Lizcano v. Davis, Director TDCJ-CID

Filing 5

MEMORANDUM OPINION AND ORDER re: 4 MOTION for Leave to Proceed in forma pauperis with certificate of trust account. Lizcano and his attorneys are ORDERED to file a supplemental report by 5/16/2016. (Ordered by Magistrate Judge David L Horan on 4/15/2016) (bdb)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
JUAN LIZCANO,
Petitioner,
V.
WILLIAM STEPHENS, Director,
Texas Department of Criminal Justice
Correctional Institutions Division,
Respondent.

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No. 3:16-cv-1008-B-BN
(Death Penalty Case)

MEMORANDUM OPINION AND ORDER
This action is referred to the undersigned magistrate judge pursuant to Title 28,
United States Code, Section 636(b). Petitioner Juan Lizcano has filed an application
to proceed in forma pauperis (“IFP”) but has not requested the appointment of counsel.
See Dkt. No. 1-1. Instead, he is represented by counsel who was not appointed by this
Court, who may be privately retained with financial arrangements unknown to this
Court, and who may have also represented him in the state court proceedings. To
determine whether Lizcano should be granted IFP status and whether any conflict
exists under Martinez v. Ryan, 566 U.S. 1 (2012), and Trevino v. Thaler, 133 S. Ct.
1911 (2013), Lizcano is directed to supplement the application.
I
Lizcano makes his application under 28 U.S.C.A. § 1915(a), which authorizes
this Court to allow the filing of an action without prepayment of fees by a person who
“submits an affidavit that includes a statement of all assets such prisoner possesses

that the person is unable to pay such fees or give security therefor.” See also N.D. TEX.
L. CIV. R. 83.6 (“A party desiring to proceed without prepayment of fees or costs must
complete the appropriate form and file it with the clerk.”). But the fee for filing a
habeas petition is only $5. Therefore, a habeas petitioner is ineligible for IFP status
and may not avoid this modest fee unless his total resources do not exceed $50. “A
petitioner whose prison account or other resources exceed fifty ($50.00) dollars must
pay appropriate filing fees and may not prosecute a petition in forma pauperis in this
District.” Misc. Order 13 at ¶ 9 (N.D. Tex. Feb. 1, 1977). This miscellaneous order
restricts this Court’s ability to grant IFP status rather than expands any entitlement
to it.
Although Lizcano has filed a certificate of inmate trust account indicating that
his balance on April 7 was $38.87, it also shows that, during the prior six months, his
average balance exceeded $110, that he received monthly deposits averaging in excess
of $125, and that his total deposits during this period exceeded $750.00. In addition,
Lizcano’s petition was filed by counsel who was not appointed by this Court and whose
financial arrangements with Lizcano have not been disclosed. It is not clear from these
filings that Lizcano is entitled to proceed IFP in this proceeding.
II
In Martinez v. Ryan, the Supreme Court created a new exception to procedural
bar for claims of ineffective assistance of trial counsel.
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
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claim of ineffective assistance at trial if, in the initial-review collateral
proceeding, there was no counsel or counsel in that proceeding was
ineffective.
132 S. Ct. at 1320. Subsequently, in Trevino v. Thaler, the Court held that this
exception applies to Texas cases. See 133 S. Ct. at 1918.
The United States Court of Appeals for the Fifth Circuit has noted that new,
conflict-free, supplemental counsel may be required to investigate when the same
counsel represents the inmate in federal court that represented the inmate before the
state court. After noting that 18 U.S.C. § 3599 authorizes federal judges to appoint
counsel and supplemental counsel in federal habeas proceedings in capital cases, the
Court of Appeals stated:
We conclude that this authority should be used in the present case in the
interest of justice. Under that power, and mindful of the systematic
benefits of efficiently resolving all potential claims as early in the habeas
process as possible, we direct the appointment of supplemental counsel
for the sole purpose of determining whether [the habeas petitioner] has
additional habeas claims that ought to have been brought.
Speer v. Stephens, 781 F.3d 784, 786 (5th Cir. 2015). Further, the tolling of AEDPA’s
limitation period may be appropriate to allow the consideration of any new claims
identified by newly appointed counsel under the Supreme Court’s holding in Christeson
v. Roper, 135 S. Ct. 891, 894 (2015), beyond the original one-year period.
The reported opinion of the Texas Court of Criminal Appeals denying habeas
relief lists Debbie J. McComas as Lizcano’s attorney. See Ex Parte Lizcano, No.
WR-68,348-03, 2015 WL 2085190 (Tex. Crim. App. Apr. 15, 2015). She appears to be

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one of the same attorneys that has filed the petition for relief before this Court. See
Dkt. No. 1.
Had the state court appointed counsel for Lizcano, that appointed counsel would
have been required under state law to file a motion for appointment of federal habeas
counsel in this Court within 15 days of the date that the Texas Court of Criminal
Appeals denied habeas relief a year ago. See TEX. CRIM. PROC. CODE ANN., art.
11.071(e) (West 2013). Because no motion to appoint counsel was filed in this Court,
there has been no prior opportunity for this Court to explore the matter. The Supreme
Court in Martinez and Trevino, however, did not distinguish whether state habeas
counsel was appointed by the court, privately retained, or working on a pro bono basis,
in setting forth the new exception to procedural bar. Therefore, Lizcano should have
the same rights under Martinez and Trevino as any federal habeas petitioner who is
or was represented by appointed counsel.
III
Additional information is needed to determine whether to grant IFP status,
whether any conflict of interest exists, and whether Lizcano either knowingly and
intelligently waives any such conflict or desires the appointment of independent
counsel to look into the matter. Accordingly, the Court orders Lizcano and all of his
attorneys in this proceeding to supplement the information before this Court as
follows:
Lizcano and his attorneys are ORDERED to file a supplemental report by May
16, 2016 that:
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1.

Discloses the spending limits on Lizcano for his use of funds from the
inmate trust account and the expenses that prevent Lizcano from paying
the filing fee in this action;

2.

Discloses the financial arrangements between the attorneys and Lizcano
and specifically identifies any resources available to Lizcano that were
not disclosed in the IFP application;

3.

Discloses the full involvement of each of the attorneys representing
Lizcano before this Court in any proceedings in state court on behalf of
Lizcano and describes those proceedings and the dates of any
representation of Lizcano before the state court;

4.

States whether Lizcano waives any potential conflict of interest in the
representation before this Court of any counsel that may have
represented him in prior proceedings before the state court or whether
Lizcano desires the appointment of independent counsel on this issue (in
the event that Lizcano waives any potential conflict, the report must also
provide the information showing that such waiver is made knowingly and
intelligently by Lizcano); and

5.

May be filed ex parte and under seal.

SO ORDERED.
DATED: April 15, 2016
_________________________________________
DAVID L. HORAN
UNITED STATES MAGISTRATE JUDGE
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