Campbell - AG's Opp in CA5

No. 14-20293 ______________________________

IN THE

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

______________________________

In Re: ROBERT JAMES CAMPBELL, Movant, ______________________________

On Motion for an Order Authorizing Filing and Consideration

of Second Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2254 ______________________________

RESPONSE IN OPPOSITION TO MOTION FOR AUTHORIZATIONRESPONSE IN OPPOSITION TO MOTION FOR AUTHORIZATIONRESPONSE IN OPPOSITION TO MOTION FOR AUTHORIZATIONRESPONSE IN OPPOSITION TO MOTION FOR AUTHORIZATION

AND MOTION FOR STAY OF EXECUTIONAND MOTION FOR STAY OF EXECUTIONAND MOTION FOR STAY OF EXECUTIONAND MOTION FOR STAY OF EXECUTION ______________________________

The State of Texas is scheduled to execute Movant The State of Texas is scheduled to execute Movant The State of Texas is scheduled to execute Movant The State of Texas is scheduled to execute Movant Robert James Robert James Robert James Robert James

Campbell Campbell Campbell Campbell on on on on May 13May 13May 13May 13, 201, 201, 201, 2014444, after 6 p.m. (CT) , after 6 p.m. (CT) , after 6 p.m. (CT) , after 6 p.m. (CT) for the murder of

Alexandra Rendon. In this eleventh-hour successive federal habeas

corpus proceeding, Campbell seeks authorization to file a successive

habeas petition raising claims of mental retardation under Atkins v.

Virginia, 536 U.S. 304 (2002). But as it did regarding an earlier

incarnation of these claims, this Court should deny Campbell

authorization to pursue habeas relief in the lower court because he fails

to meet 28 U.S.C. § 2244(b)(2)’s requirements.

Case: 14-20293 Document: 00512625869 Page: 1 Date Filed: 05/12/2014

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STATEMENT OF THE ISSUESTATEMENT OF THE ISSUESTATEMENT OF THE ISSUESTATEMENT OF THE ISSUE

Campbell asks this Court for leave to file a successive petition

raising a procedurally defaulted, untimely, and unmeritorious Atkins

claim. According to Campbell, despite counsel’s diligent efforts, the fact

that counsel was unable to obtain Campbell’s full educational records,

and that TDCJ failed to provide a single IQ test relieve him of his duty

to properly raise this claim in the twelve years since Atkins was

announced. Essentially, Campbell contends that his Atkins claim is

unhindered by any of AEDPA’s concerns for comity, timeliness, and

deference. No court has ever so held. This Court should not permit

Campbell’s attempt to forestall his execution more than twenty years

after his conviction, after five state habeas proceedings, and multiple

suits in federal court including a previous attempt to raise this claim on

the basis of an IQ test taken the month before his scheduled execution


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STATEMENT OF THE CASESTATEMENT OF THE CASESTATEMENT OF THE CASESTATEMENT OF THE CASE

I.I.I.I. Facts of the Crime Facts of the Crime Facts of the Crime Facts of the Crime

Alexandra Rendon left her job at Bank One on Thursday, January

3, 1991, between 10:00 and 10:30 p.m. 57 Reporter’s Record (RR) 9-10.

Rendon was dressed in a white leather skirt, white stockings, white

shoes, a black blouse, and a long wool cream-colored dress coat with

snake skin patches on the shoulders. 57 RR 9, 16-17. She also wore a

high school graduation ring, an engagement ring, a watch, and a

bracelet. 57 RR 18-20. Rendon carried several credit cards in her purse,

including a Chevron, a VISA, and a Mastercard. 57 RR 108. Rendon

drove a white Ford Topaz, which had a gray interior and a standard

transmission. 57 RR 16. After leaving work, Rendon stopped and

purchased gasoline at 10:53 p.m. at a Chevron service station located

near her place of employment. 57 RR 71-76.

Earlier that same evening, Campbell and Leroy Lewis were

dropped off near the Chevron service station by a friend, Jessie Jean

Criff, who had been asked whether he wanted to “make some money.”

60 RR 938-40. The following morning Campbell went to Carey Dion


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Pennamon and told Pennamon to hold the pistol he had used to shoot a

woman in the back. 58 RR 403, 405. Campbell told Pennamon that he

ordered the woman to “run, bitch, run,” and then shot at her head, but

missed. 58 RR 409-10. Campbell said he then ran up close to the woman

and shot her in the back. 58 RR 409-10. Pennamon saw Campbell

driving a car and wearing a class ring on his little finger, both of which

were identified as belonging to Rendon. 57 RR 106, 107; 58 RR 408-09.

Campbell also showed Pennamon the watch he had taken from the

woman and told Pennamon that he had given two other rings taken

from the woman to Lewis. 58 RR 406-07. In addition, Campbell told

Pennamon that he had stolen $40, a coat, and a white leather skirt from

the woman. 58 RR 407-08, 410. Campbell gave the coat to his mother as

a Christmas present. 58 RR 407.

On the same day, Lawrence Thomas also saw Campbell driving a

car, which was identified as belonging to Rendon. 57 RR 106; 58 RR

144-45. In the car, Thomas saw a white leather skirt, and Campbell

stated that it had come from the lady he had shot. 58 RR 148-49.

Campbell gave Thomas a similar account of abducting and murdering


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Rendon, stating that he and Lewis saw Rendon at a service station

where they forced her into her car and took her to a location on Holmes

Road. After Campbell told her to “walk in the bushes,” he fired two

shots at her because he missed her with the first shot. The second shot

struck the woman in the back. 58 RR 145-47. Later, Campbell pointed

out to Thomas the exact location where he had killed Rendon. 58 RR

149.

Also on January 4, 1991, Lewis paid Criff $7 for having given him

and Campbell a ride the previous evening. 60 RR 941. Criff observed

Campbell driving a white car similar to a Taurus or Tempo. 60 RR 942.

Campbell gave Criff a similar account of the crime as he had previously

given to others. This time, in addition to explaining that he shot at the

victim twice, hitting her with the second shot, Campbell also said that

he had sex with the victim and that he shot her because she did not

have any money. 60 RR 943-45.

On January 6 or 7, 1991, Campbell was watching television with

Otha Norton, Rochelle Pearson, Sheila Robeson, and Edward Hampton

when a story came on the 6 o’clock news concerning a missing bank


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teller. 60 RR 1001-04. Campbell stated, “That’s the bitch we killed.” 60

RR 1004; see also 60 RR 1023-28. Later that day or the next day,

Campbell showed Norton a white leather skirt, and Norton threw it

away. 60 RR 1004. Robeson had been offered the skirt, but she refused

it because it was dirty. 60 RR 1028-29.

