United States Court of Appeals Fifth Circuit F I L E D UNITED STATES COURT OF APPEALS March 26, 2003 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III _____________________ Clerk

No. 03-20301 _____________________

IN RE: JAMES BLAKE COLBURN

Movant.

No. 03-20308

JAMES BLAKE COLBURN

Petitioner-Appellant v.

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

Respondent-Appellee

On Motion to Stay Execution, Vacate Transfer Order and Remand to Federal District Court and Appeal from the United States District Court for the Southern District of Texas No. H-03-1038

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 March 26, 2003, filed in the district

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. court a motion for stay of execution premised on the argument

that he is incompetent to be executed under the standards set

forth in Ford v. Wainwright,

(1986). The district

court, relying on Fifth Circuit precedent, considered Colburn’s

motion to be a successive habeas application and transferred the

case to this court. See In re Epps,

(5th Cir.

1997). The district court also denied Colburn’s request for a

certificate of appealability (COA). Colburn then filed in this

court a Motion to Stay Execution, Vacate Transfer Order and

Remand to Federal District Court, as well as an Application for

Certificate of Appealability. Treating Colburn’s first motion as

a motion for authorization to file a successive habeas

application,

, we decline authorization to file a

successive habeas application, and we deny a stay of execution.

We also 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. On

direct appeal, the Court of Criminal Appeals affirmed his

conviction and sentence. Colburn v. State,

(Tex.

Crim. App. 1998). 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.

. After exhausting state habeas relief, he filed an

application for a writ of habeas corpus in the District Court for

2 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 initially set for November 6, 2002. However,

Colburn received a stay of execution from the Supreme Court.

Colburn had based his application for stay to the Supreme Court

on two grounds: (1) the state district court failed to satisfy

constitutional requirements of due process when it refused to

grant Colburn a hearing on the question of whether he was

competent to be executed under the Ford standard; and (2) the

federal district court and this court erred in holding that,

because Colburn had not presented his Ford claim in his original

habeas petition, a petition raising that claim now constituted a

second or successive petition. After the stay, Colburn filed a

petition for writ of certiorari further urging these points of

review; however, the Court ultimately declined to grant

certiorari. The state moved to reset the execution date, and

Colburn was rescheduled to be executed on March 26, 2003.

On March 14, Colburn filed a Motion to Vacate Execution Date

and Conduct Proceedings to Adjudicate Ford Competency in state

district court. Colburn argued that a more recent and complete

3 psychiatric evaluation conducted by Colburn’s own expert raised a

significant question as to his competency to be executed. He

requested a hearing before that court to determine whether he was

competent to be executed. The court denied this motion, as well

as subsequent motions for appointment and funding of an

independent mental health expert and a bench warrant to enable

neuropsychological testing.

Colburn then filed a petition for a writ of mandamus and

stay of execution with the Texas Court of Criminal Appeals.

Colburn urged the court to grant a stay of execution and issue a

writ of mandamus ordering the state district court to conduct a

competency hearing. The Court of Criminal Appeals denied that

petition.

On March 25, Colburn filed a Motion for Stay of Execution in

federal district court. The district court, treating the motion

as an application for a writ of habeas corpus, found that,

because Colburn had not raised a Ford claim in his original

habeas petition, this motion amounted to a successive habeas

petition which Colburn could not file in district court until he

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

authorizing the district court to consider the application.”

(b)(3)(A) (2000). As a result, the district court

denied Colburn’s request for relief and transferred the case to

our court. In re Epps,

.

4 The district court based its decision to transfer on the

grounds that it lacked jurisdiction to rule on Colburn’s claim.

See United States v. Key,

(5th Cir. 2000)

(“Accordingly, § 2244(b)(3)(A) acts as a jurisdictional bar to

the district court’s asserting jurisdiction over any successive

habeas petition until [the circuit court] has granted the

petitioner permission to file one.”). In his filings in this

court, Colburn effectively asks for authorization to file a

successive habeas application in the district court and for a

stay of execution.

II. COLBURN’S CLAIM OF INCOMPETENCY TO BE EXECUTED

Colburn presents the same issue in this motion that he

raised in the appeal we denied on the eve of his previous

execution date – whether § 2244(b) should apply when a petitioner

raises a Ford claim in a subsequent habeas petition after not

having raised the claim in his original habeas petition. In our

prior opinion, controlled by circuit precedent discussed below,

we found both that § 2244(b) applies to these kinds of Ford

claims and that Colburn had not presented evidence of

incompetency to be executed sufficient to demonstrate that his

execution would violate the Eighth Amendment.

Colburn asserts that the district court erred in treating

his Motion for Stay of Execution as a successive habeas

application. He argues that § 2244(b) should not apply in the

context of a Ford claim and that, therefore, his request for

5 relief was not a successive application. However, as the

district court correctly noted and as we found when Colburn

raised this same claim in November, Fifth Circuit precedent

clearly and unambiguously states the rule: a prisoner who fails

to raise a Ford claim in his original habeas petition and

attempts to do so in a subsequent petition has filed a

“successive petition” within the meaning of § 2244(b).

