        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                                 No. 18-10337                  United States Court of Appeals
                                                                        Fifth Circuit

                                                                      FILED
In re: ROSENDO RODRIGUEZ, III,                                  March 23, 2018
                                                                 Lyle W. Cayce
              Movant                                                  Clerk


                                   ORDER


Before JONES, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:
      Rosendo Rodriguez, III (“Rodriguez”) was convicted of capital murder
and sentenced to death in 2009. He is scheduled to be executed by the State of
Texas on March 27, 2018. Rodriguez challenged his conviction and sentence
on direct appeal, in state post-conviction proceedings, and in a federal habeas
proceeding; none of these were successful.
      On March 19, 2018, eight days before his scheduled execution, he filed a
motion to reopen his federal habeas proceedings under Federal Rule of Civil
Procedure 60(b). The following day, Rodriguez filed motions for authorization
to file a successive petition and to stay execution in this court. On March 22,
the district court held that Rodriguez’s Rule 60 Motion constituted a successive
petition for habeas relief under 28 U.S.C. § 2244(b) and transferred the case to
this court.
      Because Rodriguez fails to demonstrate he is entitled to file a successive
habeas petition, we DENY Rodriguez’s request to file a successive petition and
DENY his request for a stay of execution.
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                                      I.
      The facts surrounding Rodriguez’s conviction are set forth in our
previous opinion. Rodriguez v. Davis, 693 F. App’x 276 (5th Cir.), cert denied,
138 S. Ct. 389 (2017). Briefly, Rodriguez was convicted and sentenced to death
in Texas in March 2009 for the 2005 capital murder of Summer Baldwin, a
pregnant prostitute, committed in the course of his committing or attempting
to commit aggravated sexual assault. Baldwin’s body was discovered in a
Lubbock city landfill, stuffed in a suitcase. The prosecution claimed that
Rodriguez beat, strangled, and sexually assaulted Baldwin in a hotel room
before purchasing the suitcase at a local Walmart, placing her body in it, and
discarding it in a dumpster. Baldwin was pregnant at the time of her murder.
Because Rodriguez confessed to killing Baldwin, because he maintained that
he strangled her in self defense, the trial centered on whether it rose to the
level of Texas capital murder. The jury rejected his claim of self-defense and
convicted him; he was sentenced to death.
      The Texas Court of Criminal Appeals (“TCCA”) affirmed Rodriguez’s
conviction and death sentence on direct appeal. Rodriguez v. State, No. AP-
75901, 2011 WL 1196871 (Tex. Crim. App. Mar. 2, 2011), cert. denied, 565 U.S.
1080 (2011).
      Rodriguez presented twenty-one claims for relief during state habeas
review, including a claim that trial counsel were ineffective in their
investigation and cross-examination of the medical examiner, Dr. Sridhar
Natarajan. After hearing testimony from Natarajan, the state habeas court
recommended denying relief and the TCCA denied the habeas application. Ex
parte Rodriguez, No. WR-78,127-01, 2013 WL 1920737 (Tex. Crim. App. May 8,
2013).




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      Rodriguez pursued similar efforts in his federal habeas proceeding,
where he received funding to investigate an unexhausted claim regarding trial
counsel’s cross-examination of the medical examiner’s testimony regarding the
cause of death. The district court denied federal habeas relief in 2016, holding
“the timing of [Baldwin’s] death would have no logical effect on the verdict, and
reasonably effective counsel could have concluded there was nothing to be
gained by such a detailed explanation of the victim’s last moments of life.”
Rodriguez v. Davis, No. 5:13-cv233, 2016 WL 4098339, at *34 (N.D. Tex., Aug.
1, 2016).
      This court denied a certificate of appealability (“COA”) on May 24, 2017,
Rodriguez v. Davis, 693 F. App’x 276 (5th Cir. 2017), and the Supreme Court
denied Rodriguez’s petition for a writ of certiorari on October 30, 2017,
Rodriguez v. Davis, 138 S. Ct. 389 (2017). The 140th District Court of Lubbock
County set Rodriguez’s execution date on November 8, 2017.
      On February 16, 2018, Rodriguez allegedly discovered a 2015 wrongful
termination lawsuit involving Dr. Natarajan and a former employee of the
Lubbock County Medical Examiner’s Office. On February 20, 2018, Rodriguez
filed in the state district court a motion for stay of execution, asking the court
to withdraw his execution date pursuant to Texas Code of Criminal Procedure
Article 43.141(d)(1) so that he could prepare and file a petition for a successive
writ under Tex. Code Crim. Pro. Art. 11.071. Rodriguez argued that the
wrongful termination lawsuit bears on the credibility and admissibility of
Dr. Natarajan’s state trial testimony.




