Edgar Tamayo v. Rick Perry

Case: 14-70003 Document: 00512508592 Page: 1 Date Filed: 01/22/2014

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

FILED

No. 14-70003 January 22, 2014

Lyle W. Cayce

EDGAR ARIAS TAMAYO, Clerk

Plaintiff – Appellant

v.

RICK PERRY, Governor; RISSIE OWENS, Chairwoman of the Texas Board of

Pardons and Paroles; ROMULO CHAVEZ, Board Member; JUANITA M.

GONZALEZ, Board Member; DAVID GUTIERREZ, Board Member; JAMES

LAFAVERS, Board Member; MICHELLE SKYRME, Board Member;

CYNTHIA TAUSS, Board Member,

Defendants – Appellees

Appeal from the United States District Court

for the Western District of Texas

USDC No. 1:14-CV-31

Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges.

PER CURIAM:*

Appellant Edgar Arias Tamayo (“Tamayo”) is scheduled to be executed

by the State of Texas on January 22, 2014. Tamayo filed a complaint in the

district court asserting a 28 U.S.C. § 1983 claim against several members of

the Texas Board of Pardons and Paroles (the “Defendants”) alleging that the

* 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.

Case: 14-70003 Document: 00512508592 Page: 2 Date Filed: 01/22/2014

No. 14-70003

state’s clemency procedures do not comport with fundamental fairness and

violate his Eighth and Fourteenth Amendment rights. He also filed a motion

seeking either a temporary restraining order (“TRO”) or a preliminary

injunction in the district court to prevent the Texas Board of Pardons and

Paroles (the “Board”) from voting on his application and the Governor from

acting on any negative recommendation of the Board. Accompanying his

discovery requests, Tamayo also filed a motion to stay his execution. After a

hearing, the district denied the request for preliminary injunctive relief and

the alternative request for a stay. We AFFIRM the denial of the preliminary

injunction and DENY the application for a stay.

Factual and Procedural History

Tamayo and Jesus Mendoza were arrested in the parking lot of a bar in

Harris County, Texas, on January 31, 1994, for robbing a patron. After the

men were searched and handcuffed, Officer Guy Gaddis of the Houston Police

Department placed them in a patrol car, with Tamayo seated behind Officer

Gaddis. When Officer Gaddis stopped to make a phone call, Tamayo revealed

to the other passenger that he had a gun in his waistband. The evidence at

trial showed that Tamayo managed to remove the gun from his waistband

despite the fact that he was handcuffed. When Officer Gaddis returned to the

vehicle and drove away, Tamayo shot Officer Gaddis multiple times. The

patrol car crashed into a residence, and Tamayo escaped through a broken

window. The police were called to the scene and captured Tamayo as he ran

down the street near the crash, still handcuffed. Officer Gaddis was taken to

the hospital immediately, but he was pronounced dead upon arrival.

Tamayo gave two written statements admitting that he had the gun in

the police car, that he shot Officer Gaddis, and that he knew Gaddis was a

police officer. At trial, the evidence indicated that Tamayo, rather than

Mendoza, was the shooter. The State also presented evidence that Tamayo

2

Case: 14-70003 Document: 00512508592 Page: 3 Date Filed: 01/22/2014

No. 14-70003

had purchased the gun several days before the murder. The jury found

Tamayo guilty of capital murder and subsequently sentenced him to death.

Tamayo appealed to the Texas Court of Criminal Appeals (“CCA”), which

affirmed his conviction. Tamayo v. State, No. AP-72,033 (Tex. Crim. App. Dec.

11, 1996) (not designated for publication).

In February 1998, Tamayo sought state habeas relief based on ineffective

assistance of counsel for failing to investigate evidence of organic brain

damage. The CCA rejected Tamayo’s claim in June 2003. Ex parte Tamayo,

No. WR-55,690-01 (Tex. Crim. App. June 11, 2003) (not designated for

publication).

