                 UNITED STATES COURT OF APPEALS
                      For the Fifth Circuit



                          No. 02-20857




                    RICHARD WILLIAM KUTZNER,

                                           Petitioner - Appellant,


                              VERSUS


 JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,


                                            Respondent - Appellee.



          Appeal from the United States District Court
               For the Southern District of Texas
                          August 7, 2002

      Application for Permission to File Successive Habeas


Before DAVIS, JONES, and DeMOSS, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

                                  I.

     Richard William Kutzner was convicted and sentenced to death

by a jury in Montgomery County Texas in September 1997 for the

murder of Kathryn Harrison.       He is currently scheduled to be

executed, August 7, 2002. Kutzner’s conviction was affirmed by the

Texas Court of Criminal Appeals, Kutzner v. State, 994 S.W.2d
180(Tex. Crim. App. 1999).          He did not seek a writ of certiorari

from the United States Supreme Court.

      Kutzner sought habeas relief in the Texas state court and

relief was denied by the Texas Court of Criminal Appeals.                 He then

sought federal habeas relief which was denied in the district court

and this court denied Kutzner a certificate of appealability.

Kutzner v. Johnson, 242 F.3d 605 (5th Cir. 2001).

      On    August    5,   2002,   Kutzner   filed   a   petition   in    federal

district court styled “Motion for DNA Testing” to form the basis

for   a    motion    for   authorization     to   file   a   successive   habeas

petition. Kutzner sought a stay from the district court and argued

that if he were permitted a stay and were permitted to conduct DNA

testing, he would seek to file four claims in a successive federal

habeas petition. The district court held that Kutzner had failed to

demonstrate that he had any colorable new constitutional claims to

offer that would qualify as a ground for a successive habeas

petition under 28 U.S.C. § 2244(b). The district court then denied

the application for stay and the request for DNA testing.

                                      II.

                                       A.

      Kutzner filed a notice of appeal from that ruling and an

application for a certificate of appealability.                Under the Anti-

Terrorism and Effective Death Penalty Act (AEDPA), a petitioner

must obtain authorization from the Court of Appeals before filing

a successive habeas corpus application. § 2244(b). This court is

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precluded from authorizing a successive petition unless the mover

shows that the claim sought to be asserted is based on either newly

discovered evidence or a new rule of constitutional law made

retroactive to cases on collateral review by the Supreme Court that

was previously unavailable. § 2244(b)(2)(a) and (b).

     Although     Kutzner      made   no    application       to    this    court   for

authorization to file a successive habeas petition, because of the

press of time, we treat Kutzner’s notice of appeal and application

for certificate of appealability as a motion for authorization to

file a successive habeas application. Our focus is on whether

Kutzner has demonstrated that the factual predicate for his claim

could   not   have    been   discovered          through    the    exercise    of    due

diligence;      and   whether    such      facts,     if     proven,       would    have

established that, but for the constitutional error, no reasonable

fact finder could have found petitioner guilty of murdering Ms.

Harrison.     28 U.S.C. § 2244(b)(2)(B)(I) and (ii).

                                           B.

     During the investigation of Ms. Harrison’s murder, the police

recovered scrapings of skin from under her fingernails and two

strands of hair on her body.          The fingernail scrapings and one of

the hairs were disclosed to Kutzner before trial.                         Before trial

neither   the    state   nor    Kutzner         undertook   to     test    either    the

fingernail scrapings or the hair then known to exist.                        Kutzner’s

counsel argued to the jury that the identification of the killer

was the sole issue before them and criticized the state for failing

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to test the nail scrapings and hair and produce DNA evidence that

could have revealed the killer’s identity. As the district court

noted, “Kutzner knew of the scrapings, blot, and first hair at

trial, on appeal, during his state habeas petition and during his

federal habeas petition.        He never requested its testing.”

                                     C.

      Kutzner raised three constitutional claims that allegedly

could   not   have    been   presented    earlier   due   to    prosecutorial

misconduct: (1) the State withheld potentially exculpatory evidence

— a hair as well as a red substance on cellophane collected at the

crime scene; (2) the State knowingly put on false testimony that no

DNA testing of fingernail scrapings collected at the crime scene

was possible; and (3) the State allowed false testimony concerning

the scrapings    to    go    uncorrected.    However,     Kutzner   fails   to

establish Brady1 or Giglio2 error that would qualify for successive

habeas relief.

