No. 14-20293 ______________________________
IN THE
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
______________________________
In Re: ROBERT JAMES CAMPBELL, Movant, ______________________________
On Motion for an Order Authorizing Filing and Consideration
of Second Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2254 ______________________________
RESPONSE IN OPPOSITION TO MOTION FOR AUTHORIZATIONRESPONSE IN OPPOSITION TO MOTION FOR AUTHORIZATIONRESPONSE IN OPPOSITION TO MOTION FOR AUTHORIZATIONRESPONSE IN OPPOSITION TO MOTION FOR AUTHORIZATION
AND MOTION FOR STAY OF EXECUTIONAND MOTION FOR STAY OF EXECUTIONAND MOTION FOR STAY OF EXECUTIONAND MOTION FOR STAY OF EXECUTION ______________________________
The State of Texas is scheduled to execute Movant The State of Texas is scheduled to execute Movant The State of Texas is scheduled to execute Movant The State of Texas is scheduled to execute Movant Robert James Robert James Robert James Robert James
Campbell Campbell Campbell Campbell on on on on May 13May 13May 13May 13, 201, 201, 201, 2014444, after 6 p.m. (CT) , after 6 p.m. (CT) , after 6 p.m. (CT) , after 6 p.m. (CT) for the murder of
Alexandra Rendon. In this eleventh-hour successive federal habeas
corpus proceeding, Campbell seeks authorization to file a successive
habeas petition raising claims of mental retardation under Atkins v.
Virginia, 536 U.S. 304 (2002). But as it did regarding an earlier
incarnation of these claims, this Court should deny Campbell
authorization to pursue habeas relief in the lower court because he fails
to meet 28 U.S.C. § 2244(b)(2)’s requirements.
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STATEMENT OF THE ISSUESTATEMENT OF THE ISSUESTATEMENT OF THE ISSUESTATEMENT OF THE ISSUE
Campbell asks this Court for leave to file a successive petition
raising a procedurally defaulted, untimely, and unmeritorious Atkins
claim. According to Campbell, despite counsel’s diligent efforts, the fact
that counsel was unable to obtain Campbell’s full educational records,
and that TDCJ failed to provide a single IQ test relieve him of his duty
to properly raise this claim in the twelve years since Atkins was
announced. Essentially, Campbell contends that his Atkins claim is
unhindered by any of AEDPA’s concerns for comity, timeliness, and
deference. No court has ever so held. This Court should not permit
Campbell’s attempt to forestall his execution more than twenty years
after his conviction, after five state habeas proceedings, and multiple
suits in federal court including a previous attempt to raise this claim on
the basis of an IQ test taken the month before his scheduled execution
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STATEMENT OF THE CASESTATEMENT OF THE CASESTATEMENT OF THE CASESTATEMENT OF THE CASE
I.I.I.I. Facts of the Crime Facts of the Crime Facts of the Crime Facts of the Crime
Alexandra Rendon left her job at Bank One on Thursday, January
3, 1991, between 10:00 and 10:30 p.m. 57 Reporter’s Record (RR) 9-10.
Rendon was dressed in a white leather skirt, white stockings, white
shoes, a black blouse, and a long wool cream-colored dress coat with
snake skin patches on the shoulders. 57 RR 9, 16-17. She also wore a
high school graduation ring, an engagement ring, a watch, and a
bracelet. 57 RR 18-20. Rendon carried several credit cards in her purse,
including a Chevron, a VISA, and a Mastercard. 57 RR 108. Rendon
drove a white Ford Topaz, which had a gray interior and a standard
transmission. 57 RR 16. After leaving work, Rendon stopped and
purchased gasoline at 10:53 p.m. at a Chevron service station located
near her place of employment. 57 RR 71-76.
Earlier that same evening, Campbell and Leroy Lewis were
dropped off near the Chevron service station by a friend, Jessie Jean
Criff, who had been asked whether he wanted to “make some money.”
60 RR 938-40. The following morning Campbell went to Carey Dion
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Pennamon and told Pennamon to hold the pistol he had used to shoot a
woman in the back. 58 RR 403, 405. Campbell told Pennamon that he
ordered the woman to “run, bitch, run,” and then shot at her head, but
missed. 58 RR 409-10. Campbell said he then ran up close to the woman
and shot her in the back. 58 RR 409-10. Pennamon saw Campbell
driving a car and wearing a class ring on his little finger, both of which
were identified as belonging to Rendon. 57 RR 106, 107; 58 RR 408-09.
Campbell also showed Pennamon the watch he had taken from the
woman and told Pennamon that he had given two other rings taken
from the woman to Lewis. 58 RR 406-07. In addition, Campbell told
Pennamon that he had stolen $40, a coat, and a white leather skirt from
the woman. 58 RR 407-08, 410. Campbell gave the coat to his mother as
a Christmas present. 58 RR 407.
On the same day, Lawrence Thomas also saw Campbell driving a
car, which was identified as belonging to Rendon. 57 RR 106; 58 RR
144-45. In the car, Thomas saw a white leather skirt, and Campbell
stated that it had come from the lady he had shot. 58 RR 148-49.
Campbell gave Thomas a similar account of abducting and murdering
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Rendon, stating that he and Lewis saw Rendon at a service station
where they forced her into her car and took her to a location on Holmes
Road. After Campbell told her to “walk in the bushes,” he fired two
shots at her because he missed her with the first shot. The second shot
struck the woman in the back. 58 RR 145-47. Later, Campbell pointed
out to Thomas the exact location where he had killed Rendon. 58 RR
149.
Also on January 4, 1991, Lewis paid Criff $7 for having given him
and Campbell a ride the previous evening. 60 RR 941. Criff observed
Campbell driving a white car similar to a Taurus or Tempo. 60 RR 942.
Campbell gave Criff a similar account of the crime as he had previously
given to others. This time, in addition to explaining that he shot at the
victim twice, hitting her with the second shot, Campbell also said that
he had sex with the victim and that he shot her because she did not
have any money. 60 RR 943-45.
On January 6 or 7, 1991, Campbell was watching television with
Otha Norton, Rochelle Pearson, Sheila Robeson, and Edward Hampton
when a story came on the 6 o’clock news concerning a missing bank
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teller. 60 RR 1001-04. Campbell stated, “That’s the bitch we killed.” 60
RR 1004; see also 60 RR 1023-28. Later that day or the next day,
Campbell showed Norton a white leather skirt, and Norton threw it
away. 60 RR 1004. Robeson had been offered the skirt, but she refused
it because it was dirty. 60 RR 1028-29.
