               Case: 15-15710        Date Filed: 01/04/2016      Page: 1 of 13


                                                                                   [PUBLISH]
                      IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT
                                 ________________________

                                      No. 15-15710-P
                                 ________________________

IN RE: OSCAR RAY BOLIN, JR.,

                                                                                      Petitioner.
                                 ________________________

                          Application for Leave to File a Second or
                 Successive Habeas Corpus Petition 28 U.S.C. Section 2244(b)
                               by a Prisoner in State Custody
                               ________________________


Before: ED CARNES, Chief Judge, TJOFLAT and WILLIAM H. PRYOR, Circuit Judges.

BY THE COURT:

       Pursuant to 28 U.S.C. § 2244(b)(3)(A), Oscar Ray Bolin, Jr., has filed an application

seeking an order authorizing the district court to consider a second or successive petition for a

writ of habeas corpus. Such authorization may be granted only if:

               (A) the applicant shows that the claim relies on a new rule of
       constitutional law, made retroactive to cases on collateral review by the Supreme
       Court, that was previously unavailable; or

              (B)(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.
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28 U.S.C. § 2244(b)(2). “The court of appeals may authorize the filing of a second or successive

application only if it determines that the application makes a prima facie showing that the

application satisfies the requirements of this subsection.” Id. § 2244(b)(3)(C).

       In his counseled application, Bolin indicates that he wishes to raise two claims in a

second or successive § 2254 petition. Specifically, Bolin alleges that his claims rely on two

separate “areas” of newly discovered evidence. First, Bolin claims that, in March 2014, he

learned that an Ohio inmate named Steven Kasler had confessed to the murder for which Bolin

was convicted. Second, he claims that a 2014 report from the U.S. Department of Justice

(“DOJ”) demonstrated that Michael Malone, a former forensic analyst with the Federal Bureau

of Investigation (“FBI”), “likely” compromised the physical evidence in his case. Bolin argues

that the State’s failure to timely disclose this newly discovered evidence violated his

constitutional rights under Brady v. Maryland. 1 Finally, Bolin argues, in the alternative, that we

may rule that a second or successive § 2254 petition is unnecessary in this case because, pursuant

to McQuiggin v. Perkins, 2 “his time-barred habeas petition did not count for purposes of

§ 2244(b).” Accordingly, Bolin requests permission to file a successive § 2254 petition to raise

his claims of newly discovered evidence and an order granting a stay of execution pending the

outcome of the proceedings on the successive § 2254 petition. Bolin submitted no documents in

support of his application.

       On December 31, 2015, the State filed a response, opposing Bolin’s application and

motion to stay. The State argues that the Kasler confession does not demonstrate by clear and

convincing evidence that no reasonable factfinder would have found Bolin guilty of the crime

because (1) the confession had “substantial credibility issues,” (2) the evidence against Bolin was

       1
           Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
       2
           McQuiggin v. Perkins, 569 U.S. ___, 133 S. Ct. 1924, 185 L. Ed. 2d 1019 (2013).


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“overwhelming,” and (3) purported “new” evidence of Bolin’s innocence in other, unrelated

murder cases is not based on recent information and has no bearing on the instant case. Further,

the State argues that the Kasler confession does not state a cognizable constitutional error

because, under prevailing case law, the State’s Brady obligation does not extend after a

conviction, and, in any event, Bolin has failed to demonstrate any of the necessary elements of a

Brady violation. As to the Malone materials, the State argues that Bolin was procedurally barred

from raising this claim in his state successive post-conviction motions because he was “aware of

this information for over a decade.” Additionally, the State argues that there was no Brady

violation because, given the fact that Malone was not involved in any of the forensic testing in

the instant case and did not testify at trial, as well as “the overwhelming evidence of Bolin’s

guilt,” any evidence regarding Malone was not material. Finally, the State refutes Bolin’s

McQuiggin-based claim because it contends that McQuiggin does not apply to second or

successive habeas applications.

