GONZALES v. CITY OF ALBUQUERQUE

CARL E. STEWART, Circuit Judge:

In April 2007, pursuant to 28 U.S.C. § 2244(b)(3), this court permitted petitioner-appellant Milton Wunzael Mathis to file a successive federal habeas application asserting a claim based upon Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), the Supreme Court case barring the execution of mentally retarded persons. The district court dismissed Mathis's successive federal habeas application on the grounds that: (1) Mathis failed to meet the requirements of 28 U.S.C. § 2244(b)(2); and (2) his petition was untimely and not entitled to equitable tolling. Because we find that Mathis's successive petition does not meet § 2244(b)(2)'s requirements, we AFFIRM.

I. BACKGROUND

In 1999, Mathis was convicted of capital murder and sentenced to death for the murders of Travis Brown and Daniel Hibbard. The Texas Court of Criminal Appeals affirmed Mathis's conviction and sentence on direct appeal (which ran concurrent to his state habeas application) in February 2002. Mathis v. State, 67 S.W.3d 918 (Tex.Crim.App. 2002). On April 3, 2002, it adopted the trial court's findings of fact and conclusions of law and denied Mathis's first state habeas application.

The facts of the crime are described in one of our earlier opinions in this case. In re Mathis, 483 F.3d 395, 396 (5th Cir. 2007).

Atkins was decided on June 20, 2002. On April 3, 2003, Mathis filed his first federal habeas application pursuant to the Antiterrorism and Effective Death Penalty Act ("AEDPA"), 28 U.S.C. § 2254. In his federal habeas application, Mathis noted that he intended to file a successive state application alleging an Atkins violation but did not include the Atkins claim in his federal petition because it was not exhausted in state court as required under AEDPA. The federal petition was denied on the merits on February 2, 2004.

While his federal petition was pending, Mathis filed his second state habeas application, raising his Atkins claim for the first time, on June 20, 2003. On March 3, 2004, Mathis's second state habeas application was dismissed without prejudice because he had not shown that the federal court had stayed its proceedings as required by Ex parte Soffar, 143 S.W.3d 804 (Tex.Crim.App. 2004).

Ex parte Soffar permits Texas courts to consider a subsequent state habeas application "if the federal court with jurisdiction over a parallel writ enters an order staying its proceeding to allow the habeas applicant to pursue his unexhausted claims in Texas state court." 143 S.W.3d at 804. Before Soffar, Texas courts routinely dismissed subsequent state habeas applications if a federal petition was pending simultaneously, even if the federal court stayed its proceedings. See Ex parte Powers, 487 S.W.2d 101 (Tex.Crim.App. 1972).

On February 17, 2004, Mathis submitted a "Motion for New Trial and for Abatement" in federal court, seeking reconsideration of his claims and asking the court to abate its decision pending completion of the proceedings for his second state habeas application. On March 9, 2004, the federal district court denied Mathis's motion. On March 19, 2004, Mathis moved for reconsideration of the March 9 order. The district court denied the motion on April 6, 2004, but, noting its desire to "preserve Mathis's ability to seek appellate review," construed his motion for reconsideration as a motion for an extension of time to file a notice of appeal. Mathis filed a notice of appeal in this court on April 8, 2004.

On March 23, 2004, Mathis also filed a motion for reconsideration in the Texas Court of Criminal Appeals, asking the court to reinstate his second state habeas application (which included his Atkins claim). The Texas Court of Criminal Appeals denied the motion on April 21, 2004.

In August 2004, Mathis sought a COA and filed a motion to stay the proceedings to allow him to return to state court to raise his Atkins claim. While the request for COA and the motion to stay were pending before this court, the state court entered an order setting Mathis's execution for April 20, 2005., Mathis filed in this court a motion to stay the execution. This court denied the request for COA, the motion to stay the proceedings, and the motion to stay the execution on March 11, 2005. Mathis v. Dretke, 124 Fed.Appx. 865 (5th Cir.) (unpublished), cert. denied, 545 U.S. 1131, 125 S.Ct. 2940, 162 L.Ed.2d 872 (2005).

Mathis then filed his third state application for habeas relief, again raising his Atkins claim, and moved for stay of execution on April 15, 2005. The stay was granted on April 19, 2005, and the case was remanded to the state trial court for consideration of the Atkins claim. The state trial court held an evidentiary hearing in September 2005, and in January 2006 it recommended that Mathis be denied habeas relief. The Texas Court of Criminal Appeals adopted the trial court's findings and conclusions and denied relief on September 20, 2006. Ex parte Mathis, No. WR-50772-03, 2006 WL 2706745 (Tex. Crim.App. Sept. 20, 2006).

On September 29, 2006, Mathis filed a motion in this court for authorization to file a successive habeas application pursuant to 28 U.S.C. § 2244(b)(3), which was granted on April 2, 2007. In re Mathis, 483 F.3d 395 (5th Cir. 2007). Mathis filed his second federal application for habeas relief on April 4, 2007. Respondent filed a motion to dismiss the petition as time-barred or, in the alternative, a motion for summary judgment on the grounds that Mathis's Atkins claim failed on the merits.

The applicable provision reads, in relevant part, "Before a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application." 28 U.S.C. § 2244(b)(3)(A).

On March 31, 2008, the district court dismissed Mathis's petition, holding that because he had not shown that his successive federal habeas application satisfied 28 U.S.C. § 2244(b)(2), the court had no jurisdiction to consider the application. Alternatively, the court held that Mathis had not complied with the AEDPA's one-year limitations period in filing his claim, and no basis for equitable tolling of the limitations period exists. The district court granted a COA. Mathis timely appealed.

II. SUCCESSIVE PETITIONS UNDER 28 U.S.C. § 2244(b)

Mathis first argues that the district court erred when it determined that his Atkins claim did not meet the requirements for successive petitions under 28 U.S.C. § 2244(b). The district court's dismissal of a second or successive § 2254 petition on the grounds that the motion fails to meet AEDPA's conditions is a legal conclusion we review de novo. See Butler v. Cain, 533 F.3d 314, 316 (5th Cir. 2008).

A AEDPA Requirements for Successive Petitions

AEDPA provides that a claim presented in a second or successive habeas corpus application under 28 U.S.C. § 2254 that was not presented in a prior application shall be dismissed unless:

(A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or

(B)(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and

(ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.

28 U.S.C. § 2244(b)(2)(A)-(B); Tyler v. Cain, 533 U.S. 656, 662-63, 121 S.Ct. 2478, 150 L.Ed.2d 632 (2001). Mathis bears the burden of demonstrating that his successive federal habeas application falls within one of the two exceptions and thus should not be dismissed. See 28 U.S.C. § 2244(b)(4); Moore v. Dretke, 369 F.3d 844, 846 n. 1 (5th Cir. 2004).

B. "Previously Unavailable" Rule

Generally, Mathis relies on § 2244(b)(2)(A) — i.e., that the Atkins claim raised in his successive federal petition relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable. There is no dispute that Atkins announced a new rule of constitutional law made retroactive to cases on collateral review, see Morris v. Dretke, 413 F.3d 484, 486-87 (5th Cir. 2005), or that Mathis's Atkins claim was raised for the first time in federal court in the instant successive habeas application. The issue before us is whether Mathis has demonstrated that his Atkins claim was "previously unavailable" at the time he filed his first federal habeas application. See 28 U.S.C. § 2244(b)(2); see also In re Salazar, 443 F.3d 430, 431-32 (5th Cir. 2006) (focusing on whether a claim "was available to [petitioner] when he filed his initial habeas application").

Before the district court, Mathis also asserted that because he is mentally retarded, he is no longer death eligible. The district court construed this claim as an argument pursuant to 28 U.S.C. § 2244(b)(2)(B)(ii), regarding facts underlying the claim. On appeal, he argues that his mental retardation should exempt him from AEDPA's strictures altogether or, at least, should toll the statute of limitations.

We have not previously considered this issue under the circumstances presented here. In cases before us where the applicant raises an Atkins claim for the first time in a successive federal habeas petition, the applicant has typically filed their federal petition before Atkins was decided, making the Atkins rule "previously unavailable" at the time of their first federal petition. See, e.g., In re Wilson, 442 F.3d 872, 876 (5th Cir. 2006); In re Brown, 457 F.3d 392, 396 (5th Cir. 2006). Here, it is undisputed that Mathis filed his first federal habeas petition in April 2003, after Atkins was decided in June 2002, yet the petition did not include an Atkins claim.

Respondent argues that, on these facts, the Atkins rule was not "previously unavailable" to Mathis at the time of his first federal habeas petition. At oral argument, counsel for Mathis asserted that no federal court adopts such a "formalistic" interpretation of "previously unavailable" as urged by Respondent. Two sister circuits have partially addressed this issue. See In re Williams, 364 F.3d 235, 239 (4th Cir.), cert. denied, 543 U.S. 999, 125 S.Ct. 618, 160 L.Ed.2d 457 (2004) (construing the term "previously" in §§ 2244(b)(2)(A) and 2244(b)(2)(B)(i), and holding that "constitutional rules that were established at the time of the applicant's last [pre-filing authorization] motion were not `previously unavailable'"); Bennett v. United States, 119 F.3d 470, 472 (7th Cir. 1997) ("You cannot file a successive habeas corpus or section 2255 case on the basis of a claim that is not newly available."). Neither case, however, addressed Atkins claims or the particular circumstances raised in this case. We therefore decline to adopt Respondent's argument.

