Filed: Sep. 27, 2021
Latest Update: Sep. 28, 2021
Case: 21-70007 Document: 00516029886 Page: 1 Date Filed: 09/27/2021
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
No. 21-70007
FILED
September 27, 2021
Lyle W. Cayce
Rick Allen Rhoades, Clerk
Plaintiff—Appellant,
versus
Ana Martinez, Honorable,
Defendant—Appellee.
Appeal from the United States District Court for the
Southern District of Texas
USDC No.4:21-CV-2422
Before Higginbotham, Haynes, and Graves, Circuit Judges.
Per Curiam:*
Nearly thirty years ago, Rick Allen Rhoades was convicted in a Texas
state court of capital murder and sentenced to death. Now scheduled for
execution on September 28, 2021, he has exhausted his state court appeals
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4. Judge Graves concurs in the
judgment only.
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and habeas relief in the state and federal courts. 1 In 2019 this court denied
Rhoades’s petition for habeas relief 2 and the Supreme Court denied
Rhoades’s petition for a writ of certiorari. 3
I
On January 21, 2021 the district attorney’s office asked the Honorable
Ana Martinez, the current judge of the 179th District Court of Harris County
where Rhoades was convicted, to schedule Rhoades’s execution. Then on
March 10, 2021, two years after this court reviewed Rhoades’s Batson
challenge, Rhoades filed a motion before Judge Martinez under Texas Code
of Criminal Procedure Article 35.29 seeking access to the juror cards and jury
questionnaires from his 1992 trial in order to renew his Batson challenge. 4
Judge Martinez considered Rhoades’s motion in at least three hearings.
Enlisted to set a date of execution, she lacked jurisdiction to rule on the
motion and set Rhoades’s execution date. 5 Rhoades then sought mandamus
relief from the Texas Court of Criminal Appeals, seeking an order directing
1
Rhoades v. Davis, 914 F.3d 357, 363, 383 (5th Cir. 2019).
2
Id. at 383.
3
Rhoades v. Davis, 140 S. Ct. 166 (2019).
4
Batson v. Kentucky, 476 U.S. 79 (1986).
5
“[A]t this point I struggle with jurisdiction and I believe this is not properly
brought before the Court, so I'm not going to take on your motion at this moment.”; “It is
the Court's ruling that the Court does not have jurisdiction to make that determination on
that matter and it is the Court's ruling today that the Court does not have jurisdiction to
reconsider such request.
2
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Judge Martinez to reach the merits of Rhoades’s motion under Article 35.29. 6
The CCA denied Rhoades’s motion for leave to file mandamus. 7
Rhoades then filed the instant suit pursuant to 42 U.S.C. § 1983
against Judge Martinez. Rhoades alleges that Judge Martinez violated his
rights under the due process and equal protection clauses of the Fourteenth
Amendment by denying him a statutory right to access jury materials from
his trial. The district court granted Judge Martinez’s motion to dismiss and
denied Rhoades’s motion for a stay of execution. Rhoades appealed. 8
II
Ultimately, in his § 1983 suit Rhoades requested that a United States
District Court review a decision made by the state court on a matter of state
law. He invoked a procedure provided by state law for obtaining juror
materials. The state court, applying state law, found that it lacked jurisdiction
over Rhoades’s Article 35.29 motion. Invoking Rooker-Feldman—federal
6
Mandamus is the mechanism provided for by state law to address a trial court’s
action pursuant to article 35.29. Falcon v. State, 879 S.W.2d 249, 250 (Tex. App.—Hous.
[1st Dist.] 1994, no pet.)
7
In re Rhoades, No. WR-78,124-02, 2021 WL 2964454, at *1 (Tex. Crim. App. July
14, 2021).
8
On August 9, 2021, while Rhodes’s § 1983 suit was pending in federal court, he
applied for a subsequent writ of habeas corpus in state court pursuant to Texas Code of
Criminal Procedure 11.071 § 5 and for a motion to stay his execution to the Court of
Criminal Appeals. He sought relief on three distinct bases, but he did not seek relief under
his Batson claim. The Texas Court of Criminal Appeals dismissed his application for habeas
relief and denied his motion for a stay. Texas Court of Criminal Appeals, No. WR-78,124-
03, September 20, 2021. Rhoades has not sought permission to file a successive habeas
petition in federal court and would be unable to do so on a Batson claim. 28 USC §
2244(b)(1).
3
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district courts lack jurisdiction to entertain collateral attacks on state court
judgments 9—the federal district court here dismissed the suit.
III
Rhoades cannot evade this jurisdictional limit by “asserting. . . claims
framed as original claims for relief,” here recasting Judge Martinez’s denial
of relief as a denial of constitutionally secured due process. 10 This is word
play: a declination to rule for want of jurisdiction cannot be reframed as a
denial of due process rooted in the state law rule. Stripped of its able
advocate’s clothing, Rhoades asked the district court to determine that Judge
Martinez incorrectly applied state law. 11 Although, Skinner v. Switzer read
the reach of Rooker-Feldman narrowly, Rhoades’s reliance here on Skinner is
unfounded. 12 For Skinner, obtaining the DNA evidence would not
necessarily imply the invalidity of his conviction, though it could lead to
evidence that might or might not assist him. While the procedure is parallel
to this case in some respects, the differences are fundamental. Skinner sued
the District Attorney, as prescribed by the Texas statute, urging that her
refusal to order DNA testing on these facts was unconstitutional, essentially
a ministerial act.13 Rhoades, however, challenged a judicial ruling—the ruling
of the state judge on her power to decide the state court’s jurisdiction—and
then sought mandamus relief from the Texas Court of Criminal Appeals.
9
D.C. Ct. of Appeals v. Feldman, 460 U.S. 462, 483 (1983); United States v.
Shephard,
23 F.3d 923, 924 (5th Cir. 1994).
10
Shephard, 23 F.3d at 924.
11
See Pennhurst v. State Sch. And Hosp. v. Halderman, 465 U.S. 89, 106 (1984) (“[I]t
is difficult to think of a greater intrusion on state sovereignty than when a federal court
instructs state officials on how to conform their conduct to state law.”).
12
562 U.S. 521, 531 (2011).
13
Id. at 530.
4
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That writ was denied. 14 Rhoades did not challenge the constitutionality or the
interpretation of Article 35.29 in any court. The issue was solely the
jurisdiction of Judge Martinez. Reviewing such a decision is “inextricably
intertwined” with reviewing a state court decision, such that the district
court is “in essence being called upon to review the state-court decision.” 15
Accordingly, we need not reach the numerous other asserted barriers to this
claim, such as sovereign immunity and Younger abstention.
And as this Court, in Rhoades’s earlier appeal, fully considered and
rejected Rhoades’s Batson challenge, sans the missing racial identity of one
seated juror and mindful that the government struck from its allotted
fourteen peremptory challenges twelve white persons and that this court
found sound basis in the record for the exclusions of two black
veniremembers, 16 we affirm the district court and deny the motion for a stay
of execution.
14
In re Rhoades, No. WR-78,124-02, 2021 WL 2964454, at *1 (Tex. Crim. App. July
14, 2021).
15
Shephard, 23 F.3d at 924; Ingalls v. Erlewine,
349 F.3d 205, 209 (5th Cir. 2003).
16
Rhoades, 914 F.3d at 381–83.
5