On January 7, 1991, Campbell, Lewis, Norton, and Pearson were

riding in a small white car, which was identified as belonging to

Rendon. 60 RR 997, 1034. On their way to Sharpstown Mall, the car ran

out of gas or broke down. 60 RR 998. Campbell steered the car while the

others pushed the car to a Chevron service station and parked it. 60 RR

998. Campbell told Norton that this service station was where he had

stolen the car. 60 RR 999. After police recovered the car, Norton’s palm

print was found on the trunk and Lewis’s left index fingerprint was

recovered from inside of the passenger door window. 60 RR 1135.

On January 3 and 4, 1991, Gladys Santana telephoned her

daughter, Alexandra Rendon, but her daughter never answered. 58 RR

104-05. On Saturday, January 5, 1991, Santana went to Rendon’s


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apartment and discovered that she was missing. 58 RR 105. Santana

called the police. Id.

On January 14, 1991, Lawrence Thomas directed the police to the

location where Campbell had told him he killed the victim. 58 RR 289.

Rendon’s body was located approximately twenty yards from the

roadway. 58 RR 290, 310. She was lying face down in approximately

three inches of water and was wearing only a blouse and bra. Id.

Rendon’s purse, wallet and other items were recovered nearby. 58 RR

312, 315, 318, 327, 329. Her panties were recovered alongside the

roadway. 58 RR 329.

An autopsy revealed that the cause of death was a gunshot wound

to the left side of the victim’s back. 59 RR 493. The bullet entered the

pelvis, severed an artery that goes to the left thigh, and then lodged in

the abdomen. Id. Further, DNA testing was performed from the vaginal

swabs taken from the victim. The DNA testing revealed the presence of

sperm in the vagina of the victim from at least two different men, and

neither Campbell nor Lewis could be excluded as possible donors of the

sperm. 59 RR 876-79.


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On January 15, 1991, the police arrested Campbell at his mother’s

house. 58 RR 380, 391. After obtaining a written consent to search from

Campbell’s mother, the police recovered the coat which was identified

as belonging to Rendon. 57 RR 9-10; 59 RR 685. The police then

proceeded to the apartment occupied by Pennamon, who gave his

consent to search his apartment. 58 RR 393. The police recovered the

gun Campbell had given to Pennamon, which matched the gun used to

kill Rendon. 58 RR 393-95; 60 RR 1147. Finally, on January 28, 1991,

Campbell’s girlfriend, Demetrius Brown, was observed wearing

Rendon’s watch and class ring. 60 RR 1080-82.

II.II.II.II. Facts Relating to Punishment Facts Relating to Punishment Facts Relating to Punishment Facts Relating to Punishment

A.A.A.A. State’s EvidenceState’s EvidenceState’s EvidenceState’s Evidence

At the punishment phase, the State offered evidence of other

crimes committed by Campbell. First, the State presented the

judgments of conviction for two robberies committed by Campbell. 64

RR 1485. Next, the State presented evidence of two additional robberies

committed by Campbell.


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In addition, the State also presented evidence that before

Alexandra Rendon’s murder, on December 29, 1990, at about 9:30 p.m.,

a man named Du Vong exited a convenience store in Houston and got in

his Toyota Corolla. 64 RR 1683-84. Before Vong could drive away,

Campbell put a gun to his head and ordered him into the back seat of

the car. 64 RR 1684-85, 1700. Campbell was with another individual,

who was not identified. 64 RR 1685. Campbell took Vong to Braes

Bayou, a park in Houston. 64 RR 1687-88; 65 RR 1735. On the way,

Campbell and his cohort took Vong’s watch, ring, and wallet, which

contained $60 in cash and another $50 in money orders. 64 RR 1686,

1691.

Once at the park, Vong was ordered out of the car and, while

Campbell held a gun to his back, was told to start walking toward the

bayou. 64 RR 1687-88, 1703, 1710. As Vong neared the bayou, he was

kicked in the back, causing him to fall and roll down a hill towards the

bayou. 64 RR 1689. Campbell fired two shots at Vong, narrowly missing

him with each shot. 64 RR 1689-90, 1703, 1710. Vong pretended to be

dead. 64 RR 1691. After about five minutes, Vong climbed up the hill to


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where he had been kicked. Id. He saw some shadows standing next to

his car and almost immediately heard shots being fired. Id. He ran back

down the hill and waded across the bayou, where he found a house and

called the police. 64 RR 1691-93. Vong’s car was found in a ditch where

Campbell had left it after he had run it off the road and hit a mailbox.

65 RR 1722-23, 1729, 1733.

On January 7, 1991, Susan Casey and her eight-year-old son,

Nicholas, returned a Christmas present to Toys-R-Us. 64 RR 1495. At

about 9:00 p.m., they left the store and went toward Ms. Casey’s Ford

Bronco II. 64 RR 1529. As Ms. Casey entered her vehicle, Campbell

approached her, pointed a gun in her face, and ordered her into the

back of the Bronco. 64 RR 1499-1500. A cohort, Otha Lee Norton,

entered the passenger side of the Bronco holding a gun and ordered

Nicholas to the back. 64 RR 1500. Campbell took the keys to the Bronco

and drove to the side of the store to pick up a third person, Rochelle

Pearson. 64 RR 1503, 1648. Norton took Ms. Casey’s watch and wedding

ring, while holding a gun to her head in the back of the Bronco. 64 RR

1502. As Campbell drove away, Pearson began going through Ms.


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Casey’s purse and became angry when Ms. Casey had little money and

no automated teller machine card. 64 RR 1503-04. Campbell said, “You

need to die for this.” 64 RR 1504.

Campbell continued to drive until they reached a gravel road in a

desolate area of Harris County. 64 RR 1505, 1512, 1650. There,

Campbell and Norton got out of the Bronco, and a heated discussion

ensued concerning the fate of Ms. Casey and her son. 64 RR 1506.

Campbell had decided to shoot Ms. Casey and drown her son. 64 RR

1651-52. Ms. Casey and her son were then ordered out of the Bronco

and told to crawl over a barbed wire fence. Id. Campbell and Norton

followed, ordering the two toward a lake. 64 RR 1507. When Ms. Casey

did not hear the footsteps of the men following her, she turned around

and saw Campbell with both hands on his gun aiming it right at her

head from about five feet away. 64 RR 1508. Campbell said, “[T]urn

around bitch.” Id. Ms. Casey stood still and pleaded for her life. 64 RR

1508, 1653-54. Norton was telling Campbell, “[S]he’s a nice lady. I don’t

want to kill her.” 64 RR 1508. Campbell and Norton then had another

argument over whether Campbell would kill Ms. Casey and her son. 64


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RR 1509. They decided to tie the hands and feet of Ms. Casey and her

son with their shoelaces and leave them in the field. 64 RR 1509-10,

1654-55. As Campbell walked away, Norton told Ms. Casey, “[T]he only

reason your (sic) alive is because we like your son.” 64 RR 1510.

