Francois v. Lumpkin ( 2022 )

Case: 21-70003 Document: 00516378420 Page: 1 Date Filed: 06/30/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
June 30, 2022
No. 21-70003
Lyle W. Cayce
Clerk
Anthony Francois,
Petitioner—Appellant,
versus
Bobby Lumpkin, Director, Texas Department of
Criminal Justice, Correctional Institutions Division,
Respondent—Appellee.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:10-CV-837
Before Dennis, Southwick, and Engelhardt, Circuit Judges.
Per Curiam:*
Anthony Francois killed three children and shot two other individuals
in the home of a teenage girlfriend who jilted him for another man. Now on
death row in Texas, Francois seeks a certificate of appealability from the
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 21-70003 Document: 00516378420 Page: 2 Date Filed: 06/30/2022
No. 21-70003
district court’s May 17, 2021 denial of his habeas corpus petition. For the
reasons that follow, his application is DENIED.
I.
A certificate of appealability (COA) “is necessary to appeal the denial
of federal habeas relief.” Gonzales v. Davis, 924 F.3d 236, 241 (5th Cir. 2019)
(citing 28 U.S.C. § 2253(c)(1)). To obtain a COA, a habeas petitioner must
make “a substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2). When a district court denies a habeas petition on the
merits, “the showing required to satisfy § 2253(c) is straightforward: The
petitioner must demonstrate that reasonable jurists would find the district
court’s assessment of the constitutional claims debatable or wrong.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000). “When the district court denies a
habeas petition on procedural grounds without reaching” the merits, a
petitioner seeking a COA must show, “at least, that jurists of reason would
find it debatable whether the petition 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.” Id. (emphasis added).
Importantly, these requirements are jurisdictional. Thus, “until a
COA has been issued federal courts of appeals lack jurisdiction to rule on the
merits of appeals from habeas petitioners.” Miller-El v. Cockrell, 537 U.S.
322, 336 (2003).
II.
In this case, Francois seeks a COA to challenge the district court’s
refusal to conduct an evidentiary hearing on his ineffective assistance of
counsel claims or to stay and abate these federal proceedings to allow his
exhaustion of such claims in state court. Because most of his arguments are
not properly before this court, and because those which remain fall flat, his
application is unavailing.
2
Case: 21-70003 Document: 00516378420 Page: 3 Date Filed: 06/30/2022
No. 21-70003
A.
As previewed above, the principal flaw in Francois’ application is
technical and jurisdictional in nature. Put simply, Francois failed to appeal
the district court’s rejection of the vast majority of the substantive arguments
he now makes in this court.
Francois’ COA Application to this court is a near carbon copy of a
Rule 59(e) motion he filed in the district court after that court denied his
initial habeas petition. 1 Inexplicably, however, Francois failed to notice his
appeal of the district court’s denial of that Rule 59(e) motion in addition to his
habeas petition. This unfortunate misstep ran afoul of Federal Rule of
Appellate Procedure 4(a)(4)(B)(ii), which requires a party “intending to
challenge an order disposing of [a Rule 59 motion to alter or amend
judgment]” to “file a notice of appeal, or an amended notice of appeal . . .
within the time” specified by the rule.
We have repeatedly recognized that an appellant’s failure to abide by
Rule 4(a)(4)(B)(ii) deprives us of subject matter jurisdiction to review the
district court’s denial of a Rule 59(e) motion. See, e.g., Birdsong v. Wrotenbery,
901 F.2d 1270, 1272 (5th Cir. 1990) (“The filing of a Rule 59(e) motion . . .
gives rise for the need to file a second notice of appeal, without which this
court lacks jurisdiction.”).
1
The two documents’ respective Tables of Contents alone confirm their
overwhelming similarity in both style and substance. Compare Mot. to Alter or Amend J.
Pursuant to Federal Rule of Civil Procedure 59(e) at ii, Francois v. Lumpkin, No. 4:10-cv-
00837 (S.D. Tex. June 14, 2021), with Pet’r’s Req. for a Certificate of Appealability and Br.
in Supp. Thereof at ii–iii, Francois v. Lumpkin, No. 21-70003 (5th Cir. Aug. 30, 2021)
[hereinafter “COA Appl.”].
3
Case: 21-70003 Document: 00516378420 Page: 4 Date Filed: 06/30/2022
No. 21-70003
Consequently, we lack jurisdiction to consider all arguments Francois
chose to raise initially in his Rule 59(e) motion. 2 To advance those arguments
in this court, Francois “need[ed] to file a second notice of appeal.” Id.Because he failed to do so, we may not—as a court of strictly limited appellate
jurisdiction—consider such arguments in assessing his entitlement to a
COA.
B.
