Hearn v. Thaler, Director TDCJ-CID

Filing 6

MEMORANDUM OPINION AND ORDER granting 2 Motion for Leave to Proceed in forma pauperis filed by Yokamon Laneal Hearn, denying 3 Motion to Stay filed by Yokamon Laneal Hearn, dismissing petition of Yokamon Laneal Hearn for a writ of habeas corpus for want of jurisdiction, and denying certificate of appealability. (Ordered by Chief Judge Sidney A Fitzwater on 7/9/2012) (Chief Judge Sidney A Fitzwater)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
YOKAMON LANEAL HEARN,
Petitioner,
VS.
RICK THALER, Director,
Texas Department of Criminal Justice
Correctional Institutions Division,
Respondent.

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§ Civil Action No. 3:12-CV-2140-D
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MEMORANDUM OPINION
AND ORDER
Petitioner Yokaman Laneal Hearn (“Hearn”), who is scheduled for execution on July
18, 2012, filed a petition for a writ of habeas corpus, motion to proceed in forma pauperis,
and motion for a stay of execution. Yesterday, he filed a notice of recent relevant authority
that acknowledges that this court can do nothing but dismiss his petition. For the reasons
explained, the court grants Hearn’s motion to proceed in forma pauperis, dismisses his
petition for want of jurisdiction as successive, and denies his motion to stay execution.
I
Hearn was convicted and sentenced to death for the capital murder of Joseph Franklin
Meziere (“Meziere”), during which Hearn and three accomplices abducted Meziere from a
car wash and drove him to a remote location where Hearn shot Meziere several times in the
head at close range. See Hearn v. State, No. 73,371, slip op. at 3 (Tex. Crim. App. Oct. 3,
2001) (en banc) (per curiam). Hearn’s conviction and death sentence were affirmed by the

Texas Court of Criminal Appeals (“CCA”) on direct appeal, and the Supreme Court denied
his petition for a writ of certiorari. See Hearn v. Texas, 535 U.S. 991 (2002). The CCA
denied post-conviction habeas corpus relief in an unpublished order based on the state trial
court’s findings and conclusions and its own review of the record. See Ex parte Hearn, No.
50,116–01 (Tex. Crim. App. Nov. 14, 2001) (en banc) (per curiam). Hearn filed a petition
for federal habeas relief in this court, which was denied. See Hearn v. Cockrell, 2002 WL
1544815 (N.D. Tex. July 11, 2002) (Fitzwater, J.), cert. of appealability denied, Hearn v.
Cockrell, 73 Fed. Appx. 79 (5th Cir.), cert. denied, Hearn v. Dretke, 540 U.S. 1022 (2003).
On the eve of his scheduled execution, Hearn filed a successive habeas action in this
court pursuant to Atkins v. Virginia.1 The court transferred the petition to the court of
appeals, which stayed the execution and authorized Hearn to pursue a successive habeas
petition under Atkins. See In re Hearn, 418 F.3d 444, 448 (5th Cir. 2005). This court later
granted a stay and abatement to allow the exhaustion of that claim pursuant to Rhines v.
Weber.2 See Hearn v. Quarterman, 2008 WL 3362041, at *6-7 (N.D. Tex. Aug. 12, 2008)
(Fitzwater, C.J.). The CCA denied Hearn’s application for habeas relief. See ex parte
Hearn, 310 S.W.3d 424 (Tex. Crim. App.), cert. denied, 543 U.S. 960 (2010). Hearn then
returned to this court where proceedings were reopened and habeas relief was again denied.
See Hearn v. Thaler, 2011 WL 825744, at *4-5 (N.D. Tex. Mar. 3, 2011) (Fitzwater, C.J.).