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      The motion was denied on March 6. On March 12, Rodriguez filed a
petition for a successive writ in the state court pursuant to Tex. Code Crim.
Pro. Arts. 11.071 § 5 and 11.073. On March 14, he filed a motion for discovery
and two days later, on March 16, he filed a motion for stay of execution pending
the outcome of his application for a successive writ. The TCCA dismissed his
application as an abuse of the writ, without reviewing the merits, and denied
his motion for stay of execution. Ex parte Rodriguez, WR-78,127-02 (Tex. Crim.
App. March 19, 2018).
      On March 19, Rodriguez filed a Motion for Relief from Judgment
Pursuant to Federal Rule of Civil Procedure 60(b) in the district court, seeking
reconsideration of the merits of his ineffective assistance of counsel claim
regarding the medical examiner’s testimony. While the Rule 60(b) motion was
pending, on March 20 Rodriguez moved this court for authorization to file a
successive federal habeas petition under 28 U.S.C. § 2244(b), raising four new
claims related to his discovery of the wrongful termination lawsuit. According
to Rodriguez, his capital murder conviction and sentence violate his Fifth,
Sixth, Eighth, and Fourteenth Amendment rights because newly discovered
evidence shows the state suppressed evidence of its expert’s false and
misleading testimony and exculpatory evidence demonstrates Rodriguez’s
possible innocence of capital murder. The state insists the evidence – which
came into existence seven years after Rodriguez’s trial – was publicly available
to Rodriguez at least a year before the federal district court denied his petition;
and in any event, no showing of actual innocence is made with what is at best
marginal impeachment evidence.




