Case: 15-70016      Document: 00513036949         Page: 1    Date Filed: 05/08/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 15-70016                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
DERRICK DEWAYNE CHARLES,                                                     May 8, 2015
                                                                           Lyle W. Cayce
              Petitioner – Appellant,                                           Clerk

v.

WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

              Respondent – Appellee.




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:09-CV-00592


Before HIGGINBOTHAM, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
       This capital case requires us to determine whether we must stay
Petitioner’s execution, currently scheduled for May 12, 2015, to give effect to
his right “meaningfully to research and present [his] habeas claims.” Because
the district court did not abuse its discretion in determining that a mental




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                     No. 15-70016
health evaluation is not reasonably necessary to develop Petitioner’s
underlying habeas claim, we AFFIRM.
                                            I.
      Petitioner, Derrick Dewayne Charles, was convicted and sentenced to
death by a jury in 2003 after pleading guilty to murdering his fifteen-year-old
girlfriend, her mother, and her grandfather during the same criminal
transaction. 1 On direct appeal, Charles challenged his sentence on the ground
that the trial court improperly admitted victim character evidence, including
evidence of his girlfriend’s hobbies and her grandfather’s history of military
service. Charles v. State, AP-74694, 

, at *1 (Tex. Crim. App.
Feb. 2, 2005).        He also challenged Texas’s capital-murder scheme as
unconstitutional and his guilty plea as statutorily barred because of infirmities
in the procedure used at the sentencing hearing. 

The Texas Court
of Criminal Appeals affirmed the conviction and sentence. 

It held
that the state trial court did not abuse its discretion in allowing the character
evidence because the evidence provided only a brief glimpse into the victims’
backgrounds. 

The Texas Court of Criminal Appeals further held
that Charles’s constitutional challenge to Texas’s capital-murder scheme was
foreclosed by precedent, and that he was estopped from challenging the
sentencing hearing procedure because, as evidenced by the trial transcript, the
trial court followed the procedure that Charles had requested. 

      While his direct appeal was pending, Charles filed a state habeas
application. The state habeas court held an evidentiary hearing and entered



      1 The facts of Charles’s crime are recounted in the Texas Court of Criminal Appeals’
opinion on direct appeal as well as in our habeas opinion. Charles v. State, No. AP-74694,

, at *1 & n.1 (Tex. Crim. App. Feb. 2, 2005); Charles v. Stephens, 

, 383–84 (2013). We need not recite them again here.


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                                         No. 15-70016
findings of fact and conclusions of law recommending that relief be denied. Ex
parte Charles, WR-67171-01, 

, at *1 (Tex. Crim. App. Feb. 27,
2008). The Texas Court of Criminal Appeals summarily affirmed. 

2009, Charles filed a federal petition in the Southern
District of Texas alleging ineffective assistance of trial counsel on the basis of
his counsel’s purported failure to present mitigating evidence. Applying the
deference required by the Antiterrorism and Effective Death Penalty Act, the
district court denied relief. 2         Charles v. Thaler, 4:09-CV-0592, 

, at *1 (S.D. Tex. Oct. 24, 2011), aff'd sub nom, Charles v. Stephens,

(5th Cir. 2013).
       On appeal, we affirmed the district court’s judgment.                         Charles v.
Stephens, 

, 396 (5th Cir. 2013). Examining applicable Supreme
Court precedent, we explained that “the state habeas court did not
unreasonably apply Strickland’s deficiency prong by concluding that Charles’s
trial counsel performed an adequate mitigation investigation.” 

       2  In its opinion, the district court recounted in detail Charles’s attorneys’ investigation
into, and presentation of, mitigating evidence. Charles v. Thaler, No. 4:09-CV-0592, 

, at *4–8 (S.D. Tex. Oct. 24, 2011), aff'd sub nom, Charles v. Stephens, 

(5th Cir. 2013). The district court denied relief, mostly on the ground that Charles’s trial
counsel conducted a thorough investigation and made a reasonable, strategic decision not to
introduce mitigating evidence. The district court noted that trial counsel failed to uncover
and present hospital records containing Charles’s mental health history. 

