Paredes Miguel Federal Habeas Rule 60 Cert Pet FILED.20141027

No.
__________

IN THE

SUPREME COURT OF THE UNITED STATES
____________________________

MIGUEL ANGEL PAREDES,
Petitioner,

v.

WILLIAM STEPHENS, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION,
Respondent.
____________________________
On Petition for a Writ of Certiorari to the
Fifth Circuit Court of Appeals
___________________________

THIS IS A CAPITAL CASE:

MR. PAREDES IS SCHEDULED TO BE EXECUTED ON
TUESDAY, OCTOBER 28, 2014, AFTER 6:00 P.M.
____________________________

David R. Dow*
Texas Bar No. 06064900
Jeffrey R. Newberry
University of Houston Law Center
100 Law Center
Houston, TX 77204-6060
713-743-2171
713-743-2131 (fax)

Counsel for Miguel Angel Paredes
*Member, Supreme Court Bar

ii
QUESTION PRESENTED

Capital Case. Mr. Paredes is scheduled for execution after 6 p.m. central time on
Tuesday, October 28, 2014.
Miguel Paredes has a compelling claim under Wiggins v. Smith, 539 U.S. 510 (2003), but
that claim has never been reviewed on the merits because, during state habeas proceedings,
Paredes was permitted to waive it. Unknown to either Paredess state habeas counsel or the
presiding state court judge, however, Paredes was suffering then from a significant mental
disease that may have substantially affected his capacity to make rational, informed judgments
including the decision to waive his Wiggins claim. The facts revealing this disease could have
been located by state habeas counsel had counsel conducted an even rudimentary investigation
into Paredess medical history.
Following this Courts decision in Trevino v. Thaler, 133 S. Ct. 1911 (2013), it would
have been possible for federal habeas counsel to pursue the Wiggins claim in federal proceedings,
notwithstanding the ostensible waiver of that claim in state habeas proceedings, because state
habeas counsel was clearly ineffective for failing to discover the evidence of Paredess mental
illness and not pursuing the Wiggins claim. However, rather than appoint new counsel to
represent Paredes in federal proceedings, the U.S. district court appointed the same lawyer who
had represented Paredes in state habeas proceedings. Federal habeas counsel therefore, in
addition to being ineffective, also labored under a conflict of interest because he would have had
to argue his own ineffectiveness in order to take advantage of this Courts holding in Trevino,
and conceding his own ineffectiveness would have undermined his own professional and
pecuniary interests. Consequently, Paredess habeas counsel again conducted no meaningful
investigation into Paredess background, including his medical history, and made no attempt to

iii
argue that Paredess waiver of his Wiggins claim had been rendered irrational and unknowing by
virtue of his mental illness and medications he was taking at the time to combat that illness.
Paredes is therefore scheduled to be executed tomorrow, October 28, 2014, without ever having
had the opportunity to have the federal courts review of the merits of his Wiggins claim, a claim
that appears to be substantial and compelling.
The foregoing facts give rise to the following two questions:
Where a death row inmate who has been denied the opportunity to have a
substantial claim that trial counsel provided ineffective assistance heard by the
federal courts because state habeas counsel provided ineffective assistance and
then continued to represent the inmate in federal habeas proceedings, does
counsels failure to raise the claim in the federal courts because of his conflict of
interest constitute an extraordinary circumstance authorizing relief from judgment
pursuant to Rule 60(b) of the Federal Rules of Civil Procedure?

Do the Eighth Amendment and 18 U.S.C. section 3599 entitled a death-sentenced
inmate to conflict-free federal habeas counsel?

iv
PARTIES TO THE PROCEEDINGS BELOW

Mr. Paredes resides on death row, located at the Polunsky Unit, in Livingston, Texas.
William Stephens, the Director of the Correctional Institutions Division of the Texas Department
of Criminal Justice, resides in Huntsville, Texas.

v
TABLE OF CONTENTS

QUESTION PRESENTED ............................................................................................................. ii

PARTIES TO THE PROCEEDINGS BELOW ............................................................................ iv

TABLE OF CONTENTS .................................................................................................................v

TABLE OF AUTHORITIES ........................................................................................................ vii

TABLE OF APPENDICES ........................................................................................................... ix

INTRODUCTION.. .........................................................................................................1

OPINION BELOW ..............................................................................................................4

STATEMENT OF JURISDICTION................................................................................................4

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ......................................4

STATEMENT OF THE CASE ........................................................................................................5

REASONS FOR GRANTING THE WRIT ...................................................................................11

I. This Court and at least four of the courts of appeal have recognized that the
conduct of others can constitute extraordinary circumstances. An attorney
operating under a conflict of interests that prevents him from raising compelling
claims for a death-sentenced petitioner should be found to constitute
extraordinary circumstances. .........................................................12

A. Paredes is entitled to relief under the extraordinary circumstances
reservoir of equity identified in Rule 60(b)(6). ..........................................12

B. Paredess Motion was timely. ....................................................................16

CONCLUSION AND PRAYER FOR RELIEF ............................................................................18

CERTIFICATE OF SERVICE ......................................................................................................19

Appendix A.. ................................................................................................... A-001

Appendix B. .................................................................................................... A-037

Appendix C.. ....................................................................................................... A-068

Appendix D. .................................................................................................... A-077

vi
Appendix E. .................................................................................................... A-079

vii
TABLE OF AUTHORITIES

Cases

Ames v. Miller,
184 F. Supp. 2d 566 (N.D. Tex. 2002) ..............................................................................15

Boughner v. Secy of Healt, Educ. & Welfare.
572 F.2d 976 (3d Cir. 1978).........................................................................................15, 16

Cmty. Dental Servs. v. Tani,
282 F.3d 1164 (9th Cir. 2002) ...........................................................................................15

Ex parte Paredes,
No. WR-61,939-01 (Tex. Crim. App. Aug. 31, 2005) .......................................................10

Fuller v. Quire,
916 F.2d 358 (6th Cir. 1990) .............................................................................................15

Gonzalez v. Crosby,
545 U.S. 524 (2005) ...........................................................................................................12

In re Intl Fibercom, Inc.,
503 F.3d 933 (9th Cir. 2007) .............................................................................................16

L.P. Steuart, Inc. v. Matthews,
329 F.2d 234 (D.C. Cir. 1964) ...........................................................................................15

Liljeberg v. Health Servs. Acquisition Corp.,
486 U.S. 847 (1986) ...........................................................................................................15

Marderosian v. Shamshak,
170 F.R.D. 335 (D. Mass. 1997) ........................................................................................15

Mata v. Johnson,
210 F.3d 324 (5th Cir. 2000) ...............................................................................................7

Paredes v. State,
129 S.W.3d 530 (Tex. Crim. App. 2004) .............................................................................5

Paredes v. Thaler,
617 F.3d 315 (5th Cir. 2010) .............................................................................................10

Pioneer Inv. Servs. v. Brunswick Assocs.,
507 U.S. 380 (1993) ...........................................................................................................13

viii
Rees v. Peyton,
384 U.S. 312 (1966) ......................................................................................................... 6-7

Rumbaugh v. Procunier,
753 F.2d 395 (5th Cir. 1985) ...............................................................................................7

United States v. Martin,
790 F.2d 1215 (5th Cir. 1986) ...........................................................................................16

Statutes and Rules

28 U.S.C. 1254 (1) ................................................................................................................4

Tex. Code Crim. Proc. art. 26.052 .................................................................................................14

Tex. Disciplinary Rules Profl Conduct R. 1.06 ............................................................................14

Other Authorities

Am. Bar Assn, ABA Guidelines for the Appointment and Performance of Defense Counsel
in Death Penalty Cases (2003) ................................................................................................... 9-10

Fed. R. Civ. P. 60 advisory committees note to 1946 amendments .............................................13

Procedures Regarding Eligibility for Appointment of Attorneys as Counsel Under Article
11.071, Section 2(f), Code of Criminal Procedure ........................................................................14

ix
TABLE OF APPENDICES

Appendix A Opinion Below (as handed down October 25, 2014)

Appendix B District court opinion (as handed down October 23, 2014)

Appendix C October 23, 2014 pleadings from court below regarding undersigned
counsels ability to represent Paredes

Appendix D Fed. R. Civ. P. 60(b)(1), (6)

Appendix E 18 U.S.C. 3599(a)(2), (d)

1
No. __________

IN THE

SUPREME COURT OF THE UNITED STATES
____________________________

Petitioner,

v.

WILLIAM STEPHENS, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION,
Respondent.
____________________________
On Petition for a Writ of Certiorari to the
Fifth Circuit Court of Appeals
____________________________

THIS IS A CAPITAL CASE:

MR. PAREDES IS SCHEDULED TO BE EXECUTED ON
TUESDAY, OCTOBER 28, 2014, AFTER 6:00 P.M.
____________________________

INTRODUCTION
Exactly six weeks after his eighteenth birthday, on September 19, 2000, Miguel Angel
Paredes, who suffered from significant mental illness, was arrested as a suspect in the murders of
Adrian Torres, Nelly Bravo, and Shawn Cain. His attorneys presented no witnesses in either the
guilt or punishment phases of Paredess capital murder trial. The jury found him guilty on
October 19, 2001, and he was sentenced to death on October 25, 2001.
State habeas counsel timely filed a post-conviction application for habeas relief on
November 6, 2003. The application contained a claim that trial counsel was ineffective during

2
the penalty phase of Paredess trial for failing to investigate and present mitigating evidence.
The mitigating evidence contained in the state habeas application the evidence that state habeas
counsel alleged trial counsel was ineffective for not discovering and presenting came from one
and only one source: Clinical Psychologist Dr. Jack Ferrell. Neither the application nor Ferrells
affidavit contain any evidence that Ferrell, state habeas counsel, or anyone working for state
habeas counsel interviewed anyone other than Paredes. Moreover, there is no indication anyone
on the team reviewed any of Paredess medical records.
Had state habeas counsel reviewed Paredess medical records from the time he as initially
arrested and placed in the Bexar County jail, counsel would have learned that Paredes suffered
from a mental disease or defect. Specifically, counsel would have learned that while
incarcerated at the Bexar County jail, Paredes had been prescribed antipsychotic medications,
including Thorazine and Mellaril, as well as antidepressants. Likewise, had state habeas counsel
reviewed Paredess post-conviction medical records from the Polunsky Unit, counsel would have
learned that from the onset of his incarceration at the Polunsky Unit through the time that the
trial court convened a hearing on Paredess state habeas application, he was prescribed several
different antidepressant medications.
On November 6, 2003, with no indication he had reviewed any of Paredess medical
records or interviewed members of Paredess large family, state habeas counsel filed Paredess
application for post-conviction writ of habeas corpus. The trial court convened a hearing on the
application on November 12, 2004. During the hearing, state habeas counsel informed the court
that Paredes had asked him to drop the portion of the ineffective assistance claim related to
mitigation. However, state habeas counsel failed to call to the trial courts attention the medical
records that would have raised a bona fide doubt as to Paredess competency to waive, and the

3
trial court allowed Paredes to waive the claim without making any inquiry as to whether he was
competent to do so. Paredes was denied relief in the state court on August 31, 2005.
The U.S. district court appointed the same lawyer who had represented Paredes in state
habeas proceedings to represent him during federal habeas review. As described below, current
counsel has identified what appears to be a substantial and compelling claim under Wiggins v.
Smith, 539 U.S. 510 (2003) the claim Paredes purported to waive in state habeas proceedings.
Because the claim had not been exhausted in state proceedings, however, raising it in federal
proceedings would have required counsel to demonstrate cause and prejudice for the failure to
exhaust. However, because the cause for the failure to exhaust the claim was counsels own
ineffective assistance in state proceedings, federal counsel labored under a fatal conflict of
interest and made no attempt to raise Paredess Wiggins claim. The district court denied relief on
July 10, 2006. The Court of Appeals for the Fifth Circuit affirmed the denial on August 24, 2010.
This summer, Paredes wrote a letter to undersigned counsel. Someone from undersigned
counsels office met Paredes in early September. After that initial meeting, counsel began an
investigation, which revealed a potentially compelling and substantial Wiggins claim, as well as
medical evidence demonstrating that Paredess purported waiver of that claim was unknowing
and involuntary. On October 18, 2014, counsel filed in the U.S. district court a motion for relief
from judgment pursuant to Rule 60(b) of the Federal Rules of Civil Procedure. The Motion
argued that, because of prior counsels conflict of interest, Paredes had been denied the right to
have the merits of his Wiggins claim reviewed by the federal courts. On October 23, the district
court found that the Motion constituted a successive petition and transferred the Motion to the
Court of Appeals. In the alternative, the district court denied relief on the merits of the Motion.
Undersigned counsel immediately informed the Court of Appeals of his desire to pursue

4
the claim in that court. Knowing that the Motion was based on prior counsels conflict of
interest, the Court of Appeals refused to allow undersigned counsel to represent Paredes in
proceedings before that court until prior, conflicted counsel filed a motion to withdraw.
On October 25, 2014, the Court of Appeals affirmed the district courts alternative ruling
denying relief on the merits of the Rule 60(b) motion. That court found that the Motion was
untimely and did not present extraordinary circumstances.

OPINION BELOW
As indicated above, the Fifth Circuit issued its opinion on October 25, 2014. The opinion
is attached as Appendix A. In re: Miguel A. Paredes, No. 14-51160 (5th Cir. Oct. 25, 2014). The
order affirmed the district courts denial of Paredess Rule 60(b) motion, denied his motion for
stay, and denied his application for certificate of appealability.

STATEMENT OF JURISDICTION
This Court has jurisdiction pursuant to 28 U.S.C. section 1254 (1).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
The Eighth Amendment to the United States Constitution provides, Excessive bail shall
not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted. U.S.
Const. amend. VIII.
Fed. R. Civ. P. 60(b)(1), (6): Appendix D
18 U.S.C. 3599 (a)(2), (d): Appendix E

5
STATEMENT OF THE CASE
Miguel Angel Paredes was arrested on September 19, 2000, charged with capital murder,
and indicted by the grand jury on December 13, 2000. The indictment alleged in three counts
that Paredes committed capital murder on or about September 17, 2000. Count I alleged that
Paredes caused the death of Adrian Torres by shooting Torres with a firearm and caused the
death of Nelly Bravo and Shawn Cain during the same criminal transaction. Count II alleged he
caused the death of Nelly Bravo. Count III alleged he caused the death of Shawn Cain. At trial,
Mr. Paredes entered a plea of not guilty (XIV R.R. at 12).
Paredess trial began on October 16, 2001. The jury found him guilty on October 19,
2001 (XVII R.R. at 71). He was sentenced to death on October 25, 2001 (XXI R.R. at 38). The
Texas Court of Criminal Appeals (CCA) affirmed Paredess conviction and sentence on January
14, 2004. Paredes v. State, 129 S.W.3d 530, 541 (Tex. Crim. App. 2004).
On November 6, 2003, through counsel Michael Gross, Paredes filed his initial
application for post-conviction habeas relief pursuant to Article 11.071 of the Texas Code of
Criminal Procedure. The application contained a claim that trial counsel was ineffective during
the penalty phase Paredess trial for failing to investigate and present mitigating evidence. The
mitigating evidence contained in the state habeas application the evidence that state habeas
counsel alleged counsel was ineffective for not discovering and presenting came from only one
source: Dr. Jack G. Ferrell. Dr. Ferrell, a clinical psychologist, apparently reviewed Paredess
school records and interviewed Paredes. Neither the application nor Ferrells affidavit contain
any evidence that Gross, Ferrell, or anyone working for Gross on Paredess state habeas
application interviewed anyone other than Paredes. Nor does the application contain any

6
indication that either counsel or any other member of the state habeas team was familiar with
Paredess medical history.
The trial court convened a hearing on Pardess state habeas application on November 12,
2004. During the district attorneys questioning of Paredess trial counsel, Gross informed the
judge that Paredes had asked him to drop the portion of the IAC claim related to mitigation. The
trial court allowed Paredes to waive the claim without making any inquiry as to whether he was
competent to do so.
Had he conducted even a rudimentary investigation, Gross would have had reason to
doubt Paredess competency to waive. Paredess history of being treated for mental illness has
been well documented since the time he was incarcerated at the Bexar County jail while awaiting
his 2001 capital murder trial. While at the Bexar County jail, medical personnel prescribed
Thorazine (an antipsychotic used to treat schizophrenia and bipolar disorder), Mellaril (an
antipsychotic used to treat schizophrenia), and other drugs for Mr. Paredes. Since being
convicted of capital murder and sentenced to be executed, Mr. Paredes has been incarcerated at
the Polunsky Unit. While at the Polunsky Unit, Mr. Paredes has been seen regularly by mental
health care professionals and has been prescribed a variety of different antidepressant
medications.
Waivers of habeas review must be made competently. The test to determine whether a
petitioner is competent to waive was announced by this Court in Rees v. Peyton, 384 U.S. 312
(1966). The test is
whether he has capacity to appreciate his position and make a rational choice with
respect to continuing or abandoning further litigation or on the other hand whether
he is suffering from a mental disease, disorder, or defect which may substantially
affect his capacity in the premises.

7
Rees v. Peyton, 384 U.S. 312, 314 (1966). As it must, the Fifth Circuit applies this standard, and
it does so by requiring the trial court to conduct a
three-question inquiry:
(1) Is the person suffering from a mental disease or defect?

(2) If the person is suffering from a mental disease or defect, does that disease or
defect prevent him from understanding his legal position and the options available
to him?

(3) If the person is suffering from a mental disease or defect which does not
prevent him from understanding his legal position and the options available to
him, does that disease or defect, nevertheless, prevent him from making a rational
choice among his options?