I.     Factual Background and Procedural History

       In 2001, Bolin was convicted and sentenced to death for the murder of Teri Lynn

Matthews. 3 Bolin v. State, 869 So. 2d 1196, 1198 (Fla. 2004) (“Bolin I”).

Underlying facts and state trial proceedings

       The Florida Supreme Court has summarized the trial evidence of Bolin’s offense as

follows:

       Matthews’ body was discovered on December 5, 1986, near the side of a road in
       rural Pasco County. The body was found wrapped in a sheet imprinted with a St.
       Joseph’s Hospital logo. The body had multiple head injuries, was shoeless, and
       was wet, although it had not rained recently. The victim’s car keys were found
       close to the body. Evidence collected from the scene included nylon pantyhose

       3
       This was the third time Bolin was convicted and sentenced to death for the murder of
Matthews, after his two prior convictions were reversed. Bolin I, 869 So. 2d at 1197-98.


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and a pair of white pants. There was a single set of truck tire tracks leading to the
body. The victim’s car was found the next day by Matthews’ boyfriend, Gary
McClelland, who was worried about her disappearance and attempted to trace her
steps after she left work the previous day. The victim’s red Honda was found
parked at the Land O’ Lakes Post Office, with its headlights still on. The victim’s
mail was found scattered on the ground, and her purse was found undisturbed on
the seat inside her car.

Bolin’s half-brother, Phillip, testified that he was awakened by Bolin on the night
of December 4, 1986. Bolin appeared to be nervous and told Phillip that he
needed Phillip’s help. The two walked outside, and then Phillip heard a moaning
sound, which he thought could have been a wounded dog. Instead, he saw a
sheet-wrapped body, and Bolin told him that the girl was shot near the Land O’
Lakes Post Office. Bolin then walked over and straddled the body with his feet,
raised a wooden stick with a metal end, and hit the body several times. Phillip
said that he turned away because he was scared to watch, but compared the sound
to hitting a pillow with a stick. Bolin next turned on a water hose and sprayed the
body. Bolin demanded that Phillip help him load the body onto the back of a
black Ford tow truck, and Phillip helped by picking up the body by the ankles.
Phillip testified that he noticed there were no shoes on the body and that the girl
was wearing pantyhose. Phillip refused Bolin’s offer of money to go with him to
dispose of the body, so Bolin went alone and returned twenty to thirty minutes
later. He continued talking to Phillip about the girl, stating that she had been shot
in a drug deal.

At school the next day, Phillip talked with his friend, Danny Ferns, about what
happened the night before and took Danny to where the body had been. Danny
testified at trial, to corroborate Phillip’s account of the murder, that there were
blood stains on the ground at the site and that the grass in the area was disturbed.
The State presented other corroborating evidence, which included the testimony
of Rosie Kahles Neal. At the time of the murder, Neal co-owned with her
now-deceased husband Kahles and Kahles, Inc., the business that employed Bolin
as a tow truck driver. She testified that the truck Bolin was driving on the night of
the murder was not returned that night, and she thought the truck had been stolen
by Bolin because he could not be located and it was the first call he had handled
by himself. Neal testified that Bolin was late coming to work the next morning,
was wearing the same clothes as he had the day before, and had a foul smell. She
further testified that Bolin played with and carried a knife and got excited when
the story of the missing girl, Matthews, was reported on the news. Her testimony
also corroborated the murder weapon, as she testified that she gave Bolin a “tire
buddy” on the night of the murder. The tire buddy was a two-foot-long wooden
club, which was drilled out and filled with lead.

Michelle Steen also offered corroborating testimony. Michelle Steen was married
to Bolin’s cousin, David Steen. In 1987, while Bolin visited their home, he




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       volunteered that he had killed and beaten a girl in Florida and put a hose down her
       throat, and that Phillip had watched him do it.

