IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-70003

Consolidated with No. 14-70018

STEVEN ANTHONY BUTLER, 

Petitioner - Appellant

v.

WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL 

JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

Respondent - Appellee

Appeals from the United States District Court

for the Southern District of Texas

USDC No. 4:07-CV-2103

Before JOLLY, OWEN, and HAYNES, Circuit Judges.

PER CURIAM:*

Having considered the parties’ briefs and oral arguments, Steven 

Butler’s motions for certificates of appealability and associated responses and 

briefing, and the state and district court’s orders on Butler’s habeas petitions

and Federal Rule of Civil Procedure 60(b) motion, we have determined as 

* 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

April 7, 2015

Lyle W. Cayce

Clerk

 

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follows: 

(1) As urged by the State, we hereby treat Butler’s appellate brief as a 

request for a certificate of appealability (“COA”) from the district court’s 

denial of his Rule 60(b) motion, which sought relief from the district 

court’s previous denial of his Atkins1 claim. See Butler v. Stephens, No. 

4:07-CV-2103, 2014 WL 1248037 (S.D. Tex. Mar. 25, 2014). We GRANT 

a COA on the district court’s denial of Butler’s Rule 60(b) motion. See 28 

U.S.C. § 2253(c). Jurists of reason “could conclude the issues presented 

are adequate to deserve encouragement to proceed further”; additionally,

“any doubt as to whether a COA should issue in a death-penalty case 

must be resolved in favor of the petitioner.” Pippin v. Dretke, 434 F.3d 

782, 787 (5th Cir. 2005) (citation and internal quotation marks omitted).2

1 Atkins v. Virginia, 536 U.S. 304 (2002).

2 In the district court, the parties briefed whether Butler’s Rule 60(b) motion should 

be construed as a second or successive habeas petition under § 2244(b). Although not briefed 

before this court, we address this jurisdictional issue sua sponte. See Bailey v. Cain, 609 F.3d 

763, 765 (5th Cir. 2010). Butler filed his Rule 60(b) motion after the district court denied his 

initial habeas petition, while that petition awaited review in this court. We conclude that

this second-in-time Rule 60(b) motion is not a “second or successive” habeas petition within 

the meaning of § 2244(b). It merely sought reconsideration of the district court’s original 

denial of Butler’s habeas petition based on new proceedings and orders issued by the state 

habeas court and the Texas Court of Criminal Appeals (“TCCA”) after the TCCA expressly 

ordered subsequent state proceedings based upon events that occurred after the district 

court’s original decision. The TCCA ordered the state habeas court to reconsider Butler’s 

petition in light of the recent censure of the expert who testified for the state during Butler’s 

state habeas proceedings. See Leal Garcia v. Quarterman, 573 F.3d 214, 222–24 (5th Cir. 

2009) (listing second-in-time habeas petitions attacking an allegedly “defective habeas 

proceeding” among non-successive petitions, especially where “the purported defect did not 

arise, or the claim did not ripen, until after the conclusion of the previous petition”); In re 

Trotter, 544 F. App’x 392, 393 (5th Cir. 2013) (unpublished) (“An application is not successive 

merely because it follows an earlier application. Rather, an application is successive when it 

raises a claim that was ‘ripe’ at the time the applicant filed his prior application or when the 

application otherwise constitutes an abuse of the writ.” (citing Leal Garcia, 573 F.3d at 220–

22)); cf. Whab v. United States, 408 F.3d 116, 118–19 (2d Cir. 2005) (holding that a secondin-time petition was not a successive petition in part due to the pendency of appellate review 

on the initial petition).

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(2) We GRANT a COA on Claim 2 of Butler’s Amended Petition for Writ of 

Habeas Corpus (“Federal Habeas Petition”), for ineffective assistance of 

trial counsel (“IATC”) in failing to investigate and raise Butler’s mental

state regarding his competence to stand trial and as mitigation evidence

during sentencing. The district court rejected these claims as 

procedurally defaulted before Martinez v. Ryan, 132 S. Ct. 1309 (2012), 

was decided. Reasonable jurists could debate whether Butler may now

show cause and prejudice for the procedural default of Claim 2 under 

Martinez. See id. at 1318–19; Trevino v. Thaler, 133 S. Ct. 1911, 1915 

(2013); see also Newbury v. Stephens, 756 F.3d 850, 871–72 (5th Cir. 

2014), cert. denied, 135 S. Ct. 1197 (Feb. 4, 2015); Escamilla v. Stephens, 

749 F.3d 380, 392 (5th Cir. 2014). The parties should submit 

supplemental briefing addressing the effect of the “uncalled witness” 

rule on these claims. See, e.g., Day v. Quarterman, 566 F.3d 527, 538–

39 (5th Cir. 2009); Woodfox v. Cain, 609 F.3d 774, 808 (5th Cir. 2010).

