author: RILEY, Chief Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Ronnie Lee OWEN, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Ronnie Lee Owen, Defendant-Appellant.
    No. 16-2521, No. 16-2611
    United States Court of Appeals, Eighth Circuit.
    Submitted: February 6, 2017
    Filed: April 19, 2017

      Erica Mynarich, Carver, Cantin and My-narich, LLC, Springfield, MO, for appellant.
    Amy Harshad Miller, Asst. U.S. Atty., Springfield, MO (Tammy Dickinson, U.S. Atty., Kansas City, MO, on the brief), for appellee.
    Before RILEY, Chief Judge, SMITH and BENTON, Circuit Judges.

      . The Honorable William Jay Riley stepped down as Chief Judge of the United States Court of Appeals for the Eighth Circuit at the close of business on March 10, 2017. He has been succeeded by the Honorable Lavenski R. Smith.

   RILEY, Chief Judge.

Ronnie Lee Owen asserts the revocation of his supervised release and sentence of 24 months imprisonment were in error because his waiver of co.unsel and decision to proceed pro se were invalid. We affirm, concluding the totality of the circumstances reflects Owen made a voluntary, knowing, and intelligent choice to represent himself at the revocation hearing. See 28 U.S.C. § 1291 (appellate jurisdiction).

I. BACKGROUND

Owen pled guilty in 2010 to knowingly making, uttering, and possessing counterfeit securities in violation of 18 U.S.C. § 513(a) and was sentenced to 66 months imprisonment followed by 36 months supervised release. In 2011, Owen pled guilty to identity theft in violation of 18 U.S.C. § 1028(a)(3) and was sentenced to 36 months imprisonment with 36 months supervised release.

Owen found himself unable to keep out of trouble while on supervised release. Between August 24, 2015 and April 13, 2016, Owen’s probation officer filed a violation report and four supplemental violation reports alleging over twenty violations of numerous conditions of Owen’s release, including: pay the required fine and restitution in .compliance with the scheduled payments; answer truthfully to his probation officer’s inquiries; find lawful employment; refrain from incurring new debt unless in compliance with his installment payment schedule; refrain from associating with any person convicted of a felony; notify the probation officer of any changes in residence; provide the probation officer access to any requested financial information; and refrain from committing another federal, state, or local crime.

The revocation proceedings on both cases were combined, and Owen had his first revocation hearing before the district court on January 22, 2016. Owen’s counsel informed the court Owen was “having some medical issues” and was “struggling to follow what [counsel] was talking to him about.” According to Owen, he had a “low thyroid” problem and, despite his retained counsel and wife attempting to get him his medication, the jail where Owen was detained had not provided Owen his “medication for a number of months.” Owen claimed this led to “vision difficulties, ... headaches, and pain.” The district court indicated it was having difficulty understanding Owen. The government reported the probation officer was unaware of Owen’s need for thyroid medication, and Owen’s counsel claimed it was “not uncommon” for his clients in that particular jail not to receive prescribed medication. The district court recognized it was in a “bind” because Owen would remain in jail waiting for the next hearing date and Owen’s “probation might as well be revoked if he’s just sitting” in jail. The revocation hearing was reset for February 16, 2016.

At this second revocation hearing, Owen’s counsel informed the court Owen was receiving his medication but, in Owen’s opinion, the medication was not the correct dose and Owen “needed a few more weeks before the medication completely cycled through and stabilized him.” The district court expressed its frustration with another continuance, noting because Owen was just sitting in jail “in essence he’s giving himself a revocation.” The government objected to the continuance, citing a worry that Owen “keeps making up these excuses and feigning an exaggerated illness or lack of medication.” Nevertheless, the district court continued the hearing until April 19, and warned Owen “[t]here won’t be any more continuances granted.”

Disregarding this warning, Owen again requested to continue his third revocation hearing, this time requesting more time to hire new counsel. Owen expressed he had sent “numerous letters” to his retained attorney, but had not seen or heard from him since the prior hearing. Owen stated he was frustrated that “every time [he] come[s] to court, there’s an amended violation report and [he’s] given no notice.” Owen felt he was unable to prepare an adequate defense to the alleged violations, although Owen’s attorney had reviewed the reports with him immediately before each hearing. The government indicated a concern Owen was using the request for new counsel as a delay tactic. Owen assured the district court he was only seeking “a proper defense.” The district court told Owen’s counsel, as “Mr. Trump would say[,] You’re fired” and set a fourth revocation hearing for May.

Owen appeared before the magistrate judge for a status conference on May 16. Owen indicated he was aware he had a final revocation hearing set for May 26 and he wanted to obtain new counsel, but was unable to reach the new counsel he had identified to retain. The magistrate judge stated it was in Owen’s “best interest” to “have counsel appointed to represent” him at his final revocation hearing, and the judge would appoint “someone who is very experienced in federal court who would be able to jump in and immediately begin working with [Owen].” The magistrate judge also expressed he believed “everybody would prefer that [Owen] have counsel representing” him and that “it’s a bad idea to represent yourself.... [I]t doesn’t usually end very well for the person who chooses to go that route.”

Owen then asked the magistrate judge if he would be able to proceed pro se if he did not like his appointed counsel. In response to this, the magistrate judge told Owen he would “probably have to make inquiry of [Owen] as to certain factors” yet he would “probably strongly urge [Owen] to not do that.” The magistrate judge also quoted the “old expression that a person who represents themself has a fool for an attorney,” and said, if Owen wished to represent himself, the judge would allow him to do so if the judge made a finding Owen knowingly and voluntarily waived his right to counsel. Owen assured the magistrate judge he had “been through this once before” and was unhappy with his counsel’s performance in a prior case. Concerned Owen would be resistant to appointed counsel, the magistrate judge advised Owen he “need[ed] to be prepared to move forward” on May 26, either with appointed counsel or on his own pro se.

At this fourth revocation hearing, Owen appeared with appointed counsel. The appointed counsel reported to the district court Owen told him he had recently filed a bar complaint against the appointed counsel and “that creates an issue for” the appointed counsel regarding “if [he] [could] proceed or not.” The district court considered this report a motion to withdraw as counsel. Owen declared his dissatisfaction with his appointed counsel, complaining his counsel declined to pursue any of Owen’s suggested defense theories, and Owen claimed he had filed both a bar complaint and a civil suit against his appointed counsel. The district court denied the motion to withdraw as counsel, as Owen “demonstrate^] a pattern and practice ... of trying to eventually avoid this day in court.”

