Segundo v. Davis, Director TDCJ-CID
Filing
98
MEMORANDUM OPINION AND ORDER TRANSFERRING SUCCESSIVE HABEAS PETITION: Segundo's motion for relief under Rule 60(b) (doc. 86 ) is a successive application for habeas relief and is TRANSFERRED to the United States Court of Appeals for the Fifth C ircuit along with the application to stay his execution (doc. 94 ). 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 clos e it on the basis of this order. Considering the record in this case and pursuant to Federal Rule of Appellate Procedure 22(b), Rule 11(a) of the Rules Governing §§ 2254 and 2255 proceedings, and 28 U.S.C. § 2253(c), the Court DENIES a certificate of appealability. (Ordered by Senior Judge Terry R Means on 9/26/2018) (bdb)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
JUAN RAMON MEZA SEGUNDO,
Petitioner,
V.
LORIE DAVIS, Director,
Texas Department of Criminal
Justice, Correctional
Institutions Division,
Respondent.
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No. 4:10-CV-970-Y
(Death Penalty Case)
MEMORANDUM OPINION AND ORDER
TRANSFERRING SUCCESSIVE HABEAS PETITION
Counsel for death-row inmate Juan Ramon Meza Segundo again
present motions involving complex procedural issues that make no
practical difference.
Regardless of how the procedural issues are
resolved, Segundo has not shown an entitlement to any relief.
But
because this Court lacks jurisdiction over these motions, they are
transferred in light of Segundo’s pending execution date.
Petitioner Segundo, a Texas death-row inmate set for execution
on October 10, 2018, has 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. 86). Respondent Lorie Davis has filed
her response in opposition (doc. 89), and Segundo has made his reply
(doc. 91).
On July 27, Segundo filed his related request to stay
his execution (Stay Application, doc. 94). On August 17 Respondent
filed her response (doc. 96.) and on August 28, Segundo made his reply
(doc. 97).
Because Segundo’s motion for relief under Rule 60(b) seeks to
relitigate claims with new evidence, it is a successive petition that
this Court lacks jurisdiction to consider and it must be transferred
to the United States Court of Appeals for the Fifth Circuit along
with Segundo’s application to stay his execution.
I. BACKGROUND
Segundo was convicted and sentenced to death for committing a
capital murder in the course of sexual assault. (Mem. Op. and Order
Denying Relief, doc. 48, at 1.)
In denying a certificate of
appealability for this Court’s prior judgment, the United States Court
of Appeals for the Fifth Circuit set out the relevant history.
In 1986, Segundo broke into eleven-year-old Vanessa
Villa’s bedroom, raped, and strangled her. He was not a
suspect, however, until 2005 when a routine search of the
Texas CODIS1 database matched his DNA with semen samples
found at the crime scene. Following a jury trial, Segundo
was convicted in Texas state court. On behalf of the
defense, a clinical neuropsychologist, Dr. Alan Hopewell,
evaluated Segundo and, at the punishment stage of trial,
testified that his “extensive history of inhalant abuse”
and his failure to have a “stimulating background
upbringing” may have caused significant brain dysfunction.
Dr. Hopewell opined, however, that Segundo’s IQ tested at
a 75 and that he was not intellectually disabled. See Ex
parte Hearn, 310 S.W.3d 424, 430 (Tex. Crim. App. 2010)
(explaining that “about 70” represents a “rough ceiling”
for IQ levels, “above which a finding of mental retardation
in the capital context is precluded”).
Segundo was
sentenced to death.
His conviction and sentence were
affirmed on direct review. Segundo v. State, 270 S.W.3d
79 (Tex. Crim. App. 2008).
In his state habeas proceedings, Segundo raised
thirteen claims for relief, including an Atkins claim.
See Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153
L.Ed.2d 335 (2002) (prohibiting as “cruel and unusual
2
punishment” the execution of intellectually disabled
criminals). The state habeas court conducted an evidentiary hearing on his Atkins claim, and found that Segundo
failed to satisfy either the intellectual functioning prong
or the early onset prong required for intellectual
disability under Texas law. The state habeas court noted
that all the “experts agreed that [Segundo] did not
manifest significant sub-average general intellectual
functioning.” The Texas Court of Criminal Appeals adopted
the state habeas court’s findings and denied Segundo’s
habeas petition. Ex parte Segundo, No. WR–70963–01, 2010
WL 4978402 (Tex. Crim. App. Dec. 8, 2010).
Segundo v. Davis, 831 F.3d 345, 348 (5th Cir. 2016) (footnotes
omitted), cert. denied, 137 S. Ct. 1068 (2017).
Segundo’s petition for writ of habeas corpus in this court
(Petition, doc. 11) asserted seven grounds for federal habeas-corpus
relief as follows:
1.
He is intellectually disabled and
execution under Atkins v. Virginia;
2.
His trial counsel were ineffective in failing to
investigate evidence that he was intellectually
disabled;
3.
The Texas death-penalty statute fails to require the
prosecution to prove the lack of mitigating circumstances on the mitigation special issue;
4.
The trial court deprived him of a fair trial and the
right to present a complete defense when it denied
Segundo’s request to present “alternative perpetrator” evidence;
5.
He was denied the right to an indictment charging the
“special issue elements” of the death penalty;
6.
He was denied due process by the lack of an instruction that the jurors need not agree on what was
mitigating before finding a life sentence appropriate
on the mitigation special issue; and
3
exempt from
7.
He was denied due process by the trial court’s
erroneous admission of an extraneous offense under
the state rules of evidence.
(Mem. Op. and Order Denying Relief at 2-3.)
Most relevant to the
current motion, this Court denied his first claim for lack of merit,
dismissed his second claim as procedurally barred and, in the
alternative, denied it for lack of merit. (Mem. Op and Order Denying
Relief at 6-21, 47.) Following the final conclusion of the original
federal habeas proceedings, the state court set Segundo’s execution
for October 10, 2018.
See
State v. Segundo, No. 0974988D (Crim.
Dist. Ct. No. 3, Tarrant County, Texas May 15, 2018).
II. MOTIONS
On May 18, 2018, Segundo filed the instant motion for relief
from judgment, arguing that this Court’s denial of funding under “18
U.S.C. § 3599 caused a defect in the integrity of his federal habeas
corpus proceedings.” (Mot. at 1.) Specifically, Segundo complains
that he “may very well be intellectually disabled,” but argues that
“no court has reliably assessed” whether he is.
(Mot. at 1, 59.)
He argues that intervening Supreme Court opinions, including Ayestas
v. Davis, 138 S. Ct. 1080, 1095 (2018)(abrogating prior Fifth Circuit
standard for funding), authorize relief.
Segundo now requests that these proceedings be reopened “as of
the time he filed his second request for funding” so that he can
obtain funding for an expert evaluation of whether he is intellectually disabled, which he argues might support his denied claim that
4
his counsel was ineffective in failing to obtain and present such
an expert evaluation at trial.
(Mot. at 59-60.)
Segundo also
requests “that this Court grant him a stay of execution pending the
Court’s consideration and disposition of his Motion for Relief from
Judgment Pursuant to Federal Rule of Civil Procedure 60(b).” (Stay
Appl’n at 1.)
Respondent argues that Segundo’s Rule 60(b)(6) motion is actually
an impermissible successive habeas petition that this Court does not
have jurisdiction to consider, but that even if this Court did have
jurisdiction, Segundo has not presented extraordinary circumstances
to warrant relief under Rule 60(b)(6). (Response, doc. 89, at 4-6,
18-31.)
Respondent also argues that it would be futile to reopen
these proceedings since the funding decision would be the same under
Ayestas.
(Response at 6-8, 31-43.)
Respondent also asserts that
this Court lacks jurisdiction to grant a stay, but that even if it
had jurisdiction, the equitable factors do not favor granting a stay
of execution.
(Doc. 96 at 1-4.)
III.