On January 7, 1991, Campbell, Lewis, Norton, and Pearson were
riding in a small white car, which was identified as belonging to
Rendon. 60 RR 997, 1034. On their way to Sharpstown Mall, the car ran
out of gas or broke down. 60 RR 998. Campbell steered the car while the
others pushed the car to a Chevron service station and parked it. 60 RR
998. Campbell told Norton that this service station was where he had
stolen the car. 60 RR 999. After police recovered the car, Norton’s palm
print was found on the trunk and Lewis’s left index fingerprint was
recovered from inside of the passenger door window. 60 RR 1135.
On January 3 and 4, 1991, Gladys Santana telephoned her
daughter, Alexandra Rendon, but her daughter never answered. 58 RR
104-05. On Saturday, January 5, 1991, Santana went to Rendon’s
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apartment and discovered that she was missing. 58 RR 105. Santana
called the police. Id.
On January 14, 1991, Lawrence Thomas directed the police to the
location where Campbell had told him he killed the victim. 58 RR 289.
Rendon’s body was located approximately twenty yards from the
roadway. 58 RR 290, 310. She was lying face down in approximately
three inches of water and was wearing only a blouse and bra. Id.
Rendon’s purse, wallet and other items were recovered nearby. 58 RR
312, 315, 318, 327, 329. Her panties were recovered alongside the
roadway. 58 RR 329.
An autopsy revealed that the cause of death was a gunshot wound
to the left side of the victim’s back. 59 RR 493. The bullet entered the
pelvis, severed an artery that goes to the left thigh, and then lodged in
the abdomen. Id. Further, DNA testing was performed from the vaginal
swabs taken from the victim. The DNA testing revealed the presence of
sperm in the vagina of the victim from at least two different men, and
neither Campbell nor Lewis could be excluded as possible donors of the
sperm. 59 RR 876-79.
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On January 15, 1991, the police arrested Campbell at his mother’s
house. 58 RR 380, 391. After obtaining a written consent to search from
Campbell’s mother, the police recovered the coat which was identified
as belonging to Rendon. 57 RR 9-10; 59 RR 685. The police then
proceeded to the apartment occupied by Pennamon, who gave his
consent to search his apartment. 58 RR 393. The police recovered the
gun Campbell had given to Pennamon, which matched the gun used to
kill Rendon. 58 RR 393-95; 60 RR 1147. Finally, on January 28, 1991,
Campbell’s girlfriend, Demetrius Brown, was observed wearing
Rendon’s watch and class ring. 60 RR 1080-82.
II.II.II.II. Facts Relating to Punishment Facts Relating to Punishment Facts Relating to Punishment Facts Relating to Punishment
A.A.A.A. State’s EvidenceState’s EvidenceState’s EvidenceState’s Evidence
At the punishment phase, the State offered evidence of other
crimes committed by Campbell. First, the State presented the
judgments of conviction for two robberies committed by Campbell. 64
RR 1485. Next, the State presented evidence of two additional robberies
committed by Campbell.
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In addition, the State also presented evidence that before
Alexandra Rendon’s murder, on December 29, 1990, at about 9:30 p.m.,
a man named Du Vong exited a convenience store in Houston and got in
his Toyota Corolla. 64 RR 1683-84. Before Vong could drive away,
Campbell put a gun to his head and ordered him into the back seat of
the car. 64 RR 1684-85, 1700. Campbell was with another individual,
who was not identified. 64 RR 1685. Campbell took Vong to Braes
Bayou, a park in Houston. 64 RR 1687-88; 65 RR 1735. On the way,
Campbell and his cohort took Vong’s watch, ring, and wallet, which
contained $60 in cash and another $50 in money orders. 64 RR 1686,
1691.
Once at the park, Vong was ordered out of the car and, while
Campbell held a gun to his back, was told to start walking toward the
bayou. 64 RR 1687-88, 1703, 1710. As Vong neared the bayou, he was
kicked in the back, causing him to fall and roll down a hill towards the
bayou. 64 RR 1689. Campbell fired two shots at Vong, narrowly missing
him with each shot. 64 RR 1689-90, 1703, 1710. Vong pretended to be
dead. 64 RR 1691. After about five minutes, Vong climbed up the hill to
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where he had been kicked. Id. He saw some shadows standing next to
his car and almost immediately heard shots being fired. Id. He ran back
down the hill and waded across the bayou, where he found a house and
called the police. 64 RR 1691-93. Vong’s car was found in a ditch where
Campbell had left it after he had run it off the road and hit a mailbox.
65 RR 1722-23, 1729, 1733.
On January 7, 1991, Susan Casey and her eight-year-old son,
Nicholas, returned a Christmas present to Toys-R-Us. 64 RR 1495. At
about 9:00 p.m., they left the store and went toward Ms. Casey’s Ford
Bronco II. 64 RR 1529. As Ms. Casey entered her vehicle, Campbell
approached her, pointed a gun in her face, and ordered her into the
back of the Bronco. 64 RR 1499-1500. A cohort, Otha Lee Norton,
entered the passenger side of the Bronco holding a gun and ordered
Nicholas to the back. 64 RR 1500. Campbell took the keys to the Bronco
and drove to the side of the store to pick up a third person, Rochelle
Pearson. 64 RR 1503, 1648. Norton took Ms. Casey’s watch and wedding
ring, while holding a gun to her head in the back of the Bronco. 64 RR
1502. As Campbell drove away, Pearson began going through Ms.
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Casey’s purse and became angry when Ms. Casey had little money and
no automated teller machine card. 64 RR 1503-04. Campbell said, “You
need to die for this.” 64 RR 1504.
Campbell continued to drive until they reached a gravel road in a
desolate area of Harris County. 64 RR 1505, 1512, 1650. There,
Campbell and Norton got out of the Bronco, and a heated discussion
ensued concerning the fate of Ms. Casey and her son. 64 RR 1506.
Campbell had decided to shoot Ms. Casey and drown her son. 64 RR
1651-52. Ms. Casey and her son were then ordered out of the Bronco
and told to crawl over a barbed wire fence. Id. Campbell and Norton
followed, ordering the two toward a lake. 64 RR 1507. When Ms. Casey
did not hear the footsteps of the men following her, she turned around
and saw Campbell with both hands on his gun aiming it right at her
head from about five feet away. 64 RR 1508. Campbell said, “[T]urn
around bitch.” Id. Ms. Casey stood still and pleaded for her life. 64 RR
1508, 1653-54. Norton was telling Campbell, “[S]he’s a nice lady. I don’t
want to kill her.” 64 RR 1508. Campbell and Norton then had another
argument over whether Campbell would kill Ms. Casey and her son. 64
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RR 1509. They decided to tie the hands and feet of Ms. Casey and her
son with their shoelaces and leave them in the field. 64 RR 1509-10,
1654-55. As Campbell walked away, Norton told Ms. Casey, “[T]he only
reason your (sic) alive is because we like your son.” 64 RR 1510.
