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

                                                 FILED
                                                                        September 22, 2009

                                       No. 09-70025                    Charles R. Fulbruge III
                                                                               Clerk



CHRISTOPHER COLEMAN

                                           Petitioner-Appellant
v.

RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION

                                           Respondent-Appellee




                                       No. 09-20630




IN RE: CHRISTOPHER COLEMAN,

                                            Movant




Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.

PER CURIAM:*

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                  No. 09-70025

      On September 16, 2009, Texas death row inmate Christopher Coleman
filed in this court a motion for leave to file a successive habeas petition and a
motion for stay of execution, both of which were denied. In re Coleman, No. 09-
20586, 2009 WL 2957743 (5th Cir. Sept. 16 2009) (unpublished) (hereinafter
“Coleman I”). He then filed a Rule 60(b) motion in the district court, seeking
relief from the original 2004 judgment denying his federal habeas petition. The
district court denied that motion on September 18, 2009, but granted a
certificate of appealability. Coleman v. Thaler, No. 4:02-CV-3865 (S.D. Tex. Sept.
18, 2009). Execution has been scheduled for the evening of September 22, 2009.
Coleman now has two separate causes before this court. First, in Cause No. 09-
70025, he has moved for a stay of execution pending the filing of his appeal from
the district court’s denial of his Rule 60(b) motion. Second, in Cause No. 09-
20630, he has moved for leave to file a successive habeas petition and for a stay
of execution.
      The court begins by determining what claims are properly before it, and
through what procedural vehicle they have been brought. The district court
denied Coleman’s Rule 60(b) motion on two grounds. First, the district court
concluded that it was untimely. Second, the district court concluded that,
because the motion raised a claim that was not among those that it considered
in Coleman’s original habeas petition, the Rule 60(b) motion was properly
construed as a successive habeas petition. In Ochoa Canales v. Quarterman, we
discussed Rule 60(b) motions in habeas proceedings:
       In 2005, the Supreme Court held that district courts have
       jurisdiction to consider Rule 60(b) motions in habeas proceedings
       so long as the motion “attacks, not the substance of the federal
       court’s resolution of a claim on the merits, but some defect in the

                                        2
                                       No. 09-70025

           integrity of the federal habeas proceedings.” In other words, a Rule
           60(b) motion that attacks only a defect in the integrity of the
           federal habeas proceedings should not be treated as a successive
           habeas application.


507 F.3d 884, 887 (5th Cir. 2007) (quoting Gonzalez v. Crosby, 545 U.S. 524, 532
(2005)). However, a Rule 60 motion that raises a new claim not considered in the
original habeas petition is clearly a successive habeas petition. See Gonzalez,
545 U.S. at 531 (“Using Rule 60(b) to present new claims for relief from a state
court’s judgment of conviction—even claims couched in the language of a true
Rule 60(b) motion—circumvents AEDPA’s [successive petition] requirement
. . . .”). The relevant provision of AEDPA vests jurisdiction to consider motions
for leave to file a successive habeas petition solely in the courts of appeal. See 28
U.S.C § 2244(b)(3)(C). Because Coleman did not attack his state court conviction
on Brady grounds in his original habeas petition, the district court correctly
construed his Rule 60(b) motion as a successive petition. Accordingly, the district
court did not have jurisdiction to issue a certificate of appealability from its
denial of the Rule 60(b) motion and we will not consider Coleman’s motion for a
stay of execution in Cause No. 09-70025.1 For the reasons stated above, we
affirm the denial of the Rule 60(b) motion on the ground that it is a successive
habeas petition not within the jurisdiction of the district court.
       Because the denial of the Rule 60(b) motion is not properly before us, we
will address only Coleman’s application to file a successive habeas petition in
Cause No. 09-20630. Applying the relevant standard, we deny the motion. As we


       1
       Even were we to consider the appeal as an application to file a successive petition, we
would deny it for the same reasons we deny Coleman’s application in Cause No. 09-20630.

                                              3
                                   No. 09-70025

stated in Coleman I, the authority of this court to act on a motion to authorize
a successive habeas petition derives from 28 U.S.C § 2244(b)(3)(C):
        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 applicant satisfies the
        requirements of this subsection.