In September 2003, Tamayo filed his federal habeas application,

reasserting his ineffective assistance of counsel claim based on counsel’s failure

to investigate the alleged organic brain injury. Tamayo moved to stay the

proceedings in 2005 to allow him to return to state court to present additional

claims, including two claims under the Vienna Convention on Consular

Relations (the “Vienna Convention”), Apr. 24, 1963, 21 U.S.T. 77, and a claim

that he was ineligible for execution under Atkins v. Virginia, 536 U.S. 304

(2002). The state court dismissed these successive habeas petitions as an

abuse of the writ. See Ex parte Tamayo, No. WR-55690-04, 2010 WL 2332395

(Tex. Crim. App. June 9, 2010) (not designated for publication) (Atkins Claim);

Ex parte Tamayo, No. WR-55690-03, 2008 WL 2673775 (Tex. Crim. App. July

2, 2008) (not designated for publication) (Vienna Convention Claim); Ex parte

Tamayo, No. WR-55,690-02 (Tex. Crim. App. Sept. 10, 2003) (not designated

for publication) (Vienna Convention Claim).

Tamayo amended his federal habeas petition, adding his Vienna

Convention and Atkins claims. In March of 2011, the federal district court

denied Tamayo federal habeas relief on his claims and determined that he was

not entitled to a COA. Tamayo v. Thaler, No. 4:03-cv-3809 (S.D. Tex. Mar. 25,

3

Case: 14-70003 Document: 00512508592 Page: 4 Date Filed: 01/22/2014

No. 14-70003

2011). Tamayo then sought a COA from this court, which we denied in

December of 2011. Tamayo v. Thaler, No. 11-70005 (5th Cir. Dec. 21, 2011).

The Supreme Court denied Tamayo’s petition for certiorari in November of

2012. Tamayo v. Thaler, 133 S. Ct. 608 (2012). On September 17, 2013, in

response to the state’s motion, the 209th Harris County District Court

scheduled Tamayo to be executed on January 22, 2014.

On December 13, 2013, Tamayo filed a written application for clemency

with the Board. Tamayo argues in his application that his death sentence

should be commuted to life imprisonment because, inter alia, he did not receive

his consular rights guaranteed under the Vienna Convention, 1 he should not

receive the death sentence on account of his alleged mental retardation, and

he did not receive a fair trial because the key witness against him—Jesus

Mendoza—was coached by the state and the expert who testified concerning

the gunshot residue on his hands has been subsequently discredited.

On January 13, 2014, Tamayo filed the present action in federal district

court asserting a § 1983 claim that the Board’s procedures violate his due

process rights. He further sought a TRO or preliminary injunction preventing

the Board from voting and the Governor from acting on the Board’s

recommendation pending the outcome of his lawsuit. He further sought a stay

of execution pending his discovery requests in connection with his § 1983 claim.

1In connection with this claim, Tamayo points out that United States Secretary of

State John Kerry sent a letter to Governor Perry requesting that Tamayo’s execution be

delayed until it is determined whether Tamayo was prejudiced by the denial of his consular

rights under the Vienna Convention. He explained that Texas’s non-compliance with the

consular notification provision of the Vienna Convention is potentially damaging to the

United States’ interests abroad and could “impact the way American citizens are treated in

other countries.” We take no position on this issue, but to observe that the Supreme Court

has determined that while “the Avena decision . . . constitutes an international law obligation

on the part of the United States,” the President does not have the authority to compel Texas

to comply with the decision. Medellin v. Texas, 552 U.S. 491, 504 (2008).

4

Case: 14-70003 Document: 00512508592 Page: 5 Date Filed: 01/22/2014

No. 14-70003

The same day, Tamayo filed a successive habeas petition in Texas state

court, alleging that he did not receive a fair trial in light of alleged newly

discovered evidence that the Harris County District Attorney’s office coached

Mendoza by “instruct[ing] him how he was to testify, and what he should—and

should not—say.” 2 On January 16, 2014, Tamayo filed another successive

habeas petition in Texas state court, arguing that his sentence of death is

“illegal and unconstitutional” based on his alleged mental retardation. In

support of this claim, he relied on the newly-released decision of the Inter-

American Commission on Human Rights (“Human Rights Decision”). The

Human Rights Decision concluded, inter alia, that Tamayo has raised evidence

that he is mentally retarded and the denial of his consular notification rights

prejudiced him. In connection with this successive habeas petition, Tamayo

filed a request for a stay of execution in light of what he believes are novel

issues of law—including the amount of deference, if any, that should be given

the Human Rights Decision by Texas state courts. The CCA denied relief. Ex

parte Tamayo, Nos. WR-55,690-05, WR-55,690-06, 2014 Tex. Crim. App.

