IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-40032

No. 15-70003

In re: LESTER LEROY BOWER, 

 Movant

Application for Authorization to File 

Successive Petition for Writ of Habeas

Corpus in the United States District Court

for the Eastern District of Texas, Beaumont Division

No.15-70003

LESTER LEROY BOWER, 

 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 Eastern District of Texas

USDC No. 1:92-CV-182

United States Court of Appeals

Fifth Circuit

FILED

May 21, 2015

Lyle W. Cayce

Clerk

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Before STEWART, Chief Judge, and DAVIS and SMITH, Circuit Judges.

PER CURIAM:*

Lester Leroy Bower, Jr. (Bower), a Texas state prisoner, was convicted 

of capital murder and sentenced to death for the murder of four individuals in 

connection with the theft of an ultralight aircraft. He is scheduled to be 

executed on June 3, 2015. On January 13, 2015, Bower filed a motion in this 

court, seeking an order authorizing the filing and consideration of a second 

petition for writ of habeas corpus and a stay of execution. Alternatively, Bower 

requested that the court exercise its power pursuant to Fifth Circuit Rule 41.2 

to recall its mandate. On January 27, 2015, Bower filed an application for a 

certificate of appealability (COA), wherein he seeks to appeal the district 

court’s denial of his motion to vacate and set aside the judgment pursuant to 

Fed. R. Civ. P. 60(b)(6). In both filings, Bower contends that he is entitled to a 

new sentencing hearing under Penry v. Lynaugh, 492 U.S. 302 (1989). 

For the reasons stated herein, we DENY the application for a second or 

successive habeas petition, DENY the motion to recall the mandate, DENY the 

application for a COA and DISMISS his appeal, and DENY the motion for stay 

of execution.

I.

A detailed factual and procedural background of this case is provided in

this court’s earlier opinion. See Bower v. Dretke, 145 F. App’x 879, 880 (5th 

Cir. 2005) (per curiam), cert. denied, 546 U.S. 1140 (2006). On April 24, 1984, 

Bower was convicted of capital murder for the killing of four individuals in 

connection with the theft of an ultralight aircraft. Id. The prosecution did not 

* 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.

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introduce additional testimony during the punishment phase. Bower v. State, 

769 S.W.2d 887, 895 (Tex. Crim. App.), cert. denied, 492 U.S. 927 (1989). Bower

introduced testimony from his family and friends tending to show that he was 

“not a violent person but was a good and generous person.” Id. The jury 

answered affirmatively to the applicable special issues and Bower was 

sentenced to death.1 Bower, 145 F. App’x at 881 n.1.

The Texas Court of Criminal Appeals (TCCA) affirmed Bower’s 

conviction and sentence on direct appeal. Id. at 881. Bower then filed his 

initial habeas petition in the convicting court. Id. The trial court denied his 

petition, and the TCCA affirmed. Id. Bower next filed a petition for habeas 

corpus in federal court claiming, inter alia, the special issues prevented the 

jury from giving full consideration and effect to his mitigating evidence of good 

character. Id. at 885. After conducting a five-day evidentiary hearing, the 

district court denied his petition but granted his application for a COA on two

issues and denied a COA on the remaining issues. Id. at 881. This court

affirmed the district court’s decision denying relief and a COA as to some 

claims, see Bower, 145 F. App’x at 880, and subsequently affirmed the district 

court’s decision on the two remaining claims. See Bower v. Quarterman, 497 

F.3d 459 (5th Cir. 2007), cert. denied, 553 U.S. 1006 (2008). 

