from the United States District Court for the Northern
District of Texas
HIGGINBOTHAM, JONES, and COSTA, Circuit Judges.
H. JONES, Special Concurrence:
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
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.
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).
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.
Cir. Local Rule 8.10.
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
• 2011-2012: The Texas Court of Criminal Appeals denies
relief on Sparks's first state habeas petition, and the