Unpub. LEXIS 59, at *3 (Tex. Crim. App. Jan. 21, 2014) (not designated for

publication).

Following a hearing on January 21, 2014, before the federal district court

in this § 1983 action, the district court concluded that “the Board’s procedures

provided Tamayo adequate due process in conformance with current Supreme

Court and Fifth Circuit precedent.” Tamayo v. Perry, 1:14-CV-31 (W.D. Tex.

Jan. 21, 2014). The court accordingly denied the application for a temporary

restraining order and preliminary injunction and the alternative request for a

stay of execution.

2 We have no opportunity here to consider Tamayo’s successive habeas petition and,

therefore, take no position as to the veracity of this serious allegation.

5

Case: 14-70003 Document: 00512508592 Page: 6 Date Filed: 01/22/2014

No. 14-70003

Discussion

A district court’s denial of a stay of execution and of a preliminary

injunction is reviewed for abuse of discretion. See Diaz v. Stephens, 731 F.3d

370, 374 (5th Cir. 2013); Adams v. Thaler, 679 F.3d 312, 318 (5th Cir. 2012).

To be entitled to a preliminary injunction or a stay of execution, Tamayo must

show “a substantial likelihood of success on the merits.” See Adams, 679 F.3d

at 318 (stay of execution); Janvey v. Alguire, 647 F.3d 585, 595 (5th Cir. 2011)

(preliminary injunction).

As an initial matter, we acknowledge our prior caselaw holding that

federal courts lack authority to issue stays of execution pending resolution of

a § 1983 claim. See Beets v. Tex. Bd. of Pardons & Paroles, 205 F.3d 192, 193

(5th Cir. 2000) (“This court has twice held that federal courts lack jurisdiction

under § 1983 to stay executions.”); Faulder v. Johnson, 178 F.3d 741, 742 (5th

Cir. 1999) (“[W]e reiterate this court’s recent holding that federal courts lack

jurisdiction to stay executions under § 1983 . . . .”); Moody v. Rodriguez, 164

F.3d 893, 893 (5th Cir. 1999) (“Federal courts lack jurisdiction to stay

executions under § 1983.” (citation and quotation marks omitted)). These

cases, however, were premised on the principle that the only action available

to a prisoner to challenge any aspect of his conviction or sentence was the

habeas process under 28 U.S.C. § 2254 and related statutes. Arguably that

principle, however, no longer applies in cases such as this one that do not

directly challenge the conviction but instead challenge something that does not

“necessarily imply the unlawfulness of the State’s custody.” Skinner v. Switzer,

131 S. Ct. 1289, 1293 (2011) (alteration, citation, and quotation marks omitted)

(holding that a § 1983 action is available to a defendant seeking to challenge a

state’s procedures for DNA testing). Indeed, in Skinner, the Court granted a

stay of execution. Skinner v. Switzer, 559 U.S. 1033 (2010). Since that case,

we have exercised jurisdiction over appeals regarding stays of execution

6

Case: 14-70003 Document: 00512508592 Page: 7 Date Filed: 01/22/2014

No. 14-70003

arising in § 1983 cases. See, e.g., Sepulvado v. Jindal, 729 F.3d 413, 420–21

(5th Cir. 2013) (a § 1983 case evaluating a district court’s grant of a preliminary

injunction and stay on its merits). We need not reach this issue, however,

because we conclude that we clearly have jurisdiction over the denial of the

preliminary injunction, and the same merits analysis underlies both forms of

relief sought by Tamayo.