The district court presented Owen with three options: (1) Owen could “make all the arguments [him]self ... acting as [his] own attorney”; (2) Owen could “have [his] counsel that [the court had] appointed and paid for ... serve as [Owen’s] attorney”; or (3) Owen could represent himself and have his appointed counsel serve as standby counsel. Owen expressed uncertainty over which option to take, claiming he had “no way of understanding what the violations even are,” so he “fail[ed] to see how [he] could participate or assist in [his] own defense ... [or] represent [him]self.” Although Owen’s appointed counsel had reviewed the violation reports with Owen, Owen complained he did not have a physical copy in his possession. The district court then granted the motion to withdraw as counsel and told Owen he could proceed pro se with appointed counsel as standby, but it was “the last time [the court was] going to let [Owen] terminate [his] counsel before moving ahead.”

Owen replied he did not “recall asking to be pro se.” The district court stated it refused “to delay this inevitable hearing” due to the “multiple excuses about why [Owen] want[s] to move off and change counsel.” The district court determined, because Owen refused to proceed with appointed counsel, he would proceed pro se with appointed counsel standing by to assist Owen if needed. The government proceeded to summarize the alleged violations, and Owen stated he could not “either admit or deny them because [he hadn’t] had time to go over them.” In the course of the hearing, Owen cross-examined the government’s witnesses, questioned his probation officer regarding inconsistencies between the probation officer’s written reports and oral testimony, and objected to a law enforcement officer’s testimony as hearsay and violating his right to confront his accusers. When the district court denied his objections, Owen expressed his dissatisfaction that his “hands [were] kind of tied” and he did not have “enough information to formulate questions or even be able to respond properly.” Owen declined to take the stand or to put on a defense, pointing to his “limited contact with [the violation] reports” and his lack of an “opportunity to develop a defense” or “to ascertain what witnesses [he] would need,” and asserting the district court had “forced” him to proceed pro se and his “rights ha[d] been so grossly violated.”

The district court found Owen had multiple grade-B violations (“constituting any ... federal, state, or local offense punishable by a term of imprisonment exceeding one year,” United States Sentencing Guidelines (U.S.S.G.) § 7Bl.l(a)(2)) of his conditions of supervised release and a criminal history category of VI. Owen argued the only grade-B violations were charges that should not be considered because he had not yet “had an opportunity to have [his] day in court,” and, because the other violations were only grade-C violations (“constituting (A) a federal, state, or local offense punishable by a term of imprisonment of one year or less; or (B) a violation of any other condition of supervision,” id. § 7Bl.l(a)(3)), he requested a sentence of 12 months and one day imprisonment. The district court sentenced Owen to 24 months imprisonment and Owen filed a pro se notice of appeal.

II. DISCUSSION

Owen’s sole argument on appeal is he did not knowingly, voluntarily, or intelligently.waive his right to counsel. We begin by noting Owen’s initial assertion— that, in allowing him to proceed pro se at his revocation hearing, the district court violated his “Sixth Amendment right to waive his right to counsel and conduct his own defense in a criminal case” — is erroneous. The Sixth Amendment right to counsel applies only in a criminal prosecution, and a revocation hearing is an entirely different type of proceeding. See Morrissey v. Brewer, 408 U.S. 471, 480, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) (“We begin with the proposition that the revocation of parole is not part of a criminal prosecution and thus the full panoply of rights due a defendant in such a proceeding does not apply.”); United States v. Cranford, 467 Fed.Appx. 541, 542 (8th Cir. 2012) (per curiam) (“[Defendant] did not possess a Sixth Amendment right to counsel in his revocation hearing.”). The same constitutional interests are not at stake in a revocation proceeding because “[r]evocation deprives an individual, not of the absolute liberty to which every citizen is entitled, but only of the conditional liberty properly dependent on observance of special ... restrictions.” Morrissey, 408 U.S. at 480, 92 S.Ct. 2593.

The only right Owen can assert, then, is. statutory. See 18 U.S.C. § 3006A(a)(1)(E) (“Representation shall be provided for any financially eligible person who ... is charged with a violation of supervised release.”); Fed. R. Crim. P. 32.1(b)(2)(D) (requiring, at a revocation hearing, “notice of the person’s right to retain counsel or to request that counsel be appointed if the person cannot obtain counsel”); see also United States v. Hodges, 460 F.3d 646, 650 (5th Cir. 2006) (“The right to represent himself ... arises not under the Sixth Amendment, but under Rule 32.1(b).”). Because a waiver of these rights does implicate Owen’s conditional liberty interests, we must examine whether the district court’s acceptance of that waiver violated his right to due process. We review the district court’s decision for abuse of discretion. See Morrissey, 408 U.S. at 480, 92 S.Ct. 2593; United States v. Anderson, 669 Fed.Appx. 319 (8th Cir. 2016) (per curiam) (evaluating the district court’s acceptance of a waiver of right to counsel in a revocation hearing for abuse of discretion); see also United States v. Manuel, 732 F.3d 283, 291 (3d Cir. 2013) (“Although a defendant at a revocation hearing does not have a constitutional right to counsel, a revocation hearing nonetheless presents the risk of a loss of liberty and thereby triggers the requirements of due process in general.”). This interest “is flexible and calls for such procedural protections as the particular situation demands.” Morrissey, 408 U.S. at 481, 92 S.Ct. 2593. “Sixth Amendment cases which elaborate on the requirements for a knowing and voluntary waiver of one’s right to an attorney ... remain relevant in the revocation context. However, we must have in mind that the due process framework ... is focused on the fundamental fairness of the hearing.” United States v. Boultinghouse, 784 F.3d 1163, 1172 (7th Cir. 2015).

Owen first claims his waiver was involuntary because “it was a forced choice between counsel he perceived was unprepared' and representing himself.” ‘While the ‘Hobson’s choice’ between proceeding to trial with an unprepared counsel or no counsel at all may violate the right to counsel, there is no constitutional difficulty where the defendant is provided the real alternative of choosing between adequate representation and self-representation.” United States v. Mentzos, 462 F.3d 830, 839 (8th Cir. 2006) (citation omitted). Owen perceived his appointed counsel was unprepared — indeed Owen claimed to have filed a bar complaint and civil suit against his appointed counsel — and Owen expressed his displeasure that his appointed counsel disagreed with Owen’s chosen defense to the violations. Yet “[a]n accused does not have an absolute right to counsel of his own choosing,” id. and requests for new counsel “will sometimes, perhaps often, be dilatory tactics,” Berry v. Lockhart, 873 F.2d 1168, 1171 (8th Cir. 1989). “The substitution of counsel is committed to the sound discretion of the trial court, and the defendant bears the burden of showing justifiable dissatisfaction with appointed counsel to be granted a substitute.” Mentzos, 462 F.3d at 839 (citation omitted).

