### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 12-70010

BEUNKA ADAMS, Petitioner–Appellee
v. RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION, Respondent–Appellant

________________________________________________________________________

No. 12-40436

In re: BEUNKA ADAMS,
Petitioner
Consolidated with 12-70011 BEUNKA ADAMS, Petitioner–Appellant

v. RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION, Respondent–Appellee U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D April 25 , 20 12 Lyle W . Cayce Clerk Case: 12-70010 Document: 00511834635 Page: 1 Date Filed: 04/25/2012Nos. 12-70010, 12-40436, 12 -70011

Appeals from the United States District Court for the Eastern District of Texas

Before KING, ELROD, and HAYNES, Circuit Judges. KING, Circuit Judge: Beunka Adams was convicted of capital murder and sentenced to death in Texas state court. He is scheduled to be executed on April 26, 2012. On April 13, 2012, Adams filed a motion in the district court pursuant to Federal Rule of Civil Procedure 60(b)(6), seeking relief from the district court’s judgment denying his initial federal habeas corpus petition. He also filed a motion for a stay of execution. Adams v. Thaler , No. 5:07-cv-00180 (E.D. Tex.). That same day, in a separate dis trict court action, Adams filed a second-in-time federal habeas petition and a motion for a stay of execution. Adams v. Thaler , No. 5:12- cv-00036 (E.D. Tex.). On April 23, 2012, the district court granted Adams’s motion to stay his execution pending the court’s disposition of Adams’s Rule 60(b)(6) motion. In the separate action related to Adams’s second-in-time federal habeas petition, the di s t rict court transferred the case to this court, in order for us to determine in the first instance whether Adams’s habeas petition is successive. On April 24, 2012, Rick Thaler filed a motion to vacate the stay of Adams’s execution. For the following reasons, we VACATE the district court’s grant of a stay of execution;

we DISMISS Adams’s successive federal habeas peti t i o n ; and we DENY his motion for a stay of execution.

2 Case: 12-70010 Document: 00511834635 Page: 2 Date Filed: 04/25/2012Nos. 12-70010, 12-40436, 12 -70011 I. FACTUAL AND PROCEDURAL BACKGROUND Beunka Adams (“Adams”) was convicted of capital murder and sentenced to death in Texas state court. The Texas Court of Criminal Appeals (“TCCA”) 1 affirmed Adams’s conviction and sentence on direct appeal , and the Supreme Court denied review. Adams v. State , No. AP-75023, 2007 WL 1839845 (Tex. Crim. App. June 2 7, 2007), cert. denied 552 U.S. 1145 (2008). Adams filed a state habeas application, in which he asserted various claims, including several ineffective assistance of counsel claims. After an evidentiary hearing, the state trial court entered findings of fact and conclusions of law recom m e n di n g the denial of Adams’s habeas application. The TCCA adopted these findings of fact and conclusions of law and denied Adams’ s application. Ex parte Adams , No. WR-68066-01, 2007 WL 4127008 (Tex. Crim. App. Nov. 21, 2007). Adams filed a second state habeas application in 2008, asserting two new claims related to the jury instructions given during the sentencing phase of his trial. Specifically, he asserted that he was deprived of his Sixth and Fourteenth Amendment right s to effective assistance of counsel by trial counsel’s and appellate counsel’s failure to ensure that the jury was properly instructed in the punishment phase of his trial. While the sub s e qu e n t state application was 2
p e nding, Adams filed a federal habeas petition asserting ten claims for r e l i e f, including the two claims presented in his second s t a t e h abeas application. Adams simultaneously filed a motion to stay and abate the federal proceedings

The fac ts of this cas e are se t for th in our pr evious opi nion. See Ada ms v. Tha le r , 421 1 F. App ’x 322, 324- 26 (5t h Cir. 2011) (af fir mi ng the judgm ent of t h e d i s tri ct cour t denyi ng Adam s’ s fed eralhab eas c orp us pet itio n).

