Edwards v. Thaler, Director TDCJ-CID

Filing 91

Memorandum Opinion and Order: Edwards' motion for relief under Rule 60(b) seeks to advance new claims, it is considered a successive petition that this Court lacks jurisdiction to consider and is transferred to the United States Court of Appea ls for the Fifth Circuit along with the applications to stay his execution. The Clerk of Court is DIRECTED to open for statistical purposes a new civil action (nature of suit 535-death penalty habeas corpus-assigned to the same district judge) and to close the same on the basis of this Order. The Court GRANTS a certificate of appealability. Re: 83 Motion to Vacate filed by Terry Darnell Edwards. (Ordered by Chief Judge Barbara M.G. Lynn on 1/19/2017) (mem)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
TERRY DARNELL EDWARDS,
Petitioner,

v.
LORIE DAVIS, Director,
Texas Department of Criminal Justice
Cmrnctional Institutions Division,
Respondent.

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Civil Action No. 3:10-CV-6-M
(Death Penalty Case)

MEMORANDUM OPINION AND ORDER
TRANSFERRING SUCCESSIVE HABEAS PETITION
On Janumy 10, 2017, Petitioner Terry Darnell Edwards, a Texas death-row inmate set for
execution on J anumy 26, filed a document purporting to be a motion to alter or amend judgment
under Rule 60(b) of the Federal Rules of Civil Procedure (Motion, doc. 83). On Januaty 13,
Edwards file his related request to stay his execution (Stay Application, doc. 87), and on Janumy 17,
his amended request (Amended Stay Application, doc. 88). On Janumy 17, Respondent filed a
response in opposition (Response, doc. 89). Because Edwards' motion for relief under Rule 60(b)
seeks to advance new claims, it is considered a successive petition that this Court lacks jurisdiction
to consider and is transferred to the United States Court of Appeals for the Fifth Circuit along with
the applications to stay his execution.

I. PROCEDURAL HISTORY
Edwards was convicted of capital murder and sentenced to death as a party to the July 2002
robbery and murder of two clerks in the sandwich shop where his employment had been terminated.
(Mem. Op. and Order, doc. 22, at 1-2.) His conviction and sentence were affirmed on direct appeal.

Edwards v. State, No. AP 74,844, 2006 WL 475783 (Tex. Crim. App. 2006). Edwards filed an
application for a post-conviction writ of habeas corpus in state court that was denied by the Texas
Court of Criminal Appeals ("CCA"). Ex parte Edwards, No. WR-73027-01, 2009 WL 4932198
(Tex. Crim. App. 2009). Edwards then filed a petition for writ of habeas corpus in this court
(Petition, doc. 6), asserting six grounds for relief:
1. The trial court's denial of Edwards' motion to quash a panel ofvenirepersons that
included James Redden deprived Edwards of a fair and impartialjmy (Pet. at 30-34);
2. The trial court's grant of the State's challenge for cause of prospective juror
Cecelia Hurley deprived Edwards of a fair and impartial jmy (Pet. at 35-39);
3. The trial court's grant of the State's challenge for cause of prospective juror Byron
Keith Tatum deprived Edwards of a fair and impartial jmy (Pet. at 35-39);
4. Trial counsel's failure to challenge the Dallas County venire selection process as
violating Edwards' right to a jmy consisting of a fair cross section of the community
constituted ineffective assistance of counsel (Pet. at 39-47);
5. The trial court's denial of his challenges for cause of prospective jurors Bobby
Jack Sims and Edward Hernandez deprived Edwards of a fair and impartialjmy (Pet.
at 47-49); and
6. The failure of Edwards' counsel on direct appeal to raise any claims regarding the
improper denial ofEdwards' challenges for cause of Sims and Hernandez constituted
ineffective assistance (Pet. at 50).
(Mem. Op. and Order at 2.) This Court denied relief. Edwards v. Stephens, 2014 WL 3880437
(N.D. Tex. Aug. 6, 2014), certificate of appealability denied, 612 F. App'x 719 (5th Cir.), cert.

denied, 136 S. Ct. 403 (2015). Edwards now seeks to alter or amend that judgment under Rule 60(b)
of the Federal Rules of Civil Procedure.