Owen’s complaints about his appointed attorney being unprepared and not agreeing with Owen’s preferred strategies do not amount to a justifiable dissatisfaction demonstrating the district court abused its discretion in refusing to appoint Owen new counsel, particularly considering Owen had already fired one counsel at a prior revocation hearing. The magistrate judge had assured Owen his appointed counsel would be “very experienced in federal court” and “able to jump in and immediately begin working with [Owen].” There is no evidence Owen’s appointed counsel was unprepared or otherwise incompetent.

Owen previously had expressed reluctance to work with any counsel — the magistrate judge had observed he “d[id]n’t know how serious [Owen was] about wanting appointed counsel” and urged Owen “to make every effort to keep an open mind and listen to [his] appointed counsel.” Aware of this reluctance, the magistrate judge had warned Owen ten days in advance of his revocation hearing that Owen must be prepared to proceed either with appointed counsel or pro se. Owen had sufficient advance warning he had to make a decision regarding self-representation. The district court’s three options presented to Owen (to proceed pro se, to have appointed counsel represent him, or to proceed pro se with appointed counsel as standby) did not create such an impossible “Hobson’s choice” as to make his waiver involuntary. The choice was a fair one.

Owen next contends his waiver was not knowing and intelligent because the district court “did not ask questions to make sure that [Owen] understood what he was doing and comprehended the complexities of representing himself.” “[Although the waiver need not meet the formal requirements required by the Sixth Amendment, the waiver must be knowing and voluntary as demonstrated either through a colloquy with the district court, or by the totality of the circumstances, or both.” Hodges, 460 F.3d at 648; see also Manuel, 732 F.3d at 291 (“No ‘particular mantra’ is necessary and no ‘magic words’ are required for the district court to be satisfied that the defendant’s waiver is knowing and voluntary.” (quoting Hodges, 460 F.3d at 652)). The colloquy required under Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), for a waiver of the right to counsel in a criminal proceeding is not required in the context of a revocation hearing. See Hodges, 460 F.3d at 652 (“Although a thorough colloquy with the district court may be the most precise means of evaluating the vol-untariness of a waiver, the failure of the district court to engage in a comprehensive colloquy is not, of itself, fatal to the defendant’s waiver.”). Examining the totality of the circumstances present here, we conclude Owen’s waiver was knowing and intelligent.

Factors relevant to the totality of the circumstances include:

“(1) whether and to what extent the district court conducted a formal hearing into [the defendant’s] decision to represent himself, (2) whether there is other evidence in the record that establishes that [the defendant] understood the disadvantages of self-representation, (3) [the defendant’s] background and experience, and (4) the context of [the defendant’s] decision to proceed pro se.”

Boultinghouse, 784 F.3d at 1173 (alterations in original) (quoting United States v. Eads, 729 F.3d 769, 775 (7th Cir. 2013)). Although the district court did not conduct any sort of formal hearing, the remainder of the factors weigh toward a knowing and intelligent decision. For one, over a week before the revocation hearing, the magistrate judge had “strongly urged” Owen not to proceed pro se and reminded Owen of the maxim that “a person who represents themself has a fool for an attorney” (often expressed as having a fool as a client). Owen was well aware of the dangers of representing himself.

In addition, Owen’s age (47 at the time of the hearing) and his extensive experience with the criminal justice system indicate he was adequately equipped to make the decision to represent himself. Owen had a criminal history category of VI at his original sentencing, was no stranger to court hearings, and had assured the magistrate judge he had “been through this once before.” The context of Owen’s decision to proceed pro se further demonstrates his knowledge and understanding of the decision. Owen had met with appointed counsel before the revocation hearing to go over the alleged violations, and the government summarized all violations during the revocation hearing, ensuring Owen was well aware of the allegations. Although Owen never utilized him, Owen’s appointed counsel remained to assist Owen if needed. See Hodges, 460 F.3d at 653.

Owen “appreciated what was at stake, understood the nature of the charges, and knew what the factual issues were.” Boultinghouse, 784 F.3d at 1175. Owen demonstrated his familiarity with general policies and procedures of hearings, conducting cross-examinations of witnesses, highlighting witness inconsistencies, and making objections. See Hodges, 460 F.3d at 652-53. Despite his claim he did not have an adequate grasp of the nature of the allegations, Owen’s understanding of the issues at the hearing was evidenced by Owen’s sentencing arguments. He highlighted potential problems of proof with his grade-B violations and recognized the remaining violations were only grade C, requesting a sentence appropriate for grade-C violations. See id. at 652 (noting defendant’s awareness of the nature and consequences of violations indicates a knowing and intelligent waiver of counsel).

Certainly, “[t]he omission of any inquiry into and express evaluation of [Owen’s] background, education, and sophistication ... renders the inquiry into his waiver less complete than it ideally ought to have been.” Boultinghouse, 784 F.3d at 1175-76. It would have been preferable for the district court to provide “a concrete illustration of why [Owen] might be at a disadvantage without counsel” or “confirm!] that [Owen] appreciated what was at stake in the revocation proceeding.” Id. at 1173. “But the record otherwise makes clear that [Owen] was fully able to comprehend the nature of the revocation proceeding, what the issues were, the risks of proceeding without a lawyer, and how to present his own case.” Id. at 1176. Owen may now believe his decision to represent himself at his revocation hearing was the wrong choice, but this “does not show that his decision to reject representation was unintelligent. A decision may be informed without being right or smart; many human decisions fall into this category.” Id. at 1176-77. The district court did not abuse its discretion in allowing Owen to proceed pro se at his revocation hearing. Owen’s revocation hearing was fundamentally fair and not a violation of due process.

III. CONCLUSION

Because the totality of the circumstances reflects Owen’s decision to proceed pro se at his revocation hearing was voluntary, knowing, and intelligent, and not a denial of due process, we affirm.

      . Although Owen never moved to waive any right to counsel or affirmatively agreed to proceed pro se,' Owen characterizes his decision as an involuntary waiver. Owen does not contend, however, he never actually waived being represented by counsel.

      .The underlying conduct resulting in both convictions occurred before Owen’s 2010 guilty plea. Owen pled guilty to making counterfeit securities in the Southern District of Mississippi, and pled guilty to identity theft in the Eastern District of Washington. Jurisdiction over Owen was transferred to the Western District of Missouri in August 2015.

      . The Honorable Stephen R. Bough, United States District Judge for the Western District of Missouri.

      . Owen filed a pro se motion to dismiss the alleged violations for lack of jurisdiction and denial of due process after he terminated his retained counsel, but before he was appointed new counsel. The district court orally denied Owen’s motion to dismiss at the May 26 revocation hearing, and Owen also appealed this denial. Owen's attorney does not raise this issue in the opening brief and has forfeited this issue on appeal. See Jenkins v. Winter, 540 F.3d 742, 751 (8th Cir. 2008) ("Claims not raised in an opening brief are deemed waived.”).