After Campbell and Norton left, Ms. Casey and her son began
hopping back to the fence. 64 RR 1511. They eventually managed to free
their feet and walked to a house down the road where they were untied,
and the police were called. 64 RR 1512-14. Ms. Casey and her son had
both been in therapy as a result of the robbery. 64 RR 1527-28.
B.B.B.B. Defense EvidenceDefense EvidenceDefense EvidenceDefense Evidence
Campbell called three family members and a friend to testify on
his behalf at the punishment phase of the trial. Joelvelyn Richardson,
Campbell’s sister-in-law testified that she believed Campbell would not
commit future acts of violence because he had told her about a month
earlier that “he was sorry” and that he sounded sad and worried. 65 RR
1780, 1783. Campbell’s cousin, Marcus Arvey, stated that Campbell
should be sentenced to life in order to have “a chance to be
rehabilitated” and because Campbell’s little sisters loved him. 65 RR
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1790. Campbell’s mother told the jury that Campbell used to work at
mowing lawns and sing in the church choir and that he was in trouble
because he was “[f]ollowing the wrong crowd.” 65 RR 1797-98, 1806.
Shirley Annette Green, who was living with Campbell’s brother,
testified that she loved Campbell “like a son” and that she let Campbell
keep her children. 65 RR 1808-09.
IIIIII.II.II.II. History of ProceedingsHistory of ProceedingsHistory of ProceedingsHistory of Proceedings
Campbell was convicted and sentenced to death for the capital
murder of Alexandra Rendon. 1 Clerk’s Record (CR) 207, 238-39. The
Texas Court of Criminal Appeals (CCA) affirmed Campbell’s conviction
and sentence on direct appeal, and certiorari review was denied.
Campbell v. State, 910 S.W.2d 475 (Tex. Crim. App. 1995), cert. denied,
517 U.S. 1140 (1996). Later, Campbell’s state application for writ of
habeas corpus was denied by the CCA based on the trial court’s findings
of fact and conclusions of law. Ex parte Campbell, No. 44,551-01 (Tex.
Crim. App. Mar. 8, 2000) (unpublished order).
Campbell subsequently filed his federal habeas petition in the
district court on November 2, 2000. The district court entered an order
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on March 19, 2003, denying relief. Campbell v. Cockrell, No. H-00-3844.
The district court declined a certificate of appealability (COA), as did
this Court. Campbell v. Dretke, 117 Fed. Appx. 946 (5th Cir. 2004)
(unpublished). During the pendency of the federal habeas application,
Campbell filed a second state habeas application raising an Atkins
claim. The CCA dismissed the application as an abuse of the writ. See
Ex parte Campbell, No. 44,551-02 (Tex. Crim. App. July 2, 2003) (not
designated for publication). In 2001, also during the pendency of the
federal habeas application, Campbell petitioned the Texas courts for
postconviction DNA testing, which the trial court granted on April 2,
2002. The test results further confirmed Campbell’s guilt:
[Campbell] could not be excluded as a contributor to the sperm fractions of the DNA extract from the victim’s vaginal or anal samples. The probability of selecting an unrelated African-American male at random who could be a contributor to the anal mixture was reported as 1 in 620,000.
Ex parte Campbell, 226 S.W.3d 418, 423-24 (Tex. Crim. App. Apr. 25,
2007) (quotation marks omitted).
Campbell next sought leave to file a successive federal habeas
application raising an Atkins claim. This Court denied leave, finding
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Campbell failed to make a prima facie showing of retardation. In re
Campbell, 82 Fed. Appx. 349 (5th Cir. 2003) (unpublished). In August of
2006, Campbell returned to state court to file a third state habeas
application raising Brady1 and actual-innocence claims. The CCA
dismissed the application as an abuse of the writ. Ex parte Campbell,
226 S.W.3d at 425.
On September 5, 2012, Campbell filed his fourth state habeas
application in the trial court, raising alleged error in the jury charge.
See Ex parte Campbell, No. 76,907 (Tex. Crim. App. Nov. 7, 2012). The
CCA, noting that “the law has further developed since applicant filed
his last habeas application,” looked past the state procedural rule on
successive state habeas applications, see Tex. Code Crim. Proc. art.
11.071 §5, and denied the claim on the merits. That denial was the
basis for a petition for certiorari, which was also denied. Campbell v.
Texas, 134 S. Ct. 53 (2013).
Campbell is scheduled for execution Tuesday, May 13, 2014. In
relation to that event, Campbell filed yet another state habeas
application seeking relief under Atkins which the CCA dismissed as an
1 Brady v. Maryland, 363 U.S. 83 (1963).
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abuse of the writ May 8, 2014. Ex parte Campbell, No. 44,551-05 (Tex.
Crim. App.) (citing Tex. Code Crim. Proc. art. 11.071, § 5(c)). Campbell
has also filed a § 1983 suit seeking temporary and permanent injunctive
relief in federal district court which was denied on April 9, 2014.
Campbell is expected to appeal in a separate suit to this Court.
ARGUMENTARGUMENTARGUMENTARGUMENT
A state prisoner may raise a new claim in a second or successive
habeas petition in federal district court only if a three-judge panel of a
United States Court of Appeals first determines that the application
makes a prima facie showing that: (A) the petitioner’s 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)
it relies on facts that (i) could not have been discovered previously
through the exercise of due diligence, and (ii), if proven, would
“establish by clear and convincing evidence that, but for Constitutional
error, no reasonable factfinder would have found the applicant guilty of
the underlying offense.” 28 U.S.C.A. § 2244(b)(2)(A)-(B). As shown
below, Campbell cannot make either showing. Atkins was decided over
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twelve years ago, and none of the evidence in support of Campbell’s
claim was previously unavailable. There was nothing that precluded
testing Campbell’s IQ anytime in the past twenty plus years, much less
the last twelve. For these reasons, as well as the arguments set out
below, this Court should deny Campbell’s motion for authorization of a
successive petition.
I.I.I.I. This Court Should Deny This Court Should Deny This Court Should Deny This Court Should Deny Campbell Campbell Campbell Campbell Authorization Authorization Authorization Authorization to File ato File ato File ato File a Successive Habeas Petition Because His Petition Would Be TimeSuccessive Habeas Petition Because His Petition Would Be TimeSuccessive Habeas Petition Because His Petition Would Be TimeSuccessive Habeas Petition Because His Petition Would Be Time----Barred.Barred.Barred.Barred.
