2002).
3 Ex parte Guevara, Nos. WR-63,926-01, WR-63,926-02, 2007 WL 1493152 (Tex. Crim.
App. May 23, 2007) (per curiam).
4 Guevara v. Thaler, No. 08-1604, slip op. at 9 (S.D. Tex. Sept. 25, 2014); see Rocha v.
Thaler, 619 F.3d 387, 400 (5th Cir. 2010) (“A federal court is precluded from considering a
state prisoner’s habeas petition if the underlying state decision rests on an adequate and
independent state ground, such as a state procedural bar.”).
5 28 U.S.C. § 2254(d)(2).
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to develop the claim.” 6

Thus, the district court first determined whether

Guevara had made a prima facie claim of intellectual disability. 7 The court
concluded that “the evidence Guevara put before the state court did not make
a prima facie showing.” 8 The court then reviewed the claim under AEDPA,
which allows relief only if the state court’s adjudication of the claim “resulted
in a decision that was based on an unreasonable determination of the facts in
light of the evidence presented in the State court proceeding.” 9

Because

Guevara made his intellectual disability claim in a successive habeas petition,
the Texas court would review the claim only if he made “a threshold showing
of evidence that would be at least sufficient to support an ultimate conclusion,
by clear and convincing evidence, that no rational factfinder would fail to find
mental retardation.” 10

The district court concluded that “[u]nder AEDPA’s

deferential standards . . . Guevara has not shown that his Atkins claim
entitles him to habeas relief.” 11
Guevara moved for a COA in this court. 12 We agreed with the district
court that “Guevara did not make a prima facie case for an intellectual
disability,” and “[t]hus, the district court properly analyzed this claim under
the AEDPA.” 13 We denied the COA, concluding that “reasonable jurists could
not debate the underlying constitutional claim.” 14

Guevara, No. 08-1604, slip op. at 9-10 (citing Blue v. Thaler, 665 F.3d 647, 657 (5th
Cir. 2011)).
7 Id. at 11-21.
8 Id. at 11.
9 Id. at 21 (quoting 28 U.S.C. § 2254(d)(2)).
10 Id. at 4; Ex parte Blue, 230 S.W.3d 151, 163 (Tex. Crim. App. 2007) (citing TEX.
CODE CRIM. PROC. art. 11.071 § 5(a)(3)).
11 ROA.1321.
12 Guevara v. Stephens, 577 F. App’x 364, 365-66, 373 (5th Cir. 2014) (per curiam),
cert. denied, 135 S. Ct. 1892 (2015).
13 Id. at 373.
14 Id.
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Fourteen months later, Guevara filed a Rule 60(b)(6) motion in the
district court to reopen and reverse the prior ruling. The district court denied
the motion and declined to issue a COA. 15 Guevara filed a notice of appeal
with this court.
II
Guevara asks that this court issue a COA to review the district court’s
denial of Rule 60(b)(6) relief. Rule 60(b)(6) permits a court to relieve a party
from a final judgment for “any . . . reason that justifies relief.” 16 “While Rule
60(b)(6) is commonly referred to as a ‘grand reservoir of equitable power to do
justice,’ the rule is only invoked in ‘extraordinary circumstances.’” 17 “[T]he
decision to grant or deny relief under Rule 60(b) lies within the sound
discretion of the district court and will be reversed only for an abuse of that
discretion.” 18
We lack authority to entertain an appeal of an adverse final order in a
habeas case unless a circuit justice or judge certifies the appeal by issuing a
COA, 19 and we will issue a COA “only if the applicant has made a substantial
showing of the denial of a constitutional right.” 20 When a petition is denied on
procedural grounds,
a COA should issue when the prisoner shows, at least, that jurists
of reason would find it debatable whether the petition states a
valid claim of the denial of a constitutional right and that jurists
of reason would find it debatable whether the district court was
correct in its procedural ruling. 21
Guevara v. Stephens, No. H-08-1604, 2016 WL 305220 (S.D. Tex. Feb. 15, 2016).
FED. R. CIV. P. 60(b)(6).
17 Rocha v. Thaler, 619 F.3d 387, 400 (5th Cir. 2010) (quoting Williams v. Thaler, 602
F.3d 291, 311 (5th Cir. 2010)).
18 Hernandez v. Thaler, 630 F.3d 420, 428 (5th Cir. 2011) (per curiam) (internal
quotation marks omitted) (alteration in original) (quoting Rocha, 619 F.3d at 400).
19 28 U.S.C. § 2253(c)(1).
20 Id. § 2253(c)(2).
21 Slack v. McDaniel, 529 U.S. 473, 484 (2000).
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On Guevara’s motion for a COA, “we must determine whether a
jurist of reason could conclude that the district court’s denial of [the]
motion was an abuse of discretion.” 22
Because Guevara has been sentenced to death, “any doubts as to whether
a COA should issue must be resolved in [his] favor.” 23
III
The core of Guevara’s claim is that the district court, when deciding
Guevara’s original habeas petition, did not use the correct evidentiary
standard in evaluating whether Guevara had made a prima facie case of
intellectual disability. Guevara acknowledges that the district court identified
the appropriate controlling precedent, but argues that, although the district
court “gestur[ed] superficially towards the prima facie standard,” the court
“required him to prove [intellectual disability]—and allowed evidentiary
inferences to be drawn against him.”
Guevara advanced similar arguments in his prior appeal to this court,
arguing that the district court, in determining that he had not made the
requisite showing, improperly “conducted a deep dive, weighed the evidence,
and resolved many questions of fact against Mr. Guevara.” We disagreed,
stating “Guevara did not make a prima facie case for an intellectual
disability.” 24 We denied a COA, and the Supreme Court denied certiorari. 25
Guevara’s Rule 60(b)(6) motion pressed the same argument. Guevara
argued that a recent Supreme Court decision, Brumfield v. Cain, 26 “together
Hernandez, 630 F.3d at 428.
Foster v. Quarterman, 466 F.3d 359, 364 (5th Cir. 2006) (alteration in original)
(citing Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir. 2000)).
24 Guevara v. Stephens, 577 F. App’x 364, 373 (5th Cir. 2014) (per curiam), cert. denied,
135 S. Ct. 1892 (2015).
25 Id.
26 135 S. Ct. 2269 (2015).
22
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with the capital status of his case and the strength of his underlying Atkins
claim, constituted ‘extraordinary circumstances’ warranting Rule 60(b)(6)
relief.” Guevara contends that Brumfield “affirmed the argument that Mr.
Guevara has made throughout this litigation—that Mr. Guevara was entitled
to federal merits review because the district court misapplied the evidentiary
standard in its screening phase analysis.”
In Brumfield, the Supreme Court held that a Louisiana state habeas
court had improperly denied an inmate an Atkins hearing, such that the court’s
disposition was “based on an unreasonable determination of the facts in light
of the evidence presented” and thus not entitled to deference under 28 U.S.C.
§ 2254(d)(2). 27 The Supreme Court reasoned that although the controlling
Louisiana precedent, State v. Williams, 28 required only that an inmate raise a
“reasonable doubt” as to his intellectual disability for a hearing to be necessary,
the state court had unreasonably dismissed evidence of a possible intellectual
disability. 29
Guevara acknowledges that Brumfield does not require that all states
use the “reasonable doubt” standard Louisiana used. He instead states that
“[u]nder Brumfield, a federal court is supposed to evaluate the reasonableness
of the state screening determination by reference to the state screening
standard.” Guevara simply argues the Brumfield decision “affirmed” that the
district court erred in his case by misapplying the prima facie standard.

