     Case: 16-20031      Document: 00513345181         Page: 1    Date Filed: 01/15/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                               No. 16-20031 & 16-20036                   United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
In re: RICHARD ALLEN MASTERSON,                                          January 15, 2016
                                                                           Lyle W. Cayce
              Movant                                                            Clerk




                          Motion for an order authorizing
                      the United States District Court for the
                       Southern District of Texas to consider
                     a successive 28 U.S.C. § 2254 application


Before OWEN, ELROD, and HAYNES, Circuit Judges.
PER CURIAM:*
       Richard Allen Masterson was convicted by a Texas state court of capital
murder and sentenced to death for the 2001 strangulation death of Darin
Shane Honeycutt, a crime to which Masterson confessed but later recanted.
Following unsuccessful direct appeal and state habeas proceedings, Masterson
petitioned the federal district court for habeas relief on several grounds; relief
was denied. We then denied a certificate of appealability, and the Supreme
Court denied certiorari. Masterson v. Stephens, 596 F. App’x 282 (5th Cir.),
cert. denied, 135 S. Ct. 2841 (2015). Following that decision, Masterson was
scheduled for execution on January 20, 2016. He filed a subsequent application
for a writ of habeas corpus and a request for a stay in the Texas Court of



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-20031 & 16-20036
Criminal Appeals (TCCA), which was denied as an abuse of the writ without
reaching the merits. Ex parte Masterson, No. WR-59,481-03 (Tex. Crim. App.
Jan. 11, 2016). His requests for writs of prohibition filed in that court were
also denied. In re Masterson, No. WR-59,481-04 and WR-59,481-05 (Tex. Crim.
App. Jan. 15, 2016).
       Masterson now seeks this court’s permission to file an application for a
successive habeas petition and for stay of execution. 1 He phrases his request
as follows:
              Mr. Masterson seeks authorization to file[] the
              following claims in a successive federal habeas
              petition:

              1. Mr. Masterson is actually innocent of murder, so his
              confinement and death sentence violate the Eighth
              Amendment’s ban on cruel and unusual punishment
              and [the] Fourteenth Amendment’s guarantee of
              substantive due process.

              2. Mr. Masterson is innocent of capital murder, so his
              confinement and death sentence violate the Eighth
              Amendment’s ban on cruel and unusual punishment
              and the Fourteenth Amendment’s guarantee of
              substantive due process.

              3. In violation of Napue v. Illinois, 360 U.S. 264 (1959),
              and Giglio v. United States, 405 U.S. 150 (1972), the
              State presented and failed to correct false and
              misleading expert testimony regarding the cause of
              the complainant’s death.

              4. In violation of Brady v. Maryland, 373 U.S. 83
              (1963), the State withheld and continues to suppress
              material exculpatory evidence that its expert witness


       1Masterson’s application to our court was filed under case number 16-20031. He
simultaneously filed an application with the district court that was transferred to this court
and docketed as case number 16-20036. The two were then consolidated.
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                              No. 16-20031 & 16-20036
            and attending medical examiner was not qualified to
            perform the complainant’s autopsy, causing him to
            issue an incorrect opinion on the complainant’s cause
            of death.

            5. In violation of Brady v. Maryland, 373 U.S. 83
            (1963), the State withheld and continues to suppress
            material impeachment evidence that its expert
            witness and attending medical examiner falsified his
            qualifications on his employment application, was
            unqualified to perform autopsies, regularly perjured
            himself when testifying about his qualifications to
            testify as an expert witness, and perjured himself in
            Mr. Masterson’s trial.

      A claim previously presented in a prior federal habeas application must
be dismissed. 28 U.S.C. § 2244(b)(1). As a prerequisite to filing any other
claims through a successive habeas application, Masterson must obtain a
certification from this court under § 2244(b)(3). In order to do so, he must make
a prima facie showing of entitlement to relief by demonstrating that it is
“reasonably likely that the application satisfies the stringent requirement for
the filing of a second or successive petition.” In re Morris, 328 F.3d 739, 740
(5th Cir. 2003). For claims of “newly discovered evidence,” the only prong at
issue here, the requirements for that showing are set forth in 28 U.S.C.
§ 2244(b)(2)(B) as follows:
            (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)(B).

