In Re: Colburn ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
March 26, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
_____________________ Clerk
No. 03-20301
_____________________
IN RE: JAMES BLAKE COLBURN
Movant.
No. 03-20308
JAMES BLAKE COLBURN
Petitioner-Appellant
v.
JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, INSTITUTIONAL DIVISION
Respondent-Appellee
On Motion to Stay Execution, Vacate Transfer Order
and Remand to Federal District Court and
Appeal from the United States District Court
for the Southern District of Texas
No. H-03-1038
Before KING, Chief Judge, and JOLLY and DeMOSS, Circuit Judges.
PER CURIAM:*
Petitioner-Appellant James Blake Colburn, who is scheduled
to be executed at 6 pm on March 26, 2003, filed in the district
*
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that this opinion should not be published and is not precedent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.
court a motion for stay of execution premised on the argument
that he is incompetent to be executed under the standards set
forth in Ford v. Wainwright, 477 U.S. 399 (1986). The district
court, relying on Fifth Circuit precedent, considered Colburn’s
motion to be a successive habeas application and transferred the
case to this court. See In re Epps, 127 F.3d 364 (5th Cir.
1997). The district court also denied Colburn’s request for a
certificate of appealability (COA). Colburn then filed in this
court a Motion to Stay Execution, Vacate Transfer Order and
Remand to Federal District Court, as well as an Application for
Certificate of Appealability. Treating Colburn’s first motion as
a motion for authorization to file a successive habeas
application, id. at 365, we decline authorization to file a
successive habeas application, and we deny a stay of execution.
We also decline to issue a COA.
I. FACTS AND PROCEDURAL HISTORY
Briefly, Colburn was convicted and sentenced to death in
1995 for the murder of a woman hitchhiking near his home. On
direct appeal, the Court of Criminal Appeals affirmed his
conviction and sentence. Colburn v. State, 966 S.W.2d 511 (Tex.
Crim. App. 1998). In doing so, it refused to consider the claim
that he was incompetent to be executed, finding it unripe for
consideration because Colburn’s execution was not imminent. Id.
at 513. After exhausting state habeas relief, he filed an
application for a writ of habeas corpus in the District Court for
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the Southern District of Texas in 1999. In that petition,
Colburn raised several issues, including his lack of competency
to stand trial. However, Colburn did not raise the claim that he
was incompetent to be executed under the Ford standard. The
district court denied his request for relief. In an unpublished
opinion, we denied his request for a COA on any of the issues
raised.
Execution was initially set for November 6, 2002. However,
Colburn received a stay of execution from the Supreme Court.
Colburn had based his application for stay to the Supreme Court
on two grounds: (1) the state district court failed to satisfy
constitutional requirements of due process when it refused to
grant Colburn a hearing on the question of whether he was
competent to be executed under the Ford standard; and (2) the
federal district court and this court erred in holding that,
because Colburn had not presented his Ford claim in his original
habeas petition, a petition raising that claim now constituted a
second or successive petition. After the stay, Colburn filed a
petition for writ of certiorari further urging these points of
review; however, the Court ultimately declined to grant
certiorari. The state moved to reset the execution date, and
Colburn was rescheduled to be executed on March 26, 2003.
On March 14, Colburn filed a Motion to Vacate Execution Date
and Conduct Proceedings to Adjudicate Ford Competency in state
district court. Colburn argued that a more recent and complete
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psychiatric evaluation conducted by Colburn’s own expert raised a
significant question as to his competency to be executed. He
requested a hearing before that court to determine whether he was
competent to be executed. The court denied this motion, as well
as subsequent motions for appointment and funding of an
independent mental health expert and a bench warrant to enable
neuropsychological testing.
Colburn then filed a petition for a writ of mandamus and
stay of execution with the Texas Court of Criminal Appeals.
Colburn urged the court to grant a stay of execution and issue a
writ of mandamus ordering the state district court to conduct a
competency hearing. The Court of Criminal Appeals denied that
petition.