1

536 U.S. 304 (2002).

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544 U.S. 269 (2005).
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The court of appeals denied a certificate of appealability, Hearn v. Thaler, 669 F.3d 265,
273-74 (5th Cir. 2012). Hearn filed a petition for writ of certiorari on June 18, 2012. Hearn
v. Thaler, No. 11-10944. The petition is currently pending.
On April 25, 2012 the state court set an execution date of July 18, 2012. See State v.
Hearn, No. F98-46232-S (282nd Dist. Ct., Dallas Co., Tex.). On July 5, 2012 Hearn filed
the instant habeas petition, presenting a claim of ineffective assistance of trial counsel under
Wiggins v. Smith3 for failing to investigate and present mitigating evidence at his trial. On
July 8, 2012 Hearn filed a notice of recent relevant authority that is adverse to his position
and that requires that the court dismiss his petition.
II
The court turns first to Hearn’s notice of recent relevant authority. Hearn’s notice
“suggest[s] how the Court might proceed” and states “that it would waste the Court’s
resources, as well as valuable time for upcoming proceedings in the Fifth Circuit and the
Supreme Court, to continue considering Mr. Hearn’s petition.” Notice 1, 3-4. The notice
does not clearly indicate that it is intended to be a Fed. R. Civ. P. 41(a) notice of voluntary
dismissal; instead, it appears to be counsel’s attempt to comply with a “duty to bring to the
Court’s attention this development.” Notice 1. Absent a clear indication that Hearn intends
to dismiss this petition, this court will follow Rule 4 of the Rules Governing Section 2254

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539 U.S. 510 (2003).
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Cases in the United States District Courts.4
III
Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), a state
prisoner’s right to file a subsequent habeas action in federal court is severely limited.
A claim presented in a second or successive habeas corpus
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.
28 U.S.C. § 2244(B)(2). Hearn initially conceded that he could not make this showing,5 but

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Hearn refers to this rule, which provides, in part: “If it plainly appears from the
petition and any attached exhibits that the petitioner is not entitled to relief in the district
court, the judge must dismiss the petition and direct the clerk to notify the petitioner.” Notice
4 (quoting Rule 4 of the Rules Governing Section 2254 Cases in the United States District
Courts) (emphasis omitted).
5

Hearn acknowledged that he could not make the required showing under §
2244(B)(2) for authorization to file a successive petition:
On its face, Mr. Hearn’s Wiggins claim does not satisfy either
exception to the abuse of the writ rule of preclusion, because it
is not based on a new, retroactive rule of constitutional law, and
it is based on facts that were previously discoverable and do not
call into question the viability of his conviction.
Pet. 64; Stay Motion 3.
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he asserted that his petition should not be considered successive in light of the Supreme
Court’s recent opinion in Martinez v. Ryan, ___ U.S. ___, 132 S. Ct. 1309 (2012). Hearn
now acknowledges the circuit precedent that teaches that Martinez is inapplicable to his case.
Hearn conceded in his petition that “the ineffective assistance of trial counsel claim
presented here (the ‘Wiggins claim’) was not raised in Mr. Hearn’s first state habeas corpus
application.” Pet. 63 (referring to Pet. 4-6). Hearn does not assert that he has since
exhausted this claim, but “concedes that the claim raised here would be barred as an abuse
of the writ if he now tried to present it to the state courts.” Id. at 63-64 n.14 (citing Tex.
Code Crim. Proc. Ann. art. 11.071, § 5).
Generally, a petition containing both exhausted and unexhausted claims must be
dismissed or stayed so that the petitioner can return to state court to exhaust state remedies.
See Rhines, 544 U.S. at 277-278 (discussing Rose v. Lundy, 455 U.S. 520, 522 (1982)). Such
action would be futile and the federal court should deem the claims to be procedurally barred
if “the court to which the petitioner would be required to present his claims in order to meet
the exhaustion requirement would now find the claims procedurally barred.” Coleman v.
Thompson, 501 U.S. 722, 735 n.1 (1991); see also Neville v. Dretke, 423 F.3d 474, 479-480
(5th Cir. 2005) (holding unexhausted claims ineligible for stay when state court would find
them to be procedurally barred). A habeas petitioner can avoid the imposition of this bar,
however, by demonstrating a recognized exception.

