IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 01-50568

MIGUEL RICHARDSON,

Petitioner-Appellant,

versus

GARY L. JOHNSON, Director,

Texas Department of Criminal Justice,

Institutional Division,

Respondent-Appellee.

Order Denying a Certificate of Appealability

and Stay of Execution

Western District of Texas

June 25, 2001

Before HIGGINBOTHAM, DeMOSS, and STEWART, Circuit Judges.

BY THE COURT:

I

Miguel A. Richardson on October 8, 1998, filed a petition for

habeas relief in the United States District Court, Western District

of Texas, San Antonio Division, pursuant to Title 28, U.S.C. §

2254. Richardson asked the federal courts to overturn his 1981

capital murder conviction and sentence of death. On January 23,

2001, this court affirmed the United States District Court’s denial1 See Richardson v. Johnson , 248 F.3d 1139 (5th Cir. 2001)

[table].

2 of federal habeas corpus relief 1 and stay of execution. The United

States Supreme Court denied certiorari on June 11, 2001, Richardson

v. Johnson

,

___ U.S.

___ , 1 21 S. Ct. 2244, 2001 WL 456365 (June

11, 2001).

In this second federal petition filed four days ago and now

before us, Richardson asked the United States D istrict Court to

conduct a hearing to determine if he is competent to be executed

and to stay his execution now scheduled for June 26, 2001, pending

that decision, all, Richardson says, as requir ed Ford v.

Wainwright , 477 U.S. 399 (1986).

II

The District C ourt, while denying relief in this second

petition, grant ed a certificate of appealability, persuaded that

whether Stewart v. Martinez-Villareal

, 523 U.S. 644 (1998),

overruled our decision in In Re: Davis

, 121 F.3d 952 (5th Cir.

1997), p r esents a substantial question about which reasonable

jurists may differ.

The district court’s grant of a certificate of appealability

has no significance if the petitioner is prosecuting a successive

writ

– and he clearly i s. Of course, this does not answer the

question of whether a F ord claim is subject to the limits of a

successive writ. That is a distinct question.3

As for that, we do not read the decision of the Supreme Court

in Stewart v. Martinez Villareal as overruling or casting doubt on

our decision in In Re: Davis

. Rather, the Supreme Court by

footnote explicitly declined to decide the case of a petitioner who

did not present his Ford claim in his first federal habeas, as did

Martinez Villareal

.

III

This leaves the argument that Richardson did not have a Ford

claim at the time he filed his first federal habeas, a contention

with two aspects. The first is that the factual basis for the F ord

claim could not have been d iscovered at the time of the first

federal habeas. That claim is refuted by the assertion that he has

long suffered this bipolar disorder and by his own expert witness.

The second aspect is that the Ford claim was not ripe when the

first federal habeas petition was filed for the reason that

execution was not then imminent. To accept this argument would

mean as a practical matt er that no F ord claim would need to be

presented in a first filed habeas, given that state courts, in part

at our urging, now seldom set execution dates until after the first

round of appeals and habeas.

We need not wrestle tha t issue at this late date given the

findings of fact issued by the 175th Judicial District Court and

approved by the Texas Court of Criminal Appeals. Those findings

included findings that the applicant “presents no factual4

information, however, concerning his current mental health status.”

The court also found that “applicant points to nothing which shows

that he is presently incompetent to be executed.” The state habeas

court detailed record evidence to support its conclusion that

“based on all of the foregoing, the Court finds that applicant

understands that he is to be executed, that his execution is

imminent, and the reason for his execution.”

IV

There are several difficulties with petitioner’s claim of

involun t ary medication, including whether it is cognizable in

habeas. The larger and first hurdle for petitioner is that this

claim has no factual legs. The state habeas court found that no

such showing of involuntary medication was made and that there was

no showing that the medication was given “for the purpose of making

him competent to be executed.” The state habeas court pointed to

affidavits of Dr. Peccora and Gwendolyn Bundy that th e applicant

was not involuntarily medicated. Finally, the state habeas court

found “Dr. Sparks affirms that he found nothing, in all the records

that he reviewed, which contradicts Dr. Peccora’s s tatement that

Richardson accepted and received the medications voluntarily.”

V

Ford claims admittedly hav e an uneasy fit with the AEDPA’s

limits upon successive writs. We examined that fit in I n re: Davis

and remain convinced that it is both sound and binding.5

The request for certificate of appealability and request for

application for stay of execution are DENIED.