A one-year period of limitation applies to an application for a writ
of habeas corpus by a person in custody pursuant to the judgment of a
state court. 28 U.S.C. § 2244(d)(1). To satisfy the one-year statute of
limitations, a habeas petition must be filed in the district court, not in
the court of appeals. Fierro v. Cockrell, 294 F.3d 674, 679 (5th Cir.
2002) (emphasis added). A petitioner’s motion for authorization to file a
successive federal habeas petition is not an “application for writ of
habeas corpus,” and the filing of such a pleading will not satisfy the
one-year statute of limitations. Id. Rather, the petition must be
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“‘delivered to, and accepted by,’ the district court.” Id. at 680 n.10
(quoting Artuz v. Bennett, 531 U.S. 4, 8 (2000)).
A.A.A.A. Campbell’s Campbell’s Campbell’s Campbell’s AtkinsAtkinsAtkinsAtkins claim is untimely as a matter of law.claim is untimely as a matter of law.claim is untimely as a matter of law.claim is untimely as a matter of law.
Insofar as Campbell’s Atkins claim is concerned, the one-year
limitation period began to run under § 2244(d)(1)(C) on the date of the
Supreme Court’s decision in Atkins. In re Wilson, 442 F.3d 872, 874
(5th Cir. 2006) (one-year limitations period for filing Atkins claim
expired on June 20, 2003) (citing In re Hearn, 376 F.3d 447, 456 n. 11
(5th Cir. 2004)). In certain instances, the one-year statutory limitations
period may be extended because the AEDPA allows for tolling during
the pendency of properly filed applications for state court collateral
review. 28 U.S.C. § 2244(d)(2). Yet the only way the filing deadline is
tolled in this manner is for a petitioner to have properly filed an
application for state court collateral review prior to expiration of the
petitioner’s one-year federal window for filing.
Campbell is entitled to such tolling because he filed a state habeas
application raising Atkins on June 2, 2003, but with only nineteen days
left on the federal limitations clock, it does nothing to aid him here. Ex
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parte Campbell, No. 44,551-02, at writ cover. The clock began running
again when the CCA dismissed the application exactly one month later
on July 2, 2003. Id. Thus, Campbell had until Monday, July 21, 2003, to
file a federal habeas petition raising this issue. Instead Campbell filed a
motion for authorization to file a successive petition the next day
Tuesday, July 22, 2003. In re Campbell, No. 03-20700, 82 Fed. Appx.
349 (2003). Even overlooking his failure to timely file by one day, a
motion for authorization, as stated above, does not toll the statute of
limitations. Fierro, 294 F.3d at 679. Thus, the limitations period for this
claim ran out over ten years ago. But Campbell did not return to state
court to raise this issue again until a few days ago. Thus, Campbell’s
claim is time-barred as a matter of law.
B.B.B.B. Campbell Campbell Campbell Campbell is not entitled to equitable tolling to save his is not entitled to equitable tolling to save his is not entitled to equitable tolling to save his is not entitled to equitable tolling to save his delinquent claim.delinquent claim.delinquent claim.delinquent claim.
The one-year statute of limitations is not a jurisdictional bar and,
therefore, is subject to equitable tolling. Lookingbill v. Cockrell, 293
F.3d 296 (5th Cir. 2002) (citing Davis v. Johnson, 158 F.3d 806, 811
(1999)). But, this Court has repeatedly held that equitable tolling “is
applied restrictively” and “is entertained only in cases presenting ‘rare
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and exceptional circumstances where it is necessary to preserve a
plaintiff’s claims when strict application of the statute of limitations
would be inequitable.’” In re Wilson, 442 F.3d at 875 (quoting Fierro,
294 F.3d at 682); United States v. Patterson, 211 F.3d 927, 930 (5th Cir.
2000) (tolling applies only in “rare and exceptional circumstances.”)
(quoting Davis, 158 F.3d at 810-11). Most importantly, “equity is not
intended for those who sleep on their rights.” Fisher v. Johnson, 174
F.3d 710, 714 (5th Cir. 1999) (citing Covey v. Arkansas River Co., 865
F.2d 660, 662 (5th Cir. 1989)). Campbell’s case coming more than ten
years since the limitations period ran out and only days before his
scheduled execution does not present the necessary “rare and
exceptional circumstances” to warrant tolling.
To the extent Campbell would argue that this Court should
authorize the filing of his successive federal petition so that the district
court can review the merits of his Atkins claim and the statute of
limitations issue in the first instance, he would be mistaken. This Court
has examined the statute of limitations issue and the availability of
equitable tolling in the very same context of a petitioner’s motion for
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authorization to file a successive writ petition. See, e.g., In re Wilson,
442 F.3d 878; In re Hearn, 389 F.3d 122, 123 (5th Cir. 2004).
Furthermore, circuit courts have the authority to raise the one-year
limitations period in § 2244(d)(1). Scott v. Johnson, 227 F.3d 260, 263
(5th Cir. 2000). Thus, the Court does have the authority to determine
whether the limitations period in § 2244(d)(1) bars consideration of
Campbell’s successive writ petition. In this case, the Court should hold
that Campbell’s petition is untimely and deny his motion.
Campbell has made no argument that his claim is not barred by
the statute of limitations. This Court has stated many times that “mere
attorney error or neglect is not an extraordinary circumstance such that
equitable tolling is justified.” United States v. Riggs, 314 F.3d 796, 799
(5th Cir. 2002) (citing Cousin v. Lensing, 310 F.3d 843, 849 (5th Cir.
2002)). Moreover, equitable tolling “applies principally where the
plaintiff is actively misled by the defendant about the cause of action or
is prevented in some extraordinary way from asserting his rights ...
Where [appellant] could have filed his claim properly with even a
modicum of due diligence, we find no compelling equities to justify
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tolling.” Rashidi v. American President Lines, 96 F.3d 124, 127-28 (5th
Cir. 1996) (emphasis added). Here, Campbell asserts his counsel was
diligent but that TDCJ’s mistaken assertion that it had only one test
score so misled him that he was unable to make the proper showing
thus thwarting his state writ application and his untimely previous
motion for authorization. But the real basis of Campbell’s claim is his
very recently obtained full-scale IQ scores, and Campbell gives no
reason why he could not have previously been tested. This last-minute
claim is the antithesis of diligence and in no way should be considered a
“rare and exceptional circumstance” warranting equitable tolling.
Further, the two-forum rule cannot be the basis of further tolling
for Campbell. Certiorari was denied on Campbell’s first federal habeas
round in 2005. Campbell v. Dretke, 126 S. Ct. 649 (2005). But even
before that time, Campbell was able to file his second state habeas
application and his first motion for authorization because the Texas
two-forum rule was renounced as long as ago as February 11, 2004. Ex
parte Soffar, 143 S.W.3d 804 (Tex. Crim. App.). Moreover, Campbell
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filed two additional state writ applications, neither raising Atkins
claims. Ex parte Campbell, No. 44,551-03, -04.