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In all cases in which a state prisoner has defaulted his federal
claims in state court pursuant to an independent and adequate
state procedural rule, federal habeas review of the claims is
barred unless the prisoner can demonstrate cause for the default
and actual prejudice as a result of the alleged violation of federal
law, or demonstrate that failure to consider the claims will result
in a fundamental miscarriage of justice.
Coleman, 501 U.S. at 750. The “fundamental miscarriage of justice” exception allows the
federal court to reach a claim when the constitutional violation has probably resulted in the
conviction of one who is actually innocent. Id. at 748 (citing Murray v. Carrier, 477 U.S.
478, 496 (1986)); see also House v. Bell, 547 U.S. 518, 536-37 (2006) (holding that prisoners
asserting innocence as a gateway to defaulted claims must establish that, in light of new
evidence, “it is more likely than not that no reasonable juror would have found petitioner
guilty beyond a reasonable doubt.” (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)).
Despite his reference to Anthony Graves,6 Hearn asserted neither actual innocence nor
the kind of cause-and-prejudice recognized in Coleman. Instead, he relied entirely on the
new exception to procedural bar created in Martinez.
Before March 20, 2012, there would have been no way
for Mr. Hearn to overcome procedural default or abuse of the
writ. Because of the Supreme Court’s decision in [Martinez] on
March 20, 2012, however, there is now a way for Mr. Hearn to
overcome both procedural barriers to the consideration of the
claim he presents in this petition.
Pet. 64-65; Stay Motion 4.
In Martinez the Supreme Court created an equitable exception to the imposition of a

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Pet. 1.
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procedural bar to an ineffective assistance of counsel claim that was not raised in the initial
state habeas proceedings (referred to as “initial-review collateral proceedings”) because of
the lack of the effective assistance of state habeas counsel. The Court limited the availability
of this exception to the application of procedural bars in those states that do not allow
ineffective assistance of trial counsel claims to be raised on direct appeal.
Where, under state law, claims of ineffective assistance
of trial counsel must be raised in an initial-review collateral
proceeding, a procedural default will not bar a federal habeas
court from hearing a substantial claim of ineffective assistance
at trial if, in the initial-review collateral proceeding, there was
no counsel or counsel in that proceeding was ineffective.
Martinez, 132 S. Ct. at 1320. This exception does not apply, however, to Texas cases.
The Fifth Circuit first observed in a footnote that Texas does not preclude a defendant
from raising an ineffective assistance of trial counsel claim on direct appeal, and that such
claims are often brought on direct appeal, with mixed success. See Adams v. Thaler, 679
F.3d 312, 317 n.4 (5th Cir. 2012) (citing Lopez v. Texas, 343 S.W.3d 137, 143 (Tex. Crim.
App. 2011)). The Fifth Circuit later held, in an unpublished opinion, that “unlike the
petitioner in Martinez, Gates was not denied the opportunity under state law to raise his
ineffective assistance of trial counsel claim on direct review. In Texas, a capital defendant
can raise an ineffective assistance of trial counsel claim on direct review to the Court of
Criminal Appeals.” Gates v. Thaler, 2012 WL 2305855, at *6 (5th Cir. June 19, 2012) (per
curiam) (citing Narvaiz v. State, 840 S.W.2d 415, 434 (Tex. Crim. App. 1992) (en banc)).
And in Ibarra v. Thaler, ___ F.3d ____, 2012 WL 2620520 (5th Cir. June 28, 2012), the