ANALYSIS
Segundo seeks relief under Rule 60(b)(6) of the Federal Rules
of Civil Procedure, which is “a catchall provision” that allows a
court to grant relief from a final judgment for any reason that
justifies relief. In re Edwards, 865 F.3d 197, 203 (5th Cir. 2017),
cert. denied sub nom. Edwards v. Davis, 137 S. Ct. 909 (2017).
“Because of the comparative leniency of Rule 60(b), petitioners
5
sometimes attempt to file what are in fact second or successive habeas
petitions under the guise of Rule 60(b) motions.”
Id.
This Court
must first address the jurisdictional issue.
A. Jurisdiction
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.
104-132, 110 Stat. 1214 (1996).
See Pub. L.
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 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).
That determination must be made by a
three-judge panel of the Court of Appeals before Segundo may file
his application in federal district court.
6
See id. § 2244(b)(3).
As Segundo acknowledges, a previous habeas challenge to his
conviction has been denied by this Court.
(Mot. at 5-7); Segundo
v. Thaler, No. 4:10-cv-970-Y (N.D. Tex. June 17, 2015), COA denied,
831 F.3d 345 (5th Cir. 2016), cert. denied, 137 S. Ct. 1068 (2017).
The jurisdictional question is whether Segundo’s motion seeks to
advance one or more claims that were, or could have been, made in
the earlier petition. See Gonzalez, 545 U.S. at 532; In re Edwards,
865 F.3d at 203.
This distinguishes a motion made under Rule 60(b)
from a successive petition under 28 U.S.C. § 2244(b).
1. STANDARD
In Gonzalez, the Supreme Court provided guidance on whether a
motion filed under Rule 60(b) should be construed 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)(1), 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.2 2004) (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 of a claim. E.g., Dunlap v. Litscher,
301 F.3d 873, 876 (C.A.7 2002). Virtually every Court 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
7
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 corpus application,” at
least similar enough that failing to subject it to the same
requirements would be “inconsistent with” the statute.
28 U.S.C. § 2254 Rule 11.
545 U.S. at 530-31.
2. ANALYSIS
Segundo argues that intervening Supreme Court opinions and new
evidence show a defect in the integrity of these proceedings in the
decision to deny funding on his claim that trial counsel provided
ineffective assistance in failing to properly investigate his claim
of intellectual disability under Atkins v. Virginia, 536 U.S. 304
(2002).
Specifically, Segundo argues that this Court applied the
Fifth Circuit’s “substantial need” test to deny funding and that
because this test has been abrogated by the Supreme Court, the funding
decision improperly prevented him from developing his claim. (Mot.
at 1, 6-7.)
He requests that the case be reopened to present new
evidence to obtain funding for an expert evaluation of whether he
is intellectually disabled. He reasons that such a finding of
disability might show that his counsel was ineffective in failing
to obtain and present such an expert opinion at trial. (Mot. at 1819, 59-60.)
Segundo’s motion complains about the effectiveness of all of
his prior counsel, including his prior federal habeas counsel for
8
failing to notice and present evidence found in counsel’s own files.
(Mot. at 2, 21-22, 40-48.)
“An argument that the petitioner’s own
counsel was ineffective in failing to present that evidence, we held,
‘sounds in substance, not procedure.’” [In re Coleman, 768 F.3d at
371-72]). And if funding is granted, the new evidence thus obtained
would, at best, seek to show that his ineffective assistance claim
had merit.
See id. at 372 n.17 (“A motion that asks the district
court for an opportunity to offer facts that (in the petitioner’s
view) will prove that his conviction was constitutionally infirm
raises a paradigmatic habeas claim.” Runnels v. Davis, No. 17-70031,
2018 WL 3913662, at *6 (5th Cir. Aug. 14, 2018) (citation, internal
quotation marks, and alterations omitted).
This presents a complaint similar to the one that Segundo made
in his motion under Rules 59 and 60(b)(1) filed after this Court
issued its judgment denying relief. In that motion, Segundo argued
that “newly discovered evidence” showed the funding decision to be
in error when it denied funding, in part, because Segundo had not
shown that any of the experts had requested the sought information.
Segundo alleged that
evidence showing trial experts had requested
the sought information from trial counsel had long been in the federal
habeas attorneys’ files but was overlooked by at least one of his
federal habeas counsel.
