October 5, 2026, opinions

Posted on by tadbartlett

Designated for publication

  • In re Jamaal Howard, 26-40605, appeal from E.D. Tex.
    • per curiam (Smith, Ho, Duncan) (no oral argument), habeas corpus, Atkins, timeliness
    • Denying motion for authorization to file a successive habeas application and for stay of execution.
    • Jamaal Howard, convicted of murder and sentenced to death for the 2000 shooting death of Vickie Swartout in Silsbee, Texas, was scheduled for execution on October 7, 2026. Howard had previously filed a federal habeas petition raising an Atkins intellectual-disability claim, but his own expert concluded in 2017 that he was not intellectually disabled, and Howard abandoned the claim. The district court denied his remaining claims in 2019, and the Fifth Circuit denied a Certificate of Appealability in 2020. On September 28, 2026—less than two weeks before his execution—Howard filed a successive state habeas petition in the Texas Court of Criminal Appeals and, on October 1, moved in the Fifth Circuit for authorization to file a second federal habeas petition and for a stay of execution. He argued that updated clinical diagnostic standards (including new AAIDD, DSM-5-TR, and APA guidelines) would now classify him as intellectually disabled and thus ineligible for execution under Atkins v. Virginia.
    • At issue on the motion was (1) whether Howard’s successive § 2254 habeas application was barred by the one-year statute of limitations under 28 U.S.C. § 2244(d)(1); (2) whether equitable tolling excused the untimeliness; (3) whether Howard’s Atkins claim was “previously presented” and thus barred by § 2244(b)(1); and (4) whether Howard was entitled to a stay of execution.
    • Statute of Limitations: The court held the one-year limitations period had elapsed under every possible starting date. Under § 2244(d)(1)(C), the relevant constitutional right was recognized in Atkins in 2002—twenty-four years earlier. Under § 2244(d)(1)(D), most of Howard’s cited events (publication of the AAIDD-12, DSM-5-TR, and CCA decisions in Estrada and Mays) were discoverable more than a year before his October 1, 2026 filing. As for the August 2026 APA guidelines—the only event within the one-year window—the court found they merely “substantiate[d] Dr. Patton’s methods and conclusions, rather than uncovering a previously undiscoverable factual predicate,” and thus did not trigger a new limitations period.
    • Equitable Tolling and Unclean Hands: The court rejected equitable tolling, finding Howard “slept on his rights” by waiting until half a year after his execution was scheduled and less than two weeks before the execution date to file. The court further invoked the unclean-hands doctrine, reasoning that “[b]y waiting until the eleventh hour to file his application and motion—when he had the opportunity to file these motions years before—Howard afforded this court minimal time to respond to his arguments” and “manufactured a sense of urgency that could have been averted by an earlier filing.”
    • Previously Presented Claim: Even setting aside limitations, the court held Howard’s Atkins claim was “previously presented” in his first habeas petition and thus barred by § 2244(b)(1). The court rejected Howard’s argument that abandoning a claim is different from presenting one, noting that “[p]resentation is distinct from adjudication: Indeed, § 2244 contemplates the distinction.” It also rejected the argument that reliance on new clinical standards made the claim “fundamentally different,” citing In re Coleman, 768 F.3d 367 (5th Cir. 2014), for the principle that “§ 2244(b)(1) bars the use of new facts to support the same legal claim.”
    • Stay of Execution: Applying the Nken factors, the court found Howard had no likelihood of success on the merits; that the State and crime victims have “an important interest in the timely enforcement of a sentence”; and that Howard’s laches and unclean hands further disfavored equitable relief. The court emphasized that “[t]he Court’s grant of certiorari in a capital case does not allow us to deviate from circuit law, nor is it grounds for a stay of execution,” rejecting Howard’s argument premised on the pending Guerrero v. Johnson case.