Adam s’ s unde rlying clai m is that the jury ins tru cti ons in the puni shm ent phas e of 2 his tri al we re uncon st itut ional, beca use the se cond Texas sp ecia l iss ue did not enco mp ass the cons tit utio nal level of intentrequir ed by Enmun d v. Flori da , 458 U. S. 782 (198 2), and Ti son v. Ar izona , 481 U. S. 137 (198 7), for the im pos itio n of the dea th penalty. Adam s cont ende d that his tri al couns el wa s inef fec tive for fai ling to objec t to the jury ins tru cti ons and that his app ellat e couns el wa s inef fec tive for fai ling to rais e the cons tit utio nal iss ue on dir ect app eal.

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until the TCCA ruled on the second application. Th e federal district court granted the motion. A few months later, the TCCA found that the two claims in his subsequent state habeas application were procedurally barred, specifically that they did “not satisfy the requirements o f Article 11.071, Section 5,” of the Texas Code of Criminal Procedure. Therefore, the TCCA dismi s s e d the application as an “abuse of the writ.” Ex parte Adams , No. WR-68066-02, 2009 WL 1165001 (Tex. Crim. App. Apr. 29, 2009). Thereafter, the distri c t c o urt denied Adams’s federal habeas petition, dismissing the two claims th a t A d a m s presented in his second state habeas application and denying the re m a i n i n g claims. Adams v. Thaler , No. 5:07-cv180, 2010 WL 2990967 (E.D. Tex. July 26, 2010). The district court determined that Adams had procedurally defaulted his ineffective assistance of t rial and appellate counsel claims pursuant to Coleman v. Thompson , 501 U.S. 722, 750 (1991). Coleman held that “[i]n all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims i s barred unless the prisoner

can demonstrate cause for the default a n d a c t u al prejudice as a result of the

a l l e g e d vi olation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice

. ” I d

. B e cause the TCCA dismissed these claims as an “abuse o f t he writ”—an independent and adequate state procedural ground—the district court found that the claims were p r o cedurally defaulted. Furthermore, the court ruled that Adams coul d n o t demonstrate “cause” to excuse the proced ural default, because, pursuant to Coleman , the i neffectiveness of state habeas counsel in failing to raise these claims in Adams’s first state habeas application did not constitute “cause.” See id. at 752-53. The court granted Adams a certificate of appealability (“COA”) on eleven issues: on the ten claims he presented in his petition and on the issue of whether his two claims were procedurally barred. We affirmed the district

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court’s judgment denying Adams’s petition. Adams v. Thaler , 421 F. App’x 322 (5th Cir. 2011), cert. denied 132 S. Ct. 399 (2011). Adams recently f

il e d anoth er s ub s e qu e nt h ab e a s ap p lication in state court, which the TCCA dismissed as an abuse of the writ. Ex parte Adams , No. WR68066-03, 2012 WL 476538 (Tex. Crim. App. Feb. 15, 2012). On March 13, 2012, Adams petitioned the Supreme Court for review of that dismissal and also filed

a motion for a stay of execution. On February 27, 2012, Adams filed in our court

a motion for authorization to file a successive petition, but withdrew that motion

on March 23, 2012, several days after the Supreme Court issued its decision in Martinez v. Ryan , 132 S. Ct. 1309 (2012). In Martinez , the Supreme Court noted that Coleman held that “an attorney’s negligence in a postconviction proceeding does not establish cause” to

excuse procedural default. Id. at 1319. The Court recognized that Coleman “left
open . . . a question of con s ti t u t i o n a l law: whether a prisoner has a right to effective couns e l in collateral proceedings which provide the first occasion to raise a claim of ineffective assistance at trial.” Id. at 1315. However, the Court did not resolve this constitutional question. Id. Instead, the Court in Martinez “qualifie[d] Coleman by recognizing a narrow exception: Inadequate assistance of counsel at initial-review collateral proceedings may establish cause for a 3 prisoner’s proc e d u ral default of a claim of ineffective assistance at trial.” Id. The Court summarized its narrow holding as follows: Where, under state law, claims of ineffective ass i s t a n c e of trial counsel must be raised in an initial-review collateral proceeding, a procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance a t trial if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective.