Moreover, Mathis advances two arguments as to why his Atkins claim was previously unavailable. First, he argues that had he attempted to exhaust his Atkins claim in state court prior to filing his first federal habeas application, he risked forfeiting federal review of his previously exhausted claims because of the AEDPA statute of limitations. Compounding the problem, in his view, is the Texas two-forum rule, which operated to prevent him from exhausting the claim in state court before timely pursuing federal relief. Second, he argues, if he had pursued his Atkins claim in a successive state habeas petition, he also risked forfeiting federal review of his exhausted claims because, under the law in effect at the time, it was unclear whether the successive state habeas petition would have tolled AEDPA's statute of limitations as to his exhausted claims. We consider both arguments in turn.

The district court incorrectly stated Mathis's argument as follows: "Petitioner claims that he could not have filed his otherwise available Atkins claim in his first petition because he had not yet exhausted it."

1. Exhaustion, Statute of Limitations, and the Texas Abstention Doctrine

Mathis is correct that his Atkins claim — in an initial or a successive federal habeas petition — is subject to AEDPA's exhaustion and statute of limitations requirements. See In re Wilson, 442 F.3d at 877-78; Mathis, 483 F.3d at 399. Under the AEDPA exhaustion doctrine, an applicant for federal habeas relief must first present his claims in state court before raising them in a federal habeas application. 28 U.S.C. § 2254(b)(1)(A). AEDPA also provides for a one-year limitations period to run from the latest of:

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;

(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;

(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or

(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

Id. § 2244(d)(1).

Mathis was also subject to Texas's procedural rules regarding co-pending state and federal habeas applications. Prior to February 11, 2004, the Texas Court of Criminal Appeals dismissed any state habeas application without prejudice if the applicant had a parallel application arising from the same conviction pending in federal court, even if the federal court stayed its own proceeding. The doctrine was referred to as the abstention doctrine or "two-forum" rule. See, e.g., Ex parte Powers, 487 S.W.2d 101 (Tex.Crim.App. 1972).

In this case, AEDPA's one-year limitations period for Mathis's first federal habeas petition began to run when his first state habeas application was denied on April 3, 2002. Mathis therefore had until April 3, 2003 to file a federal petition raising any claims exhausted in the state habeas court. When the Supreme Court decided Atkins on June 20, 2002, Mathis had over nine months left in his AEDPA limitations period to file a federal habeas petition for his exhausted claims, but a full year remaining — until June 20, 2003 — to file a federal habeas petition for his Atkins claim. See 28 U.S.C. § 2244(d)(1)(C); Rivera v. Quarterman, 505 F.3d 349, 352 (5th Cir. 2007).

Further, the Texas abstention doctrine was in effect when Mathis filed his first federal petition in April 2003 and his second state application (raising his Atkins claim for the first time) in June 2003. Under the doctrine, the second state application was subject to dismissal without reaching the merits of — and therefore exhausting — Mathis's Atkins claim because the parallel federal habeas litigation was pending.

The district court listed Mathis's options in light of these procedural requirements:

First, he could have filed an initial federal petition that included his exhausted claims and an Atkins challenge that would surely face problems because of section 2254(b)'s exhaustion requirements. Second, he could have sought relief in state court on his Atkins claim while litigating his exhausted claims in federal court, hoping to raise an Atkins issue in a successive federal petition. Finally, he could have exhausted his Atkins claim and then filed one comprehensive federal petition.

Mathis selected the second option.

Mathis's decision to file his federal habeas petition instead of exhausting his Atkins claim in state court is the impetus for his present conundrum. When Atkins was decided in June 2002, Mathis's only federal filing was his motion for appointment of counsel. Mathis's argument assumes that, for the purposes of the Texas two-forum rule, federal jurisdiction attached when he filed his first motion for appointment of counsel in April 2002, after his first state habeas petition was denied but before Atkins was decided. According to this argument, when the Atkins rule became available in June 2002, Mathis would not have been able to exhaust the claim in a successive state petition because, under the Texas two-forum rule, he already had a federal petition pending.

But Texas courts did not apply the two-forum rule to a state habeas petition unless the applicant filed the federal petition before seeking state relief. See Soffar, 143 S.W.3d at 807 (describing the history of the abstention doctrine, and stating, "[T]his Court has dismissed state habeas corpus writ applications when the applicant also has a writ pending in the federal courts that relates to the same conviction or same `matter.'") (emphasis added). In June 2002, Mathis had not yet filed his federal petition; therefore he did not have "a writ pending in the federal courts." Mathis does not cite any authority to support the proposition that Texas courts considered a federal petition "pending" when the motion for appointment of counsel is filed. In addition, Mathis's counsel, at oral argument, conceded that there is no Texas case in which the Texas Court of Criminal Appeals has dismissed a successive petition under the two-forum rule if the state petition is brought before a federal petition is filed. If Mathis had filed his successive state habeas application to exhaust his Atkins claim without filing a federal petition, he would not have been seeking relief in two forums simultaneously. Accordingly, the two-forum rule would not have prevented him from exhausting his Atkins claim in state court.

We note the Supreme Court's pre-AEDPA decision in McFarland v. Scott, 512 U.S. 849, 114 S.Ct. 2568, 129 L.Ed.2d 666 (1994), in which the Court held that a capital defendant need not file a formal habeas corpus petition in order to establish a district court's jurisdiction to enter a stay of execution. In that case, however, the Court was interpreting 21 U.S.C. § 848(q)(4)(B), which provides for qualified legal representation in federal habeas proceedings, and held that the right to counsel adheres prior to filing of a formal habeas petition. 512 U.S. at 854-57, 114 S.Ct. 2568. In contrast, here we examine a very different question under a different legal framework: when, for the purposes of the Texas abstention doctrine, Texas courts deemed a federal petition "pending."

In addition, the two-forum rule was modified on February 11, 2004, when the Texas Court of Criminal Appeals decided to permit consideration of a subsequent state writ "if the federal court having jurisdiction over a parallel writ enters an order staying all of its proceeding for the applicant to return to the appropriate Texas court to exhaust his state remedies." Soffar, 143 S.W.3d at 807.

We recognize that Mathis faced conflicting choices when deciding whether and how to pursue habeas relief. As the district court correctly noted, "Had [Mathis] filed his Atkins claim in his initial [federal] petition, the rule in Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982), mandated that it was subject to dismissal as a `mixed petition,' that is, one raising both exhausted and unexhausted claims." Yet we have also said that Lundy "would have little meaning if it could be avoided by withholding unexhausted claims." Crone v. Cockrell, 324 F.3d 833, 838 (5th Cir. 2003). If Mathis had included his unexhausted Atkins claim in his first federal petition, he — and petitioners in like circumstances — had options available: "They may withdraw a mixed petition [i.e., one containing exhausted and unexhausted claims], exhaust the remaining claims, and return to district court with a fully exhausted petition. . . . [I]n such circumstances the later filed petition would not be `second or successive.'" Burton v. Stewart, 549 U.S. 147, 154, 127 S.Ct. 793, 166 L.Ed.2d 628 (2007) (citing Slack v. McDaniel, 529 U.S. 473, 485-86, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000)). In that case, Mathis could have withdrawn his first federal petition and would not have been subject to AEDPA's successive petition requirements when he returned to federal court after exhausting the Atkins claim.

Mathis's predicament was further aggravated because he filed his federal petition on the last day of the AEDPA limitations period, failed to attempt to exhaust his Atkins claim before doing so, and failed to include the claim even though it relied on a constitutional rule in effect for at least nine months before he filed the petition.

We note that Congress determined that a one-year limitations period was reasonable for federal habeas petitioners. See 141 CONG. REC. S7803-05, S7877 (1995) (approving one-year limitations period to curb abuse of the writ of habeas corpus). In this case, Mathis's decision to file on the last day of the AEDPA limitations period, combined with his failure to attempt exhaustion and his failure to include the Atkins claim in the federal petition, contributed to his present procedural quagmire.

Accordingly, we hold that Mathis's habeas litigation strategy choice to withhold an Atkins claim from the initial federal petition, while simultaneously acting so late as to preclude exploration of other relief, did not make the Atkins rule "previously unavailable" to him within the meaning of § 2244(b)(2)(A).

2. Successive State Habeas Petitions and Statutory Tolling

In his second argument, Mathis urges that if he had pursued his Atkins claim in a successive state habeas petition before filing his first federal habeas petition, he also risked forfeiting federal review of his exhausted claims because the law was not clear at the time of his first federal habeas petition as to whether the AEDPA statute of limitations would have been tolled on his exhausted claims.

