     Case: 15-40554      Document: 00513019100         Page: 1    Date Filed: 04/24/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 15-40554                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
In re: ROBERT LYNN PRUETT,                                                  April 24, 2015
                                                                           Lyle W. Cayce
              Movant                                                            Clerk




                       On Motion for Authorization to File
                      Successive Petition for Writ of Habeas
                    Corpus in the United States District Court
                For the Southern District of Texas, Corpus Christi


Before STEWART, Chief Judge, and JOLLY and SMITH, Circuit Judges.
PER CURIAM:*
       Robert Lynn Pruett was sentenced to death for capital murder in Texas
in 2002 and is scheduled to be executed on April 28, 2015. On April 23, he
moved for this authorization to file a successive federal habeas petition to raise
two claims:
       (1) In view of recently discovered evidence, as well as the discovery of
evidence that should have been revealed to his trial counsel under Brady v.
Maryland, 373 U.S. 83 (1963), no reasonable juror would have voted to convict
Pruett of capital murder.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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      (2) Recently discovered evidence, which was wrongfully withheld from
his trial counsel in violation of Brady v. Maryland, further buttresses the
proposition that, in view of the totality of the evidence, no reasonable juror
would have voted to convict him of capital murder.
      He further asserts that his application is based on the Eighth
Amendment, which bars his execution because he is actually innocent of
capital murder, and a violation of his Fourteenth Amendment right to due
process, because the State (1) failed to disclose deals made with inmates who
testified against him, (2) failed to correct false testimony given by one of those
inmates, (3) failed to disclose it had threatened with retaliation inmates who
wished to testify for him, and (4) failed to preserve physical evidence which
could demonstrate his innocence.
      A brief description of the evidence and procedural history, for context,
follows.
      Pruett was convicted and sentenced to death for the murder of Texas
Department of Criminal Justice Correctional Officer Daniel Nagle, which he
committed while serving a life sentence for a prior murder. Nagle was stabbed
with a shank made of a metal rod sharpened to a point at one end, and wrapped
in tape at the other end. The State argued that Pruett’s motive for the murder
was that he was upset because Officer Nagle had written a disciplinary report
for Pruett’s having food in an area of the prison where food was not permitted.
The shank and torn pieces of the disciplinary report were found near Officer
Nagle’s body after the murder. Blood found on the torn disciplinary report was
tested for DNA and found to have come from Officer Nagle. There was no
physical evidence connecting Pruett to the murder. The evidence against him
consisted largely of testimony from inmates. We described that evidence in
our opinion affirming the denial of Pruett’s first federal habeas petition as
follows:
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      Inmates Allen Thompson and Johnny Barnett testified that they
      were in the multi-purpose room and saw and heard Pruett
      attacking Nagle. Inmate Anthony Casey testified that he heard
      Pruett talking about a weapon with another inmate before the
      attack. Casey, through a recreation yard window, later saw Pruett
      near Nagle’s desk, and then saw Pruett remove his clothing in a
      hallway and push it through a gas port into the recreation yard.
      Inmates James Dale Keller, Robert Michael Lewis, and Jimmy
      Mullican testified that they witnessed Pruett’s attack on Nagle
      from the craft shop across from the multi-purpose room. Inmate
      Harold Mitchell testified that he was in the multi-purpose room
      before the attack. He said that Pruett came into the room and
      suggested that he leave because Pruett was going to “do
      something.” When Mitchell questioned Pruett, Pruett said that he
      was going to kill Nagle. According to Mitchell, Pruett said that he
      was tired of life in prison and wasn’t going to kill himself, but didn’t
      have a problem making the State do it for him.
Pruett v. Thaler, 455 F. App’x 478, 480 (5th Cir. 2011).
      Inmate Mullican also testified that, at the request of Pruett’s cellmate,
Shelton Phillips, Mullican gave some tape to Pruett. The day after the murder,
two rolls of tape were collected from Phillips’s workstation in the craft shop.
An expert witness for the State, Lisa Harmon Baylor, testified that based on
her analysis, one of the rolls of tape removed from Phillips’s workstation was
the source of the tape that was wrapped around the shank.
      Pruett maintains that others at the prison might have had a motive for
wanting Nagle dead because there was a drug smuggling and money
laundering operation at the prison, Nagle was aware of it, and was in the
process of writing a grievance about it when he was murdered. He asserts that
the indictment of three correctional officers for laundering drug money for
inmates increased the plausibility that he had been framed for the murder.
Pruett testified at trial that he watched Officer Nagle tear up the report.
However, his proposed successive petition alleges that he believed “that
someone else tore up the pieces of the disciplinary report in an attempt to