The Court def

ined an “ini t i a l

- r eview coll ater al pr oce edi ng” as “th e fir st des ignate d 3 pr oce edi ng for a pri so ner to rais e aclaimof inef fec tive as sis tanc e at tri al. ” Ma rtinez , 132 S. Ct. at131 5, 1317. 5 Case: 12-70010 Document: 00511834635 Page: 5 Date Filed: 04/25/2012Nos. 12-70010, 12-40436, 12 -70011

Id. at 1320. The Court characterized its decision as an “equitable ruling,” and not a constitutional ruling. Id. at 1319. O n April 13, 2012, Adams filed a motion in the federal distri c t c o u rt pursuant to Federal Rule of Civil Procedure 60(b)(6), seeking r e lief from the district court’s judgment denying his federal habeas petition. Adams v. Thaler , No. 5:07-cv-00180 (E.D. Tex.). In his Rule 60(b)(6) motion, Adams stated that the distri c t court relied on Coleman to conclude that Adams’s ineffective assistance of trial and appellate counsel claims were procedurally defaulted and that ineffective assistance of state post-conviction counsel could not constitute

cause to excuse the default. Adams asserted that, since the district court’s judgment, the Supreme Court had decided Martinez , which created an exception to Coleman ’s holding that ineffective assistance of state habeas counsel cannot constitute cause to excuse proce d u r a l default. Adams argues that Martinez constitutes “extraordinary circumstances” entitling him to Rule 60(b)(6) relief. Adams also filed a motion for a stay of execution pending disposition of his Rule 60(b)(6) motion. Also on Ap ril 13, 2012, Adams filed a second-in-time federal habeas petition i n t h e district court, a motion for a stay of execution, and a motion to proceed in forma pauperis

. Adams v. Thaler , No. 5:12-cv-00036 (E.D. Tex.). Adams argued that his second-in-time federal habeas petition was not a “success ive” petition and therefore that the court had jurisdiction to entertain it without our prior authorization. In his petition, Adams asserted that, given Martinez , he could now demonstrate cause for h i s procedural default and was therefore entitled to an adjudi c a t i o n of his ineffective assistance of trial and appellate counsel claims. In his motion for a stay of execution, Adams argued 4

Altho ugh we need not, and do not, add res s the im pac t of Ma rtinez on t h e Texas 4 habea s l a n ds cap e, we note that Texas doe s not requ ire a def enda nt to rais e an inef fec tive ass ist ance of tri al couns el clai m only in st ate habeas pr oce edi ngs, see Lopez v. Texas , 343 S. W. 6 Case: 12-70010 Document: 00511834635 Page: 6 Date Filed: 04/25/2012Nos. 12-70010, 12-40436, 12 -70011

that the district court “should stay the execution and set a briefing schedule so the parties and the Court can meaningfully examine Martinez’s implications.” On April 19, 2012, Rick Thaler (“Director”), Director of the Texas Department o f Criminal Justice, filed a response in opposition to Adams’s motions for relief from judgment and for stay of execution. The Director argued that the district court should d e ny A d a ms’s Rule 60(b) motion because the Supreme Court’ s d e c i s i o n in Martinez was simply a “change in decisional law after entry of judgment” and does not constitute “extraordinary circumstances.” The Director also filed a motion to dismiss for lack of jurisdict i on Adams’s second-in-time federal habeas petition. The Director contended that it was “undoubtedly [a] successiv e” p e tition because his first federal habeas petition “was dismissed with p re j u dic e ch all e n gin g th e s a m e c o nviction” and “it contained the exact claims Adams now presents the [district court.]” The Director argued that, because Adams did not receive prior authorization from the court of appeals, t he district court should dismiss Adams’s successive petition. See 28 U.S.C. § 2244(b)(3)(A). On April 23, 2012, the district court granted Adams’s motion to stay his execution pending the court’s disposition of Adams’s Rule 60(b)(6) motion. In a one-page order, the court stated, “Having considered the circumstances alleged and authorities cited in the motion [for a stay of execution], the Court finds that it is well-taken and it will be granted.” The court did not rule on Adams’s Rule 60(b)(6) motion. In the separate action regarding Adams’s second -in-time habeas petition, the court issued an order pursua n t to 28 U.S.C. § 1631 transferri n g the case to this court, for us to determine in the first instance whether Adams’s petition is successive. The c o urt explained that “[w]hether