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                                No. 16-20031 & 16-20036
       Turning to Masterson’s first two issues, Masterson contends that he is
“actually innocent” of the offense and, therefore, does not need to make the
requisite showing.        We are bound by our clear precedent that we do not
recognize freestanding claims of actual innocence. United States v. Fields, 761
F.3d 443, 479 (5th Cir. 2014) (denying request for a certificate of appealability
on a claim of “actual innocence”), cert. denied, 135 S. Ct. 2803 (2015). In any
event, his claims of actual innocence rest upon alleged problems with the
autopsy of his victim that were the subject of previous challenges to his
conviction (albeit under different legal theories) and, thus, are not newly
discovered. 28 U.S.C. § 2244(b)(2). The State has also presented a letter from
Masterson from 2012 again confessing to the crime in question. Although
Masterson argues that “new evidence” raises questions about his mental state
at various points, his prior application already discussed his history of
substance abuse and organic brain dysfunction. These are not “new” points
even if Masterson has a “new” expert. 2 We conclude that permission to file a
successive habeas petition premised upon the first two issues should be denied.
       The final three issues concern the testimony of Paul Shrode, a medical
examiner who testified that Honeycutt’s death was not an accident. 3                         As



       2 Masterson points to no case that authorizes a successive habeas application based
upon continually evolving psychological research and analysis. Further, this evidence is
based upon evolving science since the 2002 trial, not since the April 2013 date of the original
federal habeas petition that we use to evaluate “new” evidence.
       3 Curiously, Masterson failed to raise these issues in his application for a subsequent
writ filed with the TCCA within the past month. Although he referenced the same issues
with Dr. Shrode’s credibility that he raises here, he did so only as part of his attack on the
underlying autopsy report. He did not raise separate Brady, Giglio, and Napue claims. The
State contends, therefore, that these claims are unexhausted and procedurally
defaulted. Because we deny relief on other grounds, we need not consider this argument. See
28 U.S.C. § 2254(b)(2) (“An application for a writ of habeas corpus may be denied on the
merits, notwithstanding the failure of the applicant to exhaust the remedies available in the
courts of the State.”); Trottie v. Stephens, 720 F.3d 231, 244 n.6 (5th Cir. 2013) (applying this
section to deny a COA on the question of exhaustion where a COA is denied as to the merits).
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                                No. 16-20031 & 16-20036
mentioned above, Masterson’s arguments about the cause of the victim’s death
in this case are not newly discovered. See id. The original trial focused on
whether Honeycutt was intentionally strangled or was the accidental victim of
a sex act gone wrong that resulted in an unexpected and unforeseeable heart
attack. It was undisputed that Masterson applied some degree of force to
Honeycutt’s neck. What was disputed was his intent in doing so and the extent
to which Honeycutt’s own medical issues (heart arrhythmia and artery
blockage) led to his death by a heart attack (rather than hypoxia from
strangulation). Masterson’s original confession admitted his intent, while his
subsequent trial testimony suggested that the death was an accident.
       In support of his arguments, Masterson proffers a new witness, Dr.
Christena Roberts, who contests Dr. Shrode’s findings and methods and
contends that Honeycutt was not strangled to death. Although this witness
may be “new,” the issue of causation is as old as the case itself. 4
       Masterson challenged Dr. Shrode’s opinion in his original habeas
application to the state court and to the federal court through the argument
that his counsel provided ineffective assistance in countering Dr. Shrode’s