After Campbell and Norton left, Ms. Casey and her son began

hopping back to the fence. 64 RR 1511. They eventually managed to free

their feet and walked to a house down the road where they were untied,

and the police were called. 64 RR 1512-14. Ms. Casey and her son had

both been in therapy as a result of the robbery. 64 RR 1527-28.

B.B.B.B. Defense EvidenceDefense EvidenceDefense EvidenceDefense Evidence

Campbell called three family members and a friend to testify on

his behalf at the punishment phase of the trial. Joelvelyn Richardson,

Campbell’s sister-in-law testified that she believed Campbell would not

commit future acts of violence because he had told her about a month

earlier that “he was sorry” and that he sounded sad and worried. 65 RR

1780, 1783. Campbell’s cousin, Marcus Arvey, stated that Campbell

should be sentenced to life in order to have “a chance to be

rehabilitated” and because Campbell’s little sisters loved him. 65 RR


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1790. Campbell’s mother told the jury that Campbell used to work at

mowing lawns and sing in the church choir and that he was in trouble

because he was “[f]ollowing the wrong crowd.” 65 RR 1797-98, 1806.

Shirley Annette Green, who was living with Campbell’s brother,

testified that she loved Campbell “like a son” and that she let Campbell

keep her children. 65 RR 1808-09.

IIIIII.II.II.II. History of ProceedingsHistory of ProceedingsHistory of ProceedingsHistory of Proceedings

Campbell was convicted and sentenced to death for the capital

murder of Alexandra Rendon. 1 Clerk’s Record (CR) 207, 238-39. The

Texas Court of Criminal Appeals (CCA) affirmed Campbell’s conviction

and sentence on direct appeal, and certiorari review was denied.

Campbell v. State, 910 S.W.2d 475 (Tex. Crim. App. 1995), cert. denied,

517 U.S. 1140 (1996). Later, Campbell’s state application for writ of

habeas corpus was denied by the CCA based on the trial court’s findings

of fact and conclusions of law. Ex parte Campbell, No. 44,551-01 (Tex.

Crim. App. Mar. 8, 2000) (unpublished order).

Campbell subsequently filed his federal habeas petition in the

district court on November 2, 2000. The district court entered an order


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on March 19, 2003, denying relief. Campbell v. Cockrell, No. H-00-3844.

The district court declined a certificate of appealability (COA), as did

this Court. Campbell v. Dretke, 117 Fed. Appx. 946 (5th Cir. 2004)

(unpublished). During the pendency of the federal habeas application,

Campbell filed a second state habeas application raising an Atkins

claim. The CCA dismissed the application as an abuse of the writ. See

Ex parte Campbell, No. 44,551-02 (Tex. Crim. App. July 2, 2003) (not

designated for publication). In 2001, also during the pendency of the

federal habeas application, Campbell petitioned the Texas courts for

postconviction DNA testing, which the trial court granted on April 2,

2002. The test results further confirmed Campbell’s guilt:

[Campbell] could not be excluded as a contributor to the sperm fractions of the DNA extract from the victim’s vaginal or anal samples. The probability of selecting an unrelated African-American male at random who could be a contributor to the anal mixture was reported as 1 in 620,000.

Ex parte Campbell, 226 S.W.3d 418, 423-24 (Tex. Crim. App. Apr. 25,

2007) (quotation marks omitted).

Campbell next sought leave to file a successive federal habeas

application raising an Atkins claim. This Court denied leave, finding


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Campbell failed to make a prima facie showing of retardation. In re

Campbell, 82 Fed. Appx. 349 (5th Cir. 2003) (unpublished). In August of

2006, Campbell returned to state court to file a third state habeas

application raising Brady1 and actual-innocence claims. The CCA

dismissed the application as an abuse of the writ. Ex parte Campbell,

226 S.W.3d at 425.

On September 5, 2012, Campbell filed his fourth state habeas

application in the trial court, raising alleged error in the jury charge.

See Ex parte Campbell, No. 76,907 (Tex. Crim. App. Nov. 7, 2012). The

CCA, noting that “the law has further developed since applicant filed

his last habeas application,” looked past the state procedural rule on

successive state habeas applications, see Tex. Code Crim. Proc. art.

11.071 §5, and denied the claim on the merits. That denial was the

basis for a petition for certiorari, which was also denied. Campbell v.

Texas, 134 S. Ct. 53 (2013).

Campbell is scheduled for execution Tuesday, May 13, 2014. In

relation to that event, Campbell filed yet another state habeas

application seeking relief under Atkins which the CCA dismissed as an

1 Brady v. Maryland, 363 U.S. 83 (1963).


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abuse of the writ May 8, 2014. Ex parte Campbell, No. 44,551-05 (Tex.

Crim. App.) (citing Tex. Code Crim. Proc. art. 11.071, § 5(c)). Campbell

has also filed a § 1983 suit seeking temporary and permanent injunctive

relief in federal district court which was denied on April 9, 2014.

Campbell is expected to appeal in a separate suit to this Court.

ARGUMENTARGUMENTARGUMENTARGUMENT

A state prisoner may raise a new claim in a second or successive

habeas petition in federal district court only if a three-judge panel of a

United States Court of Appeals first determines that the application

makes a prima facie showing that: (A) the petitioner’s claim “relies on a

new rule of constitutional law, made retroactive to cases on collateral

review by the Supreme Court, that was previously unavailable,” or (B)

it relies on facts that (i) could not have been discovered previously

through the exercise of due diligence, and (ii), if proven, would

“establish by clear and convincing evidence that, but for Constitutional

error, no reasonable factfinder would have found the applicant guilty of

the underlying offense.” 28 U.S.C.A. § 2244(b)(2)(A)-(B). As shown

below, Campbell cannot make either showing. Atkins was decided over


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twelve years ago, and none of the evidence in support of Campbell’s

claim was previously unavailable. There was nothing that precluded

testing Campbell’s IQ anytime in the past twenty plus years, much less

the last twelve. For these reasons, as well as the arguments set out

below, this Court should deny Campbell’s motion for authorization of a

successive petition.

I.I.I.I. This Court Should Deny This Court Should Deny This Court Should Deny This Court Should Deny Campbell Campbell Campbell Campbell Authorization Authorization Authorization Authorization to File ato File ato File ato File a Successive Habeas Petition Because His Petition Would Be TimeSuccessive Habeas Petition Because His Petition Would Be TimeSuccessive Habeas Petition Because His Petition Would Be TimeSuccessive Habeas Petition Because His Petition Would Be Time----Barred.Barred.Barred.Barred.