3d 137, 143 (Tex. Crim

. App

. 2011) , and that inef fec tive ass ist ance clai ms (p art icula rly thos e, lik e Adam s’ s clai m, involving tri al couns el ’ s fai lure to objec t to jury ins tru cti ons ) are oft en brou ght on dir ectap peal, wi th mixed suc ces s. 7 Case: 12-70010 Document: 00511834635 Page: 7 Date Filed: 04/25/2012Nos. 12-70010, 12-40436, 12 -70011

Adams’s current application is a second or successive petition as those terms are defined in 28 U.S.C. § 2244 is a close case, and in light of that statute the most efficient and economical approach to answering that question is to allow the United States Court of Appeals for t h e Fifth Circuit to make the initial determination.” On April 24, 2012, the Director filed a motion to vacate the stay of Adams’s execution. The Director argued that the district court improperly granted a stay of execution because Adams’s underlying claims have no m e ri t

. Furthermore, he argued that the district court improperly granted a stay of execution because it is not “reasonably likely [tha t] Adams[’s] motion justifies relief from judgme n t , ” because the Martinez decision does not constitute extraordinary circumstances. Therefore, the Director asserted that “Adams cannot prove that his pending Rule 60(b)(6) motion would provide a sufficient b a s i s f o r a stay.” The Director also fil e d a response in opposition to the district court’s order transferring Adams’s second-in-time habeas petition to this court. The Director argued that the district court erroneously transferred the petition to us, as the district court should have dismissed the petition as an unauthorized successive petition. The Director assert ed that we should dismiss Adams’s successive petition, as it is barred under 28 U.S.C. § 2244(b)(1). Finally, on April 24, 2012, Adams ap p e a l e d the district court’s transfer order, and he followed that up with a motion, filed on April 25, 2012, asking this court to establish a briefing schedule on the question whether his second-in-time habeas petition is successive. In the alternative, he asks this court to hold that his petitio n i s n o t s u ccessive and to remand it to the district court for consideration. He also asks for a stay of execution. II. DISCUSSION A. Stay of Execution 1. Standard of Review

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We review a district court’s grant of a stay of execution for abus e of discretion. Delo v. Stokes , 495 U.S. 320, 322 (1990) (“The District Court abused its discretion in granting a stay of execution.”); Lackey v. Scott , 52 F.3d 98, 100 (5th Cir. 1995). The Supreme Court h a s s t a t ed that a “stay of execution is an equitable remedy.” Hill v. McDonough , 547 U.S. 573, 584 (2006). A stay of execution “is not available as a matter of right, and equity must be sensitive to the State’s strong interest i n enforcing its criminal judgments without undue inference from the federal courts.” Id. (citations omitted). “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 (2009) (ci t a tions omitted). In deciding whether to grant a stay of execution, the district court was required to consider four factors: (1) whe t h e r the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substa n t i a l ly injure the other parties interested in the proceeding; and (4) where the public interest lies. Id. at 434 (quoting Hilton v. Braunskill , 481 U.S. 770 , 7 7 6 ( 1 9 87)); see also Buxton v. Collins , 925 F.2d 816, 819 (5th Cir. 199 1). 2. The District Court Improperly Granted A Stay In granting Adams’s motion for a stay of execution, the district court did not rule on Adams’s Rule 60(b)(6) motion. Nor did the court explicitly address the merits of Adams’s Rule 60(b)(6) motion. However, as explained above, in order to grant a stay of execution, the district court was required to consider four factors, including that “the stay applicant has made a strong showing that he is likely to succeed on the merits.” Nken , 556 U.S. at 434. Therefore, in granting the st ay , t h e district court made an implicit determination that it was reasonably likely that Adams ’ s R u l e 60(b)(6) motion justified relief from judgment. Thus, in order to assess whether the district court properly exercised

