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In re Johnson

United States Court of Appeals, Fifth Circuit

August 14, 2019

In re: DEXTER JOHNSON, Movant
v.
LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION, Respondent - Appellee DEXTER JOHNSON, Petitioner - Appellant

          Appeals from the United States District Court for the Southern District of Texas

          Before SOUTHWICK, GRAVES, and HIGGINSON, Circuit Judges.

          LESLIE H. SOUTHWICK, CIRCUIT JUDGE

         A Texas 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.

         FACTUAL AND PROCEDURAL BACKGROUND

         Dexter 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 direct appeal.

         Patrick 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.

         After 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.

         The 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).

         On June 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.

         On 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.

         Six 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.

         On June 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.

         On 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.

         On 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.

         We 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.

         DISCUSSION

         I. Motion for COA on denial of Rule 60(b) motion

         "At 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.

         "[R]elief 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).

         The 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.

         The 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 ...


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