* This matter is being decided by a quorum, 28 U.S.C. 46(d). IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 00-20540

IN RE DAVID EARL GIBBS,

Movant

Motion for an order authorizing the

United States District Court for the Southern

District of Texas, Houston Division, to consider

a successive habeas 28 U.S.C. § 2254 application

August 15, 2000

Before KING, Chief Judge, and HIGGINBOTHAM, Circuit Judge. *

PATRICK E. HIGGINBOTHAM; Circuit Judge:

David Earl Gib bs seeks authorization to file a successive

petition for a writ of habeas corpus in the United States District

Court for the Southern District of Texas, contending that his right

to file a successive federal writ of habeas corpus should be

measured by the cause and prejudice standard in place until April

26, 1996, the effective date of the AEDPA. We reject this

argument, refuse permission to file the petition, and refuse to

stay his execution now scheduled for August 23, 2000.

I1 Gibbs v. Sta te , 819 S.W.2d 821 (T E X

. C RIM

. A PP

. 1991), cert.

denied , 502 U.S. 1107 (1992).

2 Gibbs v. Johnson

, 134 F.3d 253 (5th Cir. 1998), cert. denied

, Gibbs v. Johnson , 119 S.Ct. 1501 (1999).

2 In 1986 a jury in Montgomery County, Texas, convi cted Gibbs

a nd sentenced him to death for the rape and murder of Marietta

Bryant in the course of a burglary of a habitation. The conviction

and sentence have been affirmed both on direc t appeal and

collateral review by th e Texas Court of Criminal Appeals. 1 After

this review Gibbs sought fede ral habeas relief. The federal

district court denied relief, and we affirmed that decision. 2

Gibbs seeks to file a second petition for federal habeas to

raise a single claim, not raised in his first federal petition:

A juror’s false statement, during voir dire, that she had

never been the victim of a violent crime, when in fact

she had been brutally kidnaped, assaulted, rape d, and

robbed, deprived Mr. Gibbs of his right to a fair trial

and impartial jury in violation of the Sixth, Eighth, and

Fourteenth Amendments to the United States Constitution.

II

Our question is whether Gibbs can escape the strictures of 28

U.S.C. § 2244(b)(2), which provides that:

(2) A c laim presented in a second or successive

habeas corpus application under section 2254

that was not presented in a prior application

shall be dismissed unless –

(A) the applicant shows that the claim relies

on a new rule of constitutional law, made

retroactive to cases on collateral review

by the Supreme Court, that was previously

unavailable; or

(B)(i) the factual predicate for the claim

could not have been dis c overed3 That standard is but for a constitutional error no reasonable

fact finder would have found him guilty. (2)(B)(ii).

4 “Some objective factor external to the defen s e impeded

counsel’s efforts” to raise the claim earlier and “actual prejudice

result[ed] from the errors of whic h he complained.” Or, in the

absence of cause, “a fundamental miscarriage of justice would

result from a failure to entertain the claim” as “when a

constitutional violation probably has caused the conviction of one

innocent of the crime.” 499 U.S. at 493-94.

3 previously through the exercise of due

diligence; and

(ii) the facts underlying the claim, if

proven and viewed in li ght of the

evidence as a whole, would be

sufficient to establish by clear and

convincing eviden ce that, but for

constitutional error, no reasonable

factfinder would have found the

applicant guilty of the unde r lying

offense.