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its discreti o n i n granting a stay, we determine whether Adams has shown a likelihood of success on the merits of his Rule 60(b)(6) motion. As a prelimin a ry m atter, we determine whether the district court had jurisdiction to rule on Adams’s Rule 60(b)(6) motion. In Gonzalez v. Crosby , 545 U

. S

. 524 (2005), the Supreme Court stated that a Rule 60(b) motion does not contain a habeas corpus “claim,” and thus should not be c o n s trued as a successive petition, when the motion “attacks, not the substance of the federal court’s resolution of a claim on the merits, but some defect in the integrity of the federal habeas proceedings.” Id

. a t 532 (footnote omitted). Specifically, the Court held that a petitioner does not make a “habeas corpus claim

. . . when he

m e rely asserts that a previous ruling which precluded a merits determina t i o n

was in error—for example, a denial for such reasons as failure to exhaust, procedu r a l d efault, or statute-of-limitations bar.” Id. at 532 n.4. In his Rule 60(b)(6) motion, Adams challenges the district court’s determination that h i s claims were procedurally defaulted. Thus, Adams’s Rule 60(b)(6) motion is not to be construed as an improper successive habeas petition and is properly before the district court. See Williams v. Thaler , 602 F.3d 291, 3 0 5 ( 5 t h C i r. 2010) (noting that the court had jurisdiction to consider petitioner’s Rule 60(b) motion where petitioner challenged the district court’s ruling on procedural defau lt); Rocha v. Thaler , 619 F.3d 387, 399 n.26 (5 th Cir. 2010) (same). Next, in order to determine whether the district court properly entered a stay of execution, we assess whether Adams has demonstrated a likelihood of success on the merits of his Rule 60(b)(6) motion. Pursuant to Federal Rule of Civil Proced u re 60(b)(6), a court may reopen a final judgment when a party shows “any other reason that justifies relief.” “We have interpreted Rule 60(b)(6)’s ‘any other reason’ l a n guage to mean any other reason than those contained in the preceding five enumerated grounds of Rule 60(b).” Rocha , 619 F.3d at 400. “While Rule 60(b)(6) is commonly referred to as a ‘grand reservoir

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of equitable power to do justice,’ the rule is only invoked in ‘extraordinary circumstances.’” Id. (citation omitted); see also Gonzalez , 545 U.S. at 535 (“[O]ur

cases have r e qu i r e d a movant seeking relief under Rule 60(b)(6) to show ‘extraordinary circumstances’ justifying the reopening of a f i n al judgment.”) (quoting Ackermann v. United States , 340 U.S. 193, 199 (1950)). The Supreme Court has stated that “[s]uch circumstances wi l l rarely occur in the habeas context.” Gonzalez , 545 U.S. at 535. In contending that “extra o r di n ary circumstances” exist to warrant Rule 60(b)(6) relief, Adams first points to the Supreme Court’s decision in Martinez, which was issued after the district court’s judgment. He asserts that Martinez

re p r e s e n t s a “jurisprudential sea change” in federal habeas corpus law, recognizing an excep tio n to Coleman’s holding that ineffective assistance of postconviction counsel cannot constitute cause for procedural default. Also, Adams points to the “capital nature of the case and the equitable i m p e r ative that the true merit of the cause be heard” as factors that, when combined with Martinez , constitute “extraordinary circumstances” and warrant Rule 60(b)(6) relief. Our precedents h o l d t h a t “[a] change in decisional law after entry of judgment does not constitute exceptional circu m s t anc e s an d i s not alone grounds for relief from a final judgment” under Rule 60(b)(6). Bailey v. Ryan Stevedoring Co. , 894 F.2d 157, 160 (5th Cir. 1990) (citations omitted); see also Batts v. TowMotor Forklift Co. , 66 F.3d 743, 747-48 (5th Cir. 1995). We have held that “[t]his rule applies with equal force in habeas proc e e din g s un der” th e Antiterrorism and Effective Death Penalty Act (“AEDPA”). Hernandez v. Thaler , 630 F.3d 420, 430 (5th Cir. 2011); see Hess v. Cockre l l , 281 F.3d 212, 216 (5th Cir. 2002) (“Under

our precedents, changes in decisional law

. . . do not constitute the ‘extraordinary circumstances’ required for granting Rule 60(b)(6) relief.

