In Re: Brown

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
F I L E D
06-50838 July 19, 2006
Charles R. Fulbruge III
Clerk
MAURICEO MASHAWN BROWN,
Movant,
On Motion for Authorization to File
Successive Petition for Writ of Habeas
Corpus in the United States District Court
Before the Western District of Texas, San Antonio
Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.
BENAVIDES, Circuit Judge:
Mauriceo Brown is scheduled to be executed July 19, 2006.
Through counsel, on July 18, 2006, Brown filed a motion for
authorization to file a successive petition pursuant to 28 U.S.C.
§ 2244(b) and a motion for stay of execution. We deny leave to
file the successive petition and the motion for stay of execution.
I. STANDARD TO FILE SUCCESSIVE PETITION
Pursuant to 28 U.S.C. § 2244(b)(1), “[a] claim presented in a
second or successive habeas corpus application under section 2254
that was presented in a prior application shall be dismissed.”
Additionally, pursuant to section 2244(b)(2):
A claim presented in a second or successive habeas corpus
application under section 2254 that was not presented in
a prior application 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.
“This standard has been described as ‘a strict form of
innocence, . . . roughly equivalent to the Supreme Court’s
definition of innocence or manifest miscarriage of justice in
Sawyer v. Whitley [505 U.S. 333 (1992)].” Johnson v. Dretke, 442
F.3d 901, 911 (5th Cir. 2006) (quoting 2 RANDY HERTZ & JAMES S.
LIEBMAN, FEDERAL HABEAS CORPUS PRACTICE & PROCEDURE § 28.3e, at
1459-60 (5th ed. 2005)).
II. ANALYSIS
A. CONFRONTATION CLAUSE CLAIMS
1. ADMISSION OF WITNESS’S STATEMENT
Brown first argues that his right of confrontation as
guaranteed under the Sixth Amendment and interpreted in Crawford v.
Washington, 541 U.S. 36 (2004), was violated by the admission of
his non-testifying codefendant’s statement into evidence. We find
Brown’s reliance on Crawford misplaced. Foster’s confession was
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admitted against Foster, and the jury was specifically admonished
that the evidence could not be considered against Brown. Thus, the
testimony as presented was not testimony against Brown and did not
violate the rule in Crawford. Moreover, this Court has held that
Crawford does not apply retroactively on federal habeas. Lave v.
Dretke, 444 F.3d 333, 334-36 (5th Cir. 2006).1
2. LIMITED CROSS-EXAMINATION
Brown next argues that he was denied his right of
confrontation as guaranteed under the Sixth Amendment as
interpreted by Crawford by the trial court’s limited cross-
examination of Mary Patrick, the only witness who was not an
accomplice to the crime. First, Crawford is not applicable to this
case. Indeed, Brown was able to cross-examine Patrick in open
court. Brown’s real complaint was that he was limited in his
cross-examination. Second, because Brown previously raised this
supposed confrontation clause violation in his motion for
certificate of appealability (COA), which was denied by this Court,
this claim must be dismissed. 28 U.S.C. § 2244(b)(1). Third, as
the Director asserts, Brown does not proffer any newly discovered
evidence distinct from his prior claim, which we rejected. 28
1
Although the Supreme Court has granted certiorari in a
Ninth Circuit case which holds that Crawford does apply
retroactively, see Whorton v. Bockting, 399 F.3d 1010 (9th Cir.
2005), cert. granted, 126 S. Ct. 2017 (2006), “[w]e are bound by our
precedent absent an intervening Supreme Court decision or a
subsequent en banc decision.” United States v. Nalasco-Amaya, 54
Fed.Appx. 412 (5th Cir. Nov. 6, 2002) (unpublished).
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U.S.C. § 2244(b)(2). Fourth, assuming this constitutes a Crawford
claim, as set forth above, it does not apply retroactively on
federal habeas. Lave, 444 F.3d at 336.
B. CLAIM OF FREESTANDING INNOCENCE
Brown attempts to raise a freestanding claim of innocence.
Brown’s claim of innocence is based on the theory that he took the
blame for the murder because he was threatened. However, it is
apparent that, if such threats were made, Brown would have been
acutely aware of them even before his trial. Thus, the basis of
his actual innocence claim could hardly be said to be newly
discovered evidence. Very recently, the Supreme Court has declined
to resolve whether such a claim exists. House v. Bell, 126 S. Ct.