      . Owen asserts we must review the district court's decision de novo, as this is the standard to review waivers of constitutional rights. As noted above, Owen challenges the waiver of a statutory right, not a constitutional one, and thus his challenge is reviewed with a different standard.


source: Caselaw Access Project

author: PER CURIAM. KELLY, Circuit Judge,

license: Public Domain

text:
    Ledell LEE, Plaintiff-Appellant v. Wendy KELLEY, Director, Arkansas Department of Correction, Defendant-Appellee
    No. 17-1840
    United States Court of Appeals, Eighth Circuit.
    Submitted: April 20, 2017
    Filed: April 20, 2017

      Ledell Lee, Pro se.
    Lee Deken Short, Short Law Firm, North Little Rock, AR, Cassandra Stubbs, American Civil Liberties Union, Capital Punishment Project, Durham, NC, for Plaintiff-Appellant.
    Nicholas Jacob Bronni, Valerie G. Fort- ' ner, Kent G. Holt, Ashley Argo Priest, Assistant Attorneys General, Christian Harris, Darnisa E. Johnson, Lee P. Rudof-sky, Attorney General’s Office, Little Rock, AR, for Defendant-Appellee.
    Before BENTON, SHEPHERD, and KELLY, Circuit Judges.
   PER CURIAM.

About five hours before Ledell Lee’s scheduled execution, two appeals were brought to this court. In the first, the district court determined that, under Gonzalez v. Crosby, 545 U.S. 524, 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005), it lacked jurisdiction on the ground that Lee’s motion for relief from judgment under Federal Rule of Civil Procedure 60(b) was, in substance, a successive petition for habeas corpus under 28 U.S.C. § 2254. The district court concluded that, although Lee’s motion was styled as one to reopen judgment under Rule 60(b), Lee was actually seeking to litigate new claims under Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), and Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). The court transferred the matter to our court. See Burton v. Stewart, 549 U.S. 147, 153, 127 S.Ct. 793, 166 L.Ed.2d 628 (2007). However, Lee voluntarily dismissed the matter before any determination could be made. No. 17-1838.

In this appeal, Lee challenges the district court’s alleged denial of his motion requesting funds under 18 U.S.C. § 3599(f) for “ancillary services to assist in the preparation of clemency and potential additional litigation.” Lee now moves for a stay of execution. We deny his motion for stay.

“A stay of execution is an equitable remedy. It is not available as a matter of right, and equity must be sensitive to the State’s strong interest in enforcing its criminal judgments without undue interference from the federal courts.” Johnson v. Lombardi, 809 F.3d 388, 390 (8th Cir. 2015) (citation omitted) (internal quotation marks omitted), quoting Hill v. McDonough, 547 U.S. 573, 584, 126 S.Ct. 2096, 165 L.Ed.2d 44 (2006). To receive a stay, Lee “must satisfy all of the requirements for a stay, including a showing of a significant possibility of success on the merits.” Id.

To receive a stay of execution, it is not enough that Lee show a significant possibility of success of the merits of some claim. Rather, Lee must show a significant possibility that he will succeed on the merits of a claim that would deprive Arkansas of the authority to execute him. See Durr v. Cordray, 602 F.3d 731, 736-37 (6th Cir. 2010).

Lee has not made that showing. Even if he succeeded on his § 3599(f) claim, Arkansas would still have the authority to execute him. Lee argues that the appointment of funds could lead to a chain of events that might include Governor Hutchinson approving clemency, the state Parole Board reconsidering its previous recommendation of denial of clemency, or later habeas proceedings. But these potential down-the-road effects do not give this court the authority to issue a stay.

The motion for stay is denied.

KELLY, Circuit Judge,

concurring.

The district court transferred this matter to this court citing 28 U.S.G. § 2244(b)(3)(A), the statutory provision that says an applicant must receive permission from the court of appeals before fifing a successive habeas petition. Thus, I construe Lee’s most recent fifing as part and parcel of his Rule 60(b) motion seeking, among other things, an opportunity to pursue an Atkins claim — a motion the district court ruled was, instead, a successive petition. I would grant the appeal from the district court’s denial of funds Lee has requested to investigate his Atkins claim, because in my view, Lee’s failure to present an Atkins claim in his prior habeas proceedings does not bar him from pursuing the Atkins claim challenging his imminent execution. See Atkins v. Virginia, 536 U.S. 304, 321, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) (holding that executing an intellectually disabled person is unconstitutional). Because this court has recently held otherwise, I reluctantly must concur in the result, but I write separately to express my concerns.

The Eighth Amendment categorically prohibits executing inmates who fall within one of three discrete classes: juveniles, the incompetent, and the intellectually disabled. Roper v. Simmons, 543 U.S. 551, 568, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005). The law is clear that § 2244’s ban on successive petitions does not apply to a petitioner’s claim that his scheduled execution would violate the Eighth Amendment because he is incompetent. Stewart v. Martinez-Villareal, 523 U.S. 637, 645-46, 118 S.Ct. 1618, 140 L.Ed.2d 849 (1998); see also Ford v. Wainwright, 477 U.S. 399, 409-10, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986) (holding execution of incompetent inmates is unconstitutional). The Supreme Court explained that a petitioner’s prior habeas petition cannot bar such a claim because it cannot be adjudicated until the state obtains an execution warrant; it is only at that time that the execution becomes “imminent” and the petitioner’s “competency to be executed” can be determined. Martinez-Villareal, 523 U.S. at 644-45, 118 S.Ct. 1618. This is the case even where the petitioner raises an incompetency claim for the first time after the state has obtained an execution warrant, and after a prior habeas application has been denied. Panetti v. Quarterman, 551 U.S. 930, 945, 127 S.Ct. 2842, 168 L.Ed.2d 662 (2007).

Like the Eighth Amendment prohibition on executing the incompetent, the Eighth Amendment prohibition on executing the intellectually disabled is “a substantive restriction on the State’s power to take the life” of an inmate. Atkins, 536 U.S. at 321, 122 S.Ct. 2242 (quoting Ford, 477 U.S. at 405, 106 S.Ct. 2595). In Ford, the Supreme Court explained the rationale behind the prohibition on the execution of the incompetent, noting, inter alia, the questionable “retributive value of executing a person who has no comprehension of why” he is being executed. Ford, 477 U.S. at 409, 106 S.Ct. 2595. The rationale for prohibiting the execution of the intellectually disabled is striking similar. Atkins highlighted retribution and deterrence as significant factors, recognizing that the lesser culpability of an intellectually disabled offender warrants exempting those offenders from the ultimate criminal penalty: death. Atkins, 536 U.S. at 319-20, 122 S.Ct. 2242. But the Court has also said that “[n]o legitimate penological purpose is served by executing a person with intellectual disability ... [and t]o do so contravenes the Eighth Amendment, for to impose the harshest of punishments on an intellectually disabled person violates his or her inherent dignity as a human being.” Hall v. Florida, — U.S. -, 134 S.Ct. 1986, 1992, 188 L.Ed.2d 1007 (2014); accord Brumfield v. Cain, - U.S. -, 135 S.Ct. 2269, 2283, 192 L.Ed.2d 356 (2015) (“[I]t would violate the Eighth Amendment to permit the State to impose the ‘law’s most severe sentence,’ Hall, 572 U.S., at -, 134 S.Ct. at 1993, and take his life as well.” (emphasis added)).

