REVISED JULY 1, 2002 IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT _____________________
No. 02-40755 _____________________
JOHNNY JOE MARTINEZ; GARY ETHERIDGE; NAPOLEON BEAZLEY
Plaintiffs-Appellants
v.
THE TEXAS COURT OF CRIMINAL APPEALS; SHARON KELLER, PRESIDING JUDGE; LAWRENCE E. MEYERS, MICHAEL KEASLER, TOM PRICE, BARBARA HERVEY, PAUL WOMACK, CHARLES HOLCOLM, CHERYL JOHNSON, CATHY COCHRAN, ASSOCIATE JUDGES, TEXAS COURT OF CRIMINAL APPEALS;
and
JANIE COCKRELL, DIRECTOR, INSTITUTIONAL DIVISION, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
Defendants-Appellees _________________________________________________________________
Appeal from the United States District Court for the Southern District of Texas _________________________________________________________________ May 21, 2002 Before KING, Chief Judge, and JONES and STEWART, Circuit Judges.
KING, Chief Judge:
Plaintiffs-Appellants Johnny Joe Martinez, Gary Etheridge, and
Napoleon Beazley challenge the district court’s judgment dismissing,
for lack of jurisdiction, their complaint alleging claims under 42
U.S.C. § 1983. For the following reasons, we AFFIRM the judgment of
the district court. Due to the exigencies of time, we construe this
appeal alternatively as an application for permission to file a
successive habeas corpus petition, which we DENY. Plaintiffs-Appellants Johnny Joe Martinez, Gary Etheridge, and
Napoleon Beazley (collectively, “the Plaintiffs”) are all prisoners
under sentence of death in the State of Texas. Each of the
Plaintiffs was convicted of capital murder. Each Plaintiff has
directly appealed his conviction, and has collaterally attacked his
conviction by filing petitions seeking a writ of habeas corpus in
both state and federal court.1 None of these post-conviction
challenges has been successful. Martinez’s sentence of death is
scheduled to be carried out tomorrow, on May 22, 2002. Etheridge’s
sentence of death is scheduled to be carried out on June 27, 2002.
Beazley’s sentence of death is scheduled to be carried out on May 28,
2002.
On May 17, 2002, the Plaintiffs filed the instant 42 U.S.C.
§ 1983 action in federal district court against Defendants-Appellees
the Texas Court of Criminal Appeals, the judges comprising that
court, and the Director of the Institutional Division of the Texas
Department of Criminal Justice (collectively, “the Defendants”). The
essential theory of the complaint is that the Texas Court of Criminal
Appeals has violated the Plaintiffs’ rights under the Sixth, Eighth,
1 See Martinez v. Johnson, 255 F.3d 229, 231, 234-37 (5th Cir. 2001), cert. denied, 122 S.Ct. 1175 (2002) (outlining the procedural history of Martinez’s case and affirming the district court’s denial of his petition for federal habeas relief); Beazley v. Johnson, 242 F.3d 248, 253-55, 274 (5th Cir.), cert. denied, 122 S.Ct. 329 (2001) (outlining the procedural history of Beazley’s case and affirming the district court’s denial of his petition for federal habeas relief); Etheridge v. Johnson, 209 F.3d 718 (5th Cir.) (Unpublished table decision), cert. denied, 531 U.S. 945 (2000) (outlining the procedural history of Etheridge’s case and denying his request for a certificate of appealability).
2 and Fourteenth Amendments by engaging in a policy of “knowingly and
intentionally” appointing incompetent lawyers to represent indigent
death row inmates in their state habeas proceedings. Specifically,
each of the Plaintiffs alleges that he had obvious and potentially
meritorious claims of constitutional error (including, inter alia,
claims of ineffective assistance of trial counsel and/or
prosecutorial misconduct) that were not raised in his petition for
state habeas relief due to the incompetence of his appointed state
habeas counsel. Each Plaintiff was unsuccessful in his subsequent
attempt to secure federal habeas relief, because the federal courts
were procedurally barred from considering the constitutional claims
omitted from the state habeas petition. See supra note 1.
