                                                       United States Court of Appeals

                                                               Fifth Circuit
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 F I L E D
                                                             March 21, 2007
                            No. 07-20180


                                                         Charles R. Fulbruge III
In Re: ROY LEE PIPPIN                                            Clerk
                Movant


     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, Houston

                  On Motion for Stay of Execution



Before KING, HIGGINBOTHAM, and PRADO, Circuit Judges.

PER CURIAM:*

     On September 15, 1995, death-row inmate Roy Lee Pippin was

convicted of capital murder for intentionally killing two men

during the same criminal transaction and for intentionally

killing one of the men during the course of a kidnapping.1        At

the time of the killings Pippin was involved in a money

laundering scheme to transport the profits from cocaine sales in

the United States across the border to Mexico.    When

     *
         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this opinion should not be published and is not precedent except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.
     1
         The facts underlying Pippin’s conviction are detailed in

Pippin v. Dretke, 434 F.3d 782 (5th Cir. 2005).

                                  1
approximately $2 million in drug proceeds went missing, Pippin’s

immediate supervisor “Alfredo” directed Pippin to kidnap Elmer

Buitrago and his cousin, Fabio Buitrago.    After Pippin and his

cohorts kept the two men captive for several days, Pippin shot

each of the men approximately four times.    Pippin now faces

execution on March 29, 2007.

     In his initial federal habeas petition filed June 21, 2002,

Pippin asserted twenty-six separate claims for relief.    The

district court denied Pippin’s petition in two separate memoranda

and orders issued on November 23, 2004, and January 25, 2005,

respectively, and this court denied Pippin’s application for a

certificate of appealability in December 2005.    Pippin v. Dretke,

434 F.3d 782 (5th Cir. 2005).

     Pippin, acting pro se, now moves in this court for

authorization to file a successive application for writ of habeas

corpus with the United States District Court pursuant to 28

U.S.C. § 2244(b)(3)(A).   He contends that the claims asserted in

his successive application are based on newly discovered evidence

that was not available to allow timely submission to the federal

district court before its denial of his first petition.    Pippin

also moves for a stay of execution and for leave to proceed in

forma pauperis.   Because Pippin has failed to make a prima facie

showing that his application satisfies the requirements of

§ 2244(b)(2)(b)(i) and (ii), we DENY his motions.



                                 2
                        I.    AEDPA STANDARD

     The Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”) assigns circuit courts a “gatekeeping” role in the

consideration of successive federal habeas corpus applications,

requiring that an applicant who wishes to file a successive

application first “move in the appropriate court of appeals for

an order authorizing the district court to consider the

application.”   28 U.S.C. § 2244(b)(3)(A); Felker v. Turpin, 518

U.S. 651, 657 (1996).   In considering such a motion, this court

must determine whether “the application makes a prima facie

showing that the application satisfies the requirements of”

§ 2244(b).   28 U.S.C. § 2244(b)(3)(C).   The portion of § 2244(b)

relevant in this case requires that:

     (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).2    A prima facie showing that these

     2
         The other ground that may support consideration of a

successive federal habeas petition——a “claim [that] relies on a

new rule of constitutional law, made retroactive to cases on

collateral review by the Supreme Court, that was previously

unavailable”——is not asserted by Pippin.       28 U.S.C.

                                  3
requirements are met involves “simply a sufficient showing of

possible merit to warrant a fuller exploration by the district

court.”    In re Morris, 328 F.3d 739, 740 (5th Cir. 2003).

                        II.   PRIMA FACIE CASE

     Pippin identifies one set of recently obtained documents

that he believes supports a claim of actual innocence——three

letters sent to Pippin over the past year from a woman who

allegedly worked for Pippin’s supervisor Alfredo at the time of

the murders.   The letters describe nervous and suspicious

behavior by Alfredo and his associate, Cocoy, the day after the

murders and relate statements made by them concerning the

disposal of “it.”   In one letter the woman opines that the

murders were part of Alfredo and Cocoy’s “master plan” to “set

everything and everyone up to take the fall for the big heist,”

including Pippin.

     However, Pippin has failed to make a prima facie showing

that the letters cast sufficient doubt on his guilt to meet the

requirements of § 2244(b)(2)(B)(ii).    In fact, the first letter

acknowledges Pippin’s guilt, referring to “the incident that

occurred when [Alfredo] ordered [Pippin] to take care of the two

so called thieves” and confirming that Pippin “w[as] acting under

orders.”   Moreover, the vague statements concerning Alfredo’s

role in running the operation are consistent with the State’s



§ 2244(b)(2)(A).

                                   4
theory of Alfredo’s involvement and fail to implicate anyone

other than Pippin in carrying out the murders.

     Pippin also alleges that newly discovered evidence supports

his claims that the State violated Brady v. Maryland, 373 U.S. 83

(1963), by failing to turn over ballistics evidence and that the

State engaged in fraud to cover up the Brady violation.     However,

the evidence on which he relies is either not new or was

previously discoverable through the exercise of due diligence,

and, in any event, fails to cast doubt on his guilt in the manner

required by § 2244(b)(2)(B)(ii).3    Pippin’s remaining claims are

similarly unsupported by previously undiscoverable evidence that


     3
         To support the claims, Pippin relies on his own expert’s

ballistics report from the time of trial, statements from his

expert’s deposition taken during the course of his initial

federal habeas proceedings, affidavits from Pippin’s own attorney

that were drafted in 2000, and a recent response to an open

records request indicating that the City of Houston Police

Department did not maintain entry logs to track access to

ballistics evidence during the time of Pippin’s trial.    All but

the last piece of evidence were available to Pippin for timely

presentation in his initial federal habeas petition, and the

entry logs information was readily discoverable through the

exercise of due diligence.   Even if it were not, the information

has no bearing on his guilt.

                                 5
calls his guilt into question.4

                         III.   CONCLUSION

     For the foregoing reasons, we DENY Pippin’s motion for

authorization to file a successive habeas application.   His

motions for a stay of execution and for leave to proceed in forma

pauperis are also DENIED.   The State’s motion to strike Pippin’s


     4
         In addition to the previously mentioned claims, Pippin

alleges that he was denied effective assistance of counsel during

trial, appeal, and habeas proceedings; that he was denied the

right to present a duress defense during trial; that the Texas

capital sentencing schemes enacted since 1974 are

unconstitutional; that the Due Process Clause requires

proportionality review; and that the Texas method of execution by

lethal injection amounts to cruel and unusual punishment.

     In his discussion of these claims, Pippin refers to other

pieces of supposedly new evidence, including the affidavit of a

relative who describes his observations during Pippin’s trial, a

letter from the owner of the night club Pippin claims he was at

during the time of the murders stating that he was never

contacted by Pippin’s counsel (though also stating that he has no

memory of the day of the murders), and his belief that certain

people might have information leading to exculpatory evidence.

All of this information was previously known to Pippin, and none

of the information casts doubt on his guilt.

                                  6
motion for authorization to file a successive habeas application

is DENIED.




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