In this case, no court has had the opportunity to determine whether Lee was intellectually disabled at any time during the criminal proceedings, including at the time of the offense. This court has perceived a determinative distinction between a claim of incompetence under Ford and a claim of intellectual disability under Atkins because, in its view, incompetence can change over time while intellectual disability cannot. See Davis v. Kelley, No. 04-2192. True, a diagnosis of intellectual disability is not as susceptible to fluctuation as a diagnosis of mental illness amounting to incompetence. But intellectual disability is by no means static in every case. The DSM-5 explains,

Although intellectual disability is generally nonprogressive, in certain genetic disorders (e.g., Rett syndrome) there are periods of worsening, followed by stabilization, and in others (e.g., Sanfllip-po syndrome) progressive worsening of intellectual function. After early childhood, the disorder is generally lifelong, although severity levels may change over time. The course may be influenced by underlying medical or genetic conditions and co-occurring conditions (e.g., hearing or visual impairments, epilepsy). Early and ongoing interventions may improve adaptive functioning throughout childhood and adulthood. In some cases, these result in significant improvement of intellectual functioning, such that the diagnosis of intellectual disability is no longer appropriate.

Diagnostic and Statistical Manual of Mental Disorders 38-39 (DSM-5) (5th ed. 2013); see also James C. Harris, Intellectual Disability: Understanding- Its Development, Causes, Classification, Evaluation, and Treatment (2005) (“[T]he intellectually disabled person’s level of functioning is not static and ... an individual’s adaptive behavior may be improved through habilitation.”); Simon Whitaker, The Stability of IQ in People With Low Intellectual Ability: An Analysis of the Literature, 46 Intellectual and Developmental Disabilities 120, 123 (2008) (fourteen percent of study subjects with low IQs saw changes of ten or more points on IQ evaluations performed at different times). In short, intellectual disability may ebb and flow, depending on a variety of factors, including the underlying cause of disability, the extent of intervention, and the presence of co-occurring conditions. Of particular relevance to Lee’s claim, scientific studies indicate that in cases of intellectual disability arising from fetal alcohol syndrome, deficits in adaptive functioning are likely to become more severe with age. See Carmen Rasmussen, et al., Neurobehavioural outcomes of children with fetal alcohol spectrum disorders: A Canadian perspective, 13 Paediatrics & Child Health 185, 188 (2008) (collecting studies).

I also note that our case law has recognized that a diagnosis of intellectual disability is not always stable. For instance, in Sasser v. Hobbs (Sasser II), we explained that the “timing of proof’ matters for an Atkins claim because an individual’s intellectual disability can improve over time, and because an individual “may have better evidence of his condition at one point in life than another.” 735 F.3d 833, 846 (8th Cir. 2013). Similarly, in the context of Social Security appeals, we have held that the presumption that a claimant’s IQ remains stable over time may be rebutted by “evidence of a change in [a claim-anti’s intellectual functioning.” See, e.g., Phillips v. Colvin, 721 F.3d 623, 629 (8th Cir. 2013) (affirming the ALJ’s determination that the claimant did not meet the listing for “mental retardation,” despite a prior evaluation indicating he had a full-scale IQ of 64, because substantial evidence showed his intellectual functioning had improved since the evaluation).

More important, however, the distinction regarding stability over time cannot overshadow what incompetency and intellectual disability have in common: If a person suffers from either, he cannot be executed. Thus, because it is unconstitutional to execute a person who is intellectually disabled, it must be determined whether Le-dell Lee is intellectually disabled before his sentence is carried out — whether that determination comes near the time of the offense or near the time of execution.

The reasoning of Martinez-Villareal and Panetti applies to Atkins claims as well: The question of whether the- inmate is constitutionally eligible for execution is therefore ripe for resolution only when the execution is imminent. See Singleton v. Norris, 319 F.3d 1018, 1023 (8th Cir. 2003) (“[A] habeas petition raising a claim that had not arisen at the time of a previous petition is not barred by § 2244(b).... ”). Indeed, we have previously recognized the application of Martinez-Villareal and Pan-etti to Atkins claims. In Nooner v. Niles (Nooner II), we assumed that Martinez-Villareal and Panetti applied to both Ford and Atkins claims. 499 F.3d 831, 833 n.2 (8th Cir. 2007). Furthermore, Atkins left to the states the tasks of defining intellectual disability and establishing procedures to implement Atkins’ prohibition on the execution of mentally disabled offenders. Atkins, 536 U.S. at 317, 122 S.Ct. 2242. “[T]he Arkansas Supreme Court has consistently construed its state’s statutory right to be concurrent with the federal constitutional right established in Atkins.” Sasser II, 735 F.3d at 842-43 (citing Anderson v. State, 357 Ark. 180, 163 S.W.3d 333, 354-55 (2004)). And, our court has held that Ark. Code. Ann. § 5-4-618 “precludes] the execution of an individual who can prove mental retardation either (a) at the time of committing the crime or (b) at the presumptive time of execution.” Id. at 846 (footnote omitted).

In my view, the bar on successive petitions does not apply to Atkins claims filed after the state has obtained an execution warrant, and thus it does not apply to Lee’s Atkins claim. “[T]here was accordingly no need for him to apply for authorization to file a second or successive petition.” Martinez-Villareal, 523 U.S. at 642, 118 S.Ct. 1618, and it is therefore immaterial that Lee has previously failed to argue the merits of an Atkins in a federal habeas proceeding; such a claim could not have challenged the constitutionality of Lee’s now-imminent execution. See Panetti, 551 U.S. at 946, 127 S.Ct. 2842; Martinez-Villareal, 523 U.S. at 644-45, 118 S.Ct. 1618 (acknowledging that the district court was unable to resolve the prisoner’s Ford claim at the time of his initial habeas filing); Nooner II, 499 F.3d at 834 (“[T]he setting of an execution date caused the ... claims to become ripe.”)- Because Lee’s execution is imminent, statutory restrictions on the fifing of successive habeas petitions should not prevent the court from determining whether he belongs to one of the three discrete classes of inmate that the Supreme Court has held the United States Constitution prohibits executing. See Roper, 543 U.S. at 568, 125 S.Ct. 1183.

