Opposition Brief — Blaine Keith Milam, Petitioner v. Bobby Lumpkin, Director, Texas Department of Criminal Justice, Correctional Institutions Division
Supreme Court briefAug 9, 2021
Ask Donna
What actually matters in this document.
Text
No. 20-8253
IN THE
Supreme Court of the United States
______________________________
BLAINE KEITH MILAM,
Petitioner,
v.
BOBBY LUMPKIN, Director,
Texas Department of Criminal Justice,
Correctional Institutions Division,
Respondent.
______________________________
On Petition for Writ of Certiorari to the
United States Court of Appeals
For the Fifth Circuit
______________________________
RESPONDENT’S BRIEF IN OPPOSITION TO
PETITION FOR A WRIT OF CERTIORARI
________________________________
KEN PAXTON
Attorney General of Texas
EDWARD L. MARSHALL
Chief, Criminal Appeals Division
BRENT WEBSTER
First Assistant Attorney General
TOMEE M. HEINING
Assistant Attorney General
Counsel of Record
JOSH RENO
Deputy Attorney General
For Criminal Justice
P.O. Box 12548, Capitol Station
Austin, Texas 78711
(512) 936-1400
tomee.heining@oag.texas.gov
i
This is a capital case.
QUESTION PRESENTED
The Fifth Circuit Court of Appeals denied Petitioner Blaine Milam’s
motion for authorization to file a successive federal habeas petition, holding
that the claim he sought to raise under either Moore v. Texas, 137 S. Ct. 1039
(2017), or Atkins v. Virginia, 536 U.S. 304 (2002), was previously available to
him. Milam nevertheless filed a second petition for writ of habeas corpus in the
federal district court. The district court concluded that it lacked jurisdiction
pursuant to 28 U.S.C. § 2244(b)(3) and transferred the petition to the Fifth
Circuit.
Did the Fifth Circuit err in affirming the district court’s order
transferring Milam’s successive petition pursuant to 28 U.S.C. § 2244(b) where
the petition was filed after the Fifth Circuit specifically denied authorization
to do so?
i
TABLE OF CONTENTS
QUESTION PRESENTED ......................................................................i
TABLE OF AUTHORITIES .................................................................. iv
BRIEF IN OPPOSITION TO PETITION FOR
WRIT OF CERTIORARI ....................................................................... 1
STATEMENT OF JURISDICTION ...................................................... 3
I. Facts of the Crime ........................................................................ 3
A. The State’s Guilt-Stage Evidence ........................................ 3
B. The Defense Guilt-Stage Evidence ..................................... 6
C. The State’s Punishment-Stage Evidence ........................... 7
D. The Defense Punishment-Stage Evidence ........................ 9
II. The State-Court and Federal Appellate Proceedings ........ 11
REASONS FOR DENYING THE WRIT ............................................. 14
ARGUMENT .......................................................................................... 15
I. Milam’s Petition for Certiorari is Statutorily
Prohibited ............................................................................... 15
II. The Fifth Circuit Properly Determined Milam Was Not
Entitled to Authorization to Appeal his Atkins
Claim Because He Could Not Satisfy § 2244(b)(2),
and Milam Does Not Present a Compelling Reason
to Carve Out a Statutory Exception .................................. 17
ii
A. The application of § 2244(b) to preclude review of
Milam’s intellectual disability claim does not
violate the Eighth Amendment ..................................... 19
B. Section § 2244(b) does not violate the Suspension
Clause ................................................................................. 25
CONCLUSION ....................................................................................... 27
iii
TABLE OF AUTHORITIES
Cases
Atkins v. Virginia, 536 U.S. 304 (2002) .......................................... Passim
Bourgeois v. Watson, 141 S. Ct. 507 (2020) ................................ 18, 22, 24
Bourgeois v. Watson, 977 F.3d 620 (7th Cir. 2020)........................... 21, 24
Bowles v. Inch, 140 S. Ct. 26 (2019) ........................................................ 18
Bowles v. Secretary, Fla. Dept. of Corrections,
935 F.3d 1176 (11th Cir. 2019) .............................................................. 18
Davila v. Davis, 137 S. Ct. 2058 (2017) .................................................. 23
Felker v. Turpin, 518 U.S. 651 (1996) ............................................. Passim
Ford v. Wainwright, 477 U.S. 399 (1986)................................................ 19
In re Payne, 722 F. App’x 534 (6th Cir. 2018)......................................... 18
In re Webster, 605 F.3d 256 (5th Cir. 2010) ............................................ 20
McCleskey v. Zant, 499 U.S. 467 (1991) .................................................. 26
Magwood v. Patterson, 561 U.S. 320 (2010) ........................................... 19
Moore v. Texas (Moore I), 137 S. Ct. 1039 (2017) ........................... Passim
Panetti v. Quarterman, 551 U.S. 930 (2007)........................................... 19
Slack v. McDaniel, 529 U.S. 473 (2000) .................................................. 19
Stewart v. Martinez-Villareal, 523 U.S. 637 (1998) ............................... 19
United States v. Flores, 135 F.3d 1000 (5th Cir. 1998) .......................... 20
iv
Webster v. Daniels, 784 F.3d 1123
(7th Cir. 2015) (en banc)............................................................. 20, 21, 24
Williams v. Kelley, 858 F.3d 464 (8th Cir. 2017) .................................... 18
Statues
Anti-Terrorism and Effective Death Penalty
Act of 1996 (AEDPA) ...................................................................... Passim
Tex. Code Crim. art. 11.071 .................................................................... 12
18 U.S.C. § 3596 ...................................................................................... 22
28 U.S.C. § 1254 .................................................................................. 3, 13
28 U.S.C. § 2241 ...................................................................................... 19
28 U.S.C. § 2244 .............................................................................. Passim
28 U.S.C. § 2254 ................................................................................ 19, 25
28 U.S.C. § 2255 .......................................................................... 20, 21, 24
Rules
Sup. Ct. R. 10..................................................................................... 14, 18
Constitutional Provisions
U.S. Const. amend VIII ................................................................... Passim
U.S. Const. amend XIV ........................................................................... 12
v
BRIEF IN OPPOSITION
TO PETITION FOR WRIT OF CERTIORARI
Petitioner-Appellant Blaine Milam was convicted and sentenced to death
for the brutal capital murder of his girlfriend’s thirteen-month-old daughter,
Amora Bain Carson. Amora was severely beaten, strangled, sexually
assaulted, and had twenty-four human bitemarks covering her entire body in
what the medical examiner called the worst case of brutality he had ever seen.