Campbell has provided no legitimate excuse, let alone compelling
reason, to justify his waiting over twelve years since Atkins was
announced long before seeking testing or presenting the evidence he
now asserts. As this Court has stated, a federal court that is asked to
grant equitable relief from the strict limitations period imposed by the
AEDPA “must be mindful of the framework Congress established in §
2244(d).” Felder v. Johnson, 204 F.3d 168, 172 (5th Cir. 2000) (citations
omitted). This Court should, therefore, be very cautious in extending
equitable tolling beyond the circumstances specifically enumerated in
the statute, or risk frustrating the manifest intent of Congress. Fierro,
294 F.3d at 684 (stating that although application of time-bar may “may
appear formalistic––particularly in a death penalty case” federal courts
must be mindful “that Congress has imposed a strict one-year
limitations period for the filing of all habeas petitions under the
AEDPA, subject only to the narrowest of exceptions”); Cantu-Tzin v.
Johnson, 162 F.3d 295, 299 (5th Cir. 1998) (stating that “when Congress
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-24-
has stepped in to balance the competing interests [of equities in capital
cases], as it did in AEDPA, courts should be loath to evade that
balance”).
“[S]tatutes of limitations[] necessarily operate harshly and
arbitrarily with respect to individuals who fall just on the other side of
them, but if the concept of a filing deadline is to have any content, the
deadline must be enforced.” United States v. Locke, 471 U.S. 84, 101
(1985). Given Campbell’s untimeliness and complete lack of diligence,
this Court should deny his request for authorization to file an untimely
habeas petition.
II.II.II.II. Campbell’s Campbell’s Campbell’s Campbell’s Claims Are Procedurally DefaultedClaims Are Procedurally DefaultedClaims Are Procedurally DefaultedClaims Are Procedurally Defaulted, a, a, a, and nd nd nd He Has Not He Has Not He Has Not He Has Not Asserted Cause or Prejudice to Overcome the Default.Asserted Cause or Prejudice to Overcome the Default.Asserted Cause or Prejudice to Overcome the Default.Asserted Cause or Prejudice to Overcome the Default. It is well settled that federal courts “will not review a question of
federal law decided by a state court if the decision of that court rests on
a state law ground that is independent of the federal question and
adequate to support the judgment.” Coleman v. Thompson, 501 U.S.
722, 729 (1991)); Harris v. Reed, 489 U.S. 255, 262 (1989). Thus, federal
review of a habeas claim is procedurally barred if the last state court to
consider the claim expressly and unambiguously based its denial of
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relief on a state procedural default. Coleman, 501 U.S. at 729; Harris,
489 U.S. at 265; Amos v. Scott, 61 F.3d 333, 338 (5th Cir. 1995).
As noted above, Campbell did not raise the instant claim until his
second and fifth state habeas applications, which were both dismissed
as an abuse of the writ. Ex parte Campbell, Nos. 44,551-02, -05. Thus,
the state court’s dismissal of his claims as an abuse of the writ
precludes federal habeas relief as a matter of law. See Fearance v.
Scott, 56 F.3d 633, 642 (5th Cir. 1995) (holding that pre-11.071 abuse-
of-the-writ doctrine was strictly and regularly applied and, thus, was
independent and adequate state procedural bar); Emery v. Johnson, 139
F.3d 191, 195-96 (5th Cir. 1997) (extending Fearance to Article 11.071
statutory abuse of writ doctrine); Barrientes v. Johnson, 221 F.3d 741,
758-59 (5th Cir. 2000); Fuller v. Johnson, 158 F.3d 903, 906 (5th Cir.
1998); see also Moore v. Texas, 535 U.S. 1044, 1047-48 (2002) (Scalia,
J., dissenting) (recognizing Texas abuse-of-the-writ statute as
independent and adequate state ground).2
2 Even if the state court’s dismissal of Campbell’s most recent successive Atkins petition was a merits determination, a contention the Director disputes, Campbell is not entitled to authorization to file a successive federal writ for all the other reasons set out in this response. See, e.g., Rivera v. Quarterman, 505 F.3d 349, 359 (5th Cir. Tex. 2007).
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Campbell’s default of his claims can only be excused if he can
demonstrate (1) cause for the default and prejudice as a result of the
alleged violation of federal law, or (2) a resulting “fundamental
miscarriage of justice.” Coleman, 501 U.S. at 750-51. To establish
“cause,” a habeas petitioner must ordinarily identify circumstances
external to the defense that prevented him from properly asserting the
claim in state court. McCleskey v. Zant, 499 U.S. 467, 497 (1991) (citing
Murray v. Carrier, 477 U.S. 478, 492 (1986)). And he has specifically
not asserted Martinez3 creates the necessary cause. Indeed, Campbell
has not explained why his Atkins claims as it is currently formulated
was not raised in any of his previous state or federal habeas
applications, and he has ignored the fact that his claims are barred
from federal review.
In view of the fact that the federal courts are barred from
reviewing his claims, Campbell’s request to file a successive petition
should be denied.
3 132 S. Ct. 1309 (2012) (finding an equitable exception where a petitioner can show that state habeas counsel in the initial state habeas proceedings was ineffective if this was the first opportunity a claim of ineffective of trial counsel could be asserted); see also Trevino v. Thaler, 133 S. Ct. 1911 (2013) (holding the rule of Martinez generally applicable to Texas capital cases).
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IIIIIIIIIIII.... The Court Should Deny The Court Should Deny The Court Should Deny The Court Should Deny Campbell’sCampbell’sCampbell’sCampbell’s Authorization for a Successive Authorization for a Successive Authorization for a Successive Authorization for a Successive Petition Because Petition Because Petition Because Petition Because CampbellCampbellCampbellCampbell’s Underlying Claim’s Underlying Claim’s Underlying Claim’s Underlying Claim IsIsIsIs Without Without Without Without Merit.Merit.Merit.Merit. Were this Court to review Campbell’s mental retardation claim on
the merits, the Court would not find him entitled to relief.
The Eighth Amendment bars the execution of the mentally
retarded. Atkins, 536 U.S. at 321. The task of developing appropriate
ways to enforce the constitutional restriction was, however, been left to
the states. Id. at 317. The relevant standard in Texas was set out by the
Court of Criminal Appeals in Ex parte Briseño, 135 S.W.3d 1, 7 (2004).
