     Case: 14-70024      Document: 00513104009         Page: 1    Date Filed: 07/02/2015

           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                      No. 14-70024                       United States Court of Appeals
                                                                                Fifth Circuit

                                                                                FILED
DEXTER JOHNSON,                                                              July 2, 2015
                                                                           Lyle W. Cayce
              Petitioner - Appellant                                            Clerk

v.

WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

              Respondent - Appellee

                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:11-CV-2466

Before STEWART, Chief Judge, and JOLLY and SOUTHWICK, Circuit
Judges.
PER CURIAM:*
       Dexter Darnell Johnson (Johnson), a Texas death row prisoner, appeals
the district court’s denial of federal habeas relief on his Fifth Amendment
claim, arguing that his statements made during a second custodial
interrogation were admitted despite the invocation of his right to have an

       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                   No. 14-70024
attorney present during the first custodial interrogation. He also seeks a
certificate of appealability (COA) to determine whether: 1) the district court
erred by denying his motion for leave to amend his federal habeas petition with
new claims; 2) the Constitution prohibits the execution of the mentally ill; 3)
the district court erred in rejecting his allegation of incompetency to waive his
right to counsel and to remain silent; and 4) the district court erred in rejecting
his argument that changes in Texas decisional law warrant a new trial. For
the reasons stated herein, we AFFIRM the district court’s denial of habeas
relief on Johnson’s Fifth Amendment claim, and we DENY his application for
a COA.
                              I.   BACKGROUND
   A. Facts of the Crime
      During the early morning hours of June 18, 2006, Johnson and four
friends were driving around the neighborhood looking for someone to rob.
Johnson’s companions were: (1) Keithron Fields, whom Johnson considered a
brother; (2) Timothy Randle, who was driving that night; (3) Ashley Ervin, the
owner of the car; and (4) Louis Ervin, Ashley’s fifteen-year-old brother. Louis
Ervin testified to the events that took place that night.
      The group eventually came upon Maria Aparece and her boyfriend, Huy
Ngo, talking while sitting inside Aparece’s blue Toyota Matrix.           Johnson
ordered Randle to turn the car around and park alongside the curb because he
wanted to “jack the people that was in the car.” He asked Fields if he was
ready and placed a black bandana over his mouth while Fields pulled the hood
of his jacket over his head. Brandishing a shotgun, Johnson ran up to the
driver’s side and threatened to bust through the window if Aparece did not
open the car door. Fields was pointing a medium-sized black gun toward the
passenger side. Although she refused at first, Aparece eventually complied
and opened the door. Johnson pulled Aparece from the car by her hair and
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forced her into the backseat of the Matrix while Fields shoved Ngo into the
backseat as well. Johnson ordered Louis Ervin into the backseat with the
victims while he and Fields climbed into the front. Johnson then drove the
group around for close to ten minutes demanding money from Aparece and
Ngo, but they did not have any. Angered, Johnson drove around for another
twenty minutes or so searching for a wooded area while Aparece cried and
begged for her freedom. They eventually found a park with a wooded area, and
Johnson parked the Matrix in the woods. Randle and Ashley Ervin, who had
been following closely in her car, parked nearby. Fields forced Ngo out of the
Matrix and onto his knees while Johnson climbed into the backseat and raped
Aparece at gunpoint. Fields held a gun to Ngo’s head and taunted him as he
was crying, saying things like “My brother in there having sex with your
girlfriend. What you going to do about it?” Afterward, Johnson told the couple
that “it was the end right here” and that he was going to “off them.” Although
they both continued to cry and Aparece begged for her life, Johnson and Fields
marched the couple into the woods and shot them both once in the head.
      Immediately after the murders, Johnson and Fields, driving Aparece’s
blue Matrix, caught up with the rest of their companions at a stoplight.
Johnson and Fields were laughing and playing loud music. Before ordering
them to follow him to a gas station, Johnson boasted, “Man, I had to go ahead
and off them people.” At the gas station—where police obtained surveillance
video of the Matrix—Louis Ervin asked Johnson why he killed the couple, to
which Johnson replied that Johnson had said the name “Louis” to the victims
during the robbery and that “they didn’t want to give him no money.” Johnson
also stated that “killing people is what he do.” Later, Johnson took the group
on a shopping spree at two separate Walmarts where police later obtained
surveillance video showing Johnson, Fields, and Randle using Aparece’s credit

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card. Johnson was arrested three days later for possession of marijuana and
was quickly linked to the disappearance of Aparece and Ngo.
   B. Johnson’s Custodial Statements to the Police
         1. The First Recorded Statement
      On the afternoon of June 21, 2006, upon learning that Johnson had been
taken into custody that morning on drug charges, two detectives from the Fort
Bend County Sheriff’s Department—Detectives Everett Hargrave and Bruce
Campbell—went to interview Johnson about Aparece’s stolen car and her
status at the time as a missing person. After reading Johnson his Miranda
warnings, which Johnson acknowledged both orally and in writing he
understood, the detectives questioned him for over four hours. At trial, the
State presented the first hour and twenty-eight minutes of this recorded
statement. During this admitted portion of the statement, Johnson denied
having robbed anybody, and denied all knowledge of the stolen vehicle or
Aparece. However, Johnson did eventually admit that he might have picked
up Aparece’s credit card and made purchases without permission after two
unknown black men dropped the card on the ground. After the first hour and
twenty-eight minutes, Johnson told Detective Hargrave that he wanted to
return to his cell because “it seem[ed] like [the officers were] . . . trying to pin
this stuff on [him].” Detective Hargrave disputed the contention that they were
trying to charge him with credit card abuse, and Johnson continued to speak
with the detectives for approximately two and a half more hours.
      During that time Johnson admitted that he, Fields, Randle, and the
Ervins robbed Aparece of her car, but maintained that they left her and Ngo
standing on the street unharmed. He also described several other extraneous
robberies that were committed around that same time. After several hours,
Detective Hargrave expressed his intention to end the interview, but indicated
that he still did not believe Johnson had told him everything. He explained
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that the police could not make any deals for Johnson, but if Johnson desired
any leniency from the District Attorney’s Office, he needed to come forward
with “complete disclosure.” The following exchange then occurred:
Johnson: [interrupting] I’m trying, I’m trying, I’m trying to
         be right, I’m trying to be right here to tell you all I
         know. That’s all I know right now. I don’t even
         want to talk no more until I get me a lawyer or
         something. Because I, I, I keep on telling ya’ll, I
         done told ya’ll everything. I wouldn’t have given
         you all them names if I didn’t know everything I
         knew. I’m not, I’m not no rat, no little snitch like
         that. I done told y’all everything I knew though.
         That’s everything right there. I’m not going to,
         come on now.
Campbell: What do you mean by that?
Johnson: [interrupting] that’s a snitch though.
         [Campbell and Johnson both inaudible because they are
         talking simultaneously]
Johnson: [beginning inaudible] I gave up my brother. I told
         ‘em what he did and I know he didn’t kill her. He
         was in the car with me. Louis [was] in the car with
         me. We drove out.
Hargrave: Yeah.
Johnson: I told you everything that I know, sir.
Hargrave: Yes, but you also told us that you didn’t take
          anyone away from the situation. You did. So
          someone -
Johnson: [inaudible because he interrupted Hargrave] So
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         you say I took someone away?
Hargrave: Huh?
Johnson: So you saying I took someone away?
Hargrave: You and your crew.
Johnson: I didn’t take nobody away.
      Following a few more questions about the inconsistencies of his
statement, Detective Hargrave stopped talking to Johnson. A police officer
from Humble, Texas, then entered and asked Johnson questions related to
offenses committed in Humble. A few minutes later the interview ended.
         2. The Second Recorded Statement
      After officers from the Houston Police Department (HPD) arrested
Timothy Randle and another friend named Alvie Butler on June 23, 2006,
Randle led police to the bodies of Aparece and Ngo. In addition to Randle, HPD
homicide investigators spoke with Louis Ervin, Ashley Ervin, and another
friend named Tanaisha Samuel that same day. Later in the evening, Johnson
was brought from jail to be interviewed about his version of the events.
Although detectives had a copy of Johnson’s previous statement to Fort Bend
County detectives, HPD homicide detective Clement Abbondondalo recorded
another interview with Johnson in which he gave more details about the events
of June 18th and 19th. Before he questioned Johnson, Abbondondalo read
Johnson the required warnings, and Johnson indicated he understood the
warnings when he agreed to speak with the detective.
      In the statement, Johnson blamed Timothy Randle for getting him and
Keithron Fields involved in the case. He admitted to initially ordering Aparece
and Ngo out of the car with a shotgun and to driving Aparece’s blue Matrix to
a wooded area, but claimed Randle was the one who directed them to the crime
scene. Johnson also admitted to raping Aparece and to wiping down the car
with Fields in order to destroy any fingerprints, but denied killing the couple.
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He claimed that he fired a pistol near Ngo “just to scare them” and doubted the
shot hit anyone, but admitted if he “shot somebody it might would have been
the boy.” After they had been talking for about twenty-five minutes, Detective
Abbondondalo stepped out of the room. When he returned, Johnson chose to
terminate the interview.
         3. Pre-trial Hearings on Johnson’s Motions to Suppress
      Prior to trial, counsel for Johnson filed motions to suppress both of his
statements made to police, and the trial court conducted a separate hearing for
each statement. At the first hearing, several witnesses were called to testify
about the facts and circumstances surrounding the recording of the first
statement, including Detective Hargrave. At the conclusion of the hearing,
defense counsel objected that the statement was the fruit of an illegal arrest,
that Johnson was not timely magistrated and read his warning on the
misdemeanor marijuana possession charge, and that his right to silence was
violated after the detectives continued to interrogate him once he invoked his
right to counsel around the one-hour, twenty-eight minute mark of the first
interview. The court denied the motion to suppress the first hour and twenty-
eight minutes of the statement, but did not address counsel’s objections to the
remainder of the statement because the State did not intend to offer it.
      The following day the court held a hearing concerning Johnson’s second
statement. HPD Detective Abbondondalo testified that Johnson understood
the warnings read to him and agreed to speak to detectives, that Johnson was
not threatened or coerced, and that Johnson neither expressed reluctance to
talk about the offense nor requested an attorney at any point.             At the
conclusion of the hearing, defense counsel contended the statement should be
suppressed because Johnson unambiguously invoked his Fifth Amendment
right to counsel during his first recorded statement, thereby tainting the
second   statement.     Although    agreeing   with   counsel   that   Johnson
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unambiguously invoked his right to silence and to counsel, the court held that
Johnson subsequently waived those rights when he continued to discuss the
crime after this invocation.
   C. Convictions and Post-Conviction Proceedings
       Johnson was subsequently indicted, convicted, and sentenced to death
for the robbery, kidnapping, and murder of Maria Aparece. His conviction and
sentence were affirmed on direct appeal. Johnson v. State, No. 75, 749 (Tex.
Crim. App. Jan. 27, 2010) (unpublished), cert. denied, 130 S. Ct. 3515 (2010).
While his appeal was still pending, Johnson also filed a state application for
writ of habeas corpus, which the Texas Court of Criminal Appeals
subsequently denied. Ex parte Johnson, No. 73, 600-01 (Tex. Crim. App. June
30, 2010).
       A year later, Johnson filed a federal petition for habeas corpus relief in
the district court below raising a total of eleven points of error, including a
claim for relief under Edwards v. Arizona, 451 U.S. 477, 484–85 (1981)
(intimating the standards for invoking and waiving the right to have counsel
present during custodial interrogation). Following the Director’s answer, the
district court denied relief on all but Johnson’s Edwards allegation, on which
the court ordered the parties to provide additional briefing. 1 After taking into
consideration the supplemental briefing of both parties, the district court
denied relief on Johnson’s Edwards claim, concluding that Johnson had not
shown that the state courts were unreasonable in finding that the admission
of his second police statement did not violate his constitutional rights.
However, the court determined that Johnson’s arguments on the Edwards