Rumbaugh v. Procunier, 753 F.2d 395, 398 (5th Cir. 1985). Neither the district court nor the
Fifth Circuit applied this test, or this Courts test from Rees, in permitting Paredes to waive his
Wiggins claim. When evidence that a petitioner suffers from a mental disease is presented to the
court and that evidence raises a bona fide doubt as to the petitioners competency, due process
requires that the court first order a current examination; after the examination the court must
allow the parties to present evidence relevant to competence and question the defendant about
whether his waiver is made knowingly and voluntary in open court. Mata v. Johnson, 210 F.3d
324, 331 (5th Cir. 2000).
At the time Paredes purported to waive a compelling Wiggins claim, significant evidence
existed that should have been entered into the record by state habeas counsel; this evidence
would have raised a bona fide doubt as to Mr. Paredess competency to waive his claim.
Specifically, during the time that Paredes has been incarcerated at the Polunsky Unit since being
sentenced to death, he has been seen regularly by mental health professionals there and has been
prescribed a variety of different antidepressant medications, including Bupropion, Desipramine,
Celexa, Wellbutrin, and Zoloft. Further, records reveal that he appears to have been on

8
Bupropion and Wellbutrin at or near the time of the state evidentiary hearing. Being prescribed
these medications indicates Paredes, at the time of the hearing, was suffering from a mental
illness. Although the district court suggested Paredes was responding to at least some of these
medications, that is not the relevant question under Rees for whether waiver is permitted; rather
the relevant question is simply whether there was evidence he suffered from a mental illness.
Moreover Paredess treatment for mental illness did not begin at the Polunsky Unit;
Paredes had been receiving medical care for many years, going back at least to the time he was
in jail awaiting trial, and he was consistently prescribed significant doses of a variety of
medications designed to address various aspects of his mental illness.
While the Polunsky records are quite indicative of Paredess suffering from depression
and possibly other mental illness during his incarceration there, the records from his
incarceration at the Bexar County jail awaiting trial are even more revealing. There, Paredes was
prescribed strong antidepressant and antipsychotic medications, often in conjunction with one
another. For example, on April 27 and again on May 24, 2001, he was prescribed both Doxepin
(antidepressant) and Thorazine (antipsychotic used to treat schizophrenia and bipolar disorder).
On September 28, October 24, and again on November 20, 2000, he was prescribed Doxepin,
Mellaril (antipsychotic used to treat schizophrenia), and Xanax (used to treat anxiety disorders
and panic disorders). While Paredes might not have been on these medications at the time of the
hearing, his being prescribed them at the Bexar County jail is certainly evidence or recent severe
mental illness.
None of these facts appear to have been known to Paredess state habeas counsel,
however, and none of this evidence was placed before the state court. Further, state habeas
counsel spoke to none of the numerous witnesses and family members who could have provided

9
significant and compelling evidence relating to the Wiggins claim. Yet it is beyond question that
state habeas counsel had a duty to acquire these facts and records. See ABA Guidelines,
Guideline 10.7 cmt. Had state habeas counsel done the investigation required of him, he would
have learned facts supporting a substantial Wiggins claim, and he would have discovered
compelling evidence raising a bona fide doubt as to Paredess competency to waive that claim.
Because counsel performed virtually no investigation, however, he discovered neither of these
clusters of facts. Indeed, there is no indication that state habeas counsels punishment phase
investigation consisted of anything more than having Dr. Ferrell interview Paredes and review
his school records.
Professional standards in place during Paredess state habeas proceedings unequivocally
required counsel at all stages, including post-conviction, to conduct a thorough and independent
investigation relating to the issues of both guilt and penalty. ABA Guidelines, Guideline 10.7A.
This investigation was to include:
(1) Medical history (including hospitalizations, mental and physical illness or
injury, alcohol and drug use, pre-natal and birth trauma, malnutrition,
developmental delays, and neurological damage);

(2) Family and social history (including physical, sexual or emotional abuse;
family history of mental illness, cognitive impairments, substance abuse, or
domestic violence; poverty, familial instability, neighborhood environment,
and peer influence); other traumatic events such as exposure to criminal
violence, the loss of a loved one, or a natural disaster; experiences of racism
or other social or ethnic bias; cultural or religious influences; failures of
government or social intervention (e.g., failure to intervene or provide
necessary services, placement in poor quality and foster care or juvenile
detention facilities); [and]

ABA Guidelines, Guideline 10.7 cmt.; see also ABA Guidelines, Guideline 10.15.1 cmt.
(collateral counsel cannot rely on the previously compiled record but must conduct a thorough,
independent investigation in accordance with Guideline 10.7). It is necessary to locate and

10
interview the clients family members (who may suffer from some of the same impairments as
the client), and virtually everyone else who knew the client and his family, including neighbors,
teachers, clergy, case workers, doctors, correction, probation, or parole officers, and others. Id.
at Guideline 10.7 (A) cmt. The multi-generational investigation of a clients family that counsel
is to conduct is to extend as far as possible vertically and horizontally including at least three
generations. ABA Guidelines, Guideline 10.7(A) cmt. & n.216.
The trial court entered its findings of fact and conclusions of law on April 11, 2005
recommending relief be denied. With respect to the waived claim, the findings merely report the
conversation during the hearing about the waiver. The judge concluded that Paredes waived the
claim. The CCA adopted the trial courts findings and conclusions and denied Paredes relief on
August 31, 2005. Ex parte Paredes, No. WR-61,939-01 (Tex. Crim. App. Aug. 31, 2005).
The same lawyer who represented Paredes in state proceedings continued to represent
him in federal proceedings, and that lawyer raised the same claims in the federal petition that had
been exhausted in the state courts. The federal petition was filed on July 10, 2006, and the
district court denied relief on March 8, 2007. This Fifth Circuit affirmed the district courts
denial of relief on August 24, 2010. Paredes v. Thaler, 617 F.3d 315, 327 (5th Cir. 2010).
On June 9, 2014, Paredes wrote a letter to undersigned counsels office indicating he
believed that his appointed counsel, Michael Gross, was no longer working on his case. Due to a
busy summer schedule, no one from counsels office was able to meet with Paredes until early
September 2014. After an initial meeting with Paredes, counsel began an investigation that
revealed two critical clusters of facts: first, that state habeas counsel had not conducted any
significant investigation into Paredess background of the type necessary to identify and develop
a Wiggins claim a claim that, based on counsels preliminary investigation, appears to be

11
substantial and compelling; and second, that at the time Paredes purported to waive his Wiggins
claim, he was suffering from and being treated for mental illness, a fact also apparently unknown
to his habeas counsel as well as the trial court which permitted the ostensible waiver. New
counsel therefore prepared a Motion filed pursuant to Federal Rule of Civil Procedure Rule 60
that was filed in the federal district court on Saturday, October 18, 2014. On Thursday, October
23, 2014, the district court entered an order construing the motion as a successive petition,
dismissing the motion without prejudice for want of jurisdiction, transferring the motion to the
Fifth Circuit, denying Paredess motion for stay of execution, and denying Paredes a certificate
of appealability. In the alternative, the district court denied the Rule 60(b) motion on the merits.
On Saturday, October 25, 2014, the Fifth Circuit entered its opinion. That court correctly
held that because the claim raised in Paredess motion alleged that there was a defect in the in the
federal habeas proceedings i.e., he was denied his right to conflict free counsel the claim did
not constitute a successive petition and could proceed as a motion filed pursuant to Rule 60.
Appendix A at 29. The court, however, affirmed the district courts alternative holding denying
relief on the merits because it found the motion to have been filed untimely and found that it
failed to present extraordinary circumstances. Appendix A at 32-34.

REASON FOR GRANTING THE WRIT
The Court should grant certiorari to address whether:

Where a death row inmate who has been denied the opportunity to have a
substantial claim that trial counsel provided ineffective assistance heard by the
federal courts because state habeas counsel provided ineffective assistance and
then continued to represent the inmate in federal habeas proceedings, does
counsels failure to raise the claim in the federal courts because of his conflict of
interest constitute an extraordinary circumstance authorizing relief from judgment
pursuant to Rule 60(b) of the Federal Rules of Civil Procedure?

12
Do the Eighth Amendment and 18 U.S.C. section 3599 entitled a death-sentenced
inmate to conflict-free federal habeas counsel?

The court below held that Paredes was not entitled to relief from judgment under
Rule 60(b) both because his motion was untimely, and because it did not present
extraordinary circumstances. This holding provides this Court with an important
opportunity to clarify the availability of Rule 60(b) relief for death-sentenced inmates
whose state habeas counsel provided ineffective assistance in state proceedings and whose
federal habeas counsel, due to a conflict of interest, were unable to identify and object to
that ineffectiveness.

I. This Court and at least four of the courts of appeal have recognized that the conduct
of others can constitute extraordinary circumstances. An attorney operating under
a conflict of interests that prevents him from raising compelling claims for a death-
sentenced petitioner should be found to constitute extraordinary circumstances.

Paredess motion was filed pursuant to Rule 60(b)(6). This Court has held that to
demonstrate any other reason justifying relief under Rule 60(b)(6), a petitioner must show
extraordinary circumstances. See Gonzalez v. Crosby, 545 U.S. 524, 536 (2005). The Fifth
Circuit has held that this Courts holdings in Martinez v. Ryan, 132 S. Ct. 1309 (2012), and
Trevino v. Thaler, 133 S. Ct. 1911 (2013), do not, by themselves, constitute extraordinary
circumstances. Appendix A at 33. In neither this Court nor the court below, however, does
Paredes maintain that the changes in decisional law effected by Martinez and Trevino by
themselves constitute extraordinary circumstances. To the contrary, Paredes has argued, and this
Court should affirm, that these changes in decisional law, coupled with a fatally conflicted
federal habeas counsel who, because of the conflict, is unable to take advantage of these changes
in decisional law, combine to create extraordinary circumstances justifying Rule 60(b)(6) relief.
A. Paredes is entitled to relief under the extraordinary circumstances reservoir of
equity identified in Rule 60(b)(6).

Paredes filed his motion for relief from judgment pursuant to Rule 60(b)(6). That

13
subdivision of the Rule refers to any other reason justifying relief. The other reasons are
presumably reasons other than those identified in Rule 60(b)(1)-(5). The Fifth Circuit, however,
appears to have treated Paredess motion as invoking criteria identified in Rule 60(b)(1), rather
than Rule 60(b)(6), but its analysis of those criteria are at odds with the views of both this Court
and at least four other circuit courts of appeals. And in any event, Paredes ought to be deemed
entitled to relief under Rule 60.
Rule 60(b)(1) allows a court to relieve a party from its final judgment for mistake,
inadvertence, surprise or excusable neglect. When the Rule was initially enacted, it specified
that the mistake, inadvertence, surprise, or excusable neglect to which it referred was that of the
movant. However, in 1946, the Rule was amended to remove the word his from this
subsection. As the Advisory committee noted, [t]he qualifying pronoun his has been
eliminated on the basis that it is too restrictive, and that the subdivision should include the
mistake or neglect of others which may be just as material and call just as much for supervisory
jurisdiction as where the judgment is taken against the party through his mistake, inadvertence,
etc. Fed. R. Civ. P. 60 advisory committees note to 1946 amendments. Consistent with this
change, in Pioneer Investment Services v. Brunswick Associates, 507 U.S. 380 (1993), this Court
recognized that the actions of a movants attorney could constitute excusable neglect under Rule
60(b)(1). Pioneer Inv. Servs. v. Brunswick Assocs., 507 U.S. 380, 394 (1993). [F]or purposes
of Rule 60(b), excusable neglect is understood to encompass situations in which the failure to
comply with a filing deadline is attributable to negligence. Id.
The actions of Paredess previous federally-appointed counsel go far beyond the sort of
neglect that other circuits have found to warrant relief under the excusable neglect language of
Rule 60(b)(1). Working on Texas capital cases apparently constitutes a substantial portion of

14
previous counsels practice. Because Texas rules preclude attorneys who have been deemed
ineffective from being appointed in capital cases, a finding by any court that Paredess counsel
provided ineffective assistance to Paredes could result in that lawyers not being allowed to serve
as lead trial counsel in any more capital cases, lead appellate counsel in the direct appeal of any
more capital cases, or as state habeas counsel in any more capital cases. See Tex. Code Crim.
Proc. art. 26.052(d)(2)(C), (d)(3)(C); Procedures Regarding Eligibility for Appointment of
Attorneys as Counsel Under Article 11.071, Section 2(f), Code of Criminal Procedure at para. 8.
In other words, a finding that state habeas counsel was ineffective would result in his not being
permitted to do the type of work that currently represents a large component of his practice. As a
result, that lawyers continued representation of Paredes became fatally afflicted by conflict at
the onset of federal habeas proceedings, because raising Paredess Wiggins claim would have
required him to argue that he provided Paredes ineffective assistance in state habeas proceedings.
His ability to represent Paredes compromised, counsel should have asked the court to appoint
new counsel at the onset of federal habeas proceedings. Tex. Disciplinary Rules Profl Conduct
R. 1.06(b)(2) (A lawyer shall not represent a person if the representation of that person
reasonably appears to be or become adversely limited by the lawyers own interests.); Id.
at 1.06 cmt. 4 (Loyalty to a client is impaired in any situation when a lawyer may not be able
to consider, recommend or carry out an appropriate course of action for one client because of the
lawyers own interest); Id. at 1.06 cmt. 5 (The lawyers own interests should not be permitted
to have adverse effect on representation of a client.). Not doing so far exceeded the standard of
excusable neglect deemed to warrant relief under Rule 60(b)(1).
The Courts of Appeal for the Third, Sixth, Ninth, and District of Columbia have held that
an attorneys gross negligence can constitute extraordinary circumstances justifying relief under

15
Rule 60(b)(6). See Cmty. Dental Servs. v. Tani, 282 F.3d 1164, 1169 (9th Cir. 2002); Fuller v.
Quire, 916 F.2d 358, 361 (6th Cir. 1990); Boughner v. Secy of Health, Educ. & Welfare, 572
F.2d 976, 978 (3d Cir. 1978); L.P. Steuart, Inc. v. Matthews, 329 F.2d 234, 235-36 (D.C. Cir.
1964). At least two district courts have specifically held that an attorneys conflict of interest
can constitute extraordinary circumstances. Ames v. Miller, 184 F. Supp. 2d 566, 575 (N.D. Tex.
2002); Marderosian v. Shamshak, 170 F.R.D. 335, 342 (D. Mass. 1997). Though the rule is
typically that a party is bound by the acts of his attorney, in cases of gross negligence on the part
of the attorney, these courts have found that the moving party is not bound by the act of their
attorney for purposes of Rule 60. Boughner, 572 F.2d at 978.
While this Court has not previously held that an attorneys conflict of interest can
constitute extraordinary circumstances, it has held that a judges failure to recuse himself when
he had a conflict of interest can constitute extraordinary circumstances. Liljeberg v. Health Servs.
Acquisition Corp., 486 U.S. 847, 868 (1986). This was the case in Liljeberg despite the fact that
the judge in question did not have actual knowledge of his conflict at the time he should have
recused himself. Id. at 864-65.
By not attempting to raise Paredess Wiggins claim in the district court, Paredess
federally-appointed counsel subordinated his clients interests to his own. His action of failing to
ask the district court to appoint new counsel at the onset of federal habeas proceedings exceeded
what this Court has defined excusable neglect. An inmate facing death is entitled to conflict-free
representation, and where an inmate forfeits a compelling substantive claim and does not take
advantage of a change in decisional law all because federal habeas counsel was conflicted
that inmate is entitled to relief under Rule 60(b).

16
B. Paredess Motion was timely.

The Fifth Circuit also found that Paredess motion was untimely, but its analysis belies
the purpose of Rule 60(b) itself, and in particular, the difficulty that confronts a death-sentenced
inmate in learning whether his appointed counsel is conflict.
Pursuant to Rule 60(b)(6), a motion is timely if it is made within a reasonable amount of
time. What qualifies as a reasonable time depends on the facts of each case. In re Intl
Fibercom, Inc., 503 F.3d 933, 945 (9th Cir. 2007). Contrary to what the opinion from the court
below seems to imply, Paredess motion was not made pursuant to Rule 60(b)(1) and should not
automatically be found to be untimely if not filed within a year. The question, instead, is
whether Paredess motion was filed within a reasonable time.
The court below held that Paredes should have known no later than the date this Court
issued its opinion in Trevino that his appointed counsel had a conflict of interest. Appendix A at
32. This analysis places the burden on the death-sentenced inmate rather than on either the court
or the appointed counsel. Id. It was counsel, not Paredes, who had an ethical obligation to end
his representation, and there is no basis in this Courts jurisprudence for imputing counsels lack
of diligence in seeking to withdraw to Paredes. See Boughner, 572 F.2d at 978. Indeed, it is a
matter of hornbook law that an indigent death-sentenced inmate does not have right to appointed
counsel of his own choosing. See, e.g., United States v. Martin, 790 F.2d 1215, 1218 (5th Cir.
1986). It follows that the burden of acting lay with counsel, not Paredes.
Even after Paredes contacted undersigned counsel in June in hopes that counsel could
raise his Wiggins claim, and even after undersigned counsel worked throughout September and
October identifying what appears to be a compelling Wiggins claim, learning facts that revealed
prior counsels unawareness of Paredess mental illness, and preparing a motion filed pursuant to

17
Rule 60, the court of appeals still inquired as to counsels authority to act on behalf of Paredes
and would not permit counsel to do so until Paredess conflicted counsel filed a motion to
withdraw. In other words, the actions of the court below reveal that it too understands that the
entitled of an inmate to conflict-free counsel requires the conflicted counsel voluntarily to
withdraw from representation once that conflict appears. See Appendix C. If the court below
will not consider a Rule 60 motion based on a conflict of interest until the conflicted attorney
requests to withdraw and the court grants that request, the date the court grants the conflicted
attorneys motion to withdraw should be the date by which to determine whether a movant has
acted diligently and timely filed his motion. Certainly, filing the motion five days before the
conflicted attorney moves to withdraw (as did Paredes) cannot be untimely.

18
CONCLUSION AND PRAYER FOR RELIEF
Mr. Paredes respectfully requests that the Court grant his Petition for Writ of Certiorari
and hold that an attorneys conflict of interest can constitute extraordinary circumstances and
that the applicable moment by which to measure whether a Rule 60(b) based on an attorneys
conflict is that moment when the conflicted attorney withdraws from representation.
DATE: October 27, 2014.
Respectfully submitted,

/s David R. Dow_________
David R. Dow*
Jeffrey R. Newberry
University of Houston Law Center
100 Law Center
Tel. (713) 743-2171
Fax (713) 743-2131

Counsel for Miguel Angel Paredes
*Member of the Supreme Court Bar

19
CERTIFICATE OF SERVICE

I certify that on this 27th day of October, 2014, I sent a copy of Miguel Angel Paredess
foregoing Petition for a Writ of Certiorari to counsel for the State of Texas, Mr. Jay Clendenin,
via email to the following address: jay.clendenin@texasattorneygeneral.gov.

s/ David R. Dow
____________________
David R. Dow

Appendix A

A-001
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 14-51160

In re: MIGUEL A. PAREDES,

Movant

Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:05-CV-870

Before JOLLY, SMITH, and OWEN, Circuit Judges.
PER CURIAM:*
Miguel Paredes is scheduled to be executed on Tuesday, October 28,
2014. On Saturday, October 18, 2014, ten days before his scheduled execution,
he filed in the federal district court a Motion for Relief from Judgment
Pursuant to Rule 60 of the Federal Rules of Civil Procedure and Stay of
Execution. The federal district court dismissed the Rule 60(b) motion without
prejudice for want of jurisdiction and transferred the motion to this court,
citing 28 U.S.C. 1631. The district court simultaneously denied the motion
for stay of execution and denied a certificate of appealability (COA) on all
claims. Paredes has applied to this court for a COA and in the alternative, has
filed a motion for an order authorizing consideration of a second petition for
*
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.
United States Court of Appeals
Fifth Circuit
FILED
October 25, 2014

Lyle W. Cayce
Clerk

Case: 14-51160 Document: 00512814895 Page: 1 Date Filed: 10/25/2014
A-002
No. 14-51160
writ of habeas corpus under 28 U.S.C. 2244. He seeks a stay of his execution.
We deny the requested relief.
Certain claims asserted in Paredess Rule 60(b) motion must be
construed as successive habeas claims. These claims do not rely on a new rule
of constitutional law, made retroactive to cases on collateral review by the
Supreme Court, that was previously unavailable, or on facts that could not
have been discovered previously through the exercise of due diligence.
1
Other
of Paredess contentions in his Rule 60(b) motion are not successive because
they assert a defect in the integrity of the federal habeas proceedings.
2

However, Paredes has not overcome the limitation within Rule 60(b) that
requires a motion to be made within a reasonable time, if not governed by the
more specific one-year deadline,
3
and the requirement of the Supreme Courts
decisions that there must be extraordinary circumstances to justify the
reopening of a final judgment.
4
To the extent that Paredes asserts that his
federal habeas counsel had a conflict of interest because he also served as state
habeas counsel, Paredes waited until thirty months after the Supreme Courts
decision in Martinez v. Ryan,
5
and until seventeen months after the Supreme
Courts decision in Trevino v. Thaler,
6
to assert the conflict of interest he
contends arose as a consequence of those decisions. Paredess Rule 60(b)
motion was not filed within one year after the district courts 2007 final
judgment denying habeas relief. In any event, it was not filed within a
reasonable time after Martinez and Trevino provided Paredes grounds for
1
See 28 U.S.C. 2254.
2
See Gonzalez v. Crosby, 545 U.S. 524, 532 (2005).
3
See FED. R. CIV. P. Rule 60(b)-(c).
4
See Gonzalez, 545 U.S. at 535.
5
132 S.Ct. 1309 (2012).
6
133 S.Ct. 1911 (2013).
2

A-003
No. 14-51160
asserting that his federal habeas counsel had a conflict of interest that
precluded him from raising, for the first time in a federal habeas proceeding, a
claim that trial counsel was ineffective in failing to discover or present
mitigation evidence during the penalty phase of Paredess 2001 capital murder
trial. Even were Paredess Rule 60(b) motion timely, the change in the law
that the Supreme Courts decisions effectuated in Martinez and Trevino does
not constitute extraordinary circumstances.
7