       The State then offered the perpetuated videotaped testimony of Cheryl Coby,
       Bolin’s ex-wife, who had died after the first trial. She had been a severe diabetic,
       was hospitalized numerous times in 1986, often brought home hospital towels and
       sheets from St. Joseph’s Hospital, and identified the sheet that had been wrapped
       around Matthews’ body as a hospital sheet resembling the ones she brought home.
       Cheryl Coby had a post office box at the Land O’ Lakes Post Office, and Bolin
       picked up her social security checks there when she was in the hospital.

       The State also offered DNA testimony indicating that Bolin could have been the
       source of the semen found in a stain on Matthews’ pants. Federal Bureau of
       Investigation forensic serology expert John R. Brown testified that he could not
       eliminate Bolin as the contributor of the semen stain but could eliminate Gary
       McClelland, Matthews’ boyfriend, as the source of the stain. David Walsh, a
       molecular biologist, extracted DNA from the stain on the pants and found that he
       could exclude both the victim and McClelland as the donors of the stain on the
       pants. Walsh found that five of the six bands of DNA detected in the stain
       matched five of the six bands from Bolin’s DNA. Walsh was not able to visualize
       one band because of the small amount of DNA remaining on the pants. Dr.
       Christopher Basten, an expert in population genetic frequency, testified that Bolin
       was 2100 times more likely to be the source of the semen than a random,
       unrelated person.

Bolin I, 869 So. 2d at 1198-99. Bolin was convicted and sentenced to death, and the Florida

Supreme Court affirmed his conviction and sentence. Id. at 1199-1200, 1205.

Relevant state successive post-conviction motions

       In late 2014, Bolin filed two successive post-conviction motions in state court, alleging

essentially the same claims that he raises in the instant application. See Bolin v. State, No.

SC15-2149, 2015 WL 9172921, at *3 (Fla. Dec. 17, 2015) (“Bolin II”).                    The state

post-conviction court granted an evidentiary hearing on Bolin’s confession claim, but Kasler

committed suicide before the hearing could take place. Bolin II, 2015 WL 9172921, at *3. Bolin

then amended his motion, claiming that Kasler’s confession could be admitted as a statement

against penal interest. Id.




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       The state post-conviction court conducted an evidentiary hearing on Bolin’s amended

motion on August 24, 2015. Id. at *5. Stephen Crane, another Ohio inmate who tipped off

Bolin’s wife to Kasler’s confession, refused to testify. Id. Bjorn Brunvard, Bolin’s counsel,

testified that he heard Kasler confess to Matthews’s murder and provide accurate details about

the crime during a September 2014 conference call. Id. On cross-examination, Brunvard stated

that Kasler confessed to approximately 20 murders and said he would confess to a “number of

murders” in order to avoid going to federal prison in Louisiana. Id. Kenneth Karnig, who runs a

crime memorabilia website, testified that Kasler had confessed at the request of another

memorabilia dealer and that Kasler had told him that he did not commit the Matthews murder.

Id.

       Additionally, according to the Florida Supreme Court, Bolin moved for post-conviction

DNA testing in December 2014, requesting that the evidence in the Matthews case be compared

to Kasler’s DNA profile. Id. at *3. Although the state court denied the motion, “DNA testing

was ordered and completed [on] August 26, 2015. The results excluded Kasler as a contributor

to the samples collected from Matthews, but did not exclude Bolin.” Id.

       Following the hearing, the state post-conviction court denied both successive

post-conviction motions, determining that neither the Kasler nor Malone sets of newly

discovered facts were likely to produce an acquittal or a reduced sentence and, additionally, that

Bolin had not established a Brady violation with respect to either claim. Id. at *3-9. The Florida

Supreme Court upheld the lower court’s conclusions. Id.

