      Case: 15-20222          Document: 00513018483              Page: 1      Date Filed: 04/24/2015




                               REVISED APRIL 24, 2015

           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                                       United States Court of Appeals
                                                                                                Fifth Circuit
                                            No. 15-20222                                      FILED
                                                                                          April 23, 2015
                                                                                         Lyle W. Cayce
In re: ROBERT LYNN PRUETT,
                                                                                              Clerk

                 Movant

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CONSOLIDATED WITH NO. 15-70011

ROBERT LYNN PRUETT,

                Plaintiff – Appellant

v.

WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION

                Respondent – Appellee



                     Appeals from the United States District Court
                          for the Southern District of Texas
                                USDC No. 4:15-CV-992


Before STEWART, Chief Judge, and JOLLY and SMITH, Circuit Judges.
     Case: 15-20222      Document: 00513018483         Page: 2    Date Filed: 04/24/2015



                                      No. 15-20222
PER CURIAM:*
       Robert Lynn Pruett was sentenced to death for capital murder in Texas
and is scheduled to be executed on April 28, 2015. On April 17, 2015, he filed
in the district court a complaint under 42 U.S.C. § 1983, requesting a stay of
execution and a declaratory judgment that his execution would violate the
Eighth and Fourteenth Amendments because the State’s negligent handling of
physical evidence made it impossible for him to prove his innocence. The
district court held that it lacked jurisdiction because Pruett’s complaint is an
unauthorized successive habeas petition. The district court transferred the
complaint to this court. The transferred complaint is on our docket as No. 15-
20222.
       On April 21, Pruett filed a Notice of Appeal from the district court’s
transfer order. That appeal is our case No. 15-70011. Pruett has not moved
for authorization to file a successive habeas petition to assert the claim he
raises in the § 1983 complaint. Instead, he contends that authorization is
unnecessary because the district court erred in concluding that his complaint
is a successive habeas petition and transferring the complaint to this Court.
He also requests a certificate of appealability (COA). We agree with the district
court that the complaint is indeed a successive habeas petition. We therefore
AFFIRM the order of transfer, DISMISS the unauthorized successive habeas
petition, DENY the motion for stay of execution, and DISMISS the request for
a COA. We also direct the clerk of this Court to notify Pruett that, should he
wish to file a successive petition for writ of habeas corpus, a motion for
authorization must be filed with this Court pursuant to 28 U.S.C. § 2244(b)(3).



       * 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. 15-20222
                                       I.
      In 2002, Pruett was sentenced to death for the murder of Texas
Department of Criminal Justice Correctional Officer Daniel Nagle, which he
committed while serving a life sentence for a prior murder. The State argued
that Pruett’s motive for the murder was that he was upset because Officer
Nagle had written a disciplinary report for Pruett’s having food in an area of
the prison where food was not permitted. Torn pieces of the disciplinary report
were found near Officer Nagle’s body after the murder.         At trial, Pruett
testified that Officer Nagle tore up the report in his presence and that he
(Pruett) then walked away, leaving Officer Nagle alive and well. Blood found
on the disciplinary report was tested for DNA and found to have come from
Officer Nagle. No other DNA profiles were developed at that time and there
was no physical evidence connecting Pruett to the murder.
      The Texas Court of Criminal Appeals (TCCA) affirmed Pruett’s
conviction and sentence on direct appeal. Pruett v. State, No. 74,370, 2004 WL
3093232 (Tex. Crim. App. 2004). The TCCA denied Pruett’s first state habeas
application in 2005. Ex parte Pruett, 207 S.W.3d 767 (Tex. Crim. App. Oct. 19,
2005).
      In 2010, the district court denied Pruett’s first federal habeas petition
but granted a certificate of appealability for two issues. Pruett v. Thaler, No.
C-06-CA-465-H (S.D. Tex., Aug. 12, 2010). This Court affirmed the district
court’s denial of relief and denied Pruett’s request to expand the grant of a
COA. Pruett v. Thaler, 455 F. App’x 478, 487, 490-91 (5th Cir. 2011), cert.
denied, 133 S. Ct. 141 (2012).
      On May 9, 2013, Pruett filed in state court a motion for DNA testing in
which he alleged that techniques not available at the time of trial were
available to develop a DNA profile from epithelial cells on the disciplinary
report. The State sent the evidence to the University of North Texas Center
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                                 No. 15-20222
for Human Identification (UNTCHI) for collection and analysis of DNA. On
July 9, 2013, UNTCHI reported that its testing had been inconclusive. At
Pruett’s request, the trial court appointed an expert, whose review revealed
that the 12 allele was present in an amount above the analytical threshold at
the D13 locus. Because the DNA profiles of both Nagle and Pruett contain the
12 allele at the D13 locus, neither of them could be eliminated as being a
possible source of the DNA on the disciplinary report. Because the 12 allele is
present at the D13 locus in the DNA profiles of approximately 20% of the Asian
and Hispanic populations, 30% of the Caucasian population, and 40% of the
African American population, approximately one-third of the population at the
prison where Nagle was murdered could not be excluded as contributing the
DNA present on the torn disciplinary report.
      The state trial court concluded that the DNA evidence was not
exculpatory, and the TCCA affirmed. Pruett v. State, No. AP-77,037, 2014 WL
5422573 (Tex. Crim. App. Oct. 22, 2014). The Supreme Court denied Pruett’s
petition for a writ of certiorari. Pruett v. Texas, No. 14-8097, 2015 WL 302598
(U.S. Mar. 30, 2015).
                                      II.
      In his complaint filed pursuant to § 1983, Pruett alleged that the DNA
testing conducted in 2013 was incapable of developing a complete DNA profile
because the State negligently failed properly to preserve the pieces of the
disciplinary report. He sought a declaratory judgment that it would violate
the Eighth and Fourteenth Amendments if the State were allowed to execute
him when its failure to properly preserve the evidence prevented him from
establishing his actual innocence. The district court held that Pruett’s claim
sounded in habeas corpus and not civil rights, because he sought an order
preventing the State from carrying out his sentence.