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      On March 22, 2018 the district court construed the Rule 60(b) motion as
a successive habeas petition and transferred it to this court and alternatively
denied the motion; the court also denied a COA. Rodriguez filed both a Notice
of Appeal and a motion for COA in this court on March 22. He has, today,
March 23, dismissed his appeal and the transferred successive petition.
                                        II.
      Rodriguez seeks relief solely pursuant to 28 U.S.C. § 2244(b)(2)(B),
which authorizes successive federal habeas applications based on newly
discovered evidence only if the petitioner makes out a prima facie case that
(i) “the factual predicate for the claim could not have been discovered
previously through the exercise of due diligence;” and (ii) the facts in totality
would establish “by clear and convincing evidence, that, but for constitutional
error, no reasonable factfinder would have found the applicant guilty of the
underlying offense.” This statutory standard is in plain terms rigorous, and
Rodriguez fails to meet the test.
      Rodriguez’s claims center on the filing of a lawsuit in 2015 against
Dr. Natarajan, the medical examiner who testified to the manner of the
victim’s death at his trial, and his employer Lubbock County. The former
employee’s whistleblower lawsuit claimed that while she was employed in the
medical examiner’s office from 2013 to 2015, Dr. Natarajan did not perform all
of the autopsies and allowed non-certified employees to do much of his work.
The plaintiff eventually settled and dismissed her case. The lawsuit was of
public record during the pendency of Rodriguez’s initial federal court habeas
proceeding and was the subject of contemporary local newspaper reports.
      Rodriguez had already challenged, in his first petition, the substance of
Dr. Natarajan’s testimony through an ineffectiveness of counsel claim. To the
extent petitioner was concerned about the medical examiner’s credibility, the
filing of the suit was immediately available to him during his initial
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proceedings in federal court. It is certainly arguable that he did not exercise
“due diligence” in failing to discover and pursue timely the implications of this
suit. Cf. United States v. Shepherd, 880 F.3d 734, 744 (5th Cir. 2018) (finding
sufficient support for an ineffective assistance of counsel claim where
Appellant’s attorney failed to learn of a case issued two months after
Appellant’s arrest, “in the middle of attorney’s representation,” and this failure
led to Appellant’s involuntary guilty plea).
      But even if the “evidence” of this lawsuit is newly discovered within the
meaning of this provision, Rodriguez cannot show that “no reasonable
factfinder” would have found him guilty of capital murder. Nor does he show
that constitutional error effected his failure to discover the lawsuit.
      Most significant here, and unaddressed by Rodriguez in all his last-
minute filings, is an affidavit of Garland Timms, a former detective with the
Lubbock Police Department, who oversaw the investigation of the victim
Summer Baldwin’s murder in September 2005.              His affidavit, executed
February 20, 2018, attests that Dr. Natarajan came to the landfill and
examined the victim’s body in the suitcase at that site, and that Timms
observed Dr. Natarajan perform the victim’s autopsy in the morgue the next
day. Rodriguez’s successive petition depends on his ability to undermine the
doctor’s conclusions or reject his expert status entirely based on his delegation
of duties to others in the office. The Timms affidavit is the only evidence on
point about Dr. Natarajan’s conduct in this investigation. The State augments
this affidavit with citations to three search warrant affidavits by Lubbock
police officers who asserted that Dr. Natarajan performed this autopsy.
      Rodriguez has had an opportunity to rebut this evidence, since at least
February 20. But in any case, the whistleblower lawsuit itself is insufficient
to carry his burden of undermining the capital murder conviction. Bear in
mind this court’s characterization of Section 2244(b)(2)(B)(ii) as “a strict form
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of ‘innocence,’ roughly equivalent to the Supreme Court’s definition of
‘innocence’ or ‘manifest miscarriage of justice’ in Sawyer v. Whitley, [505 U.S.
333 (1992)].”    Johnson v. Dretke, 442 F.3d 901, 911 (5th Cir. 2006).      The
whistleblower employee in question wasn’t on staff at the medical examiner’s
office until 2013, whereas the Baldwin autopsy occurred in September 2005.
Whatever she may have observed about the operation of the office is hardly
relevant to events many years earlier.      Moreover, she nonsuited her case
against Dr. Natarajan in 2016, indicating specifically that her employment
dispute did not cast doubt on the scientific validity of the work that the office
had performed.
      Further, during the course of his prosecution and post-trial proceedings,
Rodriguez has had and taken advantage of numerous opportunities to
investigate and critique Dr. Natarajan’s performance. An expert consulted
pretrial stated that the forensic work in this case was “very good.” See 7
Evidentiary Hearing Reporter’s Record, Defense Exhibit 12 (email from trial
counsel dated October 17, 2007). Dr. Natarajan was cross-examined during
the state habeas proceeding, where his testimony remained essentially the
same as his previous trial testimony. That is, he concluded that the victim was
sexually assaulted, that she died from blunt force trauma and asphyxiation
and he could not definitely opine whether the victim had died before she was
placed in the suitcase or after, at which point she could have succumbed to
positional asphyxiation. In addition, Rodriguez was provided funds to hire
another forensic expert during the federal habeas proceeding, but this did not
eventuate in an offer of new evidence on his part.
      The State characterizes the newly discovered evidence as marginal
impeachment, at best. Based on the uncontradicted record, we agree. Such




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evidence does not demonstrate that “no reasonable factfinder” would have
found Rodriguez guilty of capital murder. 1
       A final point is that the newly discovered evidence of the deficient
procedures at the medical examiner’s office procedures was not, contrary to
Brady, “suppressed” by the prosecution. The lawsuit was filed in the public
record.    The prosecutor had no constitutional duty to inform Rodriguez’s
counsel of “evidence” that only came into existence years after the conviction.
Dist. Attorney’s Office for Third Judicial Dist. v. Osborne, 557 U.S. 52, 68-69
(2009); see also Estrada v. Healey, 647 F. App’x. 335, 338 (5th Cir. 2016); In re
Masterson, 638 F. App’x. 320, 327-28 (5th Cir. 2016). The evidence, as shown
above, had little if any bearing on the events in this case. Consequently, there
was no antecedent constitutional error that precipitated the inquiry permitted
by Section 2244(b)(2)(B)(ii).
       Accordingly, the petitioner’s motion to file a successive habeas petition
is DENIED. His motion for stay of execution is also DENIED.




       1 Rodriguez cites news articles which, he claims, suggest new scientific techniques for
gauging the precise cause of this victim’s death. Two of the articles were published before or
during the pendency of his initial federal habeas case, yet Rodriguez did not seek funding to
pursue the techniques the articles describe. In any event, the application of any new
techniques here is wholly speculative; Rodriguez offers no assistance to this court as to the
admissibility or probativeness of such techniques in this case. Moreover, whether the victim
perished before she was placed in the suitcase or was crushed to death in the dumpster is
hardly “exonerating.” Rodriguez’s confession indicates he, a trained medic, found no pulse
after he strangled Baldwin and before he went out to buy a suitcase; and he made no effort
to revive her.
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