In Re: Martin ( 2002 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-30467
No. 02-30469
IN RE: LESLIE DALE MARTIN,
Movant.
_________________________________________________________________
Motion for Stay of Execution and for Authorization to File a
Successive Habeas Corpus Petition in the United States District
Court for the Western District of Louisiana
_________________________________________________________________
May 10, 2002
LESLIE DALE MARTIN,
Petitioner-Appellant,
versus
BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY,
Respondent-Appellee.
_________________________________________________________________
Motion for Stay of Execution
Appeal from the United States District Court for the Middle
District of Louisiana
(02-CV-453)
_________________________________________________________________
Before KING, Chief Judge, and BARKSDALE and STEWART, Circuit
Judges.
PER CURIAM:*
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
Leslie Dale Martin seeks a stay of his execution set for
today, 10 May 2002; requests permission to file a successive 28
U.S.C. § 2254 habeas application; and appeals the district court’s
9 May 2002 dismissal and alternative transfer of his 28 U.S.C. §
2241 habeas application (for us to consider whether to allow it to
be filed as a successive habeas application).
Martin contends: Marlin Sweet, a key witness, perjured himself
and Brady material was not disclosed concerning him; Martin’s trial
counsel was ineffective and represented him under a conflict of
interest; and Campbell v. Louisiana, 523 U.S. 392 (1998),
concerning discrimination in the selection of grand jury
forepersons, should be retroactively applicable on collateral
review. MOTIONS DENIED and APPEAL DISMISSED.
I.
The following is stated in our 27 March 2001 affirmance of the
denial of Martin’s § 2254 habeas application.
On 20 June 1991, Martin went to a bar in
Lake Charles, Louisiana, where his companion,
Roland, introduced him to the victim. Around
7:30 the next morning, Martin told his work
supervisor that he had met a college student,
left the bar with her, and woke up alone on
Galveston Beach. The supervisor noticed
scratches on Martin’s forehead, neck, and
shoulder that had not been there the day
before.
When Martin returned to his aunt’s home
(where he was residing), wearing different
clothes from the previous night, and no shirt
or shoes, his cousin observed scratches on his
chest and back, a bite mark on his shoulder,
2
and a tear under his tongue. Martin explained
he had fought a “country boy” at the bar.
That same morning, Martin related to
another, Rushing, he thought he may have
killed someone the previous night, and asked
Rushing for an alibi. Although Rushing
refused, Martin confided that the victim had
threatened to report him for rape. Martin
mentioned a shed in Iowa, Louisiana, and
stated he had choked the victim with a rope,
cut her throat, dug her eyes out, and jumped
up and down on a wooden board placed on her
neck. Subsequently, Rushing testified that
Martin, who had served several years of a ten-
year sentence for sexual battery, told him
(Rushing) “he didn’t want to be turned in for
rape again”.
Rushing did not believe Martin’s story;
but, nine days later, when he learned the
victim had been missing since leaving the bar,
he provided the information to police. During
a search of sheds in the Iowa area,
authorities discovered the victim’s
decomposing body, with a rope around her neck,
and a wooden board containing human blood
nearby. There was little forensic evidence.
A tampon taken from the body tested negative
for seminal fluid; but, a forensic expert
testified that, due to decomposition, the test
could be a “false negative”.
Under Louisiana law, first degree murder
includes “killing ... a human being ... [w]hen
the offender has specific intent to kill or to
inflict great bodily harm and is engaged in
the perpetration or attempted perpetration of
... aggravated rape....” LA. REV. STAT. ANN. §
14:30(A)(1) (emphasis added). Rape is
aggravated “[w]hen the victim resists the act
to the utmost, but whose resistance is
overcome by force”. LA. REV. STAT. ANN. §
14:42(A)(1).
Martin v. Cain, 246 F.3d 471, 473 (5th Cir. 2001) (emphasis in
original), cert. denied, 122 S. Ct. 194 (2001).
3
In Martin’s prosecution for first degree murder, three inmates
(including Sweet) “who had been incarcerated with Martin after his
arrest ... each testified, in varying detail, that: Martin told
them he had sexual relations with the victim; she accused him of
rape; and he killed her, because he did not want to return to
prison. But, [of the three inmates’ testimony,] only Sweet’s ...
established aggravated rape”. Id. at 474 (emphasis in original).
