IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 02-21208 _____________________

JAMES BLAKE COLBURN

Petitioner - Appellant

v.

JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION

Respondent - Appellee

_________________________________________________________________

On Application for a Certificate of Appealability Appeal from the United States District Court for the Southern District of Texas No. H-02-4180 _________________________________________________________________ November 6, 2002

Before KING, Chief Judge, and JOLLY and DeMOSS, Circuit Judges.

PER CURIAM:*

Petitioner-Appellant James Blake Colburn, who is scheduled

to be executed at 6 pm on November 6, 2002, seeks a certificate

of appealability (COA) in order to appeal the Order of 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. District Court for the Southern District of Texas denying his

Motion for Stay of Execution, Motion for Appointment of Counsel

and Motion for Constitutionally Adequate Determination of Mr.

Colburn’s Present Competency To Be Executed. Colburn’s motions

to the district court were premised on his argument that he is

incompetent to be executed under the standards set forth in Ford

v. Wainwright,

(1986). We decline to issue a COA.

I. FACTS AND PROCEDURAL HISTORY

Briefly, Colburn was convicted and sentenced to death in

1995 for the murder of a woman hitchhiking near his home. The

Court of Criminal Appeals denied his appeal; in doing so, it

refused to consider the claim that he was incompetent to be

executed, finding it unripe for consideration because Colburn’s

execution was not imminent. Colburn v. State,

(Tex. Crim. App. 1998). After exhausting state habeas

relief, he filed a federal petition for a writ of habeas corpus

in the District Court for the Southern District of Texas in 1999.

In that petition, Colburn raised several issues, including his

lack of competency to stand trial. However, Colburn did not

raise the claim that he was incompetent to be executed under the

Ford standard. The district court denied his request for relief.

In an unpublished opinion, we denied his request for a COA on any

of the issues raised.

Execution was set for November 6, 2002. On September 24,

2002, the state filed a request in state court for a mental

2 evaluation of Colburn’s competency to be executed. Colburn filed

a Motion to Stop Involuntary Psychiatric Treatment; and To

Conduct Competency Examination After Proper Diagnosis of

Psychiatric Disorder. He also moved to stay his date of

execution and for appointment of, and funding for, an independent

psychiatric expert. The state court denied all of Colburn’s

motions.

Colburn was evaluated by two experts appointed by the court

(but recommended by the state); the experts agreed that, while

Colburn suffered from some form of schizoaffective disorder, he

understood the reasons he was being executed and otherwise

satisfied the Ford requirements. Colburn then filed an

additional motion for a new competency evaluation by a

“qualified” expert; with it, he filed an affidavit from an expert

who argued that the court’s experts had misdiagnosed Colburn and

that he could not definitively be found competent to be executed

without much more extensive psychiatric testing. The state court

denied that motion as well.

On November 6, Colburn filed in federal district court a

Motion for Stay of Execution, Motion for Appointment of Counsel

and Motion for Constitutionally Adequate Determination of Mr.

Colburn’s Present Competency To Be Executed. Colburn argued that

the Texas statutory provisions for determining competency to be

executed provided inadequate due process in violation of the

Eighth and Fourteenth Amendments. See TEX. CRIM. PRO. CODE ANN. §

3 46.05 (Vernon 2002) (setting forth the procedure for determining

competency to be executed). The district court, treating

Colburn’s motion as a petition for writ of habeas corpus, first

found that Colburn had not raised a Ford claim in his original

habeas petition. Because this was a successive petition, the

court held that Colburn could not file it in the district court

until he had “move[d] in the appropriate court of appeals for an

order authorizing the district court to consider the

application.”

(3) (A) (2000). Therefore, the

court denied Colburn’s request for relief.

The district court denied Colburn’s request for a COA on the

question of whether the court had jurisdiction to rule on his

claims. Colburn now appeals to this court seeking a COA on his

jurisdictional question.

II. APPLICABLE LAW

Under the Anti-Terrorism and Effective Death Penalty Act

(“AEDPA”), a petitioner must obtain a COA before he can receive

full appellate review of the lower court’s denial of habeas

relief. See

(c)(1)(A) (2000) (“Unless a circuit

justice or judge issues a certificate of appealability, an appeal

may not be taken to the court of appeals from the final order in

a habeas corpus proceeding in which the detention complained of

arises out of process issued by a State court.”). We may grant

the petitioner’s request for a COA only if he makes a

4 “substantial showing of the denial of a constitutional right.”

§ 2253(c)(2).

To make such a showing, Colburn must demonstrate that

“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 adequate to deserve

encouragement to proceed further.” Dowthitt v. Johnson,

(5th Cir. 2000), cert. denied,

(2001)

(quoting Slack v. McDaniel,

(2000)).