Under AEDPA's timeliness requirements, "[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection." 28 U.S.C. § 2244(d)(2). The tolling provision does not state expressly whether the limitations period is tolled as to exhausted claims while a petitioner seeks state habeas relief as to new claims. Rather, "the express language of section § 2244(d)(2) makes clear that tolling is appropriate, without regard to the nature of the claims in the state pleading, as long as the state application challenged `the pertinent judgment.'" R. HERTZ J. LIEBMAN, 1 FEDERAL HABEAS CORPUS PRACTICE AND PROCEDURE § 5.2b n. 56 (5th ed. 2005).

Mathis urges this court to look to the "unsettled" law in effect in 2002 — when Atkins was decided — to determine whether his successive state habeas petition would have been deemed "properly filed" within the meaning of § 2244(d)(2) such that the AEDPA statute of limitations would be tolled. But the cases governing our circuit at the time are not helpful to his argument. At the time, the law of our circuit included Villegas v. Johnson, 184 F.3d 467 (5th Cir. 1999), where we held that a successive state habeas application was "properly filed" under § 2244(d)(2), even though it had been dismissed as an abuse of the writ under Texas law, and therefore tolled the AEDPA limitations period. After Villegas's successive state application was dismissed as an abuse of the writ, he filed a federal habeas application; the state moved to dismiss as time-barred. 184: F.3d at 468. The district court rejected the petitioner's tolling argument, and held that the petition was not "properly filed" within the meaning of § 2244(d)(2). Id. We held that "a `properly filed application' for § 2244(d)(2) purposes is one that conforms with a state's applicable procedural filing requirements." Id. at 470. We defined "procedural filing requirements" as "prerequisites that must be satisfied before a state court will allow a petition to be filed and accorded some level of judicial review," such as rules governing notice and time, and also "a requirement that the petitioner obtain judicial authorization for the filing." Id. at 470 n. 2. We also noted that Texas sought to "discourage successive petitions by limiting the availability of relief' — for example, by permitting the filing of a successive petition but then requiring judicial consideration of the application to determine whether sufficient facts were alleged for the court to address the merits of the claims. Id. at 472 n. 3.

During the relevant time period, Article 11.07 of the Texas Code of Criminal Procedure precluded a grant of relief based on a successive petition unless the petitioner demonstrated facts sufficient to fit within a statutory exception allowing relief. TEX. CODE CRIM. PROC art. 11.07 § 4(a) (West 1999).

Moreover, soon after Villegas, the Supreme Court held that, for the purposes of § 2244(d)(2), "[a]n application is `properly filed' when its delivery and acceptance are in compliance with the applicable laws and rules governing filings." Artuz v. Bennett, 531 U.S. 4, 8, 121 S.Ct. 361, 148 L.Ed.2d 213 (2000) (citing Villegas, 184 F.3d at 469-70, inter alia). The Artuz Court distinguished conditions to pre-filing (for example, time limits or form of the document) from conditions to obtaining relief: "[T]he question whether an application has been `properly filed' is quite separate from the question whether the claims contained in the application are meritorious and free of procedural bar." Id. In other words, as a later Court decision noted, "state procedural bars `prescribing a rule of decision for a court' confronted with certain claims previously adjudicated or not properly presented are not `filing' conditions." Pace v. DiGuglielmo, 544 U.S. 408, 417, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005) (citing Artuz, 531 U.S. at 10-11, 121 S.Ct. 361).

Mathis argues that Pace abrogated Villegas, citing Wardlaw v. Cain, 541 F.3d 275 (5th Cir. 2008). Although we held in Wardlaw that Pace had abrogated Smith v. Ward, 209 F.3d 383 (5th Cir. 2000), Pace did not affect Villegas. See Wardlaw, 541 F.3d at 279. The cases of Ward, Pace, and Wardlaw involved petitioners whose applications had been dismissed as untimely, and "time limits, no matter their form, are `filing' conditions." Pace, 544 U.S. at 417, 125 S.Ct. 1807. But Pace only affirmed the "obvious distinction between time limits, which go to the very initiation of a petition . . . and the type of `rule of decision' procedural bars at issue in Artuz, which go to the ability to obtain relief." Id. In Villegas, 184 F.3d at 473, we held that an application dismissed as an abuse of the writ — a classic "procedural bar" — was nevertheless "properly filed" within the meaning of § 2244(d)(2). That decision is wholly consistent with Pace. Because Article 11.071 § 5 is substantially identical to Article 11.07 § 4, Villegas controls here.

In this case, Mathis's successive state habeas petition would have been "properly filed" under Artuz and Villegas even if it had been dismissed as an abuse of the writ under Texas's capital habeas statute. Like the non-capital habeas statute in Villegas, the Texas capital habeas statute provided that a court could not consider a subsequent state habeas application unless the application contained specific facts establishing that the claims presented could not have been presented in a previous application because the legal or factual basis was not available at the time of the previous application. TEX. CODE CRIM. PROC. art. 11.071 § 5(a) (West 1999). If the Texas Court of Criminal Appeals had determined that the requirements of section 5(a) were not met, the court would have dismissed the application as an abuse of the writ. Id. § 5(c). Under Artuz, these provisions are conditions to obtaining relief, not filing conditions. 531 U.S. at 10-11, 121 S.Ct. 361. Therefore, Mathis's successive state petition, even if dismissed as an abuse of the writ, would be deemed "properly filed" such that the AEDPA statute of limitations would have tolled while it was pending in state court. See id.

Mathis appears to argue that there is a statutory time limitation on all habeas applications (initial or successive) under Article 11.071 such that his petition would have not been deemed "properly filed" for AEDPA tolling purposes. The limits in section 4 of the Texas capital habeas statute do not state whether they are applicable to initial or subsequent habeas applications. See TEX. CODE CRIM. PROC. art. 11.071 § 4(a) (West 1999) ("An application for a writ of habeas corpus . . . must be filed in the convicting court not later than the 180th day" after appointment of counsel or "not later than the 45th day" after the state's original brief is filed on direct appeal, "whichever date is later."). However, at least one Texas court has held that the time limitations of section 4 are applicable solely to initial petitions. See Ex parte Reedy, 282 S.W.3d 492, 495 n. 6 (Tex.Crim.App. 2009) (citing § 4(e) of article 11.071 for the proposition that "failure to timely file initial post-conviction application for writ of habeas corpus constitutes a waiver of all grounds for relief that were available to the applicant before the last date on which an application could be timely filed") (emphasis added, internal quotation marks omitted). The latter interpretation is reasonable: the initial petition is filed in the convicting court and the time limits are tied to proceedings in the convicting court. In contrast, capital successive state petitions are returnable to the Texas Court of Criminal Appeals, who decides in the first instance whether the petition meets threshold requirements before it can be considered on the merits by the convicting court. See TEX. CODE CRIM. PROC art. 11.071 § 5. Mathis's case clearly plays this out — his third state habeas petition was filed in April 2005, nearly six years after his conviction became final, yet was not dismissed as untimely. Moreover, the Texas Court of Criminal Appeals held that the petition met the requirements of section 5 because the Atkins claim presented therein was not previously available to Mathis when he filed his first state petition.

The law of this circuit was sufficiently clear as to whether a successive state petition would have tolled the AEDPA statute of limitations. Mathis offers no cogent argument to excuse his failure to include his Atkins claim in his first federal petition when that claim was available to him for nine months after Atkins was decided. Because the claim was available, we hold that he has not made the requisite showing under § 2244(b)(2)(A).

III. TIMELINESS

The district court also held that, assuming Mathis's successive federal petition complied with § 2244(b)(2), the petition did not comply with § 2244(d)(1), AEDPA's one-year limitations period. We review de novo an order dismissing a habeas petition as time-barred under AEDPA. Starns v. Andrews, 524 F.3d 612, 617 (5th Cir. 2008).

A AEDPA Statute of Limitations

First, we examine whether Mathis's successive federal habeas application raising an Atkins claim was timely under AEDPA. AEDPA's one-year limitations period for Mathis's federal habeas petition raising an Atkins claim began to run on June 20, 2002, when Atkins was decided. See § 2244(d)(1)(C); Rivera v. Quarterman, 505 F.3d 349, 352 (5th Cir. 2007). Mathis therefore had until June 20, 2003 to file a federal habeas petition for his unexhausted Atkins claim.

As we noted, Mathis filed his first federal petition on April 3, 2003, without raising his Atkins claim. The federal habeas petition did not toll the AEDPA statute of limitations. See Duncan v. Walker, 533 U.S. 167, 181-82, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001).

Mathis's successive state petition raising his Atkins claim, however, tolled the one-year statute of limitations. § 2244(d)(2). Therefore, the limitations period tolled from June 20, 2003 until April 22, 2004, the day after the Texas Court of Criminal Appeals denied Mathis's motion for reconsideration of its denial of his second state petition. See Windland v. Quarterman, 578 F.3d 314, 317 (5th Cir. 2009) ("Applying the plain language of the statute, we hold that a state petition for habeas relief is `pending' for AEDPA tolling purposes on the day it is filed through (and including) the day it is resolved.").