       1   Specifically, the Court ordered briefing on: (1) whether Johnson made an
unambiguous invocation of the right to counsel during his first statement; (2) whether the
police tried to clarify his request; (3) whether Johnson reinitiated communication with police;
and (4) whether any error in the admission of the second statement harmed the defense.
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claim deserve “encouragement to proceed further,” and certified the claim for
appeal, citing to Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).
      On December 1, 2014, Johnson filed his merits brief on the
Edwards/Fifth Amendment claim and separately requested a certificate of
appealability (COA) on four other issues raised in his federal habeas petition.
In particular, Johnson seeks a certificate of appealability on the following
issues: 1) whether his motion to abate in order to amend his petition was
erroneously denied; 2) whether the Constitution should prohibit the execution
of a severely mentally ill inmate; 3) whether Johnson was mentally competent
to waive his right to counsel and to remain silent during the custodial interview
with the police; and 4) whether a change in Texas decisional law should require
retrial of Johnson’s guilt.
                              II.    DISCUSSION
   A. Johnson Waived His Fifth Amendment Right to Counsel
      In a federal habeas appeal, the district court’s findings of fact are
reviewed for clear error while conclusions of law are reviewed de novo, and we
“[apply] the same standards to the state court’s decision as did the district
court.” Woodfox v. Cain, 772 F.3d 358, 367 (5th Cir. 2014) (citing Lewis v.
Thaler, 701 F.3d 783, 787 (5th Cir. 2012)). Because Johnson’s claim was
adjudicated on the merits in state court, however, he may not obtain federal
habeas relief under the Anti-Terrorism and Effective Death Penalty Act of
1996 (AEDPA) unless the state court adjudication “(1) resulted in a decision
that was contrary to, or involved an unreasonable application of, clearly
established Federal law[]; or (2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the evidence presented in
the State court proceeding.” 28 U.S.C. § 2254(d); see also Harrington v. Richter,
562 U.S. 86, 98 (2011).       Section 2254(d)(2) also “commands substantial
deference to the factual determinations made by state courts.” Blue v. Thaler,
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665 F.3d 647, 654 (5th Cir. 2011). As such, “a petitioner must show that the
decision was objectively unreasonable, a substantially higher threshold
requiring the petitioner to show that a reasonable factfinder must conclude
that the state court's determination of the facts was unreasonable.” Batchelor
v. Cain, 682 F.3d 400, 405 (5th Cir. 2012) (brackets and internal quotation
marks omitted); see Schriro v. Landrigan, 550 U.S. 465, 473 (2007); Rice v.
Collins, 546 U.S. 333, 341 (2006); 28 U.S.C. § 2254(e)(1) (“[A] determination of
a factual issue made by a State court shall be presumed to be correct. The
applicant shall have the burden of rebutting the presumption of correctness by
clear and convincing evidence.”); Blue, 665 F.3d at 654–55 (“[A] state-court
factual determination is not unreasonable merely because the federal habeas
court would have reached a different conclusion in the first instance.”).
       In Miranda v. Arizona, the Supreme Court held that, “[i]f the individual
[under interrogation] states that he wants an attorney, the interrogation must
cease until an attorney is present.” 384 U.S. 436, 474 (1966). As a corollary to
the prophylactic rule adopted in Miranda, the Court held in Edwards, that,
once the accused asserts his Fifth Amendment right to counsel, all further
interrogation by the authorities must cease “until counsel has been made
available to him, unless the accused himself initiates further communication,
exchanges, or conversations with the police.” 451 U.S. at 484–85. “If the police
do subsequently initiate an encounter in the absence of counsel (assuming
there has been no break in custody), the suspect’s statements are presumed
involuntary and therefore inadmissible as substantive evidence at trial, even
where the suspect executes a waiver and his statements would be considered
voluntary under traditional standards.” McNeil v. Wisconsin, 501 U.S. 171,
177 (1991).
      However, in order to fully invoke his rights under Miranda, a defendant
must make an unambiguous statement “that can reasonably be construed to
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be an expression of a desire for the assistance of an attorney.” Soffar v.
Cockrell, 300 F.3d 588, 595 (5th Cir. 2002) (citing Davis v. United States, 512
U.S. 452, 459 (1994)). Although he need not “speak with the discrimination of
an Oxford don,” a defendant must “clearly articulate his desire to have an
attorney present.” Id. at 595 (internal quotation marks and citation omitted);
see Berghuis v. Thompkins, 560 U.S. 370, 381 (2010) (“If an accused makes a
statement concerning the right to counsel that is ambiguous or equivocal or
makes no statement, the police are not required to end the interrogation [] or
ask questions to clarify whether the accused wants to invoke his or her
Miranda rights.” (internal parentheses and citation omitted)).
      Assuming, arguendo, that Johnson did properly invoke his right to
counsel in the first interrogation, 2 he subsequently reinitiated communications
with the police and thus waived any rights he may have previously invoked.
The district court asked both parties for additional briefing to discuss
Johnson’s intent as he continued talking, but Johnson failed to elaborate on
the meaning of the words spoken after asserting his rights. Johnson also failed
to point to any Supreme Court precedent which clearly indicates that an
individual who continues to speak with police (about the criminal conduct in
question) after invoking his right to counsel or to remain silent has not waived
those rights. Our research has similarly not revealed any such case law.
Likewise, he failed to show that the state courts were unreasonable in holding
that he reinitiated contact by, without interruption, referring to what he had
already told police officers about the relevant criminal conduct. Thus, given
Johnson’s failure to stop talking after saying he did not “want to talk no more,”

      2  Both the state trial and appellate courts held that Johnson unequivocally invoked
his right to counsel. See Johnson v. State, 2010 WL 359018, at *5 (Tex. Crim. App. Jan. 27,
2010) (unpublished). However, we do not put forth an opinion on this issue, and instead,
assume, arguendo, that his rights were invoked and begin our analysis there.
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the state courts could reasonably conclude that the State did not violate
Johnson’s constitutional rights by putting the substance of his second police
statement before the jury.
      In sum, Johnson has failed to rebut the state courts’ factual
determination that, even if he did invoke his right to counsel, he subsequently
reinitiated communication with police, thus waiving any invocation of his
rights. See 28 U.S.C. § 2254(e)(1). He has also failed to show that the state
court’s factual findings were objectively unreasonable in light of the evidence.
See Schriro, 550 U.S. at 473. Thus, we AFFIRM the district court’s denial of
federal habeas relief on this claim.
   B. Reasonable Jurists Would Not Debate The District Court’s Denial Of
      Johnson’s Motion For Leave To Amend

