     Case: 15-50522      Document: 00513886517         Page: 1    Date Filed: 02/22/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                       United States Court of Appeals
                                                                                Fifth Circuit

                                      No. 15-50522                            FILED
                                                                       February 22, 2017
                                                                         Lyle W. Cayce
TOMAS VIZCARRA,                                                               Clerk

              Petitioner - Appellant

v.

KENNETH REAGANS, Warden,

              Respondent - Appellee




                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 3:10-CV-159


Before REAVLEY, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:*
       This defendant was convicted of murder, and the date of final conviction
was March 2, 1999. The time for habeas collateral attack expired on March 2,
2000. The defendant did not file for habeas until more than seven years later.
However, with the Supreme Court allowing a claim for actual innocence to go
forward with some consideration of time; the Court sent back the case to this
court for consideration of McQuiggin v. Perkins, 133 S. Ct. 1924 (2013). The


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-50522
Court had held in Schlup v. Delo, 115 S. Ct. 851 (1995) that the time
requirement does not prevent correcting a fundamental miscarriage of justice
if a petitioner makes a credible showing of actual innocence. We decide in this
case that there has been no credible showing of actual innocence and affirm
the judgment.
      Martha Carzoli was an important witness for the prosecution, since she
was the one who testified that she actually saw the defendant as he shot and
killed the deceased. The evidence of innocence is based on an affidavit she
signed on November 14, 2006 saying that she now is not sure that the person
responsible for the shooting was Tomas Vizcarra.          She disclaims naming
anyone else as the shooter and only that she is not really sure of the
identification she originally made.
      Carzoli had no uncertainty about what she had seen or what she said in
1994 and 1997. She had been busily working as a waitress on the night of the
shooting. The following day, October 15, 1994, she went to the El Paso Police
Department and made a full statement about what she had seen the night
before. She described what the defendant had been wearing and how he
walked up to the victim and shot him in the head. She made a lengthy report
about what happened from the beginning to end. Another man had come into
the bar with the defendant, one she knew and one never seen before. Carzoli
positively identified the shooter as the stranger wearing dark blue pants and
a dark blue windbreaker. She told about the effort to keep the defendant from
escaping and how, when she was in the parking lot trying to hold him for the
police, he told her to shut up and not say anything. Then Carzoli testified at
length before the jury in February of 1997. She identified the defendant in the
courtroom. She testified that the defendant had many tattoos and she had
seen him come back in the bar, taking out a gun from his pocket as he walked,


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                                No. 15-50522
and shoot the victim. She said that she had a good view of all of the action.
She had given the same testimony before the grand jury.
     With this record, we conclude that this defendant has no credible
evidence of innocence and affirm.
     AFFIRMED.




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