A one-year period of limitation applies to an application for a writ

of habeas corpus by a person in custody pursuant to the judgment of a

state court. 28 U.S.C. § 2244(d)(1). To satisfy the one-year statute of

limitations, a habeas petition must be filed in the district court, not in

the court of appeals. Fierro v. Cockrell, 294 F.3d 674, 679 (5th Cir.

2002) (emphasis added). A petitioner’s motion for authorization to file a

successive federal habeas petition is not an “application for writ of

habeas corpus,” and the filing of such a pleading will not satisfy the

one-year statute of limitations. Id. Rather, the petition must be


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“‘delivered to, and accepted by,’ the district court.” Id. at 680 n.10

(quoting Artuz v. Bennett, 531 U.S. 4, 8 (2000)).

A.A.A.A. Campbell’s Campbell’s Campbell’s Campbell’s AtkinsAtkinsAtkinsAtkins claim is untimely as a matter of law.claim is untimely as a matter of law.claim is untimely as a matter of law.claim is untimely as a matter of law.

Insofar as Campbell’s Atkins claim is concerned, the one-year

limitation period began to run under § 2244(d)(1)(C) on the date of the

Supreme Court’s decision in Atkins. In re Wilson, 442 F.3d 872, 874

(5th Cir. 2006) (one-year limitations period for filing Atkins claim

expired on June 20, 2003) (citing In re Hearn, 376 F.3d 447, 456 n. 11

(5th Cir. 2004)). In certain instances, the one-year statutory limitations

period may be extended because the AEDPA allows for tolling during

the pendency of properly filed applications for state court collateral

review. 28 U.S.C. § 2244(d)(2). Yet the only way the filing deadline is

tolled in this manner is for a petitioner to have properly filed an

application for state court collateral review prior to expiration of the

petitioner’s one-year federal window for filing.

Campbell is entitled to such tolling because he filed a state habeas

application raising Atkins on June 2, 2003, but with only nineteen days

left on the federal limitations clock, it does nothing to aid him here. Ex


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parte Campbell, No. 44,551-02, at writ cover. The clock began running

again when the CCA dismissed the application exactly one month later

on July 2, 2003. Id. Thus, Campbell had until Monday, July 21, 2003, to

file a federal habeas petition raising this issue. Instead Campbell filed a

motion for authorization to file a successive petition the next day

Tuesday, July 22, 2003. In re Campbell, No. 03-20700, 82 Fed. Appx.

349 (2003). Even overlooking his failure to timely file by one day, a

motion for authorization, as stated above, does not toll the statute of

limitations. Fierro, 294 F.3d at 679. Thus, the limitations period for this

claim ran out over ten years ago. But Campbell did not return to state

court to raise this issue again until a few days ago. Thus, Campbell’s

claim is time-barred as a matter of law.

B.B.B.B. Campbell Campbell Campbell Campbell is not entitled to equitable tolling to save his is not entitled to equitable tolling to save his is not entitled to equitable tolling to save his is not entitled to equitable tolling to save his delinquent claim.delinquent claim.delinquent claim.delinquent claim.

The one-year statute of limitations is not a jurisdictional bar and,

therefore, is subject to equitable tolling. Lookingbill v. Cockrell, 293

F.3d 296 (5th Cir. 2002) (citing Davis v. Johnson, 158 F.3d 806, 811

(1999)). But, this Court has repeatedly held that equitable tolling “is

applied restrictively” and “is entertained only in cases presenting ‘rare


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and exceptional circumstances where it is necessary to preserve a

plaintiff’s claims when strict application of the statute of limitations

would be inequitable.’” In re Wilson, 442 F.3d at 875 (quoting Fierro,

294 F.3d at 682); United States v. Patterson, 211 F.3d 927, 930 (5th Cir.

2000) (tolling applies only in “rare and exceptional circumstances.”)

(quoting Davis, 158 F.3d at 810-11). Most importantly, “equity is not

intended for those who sleep on their rights.” Fisher v. Johnson, 174

F.3d 710, 714 (5th Cir. 1999) (citing Covey v. Arkansas River Co., 865

F.2d 660, 662 (5th Cir. 1989)). Campbell’s case coming more than ten

years since the limitations period ran out and only days before his

scheduled execution does not present the necessary “rare and

exceptional circumstances” to warrant tolling.

To the extent Campbell would argue that this Court should

authorize the filing of his successive federal petition so that the district

court can review the merits of his Atkins claim and the statute of

limitations issue in the first instance, he would be mistaken. This Court

has examined the statute of limitations issue and the availability of

equitable tolling in the very same context of a petitioner’s motion for


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authorization to file a successive writ petition. See, e.g., In re Wilson,

442 F.3d 878; In re Hearn, 389 F.3d 122, 123 (5th Cir. 2004).

Furthermore, circuit courts have the authority to raise the one-year

limitations period in § 2244(d)(1). Scott v. Johnson, 227 F.3d 260, 263

(5th Cir. 2000). Thus, the Court does have the authority to determine

whether the limitations period in § 2244(d)(1) bars consideration of

Campbell’s successive writ petition. In this case, the Court should hold

that Campbell’s petition is untimely and deny his motion.

Campbell has made no argument that his claim is not barred by

the statute of limitations. This Court has stated many times that “mere

attorney error or neglect is not an extraordinary circumstance such that

equitable tolling is justified.” United States v. Riggs, 314 F.3d 796, 799

(5th Cir. 2002) (citing Cousin v. Lensing, 310 F.3d 843, 849 (5th Cir.

2002)). Moreover, equitable tolling “applies principally where the

plaintiff is actively misled by the defendant about the cause of action or

is prevented in some extraordinary way from asserting his rights ...

Where [appellant] could have filed his claim properly with even a

modicum of due diligence, we find no compelling equities to justify


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tolling.” Rashidi v. American President Lines, 96 F.3d 124, 127-28 (5th

Cir. 1996) (emphasis added). Here, Campbell asserts his counsel was

diligent but that TDCJ’s mistaken assertion that it had only one test

score so misled him that he was unable to make the proper showing

thus thwarting his state writ application and his untimely previous

motion for authorization. But the real basis of Campbell’s claim is his

very recently obtained full-scale IQ scores, and Campbell gives no

reason why he could not have previously been tested. This last-minute

claim is the antithesis of diligence and in no way should be considered a

“rare and exceptional circumstance” warranting equitable tolling.

Further, the two-forum rule cannot be the basis of further tolling

for Campbell. Certiorari was denied on Campbell’s first federal habeas

round in 2005. Campbell v. Dretke, 126 S. Ct. 649 (2005). But even

before that time, Campbell was able to file his second state habeas

application and his first motion for authorization because the Texas

two-forum rule was renounced as long as ago as February 11, 2004. Ex

parte Soffar, 143 S.W.3d 804 (Tex. Crim. App.). Moreover, Campbell


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filed two additional state writ applications, neither raising Atkins

claims. Ex parte Campbell, No. 44,551-03, -04.