However, the district court found that Charles’s trial counsel’s decision not to investigate the
records was itself reasonable under the relevant Supreme Court precedent. Charles v.
Thaler, 

at *21–22 (citing Rompilla v. Beard, 

(2003); Wiggins
v. Smith, 

(2003)). As the district court explained, trial counsel “had little reason
to think that the Gulf Pines Hospital records might benefit the defense.” Charles v. Thaler,

at *21. Although “[t]he defense was told by [Charles’] family that [he] had
been placed in a hospital for ‘acting out’ . . . [Charles’] family assured the defense it was
nothing more than that, as did [Charles].” 

first alteration in original). Charles
later filed a motion to alter or amend the judgment, which the district court denied. Charles
v. Thaler, 4:09-CV-0592, 

, *3 (S.D. Tex. Apr. 17, 2012).




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                                      No. 15-70016
Charles petitioned for rehearing en banc, which we denied, see Order on Pet.
Reh’g En Banc, No. 12-70016, Doc. 74 (5th Cir. Jan. 8, 2014), and the Supreme
Court denied Charles’s petition for a writ of certiorari. Charles v. Stephens,

(2014).
       On November 10, 2014, the state trial court filed its execution order
setting the execution date for May 12, 2015. On March 13, 2015, Charles filed
motions to withdraw or modify the execution order, for appointment of counsel,
and for funding for a mental health evaluation. After a hearing, the state court
denied the motions on April 9, 2015. Charles did not appeal these denials to
the Texas Court of Criminal Appeals, but instead filed three motions in the
federal district court on April 17, 2015, twenty-five days before his scheduled
execution.
       Charles did not file a habeas application in the district court. He filed
motions for authorization to hire a mental health expert, for appointment of
counsel, 3 and for stay of execution, all pursuant to 18 U.S.C. § 3599. In filing
these motions, Charles sought time to “investigate, prepare, and present a
claim that he is incompetent to be executed under Ford v. Wainwright, 

(1986), and Panetti v. Quarterman, 

(2007).”
       Charles argued that he can “make a colorable showing” under Ford v.
Wainwright, 

(1986), “that he is not competent to be executed.”



       3 The district court granted Charles’s motion to appoint counsel and this decision is
not at issue on appeal. Appointed counsel are Paul E. Mansura and Burke M. Butler, both
of whom Charles requested in his motion for assistance of counsel. In its order, the district
court noted that Mansur and Butler had already been appointed, but “nevertheless”
appointed them again to represent Charles “throughout every subsequent stage of available
judicial proceedings.” See 18 U.S.C. § 3599(e). Butler was appointed on March 2, 2015 to
substitute the previous second-chair counsel and Mansura was originally appointed on April
4, 2012. Both appointments precede the filing of Charles’s motion for appointment of counsel.



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                                       No. 15-70016
Citing several volumes of supporting evidence, Charles contended that he has
“suffered from severe and debilitating mental illness since childhood” as a
result of genetic inheritance and the environment in which he was raised. He
offered thirty-one exhibits, including the Gulf Pines Hospital records and
several affidavits from doctors, attorneys, and family members.                     Of these
exhibits, only two referred to information gathered after 2009. 4 In addition,
he argued that 28 U.S.C. § 2244(B) would not bar his Ford claim as a successive
petition because, according to 

, his Ford claim was not
ripe until the state trial court set his execution date.
       The state filed its response to Charles’s motions on April 24, 2015. In its
response, the state argued that Charles’s motions did not present a cognizable
claim under § 2254, and to the extent they did, such a claim was unexhausted
and procedurally barred.          The state further argued that any underlying
incompetency claim was ultimately meritless. Charles filed his reply on April
29, 2015, clarifying that he was not yet filing a habeas claim, only motions
seeking authorization to develop his habeas claim, pursuant to his rights under
18 U.S.C. § 3599.
       On May 4, 2015, the district court filed its Memorandum and Order
denying Charles’s motions for authorization to hire a mental health expert and
for a stay of the execution. Acting sua sponte, the district court also denied a