      To establish a Brady v. Maryland claim, Kutzner must prove

that the prosecution suppressed favorable, material evidence that

was not discoverable through due diligence. 373 U.S. at 87; Rector

v. Johnson, 120 F.3d 551, 558 (5th Cir. 1998).                 Brady does not

obligate the State to furnish a defendant with exculpatory evidence

that is fully available to the defendant through the exercise of


  1
      Brady v. Maryland, 373 U.S. 83 (1963).
  2
      Giglio v. United States, 405 U.S. 150 (1972).

                                      4
reasonable diligence.         Rector, 120 F.3d at 558.             When evidence is

equally available to both the defense and the prosecution, the

defendant must bear the responsibility of failing to conduct a

diligent investigation.            Herrera v. Collins, 954 F.2d 1029, 1032

(5th Cir. 1992), aff’d, 506 U.S. 390 (1993).                 In this sense, Brady

applies only to “the discovery, after trial[,] of information which

had been known to the prosecution but unknown to the defense.”

United States v. Agurs, 427 U.S. 97, 103 (1976).

       In this case, essentially all of the “suppressed” evidence was

discussed at trial when State’s witness Peggy Frankhouser was

cross-examined       by    Kutzner      regarding     the    biological    evidence

collected at the crime scene.

       It is clear from the exchange with this witness that Kutzner

understood that at least one hair, possibly “a couple,” were

collected at the crime scene.             To the extent that Kutzner argues

that    a   second     hair       was   suppressed,     it    appears     that   Ms.

Frankhouser’s memory was somewhat incomplete; however, the issue

was not pursued.       Kutzner was also aware that fingernail scrapings

were   gathered      but    not    tested.     Further,      the    cellophane   was

discussed twice.           No evidence was suppressed and trial counsel

could have tested any piece of it at the time of trial.                     Kutzner

fails to demonstrate that prosecutorial misconduct in this regard

prevented him from discovering the factual basis of his successive

claims at the time his first habeas petition was litigated.


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     Similarly, Kutzner fails to prove the elements of Giglio v.

United States, i.e., that the State knowingly presented or failed

to correct materially false testimony during trial.        405 U.S. at

153-54; Kutzner v. Johnson, 242 F.3d at 609.        Importantly, due

process is not implicated by the prosecution’s introduction or

allowance of false or perjured testimony unless the prosecution

actually knows or believes the testimony to be false or perjured;

it is not enough that the testimony is challenged by another

witness or is inconsistent with prior statements.      Kutzner, 242

F.3d at 609; Koch v. Puckett, 907 F.2d 524, 531 (5th Cir. 1990);

United States v. Sutherland, 656 F.2d 1181, 1203 (5th Cir. 1981).

     As Ms. Frankhouser’s testimony makes clear, she was unsure of

the number of hairs collected and offered to consult her notes on

the matter.   Kutzner did not pursue the matter further.     Moreover,

Frankhouser testified that no DNA testing was conducted on the

fingernail scrapings, not that no DNA testing was possible.       Once

again, Kutzner chose not to pursue the matter.      As stated above,

Kutzner even argued the dearth of scientific evidence to the jury

as proof of reasonable doubt.   See, e.g., 13 SR 107-09.

     The   evidence   proving   Kutzner’s   guilt    was     certainly

circumstantial, but it was not weak. Tie wraps and electrical

wiring used to restrain the victim and choke her were linked to

Kutzner. Further, multiple items — money orders, a VCR, and a

computer keyboard — taken from the two crime scenes were traced


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back to Kutzner. Also and perhaps most damaging was evidence that

Kutzner committed another murder in Harris County about two weeks

earlier with striking similarities to the Harrison murder.                      In

light of this evidence, DNA exclusions or identifications from

fingernail scrapings or stray hairs could not have affected the

outcome of this case.         Both victims were murdered in a place of

business   where    dozens    -   possibly    hundreds    -     of   people    had

unwittingly deposited genetic material over the preceding months.

Petitioner focuses on the single strand of hair that the state

discovered since the trial.       But even if this hair is tested and it

is   determined    not   to   belong   to    Kutzner,    this    would   not    be

persuasive evidence of his innocence. This is particularly true in

light of the state’s strong circumstantial evidence of guilt.                   As

a result, Kutzner fails to make a prima facie showing that DNA

tests would prove his innocence of the murder of Kathryn Harrison.

      For the reasons stated above, Kutzner has failed to meet the

successive petition requirements of the AEDPA because:

      1)   Petitioner does not rely on a new rule of constitutional

           law;

      2)   He has not demonstrated that the predicate facts for his

           claims could not have been discovered previously through

           the exercise of due diligence; and

      3)   Even if the tests of hair and nail scrapings revealed

           that they belonged to someone other than Kutzner, this



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          would   be   insufficient    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.

                                III.

     Kutzner argues that we should not treat his pleadings filed in

the district court and in this court as an application to file a

successive habeas petition.   He relies on McFarland v. Scott, 512

U.S. 849 (1994), and its holding that appointed counsel and a stay

of execution is available in a post conviction proceeding under §

2254 or § 2255.   We do not agree with Kutzner, however, that this

right to a stay of execution is absolute.