II. GROUNDS
Edwards' motion for Rule 60(b) relief seeks to reopen the habeas corpus proceedings for the

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purpose of presenting new claims for habeas relief that (1) his jmy selection was constitutionally
flawed in that (a) the prosecutor and defense counsel improperly agreed to excuse jurors in violation
of Batson v. Kentucky, 476 U.S. 79 (1986), (b) unqualified jurors were seated on the jmy, (c) seated
jurors improperly engaged in premature deliberations, and (d) the jmy foreperson was seated despite
making materially false representations (Mot. at 34-41 ), (2) Edwards was not the shooter as the
prosecutor argued to the juty that convicted and sentenced him to death (Mot. at 41-63), (3) the
prosecutor introduced false evidence of a prior unadjudicated extraneous offense to get the death
penalty (Mot. at 64-68), (4) the prosecutor failed to disclose exculpatory evidence that Edwards was
not the shooter and that he did not commit the extraneous offense as they argued (Mot. at 42-68),
and (5) trial counsel were ineffective in agreeing with the prosecutor to excuse jurors and in failing
to investigate and present readily available evidence that Edwards was not the shooter, did not
commit the extraneous offense, and that his family and the victim's family would have testified in
mitigation of the death penalty (Mot. at 34-68). Edwards also requests a stay of his execution (Stay
App.; Am. Stay App.).
In her response, Respondent asserts that Edwards' Motion constitutes a second or successive
habeas petition that this Court does not have jurisdiction to consider because it has not been
authorized by the United States Court of Appeals for the Fifth Circuit in accordance with 28 U.S.C.

§ 2244(b )(3). (Resp. at 17-20). Respondent argues that Rule 60(b) reliefis not available to Edwards
because the grounds presented do not constitute a defect in the integrity of the proceedings and do
not constitute the extraordinary circumstances required for Rule 60(b) relief. (Resp. at 4-15.)
Respondent also asserts that the motion is untimely. (Resp. at 15-17.) In the alternative, Respondent
argues that Edwards' claims are time-barred, procedurally barred, and meritless. (Resp. at 20-50.)

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Finally, Respondent argues that a stay of execution is not warranted. (Resp. at 50-56.)

III.LAW
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) limits the
circumstances under which a state prisoner may file a successive application for federal habeas relief.
See Pub. L. I 04-132, 110 Stat. 1214 (1996). A petition is successive when it raises a claim that was

or could have been raised in an earlier petition. See Hardemon v. Quarterman, 516 F.3d 272, 275
(5th Cir. 2008). A claim presented in a second or successive application under Section 2254 must
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 Comi, 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.

28 U.S.C. § 2244(b)(2). That determination must be made by a three-judge panel of the Court of
Appeals before Edwards may file his application in federal district court. Id. § 2244(b)(3).

IV. ANALYSIS
As Edwards acknowledges, a previous habeas challenge to his conviction has been denied
by this Court. See Edwards v. Thaler, No. 3:07-cv-1284-P, 2011 WL 1666937 (N.D. Tex. May 3,
2011), COA denied, 695 F.3d 372 (5th Cir. 2012), cert. denied, No. 12-7748, 2013 WL 1091816
(Mar. 18, 2013). The threshold jurisdictional question is whether Edwards' motion advances one
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or more claims that were, or could have been, made in the earlier petition. This distinguishes a
motion made under Rule 60(b) from a successive petition under 28 U.S.C. § 2244(b ).