Unpublished decisions

  • Gann v. Depositors Insurance Company, 25-11291, appeal from N.D. Tex.
    • per curiam (Smith, Haynes, Engelhardt) (oral argument), insurance, amendment
    • Affirming dismissal of coverage claim and denial of Rule 59(e) motion to amend.
    • At issue on appeal was whether the district court properly granted summary judgment on breach-of-contract and extra-contractual claims arising from an insurance dispute over hail damage to a commercial property. The key contract issue was whether the insured’s years-long delay in providing notice of a June 2018 hail loss—first reported with a 2018 date of loss in October 2023—was “prompt” as required by the policy. Secondary issues included whether the plaintiffs’ extra-contractual claims under Texas Insurance Code Chapters 541 and 542 and for breach of the duty of good faith and fair dealing could survive without evidence of an independent injury, and whether the district court abused its discretion in denying a Rule 59(e) motion to alter or amend the judgment.
    • The court held that the plaintiffs’ delay of over four years (and ultimately over five years) in notifying the insurer of the 2018 date of loss was unreasonable as a matter of law, and that the delay prejudiced the insurer by impairing its ability to investigate the claim while the matter was fresh. The extra-contractual claims failed because the plaintiffs presented no evidence of an injury independent of their insurance claim (Chapters 541 and good faith) and did not establish insurer liability under the policy (Chapter 542). The denial of the Rule 59(e) motion was not an abuse of discretion because the plaintiffs merely rehashed arguments previously made or that could have been raised before judgment.
  • Archer Western Contractors, L.L.C. v. McDonnel Group, L.L.C., 25-30739, appeal from E.D. La.
    • per curiam (Smith, Haynes, Engelhardt) (oral argument), breach of contract, attorneys’ fees
    • Affirming denial of attorneys’ fees.
    • At issue on appeal was whether a contractual attorneys’ fees provision in a construction joint venture agreement required an adjudicated finding of breach before fees could be awarded, and whether a jury’s finding that one party did not breach the agreement constituted an implied finding that the other party did breach. The agreement’s fee-shifting clause (Article 15(e)) provided that a “Defaulting Party” must pay the “Non-Defaulting Party’s” legal expenses arising out of the defaulting party’s breach. Under Louisiana contract interpretation principles, the court examined whether this language conditioned fee-shifting on a judicial determination of breach.
    • The court held that Article 15(e) requires an actual adjudication of breach—not merely a unilateral declaration of default—before a party is entitled to fees, and that the provision is not a “prevailing party” clause. The court further held that the jury’s finding that McDonnel did not breach the agreement by failing to make capital contributions did not constitute an implied finding that Archer breached, particularly because the jury was instructed to disregard any testimony related to Archer’s fault.
  • United States v. Nova-Carrillo, 25-50921, appeal from W.D. Tex.
    • per curiam (Haynes, Graves, Ramirez) (no oral argument), criminal, sentencing
    • Affirming 72-month sentence on conviction of illegal reentry.
    • At issue on appeal was whether a 72-month sentence—an upward variance from an advisory Guidelines range of 46 to 57 months—imposed following a guilty plea to illegal reentry under 8 U.S.C. § 1326(a) and (b) was substantively unreasonable.
    • Reviewing for abuse of discretion, the court concluded that the defendant’s arguments did not show a clear error of judgment in balancing the 18 U.S.C. § 3553(a) sentencing factors.
  • United States v. Braziel, 26-30161, appeal from W.D. La
    • per curiam (Willett, Duncan, Engelhardt) (no oral argument), criminal, sentencing
    • Affirming sentence on conviction of conspiracy to commit wire fraud.
    • At issue on appeal was whether the district court erred in applying a sophisticated-means enhancement under the Sentencing Guidelines in a conspiracy-to-commit-wire-fraud case (18 U.S.C. § 1349), which increased the advisory Guidelines range from 6–12 months to 10–16 months.
    • The court declined to reach the merits of the enhancement challenge, holding that any error was harmless because the district court expressly stated it would impose the same 12-month-and-one-day sentence regardless of whether the enhancement applied, and the defendant had identified the lower range for the court.
  • Clark v. Bisignano, 26-30270, appeal from M.D. La.
    • per curiam (Willett, Duncan, Engelhardt) (no oral argument), social security, forfeiting argument
    • Affirming the denial of benefits.
    • At issue on appeal was whether the district court erred in affirming the Commissioner of Social Security’s denial of benefits. A subsidiary issue was whether the pro se appellant adequately briefed her arguments under Federal Rule of Appellate Procedure 28.
    • The court held that the appellant forfeited her arguments by failing to include citations to the record or to supporting authorities in her principal brief, as required by Rule 28 and Fifth Circuit Rule 28.2.2. Although the appellant’s reply brief contained citations, the court declined to consider arguments fully raised only on reply. The court nonetheless reviewed the record and concluded that the Commissioner applied the proper legal standards and that substantial evidence supported his findings.
  • Davis v. Salay, 26-30352, appeal from E.D. La.
    • Higginson, J. (King, Higginson, Douglas) (no oral argument), sec. 1983
    • Affirming dismissal of due-process claims.
    • At issue on appeal was whether a pro se plaintiff stated a viable 42 U.S.C. § 1983 due-process claim against two New Orleans Police Department officers who declined to enforce a restraining order against the plaintiff’s former romantic partner and did not arrest her for an alleged robbery and assault. The court also considered whether the district court erred in denying leave to amend.
    • Applying the Supreme Court’s decision in Town of Castle Rock v. Gonzales, 545 U.S. 748 (2005), the court held that the plaintiff did not have a constitutionally protected property interest in the enforcement of his Louisiana restraining order because Louisiana law affords police officers at least as much discretion as the Colorado statute at issue in Castle Rock. Accordingly, the plaintiff could not assert a recognized liberty or property interest sufficient to support a § 1983 claim under the Fourteenth Amendment. The denial of leave to amend was not an abuse of discretion because the proposed amendment was futile—it failed to plausibly allege any constitutionally protected property interest beyond the enforcement of the restraining order.
  • United States v. Jimenez-Solorio, 26-50073, appeal from W.D. Tex.
    • per curiam (Willett, Duncan, Engelhardt) (no oral argument), criminal, sentencing
    • Affirming 30-month sentence on conviction of illegal reentry.
    • At issue on appeal was whether a 30-month, above-Guidelines sentence for illegal reentry under 8 U.S.C. § 1326(a), (b)(1) was (1) procedurally unreasonable because the district court allegedly did not adequately explain its reasons for the sentence, and (2) substantively unreasonable due to the extent of the variance and an alleged overrepresentation of the defendant’s criminal history.
    • Reviewing for plain error, the court found no procedural error because the record showed the district court considered the § 3553(a) factors and provided reasons sufficient for meaningful appellate review. On substantive reasonableness, the court found no abuse of discretion—nothing in the record reflected that the district court failed to account for a significant factor, gave weight to an improper factor, or committed a clear error of judgment.