41 RR 235-36. Milam and Amora’s mother, Jesseca Carson, initially denied
involvement, but he eventually confessed to a jail nurse. Jesseca was sentenced
to life in prison for her involvement.
Milam now petitions this Court for a writ of certiorari from the Fifth
Circuit’s opinion affirming the district court’s order transferring a second-intime petition for writ of habeas corpus to the appellate court. Months before,
the Fifth Circuit had denied a motion for authorization to file a successive
federal habeas petition, holding that the claim he sought to raise under either
Moore v. Texas (Moore I), 137 S. Ct. 1039 (2017), or Atkins v. Virginia, 536 U.S.
304 (2002), was previously available to him. Milam nevertheless flouted the
Fifth Circuit’s explicit order and filed a second petition for writ of habeas
corpus in the U.S. District Court for the Southern District, and an
accompanying memorandum of law in support of that court’s authority to
review the petition. Lacking jurisdiction, the Southern District transferred the
1
case to the Eastern District, Sherman Division—the court that decided
Milam’s initial federal habeas petition. The Eastern District recognized its own
lack of jurisdiction pursuant to 28 U.S.C. § 2244(b)(3) and transferred the
petition to the Fifth Circuit.
While Milam purports to appeal the affirmance of the district court’s
transfer order, he actually challenges the Fifth Circuit’s refusal to grant
authorization under 28 U.S.C. § 2244(b). But the grant or denial of an
authorization to file a second or successive application “shall not be the subject
of a petition . . . for a writ of certiorari.” 28 U.S.C. § 2244 (b)(3)(E). Because this
petition is statutorily foreclosed under AEDPA, this Court lacks jurisdiction to
consider it and it should be denied.
Regardless, Milam’s January 21, 2021 execution was stayed by the Texas
Court of Criminal Appeals (CCA) and his second subsequent application for
habeas relief remanded to the state trial court for consideration of his Atkins
claim. This proceeding remains pending. Because Milam has received yet
another opportunity to raise an otherwise unexhausted and procedurally
barred claim in state court, this Court need not now consider his request to
carve out an exception to AEDPA to allow the federal courts to consider his
foreclosed Atkins claim. Because Milam offers no compelling reason to grant
certiorari, his petition should be denied.
2
STATEMENT OF JURISDICTION
The Court has jurisdiction to consider a petition for a writ of certiorari
seeking review of the judgment of a court of appeals. See 28 U.S.C. § 1254(1).
However, the Court lacks jurisdiction to consider a petition for a writ of
certiorari appealing the denial of a motion for authorization to file a successive
federal habeas petition. See 28 U.S.C. § 2244(b)(3)(E).
STATEMENT OF THE CASE
I.
Facts of the Crime
The CAA summarized the factual background of this case as follows.
A. The State’s Guilt–Stage Evidence.
At 10:37 a.m. on December 2, 2008, [Milam] called 911, and the
first thing he said was, “My name is Blaine Milam, and my
daughter, I just found her dead.” Rusk County Patrol Sergeant
Kevin Roy arrived at [Milam’s] trailer home outside Tatum twenty
minutes later. Two ambulances were already there. EMTs were
standing in the doorway of the master bedroom, where [Milam]
and Jesseca Carson were kneeling on the floor. Sgt. Roy saw “an
infant laying on the floor not moving, not breathing, bruised. The
baby was laying on its back, and the face of the baby was just one
large bruise.” He thought that the circular bruises he saw on the
child’s body were caused by a Coke can. He did not recognize them
as human bite marks.
After lead investigator Sergeant Amber Rogers arrived, Sgt. Roy
took [Milam] aside to talk while Sgt. Rogers talked to Jesseca.
[Milam] told Sgt. Roy that he and Jesseca had left Amora alone in
the trailer and walked up the road to meet a man named Clark
who was going to clear some land for him. They were gone about
an hour, and, when they came back, they found “the baby in that
condition.” [Milam] was calm, collected, and cooperative. After the
interviews, Sgt. Roy read the pair their Miranda rights. He told
3
them that, when the crime-scene investigation was done, they
would be taken to the Sheriff’s office for more questioning and
collection of their clothes.
Shortly thereafter, Kenny Ray, a Texas Ranger, arrived and
noticed Jesseca and [Milam] embracing. To Ranger Ray, the two
looked like “grieving parents,” not suspects. Ranger Ray conducted
an hour-long interview with [Milam] in the front seat of his patrol
car. [Milam] told the ranger that authorities were “more than
welcome” to search his car and home. [Milam] denied involvement
in Amora’s death. He also gave Ranger Ray names of possible
suspects and said that whoever did this should “be hung.” In that
recorded interview, [Milam] explained that Jesseca was his fiancee
and that Amora was Jesseca’s child, but that they both lived with
him and he was “raising that baby.”
[Milam] then told Ranger Ray the same story that he had told Sgt.
Roy. He added that, when he and Jesseca got home, they found
Amora, not in her crib, but in a hole in the floor in the bathroom
that he was remodeling. [Milam] said Amora had a blood ring
around her mouth, and “it looked like she had been biting the
insulation.” She was still breathing, so they called 911. [Milam]
later told Ranger Ray that Jesseca called 911 before they found
Amora, and that when they found her, she was dead.
Ranger Ray’s tone eventually became accusatory. He told [Milam]
that he knew he was lying, that no one would believe his story, and
that everyone would think he had beat the baby because he was
the only male in the house. [Milam] again denied any involvement
in Amora’s death and offered to take a polygraph test. Finally,
Ranger Ray told [Milam] that he was free to go, meaning that he
was free to get out of the patrol car, but not to leave the scene. By
then, Ranger Ray considered [Milam] a suspect.
The ranger also interviewed Jesseca. At first she “was crying and
acting very distraught,” but then there was a “pretty drastic”
change in her demeanor. She referred to Amora as “that baby” and
told Ranger Ray an “extremely bizarre story.”