       4  Two affidavits, one signed by Steve Hare and the other by James William Marcus,
refer to interviews the affiants had with Charles in 2013 and 2012, respectively. A third was
completed in March 2015 but it refers to interviews conducted between 2003 and 2005.
Similarly, a fourth affidavit signed in March 2015 includes Dr. Hays’s analysis of reports that
included facts gathered in 2006. The remaining exhibits include evidence that was already
submitted to the state trial court or the state or federal habeas court



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                                      No. 15-70016
certificate of appealability (COA). 5 The district court carefully identified what
was not at issue.       Specifically, the district court explained that Charles’s
motions did “not directly seek federal habeas relief from his conviction and
sentence”; did “not challenge the reasonableness of any state-court
determination about his competency to be executed”; 6 did “not seek relief from
constitutional infirmities in the state process for obtaining experts or
investigators to evaluate possible psychological claims”; and did “not seek leave
to litigate a successive federal habeas petition based on Ford.”
       What Charles did request was a stay of his execution so that he could
exercise his right under 18 U.S.C. § 3599 “to meaningfully research and
present [his] habeas claims.” See McFarland v. Scott, 

, 858 (1994).
As the district court noted, “Charles’[s] theory is novel and limited.” His Ford
claim was never actually before the state or district court. “Charles []made it
clear that he seeks rulings only on whether he is entitled to a stay of execution
and the allocation of funds to develop a Ford claim.” In Charles’s words, the
issue presented is “whether Mr. Charles’ Ford showing is sufficient to trigger
counsel and resources under § 3599, and a stay of execution to permit him an
opportunity to present his Ford claim.” He admitted that the merits of his
Ford claim are relevant only to the extent that “the existing record is so devoid
of evidence that it does not even constitute a colorable Ford claim.”




       5 As explained infra, a prisoner need not obtain a COA before appealing the denial of
his § 3599 motion. Therefore, this ruling by the district court is not at issue.

       6Indeed, the state court never ruled on the merits of Charles’s underlying Ford claim
because it was merely asked to consider whether he made a showing sufficient to warrant a
stay and authorization to hire a mental health expert.



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                                        No. 15-70016
       In denying Charles’s motion for stay, the district court applied the
factors we typically consider for granting a stay, 7 and it determined that
Charles failed to show a substantial likelihood of success on the merits of his
underlying Ford claim. The district court also indicated that even if it applied
the “colorable showing” standard, the stay would not be warranted. As for the
§ 3599(f) motion for authorization to hire a mental health expert, the district
court determined that “[n]othing in the record before the Court has hinted that
additional exploration of the Ford inquiry would result in a viable, or even
colorable, Ford claim.”
                                               II.
       We have jurisdiction to consider Charles’s motions. A district court’s
denial of a motion under 18 U.S.C. § 3599(f) 8 is an appealable order, and “such
an order . . . is not subject to the COA requirement.” Harbison v. Bell, 

, 183 (2009); Smith v. Dretke, 

, 288 (5th Cir. 2005) (“[A] COA
is not necessary to appeal the denial of funds for expert assistance.”). The
Supreme Court has held that the § 3599 right to expert assistance, like the
right to counsel, “adheres prior to the filing of a formal, legally sufficient



       7   Normally we consider four factors in deciding whether to grant a stay:
       (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 proceeding; and (4) where the public interest
       lies.
Nken v. Holder, 

, 425–26 (2009); see also Planned Parenthood v. Abbott, 

, 410 (5th Cir. 2013). A stay “is not a matter of right, even if irreparable injury might
otherwise result to the appellant.” 

(internal quotation marks omitted).