Therefore, he argued, the case should be
reopened and funding granted.
(New. Evid. Mot., doc. 56, at 2-3.)
In denying the motion, this Court applied In re Coleman, 768 F.3d
9
367 (5th Cir. 2014), and held that even though the motion was filed
under Rule 60(b), the Gonzalez standard required that the motion
be construed as a successive habeas petition barred by § 2244(b)(2).
(Order, doc. 70, at 9-10).
This Court observed that the petitioner in In re Coleman also
argued that the original judgment denying habeas relief suffered from
a defect in the integrity of the original habeas proceedings. Coleman
complained that his original federal habeas counsel was ineffective
in failing to discover and present additional evidence that would
have supported his claim, but that allegation made the motion a
substantive attack on the prior judgment rather than merely a
procedural defect.
Coleman argues that there was a defect in the
integrity of her original habeas petition, namely that “the
additional evidence from the four witnesses recently
discovered and relevant to the ‘kidnapping’ issue was
unavailable to this Court when it decided the claim
previously, and the attached affidavits and the evidence
contained therein are now available.”
Her counsel’s
failure to discover and present this evidence, she argues,
indicated that they were constitutionally ineffective.
This claim, however, is fundamentally substantive–she
argues that the presence of new facts would have changed
this court’s original result. Moreover, Coleman does not
allege that the court or prosecution prevented her from
presenting such evidence, but rather argues that her own
counsel was ineffective in failing to present such
evidence. The Supreme Court has held that such an argument
sounds in substance, not procedure.
Nor is Coleman’s
alleged defect similar in kind to those highlighted by the
Supreme Court as examples of procedural failures, such as
statute-of-limitations or exhaustion rulings. As such,
we AFFIRM the decision of the district court, and treat
Coleman's petition as a second or subsequent habeas
application.
10
(Order, doc. 70, at 9-10 (quoting 768 F.3d at 371–72) (footnotes
omitted)).
In an apparent attempt to avoid this, Segundo argues that his
prior counsel were encumbered by a conflict of interest that resulted
in a defect in the integrity of the proceedings.
(Mot. at 30-48.)
Segundo relies on Clark v. Davis, 850 F.3d 770, 779-80 (5th Cir.),
cert. denied, 138 S. Ct. 358 (2017).
In that case, the asserted
conflict was “intertwined” with Clark’s arguments regarding the
exception to procedural bar created in Martinez. Id. at 780. Because
Clark’s original federal habeas counsel had also represented him in
the state habeas proceedings, he was unable to complain of his own
ineffectiveness in order to bring a claim within the Martinez
exception.
Segundo presents no such conflict.
Segundo does not claim that his original federally appointed
counsel Alexander Calhoun, or appointed co-counsel Paul Mansur, also
represented him in state court. Segundo acknowledges, and the record
plainly shows, that he was represented by a different attorney, Jack
Strickland, in the state habeas proceedings. (Mot. at 37.) Segundo
does not assert that Calhoun or Mansur had any connection with
Strickland, had any involvement in Segundo’s representation in the
prior state-court proceedings, or were in any way ethically prohibited
from complaining of the ineffective assistance of any of Segundo’s
prior attorneys. Therefore, Segundo has not shown anything like the
conflict of interest presented in Clark.
11
Segundo’s motion also asserts new facts and new theories to show
that his prior counsel were ineffective. His motion presents a list
of nine items showing that he was deprived of adequate representation,
including three new complaints against trial counsel, two new
complaints against state habeas counsel, and at least one new
complaint against his prior federal habeas counsel.
(Mot. at 2.)
Importantly, for the first time in these federal habeas proceedings,
Segundo has also accused his trial team of racial misconduct.
In his first enumerated item, Segundo complains that his “trial
team used racially-charged and derogatory terms to refer to their
client, including calling Mr. Segundo ‘speedy Gonzalez,’ a ‘tard,’
and a ‘DUMB BASTARD’.” (Mot. at 2.) This allegation injects a racial
component that was not present in his petition before this Court,
unlike Buck in which the racial complaint had been repeatedly
presented and dismissed by the state and federal courts.1 Therefore,
Segundo has effectively presented new claims that have not been
previously presented to any court.
