* Pursuant to 5 T H C IR

. 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this opinion should not be published and is not precedent except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 5 TH C IR . R. 47.5.4. UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 02-30467

No. 02-30469

IN RE: LESLIE DALE MARTIN,

Movant.

_________________________________________________________________

Motion for Stay of Execution and for Authorization to File a

Successive Habeas Corpus Petition in the United States District

Court for the Western District of Louisiana

_________________________________________________________________ May 10, 2002

LESLIE DALE MARTIN,

Petitioner-Appellant,

versus

BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY,

Respondent-Appellee.

_________________________________________________________________

Motion for Stay of Execution

Appeal from the United States District Court for the Middle

District of Louisiana

(02-CV-453)

_________________________________________________________________

Before KING, Chief Judge, and BARKSDALE and S TEWART, Circuit

Judges.

PER CURIAM: *2

Leslie Dale Martin seeks a stay of his execution set for

today, 10 May 2002; requests permission to file a successive 28

U.S.C. § 2254 habeas application; and appeals the district court’s

9 May 2002 dismissal and alternative transfer of his 28 U.S.C. §

2241 habeas application (for us to consider whether to allow it to

be filed as a successive habeas application).

Martin contends: Marlin Sweet, a key witness, perjured himself

and Brady material was not disclosed concerning him; Martin’s trial

counsel was ineffective and represented him un der a conflict of

interest; and Campbell v. Louisiana

, 523 U.S. 392 (1998),

concerning discrimination in the se lection of grand jury

forepersons, should be retroactively applicable on collateral

review. MOTIONS DENIED and APPEAL DISMISSED

.

I.

The following is stated in our 27 March 2001 affirmance of the

denial of Martin’s § 2254 habeas application.

On 20 June 1991, Martin went to a bar in

Lake Charles, Louisiana, where his companion,

Roland, introduced him to the victim. Around

7:30 the next morning , Martin told his work

supervisor that he had met a college student,

left the bar with her, and woke up alone on

Galveston Beach. The supervisor noticed

scratches on Martin’s forehead, neck, and

shou lder that had not been there the day

before.

When Martin returned to his aunt’s home

(where he was residing), wearing different

clothes from the previous night, and no shirt

or shoes, his cousin observed scratches on his

chest and back, a bite mar k on his shoulder,3 and a tear under his tongue. Martin explained

he had fought a “country boy” at the bar.

That same morning, Martin related to

another, Rushing, he thought he may have

killed someone the previous night, and asked

Rushing for an alibi. Although Rushing

refused, Martin confided that the victim had

threatened to repor t him for rape. Martin

mentioned a shed in Iowa, Louisiana, and

stated he had cho ked the victim with a rope,

cut her throat, dug her ey es out, and jumped

up and down on a wooden boa rd placed on her

neck. Subsequently, Rushing testified that

Martin, who had served several years of a tenyear sentence for sexual battery, told him

(Rushing) “he didn’t want to be turned in for

rape again”.

Rushing did not believe Martin’s story;

but, nine days later, when he lear n ed the

victim had been missing since leaving the bar,

he provided the information to police. During

a search of sheds in the I owa area,

authorities discovered the victim’s

decomposing body, with a rope around her neck,

and a wooden board containing human blood

nearby. There was little forensic evidence.

A tamp on taken from the body tested negative

for seminal fluid; but, a forensic expert

testified that, due to decomposition, the test

could be a “false negative”.

Under Louisiana law, first degree murder

includes “killing

... a human being

... [w]hen

the offender has specific intent to kill or to

inflict great b odily harm and is engaged in

the perpetration or attempted perpetration of

... aggravated rape ....” L A

. R EV

. S TAT

. A NN

. §

14:30(A)(1) (emphasis added). Rape is

aggravated “[w]hen the victim resists the act

to the utmost, but whose resistance is

overcome by force”. L A

. R EV

. S TAT

. A NN

. §

14:42(A)(1).

Ma rtin v. Cain , 246 F.3d 471, 473 (5th Cir. 2001) (emphasis in

original), cert. denied , 122 S. Ct. 194 (2001).4

In Martin’s prosecution for first degree murder, three inmates

(including Sweet) “who had been incarcerated with Martin after his

arrest

... each testified, in varying detail, that: Martin told

them he had sexual relations with the victim; she accused him of

rape; and he killed her, because he did not want to return to

prison. But, [of the three inmates’ testimony,] only Sweet’s ...

established aggravated rape ”. Id . at 474 (emphasis in original).