Lee presents a prima facie Atkins claim that has never been addressed on the merits. Lee presents evidence that he repeated multiple grades in school and was placed in special education before he dropped out of school when he was in ninth grade due to difficulty understanding his schoolwork. Psychological testing performed by a neu-ropsychologist, Dr. Watson, demonstrated that Lee has “significantly subaverage” functioning in nearly every intellectual area, and the examiner characterized Lee’s deficits in verbal and non-verbal memory and learning as “striking.”

Dr. Watson also concluded to a reasonable degree of professional certainty that Lee has a neurodevelopmental disorder such as fetal alcohol syndrome, an intellectual disability that one is born with. Lee’s mother drank throughout her pregnancy, and Dr. Watson concluded that Lee exhibits physical manifestations of fetal alcohol syndrome, including small and very wide-set eyes and pointed or folded ears. Additionally, Lee’s cognitive and behavioral functioning (including attention and memory problems, difficulty with judgment and reasoning, learning disability, and potential brain damage) is consistent with fetal alcohol syndrome. Lee has presented a prima facie case that he has “significantly subav-erage general intellectual functioning” that manifested before age 18, and that he has “a significant deficit or impairment in adaptive functioning” with a “deficit in adaptive behavior.” Ark. Code. § 5-4-618(a)(1).

Because I believe Lee should be allowed to file a petition based on Atkins as it applies to his execution, I would also address Lee’s motion to stay his execution. In addition to concluding that Lee has a “likelihood of success on the merits” of his motion, as discussed above, I also believe that “the relative harms to the parties,” and “the extent to which [Lee] has delayed unnecessarily in bringing the claim” weigh in favor of granting Lee’s motion to stay his execution. Nooner v. Norris (Nooner I), 491 F.3d 804, 808 (8th Cir. 2007) (quoting Nelson v. Campbell, 541 U.S. 637, 649-50, 124 S.Ct. 2117, 158 L.Ed.2d 924 (2004)).

The balance of harms here unquestionably weighs in Lee’s favor. Here, the state’s interest in executing Lee on this expedited timeline is rooted in the imminent expiration of its supply of midazolam and its concern that it may be unable to obtain more. That interest is outweighed by Lee’s interest in ensuring that his execution is not carried out in violation of the constitutional prohibition against executing a person who is intellectually disabled.

Additionally, Lee’s execution is scheduled for April 20, 2017, and he filed his motion on April 18, 2017. As explained above, Lee’s intellectual capacity at the time of his execution could not be adjudicated until his execution was imminent. See Nooner II, 499 F.3d at 834 (citing Martinez-Villareal, 523 U.S. at 644-45, 118 S.Ct. 1618). Lee brought the instant challenge to his execution soon after the governor signed the order setting Lee’s execution date and after the parole board recommended denying clemency. Because Lee argues that he is entitled to a determination that he will not be intellectually disabled at the time of his execution — not just at the time of his sentencing — he has not unreasonably delayed in filing this motion for stay. See Nooner I, 491 F.3d at 810 (discussing Panetti and noting that “a condition of the mind which may not manifest itself until so late a time that a stay becomes necessary in order to evaluate properly the asserted mental deficiency” presents an argument distinct from a challenge to execution protocol).

The question presented in this case is whether the state of Arkansas can constitutionally execute a man who may very well be intellectually disabled. “The basic concept underlying the Eighth Amendment is nothing less than the dignity of man.” Trop v. Dulles, 356 U.S. 86, 100, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958). That purpose is not served by executing someone whose colorable claim of intellectual disability has never before been considered by any court, due in large part to a string of lawyer error and incompetence. Congress could not have intended such a result when it barred inmates from filing successive habeas petitions. As the Supreme Court has recognized, when Congress enacted AEDPA, “it did so without losing sight of the fact that the “writ of habeas corpus plays a vital role in protecting constitutional rights.’ ” Holland v. Florida, 560 U.S. 631, 649, 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010) (quoting Slack v. McDaniel, 529 U.S. 473, 483, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000)). To sanction an interpretation of AEDPA that closes the courthouse doors to an Atkins claim of intellectual disability at this stage of the proceedings and under these circumstances would cast a shadow on “the integrity of [Lee’s] trial process,” Hall, 134 S.Ct. at 1993, and pervert “the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon,” Mapp v. Ohio, 367 U.S. 643, 647, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961) (quoting Boyd v. United States, 116 U.S. 616, 635, 6 S.Ct. 524, 29 L.Ed. 746 (1886)).

      . The district court in fact did not deny Lee’s motion for funds but rather transferred the motion to our court.

      . The Atkins decision uses the term “mentally retarded.” The updated term “intellectually disabled” has the same meaning.

      . Under Arkansas law, intellectual disability requires a finding of "[significantly subaver-age general intellectual functioning accompanied by a significant deficit or impairment in adaptive functioning manifesting] ... no later than age eighteen (18) years of age.” Ark. Code Ann. § 5-4-618. Thus, whether the evaluation is conducted near the time of the offense or near the time of execution, the evaluator must look back in time to make this assessment, using whatever evidence, testing, or other indicators are available. Because a finding that an offender is intellectually disabled at the time of execution requires a demonstration that the offender manifested symptoms of intellectual disability before age 18, the inquiry into whether an offender is intellectually disabled at the time of his execution is, in fact, relevant to the offender’s moral culpability at the time of the crime. While it may be more difficult to conduct this analysis as years pass, it cannot be said to be impossible.

      . The evidence shows that Lee has been represented by unqualified, unreliable, and unstable counsel at critical stages of his long journey through the court system. For example, in 2001, Lee filed a petition for writ of habeas corpus in federal court. After reviewing the transcripts of Lee's state post-conviction proceedings, the district court noted that Lee’s appointed counsel in those state proceedings "may have been impaired to the point of unavailability on one or more days” of the post-conviction hearing. This lawyer later admitted he struggled with substance abuse issues while he was representing Lee, and that he participated in Lee’s post-conviction hearings while intoxicated. As another example: One of the lawyers who represented Lee in federal post-conviction proceedings later had his law license suspended due to serious mental health issues. It was at this stage of the proceedings that the state argues Lee "abandoned the pursuit of an Atkins claim.” Lee, however, is the one who will suffer the consequences of the failures of his prior counsel.


author: WATFORD, Circuit Judge:

text:
    Jerry DUNSON; Cheryl Grech; Robert Flanagan; Carol Flanagan; Joseph Gieber; Mary Eldeb; Dayna Currie; Harlowe Currie; Charles Henry Lewis, Plaintiffs-Appellees, v. CORDIS CORPORATION, Defendant-Appellant.
    No. 17-15257
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted March 13, 2017 San Francisco, California
    FILED APRIL 14, 2017

      Troy Brenes, Attorney, Brenes Law Group, Aliso Viejo, CA, for Plaintiffs-Ap-pellees.
    Rebecca Baden Chaney, Esquire, Attorney, Andrew D. Kaplan, Esquire, Washington, DC, Kevin C. Mayer, Attorney, Los Angeles, CA, Crowell & Moring LLP, for Defendant-Appellant.
    Alan Jay Lazarus, Drinker Biddle & Reath, LLP, San Francisco, CA, for Ami-cus Curiae The Product Liability Advisory Council, Inc.
    Richard Abbott Samp, Chief Counsel, Washington Legal Foundation, Washington, DC, for Amicus Curiae Washington Legal Foundation.
    Before: FERNANDEZ and WATFORD, Circuit Judges, and STATON, District Judge.