The medical examiner gave Amora’s cause of death as homicidal
violence, due to multiple blunt-force injuries and possible
4
strangulation. He detailed her injuries: facial abrasions and
bruises; twenty-four human bite marks; bruises, scrapes, and
abrasions from head to toe; bleeding underneath the scalp;
extensive fracturing to the back of the skull; bleeding between the
brain and the skull; a laceration to the brain tissue as well as
swelling, bleeding, and bruising; bleeding around the optic nerves;
bleeding in the eyes and around the jugular vein; fractures to the
right arm and leg; eighteen rib fractures; a tear to the liver; and
extensive injury to the genitals. There were no old injuries
suggesting a pattern of abuse.
The investigation quickly poked holes in [Milam’s] story. Shane
and Dwight Clark, of Clark Timber, denied any meeting with
[Milam] on December 2nd. Crystal Dopson, manager of the Insta–
Cash Pawn Shop in Henderson, said that, shortly after she opened
the shop on December 2nd, Jesseca and [Milam] came in and
pawned an electric chain saw and an air impact tool. Surveillance
video showed the two in the pawn shop for about fifteen minutes.
Surveillance video from the Exxon in Henderson picked them up
shortly thereafter. Also, [Milam] had called his sister, Teresa Shea,
that morning before 9:30 a.m., crying and saying that he had
“found Amora dead.” Teresa told him to call 911, but [Milam] did
not do so until 10:37 a.m.
On December 11th, investigators conducted a second search of
[Milam’s] trailer and determined that the south end of the trailer,
rather than the master bedroom, was probably the crime scene.
They found blood-spatter stains, consistent with blunt force
trauma, near the south bedroom. Among the items collected from
the south bedroom were: blood-stained bedding and baby clothes;
blood-stained baby diapers and wipes; a tube of Astroglide
lubricant; and a pair of jeans with blood stains on the lap. DNA
testing later showed that Amora’s blood was on these items.
On December 13th, [Milam’s] sister, Teresa, went to see [Milam]
in jail. That night, she told her aunt that she “was needing to find
a way to get back out to the trailer in Tatum” because “Blaine had
told her that she needed to go out there to the trailer to get some
evidence out from underneath of it.” The aunt called Sgt. Rogers
and told her that “she needed to get out to the trailer immediately,
5
that Teresa was wanting to go out there to get some evidence out
from underneath the trailer.”
Sgt. Rogers immediately obtained a search warrant, crawled under
the trailer, and discovered a pipe wrench inside a clear plastic bag.
The pipe wrench had been shoved down “a hole in the floor of the
master bathroom.” Forensic analysis revealed components of
Astroglide on the pipe wrench, the diaper Amora had been
wearing, and the diaper and wipes collected from the south
bedroom.
Dr. Robert Williams, a forensic odontologist, compared the bite
marks found on Amora’s body with bite dentition models obtained
from [Milam], Jesseca, and [Milam’s] brother Danny Milam. Dr.
Williams testified that, to “a reasonable degree of dental
certainty,” [Milam’s] dentition matched eight bite marks on
Amora. He could exclude Jesseca from all but one of the bite
marks, and he could exclude Danny from all of the bite marks.
Shirley Broyles, the nurse at the Rusk County Jail, testified that
[Milam] called for her one day in January. She found him crying
in his cell. He handed her a written request to talk to Sgt. Rogers,
and told Ms. Broyles: “I’m going to confess. I did it. But Ms. Shirley,
the Blaine you know did not do this. My dad told me to be a man,
and I've been reading my Bible. Please tell Jesseca I love her.”
B. The Defense Guilt–Stage Evidence.
[Milam’s] defense focused on Jesseca as the murderer. The defense
called Heather Carson, Jesseca’s mother, who said that Jesseca
and [Milam] starting [sic] dating around January 2008 and got
engaged a few months later. Jesseca moved in with [Milam] and
his parents that spring. When Jesseca turned eighteen, she
received an insurance settlement from her father’s 2001 death.
Heather noticed an immediate change in Jesseca; she became
withdrawn and stopped caring about her appearance. Jesseca
started harassing Heather with telephone calls. When Heather
learned that Jesseca was making serious and unfounded
allegations against her, she stopped talking to her.
6
Lisa Taylor testified that Jesseca was her daughter’s best friend
while growing up in Alabama. Ms. Taylor knew Jessica as “sweet,
outgoing, outspoken, funny.” She said that Jesseca, [Mr. Milam],
and Amora visited them in Alabama twice in the fall of 2008. First,
they came for one night in October. Jesseca was making “bizarre”
accusations about her mother. In November, the trio returned to
Alabama for about four days and said that they were planning to
move there. Ms. Taylor said that there was a “drastic change” in
Jesseca’s demeanor. She was “[w]eird, hollow ... [l]ike empty.”
Looking into her eyes was “like looking into a dark space.” Jesseca
was not taking care of Amora and did not give her a bath for the
whole week. She had [Milam] change Amora’s diaper and feed her.
Jesseca seemed in charge, and when she told [Milam] to do
something, he did it. Ms. Taylor was concerned that there was
something profound going on in Jesseca’s life and was worried
about her and her baby.
A psychiatrist, Dr. Frank Murphy, testified that he was asked to
“offer an opinion in this case of the mental state of Jesseca Carson
for the time period beginning sometime around August of 2008
through December 2nd of 2008.” Dr. Murphy read interviews with
Jesseca and other materials but did not talk to Jesseca. Dr.
Murphy said Jesseca’s symptoms were consistent with a “psychotic
depression ... . The depression occurs first, and then it gets severe
enough that psychosis or loss of touch with reality then occurs...
. Psychosis means someone has lost touch with reality. The vast
majority of times, that means either they're hallucinating or
they’re delusional.”
The defense odontologist, Dr. Isaac, studied five of the bite marks,
and could not exclude either [Milam] or Jesseca.
Milam v. State, No. AP-76,379, 2012 WL 1868458, *1-4 (Tex. Crim. App. May
23, 2012). The CCA also summarized the punishment-phase evidence.