Returning to state court, Bower filed a subsequent writ of habeas corpus 

in the TCCA, which was denied.2 Ex Parte Bower, Nos. WR-21005-02, WR1 “[I]n order to impose a sentence of death under Texas law at the time, the jury was 

required to find beyond a reasonable doubt and answer in the affirmative regarding two 

Special Issues: (1) whether Bower’s conduct which caused the death of [the victim], was 

committed deliberately and with reasonable expectation that the death of the deceased would 

result; and (2) whether there was a probability that Bower would continue to commit violent 

criminal acts, and as such would he constitute a continuing threat to society at-large.” Bower, 

145 F. App’x at 881 n.1.

2 In rejecting Bower’s Penry I claim the TCCA stated: “[T]he mitigating evidence 

presented by applicant during the punishment phase of his trial—evidence of his good and 

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21005-03, WR-21005-04, WR-21005-05, 2014 WL 2601725 (Tex. Crim. App. 

June 11, 2014), cert. denied, 135 S. Ct. 1291 (2015). On January 12, 2015, 

Bower moved in federal district court for relief from judgment and a stay of 

execution pursuant to Rule 60(b)(6), arguing that a subsequent decision of this 

court acknowledged that his case was incorrectly decided, thus entitling him 

to relief. The following day, Bower filed a motion in this court seeking an order 

authorizing the filing and consideration of a second petition for writ of habeas 

corpus and a stay of execution, asserting a similar argument. On January 22, 

2015, the district court denied Bower’s motion, finding that it was untimely 

and that in any event, Rule 60(b)(6) is not a vehicle by which Bower can

challenge the substance of the court’s prior decision. Bower v. Director, No. 

1:92-cv-182, slip op. at 5 (E.D. Tex. Jan. 22, 2015). Consequently, the district 

court denied the motion to vacate, denied his requested stay, and denied a 

COA. Id.

Currently pending before the court are Bower’s application to file a 

second or successive petition or alternatively, motion to recall the mandate, his 

application for a COA, and his request for a stay of execution. 3 We address 

each matter in turn.

non-violent character, his good deeds, and the absence of a prior criminal record—was not 

outside the scope of the special issues given, nor did it have an aggravating effect when 

considered within the scope of the special issues. The promulgation of more recent case law 

by the United States Supreme Court has not changed the definition or nature of what is 

considered mitigating evidence; thus, applicant was not constitutionally entitled to a 

separate jury instruction at the punishment phase of trial.” Ex Parte Bower, 2014 WL 

2601725, at *2 (citations omitted). 3 On September 9, 2014, before the present matters were pending before this court, 

Bower filed a petition for writ of certiorari with the Supreme Court, challenging the TCCA’s 

denial of his subsequent writ of habeas corpus. On February 3, 2015, while the present 

matters were pending in this court, Bower filed an application for a stay of execution with 

the Supreme Court in anticipation of his February 10, 2015 execution date. Two days later, 

the Court granted the application pending the disposition of the petition for a writ of 

certiorari. The Court denied Bower’s petition on March 23, 2015, with an opinion dissenting 

from the denial filed by three Justices. Subsequently, Bower has filed with this court several 

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II.

A.

The first issue that we must decide is whether Bower may file a second 

or successive habeas petition. Because Bower has filed a federal habeas 

petition before, AEDPA4 requires that he receive authorization from this court 

to file another. See 28 U.S.C. § 2244(b)(3)(A); In re Campbell, 750 F.3d 523, 

529–30 (5th Cir. 2014). “For us to grant such authorization, we must 

determine that [Bower] has made a ‘prima facie showing’ that he satisfies the 

statutory prerequisites for a successive habeas petition.” Campbell, 750 F.3d 

at 529–30. Section 2244(b) “sharply limits the federal courts’ consideration of 

‘second or successive’ habeas applications.” In re Sepulvado, 707 F.3d 550, 553 

(5th Cir.), cert. denied, 134 S. Ct. 420 (2013). Indeed, a claim previously raised 

must be dismissed. See § 2244(b)(1); Williams v. Thaler, 602 F.3d 291, 301 (5th 

Cir. 2010) (“AEDPA instructs us to dismiss any claim presented in a second or 

successive petition if a petitioner presented the claim in a previous 

application.”). 

