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In re Sparks

United States Court of Appeals, Fifth Circuit

December 10, 2019

In re: ROBERT SPARKS, Movant

          Appeal from the United States District Court for the Northern District of Texas

          Before HIGGINBOTHAM, JONES, and COSTA, Circuit Judges.

          EDITH H. JONES, Special Concurrence:

         This concurrence follows a brief order of this court entered September 24, 2019, which denied authorization to file a successive habeas petition. A copy of that order is attached hereto.

         My colleagues apparently see no problem in counsel's plain evasion of our rules governing last-minute capital habeas filings, see Fifth Circuit Local Rule 8.10, but this practice is again becoming common. Consequently, I think it high time not only to issue a warning to Jonathan Landers that no further manipulation of habeas proceedings will be tolerated by this court, but to place all capital habeas counsel on notice that disorderly presentation of cases is an affront to the judicial process.

         Sparks was scheduled to be executed by the State of Texas, and was executed, on September 25, 2019. On September 16, 2019, nine days before the execution, Sparks's counsel, Mr. Landers, filed in this court a motion for authorization to file a successive habeas petition pursuant to 28 U.S.C. § 2244(b)(2) based solely on the contention that Sparks suffered from mental disability and was therefore ineligible for execution. See Atkins v. Virginia, 536 U.S. 304, 321, 122 S.Ct. 2242, 2252 (2002).

         In response to a request sent by this court on September 16, 2019, Mr. Landers explained in detail the timeline whereby Sparks's alleged mental disability claim had been raised in state and federal courts. The timeline is reproduced below. Mr. Landers conceded that he filed the motion for authorization (and related motion to stay) on September 16, 2019, to avoid potential consequences from a filing made less than seven business days before the scheduled execution. Mr. Landers was well aware of this court's Local Rule 8.10, which states in relevant part:

Time Requirements for Challenges to Death Sentences and/or Execution Procedures. Inmates sentenced to death . . . who seek permission to file a successive petition . . . must exercise reasonable diligence in moving . . . for permission to file a second or successive habeas petition . . . and a stay of execution with the clerk of this court at least seven days before the scheduled execution.

         5th Cir. Local Rule 8.10.

         As Mr. Landers also well knew, his motion for authorization was at least premature, because at the date of filing, he had not exhausted his client's Atkins claim in the state court proceedings. In other words, on September 16, 2019, and for several days afterward, this court had no authority to grant relief of any sort. AEDPA authorizes federal court jurisdiction only over habeas claims in which state courts have had the first opportunity to rule on the merits. 28 U.S.C. § 2254. And, as this timeline demonstrates, Sparks had ample opportunity, for at least two years preceding the setting of an execution date, to raise his mental disability claim in state and then federal courts:

• 2008: Sparks is convicted and sentenced to death
• 2010-2011: Sparks's conviction and sentence are affirmed on direct appeal by the Texas Court of Criminal Appeals, and the United States Supreme Court denies certiorari
• 2011-2012: The Texas Court of Criminal Appeals denies relief on Sparks's first state habeas petition, and the ...

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