A. Jurisdiction
In Gonzalez v. Crosby, 545 U.S. 524 (2005), the Supreme Court provided guidance on
whether a motion filed under Rule 60(b) should be constrned as a successive petition under§ 2244.
In some instances, a Rule 60(b) motion will contain one or more "claims."
For example, it might straightforwardly assert that owing to "excusable neglect," Fed.
Rule Civ. Proc. 60(b)(l), the movant's habeas petition had omitted a claim of
constitutional error, and seek leave to present that claim. Cf Harris v. United States,
367 F.3d 74, 80-81(C.A.22004) (petitioner's Rule 60(b) motion sought relief from
judgment because habeas counsel had failed to raise a Sixth Amendment claim).
Similarly, a motion might seek leave to present "newly discovered evidence," Fed.
Rule Civ. Proc. 60(b )(2), in support of a claim previously denied. E.g., Rodwell v.
Pepe, 324 F.3d 66, 69 (C.A.1 2003). Or a motion might contend that a subsequent
change in substantive law is a "reason justifying relief," Fed. Rule Civ. Proc.
60(b )(6), from the previous denial ofa claim. E.g., Dunlap v. Litscher, 301 F.3d 873,
876 (C.A.7 2002). Virtually eve1yCourt of Appeals to consider the question has held
that such a pleading, although labeled a Rule 60(b) motion, is in substance a
successive habeas petition and should be treated accordingly. E.g., Rodwell, supra,
at 71-72; Dunlap, supra, at 876.
We think those holdings are correct. A habeas petitioner's filing that seeks
vindication of such a claim is, if not in substance a "habeas cmpus application," at
least similar enough that failing to subject it to the same requirements would be
"inconsistent with" the statute.
Id. at 530-31.
Although recognizing that "Rule 60(b) may not itself be used to raise new claims for habeas
corpus relief after a first habeas corpus proceeding has become final" (Mot. at 29), Edwards' motion
expressly sets forth its purpose "to reopen [the] judgment in order for Mr. Edwards ... to then present
meritorious claims that his previously lawyers failed to develop and othe1wise completely

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ignored." 1 (Mot. at I.) The motion seeks to rectify "the severe constitutional violations in this case
that are at risk of going unaddressed." (Mot. at 68.) Edwards plainly seeks to reopen his case to
present new claims.
"Using Rule 60(b) to present new claims for relief from a state court's judgment of
conviction-even claims couched in the language of a true Rule 60(b) motion-circumvents AEDP A's
requirement that a new claim be dismissed unless it relies on either a new rule of constitutional law
or newly discovered facts." Gonzalez, 545 U.S. at 531 (citing§ 2244(b)(2)). In announcing this
rule, the Supreme Comi cited with approval the opinion in Harris v. United States, 367 F.3d 74 (2d
Cir. 2004), in which the United States Comi of Appeals for the Second Circuit rejected an attempt
to reopen a case under Rule 60(b) to present a claim that was missed because of the asse1ied
ineffective assistance of prior federal habeas counsel. The Supreme Court observed that "[i]n most
cases, detennining whether a Rule 60(b) motion advances one or more 'claims' will be relatively
simple. A motion that seeks to add a new ground for relief, as in Harris, supra, will of course
qualif)'." Gonzalez, 545 U.S. at 532.
Since Edwards seeks to add new grounds for relief from his state-court conviction and
sentence, his motion "advances one or more claims" under this standard. Because he seeks to raise
claims "challenging the petitioner's conviction or sentence that was or could have been raised in an
earlier petition," it is successive. In re Sepulvado, 707 F.3d 550, 553 (5th Cir. 2013) (quoting In re
Cain, 137 F.3d 234, 235 (5th Cir.1998)). Therefore, his motion appears to be a successive habeas

'This purpose was repeated throughout the motion. "Upon reopening, substituted counsel would bring
n1eritorious clai1ns." (Mot. at 29). "In this case, the equities require judicial intervention, so that the severe constitutional
infinnities may be heard." (Id.) "If Reopened, Petitioner Would Have Various Procedural Avenues To Bring
Meritorious Claims." (Id.) "Mr. Edwards will raise these claims in an amended petition after this Court reopens the
case." (Id. at 34 n.20).

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petition that requires Circuit authorization before this Court has jurisdiction under 28 U.S.C. §
2244(b).