       4   Dr. Roberts’s criticisms of the autopsy report are not based upon a “new” factual
predicate but upon the original autopsy presented at the original trial, which was previously
reviewed by two different defense experts (one at the original trial and one as part of the
original state habeas proceeding). Dr. Roberts’s “new” criticisms of an old document are not
“new” within the meaning of successive habeas applications. See Dowthitt v. Johnson, 230
F.3d 733, 742–43 (5th Cir. 2000) (holding that newly submitted affidavits, the substance of
which was presented at the original trial, did not qualify as newly discovered evidence);
Flanagan v. Johnson, 154 F.3d 196, 199 (5th Cir. 1998) (distinguishing a petitioner’s
“knowledge of the factual predicate” of a claim with the “gathering [of] evidence in support of
that claim”); cf. Prince v. Thaler, 354 F. App’x 846, 848 (5th Cir. 2009) (finding new expert
testimony insufficient to toll the statute of limitations on a habeas petition because it merely
opined that the State’s scientific testing process was imperfect and failed to rebut other
circumstantial evidence); Turner v. Epps, 412 F. App’x 696, 704–06 (5th Cir. 2011) (denying
a certificate of appealability because “the opinions expressed in the new expert affidavits . . .
indicate[d] a mere disagreement among experts”).


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                             No. 16-20031 & 16-20036
testimony. See Masterson v. Thaler, No. 4:09-CV-2731, 2014 U.S. Dist. LEXIS
26226, at *20–32 (S.D. Tex. Feb. 28, 2014). The evidence developed in the state
habeas proceeding showed that original trial counsel had hired a medical
expert who thoroughly examined Dr. Shrode’s opinions.          Id. at *22–28.
Ultimately, trial counsel did not call that expert because they were able to
obtain concessions from Dr. Shrode on cross-examination on all the points they
would have made through their own witness. Id. at *26.
      In the original state habeas proceeding, Masterson offered the testimony
of Dr. Paul Radelat, who attempted to explain how Honeycutt’s death could
have been unintentional in light of Masterson’s trial testimony that he applied
force to Honeycutt’s neck:
            Expressed in other terms, the choke/sleeper hold
            applied to the neck of Darin Shane Honeycutt at his
            request for erotic effect by Defendant Richard
            Masterson in reasonable medical probability could
            have produced the desired erotic effect, i.e. decreased
            consciousness, while almost simultaneously producing
            the decidedly undesirable effect of cardiac arrhythmia.
            This transition to cardiac arrhythmia, producing
            increasing      semi-consciousness     and     eventual
            unconsciousness may not have been recognizable to
            Defendant Richard Masterson who may not then have
            reduced the hold quickly enough to avert irreversible
            consequences. This sequence of events would be
            consistent with the facts related by Richard Masterson
            in his trial testimony.
Id. at *29–31.
      In light of this evidence, on initial federal habeas review, the district
court concluded that Dr. Shrode ultimately conceded every point made by Dr.
Radelat’s affidavit, except for the ultimate conclusion of whether or not the
death was accidental: “In fact, the only meaningful difference between the
information derived during cross-examination [at the original trial] and that