C. The State’s Punishment–Stage Evidence.
The State offered evidence that [Milam] was—at the time of this
crime—on probation for solicitation of aggravated sexual assault
of a child under the age of fourteen. [Milam] had entered the home
7
of an eleven-year-old neighbor, Karah Hodges, and left a stack of
pages torn from pornographic magazines, marked with salacious
notes, in Karah’s dresser drawer. [Milam’s] probation terms
prohibited him from going within “200 feet of a premise where
children commonly gather, including school, daycare facility,
playground, public or private youth center, public swimming pool,
or video facility.” [Milam’s] “mere presence” with Amora was,
therefore, a continuing probation violation.
Ranger Ray was recalled to play the entire patrol-car conversation
he had recorded with [Milam]. [Milam] had told Ranger Ray that
a third party had forced him to solicit Karah Hodges. He also
discussed several assaults, all of which he described as being of the
“he had it coming” variety.
Glenda Risinger, who rented an apartment to [Milam] and Jesseca
in the fall of 2008, testified that when the pair left, the
apartment “was trashed. There was stuff left everywhere. The
refrigerator was left open with food still in it.... It was pretty much
just like they just went through and trashed it.” She also found a
lightbulb containing methamphetamine and a hunting knife in the
toilet tank.
Bryan Perkins, [Milam’s] former boss, testified that [Milam] had
“control issues” and a “very short” fuse. [Milam] would bring
Jesseca to work to keep an eye on her. Mr. Perkins said, “I started
talking to him about his controlling problems, you know, that if he
kept on controlling his woman, she was going to leave him. And,
you know, he just said it seemed like, you know, with that baby,
him and Jesseca were not really going to have a life.” Mr. Perkins
also described a fight [Milam] had with a customer.
Monty Clark, a Rusk County patrol deputy, testified that, in
January 2008, he responded to a fight on the side of the road
between [Milam] and his brother, Danny. He arrested [Milam] for
assault and family violence.
Kenneth McDade, a fellow inmate, testified that [Milam] told him
about a plan to escape from the jail and also threatened to stab
him with a pencil.
8
Jesseca’s friend, Crystal Zapata, described an incident that
occurred after [Milam’s] father died in September but before
Amora was killed in December. Ms. Zapata was inside the trailer
with Amora, while [Milam] and Jesseca were arguing outside.
[Milam] had a gun and threatened suicide; Jesseca was trying to
calm him down. Ms. Zapata heard a gunshot. After a few minutes
Jesseca came in the door crying and told Ms. Zapata that he had
shot into the floorboard of her car when she tried to keep him from
leaving. Ms. Zapata characterized [Milam] as dominant in the
relationship.
D. The Defense Punishment–Stage Evidence.
The defense sought to rebut the State’s future-dangerousness
evidence with both lay and expert witnesses.
[Milam’s] mother, Shirley Milam, attributed [Milam’s] solicitation
of aggravated sexual assault to his mental immaturity. She said
he stopped maturing emotionally at age twelve. She testified that
[Milam] had an on-and-off methamphetamine problem and that he
had started using drugs again shortly after his father’s death.
Shirley testified that, after the second time [Milam] tried to
commit suicide to “go be with [his] daddy,” she unsuccessfully tried
to have him civilly committed. In early November, Jesseca and
[Milam] brought a Ouija board to Shirley’s work and told her that
they could communicate with their dead fathers.
[Milam’s] older sister testified that [Milam] was a polite, passive
child and a polite, passive adult. This crime was completely out of
character for him. [Milam’s] childhood friend said that he did not
think [Milam] was capable of Amora’s murder or aggravated
sexual assault. He echoed what [Milam’s] family members said
about the effect of his father’s death: “It affected him really bad,
because like him and his dad was real close.”
Dr. Patricia Rosen, a medical toxicologist, testified that toxicology
reports indicated that [Milam] had 0.17 milligrams of
methamphetamine per liter of blood in his system on December
2nd. Dr. Rosen said this was a “high” dose-ten times the
therapeutic dose. Another expert testified about the effects of
methamphetamine on the brain and gave her opinion that [Milam]
9
was a chronic methamphetamine user, whose heavy use could
have caused severe psychosis.
Dr. Mark Cunningham, a clinical and forensic psychologist,
testified that he was asked to evaluate two issues concerning
[Milam]: 1) “how did we get here?” and 2) “where do we go from
here?” Dr. Cunningham interviewed [Milam] three times, for a
total of nearly ten hours. He also interviewed [Milam’s] mother
and sisters, and reviewed “a huge volume of records.” Dr.
Cunningham summarized the answer to the “how did we get here”
question:
There’s mental deficiency, youthfulness, meth
dependence, meth psychosis, Jesseca’s psychosis.
Those are all interacting with each other. That’s all
part of the matrix of his psyche. Now, it’s not just those
things, of course. There’s also the trauma and
deprivation, the social deprivation I’m describing, as
well as the trauma of his dad’s illness, and those
experiences. There is the social isolation that came
about that robs him of social resources that he might
have called upon for some reality testing. There’s
premature responsibility. There’s the death of his
father. All of these things are being loaded on and are
interacting with each other, as we’re coming up to this
offense, and the effect of that is this tragedy.
Dr. Cunningham answered the “where do we go from here?”
question by outlining the reasons why [Milam] was “likely to have
a nonviolent adjustment, in terms of no serious violence, to a life
without parole sentence in TDCJ.”
• [Milam’s] “nonviolent adjustment to 17 months jail
pretrial”;
• “Appraisal of the correctional staff was not that
[Milam] was going to be a predatory inmate that they
needed to lock down”;
• [Milam’s] history of employment: starting work at
16, and gaining “a pretty significant employment
history for a kid that’s arrested when he’s 18”;
10
• [Milam’s] continuing contact and relationship with
family;
• The relatively low rate of major assaults committed
by capital inmates serving a life term;
• The fact of serving a sentence of life without parole
(“inmates facing life-without-parole sentences and
long sentences have more to lose. This is where they’re
going to be for a very long time and potentially the rest
of their lives, and because of that, they are particularly
motivated not to make this experience any more
horrible on themselves than it has to be.”);
• The fact that he would be an inmate in the Texas
prison system (“99.9 percent of inmates in Texas
prisons in 2009 did not commit an assault resulting in
injuries with more than first aid treatment”);
• The option of [Milam] going to the Hodge Unit (“a
unit for intellectually limited individuals” with a
program designed to meet their needs “and help
prevent them from being victimized by other
inmates”);
• The option of protective custody (“because of the
nature of his offense ... for his safety so that other
inmates didn’t act out on him. Those conditions of
confinement would look in many ways like
administrative segregation.”)
