United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
August 11, 2023
No. 22-70005
Lyle W. Cayce
____________ Clerk
Matthew Johnson,
Petitioner—Appellant,
versus
Bobby Lumpkin, Director, Texas Department of Criminal Justice,
Correctional Institutions Division,
Respondent—Appellee.
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:19-CV-2310
______________________________
ON PETITION FOR REHEARING EN BANC
Before Elrod, Oldham, and Wilson, Circuit Judges.
Per Curiam:
The petition for rehearing en banc fails to identify a ground warranting
review by the en banc court. Accordingly, the petition is DENIED. We
briefly address the arguments presented in the petition, as well as the ethical
concerns posed by counsel’s behavior in this litigation.
…
Appellant Matthew Johnson filed a petition for a writ of habeas cor-
No. 22-70005
pus, and separately moved to recuse the district judge to whom that petition
was assigned. On appeal, we denied Johnson’s motion for a certificate of appealability, explaining that each of his arguments had already been considered
and rejected by binding precedent. For that reason, reasonable jurists would
not debate the correctness of the district court’s denial of post-conviction
habeas relief. Buck v. Davis, 580 U.S. 100, 115 (2017); Miller-El v. Cockrell,
537 U.S. 322, 338 (2003).
We also affirmed the district court’s denial of Johnson’s motion to
recuse. Johnson sought recusal on two bases. First, because the district court
ordered counsel to show cause why they should not be sanctioned for raising
frivolous arguments. Fed. R. Civ. P. 11(b); Mod. R. Prof. Cond. 3.1. And
indeed, each of Johnson’s arguments—that the “future dangerousness” element of the State of Texas’s capital sentencing statute is unconstitutionally
vague; that jury predictions of future dangerousness are inherently unreliable; that Johnson’s non-violent behavior while incarcerated retroactively disproves the jury’s finding that he posed a future threat to society; and that the
Constitution requires the State to prove beyond a reasonable doubt that mitigating circumstances do not warrant a life’s incarceration rather than a capital sentence—are foreclosed by multiple, binding precedents. 1
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1
See Tuilaepa v. California, 512 U.S. 967, 974 (1994) (holding that the State’s future
dangerousness element is not unconstitutionally vague) (quoting Jurek v. Texas,
428 U.S.
262, 274–76 (1976)); Woods v. Johnson,
75 F.3d 1017, 1034 (5th Cir. 1996) (same); Buntion
v. Lumpkin,
982 F.3d 945, 948–50 (5th Cir. 2020) (concluding that developments in social
science have not altered the proposition that a jury can accurately determine future dangerousness);
id. at 950–51 (explaining that a prisoner’s non-violent conduct after conviction does not undermine the jury’s determination that he poses a future threat of danger);
Rowell v. Dretke,
398 F.3d 370, 378 (5th Cir. 2005) (upholding the constitutionality of not
requiring the State to disprove mitigation beyond a reasonable doubt); Sprouse v. Stephens,
748 F.3d 609, 622 (5th Cir. 2014) (same); Scheanette v. Quarterman,
482 F.3d 815, 828 (5th
Cir. 2007) (same).
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No. 22-70005
To be sure, ethical rules and rules of civil procedure allow counsel to
advocate for a modification in the law. But when doing so, counsel is unquestionably obligated to recognize contrary authority. See Mod. R. Prof. Cond.
3.3(a)(2) (“A lawyer shall not knowingly . . . fail to disclose to the tribunal
legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing
counsel.”); Tex. Disciplinary R. Prof. Cond. 3.03(a)(2) (same).
Johnson’s attorneys failed to do so. Both before the district court and
on appeal, counsel failed to cite any of the binding precedents listed above.
Nor could they reasonable argue that there were not aware of these precedents. Indeed, the same lawyers raised the exact same arguments just three
years ago in Buntion v. Lumpkin. The district court was well within its discretion to consider whether counsel’s lack of candor warranted sanctions.
The second basis Johnson gave for recusal was the district court’s initial instruction that he file his habeas petition by May 1, 2020. A one-year
statute of limitations applies to federal post-conviction habeas petitions. 28
U.S.C. § 2244(d)(1). The state court denied Johnson’s state habeas petition
on September 11, 2019, so the statute required that he file his federal petition
by no later than September 11, 2020. The district court ultimately granted
Johnson’s motion to extend his deadline to file his petition.
Johnson understood the initial case-management order as violating his
alleged right to wait until September 11, 2020 to file his habeas petition, and
construed the court’s order as evidence of bias against him. We rejected the
argument that the district court’s order demonstrated bias or prejudice, explaining that the court’s order would not cause a reasonable person to “harbor doubts about the district court’s impartiality.” Trevino v. Johnson, 168
F.3d 173, 178 (5th Cir. 1999).
Johnson now petitions for rehearing en banc, arguing that the panel
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No. 22-70005
opinion stands for the proposition that a district court has power to shorten
the one-year statute of limitations. The opinion stands for no such thing. It
holds only that the district court’s case-management order is not a ground
for disqualification under 28 U.S.C. § 455(a). Especially probative for that
holding is the fact that the district court ultimately granted Johnson the extension he sought. Our conclusion that the district court was not required to
recuse says nothing about the hypothetical issue of whether a district court
would commit legal error if it did order a post-conviction habeas petitioner to
file his petition before the deadline provided by the statute of limitations.
Especially given that counsel are already testing the limits of their duties of good faith and candor, we would have expected them to show better
judgment in discerning whether to file a petition for rehearing en banc—especially one that badly misstates the opinion’s conclusion. A good-faith reading of the court’s opinion clearly shows that it does not hold what counsel
says it holds. Petitions for rehearing en banc are an “extraordinary procedure” that should be used only to bring the court’s attention to an issue of
“exceptional public importance” or one that “directly conflicts” with onpoint Supreme Court or prior Fifth Circuit precedent. 5th Cir. R. 35 I.O.P.
Given the deficiencies discussed above, Johnson’s petition does not rise to
that level. Counsel are strongly encouraged to confine future arguments to
the limits imposed by applicable ethical rules.
Treating the petition for rehearing en banc as a petition for panel rehearing (5th Cir. R. 35 I.O.P.), the petition for panel rehearing is DENIED.
Because no member of the panel or judge in regular active service requested
that the court be polled on rehearing en banc (Fed. R. App. P. 35 and 5th Cir.
R. 35), the petition for rehearing en banc is DENIED.
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