On March 25, Colburn filed a Motion for Stay of Execution in
federal district court. The district court, treating the motion
as an application for a writ of habeas corpus, found that,
because Colburn had not raised a Ford claim in his original
habeas petition, this motion amounted to a successive habeas
petition which Colburn could not file in district court until he
had “move[d] 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) (2000). As a result, the district court
denied Colburn’s request for relief and transferred the case to
our court. In re Epps, 127 F.3d at 364-65.
4
The district court based its decision to transfer on the
grounds that it lacked jurisdiction to rule on Colburn’s claim.
See United States v. Key, 205 F.3d 773, 774 (5th Cir. 2000)
(“Accordingly, § 2244(b)(3)(A) acts as a jurisdictional bar to
the district court’s asserting jurisdiction over any successive
habeas petition until [the circuit court] has granted the
petitioner permission to file one.”). In his filings in this
court, Colburn effectively asks for authorization to file a
successive habeas application in the district court and for a
stay of execution.
II. COLBURN’S CLAIM OF INCOMPETENCY TO BE EXECUTED
Colburn presents the same issue in this motion that he
raised in the appeal we denied on the eve of his previous
execution date – whether § 2244(b) should apply when a petitioner
raises a Ford claim in a subsequent habeas petition after not
having raised the claim in his original habeas petition. In our
prior opinion, controlled by circuit precedent discussed below,
we found both that § 2244(b) applies to these kinds of Ford
claims and that Colburn had not presented evidence of
incompetency to be executed sufficient to demonstrate that his
execution would violate the Eighth Amendment.
Colburn asserts that the district court erred in treating
his Motion for Stay of Execution as a successive habeas
application. He argues that § 2244(b) should not apply in the
context of a Ford claim and that, therefore, his request for
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relief was not a successive application. However, as the
district court correctly noted and as we found when Colburn
raised this same claim in November, Fifth Circuit precedent
clearly and unambiguously states the rule: a prisoner who fails
to raise a Ford claim in his original habeas petition and
attempts to do so in a subsequent petition has filed a
“successive petition” within the meaning of § 2244(b).
Richardson v. Johnson, 256 F.3d 257, 258-59 (5th Cir. 2001); In
re Davis, 121 F.3d 952, 956-57 (5th Cir. 1997). Therefore, the
district court properly treated Colburn’s motion as a successive
habeas application and transferred the case to this court.
Because Colburn is attempting to file a successive habeas
application, he must first seek authorization to do so in this
court. 28 U.S.C. § 2244(b)(3)(A). As such, we will treat his
filing in this court as a motion for authorization to file a
successive habeas application. Kutzner v. Cockrell, 303 F.3d
333, 335 (5th Cir. 2002).
There are two principal differences between the substantive
and procedural framework leading up to this appeal as compared
with Colburn’s November appeal. First, Colburn’s motions in
Texas state court were slightly different this time around. In
November, Colburn moved in state district court to stop
involuntary psychiatric treatment and conduct a competency
examination by a neutral expert, to stay his date of execution,
and for funding for an independent psychiatric expert. After the
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state district court denied his motions, Colburn asked the Texas
Court of Criminal Appeals to stay his execution and to issue a
writ of mandamus ordering the district court to conduct a
competency hearing. While the state court motions differed
slightly this time, our November decision in no way depended upon
the precise procedural posture of Colburn’s state court filings.
Thus, these minor differences are insufficient to justify a
different result from that which obtained in November.
Second, Colburn presents new competency evidence in the form
of a report written by Dr. Diane Mosnik, who examined and tested
Colburn approximately one month ago. Dr. Mosnik, after noting
that Colburn had decompensated in the time since the first
execution was stayed,1 reached two conclusions. First:
Under the circumstances, including the present level of
information available in the records and the limited
testing permitted by conditions at the Polunski Unit, the
conclusion that Mr. Colburn is competent to be executed
cannot be asserted in a manner consistent with reasonable
standards of the psychological profession. To the
contrary, Mr. Colburn’s lengthy psychiatric history,
recent evidence of significant decompensation resulting
in hospitalization on January 10, 2003, and his
documented tendency to further decompensate under stress,
all support the following conclusion: Mr. Colburn is not
competent to be executed.