I
Paredes received a death sentence for his participation in the murder of
three people. Our court has previously considered an application for habeas
relief filed by Paredes.
8
We briefly recount some of the facts underlying his
conviction that were set forth in our last opinion in this case:
Paredes, John Saenz, and Greg Alvarado, who were all
members of the Hermanos Pistoleros Latinos gang, anticipated a
confrontation regarding an illegal drug transaction and allegedly
armed themselves, lay in wait, then shot and killed rival gang
members Adrian Torres, Nelly Bravo, and Shawn Cain inside
Saenz's home. The victims were slain within seconds of one
another. Paredes was charged with murdering more than one
person during the same criminal transaction under the Texas
capital murder statute. . . . At trial, a witness testified that
Paredes admitted to shooting Bravo, and other witnesses testified
that Paredes remained silent when, in Paredes's presence, John
Saenz recounted that Paredes had shot both Bravo and Cain. One
witness, Eric Saenz, the brother of John Saenz, testified that after
John Saenz, in Paredes's presence, had described in some detail
how he, John Saenz, shot Torres, how Paredes shot Bravo in the
head, and how Paredes then shot Cain, Paredes stated to Eric
Saenz that Eric should have been there, that [Eric] would have
had some fun. Medical evidence was consistent with testimony
that Paredes was the shooter in the deaths of Bravo and Cain but
7
See generally Gonzalez, 545 U.S. at 536-38.
8
Paredes v. Thaler, 617 F.3d 315 (5th Cir. 2010); Paredes v. Quarterman, 574 F.3d
281 (5th Cir. 2009).
3

A-004
No. 14-51160
not Torres. There was direct evidence that Paredes was in John
Saenz's home at the time of the killings and assisted in cleaning
blood off the floor and walls of the home and in disposing of the
bodies afterwards. There was also strong circumstantial evidence
that Paredes was present during the killing of each of the three
decedents, and that at a minimum, he aided or attempted to aid
Saenz in carrying out the plan to kill these individuals.
9

A jury found Paredes guilty of capital murder in October 2001. At the
conclusion of the penalty phase of the trial, and in accordance with the jurys
answer to the Texas special issues, the state trial court sentenced Paredes to
death that same month. On direct appeal, the Texas Court of Criminal Appeals
(TCCA) affirmed Paredess conviction and death sentence.
10
Paredes did not
seek relief from the United States Supreme Court at that time.
Paredes then pursued habeas relief in state court in November of 2003.
When relief was denied, he sought habeas relief in federal court. As our prior
opinions reflect, we affirmed the district courts denial of habeas relief in
Paredess original federal habeas proceedings.
11
The Supreme Court denied
Paredess petition for writ of certiorari in 2011.
12
No further proceedings have
occurred in state or federal court until October 2014.
In the present proceedings, Paredes contends that his state habeas
counsel was ineffective regarding a claim that trial counsel was ineffective in
failing to discover and present mitigation evidence during the penalty phase of
the trial. Paredes further contends that because his state habeas counsel was
also his federal habeas counsel in his original federal habeas proceedings, his
federal habeas counsel had a conflict of interest. The motion filed in the federal
9
Paredes, 617 F.3d at 317.
10
Paredes v. State, 129 S.W.3d 530 (Tex. Crim. App. 2004).
11
Paredes v. Thaler, 617 F.3d 315 (5th Cir. 2010); Paredes v. Quarterman, 574 F.3d
281 (5th Cir. 2009).
12
Paredes v. Thaler, 131 S.Ct. 1050 (2011).
4

A-005
No. 14-51160
district court that initiated the present proceedings, and the filings in our court
presently under consideration were submitted by new counsel that Paredes
retained in 2014.
More specifically, Paredess October 2014 Rule 60(b) motion for relief
from the federal district courts 2007 judgment asserts that although his state
habeas counsel, Michael Gross, had included a claim in the state habeas
petition that his trial counsel was ineffective in failing to discover and present
mitigating evidence during the punishment phase of Paredess trial, this claim
was expressly waived by Paredes, in open court, at the state habeas hearing
after Paredes had directed Gross not to pursue it. Paredes now contends that
Gross should have been aware of circumstances that would have raised doubt
as to Paredess competency to abandon this aspect of his ineffective-assistance-
of-counsel claim made in state habeas proceedings and that Gross was
therefore ineffective as state habeas counsel. Paredes contended in his Rule
60(b) motion in federal district court that his waiver of this part of his state
habeas claim violated Due Process. Paredes further contended in the Rule
60(b) motion that had the federal district court originally appointed, in 2006,
someone other than Gross as federal habeas counsel, his federal habeas
counsel could have further developed the ineffective assistance of trial counsel
claim and argued that Grosss deficiency during the state habeas hearing
constituted cause to excuse the fact that the new mitigation evidence and the
mitigation claim had not been exhausted in state court. Paredess Rule 60(b)
motion to the district court asserted that alternatively, had the federal district
court appointed counsel other than Gross, that counsel could have asked the
district court to stay proceedings to allow a return to state court to exhaust the
new mitigation evidence claim. Paredes contends that Gross was precluded
from making these arguments in the original federal habeas proceeding
because a significant conflict of interest exists when an attorney must argue
5
A-006
No. 14-51160
that his representation at an earlier stage of litigation (in this case, the state
habeas proceedings) was ineffective.
The district court construed Paredess Rule 60(b) motion as asserting
eight claims, and the district court denied relief on multiple grounds.
13
The
district court held that the Rule 60(b) motion was untimely, even assuming
that Paredess express waiver in his state habeas proceeding of the ineffective-
assistance-of-trial-counsel claim as to mitigation evidence was not valid.
14
The
district court reasoned that at least by the time that state habeas counsel filed
the state habeas petition in 2003, or during the November 2004 state habeas
hearing, Paredes knew that he had an ineffective-assistance-of-trial-counsel
claim as to mitigating evidence.
15

As to the validity of the waiver that Paredes made in open court at the
state habeas hearing, the district court concluded that nothing in the record or
in Paredess October 2014 motion casts legitimate doubt as to Paredess mental
competence or intelligence on the date of the November 2004 state habeas
hearing.
16
The district court further concluded that during the subsequent ten
years before Paredes filed the 2014 motion for relief from judgment, the
medical records reflect that Paredes was fully capable of logical, rational
thought and suffered no debilitating effects from dysthymic disorder.
17
The
district courts order sets forth considerable detail regarding Paredess
13
Order Dismissing Rule 60(b) Motion and Denying Motion for Stay of Execution at
8-10, Paredes v. Stephens (No. SA-05-CA-870-FB) (W.D. Tex. Oct. 23, 2014).
14
Id. at 12-15.
15
Id. at 12.
16
Id. at 12-13.
17
Id. at 13.
6

A-007
No. 14-51160
condition and the lack of any grounds for contending that his waiver was
ineffective due to mental illness or mental incompetence.
18

The district court also concluded that to the extent that Paredess Rule
60(b) motion challenged the district courts prior denial of habeas corpus relief
in the 2007 final judgment, the motion was outside the scope of a Rule 60(b)
motion and was in substance a successive habeas corpus petition.
19

Although the district court concluded that the merits of Paredess claim
that he was entitled to a new trial on the death penalty issue because of trial
counsels alleged ineffective representation in failing to investigate and present
mitigation evidence were not properly before the district court, the court
nevertheless addressed the merits.
20
In considering whether Paredess motion
had established the elements of a Strickland claim, the district court detailed
the mitigation evidence on which the motion relied.
21
The district court
concluded that in light of the evidence presented by the prosecutor to persuade
the jury to find facts leading to the imposition of the death penalty, there is
no reasonable probability that, but for the failure of petitioners trial counsel
to introduce any of the new evidence identified in the affidavits of petitioners
brother, sister, former girlfriend, and family friends, the outcome of the
punishment phase of petitioners capital murder trial would have been any
different.
22

The district court also noted that Paredes did not offer any evidence
indicating that, at the time of trial, trial counsel were unaware of the
18
Id. at 22-24.
19
Id. at 15-16.
20
Id. at 16-24.
21
Id. at 19.
22
Id.
7

A-008
No. 14-51160
mitigating facts set forth in the affidavits submitted in 2014 in support of
Paredess motion.
23
The district court observed that it was quite possible
petitioners trial counsel were well aware, from other sources, of the
information contained in the 2014 affidavits.
24
The district court also noted
that the state trial judge was the same judge who presided over the state
habeas proceedings, and the state habeas record reflects that this judge
recalled that Paredess trial counsel had relayed to the judge that Paredes told
his trial counsel that he did not want his family to testify at the punishment
phase of the trial.
25
The federal district courts decision on the Rule 60(b)
motion then discussed the decisions of this court that have considered a clients
objection to the presentation of certain types of mitigating evidence and
whether an attorney was ineffective for acceding to the clients directive not to
present such evidence.
26

We note that in one of the 2014 affidavits that Paredes submitted to the
federal district court, it is suggested that Paredes told his trial counsel not to
allow his family to testify during the penalty phase because Paredes feared
that his family would be harmed by gang members if they took the stand.
27

However, no such claim was argued in the motion and briefing that Paredes
filed in the federal district court, and no such claim has been presented in the
briefing or application to this court. The only basis on which Paredes has
challenged his express waiver, in the state habeas proceedings, of the
ineffective-assistance-of-trial-counsel claim regarding mitigation evidence is
23
Id. at 20.
24
Id.
25
Id. at 20-21.
26
Id. at 21-22.
27
Newberry Aff. at 1.
8

A-009
No. 14-51160
Paredess assertion that his express waiver was not valid because he was
mentally ill or mentally incompetent.
The district courts order states that [t]his Court concludes after an
independent, de novo, review, that petitioners new ineffective assistance claim
fails to satisfy either prong of Strickland analysis.
28
The district courts order
also details Paredess medical records and concludes that there were no facts
that should have put Paredess state habeas counsel on notice of a need for
further inquiry into Paredess competence to decide to waive one aspect of his
ineffective-assistance-of-trial-counsel claim.
29
Paredes did pursue other
ineffective-assistance-of-trial-counsel claims in both state and federal courts,
as our prior opinions addressing the claims in Paredess original federal habeas
proceeding reflect.
30

The federal district courts October 2014 order additionally considered,
then denied, Paredess motion for a stay of execution.
31
The order also
discussed the requirements for granting a COA and denied a certificate.
32

We are largely in agreement with the district courts analysis and
resolution of Paredess October 2014 motion. We likewise deny relief. In his
application to this court, Paredes only cursorily addresses the district courts
28
22, Paredes v. Stephens (No. SA-05-CA-870-FB) (W.D. Tex. Oct. 23, 2014).
29
Id. at 22-24.
30
Paredes v. Quarterman, 574 F.3d 281, 284 (5th Cir. 2009) (ineffective assistance
claims based on (1) failure to make Confrontation Clause objections; (2) failure to object to
the states purportedly untimely request for a jury shuffle; (3) failure to object to a jury
instruction that did not ensure juror unanimity; (4) failure to object to mitigation instruction
because instruction did not require state to prove lack of mitigating circumstances beyond a
reasonable doubt).
31
25-26, Paredes v. Stephens (No. SA-05-CA-870-FB) (W.D. Tex. Oct. 23, 2014).
32
Id. at 27-30.
9

A-010
No. 14-51160
conclusions that Paredess Rule 60(b) motion was untimely. Paredes cites no
authority that would support an argument that the district court abused its
discretion in holding that the Rule 60(b) motion was not filed within a
reasonable time. Nor does Paredes address the district courts conclusion that
he failed to show extraordinary circumstances that could give rise to relief
under Rule 60(b). To the extent that Paredess claim constitutes a successive
petition, it must be denied, and no grounds exist for authorizing a second,
successive petition under 28 U.S.C. 2244.
II
The first question that must be resolved is whether Paredess motion in
the district court was, in whole or in part, a successive federal habeas petition
within the meaning of 28 U.S.C. 2244. The district courts jurisdiction and
our jurisdiction over a habeas petition challenging a state court conviction or
sentence are constrained by the Antiterrorism and Effective Death Penalty Act
(AEDPA).
33
Congress has directed that a claim presented in a second or
successive application under 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.
34

33
Pub. L. No. 104-132, 100 Stat. 1214.
34
28 U.S.C. 2244(b)(2).
10

A-011
No. 14-51160
It is undisputed that Paredess claim that his trial counsel and his state
habeas counsel were ineffective regarding mitigation evidence was not
presented in a prior federal habeas application. All of the facts on which
Paredes relies could have been discovered previously through the exercise of
due diligence. The mitigation evidence that Paredes says should have been
presented to the jury is in the nature of historical facts that were readily
available to Paredes, if not within his own personal knowledge. The medical
records on which Paredes relies in claiming that he was mentally ill or
mentally incapacitated were all in existence and accessible prior to the filing
in 2006 of the federal habeas petition.
Paredes does not cite any new rule of constitutional law made
retroactively applicable to cases on collateral review by the Supreme Court on
which he relies. The Supreme Courts decisions in Martinez and Trevino held
that state habeas counsels ineffectiveness in raising a claim in the first
collateral state proceeding that trial counsel was ineffective may excuse a
procedural default of an ineffective-assistance claim when the claim was not
properly presented in state court due to an attorneys errors in an initial-review
collateral proceeding.
35
These decisions changed the law as it existed when the
federal district court issued its 2007 final judgment denying Paredes habeas
relief. When Paredes brought his first federal habeas petition, the Supreme
Courts decision in Coleman v. Thompson
36
held that because [t]here is no
constitutional right to an attorney in state post-conviction proceedings . . . a
petitioner cannot claim constitutionally ineffective assistance of counsel in
35
See Trevino v. Thaler, 133 S. Ct. 1911, 1921 (2013); Martinez v. Ryan, 132 S. Ct.
1309, 1313 (2012).
36
501 U.S. 722, 752 (1991).
11

A-012
No. 14-51160
such proceedings.
37
The subsequent decisions in Martinez and Trevino
created a limited exception to the rule emanating from Coleman that
ineffective assistance of counsel in state habeas proceedings could not be raised
in a federal habeas proceeding. However, the holdings in Martinez and Trevino
were limited to the determination that ineffective assistance of counsel in the
first collateral proceeding regarding ineffective assistance of trial counsel could
excuse failure to exhaust the ineffective-assistance-of-trial-counsel claim in
state court.
38
Neither Martinez nor Trevino held that a conflict of interest can
arise if state habeas counsel is also the sole counsel in the federal habeas
proceeding or that if such a conflict of interest existed, it could serve as a basis
for habeas relief.
However, the most important considerations in our analysis of whether
Paredess motion contained a successive claim are twofold. The first is that the
Supreme Court has not made either Martinez or Trevino retroactive to cases
on collateral review, within the meaning of 28 U.S.C. 2244. [A] new rule is
not made retroactive to cases on collateral review unless the Supreme Court
holds it to be retroactive.
39
The second dispositive consideration is that the
decisions in Martinez and Trevino were not based on a rule of constitutional
law but on statutory rights.
40
Paredes is therefore unable to rely on a new and
retroactive rule of constitutional law. To the extent that Paredes challenges
37
Id.
38
Martinez, 132 S. Ct. at 1320 (Our holding here addresses only the constitutional
claims presented in this case, where the State barred the defendant from raising the claims
on direct appeal.); Trevino, 133 S. Ct. at 1921 ([W]here, as here, state procedural
framework, by reasons of its design and operation, makes it highly unlikely in a typical case
that a defendant will have a meaningful opportunity to raise a claim of ineffective assistance
of trial counsel on direct appeal, our holding in Martinez applies . . . .).
39
Tyler v. Cain, 533 U.S. 656, 663 (2001) (internal quotation marks omitted).
40
Martinez, 132 S. Ct. at 1319-20.
12

A-013
No. 14-51160
the denial of habeas relief, his motion must be construed as a successive
petition and must be dismissed.
III
In his application in our court, Paredes proceeds directly to his argument
that he has a viable Strickland claim that his trial counsel provided ineffective
assistance in failing to discover and present mitigation evidence at the penalty
phase of his 2001 trial and that his state habeas counsel was ineffective in 2004
with regard to the mitigation evidence claim. Paredess application in our
court devotes virtually no argument to the jurisdictional issues that the district
court correctly recognized and resolved. The district court did not have
jurisdiction over Paredess successive claims, and they were properly
dismissed. Because parts of Paredess Rule 60(b) motion in the district court
included a successive claim, he is not entitled to a COA from this court as to
that claim.
But even assuming that Paredes could surmount the procedural bar
imposed by AEDPA, the new evidence proffered in his October 2014 filing
would not entitle him to relief under Strickland.
A
Paredess claim that trial counsel was ineffective in failing to discover
and present mitigating evidence at the penalty phase was not pursued in the
state courts, and therefore, the claims have not been adjudicated on the merits
in State court proceedings within the meaning of 2254(d).
41
Nevertheless,
41
28 U.S.C. 2254(d) (An application for a writ of habeas corpus on behalf of a person
in custody pursuant to the judgment of a State court shall not be granted with respect to any
claim that was adjudicated on the merits in State court proceedings unless the adjudication
of the claim--(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme Court of the
United States; or (2) resulted in a decision that was based on an unreasonable determination
of the facts in light of the evidence presented in the State court proceeding.).
13

A-014
No. 14-51160
under 28 U.S.C. 2254(b)(2), [a]n application for a writ of habeas corpus may
be denied on the merits, notwithstanding the failure of the applicant to exhaust
the remedies available in the courts of the State.
42
Because the claims have
not been adjudicated on the merits in State court proceedings, the 2254(d)
deferential standard of review does not apply. Rather, a federal courts review
of an unexhausted claim that counsel was deficient is reviewed de novo.
43

The seminal decision in Strickland v. Washington contains two elements
necessary to establish ineffective assistance of counsel:
First, the defendant must show that counsel's performance was
deficient. This requires showing that counsel made errors so
serious that counsel was not functioning as the counsel
guaranteed the defendant by the Sixth Amendment. Second, the
defendant must show that the deficient performance prejudiced
the defense. This requires showing that counsels errors were so
serious as to deprive the defendant of a fair trial, a trial whose
result is reliable. Unless a defendant makes both showings, it
cannot be said that the conviction or death sentence resulted from
a breakdown in the adversary process that renders the result
unreliable.
44

To establish constitutionally deficient performance, a defendant must
show that counsels representation fell below an objective standard of
reasonableness based on prevailing professional norms.
45
We judge the
42
28 U.S.C. 2254(b)(2); see Nobles v. Johnson, 127 F.3d 409, 423 (5th Cir. 1997) (The
AEDPA amended 28 U.S.C. 2254(b) to allow a federal court to deny an application on the
merits, notwithstanding the failure of the applicant to exhaust the remedies available in the
courts of the State. We note that amended 2254(b)(2) is permissive ([a]n application . . .
may be denied . . .). The district court, after finding Nobles's claim procedurally defaulted,
found in the alternative that his claim would not have succeeded on the merits. We review
the district court's resolution of this mixed question of law and fact de novo.).
43
See Porter v. McCollum, 558 U.S. 30, 39 (2009).
44
Strickland v. Washington, 466 U.S. 668, 687 (1984).
45
Wiggins v. Smith, 539 U.S. 510, 521 (2003) (quoting Strickland, 466 U.S. at 688)
(internal quotation marks omitted).
14

A-015
No. 14-51160
reasonableness of counsels conduct based on the particular facts at the time of
the conduct.
46
[C]ounsel is strongly presumed to have rendered adequate
assistance and made all significant decisions in the exercise of reasonable
professional judgment.
47

To establish prejudice, the second part of the Strickland test, [t]he
defendant must show that there is a reasonable probability that, but for
counsels unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to undermine
confidence in the outcome.
48
In the context of a defendant who argues that
his trial counsel fail[ed] to investigate and present sufficient mitigating
evidence during the penalty phase of his trial,
49
the defendant must show a
reasonable probability that a competent attorney, aware of [the available
mitigating evidence], would have introduced it at sentencing, and that had the
jury been confronted with this . . . mitigating evidence, there is a reasonable
probability that it would have returned with a different sentence.
50
In
assessing prejudice, we reweigh the evidence in aggravation against the
totality of available mitigating evidence.
51

Trial counsel for Paredes did not affirmatively present any witnesses
during the punishment phase of the trial. They did cross-examine witnesses
called by the prosecution. Evidence was adduced in the punishment phase that
favored Paredes on the mitigation question. Jesus Hernandez, Paredess
46
Strickland, 466 U.S. at 690.
47
Id.
48
Id. at 694; Wiggins, 539 U.S. at 534.
49
Wong v. Belmontes, 558 U.S. 15, 16 (2009) (per curiam).
50
Id. at 20 (alteration in original) (quoting Wiggins, 539 U.S. at 535-36) (internal
quotation marks omitted).
51
Wiggins, 539 U.S. at 534.
15