Accordingly, the Plaintiffs were never afforded an opportunity to
present these claims to any state or federal court.
The Plaintiffs allege that Texas’s “policy” of appointing
incompetent state habeas counsel deprived them of their right of
meaningful access to the courts, as provided by the Fourteenth
Amendment, as well as their Sixth Amendment right to effective
assistance of counsel. The Plaintiffs further contend that these
procedural inadequacies render their death sentences unreliable, and
thus constitutionally suspect under the Eighth Amendment. They seek:
(1) a temporary restraining order and preliminary injunction
preventing the Defendants from executing them during the pendency of
this litigation; (2) a permanent injunction directing the Defendants
to appoint competent state habeas counsel in all Texas death penalty
cases; and (3) a declaratory ruling from this court that federal
courts need not apply the procedural bar of 28 U.S.C. § 2254 to
3 procedural defaults occasioned by incompetence of state habeas
counsel if the state does not authorize filing of a successive state
habeas application.
The district court dismissed the Plaintiffs’ complaint. Relying
on this court’s suggestion that the “core issue in determining
whether a prisoner must pursue habeas corpus relief rather than a
civil rights action is . . . whether the prisoner challenges the
‘fact or duration’ of his confinement or merely challenges the rules,
customs, and procedures affecting ‘conditions’ of confinement,” Cook
v. Texas Dep’t of Criminal Justice Transitional Planning Dep’t, 37
F.3d 166, 168 (5th Cir. 1994) (quoting Spina v. Aaron, 821 F.2d 1126,
1128 (5th Cir. 1987)), the district court concluded that the
Plaintiffs’ 42 U.S.C. § 1983 claims in the instant case were properly
construed as requests for writs of habeas corpus under 28 U.S.C. §
2254. The district court determined that dismissal was thus
appropriate because, pursuant to 28 U.S.C. § 2254(b)(3)(A), district
courts lack jurisdiction to consider second or successive habeas
petitions unless this court has granted the petitioners express
permission to file such a petition. The Plaintiffs timely appealed
the district court’s dismissal of their complaint, requesting that
this court enjoin state officials from carrying out any executions
until the merits of this litigation are resolved and remand this case
to the district court for development of the factual record. We
review a district court’s dismissal of a § 1983 complaint for lack of
jurisdiction de novo. See Bazrowx v. Scott, 136 F.3d 1053, 1054
(5th Cir. 1998).
The Plaintiffs argue that the district court erred in construing
4 their § 1983 action as a petition for a writ of habeas corpus. They
contend that their § 1983 action cannot be a de facto habeas action
because they are not asking the federal courts to set aside their
state convictions or sentences, as they would in a habeas action.
The Plaintiffs maintain that their only goal in pursuing this action
is to obtain “a forum in which to litigate their Sixth, Eighth, and
Fourteenth Amendment claims.”
The Supreme Court has determined that state prisoners may not
obtain equitable relief under § 1983 when the federal habeas corpus
statute is the exclusive remedial mechanism for obtaining the
requested relief. In Preiser v. Rodriguez, 411 U.S. 475 (1973), the
Court considered a § 1983 action brought by state prisoners alleging
that state prison officials had unconstitutionally deprived them of
good-conduct-time credits. The petitioners sought injunctive relief
compelling restoration of the credits, which would entitle them to
immediate release from prison. Id. at 476-77. While the Court
acknowledged that the petitioners’ claims fell within the literal
language of § 1983, id. at 488-89, the Court determined that “the
specific language of the federal habeas corpus statute, explicitly
and historically designed to provide the means for a state prisoner
to attack the validity of his confinement, must be understood to be
the exclusive remedy available in a situation like this where it so
clearly applies.” Id. at 489. The Court accordingly held that
habeas corpus is the exclusive remedy for state prisoners seeking
immediate release or speedier release from prison. Id. at 490. The
Court reasoned that to hold otherwise would permit prisoners to
circumvent the exhaustion requirement of § 2254(b), thus undermining
5 the considerations of federal-state comity that underlie this
exhaustion requirement. Id. at 491.