2064, 2086-87 (2006). Nonetheless, the Court concluded that
“whatever burden a hypothetical freestanding innocence claim would
require, this petitioner has not satisfied it.” Id. at 2087. The
threshold for such a claim would be “‘extraordinarily high.’” Id.
(quoting Herrera v. Collins, 506 U.S. 390, 417 (1993)). Brown’s
evidence falls far short of any such threshold.
C. EIGHTH AMENDMENT CLAIM
Relying on Atkins v. Virginia, 536 U.S. 304 (2002), which
categorically bars the execution of mentally retarded persons,
Brown argues that his execution would be in violation of the Eighth
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Amendment. This Court has explained that to obtain permission to
file a successive petition based on the new constitutional rule
announced in Atkins, a petitioner must make a prima facie showing
that “(1) his claim has not previously been presented in a prior
application to this court, (2) his claim relies on a decision that
stated a new, retroactively applicable rule of constitutional law
that was previously unavailable to him, and (3) that he is mentally
retarded.” In re Hearn, 418 F.3d 444, 444-45 (5th Cir. 2005).
Brown did not raise an Atkins claim in his previous COA to
this Court. With respect to whether an Atkins claim was available
to him, Brown filed his initial federal petition in district court
on February 2, 2002, and the Supreme Court issued its decision in
Atkins on June 20, 2002. The district court denied Brown's
petition in 2004. Under these circumstances, our case law
indicates that an Atkins claim was not available to Brown. In In
re Wilson, 442 F.3d 872 (5th Cir. 2006), this Court explained that
Texas courts abided by a “two-forum rule” that prevented
consideration of claims pending at the same time in federal court.
Thus, “[n]ot only did the two-forum rule prevent Wilson from filing
his Atkins claim in state court, it also kept him from amending his
federal application to include an Atkins claim because it would
have been dismissed as unexhausted.” Id. at 876. Thus, it appears
that Brown has made a prima facie showing on the first two
requirements for obtaining permission to file a successive Atkins
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claim.
The next question is whether Brown has made a prima facie
showing of mental retardation. Subsequent to Atkins, Texas courts
have followed the definition of mental retardation adopted by the
American Association on Mental Retardation and the nearly identical
definition set forth in section 591.003(13) of the Texas Health &
Safety Code. In re Salazar, 443 F.3d 430, 432 (5th Cir.), cert.
denied, 126 S. Ct. 1467 (2006). Pursuant to this test, a petitioner
claiming mental retardation must demonstrate that “he suffers from
a disability characterized by ‘(1) significantly subaverage general
intellectual functioning,’ usually defined as an I.Q. of about 70
or below; ‘(2) accompanied by related limitations in adaptive
functioning; (3) the onset of which occurs prior to the age of 18.”
Id. (quoting Ex parte Briseno, 135 S.W.3d 1, 7 (Tex. Crim. App.
2004)) (internal quotation marks omitted).
Brown has failed to make a prima facie showing of mental
retardation. In this regard, Brown fails to make a prima facie
showing of either: significantly subaverage intellectual
functioning; a deficit in adaptive functioning; or onset of mental
retardation before the age of 18. The report Brown relies on
indicates that his I.Q. is significantly above the range of mental
retardation. Also, the report does not demonstrate deficits in
specific areas of adaptive functioning. See In re Salazar, 443
F.3d at 432 (“Salazar offers no affirmative evidence tending to
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show that he suffers from significantly subaverage general
intellectual functioning or that any such intellectual functioning
has been accompanied by related limitations in adaptive
functioning.”); In re Johnson, 334 F.3d 403, 404 (5th Cir. 2003)
(denying leave to file a successive Atkins claim where the
petitioner offered only two letters from a forensic psychologist
listing areas of concern and a seventh-grade transcript reflecting
failed courses).
Finally, as previously set forth, the motion for stay of
execution was filed one day prior to the scheduled day of
execution. We note additionally that, in contradiction of our
local rules, counsel failed to attach a statement providing a
detailed explanation under oath detailing the reason for the late
filing. See Fifth Circuit Local Rule 8.10 (requiring such an
explanation if permission to file a successive petition is filed
within 5 days of the scheduled execution). Accordingly, we direct
the Clerk to issue the mandate instanter. Fifth Circuit Local Rule
8.8. The request for leave to file a successive petition is
DENIED. The motion for stay of execution is DENIED.
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