II.    Discussion

       Bolin does not allege that any of the claims in his current application rely on “a new rule

of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that

was previously unavailable.” See 28 U.S.C. § 2244(b)(2)(A). Instead, Bolin’s application


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centers on his arguments that certain newly discovered evidence, that he could not have

previously discovered through the exercise of due diligence, is sufficient to establish by clear and

convincing evidence that, but for Brady constitutional violations, no reasonable factfinder would

have found him guilty of the murder of Matthews. See id. § 2244(b)(2)(B).

       To receive authorization to bring a claim in a successive § 2254 petition based on newly

discovered facts, Bolin must make a prima facie showing that, first, the facts at issue would not

have been uncovered through a reasonable investigation undertaken before the litigation of his

initial § 2254 petition. See In re Boshears, 110 F.3d 1538, 1540 (11th Cir. 1997) (construing

§ 2244(b)(2)(B)(i)).   Accordingly, he must explain why the same means that eventually

uncovered the new facts could not have been employed earlier. In re Magwood, 113 F.3d 1544,

1549-50 (11th Cir. 1997). Second, he must allege newly discovered facts that, taken as true,

establish a constitutional error. See Boshears, 110 F.3d at 1541 (construing § 2244(b)(2)(B)(ii)).

Finally, we evaluate these facts in light of the evidence as a whole to determine whether, had

Bolin known these facts at the time of his trial, the application “clearly proves that the applicant

could not have been convicted.” Id. “In other words, the application must be denied if any

rational trier of fact could have found the essential elements of the crime beyond a reasonable

doubt.” Id. (citation and quotations omitted).

       Bolin’s counseled application proposes two claims of Brady violations that purport to

rely on two separate newly discovered factual predicates. Additionally, Bolin appears to argue

that his claims of actual innocence render invalid the dismissal of his first § 2254 petition as

time-barred, thus rendering this application unnecessary. Because Bolin’s claims do not meet

the statutory criteria for relief, and because he is in fact subject to the requirements of

§ 2244(b)(2), his application is due to be denied.




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       1.      The Kasler confession

       Bolin claims that he first learned that Kasler had confessed to Matthews’s murder in

March 2014 when Crane contacted Bolin’s wife. Kasler then confessed to members of Bolin’s

legal team, including Brunvand, in September 2014.           Bolin also learned that the Florida

Department of Law Enforcement and Attorney General’s Office had received correspondence

from Crane regarding the confession “in late 2013.” Bolin argues that the State’s failure to alert

him to this correspondence was a Brady violation and prejudiced him because he could have

raised the issue earlier, before Kasler committed suicide.

       In Brady, the Supreme Court held that due process requires a prosecutor to disclose

material exculpatory evidence to the defendant before trial. Brady, 373 U.S. at 87, 83 S. Ct. at

1196-97.    The Supreme Court has also concluded that Brady does not apply in the post-

conviction context, reasoning that “[a] criminal defendant proved guilty after a fair trial does not

have the same liberty interests as a free man.” Dist. Attorney’s Office for Third Judicial Dist. v.

Osborne, 557 U.S. 52, 68-69, 129 S. Ct. 2308, 2319-20, 174 L. Ed. 2d 38 (2009) (reversing the

Ninth Circuit’s conclusion that a state prisoner had a due process right to access DNA evidence

in a post-conviction proceeding analogous to the right to be provided with exculpatory evidence

prior to trial under Brady). The Supreme Court noted that “nothing in our precedents suggest[s]

that [Brady’s] disclosure obligation continue[s] after the defendant [is] convicted and the case

[is] closed.” Id. at 68, 129 S. Ct. at 2319-20.