Nevertheless,

Sweet’s testimony, with the exception of that

about the ag gravated nature of the rape, was

corroborated by a number of other witnesses

and other evidence, and Sweet’s testimony

concerning the aggravated nature of the rape

was, to some extent, corroborated by Marin’s

visible physical injuries shortly after the

murder.

Id . at 481.

In 1992, Martin was convic ted of first degree murder and

sentenced to death. I d

. at 474 . In 1994, the Louisiana Supreme

Court affirmed his conviction and death sentence; the Supreme Court

of the United States denied certi orari in 1995, Martin v.

Louisiana

, 515 U.S. 1105 (1995); in 1997, the state district court

denied his application for post-conviction relief, Martin

, 246 F.3d

at 475; and in 1998, the Louisiana Supreme Court denied his writ

application. Martin v. Cain , 709 So. 2d 693 (La. 1998).

In 1999, the district court denied Martin’s first federal

habeas application, but granted a certificate of appea lability5

(COA) on two issues concerning ineffective assistance of counsel,

and a Brady

violation concerning Sweet. Martin, 246 F.3d at 475.

We affirmed the denial. M artin v. Cain

, 206 F.3d 450, 461 (5th

Cir.), vacated

, 531 U.S. 801 (2000). On remand from the Supreme

Court of the United States (concerning the standard of review), we

again affirmed the denial of habeas relief

. Martin , 246 F.3d at

473.

On 7 January 2002, Martin’s execution was set for 8 February

2002. On 4 February, four days prior to the execution date, Martin

filed an application for post-conviction relief in Louisiana state

c ourt. The trial court denied the application on 5 February; on

the same day, Martin filed in Louisiana state court a supplemental

application for post- conviction relief. The trial court denied

the supplemental application; a nd, on 8 February, the Louisiana

Supreme Court denied Martin’s writ application.

That same day, the Supreme Court of the United States stayed

Martin’s execution pending a ruling on his petition for certiorari

concerning the state court rulings. On 25 March, the Supreme Court

denied certiorari

, Martin v. Cain

, 122 S. Ct. 1372 (2002);

Martin’s petition for rehearing was denied yesterday, 9 May.

The pending request to file a successive habeas application is

not Martin’s first request to do so. On the prior 8 February 2002

execution date, Martin requested that we grant such pe rmission,

claiming: his counsel was ineffective due to a conflict of6

interest; and the State had not disclosed Brady material concerning

Sweet. We denied the request. I n re Martin

, No. 02-30157 (5th

Cir. 8 Feb. 2002) (unpublished). Martin filed a “petition for

habeas corpus relief” with the Supreme Court concerning this

decision; the petition was denied on 15 April 2002.

On 8 April, Martin’s execution date was reset for today, 10

May. On 23 April, he filed in Louisiana state court a petition for

post-conviction relief. The trial court denied the petition on 2

May, and the Louisiana Supreme Court denied Martin’s writ

applicati on on 9 May. That same day, Martin filed in the United

States District Court for the Middle District of Louisiana a habeas

petition under 28 U.S.C. § 2241.

On 9 May, the district court construed the petition as an

act i on under 42 U.S.C. § 1983 and dismissed it for lack of

jurisdiction. In the alternative, the district court transferred

the petition to this court pursuant to 28 U.S.C. § 1631 for us to

determine whether Martin should be permitted to file it as a

successive habeas petition.

Also on 9 May, Martin filed the pending motions with this

court, seeking a stay of execution as well as permission to file a

successive habeas petition concerning issues completely independent

from his most recent federal district court filing concerning his

claim of denial of access to clemency. Today, 10 May, Martin filed

a notice of appeal from the district court’s 9 May judgment7

concerning his § 2241 habeas petition, as well as another stay-ofexecution motion.

II.

A.