Nevertheless,
Sweet’s testimony, with the exception of that
about the aggravated nature of the rape, was
corroborated by a number of other witnesses
and other evidence, and Sweet’s testimony
concerning the aggravated nature of the rape
was, to some extent, corroborated by Marin’s
visible physical injuries shortly after the
murder.
Id. at 481.
In 1992, Martin was convicted of first degree murder and
sentenced to death. Id. at 474. In 1994, the Louisiana Supreme
Court affirmed his conviction and death sentence; the Supreme Court
of the United States denied certiorari in 1995, Martin v.
Louisiana, 515 U.S. 1105 (1995); in 1997, the state district court
denied his application for post-conviction relief, Martin, 246 F.3d
at 475; and in 1998, the Louisiana Supreme Court denied his writ
application. Martin v. Cain, 709 So. 2d 693 (La. 1998).
In 1999, the district court denied Martin’s first federal
habeas application, but granted a certificate of appealability
4
(COA) on two issues concerning ineffective assistance of counsel,
and a Brady violation concerning Sweet. Martin, 246 F.3d at 475.
We affirmed the denial. Martin v. Cain, 206 F.3d 450, 461 (5th
Cir.), vacated, 531 U.S. 801 (2000). On remand from the Supreme
Court of the United States (concerning the standard of review), we
again affirmed the denial of habeas relief. Martin, 246 F.3d at
473.
On 7 January 2002, Martin’s execution was set for 8 February
2002. On 4 February, four days prior to the execution date, Martin
filed an application for post-conviction relief in Louisiana state
court. The trial court denied the application on 5 February; on
the same day, Martin filed in Louisiana state court a supplemental
application for post-conviction relief. The trial court denied
the supplemental application; and, on 8 February, the Louisiana
Supreme Court denied Martin’s writ application.
That same day, the Supreme Court of the United States stayed
Martin’s execution pending a ruling on his petition for certiorari
concerning the state court rulings. On 25 March, the Supreme Court
denied certiorari, Martin v. Cain, 122 S. Ct. 1372 (2002);
Martin’s petition for rehearing was denied yesterday, 9 May.
The pending request to file a successive habeas application is
not Martin’s first request to do so. On the prior 8 February 2002
execution date, Martin requested that we grant such permission,
claiming: his counsel was ineffective due to a conflict of
5
interest; and the State had not disclosed Brady material concerning
Sweet. We denied the request. In re Martin, No. 02-30157 (5th
Cir. 8 Feb. 2002) (unpublished). Martin filed a “petition for
habeas corpus relief” with the Supreme Court concerning this
decision; the petition was denied on 15 April 2002.
On 8 April, Martin’s execution date was reset for today, 10
May. On 23 April, he filed in Louisiana state court a petition for
post-conviction relief. The trial court denied the petition on 2
May, and the Louisiana Supreme Court denied Martin’s writ
application on 9 May. That same day, Martin filed in the United
States District Court for the Middle District of Louisiana a habeas
petition under 28 U.S.C. § 2241.
On 9 May, the district court construed the petition as an
action under 42 U.S.C. § 1983 and dismissed it for lack of
jurisdiction. In the alternative, the district court transferred
the petition to this court pursuant to 28 U.S.C. § 1631 for us to
determine whether Martin should be permitted to file it as a
successive habeas petition.
Also on 9 May, Martin filed the pending motions with this
court, seeking a stay of execution as well as permission to file a
successive habeas petition concerning issues completely independent
from his most recent federal district court filing concerning his
claim of denial of access to clemency. Today, 10 May, Martin filed
a notice of appeal from the district court’s 9 May judgment
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concerning his § 2241 habeas petition, as well as another stay-of-
execution motion.
II.
A.
In the request to file a successive habeas application, Martin
presents three claims: Sweet, a key witness, perjured himself and
Brady material was not disclosed concerning Sweet; Martin’s trial
counsel was ineffective due to his taking prescription psychiatric
medication and representing Martin under a conflict of interest;
and he is entitled to benefit from a “new rule of constitutional
law” announced in Campbell v. Louisiana, 523 U.S. 392 (1998),
concerning discrimination in the selection of grand jury
foreperson. In conjunction with this request, Martin seeks a stay
of execution.
