Appeals from the United States District Court for the
Southern District of Texas
SOUTHWICK, GRAVES, and HIGGINSON, Circuit Judges.
H. SOUTHWICK, CIRCUIT JUDGE
inmate whose execution is imminent has presented to us both a
request to review the district court's denial of his Rule
60(b) motion for relief from a prior judgment and also a
motion for permission to file a successive application for a
writ of habeas corpus. We conclude there is no merit in the
appeal and DENY review. On the other hand, we conclude that
the motion for permission to file has demonstrated possible
merit in a claim regarding a current intellectual disability
that warrants full exploration by the district court. We
GRANT the motion and STAY the execution.
AND PROCEDURAL BACKGROUND
Johnson was convicted of the murder of Maria Aparece in the
course of attempting a robbery on June 13, 2007, and he was
sentenced to death. Far greater detail is given of the
offense in Johnson v. Stephens, 617 Fed.Appx. 293
(5th Cir. 2015). His conviction and sentence were affirmed on
McCann was appointed as Johnson's state habeas counsel.
Johnson filed a state application for writ of habeas corpus
while his direct appeal was pending. His state habeas claims
were denied, and McCann did not raise an ineffective
assistance of trial counsel (IATC) claim. That application
also did not include a claim under Atkins v.
Virginia, 536 U.S. 304 (2002). McCann continued to
represent Johnson in federal habeas proceedings, filing an
application one year later that was duplicative of the state
habeas claims, plus one claim that Johnson was interrogated
in violation of Edwards v. Arizona, 451 U.S. 477
(1981). It also did not include an Atkins claim.
Martinez v. Ryan, 566 U.S. 1 (2012), was decided,
McCann filed a motion in federal court to stay and to abey
Johnson's proceeding to allow exhaustion of his IATC
claims or to amend his application under Martinez to
add those claims. That claim alleged that trial counsel were
ineffective for failing to present evidence of Johnson's
brain damage and mental illness during the guilt phase to
show he could not form intent for murder and that appellate
counsel were ineffective for failing to raise IATC claims.
district court ordered supplemental briefing on Trevino
v. Thaler, 569 U.S. 413 (2013). It ultimately denied
Johnson's motion to stay and abey or amend the federal
application and Johnson's request for habeas relief. The
district court granted a Certificate of Appealability (COA)
on Johnson's claim that his custodial statement was
admitted in violation of his Fifth Amendment rights. We then
affirmed the denial of habeas relief on his Fifth Amendment
claim and denied an additional request for a COA.
Johnson, 617 Fed.Appx. at 305. Johnson sought
Supreme Court review, which was denied. Johnson v.
Stephens, 136 S.Ct. 980 (2016).
4, 2017, Johnson filed a motion in the federal district court
requesting a new trial. The court denied the motion and his
motion for reconsideration. Johnson requested a COA, which
was denied by this court. Johnson v. Davis, 746
Fed.Appx. 375, 381 (5th Cir. 2018) (per curiam). The Supreme
Court again denied him a writ of certiorari.
January 18, 2019, Johnson, pro se, requested a
Federal Public Defender (FPD) be appointed in his case
because of the conflict of interest between himself and
McCann established after Martinez and
Trevino. McCann filed an opposition under seal.
Johnson then filed a pro se motion on February 1,
2019, again asking for independent counsel. On February 5,
2019, the court appointed a FPD, but McCann remained counsel
as well. The FPD requested removal of McCann, which the State
and McCann opposed.
days after the motion to remove him, McCann filed a
single-issue successive habeas application in state court,
which was denied April 29, 2019. McCann also filed a clemency
petition. On April 30, 2019, the district court stayed
Johnson's execution, noting "troubling
concerns" about McCann. McCann withdrew two days later.
24, 2019 Johnson filed a motion for relief from judgment
under Federal Rule of Civil Procedure 60(b). The district
court denied the motion on August 12, 2019 and did not
certify any issue for appeal. Johnson immediately applied for
a certificate of appealability with this court.
August 6, 2019, Johnson moved in state court to strike his
second successive state habeas application, alleging that it
was filed by McCann without his permission. Along with that
motion, he also filed a successive habeas application. The
new habeas application was denied "as an abuse of the
writ without reviewing the merits of the claims raised"
on August 13, 2019. The motion to strike the prior
application also was denied.
August 8, 2019, Johnson also moved in this court under 28
U.S.C. § 2244 for an order authorizing the district
court to consider a second or successive application for a
writ of habeas corpus based on an Atkins claim.
first discuss Johnson's Motion for a Certificate of
Appealability relating to the district court's denial of
relief under Rule 60(b). Then we will review the motion for
an order authorizing a successive habeas application.
Motion for COA on denial of Rule 60(b) motion
the COA stage, the only question is whether the applicant has
shown that 'jurists of reason could disagree with the
district court's resolution of his constitutional claims
or that jurists could conclude the issues presented are
adequate to deserve encouragement to proceed
further.'" Buck v. Davis, 137 S.Ct. 759,
773 (2017) (quoting Miller-El v. Cockrell, 537 U.S.
322, 327 (2003)). This court reviews the district court's
order denying a Rule 60(b) motion for an abuse of discretion,
so on a COA this court must determine whether reasonable
jurists could conclude the district court abused its
discretion. Id. at 777. While a full merits inquiry
is not proper in the COA analysis, we conduct a threshold
inquiry to determine if the district court's decision was
debatable. Id. at 774.
under Rule 60(b)(6) is available only in 'extraordinary
circumstances.'" Id. at 777 (quoting
Gonzales v. Crosby, 545 U.S. 524, 535 (2005)).
Extraordinary circumstances "will rarely occur in the
habeas context." Gonzalez, 545 U.S. at 535. The
district court is permitted to consider a "wide range of
factors" in determining whether extraordinary
circumstances are present. Buck, 137 S.Ct. at 778.
"These may include, in an appropriate case, 'the
risk of injustice to the parties' and 'the risk of
undermining the public's confidence in the judicial
process.'" Id. (quoting Liljeberg v.
Health Servs. Acquisition Corp., 486 U.S. 847, 863-64
(1988)). "Moreover, a Rule 60(b)(6) movant must show
that he can assert 'a good claim or defense' if his
case is reopened." Ramirez v. Davis, 19-70004,
2019 WL 2622147, at *6 (5th Cir. June 26, 2019) (quoting
Buck, 137 S.Ct. at 780).
district court concluded that Johnson's motion was a
valid Rule 60(b) motion because it attacked a defect in the
integrity of the prior federal habeas proceeding. See
Gilkers v. Vannoy, 904 F.3d 336, 344 (5th Cir. 2018).
That defect was McCann's ineffective assistance and
conflicts of interest. Jurists of reason would not conclude
that the district court abused its discretion in finding
Johnson's motion to be a true Rule 60(b) motion.
district court also determined that Johnson's motion was
timely because newly appointed counsel filed the motion
within six months after appointment as co-counsel and very
shortly after original habeas counsel was removed. The
question of timeliness is based on the "facts and