Campbell has provided no legitimate excuse, let alone compelling

reason, to justify his waiting over twelve years since Atkins was

announced long before seeking testing or presenting the evidence he

now asserts. As this Court has stated, a federal court that is asked to

grant equitable relief from the strict limitations period imposed by the

AEDPA “must be mindful of the framework Congress established in §

2244(d).” Felder v. Johnson, 204 F.3d 168, 172 (5th Cir. 2000) (citations

omitted). This Court should, therefore, be very cautious in extending

equitable tolling beyond the circumstances specifically enumerated in

the statute, or risk frustrating the manifest intent of Congress. Fierro,

294 F.3d at 684 (stating that although application of time-bar may “may

appear formalistic––particularly in a death penalty case” federal courts

must be mindful “that Congress has imposed a strict one-year

limitations period for the filing of all habeas petitions under the

AEDPA, subject only to the narrowest of exceptions”); Cantu-Tzin v.

Johnson, 162 F.3d 295, 299 (5th Cir. 1998) (stating that “when Congress


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has stepped in to balance the competing interests [of equities in capital

cases], as it did in AEDPA, courts should be loath to evade that

balance”).

“[S]tatutes of limitations[] necessarily operate harshly and

arbitrarily with respect to individuals who fall just on the other side of

them, but if the concept of a filing deadline is to have any content, the

deadline must be enforced.” United States v. Locke, 471 U.S. 84, 101

(1985). Given Campbell’s untimeliness and complete lack of diligence,

this Court should deny his request for authorization to file an untimely

habeas petition.

II.II.II.II. Campbell’s Campbell’s Campbell’s Campbell’s Claims Are Procedurally DefaultedClaims Are Procedurally DefaultedClaims Are Procedurally DefaultedClaims Are Procedurally Defaulted, a, a, a, and nd nd nd He Has Not He Has Not He Has Not He Has Not Asserted Cause or Prejudice to Overcome the Default.Asserted Cause or Prejudice to Overcome the Default.Asserted Cause or Prejudice to Overcome the Default.Asserted Cause or Prejudice to Overcome the Default. It is well settled that federal courts “will not review a question of

federal law decided by a state court if the decision of that court rests on

a state law ground that is independent of the federal question and

adequate to support the judgment.” Coleman v. Thompson, 501 U.S.

722, 729 (1991)); Harris v. Reed, 489 U.S. 255, 262 (1989). Thus, federal

review of a habeas claim is procedurally barred if the last state court to

consider the claim expressly and unambiguously based its denial of


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relief on a state procedural default. Coleman, 501 U.S. at 729; Harris,

489 U.S. at 265; Amos v. Scott, 61 F.3d 333, 338 (5th Cir. 1995).

As noted above, Campbell did not raise the instant claim until his

second and fifth state habeas applications, which were both dismissed

as an abuse of the writ. Ex parte Campbell, Nos. 44,551-02, -05. Thus,

the state court’s dismissal of his claims as an abuse of the writ

precludes federal habeas relief as a matter of law. See Fearance v.

Scott, 56 F.3d 633, 642 (5th Cir. 1995) (holding that pre-11.071 abuse-

of-the-writ doctrine was strictly and regularly applied and, thus, was

independent and adequate state procedural bar); Emery v. Johnson, 139

F.3d 191, 195-96 (5th Cir. 1997) (extending Fearance to Article 11.071

statutory abuse of writ doctrine); Barrientes v. Johnson, 221 F.3d 741,

758-59 (5th Cir. 2000); Fuller v. Johnson, 158 F.3d 903, 906 (5th Cir.

1998); see also Moore v. Texas, 535 U.S. 1044, 1047-48 (2002) (Scalia,

J., dissenting) (recognizing Texas abuse-of-the-writ statute as

independent and adequate state ground).2

2 Even if the state court’s dismissal of Campbell’s most recent successive Atkins petition was a merits determination, a contention the Director disputes, Campbell is not entitled to authorization to file a successive federal writ for all the other reasons set out in this response. See, e.g., Rivera v. Quarterman, 505 F.3d 349, 359 (5th Cir. Tex. 2007).


-26-

Campbell’s default of his claims can only be excused if he can

demonstrate (1) cause for the default and prejudice as a result of the

alleged violation of federal law, or (2) a resulting “fundamental

miscarriage of justice.” Coleman, 501 U.S. at 750-51. To establish

“cause,” a habeas petitioner must ordinarily identify circumstances

external to the defense that prevented him from properly asserting the

claim in state court. McCleskey v. Zant, 499 U.S. 467, 497 (1991) (citing

Murray v. Carrier, 477 U.S. 478, 492 (1986)). And he has specifically

not asserted Martinez3 creates the necessary cause. Indeed, Campbell

has not explained why his Atkins claims as it is currently formulated

was not raised in any of his previous state or federal habeas

applications, and he has ignored the fact that his claims are barred

from federal review.

In view of the fact that the federal courts are barred from

reviewing his claims, Campbell’s request to file a successive petition

should be denied.

3 132 S. Ct. 1309 (2012) (finding an equitable exception where a petitioner can show that state habeas counsel in the initial state habeas proceedings was ineffective if this was the first opportunity a claim of ineffective of trial counsel could be asserted); see also Trevino v. Thaler, 133 S. Ct. 1911 (2013) (holding the rule of Martinez generally applicable to Texas capital cases).


-27-

IIIIIIIIIIII.... The Court Should Deny The Court Should Deny The Court Should Deny The Court Should Deny Campbell’sCampbell’sCampbell’sCampbell’s Authorization for a Successive Authorization for a Successive Authorization for a Successive Authorization for a Successive Petition Because Petition Because Petition Because Petition Because CampbellCampbellCampbellCampbell’s Underlying Claim’s Underlying Claim’s Underlying Claim’s Underlying Claim IsIsIsIs Without Without Without Without Merit.Merit.Merit.Merit. Were this Court to review Campbell’s mental retardation claim on

the merits, the Court would not find him entitled to relief.

The Eighth Amendment bars the execution of the mentally

retarded. Atkins, 536 U.S. at 321. The task of developing appropriate

ways to enforce the constitutional restriction was, however, been left to

the states. Id. at 317. The relevant standard in Texas was set out by the

Court of Criminal Appeals in Ex parte Briseño, 135 S.W.3d 1, 7 (2004).