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panel distinguished Texas procedure from the Arizona procedure in Martinez:
The TCCA made clear that a state habeas petition is the
preferred vehicle for developing ineffectiveness claims. Yet
Texas defendants may first raise ineffectiveness claims before
the trial court following conviction via a motion for new trial,
when practicable, and the trial court abuses its discretion by
failing to hold a hearing on an ineffectiveness claim predicated
on matters not determinable from the record. A prisoner who
develops such a record through a new trial motion can of course
pursue the denial of an ineffectiveness claim through direct
appeal, but the TCCA has indicated that a new trial motion is
neither a sufficient nor necessary condition to secure review of
an ineffectiveness claim on direct appeal. Indeed, an
ineffectiveness claim may simply be raised on direct appeal
without the benefit of a motion for new trial. As a result, both
Texas intermediate courts and the TCCA sometimes reach the
merits of ineffectiveness claims on direct appeal. Where they do
not, Texas habeas procedures remain open to convicted
defendants. In short, Texas procedures do not mandate that
ineffectiveness claims be heard in the first instance in habeas
proceedings, and they do not by law deprive Texas defendants
of counsel-and court-driven guidance in pursuing
ineffectiveness claims. Accordingly, Ibarra is not entitled to the
benefit of Martinez for his ineffectiveness claims, as Texas
procedures entitled him to review through counselled motions
for new trial and direct appeal.
Id., 2012 WL 2620520, at *4 (citations omitted).
Hearn contended initially that the reasoning of these decisions should not apply to
ineffective assistance of counsel claims that rely on facts outside the trial record. He argued
that the only opportunity to include evidence that is not already in the trial record is by a
motion for new trial that must be filed within 30 days of judgment, usually by trial counsel
and before the record is transcribed. Pet. 90-91. Hearn pointed out that, in his case, the
motion for new trial was due on January 10, 1999, but the reporter’s record was not filed
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until August 16, 1999. Pet. 91, n.26. Hearn concluded that, in death penalty cases like his,
it is not practicable for the defendant to develop the evidence to support ineffective assistance
of counsel claims through a motion for new trial. Absent the necessary factual development
to support these claims, Hearn argued that they will not receive meaningful review in the
direct appeal.
In his notice of recent relevant authority, Hearn acknowledges that his argument does
not circumvent binding Fifth Circuit precedent that the Martinez exception does not apply
to Texas cases. Therefore, the Wiggins claim made the basis of the instant petition for
federal habeas relief is unexhausted and now procedurally barred under the Texas abuse-ofthe-writ doctrine. The petition does not present a claim that has only become ripe for review
since the prior habeas petition was denied. Therefore, the petition is successive.
This court has no jurisdiction to authorize a successive habeas proceeding. See 28
U.S.C. § 2244(3)(A). If a successive petition is filed in the district court before leave has
been obtained from the court of appeals, the district court can either dismiss the motion for
lack of jurisdiction or transfer the motion to the court of appeals. See In re Hartzog, 444 Fed.
Appx. 63, 65 (5th Cir. 2011) (per curiam) (citing United States v. Key, 205 F.3d 773, 774
(5th Cir. 2000)). This court would normally transfer a successive habeas petition to the court
of appeals, but a transfer would be pointless in this case because Hearn has conceded that he
cannot make the necessary showing. See Pet. 64; Stay Motion 3. Hearn acknowledges that
“this Court can do nothing but dismiss Mr. Hearn’s petition.” Notice 3. Therefore, the court
dismisses the petition for want of jurisdiction.
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IV
Because the court lacks jurisdiction to consider the petition, it also denies the motion
for stay of execution for want of jurisdiction. See Green v. Harris Cnty., 390 F.3d 839, 839840 (5th Cir. 2004). Alternatively, the court would conclude that Hearn is not entitled to a
stay of execution. In deciding whether to grant a stay of execution, the court must normally
consider four factors:
(1) whether the stay applicant has made a strong showing that he
is likely to succeed on the merits; (2) whether the applicant will
be irreparably injured absent a stay; (3) whether issuance of the
stay will substantially injure the other parties interested in the
proceeding; and (4) where the public interest lies.
Adams, 679 F.3d at 318 (quoting Nken v. Holder, 556 U.S. 418, 434 (2009)). The stay
motion presents the same Wiggins claim made the basis of the successive petition and also
relies upon the applicability of the Martinez exception to Texas cases. As discussed above,
the Wiggins claim could not succeed because it is unexhausted, procedurally barred, and the
Martinez exception does not apply.
Further, this court’s equitable analysis “must be sensitive to the State’s strong interest
in enforcing its criminal judgments without undue inference from the federal courts.” Id.
(citing Hill v. McDonough, 547 U.S. 573, 584 (2006)). “The party requesting a stay bears
the burden of showing that the circumstances justify an exercise of [judicial] discretion.” Id.
(quoting Nken, 556 U.S. at 433-34). Hearn has not made the required showing, and the stay
motion is denied on this alternate basis as well.

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V
The court has granted Hearn’s prior motions to proceed in forma pauperis in this
court. The court likewise grants this instant motion.
VI
Considering the record in this case, and pursuant to Fed. R. App. P. 22(b), Rule 11(a)
of the Rules Governing Section 2254 Cases in the United States District Courts, and 28
U.S.C. § 2253(c), the court denies a certificate of appealability. The court concludes that
Hearn has failed to show (1) that reasonable jurists would find this court’s “assessment of
the constitutional claims debatable or wrong,” or (2) that reasonable jurists would find “it
debatable whether the petition states a valid claim of the denial of a constitutional right” and
“debatable whether [this Court] was correct in its procedural ruling.” Slack v. McDaniel, 529
U.S. 473, 484 (2000). If Hearn files a notice of appeal, his in forma pauperis status will
continue on appeal.
SO ORDERED.
July 9, 2012.
_________________________________
SIDNEY A. FITZWATER
CHIEF JUDGE

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