. . . The dicta in Batts suggesting that the rule for changes in decisional law might be different in the

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habeas corpus context because finality is not a concern is now flatly contradicted by, among other things, AEDPA.”). Indeed, in Gonzalez , the S u preme Court concluded that a change in decisional law, concerning the interpretation of AEDPA’s statute of limitations, after the entry of the district court’s judgment dismissing the habeas petition did not constitute “ e xt r a o rdinary circumstances” under Rule 60(b)(6). The Court explained that the district court’s “interpretation was by all appearances correct under the Eleventh Circuit’s then-prevailing interpretation of [A E D PA] .” 545 U.S. at 536. The Court stated that “[i]t is hardly extraordinary” t h a t, subsequent to the district co u rt ’ s judgment, the Supreme “Court arrived at a different interpretation.” I d

. The Court explained that “not every interpretation of the federal statutes setting forth the requirements for habeas provides cause for reopening cases long since final.” Id. In Hernandez v. Thaler , 630 F.3d 420 (5th Cir. 2011), we found that the district court properly dismissed, under thencontrolling precedent, petitioner’s habeas petition as barred under the AEDPA statute of limitations. Id. at 429. We concluded that the Supreme Court’s later change in law regarding the calculation of AEDPA’s limitations period—which would have rendered petitioner’s h abeas petition timely—did not constitute “extraordinary circumstances.” Id. at 430. We reasoned that “[w]ell-settled precedent dictates that [petitio n er] m ay not use Rule 60(b)(6) to claim the benefit of the Supreme Court’s decision in Jimenez .”Id. Similarly, in the present case, in denying Adams’s initial federal habeas petition, the district court correctly det e rmined that Adams’s claims were proce d urally defaulted pursuant to the then-prevailing Supreme Court precedent of Coleman . The Supreme Court’s later decision in Martinez , which creates a narrow exception to Coleman ’s hol di n g r e garding cause to excuse procedural default, does not constitute an “extraordinary circumstance” under Supreme Court and our precedent to warrant Rule 60(b)(6) relief. See Gonzalez , 12 Case: 12-70010 Document: 00511834635 Page: 12 Date Filed: 04/25/2012Nos. 12-70010, 12-40436, 12 -70011

545 U.S. at 536; Ba i ley , 894 F.2d at 160. The Martinez Court’s crafting of a narrow, equitable exce p t i o n to Coleman ’s holding is “hardly extraordinary.” G onzalez , 545 U.S. at 536; see also Martinez , 132 S. Ct. at 1320 (“The rule of Colemangoverns in all but the limited circumstances recognized here.”). Because the Martinez decision is simply a change in decisional law and is “not the kind of extraordinary circumstance that warrants relief under Rule 60(b)(6),” Adams’s 60(b)(6) motion is without merit. Hernandez , 630 F.3d at 429. Because Adams has not made a showing of a likelihood of success on the merits of his Rule 60(b)(6) motion, the district court abused its discretion in granting

a stay of his execution pending the r esolution of this motion. We therefore vacate the district court’s grant of a stay of Adams’s execution. B. The District Court’s Transfer of Adams’s Successive Habeas Petition The district court transferred Adams’s second-in-time f e deral habeas petition and accompanying motion for a stay of execution to this court so that we could determine in the first instance whether his petition is a “second or successive” petition under 28 U.S.C. § 2244. We first must consider whether we have jurisdiction over this case. See Martin v. Halliburton , 618 F.3d 476, 481 (5th Cir. 2010) (“We have jurisdiction to determine our own jurisdiction.”) (citations omitted). A threshold question in determining whether we have jurisdiction is whether the district court had the authority to transfer the case to us. The district court transferred the case to us pursuant to 2 8 U