      Johnson also seeks a COA on several claims. First, he seeks a COA to
determine whether the district court abused its discretion in denying his
motion for leave to amend his federal habeas petition with two new claims.
      A petitioner must obtain a COA before he may appeal the district court’s
denial of federal habeas relief. Haynes v. Quarterman, 526 F.3d 189, 192 (5th
Cir. 2008); see 28 U.S.C. § 2253(c). Under AEDPA, a COA may not issue unless
“the applicant has made a substantial showing of the denial of a constitutional
right.” Slack v. McDaniel, 529 U.S. 473, 483 (2000) (quoting 28 U.S.C. §
2253(c)).   According to the Supreme Court, this requirement includes a
showing that “reasonable jurists could debate whether (or, for that matter,
agree that) the petition should have been resolved in a different manner or that
the issues presented were adequate to deserve encouragement to proceed
further.” Id. at 484.
      Because this habeas claim was denied on procedural grounds, a COA will
only issue if Johnson shows that jurists of reason would find it debatable
“whether the petition states a valid claim of the denial of a constitutional right
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and that jurists of reason would find it debatable whether the district court
was correct in its procedural ruling.” Id.
      A motion to amend is reviewed for abuse of discretion. Jacobsen v.
Osborne, 133 F.3d 315, 318 (5th Cir. 1998).        “A district court abuses its
discretion if it: (1) relies on clearly erroneous factual findings; (2) relies on
erroneous conclusions of law; or (3) misapplies the law to the facts.” In re
Volkswagen of Am., Inc., 545 F.3d 304, 310 (5th Cir. 2009) (internal quotation
marks and citation omitted) (en banc).
      It is within the sound discretion of the district court to grant a motion to
amend, but that discretion is limited by Rule 15(a), “which states that leave
shall be given when justice so requires.” Jacobsen, 133 F.3d at 318 (internal
quotation marks and citation omitted). However, it is also within the district
court’s discretion to deny leave to amend if there is “a substantial reason” to
do so. Dussouy v. Gulf Coast Inv. Corp., 660 F.2d 594, 598 (5th Cir. 1981). One
such substantial reason is if the district court determines that amendment
would be futile, in which case leave to amend should be denied. See In re
Southmark Corp., 88 F.3d 311, 314–15 (5th Cir. 1996); see also DeLoach v.
Woodley, 405 F.2d 496, 497 (5th Cir. 1968) (per curiam). Further, AEDPA’s
one-year statute of limitations begins to run on “the date on which the
judgment became final by the conclusion of direct review or the expiration of
the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A).
      In the district court, Johnson requested either a stay of his proceedings
so he could return to state court or for the court to allow amendment of his
petition with two new ineffective assistance of counsel (IAC) claims not
previously raised. Johnson’s first new claim alleged that his trial counsel was
ineffective for not presenting any evidence of his psychological and biological
mental impairments during the guilt/innocence phase of trial even though such
evidence was available. His second new claim alleged that his direct appeal
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counsel was ineffective for not challenging trial counsel’s representation on
that ground. The district court denied Johnson’s request to amend his petition
with these new claims because any amendment would be futile. Specifically,
the court found that any new claims would be barred by AEDPA’s statute of
limitations and subject to dismissal as unexhausted and procedurally barred. 3
       We agree that Johnson’s two new claims are time-barred, as they were
not filed within AEDPA’s one-year statute of limitations. Johnson’s one-year
period began to run on June 28, 2010, the date the Supreme Court denied
certiorari review of his direct appeal.            However, due to statutory tolling,
Johnson had until June 30, 2011, to file his original petition for federal habeas
relief. 4 He timely filed his original petition for federal habeas relief on June
28, 2011. However, over a year and a half later, Johnson sought to amend his
petition to add the two new IAC claims challenging his original conviction.
Because extraordinary circumstances do not exist that would warrant
equitable tolling under AEDPA, these new claims are time-barred. 5 The new
IAC claims he now asserts rely on the same evidence of mental illness that was
available and that he relied upon in his original federal habeas petition, in
which he claimed that he was incompetent to waive his right to counsel and

       3  The district court also found that Johnson provided “scant information about the
claims he wishes to advance” and has shown no evidence of a mental disease that would
“directly rebut the particular mens rea necessary for capital murder.”
        4 Because “[t]he time during which a properly filed application for State post-

conviction or other collateral review . . . is pending shall not count toward any period of
limitation,” Johnson’s state habeas petition tolled the limitations period another two days
until June 30, 2011, or one year after the state habeas petition was denied by the state habeas
court. 28 U.S.C. § 2244(d)(2); Ex parte Johnson, No. 73,600-01 (Tex. Crim. App. June 30,
2010) (unpublished order).
        5 AEDPA is not a jurisdictional bar, and the statute of limitations can be equitably

tolled in certain extraordinary circumstances. See Holland v. Florida, 560 U.S. 631, 648
(2010); see also Davis v. Johnson, 158 F.3d 806, 810–11 (5th Cir. 1998). A habeas petitioner
is entitled to equitable tolling only if he shows: (1) that he has been pursuing his rights
diligently, and (2) that some extraordinary circumstance existed and prevented timely filing.
Holland, 560 U.S. at 648 (citing Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005).
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should be considered ineligible for the death penalty due to his serious mental
illness. We see no reason why he could not have raised these claims in his
original federal habeas petition.
       Further, these claims are also precluded because they are unexhausted,
as they were not presented to the state court for review. “Before a federal court
can find merit in alleged errors by state courts, a petitioner must have first
provided the state’s highest court with a fair opportunity to [review] . . . a state
prisoner’s conviction or sentence.” Ruiz v. Quarterman, 460 F.3d 638, 642 (5th
Cir. 2006). Here, the state court had no opportunity to review the new claims
prior to Johnson’s filing of his federal petition, even though the “evidence” was
available at that time.
       Johnson argues that the district court was unreasonable in finding fault
for his failure to bring these claims at an earlier date because the IAC claims
are premised on the Supreme Court’s holdings in Martinez v. Ryan, 132 S. Ct.
1309 (2012) and Trevino v. Thaler, 133 S. Ct. 1911 (2013). In Martinez, the
Court carved out an exception to the rule established in Coleman v. Thompson,
501 U.S. 722, 735 n.1 (1991), 6 which “allow[ed] a federal habeas court to find
‘cause,’ thereby excusing a defendant’s procedural default, where [] the claim
of ‘ineffective assistance of trial counsel’ was a ‘substantial’ claim.” Trevino,
133 S. Ct. at 1918 (emphasis added) (citing Martinez, 132 S. Ct. at 1318–19).

       6  In Coleman, the Court stated that “[i]n habeas, if the decision of the last state court
to which the petitioner presented his federal claims fairly appeared to rest primarily on
resolution of those claims, or to be interwoven with those claims, and did not clearly and
expressly rely on an independent and adequate state ground, a federal court may address the
petition.” 501 U.S. at 735. However, the Court then qualified that holding by stating that
“[t]his rule does not apply if the petitioner failed to exhaust state remedies and the court to
which the petitioner would be required to present his claims in order to meet the exhaustion
requirement would now find the claims procedurally barred. In such a case there is a
procedural default for purposes of federal habeas regardless of the decision of the last state
court to which the petitioner actually presented his claims.” Id. at 735 n.1.
                                              15
    Case: 14-70024    Document: 00513104009      Page: 16   Date Filed: 07/02/2015

                                  No. 14-70024
A claim is substantial if “the prisoner [] demonstrate[s] that the claim has some
merit.” Martinez, 132 S. Ct. at 1318.
      However, his reliance on these cases is misplaced. Johnson’s ineffective
assistance of counsel claim has no merit, as his mental illness would likely not
have affected his death penalty sentence. See ShisInday v. Quarterman, 511
F.3d 514, 521 (5th Cir. 2007) (per curiam) (holding that Fifth Circuit precedent
does not exempt a mentally ill petitioner, who is not insane or incompetent,
from execution). Thus, the Martinez exception does not apply to Johnson’s IAC
claims, and Trevino does not apply for the same reason. See Trevino, 133 S.
Ct. at 1918. Therefore, because Johnson’s new IAC claims are time-barred and
procedurally exhausted, reasonable jurists would not debate that the district
court did not abuse its discretion in denying Johnson leave to amend his
petition for federal habeas relief.
   C. Reasonable Jurists Would Not Debate That The Constitution Does Not
      Prohibit The Execution Of Mentally Ill Persons Who Are Not
      Incompetent

      Because this claim was dismissed on the merits, a COA will only issue if
the petitioner demonstrates that reasonable jurists would find the district
court’s assessment of the constitutional claims debatable or wrong. Slack, 529
U.S. at 484.
      Johnson argues that he is “borderline retarded” and that his mental
illness is similar to the mentally retarded persons and children protected from
execution by Atkins v. Virginia, 536 U.S. 304, 320–21 (2002) and Roper v.
Simmons, 543 U.S. 551, 568–69 (2005). Although the Constitution prohibits
the execution of children and persons whose mental illness render them insane
or incompetent, it does not prohibit the execution of petitioners like Johnson.
See Roper, 543 U.S. at 568–69; Atkins, 536 U.S. at 320–21; Ford v. Wainwright,
477 U.S. 399, 410 (1986); see also Barnard v. Collins, 13 F.3d 871, 876 (5th Cir.

                                        16
   Case: 14-70024     Document: 00513104009     Page: 17   Date Filed: 07/02/2015

                                 No. 14-70024
1994) (holding that Ford prevents the execution of an inmate who is unable to
“understand the fact of his impending execution and the reason for it.”).
Further, neither the Supreme Court nor this circuit has extended the
Atkins/Roper protections to the mentally ill whose illness does not reach that
of incompetency or insanity. See Ripkowski v. Thaler, 438 F. App’x 296, 303
(5th Cir. 2011) (per curiam); see also ShisInday, 511 F.3d at 521; In re Neville,
440 F.3d 220, 221 (5th Cir. 2006) (per curiam); In re Woods, 155 F. App’x 132,
136 (5th Cir. 2005) (per curiam). Even so, incompetency-to-be-executed claims
do not become justiciable until an execution becomes imminent, and no
execution date has yet been set for Johnson. See Panetti v. Quarterman, 551
U.S. 930, 947 (2007); Stewart v. Martinez-Villareal, 523 U.S. 637, 644–45
(1998). Thus, reasonable jurists could not debate that the district court was
correct in rejecting Johnson’s argument that mental illness should prohibit his
execution.
   D. Reasonable Jurists Would Not Debate The District Court’s Rejection of
      Johnson’s Allegation of Incompetency To Waive His Rights During The
      Police Interrogations

      Because the district court dismissed this claim on procedural grounds, a
COA will only issue if Johnson shows that jurists of reason would find it
debatable “whether the petition states a valid claim of the denial of a
constitutional right and that jurists of reason would find it debatable whether
the district court was correct in its procedural ruling.” Slack, 529 U.S. at 484.
In the alternative, the district court dismissed this claim on the merits.
Therefore, a COA should issue if the petitioner demonstrates that reasonable
jurists would find the district court's assessment of the constitutional claims
debatable or wrong. Id.
      Johnson argues that although his claims could have been brought on
direct appeal, they were not required to be. We disagree. The state habeas