But Mathis filed the state petition on June 20, 2003, the last day of the AEDPA limitations period for his Atkins claim. He thus had only one day left in his AEDPA limitations period, making his successive federal petition raising an Atkins claim due on April 23, 2004. Instead, Mathis's successive federal petition currently before us was filed well past the deadline. Accordingly, the successive federal petition is time-barred unless Mathis can establish that he is entitled to equitable tolling.

B. Equitable Tolling

Mathis argues that, even if his successive petition is untimely, the district court erred when it denied equitable tolling to his Atkins claim, because (1) it failed to consider his dilemma created by the Texas two-forum rule and (2) he should be entitled to equitable tolling based upon his mental retardation. The district court's decision regarding equitable tolling of AEDPA's statute of limitations is reviewed for abuse of discretion. Stone v. Thaler, 614 F.3d 136, 2010 WL 3034809, at *1 (5th Cir. 2010). Nonetheless, "[w]e must be cautious not to apply the statute of limitations too harshly." Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir. 1999).

Mathis argued to the district court that he was unable to pursue his Atkins claim in state court because Texas did not appoint him an attorney immediately after Atkins was decided. He does not raise this argument on appeal.

But see Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir. 1999) (noting that de novo review applies where district court denies equitable tolling as a matter of law).

Recently, the Supreme Court confirmed the holding of this and other circuits that AEDPA's one-year statute of limitations is not jurisdictional and may be equitably tolled. Holland v. Florida, ___ U.S. ___, 130 S.Ct. 2549, 2561, 177 L.Ed.2d 130 (2010). A habeas petitioner is entitled to equitable tolling only if he shows "`(1) that he ha[d] been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way" and prevented timely filing." Id. at 2562, 130 S.Ct. 2549 (quoting Pace, 544 U.S. at 418, 125 S.Ct. 1807). "Courts must consider the individual facts and circumstances of each case in determining whether equitable tolling is appropriate." Alexander v. Cockrell, 294 F.3d 626, 629 (5th Cir. 2002).

1. Diligence

We have stated that "`[e]quity is not intended for those who sleep on their rights.'" In re Wilson, 442 F.3d at 875 (quoting Fisher, 174 F.3d at 715). The diligence required for equitable tolling purposes, however, is "`reasonable diligence,' not `maximum feasible diligence.'" Holland, 130 S.Ct. at 2565 (quoting Lonchar v. Thomas, 517 U.S. 314, 326, 116 S.Ct. 1293, 134 L.Ed.2d 440 (1996) and Starns, 524 F.3d at 618).

Based on our review of the record, Mathis exhibited a pattern of diligently pursuing his rights in state and federal court, despite procedural difficulties. Mathis filed his first federal habeas petition in an attempt to pursue relief on his exhausted claims in April 2003. In June 2003, his appointed federal counsel filed the second state habeas application asserting Atkins, even though it was ultimately futile because of the Texas two-forum rule. When the two-forum rule was modified in Soffar, Mathis immediately acted to pre-serve his state Atkins claim by requesting a stay and abeyance from the district court. Mathis not only conCC employees make more money than the 911 employees, and it is enough of a difference in pay that could influence employees to leave a classified union-represented position to go to the 311-CCC for higher pay.See Tr. at 27:14-28:7 (Court, Bergmann). Mr. Livingston also conceded that 311-CCC employees are paid more than other City of Albuquerque call-center employees. See Tr. at 22:1-3 ("COURT: So there's this gap in pay. Is that not true? MR. LIVINGSTON: Well, it is true that they are paid better.").

Mr. Bergmann contended that the burden is on the Plaintiffs to show that there is not a pecuniary conflict between the current 311-CCC employees and the terminated 311-CCC employees; it is not the Defendants' burden to prove the conflict exists. See Tr. at 29:7-11 (Bergmann). He argued that the conflict is apparent — the 311-CCC employees make more money because they are unclassified employees. See Tr. at 29:9-11 (Bergmann). He conceded, however, that there is a common issue of law among the current and former employees — whether they should be considered classified employees. See Tr. at 31:16-21 (Court, Bergmann). He argued that the conflict of interest destroys the utility of the class action for that common question, and terminated employees should not be permitted to represent the current employees because their interests are divergent. See Tr. at 31:21 (Bergmann); id. at 34:11-13 (Bergmann). Mr. Bergmann represented that the Defendants do not oppose the Court granting leave to the Plaintiffs to join additional plaintiffs. See Tr. at 37:11-13 (Bergmann).

LEGAL REQUIREMENTS FOR CLASS ACTION CERTIFICATION

Under rule 23, the district court must determine "at an early practicable time," Fed.R.Civ.P. 23(c)(1)(A), whether a suit or a particular claim within a suit satisfies the prerequisites of numerosity, commonality, typicality, and adequacy of representation, see Fed.R.Civ.P. 23(a), and falls within one of the categories of actions maintainable as class actions, see Fed.R.Civ.P. 23(b). A party seeking certification for a lawsuit to proceed as a class action must satisfy rule 23(a)'s four requirements — numerosity, commonality, typicality, and adequacy — as well as the requirements of at least one of the three categories described in rule 23(b). See Shook v. El Paso County, 386 F.3d at 368. The party seeking to certify a class bears the burden of proving that all the requirements of rule 23 are met. See Fincher v. Prudential Prop. Cas. Ins. Co., No. 08-1109, 2010 U.S. App. LEXIS 8134, at *36 (10th Cir. Apr. 20, 2010) (citing Shook v. El Paso County, 386 F.3d 963, 368 (10th Cir. 2004)). Although the party seeking to certify a class bears the burden of proving that all of rule 23's requirements are met, the district court must engage in its own "rigorous analysis" whether "the prerequisites of Rule 23(a) have been satisfied."Gen. Tel. Co. of the S.W. v. Falcon, 457 U.S. 147, 161 (1982). In doing so, the court must accept the substantive allegations of the complaint as true, although it "need not blindly rely on conclusory allegations which parrot Rule 23," and "may consider the legal and factual issues presented by plaintiff's complaints." J.B. v. Valdez, 186 F.3d 1280, 1290 n. 7 (10th Cir. 1999) (quoting 2 H. Newberg A. Conte, Newberg on Class Actions § 7.26 (3d ed. 1992)).

1. The Requirements of Rule 23(a) .

The first inquiry by a court attempting to determine the proprietary of certifying a class action is whether the plaintiff can show the existence of rule 23(a)'s four threshold requirements. See Adamson v. Bowen, 855 F.2d 668, 675 (10th Cir. 1988). These requirements are that: (i) the class is so numerous that joinder of all members is impracticable; (ii) there are questions of law or fact common to the class; (iii) the claims or defenses of the representatives are typical of the class' claims or defenses; and (iv) the representative parties will fairly and adequately protect the class' interests. See Fed.R.Civ.P. 23(a). Although "the class determination generally involves considerations that are enmeshed in the factual and legal issues comprising the plaintiff's cause of action," the court's responsibility is to "carefully apply the requirements of Rule 23(a)." Gen. Tel. Co. of the S.W. v. Falcon, 457 U.S. 147, 160 (1982) (citations and quotations omitted).

a. Numerosity.

Rule 23(a)(1) asks whether "the class is so numerous that joinder of all members is impracticable." Fed.R.Civ.P. 23(a)(1). Some courts have held that numerosity may be presumed at a certain number; the Tenth Circuit, however, "has never adopted such a presumption." Trevizo v. Adams, 455 F.3d 1155, 1162 (10th Cir. 2006). The Tenth Circuit has stated that there is "no set formula" to determine whether the numerosity requirement is met; instead it is a fact-specific inquiry best left to the district court's discretion. Rex v. Owens, 585 F.2d 432, 436 (10th Cir. 1978). See Horn v. Associated Wholesale Grocers, Inc., 555 F.2d 270, 275 (10th Cir. 1977) ("Impracticability is dependent not on any arbitrary limit but upon the circumstances surrounding the case."). "Indeed, because it is such a fact-specific inquiry, we grant wide latitude to the district court in making this determination." Trevizo v. Adams, 455 F.3d at 1162. InJohnson v. Gross, 125 F.R.D. 169 (W.D. Okla. 1989), the district court found that the plaintiffs' proposed class of twenty-eight individuals did not satisfy rule 23(a)(1), stating:

Plaintiffs have made no showing that joinder of these 28 individuals, or the personal representatives of those deceased, would be impracticable. Indeed, more than that number of defendants have been joined in this very action. Potential classes of much larger numbers have been denied class certification for failure to satisfy Rule 23(a)(1). See, e.g., In re: Wheat Farmers Antitrust Class Action Litigation, No. 129 (J.P.M.D.L. June 25, 1979), aff'd. sub nom. Zinser v. Continental Grain Co., 660 F.2d 754 (10th Cir. 1981) (approximately 366 class members located in three states); Bennett v. United States, 266 F. Supp. 627, 629 (W.D. Okla. 1965) (potential class of "all residents and property owners in metropolitan Oklahoma City" held to be "not so numerous as to require a class action"). The Court finds that it would not be impracticable to join all potential class members as plaintiffs in this action, and therefore the requirement of Rule 23(a)(1) is not satisfied.