The state court held that mental retardation claims should be

adjudicated under the framework established by the American

Association on Mental Retardation,4 in conjunction with the standard

supplied by Section 591.003(13) of the Texas Health & Safety Code. See

id. at 7. Under that standard “mental retardation” means significantly

subaverage general intellectual functioning that is concurrent with

deficits in adaptive behavior and originates during the developmental

period. In other words, Ex parte Briseño requires three elements for a

4 The American Association on Mental Retardation, or AAMR, is now called the American Association on Intellectual and Developmental Disabilities, or AAIDD.


-28-

finding of mental retardation: (1) significantly subaverage intellectual

functioning (generally, a full-scale IQ score of 70 or below); (2) deficits

in adaptive functioning; and (3) onset before age 18. Id. at 7; see also

Maldonado v. Thaler, 625 F.3d 229, 232–33 (5th Cir. 2010). In state

habeas proceedings, the petitioner bears the burden of proving

retardation by a preponderance of the evidence. Ex parte Briseño, 135

S.W.3d at 12.

In evaluating a defendant’s adaptive functioning, Texas courts are

allowed to consider the following, sometimes called “Briseno factors”:

• Did those who knew the person best during the developmental stage—his family, friends, teachers, employers, authorities—think he was mentally retarded at that time, and, if so, act in accordance with that determination? • Has the person formulated plans and carried them through or is his conduct impulsive? • Does his conduct show leadership or does it show that he is led around by others? • Is his conduct in response to external stimuli rational and appropriate, regardless of whether it is socially acceptable? • Does he respond coherently, rationally, and on point to oral or written questions or do his responses wander from subject to subject?


-29-

• Can the person hide facts or lie effectively in his own or others’ interests? • Putting aside any heinousness or gruesomeness surrounding the capital offense, did the commission of that offense require forethought, planning, and complex execution of purpose?

135 S.W.3d at 8–9.

By submitting his retardation-related evidence during last-minute

litigation, Campbell has dodged submitting his evidence to state or

federal court scrutiny. Nonetheless, the evidence offered by Campbell

does not meet the state standard proving retardation by a

preponderance of the evidence. See id. at 12.

A.A.A.A. Intellectual functioningIntellectual functioningIntellectual functioningIntellectual functioning

Campbell offers a report from Dr. Leslie D. Rosenstein, a clinical

neuropsychologist. She tested Campbell on death row at the Polunsky

Unit, on April 4, 2014, some thirty-nine days before Campbell’s

scheduled execution. Using the Wechsler Adult Intelligence Scale IV

(WAIS-IV), Rosenstein found that Campbell received a full-scale

intelligence score of 69, one point below the 70-point mark that state

courts have used for evaluating “subaverage intellectual functioning.”


-30-

See Maldonado, 625 F.3d at 232–33. Dr. Rosenstein diagnosed

Campbell with “mild mental retardation.” Rosenstein report at 3,

Exhibit 2 of Succ. Pet, ECF No. 63.

Campbell now––in this last-minute pleading filed just days before

his scheduled execution––offers 3 scores from IQ tests given before the

Supreme Court handed down Atkins on June 20, 2002, showing IQs at

or near the cut off of 70. However, an IQ evaluation made by the Texas

Department of Criminal Justice when Campbell first entered the state

prison system gave Campbell an IQ score of 84. (TDC letter to Justin

Waggoner accompanying Social and Criminal History of Robert James

Campbell at 1.) But Campbell alleges other prison notes suggest that in

July 1992 Campbell scored a 71 on a prison-administered Wechsler

Adult Intelligence Scale-Revised, IQ Short Form; thus, the 84 should be

disregarded. Mot. at 9. Although not much is known of the tests given

by the prison personnel, these scores do reflect that within the prison

environment Campbell was not seen as mentally retarded or as having

subaverage intellectual functioning.


-31-

Campbell’s trial counsel also had his client examined by Dr.

Walter Quijano, a psychologist. Although Campbell now offers an

opinion by Dr. Quijano that in April 1992, before Campbell’s trial, the

psychologist formed the opinion that Campbell “might have sub-average

intelligence,” it is not clear that contemporaneous records exist that Dr.

Quijano bore that opinion in 1992. Campbell acknowledges that Dr.

Quijano did not subject the petitioner to intelligence testing. And the

absence of contemporaneous testing does nothing to help Campbell

carrying his burden of proving subaverage intellectual functioning. Ex

parte Briseño, 135 S.W.3d at 12. Further, if Campbell was on notice of

this alleged impairment, he ought not to have waited twelve years since

the Supreme Court decided Atkins to fully pursue relief.

Although Campbell suggests that certain school records show that

Campbell performed below average on certain school-administered

standardized tests, specifically the Otis-Lennon Mental Ability Test, the

Metropolitan Readiness Test, and the Iowa Test of Basic Skills,

Campbell offers no Wechsler score or Stanford-Binet score arising

before Atkins was handed down. And because Campbell never


-32-

submitted his evidence in a proper evidence-evaluating forum, his

argument that his childhood scores demonstrate subaverage intellectual

function may be seen as convenient.

Finally, though the scores are at or near the cutoff of 70, they do

not by themselves, establish that Campbell is mentally retarded. As

the CCA has recognized, “Psychologists and other mental health

professionals are flexible in their assessment of mental retardation;

thus, sometimes a person whose IQ has tested above 70 may be

diagnosed as mentally retarded while a person whose IQ tests below 70

may not be mentally retarded. … Furthermore, IQ tests differ in

content and accuracy.” Ex parte Briseño, 135 S.W.3d at 7 n.24. As

discussed below, because Campbell cannot show deficits in adaptive

functioning, his claim must fail. See Chester v. Thaler, 666 F.3d 340,

349 (5th Cir. 2011) (“The Texas Court of Criminal Appeals, while

acknowledging that test scores alone might have indicated mental

retardation, nevertheless was compelled to find that the evidence

supported the trial court’s finding that Petitioner is not mentally

retarded.”).


-33-

B.B.B.B. Adaptive functioningAdaptive functioningAdaptive functioningAdaptive functioning

Even if this Court were to consider the April 2014 Wechsler score

of 69 as an accurate reflection of Campbell’s intellectual functioning, he

still does not meet his state-law burden of showing by a preponderance

of the evidence that he is retarded. He must also show deficits in

adaptive functioning. See Ex parte Briseño, 135 S.W.3d at 7.

For a mental-retardation finding, the adaptive deficits must not

merely coexist with subaverage intelligence but arise from that

subaverage intelligence as opposed to other sources. “The inclusion of

adaptive behavior in the definition of mental retardation requires that

intellectual impairment, measured by an intelligence test, have some

practical impact on the individual’s life.” James W. Ellis & Ruth A.

Luckasson, Mentally Retarded Criminal Defendants, 53 Geo. Wash. L.