A-016
No. 14-51160
supervisor when he was paroled from the Texas Youth Commission (TYC),
testified that Paredes quickly completed the TYC program and his required
community service.
52
He also noted that when Paredes entered TYC custody,
his girlfriend, who was approximately fourteen years old, was three months
pregnant.
53
Hernandez stated that Paredes worked to support the mother and
child but at one point lost his job.
54
Paredes also spoke to Hernandez about
obtaining visitation rights to see his child more frequently.
55
On cross-
examination, Hernandez said that Paredes was not threatening and was
respectful during his interactions in the parole office.
56

Dr. Catherine King, an associate psychologist with the TYC, also
testified.
57
She performed a psychological evaluation of Paredes on February
8, 1998.
58
She testified that on a test of nonverbal intelligence, Paredes scored
an 89, at the high end of the low range, meaning that he did not suffer from
mental retardation.
59
She diagnosed Paredes with a conduct disorder.
60
She
also told the jury that he suffered from anxiety due to his incarceration and
struggled with trusting others and controlling his anger.
61
She noted that
Paredes tried to support his pregnant girlfriend and his family by working in
52
20 RR 91, 93.
53
20 RR 93.
54
20 RR 93.
55
20 RR 110.
56
20 RR 108.
57
20 RR 111.
58
20 RR 112.
59
20 RR 116-17.
60
20 RR 117.
61
20 RR 118.
16

A-017
No. 14-51160
a tire shop.
62
Paredes had informed Dr. King that he began drinking alcohol
at age eight and smoking marijuana at thirteen, and she diagnosed him with
marijuana and alcohol abuse.
63

The State also introduced Paredess TYC records and Dr. Kings report.
64

These records largely corroborate Dr. Kings and Hernandezs testimony. They
reflect that Paredes had a good relationship with his parents, even though he
disobeyed them, but that his relationship with his brothers was strained
because they disagreed with his illegal acts.
65
The records also show that his
parents lacked disciplinary skills.
66

Trevino, who was one of Paredess two counsel at trial, presented closing
argument in the punishment phase. Trevino urged the jury to review Paredess
TYC records and noted that they showed that Paredes was one of twenty
children and lived in a gang-filled neighborhood.
67
Trevino reminded the jury
that the family was providing alcohol to Paredes by age eight and that he joined
a gang by age twelve for protection because he had no other choice for
survival.
68
Trevino argued to the jury in the context of the mitigation question
that Paredes had a two-year-old son and encouraged the jury to break the
circle of violence by making sure Paredess son would have a father.
69

Using recently procured affidavits, Paredes points to three areas of
mitigating evidence that trial counsel allegedly failed to procure and introduce
62
20 RR 114.
63
20 RR 118.
64
24 RR 1-437 (States Exs. 202, 203).
65
24 RR 28, 36.
66
24 RR 36.
67
21 RR 16-17.
68
21 RR 17.
69
21 RR 22-23.
17

A-018
No. 14-51160
during punishment. First, Paredes points to the fact that he grew up
surrounded by gang violence. Second, he points to the lack of support he
received from his parents. And finally, he contends that he had a history of
mental illness from childhood onwards.
70

Contrary to his assertion, evidence of Paredess upbringing in gang-
infested areas was placed before the jury. Paredes contends that the jury did
not know that when he was young, his family moved from Chicago to Mexico
because of a gang war. It does not appear that the reason for the move is in
the state trial record.
71
Paredes also asserts that the jury was unaware that
when he moved to San Antonio around the age of seven, he was confronted
with more significant gang violence.
72
But at least some evidence of this nature
was presented to the jury. Hernandez testified that the TYC records showed
that Paredes joined a gang around the age of twelve or twelve and a half.
73
Dr.
King corroborated this testimony.
74
His counsel also made much of the gang
problem in San Antonio during closing argument. He noted that Paredess
family left Mexico and began living in San Juan Courts, a gang infested
neighborhood.
75
Trial counsel also told the jury that a twelve-year old child
in the San Juan neighborhood would face[] the choice of getting beaten every
day just going to school or joining a gang for protection.
76
Paredes asserts that
the jury did not know that he was run over by gang members in a car, but his
70
Paredes App. for COA at 27-28.
71
20 RR 114.
72
Paredes App. for COA at 27.
73
20 RR 106-07
74
20 RR 115-16.
75
21 RR 17.
76
21 RR 26.
18

A-019
No. 14-51160
counsel expressly mentioned this during closing argument.
77
In sum, although
the jury was unaware of the gang issues that Paredes encountered during his
first five years of life, there was considerable evidence of his experience with
gangs from age seven to the time of his trial, when he was nineteen years old.
Paredes contends that the 2014 affidavits show that he received little
support from his parents and that the jury was unaware of this fact. But the
jury heard several pieces of evidence on this issue. Hernandez, the parole
officer, testified that he only met Paredess mother but not his father.
78
He
further stated that the mother and a brother approached Hernandez
complaining that Paredes was staying out late and hanging around gang
members.
79
His TYC records show that his parents were older and therefore
lacked disciplinary skills.
80
However, another portion of the reports also noted
that [h]e has the support of his parents and older siblings who are caring and
concerned for his well-being.
81
Finally, counsel remarked during closing that
that Paredes was the youngest of twenty children, so he ran loose and his
parents were exhausted by this time.
82
Accordingly, on the issue of his family
background, the jury received substantial information, weighing both for and
against mitigation.
Finally, Paredes asserts that he likely suffered from mental illness from
the time he was very young.
83
To support this assertion, he points to affidavits
from his relatives that state that from an early age and throughout his
77
21 RR 18.
78
20 RR 106.
79
20 RR 95.
80
24 RR 36.
81
24 RR 43.
82
20 RR 17.
83
19

A-020
No. 14-51160
childhood, he would beat his head against the wall or a floor when he became
upset.
84
We agree with Paredes that the jury did not hear that he would beat
his head against hard surfaces during his childhood. Though perhaps
mitigating in and of itself, this evidence is not evidence of a mental illness. For
the reasons considered at length in the district courts October 2014 order, we
agree with the district court that Paredess October 2014 motion did not
present any competent evidence that Paredes suffered from mental illness.
Our examination of Paredess new evidence indicates that much of the
evidence Paredes faults trial counsel for failing to procure and introduce
concerned matters of which the jury was aware and on which evidence was
presented. The only truly new evidence Paredes presents pertains to his head
banging.
The evidence weighing against mitigation was substantial. Some of it is
recounted in the district courts order denying the October 2014 Rule 60(b)
84
20

A-021
No. 14-51160
motion. We quote from that order in the margin.
85
Additionally, Dr. King
testified that Paredes understood the difference between right and wrong.
86

On balance, Paredes has not presented new mitigating evidence that
would call into question the jurys verdict during the punishment phase of the
trial.
85
The district courts order provided:
The punishment phase of petitioners capital murder trial began
October 23, 2001. The prosecution presented witnesses who testified about (1)
the historyof the HPLgang and its activities; (2) petitioners involvement in an
incident on June 15, 1997 in which petitioner threw a pistol under the vehicle
he had been driving when police stopped petitioners vehicle based on a report
it had been involved minutes earlier in a drive-by shooting; (3) an incident on
November 3, 1999 in which petitioner was arrested for driving while
intoxicated, without a license, and unlawfully carrying a firearm; (4)
petitioners involvement in an incident on January 15, 2000 in which several
shots were fired from an assault rifle into a crowd of persons outside a
convenience store; (5) the recovery of the military assault rifle used in that
shooting from petitioners residence on February 1, 2000; (6) an incident on
May 21, 2000, in which petitioner and Fred Galvan were jointly arrested for
criminal trespass; (7) petitioners fatal shooting of Pedro Pete Pedraza on
June 23, 2000; (8) an incident on June 28, 2000, in which Greg Alvarado drove
a vehicle containing petitioner at a dangerous rate of speed through a
residential neighborhood in an unsuccessful attempt to flee from pursuing
police vehicles and, when Alvarado crashed the vehicle into a house, petitioner
attempted to flee on foot; (7) the recovery of a loaded handgun apparently
thrown from Alvarados vehicle during the pursuit on June 28, 2000; (8)
petitioner and Fred Galvans aggravated kidnaping of Joe Rodriguez on July
5, 2000; (9) the recovery of multiple firearms from beneath the mattress in
petitioners bedroom on July 5, 2000; (10) petitioners involvement in the fatal
shooting of Danny Sandoval on September 1, 2000; (11) petitioners efforts to
dispose of the body of a drug overdose victim by setting her body on fire on
September 12, 2000; (12) petitioners failures to report as required to his parole
officer and petitioners failures to inform his parole officer regarding his
multiple arrests while on parole; and (13) the absence of any evidence of either
(a) a mental deficiency or learning disability, (b) a history of physical,
emotional, or sexual abuse, or (c) a history of long-term narcotics abuse from
petitioners background.
Order Dismissing Rule 60(b) Motion and Denying Motion for Stay of Execution at 2-
3, Paredes v. Stephens (No. SA-05-CA-870-FB) (W.D. Tex. Oct. 23, 2014).
86
20 RR 123.
21

A-022
No. 14-51160
B
Paredes contends that his state habeas counsel, Michael Gross, rendered
ineffective assistance because he permitted Paredes to waive, without a
competency hearing, his ineffective-assistance-of-counsel claim regarding trial
counsels performance in the mitigation phase of the trial.
87
A habeas
petitioner must be competent to waive the right to collateral review, and such
waiver must be knowing and voluntary.
88
However, a court need not make a
competency determination in every case in which a defendant seeks to waive a
right: a competency determination is necessary only when a court has reason
to doubt the defendant's competence.
89
The relevant questions, therefore, are:
(1) whether Gross should have had reason to doubt Paredess competency to
waive his right to pursue the ineffective-assistance claim as to trial counsels
penalty-phase performance; and (2) whether Paredess waiver was knowing
and voluntary. Paredes bears the burden of proving a bona fide doubt existed
as to his competency to waive collateral review of a particular issue.
90
He has
failed to carry this burden. We conclude that, even had Gross reviewed all the
87
Application for COA at 28.
88
See Godinez v. Moran, 509 U.S. 389, 400 (1993); Mata v. Johnson, 291 F.3d 324, 329
& n.2 (5th Cir. 2000).
89
Godinez, 509 U.S. at 401 n.13 (citation omitted); see also TEX. CODE CRIM. PROC.
art. 46B.003(a).
90
Cf. Wood v. Quarterman, 491 F.3d 196, 205 (5th Cir. 2007) (concluding that a
petitioner who instructed trial counsel not to present mitigating evidence was not entitled to
habeas relief because he failed to point to any evidence that would put his competence to
stand trial into question); Enriquez v. Procunier, 752 F.2d 111, 113 (5th Cir. 1984) (citing
Reese v. Wainwright, 600 F.2d 1085, 1091 (5th Cir. 1979)) ("A petitioner seeking habeas relief
based on the trial court's alleged failure to comply with Pate, has the burden of proving that
the objective facts known to the trial court were sufficient to raise a bona fide doubt as to his
competency [to stand trial].); Godinez, 509 U.S. at 398 n.9 (explaining that there is there is
no indication that the rational choice standard for competency to waive a certiorari petition
differs from the rational understanding standard for competency to stand trial); id.at 400
(to plead guilty or waive constitutional right to counsel, defendant must be competent to
stand trial).
22

A-023
No. 14-51160
evidence now before this court, and introduced that evidence in the state
habeas proceeding, neither he nor the state habeas court would have had
reason to doubt Paredess competence.
A bona fide doubt did not exist as to Paredess competence.
91
A defendant
is competent if he has sufficient present ability to consult with his lawyer with
a reasonable degree of rational understanding and has a rational as well as
factual understanding of the proceedings against him.
92

At trial, Jesus Hernandez, Paredess parole officer, and Dr. Catherine
King, a psychologist who had evaluated Paredes while he was in the custody
of the TYC, both testified. Hernandez stated that Paredes did not suffer from
mental retardation and did not need special-education services.
93
Dr. King
opined that Paredess behavior was unremarkable, and that on a test of
nonverbal intelligence, he scored an 89, at the high end of the low range,
meaning that he did not suffer from mental retardation.
94
She also stated she
had diagnosed him with a conduct disorder, and that he suffered from anxiety
due to his incarceration and struggled with trusting others and controlling his
anger.
95
Finally, she noted that while Paredes had been abusing drugs and
alcohol since an early age, he did understand the difference between right and
wrong.
96
This testimony paints a portrait of a person with an unfortunate past,
but is not the type of evidence that could have given rise to a reason to doubt
91
Godinez, 509 U.S. at 400.
92
Mata, 210 F.3d at 329 n.2 (quoting Godinez, 509 U.S. at 396 (internal quotation
marks omitted)).
93
20 RR 90, 104.
94
20 RR 116-17.
95
20 RR 118.
96
20 RR 118, 123.
23

A-024
No. 14-51160
Paredess rational and factual understanding of the proceedings against
him.
97

Gross appended to the state habeas petition an affidavit from Dr. Jack
Ferrell, a clinical psychologist who had interviewed Paredes during the
summer of 2002.
98
Dr. Ferrell reported much of the same information
eventually included in the petition itself: that Paredes dropped out of school in
the eighth grade; that he lacked any semblance of a functional family life; and
that his involvement in gang activity took the place of family support.
99
Dr.
Ferrell concluded Paredes was nevertheless a candidate for rehabilitation
because he performed well in school as a small child and seemed to respond
positively to an experience at a boot camp in Texarkana, Texas.
100
Notably,
he did not indicate at any point that he believed Paredes to be incompetent.
101

During the state habeas proceeding, the court accepted Paredess waiver
of his argument that his trial counsel was ineffective to the extent it failed to
present mitigating evidence during his sentencing hearing.
102
Upon learning
of Paredess desire to waive this argument, the court questioned Paredes to
ensure that he understood the right he was forfeiting.
103

MR. GROSS: Excuse me, Judge. Im sorry to interrupt. I
should have mentioned before we started, Ive been asked by Mr.
Paredes to drop the lack of any mitigation evidence prong of our
[ineffective assistance of counsel] claim; I forgot to mention that
earlier. So as far as whether or not they submitted any kind of
97
Mata, 291 F.3d at 329 & n.2 (quoting Godinez, 509 U.S. at 396 (internal quotation
marks omitted)).
98
Ferrell Aff. at 1.
99
Ferrell Aff. at 1-2.
100
101
102
ROA at 268-72.
103
ROA at 268-72.
24

A-025
No. 14-51160
mitigation evidence or witnesses at the sentencing phase, Mr.
Paredes has asked me not to pursue that ground of that claim.
MR. SHAUGHNESSY: So is it my understanding that there
is going to be an expressed waiver of a claim that the attorneys
werefunctioned in a manner in violation of the Sixth
Amendment at the punishment phase?
MR. GROSS: Correct. There will be no claims about
punishment phase at the trial, Your Honor.
MR. SHAUGNESSY: One thing, Your Honor, Ive had this
happen on prior occasions, no disrespect to Mr. Gross, but I think
due to the nature of the waiver Id like to get that from Mr. Paredes
himself, if the Court would be so accommodating. I think its a
sufficient amount of magnitude---
MR. GROSS: Thats fine, Judge.
MR. SHAUGHNESSY: ---in the aspect of the waiver I think
Mr. Paredes should be admonished regarding precisely what hes
waiving in this regard.
THE COURT: Do you want that oral, right now?
MR. SHAUGHNESSY: I would appreciate it if you could,
Your Honor.
THE COURT: Mr. Paredes, you understood what your
attorney just said?
[PAREDES]: I understood exactly everything he said. Im
aware of that, and Im waiving it.
THE COURT: Youre waiving it. And youre sure about that?
[PAREDES]: Im sure about it.
After a short recess, the court again sought confirmation of Paredess
understanding of his waiver.
THE COURT: Okay. So --- Im sorry. Let me ask you again,
Mr. Paredes, youre sure that you want---you dont want to proceed
with that?
[PAREDES]: I dont want to raise no mitigation evidence at
all.
MR.SHAUGHNESSY: Well, really, Your Honor, the claim--
-the assertion that is being waived, and Id like clarification on, is
whether he wants to waive the claim that his lawyers were
ineffective for not putting on certain evidence.
25
A-026
No. 14-51160
THE COURT: Oh, I see.
MR. SHAUGHNESSY: Thats really whatthats whats
being waived, the claim, not the putting on of the evidence now.
Its the failure on the part of his lawyers previously that hes now
waiving. I think that is what has to be clarified.
THE COURT: Okay. So, Mr. Paredes, are you saying
[PAREDES]: Can you give me a minute to
THE COURT: Oh, sure. Sure. You take your time.
[PAREDES]: Your Honor?
THE COURT: Yes, sir.
PAREDES: Were waiving the one for the punishment phase
but not the guilt/innocence.
104

The state habeas court had ample opportunity to observe Paredes and
form an opinion as to his competency to waive an argument.
105
The state
habeas judge had also served as the trial judge. Nothing in the record of the
state habeas hearing indicates that the state habeas court or Gross should
have had a bona fide doubt as to Paredess competency.
During Grosss cross-examination of Granados, Paredess state trial
counsel, Granados testified that Paredes was always helpful and pleasant and
could read and write in English.
106
He noted that, during jury selection,
Paredes would take notes, and counsel would discuss pros and cons with him
before Paredes made the final decision on whether to strike a potential juror.
107

He also stated he believed Paredes was competent, as defined in Chapter 46 in
104
ROA at 268-72.
105
Mata v. Johnson, 210 F.3d 324, 330 (5th Cir. 2000) (The opportunity for face-to-
face dialogue between the court and the petitioner and the ability of the court to personally
observe the petitioner is likewise important to the equation.); see also Drope v. Missouri, 420
U.S. 162, 180 (1975) ([E]vidence of a defendants irrational behavior, his demeanor at trial,
and any prior medical opinion on competence to stand trial are all relevant in determining
whether further inquiry is required . . . .).
106
ROA at 252,
107
ROA at 253.
26

A-027
No. 14-51160
the Texas Code of Criminal Procedure.
108
He noted he had informed Paredes
of the nature of the offense and the states allegations, the states burden, and
the potential punishment, including the special issues that would be submitted
to the jury during the punishment phase if he were convicted of capital
murder.
109
He then asserted that Paredes fully understood the legal as well
as the practical aspects of his situation.
110
Finally, he indicated Paredes did
assist us in punishment evidence as far as his background, you know, his
family.
111
While this evidence obviously speaks to Paredess competence at
the time of trial, it supports an inference that neither Gross nor the state
habeas court had reason to doubt Paredess competence at the state habeas
hearing.
Paredes now argues that evidence of his treatment for mental health
issues, if presented to the state habeas court, would have raised a bona fide
doubt as to his competency to waive part of his ineffective-assistance-of-counsel
claim. Paredes asserts that the fact he was prescribed anti-depressant drugs
through the time of his state habeas hearing is evidence enough that he was
suffering from a mental illness and incompetent to make a waiver.
112
But a
review of the Texas Department of Criminal Justice (TDCJ) medical records
indicates otherwise. After first being arrested, Paredes was prescribed
Doxepin, an anti-depressant, Mellaril, an anti-psychotic, and Xanax, an anti-
anxiety medication.
113
Paredess medications sometimes also included
108
ROA at 253.
109
ROA at 260.
110
ROA at 261.
111
ROA at 264.
112
Application for COA at 31-32.
113
ROA at 678.
27

A-028
No. 14-51160
Thorazine, a different anti-psychotic drug.
114
In April 2004, seven months
prior to his state habeas hearing, Paredes was diagnosed with dysthymic
disorder, a form of depression.
115
But in the months leading up to and
immediately after Paredess waiver, he was responding well to his prescription
medications and did not display any sign of mental incompetency.
116
In
January 2005, the TDCJ determined that Paredes was displaying no further
signs of depression.
117
TDCJ confirmed this diagnosis in March
118
and July
2005
119
and Paredes remained on the same medication plan. Paredes does not
cite to any other evidence that casts a doubt on his mental competency to make
a waiver. There is no evidence he has even attempted to solicit expert
testimony to demonstrate he was incompetent during the state habeas
proceeding. Therefore, Paredess medical history would not have provided
Gross with a bona fide doubt of Paredess competency to waive a single
argument in his multi-pronged collateral attack.
A court must find the waiver to be knowing and voluntary.
120
Paredes
does not argue that his waiver was unknowing or involuntary.
121