Segundo seeks to reopen his case to present new evidence to
advance his claim that trial counsel provided constitutionally
ineffective assistance. Segundo argues that the relief he seeks is
required because of the ineffectiveness of Segundo’s prior federal
1
Although Buck’s original state habeas counsel failed to raise the issue,
the Texas attorney general listed Buck in 2000 as one of the inmates entitled to
a new trial because of expert testimony that was racially inappropriate. The
failure of the state to comply with this announcement resulted in a petition for
habeas relief filed in state court in 2002, and a petition in federal court in
2004. See Buck, 137 S. Ct. at 769-70.
12
habeas counsel in attempting to obtain funding to present this new
expert evidence in support of this claim.
Not only is this an
argument that itself “sounds in substance, not procedure,” Coleman,
768 F.3d at 372, but the motion seeks to obtain and present new
evidence and arguments in support of a claim that this Court
previously determined had no merit. The motion also seeks to present
new evidence and new theories of ineffective assistance of counsel
that constitute new claims.
Although Segundo’s motion is couched
in terms of Rule 60(b), it is actually a successive habeas petition
that the court of appeals has not authorized as required by 28 U.S.C.
§ 2244(b)(3). Therefore, this Court lacks jurisdiction to grant the
relief requested.
3. TRANSFER
Because this Court is without jurisdiction to grant relief, it
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.” 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);
13
Hearn 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 court of appeals
rather than dismiss.
4. APPLICATION TO STAY EXECUTION
In connection with his motion to obtain Rule 60(b) relief,
Segundo has filed an application to stay his execution (Stay Appl’n,
doc. 94.)
This Court’s jurisdiction to grant these motions relies
upon jurisdiction to consider the motion to obtain Rule 60(b) relief.
Because this Court 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 *1 (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 motion to the Court of Appeals as well.
B. Alternative Merits Analysis
In the alternative, the Court finds that if Segundo’s motion
were properly made to seek relief within this Court’s jurisdiction
under Rule 60(b)(6) of the Federal Rules of Civil Procedure it would
not be granted.
To succeed on a Rule 60(b)(6) motion, the movant
must show: (1) that the motion be made within a reasonable time; and
(2) extraordinary circumstances exist that justify the reopening of
14
a final judgment. Id. (citing Gonzalez v. Crosby, 545 U.S. 524, 535
(2005)).
1.
TIMELINESS
Although not conspicuously stated, Respondent asserts that
Segundo’s motion is untimely. (Resp., doc. 89, at 27-30.) Segundo’s
June 18, 2018 motion relies upon facts that predated his original
federal habeas proceeding, and Supreme Court opinions that both predate and post-date the judgment denying relief, including Ayestas
v. Davis, 138 S. Ct. 1080 (Mar. 21, 2018), Moore v. Texas, 137 S.
Ct. 1039 (Mar. 28, 2017), Buck v. Davis, 137 S. Ct. 759 (Feb. 22,
2017), and Hall v. Florida, 572 U.S. 701 (2014).
To the extent that Segundo relies upon the timing of Ayestas,
his motion was filed less than three months after that opinion and
may be considered timely. To the extent that he relies upon the older
opinions, his motion was not filed within a reasonable time. In light
of the nature of these proceedings in review of the death penalty,
however, this Court construes Segundo’s motion as timely filed.
2.
EXCEPTIONAL CIRCUMSTANCES
Segundo complains that this Court denied funding by applying
the prior Fifth Circuit precedent that has been abrogated by the
Supreme Court in Ayestas. But 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).
Adams v. Thaler, 679 F.3d 312, 319 (5th Cir. 2012) (quoting Bailey
15
v.
Ryan Stevedoring
Co.,
894
F.2d
157,
160
(5th
Cir.1990)).
Therefore, even if the outcome would have been different under the
Ayestas standard, that circumstance alone would not warrant relief.