On cross-examination, Dr. Cunningham testified that he is always
a defense expert because “the research is very clear that the
overwhelming majority of capital offenders will never be violent in
prison, that the rates of serious violence in prison are very low,
that prisons are extraordinarily effective in minimizing the
occurrence of serious violence.”
Milam v. State, 2012 WL 1868458, at *4-6 (footnotes omitted).
II.
The State-Court and Federal Appellate Proceedings.
The CCA affirmed Milam’s conviction and sentence on direct appeal.
Milam v. State, 2012 WL 1868458. He did not seek certiorari review. On
11
September 11, 2013, the CCA adopted the trial court’s recommended findings
of fact and conclusions of law and denied state habeas relief. Ex parte Milam,
No. WR-79,322-01 (Tex. Crim. App. 2013). The district court denied federal
habeas relief and a certificate of appealability (COA). Milam v. Director, TDCJCID, No. 4:13-cv-545, 2017 WL 3537272 (E.D., Sherman Div. Aug. 16, 2017).
The Fifth Circuit also denied COA. Milam v. Davis, No. 17-70020, 2018 WL
2171208 (5th Cir. May 10, 2018), cert. denied, Milam v. Davis, 139 S. Ct. 335
(2018).
Milam then filed a subsequent state habeas application. The CCA stayed
his January 15, 2019 execution date pursuant to Article 11.071 § 5(a)(1), and
remanded the application to the trial court for a review of two claims on the
merits.1 Ex parte Milam, No. WR-79,322-02, 2019 WL 190209 (Tex. Crim. App.
2019). On July 1, 2020, the CCA denied habeas relief, based upon the trial
court’s proposed findings and conclusions (with several noted exceptions) and
the court’s own review. Ex parte Milam, 2020 WL 3635921 (Tex. Crim. App.
July 1, 2020). This Court denied certiorari review of this decision on February
22, 2021. Milam v. Texas, 141 S. Ct. 1402 (2021).
The CCA remanded Milam’s first claim alleging that current relevant scientific
evidence related to the reliability of bite mark comparison contradicts expert
testimony presented and relied upon at trial; and his second claim, alleging that his
execution would violate the Eighth and Fourteenth Amendments because he is
intellectually disabled, and citing Moore I as a recent change in the law pertaining to
the issue of intellectual disability. Ex parte Milam, 2021 WL 190209, at *1.
1
12
Milam sought permission to collaterally challenge the CCA’s decision
and file an Atkins claim in the federal district court. Milam also asked the Fifth
Circuit to certify to this Court, pursuant to 28 U.S.C. § 1254(2) and Supreme
Court Rule 19, the following question: “Does the new rule of constitutional law
announced by [this Court] in [Moore I] apply retroactively to cases on collateral
review?” The Fifth Circuit denied his motion for authorization, finding both
Moore I and Atkins were previously available, and denied his motion for
certification as moot. See In re Milam, 838 F. App’x 796, 798-800 (5th Cir. Oct.
27, 2020).
Despite the Fifth Circuit’s explicit denial of authorization, on December
15, 2020, Milam nevertheless filed a second petition for writ of habeas corpus
in the U.S. District Court for the Southern District, and an accompanying
memorandum of law in support of that court’s authority to review the petition.
See ECF No.’s 1 and 4 (E.D. Tex., Case No. 6:20-cv-0066). Lacking jurisdiction,
the Southern District transferred the case to the U.S. District Court for the
Eastern District—the court that denied Milam’s original federal habeas
petition—see ECF No.’s 6-8, and, on December 17, 2020, the Eastern District
transferred the petition to the Fifth Circuit for consideration under 28 U.S.C.
§ 2244(b)(2), see ECF No. 9; Milam v. Director, No. 6:20-CV-646, Order of
Transfer, at 1-2. (E.D. Tex. Dec. 17, 2020) (Petitioner’s Appendix 2, at 6). On
December 28, 2020, Milam appealed, in the Fifth Circuit, the district court’s
13
transfer order, and filed a motion for stay of execution. On January 8, 2021,
the Fifth Circuit affirmed the order of transfer and denied the motion for stay.
See In re Milam, 832 F. App’x 918, 921 (5th Cir. Jan. 8, 2021) (Petitioner’s
Appendix 1, at 5).
On January 12, 2021, Milam filed in the CCA a second subsequent
application for habeas relief based upon newly discovered evidence, and a
motion for stay of execution, which the CCA granted and remanded to the trial
court. See Ex parte Milam, No. WR-79,322-04, 2021 WL 197088, at *1 (Tex.
Crim. App. Jan. 15, 2021). This matter remains pending.
On June 4, 2021, Milam filed the instant petition, appealing the Fifth
Circuit’s affirmation of the order of transfer.
REASONS FOR DENYING THE WRIT
Milam presents no compelling reason for granting review. See Sup. Ct.
R. 10. Pursuant to 28 U.S.C. § 2244(b)(3), Milam was required to obtain
authorization from the Fifth Circuit Court of Appeals before filing a
subsequent application for habeas relief in the federal district court, but the
Fifth Circuit denied such authorization. Despite this explicit denial, Milam
nevertheless filed a successive application in the district court. Lacking
jurisdiction, the district court properly transferred the unauthorized
application to the Fifth Circuit which affirmed the district court’s order, relying
on its prior conclusion that the claim could have been raised in a prior
14
application. See Petitioner’s Appendix 1, at 3-5; see also § 2244(b)(2) (claim
presented in a successive application, not presented in prior application, shall
be dismissed unless applicant shows claim relies on new retroactive rule of law,
or factual predicate could not have previously been discovered).