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                                  No. 15-20222
      We have appellate jurisdiction to hear Pruett’s appeal from the district
court’s transfer order. See Sepulvado v. Cain, 707 F.3d 550, 552 (5th Cir. 2013).
      When “a judgment in favor of the plaintiff would necessarily imply the
invalidity of his conviction or sentence,” § 1983 is not an available remedy.
Heck v. Humphrey, 512 U.S. 477, 487 (1994). “But if . . . the plaintiff’s action,
even if successful, will not demonstrate the invalidity of [his conviction or
sentence], the [§ 1983] action should be allowed to proceed. . . .” Id. In Skinner
v. Switzer, 131 S. Ct. 1289 (2011), the Supreme Court held that a judgment in
favor of the plaintiff in his § 1983 suit for an order requiring DNA testing
“would not ‘necessarily imply’ the invalidity of his conviction” because the
results might prove exculpatory, inconclusive, or might further incriminate the
prisoner. Id. at 1298.
      In concluding that it lacked jurisdiction, the district court held that
Pruett’s complaint was not properly brought under § 1983 because a judgment
granting the relief he sought would necessarily imply the invalidity of his
sentence. Relying on Skinner, Pruett argues that his complaint is properly
brought under § 1983 because he challenges neither his conviction nor
sentence, but only the State’s authority to carry out an execution at this time.
He asserts that a ruling in his favor would not invalidate his sentence, but
would only be a finding that the Eighth Amendment will not allow his
execution to proceed at this time because the State’s failure to properly
preserve evidence is presently preventing him from challenging his conviction.
He maintains that when the DNA technology develops in such a manner as to
permit him to demonstrate his actual innocence notwithstanding the State’s
negligent handling of the physical evidence, he will, at that time, be permitted
to attack the legality of his conviction in a habeas application. Pruett does not
provide any evidence that such technology is likely to develop or, if so, when.
In fact, he admits that it is unknown whether it will ever be possible to
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                                  No. 15-20222
generate a DNA profile from the torn pieces of the disciplinary report. Thus,
he is essentially asking for an indefinite stay of execution based on nothing but
speculation.
      Unlike Skinner, who sought DNA testing, Pruett has already had DNA
testing performed using the most current technology presently available. He
seeks “[a] declaratory judgment that [his] execution would be in violation of
the Eighth and Fourteenth Amendments because the State’s negligently
handling the evidence made it impossible for Pruett to prove his innocence.”
We agree with the district court that this is a direct challenge to the validity of
his sentence and, therefore, cannot be maintained under § 1983. Because
Pruett has already unsuccessfully challenged his conviction and sentence in an
earlier federal habeas proceeding, his current complaint is successive.
Accordingly, the district court correctly determined that it did not have
jurisdiction to consider it in the light of the fact that Pruett did not obtain our
prior authorization pursuant to § 2244(b)(3).
      Pruett has not filed in this Court a motion for authorization to file a
successive habeas petition to assert the claim he raised in the transferred
complaint. In such situations, we have directed the clerk’s office to notify the
petitioner that “(1) a motion pursuant to § 2244(b)(3) must be filed with the
court of appeals within a specified time from the date of the clerk’s notice and
(2) failure to do so timely will result in the entry of an order denying
authorization.” Sepulvado, 707 F.3d at 556 (quoting In re Epps, 127 F.3d 364,
365 (5th Cir. 1997)).
                                       III.
      For the foregoing reasons, the order of transfer is AFFIRMED. The
petition for writ of habeas corpus is DISMISSED for want of jurisdiction.
Because we lack jurisdiction to consider the successive habeas petition, there


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                               No. 15-20222
is no basis for a stay, and the motion for stay of execution is DENIED. The
request for a COA is DISMISSED. See Sepulvado, 707 F.3d at 557.




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