       Bolin acknowledges in his application that, in order to be granted leave to file a second or

successive habeas petition under § 2244(b)(2)(B)(ii), he must demonstrate both clear and

convincing evidence of his actual innocence and another constitutional violation. In re Davis,

565 F.3d 810, 823-24 (11th Cir. 2009). Here, is it undisputed that the purported Brady violation




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with respect to the revelation of the Kasler confession happened in 2013, many years after

Bolin’s 2001 conviction.    Because Brady is not a cognizable constitutional right in post-

conviction proceedings, Bolin has failed to establish the necessary constitutional violation, as

required by Davis. See Davis, 565 F.3d at 824; Osborne, 557 U.S. at 68-69, 129 S. Ct. at

2319-20. Accordingly, he cannot meet the requirements of § 2244(b)(2)(B)(ii).

       2.     The Malone materials

       Bolin also argues that Malone, the former FBI analyst, “likely mishandled and

compromised critical serological evidence in [his] case,” and that Malone was suspected of

misconduct that led to multiple false convictions. Bolin concedes that Malone’s work on the

Matthews case was not admitted into evidence. Nevertheless, Bolin maintains that “the State

submitted essentially all of the physical evidence that was collected in this case directly to

Malone.” He alleges that Malone handled and prepared “at least some, and perhaps all, of the

physical evidence” that underwent serological and DNA testing in his case.

       Additionally, Bolin claims that, in January 2014, the DOJ e-mailed his current counsel.

The e-mail stated that, in September 2013, the DOJ had notified Bolin’s prior counsel of a 1997

report from the DOJ’s Office of the Inspector General (“OIG”) identifying the work of 13 FBI

examiners whose work “may have failed to meet professional standards.” The January 2014

e-mail also noted that “in 1999, the prosecutor advised the 1996 FBI Laboratory Task Force that

Malone’s work had not been material to the verdict” in the Matthews case. In July 2014, the

DOJ again contacted Bolin’s counsel to alert him to a new report from the OIG, which

specifically addressed deficiencies in Malone’s work with the FBI. The 2014 OIG report stated

that the FBI task force knew that Malone’s work was “consistently problematic” “as early as




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1999.” The report also stated that “independent scientists deemed approximately 96 percent of

the Malone cases to be problematic.”

       In support of this claim, Bolin also points to the testimony of Dr. Frederic Whitehurst,

another former FBI analyst, who testified about the Malone materials in a separate case for

another murder for which Bolin was convicted. Bolin asserts that Whitehurst testified there that

Malone’s “egregious acts . . . make[] evidence that he had in hand suspect” and “any testing

conducted by Malone is not reliable and has no credibility[.]”

       In arguing his Brady claim, Bolin alleges that the DOJ informed the State of its

investigation into Malone as early as 1998, several years before his third, and final, trial. He

notes that, in 1999, the State allegedly responded to the DOJ that Malone’s work had been

immaterial to the instant case. Bolin claims that the State did not disclose to him (1) evidence of

the DOJ’s ongoing investigation against Malone, (2) evidence “of the fact that Malone

apparently handled the evidence that was submitted for serological testing,” or (3) “evidence of

the communications between the DOJ and State.”          He contends that the 2014 OIG report

demonstrates that Malone engaged in “scores of negligent and intentional acts of misconduct that

brought about the presentation of false evidence and led to false convictions in numerous

criminal cases.”

       Here, Bolin’s Brady argument leans on the 2014 communications between the DOJ and

his attorneys and the “ground-breaking” 2014 OIG report. To the extent that Bolin challenges

the state’s failure to disclose the 2014 OIG report, such post-conviction Brady claims are barred

under Osborne. See Osborne, 557 U.S. at 68-69, 129 S. Ct. at 2319-20. To the extent that Bolin

argues that the State should have revealed the ongoing investigation against Malone prior to

Bolin’s 2001 trial, however, his claim still fails. As an initial matter, he concedes that the 1997




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OIG report, first brought to his predecessor counsel’s attention in 2013, “did not make any

findings that would have called into question the reliability of Malone’s work in the instant

case.” Further, even if the State had disclosed before trial that Malone was under investigation

and may have handled some of the physical evidence in his case, it is undisputed that the

physical and DNA evidence at Bolin’s third trial was analyzed and presented by forensic

examiners other than Malone. Bolin I, 869 So. 2d at 1199.             Indeed, Bolin admits in his

application that Malone’s work matching fibers in the Matthews case to those in another murder

case in which he was a suspect was not admitted into evidence. Without this link between

