Nealy v. Quarterman , 223 F. App'x 366 ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
March 20, 2007
FOR THE FIFTH CIRCUIT
_____________________ Charles R. Fulbruge III
Clerk
No. 07-10319
_____________________
In Re: CHARLES ANTHONY NEALY,
Movant.
------------------------------------------------------
No. 07-10320
CHARLES ANTHONY NEALY
Petitioner - Appellant,
v.
NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION
Respondent - Appellee.
_________________________________________________________________
Transfer Order from the United States District Court
for the Northern District of Texas
and
Appeal from the United States District Court
for the Northern District of Texas
_________________________________________________________________
Before JOLLY, HIGGINBOTHAM, and WIENER, 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this opinion should not be published and is not precedent except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.
Charles Anthony Nealy was convicted of capital murder and
sentenced to death in Texas for the 1997 murder of a convenience
store owner during the course of an armed robbery. His execution
is scheduled for today, March 20, 2007. The facts and procedural
history are detailed in the opinion we filed earlier today, in
which we denied Nealy’s motion for authorization to file a
successive federal habeas application in which he sought to raise
claims that (1) his due process rights were violated because the
State suppressed exculpatory evidence and knowingly relied on
perjured evidence to convict him, and (2) that his conviction is
unreliable under the Eighth Amendment. In re Nealy, No. 07-10311
(5th Cir. March 20, 2007) (unpublished).
On March 19, 2007, Nealy filed a Motion for Appointment of
Counsel and Stay of Execution in the United States District Court
for the Northern District of Texas. He asked the district court to
appoint counsel and stay his execution so that counsel can
investigate evidence of possible mental retardation and prepare and
file a motion in this court for authorization to file a successive
habeas application asserting a claim under Atkins v. Virginia, 536
U.S. 304 (2002), in which the Supreme Court held that mentally
retarded persons cannot be executed. Today, the district court,
sua sponte, transferred Nealy’s motion for stay and appointment of
counsel to this court in the interest of justice, because of the
short time before Nealy’s scheduled execution. Nealy has filed a
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notice of appeal of the district court’s transfer order. That
appeal is consolidated with the transferred motions.
This court has held that where an unrepresented petitioner can
make a “colorable showing” of mental retardation, the petitioner is
entitled to a stay of execution and appointment of counsel. In re
Hearn (Hearn I), 376 F.3d 447, 455 (5th Cir. 2004). The court
subsequently clarified that such relief is available only to a
petitioner who has already completed the state and federal habeas
process and who may have a claim based on the previously
unavailable, new rule of Atkins, that is not time-barred. In re
Hearn (Hearn II), 389 F.3d 122, 123 (5th Cir. 2004).
Hearn does not apply to Nealy’s situation. The United States
District Court for the Northern District of Texas appointed
attorney John Nation to represent Nealy on February 25, 2002.
Nation continued to represent Nealy in June 2002, when Atkins was
decided by the Supreme Court. Nation filed Nealy’s first federal
habeas petition in October 2002. While Nealy’s federal habeas
petition was pending, the Texas Court of Criminal Appeals issued
its opinion in Ex parte Soffar, 143 S.W.3d 804 (Tex. Crim. App.
2004) (modifying the Texas “two-forum” abstention rule to allow
consideration of a successive application for state habeas relief
if the federal court with jurisdiction over a parallel federal
habeas petition entered an order staying its proceedings to allow
the federal petitioner to pursue unexhausted claims in state
court). After Soffar, Nealy could have sought a stay of his
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federal habeas proceedings and raised an Atkins claim in state
court (unlike Hearn, whose federal proceedings and federal
counsel’s appointment ended before Soffar was decided). Nation
continued to represent Nealy following the district court’s denial
of his federal habeas petition on May 18, 2005, up until January
2007, when the Texas Defender Service was substituted as counsel
for Nealy. Therefore, Nealy was not “unrepresented” and an Atkins
claim was not “unavailable” to him, within the meaning of Hearn.
Nealy argues that his Atkins claim should nevertheless be
considered as previously “unavailable”, because his federal habeas
counsel at that time did not believe he could investigate or raise
new claims that had not been raised previously in state court.
This contention is without merit. As the State pointed out in its
response in opposition to Nealy’s pending motions, it submitted
Nation’s affidavit along with its response to Nealy’s fourth state
habeas application (filed on March 14, 2007, asserting an Atkins
claim for the first time in state court). In that affidavit,
Nation stated that he had represented Nealy continuously from 2002
until January 9, 2007, when Nealy’s present counsel was
substituted. He stated that he understands the law of Atkins,
knows how to raise an Atkins claim when he has evidence suggesting
that a defendant may be mentally retarded, and that he has never
considered filing an Atkins claim for Nealy “for the simple reason
that I have no evidence or indication, through personal observation
or otherwise, that Charles Nealy might be mentally retarded.” The
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Texas Court of Criminal Appeals dismissed Nealy’s Atkins claim as
an abuse of the writ. Ex parte Nealy, No. WR-50,361-04 (Tex. Crim.
App. March 15, 2007) (unpublished).
Finally, Hearn does not apply because any potential Atkins
claim by Nealy would be time-barred under 28 U.S.C. § 2244(d)(1)(C)
(petitioner has one year to file federal habeas application
following date on which constitutional right asserted was initially
recognized by Supreme Court and made retroactively applicable to
cases on collateral review). Atkins was decided on June 20, 2002.
Thus, Nealy had until June 20, 2003 to assert a claim under Atkins.
Furthermore, he would have been entitled to claim equitable tolling
from June 20, 2003 until February 11, 2004, when Soffar modified
the Texas “two forum” rule to allow consideration of the merits of
a subsequent state habeas application if the federal court stayed
a pending federal habeas application in order to allow the
petitioner to exhaust state court remedies.
For the foregoing reasons, Nealy’s Motion for Appointment of
Counsel and Stay of Execution is DENIED, and the appeal is
DISMISSED.
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