The Antiterrorism and Effective Death Penalty Act (AEDPA)
requires that, before “a second or successive application ... [can
be] filed in the district court, the applicant shall move in the
appropriate court of appeals for an order authorizing the district
court to consider the application”. 28 U.S.C. § 2244(b)(3)(A). As
stated in subpart (b)(3)(C), authorization is to be given “only if
... the application makes a prima facie showing that the
application satisfies the requirements of” 28 U.S.C. § 2244(b), as
quoted below.
7
A “claim presented in a second or successive habeas corpus
application under section 2254 that was presented in a prior
application shall be dismissed”. 28 U.S.C. § 2244(b)(1).
A claim presented in a successive habeas petition not
presented in a prior petition shall be dismissed unless:
(A) the applicant shows that the claim relies
on a new rule of constitutional law, made
retroactive to cases on collateral review by
the Supreme Court, that was previously
unavailable; or
(B)(i) the factual predicate for the claim
could not have been discovered previously
through the exercise of due diligence; and
(ii) the facts underlying the claim, if proven
and viewed in light of the evidence as a
whole, would be sufficient to establish by
clear and convincing evidence that, but for
constitutional error, no reasonable factfinder
would have found the applicant guilty of the
underlying offense.
28 U.S.C. § 2244(b)(2)(B).
1.
Martin’s contention that he is entitled to relief under
Campbell has not been presented in a prior application. He must
show Campbell has been made retroactively applicable to cases on
collateral review by the Supreme Court. 28 U.S.C. § 2244(b)(2)(A).
“[A] new rule is not ‘made retroactive to cases on collateral
review’ unless the Supreme Court holds it to be retroactive”.
Tyler v. Cain, 533 U.S. 656, 664 (2001) (concerning successive
habeas petition relying upon § 2244(b)(2)(A)).
8
Martin contends that pending before our court in another
appeal is whether Campbell has been made retroactively applicable.
Nevertheless, for successive habeas purposes, the Supreme Court has
not made Campbell retroactively applicable to cases on collateral
review.
2.
a.
Martin’s remaining claims, relating to Sweet and his trial
counsel, were presented in his first federal habeas petition. See
Martin v. Cain, 246 F.3d 471 (5th Cir. 2001). He cannot do so
again. See 28 U.S.C. § 2244(b)(1).
b.
Even assuming arguendo these claims are raised for the first
time, Martin has not made the required prima facie showing that:
(1) their factual predicate could not have been discovered
previously through the exercise of due diligence, see 28 U.S.C. §
2244(b)(2)(B)(i); and (2) that these assertions, if true, “would be
sufficient to establish by clear and convincing evidence that, but
for constitutional error, no reasonable factfinder would have
found” Martin guilty of the underlying offense, see id. at §
2244(b)(2)(B)(ii).
To the extent Martin relies on newly discovered evidence in
support of these claims, this evidence is not sufficient to make
the requisite prima facie showing that “but for constitutional
9
error, no reasonable factfinder would have found [Martin] guilty of
the underlying offense.” Id. Although the new evidence regarding
Sweet further undermines his credibility and Sweet’s testimony was
quite important to the state’s case for aggravated rape, we cannot
conclude that the jury’s verdict would have been different in light
of the other evidence presented at trial. Although the other
individuals who testified as to what Martin had told them about his
commission of the offense did not provide information, as Sweet
did, indicating that Martin had perpetrated aggravated rape, they
did testify that Martin had told them that he had killed the victim
when she accused him of rape. Further, as noted supra, the
evidence of the physical injuries that Martin incurred on the night
of the offense corroborated Sweet’s testimony.
The new evidence that Martin proffers in support of his claim
that he was denied the assistance of trial counsel indicates that
his trial counsel, Bobby Pitre, suffered from a “mental breakdown”
shortly before Martin’s trial and was taking psychiatric medication
during the trial. However, Martin does not attempt to demonstrate
how Pitre’s condition affected Pitre’s performance at trial.
