Escobedo v. Thaler

Filing 49

ORDER Staying and Administratively Closing Case. Accordingly, this case is STAYED and ADMINISTRATIVELY CLOSED. The Court DENIES all pending motions WITHOUT PREJUDICE. The Court ORDERS Escobedo to file a state habeas application within sixty days fr om the entry of this Order. The Texas Court of Criminal Appeals must then decide whether Escobedos subsequent state habeas application should proceed before the convicting court. Escobedo will move to reopen this case within thirty days of the concl usion of state habeas review. The Court will enter a new scheduling order when the parties return to federal court....*** terminate 38 Opposed MOTION for on Atkins Claim Hearing, terminate 34 MOTION for Summary Judgment...*** Case terminated on 8/10/18, STAYED flag set. (Signed by Judge Kenneth M Hoyt) Parties notified.(sanderson, 4)

Case 4:09-cv-03390 Document 49 Filed in TXSD on 08/10/18 Page 1 of 4
United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
JOEL ESCOBEDO,
Petitioner,
VS.
LORIE DAVIS,
Respondent.

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August 10, 2018
David J. Bradley, Clerk

CIVIL ACTION NO. 4:09-CV-3390

ORDER STAYING AND ADMINISTRATIVELY CLOSING CASE
Texas death-row inmate Joel Escobedo filed a federal petition for a writ of habeas corpus
arguing that he is intellectually disabled, and thus ineligible for execution, under Atkins v.
Virginia, 536 U.S. 304 (2002). The state courts denied Escobedo’s Atkins claim under the
standards established in Ex parte Briseno, 135 S.W.3d 1 (Tex. Crim. App. 2004). The United
States Supreme Court has recently rejected Texas’ use of the Briseño standards in Moore v.
Texas, 137 S. Ct. 1039, 1048 (2017). The Court of Criminal Appeals has reevaluated its Atkins
jurisprudence after Moore. See Ex parte Moore, 2018 WL 2714680, at *15 (Tex. Crim. App.
2018).

The Texas Court of Criminal Appeals has recently authorized successive habeas

proceedings to review Atkins claims under Moore, even though the claims had already been
denied under the Briseño standard. See Ex Parte Lizcano, 2018 WL 2717035, at *2 (Tex. Crim.
App. 2018); Ex Parte Guevara, 2018 WL 2717041, at *1 (Tex. Crim. App. 2018); Ex Parte
Williams, 2018 WL 2717039, at *1 (Tex. Crim. App. 2018); Ex parte Davis, 2017 WL 6031852,
at *2 (Tex. Crim. App. 2017). The Court ordered the parties to brief whether Texas would
provide a forum to reconsider Escobedo’s Atkins claim in light of Moore. (Docket Entry No.
46).

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Respondent Lorie Davis “takes no position on whether a stay is appropriate,” but
concedes that, “[g]iven the [Court of Criminal Appeals’] willingness to allow subsequent
applications in this context, it appears that [it] will permit a forum for resolving Moore’s
applicability in Escobedo’s case.” (Docket Entry No. 47 at 2). Escobedo, on the other hand,
opposes any stay. Even if a forum for consideration of his Atkins claim exists, Escobedo fears
that he would not receive a full and fair hearing in state court. Escobedo worries that the state
courts will not appoint counsel to prepare a successive habeas application, authorize funds to
investigate his Atkins claim, apply the Moore decision in a fair manner, or impartially consider
his evidence. (Docket Entry No. 48 at 3-9).
Any state Atkins proceeding that fails to afford Escobedo all due process rights may
disentitle resulting decisions to deference under the Anti-Terrorism and Effective Death Penalty
Act. See Blue v. Thaler, 665 F.3d 647, 657 (5th Cir. 2011). Escobedo, however, does not
identify any law that would authorize forgoing an available state remedy because of the manner
in which Texas adjudicates Atkins claims. Given the Court of Criminal Appeals’ willingness to
allow successive actions to proceed based on Moore, the Court finds the state courts should have
the first opportunity to resolve Escobedo’s Atkins claim. Accordingly, this case is STAYED and
ADMINISTRATIVELY CLOSED.
The Court DENIES all pending motions WITHOUT PREJUDICE.
A stay of federal proceedings should not be indefinite. See Ryan v. Gonzales, ___ U.S.
___, 133 S. Ct. 696, 709 (2013).

The Court ORDERS Escobedo to file a state habeas

application within sixty days from the entry of this Order. Under Tex. Code Crim. Pro. art.
11.071 § 5, the Texas Court of Criminal Appeals must then decide whether Escobedo’s

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subsequent state habeas application should proceed before the convicting court. Escobedo will
make all reasonable efforts to resolve his state habeas proceedings expeditiously.
Escobedo’s return to state court raises questions about the scope of his federally
appointed attorneys’ representation. In Harbison v. Bell, 556 U.S. 180 (2009), the Supreme
Court interpreted section 3599(e) to authorize federally appointed counsel to represent a
petitioner in all proceedings that transpire “subsequent” to counsel’s appointment, including a
state clemency proceeding, and to be compensated by the federal courts for that representation.
The Supreme Court also addressed whether such authorization would apply to any later state
habeas corpus proceedings. Id. at 190. The Supreme Court held that “[s]tate habeas is not a
stage ‘subsequent’ to federal habeas.” Id. at 189. As a result, federally appointed counsel are
not guaranteed compensation for services related to state habeas proceedings.

Harbison,

however, allows a district court to “determine on a case-by-case basis that it is appropriate for
federal counsel to exhaust a claim in the course of her federal habeas representation.” Id. at 190
n.7. The Court finds that it is appropriate for Escobedo to present his Atkins claim again in state
court.
The Court’s authority to compensate Escobedo’s federally appointed counsel for work
done in state court is contingent on there being an absence of state compensation for their efforts.
See Harbison 556 U.S. at 189 (“[S]tate-furnished representation renders [an inmate] ineligible
for § 3599 counsel.”). Texas law apparently does not provide any mandatory mechanism to
compensate counsel for work performed in drafting and filing a successive state habeas
application. See Ex Parte Gallo, 448 S.W.3d 1, 5-6 (Tex. Crim. App. 2014). Federal counsel for
Escobedo may submit vouchers seeking compensation for the preparation and filing of his
successive state habeas application.

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However, Texas law mandates that the convicting court “shall appoint” counsel if the
Court of Criminal Appeals authorizes successive state review. Tex. Code Crim. Pro. art. 11.071
§ 6 (emphasis added). Under state law, the convicting court will then appoint “the attorney who
represented the applicant in the [original habeas proceedings],” “the office of capital and forensic
writs,” or “counsel from a list of competent counsel maintained by the presiding judges of the
administrative judicial regions.” Id. Should the Court of Criminal Appeals authorize successive
state proceedings in the convicting court, federal counsel in this case will file a motion for statefunded counsel and otherwise make every reasonable effort to secure the appointment of an
attorney. Whether the state courts ultimately appoint Escobedo’s federal attorneys or other
attorneys to represent him in any successive state habeas proceedings, federally appointed
counsel must file an advisory with this Court describing the efforts made to secure state-funded
representation. Federal counsel’s advisory will include copies of: (1) Escobedo’s successive
state habeas application and (2) any and all motions seeking state representation.
Escobedo will move to reopen this case within thirty days of the conclusion of state
habeas review. The Court will enter a new scheduling order when the parties return to federal
court.
It is so ORDERED.
SIGNED on this 10th day of August, 2018.
___________________________________
Kenneth M. Hoyt
United States District Judge

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