In order to satisfy this requirement, Segundo’s motion also
asserts new facts and new theories to show that his prior counsel
were ineffective, including significant new allegations of racial
misconduct.2 Segundo relies on Buck v. Davis, 137 S. Ct. 759 (2017),
in support of his argument that these new allegations support relief
under Rule 60(b)(6).
(Mot. at 3, 9, 11, 12, 20-21, 28, 29, 49.)
But as set out above, supra at 11-12, this racial complaint was not
presented to this or any other Court before the instant motion. This
contrasts sharply with the conduct of Buck, who had repeatedly
presented the complaint to state and federal courts. Therefore, these
are not circumstances that warrant equitable relief in a motion filed
after all prior state and federal review has concluded and an
execution has been set.
Segundo has also not shown that the funding decision would be
any different under Ayestas.
In denying funding, this Court
previously determined that Segundo had not shown how the sought
funding would be capable of establishing ineffective assistance of
counsel under Strickland and come within the exception to procedural
bar under Martinez in light of the expert assistance obtained by trial
2
New claims would generally be barred by the one-year statute of
limitations period under 28 U.S.C. § 2244(d). Although it would appear to be
futile to allow funding to develop any such new claims, no limitations defense
to new claims has yet been asserted in these proceedings.
16
and state habeas counsel. Specifically, this Court held that merely
presenting a new expert opinion that disagreed with the opinion of
an expert at trial was not enough to show trial counsel to be
ineffective. “There is no indication that the experts felt incapable
of basing their conclusions on the information they obtained through
their own testing and examinations. . . .
Finally, it is unclear
that, even had these materials been provided to experts, their
evaluations of [the prisoner] would have differed.”
(Order, doc.
47, at 5 (quoting Card v. Dugger, 911 F.2d 1494, 1512 (11th Cir.
1990).)
In denying a COA on the dismissal of this claim, the court of
appeals held that “reasonable jurists would not debate that Segundo
failed to state a claim that would allow for merits review under
Martinez.” Segundo v. Davis, 831 F.3d 345, 351 (5th Cir. 2016), cert.
denied, 137 S. Ct. 1068 (2017).
Specifically, there was no
debatability in the determination that Segundo had not stated a claim
of any potential merit that would warrant an evidentiary hearing and
merits review.
The record makes clear that Segundo’s trial counsel
obtained the services of a mitigation specialist, fact
investigator, and two mental-health experts. These experts
and specialists conducted multiple interviews with Segundo
and his family, performed psychological evaluations, and
reviewed medical records.
Segundo claims that trial
counsel failed to provide necessary social history, which
would have changed the experts’ conclusions that he is not
intellectually disabled. But none of the experts retained
by trial counsel indicated that they were missing
information needed to form an accurate conclusion that
Segundo is not intellectually disabled. “Counsel should
17
be permitted to rely upon the objectively reasonable
evaluations and opinions of expert witnesses without
worrying that a reviewing court will substitute its own
judgment, with the inevitable hindsight that a bad outcome
creates, and rule that his performance was substandard for
doing so.” Smith v. Cockrell, 311 F.3d 661, 676–77 (5th
Cir. 2002), overruled on other grounds by Tennard v.
Dretke, 542 U.S. 274, 124 S.Ct. 2562, 159 L.Ed.2d 384
(2004); see Turner v. Epps, 412 Fed. Appx. 696, 704 (5th
Cir. 2011) (“While counsel cannot completely abdicate a
responsibility to conduct a pre-trial investigation simply
by hiring an expert, counsel should be able to rely on that
expert to alert counsel to additional needed information....”).
Segundo, 831 F.3d at 352.
Segundo has not shown how this Court’s stated reason for denying
funding, that
the
sought
funding
was
not
capable
of
showing
ineffective assistance of counsel, would differ under the new
standard. In Ayestas, the Supreme Court recognized that the district
court must determine that “funding stands a credible chance of
enabling a habeas petitioner to overcome the obstacle of procedural
default” under Martinez.
Id. at 1094.