       8McFarland and other cases refer to a different statute. This is because the applicable
statute was formerly codified at 21 U.S.C. §§ 848(q)(4)–(10), then recodified in 2006, without
change, to create the current 18 U.S.C. § 3599.



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                                      No. 15-70016
habeas corpus petition,” so the § 3599 motion itself commences a habeas
proceeding and triggers federal jurisdiction. 

–58
(addressing initial habeas filings); In re Hearn, 

, 452 (5th Cir.
2004) (extending McFarland to § 3599 motions related to successive habeas
claims). Likewise, “once a capital defendant invokes his [§ 3599 right], a
federal court also has jurisdiction under § 2251 to enter a stay of execution” to
make the defendant’s § 3599 right effective. 

. 9
       We review a district court’s denial of a § 3599(f) motion for abuse of
discretion. Brown v. Stephens, 

, 459 (5th Cir. 2014); see also 18
U.S.C. § 3599(f) (stating that a district court “may authorize the defendant’s
attorneys to obtain such services”) (emphasis added). Likewise, “the decision
to grant [or deny] a stay . . . is generally left to the sound discretion of district
courts.” Ryan v. Gonzales, 

, 708 (2013).
       Charles’ motion for authorization to hire a mental health expert hinges
on whether he can show that the district court abused its discretion by
determining that a mental health expert is not “reasonably necessary” to
develop his Ford claim. See 18 U.S.C. § 3599(f) (permitting authorization of
expert assistance “upon a finding that . . . [it is] reasonably necessary for the
representation of the defendant”). We have “interpreted ‘reasonably necessary’
[in § 3599(f)] to mean that a prisoner must show that he has ‘a substantial
need’ for the requested assistance.” Brown v. Stephens, 

, 459 (5th
Cir. 2014) (quoting Riley v. Dretke, 

, 307 (5th Cir. 2004)). Under
this standard, we have upheld district court decisions denying assistance



       9 “[A] court that would have jurisdiction to entertain a habeas corpus application”
regarding a particular prisoner’s death sentence may stay execution of that sentence upon
the prisoner’s application for § 3599 representation or expert assistance. 28 U.S.C. § 2251.



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                                      No. 15-70016
where such assistance will be in support of a claim that is procedurally barred 10
or “meritless,” or where the assistance would generate only supplementary
evidence. 

.
       Charles argues that to satisfy the “reasonably necessary” standard he
need only show that he has a “colorable” Ford claim. He borrows this standard
from Hearn, 11 in which we reviewed whether a prisoner seeking to investigate
a potential Atkins claim had made a showing sufficient for purposes of a § 3599

(holding that a § 3599 motion “need only be supported
by a colorable showing of mental retardation”) (emphasis added), decision
clarified on denial of reh'g, 

(5th Cir. 2004). However, Charles
admits in his brief that on rehearing we limited Hearn, including its colorable
showing standard, to only those cases in which a prisoner has a potential claim
based specifically on Atkins. 

. Nevertheless, he argues that we
should now adopt the colorable showing standard in the context of Ford claims.
       Normally, Ford claims raised in a habeas application require a
“substantial” showing in order to gain additional process for presenting
evidence of incompetency. 

. Texas offers a similar
procedural mechanism under which a prisoner must make a threshold showing
that raises a “substantial doubt” regarding his competency to be executed. Tex.



       10The state argues in its brief that any Ford claim Charles may have is procedurally
barred because he has not yet exhausted the claim state court. The district court did not
address this issue and instead ruled on Charles’s § 3599 motion without regard to the
procedural posture of his underlying Ford claim. Because we agree with the district court
that Charles’s motions should be denied regardless of a potential procedural bar, we need not
address whether the availability of a § 3599 motion is affected by the unexhausted status of
a Ford claim upon which it relies.

       11Justice O’Connor also used this language in her concurrence in 

–61 (“[O]ur cases have made it clear that capital defendants must raise at least
some colorable federal claim before a stay of execution may be entered.”) (emphasis added).