Our analysis of Tamayo’s claim is governed by our decision in Faulder v.

Tex. Bd. of Pardons & Paroles, 178 F.3d 343 (5th Cir. 1999). In Faulder, we

assessed a death-row inmate’s § 1983 claim alleging that Texas’s clemency

proceedings violated his due process rights. 3 Relying on Ohio Adult Parole

Auth. v. Woodard, 523 U.S. 272 (1998), we explained that Texas’s clemency

proceedings satisfied the “minimal procedural safeguards” required in such

proceedings. See Faulder, 178 F.3d at 344. We observed that these safeguards

are violated only where “a state official ‘flipped a coin’ to determine whether to

grant clemency, or the state arbitrarily denied a prisoner any access to its

clemency process.” Id. at 344 (quoting Woodard, 523 U.S. at 289 (O’Conner, J.,

concurring)). Applying this standard, we concluded that Texas’s clemency

proceedings provided “minimal procedural safeguards.” Id. at 344–45.

According to the uncontested evidence presented by the state, Texas’s clemency

proceedings have not changed in any substantial way since Faulder.

Therefore, to the extent Tamayo brings a facial challenge to the Texas

3 Subsequent to our decision in Faulder, the Supreme Court recognized the right of

prisoners to bring § 1983 claims complaining of unconstitutional state action when such

actions would not “necessarily imply” the invalidity of the prisoner’s conviction. See Skinner,

131 S. Ct. at 1298–99. Because a challenge of a state’s clemency proceeding in no way implies

that the prisoner’s conviction was invalid, Skinner applies such that Tamayo may bring a

§ 1983 claim challenging the constitutionality of a state’s clemency proceedings. Faulder,

178 F.3d at 344.

7

Case: 14-70003 Document: 00512508592 Page: 8 Date Filed: 01/22/2014

No. 14-70003

procedures, under Faulder, Tamayo cannot prove that he has a likelihood of

success in his § 1983 challenge of the clemency proceedings.

Tamayo argues that we should revisit Faulder in light of “evolving

standards of decency,” primarily relying on studies and reviews such as one

conducted by the American Bar Association. We respect these sources, but we

are bound by our court’s rule of orderliness which mandates that one panel

cannot overrule a prior panel in the absence of an intervening change in the

law in the form of a Supreme Court opinion, an en banc opinion of this court,

or a statutory or regulatory change. See Jacobs v. Nat’l Drug Intelligence Ctr.,

548 F.3d 375, 378 (5th Cir. 2008). “Evolving standards of decency” are not a

ground upon which we can disregard prior precedent. See id.

Tamayo suggests that Faulder’s “minimal procedural safeguard”

standard is no longer binding because subsequent Supreme Court decisions

have suggested that an inmate is entitled to a higher level of review of state

clemency proceedings. However, the two cases cited by Tamayo in support of

this position are inapposite. First, Dist. Attorney’s Office for Third Judicial

Dist. v. Osborne involved a due process challenge concerning DNA testing in

the context of post-conviction relief, which is different from an inmate

challenging the executive’s clemency proceedings. See 557 U.S. 52, 56 (2009);

see also Connecticut Bd. of Pardons v. Dumschat, 452 U.S. 458, 464 (1981)

(“Unlike probation, pardon and commutation decisions have not traditionally

been the business of courts; as such, they are rarely, if ever, appropriate

subjects for judicial review.”). Second, Harbison v. Bell did not involve a due

process challenge to clemency proceedings, but rather interpreted a federal

statute to allow for federal appointment and compensation of attorneys in state

clemency proceedings. See 556 U.S. 180, 183-84 (2009). We conclude that we

are bound by Faulder.

8

Case: 14-70003 Document: 00512508592 Page: 9 Date Filed: 01/22/2014

No. 14-70003

The district court did not abuse its discretion in concluding that Tamayo

failed to show that he had a substantial likelihood of success in his § 1983

claim. In his complaint, Tamayo argued that the Board violated his due

process rights in at least two respects.