Affording Francois’ COA Application every benefit of the doubt, 3 we
briefly address the arguments Francois raised in his initial habeas corpus
petition in the district court. See COA Appl. at 1 (requesting “the issuance
of a certificate of appealability from the opinion and judgment entered by the
District Court on May 17, 2021”). In its May 17, 2021 opinion, the district
court denied Francois’ eleven claims for relief. For the reasons well stated by
the district court there, we agree.
To begin, Francois’ three Sixth Amendment ineffective assistance of
counsel (IAC) claims are unavailing. As the district court observed, the
strategic decision by Francois’ trial counsel to call witness Jadon West to
rebut testimony concerning Francois’ violence in a gunpoint-robbery by
Francois, West, and a third individual was not unreasonable as a
2
Unfortunately, these waived arguments comprise the bulk of Francois’ present
request for a COA—including, among others, Francois’ argument that he might be
intellectually disabled.
3
Francois’ decision to place evidentiary-hearing and stay-and-abeyance issues
front and center as the issue(s) presented is somewhat curious. See COA Appl. at 5. We
have deemed those issues—which the district court first considered in conjunction with
Francois’ Rule 59(e) motion—forfeited. See supra Section II.A. Nonetheless, particularly
because this is a death penalty case, we construe Francois’ COA Application as a request
that we determine his entitlement to a COA from the district court’s May 17, 2021 denial
of his initial habeas petition.
4
Case: 21-70003 Document: 00516378420 Page: 5 Date Filed: 06/30/2022
No. 21-70003
constitutional matter. To the contrary, it instead appears that this was the
kind of “strategic choice[] made after thorough investigation of law and facts
relevant to plausible options” that is “virtually unchallengeable” in the Sixth
Amendment context. Strickland v. Washington, 466 U.S. 668, 690 (1984).
Francois’ remaining IAC claims are procedurally defaulted for his failure to
advance them in state court and otherwise provide no basis for a finding of
ineffective assistance of counsel as the failure to make meritless arguments
cannot constitute ineffective assistance of counsel. See, e.g., United States v.
Kimler, 167 F.3d 889, 893 (5th Cir. 1999) (“An attorney’s failure to raise a
meritless argument . . . cannot form the basis of a successful ineffective
assistance of counsel claim because the result of the proceeding would not
have been different had the attorney raised the issue.”). A separate IAC
claim concerning the supposed ineffectiveness of Francois’ state habeas
counsel is a nonstarter, for there is no freestanding right to any assistance of
counsel in state habeas proceedings, let alone to effective assistance of counsel
in such proceedings. Pennsylvania v. Finley, 481 U.S. 551, 555 (1987).
In another set of claims, Francois challenges the constitutionality of
Texas’s death penalty regime. However, as Francois conceded in his habeas
petition, this court has “repeatedly rejected” the issues Francois raised in
the third and fourth claims in his petition. See Pet. at 22; Rowell v. Dretke, 398
F.3d 370, 378 (5th Cir. 2005) (so rejecting). Similarly, as the district court
correctly found, a third related claim (Claim Five in Francois’ petition)
concerning jury instructions is also squarely foreclosed by binding precedent.
The sixth claim in Francois’ petition—suggesting that the Texas death
penalty statute is unconstitutional because “future dangerousness” is not
predictable by a jury—is devoid of any citation to caselaw and likely barred
by AEDPA’s nonretroactivity rule. See Peterson v. Cain, 302 F.3d 508, 511
(5th Cir. 2002) (observing that under AEDPA “federal habeas courts must
deny relief that is contingent upon a rule of law not clearly established at the
5
Case: 21-70003 Document: 00516378420 Page: 6 Date Filed: 06/30/2022
No. 21-70003
time the state conviction becomes final”). Francois’ seventh claim—that the
trial court violated his constitutional rights by denying his “Motion to
Declare the Texas Capital Sentencing Scheme Unconstitutional”—suffers
from a similar flaw: a near-total lack of framing and explanation for the district
court. A district court cannot be expected to read the mind of a petitioner
throwing random bits of paint at the wall to see what sticks, and nor can we.
In an eighth claim, Francois rehashes death-penalty theories we have already
rejected.
Lastly, 4 Francois asserts that the trial judge displayed bias by aiding
the prosecutor’s questioning of a witness. But the Texas Court of Criminal
Appeals denied this claim for lack of contemporaneous objection and we
must do the same. See, e.g., Hughes v. Johnson, 191 F.3d 607, 614 (5th Cir.
1999) (“Texas applies its contemporaneous objection rule strictly and
regularly and it is an independent and adequate state-law procedural ground
sufficient to bar federal court habeas review of federal claims.” (cleaned up)).
Accordingly, Francois’ application for a COA is DENIED.
4
In his habeas petition, Francois initially references an eleventh claim (making
blanket assertions regarding the denial of due process and a fair trial) but never returns to
flesh that point out in the body of his brief. We disregard it accordingly.
6