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frame him for the murder of Officer Daniel Nagle and that the person who tore
up the disciplinary report and killed Officer Nagle might have left a sufficient
amount of epithelial cells on the report to allow for the creation of a DNA profile
that would aid in identifying the actual murderer.” Therefore, on May 17,
2013, he filed in state court a motion for DNA testing using techniques that
were not available at the time of trial.
      The State sent the torn disciplinary report to the University of North
Texas Center for Human Identification (UNTCHI) for collection and analysis
of DNA.    On July 9, 2013, UNTCHI reported that its testing had been
inconclusive. At Pruett’s request, the trial court appointed an expert, whose
review revealed that the 12 allele was present in an amount above the
analytical threshold at the D13 locus. Because the DNA profiles of both Nagle
and Pruett contain the 12 allele at the D13 locus, neither of them could be
eliminated as being a possible source of the DNA on the disciplinary report.
Because the 12 allele is present at the D13 locus in the DNA profiles of
approximately 20% of the Asian and Hispanic populations, 30% of the
Caucasian population, and 40% of the African American population,
approximately one-third of the inmates and guards at the prison where Nagle
was murdered could not be excluded as contributing the DNA present on the
torn disciplinary report. The state trial court concluded that the DNA evidence
was not exculpatory and the TCCA affirmed. Pruett v. State, No. AP-77,037,
2014 WL 5422573 (Tex. Crim. App. Oct. 22, 2014). The Supreme Court denied
Pruett’s petition for a writ of certiorari. Pruett v. Texas, No. 14-8097, 2015 WL
302598 (U.S. Mar. 30, 2015).
      Having described the relevant facts and procedural history, we now turn
to consider whether Pruett has satisfied the statutory requirements for filing
a successive habeas petition.


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      Pursuant to 28 U.S.C. § 2244(b)(3), we may authorize the filing of a
successive habeas application only if we determine that the application makes
a prima facie showing that the application satisfies the requirements of §
2244(b). The claims Pruett seeks to raise in a successive petition were not
presented in his initial federal habeas petition. Therefore, he has to make a
prima facie showing that his application satisfies the requirements of 28 U.S.C.
§ 2244(b)(2), which provides in relevant part that:
            (2) A claim presented in a second or successive habeas corpus
      application under section 2254 that was not presented in a prior
      application shall be dismissed unless—
                   ....
                   (B)(i) the factual predicate for the claim could not have
            been discovered previously through the exercise of due
            diligence; and
                   (ii) the facts underlying the claim, if proven and
            viewed in light of the evidence as a whole, would be sufficient
            to establish by clear and convincing evidence that, but for
            constitutional error, no reasonable factfinder would have
            found the applicant guilty of the underlying offense.
28 U.S.C. § 2244(b)(2).
      Pruett argues that he has made a prima facie showing that his
application satisfies the requirements of § 2244(b)(2)(B). He contends that the
factual predicate for his claims could not have been discovered previously
through the exercise of due diligence; furthermore, the facts underlying his
claims would be sufficient to establish by clear and convincing evidence that
no reasonable juror would have found him guilty of capital murder.
      Specifically, Pruett contends that the factual bases for his claims did not
exist until after he filed his first federal habeas petition in 2006: (1) the
technique used for the 2013 DNA analysis was not widely available until 2007
or 2008; (2) the National Academies of Science report, which discredits physical
matching comparisons, and therefore discredits the State’s expert’s testimony
about the tape wrapped around the handle of the murder weapon, was not
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available until 2009; and (3) the undisclosed evidence that Harold Mitchell, an
inmate witness, did not acknowledge that he wanted the authorities to transfer
him out of state, could not have been discovered until the Special Prosecution
Unit released its records in 2013.
      Pruett argues that, in the light of the fact that there is no physical
evidence connecting him to the murder, no reasonable juror would have
convicted him if the jury had known (1) the results of the DNA analysis
conducted in 2013, (2) that the State’s expert’s testimony about the tape was
based on discredited “junk” science, (3) that numerous other people in the
prison had a motive to see Officer Nagle dead and that the DNA evidence does
not exclude those others, (4) that Harold Mitchell falsely testified that he had
not been promised anything other than that the prosecutors would do their
best to ensure his safety and might write a favorable letter to the parole board,
and (5) the full extent of the negative treatment received by inmates who
refused to testify for the State or who desired to testify for Pruett.
      Even if we assume that Pruett has made a prima facie showing that the
factual predicates for his claims could not have been discovered previously
through the exercise of due diligence, he has not made a prima facie showing
that the facts underlying his claims, “if proven and viewed in light of the
evidence as a whole, would be sufficient to establish by clear and convincing
evidence that, but for constitutional error, no reasonable factfinder would have
found [him] guilty of the underlying offense.” 28 U.S.C. § 2244(b)(2)(B)(ii). For
example, Pruett’s theory that the murderer tore up the disciplinary report is
inconsistent with his trial testimony that Officer Nagle tore up the report;
Pruett’s preparation for, and carrying out of, the murder of Officer Nagle was
witnessed by several inmates (whose deals with the State were disclosed at
trial); and he admitted to other inmates that he had killed Officer Nagle. See
Pruett, 455 F. App’x at 480-81. Still further, the May 2013 DNA analysis,
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which shows that Pruett and one-third of the others at the prison could have
been the source for DNA found on the torn disciplinary report, does not
exonerate Pruett.    Pruett has not demonstrated by clear and convincing
evidence that the State’s expert’s testimony concerning the tape has been
discredited by the 2009 report, which criticized bite-mark evidence, but did not
address analysis of fiber evidence such as the tape. In the light of the trial
testimony which disclosed many of the problems with the inmates’ credibility,
Pruett has not shown by clear and convincing evidence that he would not have
been convicted if the jury had known about Harold Mitchell’s desire to be
transferred out of state and had known further details about negative
treatment of inmates who wanted to testify for Pruett or refused to testify for
the State.   In sum, Pruett has not made a prima facie showing that his
proposed successive application satisfies the requirements of § 2244(b)(2).
      IT IS ORDERED that Pruett’s motion for authorization to file a
successive habeas corpus petition is DENIED.
      IT IS FURTHER ORDERED that Pruett’s motion for a stay of execution
is DENIED.




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