Where, as here, the district court has denied the petitioner’s

claim on procedural grounds, the petitioner must demonstrate both

that “jurists of reason would find it debatable whether the

petition states a valid claim of the denial of a constitutional

right and that jurists of reason would find it debatable whether

the district court was correct in its procedural ruling” in order

to obtain a COA. Slack,

.

III. COLBURN’S ATTEMPT TO FILE A SUCCESSIVE PETITION

The district court’s procedural ruling in this case was that

it lacked the jurisdiction to consider Colburn’s request for

relief because he was presenting it as part of a successive

habeas petition without first getting permission to do so as

required by § 2244(3)(A). As already discussed, Colburn has

previously filed a petition for habeas relief in federal court;

that petition was denied. Therefore, the district court disposed

of Colburn’s petition on appropriate procedural grounds unless it

5 would be debatable among jurists of reason whether Colburn’s

petition was actually a successive petition within the meaning of

the AEDPA.

The AEDPA does not define “second or successive.” However,

this court has held that a petitioner’s application is “second or

successive when it: (1) raises a claim challenging the

petitioner’s conviction or sentence that was or could have been

raised in an earlier petition; or (2) otherwise constitutes an

abuse of the writ.” United States v. Orozco-Ramirez,

(5th Cir. 2000). Colburn argues that this is not a

successive petition because he could not have raised the issue in

his initial habeas petition. He argues that, had he done so, the

district court would have been forced to dismiss his petition for

containing both exhausted and unexhausted claims. Rose v. Lundy,

(1982). Upon dismissal, he would have returned to

state court and the Court of Criminal Appeals would have again

found his Ford claim unripe. Ultimately, he argues that he would

have been foreclosed from raising any habeas petition at all

until an execution date had been set (thereby making his Ford

claim ripe for appeal).

However, nothing in Rose says that an argument must have

been adjudicated to be found exhausted. Exhaustion requires only

that the state court be provided with a “fair opportunity” to

consider the claim. Duncan v. Henry,

(1995).

If Colburn had raised the claim in the state court (as he did

6 here) and then presented his claim in his original federal habeas

petition, the district court could have dismissed it as unripe

without running afoul of Rose’s proscription against mixed habeas

petitions.

The Supreme Court has held that a petitioner who raises a

Ford claim in his original petition and then re-raises it in a

later petition once it is ripe for adjudication (because the

execution date is imminent) is not presenting a “second or

successive” petition within the meaning of § 2244. Stewart v.

Martinez-Villareal,

(1998). Instead, the Ford

claim is treated “in the same manner as the claim of a petitioner

who returns to a federal habeas court after exhausting state

remedies.”

The Court left open the question of whether a

petitioner who did not present his Ford claim in his original

petition, but raised it later on, was raising it in a successive

petition.

at 645 n.1.

However, the well-established law of this circuit is that a

petitioner who fails to raise his Ford claim in his original

habeas petition may not later raise it as part of a subsequent

petition. In re Davis,

(5th Cir. 1997).

While the vitality of Davis was questioned after Stewart, we

recently reconsidered Davis in the light of Stewart and

reaffirmed the Davis holding. Richardson v. Johnson,

(5th Cir. 2001).

7 In Richardson, we considered the argument that § 2244 should

not apply to Ford claims because they cannot become ripe until

execution is imminent. We noted that accepting such an argument

“would mean as a practical matter that no Ford claim would need

to be presented in a first filed habeas, given that state courts,

in part at our urging, now seldom set execution dates until after

the first round of appeals and habeas.” Id. at 259.

Furthermore, focusing on the first Slack inquiry - whether

jurists of reason would find it debatable whether the petition

states a valid claim of the denial of a constitutional right -

like the petitioner in Richardson, Colburn here has pointed “to

nothing which shows that he is presently incompetent to be

executed.” Id. The state court appointed two qualified mental

health experts as a precautionary measure to evaluate his

competence to be executed. Both reported that Colburn was

competent to be executed, as required by Ford and TEX. CRIM. PRO.

CODE ANN. § 46.05.

Colburn’s motions basically come down to an argument that

the state court’s procedure was unconstitutional because it

failed to permit him to be evaluated by his own expert. However,

we have previously determined that the statutory procedure under

§ 46.05 is constitutionally adequate and that the defendant has

no right to an expert of his own choosing. Caldwell v. Johnson,

(5th Cir.), cert. denied,

(2000).

IV. CONCLUSION

8 It is not debatable among jurists of reason whether Colburn

was presenting his Ford claim as part of a successive habeas

petition. Therefore, the district court properly refused to rule

on Colburn’s motions because he had failed to apply for

permission to file a successive petition as required by

§ 2244(3)(A). We deny his request for a COA.

9