Richardson v. Johnson,

(5th Cir. 2001); In

re Davis,

(5th Cir. 1997). Therefore, the

district court properly treated Colburn’s motion as a successive

habeas application and transferred the case to this court.

Because Colburn is attempting to file a successive habeas

application, he must first seek authorization to do so in this

court.

(b)(3)(A). As such, we will treat his

filing in this court as a motion for authorization to file a

successive habeas application. Kutzner v. Cockrell,

(5th Cir. 2002).

There are two principal differences between the substantive

and procedural framework leading up to this appeal as compared

with Colburn’s November appeal. First, Colburn’s motions in

Texas state court were slightly different this time around. In

November, Colburn moved in state district court to stop

involuntary psychiatric treatment and conduct a competency

examination by a neutral expert, to stay his date of execution,

and for funding for an independent psychiatric expert. After the

6 state district court denied his motions, Colburn asked the Texas

Court of Criminal Appeals to stay his execution and to issue a

writ of mandamus ordering the district court to conduct a

competency hearing. While the state court motions differed

slightly this time, our November decision in no way depended upon

the precise procedural posture of Colburn’s state court filings.

Thus, these minor differences are insufficient to justify a

different result from that which obtained in November.

Second, Colburn presents new competency evidence in the form

of a report written by Dr. Diane Mosnik, who examined and tested

Colburn approximately one month ago. Dr. Mosnik, after noting

that Colburn had decompensated in the time since the first

execution was stayed,1 reached two conclusions. First:

Under the circumstances, including the present level of information available in the records and the limited testing permitted by conditions at the Polunski Unit, the conclusion that Mr. Colburn is competent to be executed cannot be asserted in a manner consistent with reasonable standards of the psychological profession. To the contrary, Mr. Colburn’s lengthy psychiatric history, recent evidence of significant decompensation resulting in hospitalization on January 10, 2003, and his documented tendency to further decompensate under stress, all support the following conclusion: Mr. Colburn is not competent to be executed.

However, she went on to state that:

To ensure a thorough evaluation of this inmate in order to ascertain that he meets the minimum standards for

1 Although Dr. Mosnik did not examine Colburn at the time of his November execution proceedings, she reviewed his records, including the reports of the two court-appointed experts who had deemed Colburn competent to be executed.

7 competence to comprehend his imminent execution date, it will be necessary to conduct a cognitive evaluation, that is, a neuropsychological assessment of his intellectual and cognitive abilities. A neuropsychological evaluation will speak directly to his ability to comprehend the law, the charges against him, his responsibility to the law, and the meaning of being sentenced to an imminent execution.

In other words, Dr. Mosnik presents a qualified opinion that

Colburn might not be competent but that further testing is

required in order to resolve the question completely.

Under Ford, the burden is on the defendant to rebut the

presumption of competency; he must do so by making a “substantial

threshold showing of insanity.” Ford,

. Texas

law requires that, in order to be found competent to be executed,

a defendant must understand: “(1) that he or she is to be

executed and that the execution is imminent, and (2) the reason

he or she is being executed.” TEX. CRIM. PROC. CODE ANN. § 46.05(h)

(Vernon 2002). Dr. Mosnik’s opinion does not seriously call into

question Colburn’s competency to understand either of these.2

The qualified opinion offered by Dr. Mosnik does not amount to

the kind of substantial threshold showing of incompetence that

would create a Ford issue. See, e.g., Coe v. Bell,

(6th Cir. 2000) (upholding finding of competency where

defendant suffered from dissociative identity disorder, a mental

2 Dr. Mosnik states that Colburn does not understand the reason he is being executed in part because he views this execution as “God’s way of punishing him.” This belief is certainly not sufficient to demonstrate that Colburn does not understand why he is being executed.

8 illness which would cause him to decompensate as the execution

neared, but was nevertheless able to understand that execution

was imminent and the reasons therefor). As a result, Colburn has

again failed to present evidence of incompetency to be executed

sufficient to demonstrate that his execution would violate the

Eighth Amendment.

III. COLBURN’S REQUEST FOR A CERTIFICATE OF APPEALABILITY

Colburn also asks that we grant him a COA on these issues to

enable him to appeal the district court’s order. We may grant

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

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

(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) (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 petitioner 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,

.

9 As discussed above, the district court denied Colburn’s

motion on the jurisdictional ground that, because Colburn’s

motion was in essence a successive habeas petition, the court had

no authority to consider it without prior authorization from this

court. Given the clear Fifth Circuit precedent on this issue, it

would not be debatable among jurists of reason whether the

district court properly concluded that it lacked jurisdiction to

consider Colburn’s successive habeas application. Additionally,

jurists of reason would not find it debatable whether Colburn’s

evidence of incompetency to be executed amounts to the denial of

a constitutional right. Therefore, Colburn is not entitled to a

COA on his claims.

IV. CONCLUSION

Construing Colburn’s filing as an application for

authorization to file a successive habeas application, it is

DENIED. His application for a stay of execution is DENIED. His

request for a COA is DENIED.

10