                                       17
   Case: 14-70024     Document: 00513104009     Page: 18   Date Filed: 07/02/2015

                                 No. 14-70024
court held that Johnson’s claims were procedurally defaulted because they
could have been but were not raised on direct appeal in state court and so may
not now be raised in this post-conviction writ. Because Johnson failed to bring
these claims in state court, he may only bring these claims to the federal
habeas court if he shows the claims meet the standard set out in Strickland v.
Washington, 466 U.S. 668, 687 (1984). However, he has not shown, nor
presented any evidence, that his claims meet the Strickland deficient
performance and prejudice test. See id. He only argues that “this issue could
have been brought on direct appeal but it is not mandatory that it be so,” and
that an exception to the direct appeal rule has been applied in “cases where
the trial record did not include enough information to resolve the issue.” He
presents no argument or evidence that his claims fall into the exception, nor
could he, as the evidence he now advances regarding his mental illness was
available at the time he sought state habeas relief. Thus, pursuant to Texas
law, these claims should have been brought on direct appeal. See Rojas v.
State, 981 S.W.2d 690, 691 (Tex. Crim. App. 1998). As such, reasonable jurists
would not debate that Johnson’s claims are procedurally defaulted.
   E. Reasonable Jurists Would Not Debate The District Court’s Rejection of
      Johnson’s Argument That Changes In Texas Decisional Law Warrant A
      New Trial

      Because this claim was dismissed on its merits, a COA will only issue if
the petitioner demonstrates that reasonable jurists would find the district
court’s assessment of the constitutional claims debatable or wrong. Slack, 529
U.S. at 484.
      When a federal court reviews a petition for habeas relief from a state
prisoner, its inquiry is restricted to “whether the petitioner is in custody in
violation of the Constitution or laws or treaties of the United States.” Coleman,
501 U.S. at 730 (internal quotation marks and citation omitted). It is not “the

                                       18
   Case: 14-70024     Document: 00513104009      Page: 19   Date Filed: 07/02/2015

                                  No. 14-70024
province of a federal habeas court to reexamine state-court determinations on
state-law questions.” Estelle v. McGuire, 502 U.S. 62, 67–68 (1991); see Lewis
v. Jeffers, 497 U.S. 764, 780 (1990) (“[F]ederal habeas corpus relief does not lie
for errors of state law.”); see also Bradshaw v. Richey, 546 U.S. 74, 76 (2005)
(“We have repeatedly held that a state court’s interpretation of state law . . .
binds a federal court sitting in habeas corpus.”).
      Johnson argues that the change in Texas state law in Ruffin v. State, 270
S.W.3d 592 (Tex. Crim. App. 2008), recognizes the right of a criminal defendant
to present evidence of mental illness to rebut his capacity to knowingly kill.
He further argues that jurists of reason could disagree with the district court’s
designation of this argument as one of state law and should have, instead,
characterized it as a question of “constitutional magnitude.” We disagree.
      Firstly, Ruffin is not a change in Texas decisional law; it is merely a
restatement of Jackson v. State, 160 S.W.3d 568, 574 (Tex. Crim. App. 2005).
See Ruffin, 270 S.W.2d at 596 (“We repeat and affirm our holding in Jackson
that ‘relevant evidence may be presented . . . to negate the mens rea element.”)
(internal citation omitted).   However, even if it were a change in Texas
decisional law, it would not be a ground warranting a new trial, as this court
cannot disturb a state court’s interpretation of its own law. See Bradshaw, 546
U.S. at 76. The state habeas court made a determination on the admissibility
of evidence regarding Johnson’s mental state, which is a purely state-law
concern. See Estelle, 502 U.S. at 67–68; see also Phillips v. Cockrell, No. 4:02-
CV-1036-A, 2003 WL 21730650, at *4 (N.D. Tex. July 21, 2003) (stating that
criminal intent is a matter of state law).
      Secondly, Johnson’s argument that the 2008 Ruffin decision opened the
door for the presentation of evidence to rebut his mens rea is in error. Prior to
Ruffin, in 2005, the Texas Court of Criminal Appeals held that testimony of
mental disease or defect may be introduced to rebut the mens rea for the
                                       19
   Case: 14-70024    Document: 00513104009       Page: 20   Date Filed: 07/02/2015

                                  No. 14-70024
charged offense. See Jackson, 160 S.W.3d at 573–74. Jackson was decided
over two years prior to Johnson’s trial, and nothing hindered him from
introducing the evidence of mental impairment he now claims he should be
allowed to present. As such, the district court did not err in rejecting this
claim, and reasonable jurists would not debate this rejection.
                           III.    CONCLUSION
      For the reasons stated herein, we AFFIRM the denial of Johnson’s
federal habeas relief on his Fifth Amendment claim and DENY his application
for a COA.

                                      20


                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT

                             No. 15-2127

VALERIE DONNELLY,

                Plaintiff - Appellant,

          v.

C. MCFERRIN SMITH, III,

                Defendant - Appellee.

Appeal from the United States District Court for the District of
South Carolina, at Anderson.      Bruce H. Hendricks, District
Judge. (8:15-cv-00737-BHH)

Submitted:   November 19, 2015             Decided:   November 23, 2015

Before NIEMEYER, KING, and HARRIS, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Valerie Donnelly, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       Valerie      Donnelly   appeals       the   district    court’s     order

accepting     the     recommendation     of    the   magistrate    judge     and

dismissing her civil complaint without prejudice pursuant to 28

U.S.C. § 1915(e)(2)(B) (2012).           We have reviewed the record and

find   no   reversible     error.      Accordingly,     we    affirm   for   the

reasons stated by the district court.                Donnelly v. Smith, No.

8:15-cv-00737-BHH (D.S.C. Aug. 26, 2015).             We dispense with oral

argument because the facts and legal contentions are adequately

presented in the materials before this court and argument would

not aid the decisional process.

                                                                       AFFIRMED

                                         2


70 So.3d 599 (2011)
GARTRELL
v.
STATE.
No. 4D09-3642.
District Court of Appeal of Florida, Fourth District.
October 14, 2011.

DECISION WITHOUT PUBLISHED OPINION
Affirmed.


                                UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT

                                No. 08-5059

UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

JESUS GARCIA-PENA,

                  Defendant - Appellant.

Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. John Preston Bailey,
Chief District Judge. (3:08-cr-00035-JPB-DJJ-1)

Submitted:    August 18, 2009                 Decided:   August 28, 2009

Before NIEMEYER, KING, and AGEE, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Brendan S. Leary, Assistant Federal Public Defender, Wheeling,
West Virginia, for Appellant. Sharon L. Potter, United States
Attorney, Paul T. Camilletti, Assistant United States Attorney,
Martinsburg, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Jesus      Garcia-Pena          pleaded      guilty     to     illegal   reentry

after    deportation      following          a       conviction      for    an    aggravated

felony,    in    violation       of    8     U.S.C.      § 1326(a),        (b)(2)    (2006).

Garcia-Pena was sentenced to forty-six months of imprisonment,

followed by three years of supervised release, and now appeals.

His attorney has filed a brief pursuant to Anders v. California,

386 U.S. 738 (1967), raising one issue but stating that there

are no meritorious issues for appeal.                      Garcia-Pena was informed

of his right to file a pro se supplemental brief but did not do

so.    We affirm.

            In    the    Anders       brief,         counsel    questions        whether    the

district court erred in accepting Garcia-Pena’s guilty plea as

knowing and voluntary.            Because Garcia-Pena did not move in the

district court to withdraw his guilty plea, any error in the

Fed. R. Crim. P. 11 hearing is reviewed for plain error.                                    See

United States v. Martinez, 277 F.3d 517, 525 (4th Cir. 2002).

Furthermore, there is a strong presumption that a defendant’s

guilty    plea    is    binding       and    voluntary         if   he   has     received    an

adequate Fed. R. Crim. P. 11 hearing.                     United States v. Puckett,

61 F.3d 1092, 1099 (4th Cir. 1995); see Blackledge v. Allison,

431 U.S. 63, 74 (1977) (finding that statements made during a

plea    hearing    “carry    a    strong         presumption        of     verity”).        Our

review of the record discloses that the district court fully

                                                 2
complied    with     Rule    11.    We    conclude,      therefore,      that     the

district court did not err in accepting Garcia-Pena’s guilty

plea.

            We have examined the entire record in accordance with

the requirements of Anders and have found no meritorious issues

for   appeal.      We   therefore   affirm      the    judgment.        This    court

requires that counsel inform Garcia-Pena, in writing, of the

right to petition the Supreme Court of the United States for

further    review.      If    Garcia-Pena    requests       that   a   petition    be

filed,    but   counsel      believes    that   such    a    petition    would     be

frivolous, then counsel may move in this court for leave to

withdraw from representation.            Counsel’s motion must state that

a copy thereof was served on Garcia-Pena.               We dispense with oral

argument because the facts and legal contentions are adequately

presented in the materials before the court and argument would

not aid the decisional process.