The Court subsequently extended this holding to claims
challenging method of execution. In Gomez v. United States District
Court for the Northern District of California, 503 U.S. 653 (1992),
the Court considered a § 1983 claim brought by a capital offender
alleging that the State of California’s method of execution (i.e.,
lethal gas) was cruel and unusual punishment in violation of the
Eighth Amendment. The Court determined that the § 1983 suit was “an
obvious attempt to avoid the application of” the Court’s prior
holding in McClesky v. Zant, 499 U.S. 467 (1991), barring assertion
of claims in subsequent habeas petitions that could have been raised
in prior habeas petitions. Gomez, 503 U.S. at 653. Thus, the Court
implicitly determined that the petitioner’s challenge to his method
of execution was properly considered a de facto habeas challenge
rather than a § 1983 action.2
The Court also clarified its Preiser holding in Edwards v.
Balisok, 520 U.S. 641 (1997). In Edwards, an inmate challenged the
procedures used by state prison officials in his disciplinary
hearing, alleging that these procedures violated his Fourteenth
Amendment due process rights. He requested declaratory relief and
monetary damages; he did not, however, request restoration of his
good-time credits. The Supreme Court found that habeas corpus was
the exclusive remedy for this claim because the “principal procedural
2 The Court held, in the alternative, that even if the petitioner’s claim could properly be considered as a § 1983 action, numerous equitable considerations, including “the State’s strong interest in proceeding with its judgment,” argued against granting equitable relief. Gomez, 503 U.S. at 654.
6 defect complained of by the petitioners (i.e., deceit and bias on the
part of the decisionmaker) would, if established, necessarily imply
the invalidity of the deprivation of his good-time credits,” and,
thus, necessarily imply a need for immediate or speedier release from
prison. Id. at 648. However, in considering the petitioner’s
related due process claim for prospective injunctive relief requiring
state prison officials to date-stamp witness statements in
disciplinary proceedings, the Edwards Court clearly held open the
possibility that a prisoner’s complaint challenging the procedures of
a disciplinary proceeding could be maintained as a § 1983 action if
the relief requested would not necessarily imply the invalidity of
his continued detention. Id.
This court has elaborated on this line of authority on a number
of occasions. For example, in Cook, this court considered a
prisoner’s § 1983 challenge to a parole board procedure allowing the
board to take voided prior convictions into consideration when making
parole eligibility determinations. This court considered whether
this claim was cognizable under § 1983, or must instead “be brought
after exhausting state remedies, as a habeas corpus claim.” Cook, 37
F.3d at 167. Acknowledging that “the line between claims which must
initially be pressed by writ of habeas corpus and those cognizable
under § 1983 is a blurry one,” we held that “the core issue in
determining whether a prisoner must pursue habeas corpus relief
rather than a civil rights action is to determine whether the
prisoner challenges the ‘fact or duration’ of his confinement or
merely the rules, customs, and procedures affecting ‘conditions’ of
confinement.” Id. at 168 (quoting Spina, 821 F.2d at 1128). We
7 found that “a distinction must be made between claims that would
merely enhance eligibility for accelerated release and those that
would create an entitlement to such relief” and determined that the
petitioner’s claim could be maintained as a § 1983 action because he
did not challenge
“the fact of his conviction or confinement” but instead merely sought
future injunctive relief to “avoid what he believes is an
unconstitutional procedure by the Board.” Id. This decision did not
directly question the validity of the petitioner’s continued
incarceration and could, thus, properly be maintained as a § 1983
action.
Four years later, in Clarke v. Stalder, 154 F.3d 186 (5th Cir.
