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USCA5 Denies Stay to Texas Murderer

The U.S. Court of Appeals for the Fifth Circuit has denied a stay of execution for Tai Chin Preyor.  Let's start with what he did:

Briefly, Preyor was convicted and sentenced to death in Texas in March 2005, for the 2004 capital murder of Jami Tackett during the course of committing or attempting to commit burglary. He stabbed her numerous times, severing her trachea, jugular vein, and carotid artery. He was arrested on the grounds of her apartment complex, covered in blood. The jury rejected his claim of self-defense, convicted him and sentenced him to death.
Here are the legal issues:

Tai Chin Preyor was convicted of capital murder and sentenced to death in 2005. He challenged his conviction and sentence on direct appeal, in state post-conviction proceedings, and a federal habeas proceeding. No challenges were successful. On July 17, 2017, ten days before his scheduled execution, he filed a motion under Federal Rule of Civil Procedure 60, seeking to reopen his federal habeas proceedings under Rule 60(d)(3) (fraud on the court) and/or Rule 60(b)(6) (extraordinary circumstances). He claimed that his former habeas counsel of record, Brandy Estelle, who had been retained to represent him by his mother, committed a fraud upon the court by acting largely as a puppet for Philip Jefferson, a now deceased California attorney who had been disbarred in 1990, and by concealing Jefferson's habeas involvement from the court. Preyor sought to have the district court restore him to the position he was in before Jefferson and Estelle filed the federal habeas petition on his behalf, so that he can now assert a new claim that his trial counsel rendered ineffective assistance by failing to investigate, discover, and present mitigating evidence of physical and sexual abuse and substance addiction.
On July 24, the district court held that Preyor's Rule 60 motion constituted a successive petition for habeas relief under 28 U.S.C. § 2244(b). Because Preyor had not obtained authorization from this Court to file a successive habeas petition, the district court held that it lacked jurisdiction to consider the motion. Alternatively, the district court held that Preyor had not shown a fraud on the Court that would justify relief under Rule 60(d)(3), nor had he demonstrated the timeliness and extraordinary circumstances necessary for relief under Rule 60(b)(6). The district court also denied a certificate of appealability (COA). Preyor appealed on July 24 and, on July 25, with a little more than 48 hours before his scheduled execution on July 27, he filed a motion for a COA.

We conclude that jurists of reason would not debate whether the district court correctly concluded that Preyor's Rule 60(b) motion is a successive habeas claim. Nor would reasonable jurists debate the district court's alternative holding that Preyor is not entitled to relief under Rule 60(d)(3) and Rule 60(b)(6). We therefore DENY a COA. We also DENY Preyor's motion for a stay of execution.
The most successful aspect of Congress's landmark 1996 reform of habeas corpus, initially, was the strong limitation on successive petitions.  Unfortunately, the ever-creative capital defense bar is now routinely using Federal Rule of Civil Procedure 60(b) as an end-run around that limitation, and the Supreme Court has let them get away with it.  Time to rethink that.  Congress or the Supreme Court (under the Rules Enabling Act) should create a special rule for habeas corpus, displacing the rule that was written with regular civil cases in mind.


"and the Supreme Court has let them get away with it."

Which shows why, as an institution, the Supreme Court has brought shame on itself.

Allowing stays of execution based on last-minute Rule 60(b) motions offend federalism--that would be bad enough, but often, when the Supreme Court does so, it blows off its own pronouncements about when stays should be granted--couple that with intellectually dishonest opinions (Maples and Buck), and we've lost something very important--the rule of law. Cf. Dickerson (Scalia, J., dissenting) (discussing the difference between Miranda which asserted a constitutional violation and the post-Miranda rulings). Sotto voce law isn't law, and that's what SCOTUS has been engaged in with respect to capital punishment. It undermines its own legitimacy.

Dear Kent:

I originally wrote to you in response to your commentary about the Willingham case. As you point out, that thread is now several months old. I thought it more likely that you would read my current comment if it were attached to a more timely article.
In any event, I appreciate your willingness to respond to my comment on (what turned out to be) an old thread. The tone of my comment was indeed unnecessarily sarcastic and acidic. You were right to point out that this tone is hardly helpful if the goal is to exchange ideas and opinions.

I apologize and am therefore appreciative of your willingness to respond in the face of my offputting tone.

To provide a context, I do have some familiarity with the Willingham case and, at the request of a friend, had just watched a recent Frontline episode on this subject. The Willingham case continues to cause me great distress. When I came across your blog asserting that "Willingham was guilty as sin," well, you know, I felt I had to respond – – even in the heat of the moment. As you know,
providing commentary, under the circumstances, is generally unwise.

The Willingham case is a legal matter, and this website concerns itself with legal affairs. I am a child psychiatrist, and, in turn, you are a lawyer-- far more conversant with legal issues. This is your area of expertise, not mine.
I can appreciate that you may regard some of my views as naïve and untutored. Still, I would find it interesting to dialogue with you about the Willingham case. Conceivably, you might find it interesting to appreciate how a child psychiatrist views such matters.

I imagine that you do not typically dialogue with perfect strangers who post comments at your website. If you think it unwise-- or just perfectly impractical-- to do so because of the time demands of your position at Crime and Consequences, or, conceivably, because you simply have more important things to do, I will (perhaps surprisingly) understand. Simply put, one cannot possibly be all things to all people.

Kindly let me know whether you have the time and/or interest to speak with me. Again, I appreciate the courtesy of your response to my untimely comment on the Willingham thread.

(Apologies in advance for any typos. The AutoCorrect seems primed to substitute legal terms and definitions when it perceives my communication to be muddled.)


Paul Rossman M.D.

Dr. Rossman:

Please check out my detailed comments of the evidence against
Willingham under "Adamakis" at the following link:

Scroll down to find them, alongside Bill Otis's.

J.R. Adamakis

Funny how the presence of accelerants is hardly mentioned by those who claim he was innocent. And pouring cologne on your kids floor? Oh yeah, I do that all the time. Doesn't everyone?


"Evidence of accelerants was found, but Willingham had an excuse for that, too. Willingham told investigators he poured cologne on the children’s floor
“because the babies liked the smell,” he blamed
a kerosene lamp for any accelerant in the hallway, and said
spilled charcoal-lighter fluid happened while he was
, Fogg recalled."

"Doug Fogg, a Corsicana firefighter for 31 years, was the first responder to arrive."

"[F]our empty bottles of charcoal lighter were found
just outside the front door."
~Corsica Daily Sun, 9/6/09, 9/7/09

Paul, I don't have time to get into a detailed factual discussion of the Willingham case right now.

Adamakis has provided some additional information on the case. I do not expect that it will change your mind (as such discussions rarely do) but perhaps it will demonstrate that reasonable people can have a different view of this case.

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