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UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 00-50133
_______________________
BETTY LOU BEETS,
Plaintiff-Appellant,
versus
TEXAS BOARD OF PARDONS
& PAROLES; ET AL,
Defendants-Appellees.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Texas
_________________________________________________________________
February 24, 2000
Before JOLLY, HIGGINBOTHAM, and JONES, Circuit Judges.
PER CURIAM:
Before us are a notice of appeal and brief on appeal by
death-sentenced petitioner Betty Lou Beets, who seeks review of the
district court's refusal to stay her execution presently scheduled
for 6:00 p.m. on February 24, 2000. We agree with the district
court's determination that it had no authority to stay an execution
in a § 1983 case, and we therefore affirm.
Some anomalies in the filings before this court should be
noted. First, petitioner has not formally moved for a stay of
execution and attempted to support her motion with citation to
applicable authority. Because the final clause of the conclusion

of her appeal brief requests a stay, we assume that the technical
lacunae are filled. Second, Petitioner has failed to move for IFP
status. We grant her the benefit of the doubt on that. Inasmuch
as the outcome of petitioner's appeal has been foreshadowed by
guiding law in this circuit for the last year, it is not obvious
why we should make these concessions. They are appropriate only
because of the lateness of the hour.
This court has twice held that federal courts lack
jurisdiction under § 1983 to stay executions. Faulder v. Johnson,
178 F.3d 741 (1999); Moody v. Rodriguez, 164 F.3d 893 (5th Cir.
1999). As in the previous two cases, petitioner asserts that the
Texas Board of Pardons & Paroles did not properly handle her actual
or potential clemency proceedings. She also alleges she is
entitled to clemency review under standards applicable to
petitioners who were battered spouses. The essence of Beets's
petition is a last-minute effort to defeat and delay her execution.
Beets
concedes,
however,
that
Faulder
and
Moody
are
indistinguishable, and this panel is bound by them, absent en banc
review of the full court.
For the sake of completeness, we note that her claim of
denial of due process is without merit. Inasmuch as the
legislative battered-spouse clemency review resolution -- S.C.R. 26
-- excludes perpetrators of capital crimes, she is ineligible.
Beets was found guilty of murder with the specific intent of
pecuniary gain. The record established that the shooting of her
husband was carefully premeditated, as was its concealment, and her
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actions after his death were consistent with a profitmaking intent.
There is no record evidence that she was abused by this victim. On
the contrary, at trial, she blamed his death on her son, denied
mistreatment by Mr. Beets, and professed her love for him.
That this claim of spousal abuse surfaced six days before
her scheduled execution date detracts from Beets's petition. When
S.C.R. 26 was passed, nine years ago, Beets was engaged in her
first federal habeas proceeding, represented by counsel who are
experienced and tenacious. This issue could have been raised
before the Pardons & Parole Division of the Texas Department of
Criminal Justice, the Texas Board of Pardons & Paroles, and state
or federal courts at any time. We question how counsel can aver
that they were "unaware" of their alternatives under this
resolution until February 4, 2000.
Confronting a similar situation, the Supreme Court held
that relief should be denied:
Equity must take into account the state's
strong interest in proceeding with its
judgment and [the petitioner's] obvious
attempt at manipulation. . . . There is no
good reason for this abusive delay, which has
been compounded by last-minute attempts to
manipulate the judicial process. A court may
consider the last-minute nature of an
application to stay execution in deciding
whether to grant equitable relief.
Gomez v. United States District Court of the Northern District of
California, 503 U.S. 653, 653-54, 112 S.Ct. 1652, 1653 (1993).
The judgment of the district court, which granted the
state's motion for summary judgment and denied a stay of execution,
3