Rev. 414, 4224 (1985); see also Williams v. Quarterman, 293 Fed. Appx

298, 309 (5th Cir. 2008) (finding no retardation where petitioner’s

problems at school could have been related to alcohol and drug abuse

not to low intelligence); In re Salazar, 443 F.3d 430, 433–34 (5th Cir.

2006) (noting that expert found no retardation where petitioner’s


-34-

adaptive difficulties coexisted with average intelligence); Maldonado v.

Thaler, 662 F.Supp.2d 684, 726 n.47 (S.D. Tex. 2009) (stating that

approach “recognizes that a subaverage IQ will manifest itself in the

way that people adapt to the world around them.”); Ex parte Hearn, 310

S.W.3d 424, 428 (Tex. Crim. App. 2010) (stating that defendant must

show that “subaverage intellectual functioning and significant

limitations in adaptive functioning” are linked—“the adaptive

limitations must be related to a deficit in intellectual functioning and

not a personality disorder”). The adaptive deficit is seen as proof that

the subaverage intelligence has an effect on the individual’s life. See

Ellis, supra; Maldonado, 662 F.Supp.2d at 726 n.47; see also Hill v.

Schofield, No. 08-15444, 2010 WL 2427092, at *3 (11th Cir. June 18,

2010) (noting that Georgia statutory definition of retardation requires

low intelligence “resulting in or associated with” adaptive deficit);

Murphy v. Ohio, 551 F.3d 485, 509 (6th Cir. 2009) (noting that expert

said that individual’s adaptive deficits could be attributed to something

other than retardation). Again, it is not enough that the adaptive

deficits coexist with subaverage intelligence. The deficits must arise


-35-

from the subaverage intelligence, and in effect constitute evidence of the

subaverage intelligence.

As a threshold level, the instant claim is undone by an

acknowledgement by Dr. Rosenstein regarding her inability to assess

Campbell’s adaptive functioning. Dr. Rosenstein notes: “Mr. Campbell

has been on death row for his entire adult life. Therefore, it is not

possible to validly compare him to the normal population in terms of his

adult adaptive skills.” Rosenstein report at 1 (emphasis added).

Compounding this difficulty, Dr. Rosenstein’s assessment of Campbell’s

adaptive functioning was admittedly limited by an inability to locate a

“potential informant who would be considered nonbiased to complete

standardized questionnaires.” Id.

Campbell offers no standardized tests results to support a finding

that he possesses adaptive deficits sufficient to support a retardation

finding. Succ. Pet. ECF No. 63, at 23. Dr. Rosenstein relied upon an

evaluation of Campbell’s academic skills as shown by the Woodcock-

Johnson-II-NU Tests of Achievement: Passage Comprehension, Applied


-36-

Problems, Writing Samples, and a review of Campbell’s academic

history. Id.

Dr. Rosenstein said that Campbell was able to count and add

change but was not “consistently accurate in calculating change from a

purchase.” Rosenstein report at 2. Nor could he “answer simple

questions about . . . money savings.” Rosenstein report at 2. Campbell

also offers evidence that he had to ask a friend to read his non-digital

watch. Declaration of Otha Lee Norton at 1, Exhibit 8 of Succ. Pet. ECF

No. 63.

Campbell offers evidence that he had difficulty in reading

comprehension, that he had never obtained a driver’s license, that he

was a poor driver, and that he never held gainful employment beyond

physical labor. Succ. Pet. ECF No. 63 at 24–26. He argues that people

who have known him from childhood now describe him as “mentally

slow” and “impaired.” Id. at 26. He argues further that his criminal

activity shows that his actions are marked by impulsivity rather than

by formulating and carrying out plans. Id. at 28.


-37-

Again Campbell offers evidence that arises after his arrest for

capital murder. The statements and affidavits from childhood friends,

family members, acquaintances all were gathered as part of Campbell’s

postconviction litigation; thus, they should be viewed with suspicion.

See Chester, 666 F.3d at 349 (noting that the state trial court had

discounted evidence from family because they “had an incentive to lie”).

As for contemporaneous records from childhood, the school records show

that he was a poor student. Campbell does not offer sufficient evidence

to show that his poor scholarship arose from his low intelligence. See Ex

parte Briseño, 135 S.W.3d at 12; see also Chester, 666 F.3d at 349

(affidavit of school administrator “indicative of only a learning

disability, not retardation”).

In contrast, the trial record contains ample evidence that

Campbell did not exhibit “significant limitations” in adaptive

functioning at the time of the murder. The jury heard evidence that

Campbell “was an average child.” 66 RR 1778. Despite never having

obtained a license, Campbell could drive a stick-shift car. 58 RR 149. He

also enjoyed playing sports and sang in the church choir. 66 RR 1788,


-38-

1798. Most impressively, Campbell was entrusted to babysit. 66 RR

1809. Finally, Campbell admits he mowed yards for money.

Further, the evidence developed at trial, contrary to Campbell’s

arguments, showed that Campbell was not in the criminal world, a

mere follower. The record shows that in the crime at issue, Campbell,

not his codefendant, shot the victim. Campbell, not his codefendant,

appropriated the victim’s car and possessions. In the Vong and Casey

robberies, Campbell, not his companion, initiated the robberies, and in

the Vong robbery, Campbell was responsible for the gunplay.

Campbell offers nothing to show that his lackluster adaptive skills

arose from low intelligence rather than from a preference for crime. He

has cobbled together after-the-fact statements from friends and

acquaintances alleging that he had difficulty with school. He has offered

records showing that he was not a good student. This evidence does not

show that whatever adaptive deficits Campbell purports to have are

related to, or arose from, any presumed subaverage intellectual

functioning.


-39-

C.C.C.C. Before age 18Before age 18Before age 18Before age 18 Intellectual FunctioningIntellectual FunctioningIntellectual FunctioningIntellectual Functioning

As for the third prong of the retardation standard, that the

condition arose before the age of eighteen, again Campbell offers no

contemporaneous records suggesting that he was other than a poor

student. He offers no pre-eighteen Wechsler or Stanford-Binet score. He

offers scores suggesting that he was a poor student. Most of the other

evidence that Campbell offers arose after he was arrested and after the

Supreme Court handed down Atkins. Finally, any such evidence that

exists must necessarily have existed not only before his conviction but

in the twelve years since Atkins was decided. Campbell offers no

explanation for his failure to find such evidence in this span. Thus, a

reasonable person could conclude it does not exist.

For these reasons, Campbell’s last-minute claim of retardation,

previously raised and rejected by both this Court and the state courts,

should not give this Court any pause. Campbell is not mentally-

retarded for purposes of Atkins.


-40-

IV.IV.IV.IV. This Court ShoulThis Court ShoulThis Court ShoulThis Court Should Not Recall Its Previous Mandate.d Not Recall Its Previous Mandate.d Not Recall Its Previous Mandate.d Not Recall Its Previous Mandate. Campbell also asserts that as an alternative to granting his

motion for authorization to file a successive petition, this Court could

simply recall the mandate of its previous decision. Mot. at 18-22.