Gibbs co ncededly cannot meet (2)(B)(ii). He urges that

because application of AEDPA’s substantive standards “would have an

impermissibly retroactive effect on him,” the pre-act standards for

successive writs of McCleskey v. Zant

, 499 U.S. 467 (1991), should

control. He argues that he could not reasonably have anticipated

when filing his first federal habeas petition that his claim of

juror bias would be barred by the later- enacted AEDPA standard of

innocence. 3 His argument continues that he could make a prima

facie showing of cause and prejudice under the McCleskey standard. 4

The cause requirement assertedly is met by a combination of

three factors: the practice then prevalent of setting an execution

date to provide incentive to a prisoner to proceed with efforts to5 The use of execution dates in the abse n ce of time limits to

create incentives for habeas petitions in death cases had its

problems. But it did not foreclose Gibbs a reasonable opportunity

to develop and file his pleadings. For example, The Court of

Criminal Appeals affirmed the conviction and sentence on September

18, 1991, the Supreme Court denied certiorari in Gibbs’s direct

appeal on February 24, 1992, and Gibbs filed his first application

for a state writ of habeas corpus on April 16, 1992. Indeed, the

Court of Criminal Appeals denied relief on Gibbs’s first writ of

habeas corpus on October 12, 1994, some seven months before the

days of June 1995 where he argues lack of time placed him in such

a difficult circum stance. It bears emphasis that a focus on the

time between a prisoner’s filing and the execution date under the

system then in place leads attention away from the reality that a

prisoner u nder sentence of death had little incentive to file

absent an execution date and years sometimes passed without court

activity. We focus today on a short time span in the summer of

1995, but that w as over nine years after Gibbs was convicted and

sentenced to death.

4 o btain habeas relief, 5 the federal requirement that a petitione r

cannot bring a petition with both exhausted and unexhausted claims,

and the ref usal of Texas courts to entertain a petition if a

request for federal relief is then pending.

Texas responds that we rejected essentially the same effort to

escape the AEDPA in G raham v. Johnson

, 168 F.3d 762 (5th Cir.

1999), cert. denied

, 120 S.Ct. 1830 (2000); that Gibbs cannot

demonstrate that he has been whipsawed from a timely assertion of

the claim of juror bias in his effort to escape the innocence

requirement; that he cannot meet the cause and prejudice standard

of McCleskey in any event. Finally, Texas urges that the claim is

procedurally defaulted and has been decided against Gibbs on its

merits.

III5

We turn to the factual setting of Gibbs’s claim, starting with

the circumstances surrounding the filing of the first federal

habeas petition.

First, the dates of filing, keeping in mind that Gibbs was

tried and convicted in 1986. With execution scheduled for July 18,

1995, Gibbs filed his second state habeas petition on July 5, 1995.

The Texas Court of Criminal Appeals denied the application on July

15, 1995. Gibbs filed his first federal petition on July 17, 1995,

and execution was stayed on that day. Gibbs urges that on July 13,

1995, with Gibbs facing the execution date of July 18, 1995, and

approximately a week after filing a second state habeas

application, juror Lois Webster told Gibbs’s counsel that she had

been raped while a teenager. Counsel was then preparing Gibbs’s

federal petition in anticipation of a state denial and only four

days remained before the execution date, including a Saturday and

Sunday.

Texas replies that the claim could have been made in this

second state petition. The contention is that the state courts

found that counsel knew the factual basis for the juror bias claim

as early as June 8, 1995 (when habeas counsel interviewed the juror

and her husband) and at the latest on June 29, 1995, when the juror

signed an affidavit, but counsel filed a state habeas claim on July

5 without including it. The state continues that Gibbs could also

have amended his state petition, pointing out that the state trial

judge did not enter its findings on the habeas petition until July

14. Moreover, the state says, Gibbs did not return to state court6

for three years and eight months, days before a then scheduled

execution – with the juror claim in his pocket all the while.

Gibbs rejoins that the Texas Court of Cri minal Appeals

implicitly rejected the factual finding by the state habeas trial

court that petitioner’s counsel had knowledge as early as June 8 of

the factual basis of the claim of juror bias. Gibbs points to the

conclusion of the Court of Criminal Appeals that the state rules

for filing a succ essive writ were met. The contention is that

under state law the successive petition could not have been filed

if the factual predicate of its claims were discoverable at the

time the first petition was filed, July 5, 1995.