In the request to file a successive habeas application, Martin

presents three claims: Sweet, a key witness, perjured himself and

Brady material was not disclosed concerning Sweet; Martin’s trial

counsel was ineffective due to his taking prescription psychiatric

medication and represen ting Martin under a conflict of interest;

a nd he is entitled to benefit from a “new rule of constitutional

la w” announced in Campbell v. Louisiana

, 523 U.S. 392 (1998),

concerning discrimination in the selection of grand jury

foreperson. In conjunction with this request, Martin seeks a stay

of execution.

The Antiterrorism and Effectiv e Death Penalty Act (AEDPA)

requires that, before “a second or successive application

... [can

be] filed in the district court, the applicant shall move in the

appropriate court of appeals for an order authorizing the district

court to consider the application”. 28 U.S.C. § 2244(b)(3)(A). As

stated in subpart (b)(3)(C), authorization is to be given “only if

... the application makes a prima facie showing that the

application satisfies the requirements of” 28 U.S.C. § 2244(b), as

quoted below.8

A “claim presented in a second or successive habeas corpus

application under section 2254 that was presented in a prior

application shall be dismissed”. 28 U.S.C. § 2244(b)(1).

A c laim presented in a successive habeas petition not

presented in a prior petition 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 discovered previously

through the exercise of due diligence; and

(ii) the facts underlying the claim, if proven

and viewed in light of the evidence as a

whole, would be sufficient to establish by

clear and convincing evidence that, but for

constitutional error, no reasonable factfinder

would have found the applicant guilty of the

underlying offense.

28 U.S.C. § 2244(b)(2)(B).

1.

Martin’s contention that he is entitled to relief under

Campbell has not been p resented in a prior application. He must

show Camp

bell h as been made retroactively applicable to cases on

collateral review by the Supreme Court

. 28 U.S.C. § 2244(b)(2)(A).

“[A] new rule is not ‘made retroactive to cases on collateral

review’ unless the Supreme C ourt holds it to be retroactive”.

Tyler v. Cain

, 533 U.S. 656, 664 (2001) (concerning successive

habeas petition relying upon § 2244(b)(2)(A)).9

Martin contends that pending before our court in another

appeal is whether Campbell has been made retroactively applicable.

Nevertheless, for successive habeas purposes, the Supreme Court has

not made Campbell retroactively applicable to cases on collateral

review.

2.

a.

Marti n’s remaining claims, relating to Sweet and his trial

counsel, were presented in his first federal habeas petition. S ee

Martin v. Cain , 246 F.3d 471 (5th Cir. 2001). He cannot do so

again. See 28 U.S.C. § 2244(b)(1).

b.

Even assuming arguendo these claims are raised for the first

time, Martin has not made the required prima facie showing that:

(1) their factual p redicate could not have been discovered

previously through the exercise of due diligence, see 28 U.S.C. §

2244(b)(2)(B)(i); and (2) that these assertions, if true, “would be

sufficient to establish by clear and convincing evidence that, but

for constitutional error, no reas o nable factfinder would have

found” Martin guilty of the underlying offense, see id

. at §

2244(b)(2)(B)(ii).

To the extent Martin relies on newly discovered evidence in

support of these claims, this evidence is not sufficient to make

the requisite prima facie showing that “but for constitutional10

error, no reasonable factfinder would have found [Martin] guilty of

the underlying offense.” I d. A lthough the new evidence regarding

Sweet further undermines his credibility and Sweet’s testimony was

quite important to the state’s case for aggravated rape, we cannot

conclude that the jury’s verdict would have been different in light

of the other evidence presented at trial. Although the other

individuals who testified as to what Martin had told them about his

commission of the offense did not provide information, as Sweet

did, indicating that Martin had perpetrated aggravated rape, they

did testify that Martin had told them that he had killed the victim

when she accused him of rape. Further, as noted s upra

, th e

evidence of the physical injuries that Martin incurred on the night

of the offense corroborated Sweet’s testimony.

The new evidence that Martin proffers in support of his claim

that he was denied the assistance of trial counsel indicates that

his trial counsel, Bobby Pitre, suffered from a “mental breakdown”

shortly before Martin’s trial and was taking psychiatric medication

during the trial. However, Martin does not attempt to demonstrate

how Pitre’s condition affected Pitre’s pe rformance at trial.