Johnson v. Gross, 125 F.R.D. at 171. The Tenth Circuit affirmed the district court's holding that a class of twenty-eight members was too small to meet rule 23(a)(1)'s numerosity requirement. See Johnson v. Thompson, 971 F.2d 1487, 1498 (10th Cir. 1992) ("Given our deferential standard of review, we cannot say that the court's decision was in error."). In Trevizo v. Adams, the Tenth Circuit affirmed the district court's holding that, "although the number of putative class members — eighty-four — was not insignificant, it was not such an overwhelmingly large number as to be prohibitive of joinder." 455 F.3d at 1162.

b. Commonality.

Rule 23(a)(2) asks whether there are "questions of law or fact common to the class." Fed.R.Civ.P. 23(a)(2). "A finding of commonality requires only a single question of law or fact common to the entire class." DG v. Devaughn, 594 F.3d 1188, 1194 (10th Cir. 2010). The Tenth Circuit has explained: "Mere allegations of systemic violations of the law, however, will not automatically satisfy Rule 23(a)'s commonality requirement; a discrete legal or factual question common to the class must exist." DG v. Devaughn, 594 F.3d at 1194 (citing J.B. v. Valdez, 186 F.3d 1280, 1288 (10th Cir. 1999).

"[E]very member of the class need not be in a situation identical to that of the named plaintiff" to meet rule 23(a)(2)'s commonality requirements. Milonas v. Williams, 691 F.2d 931, 938 (10th Cir. 1982) (citing Rich v. Martin Marietta Corp., 522 F.2d 333, 340 (10th Cir. 1975)). "Factual differences between class members' claims do not defeat certification where common questions of law exist." DG v. Devaughn, 594 F.3d at 1194 (citingPenn v. San Juan Hospital, Inc., 528 F.2d 1181, 1189 (10th Cir. 1975)). In General Telephone Co. of the Southwest v. Falcon, 457 U.S. 147 (1982), the Supreme Court held that a Mexican-American employee who was asserting a failure-to-promote claim could not represent a class of Mexican-American applicants who had failure-to-hire claims because the plaintiff did not satisfy rule 23(a)(2)'s commonality requirement. See 457 U.S. at 158 ("Respondent's complaint provided an insufficient basis for concluding that the adjudication of his claim of discrimination in promotion would require the decision of any common question concerning the failure of petitioner to hire more Mexican-Americans.").

"It is axiomatic that a plaintiff cannot maintain a class action when his interests are antagonistic to, or in conflict with, the interests of the persons he would seek to represent."Albertson's, Inc. v. Amalgamated Sugar Co., 503 F.2d 459, 463 (10th Cir. 1974). One district court had held that commonality will not be found when "the alleged common issues can only be reached by making factual determinations that will be different for each class member." Allen v. Holiday Universal, 249 F.R.D. 166, 176 (E.D. Pa. 2008).

c. Typicality.

The Supreme Court has noted that "[t]he commonality and typicality requirements of Rule 23(a) tend to merge." Gen. Tele. Co. of the Southwest v. Falcon, 457 U.S. at 157 n. 13. Rule 23(a)(3) requires the claims of named plaintiffs to be typical of the claims of the class they seek to represent. See DG v. Devaughn, 594 F.3d 1188, 1198 (10th Cir. 2010); Fed.R.Civ.P. 23(a)(3). The interests and claims of named Plaintiffs and proposed class members need not be identical to satisfy typicality. See Anderson v. City of Albuquerque, 690 F.2d 796, 800 (10th Cir. 1982). "Provided the claims of Named Plaintiffs and class members are based on the same legal or remedial theory, differing fact situations of the class members do not defeat typicality." DG v. Devaughn, 594 F.3d at 1198 (citing Adamson v. Bowen, 855 F.2d 668, 676 (10th Cir. 1988)). "[L]ike commonality, typicality exists where . . . all class members are at risk of being subjected to the same harmful practices, regardless of any class member's individual circumstances." DG v. Devaughn, 594 F.3d at 1199. See Milonas v. Williams, 691 F.2d at 938 (finding commonality and typicality where all members of class were in danger of being subjected to certain disciplinary practices regardless of their individual differences).

In Delsing v. Starbucks Coffee Corp., No. 08-1154, 2009 U.S. Dist. LEXIS 90962 (D. Minn. Sept. 30, 2009), the Honorable Patrick J. Schiltz, United States District Judge for the District of Minnesota, found that the proposed class of Starbucks employees should not be certified because the interests of the named plaintiffs — former Starbucks employees — were opposed to the interests of many current Starbucks employees who were included in the proposed class, and therefore the claims of the class representatives did not typify the claims of other class members. See 2009 U.S. Dist. LEXIS 90962, at *8 (stating that the claims of class representatives "cannot typify claims of other class members if the class representatives and class members have conflicting interests"). Judge Schiltz stated:

No matter how the issue is characterized, the Court agrees that class certification is inappropriate in this case because the interests of plaintiffs are directly opposed to the interests of at least a substantial portion of the proposed class. To assess when such intra-class antagonism renders a proposed class representative's claims atypical or otherwise renders the proposed class representative inadequate, courts must look carefully at each case's facts. Because the inquiry is so fact-specific, it is hard to generalize about how much intra-class conflict is too much conflict for class-certification purposes.

The conflict in this case, however, is palpable. Under the challenged tip-sharing procedure, some employees come out ahead, and others come out behind. Indeed, the essential purpose and the inevitable function of Starbucks's tip-sharing policy is to redistribute wealth: Employees who work shifts when tips are plentiful — because the shift is particularly busy, or because the workers are particularly skilled, or because the customers are particularly generous — end up subsidizing employees who work shifts during which tips are scarce.

2009 U.S. Dist. LEXIS 90962, at **8-9.

d. Adequacy.

To protect the due-process interests of unnamed class members — who are bound by any judgment in the action — rule 23(a)(4) requires that the named representative provide fair and adequate protection for the class' interests. See Matsushita Elec. Indus. Co. v. Epstein, 516 U.S. 367, 379 n. 5 (1996); Lile v. Simmons, 143 F. Supp. 2d 1267, 1277 (D. Kan. 2001) ("Due process requires that the Court `stringently' apply the competent representation requirement because class members are bound by the judgment (unless they opt out), even though they may not actually be aware of the proceedings."). The Tenth Circuit has identified two questions relevant to the adequacy of representation inquiry: (i) whether the named plaintiffs and their counsel have any conflicts with other class members; and (ii) whether the named plaintiffs and their counsel will vigorously prosecute the action on behalf of the class. See Rutter Wilbanks Corp. v. Shell Oil Co., 314 F.3d 1180, 1187-88 (10th Cir. 2002). In considering this second question, the experience and competence of the attorney representing the class may inform the court's analysis. See Lopez v. City of Santa Fe, 206 F.R.D. 285, 289-90 (D.N.M. 2002) (Vazquez, J.).

The Supreme Court "has repeatedly held [that] a class representative must be part of the class and `possess the same interest and suffer the same injury' as the class members." E. Tex. Motor Freight Sys. Inc. v. Rodriguez, 431 U.S. 395, 403 (1977) (quoting Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 216 (1974)). Courts have found that intraclass conflicts "may negate adequacy under Rule 23(a)(4)." Langbecker v. Elec. Data Sys. Corp., 476 F.3d 299, 315 n. 28 (5th Cir. 2007) (holding that the district court erred in certifying a class without evaluating intraclass conflicts). See Pickett v. Iowa Beef Processors, 209 F.3d 1276, 1280 (11th Cir. 2000) (finding that representation was inadequate where the class included those "who claim harm from the very acts from which other class members benefitted"); Broussard v. Meineke Discount Muffler Shops, Inc., 155 F.3d 331, 344 (4th Cir. 1998) (holding that the current franchisees who had an interest in the continued viability of the franchiser had an inherent conflict with former franchisees whose only interest was in the maximization of damages); Alston v. Va. High Sch. League, Inc., 184 F.R.D. 574, 579 (W.D. Va. 1999) (holding that a class of all high school female athletes could not be certified — even if the alleged conduct of the defendant school system was discriminatory — when some female athletes did not share the same goals or interests as the named female plaintiffs because those unnamed female athletes were satisfied with and/or benefitted from the alleged discriminatory treatment).

On the other hand, "only a conflict that goes to the very subject matter of the litigation will defeat a party's claim of representative status. Beyond that straightforward proposition, defining the level of antagonism or conflict that should preclude class certification is a more difficult proposition." 7A C. Wright, A. Miller M. Kane, Fed. Prac. Proc. § 1768 at 389-93 (3d ed. 2005). "Though a plaintiff cannot be an adequate representative if he or she has a conflict of interest with class members, not every potential disagreement between a class representative and the class members will stand in the way of a class suit." 1 A. Conte H. Newberg, Newberg on Class Actions § 3:26 at 433-34.