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                                       No. 15-70016
Code Crim. P. art. 46.05(d); see also Druery v. State, 

, 540 (Tex.
Crim. App. 2013) (holding that state law initially requires a substantial
showing to trigger more process). If a prisoner satisfies this requirement, the
trial court must hold a hearing to determine a petitioner’s competency by a
preponderance of the evidence. 

       Charles never filed an art. 46.05 motion in state court, or a habeas
application in federal court, as to his Ford claim.                Instead, Charles filed
motions for appointment of counsel and for expert and investigative assistance
in both courts, and both courts denied the motions. 12 It is unnecessary for us
to decide the issue of whether the proper test is a “colorable showing” or a
“substantial showing”—neither is satisfied here. The district court determined
that Charles had not made a colorable or substantial showing, and the district
court’s decision was not an abuse of discretion.
       “The Supreme Court has declined to set forth a specific standard for
determining” incompetency. Eldridge v. Stephens, No. 13-70023, 

, at *3 (5th Cir. Jan. 16, 2015). Generally, a prisoner is incompetent
if he does not (1) “know the fact of [his] impending execution,” 

(Powell, J., concurring in part and concurring in the judgment), 13 or does
not (2) “ha[ve] a rational understanding of the reason for the execution,”

. “Rational understanding” requires more than mere
awareness of the facts about the execution. 

. The




       12 Charles filed a petition for a writ of certiorari in the United States Supreme Court
seeking review of the state-court decisions. The petition is currently pending. See Charles
v. Texas, No. 14-9605 (U.S. 2015).

       13Justice Powell’s opinion controls because it represented the narrowest holding of
the Court. Panetti v. Quarterman, 

, 949 (2007).



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                                      No. 15-70016
prisoner must understand the reasons for his execution. 

law distinguishes between an inmate who is mentally ill and one who is insane.
ShisInday v. Quarterman, 

, 521 (5th Cir. 2007). If a prisoner “has
a rational understanding of his crime, his impending death, and the causal
relationship between the two,” then he is competent.                 Eldridge, 

, at *3.
       As the district court carefully documented, Charles essentially relies on
the very same evidence he marshalled in his initial state and federal habeas
proceedings. The evidence includes his childhood hospital records; psychiatric
records from the Texas Youth Commission; evidence of his turbulent home life;
prior arrests and incarcerations; evidence of drug use; expert evaluations; 14
and the trial transcript (in which Charles affirmed his understanding of the
charges and denied having any delusions). Based on these records, he argues
that he “has an extensive and well-documented history of mental illness,
including episodes of psychosis, and significant mental impairment that
profoundly affects his functioning, even to the present day.” However, even
assuming he has some form of mental illness, none of this evidence shows that
he does not know about his execution or that he does not rationally understand
the reason for it. See Martinez, 

, at *1 (“[C]ounsel . . . was able
to develop an extensive history of mental health that still falls short of any
threshold showing of incompetency to be executed.”).
       Moreover, the district court found that in 2005 and 2006, two experts
evaluated Charles and determined that he was not mentally retarded or


       14Without the aid of Charles’s hospital records, one expert, Dr. Brown, concluded that
there was no “evidence of mental illness or other types of mental disorder or mental defect.”
After having seen the hospital records, Dr. Brown expressed that they would have warranted
further evaluations, but he expressed uncertainty about whether any “organic brain damage”
would cause significant behavioral issues.