. S

. C

. § 1631. Under this statute, entitled “Transfer to cure want of jurisdiction,” when a civil action is filed in a court and “that court finds t h a t there is a want of jurisdiction ,” the court “shall, if it is in the intere s t o f justice, transfer such action or appeal to any other such court in which the action

or appeal could h ave been brought at the time it was filed.” 28 U.S.C. § 1631 (emphasis added). Therefore, in order for the district court to h ave had the

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authority to transfer the case to us pursuant t o t he statute, the district court must have lacked jurisdiction over the action. The question of whether the district court lacked jurisdiction over Ad ams’s second-in-time federal habeas petition depends on whether Adams’s petition is

a “second or successive” petition within the meaning of 28 U.S.C. § 2244. If Adams’s petition is successive, then the district court did not have jurisdiction to consider the petitio n b e c a u s e Adams did not obtain our prior authorization pursuant to 28 U.S.C. § 2244(b)(3)(A). See Burton v. Stewart , 549 U.S. 147, 152 (2007). Therefore, we examine Adams’s petition to determine wh ether it is successive. A E DPA does not define “second or successive.” The Supreme Court h a s stated that the term “tak e s its full meaning from [the Court’s] case law, including decisions predating the enactment of [A E DPA].” Panetti v. Quarterman , 551 U.S. 930, 943-44 (2007). “The Court has declined to interpret ‘second or successive’ as referring to all § 2254 application s f i l e d second or successively in time, even when the later filings address a state-court judgment already challenged in a prior § 2254 application.” I d

. at 944. For instance, in Slack v. McDaniel , 529 U.S. 473 (2000), the Court concluded th a t “ [ a] habeas
p e t i t ion filed in the district court after an initial habeas petition w a s unadjudicated on its merits and dismissed for failure to exhaust state remedies is not a second or successive petition.” Id. at 485-86; see also Panetti , 551 U.S. at 944-46 (holding that “a § 2254 application raising a Ford -based incompetency claim filed as soon as that claim is ripe” is not a successive petition); Stewart v. Martinez–Villareal , 523 U.S. 637, 643-45 (1998) (holding that a second-in-time federal habeas petition is not “successive” when it only raises a Ford claim that was previously dismissed as premature). Ad a m s a rgues that his second-in-time habeas petition is not successive because “the Supreme Court ha s c onsistently determined that a petition filed

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after [a] technical procedural b a rrier is removed is not ‘second or successive.’” Adams argues that his case is similar to the Court’s decisions in Panetti , Slack , and Martinez–Villareal because his two ineffective assistance of counsel claims in his initial federal habeas petition were dismissed on purely “technical” grounds—for procedural def ault. Adams asserts that Martinez has removed this technical barrier to federal habeas review of his claims, and therefore we should not treat his petition as “second or successive.” We rej ect Adams’s argument and conclude that his habeas petition is clearly successive. We have stated that “a later petition is successive when it: 1) raises a claim challenging the petitioner’s conviction or sentence that was or could have been raised in an ea rl i e r petition; or 2) otherwise constitutes an

ab u s e of the writ.” In re Cain , 137 F.3d 234, 235 (5th Cir. 1998) (cita t i o n s omitted); see United States v. Orozco-Ramirez , 211 F.3d 862, 867 (5th Cir. 2000) (finding the In re Cain standard “consistent with the Supreme Court’s views as expressed in” Martinez-Villareal and Slack). In h i s second-in-time habeas petition, Adams raises two claims—ineffective assistance of trial and appellate counsel for failing to ensure the jury was properly instructed in the punishment phase of his trial—that are identical to the two claims presented in his initial federal habeas petition, filed with the di s t rict court in 2009. Thus, pursuant to In re Cain , because Adams has raised claims that w e r e a l r e a dy brought in a prior petition, we must construe his second-in-time habeas petition as successive. 137 F.3d at 235; see also Hernandez , 630 F.3d at 427; In re Flowers , 595 F.3d 204, 205 (5th Cir. 2009) (holding that “[b]e c ause the claims [petitioner] raises in his proposed § 2254 application were or could have been raised in his first § 22 5 4 a p plication,

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which

. . . was dismissed as time- b a rr e d [ , ]