In Slader v. Pearle Vision, Inc., No. 00-2797, 2000 U.S. Dist. LEXIS 16453 (S.D.N.Y. Nov. 14, 2000), the Honorable Jed S. Rakoff, United States District Judge for the Southern District of New York, held that an employment-discrimination class consisting of current and former employees could not be certified because "the interests of . . . two former employees are, if anything, quite likely in conflict with the interests of current employees, for a former employee's primary interest necessarily centers on recovering back pay, while a current employee may well be far more interested in obtaining injunctive relief." 2000 U.S. Dist. LEXIS 16453, at *2. Judge Rakoff reasoned: "To allow former employees to represent current employees in such situations comes close to denying the latter due process." 2000 U.S. Dist. LEXIS 16453, at *2.

2. The Three Categories of Rule 23(b) Class Actions Suits .

Once the court finds that the threshold requirements have been met, "it must then examine whether the class falls within at least one of three categories of suits set forth in Rule 23(b)."Adamson v. Bowen, 855 F.2d at 675. See DG v. Devaughn, 594 F.3d at 1199 ("In addition to satisfying Rule 23(a)'s requirements, the class must also meet the requirements of one of the types of classes described in subsection (b) of Rule 23."). Rule 23(b) provides that a class action is appropriate if the threshold requirements are satisfied, and the case falls into one or more of three categories. Only one of rule 23(b)'s subdivisions must be satisfied to meet the class-action requirements. See Carpenter v. Boeing, Co., 456 F.3d 1183, 1187 (10th Cir. 2006) (stating that the district court must determine whether a suit "falls within one of the categories of actions maintainable as class actions, see [Fed.R.Civ.P.] 23(b)."); Eatinger v. BP Am. Prod. Co., No. 07-1266, 2010 U.S. Dist. LEXIS 78352, at *6 (D. Kan. Aug. 2, 2010) ("After meeting these [rule 23(a)] requirements, Plaintiffs must demonstrate that the proposed class action fits within one of the categories described in Rule 23(b).").

a. Rule 23(b)(1).

Rule 23(b)(1) describes the first category of class actions and includes cases in which:

the prosecution of separate actions by . . . an individual member of the class would create a risk of (A) inconsistent or varying adjudications . . . which would establish incompatible standards of conduct for the party opposing the class, or (B) adjudications . . . which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests.

Fed.R.Civ.P. 23(b)(1). Subsection (1)(A) focuses on the risk of separate adjudications to the nonclass party, and is satisfied when separate actions would result in inconsistent adjudications, whereas subsection (1)(B) focuses on the risk of separate actions to the individual potential class members, and applies when adjudications against individual members of the class would be dispositive of the interests of the other members not parties to the adjudications. See Weinman v. Fid. Capital Appreciation Fund, 354 F.3d 1246, 1263 n. 6 (10th Cir. 2004). Unlike a rule 23(b)(3) class, which enables potential members of a class to opt-out, a class certified under rule 23(b)(1) does not provide such opt-out rights. See Weinman v. Fid. Capital Appreciation Fund, 354 F.3d at 1266 ("The court's decision was in accord with a general preference for certifying defendant classes under 23(b)(1) or (b)(2) rather than (b)(3) in order to promote judicial economy and prevent the class action device from becoming ineffective as a result of numerous opt-outs by individual defendants."). "Certification under Rule 23(b)(1), however, is normally not appropriate when significant monetary damages are sought because due process requires class members be given the opportunity to opt out of the action." Cox v. Allstate Ins. Co., No. CIV 07-1449, 2009 U.S. Dist. LEXIS 73518, at *12 (W.D. Okla. Aug. 19, 2009) (citing Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 811 n. 3 (1985)).

b. Rule 23(b)(2).

A second category of cases, set out in rule 23(b)(2), establishes an appropriate class as one in which "the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief with respect to the class as a whole." As the Tenth Circuit explained in Shook v. Board of County Commissioners, 543 F.3d 597 (10th Cir. 2008), rule 23(b)(2) "imposes two independent, but related requirements" upon those seeking class certification. 543 F.3d at 604.

In the first place, the defendants' actions or inactions must be based on grounds generally applicable to all class members. The second requirement is more restrictive, and it is on this aspect of the Rule that we affirm the district court's ruling. The latter half of Rule 23(b)(2) requires that final injunctive relief be appropriate for the class as a whole. The rule therefore authorizes an inquiry into the relationship between the class, its injuries, and the relief sought, and we have interpreted the rule to require that a class must be amenable to uniform group remedies. Put differently, Rule 23(b)(2) demands a certain cohesiveness among class members with respect to their injuries, the absence of which can preclude certification.

543 F.3d at 604 (internal quotations and citations omitted). Factually different claims of individual class members "should not preclude certification under Rule 23(b)(2) of a claim seeking the application of a common policy." Adamson v. Bowen, 855 F.2d at 676. A rule 23(b)(2) class action is inappropriate where the relief sought is primarily monetary damages. See Monreal v. Potter, 367 F.3d at 1236 (holding that the district court did not abuse its discretion in denying class certification because it found that the relief sought was primarily monetary damages); Fed.R.Civ.P. 23 advisory committee's note ("[Subdivision (b)(2)] does not extend to cases in which the appropriate relief relates exclusively or predominantly to money damages.").

c. Rule 23(b)(3).

To satisfy rule 23(b)(3), the court must find "that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy." Fed.R.Civ.P. 23(b)(3). Rule 23(b)(3) instructs that the court should consider: (i) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (ii) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (iii) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and (iv) the difficulties likely to be encountered in the management of a class action. See Fed.R.Civ.P. 23(b)(3)(A)-(D).

The predominance criterion of rule 23(b)(3) is "far more demanding" than rule 23(a)(2)'s commonality requirement. See Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 623-24 (1997);Monreal v. Potter, 367 F.3d 1224, 1237 (10th Cir. 2004) ("Although we do not rest our decision upon Rule 23(a), cases that interpret that the commonality requirement of Rule 23(a) illustrate the instant Plaintiffs' inability to satisfy Rule 23(b)(3)'s "far more demanding" requirement that common issues predominate."). In Monreal v. Potter, the Tenth Circuit found: "The myriad discriminatory acts that Plaintiffs allege (e.g., failure to promote, failure to train, unequal pay, disrespectful treatment, etc.) each require independent legal analysis, and similarly challenge the predominance requirement of Rule 23(b)(3) if not also the commonality requirement of Rule 23(a)." 367 F.3d at 1237.

3. Subclasses .

Rule 23(c)(5) provides: "When appropriate, a class may be divided into subclasses that are each treated as a class under this rule." A district court may suggest subclassing, but it has no obligation to do so. See U.S. Parole Comm'n v. Geraghty, 445 U.S. 388, 408 (1980); Fincher v. Prudential Prop. Cas. Ins. Co., No. 08-1109, 2010 U.S. App. LEXIS 8134, at *38 (10th Cir. Apr. 20, 2010). Moreover, even if a court determines subclassing is appropriate, the party seeking class certification bears the burden of constructing subclasses and "is required to submit proposals to the court."U.S. Parole Comm'n v. Geraghty, 445 U.S. at 408.

4. The Merits are Not Considered on a Motion for Class Certification .

"In determining the propriety of a class action, the question is not whether the plaintiff or plaintiffs have stated a cause of action or will prevail on the merits, but rather whether the requirements of Rule 23 are met." Anderson v. City of Albuquerque, 690 F.2d 796, 799 (10th Cir. 1982). See Vallario v. Vandehey, 554 F.3d 1259, 1267 (10th Cir. 2009) ("We, of course, adhere to the principle that class certification does not depend on the merits of a suit."). "[N]othing in either the language or history of Rule 23 . . . gives a court any authority to conduct a preliminary inquiry into the merits of a suit in order to determine whether it may be maintained as a class action." Eisen v. Carlisle Jacquelin, 417 U.S. 156, 177 (1974). Even though "the class determination generally involves considerations that are enmeshed in the factual and legal issues comprising the plaintiff's cause of action," the court's sole responsibility at this stage is to "carefully apply the requirements of Rule 23(A)." Gen. Tel. Co. of the Sw. v. Falcon, 457 U.S. 147, 160 (1982). See Anderson v. City of Albuquerque, 690 F.2d at 799.

ANALYSIS

The Plaintiffs have the burden of meeting all of rule 23(a)'s requirements for the Court to find that certifying a class in this suit is appropriate. The Court concludes that the Plaintiffs cannot meet all of the requirements for class certification under rule 23 with the class they propose. Specifically, the Court believes that there is a conflict of interest between the former 311-CCC employees and the current 311-CCC employees, such that the Plaintiffs do not meet the requirements of rule 23(a)(3) and rule 23(a)(4). A class of only former 311-CCC employees would meet these requirements; however, the Court finds that twenty-seven former employees is too few to meet the numerosity requirement in rule 23(a)(1). Moreover, the Plaintiffs do not ask the Court to create a subclass of current employees or certify only a class of current employees. The Court therefore will deny the motion for class certification.

I. THE PLAINTIFFS' PROPOSED CLASS ACT DOES NOT MEET ALL THE REQUIREMENTS OF RULE 23(a) .

"Rule 23(a) requires an analysis of four elements which are preconditions to class certification: numerosity, commonality, typicality, and adequacy of the named parties to represent the class." Shook v. El Paso County, 386 F.3d at 968. The Court finds that the Plaintiffs' proposed class does not meet all of rule 23(a)'s requirements. Moreover, a class of only terminated 311-CCC employees would not meet all of the requirements of rule 23(a).