       The Honorable Josephine L. Staton, United States District Judge for the Central District of California, sitting by designation.

   OPINION

WATFORD, Circuit Judge:

Under the Class Action Fairness Act of 2005 (CAFA), Pub. L. No. 109-2, 119 Stat. 4, large multi-state class actions may be removed to federal court under requirements more permissive than those governing the removal of other civil actions. To prevent plaintiffs from evading CAFA’s relaxed jurisdictional requirements, Congress made “mass actions” removable to federal court on largely the same basis as class actions. Mississippi ex rel. Hood v. AU Optronics Corp., — U.S. -, 134 5.Ct. 736, 744, 187 L.Ed.2d 654 (2014). A “mass action” is defined as a civil action, other than a class action, “in which monetary relief claims of 100 or more persons are proposed to be tried jointly on the ground that the plaintiffs’ claims involve common questions of law or fact.” 28 U.S.C. § 1332(d)(ll)(B)(i).

In this case, Cordis Corporation invoked CAFA’s mass action provision as the basis for removing to federal court eight products liability suits filed against it in the Superior Court for Alameda County, California. Each of the eight actions has fewer than 100 plaintiffs, but together they involve more than 100 named plaintiffs. The actions raise common questions of law and fact because they all seek damages for injuries caused by the same allegedly defective medical devices manufactured by Cordis. The parties agree that the jurisdictional requirements for removal under CAFA’s mass action provision are met, with one exception: They dispute whether the plaintiffs’ claims have been “proposed to be tried jointly.”

Cordis argues that the plaintiffs proposed to try their claims jointly when they moved in state court to consolidate the eight actions.,In their motion, the plaintiffs requested consolidation of the actions “for all pretrial purposes, including discovery and other proceedings, and the institution of a bellwether-trial process.” The motion noted that, because the actions involve the same allegedly defective medical devices, both the discovery sought from Cordis and the majority of the expert discovery will be identical in each case. As a result, the plaintiffs stated, consolidation of the actions “for purposes of pretrial discovery and proceedings, along with the formation of a bellwether-trial process, will avoid unnecessary duplication of evidence and procedures in all of the actions, avoid the risk of inconsistent adjudications, and avoid many of the same witnesses testifying on common issues in all actions, as well as promote judicial economy and convenience.”

The district court held that the plaintiffs’ consolidation motion did not propose a joint trial of their claims, as required under § 1332(d)(ll)(B)(i). The cases therefore could not be removed under CAFA’s mass action provision. Because Cordis asserted no other basis for federal jurisdiction, the district court granted the plaintiffs’ motion to remand the cases to the Alameda County Superior Court. (The district court’s order also remanded a number of other related cases, but those cases are not specifically before us.) We granted Cordis’ petition for permission to appeal that ruling under 28 U.S.C. § 1453(c).

We can begin with two propositions that neither side disputes. First, the fact that more than 100 plaintiffs have sued Cordis in eight separate actions filed in the same court is not by itself sufficient to trigger removal jurisdiction under CAFA. Plaintiffs’ lawyers are free to file multiple lawsuits with fewer than 100 plaintiffs based on the same factual allegations, even if their purpose in doing so is to avoid federal jurisdiction. Corber v. Xanodyne Pharmaceuticals, Inc., 771 F.3d 1218, 1223 (9th Cir. 2014) (en banc). Before separate actions may be removed to federal court as a “mass action,” 100 or more plaintiffs must take the affirmative step of proposing to try their claims jointly, such as by requesting assignment to a single judge “for purposes of discovery and trial,” Atwell v. Boston Scientific Corp., 740 F.3d 1160, 1163 (8th Cir. 2013), or by requesting consolidation “through trial” and “not solely for pretrial proceedings,” In re Abbott Laboratories, Inc., 698 F.3d 568, 573 (7th Cir. 2012). Second, if 100 or more plaintiffs in separate actions propose consolidating their cases solely for pretrial purposes, that too is insufficient to trigger removal jurisdiction. CAFA’s definition of “mass action” expressly excludes any civil action in which the plaintiffs’ claims “have been consolidated or coordinated solely for pretrial proceedings.” § 1332(d)(ll)(B)(ii)(IV).

This appeal would be easy to resolve if the plaintiffs had stated that they sought consolidation “for all pretrial purposes, including discovery and other proceedings,” and stopped there. Proposing consolidation for those purposes alone would bring this case squarely within the exclusion just quoted, particularly if the plaintiffs had also expressly disclaimed any desire for a joint trial. But the plaintiffs complicated things by proposing consolidation for the additional purpose of creating “a bellwether-trial process.” The question before us is whether the plaintiffs’ proposal for a bellwether-trial process amounts to a proposal to try their claims jointly.

The answer to that question depends on which kind of “bellwether-trial process” the plaintiffs had in mind. Two types of bellwether trials can be held when a large number of plaintiffs assert the same or similar claims against a common defendant or defendants. In the first type, the claims of a representative plaintiff (or small group of plaintiffs) are tried, and the parties in the other cases agree that they will be bound by the outcome of that trial, at least as to common issues. See ALI, Principles of the Law of Aggregate Litigation § 2.02, cmt. b, p. 87 .(2010); Restatement (Second) of Judgments § 40, cmt. a, p. 390 (1980). In the second (and far more common) type of bellwether trial, the claims of a representative plaintiff or plaintiffs are tried, but the outcome of the trial is binding only as to the parties involved in the trial itself. The results of the trial are used in the other cases purely for informational purposes as an aid to settlement. See Briggs v. Merck Sharp & Dohme, 796 F.3d 1038, 1051 (9th Cir. 2015).