IV
Paredes has presented an issue that cannot be considered a successive
motion for habeas corpus relief. He contends that in the wake of the Supreme
Courts decisions in Martinez and Trevino, his initial federal habeas counsel,
114
ROA at 675.
115
ROA at 298.
116
ROA at 457-516.
117
ROA at 470.
118
ROA at 460-464.
119
ROA at 458.
120
Godinez, 509 U.S. at 400.
121
See generally Application for COA at 26-28.
28

A-029
No. 14-51160
Gross, had a conflict of interest because Gross also served as state habeas
counsel. Gross could not be expected to contend in the federal habeas
proceedings that his performance in the first collateral proceeding (the state
habeas proceeding) was deficient regarding Paredess claim that trial counsel
was ineffective in investigating and presenting mitigation evidence. Similarly,
Gross could not be expected to contend in the federal habeas proceedings that
his own investigation and presentation of the ineffective-assistance-of-trial-
counsel claim was deficient. We will assume, without deciding, that Gross did
have a conflict of interest regarding these issues when he acted as federal
habeas counsel.
The assertion that Paredess federal habeas counsel had a conflict of
interest and that Paredes is entitled to reopen the final judgment and proceed
in the federal habeas proceedings with conflict-free counsel is a claim that
there was a defect in the integrity of the federal habeas proceedings.
122
Such
a claim does not assert or reassert claims of error in the state conviction.
123

Allowing Paredess motion to proceed as a Rule 60(b)(6) motion is not
inconsistent with 28 U.S.C. 2244(d).
124

Federal Rule of Civil Procedure 60(b) states:
On motion and just terms, the court may relieve a party or its legal
representative from a final judgment, order, or proceeding for the
following reasons: (1) mistake, inadvertence, surprise, or excusable
neglect; (2) newly discovered evidence that, with reasonable
diligence, could not have been discovered in time to move for a new
trial under Rule 59(b); (3) fraud (whether previously called
intrinsic or extrinsic), misrepresentation, or misconduct by an
opposing party; (4) the judgment is void; (5) the judgment has been
satisfied, released or discharged; it is based on an earlier judgment
122
See Gonzalez v. Crosby, 545 U.S. 524, 532 (2005).
123
See id. at 535.
124
See id.
29

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No. 14-51160
that has been reversed or vacated; or applying it prospectively is
no longer equitable; or (6) any other reason that justifies relief.
125

A Rule 60(b)(6) motion must be made within a reasonable time,
126
unless good
cause can be shown for the delay.
127
What is considered reasonable will depend
on the particular facts and circumstances of the case.
128
However, if the
reason for the motion is mistake, inadvertence, surprise, or excusable
neglect, the motion must be made within no more than a year after the entry
of judgment.
129
Additionally, a movant under subsection (6) of Rule 60(b) must
show extraordinary circumstances justifying the reopening of a final
judgment.
130
This court reviews the denial of a Rule 60(b)(6) motion under an
abuse-of-discretion standard.
131

125
FED. R. CIV. P. 60(b).
126
FED. R. CIV. P. 60(c)(1); accord Gonzalez, 545 U.S. at 535 (Rule 60(b) contains its
own limitations, such as the requirement that the motion be made within a reasonable
time.).
127
In re Osborne, 379 F.3d 277, 283 (5th Cir. 2004) (citing Pryor v. U.S. Postal Serv.,
769 F.2d 281, 287-88 (5th Cir. 1985)).
128
Travelers Ins. Co. v. Liljeberg Enters., Inc., 38 F.3d 1404, 1410 (5th Cir. 1994)
(citing First RepublicBank Fort Worth v. Norglass, Inc., 958 F.2d 117, 119 (5th Cir. 1992) and
Ashford v. Steuart, 657 F.2d 1053, 1055 (9th Cir. 1981) (What constitutes reasonable time
depends on the facts of each case, taking into consideration the interest in finality, the reason
for delay, the practical ability of the litigant to learn earlier of the grounds relied upon, and
prejudice to other parties. (internal quotation marks omitted))).
129
FED. R. CIV. P. 60(c)(1).
130
Gonzalez, 545 U.S. at 535 (quoting Ackermann v. United States, 340 U.S. 193, 1999
(1950)).
131
See, e.g., Hernandez v. Thaler, 630 F.3d 420, 428 (5th Cir. 2011) (A habeas
petitioner in Hernandez's situation must obtain a COA before he can appeal the denial of a
Rule 60(b) motion, so both the procedural posture of this appeal and our standard of review
remain unchanged. . . . On Hernandez's motion for a COA, then, we must determine whether
a jurist of reason could conclude that the district court's denial of Hernandez's motion was
an abuse of discretion.); Diaz v. Stephens, 731 F.3d 370, 374 (5th Cir. 2013) (This court
reviews the denial of a Rule 60(b)(6) motion under an abuse of discertion standard. (citation
omitted)).
30

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No. 14-51160
A
First, the district court determined that Paredess motion was not filed
within a reasonable time, as required by Federal Rule of Civil Procedure
60(c)(1).
132
The district court did not abuse its discretion in reaching this
conclusion.
As the district court noted, the application for habeas relief that was filed
in state court in 2003 set forth a detailed claim that trial counsel was
ineffective in failing to discover and present mitigation evidence during the
penalty phase of the trial. Paredes waived this claim in open court during the
2004 state habeas corpus hearing, after being questioned by the state judge if
he understood what he was waiving. Accordingly, at least by 2004, Paredes
was aware that he had an ineffective-assistance-of-trial-counsel claim
regarding mitigation evidence, that he had waived that claim, and that his
state habeas counsel had participated in that waiver process. He did not seek
different counsel in the federal habeas proceedings.
The final judgment under challenge in the present proceeding was issued
in 2007.
133
In 2012, the Supreme Court issued its decision in Martinez.
134

Arguably, that decision could have put Paredes on notice that his counsel had
a conflict of interest. However, our court held in Trevino v. Thaler
135
that the
Martinez decision did not apply to the Texas habeas procedure. The Supreme
Court reversed our Trevino decision on May 28, 2013.
136
The Supreme Courts
132
FED. R. CIV. P. 60(c)(1).
133
Paredes v. Quarterman, Civ. No. SA-05-CA-870-FB, 2007 WL 760230, at *1 (Mar.
8, 2007).
134
Martinez v. Ryan, 132 S.Ct. 1309 (2012).
135
449 Fed. Appx. 415.
136
133 S.Ct. 1911 (2013).
31

A-032
No. 14-51160
decision in Trevino provided the basis for the conflict of interest argument that
Paredes now asserts.
Paredes argues that Gross remained as his counsel until new counsel
entered an appearance in federal district court in October 2014, and that as
long as Gross continued as Paredess counsel, there were no grounds for filing
a Rule 60(b) motion. We disagree. As indicated, at least when the Supreme
Courts decision in Trevino issued, Paredes had a basis for the contention that
Gross had a conflict of interest. Paredess unawareness of the Trevino decision
could be described, at best, as mistake, inadvertence, or excusable neglect in
keeping apprised of the law that pertained to his state conviction. Under Rule
60(b), when there is mistake, inadvertence, or excusable neglect, a Rule 60(b)
motion must be filed within one year after the entry of judgment. By analogy,
even assuming that the first time that Paredes should have been aware of
Grosss conflict of interest was when Trevino issued, Paredes waited seventeen
months to file his Rule 60(b)(6) motion asserting the conflict of interest.
Paredes contacted conflict-free counsel in June 2014, thirteen months after
Trevino issued. He took no further action, however, until his conflict-free
counsel filed the Rule 60(b)(6) motion four months later in October 2014.
Paredes did not timely file his motion.
137

B
Even if Paredess motion was not untimely, it did not present
extraordinary circumstances, a necessary element for relief under Rule
137
See Tamayo v. Stephens, 740 F.3d 986, 991 (5th Cir. 2014) (per curiam) ([W]e agree
with the district court that Tamayo's claim was not brought within a reasonable time. The
Court's opinion in Perkins was issued on May 28, 2013, nearly 8 months ago. Tamayo waited
until January 20, 2014, two days before his scheduled execution, to file [the Rule 60(b)(6)]
motion. The district court did not abuse its discretion in concluding that this was not a
reasonable time and in denying the motion.) (footnotes omitted) (citation omitted).
32

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No. 14-51160
60(b)(6). The Supreme Court has stated that extraordinary circumstances
will rarely occur in the habeas context.
138

As discussed above, Paredess claims regarding the performance of his
federal habeas counsel are based on the Supreme Courts rulings in Martinez
and Trevino. Under our precedents, changes in decisional law . . . do not
constitute the extraordinary circumstances required for granting Rule
60(b)(6) relief.
139
More specifically, we have held that Martinez and Trevino
are changes in decisional law and do not, by themselves, constitute
extraordinary circumstances.
140
This is consistent with the Supreme Courts
reasoning in Gonzalez v. Crosby.
141
In Gonzalez, a district court had held that
a defendants habeas petition was barred by AEDPAs statute of limitations.
142

After the district courts judgment was final, the Supreme Court issued a
decision in Artuz v. Bennett,
143
which showed the error of the District Courts
statute-of-limitations ruling.
144
The defendant filed a Rule 60(b) motion to
reopen the judgment denying habeas relief.
145
The Supreme Court held that
the change in the then-prevailing law in the Eleventh Circuit brought about
by the Artuz decision did not constitute extraordinary circumstances.
146
The
Supreme Court also remarked that this change in the law is all the less
138
Gonzalez v. Crosby, 545 U.S. 524, 535 (2005) (quoting Ackermann v. United States,
340 U.S. 193, 1999 (1950)).
139
Hess v. Cockrell, 281 F.3d 212, 216 (5th Cir. 2002).
140
Diaz v. Stephens, 731 F.3d 370, 376 (5th Cir. 2013); Adams v. Thaler, 679 F.3d 312,
320 (5th Cir. 2012).
141
545 U.S. 524, 536 (2005).
142
Id. at 527.
143
531 U.S. 4 (2000).
144
Gonzalez, 545 U.S. at 536.
145
Id.
146
Id.
33

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No. 14-51160
extraordinary in petitioners case, because of his lack of diligence in pursuing
review of the statute-of-limitations issue in an application for a COA or a
petition for rehearing in the Eleventh Circuit. In the present case, Paredes
has exhibited a similar lack of diligence. He certainly knew in 2004 that he
had an ineffective-assistance-of-trial-counsel claim regarding mitigation
evidence. He not only expressly waived that claim in state court, he did not
ask for new counsel in the subsequent federal habeas proceedings, he did not
ask Gross to pursue the question in the federal habeas proceeding, and he
waited until seventeen months after the Trevino decision to attempt to
resurrect the claim.
V
A stay of execution is an equitable remedy.
147
In deciding whether to
grant a stay, we consider: (1) whether the inmate has made a strong showing
he is likely to succeed on the merits; (2) whether the inmate will be irreparably
injured absent a stay; (3) whether issuance of the stay will substantially injure
the other parties; (4) where the public interest lies; and (5) the extent to which
the inmate has delayed unnecessarily in bringing the claim.
148

Two factors weigh heavily against granting a stay of Paredess execution.
First, Paredes has not demonstrated any likelihood of success on the merits.
His claims are either barred as successive habeas petitions by 2254(b) or were
properly denied under Rule 60(b). Second, Paredes delayed too long before
bringing these claims before the court. Given the State's significant interest
in enforcing its criminal judgments . . . , there is a strong equitable
presumption against the grant of a stay where a claim could have been brought
147
Nelson v. Campbell, 541 U.S. 637, 649 (2004).
148
See Nken v. Holder, 556 U.S. 418, 434 (2009); Nelson, 541 U.S. at 649.
34

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No. 14-51160
at such a time as to allow consideration of the merits without requiring entry
of a stay.
149
We therefore deny Paredess motion for a stay of execution.
* * *
We therefore AFFIRM the district courts denial of Paredess Rule 60(b)
motion and DENY Paredess motion to stay. We DENY the application for a
certificate of appealability.
149
Nelson, 541 U.S. at 650 (citations omitted).
35

A-036

Appendix B

A-037
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
TDCJ No. 999400,
Petitioner,
V. CIVIL ACTION NO. SA-05-CA-870-FB