                                                                          AFFIRMED

                                         3


      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

THE STATE OF WASHINGTON,       )                  No. 76242-7-1 consolidated with
                               )                  No. 76243-5
                Respondent,    )                  No. 76244-3                                    U)O.
                                                                                C-2
                               )                  No. 76245-1                            c:a       7i
                                                                                —1 —4
                v.             )                                                                 111
                               )                                                         —.4     0-r
                                                                                -II  -11
                                                                                N.)
ABIGAIL C. BROCKWAY, MICHAEL E.)                   DIVISION ONE                          1,0           -r11—
                                                                                Tw
LAPOINTE, PATRICK A. MAZZA,and )                                                          Sa•
                                                                                rna

JACKIE W. MINCHEW,             )                  UNPUBLISHED OPINION                             12:
                                                                                7
                               )                                                                  cltel
                                                                                -4ti
                Appellants.    )                  FILED: May 29,2018                       tt3        C
                               )
          MANN,A.C.J. —Abigail Brockway, Michael LaPointe, Jackie Minchew, and

Patrick Mazza appeal their misdemeanor convictions for second degree trespass

after they entered a railroad yard to protest coal and oil trains and raise

awareness of climate change. The defendants argue on appeal that the trial

court erred in failing to instruct the jury on their claim for a necessity defense and

that the court violated their constitutional rights to present a defense. Because

the trial court did not abuse its discretion in refusing to provide the requested

instruction and did not violate the defendants' rights to present a defense, we

affirm.
No. 76242-7-1/2

                                      FACTS

                                   The Trespass

       Early on September 2, 2014, Brockway, LaPointe, Minchew, Mazza, and

Elizabeth Spoerri entered Burlington Northern Santa Fe's Delta Yard, a railroad

yard in Everett, without permission. Inside, they erected a large metal tripod over

a grade crossing and chained themselves to it. Brockway sat at the top of the

tripod, twenty feet off the ground, and the other four sat on the ground in chairs

chained to the tripod's legs. They blocked the tracks to protest the coal and oil

trains and raise awareness for railroad workers' safety and climate change. They

were peaceful and civil. Eventually, the tripod was dismantled and they were

arrested.

       The State charged the five defendants with one count of obstructing or

delaying a train in violation of RCW 81.48.020 and one count of second degree

trespass in violation of RCW 9A.52.080, both misdemeanor offenses. The cases

were consolidated for trial in Snohomish County District Court.

       Before trial, the defendants requested the trial court instruct the jury on the

affirmative defense of necessity and for leave to call experts in support of the

affirmative defense. The defendant's motion recognized the burden for asserting

a necessity defense as recognized in Washington Pattern Jury Instruction

(WP1C) 18.02:

       Necessity is a defense to a charge of (fill in crime) if

       (1)the defendant reasonably believed the commission of the crime
          was necessary to avoid or minimize a harm; and

                                           -2-
No. 76242-7-1/3

         (2) harm sought to be avoided was greater than the harm
             resulting from a violation of the law; and the

          (3)the threatened harm was not brought about by the
             defendant; and

          (4) no reasonable legal alternative existed.

             The defendant has the burden of proving this defense by a
      preponderance of the evidence. Preponderance of the evidence
      means that you must be persuaded, considering all the evidence in
      the case, that it is more probably true than not true. If you find that
      the defendant has established this defense, it will be your duty to
      return a verdict of not guilty[as to this charge].

11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL

18.02, at 292(4th ed. 2016)(WP1C).

       In a lengthy written decision, the trial court denied the defendants' motion

concluding that the necessity defense was not available as a matter of law. The

next day, however, the trial court reconsidered its decision and allowed the

defendants to put on expert testimony in support of the necessity defense.

                  Trial Testimony Supporting a Necessity Defense

       The defendants offered evidence at trial supporting the defense. Mazza

testified first. He testified that he had worked on finding solutions to climate

change since 1998. He has written books and articles, worked on legislative

campaigns and bills to reduce carbon in the atmosphere, and created programs

for the adoption of alternative fuels. Despite his efforts, he believed that the

political response to climate change was inadequate. In his opinion, the only way

forward was to use civil disobedience to "start reviving our democracy" to create

"a political response equal to the challenge of climate change." His goal was to

                                           -3-
No. 76242-7-1/4

inspire citizens to "walk into their[C]ongressman's office and say,'We are going

to stay here until we hear from—we want to talk to you, Congressman, to find out

what are you going to do about this.'" He admitted that legal protests were also

effective.

       Minchew testified that he had met with Congresswomen and

Congressmen about climate change, but was disappointed by their responses.

He had run for elected office to advance his climate-centric positions, but was

unsuccessful. He believed that his trespass was "absolutely" necessary.

       LaPointe testified that he had been politically active since he was 18 years

old; he had organized factory workers, supported unions, and participated in

demonstrations for years. To fight climate change, he demonstrated, wrote

letters, contacted elected officials, attended political meetings, and spoke with

other citizens. He was currently running for political office on a climate-centric

campaign and believed that he could combat climate change if he was elected.

He also testified that the coffeehouse he owned served as a gathering space for

people to discuss issues, and organize themselves to combat climate change.

LaPointe "felt very convinced that[trespassing] was necessary."

       Spoerri described her history of activism with climate change. After

growing concerned that too few people knew about climate change, she decided

to engage in civil disobedience in order to "let people know that this state is on

the brink of becoming a carbon corridor."

       Brockway testified that she had written letters to her elected

representatives, testified before the Department of Ecology, and collected

                                           -4-
No. 76242-7-1/5

signatures on petitions for various climate-action movements. She testified that

even while she was at the top of the tripod in the Delta Yard she was "petitioning

the government.... for a moratorium on fossil fuel projects." Her goal in

trespassing was "to have a fossil fuel moratorium—to have [Governor Inslee]

reject all new fossil fuel structured projects" and to protest oil and coal trains.

While she believed trespassing was necessary, she also planned to continue

attending public hearings and writing letters supporting her positions.

       Erik De Place, the policy director at the Sightline Institute, a research

center based in Seattle, testified about the dangers of transporting fossil fuels by

rail. He also testified that the "traditional means in raising awareness about this

Issue" were "not very effective" and that the government's response was

"woefully lacking." DePlace admitted, however, that he had no scientific or

statistical evidence that illegal protests are more effective at getting the word out

about climate change than legal protests.

       Dr. Richard Gammon,a retired professor of chemistry and oceanography

from the University of Washington, also testified. Dr. Gammon explained how

fossil fuel emissions affect the climate. In his view, international climate

agreements and action at the federal, state, and local levels are needed to

address climate change. He also gave examples of what people can do to raise

awareness about climate change: institute a carbon tax, make homes energy

efficient, buy carbon offsets, drive and fly less, and inform other people. He

admitted that he had "no scientific data" about whether illegal protests are more

effective than legal ones in combating climate change.

                                            -5-
No. 76242-7-1/6

          Dr. Frank James, a physician and a health officer for San Juan County,

testified about the dangers oil trains pose to public health. He cited a scientific

study that showed illegal action was more effective than legal action in changing

policy.

                                 District Court's Ruling

          At the conclusion of testimony, the defendants asked that the trial court

Instruct the jury on the affirmative defense of necessity based on WPIC 18.02.

The trial court found that the defendants had demonstrated the first three

elements of the necessity defense:(1)that they reasonably believed their actions

were necessary to avoid or minimize a harm,(2)that the harm they sought to

avoid was greater than the harm resulting from their trespass, and (3)that the

threatened harm was not brought on by the defendants; indeed, the trial court

noted that the "defendants have been far from the problem and more about the

solution to the problems facing the planet." The trial court decided not to give the

requested instruction, however, because the defendants had failed to establish

the fourth element—that there was no reasonable legal alternative to their

actions:

          The evidence presented from the defendants fails to establish that
          there was no reasonable legal alternative to their acts of September
          2 and no objective reasonable trier of fact could find that no
          reasonable legal alternative existed.

          Therefore the court finds that WPIC 18.02 will not be given to the
          jury. The necessity defense is not available to the defendants in
          this case.

                                             -6-
No. 76242-7-1/7

       The jury acquitted all of the defendants of obstructing a train, but it found

them all guilty of trespass.

       Brockway, LaPointe, Mazza, and Minchew appealed the district court's

ruling to the superior court. The superior court affirmed the ruling. It ruled that:

       1. The trial court, in its role as evidentiary gatekeeper, did not
       abuse its discretion in declining to instruct the jury on the necessity
       defense via the defendants' proposed jury instruction WPIC 18.02.

       2. This court agrees with the defendants' position that there is no
       statutory or legal bar in presenting such a defense to a criminal
       trespass charge.

       3. However, the trial court was correct in evaluating the totality of
       the evidence, including the volume of expert testimony, and
       concluding that there was insufficient evidence of the fourth prong
       of WPIC 18.02 to allow the jury to consider the defense. The fourth
       prong of WPIC 18.02 requires a defendant to prove by a
       preponderance of the evidence that "no reasonable legal alternative
       existed?

       Brockway, LaPointe, Mazza, and Minchew (collectively Brockway) moved

for discretionary review, which we granted.'

                                        ANALYSIS

                                   Necessity Defense

       Brockway, LaPointe, Mazza, and Minchew argue first that the trial court

erred by refusing to instruct the jury on the affirmative defense of necessity. We

disagree.

       Each side in a case is entitled to instructions that support its theory of the

case, but only if evidence supports the theory. State v. Benn, 120 Wn.2d 631,

       I See Ruling on Discretionary Review of April 11, 2017.
                                               -7-
No. 76242-7-1/8

654,845 P.2d 289. A trial court's refusal to give a jury instruction, if based on a

factual determination, is reviewed for abuse of discretion. State v. Read, 147

Wn.2d 238, 243, 53 P.3d 26(2002). A court abuses its discretion when its

decision is based on untenable grounds or for untenable reasons. The appellant

bears the burden to demonstrate the trial court abused its discretion. State v.

Williams, 137 Wn. App. 736, 743, 154 P.3d 322(2007).

       Washington recognizes the common law defense of necessity. A

necessity defense is "available when circumstances cause the accused to take

unlawful action in order to avoid a greater injury." State v. Jeffrey, 77 Wn. APP.

222, 224,889 P.2d 956(1995). The necessity defense is not available, however,

where "the compelling circumstances have been brought about by the accused

or where a legal alternative is available to the accused." State v. Diana, 24 Wn.

App. 908, 912-13, 604 P.2d 1312(1979).

       To establish the necessity defense,"the defendant must prove by a

preponderance of the evidence that(1) he or she reasonably believed the

commission of the crime was necessary to avoid or minimize a harm,(2)the

harm sought to be avoided was greater than the harm resulting from a violation

of the law, and (3) no legal alternative existed." State v. Gallegos,73 Wn. App.