Rather, Martin argues that prejudice should be presumed,
analogizing Pitre to the counsel who slept during trial whose
performance was at issue in Burdine v. Johnson, 262 F.3d 336 (5th
Cir. 2001) (en banc). Although we do not here rule out the
possibility that medication taken by counsel or counsel’s mental
10
condition during trial may warrant a presumption of prejudice in
some circumstances, Martin’s new evidence does not demonstrate that
his case involves such circumstances because there is no indication
that Pitre was impaired in any way as a result of his medication or
mental condition during Martin’s trial.
B.
Martin also contends: that he has a “free standing claim of
factual innocence”; and that, as a result, AEDPA’s requirements do
not prevent consideration of this claim. Restated, for such
“factual innocence”, Martin claims an exception to AEDPA’s
constraints on successive habeas applications.
AEDPA prescribes our habeas jurisdiction; the claimed
exception is neither recognized in, nor permitted by, it. Martin’s
claim to an exception to AEDPA’s constraints is without merit.
Moreover, this “factual innocence” claim has been repeatedly
reviewed within the scheme established by AEDPA and found wanting.
C.
Martin’s 9 May 2002 habeas petition pursuant to 28 U.S.C. §
2241 maintained he has been denied access to Louisiana’s executive
clemency system. (This claim was denied in state court in February
2002 but not presented then to the district court or our court.)
Today, 10 May, Martin filed a notice of appeal from the district
court’s judgment (denial). In conjunction with his appeal, he
seeks a stay of execution.
1.
11
a.
Before being allowed to proceed on appeal, a habeas petitioner
must obtain a COA from “the final order in a habeas corpus
proceeding in which the detention complained of arises out of
process issued by a State court”. 28 U.S.C. § 2253(c)(1)(A)
(emphasis added). Although a prisoner in federal custody need not
obtain a COA to appeal the denial of a § 2241 petition, a prisoner
in state custody, such as Martin, must do so. See Stringer v.
Williams, 161 F.3d 259, 262 (5th Cir. 1998) (Ҥ 2253 clearly does
not encompass challenges to federal detention under § 2241. Just
as clearly, however, § 2253 does encompass challenges to state
detention under § 2241”.).
Martin has not sought a COA, much less satisfied the standards
for obtaining one, discussed below. Accordingly, we cannot review
the habeas denial.
b.
Alternatively, construing Martin’s notice of appeal as a COA
request and his brief as seeking to satisfy the standards for
obtaining a COA, he has not satisfied those standards: he has not
“made a substantial showing of the denial of a constitutional
right”. 28 U.S.C. § 2253(c)(2). To do so, he must show
“reasonable jurists could debate whether (or, for that matter,
agree that) the petition should have been resolved in a different
manner or that the issues presented were adequate to deserve
12
encouragement to proceed further”. Slack v. McDaniel, 529 U.S.
473, 484 (2000) (citation and internal quotation marks omitted).
Reasonable jurists could not disagree that the petition should
be denied because Martin has not even applied for clemency.
Furthermore, reasonable jurists could not disagree with the
district court’s construction of the claim as arising under 42
U.S.C. § 1983 and its dismissal of the petition for lack of
jurisdiction. See Moody v. Rodriguez, 164 F.3d 893, 893 (5th Cir.
1999) (“Federal courts lack jurisdiction to stay executions under
§ 1983.”) (internal quotation marks omitted).
2.
The district court, in the alternative, transferred the
petition to our court for us to determine whether to authorize
filing a successive habeas petition. This clemency claim does not
rely on a new rule of constitutional law made retroactive to cases
on collateral review by the Supreme Court. In addition, Martin has
not shown that the factual predicate of this claim was not
available previously through the exercise of due diligence and
that, but for the claimed constitutional error, no reasonable
factfinder would have found Martin guilty of the underlying
offense. See 28 U.S.C. § 2244(b)(2)(B)(i)-(ii).
13
3.
14
In the alternative, to the extent the appeal is from the
dismissal of § 1983 relief, we lack jurisdiction, as held by the
district court. See Moody, 164 F.3d at 893.
D.
Concomitantly, Martin has failed to satisfy the standard for
obtaining a stay of execution.
III.
For the foregoing reasons all motions are DENIED; a COA is
DENIED; and the appeal is DISMISSED.
MOTIONS and COA DENIED; APPEAL DISMISSED
15