WILLIAM STEPHENS, Director,
Texas Department of Criminal Justice,
Correctional Institutions Division,
Respondent.
ORDER DISMISSING RULE 60(b) MOTION AND
DENYING MOTION FOR STAY OF EXECUTION
The matters before the Court are (1) petitioners motion for relief from judgment pursuant
to Rule 60(b), Federal Rules of Civil Procedure, (ECF no. 25) and (2) petitioners motion for stay
of execution (ECF no. 25). For the reasons discussed below, this Court lacks jurisdiction over
petitioners Rule 60(b) motion, which is actually a successive habeas corpus petition, and petitioner
is entitled to no relief from this Court at this time.
I. Background
As this Court explained in its Memorandum Opinion and Order denying federal habeas
corpus relief, the jury found that the evidence presented during petitioners capital murder trial
showed: (1) after his release from the custody of the Texas Youth Commission on October 16, 1998,
petitioner Miguel Angel Paredes became an active member in the prison/street gang Hermanos
Pistoleros Latinos (HPL); (2) over the course of the following two years, petitioner was involved
in a series of criminal offenses, including the fatal shootings of a trio of rival gang members on
September 17, 2000 inside the home of HPL officer John Anthony Saenz in San Antonio, Texas; (3)
Case 5:05-cv-00870-FB Document 29 Filed 10/23/14 Page 1 of 30
A-038
in an unsuccessful effort to dispose of evidence of their capital offense, Saenz, petitioner, and several
other HPL members removed the bodies of the shooting victims, along with carpeting and furniture,
from the Saenz home, painted walls and re-tiled flooring inside the home, transported the bodies to
Frio County, and set them on fire; (4) in the course of their efforts to conceal or destroy evidence of
their capital offenses, the petitioner, Saenz, and the other HPL member involved in the fatal
shootings (Greg Alvarado) each gave others involved in the attempted cover-up accounts of the triple
homicide which established (a) Saenz shot victim Adrian Torres, (b) petitioner shot the female
victim, Nelly Bravo, as she pleaded for her life, and (c) Alvarado shot and stabbed the final victim,
Shawn Cain; and (5) in addition, after their arrests, all three of the shooters repeated their
confessions to their fellow HPL member and cell mate at the Bexar County Adult Detention Center,
Fred Galvan. Galvan, John Saenzs brother Eric, and John Saenzs wife Priscilla testified against
petitioner at trial regarding inculpatory statements made by the shooters. Julio Gonzalez testified
(1) he was summoned to John Saenzs home at noon on the day of the fatal shootings, (2) John Sanez
was running HPL at the time, (3) petitioner was John Saenzs right hand man in the gang, and (4)
petitioner admitted to Gonzalez that he (petitioner) shot the girl. The Texas Court of Criminal
1
Appeals affirmed petitioners conviction and sentence of death on direct appeal. Paredes v. State,
129 S.W.3d 530 (Tex. Crim. App. 2004). On October 19, 2001, the jury returned its verdict finding
petitioner guilty of capital murder.
The punishment phase of petitioners capital murder trial began October 23, 2001. The
prosecution presented witnesses who testified about (1) the history of the HPL gang and its activities;
Statement of Facts from petitioners trial (henceforth S.F. Trial), Volume 15,
1
testimony of Julio Gonzalez, at pp. 123-25, 128-29, 151.
2
A-039
(2) petitioners involvement in an incident on June 15, 1997 in which petitioner threw a pistol under
the vehicle he had been driving when police stopped petitioners vehicle based on a report it had
been involved minutes earlier in a drive-by shooting; (3) an incident on November 3, 1999 in which
petitioner was arrested for driving while intoxicated, without a license, and unlawfully carrying a
firearm; (4) petitioners involvement in an incident on January 15, 2000 in which several shots were
fired from an assault rifle into a crowd of persons outside a convenience store; (5) the recovery of
the military assault rifle used in that shooting from petitioners residence on February 1, 2000; (6)
an incident on May 21, 2000, in which petitioner and Fred Galvan were jointly arrested for criminal
trespass; (7) petitioners fatal shooting of Pedro Pete Pedraza on June 23, 2000; (8) an incident on
June 28, 2000, in which Greg Alvarado drove a vehicle containing petitioner at a dangerous rate of
speed through a residential neighborhood in an unsuccessful attempt to flee from pursuing police
vehicles and, when Alvarado crashed the vehicle into a house, petitioner attempted to flee on foot;
(7) the recovery of a loaded handgun apparently thrown from Alvarados vehicle during the pursuit
on June 28, 2000; (8) petitioner and Fred Galvans aggravated kidnaping of Joe Rodriguez on July
5, 2000; (9) the recovery of multiple firearms from beneath the mattress in petitioners bedroom on
July 5, 2000; (10) petitioners involvement in the fatal shooting of Danny Sandoval on September
1, 2000; (11) petitioners efforts to dispose of the body of a drug overdose victim by setting her body
on fire on September 12, 2000; (12) petitioners failures to report as required to his parole officer
and petitioners failures to inform his parole officer regarding his multiple arrests while on parole;
and (13) the absence of any evidence of either (a) a mental deficiency or learning disability, (b) a
history of physical, emotional, or sexual abuse, or (c) a history of long-term narcotics abuse from
petitioners background. Petitioners trial counsel offered no evidence during the punishment phase
3
A-040
of trial. On October 25, 2001, petitioners jury rendered its verdict finding (1) there was a
probability petitioner would commit criminal acts of violence that would constitute a continuing
threat to society, (2) beyond a reasonable doubt, the petitioner actually caused the death of one of
the named victims or, if he did not actually cause one of their deaths, that he intended to kill one
of them, or that he anticipated that a human life would be taken, and (3) taking into consideration
all of the evidence, including the circumstances of the offense, the petitioners character,
background, and personal moral culpability, there were insufficient mitigating circumstances to
warrant a life sentence. The state trial court imposed a sentence of death.
Petitioner appealed his conviction and sentence. In a published opinion issued January 14,
2004, the Texas Court of Criminal Appeals affirmed petitioners conviction and sentence. Paredes
v. State, 129 S.W.3d 530, 541 (Tex. Crim. App. 2004). Petitioner did not thereafter seek further
review of his conviction or sentence from the United States Supreme Court.
On November 6, 2003, petitioner filed an application for state habeas corpus relief, which
included a ground for relief arguing petitioners state trial counsel rendered ineffective assistance
by failing to present then-available mitigating evidence showing petitioner suffered from a
disadvantaged youth and disruptive early childhood. The state trial court held an evidentiary hearing
on petitioners claims on November 12, 2004 and December 2, 2004. During the state habeas
hearing held November 12, 2004, petitioners state habeas counsel called petitioners former lead
trial counsel, attorney Michael Granados, to testify. Petitioners state habeas counsel did not inquire
2
as to the defense teams rationale or strategy behind their decision not to present any mitigating
The transcript of the November 12, 2004 state habeas hearing appears as an Exhibit
2
identified as Document 25-2 among the documents accompanying petitioners Rule 60(b)
motion.
4
A-041
evidence during the punishment phase of petitioners capital murder trial, focusing instead on alleged
mistakes made by trial counsel during the guilt-innocence phase of petitioners trial. On cross-
3
examination, the State began questioning attorney Granados regarding the defense teams
investigation into petitioners family background. At that point, the following exchanges occurred:
Q. (By Mr. Shaughnessy) And that document contains, does it not, a number
of factual recitations regarding the family background of your client, correct?
A. Yes,
MR. GROSS: Excuse me, Judge. Im sorry to interrupt. I should have
mentioned before we started, Ive been asked by Mr. Paredes to drop the lack of any
mitigation evidence prong of our ISC [sic] claim. I forgot to mention that earlier.
So as far as whether or not they submitted any kind of mitigation
evidence or witnesses at the sentencing phase, Mr. Paredes has asked me not to
pursue that ground or that claim.
MR. SHAUGHNESSY: So is it my understanding that there is going
to be an expressed waiver of a claim that the attorneys were - - functioned in a
manner in violation of the Sixth Amendment at the punishment phase?
MR. GROSS: Correct. There will be no claims about punishment
phase at the trial, Your Honor.
MR. SHAUGHNESSY: One thing, Your Honor, Ive had this happen
on prior occasions, no disrespect to Mr. Gross, but I think due to the nature of the
waiver, Id like to get that from Mr. Paredes himself, if the Court would be so
accommodating. I think its a sufficient amount of magnitude.
MR. GROSS: Thats fine, Judge.
MR. SHAUGHNESSY: - - in the aspect of the waiver I think Mr.
Paredes should be admonished regarding precisely what hes waiving in this regard.
Statement of Facts from Petitioners State Habeas Corpus Hearing (henceforth S.F.
3
State Habeas Hearing), Volume 2 of 4, proceedings November 12, 2004, testimony of Michael
Granados, at pp. 8-27.
5
A-042
THE COURT: Do you want that oral, right now?
MR. SHAUGHNESSY: I would appreciate it if you could, Your
Honor.
THE COURT: Mr. Paredes, you understand what your attorney just
said?
THE DEFENDANT: I understood exactly everything he said. Im
aware of that, and Im waiving it.
THE COURT: Youre waiving it. And youre sure about that?
THE DEFENDANT: Im sure about it.
THE WITNESS: Your Honor, may we take a brief recess - -
THE COURT: Sure.
THE WITNESS: - - so I can consult with the attorneys?
THE COURT: Sure.
THE WITNESS: I have a question that - - that I need to resolve in my
own line [sic] before we go any further on this point.
THE COURT: Okay. And you know what, I also want the parties to
be aware that I know that one of the things in 11.071 that the Court can include in the
matters that go to the Court of criminal Appeals as any other matters used by the
convicting court in resolving issues of fact. I specifically recall Mr. Granados
bringing it to my attention at some point in time, because I was trying to get a time
frame regarding when we would be done with the trial, him specifically pointing out
to me that Mr. Paredes did not under any circumstances want his family members
presenting any matters regarding the family and/or his background. I dont know if
thats a matter that I would need to include in my findings of fact and conclusions of
law if this were to go up, but I do specifically recall that.
All right. How long do we need?
THE WITNESS: About two minutes.
THE COURT: Oh, sure. Let me know when youre ready.
(Brief recess.)
6
A-043
THE COURT: Okay. So - - Im sorry. Let me ask you again, Mr.
Paredes, youre sure that you want - - you dont want to proceed with that?
THE DEFENDANT: I dont want to raise no mitigation evidence at
all.
MR. SHAUGHNESSY: Well, really, Your Honor, the claim - - the
assertion that is being waived, and Id like clarification on, is whether he wants to
waive the claim that his lawyers were ineffective for not putting on certain evidence.
THE COURT: Oh, I see.
MR. SHAUGHNESSY: Thats really what - - thats whats being
waived, the claim, not the putting on of evidence now. Its the failure on the part of
his lawyers previously that hes now waiving. I think that is what has to be clarified.
THE COURT: Okay. So, Mr. Paredes, are you saying - -
THE DEFENDANT: Can you give me a minute to - -
THE COURT: Oh, sure. Sure. You take your time.
THE DEFENDANT: Your Honor?
THE COURT: Yes, sir.
THE DEFENDANT: Were waiving the one for the punishment
phase but not the guilt/innocence.
MR. SHAUGHNESSY: Thats fine, Your Honor.
THE COURT: Okay. Thank you, sir.
4
In an Order issued April 11, 2005, the state trial court issued its findings of fact, conclusions
of law and recommendation that petitioners application for state habeas corpus relief be denied. In
an unpublished Order issued August 31, 2005, the Texas Court of Criminal Appeals adopted the
S.F. State Habeas Hearing. Volume 2 of 4, testimony of Michael Granados, at pp. 46-50.
4
7
A-044
state trial courts findings of fact and conclusions of law and denied state habeas corpus relief. Ex
parte Miguel Angel Paredes, App. No. 61,939-01 (Tex. Crim. App. August 31, 2005).
Petitioner Miguel Angel Paredes, filed his federal habeas corpus petition in this action
pursuant to Title 28 U.S.C. Section 2254 on July 10, 2006. Petitioners second claim in his federal
habeas corpus petition did include several assertions of ineffective assistance by petitioners trial
counsel although none of which complained about the failure of petitioners trial counsel to present
mitigating evidence at the punishment phase of petitioners capital murder trial. ECF no. 6. This
Court denied petitioner federal habeas corpus relief but granted petitioner a Certificate of
Appealability (CoA) with regard to one aspect of petitioners multifaceted ineffective assistance
claim, i.e., petitioners argument that his trial counsel failed to raise Confrontation Clause challenges
to the admission of certain hearsay testimony. Paredes v. Quarterman, 2007 WL 760230 (W.D.
Tex. March 8, 2007). In an Opinion issued July 6, 2009, the Fifth Circuit affirmed in part, granted
CoA in part, and denied CoA in part. Paredes v. Quarterman, 574 F.3d 281 (5th Cir. 2009). In an
opinion issued August 24, 2010, the Fifth Circuit affirmed this Courts denial of federal habeas relief
on petitioners Confrontation Clause and ineffective assistance claims. Paredes v. Thaler, 617 F.3d
315 (5th Cir. 2010). The United States Supreme Court denied petitioners petition for writ of
certiorari on January 24, 2011. Paredes v. Thaler, ___ U.S. ___, 131 S. Ct. 1050, 178 L. Ed. 2d 870
(2011). Petitioners execution is currently scheduled for October 28, 2014.
II. Motion for Relief from Judgment Under Rule 60(b)(6)
Petitioner argues (1) his waiver during his state habeas corpus proceeding of his ineffective
assistance complaint about the failure of his state trial counsel to present any mitigating evidence
was invalid because petitioner was incompetent to make such a waiver, (2) petitioners state habeas
8
A-045
counsel rendered ineffective assistance by failing to challenge petitioners competence at the time
of petitioners state habeas corpus hearing, (3) the same attorney who represented petitioner during
petitioners state habeas corpus proceeding suffered from a conflict of interest when he also
represented petitioner during petitioners federal habeas corpus proceeding (as said counsel could
not reasonably assert his own ineffectiveness in failing to challenge the validity of petitioners waiver
during the state habeas corpus proceeding), (4) petitioners state and federal habeas counsel rendered
ineffective assistance by failing to present the state habeas court with available evidence (in the form
of petitioners BCADC and TDCJ medical and mental health records) showing a bona fide doubt
as to petitioners competence to waive petitioners Wiggins claim, (5) the state habeas court failed
to make an adequate inquiry of petitioner before permitting petitioner to waive presentation of
petitioners Wiggins claim, (6) petitioners state habeas counsel failed to obtain and review
petitioners BCADC and TDCJ medical records (which petitioner argues show he was suffering from
depression and possibly other mental illness and was prescribed anti-psychotic medications during
his incarceration), (7) this Court erred in failing to appoint new counsel to represent petitioner in his
federal habeas corpus proceeding, and (8) petitioners federal habeas counsel should have moved to
withdraw and requested this Court to appoint new counsel for petitioner after the Supreme Court
handed down its decision in Martinez v. Ryan, ___ U.S. ___, ___, 132 S. Ct. 1309, 1315, 182 L. Ed.
2d 272 (2012) (Inadequate assistance of counsel at initial-review collateral proceedings may
establish cause for a prisoner's procedural default of a claim of ineffective assistance at trial.). ECF
no. 25. In essence, petitioner argues he is entitled to relief from his state capital sentence based upon
the ineffective assistance claim he expressly waived during his state habeas corpus proceeding and
9
A-046
offers arguments suggesting his waiver of that claim was invalid and the product of his state habeas
counsels ineffective assistance.
A. Standard for Relief Under Rule 60(b) Generally
Rule 60(b) of the Federal Rules of Civil Procedure provides as follows:
On motion and upon such terms as are just, the court may relieve a party or its legal
representative from a final judgment, order, or proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered
evidence which by due diligence could not have been discovered in time to move for
a new trial under Rule 59(b); (3) fraud (whether previously called intrinsic or
extrinsic), misrepresentation, or misconduct of an adverse party; (4) the judgment is
void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment
upon which it is based has been reversed or otherwise vacated, or it is no longer
equitable that the judgment should have prospective application; or (6) any other
reason justifying relief from the operation of the judgment.
Such a motion must be made within a reasonable time and for reasons (1), (2), and (3) not
more than one year after the judgment, order, or proceeding was entered or taken. Gonzalez v.
Crosby, 545 U.S. 524, 528 n.2, 125 S. Ct. 2641, 2645 n.2, 162 L.Ed.2d 480 (2005); FED.R.CIV.P.
60(c)(1).
A Rule 60(b) motion which asserts a new claim of constitutional error that had been omitted
from a previous federal habeas corpus petition is properly construed as a successive petition and
must be treated accordingly. See Gonzalez v. Crosby, 545 U.S. at 531, 125 S. Ct. at 2647 (Using
Rule 60(b) to present new claims for relief from a state court's judgment of conviction-even claims
couched in the language of a true Rule 60(b) motion-circumvents AEDPA's requirement that a new
claim be dismissed unless it relies on either a new rule of constitutional law or newly discovered facts.).
A Rule 60(b) motion which attacks not the federal district courts ruling on the merits of a federal
habeas claim but, rather, challenges only the federal district courts refusal to address the merits of
10
A-047
a claim, due to findings of procedural default, the expiration of the AEDPAs limitations period, or
some other procedural impediment to merits disposition, may proceed without pre-certification under
Title 28 U.S.C. Section 2244(b)(3). See Gonzalez v. Crosby, 545 U.S. at 533-38, 125 S. Ct. at 2648-
51 (holding that, if neither the motion itself nor the federal judgment from which it seeks relief
substantively addresses federal grounds for setting aside the movants state conviction, the motion
may proceed to resolution); Tamayo v. Stephens, 740 F.3d 986, 990 (5th Cir.) (A Rule 60(b)
directed to a procedural ruling that barred consideration of the merits, such as a procedural default,
is not considered a successive petition and is properly brought as a Rule 60(b) motion.), stay of
execution and cert. denied, ___ U.S. ___, 134 S. Ct. 1022, 187 L. Ed. 2d 867 (2014); Adams v.
Thaler, 679 F.3d 312, 319 (5th Cir.) (holding a motion challenging only the federal district courts
conclusion that petitioner had procedurally defaulted on a claim was properly before the district court
pursuant to Rule 60(b)), stay of execution denied, ___ U.S. ___, 132 S. Ct. 1995, ___ L.Ed.2d ___
(2012); Hernandez v. Thaler, 630 F.3d 420, 427-28 (5th Cir. 2011) (holding the same).
A Rule 60(b)(6) movant is required to show extraordinary circumstances justifying the
reopening of a final judgment. Gonzalez v. Crosby, 545 U.S. at 535, 125 S. Ct. at 2649; Diaz v.
Stephens, 731 F.3d 370, 374 (5th Cir.), cert. denied, ___ U.S. ___, 134 S. Ct. 48, 186 L.Ed.2d 960
(2013); Adams v. Thaler, 679 F.3d at 319; Hernandez v. Thaler, 630 F.3d at 429. Such
circumstances will rarely occur in the habeas context. Gonzalez v. Crosby, 545 U.S. at 535, 125 S.
Ct. at 2649; Diaz v. Stephens, 731 F.3d at 374; Adams v. Thaler, 679 F.3d at 319. A change in
decisional law after entry of judgment does not constitute exceptional circumstances and is not alone
grounds for relief from a final judgment under Rule 60(b)(6). Diaz v. Stephens, 731 F.3d at 375-76;
Adams v. Thaler, 679 F.3d at 319; Hernandez v. Thaler, 630 F.3d at 430.
11
A-048
B. Petitioners Rule 60(b) Motion is Untimely
Petitioner asserts in his Rule 60(b) motion that he is seeking relief from this Court pursuant
to Rule 60(b)(6) of the Federal Rules of Civil Procedure. Petitioners Motion for Relief Pursuant
to Rule 60 of the Federal Rules of Civil procedure and Stay of Execution, ECF no. 25, at p. 1.
Petitioners new claim for relief is the argument his trial counsel rendered ineffective assistance by
failing to (1) adequately investigate petitioners background and (2) present then-available mitigating
evidence during the punishment phase of petitioners capital murder trial. This Court issued its
judgment in this cause on March 8, 2007.
Petitioners Rule 60(b) motion was not filed within a year from this Courts judgment as
required for newly discovered evidence motions filed under Rule 60(b)(2) or motions premised
upon a showing of mistake, inadvertence, surprise, or excusable neglect under Rule 60(b)(1). Rule
60(c)(1), FED.R.CIV.P. Nor was petitioners Rule 60(b) motion filed with a reasonable time, as
required for motions under Rule 60(b)(6) by the same Rule 60(c)(1) of the Federal Rules of Civil
Procedure. Petitioner was aware from an early date after his 2001 capital murder trial (probably at
least as early as the date his state habeas counsel filed petitioners state habeas corpus application,
i.e., November 6, 2003) a potential claim could be made that his trial counsel rendered ineffective
assistance during the punishment phase of petitioners capital murder trial. Alternatively, setting
aside the issue of whether petitioner validly waived that claim during his state habeas hearing on
November 12, 2004, petitioner was most certainly aware he possessed a potential ineffective
assistance claim attacking his trial counsels punishment phase performance by that date. This Court
has carefully reviewed the entirety of petitioners TDCJ and BCADC medical records submitted as
12
A-049
exhibits to petitioners Rule 60(b) motion and finds nothing therein which casts legitimate doubt on
the mental competence or intelligence of petitioner on or about November 12, 2004.
Petitioner waited until October, 2014, almost a decade after his state habeas corpus hearing,
to re-assert his challenges to the performance of his state trial counsel during the punishment phase
of petitioners capital murder trial. Petitioners TDCJ medical records dated after November, 2004
establish petitioner was fully capable of logical, rational thought, and suffered no debilitating effects
from the Dysthymic Disorder with which he was diagnosed in June, 2002. Dysthymic Disorder is
5
described as a chronically depressed mood that occurs for most of the day more days than not for
at least two years in which persons describe their mood as sad or down in the dumps.
6
While many of petitioners TDCJ medical and mental health records make reference to
5
petitioners Dysthymic Disorder first being observed on April 15, 2004, this Courts examination
of those same records reveal notations as early as June 20, 2002 of 300.4, which is the
numerical designation for Dysthymic Disorder found in the Diagnostic and Statistical Manual
of Mental Disorders (Fourth Edition) Text Revision (henceforth DSM-IV-TR) (published by
the American Psychiatric Association), at pp. 376-81. See Document 25-5, attached to
Petitioners Rule 60(b) Motion, at p. 77 of 100. Shortly after his arrival at the TDCJ, petitioner
was initially diagnosed with Anxiety Disorder, which is designated by 300,0" in the DSM-IV-
TR. See Document 25-5, at pp. 78 of 100, 60 of 100 through 69 of 100. What is significant,
however, is the fact that, despite the presence of notations of 300.4 on petitioners TDCH
medical and mental health records dating back well before petitioners state habeas corpus
hearing, those same records report with few exceptions petitioners mood as euthymic with
congruent affect, his thought processes in tact, his speech clear and goal directed, and
indicate petitioner denied any suicidal or homicidal ideation and made no mental health
complaints. See Document 25-5, at pp. 6 of 100 through 47 of 100, 51 of 100 through 70 of 100;
Document 25-4, at pp. 42 of 140 through 90 of 140.
DSM-IV-TR, at pp. 376-77. Some of the defining aspects of Dysthymic Disorder are
6
(1) the patient has not suffered a major depressive episode during the first two years of the
disturbance, (2) the patient has never experienced a manic episode, a mixed episode, or a
hypomanic episode, (3) the patient does not meet the criteria for cyclothymic disorder, (4) the
disturbance does not occur during the course of a chronic psychotic disorder, such as
schizophrenia or delusional disorder, and (5) the disturbance is not due to the direct physiological
affects of a substance such as drug abuse or a general medical condition. Id., at pp. 380-81.
Petitioner received a series of prescription medications for his Dysthymic Disorder during the
13
A-050
Nonetheless, petitioner waited until October, 2014 to file his Rule 60(b) motion asserting a claim
for relief of which petitioner should have been well aware at least at early as November, 2004.
Petitioner waited more than three years after the Supreme Court denied certiorari on petitioners
direct appeal from this Courts denial of petitioners federal habeas corpus petition to attempt to re-
assert the ineffective assistance claim which his state habeas counsel included in petitioners state
habeas corpus application. Petitioners Rule 60(b) motion was also filed more than 30 months after
the Supreme Court handed down its decision in Martinez v. Ryan, i.e., on March 20, 2012. Petitioner
also waited until ten days before his scheduled execution to file his Rule 60(b) motion.
Under such circumstances, petitioners Rule 60(b)(6) motion was not brought within a
reasonable time. See Tamayo v. Stephens, 740 F.3d at 991 (holding a Rule 60(b) motion filed eight
months after the Supreme Courts decision in McQuiggin v. Perkins, ___ U.S. ___, 133 S. Ct. 1924,
185 L.Ed.2d 1019 (2013), in which the movant sought retroactive application of the Supreme Courts
holding in McQuiggin was untimely under Rule 60(c)(1)). Here, there is no factual allegation
early years of his incarceration in the TDCJ, including Desipramine, Buproprion, and Wellbutrin,
which appear to have helped petitioner maintain his euthymic mood. See Document 25-4, at pp.
1 of 140 through 140 of 140. As explained in note 5, petitioners TDCJ medical and mental
health records report that, with very few exceptions, petitioners observed mood during the years
between his capital murder conviction and his November 12, 2004 state habeas hearing was
euthymic, i.e., a normal, non-depressed, reasonably positive mood. The exceptions were always
linked to some negative event in petitioners life such as (1) a pair of reports of dysthymic mood
accompanied by no psychosis and clear thought patterns in October, 2003 [Document 25-4, at pp.
85 & 86 of 140]; (2) reports associated with an incident in March, 2004 in which petitioner
became irritable and refused to leave the day room because he was not getting his medications
[Document 25-4, at pp. 68-72 of 140]; and (3) a period in May and June of 2004 in which
petitioners mood vacillated from dysthymic to euthymic to expansive during a prison unit lock
down [Document 25-4, at pp. 53-63 of 140]. By January, 2005, petitioner had experienced
several months of consistently euthymic mood observations, despite his not receiving his
prescribed Wellbutrin (Buproprion) during the weeks in which petitioner was bench warranted
out of prison, and was considered asymptomatic. See Document 25-4, at pp. 37-45 of 140.
14
A-051
showing petitioner or his current federal habeas counsel were unable, despite the exercise of due
diligence, to present petitioners currently unexhausted ineffective assistance claim to the state courts
or this Court within the reasonable time envisioned by Rule 60(c)(1).
C. Petitioner May Not Litigate a New Claim Under Rule 60(b) Without Fifth Circuit Approval
Insofar as petitioner seeks to challenge this Courts denial of federal habeas corpus relief by
urging a completely new claim for relief, that effort fails because it takes petitioners motion outside
the proper scope of a Rule 60(b) motion. See Gonzalez v. Crosby, 545 U.S. at 530, 125 S. Ct. at
2646 (any claim that has not already been adjudicated must be dismissed unless it relies on either
a new and retroactive rule of constitutional law or new facts showing a high probability of actual
innocence (as provided in 2244(b)(2)) - a determination which only the court of appeals may make
pursuant to Title 28 U.S.C. 2244(b)(3)(A)). A Rule 60(b) motion which asserts the petitioners
previous federal habeas petition omitted a claim of constitutional error due to excusable neglect and
which seeks to assert the new claim is in substance a successive habeas corpus petition which must
be subjected to Section 2244(b)(3)s certification process. Gonzalez v. Crosby, 545 U.S. at 531-32,
125 S. Ct. at 2647-48 (A motion that seeks to add a new ground for relief, as in Harris, supra, will
of course qualify.).
Unlike Gonzalez v. Crosby, this is not a case in which the federal district court refused to
address the merits of petitioners new ineffective assistance claim during petitioners initial federal
habeas corpus proceeding based upon procedural default or limitations considerations. Petitioners
own representations to the state habeas court, made in open court, effectively foreclosed
consideration of the merits of his complaint of ineffective assistance by his trial counsel at the
15
A-052
punishment phase of trial. Petitioners complaint of ineffective assistance at the punishment phase
of his trial is currently unexhausted and cannot form a basis for federal habeas corpus relief in this