1998), we clarified our interpretation of the distinction between
claims that can be brought as § 1983 actions and claims that must be
brought as habeas actions, in light of the Supreme Court’s decision
in Edwards. In Clarke, we considered a state inmate’s constitutional
challenge to a Louisiana corrections rule prohibiting inmates from
threatening prison employees with legal redress during “confrontation
situations.” Id. at 188. We held that the inmate was precluded from
bringing a facial challenge to the corrections rule in a § 1983
action. While we acknowledged Edwards’s suggestion that claims for
prospective injunctive relief can appropriately be maintained as
§ 1983 actions if they do not imply the invalidity of a previous
conviction (or of a prisoner’s continued detention), id. at 189, we
distinguished the request for prospective injunctive relief at issue
in Edwards, which “may have only an ‘indirect impact’ on the validity
of a prisoner’s conviction,” from the type of prospective injunctive
8 relief at issue in Clarke. Id. We concluded that the type of
prospective injunctive relief at issue in Clarke was “so intertwined
with his request for damages and reinstatement of his lost good-time
credits that a favorable ruling on the former would ‘necessarily
imply’ the invalidity of his loss of good-time credits.” Id.
Because the claims were interrelated in this manner, we found that
the legal issues necessary to decide the § 1983 claim would
effectively determine the validity of the disciplinary result and the
plaintiff’s lengthened sentence. Accordingly, we concluded that the
plaintiff’s request for declaratory and injunctive relief could not
be maintained as a § 1983 action. Id. at 191.
More recently, in a series of cases exemplified by Moody v.
Rodriguez, 164 F.3d 893 (5th Cir. 1999), Faulder v. Johnson, 178 F.3d
741 (5th Cir. 1999), and Beets v. Texas Board of Pardons and Paroles,
205 F.3d 192 (5th Cir. 2000), this court has examined whether habeas
corpus is the exclusive remedy for a capital offender seeking a last-
minute stay of execution. In each of these cases, we considered
whether a prisoner sentenced to death could bring a § 1983 action
challenging the procedural defects in his state clemency proceeding.
We determined that federal courts lacked jurisdiction to stay the
petitioners’ executions pursuant to § 1983, reasoning that
“[p]risoner challenges to the result of a single allegedly defective
clemency proceeding must be pursued by writ of habeas corpus, not by
suits under 1983.” Moody, 164 F.3d at 893 (citing Preiser, 411 U.S.
475); accord Faulder, 178 F.3d at 742; Beets, 205 F.3d at 193; see
also Gilreath v. State Bd. of Pardons and Paroles, 273 F.3d 932, 933
(11th Cir. 2001) (concluding that a petitioner’s due process
9 challenge to the state’s consideration of his clemency application
was a de facto petition for habeas relief). Although none of these
cases significantly elaborates the rationale underlying this
determination, Moody’s reliance on Preiser indicates our implicit
conclusion that a request for a stay of execution entails a potential
federal interference with state penal interests that is equivalent
to, if not greater than, the request for immediate release (or
speedier release) from prison that was at issue in Preiser.
Accordingly, § 1983 challenges to an impending execution (like § 1983
challenges to a state’s method of execution or § 1983 challenges
seeking immediate or speedier release from prison) must be brought as
habeas actions.
We now apply this line of authority to the facts of the instant
case. As the above-referenced cases make clear, in determining
whether an action is properly considered as a de facto habeas action
or a § 1983 action, we look at the kind of relief the petitioner
seeks from the federal courts. See, e.g., Moody, 164 F.3d at 893;
accord Gilreath, 273 F.3d at 933. The first kind of relief the
petitioner sought from the district court was a “temporary
restraining order and preliminary injunction preventing defendants
and all persons acting under their authority, direction, or control,
or acting in privity or with identity of interest, from carrying out
the execution of the Plaintiffs until this litigation has run its
course.” As the district court correctly recognized, this request is
the functional equivalent of a request for a stay of execution. It
is well-established under Moody and its progeny that a petition for a
writ of habeas corpus is the exclusive remedy for a petitioner
10 seeking stay of execution. Construing the Plaintiffs’ requests for
stays of execution as habeas claims, the district court properly
determined that it was without jurisdiction to consider these claims
in the absence of express authorization by this court pursuant to 28
U.S.C. § 2244(b)(3)(A).