Rather

, Martin argues that prejudic e should be presumed,

analogizing Pitre to the cou nsel who slept during trial whose

performance was at issue in Burdine v. Johnson , 262 F.3d 336 (5th

Cir. 2001) (en banc). Although we do not here rule out the

possibility that medication taken by counsel or counsel’s mental11

condition during trial may warrant a presumption of prejudice in

some circumstances, Martin’s new evidence does not demonstrate that

his case involves such circumstances because there is no indication

that Pitre was impaired in any way as a result of his medication or

mental condition during Martin’s trial.

B.

Martin also contends: that he has a “free standing claim of

factual innocence”; and that, as a result, AEDPA’s requirements do

not prevent consideration of this claim. Restated, for such

“factual innocence”, Martin claims an exception to AEDPA’s

constraints on successive habeas applications.

AEDPA prescribes our habeas jurisdiction; the claimed

exception is neither recognized in, nor permitted by, it. Martin’s

claim to an exception to AEDPA’s constraints is without merit.

Moreover, this “factual innocence” claim has been repeatedly

reviewed within the scheme established by AEDPA and found wanting.

C.

Martin’s 9 May 2002 habeas petition pursuant to 28 U.S.C. §

2241 maintained he has been denied access to Louisiana’s executive

clemency system. (This claim was denied in state court in February

2002 bu t not presented then to the district court or our court.)

Today, 10 May, Martin filed a notice of appeal fr om the district

court’s judgment (denial). In conjunction with his appeal, he

seeks a stay of execution.

1.12 a.

Before being allowed to proceed on appeal, a habeas petitioner

must obtain a COA from “the final order in a habeas corpus

proceeding in which the detention complained of arises o ut of

process issued by a State court ”. 28 U.S.C. § 2253(c)(1)(A)

(emphasis added). Although a prisoner in federal custody need not

obtain a COA to appeal the denial of a § 2241 petition, a prisoner

in state custody, such as Martin , must do so. S ee Stringer v.

Williams , 161 F.3d 259, 262 (5th Cir. 1998) (“§ 2253 clearly does

not encompass challenges to federal detention under § 2241. Just

as clearly, however, § 2253 does encompass challenges to state

detention under § 2241”.).

Martin has not sought a COA, much less satisfied the standards

for obtaining one, discussed below. Accordingly, we cannot review

the habeas denial.

b.

Alternatively, construing Martin’s notice of appeal as a COA

request and his brief as seeking to satisfy the standards for

obtaining a COA, he has not satisfied those standards: he has not

“ made a substantial showing of the denial of a constitutio nal

right”. 28 U.S.C. § 2253(c)(2). To do so, he must show

“reasonable jurists could debate whether (or, for that matter,

agree that) the petition should have been resolved in a different

manner or that the issues presented were adeq uate to deserve13

encouragemen t to proceed further”. S lack v. McDaniel

, 529 U.S.

473, 484 (2000) (citation and internal quotation marks omitted).

Reasonable jurists could not disagree that the petition should

be denied because Martin has not even applied for clemency.

Furthermore, re asonable jurists could not disagree with the

district court’s construction of the claim as arising under 42

U.S.C. § 1983 and its dismissal of the petition fo r lack of

jurisdiction. S ee Moody v. Rodriguez

, 164 F.3d 893, 893 (5th Cir.

1999) (“Federal courts lack jurisdiction to stay executions under

§ 1983.”) (internal quotation marks omitted).

2.

The district court, in the alternative, transferred the

petition to our court for us to determine whether to authorize

filing a successive habeas petition. This clemency claim does not

rely on a new rule of constitutional law made retroactive to cases

on collateral review by the Supreme Court. In addition, Martin has

not shown that the factual predicate of this claim was not

available previously through the exercise of due diligence a nd

that, but for the claimed constitutional error, no reasonable

factfinder would have foun d Martin guilty of the underlying

offense. See 28 U.S.C. § 2244(b)(2)(B)(i)-(ii).14 3.15

In the alternative, to the extent the appeal is from the

dismissal of § 1983 relief, we lack juris diction, as held by the

district court. See Moody , 164 F.3d at 893.

D.

Concomitantly, Martin has failed to satisfy the standard for

obtaining a stay of execution.

III.

For the foregoing reasons all motions are DENIED ; a COA is

DENIED ; and the appeal is DISMISSED

.

MOTIONS and COA DENIED; APPEAL DISMISSED