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                           No. 16-20031 & 16-20036
in Dr. Radelat’s affidavit is an expert opinion that the death was not
accidental.” Id. at *35–36. As the State points out, even as to the question of
whether the death was intentional or accidental, Dr. Shrode had to concede
that such a judgment is less medical and more evidentiary.
      The federal district court also noted the other evidence that was
inconsistent with an accidental death: Masterson’s confession, his conduct of
stealing the victim’s car and fleeing the scene, his statements to other people
in the aftermath of the death indicating his intent to kill (including a statement
to his brother that the idea that Honeycutt died of a heart attack was “bull
sh**”), and his subsequent strangling of another victim (who survived) in a
similar circumstance within days of Honeycutt’s death.          Id. at *37.    As
mentioned above, Masterson also wrote a letter in 2012, again confessing to
the crime.
      Masterson, then, cannot argue that the evidence related to the
disagreement over causation is newly discovered.        28 U.S.C. § 2244(b)(2).
Instead, he argues that the State has concealed and is currently concealing
evidence drawing into question Dr. Shrode’s credentials and credibility.
Specifically, Masterson contends that the following information should have
been provided to Masterson by the State previously:
      1. A 2010 grant of clemency to a petitioner, Richard Nields, in Ohio as
         a result of a new doctor’s review of Dr. Shrode’s 1997 autopsy of the
         victim that revealed “serious flaws” in Dr. Shrode’s work.
      2. Misstatements in Dr. Schrode’s application to the Harris County
         Medical Examiner’s Office (where he conducted the autopsy at issue)
         regarding his qualifications to the effect that he had a paralegal
         degree from Southwest Texas State University when he did not.
      3. Misstatements in Dr. Shrode’s application to the El Paso Medical
         Examiner’s Office (after the original trial in this case) that were
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                                No. 16-20031 & 16-20036
           discussed in a newspaper article dated February 2010 and for which
           he was fired by El Paso in May of 2010. In a 2007 child protective
           services trial, these misstatements came to light.
       4. After Masterson’s trial, Harris County reprimanded Dr. Shrode 5 for
           his work in a different case and again for having too high a backlog of
           cases.
       Assuming without deciding that these issues are not barred under 28
U.S.C. § 2244(b)(1) (i.e. assuming that the arguments about Dr. Shrode are
newly presented), Masterson must still make a showing that it is “reasonably
likely” that he can show that the factual predicate for this claim “could not
have been discovered previously through the exercise of due diligence” and that
the newly discovered facts “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.” In re Morris,
328 F.3d at 740; 28 U.S.C. §§ 2244(b)(2)(B). Given that the autopsy itself and
its attendant alleged failings are not “new” in any respect, the only contention
that arguably is “new” is the argument that Masterson now has impeachment
evidence as to Dr. Shrode that he previously lacked.
       We conclude that Masterson has not made the required prima facie
showing on either prong of 28 U.S.C. § 2244(b)(2)(B). First, as to due diligence,
while our case law has not been entirely clear, we have judged the time of
“discovery” as the time at which the matter was first litigated in the federal


       5 Masterson’s application repeatedly states that Dr. Shrode was “reprimanded” after
the original trial in this case but supports that statement only with two documents: (1) a
counseling worksheet from 2001 (before the trial) that involved a drug overdose case, not a
strangling, and states it was put in Dr. Shrode’s file; and (2) a December 2003 memo that Dr.
Shrode had too many pending incomplete autopsies. Masterson does not provide any
evidence from original trial counsel or review of original trial counsel’s file that Dr. Shrode’s
personnel file was not turned over or made available at the time of trial or that existing
documents were missing from it.
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                                No. 16-20031 & 16-20036
habeas proceeding. Kutzner v. Cockrell, 303 F.3d 333, 336 (5th Cir. 2002)
(denying motion to submit a successive habeas petition because petitioner had
failed to show that he could not have “discover[ed] the factual basis of his
successive claims at the time his first habeas petition was litigated” (emphasis
added)). Masterson filed his first federal habeas petition in 2009. However,
his case was stayed for a time, and thereafter, he was allowed to file an
amended petition that included new claims in April of 2013. Thus, we conclude
this latter date is the relevant date for judging whether and when Masterson
should have previously discovered the alleged misstatements about Dr.
Shrode’s credentials and his alleged lack of expert ability. Id. Masterson offers
nothing to explain why he now knows about Dr. Shrode’s deficiencies but could
not have discovered those problems by April of 2013. He explains only that Dr.
Shrode’s troubles came to light in jurisdictions outside of the Southern District
of Texas (in Ohio and El Paso, in 2010). We conclude that Masterson does not
make a prima facie showing of due diligence.
       But even assuming arguendo that in the exercise of reasonable diligence
Masterson could not have discovered this information sooner, Masterson has
failed to state a prima facie case that, if informed as to Dr. Shrode’s
deficiencies, no reasonable factfinder would have found Masterson guilty. 6 See
28 U.S.C. § 2244(b)(2)(B). Masterson repeatedly argues that Dr. Shrode lacked
the credentials to conduct the autopsy in 2001, but in support of that argument
cites only the misstatement regarding Dr. Schrode’s paralegal certificate. He