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                                       No. 15-70016
incompetent. They reported that he did not experience “active psychosis,” his
hallucinations occurred over a short period of time, his negative behavior and
low cognitive scores were consistent with his ADHD, he denied experiencing
“symptoms that are compatible with a psychotic disorder,” and he was “lucid
in his conversation and thought processes.” While there was evidence of some
depression, low intelligence, and possible brain injury, the two experts “did not
diagnose him with any mental illness.” “Nothing in the record . . . indicates
that Charles suffers from symptoms of ‘insanity’ as described by Ford.” There
was no evidence of “pervasive and severely debilitating conditions . . . that
traditionally give rise to Ford claims.”
       Much of the new evidence that Charles submitted with his § 3599 motion
includes recent affidavits, mostly from his attorneys, but also one from a
physician. 15 The attorneys’ affidavits claim that Charles’s “affect was always
very flat”; “he was completely unengaged with the legal discussion relating to
his case”; he “expressed little understanding of the proceedings”; he exhibited
“strange physical tics”; he was “uncomfortable making conversation”; he was
“emotionless”; and he “struggled to understand the simplest of topics.” The
physician stated in his affidavit that Charles “could be incompetent to be
executed,” but this physician never met with Charles and only partially
reviewed the record. None of these affiants asserted that Charles was unaware
he was being executed or that he did not rationally understand why he was



       15 Other than a few affidavits sworn to in March 2015, the rest of Charles’s evidence
has existed for several years and been presented at various stages in the history of his case.
These recent affidavits are from Steve Hare, a Texas Defender Service intern, James William
Marcus, a professor and attorney, Robert S. Wicoff, Charles’s habeas counsel from 2003–
2005, and Dr. Hays, a psychologist and attorney who did not interview Charles, but reviewed
his medical reports. Despite Charles’s assertion otherwise, some of these affidavits say very
little about Charles’s current mental state—Marcus’s affidavit refers to an interview from
2012 (at the latest), and Wicoff’s to interviews between 2003 and 2005.


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                                       No. 15-70016
being executed. The state court aptly noted that “nothing like that exists
[]because . . . it would be unethical for [the affiants] to give such an affidavit
because it [probably] wouldn’t be true.” “Most of this has been investigated
and investigated and investigated for years,” and yet none of the affiants have
been able to state that Charles did not know he was being executed or that he
did not understand why. 16
       As the district court explained, the record “simply does not contain any
evidence in support [of] Charles’[s] allegations.” While a “colorable,” or even a
“substantial,” showing may require little, it at least requires some competent
evidence showing that a prisoner fails one or both of the elements for
competency. Challenges lacking such evidence are precisely the kind of “[l]ast-
minute filings that are frivolous[,] designed to delay executions[, and] can be
dismissed in the regular course.” 

. Based on our review
of the record in this case, the district court did not abuse its discretion in
denying Charles’s § 3599(f) motion.                “Charles’s long term mental health
history, and the more recent observations by two affiants, does not justify a
competency evaluation.”
       Likewise, the district court did not abuse its discretion in denying his
motion for stay of execution. It is not clear whether Charles’ motion for stay is
governed by McFarland or by the Nken factors.                    Under McFarland, if a
prisoner succeeds on his § 3599 motion but has insufficient time to




       16  The state argues that the state court’s denial of Charles’s motions for stay and
expert assistance warrant our application of AEDPA deference to the analogous motions he
filed in federal court. The district court reviewed Charles’s federal motions de novo and still
denied relief. Because we agree with the district court that the motions fail even on de novo
review we need not decide whether AEDPA deference should apply to a state court’s
resolution of motions like those at issue here.


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                                   No. 15-70016
meaningfully exercise that right because of an impending execution, the
Supreme Court has instructed federal courts to grant a stay. 

(“[A]pproving the execution of a defendant before his [petition] is decided
on the merits would clearly be improper.”) (internal quotation marks omitted).
Of course, “if a dilatory capital defendant inexcusably ignores this opportunity
and flouts the available processes, a federal court presumably would not abuse
its discretion in denying a stay of execution.” McFarland v. Scott, 

, 860–61 (1994). Under the Nken factors, the movant must make a strong
showing that he is likely to succeed on the merits of his underlying claim—in
this case, Charles’s Ford claim.
      As already explained, Charles cannot make the requisite showing under
his § 3599 motion. Neither can he make a strong showing that he is likely to
succeed on his Ford claim.         See 

–26.        Therefore,
regardless of which standard we apply, Charles’s is not entitled to relief on his
motion for stay.
                                       III.
      Accordingly, we AFFIRM.




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