Campbell argues this is not an attempt to circumvent AEDPA because

he is not attacking his conviction or sentence but rather the integrity of

the appellate process. Mot. at 20. But Campbell is attacking his

sentence because he claims he cannot be executed under Atkins. And he

is trying to transform his dilatory actions into an attack on the State.

Campbell admits to being on notice before trial that he allegedly

suffered from sub-average intellectual functioning, Mot. at 20-21, but he

argues he was actively prevented from making his claim because TDCJ

mistakenly failed to turn over one test score which is still technically

above the cut-off for mental retardation. His present assertions that

TDCJ’s actions threw him off the Atkins trail are not credible.

Further, as the Supreme Court announced in Calderon v.

Thompson, 523 U.S. 538 (U.S. 1998), a prisoner’s motion to recall the

mandate on the basis of the merits of the underlying decision can be


-41-

regarded as a second or successive application for purposes of § 2244(b).

“Otherwise, petitioners could evade the bar against relitigation of

claims presented in a prior application, § 2244(b)(1), or the bar against

litigation of claims not presented in a prior application, § 2244(b)(2).”

Id. at 553. Thus, if a court grants such a motion, its action is subject to

AEDPA irrespective of whether the motion is based on old claims or

new ones. Id. Further, the Court went on to state that if a court

considers new evidence in the recall of a mandate, then “§ 2244(b)(2)

applies irrespective of whether the court characterizes the issue sua

sponte.” Id. at 554.

Given that Campbell’s retardation claims were time-barred at the

time of this Court’s previous determination and that they were

procedurally defaulted at that time as well, and that he is still subject

to AEDPA’s strictures, it remains to be seen what Campbell would gain

from a recall of this Court’s mandate. For these reasons, the Court

should decline such an invitation.


-42-

V.V.V.V. Campbell Is Not Entitled to a Stay ofCampbell Is Not Entitled to a Stay ofCampbell Is Not Entitled to a Stay ofCampbell Is Not Entitled to a Stay of Execution.Execution.Execution.Execution.

“[This Court’s] standard for review of a stay of execution is

essentially the same as the measure for granting a stay.” Byrne v.

Butler, 845 F.2d 501, 518 (5th Cir. 1988). To be entitled to a

preliminary injunction or a stay of execution a movant must show “a

substantial likelihood of success on the merits” and that the balance of

harms tips in his favor. See Tamayo v. Stephens, 740 F.3d 986, 990 (5th

Cir. 2014) (citing Adams v. Thaler, 679 F.3d 312, 318 (5th Cir.

2012)(stay of execution), and Janvey v. Alguire, 647 F.3d 585, 595 (5th

Cir. 2011)(preliminary injunction)). When the requested relief is a stay

of execution, a court must consider:

(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceedings; and (4) where the public interest lies.

Nken v. Holder, 556 U.S. 418, 434 (2009)(quoting Hilton v. Braunskill,

481 U.S. 770, 776 (1987).

In either instance, the remedy should only issue if the movant has

clearly carried the burden of persuasion on all four requirements.


-43-

Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam) (“‘It

frequently is observed that a preliminary injunction is an extraordinary

and drastic remedy, one that should not be granted unless the movant,

by a clear showing, carries the burden of persuasion.’”)

As demonstrated above, Campbell has raised untimely and

unmeritorious claims and has wholly failed to meet any of the required

elements for a stay.

CONCLUSIONCONCLUSIONCONCLUSIONCONCLUSION

This Court should deny Campbell’s motion for authorization to file

a successive federal petition and his motion for a stay of execution.

Respectfully submitted,

GREG ABBOTT Attorney General of Texas

DANIEL T. HODGE First Assistant Attorney General DON CLEMMER Deputy Attorney General for Criminal Justice EDWARD L. MARSHALL Assistant Attorney General Chief, Criminal Appeals Division


-44-

s/ Ellen Stewart-Klein *Lead counsel ELLEN STEWART-KLEIN* Assistant Attorney General Office of the Attorney General of Texas P. O. Box 12548, Capitol Station Austin, Texas 78711 Telephone: (512) 936-1400 Telecopier: (512) 320-8132 Email: [email protected] ATTORNEYS FOR RESPONDENT-APPELLEE


-45-

CERTIFICATE OF SERVICE CERTIFICATE OF SERVICE CERTIFICATE OF SERVICE CERTIFICATE OF SERVICE

I certify that on May 12, 2014, I electronically filed this Response

in Opposition with the Clerk of the Court using the CM/ECF Document

Filing System. I further certify that on the same date, a copy was

served on counsel for Petitioner-Appellee who are registered CM/ECF

filing users, via the Court’s electronic Notice of Docket Activity:

Maurie Levin Jonathan J. Ross Texas Bar No. 00789452 Texas Bar No. 00791575 Attorney at Law Susman Godfrey L.L.P. 211 South Street, #346 1000 Louisiana St., Suite 5100 Philadelphia, PA 19147 Houston, TX 77002-5096 Tel.: (512) 294-1540 Tel.: (713) 651-9366 Fax: (215) 733-9225 Fax: (713) 654-6666 [email protected] [email protected]

Robert C. Owen Northwestern University School of Law Bluhm Legal Clinic 375 East Chicago Ave. Chicago, IL 60611 (312) 503-0135 – Telephone (312) 503-8977- Facsimile [email protected]

s/ Ellen Stewart-Klein ELLEN STEWART-KLEIN Assistant Attorney General


-46-

ELECTRONIC CASE FILING CERTIFICATIONS ELECTRONIC CASE FILING CERTIFICATIONS ELECTRONIC CASE FILING CERTIFICATIONS ELECTRONIC CASE FILING CERTIFICATIONS

I do hereby certify that: (1) all required privacy redactions have

been made; (2) this electronic submission is an exact copy of the paper

document; and (3) this document has been scanned using the most

recent version of a commercial virus scanning program and is free of

viruses.

s/ Ellen Stewart-Klein ELLEN STEWART-KLEIN Assistant Attorney General

CERTIFICATE OF COMPLIANCE WITH RULE 32(a)CERTIFICATE OF COMPLIANCE WITH RULE 32(a)CERTIFICATE OF COMPLIANCE WITH RULE 32(a)CERTIFICATE OF COMPLIANCE WITH RULE 32(a)

I hereby certify that this Brief of Defendant-Appellees complies

with Fed. R. App. Proc. 32(a)(7)(c) in that it contains 7,720 words.

Microsoft Word 10, Century font, 14 points.

s/ Ellen Stewart-Klein Assistant Attorney General

Counsel of record for Respondent-Appellee


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