       6 The State also argues that Masterson’s proposed successive petition is time-barred
under 28 U.S.C. § 2244(d). We have previously treated such an argument as premature. See
In re Henderson, 462 F.3d 413, 417 (5th Cir. 2006). Under § 2244(d)(1)(D), the petition would
be timely if filed within a year of the date that the “factual predicate of the claim or claims
presented could have been discovered through the exercise of due diligence.” Since we
conclude that Masterson did not make a prima facie showing of the diligence necessary to
obtain a § 2244(b)(3) certification, we need not address this argument.
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                                 No. 16-20031 & 16-20036
cites nothing that would show that a paralegal certificate is a requirement for
conducting a competent autopsy. He cites nothing in the record that suggests
that the paralegal certificate was an important part of Dr. Shrode’s credentials
at the original trial. He has not shown that any of Dr. Shrode’s underlying
medical credentials are false or a sham.                     When viewed against the
overwhelming corroborating evidence 7 of Masterson’s guilt, we cannot
conclude that Masterson has made a prima facie showing that “no reasonable
factfinder” would have found Masterson guilty of this crime if the factfinder
had known that Dr. Shrode did not have a paralegal certificate. 28 U.S.C.
§ 2244(b)(2)(B)(ii).
       More basically, with the exception of the misstatement in Dr. Shrode’s
application to Harris County, 8 all of the supposedly exculpatory impeachment
evidence that the State allegedly concealed either had not yet occurred when
Dr. Shrode testified at Masterson’s trial in 2002 (the alleged misstatements to
El Paso, the “reprimands” by Harris County, 9 and the alleged lies in the child
protective trial) or could not have been discovered by the State of Texas at that
time (the “botched autopsy” of 1997 in Ohio that did not come to light until
2010). Perhaps arguably a prosecutor has a continuing obligation to turn over
impeachment evidence that was previously improperly suppressed. However,
Masterson points to no authority for the proposition that a prosecutor has a
duty to turn over subsequently discovered information about a witness related



       7  Masterson attempts to argue away the evidence of his confession and his suspicious
actions following Honeycutt’s death by arguing that his conduct was the result of his drug-
and-alcohol-impaired mind but, as we discuss above, these matters have already been
explored in his prior federal habeas case.
       8There is no evidence that the prosecution team knew about Dr. Shrode’s Harris
County application misstatement in 2002; we will assume arguendo, however, that Dr.
Shrode should have known and should have disclosed this fact.
       9   There is some lack of clarity to this allegation as discussed in footnote 5 above.
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                              No. 16-20031 & 16-20036
to events that had not yet occurred at the time of trial but would nevertheless,
if a time machine were available, be useful to impeach the witness’s credibility.
See generally Dist. Attorney’s Office for Third Judicial Dist. v. Osborne, 557
U.S. 52, 68 (2009) (discussing temporal limitations on Brady duties).
Masterson’s theory essentially is that if a witness who testifies for the State
ever lies or commits other misdeeds thereafter, the defendant is entitled to a
new trial. Masterson provides no case that reaches that broadly, nor would
such a rule make sense. 10 We conclude that he has failed to make a prima facie
case of the second prong as well.
            We thus conclude that Masterson has failed to meet the standard for a
§ 2244(b)(3) certification, and we DENY permission to file a successive habeas
petition. In light of the foregoing, we also DENY Masterson’s request for a stay
of execution.




       10 Masterson’s reply brief argues that if the State did not know about these issues
with Dr. Shrode, then he cannot be faulted for not knowing them. This argument overlooks
the timing issue. At the time of trial, there is no showing that anyone was aware of
unrevealed issues with Dr. Shrode, because none of his questionable conduct had yet
occurred, other than the misstatement in his Harris County application (the “botched” Ohio
autopsy had occurred in 1997, but there is no indication anyone knew it was “botched’ until
2010). But by 2010, by Masterson’s own exhibits, all of the information upon which he now
relies was public. Again, he does not explain how he knows this information now but did not
know it before April of 2013.
                                            11