The state court held that mental retardation claims should be
adjudicated under the framework established by the American
Association on Mental Retardation,4 in conjunction with the standard
supplied by Section 591.003(13) of the Texas Health & Safety Code. See
id. at 7. Under that standard “mental retardation” means significantly
subaverage general intellectual functioning that is concurrent with
deficits in adaptive behavior and originates during the developmental
period. In other words, Ex parte Briseño requires three elements for a
4 The American Association on Mental Retardation, or AAMR, is now called the American Association on Intellectual and Developmental Disabilities, or AAIDD.
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finding of mental retardation: (1) significantly subaverage intellectual
functioning (generally, a full-scale IQ score of 70 or below); (2) deficits
in adaptive functioning; and (3) onset before age 18. Id. at 7; see also
Maldonado v. Thaler, 625 F.3d 229, 232–33 (5th Cir. 2010). In state
habeas proceedings, the petitioner bears the burden of proving
retardation by a preponderance of the evidence. Ex parte Briseño, 135
S.W.3d at 12.
In evaluating a defendant’s adaptive functioning, Texas courts are
allowed to consider the following, sometimes called “Briseno factors”:
• Did those who knew the person best during the developmental stage—his family, friends, teachers, employers, authorities—think he was mentally retarded at that time, and, if so, act in accordance with that determination? • Has the person formulated plans and carried them through or is his conduct impulsive? • Does his conduct show leadership or does it show that he is led around by others? • Is his conduct in response to external stimuli rational and appropriate, regardless of whether it is socially acceptable? • Does he respond coherently, rationally, and on point to oral or written questions or do his responses wander from subject to subject?
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• Can the person hide facts or lie effectively in his own or others’ interests? • Putting aside any heinousness or gruesomeness surrounding the capital offense, did the commission of that offense require forethought, planning, and complex execution of purpose?
135 S.W.3d at 8–9.
By submitting his retardation-related evidence during last-minute
litigation, Campbell has dodged submitting his evidence to state or
federal court scrutiny. Nonetheless, the evidence offered by Campbell
does not meet the state standard proving retardation by a
preponderance of the evidence. See id. at 12.
A.A.A.A. Intellectual functioningIntellectual functioningIntellectual functioningIntellectual functioning
Campbell offers a report from Dr. Leslie D. Rosenstein, a clinical
neuropsychologist. She tested Campbell on death row at the Polunsky
Unit, on April 4, 2014, some thirty-nine days before Campbell’s
scheduled execution. Using the Wechsler Adult Intelligence Scale IV
(WAIS-IV), Rosenstein found that Campbell received a full-scale
intelligence score of 69, one point below the 70-point mark that state
courts have used for evaluating “subaverage intellectual functioning.”
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See Maldonado, 625 F.3d at 232–33. Dr. Rosenstein diagnosed
Campbell with “mild mental retardation.” Rosenstein report at 3,
Exhibit 2 of Succ. Pet, ECF No. 63.
Campbell now––in this last-minute pleading filed just days before
his scheduled execution––offers 3 scores from IQ tests given before the
Supreme Court handed down Atkins on June 20, 2002, showing IQs at
or near the cut off of 70. However, an IQ evaluation made by the Texas
Department of Criminal Justice when Campbell first entered the state
prison system gave Campbell an IQ score of 84. (TDC letter to Justin
Waggoner accompanying Social and Criminal History of Robert James
Campbell at 1.) But Campbell alleges other prison notes suggest that in
July 1992 Campbell scored a 71 on a prison-administered Wechsler
Adult Intelligence Scale-Revised, IQ Short Form; thus, the 84 should be
disregarded. Mot. at 9. Although not much is known of the tests given
by the prison personnel, these scores do reflect that within the prison
environment Campbell was not seen as mentally retarded or as having
subaverage intellectual functioning.
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Campbell’s trial counsel also had his client examined by Dr.
Walter Quijano, a psychologist. Although Campbell now offers an
opinion by Dr. Quijano that in April 1992, before Campbell’s trial, the
psychologist formed the opinion that Campbell “might have sub-average
intelligence,” it is not clear that contemporaneous records exist that Dr.
Quijano bore that opinion in 1992. Campbell acknowledges that Dr.
Quijano did not subject the petitioner to intelligence testing. And the
absence of contemporaneous testing does nothing to help Campbell
carrying his burden of proving subaverage intellectual functioning. Ex
parte Briseño, 135 S.W.3d at 12. Further, if Campbell was on notice of
this alleged impairment, he ought not to have waited twelve years since
the Supreme Court decided Atkins to fully pursue relief.
Although Campbell suggests that certain school records show that
Campbell performed below average on certain school-administered
standardized tests, specifically the Otis-Lennon Mental Ability Test, the
Metropolitan Readiness Test, and the Iowa Test of Basic Skills,
Campbell offers no Wechsler score or Stanford-Binet score arising
before Atkins was handed down. And because Campbell never
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submitted his evidence in a proper evidence-evaluating forum, his
argument that his childhood scores demonstrate subaverage intellectual
function may be seen as convenient.
Finally, though the scores are at or near the cutoff of 70, they do
not by themselves, establish that Campbell is mentally retarded. As
the CCA has recognized, “Psychologists and other mental health
professionals are flexible in their assessment of mental retardation;
thus, sometimes a person whose IQ has tested above 70 may be
diagnosed as mentally retarded while a person whose IQ tests below 70
may not be mentally retarded. … Furthermore, IQ tests differ in
content and accuracy.” Ex parte Briseño, 135 S.W.3d at 7 n.24. As
discussed below, because Campbell cannot show deficits in adaptive
functioning, his claim must fail. See Chester v. Thaler, 666 F.3d 340,
349 (5th Cir. 2011) (“The Texas Court of Criminal Appeals, while
acknowledging that test scores alone might have indicated mental
retardation, nevertheless was compelled to find that the evidence
supported the trial court’s finding that Petitioner is not mentally
retarded.”).
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B.B.B.B. Adaptive functioningAdaptive functioningAdaptive functioningAdaptive functioning
Even if this Court were to consider the April 2014 Wechsler score
of 69 as an accurate reflection of Campbell’s intellectual functioning, he
still does not meet his state-law burden of showing by a preponderance
of the evidence that he is retarded. He must also show deficits in
adaptive functioning. See Ex parte Briseño, 135 S.W.3d at 7.
For a mental-retardation finding, the adaptive deficits must not
merely coexist with subaverage intelligence but arise from that
subaverage intelligence as opposed to other sources. “The inclusion of
adaptive behavior in the definition of mental retardation requires that
intellectual impairment, measured by an intelligence test, have some
practical impact on the individual’s life.” James W. Ellis & Ruth A.
Luckasson, Mentally Retarded Criminal Defendants, 53 Geo. Wash. L.
Rev. 414, 4224 (1985); see also Williams v. Quarterman, 293 Fed. Appx
298, 309 (5th Cir. 2008) (finding no retardation where petitioner’s
problems at school could have been related to alcohol and drug abuse
not to low intelligence); In re Salazar, 443 F.3d 430, 433–34 (5th Cir.