Milam fails to establish any error in the Fifth Circuit’s denial of
authorization and upholding of the district court’s transfer order, or any
compelling reason for the Court to consider carving out an exception to the
statutory prohibition against successive petitions under 28 U.S.C. § 2244. Not
only are the circuits in agreement that § 2244(b) precludes review of a
previously available intellectual disability claims raised for the first time in
federal court following Moore I, but this Court has upheld application of
§ 2244(b)’s restrictions on the filing of succession applications. See Felker v.
Turpin, 518 U.S. 651, 662 (1996). Regardless, Milam is not without remedy,
should the Court deny his petition for review. For these reasons, certiorari
should be denied.
ARGUMENT
I.
Milam’s Petition for Certiorari is Statutorily Prohibited.
Milam’s current petition is nothing more than an effort to circumvent
AEDPA’s restriction on appeal of the denial of authorization to file a successive
habeas petition. 28 U.S.C. § 2244(b)(3)(E). Knowing he was statutorily
precluded from appealing the Fifth Circuit’s denial of authorization, Milam
15
now seeks relief by appealing the affirmance of the district court’s transfer
order, transferring a successive petition filed without authorization and filed
after the Fifth Circuit had already denied authorization to do so. See Petition
at 4-5. But Milam’s attempt to circumvent AEDPA’s explicit prohibition on
appeals of the denial of authorization should not be permitted.
As set forth above, the Fifth Circuit denied authorization to file a
successive petition in the federal district court because Milam failed to
demonstrate unavailability of his claim pursuant to § 2244(b)(2)(A). See In re
Milam, 838 F. App’x 796. In filing this motion for authorization, Milam thus
conceded his claim is successive and subject to § 2244(b). He nevertheless
flouted the appellate court’s order and filed a successive petition in the district
court, raising the same claim, and arguing the district court did not need
authorization for the reasons he now presents—reasons he did not present to
the Fifth Circuit in his original motion for authorization. But the district court
was indeed without jurisdiction to consider his successive petition and properly
transferred it back to the Fifth Circuit.
By purportedly appealing the denial of transfer, Milam sidesteps the
§ 2244(b)(3)(E) prohibition on appeal and impermissibly puts the Fifth
Circuit’s denial of authorization before the Court. The Court should not
entertain his efforts to circumvent the statute.
16
II.
The Fifth Circuit Properly Determined Milam Was Not Entitled
to Authorization to Appeal his Atkins Claim Because He Could
Not Satisfy § 2244(b)(2), and Milam Does Not Present a
Compelling Reason to Carve Out a Statutory Exception.
The Fifth Circuit rejected Milam’s appeal of the denial of the district
court’s transfer order, holding—as it did in its earlier denial of a motion for
authorization to file in the district court—that Milam’s intellectual disability
claim, pursuant to either Moore I or Atkins, could have been raised in an earlier
petition. Because Milam had sufficient opportunity to raise an intellectual
disability claim in a prior petition, the Fifth Circuit must construe his secondin-time habeas petition as successive. See Petitioner’s Appendix 1 at 4-5.
Because the Fifth Circuit had previously concluded that Milam could not
establish prior unavailability of his claim and that his petition was barred
under § 2244(b)(1), see In re Milam, 838 F. App’x at 798-99, the federal district
court clearly lacked jurisdiction to consider the petition and correctly
transferred it to the Fifth Circuit, who upheld that decision, thus dismissing
the claim a second time.
Milam now asks to the Court to grant certiorari to decide whether
§ 2244(b) can be interpreted to bar first-time federal court merits adjudication
of an Eighth Amendment claim of intellectual disability after Moore I. Petition
at 8. But Milam fails to present any compelling reason to grant certiorari
review of this issue. First, he concedes that every circuit to consider the issue
has interpreted § 2244(b) to preclude such review. See Petition at 8 (citing
17
Bowles v. Secretary, Fla. Dept. of Corrections, 935 F.3d 1176, 1180 (11th Cir.
2019), cert. denied, Bowles v. Inch, 140 S. Ct. 26 (2019) (finding that petitioner’s
claim in federal court that he was intellectually disabled based on the holding
in Moore I did not satisfy 28 U.S.C. § 2244(b)); In re Payne, 722 F. App’x 534,
538−39 (6th Cir. 2018) (same); Williams v. Kelley, 858 F.3d 464, 473 (8th Cir.
2017) (same)). Thus, there exists no conflict for the Court to resolve. See Sup.
Ct. R. 10(a).
Nevertheless, Milam complains that the outcome reached by every
circuit to consider the issue “cannot be reconciled with the Eighth Amendment
or the Suspension Clause.” Petition at 8. But the concern identified by Milam—
that § 2244(b) renders federal courts powerless to enforce the Eighth
Amendment prohibition against execution of the intellectually disabled,
Petition at 8 (citing Bourgeois v. Watson, 141 S. Ct. 507 (2020) (Sotomayor, J.,
dissenting from denial of certiorari))—does not exist in his case. Milam’s
execution has been stayed and his case remanded to the trial court for
consideration of his Atkins claim based upon new evidence. See Ex parte
Milam, 2021 WL 197088, at *1. Thus, this would be a poor case for the Court
to consider creating an exception to AEDPA.
18
A.
The application of § 2244(b) to preclude review of Milam’s
intellectual disability claim does not violate the Eighth
Amendment.
While the Eighth Amendment may categorically prohibit a state from
executing an intellectually disabled person, see Atkins, 536 U.S. at 31, it does
not prevent an appellate court from applying constitutionally permissible
restrictions on the filing of successive applications. See Felker, 518 U.S. at 662,
664 (The restrictions on repetitive or new claims imposed by §§ 2241(b)(1) and
(2) “apply without qualification to any ‘second or successive habeas corpus
application under section 2254.’”)