Whether counsel had the factual predicate on June 8 or June 29

aside, the state hab eas court concluded that counsel “made no

attempt to investigate the matter further until February 26, 1999

. . . and presented no reasonable justification for the three year

and eight month delay between his discovery of the underlying basis

for this [claim] and his first attempt to investigate.” This

finding i s not challenged. The lapse of time it finds spans the

April 25, 1996, effective date of the AEDPA. It led to the holding

by the Texas Court of Criminal Appeals that Gibbs’s third state

writ was defaulted under the common law abuse of writ doctrine.

The record does not disclose if efforts to obtain the information

were made in the nine preceding years. Apparently the factual

predicate for the claim of juror bias came only from the

information the juror volunteered in 1995.

IV7

Gibbs’s effort to escape the conceded bar of the AEDPA rests

on a premise that he was justified in relying upon the law then in

place

– specifically, that the claim would not have been barred by

the law defining abuse of t he writ in place before the statute

became effective. The effort must accept that the abuse of writ

rules had been tightened considerably before the AEDPA became

effective. One need not gainsay the possible difficulties to a

petitioner of the combined effects of the two forum rule and the

doctrine of complete exhaustion to reject the contention that their

hindrance would he re have constituted good cause under the preAEDPA law.

We are not persuaded that counsel w as justified in omitting

the claim of juror bias because he thought the law in effect would

allow him to do so. To the point and at the least, he was at such

grave risk in doing so that AEDPA cannot fairly be said to have

upset his settled expectations. In the words of G raham

, “The focus

of our retroactivity inquiry should be on the detrimental reliance

[the petitioner] placed on pre-AEDPA law and the extent to which

statutory changes upset his settled expectations.” 168 F.3d at

787.

Texas urges that even if he could not have included the claim

in his second state filing, the two forum rule and the requirement

of complete exhaustion did not prevent Gibbs from dismissing his

federal habeas petition without prejudice after obtaining the stay

from the federal district court, investigating the claim, and

returning to state court; that Gibbs was assured of time to do so8

because a new execution date could not have been scheduled inside

of thirty days. We agree.

We also agree that after obtaining the stay of execution in

July 1995, Gibbs could have added the claim of juror bias. This

would have either resulted in a dismissal of the then mixed

petition, or a decision on its merits. If dismissed by the federal

courts, returning to state court would not have increased his risk

of being found to have abused the state writ. To the contrary, it

would likely have reduced it. At the least, the risk of a finding

of writ abuse woul d not have been increased. Equally, he would

have lost little that he ever had on return to federal court, a

return available long before AEDPA became effective the following

April. Yet, Gibbs pocketed the claim and the affidavit for over

t hree years. As it was, the bar to the federal door aside, the

Texas Court of Criminal Appeals found that Gibbs abused its state

process by withholding the claim for those years.

That Gibbs’s di fficulties in presenting the claim of juror

bias at t his late date are the product of a justifiable reliance

upon the law before April 26, 1996, when AEDPA became effective, is

not credible.

V

The state courts also rejected Gibbs’s claim of juror bias on

its merits. After an evidentiary hearing, a state trial court

accepted the testimony of the juror that her earlier experience as

a rape victim had been suppressed in her mind; that she honestly

responded to the juror questionnaire form and was not biased9

against the defendant. Gibbs urges that we should give no

deference to this factfinding by the state court because the trial

judge who entered the finding of fact on behalf of the Texas Court

of Criminal Appeals did not conduct the evidentiary hearing.

Rather, the trial judge relied upon the transcript of hearings

conducted by another judge. We have also reviewed those

transcripts and find no reason there or otherwise to not accord

appropriate deference to the findings of the state court. We

conclude then t hat even if the AEDPA were not applicable, and we

believe that it is, Gibbs cannot show the actual prejudice required

of a successive writ before AEDPA, even if he had good cause, which

he did not.

The petition to file a successive writ is denied and the

request that the execution scheduled for August 23, 2000 be stayed

is denied.