2006) (noting that expert found no retardation where petitioner’s
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adaptive difficulties coexisted with average intelligence); Maldonado v.
Thaler, 662 F.Supp.2d 684, 726 n.47 (S.D. Tex. 2009) (stating that
approach “recognizes that a subaverage IQ will manifest itself in the
way that people adapt to the world around them.”); Ex parte Hearn, 310
S.W.3d 424, 428 (Tex. Crim. App. 2010) (stating that defendant must
show that “subaverage intellectual functioning and significant
limitations in adaptive functioning” are linked—“the adaptive
limitations must be related to a deficit in intellectual functioning and
not a personality disorder”). The adaptive deficit is seen as proof that
the subaverage intelligence has an effect on the individual’s life. See
Ellis, supra; Maldonado, 662 F.Supp.2d at 726 n.47; see also Hill v.
Schofield, No. 08-15444, 2010 WL 2427092, at *3 (11th Cir. June 18,
2010) (noting that Georgia statutory definition of retardation requires
low intelligence “resulting in or associated with” adaptive deficit);
Murphy v. Ohio, 551 F.3d 485, 509 (6th Cir. 2009) (noting that expert
said that individual’s adaptive deficits could be attributed to something
other than retardation). Again, it is not enough that the adaptive
deficits coexist with subaverage intelligence. The deficits must arise
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from the subaverage intelligence, and in effect constitute evidence of the
subaverage intelligence.
As a threshold level, the instant claim is undone by an
acknowledgement by Dr. Rosenstein regarding her inability to assess
Campbell’s adaptive functioning. Dr. Rosenstein notes: “Mr. Campbell
has been on death row for his entire adult life. Therefore, it is not
possible to validly compare him to the normal population in terms of his
adult adaptive skills.” Rosenstein report at 1 (emphasis added).
Compounding this difficulty, Dr. Rosenstein’s assessment of Campbell’s
adaptive functioning was admittedly limited by an inability to locate a
“potential informant who would be considered nonbiased to complete
standardized questionnaires.” Id.
Campbell offers no standardized tests results to support a finding
that he possesses adaptive deficits sufficient to support a retardation
finding. Succ. Pet. ECF No. 63, at 23. Dr. Rosenstein relied upon an
evaluation of Campbell’s academic skills as shown by the Woodcock-
Johnson-II-NU Tests of Achievement: Passage Comprehension, Applied
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Problems, Writing Samples, and a review of Campbell’s academic
history. Id.
Dr. Rosenstein said that Campbell was able to count and add
change but was not “consistently accurate in calculating change from a
purchase.” Rosenstein report at 2. Nor could he “answer simple
questions about . . . money savings.” Rosenstein report at 2. Campbell
also offers evidence that he had to ask a friend to read his non-digital
watch. Declaration of Otha Lee Norton at 1, Exhibit 8 of Succ. Pet. ECF
No. 63.
Campbell offers evidence that he had difficulty in reading
comprehension, that he had never obtained a driver’s license, that he
was a poor driver, and that he never held gainful employment beyond
physical labor. Succ. Pet. ECF No. 63 at 24–26. He argues that people
who have known him from childhood now describe him as “mentally
slow” and “impaired.” Id. at 26. He argues further that his criminal
activity shows that his actions are marked by impulsivity rather than
by formulating and carrying out plans. Id. at 28.
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Again Campbell offers evidence that arises after his arrest for
capital murder. The statements and affidavits from childhood friends,
family members, acquaintances all were gathered as part of Campbell’s
postconviction litigation; thus, they should be viewed with suspicion.
See Chester, 666 F.3d at 349 (noting that the state trial court had
discounted evidence from family because they “had an incentive to lie”).
As for contemporaneous records from childhood, the school records show
that he was a poor student. Campbell does not offer sufficient evidence
to show that his poor scholarship arose from his low intelligence. See Ex
parte Briseño, 135 S.W.3d at 12; see also Chester, 666 F.3d at 349
(affidavit of school administrator “indicative of only a learning
disability, not retardation”).
In contrast, the trial record contains ample evidence that
Campbell did not exhibit “significant limitations” in adaptive
functioning at the time of the murder. The jury heard evidence that
Campbell “was an average child.” 66 RR 1778. Despite never having
obtained a license, Campbell could drive a stick-shift car. 58 RR 149. He
also enjoyed playing sports and sang in the church choir. 66 RR 1788,
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1798. Most impressively, Campbell was entrusted to babysit. 66 RR
1809. Finally, Campbell admits he mowed yards for money.
Further, the evidence developed at trial, contrary to Campbell’s
arguments, showed that Campbell was not in the criminal world, a
mere follower. The record shows that in the crime at issue, Campbell,
not his codefendant, shot the victim. Campbell, not his codefendant,
appropriated the victim’s car and possessions. In the Vong and Casey
robberies, Campbell, not his companion, initiated the robberies, and in
the Vong robbery, Campbell was responsible for the gunplay.
Campbell offers nothing to show that his lackluster adaptive skills
arose from low intelligence rather than from a preference for crime. He
has cobbled together after-the-fact statements from friends and
acquaintances alleging that he had difficulty with school. He has offered
records showing that he was not a good student. This evidence does not
show that whatever adaptive deficits Campbell purports to have are
related to, or arose from, any presumed subaverage intellectual
functioning.
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C.C.C.C. Before age 18Before age 18Before age 18Before age 18 Intellectual FunctioningIntellectual FunctioningIntellectual FunctioningIntellectual Functioning
As for the third prong of the retardation standard, that the
condition arose before the age of eighteen, again Campbell offers no
contemporaneous records suggesting that he was other than a poor
student. He offers no pre-eighteen Wechsler or Stanford-Binet score. He
offers scores suggesting that he was a poor student. Most of the other
evidence that Campbell offers arose after he was arrested and after the
Supreme Court handed down Atkins. Finally, any such evidence that
exists must necessarily have existed not only before his conviction but
in the twelve years since Atkins was decided. Campbell offers no
explanation for his failure to find such evidence in this span. Thus, a
reasonable person could conclude it does not exist.
For these reasons, Campbell’s last-minute claim of retardation,
previously raised and rejected by both this Court and the state courts,
should not give this Court any pause. Campbell is not mentally-
retarded for purposes of Atkins.
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IV.IV.IV.IV. This Court ShoulThis Court ShoulThis Court ShoulThis Court Should Not Recall Its Previous Mandate.d Not Recall Its Previous Mandate.d Not Recall Its Previous Mandate.d Not Recall Its Previous Mandate. Campbell also asserts that as an alternative to granting his
motion for authorization to file a successive petition, this Court could
simply recall the mandate of its previous decision. Mot. at 18-22.