This Court has indeed recognized that second in time does not
necessarily mean second or successive within the meaning of § 2244(b)’s
successive writ bar.2 But § 2244(b) applies to the circumstances at issue here,
i.e., where the issue of intellectual disability was litigated and rejected at trial,
See e.g., Magwood v. Patterson, 561 U.S. 320, 323-24 (2010) (holding that
habeas application challenging for the first time a new judgment following
resentencing was not “second or successive” under § 2244(b)); Panetti v. Quarterman,
551 U.S. 930, 945 (2007) (holding “Congress did not intend the provisions of AEDPA
addressing ‘second or successive’ petitions to govern a filing in the unusual posture
presented here: a §2254 application raising a Ford-based incompetency claim filed as
soon as that claim is ripe.”); Slack v. McDaniel, 529 U.S. 473, 487 (2000) (holding that
a petition filed after a mixed petition has been dismissed and before the district court
adjudicated any claims is treated as a first petition, and not second or successive);
Stewart v. Martinez-Villareal, 523 U.S. 637, 643-44 (1998) (holding that respondent
was not required to obtain authorization to file second or successive application where
previously raised and dismissed Ford v. Wainwright, 477 U.S. 399 (1986) claim was
now ripe for review).
2
19
where the petitioner failed to appeal that determination despite availability of
the claim in both state and federal court, and where the state court has granted
successive review under new legal authority but determined that no error
described by that authority occurred in his trial. The Fifth Circuit’s refusal to
grant permission to file a successive writ, and subsequent upholding of the
district court’s transfer of an impermissibly filed successive writ, was entirely
appropriate under these circumstances.
Milam’s reference to Webster v. Daniels, 784 F.3d 1123, 1139 (7th Cir.
2015) (en banc), Petition at 9-10, provides little support. In that petitioner’s
case, the Fifth Circuit denied permission to a federal death row inmate to bring
a successive claim under 28 U.S.C. § 2255(h)(1),3 where the petitioner did not
assert that the newly discovered evidence would negate his guilt of the crime.
In re Webster, 605 F.3d 256, 257 (5th Cir. 2010). The Fifth Circuit declined to
interpret the statute beyond the express language contained therein, which
limited claims based on newly discovered evidence to those suggesting the
petitioner was not “guilty of the offense,” rather than the death penalty. Id. at
258-59. Webster’s efforts to bypass the Fifth Circuit’s ruling by filing in the
Because of the similarity of the actions under § 2255 (governing collateral
attacks on federal convictions) and §2244 (governing attacks on state court
convictions), the two sections “have traditionally been read in pari materia where the
context does not indicate that would be improper.” In re Webster, 605 F.3d 256, 257
n.2 (5th Cir. 2010) (citing United States v. Flores, 135 F.3d 1000, 1002 n.7 (5th Cir.
1998)).
3
20
Seventh Circuit were ultimately successful. See Webster v. Daniels, 784 F.3d
at 1135-36 (proceeding filed in the Southern District of Indiana where
petitioner imprisoned); see id. at 1140 (applying the § 2255(h)(1) “savings
clause,” where records predating trial and suggesting intellectual disability
were newly discovered, failure to discover records was not due to lack of
diligence by counsel, and records bear directly on the constitutionality of the
death sentence). However, the Seventh Circuit acknowledged this was “a rare
case.” Id. That court stated, “this rule cannot apply to all newly discovered
evidence, or else there would never be any finality to capital cases involving . .
. the intellectually disabled. . . . [I]t would always be possible to conduct more
I.Q. and adaptive functioning tests in the prison. Those new scores would have
no bearing on the initial conviction and sentence, though they would be highly
pertinent to the ultimate ability of the government to carry out the sentence.
But our concern is with the former, not the latter.” Id.
Notably, the Seventh Circuit distinguished another capital murder
petitioner attempting to raise a successive Atkins claim through the federal
“savings clause” following Moore I, concluding: “Unlike Webster, Bourgeois has
no newly discovered evidence. Instead, he had a full and fair opportunity to
litigate his intellectual disability claim before the district court that decided
his § 2255 motion.” Bourgeois v. Watson, 977 F.3d 620, 638 (7th Cir. 2020). This
21
Court declined to grant certiorari review in that case. Bourgeois v. Watson, 141
S. Ct. 507 (Dec. 11, 2020).4
The Seventh Circuit cases, involving federal death penalty inmates
challenging their federal sentences in federal court, recognize that the savings
clause can apply where the petitioner would be otherwise ineligible for death,
but was prevented from timely raising a claim in a prior petition through no
fault of his own (or his counsel’s). But, as noted, these circumstances did not
occur here. The opportunity to litigate this claim was there, but Milam
repeatedly failed to take it. Furthermore, the jury determined that he was not
intellectually disabled, and Milam presented little to rebut that determination
on his first successive review in the state court. See Ex parte Milam, 2019 WL
4
Justice Sotomayor dissented, asserting that Bourgeois “puts forth a strong
argument that federal prisoners sentenced to death should be able to file new habeas
petitions if they can show a potentially dispositive change in the diagnostic landscape
following their first petition,” while the Seventh Circuit’s position “seemingly allows
the United States to ‘carr[y] out’ a death sentence upon a person who ‘is’ indisputably
intellectually disabled under current diagnostic standards, contrary to the FDPA’s
express terms.” Bourgeois, 141 S. Ct. at 509 (citing 18 U.S.C. § 3596(c)). Milam relies
on this dissent to argue the Court should “resolve the tension between substantive
Eighth Amendment constitutional mandates and the operation of Section 2244(b)[.]”
Petition at 8. As will be discussed, no such “tension” exists in this case because avenues
for relief still exist for Milam, despite his failure to timely raise his claim in his initial
writ or demonstrate Moore I error in his first successive writ. Furthermore, unlike
Bourgeois, a jury determined that Milam was not intellectually disabled, and, postMoore I, the state court concluded that the errors identified in Moore I did not exist in
his trial. See Ex parte Milam, 2020 WL 3635921. Thus, Milam sits in a very different
posture from Bourgeois, where a district court concluded that Bourgeois had made a
“strong showing” of intellectual disability under current standards, but the Seventh
Circuit declined authorization for successive review based upon a prior court’s
determination that he was not intellectually disabled relying “heavily” on factors rejected
by Moore I. Bourgeois, 141 S. Ct. at 507-08 (Sotomayor, J., dissent).
22
190209 (Yeary, J., dissenting) (“[Milam] presented a prima facie case for
intellectual disability at the punishment phase of his capital murder trial in
2010, but the jury rejected it[,]” and Milam now relies “primarily upon the
same evidence of intellectual disability that was presented to the jury [.]).
