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In re Edwards

United States Court of Appeals, Fifth Circuit

January 25, 2017

In re: TERRY DARNELL EDWARDS, Movant,
v.
LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION, Respondent - Appellee. TERRY DARNELL EDWARDS, Petitioner - Appellant,

         Appeals from the United States District Court for the Northern District of Texas

          Before ELROD, HIGGINSON, and COSTA, Circuit Judges.

          PER CURIAM.

         Terry D. Edwards, a Texas state prisoner on death row who is scheduled for execution on January 26, 2017, filed a Rule 60(b) motion and requests for stays of execution in federal district court. The district court concluded that Edwards's Rule 60(b)(6) motion constituted a second-or-successive habeas petition because it sought to advance new claims and so it transferred Edwards's motion and the requests to stay his execution to this court. On the narrow issue of whether the alleged abandonment of Edwards by his federally appointed habeas counsel constitutes a defect in the integrity of the original habeas proceedings that may authorize Rule 60(b) relief, the district court concluded that Rule 60(b) relief was not warranted, but granted a COA on this issue. Edwards appealed the district court's ruling, and filed a request for a stay in this court. Because we conclude that Edwards's Rule 60(b) motion is a successive habeas claim and that alternatively he is not entitled to Rule 60(b) relief, we DENY the Rule 60(b) motion and therefore also DENY Edwards's requests for a stay of execution.

         I.

         In November 2003, Edwards was convicted of capital murder and sentenced to death for the murder of a restaurant worker in connection with an armed robbery. Another restaurant worker was also murdered during the course of the robbery. Edwards had previously worked at the restaurant. Edwards filed a direct appeal with the Texas Court of Criminal Appeals, raising thirteen points of error. Edwards v. State, No. AP-74, 844, 2006 WL 475783, at *1 (Tex. Crim. App. 2006). Among other things, Edwards challenged: (1) the factual and legal sufficiency of the evidence supporting the jury's finding that he was a continuing threat to society; (2) the denial of his motion to quash a panel of three prospective jurors whom Edwards alleged were incorrectly instructed regarding mitigating evidence; (3) the trial court's granting of the State's challenges to two venire members based on their alleged biases; (4) the trial court's refusal to instruct the jury that it could consider that Edwards would not be eligible for parole for at least forty years if given a life sentence in the context of determining if he was an ongoing danger; (5) the constitutionality of the death penalty in light of Texas law not requiring the State to prove the absence of sufficient mitigating circumstances beyond a reasonable doubt; (6) the constitutionality of the death penalty on various other grounds; and (7) the constitutionality of his conviction and sentence based on the cumulative effect of the other errors he asserted. Id. at *1-4. The Court of Criminal Appeals rejected each of these claims. Id. at *4.

         Edwards then filed a state habeas application, asserting six challenges to the validity of his conviction and sentence. See Ex parte Edwards, No. WR-73027-01, 2009 WL 4932198, at *1 (Tex. Crim. App. 2009). The state trial court denied relief, as did the Texas Court of Criminal Appeals. Id.

         Next, Edwards filed a petition for a writ of habeas corpus in the United States District Court for the Northern District of Texas. See Edwards v. Stephens, No. 3:10-cv-6-M, 2014 WL 3880437 (N.D. Tex. Aug. 6, 2014). In his petition, Edwards asserted six grounds for relief: (1) that he was deprived of a fair and impartial jury when the trial court denied his motion to quash a panel of venire persons who had allegedly been incorrectly instructed regarding mitigating evidence; (2) that he was deprived of a fair and impartial jury when the state trial court granted the State's challenge to a prospective juror; (3) that he was deprived of a fair and impartial jury when the state trial court granted the State's for-cause strike of another prospective juror; (4) that his trial counsel was constitutionally ineffective when he failed to challenge the Dallas County venire selection process as violating Edwards's right to a jury composed of a cross-section of the community; (5) that he was deprived of a fair and impartial jury when the trial court denied his for-cause challenges of two prospective jurors; and (6) that his trial counsel was constitutionally ineffective by failing to raise on direct appeal claims regarding the trial court's denial of Edwards's for-cause challenges to the two prospective jurors. Id. at *1-2.

         The district court denied all of these claims, and further denied Edwards a certificate of appealability (COA). Id. at *15.

         Edwards appealed the district court's denial of a COA to this court, but only as to his argument that the trial court's denial of his motion to quash a panel of venire persons violated his right to an impartial jury under the Sixth and Fourteenth Amendments because those persons had allegedly been given an improper jury instruction. See Edwards v. Stephens, 612 F.App'x 719, 720 (5th Cir. 2015). This court denied Edwards's application for a COA. Id. at 723. Edwards then filed a petition for a writ of certiorari with the Supreme Court of the United States, challenging the denial of a COA, which was denied. Edwards v. Stephens, 136 S.Ct. 403 (2015).

         On January 10, 2017, Edwards filed in the district court a Rule 60(b) motion to alter or amend the judgment denying his habeas petition, along with a request to stay his execution. Transfer Order; No. 3:10-CV-6-M, N.D. Tex., Jan. 19, 2017. The district court determined that Edwards's motion sought to advance new claims, making it a successive petition for which it lacked jurisdiction. The district court transferred the successive application for habeas relief with Edwards's applications to stay his execution to this court on January 19, 2017. In the same order, the district court also concluded that Rule 60(b) relief was not warranted on Edwards's claim that he was effectively abandoned by his federal habeas counsel, but it granted a COA on this issue.

         On January 18, 2017, Edwards filed a motion for stay of execution and a subsequent application for a writ of habeas corpus in state court. See Ex parte Edwards, No. WR-73, 027-02 (Tex. Crim. App. Jan. 24, 2017). In that application, he argued that: (1) his conviction was based on false, misleading, and scientifically invalid testimony; (2) the decision in Ex parte Graves, 70 S.W.3d 103 (Tex. Crim. App. 2002), should be overruled so that he could present otherwise forfeited claims; and (3) the State suppressed material, exculpatory evidence that would undermine the confidence of the outcome of his trial. On January 24, the Texas Court of Criminal Appeals dismissed the application as an abuse of the writ and denied Edwards's motion for a stay of execution. See Ex parte Edwards, No. WR-73, 027-02.

         II.

         A.

         We review a district court's determination as to whether a Rule 60(b) motion constitutes a second-or-successive habeas petition de novo. In re Jasper, 559 F.App'x 366, 370 (5th Cir. 2014) (citing Ward v. Norris, 577 F.3d 925, 932 (8th Cir. 2009)).

         In reviewing the district court's determinations to grant or deny relief under Rule 60(b), we will reverse only for an abuse of discretion. Tamayo v. Stephens, 740 F.3d 986, 990 (5th Cir. 2014). "A district court abuses its discretion if it bases its decision on an erroneous view of the law or on a clearly erroneous assessment of the evidence." Hesling v. CSX Trans., Inc., 396 F.3d 632, 638 (5th Cir. 2005). It "is not enough that the granting of relief might have been permissible, or even warranted-denial must have been so unwarranted as to constitute an abuse of discretion." Diaz v. Stephens, 731 F.3d 370, 374 (5th Cir. 2013).

         B.

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