Court. 28 U.S.C. 2254(b)(1). Petitioners Rule 60(b) motion is, in substance, a successive federal
habeas corpus petition and, absent permission from the Fifth Circuit for this court to consider the
merits of the new claim, the relief petitioner seeks from this Court is unavailable. See Gonzales v.
Crosby, 545 U.S. at 531, 125 S. Ct. at 2647 (holding a Rule 60(b) motion which asserts a new claim
for relief or which attacks the federal courts previous resolution of a claim on the merits is in
substance a successive habeas petition and should be treated accordingly.).
D. Petitioner Has Failed to Show Extraordinary Circumstances
Petitioner has not identified any extraordinary circumstances which warrant consideration
under Rule 60(b)(6) of his new claim of ineffective assistance. First, petitioners new ineffective
assistance claim disregards the two-pronged test for ineffective assistance. The constitutional
standard for determining whether a criminal defendant has been denied the effective assistance of
trial counsel, as guaranteed by the Sixth Amendment, was announced by the Supreme Court in
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984):
A convicted defendants claim that counsels assistance was so defective as to require
reversal of a conviction or death sentence has two components. First, the defendant
must show that counsels performance was deficient. This requires showing that
counsel made errors so serious that counsel was not functioning as the counsel
guaranteed the defendant by the Sixth Amendment. Second, the defendant must
show that the deficient performance prejudiced the defense. This requires showing
that counsels errors were so serious as to deprive the defendant of a fair trial, a trial
whose result is reliable.
To satisfy the first prong of Strickland, i.e., establish that his counsels performance was
constitutionally deficient, a convicted defendant must show that counsels representation fell below
16
A-053
an objective standard of reasonableness. Wiggins v. Smith, 539 U.S. 510, 521, 123 S. Ct. 2527,
2535, 156 L. Ed. 2d 471 (2003); Williams v. Taylor, 529 U.S. 362, 390-91, 120 S. Ct. 1495, 1511,
146 L. Ed. 2d 389 (2000). In so doing, a convicted defendant must carry the burden of proof and
overcome a strong presumption that the conduct of his trial counsel falls within a wide range of
reasonable professional assistance. Strickland v. Washington, 466 U.S. at 687-91, 104 S. Ct. at
2064-66. Courts are extremely deferential in scrutinizing the performance of counsel and make
every effort to eliminate the distorting effects of hindsight. See Wiggins v. Smith, 539 U.S. at 523,
123 S. Ct. at 2536 (holding the proper analysis under the first prong of Strickland is an objective
review of the reasonableness of counsels performance under prevailing professional norms which
includes a context-dependent consideration of the challenged conduct as seen from the perspective
of said counsel at the time). No particular set of detailed rules for counsels conduct can
satisfactorily take account of the variety of circumstances faced by defense counsel or the range of
legitimate decisions regarding how best to represent a criminal defendant. Bobby v. Van Hook, 558
U.S. 4, 7, 130 S. Ct. 13, 16, 175 L. Ed. 2d 255 (2009); Strickland v. Washington, 466 U.S. at 688-89,
104 S. Ct. at 2065. It is strongly presumed counsel rendered adequate assistance and made all
significant decisions in the exercise of reasonable professional judgment. Strickland v. Washington,
466 U.S. at 690, 104 S. Ct. at 2066.
To satisfy the prejudice prong, a convicted defendant must establish a reasonable
probability that, but for the objectively unreasonable misconduct of his counsel, the result of the
proceeding would have been different. Wiggins v. Smith, 539 U.S. at 534, 123 S. Ct. at 2542;
Strickland v. Washington, 466 U.S. at 694, 104 S. Ct. at 2068. A reasonable probability is a
probability sufficient to undermine confidence in the outcome of the proceeding. Strickland v.
17
A-054
Washington, 466 U.S. at 694, 104 S. Ct. at 2068. In evaluating prejudice in the context of the
punishment phase of a capital trial, a federal habeas court must re-weigh all the evidence in
aggravation against the totality of available mitigating evidence (had the petitioners trial counsel
chosen a different course). Wong v. Belmontes, 558 U.S. 15, 20, 130 S. Ct. 383, 386, 175 L. Ed. 2d
328 (2009); Wiggins v. Smith, 539 U.S. at 534, 123 S. Ct. at 2542. Strickland does not require the
State to rule out or negate a sentence of life in prison to prevail; rather, it places the burden on the
defendant to show a reasonable probability that the result of the punishment phase of a trial would
have been different. Wong v. Belmontes, 558 U.S. at 27, 130 S. Ct. at 390-91.
The only new facts alleged by petitioner in support of his complaint about his trial counsels
failure to present mitigating evidence during the punishment phase of petitioners trial consists of
statements contained in the affidavits of petitioners older brother Jorge, petitioners older sister
Marisol, petitioners former girlfriend Samantha Eguia, and petitioners family friends Inez
Castaneda and Gloria Saldana. This new evidence furnishes information showing (1) petitioner
7
grew up in difficult, economically challenged, circumstances, in which he and his family were
repeatedly victimized by gang members and other criminals and petitioner was exposed to violence
from an early age, (2) petitioners mother abandoned petitioner and her other children with some
frequency for significant periods of time, (3) the children were left to fend for themselves during
these periods (curiously, there is little discussion of the role of petitioners father in these affidavits),
(4) while living in Mexico in 1989 (at age six or seven), petitioner was forced to fight by his cousins,
(5) from an early age petitioner responded to frustration by banging his head against the wall or floor,
All of these affidavits are contained in Document 25-8 accompanying petitioners Rule
7
60(b) motion.
18
A-055
(6) at age eleven or twelve, petitioner got into fights at school, (7) at age eleven, petitioner was run
over by a car driven by gang members in a car (it is not clear whether he was injured), (8) when he
was at age fifteen, petitioner impregnated his fourteen year-old girlfriend, (9) about a year after the
birth of his son, petitioner broke up with his girlfriend and began hanging out with the wrong
people, and (10) in the view of his family and friends, petitioner was a responsible father.
In view of the nature of petitioners capital offense, the evidence the prosecution presented
during the punishment phase of petitioners capital murder trial showing petitioners propensity for
violent, criminal, conduct, and the absence of any evidence in the record showing petitioner
expressed sincere remorse or genuine contrition for his role in the homicides and subsequent
attempted cover-up, there is no reasonable probability that, but for the failure of petitioners trial
counsel to introduce any of the new evidence identified in the affidavits of petitioners brother, sister,
former girlfriend, and family friends, the outcome of the punishment phase of petitioners capital
murder trial would have been any different. The prosecution presented witnesses who testified
petitioner displayed no remorse when he described the female victim as she begged for her life. A
8
Bexar County Sheriffs Deputy quoted petitioner at the punishment phase of petitioners trial as
having said When I became a Pistolero, I knew I would end up dead or on death row. At best, the
9
new evidence furnished some context for petitioners documented pattern of violent behavior from
an early age. Absent some indication petitioner was capable of expressing remorse and had actually
expressed remorse for his role in the capital offense, the new mitigating evidence petitioner now
S.F. Trial, Volume 14, testimony of Eric Saenz, at pp. 48-49, 52, 75-76, 79; Volume 15,
8
testimony of Julio Gonzalez, at pp. 129-30, 149, 151, 156.
S.F. Trial, Volume 20, testimony of Alfred Damiani, at p. 44.
9
19
A-056
presents possesses little mitigating value and could have been viewed by the jurors as supporting
an affirmative answer to the Texas capital sentencing schemes future dangerousness special issue.
Most of petitioners new evidence is double-edged in nature. For example, the jury could possibly
have been offended by assertions by petitioners family and friends that petitioners actions in getting
his fourteen-year-old girlfriend pregnant and breaking up with her a year after the birth of their child
showed petitioner was a responsible father.
The foregoing new evidence must also be viewed in proper context. Petitioner offers no
affidavit from himself, his former trial counsel, or any other person identifying the information
petitioner conveyed to his trial counsel about his background. Nor does petitioner allege any facts
showing his trial counsel failed to communicate with other members of petitioners very large family
in a search for potentially mitigating evidence. It is quite possible petitioners trial counsel were well
aware (through interviews with petitioners parents, other siblings, and other witnesses) of all the
information about petitioners background contained in the affidavits of petitioners brother Jorge,
sister Marisol, petitioners former girlfriend, and the family friends who furnished affidavits in this
cause. At its core, the Strickland test requires a convicted criminal defendant to demonstrate that
his trial counsels efforts were objectively unreasonable in light of the information said counsel
possessed or, with the exercise of due diligence, could have possessed at the time of trial. Here,
petitioner alleges no facts concerning what information about petitioners background petitioners
trial counsel actually possessed at the time they made their decision not to present any mitigating
evidence at the punishment phase of petitioners capital murder trial. Nor does petitioner allege any
facts which establish his trial counsel failed to investigate petitioners background in a reasonable
manner in view of the information then-available to said counsel, including petitioners directive to
20
A-057
his trial counsel recalled by the state trial judge during petitioners state habeas corpus hearing, that
petitioner did not want his family to testify at the punishment phase of petitioners trial. Counsel
may not reasonably be faulted for following the directives of their client when it comes to deciding
what types of mitigating evidence to present at the punishment phase of a capital murder trial. See
Wood v. Quarterman, 491 F.3d 196, 203 (5th Cir. 2007) (recognizing neither the Supreme Court nor
the Fifth Circuit has ever held that a lawyer provides ineffective assistance by complying with a
capital murder defendants clear and unambiguous instructions not to present evidence at the
punishment phase of trial), cert. denied, 552 U.S. 1151 (2008).
The Fifth Circuit has long recognized trial counsel is not ethically required to ignore his
client's objection to the presentation of certain types of mitigating evidence. See, e.g., Nixon v. Epps,
405 F.3d 318, 325-26 (5th Cir.) (holding the defendant cannot block his trial counsel from
attempting one line of defense at trial and then argue on appeal his counsel was ineffective for failing
to introduce evidence supporting that defense), cert. denied, 546 U.S. 1015 (2005); Roberts v.
Dretke, 356 F.3d 632, 638 (5th Cir.2004) (where a defendant forbids his trial counsel from
interviewing family members, the defendant may not thereafter complain of ineffective assistance
arising from the failure to discover mitigating evidence known to those same family members), cert.
denied, 544 U.S. 963 (2005); Dowthitt v. Johnson, 230 F.3d 733, 748 (5th Cir.2000) (holding trial
counsel may not be held ineffective for honoring his client's wishes that his family members not be
interviewed or called to testify at trial as long as the client made an informed decision), cert. denied,
532 U.S. 915 (2001); Amos v. Scott, 61 F.3d 333, 348-49 (5th Cir.) (holding no deficient
performance or prejudice arose from trial counsels failure to present a witness at the punishment
phase of trial where the defendant strongly opposed having any witnesses testify on his behalf during
21
A-058
the punishment phase and the defendant acknowledged same during a colloquy on the record in open
court), cert. denied, 516 U.S. 1005 (1995). Thus, petitioner has identified no ethical obligation or
other duty imposed upon a criminal defense counsel requiring said counsel to oppose his clients
expressed desire not to present mitigating evidence at the punishment phase of a capital murder trial.
To the contrary, the Fifth Circuit has suggested a defense counsel is ethically obligated to follow a
clients knowing directive not to present mitigating evidence. See Autry v. McKaskle. 727 F.2d 358,
362-63 (5th Cir.) (holding trial counsel ethically obligated to comply with defendants knowing
directive not to present mitigating evidence nor required to seek a competency hearing before
complying with that directive), cert. denied, 465 U.S. 1085 (1984).
The record now before this Court includes the declaration of petitioners state trial judge,
made on the record during petitioners state habeas corpus hearing, that petitioner directed his trial
counsel not to call any members of petitioners family to testify at trial or to present any other
evidence about petitioners family background during the punishment phase of petitioners capital
murder trial. Petitioner has not challenged the factual accuracy of the state trial judges declaration
on the record. Thus, petitioner has failed to allege any facts which establish his trial counsel (1)
failed to adequately investigate petitioners background in anticipation of the punishment phase of
petitioners trial, (2) failed to discover any of the purportedly new information about petitioners
background contained in the affidavits of one of petitioners brothers, one of petitioners sisters, and
three other individuals who knew petitioner when he was growing up, or (2) made an objectively
unreasonable decision not to present any mitigating evidence at the punishment
This Court concludes after an independent, de novo, review, that petitioners new ineffective
assistance claim fails to satisfy either prong of Strickland analysis. Second, petitioners new claim
22
A-059
of ineffective assistance fails to demonstrate exceptional circumstances because petitioner has not
offered any specific facts or evidence showing there was anything objectively unreasonable with the
failure of petitioners state habeas counsel to challenge petitioner as incompetent to waive state
habeas review of a single component of petitioners multi-faceted ineffective assistance claim on
November 12, 2004. Contrary to the petitioners conclusory arguments, petitioners TDCJ medical
records establish petitioner responded well to his prescription medications and displayed no
psychosis, suicidal or homicidal ideation, confused thinking, or intellectual deficiency during the
months leading up to November, 2004 or immediately thereafter. In fact, as explained above, by
January, 2005, TDCJ medical staff declared petitioner to be asymptomatic for Dysthymic
Disorder. That diagnosis was confirmed again in March and July, 2005. Petitioner alleges no
10 11
facts showing there was anything about the circumstances surrounding petitioners waiver of one
aspect of his ineffective assistance claim on November 12, 2004 which should have put petitioners
state habeas counsel, or any other rational person present at petitioners state habeas hearing, on
Document 25-4, at pp. 25-84 of 140. While petitioner was observed displaying a
10
dysthymic (sad) mood or displaying frustration on a few occasions, the overwhelming majority of
the time petitioner was in TDCJ facilities during this time frame, he was observed displaying an
euthymic mood. At no time during the period from February, 2003 through July, 2005 is there
any indication in petitioners TDCJ medical or mental health records that petitioner was ever
diagnosed a suffering from any impairment of his intellectual functions, displaying severe
depression, or anything other than coherent thought processes and speech patterns. Insofar as
petitioner suggests his trial counsel would have found in petitioners BCADc and TDCJ medical
and mental health records a bona fide basis for challenging as incompetent petitioners waiver
of his Wiggins claim on November 12, 2004, petitioners argument holds no water. Petitioners
TDCJ medical records show petitioner responded well to his prescribed medications and had no
episodes of conduct suggesting petitioner was ever mentally incompetent for any purpose at any
time relevant to petitioners waiver of one aspect of his ineffective assistance claim on November
12, 2004.
Document 25-4, at pp. 25-26 of 140, 31-32 of 140.
11
23
A-060
notice of a need for further inquiry into petitioners competence to make that determination. In
12
conclusion, petitioner has alleged no specific facts showing he was actually mentally incompetent
on November 12, 2004 when he waived his assertion of one aspect of his multi-faceted ineffective
assistance claim during a hearing on open court.
E. Conclusions
Petitioners Rule 60(b) motion is subject to dismissal under the principles outlined by the
Supreme Court in Gonzalez v. Crosby, namely petitioners Rule 60(b) motion is an effort to litigate
a new claim for relief and obtain a ruling on the merits from this Court on a successive fede4ral
habeas corpus petition without first obtaining leave from the Fifth Circuit to file a successive habeas
corpus petition. As the Supreme Court explained in Gonzales v. Crosby, petitioner cannot employ
a Rule 60(b) motion to get a second bite at the same apple using a new claim. Moreover, petitioner
has failed to file his Rule 60(b)(6) motion within a reasonable time. Because petitioner has failed
to obtain the appropriate certification from the Fifth Circuit, as required by Section 2244(b), this
Court lacks subject matter jurisdiction over petitioners successive federal habeas corpus petition
filed as a Rule 60(b) motion and, ordinarily, would be compelled to dismiss same pursuant to Section
2244(b)(1). Gonzalez v. Crosby, 545 U.S. at 530, 125 S. Ct. at 2647.
Neither the fact petitioner has been treated years before at the BCADC with anti-
12
psychotic medications and was still received anti-psychotic medications while incarcerated in the
TDCJ, dd not, standing alone, raise rational questions about petitioners competence to make
strategic decisions in connection with petitioners state habeas corpus proceeding. On the
contrary, assuming the accuracy of the state trial judges comments on the record during that
hearing, withdrawal of petitioners complaints about his trial counsels failure to present
mitigating evidence appears rational. The process of winnowing out weaker arguments on appeal
and focusing on those more likely to prevail is the hallmark of effective appellate advocacy.
Smith v. Murray, 477 U.S. 527, 536, 106 S. Ct. 2661, 2667, 91 L. Ed. 2d 434 (1986).
24
A-061
This Court does possess the authority to transfer petitioners Rule 60(b) motion to the Fifth
Circuit pursuant to 28 U.S.C. Section 1631 for determination by that Court of whether petitioners
Rule 60(b) motion satisfies the requirement for a successive petition under Section 2244(b). Adams
v. Thaler, 679 F.3d at 321-22 (holding a federal district court properly transferred a successive
federal habeas corpus petition filed under the guise of a Rule 60(b) motion to the Fifth Circuit for
determination of Section 2244(b) issues). Given the proximity of petitioners impending execution
date, rather than dismiss this cause without prejudice to petitioners right to seek certification under
Section 2244(b), the Court will transfer this cause to the Fifth Circuit pursuant to Section 1631 for
determination of whether petitioners Rule 60(b) motion satisfies the requirements of Section
2244(b).
IV. Motion for Stay of Execution
A stay of execution is an equitable remedy, is not available as a matter of right, and federal
courts addressing requests for such relief must be sensitive to the States strong interest in enforcing
its criminal judgments without undue interference from the federal courts. Hill v. McDonough, 547
U.S. 573, 584, 126 S. Ct. 2096, 2104, 165 L.Ed.2d 44 (2006); Adams v. Thaler, 679 F.3d at 318.
The party requesting a stay bears the burden of showing that the circumstances justify an exercise
of judicial discretion. Nken v. Holder, 556 U.S. 418, 433-34, 129 S. Ct. 1749, 1760-61, 173 L.Ed.2d
550 (2009); Adams v. Thaler, 679 F.3d at 318. The factors which must be considered before a
federal court may issue a stay are: (1) whether the party requesting the stay has made a strong
showing that he is likely to succeed on the merits; (2) whether the party requesting the stay will be
irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other
parties interested in the proceeding; and (4) where the public interest lies. Nken v. Holder, 556 U.S.
25
A-062
at 434, 129 S. Ct. at 1761; Hilton v. Braunskill, 481 U.S. 770, 776, 107 S. Ct. 2113, 2119, 95
L.Ed.2d 724 (1987); Adams v. Thaler, 679 F.3d at 318.
As explained above, petitioners Rule 60(b) motion seeks to obtain a ruling on the merits of
an unexhausted claim of ineffective assistance which petitioner expressly waived during his state
habeas corpus proceeding in November, 2004. This petitioner may not do. See Johnson v. Cain, 712
F.3d 227, 233-34 (5th Cir.) (By disclaiming reliance on a potential ground for habeas relief, a state
habeas petitioner signals to the state courts that they need not pass judgment upon it. Allowing the
petitioner to revive that claim in a federal habeas petition, without giving the state courts the initial
opportunity to review it, would be inconsistent with comity interests and would subvert the primary
purpose of the exhaustion requirement.), cert. denied, ___ U.S. ___, 134 S. Ct. 431, 187 L. Ed. 2d
290 (2013). As explained above, petitioners unexhausted ineffective assistance claim is
unsupported by specific factual allegations and any evidence sufficient to satisfy either prong of
Strickland analysis. Regardless of the merits of petitioners attack upon his own waiver of this same
claim almost a decade ago, petitioners underlying ineffective assistance claim possesses no
substantial likelihood of ultimate success on the merits. Through his repeated involvement in violent
criminal offenses, petitioner furnished the prosecution with relevant aggravating evidence for a
rational jury to answer either of the Texas capital sentencing special issues favorably to petitioner
based upon the information contained in petitioners siblings and friends affidavits accompanying
petitioners Rule 60(b) motion. Petitioner is not entitled to a stay of execution from this Court.
26
A-063
V. Certificate of Appealability
Under the AEDPA, before a petitioner may appeal the denial of a habeas corpus petition filed
under Section 2254, the petitioner must obtain a CoA. Miller-El v. Johnson, 537 U.S. 322, 335-36,
123 S. Ct. 1029, 1039, 154 L.Ed.2d 931 (2003); 28 U.S.C. 2253(c)(2). Likewise, under the
AEDPA, appellate review of a habeas petition is limited to the issues on which a CoA is granted.
See Crutcher v. Cockrell, 301 F.3d 656, 658 n.10 (5th Cir. 2002) (holding a CoA is granted on an
issue-by-issue basis, thereby limiting appellate review to those issues); Jones v. Cain, 227 F.3d 228,
230 n.2 (5th Cir. 2000) (holding the same); Lackey v. Johnson, 116 F.3d 149, 151 (5th Cir. 1997)
(holding the scope of appellate review of denial of a habeas petition limited to the issues on which
CoA has been granted). In other words, a CoA is granted or denied on an issue-by-issue basis,
thereby limiting appellate review to those issues on which CoA is granted alone. Crutcher v.
Cockrell, 301 F.3d at 658 n.10; Lackey v. Johnson, 116 F.3d at 151; Hill v. Johnson, 114 F.3d at 80;
Muniz v. Johnson, 114 F.3d at 45; Murphy v. Johnson, 110 F.3d 10, 11 n.1 (5th Cir. 1997); 28 U.S.C.
2253(c)(3).
A CoA will not be granted unless the petitioner makes a substantial showing of the denial
of a constitutional right. Tennard v. Dretke, 542 U.S. 274, 282, 124 S. Ct. 2562, 2569, 159 L.Ed.2d
384 (2004); Miller-El v. Johnson, 537 U.S. at 336, 123 S. Ct. at 1039; Slack v. McDaniel, 529 U.S.
473, 483, 120 S. Ct. 1595, 1603, 146 L.Ed.2d 542 (2000); Barefoot v. Estelle, 463 U.S. 880, 893,
103 S. Ct. 3383, 3394, 77 L.Ed.2d 1090 (1983). To make such a showing, the petitioner need not
show he will prevail on the merits but, rather, must demonstrate that reasonable jurists could debate
whether (or, for that matter, agree) the petition should have been resolved in a different manner or
that the issues presented are adequate to deserve encouragement to proceed further. Tennard v.
27
A-064
Dretke, 542 U.S. at 282, 124 S. Ct. at 2569; Miller-El v. Johnson, 537 U.S. at 336, 123 S. Ct. at
1039; Slack v. McDaniel, 529 U.S. at 484, 120 S. Ct. at 1604; Barefoot v. Estelle, 463 U.S. at 893
n.4, 103 S. Ct. at 3394 n.4. This Court is required to issue or deny a CoA when it enters a final
Order such as this one adverse to a federal habeas petitioner. Rule 11(a), Rules Governing Section
2254 Cases in the United States District Courts.
The showing necessary to obtain a CoA on a particular claim is dependent upon the manner
in which the District Court has disposed of a claim. If this Court rejects a prisoners constitutional
claim on the merits, the petitioner must demonstrate reasonable jurists could find the courts
assessment of the constitutional claim to be debatable or wrong. [W]here a district court has
rejected the constitutional claims on the merits, the showing required to satisfy 2253(c) is
straightforward: The petitioner must demonstrate that reasonable jurists would find the district
courts assessment of the constitutional claims debatable or wrong. Miller-El v. Johnson, 537 U.S.
at 338, 123 S.Ct. at 1040 (quoting Slack v. McDaniel, 529 U.S. at 484, 120 S.Ct. at 1604). Accord
Tennard v. Dretke, 542 U.S. at 282, 124 S.Ct. at 2569. In a case in which the petitioner wishes to
challenge on appeal this Courts dismissal of a claim for a reason not of constitutional dimension,
such as procedural default, limitations, or lack of exhaustion, the petitioner must show jurists of
reason would find it debatable whether the petition states a valid claim of the denial of a
constitutional right and whether this Court was correct in its procedural ruling. See Slack v.
McDaniel, 529 U.S. at 484, 120 S.Ct. at 1604 (holding when a district court denies a habeas claim
on procedural grounds, without reaching the underlying constitutional claim, a CoA may issue only
when the petitioner shows that reasonable jurists would find it debatable whether (1) the claim is a
28
A-065
valid assertion of the denial of a constitutional right and (2) the district courts procedural ruling was
correct).
In death penalty cases, any doubt as to whether a CoA should issue must be resolved in the
petitioners favor. Avila v. Quarterman, 560 F.3d 299, 304 (5th Cir.), cert. denied, 558 U.S. 993
(2009); Moore v. Quarterman, 534 F.3d 454, 460 (5th Cir. 2008); Foster v. Quarterman, 466 F.3d
at 364; Dickson v. Quarterman, 462 F.3d 470, 476 (5th Cir. 2006); Pippin v. Dretke, 434 F.3d at
787; Bridgers v. Dretke, 431 F.3d 853, 861 (5th Cir. 2005), cert. denied, 548 U.S. 909 (2006).
Nonetheless, a CoA is not automatically granted in every death penalty habeas case. See Miller-El
v. Cockrell 537 U.S. at 337, 123 S.Ct. at 1040 (It follows that issuance of a COA must not be pro
forma or a matter of course.); Sonnier v. Quarterman, 476 F.3d at 364-69 (denying CoA on a wide
variety of challenges to the Texas capital sentencing scheme).
Reasonable minds could not disagree over this Courts conclusion that petitioners Rule 60(b)
motion is successive under the standard set forth by the Supreme Court in Gonzalez v. Crosby, 545
U.S. 524, 125 S. Ct. 2641, 162 L.Ed.2d 480 (2005). See Gonzales v. Crosby, 545 U.S. at 532, 125
S. Ct. at 2648 (A motion that seeks to add a new ground for relief, as in Harris, supra, will of
course qualify. A motion can also be said to bring a claim if it attacks the federal court's previous
resolution of a claim on the merits, since alleging that the court erred in denying habeas relief on the
merits is effectively indistinguishable from alleging that the movant is, under the substantive
provisions of the statutes, entitled to habeas relief. (footnote omitted; emphasis in original). Unlike
Gonzalez v. Crosby, this is not a case in which the federal district court refused to address the merits
of petitioners new ineffective assistance claim because of some procedural default or the failure of
petitioner to comply with the AEDPAs statute of limitations. Instead, petitioner chose not to
29
A-066
exhaust available state remedies on his new ineffective assistance claim when petitioners state
habeas counsel stood ready and apparently willing to litigate that claim during petitioners state
habeas corpus proceeding. Reasonable minds could not disagree with this Courts conclusion that
petitioners Rule 60(b) motion is, in fact, a successive federal habeas corpus petition which requires
permission from the Fifth Circuit before this Court may address the merits of same. Nor could
reasonable minds disagree with this courts conclusion that petitioner has failed to allege specific
facts showing his new ineffective assistance claim possesses any reasonable likelihood of ultimate
success on the merits. Petitioner has failed to show he is entitled to a CoA with regard to this
Courts dismissal for want of jurisdiction of petitioners Rule 60(b) motion.
Accordingly, it is hereby ORDERED that:
1. Petitioners motion for relief from judgment pursuant to Rule 60(b), Federal Rules of
Civil Procedure, ECF no. 25, is DISMISSED WITHOUT PREJUDICE for want of jurisdiction and
TRANSFERRED to the Fifth Circuit pursuant to 28 U.S.C. Section 1631.
2. Petitioners motion for stay of execution, ECF no. 25 is DENIED.
3. Petitioner is DENIED a Certificate of Appealability on all of his claims herein.
4. The Clerk shall immediately transmit a copy of this Memorandum Opinion and Order and
petitioners Rule 60(b) motion to the Fifth Circuit Court of Appeals.
It is so ORDERED.
SIGNED this 23rd day of October, 2014.
_________________________________________________
FRED BIERY
CHIEF UNITED STATES DISTRICT JUDGE
30
A-067