A. THE CONFLICT OF INTEREST BETWEEN THE FORMER 311-CCC EMPLOYEES AND THE CURRENT 311-CCC EMPLOYEES DEFEATS THE TYPICALITY AND ADEQUACY REQUIREMENTS.

Rule 23(a)(2) asks whether there are "questions of law or fact common to the class," and, despite rule 23(a)(2)'s use of the word "questions," the Tenth Circuit has held that commonality requires only a single question of law or fact common to the entire class. See DG v. Devaughn, 594 F.3d at 1194 ("A finding of commonality requires only a single question of law or fact common to the entire class."); J.B. v. Valdez, 186 F.3d 1280, 1288 (10th Cir. 1999) ("As the district court observed, commonality requires only a single issue common to the class.") (internal quotations omitted). See also Harrington v. City of Albuquerque, 222 F.R.D. 505, 509 (D.N.M. 2004) (Hansen, J.) ("Although this provision of the rule is written in the plural, commonality requires only a single issue common to the class.") (internal quotations and citation omitted). The Plaintiffs contend that there are two common questions of law and fact: (i) whether the Plaintiffs and the proposed class members have a reasonable expectation of continued employment and a right to a hearing concerning disciplinary action against them; and (ii) whether they are entitled to declaratory and injunctive relief and equitable remedies, including reinstatement and back pay, incidental to that relief. See Plaintiffs' Memo. at 6. The Defendants conceded at the class certification hearing that the named Plaintiffs share a common question of law with the proposed class — are 311-CCC employees "classified" employees, such that they have a property interest in their employment? The Court agrees that this is a common question of law, and perhaps a mixed question of law and fact, among the proposed class.

The Defendants argue, however, that current employees do not have the same interest in being declared classified as former employees and as the Plaintiffs do, because the current employees receive a benefit for being unclassified employees — they receive higher pay. It might be in the interest of each of the class representatives and the other former employees to become classified employees. Presumably, the classified employees would have been entitled to a pre-termination hearing. On the other hand, it appears to be against the current employees' pecuniary interests to become classified. Thus, it is against their pecuniary interest to seek declaratory or injunctive relief stating that they are classified employees. The Plaintiffs and other terminated employees have something else to gain in addition to the right to a hearing — reinstatement and back pay — remedies inapplicable to the current employees. The Defendants contend that the conflict destroys the typicality of the Plaintiffs' claims with the proposed class. The Court agrees.

The proposed class is comprised of twenty-seven terminated 311-CCC employees and sixty-two current employees. The nine named Plaintiffs are all terminated employees. The bulk of the proposed class members — over two-thirds of the proposed class, i.e., the current employees — do not seek reinstatement and back pay, because they are, in fact, still employed by the City of Albuquerque. It is unclear what relief these employees would be seeking if the Court certified the proposed class. Rule 23(a)(3) requires the claims of named plaintiffs to be typical of the claims of the class they seek to represent. See DG v. Devaughn, 594 F.3d at 1198; Fed.R.Civ.P. 23(a)(3). The interests and claims of named Plaintiffs and proposed class members does not have to be identical to satisfy typicality, but the claims must be based on the same legal or remedial theory. See DG v. Devaughn, 594 F.3d at 1198;Anderson v. City of Albuquerque, 690 F.2d at 800. Here, not only are the current employees not seeking the remedies of reinstatement and back pay, but it is also doubtful whether they are interested in giving up their higher pay to become classified employees. Because the interests of the Plaintiffs are likely opposed to the interests of many current 311-CCC employees in the proposed class, and the current employees make up more than two-thirds of the proposed class, the Plaintiffs' claims do not typify the claims of other class members and the conflict destroys commonality. See Delsing v. Starbucks Coffee Corp., 2009 U.S. Dist. LEXIS 90962, at *8 (stating that "the Court agrees that class certification is inappropriate in this case because the interests of plaintiffs are directly opposed to the interests of at least a substantial portion of the proposed class"); Slader v. Pearle Vision, Inc., 2000 U.S. Dist. LEXIS 16453, at *2 (stating that "the interests of . . . two former employees are, if anything, quite likely in conflict with the interests of current employees, for a former employee's primary interest necessarily centers on recovering back pay, while a current employee may well be far more interested in obtaining injunctive relief.").

Generally, if the representatives' interests are coextensive with those of the rest of the class, they will not be viewed as antagonistic, a key factor in determining the adequacy of representation. . . . Coextensiveness has also been viewed as part of the requirement in Rule 23(a)(3) that the claims of the representatives be typical of those of the absent class members. Thus, courts have noted that coextensiveness is a common thread binding Rule 23(a)(3) and Rule 23(a)(4) together.

7A C. Wright, A. Miller M. Kane, Fed. Prac. Proc. § 1768 at 389-93.

The Plaintiffs argue that the Defendants' contention that there is a conflict of interest between the former 311-CCC employees and the current 311-CCC employees "is based on the unsupportable contention that 311-CCC personnel who are still employed, albeit without any of the protections or rights of `classified' employees, are a different and incompatible class that the employees who have already been fired without notice or hearings." Plaintiffs' Reply at 6. The Plaintiffs appear to try to place the burden on the Defendants to show that the interests of current employees are in tension with the interests of former employees. The burden remains, however, on the Plaintiffs, as the party seeking to certify a class, to prove that there is not a conflict of interest among the proposed class members. See Fincher v. Prudential Prop. Cas. Ins. Co., 2010 U.S. App. LEXIS 8134, at *36; Shook v. El Paso County, 386 F.3d at 368. The Plaintiffs did not submit any affidavits from current employees representing that they desire to become classified employees and would be willing to give up the higher pay they receive as unclassified employees for a change in status that entitles them to a property interest in their jobs. Nor did the Defendants submit affidavits stating current employees do not want to become classified. The Court understands the Defendants' reluctance, given some of the case law that is out there, to solicit affidavits from potential class members, and risk a perception that they were attempting to intimidate or influence those employees' interest in a class action. See, e.g., County of Santa Clara v. Astra USA, Inc., No. C 05-3740, 2010 U.S. Dist. LEXIS 78312, at *14 (N.D. Cal. July 8, 2010) ("Examples of communications that may warrant restraint include efforts by a defendant to encourage potential class members not to participate in the class action, thereby reducing potential liability.");Roslies-Perez v. Superior Forestry Serv., 652 F. Supp. 2d 887, 894 (M.D. Tenn. 2009) ("Absent any legitimate justification for [the defendant's] presence, the Court deems [the defendant's] behavior to be a clear effort to intimidate and threaten potential class members and witnesses who may have been interested in speaking to Plaintiffs' counsel");Sjoblom v. Charter Commc'ns, LLC, 07-cv-451, 2008 U.S. Dist. LEXIS 11660, at *6 (W.D. Wis. Feb. 14, 2008) ("To protect potential class members from future coercion or intimidation, the court ordered defendants to obtain the court's approval before contacting or communicating with potential class members in this action."); Manual for Complex Lit. § 21.12 (4th ed. 2004) ("Defendants and their counsel generally may communicate with potential class members in the ordinary course of business, including discussing settlement before certification, but may not give false, misleading, or intimidating information, conceal material information, or attempt to influence the decision about whether to request exclusion from a class certified under Rule 23(b)(3)."). Nevertheless, the reality is that the record is silent about what the current employees want and the Plaintiffs bear the burden of showing lack of conflict.

The Tenth Circuit has stated that "[i]t is axiomatic that a plaintiff cannot maintain a class action when his interests are antagonistic to, or in conflict with, the interests of the persons he would seek to represent." Albertson's, Inc. v. Amalgamated Sugar Co., 503 F.2d at 463. Because of the conflict of interest between the Plaintiffs and over two-thirds of the proposed class, the Court also finds that the Plaintiffs fail to meet rule 23(a)(4)'s adequacy requirement. The Tenth Circuit has identified two questions relevant to the adequacy-of-representation inquiry: (i) whether the named plaintiffs and their counsel have any conflicts with other class members; and (ii) whether the named plaintiffs and their counsel will vigorously prosecute the action on behalf of the class. See Rutter Wilbanks Corp. v. Shell Oil Co., 314 F.3d at 1187-88. While the Court does not question the experience and competence of Mr. Livingston representing the class, the named Plaintiffs have a conflict with other class members. The conflict between the current employees and the Plaintiffs negates the Plaintiffs' and attorney Mr. Livingston's adequacy under rule 23(a)(4) to represent the class that they propose. See Langbecker v. Elec. Data Sys. Corp., 476 F.3d at 315 n. 28 (finding that intraclass conflicts "may negate adequacy under Rule 23(a)(4)"); Pickett v. Iowa Beef Processors, 209 F.3d at 1280 (finding that representation was inadequate where the class included those "who claim harm from the very acts from which other class members benefitted"). The Supreme Court "has repeatedly held [that] a class representative must be part of the class and `possess the same interest and suffer the same injury' as the class members." E. Tex. Motor Freight Sys. Inc. v. Rodriguez, 431 U.S. at 403. The Plaintiffs also expressed no interest in subclasses or getting a separate counsel for current employees, but preferred joinder. Because the Plaintiffs do not possess the same interests at current 311-CCC employees, the Court finds that they fail to satisfy rule 23(a)(4).