Malone and the trial evidence presented in the Matthews case, Bolin essentially argues that,

because Malone “apparently” prepared and handled some of the physical evidence in his case,

and Malone was later found to have done shoddy work on many cases, his involvement tainted

all of the physical evidence in the Matthews case. This bare assertion is too speculative to

support relief. See Boshears, 110 F.3d at 1541. Even discounting the physical and DNA

evidence altogether, the State presented other evidence linking Bolin to the murder, including his

half-brother Phillip’s eye-witness account and corroborating testimony from Danny Ferns, Rosie

Kahles Neal, Michelle Steen, and Cheryl Coby. Bolin I, 869 So. 2d at 1198-99.

       Under these circumstances, Bolin has not demonstrated by clear and convincing evidence

that, but for the State’s alleged Brady error, “no reasonable factfinder would have found [him]

guilty of the underlying offense.” See 28 U.S.C. § 2244(b)(2)(B).

       3.      Actual innocence/McQuiggin claim

       Finally, Bolin argues, in the alternative, that we should rule that the current application is

unnecessary because McQuiggin opened an “actual innocence gateway” for the courts to

consider his current proposed § 2254 petition notwithstanding the criteria set forth in § 2244(b).




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Thus, he contends that, because he has made a showing of both his actual innocence and Brady

violations, his first untimely petition cannot be counted against him for § 2244(b) purposes, and

the district court may consider his claims on the merits. 4

       Bolin’s argument regarding McQuiggin is misplaced and does not afford him relief. In

McQuiggin, the Supreme Court held that, if proved, actual innocence permits habeas petitioners

to overcome the expiration of the statute of limitations in order to have the merits of his or her

constitutional claims heard. McQuiggin, 569 U.S. at __, 133 S. Ct. at 1928.

       Although McQuiggin was decided in the context of collateral review, the Supreme Court

indicated that its holding was limited to initial habeas petitions and was not applicable to second

or successive petitions. See id., 569 U.S. at __, 133 S. Ct. at 1933-34 (differentiating initial

habeas petitions from second or successive petitions in the context of the miscarriage-of-justice

exception).   Further, Bolin does not point to, and research does not reveal, any case law

supporting his argument that McQuiggin allows us to discard his first untimely § 2254 petition

and consider his constitutional claims afresh. Even if, as Bolin argues, McQuiggin’s “essential

principle” should be extended to create an exception to the bar against successive petitions where

the initial petition was dismissed as time-barred, the exception would not apply because his

initial § 2254 petition was alternatively denied on the merits.

       Finally, to the extent that Bolin is attempting to raise a discrete, freestanding claim of

actual innocence, he may not do so. See Davis, 565 F.3d at 823-24 (considering, and rejecting,




       4
          On the same day that he filed the instant application, Bolin also filed a § 2254 petition
in the district court, raising essentially the same claims as those presented here. (CM/ECF for
U.S. Dist. Ct. for M.D. Fla., case no. 8:15-cv-02943, doc. 1). On December 30, 2015, the district
court dismissed it as impermissibly successive but granted Bolin a COA “on the issue of the
district court’s jurisdiction.” (Id., doc. 8). Bolin has appealed that ruling, and the State has filed
a motion to vacate the COA. (11th Cir. Docket, Case No. 15-15761, docs. 1, 3).


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the argument that a free-standing actual innocence claim is the kind of claim that can be heard in

a second or successive habeas petition).

III.    Conclusion

       For all of these reasons, Bolin’s motion for leave to file a second or successive petition for

writ of habeas corpus is DENIED. His motion for a stay of execution is also DENIED.




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