The Plaintiffs also requested from the district court (1) a
permanent injunction directing the Defendants to appoint competent
state habeas counsel in all Texas death penalty cases; and (2) a
declaratory ruling from this court that federal courts need not apply
the procedural bar of 28 U.S.C. § 2254 to procedural defaults
occasioned by incompetence of state habeas counsel if the state does
not authorize filing of a successive state habeas application. These
requests form the basis of the Plaintiffs’ contention that Preiser is
inapplicable to their § 1983 claims because they ultimately seek only
a “forum” in which to present their constitutional claims, rather
than a reversal of their convictions or sentences. However, we find,
pursuant to our decision in Clarke v. Stalder, that these requests
for declaratory and injunctive relief are “so intertwined” with the
Plaintiffs’ request for injunctive relief from their impending
executions that a favorable ruling on the Plaintiffs’ challenges to
Texas’s system for appointing state habeas counsel is likely to
effectively determine the validity of their death sentences.
Accordingly, these claims for declaratory and injunctive relief are
not cognizable in a § 1983 action. See Clarke, 154 F.3d at 191.
In the alternative, even if the Plaintiffs’ requests for
declaratory and injunctive relief imposing systemic reform of Texas’s
11 habeas corpus procedures could properly be addressed as § 1983 claims
under Cook, the requested relief is foreclosed by this court’s
precedents. As the Defendants correctly point out, both this court
and the Supreme Court have already determined on numerous occasions
that there is no constitutional right to state habeas corpus counsel.
See, e.g., Pennsylvania v. Finley, 481 U.S. 551, 554 (1987); Jones v.
Johnson, 171 F.3d 270, 277 (5th Cir. 1999). Accordingly, the
alleged ineffectiveness of state habeas counsel cannot constitute
cause sufficient to avoid application of a procedural bar on federal
habeas review to claims defaulted in state court. Jones, 171 F.3d at
277. In their second and third claims for relief, the Plaintiffs
effectively ask the district court to reverse longstanding Supreme
Court precedent and to rewrite the federal habeas statute. The
district court properly declined this invitation.
Because we conclude (in accordance with the holding of the
district court) that the Plaintiffs’ claims should have been brought
as a habeas corpus action, in the interests of judicial economy (and
due to the time constraints at issue in this challenge to impending
executions), we construe the Plaintiffs’ appeal of the district
court’s judgment alternatively as an application for permission to
file a successive habeas corpus petition. See, e.g., Cooper v.
Calderon, 274 F.3d 1270, 1275 (9th Cir. 2001) (construing a
petitioner’s request for a certificate of appealability as a request
for authorization to file a second or successive habeas petition);
Allen v. Massie, 236 F.3d 1243, 1245-46 (10th Cir. 2001) (construing
a petitioner’s request, made on the eve of her execution, to recall
the mandate in her federal habeas action as an application to file a
12 second or successive habeas petition). We find that the claims
alleged in the Plaintiffs’ complaint do not meet the standard
established in 28 U.S.C. § 2244(b). Even if we assume, arguendo,
that the Plaintiffs’ challenges to Texas’s “policy” of appointing
ineffective state habeas counsel can be conceptually distinguished
from their challenges to the ineffectiveness of their own state
habeas counsel asserted in their first habeas corpus proceedings,
these claims neither “rel[y] on a new rule of constitutional law,
made retroactive to cases on collateral review by the Supreme Court,”
id. § 2244(b)(2)(A), nor rely on newly-discovered facts that “would
be sufficient to establish by clear and convincing evidence that, but
for constitutional error, no reasonable factfinder would have found”
the Plaintiffs guilty of their underlying offenses, id. §
2244(b)(2)(B). Accordingly, the Plaintiffs’ request for permission
to file a successive habeas petition is denied.
For the foregoing reasons, the judgment of the district court is
AFFIRMED, and the Plaintiffs’ request to this court for injunctive
relief is DENIED. The Plaintiffs’ alternative request for permission
to file a successive petition for a writ of habeas corpus is DENIED.