B. THE NUMBER OF TERMINATED EMPLOYEES IS NOT SO NUMEROUS THAT JOINDER OF ALL MEMBERS IS IMPRACTICABLE.

Although the Court finds that the Plaintiffs' proposed class does not satisfy rule 23(a)'s requirements, a class of all terminated 311-CCC employees would satisfy the requirements of commonality, typicality, and adequacy. The conflict of interest does not pose a problem between the Plaintiffs and other terminated employees, and they share an interest in declaratory and injunctive relief, including reinstatement, and an interest in receiving back pay, if it is determined that they are classified employees. The Plaintiffs represent that there are twenty-seven terminated 311-CCC employees. There is no dispute that the members of the proposed class are readily identified from City of Albuquerque records.

Rule 23(a)(1) asks whether "the class is so numerous that joinder of all members is impracticable." Fed.R.Civ.P. 23(a)(1). The Tenth Circuit has stated that there is "no set formula" to determine whether the numerosity requirement is met; instead it is a fact-specific inquiry best left to the discretion of the district court. Rex v. Owens, 585 F.2d at 436; Trevizo v. Adams, 455 F.3d at 1162 ("Indeed, because it is such a fact-specific inquiry, we grant wide latitude to the district court in making this determination."). While eighty-nine present and former 311-CCC employees is probably numerous enough, twenty-seven is a borderline number. While twenty-seven might, in other circumstances, satisfy the numerosity requirement, the Court does not believe that twenty-seven readily-identifiable individuals here is an impracticable number of individuals to join as plaintiffs. See Johnson v. Thompson, 971 F.2d at 1498 (affirming the district court's finding that twenty-eight individuals did not satisfy rule 23(a)(1) because the plaintiffs did not show that joinder would be impracticable). Moreover, at the class certification hearing, Mr. Livingston represented to the Court that, if the class were comprised of only the twenty-seven terminated employees, it would not be worth conducting the case as a class action. He stated that joinder would be a preferable method, if the Court grants the Plaintiffs leave to join additional plaintiffs. See Tr. at 9:15-10:10 ("MR. LIVINGSTON: Well, I think essentially, Your Honor, I would agree with you, that 27 is too small a class to make it worth being a class action. . . . I think we would pursue it individually if we could have an opportunity to join some additional people that would probably satisfy us."). Exercising its discretion, the Court therefore finds that a class of only the terminated 311-CCC employees does not satisfy rule 23(a)(1) and the Court will not certify such a class.

II. THE PROPOSED CLASS DOES NOT SATISFY RULE 23(b) BUT A CLASS OF FORMER 311-CCC EMPLOYEES WOULD SATISFY RULE 23(b) .

The Plaintiffs originally argued that the proposed class satisfied all three categories of rule 23(b). In their reply, however, they argue that the proposed class would only satisfy 23(b)(2)'s and 23(b)(3)'s requirements. The Court, however, will address whether the proposed class would satisfy any of rule 23(b)'s requirements.

A rule 23(b)(1) class action establishes an appropriate class as one in which either (i) there is a risk of separate adjudications to the non-class party, and separate actions would result in inconsistent adjudications, see rule 23(b)(1)(A); or (ii) where adjudications would, as a practical matter, be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests, see rule 23(b)(1)(B). In their memorandum in support of the motion for class certification, the Plaintiffs argue that adjudication of individual claims of the proposed class members "would be expensive and would add nothing to the claims already being asserted by Plaintiffs." Plaintiffs' Memo. at 7. They also argue that the prosecution of separate actions by similarly-situated employees and former employees would create the risk of inconsistent adjudications, and would present the possibility that the City of Albuquerque would be subjected to inconsistent and incompatible standards of conduct with respect to 311-CCC employees. See id. at 7-8. The Defendants argue that the Plaintiffs' proposed class does not meet rule 23(b)(1)'s requirements. As the Court discussed in assessing whether the proposed class satisfies rule 23(a), the relief that the Plaintiffs seek is not appropriate for the class as a whole, because the interests that the rule 23(b)(1) class action seeks to protect are not the same for former 311-CCC employees, like the named Plaintiffs, and for current 311-CCC employees. Because there is a conflict of interest between the current employees and the former employees, adjudications against individual members would not be dispositive of the interests of current employees. The Court believes the risk of inconsistent adjudications would be an important consideration if the proposed class were composed solely of former 311-CCC employees, as former employees have a common interest in being deemed classified employees and having their employment reinstated, and the Court would likely certify a 23(b)(1) class of former 311-CCC employees. The Plaintiffs' proposed class, however, does not satisfy the requirements under rule 23(a) and thus does not meet the requirements for a rule 23(b)(1) class, because the alleged issues about which the proposed class is concerned are not commonly shared among all members of the proposed class.

A 23(b)(2) class action establishes an appropriate class as one in which "the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief with respect to the class as a whole." Fed.R.Civ.P. 23(b)(2). A rule 23(b)(2) class has two requirements: (i) the defendants' actions or inactions must be based on grounds generally applicable to all class members; and (ii) final injunctive relief must be appropriate for the class as a whole. See Shook v. Board of County Comm'rs, 543 F.3d at 604. The Defendants' actions or inaction are based on grounds generally applicable to all class members, but, as the Court discussed in assessing whether the proposed class satisfies rule 23(a), the relief a 23(b)(2) class provides that the Plaintiffs seek is not appropriate for the class as a whole. The pecuniary conflict of interest between the Plaintiffs and current employees renders the injunctive relief inappropriate for all current employees. Moreover, a rule 23(b)(2) class does not have a required opt-out provision, so current employees who wish to remain a higher-paid unclassified employee would not be able to opt-out of the Plaintiffs' class action seeking declaratory and injunctive relief requiring that 311-CCC employees be deemed classified. The Plaintiffs' proposed class, therefore, does not satisfy rule 23(b)(2). The Court notes, however, that a class of only terminated employees would satisfy rule 23(b)(2), as the Defendants' actions — denying the Plaintiffs and other terminated employees a property interest in their employment — applies to all class members, and final injunctive relief would be appropriate for the class of terminated employees as a whole.

The Plaintiffs' proposed class also does not satisfy rule 23(b)(3). To satisfy rule 23(b)(3), the court must find "that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy." Fed.R.Civ.P. 23(b)(3). The predominance criterion of rule 23(b)(3) is "far more demanding" than rule 23(a)(2)'s commonality requirement. See Amchem Prods., Inc. v. Windsor, 521 U.S. at 623-24; Monreal v. Potter, 367 F.3d at 1237 ("Although we do not rest our decision upon Rule 23(a), cases that interpret that the commonality requirement of Rule 23(a) illustrate the instant Plaintiffs' inability to satisfy Rule 23(b)(3)'s `far more demanding' requirement that common issues predominate."). As the Court discussed in determining whether the Plaintiffs' proposed class satisfies rule 23(a), there is a conflict of interest between the current employees and the Plaintiffs. While there is a predominating common question affecting the proposed class — whether the 311-CCC employees are classified — the Court believes that the proposed class, with its single counsel, is not superior to other methods, such as joinder or subclasses with separate counsel. Additionally, the former employees have wrongful termination claims, and some have additional individual claims. The common due process claim, thus, does not predominate over questions affecting individual members, and therefore the proposed class does not meet rule 23(b)(3)'s predominance criterion. The Plaintiffs' proposed class thus does not meet rule 23(b)(3)'s predominance criterion. The divergent interests of the proposed class render a rule 23(b)(3) class inappropriate. The Court notes, however, that a class of only terminated employees would satisfy the requirements of rule 23(b)(3), because common questions regarding whether they have a property interest entitling them to reinstatement and back pay predominate. A class of only terminated employees, however, may not satisfy the numerosity requirement.

III. THE COURT WILL GRANT THE PLAINTIFFS LEAVE TO AMEND THE COMPLAINT TO JOIN ADDITIONAL PLAINTIFFS .

The current named Plaintiffs are nine terminated 311-CCC employees. To the Plaintiffs' knowledge, there are an additional eighteen terminated 311-CCC employees who may be interested in joining in this action. Because the Court finds that a class is inappropriate, and that it is not impracticable to join the other potential plaintiffs, the Court believes it is appropriate to grant the Plaintiffs time to join additional terminated employees. At the class certification hearing, the Defendants represented that they did not oppose the Court giving the Plaintiffs time to add additional plaintiffs. The leave to amend is limited to adding new plaintiffs and claims for the new plaintiffs. The Court is not granting leave for the current plaintiffs to add additional claims. The Plaintiffs have thirty days from this Order to file an Amended Complaint or Notice of Joinder adding additional plaintiffs.

IT IS ORDERED that the Plaintiffs' Motion for Class Action Certification is denied. The Plaintiffs have thirty days to amend to join new plaintiffs.