644,651, 871 P.2d 621 (1994)(citing Diana, 24 Wn. App. at 916). The final

element at issue in this appeal is whether a legal alternative existed.

1.     Availability of Defense in Civil Disobedience Actions

       As a preliminary matter, the State argues that under State v. Aver, 109

Wn.2d 303, 745 P.2d 479(1987), the necessity defense is not available to a

                                           -8-
No. 76242-7-1/9

defendant engaged in civil disobedience, including attempts to block a train in

protest, as a matter of law. We disagree.

       In Aver, our Supreme Court held that RCW 81.48.020, a statute

prohibiting a person from willfully obstructing a train lawfully operated," was not

unconstitutionally vague and that the trial court did not abuse its discretion by

refusing to give the necessity defense. 109 Wn.2d at 308. In Aver, the

defendants obstructed a train that they believed was carrying nuclear warheads

to a naval submarine base. 109 Wn.2d at 305. On appeal, they argued that

RCW 81.48.020 was unconstitutionally vague. They also argued that the trial

court abused its discretion by refusing to give the necessity defense. Aver, 109

Wn.2d at 311-12. The Supreme Court upheld RCW 81.48.020 and found that

the "necessity defense[was] not supported by the record in this case." Aver, 109

Wn.2d at 311.

       Aver does not support the State's position. It does not stand for the

proposition that a defendant cannot request the necessity defense when blocking

a train or that, as a matter of law, the necessity defense is unavailable to

defendants who were engaged in civil disobedience. Aver 109 Wn.2d at 311-12.

The defense may be available where the evidence supports all necessary

elements.

2.     Sufficiency of Evidence to Support Instruction

       In this case, however, we agree with the trial court that the defendants

failed to demonstrate the final element of the necessity defense—that no

reasonable legal alternatives existed. The defendants' own testimony

                                           -9-
No. 76242-7-1/10

acknowledged multiple legal alternatives available to support their efforts to draw

attention to the global climate change and the impacts of rail shipping of fossil

fuels.2 Indeed, defendant's counsel conceded during argument that"one can go

ad infinitum on reasonable alternatives." The testimony offered by defendants

recognized that there is a legal alternative to the illegal action: using the

democratic process to effect change. Because the defendants failed to offer

sufficient evidence of no reasonable legal alternative, the trial court did not abuse

its discretion in refusing to provide the instruction. State v. Werner, 170 Wn.2d

333, 336-37 241 P.3d 410(2010).

       The defendants argue that the trial court adopted an unduly limited

construction of the phrase "reasonable legal alternative" and that "reasonable"

must mean more than available, but actually effective. The defendants argue

that State v. Parker's interpretation of the phrase "no reasonable alternative"

supports their position. 127 Wn. App. 352, 355, 110 P.3d 1152(2005). In

Parker, Division Two of this court affirmed the trial court's refusal to give the

necessity defense in a trial for the unlawful possession of a firearm where the

defendant failed "to show 'that he had actually tried the alternative or had no time

to try it, or that a history of futile attempts revealed the illusionary benefits of the

alternative.'" Parker, 127 Wn. App. at 355 (quoting U.S. v. Hamer,802 F.2d 115,

118 (1986)).

         2 See,Lg., Clerk's Papers(CP)at 555-56(Brockway testifying that her goal in
trespassing was to have Governor Inslee impose a fossil fuel moratorium and reject all new fossil
fuel projects).
                                                -10-
No. 76242-7-1/11

       Even if this statement from Parker is correct, it does not support the

defendants' argument. Here, like Parker, while the defendants were frustrated

with the political response to climate change, they all believed that the ultimate

solution was political and were intent on continuing political activities. Here, after

listening to the testimony, the trial court found that "[t]he evidence presented from

the defendants fails to establish that there was no reasonable legal alternative to

their acts of September 2 and no objective reasonable trier of fact could find that

no reasonable legal alternative existed."

       In conclusion, we hold that while the necessity defense may be available

In actions involving civil disobedience, because the defendants here failed to

demonstrate that there were no reasonable legal means available other than an

illegal trespass, the court did not abuse its discretion by refusing to instruct the

jury on the affirmative defense of necessity.

                             Right to Present a Defense

       The defendants next argue that their right to present a defense was

violated because the trial judge allowed the defendants to present evidence of

the necessity defense but then refused to instruct the jury on the defense. We

disagree.

       The right to a fair trial includes the right to present a defense. The Sixth

and Fourteenth Amendments of the United States Constitution, and article I,

section 21 of the Washington Constitution, guarantee the right to trial by jury and

to defend against the State's allegations. These guarantees provide criminal

defendants a meaningful opportunity to present a complete defense, a

                                            -11-
No. 76242-7-1/12

fundamental element of due process. Chambers v. Mississippi, 410 U.S. 284,

294,93 S. Ct. 1038, 35 L. Ed. 2d 297(1973); State v. Burn,87 Wn.2d 175, 181,

550 P.2d 507(1976). "We review a claim of a denial of Sixth Amendment rights

de novo." State v. Jones, 168 Wn.2d 713, 719, 230 P.3d 576(2010).

       The trial court did not deny Brockway her right to present a defense. A

defendant is only entitled to an instruction on the defendant's theory of the case if

there is evidence to support that theory. Werner, 170 Wn.2d at 336-37.

Although the defendants presented evidence supporting the first three elements

of the necessity defense, they failed to present sufficient evidence to

demonstrate that there was no reasonable legal alternative to accomplish their

goal. Where an affirmative defense, including necessity, consists of several

elements and the testimony supporting one element of the defense is lacking,

there is no right to present the defense. U.S. v. Bailey, 444 U.S. 394, 415-16,

100 S. Ct. 624,62 L. Ed. 2d 575(1980). Accordingly, refusing to give the

defense did not violate Brockway's right to present a defense.

       We affirm.

                                                  S     ate   4se.ir.

WE CONCUR:

       eaxiI.                                     3ecke IR4.
                                           -12-


                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                November 28, 2006

                                                         Charles R. Fulbruge III
                                                                 Clerk
                             No. 05-51158
                           Summary Calendar

FREDDIE EDWARDS, ET AL.,

                                     Plaintiffs,

FREDDIE EDWARDS,

                                     Plaintiff-Appellant,

versus

DENISE DeSHIELDS, Medical Director; WILLIAM CLARYCE,
Health Administrator; SHERI TALLEY, Doctor,

                                     Defendants-Appellees.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                        USDC No. 4:05-CV-51
                       --------------------

Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Freddie Robin Edwards, Texas inmate # 658647, seeks to

proceed in forma pauperis (IFP) on appeal from the district

court’s sua sponte dismissal of his civil rights complaint,

without prejudice, for failure exhaust administrative remedies,

under 42 U.S.C. § 1997e(a).    Edwards contends that the two Step 1

grievances and one Step 2 grievance appeal he filed were

     *
       Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
                             No. 05-51158
                                  -2-

sufficient to exhaust his claims that the defendants were

deliberately indifferent to his serious medical needs.     Edwards

alleged in his complaint that prison officials had refused to

replace his work boots, which were too small and were causing

pain and swelling, and that they instead gave him Ibuprofen,

which caused several serious side effects.

     By moving for leave to proceed IFP, Edwards is challenging

the district court’s certification that his appeal was not taken

in good faith.     See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir.

1997); 28 U.S.C. § 1915(a)(3); FED. R. APP. P. 24(a)(3).   We

review de novo a dismissal for failure to exhaust under

§ 1997e(a).   Days v. Johnson, 322 F.3d 863, 866 (5th Cir. 2003).

Texas prisoners must exhaust a “two-step formal grievance

process.”   See Johnson v. Johnson, 385 F.3d 503, 515 (5th Cir.

2004).   The district court concluded that Edwards had not

exhausted his claims because his initial Step 1 grievance raised

only a claim about the work boots whereas his Step 2 appeal

instead raised the matter of the side effects of the Ibuprofen.

A review of the Step 2 appeal, however, reflects that Edwards

raised the work-boots issue as well, thus exhausting that claim.

     Edwards also filed a second Step 1 “emergency” grievance,

explicitly alleging the Ibuprofen side effects, although not

directly linking these adverse reactions to the medication.     The

district court determined that this “grievance was never even

properly filed.”    Ordinarily, “‘dismissal under § 1997e is made
                           No. 05-51158
                                -3-

on the pleadings without proof.’”   Days, 322 F.3d at 866

(citation omitted).   Edwards asserted in his complaint that he

did properly file the second Step 1 “emergency” grievance,

explaining that the grievance was not forwarded after he was

transferred to another prison and that prison officials simply

failed to respond to it.   Because “[a] prisoner’s administrative

remedies are deemed exhausted when a valid grievance has been

filed and the state’s time for responding has expired,” Powe v.

Ennis, 177 F.3d 393, 394 (5th Cir. 1999), Edwards’s allegations

regarding exhaustion were sufficient to avert sua sponte

dismissal with respect to his side-effects claim as well.

     For the reasons cited above, IT IS ORDERED that Edwards’s

motion to proceed IFP is GRANTED.   The district court’s

certification decision is VACATED, and the case is REMANDED for

further proceedings not inconsistent with this opinion.     We note

that this opinion “does not preclude a revisiting of [the

exhaustion] issue based upon a response by the defendants.”     See

Days, 322 F.3d at 868.

     Edwards’s motion for appointment of counsel is DENIED.


                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                                                               June 6, 2003
                       FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                       _____________________                     Clerk

                            No. 02-21173
                       _____________________

S J BAYTOWN PROPERTIES LTD

                                    Plaintiff - Appellant

          v.

LEHMAN BROTHERS HOLDINGS INC doing business as Lehman Capital, a
Division of Lehman Brothers Holdings Inc

                                    Defendant - Appellee

-----------------------

S J BAYTOWN PROPERTIES LTD; MAYA PROPERTIES LTD

                                    Plaintiffs - Appellants

          v.