We must now determine whether Bower meets the prerequisites for 

filing a successive habeas petition under § 2244(b)(1). We conclude that he has 

not. There is no question that Bower raised the Penry I claim in an initial 

federal habeas petition, which was rejected on the merits. He now seeks to 

raise that same claim in a successive habeas petition. Accordingly, we deny,

as we must, Bower permission to file a second or successive habeas petition on 

this basis. See § 2244(b)(1); Williams, 602 F.3d at 301.

Ignoring this statutory bar, Bower urges this court to use its equitable 

powers to permit him to file a successive habeas petition. Bower contends that 

supplemental memoranda in support of his requested relief and a renewed motion to stay 

execution. 

4 The Antiterrorism and Effective Death Penalty Act of 1996.

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the scenario herein presented—where a court’s purportedly erroneous prior 

decision is recognized to be so by a subsequent decision—does not fit within 

the statutory framework of § 2244(b).5 Simply put, Bower argues that 

§ 2244(b) does not apply. He reasons that because the statute does not directly 

prevent a petitioner from filing a successive petition under these facts, we may 

exercise our equitable powers to allow him to do so. We disagree.

First, the court is deprived of jurisdiction to entertain claims barred by 

§ 2244(b)(1). See Post v. Bradshaw, 422 F.3d 419, 425 (6th Cir. 2005). It is 

axiomatic that in the absence of jurisdiction, the court cannot act. Therefore, 

the court cannot exercise its equitable powers to grant Bower his requested 

relief. See In re McGinn, 213 F.3d 884, 885 (5th Cir. 2000) (per curiam) (“[W]e 

remind that this is a court of limited jurisdiction, only part of an entire system. 

We are persuaded that Congress has withheld jurisdiction from this court to 

grant the requested relief here.”).

Second, Bower’s argument is legally unsupportable. Bower cites to no 

case law (nor does our research reveal any) where a court has exercised its 

equitable powers to allow a movant to file a second or successive habeas 

petition when explicitly barred by the statute. Instead, Bower cites to Holland 

v. Florida, 560 U.S. 631 (2010), for the proposition that in the absence of a 

statutory prohibition, a court may exercise its equitable powers. While the 

Court in Holland exercised its equitable powers in holding that § 2244(d) is 

subject to equitable tolling, id. at 645, the Court did not create an equitable 

5 In both his submissions to this court and the district court, Bower heavily relies on 

our decision in Pierce v. Thaler, 604 F.3d 197, 210 (5th Cir. 2010), in which we held that the 

Texas special issues did not allow the sentencing jury to give full meaning and effect to the 

petitioner’s mitigating evidence of good character. Bower directs our attention to a footnote 

in Pierce, which he contends “unequivocally states that this Court’s decision in [his] federal 

habeas case was wrong.” He therefore maintains that Pierce entitles him to his requested 

relief. Bower’s reliance on Pierce is unavailing. As we discuss further infra, our decision here 

is constrained by the strictures of AEDPA, not our subsequent case law.

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remedy from the ether. Instead, its holding rests in part on the fact that “a 

petition’s timeliness was always determined under equitable principles.” Id.

at 648. Moreover, the Court reasoned that applying equitable tolling to 

§ 2244(d) would not undermine AEDPA’s basic purpose. Id. at 648–49. Bower 

points to no analogous well-established equitable principle to support granting 

his requested relief. Further, allowing him to file a second petition would 

undermine not only AEDPA’s explicit bar on such petitions, but Congress’s 

intent to “sharply limit” a petitioner’s ability to file successive petitions. 

Sepulvado, 707 F.3d at 553.

Because Bower attempts to bring the same claim raised in his initial 

federal habeas petition in a successive habeas petition, we hold that his

successive petition is barred by § 2244(b)(1), and accordingly deny his 

application. 

B.