(3) We DENY a COA on Claim 3 of Butler’s Federal Habeas Petition, that 

his Fourteenth Amendment due process rights were violated because he 

was incompetent to stand trial. Jurists of reason would not debate that 

this claim has been procedurally defaulted. See Slack v. McDaniel, 529 

U.S. 473, 477–78 (2000).

(4) We GRANT a COA on Claim 4 of Butler’s Federal Habeas Petition, that 

the prosecution violated Brady v. Maryland, 373 U.S. 83 (1963), by 

withholding allegedly exculpatory or impeachment evidence related to 

several crimes of which Butler was accused during the punishment 

phase of his trial. Resolving doubts in favor of Butler, reasonable jurists 

could debate whether Butler procedurally defaulted his Brady claims

and “whether the petition states a valid claim of the denial of a 

3

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constitutional right.” Slack, 529 U.S. at 478; cf. Banks v. Dretke, 540 

U.S. 668, 695–96 (2004); Mathis v. Dretke, 124 F. App’x 865, 877 (5th Cir. 

2005) (unpublished). 

(5) We DENY a COA on Claim 5 of Butler’s Federal Habeas Petition, 

for IATC in failing to challenge his confession as involuntary. Jurists of 

reason would not debate the district court’s resolution of this claim. See

Slack, 529 U.S. at 484. Butler failed to show that the actions of law 

enforcement during his arrest and questioning amount to official 

coercion such that his confession was involuntary. See, e.g., United 

States v. Blake, 481 F. App’x 961, 962 (5th Cir. 2012) (unpublished)3

(“While a defendant’s mental condition ‘may be a significant factor in the 

voluntariness calculus, this fact does not justify a conclusion that a 

defendant’s mental condition, by itself and apart from its relation to 

official coercion, should ever dispose of the inquiry into constitutional 

voluntariness.’” (quoting Colorado v. Connelly, 479 U.S. 157, 163–67 

(1986)); see also Carter v. Johnson, 131 F.3d 452, 464 (5th Cir. 1997) 

(“[I]n the absence of any evidence of official coercion, [petitioner] has 

failed to establish that his confession was involuntary.”). Therefore, 

Butler has not made “a substantial showing of the denial of a 

constitutional right” as required for a COA. 28 U.S.C. § 2253(c)(2). 

(6) Finally, we GRANT a COA on Claim 7 of Butler’s Federal Habeas 

Petition, that the trial court failed to properly remedy the prosecution’s

racially-discriminatory exclusion of a juror, in violation of Batson v. 

Kentucky, 476 U.S. 79 (1986). See generally Pippin, 434 F.3d at 787

3 Although Blake is not “controlling precedent,” it “may be [cited as] persuasive 

authority.” Ballard v. Burton, 444 F.3d 391, 401 n.7 (5th Cir. 2006) (citing 5TH CIR. R. 47.5.4).

4

 

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(noting a COA may be granted where issues deserve encouragement to 

proceed and that doubts about whether to issue a COA to a death-penalty 

petitioner must be resolved in his favor).

This case has been extensively briefed and stayed numerous times in 

light of the events transpiring after the district court’s opinion issued. 

Nevertheless, in order to insure that the parties have had a full opportunity to 

brief all matters on which a COA is granted, we will hereby grant a limited, 

abbreviated opportunity for briefing on these matters.4 However, given the 

number of years it has been since Butler was first sentenced, we expressly 

direct the clerk of court to submit any requests for an extension of time to this 

panel for ruling, and we advise the parties that we will not grant any such 

extension without a showing of good cause and exceptional circumstances. 

Any additional briefing Butler wishes to submit must be filed within 

thirty (30) days from the date of this order. The state must respond with any 

additional briefing it wishes to submit by thirty (30) days from the date on 

which Butler’s brief is filed. No reply is permitted.

COA GRANTED IN PART;5 COA DENIED IN PART. 

4 Except as specifically provided herein, to the extent counsel does not find it 

necessary to submit additional briefing because the relevant arguments have been fully made 

in previous briefs, counsel may refer to or incorporate by reference any prior briefs filed in 

this court without further briefing. 

5 The district court granted a COA on its original Atkins ruling, which addressed 

Claim 1 of Butler’s Federal Habeas Petition. See Butler v. Quarterman, 576 F. Supp. 2d 805, 

832 (S.D. Tex. 2008). The State contends that this COA grant is unclear. We construe the 

district court’s original COA grant as encompassing the entire Atkins issue decided in its 

2008 Memorandum Opinion and Order and in its Final Judgment. See, e.g., id. (“The court 

will grant a certificate of appealability as to Butler’s First Claim for Relief.”). Alternatively, 

we grant a COA on Claim 1 of Butler’s Federal Habeas Petition, that the Eighth Amendment 

prohibits Butler’s execution because he is intellectually disabled under Atkins. See id. at 810. 

5

 

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