Appendix C

A-068
FIFTH CIRCUIT
OFFICE OF THE CLERK

LYLE W. CAYCE
CLERK

TEL. 504-310-7700
600 S. MAESTRI PLACE
NEW ORLEANS, LA 70130

October 23, 2014

Mr. David R. Dow
University of Houston
Law Center
100 Law Center

No. 14-51160 In re: Miguel Paredes

Dear Mr. Dow,

The Court requests that you immediately advise by letter as to
your authority to represent Mr. Miguel Paredes.

Sincerely,

LYLE W. CAYCE, Clerk

By: _________________________
Mary Frances Yeager, Deputy Clerk
504-310-7686

cc: Mr. Michael Clark Gross
Mr. Jay Clendenin
A-069
NO. 14-51160
IN THE
UNITED STATES COURT OF APPEALS
MIGUEL A. PAREDES,
Petitioner - Appellant
V.
WILLIAM STEPHENS, Director, Texas Department of
Criminal Justice, Correctional Institutions Division,
Respondent - Appellee
Appeal from the United States District Court
For the Western District of Texas
MOTION TO WITHDRAW AS COUNSEL OF RECORD

MICHAEL C. GROSS
106 South St. Marys Street, Suite 260
San Antonio, Texas 78205
(210) 354-1919
(210) 354-1920
Attorney for the Appellant,
MIGUEL PAREDES
A-070
TO THE HONORABLE COURT OF APPEALS:
COMES NOW MIGUEL PAREDES, the Petitioner-Appellant in the above
styled and numbered cause, and files this Motion to Withdraw as Counsel of Record
and in support would show: The Petitioner-Appellant through his new counsel, David
Dow, filed pleadings with the United States District Court for the Western District of
Texas seeking a stay of his execution scheduled for October 28, 2014 based in part
on a claim that undersigned habeas counsel was ineffective and has a conflict of
interest in representing the Petitioner-Appellant. That request was denied today, and
undersigned counsel was contacted by email today by Jeff Newberry (a representative
of Mr. Dow) who stated that Mr. Newberry was informed by this Courts staff that
undersigned counsel must withdraw in order for Mr. Dow to file pleadings with this
Court. Undersigned counsel, therefore, respectfully requests that this Court allow
counsel to withdraw as counsel of record in this cause.
Respectfully submitted,
GROSS & ESPARZA, P.L.L.C.
/s/ Michael C. Gross
Michael C. Gross
State Bar No. 08534480
106 South St. Marys Street, Suite 260
San Antonio, Texas 78205
(210) 354-1919
(210) 354-1920 Fax
Attorney for the Petitioner-Appellant,
MIGUEL PAREDES
2
A-071
CERTIFICATE OF SERVICE
I hereby certify that on the 23rd day of October 2014, I electronically filed the
foregoing with the Clerk of Court using the CM/ECF system which will send
notification of such filing to Jay Clendenin, and I certify that there are no non-
CM/ECF participants. The required privacy redactions have been made pursuant to
5th Cir. Rule 25.2.13. This electronic submission is an exact copy of the paper
document pursuant to 5th Cir. Rule 25.2.1. This document has been scanned for
viruses with the most recent version of a commercial virus scanning program and is
free of viruses.
/s/ Michael C. Gross
3
A-072
A-073
A-074
FIFTH CIRCUIT
OFFICE OF THE CLERK

LYLE W. CAYCE
CLERK

TEL. 504-310-7700
600 S. MAESTRI PLACE
NEW ORLEANS, LA 70130

October 23, 2014

MEMORANDUM TO COUNSEL OR PARTIES LISTED BELOW:

No. 14-51160 In re: Miguel Paredes

Enclosed is an order entered in this case.

Sincerely,

LYLE W. CAYCE, Clerk

By: _________________________
Mary Frances Yeager, Deputy Clerk
504-310-7686

Mr. David R. Dow
Mr. Michael Clark Gross
Mr. William Putnicki

P.S. to Mr. Gross: We have removed you from our docket as court
appointed counsel for appellant. We will not send further orders,
correspondence, etc. regarding this appeal.

A-075
IN THE UNITED STATES COURT OF APPEALS


___________________

No. 14-51160
___________________

In re: MIGUEL A. PAREDES,

Movant

________________________________________________________
Transfer from the United States District Court
for the Western District of Texas, San Antonio,
USDC No.5:05-CV-870
_______________________________________________
O R D E R :

IT IS ORDERED that the attorney motion filed by Mr. Michael Gross to
withdraw as court appointed counsel for Mr. Miguel Paredes is GRANTED.
Other counsel has entered an appearance on behalf of Miguel Paredes in
proceedings in the federal district court and in this court.

____/s/ Priscilla R. Owen ____________
PRISCILLA R. OWEN
UNITED STATES CIRCUIT JUDGE

A-076

Appendix D

A-077
79 Rule 60 FEDERAL RULES OF CIVIL PROCEDURE
(c) TIME TO SERVE AFFIDAVITS. When a motion for a new trial is
based on affidavits, they must be filed with the motion. The op-
posing party has 14 days after being served to file opposing affida-
vits. The court may permit reply affidavits.
(d) NEW TRIAL ON THE COURTS INITIATIVE OR FOR REASONS NOT
IN THE MOTION. No later than 28 days after the entry of judgment,
the court, on its own, may order a new trial for any reason that
would justify granting one on a partys motion. After giving the
parties notice and an opportunity to be heard, the court may
grant a timely motion for a new trial for a reason not stated in
the motion. In either event, the court must specify the reasons in
its order.
(e) MOTION TO ALTER OR AMEND A JUDGMENT. A motion to alter
or amend a judgment must be filed no later than 28 days after the
entry of the judgment.
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Feb. 28, 1966, eff. July
1, 1966; Apr. 27, 1995, eff. Dec. 1, 1995; Apr. 30, 2007, eff. Dec. 1, 2007;
Mar. 26, 2009, eff. Dec. 1, 2009.)
Rule 60. Relief from a Judgment or Order
(a) CORRECTIONS BASED ON CLERICAL MISTAKES; OVERSIGHTS AND
OMISSIONS. The court may correct a clerical mistake or a mistake
arising from oversight or omission whenever one is found in a
judgment, order, or other part of the record. The court may do so
on motion or on its own, with or without notice. But after an ap-
peal has been docketed in the appellate court and while it is pend-
ing, such a mistake may be corrected only with the appellate
courts leave.
(b) GROUNDS FOR RELIEF FROM A FINAL JUDGMENT, ORDER, OR
PROCEEDING. On motion and just terms, the court may relieve a
party or its legal representative from a final judgment, order, or
proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable dili-
gence, could not have been discovered in time to move for a
new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic),
misrepresentation, or misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged;
it is based on an earlier judgment that has been reversed or
vacated; or applying it prospectively is no longer equitable; or
(6) any other reason that justifies relief.
(c) TIMING AND EFFECT OF THE MOTION.
(1) Timing. A motion under Rule 60(b) must be made within
a reasonable timeand for reasons (1), (2), and (3) no more
than a year after the entry of the judgment or order or the
date of the proceeding.
(2) Effect on Finality. The motion does not affect the judg-
ments finality or suspend its operation.
(d) OTHER POWERS TO GRANT RELIEF. This rule does not limit a
courts power to:
(1) entertain an independent action to relieve a party from
a judgment, order, or proceeding;
A-078

Appendix E
A-079
Page 754 TITLE 18CRIMES AND CRIMINAL PROCEDURE 3597
1
So in original. Probably should be section.
2
So in original. Probably should be this.
3
So in original. Probably should be 5303.
understand the death penalty and why it was
imposed on that person.
(Added Pub. L. 103322, title VI, 60002(a), Sept.
13, 1994, 108 Stat. 1967.)
3597. Use of State facilities
(a) IN GENERAL.A United States marshal
charged with supervising the implementation of
a sentence of death may use appropriate State
or local facilities for the purpose, may use the
services of an appropriate State or local official
or of a person such an official employs for the
purpose, and shall pay the costs thereof in an
amount approved by the Attorney General.
(b) EXCUSE OF AN EMPLOYEE ON MORAL OR RE-
LIGIOUS GROUNDS.No employee of any State de-
partment of corrections, the United States De-
partment of Justice, the Federal Bureau of Pris-
ons, or the United States Marshals Service, and
no employee providing services to that depart-
ment, bureau, or service under contract shall be
required, as a condition of that employment or
contractual obligation, to be in attendance at or
to participate in any prosecution or execution
under this section if such participation is con-
trary to the moral or religious convictions of
the employee. In this subsection, participation
in executions includes personal preparation of
the condemned individual and the apparatus
used for execution and supervision of the activi-
ties of other personnel in carrying out such ac-
tivities.
13, 1994, 108 Stat. 1968.)
3598. Special provisions for Indian country
Notwithstanding sections 1152 and 1153, no per-
son subject to the criminal jurisdiction of an In-
dian tribal government shall be subject to a cap-
ital sentence under this chapter for any offense
the Federal jurisdiction for which is predicated
solely on Indian country (as defined in section
1151 of this title) and which has occurred within
the boundaries of Indian country, unless the
governing body of the tribe has elected that this
chapter have effect over land and persons sub-
ject to its criminal jurisdiction.
13, 1994, 108 Stat. 1968.)
3599. Counsel for financially unable defendants
(a)(1) Notwithstanding any other provision of
law to the contrary, in every criminal action in
which a defendant is charged with a crime which
may be punishable by death, a defendant who is
or becomes financially unable to obtain ade-
quate representation or investigative, expert, or
other reasonably necessary services at any time
either
(A) before judgment; or
(B) after the entry of a judgment imposing a
sentence of death but before the execution of
that judgment;
shall be entitled to the appointment of one or
more attorneys and the furnishing of such other
services in accordance with subsections (b)
through (f).
(2) In any post conviction proceeding under
section 2254 or 2255 of title 28, United States
Code, seeking to vacate or set aside a death sen-
tence, any defendant who is or becomes finan-
cially unable to obtain adequate representation
or investigative, expert, or other reasonably
necessary services shall be entitled to the ap-
pointment of one or more attorneys and the fur-
nishing of such other services in accordance
with subsections (b) through (f).
(b) If the appointment is made before judg-
ment, at least one attorney so appointed must
have been admitted to practice in the court in
which the prosecution is to be tried for not less
than five years, and must have had not less than
three years experience in the actual trial of fel-
ony prosecutions in that court.
(c) If the appointment is made after judgment,
at least one attorney so appointed must have
been admitted to practice in the court of appeals
for not less than five years, and must have had
not less than three years experience in the han-
dling of appeals in that court in felony cases.
(d) With respect to subsections (b) and (c), the
court, for good cause, may appoint another at-
torney whose background, knowledge, or experi-
ence would otherwise enable him or her to prop-
erly represent the defendant, with due consider-
ation to the seriousness of the possible penalty
and to the unique and complex nature of the
litigation.
(e) Unless replaced by similarly qualified
counsel upon the attorneys own motion or upon
motion of the defendant, each attorney so ap-
pointed shall represent the defendant through-
out every subsequent stage of available judicial
proceedings, including pretrial proceedings,
trial, sentencing, motions for new trial, appeals,
applications for writ of certiorari to the Su-
preme Court of the United States, and all avail-
able post-conviction process, together with ap-
plications for stays of execution and other ap-
propriate motions and procedures, and shall also
represent the defendant in such competency pro-
ceedings and proceedings for executive or other
clemency as may be available to the defendant.
(f) Upon a finding that investigative, expert,
or other services are reasonably necessary for
the representation of the defendant, whether in
connection with issues relating to guilt or the
sentence, the court may authorize the defend-
ants attorneys to obtain such services on behalf
of the defendant and, if so authorized, shall
order the payment of fees and expenses therefor
under subsection (g). No ex parte proceeding,
communication, or request may be considered
pursuant to this section unless a proper showing
is made concerning the need for confidentiality.
Any such proceeding, communication, or re-
quest shall be transcribed and made a part of
the record available for appellate review.
(g)(1) Compensation shall be paid to attorneys
appointed under this subsection
1
at a rate of not
more than $125 per hour for in-court and out-of-
court time. The Judicial Conference is author-
ized to raise the maximum for hourly payment
specified in the
2
paragraph up to the aggregate
of the overall average percentages of the adjust-
ments in the rates of pay for the General Sched-
ule made pursuant to section 5305
3
of title 5 on
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