B. Rule 60(b! Relief
Edwards asserts that he is not attacking the substance of the federal court's denial of relief,
but challenging a defect in the integrity of the federal habeas proceedings. (Mot. at 16-18.) This is
a close question.
Edwards relies upon Clark v. Stephens, 627 F. App'x 305 (5th Cir. 2015), an unpublished
opinion granting a ce1iificate of appealability to appeal a district court's denial of a Rule 60(b)
motion because reasonable jurists could debate whether habeas counsel's conflict of interest could
warrant relief from the judgment. The cited opinion states,
The State argues that Clark's Rule 60(b)(6) motion should be construed as an
impermissible successive habeas petition. Relying on Gonzalez v. Crosby, the State
asserts that Clark should not be able to use a Rule 60(b) motion to relitigate the
merits of his IATC claim. A Rule 60(b) motion is not successive under Gonzalez if
it attacks "not the substance of the federal court's resolution of a claim on the merits,
but some defect in the integrity of the federal habeas proceedings." However, a Rule
60(b) motion based on "habeas counsel's omissions ordinarily does not go to the
integrity of the proceedings, but in effect asks for a second chance to have the merits
determined favorably."

Id. at 308 (footnotes omitted) (quoting Gonzalez, 545 U.S. at 532 n.5). In that opinion, the Court
of Appeals did not resolve this question in holding that reasonable jurists could debate whether the
federal habeas proceeding was defective. See id. at 309. Although it is not clear, the holding in

Clark appears to make a distinction between an ordinary omission and a conflict of interest that
prevents counsel from arguing his own ineffectiveness as state habeas counsel.
In Clark, the original federal habeas petition asserted a claim that trial counsel was
ineffective for failing to present mitigating evidence at trial and was supported by new evidence that

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was not presented to the state court. Under Cullen v. Pinholster, 563 U.S. 170 (2011), the Court of
Appeals refused to consider this new evidence and affirmed the denial of his petition. See id. at 306.
In his Rule 60(b) motion, Clark argued that the new evidence was substantial and would have
fundamentally altered his claim, making it an unexhausted claim that would have come within the
Martinez exception to procedural bar and could have been considered. See Clark, 627 F. App'x at
308 (citing Martinez v. Ryan, 132 S. Ct. 1309 (2012)). The issue presented in Clark was whether
his original federal habeas counsel had a conflict of interest because he also served as Clark's state
habeas counsel and, in light of the Supreme Court's decisions in Martinez and Trevino, could not
have been expected to argue his own ineffectiveness to overcome the procedural default. See id. at
307-08. Edwards does not present this type of conflict.
Edwards does not claim that his original federally appointed counsel Rick Wardroup also
represented him in state court. Edwards acknowledges, and the record plainly shows, that he was
represented by a different attorney, C. Wayne Huff, in the state habeas proceedings. (Mot. at 11.)
Edwards does not asse11 that Mr. Wardroup had any connection with Mr. Huff, had any involvement
in Edwards' representation in the prior state comt proceedings, or was in any way ethically
prohibited from complaining of the ineffective assistance of any of his prior attorneys at any time
before the original federal habeas petition was filed on December 15, 2010 or the AEDP A
limitations period expired the next day. Therefore, he has not shown the type of conflict of interest
presented in Clark.
Instead, Edwards argues that four months after his petition was filed and the limitations
period expired Wardroup accepted full-time employment with the Texas Criminal Defense Lawyers
Association and ceased working on Edwards' case. (Mot. at 12-15, 20-26.) This Court is deeply

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troubled by the allegations of abandonment by federally appointed counsel. But as unfmiunate as
that may be, Edwards has not shown how that could have impacted anything that was, or could have
been, presented during the limitations period that had expired months before such employment
began. Edwards has not identified any claim that had been asse1ied in his original habeas petition
that could have benefitted from any change in law resulting from Martinez. Since Martinez did not
create a new rnle of constitutional law made retroactive on collateral review within the meaning of
28 U.S.C. § 2244, it did not start a new one-year statnte oflimitations period under the AEDP A. See

In re Paredes, 587 F. App'x 805, 813-14 (5th Cir. 2014); Adams v. Thaler, 679 F.3d 312, 322 n.6
(5th Cir. 2012). Therefore, any newly asse1ied claims would then have been subject to a time bar.2
The holding in Clark that an attorney's conflict of interest could constitute a defect in the
integrity ofhabeas proceedings does not appear to support Rule 60(b) relief when a Martinez conflict
is not presented and Martinez is not otherwise shown to have an impact on this case. Therefore,
Edwards' motion does not wairnnt relief under Rule 60(b). Even so, reasonable jurists may differ
on whether the abandonment by counsel could be the sort of defect in the integrity of the federal
habeas proceedings that could warrant Rule 60(b) relief.

