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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 01-50568

MIGUEL RICHARDSON,
Petitioner-Appellant,
versus
GARY L. JOHNSON, Director,
Texas Department of Criminal Justice,
Institutional Division,
Respondent-Appellee.

Order Denying a Certificate of Appealability
and Stay of Execution
Western District of Texas

June 25, 2001
Before HIGGINBOTHAM, DeMOSS, and STEWART, Circuit Judges.
BY THE COURT:
I
Miguel A. Richardson on October 8, 1998, filed a petition for
habeas relief in the United States District Court, Western District
of Texas, San Antonio Division, pursuant to Title 28, U.S.C. §
2254. Richardson asked the federal courts to overturn his 1981
capital murder conviction and sentence of death. On January 23,
2001, this court affirmed the United States District Court's denial

of federal habeas corpus relief1 and stay of execution. The United
States Supreme Court denied certiorari on June 11, 2001, Richardson
v. Johnson, ___ U.S. ___ , 121 S. Ct. 2244, 2001 WL 456365 (June
11, 2001).
In this second federal petition filed four days ago and now
before us, Richardson asked the United States District Court to
conduct a hearing to determine if he is competent to be executed
and to stay his execution now scheduled for June 26, 2001, pending
that decision, all, Richardson says, as required Ford v.
Wainwright, 477 U.S. 399 (1986).
II
The District Court, while denying relief in this second
petition, granted a certificate of appealability, persuaded that
whether Stewart v. Martinez-Villareal, 523 U.S. 644 (1998),
overruled our decision in In Re: Davis, 121 F.3d 952 (5th Cir.
1997), presents a substantial question about which reasonable
jurists may differ.
The district court's grant of a certificate of appealability
has no significance if the petitioner is prosecuting a successive
writ and he clearly is. Of course, this does not answer the
question of whether a Ford claim is subject to the limits of a
successive writ. That is a distinct question.
1 See Richardson v. Johnson, 248 F.3d 1139 (5th Cir. 2001)
[table].
2

As for that, we do not read the decision of the Supreme Court
in Stewart v. Martinez Villareal as overruling or casting doubt on
our decision in In Re: Davis. Rather, the Supreme Court by
footnote explicitly declined to decide the case of a petitioner who
did not present his Ford claim in his first federal habeas, as did
Martinez Villareal.
III
This leaves the argument that Richardson did not have a Ford
claim at the time he filed his first federal habeas, a contention
with two aspects. The first is that the factual basis for the Ford
claim could not have been discovered at the time of the first
federal habeas. That claim is refuted by the assertion that he has
long suffered this bipolar disorder and by his own expert witness.
The second aspect is that the Ford claim was not ripe when the
first federal habeas petition was filed for the reason that
execution was not then imminent. To accept this argument would
mean as a practical matter that no Ford claim would need to be
presented in a first filed habeas, given that state courts, in part
at our urging, now seldom set execution dates until after the first
round of appeals and habeas.
We need not wrestle that issue at this late date given the
findings of fact issued by the 175th Judicial District Court and
approved by the Texas Court of Criminal Appeals. Those findings
included findings that the applicant "presents no factual
3

information, however, concerning his current mental health status."
The court also found that "applicant points to nothing which shows
that he is presently incompetent to be executed." The state habeas
court detailed record evidence to support its conclusion that
"based on all of the foregoing, the Court finds that applicant
understands that he is to be executed, that his execution is
imminent, and the reason for his execution."
IV
There are several difficulties with petitioner's claim of
involuntary medication, including whether it is cognizable in
habeas. The larger and first hurdle for petitioner is that this
claim has no factual legs. The state habeas court found that no
such showing of involuntary medication was made and that there was
no showing that the medication was given "for the purpose of making
him competent to be executed." The state habeas court pointed to
affidavits of Dr. Peccora and Gwendolyn Bundy that the applicant
was not involuntarily medicated. Finally, the state habeas court
found "Dr. Sparks affirms that he found nothing, in all the records
that he reviewed, which contradicts Dr. Peccora's statement that
Richardson accepted and received the medications voluntarily."
V
Ford claims admittedly have an uneasy fit with the AEDPA's
limits upon successive writs. We examined that fit in In re: Davis
and remain convinced that it is both sound and binding.
4