Threadgill v. Thaler
MEMORANDUM OPINION AND ORDER: Threadgill's petition for a writ of habeas corpus is transferred to the United States Court of Appeals for the Fifth Circuit. His 4 motions for a stay of execution and 5 to stay and abey are denied. His 3 motion for leave to proceed in forma pauperis is granted. The court denies a certificate of appealability. (Ordered by Chief Judge Sidney A Fitzwater on 3/21/2013) (tln)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
RONNIE PAUL THREADGILL,
RICK THALER, Director,
Texas Department of Criminal Justice,
Correctional Institutions Division,
Civil Action No. 3:13-CV-1138-D
Petitioner Ronnie Paul Threadgill (“Threadgill”), who is scheduled to be executed on
April 16, 2013, has filed a successive petition for a writ of habeas corpus, a motion for leave
to proceed in forma pauperis, a motion for stay of execution, and a motion to stay and abey
pending a ruling by the Supreme Court of the United States in Trevino v. Thaler. For the
reasons explained, the court transfers the petition to the United States Court of Appeals for
the Fifth Circuit, and it denies the motions to stay the execution and to stay and abey. The
court grants the motion for leave to proceed in forma pauperis, but it denies a certificate of
Threadgill was convicted and sentenced to death for the capital murder of Dexter
McDonald. See Threadgill v. State, 146 S.W.3d 654, 660 (Tex. Crim. App. 2004). After
pursuing a direct appeal and post-conviction remedies in state court, Threadgill filed an
application for federal habeas corpus relief under 28 U.S.C. § 2254, which this court denied.
Threadgill v. Quarterman, 2009 WL 2448499, at *25 (N.D. Tex. Aug. 10, 2009) (Fitzwater,
C.J.), aff’d in part, cert. of appealability denied in part, 425 Fed. Appx. 298 (5th Cir. May
12, 2011). Among Threadgill’s other claims, the court addressed on the merits three claims
that trial counsel rendered ineffective assistance by (1) failing to investigate an extraneous
offense, (2) failing to request a jury charge on a lesser-included offense, and (3) failing to
object to the testimony of the state’s mental health expert and effectively cross-examine her.
See id. at *14-25. The court of appeals affirmed in part (as to the claim on which this court
granted a certificate of appealability) and otherwise denied a certificate of appealability.
Threadgill v. Thaler, 425 Fed. Appx. 298, 309 (5th Cir. 2011) (per curiam). The Supreme
Court denied Threadgill’s petition for a writ of certiorari. Threadgill v. Thaler, ___ U.S. ___,
132 S.Ct. 1095 (2012). Threadgill is scheduled to be executed on April 16, 2013.
Threadgill has filed another petition for a writ of habeas corpus, this time alleging
under Wiggins v. Smith, 539 U.S. 510 (2003), that trial counsel rendered ineffective
assistance by failing to develop and present certain mitigating evidence. He did not raise this
claim in his state habeas petition or in his first federal petition. To overcome both the
jurisdictional bar to a successive writ in federal court and the procedural bar that applies to
an unexhausted claim in state court, Threadgill relies on what he anticipates will be a
favorable opinion in Trevino v. Thaler, No. 11-1018, 133 S.Ct. 524 (2012), now pending in
the Supreme Court of the United States. Threadgill asserts that the facts underlying the
Wiggins claim were readily discoverable by his state habeas counsel in 2003-2005. Pet. 49.
He therefore acknowledges that the claim would be barred under the Texas abuse-of-the-writ
rules and, in turn, barred from federal habeas review. Pet. 49 n.2; see Tex. Code Crim. Proc.
Ann. art. 11.071, § 5(a) (West 2012) (Texas subsequent writ rules); Coleman v. Thompson,
501 U.S. 722, 735 n.1 (1991) (stating that federal courts should deem unexhausted claims to
be procedurally barred if state court to which petitioner would be required to present his
claims for exhaustion would now find them procedurally barred). Threadgill contends,
however, that the Supreme Court’s recent decision in Martinez v. Ryan, ___ U.S. ___, 132
S.Ct. 1309 (2012), would excuse this procedural default because his state habeas counsel
provided ineffective assistance. See Pet. 51-53, 72-74; Martinez, 132 S.Ct. at 1320 (holding
that “[w]here, 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.”).
Threadgill acknowledges that the Fifth Circuit does not apply Martinez to Texas
petitioners. See Ibarra v. Thaler, 687 F.3d 222, 227 (5th Cir. 2012). He moves the court
to stay and abey his instant habeas petition until the Supreme Court decides Trevino, in
which the petitioner challenges the Fifth Circuit’s interpretation of Martinez. Mot. to Stay
5. Threadgill posits that, if Trevino holds that the Martinez exception applies to Texas
petitioners, he can overcome the procedural bar to consideration of his Wiggins claim. Pet.
51, 67. He also maintains that, if relief under Martinez is available to Texas petitioners, he
can overcome the restrictions on successive petitions in 28 U.S.C. § 2244(b). Threadgill
reasons that, because his state habeas counsel was ineffective and because the Wiggins claim
would have been procedurally barred under Coleman if it had been presented in the first
federal habeas proceeding, the equitable principles that excuse procedural default in Martinez
should also excuse his failure to raise the Wiggins claim in his first federal petition. Mot. to
Stay 4-5; Pet. 55-59.
Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), a claim
presented in a second or successive habeas application that was not presented in a prior
application must be dismissed unless:
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
(i) the factual predicate for the claim could not have been
discovered previously through the exercise of due
(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). This determination must be made by a three-judge panel of the court
of appeals before a petitioner can file his application in federal district court.
§ 2244(b)(3); Felker v. Turpin, 518 U.S. 651, 664 (1996) (“The Act requires a habeas
petitioner to obtain leave from the court of appeals before filing a second habeas petition in
the district court.”). The question whether this court lacks jurisdiction over Threadgill’s
second petition depends on whether the petition is “second or successive” within the meaning
of § 2244. See Adams v. Thaler, 679 F.3d 312, 321 (5th Cir. 2012).
Not all applications filed successively in time are deemed to be “successive” under
§ 2244. See, e.g., Panetti v. Quarterman, 551 U.S. 930, 944-46 (2007) (holding that claim
of incompetency to be executed is not successive if it was not ripe during initial habeas
proceedings); Slack v. McDaniel, 529 U.S. 473, 487 (2000) (holding that a petition filed after
first petition was dismissed to allow exhaustion of state remedies is not successive). But
generally, “a later petition is successive when it (1) raises a claim challenging the petitioner’s
conviction or sentence that was or could have been raised in an earlier petition; or (2)
otherwise constitutes an abuse of the writ.” Adams, 679 F.3d at 322 (citing In re Cain, 137
F.3d 234, 235 (5th Cir. 1998) (emphasis added)). Here, Threadgill’s Wiggins claim was ripe
and could have been raised in his first federal petition because he concedes that the facts
underlying the claim were available in 2003-2005. In fact, he maintains that his state habeas
counsel was ineffective for failing to raise the claim at the state habeas stage, i.e., even before
he filed his first federal petition.
Threadgill attempts to circumvent the general rule by arguing that he could not have
raised the Wiggins claim in his first federal petition because it would have been procedurally
barred under Coleman due to his failure to exhaust state-court remedies. Pet. 55; see
Coleman, 501 U.S. at 735 n.1. But he maintains that, if Martinez is applied to Texas
petitioners, the equitable principles underlying Martinez will excuse his failure to raise the
Wiggins claim in his first federal petition. Petition at 54-59. The court disagrees.
First, this court is bound by the law of this circuit, which holds that Martinez does not
apply to Texas petitioners. See Ibarra, 687 F.3d at 227. This court is neither authorized nor
inclined to grant a stay and hold a petition in abeyance because the law of the circuit may
change. The decision to change the law is for the Supreme Court of the United States or the
Fifth Circuit to make, and this court is obligated to apply the law as it stands when it makes
Second, even if this court assumes arguendo that Martinez applies to Texas petitioners
and supports an exception to the jurisdictional bar of § 2244(b), Threadgill’s contention that
his state habeas counsel’s ineffective assistance impeded his raising the Wiggins claim in his
first federal petition lacks force. He could have raised the unexhausted Wiggins claim in his
first federal petition and asserted “cause and prejudice” for his failure to do so in the state
habeas court. See Coleman, 501 U.S. at 750. Alternatively, he could have raised the claim
and moved for a stay and abeyance so he could exhaust the claim in state court. See Rhines
v. Weber, 544 U.S. 269, 278 (2005) (establishing district court’s authority and procedure for
abatement of unexhausted claims). For example, he could have made the very argument he
now makes: his state habeas counsel rendered ineffective assistance by failing to assert the
The instant second petition is therefore successive. Because the court of appeals has
not issued an order authorizing this court to consider the successive application, the court
lacks jurisdiction to consider it. Under these circumstances, the court can either dismiss the
application for lack of jurisdiction or transfer it to the court of appeals. See In re Hartzog,
444 Fed. Appx. 63, 64 (5th Cir. 2011) (per curiam) (citing United States v. Key, 205 F.3d
773, 774 (5th Cir. 2000)); Hearn v. Thaler, 2012 WL 2715653, at *5 (N.D. Tex. July 9,
2012) (Fitzwater, C.J.). “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.” Miller v. 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). Accordingly, the court transfers this successive
application for habeas relief to the United States Court of Appeals for the Fifth Circuit. See
Henderson v. Haro, 282 F.3d 862, 864 (5th Cir. 2002).
Because the court lacks jurisdiction to consider the successive petition, it denies the
motion for stay of execution, see Green v. Harris County, 390 F.3d 839, 839-40 (5th Cir.
2004), and it denies the motion to stay and abey these proceedings.
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, and 28 U.S.C. § 2253(c), the court denies a
certificate of appealability. Threadgill 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, 529 U.S. at 484. If Threadgill files a notice of appeal, he may
proceed in forma pauperis on appeal. See 18 U.S.C. § 3006A(d)(7).
By judgment filed today, Threadgill’s petition for a writ of habeas corpus is
transferred to the United States Court of Appeals for the Fifth Circuit. His motions for a stay
of execution and to stay and abey are denied. His motion for leave to proceed in forma
pauperis is granted. The court denies a certificate of appealability.
March 21, 2013.
SIDNEY A. FITZWATER
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