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Click here for the full text of this decision FACTS:Petitioner-Appellant, Angel Maturino Resendiz, was convicted of capital murder in Texas and sentenced to death. In his first petition for writ of habeas corpus, Resendiz argued that it was unconstitutional for a defendant to have the burden of proving circumstances that mitigate against the death penalty. The district court denied relief on the merits, and this court dismissed the appeal for lack of jurisdiction because of an untimely notice of appeal. Resendiz returned to district court and filed a petition for writ of habeas corpus, alleging that his mental illness rendered him incompetent to be executed. He moved the district court to stay his impending execution to allow him to prove his incompetency to be executed. Applying Fifth Circuit precedent, the district court determined that Resendiz’s petition constituted a successive habeas petition under the Anti-Terrorism and Effective Death Penalty Act. Because it was a successive petition under AEDPA, the district court had no jurisdiction. The district court then transferred the petition pursuant to 28 U.S.C. �2244(b)(2) for this court to determine whether Resendiz is authorized to file a successive habeas petition. In Texas state court, Resendiz filed a motion claiming incompetency to be executed pursuant to Texas Code of Criminal Procedure Article 46.05. After numerous mental health experts examined Resendiz, the state district court held a competency hearing during which five experts testified regarding Resendiz’s competency. After the hearing, the state court found that “Drs. Stewart, Puente, and Patino concluded that the defendant is incompetent to be executed and that Drs. Gripon, Brown, and Moeller concluded that the defendant is competent to be executed.” The court further found, among other things, “based on the reports and hearing testimony, that the defendant understands he is to be executed and that the execution is imminent, and the reason he is being executed.” Thus, the state court found Resendiz competent to be executed. Resendiz then sought a Certificate of Appealability in the district court, which denied it. Resendiz contends that his Ford claim does not constitute a successive petition. HOLDING:Resendiz’s application for a COA is denied. The motion for stay of execution is denied. Richardson v. Johnson, 256 F.3d 257 (5th Cir. 2001), controls this case. In Richardson, the petitioner did not raise the claim of incompetency to be executed in his first federal habeas petition. Richardson, like Resendiz, raised the claim for the first time in a second petition. The court rejected Richardson’s assertion that the factual basis for his incompetency claim could not have been discovered prior to filing his first petition, stating that such a claim was refuted by his own expert witness and “the assertion that he has long suffered this bipolar disorder.” Resendiz also had a history of mental illness prior to filing his first petition. At the guilt phase of his capital murder trial, Resendiz called an expert witness to testify that he was insane at the time of the instant offense. Ultimately, treating Richardson’s competency claim as a successive writ, this court denied a COA and stay of execution. The court concludes that Resendiz has not demonstrated that jurists of reason could disagree with the district court’s treatment of his competency claim as a successive petition or that jurists could conclude the issue presented is adequate to deserve encouragement to proceed further. OPINION:Per curiam; Higginbotham, Benavides and Dennis, J.J.

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