Campbell argues this is not an attempt to circumvent AEDPA because
he is not attacking his conviction or sentence but rather the integrity of
the appellate process. Mot. at 20. But Campbell is attacking his
sentence because he claims he cannot be executed under Atkins. And he
is trying to transform his dilatory actions into an attack on the State.
Campbell admits to being on notice before trial that he allegedly
suffered from sub-average intellectual functioning, Mot. at 20-21, but he
argues he was actively prevented from making his claim because TDCJ
mistakenly failed to turn over one test score which is still technically
above the cut-off for mental retardation. His present assertions that
TDCJ’s actions threw him off the Atkins trail are not credible.
Further, as the Supreme Court announced in Calderon v.
Thompson, 523 U.S. 538 (U.S. 1998), a prisoner’s motion to recall the
mandate on the basis of the merits of the underlying decision can be
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regarded as a second or successive application for purposes of § 2244(b).
“Otherwise, petitioners could evade the bar against relitigation of
claims presented in a prior application, § 2244(b)(1), or the bar against
litigation of claims not presented in a prior application, § 2244(b)(2).”
Id. at 553. Thus, if a court grants such a motion, its action is subject to
AEDPA irrespective of whether the motion is based on old claims or
new ones. Id. Further, the Court went on to state that if a court
considers new evidence in the recall of a mandate, then Ҥ 2244(b)(2)
applies irrespective of whether the court characterizes the issue sua
sponte.” Id. at 554.
Given that Campbell’s retardation claims were time-barred at the
time of this Court’s previous determination and that they were
procedurally defaulted at that time as well, and that he is still subject
to AEDPA’s strictures, it remains to be seen what Campbell would gain
from a recall of this Court’s mandate. For these reasons, the Court
should decline such an invitation.
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V.V.V.V. Campbell Is Not Entitled to a Stay ofCampbell Is Not Entitled to a Stay ofCampbell Is Not Entitled to a Stay ofCampbell Is Not Entitled to a Stay of Execution.Execution.Execution.Execution.
“[This Court’s] standard for review of a stay of execution is
essentially the same as the measure for granting a stay.” Byrne v.
Butler, 845 F.2d 501, 518 (5th Cir. 1988). To be entitled to a
preliminary injunction or a stay of execution a movant must show “a
substantial likelihood of success on the merits” and that the balance of
harms tips in his favor. See Tamayo v. Stephens, 740 F.3d 986, 990 (5th
Cir. 2014) (citing Adams v. Thaler, 679 F.3d 312, 318 (5th Cir.
2012)(stay of execution), and Janvey v. Alguire, 647 F.3d 585, 595 (5th
Cir. 2011)(preliminary injunction)). When the requested relief is a stay
of execution, a court must consider:
(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceedings; and (4) where the public interest lies.
Nken v. Holder, 556 U.S. 418, 434 (2009)(quoting Hilton v. Braunskill,
481 U.S. 770, 776 (1987).
In either instance, the remedy should only issue if the movant has
clearly carried the burden of persuasion on all four requirements.
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Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam) (“‘It
frequently is observed that a preliminary injunction is an extraordinary
and drastic remedy, one that should not be granted unless the movant,
by a clear showing, carries the burden of persuasion.’”)
As demonstrated above, Campbell has raised untimely and
unmeritorious claims and has wholly failed to meet any of the required
elements for a stay.
CONCLUSIONCONCLUSIONCONCLUSIONCONCLUSION
This Court should deny Campbell’s motion for authorization to file
a successive federal petition and his motion for a stay of execution.
Respectfully submitted,
GREG ABBOTT Attorney General of Texas
DANIEL T. HODGE First Assistant Attorney General DON CLEMMER Deputy Attorney General for Criminal Justice EDWARD L. MARSHALL Assistant Attorney General Chief, Criminal Appeals Division
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s/ Ellen Stewart-Klein *Lead counsel ELLEN STEWART-KLEIN* Assistant Attorney General Office of the Attorney General of Texas P. O. Box 12548, Capitol Station Austin, Texas 78711 Telephone: (512) 936-1400 Telecopier: (512) 320-8132 Email: [email protected] ATTORNEYS FOR RESPONDENT-APPELLEE
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CERTIFICATE OF SERVICE CERTIFICATE OF SERVICE CERTIFICATE OF SERVICE CERTIFICATE OF SERVICE
I certify that on May 12, 2014, I electronically filed this Response
in Opposition with the Clerk of the Court using the CM/ECF Document
Filing System. I further certify that on the same date, a copy was
served on counsel for Petitioner-Appellee who are registered CM/ECF
filing users, via the Court’s electronic Notice of Docket Activity:
Maurie Levin Jonathan J. Ross Texas Bar No. 00789452 Texas Bar No. 00791575 Attorney at Law Susman Godfrey L.L.P. 211 South Street, #346 1000 Louisiana St., Suite 5100 Philadelphia, PA 19147 Houston, TX 77002-5096 Tel.: (512) 294-1540 Tel.: (713) 651-9366 Fax: (215) 733-9225 Fax: (713) 654-6666 [email protected] [email protected]
Robert C. Owen Northwestern University School of Law Bluhm Legal Clinic 375 East Chicago Ave. Chicago, IL 60611 (312) 503-0135 – Telephone (312) 503-8977- Facsimile [email protected]
s/ Ellen Stewart-Klein ELLEN STEWART-KLEIN Assistant Attorney General
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-46-
ELECTRONIC CASE FILING CERTIFICATIONS ELECTRONIC CASE FILING CERTIFICATIONS ELECTRONIC CASE FILING CERTIFICATIONS ELECTRONIC CASE FILING CERTIFICATIONS
I do hereby certify that: (1) all required privacy redactions have
been made; (2) this electronic submission is an exact copy of the paper
document; and (3) this document has been scanned using the most
recent version of a commercial virus scanning program and is free of
viruses.
s/ Ellen Stewart-Klein ELLEN STEWART-KLEIN Assistant Attorney General
CERTIFICATE OF COMPLIANCE WITH RULE 32(a)CERTIFICATE OF COMPLIANCE WITH RULE 32(a)CERTIFICATE OF COMPLIANCE WITH RULE 32(a)CERTIFICATE OF COMPLIANCE WITH RULE 32(a)
I hereby certify that this Brief of Defendant-Appellees complies
with Fed. R. App. Proc. 32(a)(7)(c) in that it contains 7,720 words.
Microsoft Word 10, Century font, 14 points.
s/ Ellen Stewart-Klein Assistant Attorney General
Counsel of record for Respondent-Appellee
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