LEHMAN BROTHERS HOLDINGS INC doing business as Lehman Capital, a
Division of Lehman Brothers Holdings Inc; BARNET B SKELTON, JR

                                    Defendants - Appellees

-----------------------

S J BAYTOWN PROPERTIES LTD; PERSICO INC; MEMORIAL NW PAVILION LTD

                                    Plaintiffs - Appellants

          v.

LEHMAN BROTHERS HOLDINGS INC doing business as Lehman Capital, a
Division of Lehman Brothers Holdings Inc; BARNET B SKELTON JR

                                    Defendants - Appellees
_________________________________________________________________

           Appeal from the United States District Court
                for the Southern District of Texas
                         No. H-99-CV-2861
_________________________________________________________________

Before KING, Chief Judge, and HIGGINBOTHAM and STEWART, Circuit
Judges.

PER CURIAM:*

     AFFIRMED.   See 5TH CIR. R. 47.6.

     *
      Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

                                  2


                                                                              FILED
                           NOT FOR PUBLICATION                                MAY 29 2014

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS

                            FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                        No. 12-50227

              Plaintiff - Appellee,              D.C. No. 3:10-cr-05155-LAB-1

  v.
                                                 MEMORANDUM*
ERIC ANTHONY LOPEZ,

              Defendant - Appellant.

                   Appeal from the United States District Court
                     for the Southern District of California
                    Larry A. Burns, District Judge, Presiding

                        Argued and Submitted April 8, 2014
                               Pasadena, California

Before: THOMAS, M. SMITH, and CHRISTEN, Circuit Judges.

       Eric Anthony Lopez (“Lopez”) appeals from his jury conviction for

knowingly causing to be delivered a communication containing a threat to injure,

in violation of 18 U.S.C. § 876(c). We have jurisdiction pursuant to 28 U.S.C. §

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
1291, and we affirm. Because the parties are familiar with the history of the case,

we will not recount it here.

                                           I

      Lopez contends that the district court erroneously denied his pretrial motion

to dismiss in which he argued that the indictment was fatally deficient because the

indictment failed to allege specific intent. We review the sufficiency of an

indictment de novo. United States v. Awad, 551 F.3d 930, 935 (9th Cir. 2009).

      “An indictment is sufficient if it contains the elements of the charged crime

in adequate detail to inform the defendant of the charge and to enable him to plead

double jeopardy.” Awad, 551 F.3d at 935 (internal quotation marks omitted).

“[A]n indictment’s complete failure to recite an essential element of the charged

offense is . . . a fatal flaw requiring dismissal of the indictment.” United States v.

Du Bo, 186 F.3d 1177, 1179 (9th Cir. 1999). Whereas, “challenges to minor or

technical deficiencies, even where the errors are related to an element of the

offense charged and even where the challenges are timely, are amenable to

harmless error review.” Id. at 1180. “The test for sufficiency of the indictment is

not whether it could have been framed in a more satisfactory manner, but whether

it conforms to minimal constitutional standards.” Awad, 551 F.3d at 935.

                                           2
      Under the statutory text of § 876(c), “[t]he two elements of the crime of

mailing a threat to injure are that (1) the defendant’s letter contained a threat to

injure and (2) that the defendant knowingly caused the threatening letter to be

deposited in the mail.” United States v. De La Fuente, 353 F.3d 766, 770 (9th Cir.

2003). The indictment tracked this statutory language.

      In United States v. Twine, 853 F.2d 676, 679–81 (9th Cir. 1988), we

determined that § 876 requires that the government also prove the specific intent to

threaten. See also United States v. King, 122 F.3d 808, 809 (9th Cir. 1997). Thus,

“[u]nder § 876, the government must prove both that the letter contained a threat

and that defendant had a specific intent to threaten.” Id. at 811 n.2. Given Twine,

we must determine whether the indictment was adequately pled and, if not,

whether the language used in the indictment was a “technical flaw subject to

harmless error analysis.” Du Bo, 186 F.3d at 1179. In conducting our review, we

must be mindful that “an indictment should be read in its entirety, construed

according to common sense, and interpreted to include facts which are necessarily

implied.” United States v. Berger, 473 F.3d 1080, 1103 (9th Cir. 2007) (internal

quotation marks omitted). Thus, in addition to examining the plain words of the

indictment, we must determine whether it alleged facts from which a subjective

intent to threaten could be necessarily implied.

                                           3
      The indictment tracked the statutory language and provided that Lopez’s

communication contained a threat to injure Judge Gonzalez “by dispersing

Anthrax, a biological weapon.” This language necessarily implies that Lopez

intended to threaten Judge Gonzalez. It necessarily implies that Lopez’s act was

not “because of mistake, inadvertence, or other innocent reason.” Twine, 853 F.2d

at 680; accord King, 122 F.3d at 811 (Farris, J., concurring) (“the specific intent

requirement of section 876 includes those levels of culpability greater than

negligence and recklessness, i.e. knowledge and purpose”). Because specific intent

could be implied by the language, we then determine whether or not the deficiency

in failing to plead specific intent directly was harmless. The district court properly

instructed the jury on both specific intent and “true threat” in addition to the two

statutory elements, and the record as a whole, particularly the letter itself, reveals

Lopez’s specific intent to threaten. As the district court correctly pointed out at

trial, there was no possibility that the defense was misled by the wording of the

indictment as to what criminal acts were charged. Therefore, we conclude that any

error in the wording of the indictment was harmless.

                                           4
                                           II

      The district court did not constructively amend the indictment or allow a

fatal variance, as Lopez claims. A constructive amendment of an indictment

occurs “where (1) there is a complex of facts presented at trial distinctly different

from those set forth in the charging instrument, or (2) the crime charged in the

indictment was substantially altered at trial, so that it was impossible to know

whether the grand jury would have indicted for the crime actually proved.” United

States v. Adamson, 291 F.3d 606, 615 (9th Cir. 2002) (internal alterations and

quotation marks omitted).

      Here, in denying defense counsel’s objections, the district court

contemplated that anthrax was not the government’s only threat theory. However,

aside from the government’s request that the jury read the entire letter, the

evidence presented at trial overwhelmingly focused on anthrax. Thus, there was

not a complex of facts presented at trial that was distinctly different from those set

forth in the indictment; the evidence at trial proved the same crime alleged in the

indictment. Additionally, because the jury primarily heard testimony and

arguments about anthrax, and because anthrax is the only specific threat in the

letter, the crime charged in the indictment was not substantially altered at trial; the

grand jury indicted for the crime actually proved. Moreover, the only evidence

                                           5
presented of the threat to injure was the letter, and although the letter could be

interpreted to contain additional threats, the government did not present evidence

of any threats outside the letter.

      Likewise, there was no fatal variance. “A variance occurs where the facts

presented at trial materially differ from those alleged in the indictment.” United

States v. Doss, 630 F.3d 1181, 1191 (9th Cir. 2011). The evidence presented at

trial proved the same facts alleged in the indictment. Therefore, it did not affect

Lopez’s substantial rights. Lopez argues that the divergence between the

indictment and jury instructions misled him and obstructed his defense at trial

because he focused on whether anthrax could be considered a true threat.

However, his defense directly related to the government’s case where the

government only presented evidence as to anthrax.

      For these reasons, we conclude that the indictment was not constructively

amended, nor did the court fatally vary from it in fashioning the instructions.

                                          III

      The district court properly concluded that there was sufficient evidence to

prove that the letter was delivered within the statute of limitations. The district

court reasoned that the statute commenced running when the letter was delivered to

the intended address, not when it was placed in the mail. The the text of § 876(c)

                                           6
allows for either “knowingly so deposits” or “knowingly causes to be delivered.”

The indictment here charged Lopez with the latter, and therefore the crime here

was not complete until delivery. The jury made a special finding that the letter was

delivered on or after December 28, 2005, placing the crime within the applicable

statute of limitations. The finding is supported by the record.

      AFFIRMED.