If 100 or more plaintiffs propose holding a bellwether trial of the first type, in which the results of the trial will be binding on the plaintiffs in the other cases, they have proposed a joint trial of their claims for purposes of § 1332(d)(11)(B)(i). Bullard v. Burlington Northern Santa Fe Railway Co., 535 F.3d 759, 762 (7th Cir. 2008). However, a proposal to hold a bellwether trial of the second type does not constitute a proposal to try the plaintiffs’ claims jointly, for the verdict will not be binding on the other plaintiffs and will not actually resolve any aspect of their claims. True, a verdict favorable to the plaintiff in the bellwether trial might be binding on the defendant under ordinary principles of issue preclusion, but that is not enough. See Briggs, 796 F.3d at 1051. To constitute a trial in which the plaintiffs’ claims are “tried jointly” for purposes of § 1332(d)(11)(B)(i), the results of the bellwether trial must have preclusive effect on the plaintiffs in the other cases as well.

In Briggs, we held that when plaintiffs propose a bellwether trial without saying anything more, we presume that they mean a bellwether trial in which the results will not be binding on the plaintiffs in the other cases but will instead be used for informational purposes only. Id. We must decide whether the plaintiffs in this case said something more in their consolidation motion to indicate that when they referred to “a bellwether-trial process,” they meant a process in which the results of the bellwether trial would have preclusive effect on the plaintiffs in the other cases.

Cordis contends that the plaintiffs did say something more, as Briggs requires, in several respects. First, Cordis argues that the plaintiffs must have been proposing a bellwether trial whose results would have preclusive effect because they requested consolidation under California Code of Civil Procedure § 1048(a). According to Cordis, § 1048(a) does not permit consolidation solely for pretrial purposes; thus, any request made under that statute must be construed as a proposal to try the plaintiffs’ claims jointly. We reject that reading of the statute, as nothing in the text of § 1048(a) precludes consolidation for pretrial purposes only. The text of the statute was revised in 1971 to conform in substance to Federal Rule of Civil Procedure 42, which has long been interpreted to allow for consolidation for pretrial purposes only. See MacAlister v. Guterma, 263 F.2d 65, 68-69 (2d Cir. 1958); 9A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2382, p. 19 & n.20 (3d ed. 2008). Nor have we found any California cases holding that § 1048(a) forbids consolidation for pretrial purposes only. The case Cordis cites to support its view admittedly states that § 1048(a) authorizes two types of consolidation, one involving consolidation for purposes of trial and the other involving consolidation for all purposes, including trial. Hamilton v. Asbestos Corp., 22 Cal.4th 1127, 1147, 95 Cal.Rptr.2d 701, 998 P.2d 403 (2000). But in that case the parties agreed that the actions had been consolidated at least for purposes of trial; the only issue was whether the consolidation extended to all other proceedings in the case as well. The court was not called upon to decide whether § 1048(a) permits consolidation for purposes of pretrial proceedings alone.

Second, Cordis contends that the plaintiffs’ references in their consolidation motion to “a bellwether-trial process” must have meant a trial that would have preclu-sive effect, because the plaintiffs also stated in the motion that creating such a process would “avoid the risk of inconsistent adjudications.” Cordis reads too much into the plaintiffs’ statements. Whenever the plaintiffs mentioned avoiding the risk of inconsistent adjudications, they mentioned it as one among several benefits of consolidating the cases “for purposes of pretrial discovery and proceedings, along with the formation of a bellwether-trial process.” We cannot tell from these statements whether avoiding the risk of inconsistent adjudications was deemed to be one of the benefits of creating a bellwether-trial process, or perhaps instead one of the benefits of consolidating the cases for pretrial proceedings. Consolidating the cases for pretrial proceedings could, on its own, avoid the risk of inconsistent adjudications by eliminating the prospect of different judges rendering conflicting rulings on motions for summary judgment or motions in limine concerning the admissibility of key evidence. Thus, the plaintiffs’ references to the avoidance of inconsistent adjudications do not necessarily shed light on which type of bellwether trial they were proposing. Since Cordis bears the burden of showing that the plaintiffs proposed a joint trial of their claims, see Scimone v. Carnival Corp., 720 F.3d 876, 882 (11th Cir. 2013), the inconclusive nature of the plaintiffs’ statements cuts against its position.

In this respect, our case differs from Corber, the precedent most supportive of Cordis’ argument. There, the plaintiffs requested coordination of their cases “for all purposes,” and in support of that request they stated that coordinating the cases would reduce the risk of inconsistent judgments and conflicting determinations of liability. 771 F.3d at 1223-24. We held that these statements confirmed that the plaintiffs’ request for coordination “for all purposes” included for purposes of trial, because the risks they mentioned would likely be reduced only through some form of joint trial. Id. But we noted that the result would have been different had the plaintiffs limited their request for coordination to pretrial matters. Id. at 1224-25. In that event, the reference to the risk of inconsistent judgments and conflicting determinations of liability would not have conveyed an intention to propose a joint trial. That is the situation here: The plaintiffs requested consolidation for pretrial purposes, and because their references to the avoidance of inconsistent adjudications could have been tied to that aspect of their request alone, those references do not necessarily say anything about whether they were proposing a joint trial.

Finally, Cordis argues that any uncertainty regarding what the plaintiffs meant by “inconsistent adjudications” is dispelled by the plaintiffs’ definition of that term: “different results because tried before different judge and jury, etc.” That language, read in isolation, does suggest that a joint trial would be needed to avoid the risk of inconsistent adjudications. But the definition appears in a passage of the motion devoted to explaining the general purposes of consolidation, not the purposes for which the plaintiffs sought consolidation in this case. Moreover, the plaintiffs immediately followed the definition, with this disclaimer: “To be clear, Moving Plaintiffs are not requesting a consolidation of Related Actions for purposes of a single trial to determine the outcome for all plaintiffs, but rather a single judge to oversee and coordinate common discovery and pretrial proceedings.” That statement negates any notion that the plaintiffs were speaking of a bellwether trial whose results would have preclusive effect in the other cases. And if further confirmation were needed that the plaintiffs proposed a bellwether trial to be used solely for informational purposes,.it can be found in their subsequent statement that “consolidation of the Related Actions may create the opportunity for settlement of cases. Bellwether trials would likely prove an effective tool to resolution of the ... cases.”

In short, the plaintiffs requested consolidation for purposes of pretrial proceedings, which standing alone does not trigger removal jurisdiction under CAFA’s mass action provision. The plaintiffs also requested consolidation for purposes of establishing a bellwether-trial process, but nothing they said -indicated that they were referring to a bellwether trial whose results would have preclusive effect on the plaintiffs in the other cases. The district court therefore correctly held that removal jurisdiction does not exist under CAFA’s mass action provision, and it properly remanded the cases to state court.

AFFIRMED.

      . Section 1048(a) provides: "When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.”