First, he points out that Title 37 of the Texas Administrative Code

provides that “[u]nless required for the disposition of matters authorized by

law, hearing officers, board members and parole commissioners assigned to

render a decision or to make findings of fact and conclusions of law in an

individual case may not communicate, directly or indirectly, in connection with

any issue of fact or law with any party, except on notice and opportunity for all

parties to participate.” 37 Tex. Admin. Code § 147.3. He alleged, based on

information and belief, that certain Defendants have communicated with

interested parties (including the Harris County District Attorney, the Houston

Police Department, and the Harris County Sheriff’s Department) concerning

his application without providing him notice or an opportunity to participate.

Notably, Tamayo asserts that he subsequently requested to view information

submitted in opposition to his application. The Board denied this request and

he argued to the district court that the failure to provide him with the

information “violates fundamental fairness and creates an impermissible risk

that the Board’s decision will rest on false or misleading information.” The

district court ordered that the Board comply with Tamayo’s discovery request

for his clemency file by submitting that file in camera to that court. 4 Upon

review of that file, the district court concluded that the Board does not “operate

4 The court ordered these materials produced in camera because the Board is

prohibited by law from releasing this information to Tamayo pursuant to Tex. Gov’t Code §§

508.313(a)(1)-(3) and 552.101, which together provide that information obtained and

maintained by the Board concerning an inmate subject to executive clemency is confidential

and can only be released in limited circumstances not relevant here.

9

Case: 14-70003 Document: 00512508592 Page: 10 Date Filed: 01/22/2014

No. 14-70003

in any way that significantly differs from how it operated at the time of

Faulder.”

Second, Tamayo requested that Defendant Romulo Chavez, who is a

member of the Board, disqualify himself from voting on his clemency

proceeding pursuant to Title 37 of the Texas Administrative Code, which

provides that a member of the Board should disqualify himself when, inter alia,

the individual’s impartiality may be questioned or the individual has personal

bias concerning the subject matter. 37 Tex. Admin. Code § 150.55. Since

Tamayo filed this complaint, the Board has filed a letter from Mr. Chavez

voluntarily recusing himself from Tamayo’s case. Accordingly, although not

directly addressed in the district court’s opinion, we conclude that this

challenge is moot.

To the extent Tamayo challenges the Board’s proceedings as applied to

him, he has failed to demonstrate that those proceedings do not provide him

with “minimal procedural safeguards.” The Board’s refusal to allow Tamayo

to review his records does not rise to the level of a “coin-flip adjudication” that

we described in Faulder. Indeed, these practices do not result in any arbitrary

denial of Tamayo’s access to Texas’s clemency process.

We conclude that he has failed to show a substantial likelihood that he

could demonstrate the Board violated its policies. Section 147.3 allows

communication with parties interested in clemency proceedings so long as the

Board provides “notice and opportunity for all parties to participate.” Tamayo

clearly has notice of the proceedings and he has been given an opportunity to

participate through his filing of an application for clemency and a

supplemental application of clemency, as well as his attorneys’ ongoing contact

with the Board’s general counsel.

Concluding that the Board provided Tamayo the required “minimal

procedural safeguards,” we recognize our narrow role in the uniquely executive

10

Case: 14-70003 Document: 00512508592 Page: 11 Date Filed: 01/22/2014

No. 14-70003

task of considering clemency and, therefore, express no further opinion

regarding Texas’s clemency proceedings. See Woodard, 523 U.S. at 280-81

(Rehnquist, C.J., concurring) (“[T]he heart of executive clemency . . . is to grant

clemency as a matter of grace, thus allowing the executive to consider a wide

range of factors not comprehended by earlier judicial proceedings and

sentencing determinations.”); Hunter v. Tamez, 622 F.3d 427, 431 (5th Cir.

2010) (“The Constitution unquestionably vests the discretionary power to

commute a sentence in the executive branch.”).

Conclusion

The district court did not abuse its discretion in denying relief to Tamayo

in this case. Therefore, we AFFIRM the district court’s denial of relief; his

associated request for stay of execution is DENIED.

11