     The core concern of McFarland — that an un-counseled prisoner

would be required to “proceed without counsel in order to obtain

counsel and thus would expose him to the substantial risk that his

habeas claims never would be heard on the merits,” 512 U.S. at 856

— is not implicated here.     Kutzner was represented by qualified

counsel appointed under section 848(q)(4)(B) and his original §

2254 petition was fully litigated on the merits.         Further, current

counsel has represented Kutzner for more than one year.                “The

McFarland Court was concerned only with that period of time between

the habeas petitioner’s motion for the appointment of counsel and

the filing of the initial petition.”        Turner v. Johnson, 106 F.3d

1178, 1182 (5th Cir. 1997) (emphasis added).       Thus, McFarland does


                                 8
not justify appointment of counsel or stay of execution for the

preparation of a second federal habeas petition.

     Finally, a federal court is without jurisdiction to consider

a request for stay of execution in connection with a successive

habeas petition “in the absence of express authorization by this

[C]ourt pursuant to 28 U.S.C. § 2244(b)(3)(A).”            Martinez v. Texas

Court of Criminal Appeals, 292 F.3d 417, 423 (5th Cir.), cert.

denied, 122 S. Ct. 1992 (2001). For reasons stated above, such

authorization   is   not   warranted       in   this   case.   Kutzner   had

sufficient time to seek appointment of counsel, investigate the

instant claims, and litigate them in his original habeas petition

because the bases of Kuztner’s claims were available to him since

the time of trial proceedings. Allowance of a stay of execution

under these circumstances would signal tacit approval of endless

stays for the preparation of endless successive petitions.

     Kutzner also argues that his motion for assistance to prepare

a successive petition should - like a Rule 60(b) motion - not be

characterized   as   an    attempt    to   file    a   successive   petition.

Contrary to Kutzner’s argument, a motion under Rule 60(b) is the

equivalent of a second or successive habeas petition subject to the

standards of section 2244(b).        Hess v. Cockrell, 281 F.3d 212, 214-

15 (5th Cir. 2002); Fierro v. Johnson, 197 F.3d 147, 151 (5th Cir.

1999), cert. denied, 530 U.S. 1206 (2000); United States v. Rich,

141 F.3d 550, 551-52 (5th Cir. 1998).             Like a Rule 60(b) motion,


                                      9
Kuztner’s motions for DNA testing and stay of execution in the

lower court essentially attacked his conviction and sentence on

constitutional grounds by leveling accusations of prosecutorial

misconduct.        Although his protestations are without merit, Kutzner

has no other explanation for why he did not raise the instant

issues earlier.        Thus, there is no functional distinction between

Kutzner’s motions and a request for successive habeas relief.

     Nevertheless, even assuming arguendo that Kutzner’s appeal

should    be       considered     an    application        for    certificate     of

appealability (“COA”), he is not entitled to relief.                      It is well

settled that the Court’s appellate jurisdiction in habeas cases is

premised on 28 U.S.C. § 2253(c)(1)(A).                 The COA standard to be

applied is whether Kuztner “has made a substantial showing of the

denial of      a    constitutional      right.”      28    U.S.C.   §   2253(c)(2);

Barefoot v. Estelle, 463 U.S. 880, 893 (1983); Dowthitt v. Johnson,

230 F.3d 733, 740 (5th Cir. 2000), cert. denied, 532 U.S. 915

(2001).     This standard “includes showing that reasonable jurists

could debate whether (or, for that matter, agree that) the petition

should have been resolved in a different manner or that the issues

presented      were    adequate    to   deserve     encouragement       to   proceed

further.”          Slack   v.   McDaniel,     529   U.S.   at    483-84    (internal

quotations and citations omitted); Dowthitt, 230 F.3d at 740.

     Ordinarily, “the determination of whether a COA should issue

must be made by viewing the petitioner’s arguments through the lens


                                         10
of the deferential scheme laid out in 28 U.S.C. § 2254(d).”

Barrientes v. Johnson, 221 F.3d 741, 772 (5th Cir. 2000), cert.

dismissed, 531 U.S. 1134 (2001). However, because Kuztner’s appeal

is functionally a second or successive petition for habeas relief,

Fierro v. Johnson, 197 F.3d at 151, Kutzner’s claims should be

viewed “through the lens” of 28 U.S.C. § 2244(b)(2).            In essence,

the issue is whether it is debatable that Kutzner has substantially

proved    the   elements   of     section    2244(b)(2)(B)(i)      &   (ii)    —

constitutional error and actual innocence established by newly

discovered evidence. Therefore, under either standard this appeal

is meritless.

                                  CONCLUSION.

       For reasons stated above, we treat Kutzner’s filings as a

petition for authority to file a successive habeas.             We conclude

that     Kutzner   has   failed    to    meet   the   successive       petition

requirements of 28 U.S.C. § 2244 (b)(2)(B)(i) and (ii).                       We,

therefore, deny petitioner authority to file a successive habeas

petition.    We also deny his motion for stay of execution.




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