However, she went on to state that:
To ensure a thorough evaluation of this inmate in order
to ascertain that he meets the minimum standards for
1
Although Dr. Mosnik did not examine Colburn at the time
of his November execution proceedings, she reviewed his records,
including the reports of the two court-appointed experts who had
deemed Colburn competent to be executed.
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competence to comprehend his imminent execution date, it
will be necessary to conduct a cognitive evaluation, that
is, a neuropsychological assessment of his intellectual
and cognitive abilities. A neuropsychological evaluation
will speak directly to his ability to comprehend the law,
the charges against him, his responsibility to the law,
and the meaning of being sentenced to an imminent
execution.
In other words, Dr. Mosnik presents a qualified opinion that
Colburn might not be competent but that further testing is
required in order to resolve the question completely.
Under Ford, the burden is on the defendant to rebut the
presumption of competency; he must do so by making a “substantial
threshold showing of insanity.” Ford, 477 U.S. at 422. Texas
law requires that, in order to be found competent to be executed,
a defendant must understand: “(1) that he or she is to be
executed and that the execution is imminent, and (2) the reason
he or she is being executed.” TEX. CRIM. PROC. CODE ANN. § 46.05(h)
(Vernon 2002). Dr. Mosnik’s opinion does not seriously call into
question Colburn’s competency to understand either of these.2
The qualified opinion offered by Dr. Mosnik does not amount to
the kind of substantial threshold showing of incompetence that
would create a Ford issue. See, e.g., Coe v. Bell, 209 F.3d 815,
828 (6th Cir. 2000) (upholding finding of competency where
defendant suffered from dissociative identity disorder, a mental
2
Dr. Mosnik states that Colburn does not understand the
reason he is being executed in part because he views this
execution as “God’s way of punishing him.” This belief is
certainly not sufficient to demonstrate that Colburn does not
understand why he is being executed.
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illness which would cause him to decompensate as the execution
neared, but was nevertheless able to understand that execution
was imminent and the reasons therefor). As a result, Colburn has
again failed to present evidence of incompetency to be executed
sufficient to demonstrate that his execution would violate the
Eighth Amendment.
III. COLBURN’S REQUEST FOR A CERTIFICATE OF APPEALABILITY
Colburn also asks that we grant him a COA on these issues to
enable him to appeal the district court’s order. We may grant
the petitioner’s request for a COA only if he makes a
“substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2). To make such a showing, Colburn must
demonstrate that “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 encouragement to proceed further.” Dowthitt
v. Johnson, 230 F.3d 733, 740 (5th Cir. 2000) (quoting Slack v.
McDaniel, 529 U.S. 473, 483-84 (2000)). Where, as here, the
district court has denied the petitioner’s claim on procedural
grounds, the petitioner must demonstrate both that “jurists of
reason would find it debatable whether the petitioner states a
valid claim of the denial of a constitutional right and that
jurists of reason would find it debatable whether the district
court was correct in its procedural ruling” in order to obtain a
COA. Slack, 529 U.S. at 484.
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As discussed above, the district court denied Colburn’s
motion on the jurisdictional ground that, because Colburn’s
motion was in essence a successive habeas petition, the court had
no authority to consider it without prior authorization from this
court. Given the clear Fifth Circuit precedent on this issue, it
would not be debatable among jurists of reason whether the
district court properly concluded that it lacked jurisdiction to
consider Colburn’s successive habeas application. Additionally,
jurists of reason would not find it debatable whether Colburn’s
evidence of incompetency to be executed amounts to the denial of
a constitutional right. Therefore, Colburn is not entitled to a
COA on his claims.
IV. CONCLUSION
Construing Colburn’s filing as an application for
authorization to file a successive habeas application, it is
DENIED. His application for a stay of execution is DENIED. His
request for a COA is DENIED.
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