As the Supreme Court
explained, “Congress changed the verb from ‘shall’ to ‘may,’ and thus
made
it
perfectly
clear
that
determining
whether
funding
is
‘reasonably necessary’ is a decision as to which district courts enjoy
broad discretion.”
Id. (citing Kingdomware Technologies, Inc. v.
United States, 136 S. Ct. 1969, 1977 (2016)). This involves practical
considerations regarding the likelihood that funding will enable an
applicant to prove her or his claim.
A natural consideration informing the exercise of that
discretion is the likelihood that the contemplated services
will help the applicant win relief.
After all, the
18
proposed services must be “reasonably necessary” for the
applicant’s representation, and it would not be reasonable—in fact, it would be quite unreasonable—to think that
services are necessary to the applicant’s representation
if, realistically speaking, they stand little hope of
helping him win relief.
Proper application of the
“reasonably necessary” standard thus requires courts to
consider the potential merit of the claims that the
applicant wants to pursue, the likelihood that the services
will generate useful and admissible evidence, and the
prospect that the applicant will be able to clear any
procedural hurdles standing in the way.
To be clear, a funding applicant must not be expected
to prove that he will be able to win relief if given the
services he seeks. But the “reasonably necessary” test
requires an assessment of the likely utility of the
services requested, and § 3599(f) cannot be read to
guarantee that an applicant will have enough money to turn
over every stone.
Id.
This is not an entirely new inquiry.
These interpretive principles are consistent with the
way in which § 3599's predecessors were read by the lower
courts. See, e.g., Alden, supra, at 318–319 (explaining
that it was “appropriate for the district court to satisfy
itself that [the] defendant may have a plausible defense
before granting the defendant’s ... motion for psychiatric
assistance to aid in that defense,” and that it is not
proper to use the funding statute to subsidize a “ ‘fishing
expedition’ ”); United States v. Hamlet, 480 F.2d 556, 557
(C.A.5 1973) (per curiam ) (upholding district court’s
refusal to fund psychiatric services based on the district
court’s conclusion that “the request for psychiatric
services was ... lacking in merit” because there was “no
serious possibility that appellant was legally insane at
any time pertinent to the crimes committed”).
This
abundance of precedent shows courts have plenty of
experience making the determinations that § 3599(f)
contemplates.
Id. at 1094-95. Just as before, Segundo’s current motion still does
not set forth how the sought expert assistance could show that trial
19
counsel was ineffective. Instead, it appears to be another attempt
to take the Court on a fishing expedition.
In sum, Segundo has not presented a procedural “defect” as
required to obtain Rule 60(b) relief under Gonzales. The procedural
ruling--the decision to deny funding--would be the same under the
Supreme Court’s new opinion in Ayestas. Therefore, even if Segundo’s
motion did not constitute a successive habeas petition by seeking
to develop new evidence to attack this Court’s prior determination
that his claim had no merit, it fails to show that reopening this
case would be anything but futile.
His motion still fails to show
that the sought funding is reasonably necessary for the development
of a claim of ineffective assistance of trial counsel. Accordingly,
if this motion were within the jurisdiction of this Court under Rule
60(b)(6), it would be DENIED.
IV.
Segundo’s motion for relief under Rule 60(b) (doc. 86) is a
successive application for habeas relief and is TRANSFERRED to the
United States Court of Appeals for the Fifth Circuit along with the
application to stay his execution (doc. 94). 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 it on the basis
20
of this order.
Considering the record in this case and pursuant to Federal Rule
of Appellate Procedure 22(b), Rule 11(a) of the Rules Governing §§
2254 and 2255 proceedings, and 28 U.S.C. § 2253(c), the Court DENIES
a certificate of appealability.
Petitioner 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). Petitioner has previously been
allowed to proceed in forma pauperis and this status is continued
for purposes of appeal.
(Order, doc. 8; Mem. Op. and Order, doc.
48, at 48.)
The motion for relief from judgment (doc. 86) and accompanying
application for stay of execution (doc. 94) are TRANSFERRED.
SIGNED September 26, 2018.
____________________________
TERRY R. MEANS
UNITED STATES DISTRICT JUDGE
TRM/rs
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