                                          7


647 So.2d 959 (1994)
Michelle M. KELSON, former wife, Appellant,
v.
Russell M. KELSON, former husband, Appellee.
No. 93-3003.
District Court of Appeal of Florida, First District.
December 7, 1994.
Rehearing Denied January 26, 1995.
*960 Gordon E. Welch of The Center for Family Law, P.A., Pensacola, for appellant.
Kathryn L. Runco of Michael J. Griffith, P.A., Pensacola, for appellee.
DAVIS, Judge.
Michelle Kelson, former wife, appeals an order denying her motion to modify or amend a final judgment of dissolution. Because we conclude that the trial court did not err in denying appellant's motion to modify the final judgment of dissolution which incorporated the parties' marital settlement agreement, we affirm.
The final judgment incorporated a marital settlement agreement between Michelle and Russell Kelson which was drafted by Mrs. Kelson's attorney. One of the terms of the property settlement portion of the marital settlement agreement was a formula for the division of the former husband's anticipated retired pay from the United States Marine Corp. After the entry of the final judgment of dissolution but before the former husband achieved twenty years of service and eligibility for retired pay, Congress enacted, and the former husband elected, the Voluntary Separation Incentive Program (VSI).
Russell Kelson left the Marine Corps after approximately sixteen years of service, receiving an annual VSI payment for a specific term of years rather than retired pay in monthly increments for life. Michelle Kelson argues that this is the functional equivalent of the retired pay she is entitled to share under the parties' agreement and that the failure of the parties to anticipate the possibility of Voluntary Separation Incentive payments in lieu of retirement benefits was a mutual mistake of fact resulting from the fact that the program simply did not exist when the marital settlement agreement was drafted. Russell Kelson responds that Voluntary Separation Incentive payments are distinctly different from retired benefits and that the trial court lacked jurisdiction to modify the property settlement agreed to between the parties. The trial court held that Voluntary Separation Incentive Benefits were not the same thing as retired/retainer pay as defined by federal law and that the court lacked jurisdiction to modify the property settlement agreement to go beyond the agreed upon division of retired/retainer pay. We affirm.
The starting point for any analysis must be the terms of the marital settlement agreement entered into between the parties. Such an agreement, "entered into voluntarily after full disclosure and then ratified by the trial court, is a contract subject to interpretation like any other contract." Petty v. Petty, 548 So.2d 793, 796 (Fla. 1st DCA 1989). This agreement purported to divide Major Kelson's non-vested, non-matured right to military retired pay. Under Florida law, a court in a dissolution proceeding may equitably divide the non-vested, non-matured right of a spouse to military retired pay. DeLoach v. DeLoach, 590 So.2d 956, 959 (Fla. 1st DCA 1992). When the trial court is making an equitable distribution of a non-vested pension plan, it must take into account the effect on the value of those pension rights of the possibility that some event such as death or termination of employment would destroy the pension rights before they mature. Id. at 962. We must presume that this marital settlement agreement, drafted by Mrs. Kelson's attorney, also accounted for the possibility that some event such as death or termination of employment would destroy the pension rights before they could mature. Cf. Abernethy v. Fishkin, 638 So.2d 160, 163 (Fla. 5th DCA 1994) ("husband specifically agreed that he would take no action which would defeat the wife's right to receive 25% of his retirement pay and that, if necessary, he would self-implement the agreement's payment provisions"). The present agreement does not indicate any intent by the parties to provide for any contingencies other than division of vested and matured retired pay upon the event of Major Kelson obtaining the right to such payments.
Mrs. Kelson argues that the fact that the statute creating Voluntary Separation Incentive *961 benefits was not in existence at the time the agreement was drafted, coupled with the similarities between VSI benefits and retired pay (such as the method of calculating the amount) permit an interpretation that the term "retired/retainer pay" as used in the agreement encompasses the Voluntary Separation Incentive benefits. The Fifth District Court of Appeal reached a conclusion supporting that result in dictum[1] in Abernethy v. Fishkin, 638 So.2d 160 (Fla. 5th DCA 1994). With all due respect to our sister court, we cannot agree that VSI benefits may be considered retired pay for these purposes.
In McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981), the United States Supreme Court reversed a California decision dividing military nondisability retired pay as community property. The Court held that federal law preempts state law with regard to the divisibility of such military benefits in dissolution proceedings. Congress promptly enacted the Uniformed Services Former Spouses' Protection Act, 10 U.S.C. § 1408. In light of McCarty, Congress adopted provisions of USFSPA to provide specifically limited authority for state courts to make awards of the expressly described retirement benefits. However, it is clear that, to the extent that a benefit falls outside the specifications of the USFSPA, McCarty is still valid law. The United States Supreme Court said so expressly in Mansell v. Mansell, 490 U.S. 581, 109 S.Ct. 2023, 104 L.Ed.2d 675 (1989) (state court has no authority to treat military retired pay as community property except to the extent permitted under the "plain and precise language" of the USFSPA). The USFSPA permits the division in dissolution proceedings of the "disposable retired or retainer pay" of a member of the military services. It does not permit division of retired pay to the extent that the benefits are reduced by non-taxable disability benefits, because that is specifically excluded from the definition of "disposable retired or retainer pay." Id. at 594-95, 109 S.Ct. at 2031-32; see also McMahan v. McMahan, 567 So.2d 976, 979 (Fla. 1st DCA 1990) (Congressional grant of authority to the states to equitably divide military retired pay was explicitly limited to the plain and precise language of USFSPA, and state courts may not go beyond what the statute specifies).
"Separation pay," as distinct from "retired pay," has been held not to be subject to division as community property.[2] As the court cogently explained in In Re Marriage of Kuzmiak, 176 Cal. App.3d 1152, 1157, 222 Cal. Rptr. 644 (Cal.Dist.Ct.App.), cert. denied mem., 479 U.S. 885, 107 S.Ct. 276, 93 L.Ed.2d 252 (1986), the purposes of separation and retired pay are different. Separation pay is the personal property of the service member, for its purpose is to ease the transition to civilian life. Retired pay, on the other hand, is a contractual obligation designed to constitute compensation for past services rendered. See also Diffenderfer v. Diffenderfer, 491 So.2d 265, 267 (Fla. 1986) (pension plan is contractual right of value obtained in exchange for lower rate of compensation during marriage). When those services were rendered, and the compensation "earned" during the marriage, there is a rationale for awarding a percentage of a pension to a former spouse which is not present in the distribution of separation pay. Applying this rationale, the Kuzmiak court held that involuntary separation pay was not encompassed by the provisions of the USFSPA. 176 Cal. App.3d at 1157, 222 Cal. Rptr. 644. We believe that the same result must apply to voluntary separation pay.
The federal statutes governing the armed forces are replete with examples of the distinction between "separation" and "retirement." Compare, e.g., 10 U.S.C. § 1201, *962 § 1204 (retirement) with 10 U.S.C. § 1203, § 1206 (separation). Chapters 59 and 60 of Title 10 of the United States Code govern separation, Chapter 61 is entitled "Retirement or Separation for Physical Disability," and Chapters 63 through 73 govern various aspects of military retirement, from the age or length of service required to be entitled to retired pay, to the computation of retired pay, to the election to purchase an annuity with a portion of one's retired pay, and so on. Under traditional rules of statutory construction, we are constrained to assume that Congress deliberately used the word "separation" and not "retirement" when creating VSI benefits, and further that separation benefits were deliberately excluded from the reach of the USFSPA by the limitation of its reach to "disposable retired or retainer pay" as defined in 10 U.S.C.A. § 1408(a)(4). See Russello v. U.S., 464 U.S. 16, 23, 104 S.Ct. 296, 300, 78 L.Ed.2d 17 (1983). This conclusion is supported by the fact that Congress not only failed to expressly incorporate VSI benefits within the USFSPA, but specifically provided that VSI benefits are not transferable during the life of the recipient. 10 U.S.C.A. § 1175(f) (West 1994). Accordingly, we conclude that VSI benefits are not "retired pay" and affirm the decision of the trial court that the marital settlement agreement between Major and Mrs. Kelson cannot be interpreted as encompassing the VSI benefits under the term "retired/retainer pay."
Having concluded that the agreement cannot be interpreted as already providing for the division of these benefits, the next question is whether the trial court had jurisdiction to modify the agreement so as to extend its reach to encompass VSI benefits. This was clearly a property settlement provision, with no intent that these benefits would be provided for the support of Mrs. Kelson as a form of or in lieu of alimony. There has been no allegation that this agreement was procured by fraud, duress, deceit, coercion or over-reaching. Therefore the trial court correctly concluded that it was without jurisdiction to modify this agreement. See Petty v. Petty, 548 So.2d 793, 795 (Fla. 1st DCA 1989); Bockoven v. Bockoven, 444 So.2d 30, 32 (Fla. 5th DCA 1983).
The order of the trial court denying Mrs. Kelson's motion to amend or modify the final judgment of dissolution is AFFIRMED.
ZEHMER, C.J., concurs.
BOOTH, J., dissents with written opinion.
BOOTH, Judge, dissenting.
I respectfully dissent. We should reverse and remand for reconsideration in light of the recent decision in Abernethy v. Fishkin, 638 So.2d 160 (Fla. 5th DCA 1994), which answered the question posed here. The motion to modify below was, in substance, for enforcement of the former wife's property interest in former husband's voluntary separation incentive (VSI) benefits which, under Abernethy, supra, may be treated as retirement, subject to division.
NOTES
[1]  The court was not required to reach the question whether VSI benefits are retirement pay because of the specific terms of the agreement between the parties. The former husband had specifically obligated himself to make the agreed payments without limiting the source of the funds to anticipated retired pay. 638 So.2d at 163.
[2]  The same reasoning applies in states in which marital assets are subject to equitable distribution rather than division under the precepts of community property.


907 F.2d 150
Unpublished DispositionNOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.Abdul AL-BARI, Plaintiff-Appellant,v.Steven WINN and Jimmy Creecy, Defendants-Appellees.
No. 89-5150.
United States Court of Appeals, Sixth Circuit.
July 9, 1990.

Before KRUPANSKY and ALAN E. NORRIS, Circuit Judges, and LIVELY, Senior Circuit Judge.
PER CURIAM.

1
Plaintiff appeals from an order of the district court dismissing his complaint brought under 42 U.S.C. Sec. 1983.  In his complaint, plaintiff asserted that the defendants, assistant attorneys general for the state of Tennessee, submitted falsified documents to a federal district court in the course of their defense of state officials in another suit brought by plaintiff.

2
Under circumstances involving claims like those asserted in the other litigation, government attorneys who undertake the defense of a civil suit enjoy the same absolute immunity as that enjoyed by government prosecutors.   See Murphy v. Morris, 849 F.2d 1101 (8th Cir.1988);  Barrett v. United States, 798 F.2d 565 (2d Cir.1986).

3
Accordingly, the order of the district court is affirmed.


959 A.2d 321 (2008)
DILLARD
v.
VILLAS CARE PAVILLION.
IN RE DILLARD.
No. 166 EAL (2008).
Supreme Court of Pennsylvania.
October 8, 2008.
Disposition of petition for allowance of appeal. Denied.


440 F.2d 412
GENERAL ELECTRIC COMPANY, to its own use and to the use ofInsurance Company of North America, Appellant,v.ACME FAST FREIGHT, INC., Appellee.
No. 15210.
United States Court of Appeals, Fourth Circuit.
Argued March 2, 1971.Decided March 24, 1971.

Philip O. Roach, Baltimore, Md., for appellant.
Donald C. Greenman, Baltimore, Md.  (Randall C. Coleman, Baltimore, Md., on the brief), for appellee.
Before HAYNSWORTH, Chief Judge, and BRYAN and CRAVEN, Circuit Judges.
PER CURIAM:

1
We affirm on the opinion of the District Court.  General Electric Company v. Acme Fast Freight, Inc., D.C., Md., 324 F.Supp. 1079.

2
Affirmed.