C. Successive Petition
Edwards seeks to reopen the prior proceedings to make new claims that were not, but could
have been, asserted by prior federal habeas counsel. His motion constitutes a successive habeas
petition that requires authorization under 28 U.S.C. § 2244(b )(3). Because the Court of Appeals has

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Although Edwards argues that his proposed new claims would "relate back" to the original habeas petition,
he does not identify any claims asserted in that original petition that the new claims would relate back to. (Mot. at 31-

32.) Further, Respondent points out that ne\vevidence could not be considered in support of any exhausted clain1s under
Pinholster. (Resp. at 22-23 (citing Mayle v. Felix, 545 U.S. 644, 664 (2005) ).)

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not issued an order authorizing this Court to consider this successive Section 2254 petition, this
Court is without jurisdiction to do so. This Court may either dismiss the motion for lack of
jurisdiction, or it may transfer it to the Court of Appeals. See In re Hartzog, 444 F. App'x 63, 654
(5th Cir. 2011) (citing United States v. Key, 205 F.3d 773, 774 (5th Cir. 2000)).
"Normally transfer will be in the interest of justice because normally dismissal of an action
that could be brought elsewhere is time consuming and justice-defeating." Millen'. Hambrick, 905
F.2d 259, 262 (9th Cir. 1990). These concerns are heightened when considering whether to stay an
execution. See, e.g., Ford v. Wainwright, 477 U.S. 399, 411 (1986) (discussing special concerns
arising in capital proceedings leading up to an execution); Heam v. Thaler, No. 3:12-CV-2140-D,
2012 WL 2715653 (N.D. Tex., July 9, 2012) (Fitzwater, C.J.). The Court finds that it is in the
interest of justice to transfer the motion to the Comt of Appeals rather than dismiss.

D, Motions to Stai• Execution
In connection with his motion to obtain Rule 60(b) relief, Edwards has filed an original and
amended application to stay his execution (Stay App., doc. 87; Am. Stay App., doc. 88). This
Court's jurisdiction to grant these motions relies upon jurisdiction to consider the motion to obtain
Rule 60(b) relief. Because this Comt lacks jurisdiction over the motion for Rule 60(b) relief, it lacks
jurisdiction to rule on these motions as well. See Hawkins v. Stephens, No. 2:14-CV-314, 2015 WL
3882422, at *l (S.D. Tex. June 17, 2015) (Ramos, J.), appeal dismissed (5th Cir. Feb. 29, 2016)
(citing United States v. Key, 205 F.3d 773, 775 (5th Cir. 2000); In re Sepulvado, 707 F.3d at 552.
It is in the interest of justice to transfer these motions to the Comt of Appeals as well.

JO

* * *
Edwards' motion for relief under Rule 60(b) (doc. 83) is a successive application for habeas
relief and is TRANSFERRED to the United States Court of Appeals for the Fifth Circuit along with
the original and amended applications to stay his execution (doc. 87, 88) See Henderson v. Haro,
282 F.3d 862, 864 (5th Cir. 2002).
The Clerk of Court is DIRECTED to open for statistical purposes a new civil action (nature
of suit 535-death penalty habeas corpus-assigned to the same district judge) and to close the same
on the basis of this Order.
Considering the record in this case and pursuant to Federal Rule of Appellate Procedure
22(b), Rule 1 l(a) of the Rules Governing§§ 2254 and 2255 proceedings, and 28 U.S.C. § 2253(c),
the Court GRANTS a certificate of appealability on the question of whether the effective
abandomnent of Petitioner by his federally appointed habeas counsel constitutes a defect in the
integrity of the original habeas proceedings that may authorize Rule 60(b) relief in this Court.
Reasonable jurists would find it "debatable whether [this Comt] was correct in its procedural ruling."

Slack v. McDaniel, 529 U.S. 473, 484 (2000). Petitioner has previously been allowed to proceed in
forma pauperis and this status is continued for purposes of appeal. (Mem. Op. and Order, doc. 22,
at 29.)
SO ORDERED this

J9- day of January,

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