. . . the instant application is successive.”) (citations omitted). 5 Because we conclude that Adams’s petition is successive, the district court did not have jurisdiction to consider the petition. Therefore, we conclude that, to the extent that the petition is construed a s a n a p p lication for a successive petition, the district court correctly transferred th e c a s e to us pursuant to 28 U.S.C. § 1631 and we have jurisdiction to consider that application. However, in his April 25, 2012 motion, Adams disclaims seeking our authorization to file

a successive petition in th e district court, correctly, as he cannot meet the requirements of 28 U.S.C. § 2244(b). Because Adams brings the same two claims in his successive habeas petition as he did in his initial federal habeas petition, Adams’s petition is barred under 28 U.S.C. § 2244(b)(1) (“A claim presented in

a s e c o nd or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed.”). Therefore, the federal 6 courts lack jurisdiction over this petition, and we dismiss Adams’s successive

Ou r conc lus ion that Adam s’ s pet itio n is suc ces sive is cons ist ent wi th the pr e-AED PA 5 “abus e of the wr it” doc tri ne. See Ha rde mo n v. Qu ar term an , 516 F.3d 272, 275 (5t h Cir. 2008) (s tat ing that we “lo ok to pre- AEDPA abus e of the wr it pr incip les in deter mi ning whe ther[a] pet itio n is suc ces sive”) (c itat ion and int erna l quotat ion ma rk s om itt ed) . In Batesv. Whi tley , 1 9 F

. 3 d 1 066 (5t h Cir. 1994) , we st ated that “Rule 9(b) of the Rules Go vernin g § 2254 Proc eedings pr eclu des fed eral revie w of a st ate priso ner’ s se cond fed eral habeas pet itio n if the pet itio n ‘f

ails to allege new or dif fer ent ground s for reli ef and the prior det erm inati on wa s on the me ri ts .’” Id. at 1067 (em phas is add ed)

. We r e aso ned that “[ a] fed eral habeas cour t’s rejec tio n of a pet itio ner’ s cons tit utio nal clai m beca use of st ate pr oce dur al def ault and a fai lure to sho w caus e and pr ejudi ce mus t be regar ded as a det erm inati on on the me rit s in exam ining wh ethe r a sub se quent pet itio n is suc ces sive .” Id. (c itat ion om itt ed)

. Thus, Adam s’ s se cond -intim e p eti tio n c ons tit utes an “abus e o f the wr it. ”

Ass umi ng wi thou t dec idi ng that Adam s may rely on 28 U. S. C. § 2244(b)( 2) as 6 autho ri t y t o fil e this suc ces sive habeas pet itio n, we nevert heles s conc lude that he is not enti tle d to autho rizat ion. Purs uant to 28 U. S. C. § 2244(b)( 2)(A), if a clai m wa s not pr es ente d in a prior habeas cor pus app lica tio n, it “s hall be dis mi ss ed unles s . . . the app lica nt sho ws that the clai m reli es on a new rule of cons tit utio nal law , mad e ret roac tive to cas es on coll ater al revie w by the Sup rem e Court , that wa s pr evious ly unavailab le. ” Ma rtinez d oes not pr ovide a bas is for autho rizat i on unde r § 2244(b)( 2)(A), as the Court ’s dec isi on wa s an “equ itab le rulin g” thatdid not es tabl ish“ a ne w ruleof c ons tit utio nal law .” 132 S. Ct

. at 1319. 16 Case: 12-70010 Document: 00511834635 Page: 16 Date Filed: 04/25/2012Nos. 12-70010, 12-40436, 12 -70011

habeas petition. As there is no basis for a stay, we deny his motion for a stay of execution. III. CONCLUSION For the foregoing reasons, we VACATE the district court’s grant of a stay of execution; we DISMISS Adams’s successive feder al habeas petition; we DENY his motion to set a briefing schedule or, in the alternative, to remand his petition to the distri c t court; and we DENY his motion for a stay of execution. The mandate shall issue forthwith.

17 Case: 12-70010 Document: 00511834635 Page: 17 Date Filed: 04/25/2012