Moore v. Dretke

United States Court of Appeals
Fifth Circuit
F I L E D
May 7, 2004
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
No. 03-41293
_______________
ERIC LYNN MOORE,
Petitioner-Appellee-
Cross-Appellant,
VERSUS
DOUG DRETKE,
DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,
Respondent-Appellant-
Cross-Appellee,
_________________________
Appeals from the United States District Court
for the Eastern District of Texas
_________________________
Before SMITH, EMILIO M. GARZA and
DENNIS, Circuit Judges.
PER CURIAM:
The state appeals a conditional grant of a
writ of habeas corpus to Eric Moore. Moore
cross-appeals, asking us to vacate the writ and
instruct the district court to conduct an evi-
dentiary hearing. We vacate the writ and re-
mand for further proceedings, which need not
necessarily include the requested evidentiary
hearing.
This court previously granted Moore per-
mission to file a successive habeas petition un-
der the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”), 28 U.S.C.
§ 2254, because he had made a prima facie
showing of entitlement to relief predicated on

-- 1 of 3 --

2
Atkins v. Virginia, 536 U.S. 304 (2002)SSa
claim that was previously unavailable to him.
In re Moore, No. 03-40207, 67 Fed. Appx.
252 (5th Cir. May 12, 2003) (unpublished)
(table) (citing 28 U.S.C. § 2244(b)(2)(A)).
We directed the district court to conduct its
own searching review of the record to
determine whether Moore had satisfied the
requirements for filing such a petition. As a
result, and depending on its inquiry, that court
had the power either to find that Moore had
failed to satisfy § 2244’s standards and deny
him leave to file his petition, or to consider the
petition on the merits. See Reyes-Requena v.
United States, 243 F.3d 893, 899 (5th Cir.
2001).
The district court did neither, but instead
granted Moore a stay of execution and agreed
with our assessment that Moore could file his
successive habeas petition because it satisfied
the requirements of 28 U.S.C. § 2244(b)-
(2)(A).1 MooreSSseeking to develop the rec
ord in anticipation of a hearing on the merits of
his petitionSSmoved for appointment of a
psychologist trained in the field of mental re-
tardation, and for a social history investigation.
The district court denied those requests as
premature.
Instead of holding the hearing that Moore
sought, the court opted to fault the state
courts for a perceived misapplication of their
own laws in acting on Moore’s state habeas
petition. To remedy the state’s “error,” the
court granted the writ and conditionally or-
dered Moore released. The court provided
that its order would not take effect if the state
courts either (a) reopened Moore’s state
habeas petition and conducted a fact-finding
hearing to determine whether his execution
would violate Atkins or (b) commuted the sen-
tence to life imprisonment.
On appeal, neither party defends the district
court’s decision. It is axiomatic that
1 The district court found only that Moore’s pe-
tition “appears” to satisfy the requirements of 28
U.S.C. § 2244(b)(2)(A) and that “it certainly does
not conclusively demonstrate that it does not meet
the three elements” of that section. That is
insufficient. AEDPA expressly and
unambiguously provides that the district court
“shall dismiss” the petition “unless the applicant
shows that the claim satisfies the requirements
of this section.” 28 U.S.C. § 2244(b)(4). The
mere appearance of compliance is an insufficient
basis to authorize the filing of a successive habeas
petition.
We recognize, however, that this error flows
naturally from a literal interpretation of language
from In re Morris, 328 F.3d 739, 741 (5th Cir.
2003) (per curiam)SSlanguage that this panel quot-
ed in our directive to the district court. Morris did
(continued...)
1(...continued)
not change the standard governing the district
court’s § 2244(b)(4) inquiry. It sought only to
explain that standard in the panel’s own words and,
in so doing, may have given the misleading
impression that a successive habeas petition can be
dismissed by the district court only if the state
conclusively shows that the petition does not com-
ply with the statute. See Morris, 328 F.3d at 741.
The correct standard is still the one in the stat-
ute: The applicant bears the burden of demonstrat-
ing that the petition does in fact comply with the
statute, and the district court shall dismiss the
petition unless that showing is made. See 28
U.S.C. § 2244; Brown v. Lensing, 171 F.3d 1031,
1032 (5th Cir. 1999). We do not use this reason to
vacate the writ, however, because the state does not
make this argument on appeal. See United States
v. Thibodeaux, 211 F.3d 910, 912 (5th Cir. 2000).

-- 2 of 3 --

3
“infirmities in state habeas proceedings do not
constitute grounds for federal habeas relief.”
Duff-Smith v. Collins, 973 F.2d 1175, 1182
(5th Cir. 1993).2 This is because “an attack on
the state habeas proceeding is an attack on a
proceeding collateral to the detention and not
the detention itself.” Rudd v. Johnson, 256
F.3d 317, 320 (5th Cir. 2001).
As a result, the district court had no basis
for its conclusion that Moore was entitled to
habeas relief on a mere showing that the Texas
courts had misapplied their own procedural
rules to his state habeas petition. Rather, the
district court’s habeas jurisdiction extends only
to claims that the petitioner “is in custody in
violation of the Constitution or laws or treaties
of the United States,” see 28 U.S.C. §
2254(a), and it is only on a finding of such a
violation that the court may grant habeas
relief. The district court did not find a
violation of federal law, so we vacate the writ.3
In his cross-appeal, Moore raises two is-
sues that are premature at this stage of the lit-
igation. He argues that he is entitled to an ev-
identiary hearing on his claim of mental
retardation and that his petition is not
procedurally defaulted. The district court has
not addressed these questions, so we decline
to consider them on appeal. See Floors
Unlimited, Inc. v. Fieldcrest Cannon, Inc., 55
F.3d 181, 187 (5th Cir. 1995).
On remand, the court must consider wheth-
er Moore is entitled to an evidentiary hearing
under 28 U.S.C. § 2254(e)(2)(A) and (B). Re-
gardless of whether it holds such a hearing, the
court must determine whether Moore’s claim
is procedurally defaultedSSan issue that it
expressly reserved. If it decides that there is
no default, the court must determine whether
Moore is entitled to relief on the merits of his
Atkins claim, and if so, the court should
fashion an appropriate remedy.
We VACATE the writ and REMAND for
further proceedings not inconsistent with this
opinion.
2 See also Henderson v. Cockrell, 333 F.3d
592, 606 (5th Cir.), cert. denied, 124 S. Ct. 1170
(2004); Trevino v. Johnson, 168 F.3d 173, 180
(5th Cir. 1999); Hallmark v. Johnson, 118 F.3d
1073, 1080 (5th Cir. 1997).
3 We are not insensitive to the district court’s
statement, made in the course of denying a motion
to reconsider, that the parties failed adequately to
brief this issue despite specific instructions to do
so. Nevertheless, the issue is jurisdictional, and the
court was required to consider it sua sponte if
necessary. Crone v. Cockrell, 324 F.3d 833, 836
(5th Cir.), cert. denied, 124 S. Ct. 287 (2003).

-- 3 of 3 --