Id. at 2273, 2276 (internal quotation marks omitted) (quoting 28 U.S.C.
§ 2254(d)(2)).
28 831 So. 2d 835 (La. 2002).
29 Brumfield, 135 S. Ct. at 2281-82.
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However, Guevara’s argument misconstrues the district court’s original
opinion.
The district court found both that Guevara did not make a prima facie
case of intellectual disability 30 and that, under AEDPA’s deferential standards,
the TCCA “was not unreasonable in finding that Guevara had not shown that
he was mentally retarded.” 31 Guevara appears to ignore the district court’s
first finding that Guevara did not make a prima facie showing, and instead
cites to language in the second that he “had not shown” that he was
intellectually disabled. In prior proceedings, we concluded that the district
court correctly determined that Guevara did not make a prima facie case. 32
Brumfield does not alter that conclusion.
Even if Brumfield were a change in decisional law that benefited
Guevara, “‘[a] change in decisional law after entry of judgment does not
constitute exceptional circumstances and is not alone grounds for relief from a
final judgment’ under Rule 60(b)(6).” 33 Guevara, acknowledging that a change
in decisional law is “insufficient without more to justify Rule 60(b)(6) relief,” 34
urges us to consider other factors that he claims together create exceptional
circumstances. He points to the strength of his underlying claim, his diligence,
and the capital nature of his sentence, along with the district court’s alleged
prima facie error.
Guevara presents no reason to change our assessment of these additional
factors. We have already considered the strength of his underlying Atkins

Guevara v. Thaler, No. 18-1604, slip op. at 9-21 (S.D. Tex. Sept. 25, 2014).
Id. at 23.
32 Guevara v. Stephens, 577 F. App’x 364, 373 (5th Cir. 2014) (per curiam), cert. denied,
135 S. Ct. 1892 (2015).
33 Hernandez v. Thaler, 630 F.3d 420, 430 (5th Cir. 2011) (per curiam) (alteration in
original) (quoting Bailey v. Ryan Stevedoring Co., 894 F.2d 157, 160 (5th Cir. 1990)).
34 Batts v. Tow-Motor Forklift Co., 66 F.3d 743, 749 (5th Cir. 1995).
30
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claim, concluding that he did not make a prima facie case. 35 Though “any
doubts as to whether a COA should issue must be resolved in [his] favor” 36
because of his capital sentence, there are no doubts here. Even when taking
each factor together as a whole, a reasonable jurist could not conclude that the
district court abused its discretion in finding that these circumstances were
not extraordinary.
*

*

*

For the foregoing reasons, the motion for a COA is DENIED.

Guevara, 577 F. App’x at 373 (“In state habeas proceedings he presented no fullscale results from an accepted IQ test. He presented a full-scale IQ score of 77 on one test,
the TONI–2, which Texas courts do not find to be a valid measure of intellect. On various
sections of various other IQ tests, his scores ranged from 60 to 91. He presented no evidence
at all that any intellectual disability he had appeared before the age of 18. His expert's
evidence conflicted with much of the other evidence presented about Guevara’s intellectual
abilities, such as his ability to excel at various jobs and learn new skills.” (citation omitted)).
36 Foster v. Quarterman, 466 F.3d 359, 364 (5th Cir. 2006) (alteration in original)
(citing Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir. 2000)).
35

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