Milam’s complaint about the unconstitutionality of § 2244(b) as it applies
to him ignores the jury’s determination to the contrary. That state court
determination merits significant deference in these federal proceedings. As
this Court found in Davila v. Davis,
The criminal trial enjoys pride of place in our criminal justice
system in a way that an appeal from that trial does not. The
Constitution twice guarantees the right to a criminal trial, . . . but
does not guarantee the right to an appeal at all . . . . The trial “is
the main event at which a defendant’s rights are to be determined,”
. . . “and not simply a tryout on the road to appellate review[.]” And
it is where the stakes for the defendant are highest, not least
because it is where a presumptively innocent defendant is
adjudged guilty, . . . and where the trial judge or jury makes factual
findings that nearly always receive deference on appeal and
collateral review . . . .
137 S. Ct. 2058, 2066 (2017) (internal citations omitted). His continued
disagreement with the jury’s determination does not warrant carving out an
exception to AEDPA’s prohibition on successive applications.
Furthermore, while denial of a motion for authorization is not
appealable, § 2244(b)(3)(E) did not repeal this Court’s jurisdiction to entertain
original habeas petitions. See Felker, 518 U.S. at 658-63. Milam does not now
23
seek such review but asks this Court to create an exception to AEDPA. The
Court should decline to do so when he has not exhausted all available remedies.
To that end, Milam fails to inform the Court that an additional remedy
still exists. He notes that new evidence has come to light, after the Fifth Circuit
denied permission to file a successive writ pursuant to § 2244. See Petition at
2 n.1, 7 n.4. Based upon this evidence, Milam returned to state court, where
the CCA stayed his pending execution and remanded his second successive
writ to the trial court for consideration of an Atkins claim. See Ex parte Milam,
2021 WL 197088, at *1. Milam nevertheless asks the Court to grant certiorari
review to “resolve the tension” between the Eighth Amendment prohibition
against the execution of the intellectually disabled and the operation of
§ 2244(b) “that appears to render federal courts powerless to enforce them,”
Petition at 8; Bourgeois, 141 S. Ct. at 509 (Sotoymayor, J., joined by Kagan, J.,
dissenting), without acknowledging that any “tension” no longer exists in this
case.
The discovery of new evidence and subsequent stay and remand by the
CCA aligns Milam’s case with Webster. See Webster v. Daniels, 784 F.3d at 1140
(allowing a petitioner to use the § 2255(h)(1) savings clause where records
predating trial and suggesting intellectual disability were discovered, failure
to discover records was not due to lack of diligence by counsel, and records bear
directly on the constitutionality of the death sentence); see also Bourgeois, 977
24
F.3d at 638 (“Unlike Webster, Bourgeois has no newly discovered evidence.”)
Because Milam’s new evidence was not discovered until after the Fifth Circuit
denied authorization and affirmed the district court’s transfer, the appellate
court never considered it. Nevertheless, AEDPA encourages state court
resolution of issues in the first instance, see 28 U.S.C. § 2254, thus the claim
currently resides in the proper court of jurisdiction, awaiting resolution. This
Court should not interfere by unnecessarily granting certiorari to review the
Fifth Circuit’s decision.
Because Milam still has an avenue to relief available in the state court,
this Court need not consider creating a statutory exception to AEDPA.
B.
Section 2244(b) does not violate the Suspension Clause.
Finally, Milam complains that the operation of § 2244(b) results in a
violation of the Suspension Clause. Milam acknowledges that the Supreme
Court has already rejected the argument that § 2244(b) constitutes an
unconstitutional suspension of the writ but argues that his case is different
because it involves a substantive limitation on the State’s power to act, and the
Eighth Amendment has “evolved.” Petition at 10-11.
This argument is insufficient to overcome Felker. Indeed, this Court
specifically noted that, “[t]he added restrictions which [AEDPA] places on
second habeas petitions are well within the compass of this evolutionary
process, and . . . do not amount to a ‘suspension’ of the writ contrary to Article
25
I, § 9.” Felker, 518 U.S. at 664; see also McCleskey v. Zant, 499 U.S. 467, 48788 (1991) (“[T]he doctrine of abuse of the writ refers to a complex and evolving
body of equitable principles informed and controlled by historical usage,
statutory developments, and judicial decisions.”). Indeed, as this Court
acknowledged, AEDPA’s requirement that a habeas petitioner must obtain
leave from the court of appeals before filing a second petition in the district
court “simply transfers from the district court to the court of appeals a
screening function which would previously have been performed by the district
court[.]” Felker, 518 U.S. at 664.
Milam’s arguments now are based on nothing more than his
disagreement with the jury’s determination that he is not intellectually
disabled, and with the Fifth Circuit’s conclusion that he cannot meet an
exception to the statutory prohibition to his claim. But Milam could have
challenged the jury’s determination in any of his prior state or federal appeals.
Furthermore, as found by the Fifth Circuit, he could have amended his federal
petition and sought to return to state court following the issuance of the
Moore I decision. See In re Milam, 838 F. App’x at 798-99. He did not. This
Court’s application of § 2244(b) to preclude filing a successive writ now does
not amount to an unconstitutional suspension of the writ.
And, as noted, Milam is not without recourse as his intellectual disability
claim is currently pending in the state court. This Court need not disturb long26
standing precedent or carve out an exception to statutory law under these
circumstances.
CONCLUSION
The Fifth Circuit correctly denied Milam’s motion for authorization to
file a successive writ and affirmed the district court’s transfer of the
subsequently filed successive application. For all the reasons discussed above,
the Court should deny Milam’s petition for a writ of certiorari.
Respectfully submitted,
KEN PAXTON
Attorney General of Texas
BRENT WEBSTER
First Assistant Attorney General
JOSH RENO
Deputy Attorney General
for Criminal Justice
EDWARD L. MARSHALL
Chief, Criminal Appeals Division
__________________________
*TOMEE M. HEINING
*Attorney in charge
Assistant Attorney General
Texas Bar No. 24007052
Office of the Attorney General
Criminal Appeals Division
P. O. Box 12548, Capitol Station
Austin, Texas 78711-2548
tomee.heining@oag.texas.gov
27
Telephone: (512) 936-1600
Telecopier: (512) 320-8132
28
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.