We must next determine whether equity requires that we recall the 

mandate to avoid an injustice. “[A] prisoner’s motion to recall the mandate on 

the basis of the merits of the underlying decision can be regarded as a second 

or successive application for purposes of § 2244(b).” Calderon v. Thompson, 

523 U.S. 538, 553–54 (1998). “Where a petitioner’s first application for habeas 

relief has been denied, treating a prisoner’s motion to recall the court’s 

mandate as a successive application is necessary to prevent petitioners from 

evading AEDPA’s bars against relitigation of previously considered claims.” 

Goodwin v. Johnson, 224 F.3d 450, 459 (5th Cir. 2000). As previously stated, 

Bower seeks relief on the basis that this court erred in deciding that his 

previously raised Penry I claim was without merit. Consequently, Bower’s 

motion to recall the mandate is a second or successive habeas petition barred 

by § 2244(b)(1). See In re Kunkle, 398 F.3d 683, 685 n.2 (5th Cir. 2005) (per 

curiam) (denying movant’s request that the court recall its mandate, reasoning 

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in part that movant failed to overcome successive petition limitations). We 

therefore deny Bower’s request to recall the mandate.

C.

Finally, we must decide whether to grant Bower’s application for a COA. 

However, before making this determination, we first address whether Bower’s 

Rule 60(b)(6) motion is a successive habeas petition barred by § 2244(b)(1). 

Because Bower’s motion attacks the substance of the district court’s resolution 

of his claim on the merits, we construe his motion as a successive habeas 

petition precluded by § 2244(b)(1). See Gonzales v. Crosby, 545 U.S. 524 (2005) 

(concluding that a Rule 60(b) motion that “attacks the federal court’s previous 

resolution on the merits” should be construed as a successive habeas petition

(emphasis omitted)); see also United States v. Hernandes, 708 F.3d 680, 682 

(5th Cir. 2013).

Here, Bower asserts that the Fifth Circuit’s subsequent decision in Pierce 

v. Thaler, 604 F.3d 197 (5th Cir. 2010), constitutes a subsequent change in the 

law that warrants relief under Rule 60(b)(6). However, Bower’s challenge

undoubtedly goes to the merits of the district court’s resolution on the merits, 

and therefore should be construed as a successive habeas petition. See 

Gonzalez, 545 U.S. at 531 (endorsing an appeals court’s determination that a 

Rule 60(b) motion relying on a subsequent change in the law “is in substance 

a successive habeas petition and should be treated accordingly”). Bower

contends that his motion does not go to the merits because the merits of his 

claim were never fully considered. This contention is without merit. See Bower 

v. Director, No. 1:92-cv-182, slip op., at 49–50 (E.D. Tex. Sept. 6, 2002) 

(“Petitioner’s [Penry I] claim is without merit and will be denied. (emphasis 

added)); see also Bower, 145 F. App’x at 885 (“Because this court has plainly 

recognized that good character evidence could have properly been given effect 

through the second special issue, we hold that this claim is without merit.”) 

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(emphasis added)). Therefore, we conclude that Bower’s “Rule 60(b) motion is, 

in fact, a [§ 2254] motion in disguise because it is precisely the sort of 

prohibited motion that attacks the federal court’s previous resolution of a claim 

on the merits.” Hernandes, 708 F.3d at 682 (alteration omitted) (internal 

quotation marks and citations omitted). Because we construe Bower’s Rule 

60(b)(6) motion as a successive habeas petition barred by § 2244(b)(1), the 

district court was without jurisdiction to rule on his motion. See Adams v. 

Thaler, 679 F.3d 312, 322 (5th Cir. 2012). Accordingly, Bower’s application for 

a COA is denied and his appeal is dismissed.

D.

Concluding, as we have, that Bower’s requested relief is barred by 

§ 2244(b)(1), we deny his request for a stay.6

III.

For the reasons stated herein, we DENY Bower’s application to file a 

second or successive habeas petition based on a Penry I claim, DENY his 

request to recall the mandate, DENY his application for a COA and DISMISS 

his appeal, and DENY his request for a stay of execution.

6 Bower’s renewed motion to stay execution is also denied. 

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