In Reyes-Requena v. United States, we adopted the Seventh Circuit’s definition
of “prima facie showing,” applying it to successive petitions by both state and
federal prisoners:
        “By ‘prima facie showing’ we understand . . . simply a sufficient
        showing of possible merit to warrant a fuller exploration by the
        district court.” Therefore, if from the application and its
        supporting documents, “it appears reasonably likely that the
        application satisfies the stringent requirements for the filing of a
        second or successive petition,” the application shall be granted.

243 F.3d 893, 898-99 (5th Cir. 2001) (quoting Bennett v. United States, 119 F.3d
468, 469-70 (7th Cir. 1997) (omission in original)). These stringent requirements
are found in 28 U.S.C. § 2244(b)(2), which mandates that a new claim presented
in a successive petition shall be dismissed unless the applicant shows that the
claim
        (A) . . . 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.

                                          4
                                       No. 09-70025


       Coleman’s new motions largely reiterate the arguments he advanced in his
earlier application to file a successive petition. See Coleman I. However, he now
brings forward an affidavit from his co-defendant, Enrique Mosquera. In this
affidavit, Mosquera avers that he knew the state’s eyewitness, Elsie Prado,
before she emigrated to the United States from Colombia and that members of
his family were friends with or knew members of Prado’s family. He admits to
having known one of the victims, Heinar Prado, and says that Elsie Prado was
involved in the drug transaction that led to the murders. He avers that he
informed police investigators of these relationships during his interrogation.
Mosquera does not, however, state that any of Prado’s relatives were vulnerable
to reprisal, a key contention in Coleman’s brief, nor does he exculpate Coleman
of the murders.2
       Coleman argues that this court should stay his execution and permit
further factual development by the district court because the prosecution in his
criminal trial committed a violation pursuant to Brady v. Maryland, 373 U.S. 83
(1963), by not revealing that Mosquera and Prado knew each other in Colombia.
The Assistant District Attorney who prosecuted Coleman’s case avers in an
affidavit submitted by the State that she was not aware that Prado and
Mosquera knew each other prior to the shootings. In denying his earlier motion,
we noted that Coleman had “failed to offer any evidence that the prosecution
suppressed evidence that Prado and Mosquera knew each other. Suppression of


       2
         Coleman’s theory is that the relationship between Prado and Mosquera could have
influenced her to name Coleman as the shooter rather than Mosquera, either because of bias
in his favor or fear that Mosquera’s relatives in Colombia would take revenge on her relatives
in that country.

                                              5
                                     No. 09-70025

evidence is fundamental to a Brady claim; there is no due process violation if a
prosecutor is not aware of the existence of favorable evidence.” Coleman I, 2009
WL 2957743, at *3 (citation omitted). Additionally, for a Brady violation to have
occurred, the undisclosed evidence must satisfy the “materiality” prong of Brady,
which requires a showing of a reasonable probability of a different result absent
the suppression of favorable information. The Supreme Court elaborated on this
materiality standard in Kyles v. Whitley, explaining that “[a] ‘reasonable
probability’ of a different result is . . . shown when the government’s evidentiary
suppression ‘undermines confidence in the outcome of the trial.’ ” 514 U.S. 419,
434 (2005) (quoting United States v. Bagley, 473 U.S. 667, 678 (1985)). As such,
“[t]he question is not whether the defendant would more likely than not have
received a different verdict with the evidence,” Kyles, 514 U.S. at 434, or
whether, “after discounting the inculpatory evidence in light of the undisclosed
evidence, there would not have been enough left to convict.” Id. at 434-35.
Rather, the Court emphasized that we are to apply the materiality inquiry to the
withheld evidence “collectively, not item by item.” Id. at 436. Even in the
interview transcript reviewed by this court in Coleman I, in which Prado says
that she knew Mosquera from Colombia, she insists that her identification of
Coleman as the shooter was accurate. Further, despite speculation from
Coleman that Prado identified him as the shooter out of fear of retribution or
misguided loyalty to Mosquera, she nonetheless served as the key witness at
Mosquera’s criminal trial, which resulted in his life imprisonment.3 Finally,


      3
          Even were Coleman’s factual allegations coupled with the Mosquera affidavit
sufficient to raise a viable Brady claim that Coleman’s punishment would have been
something other than the death penalty, Coleman still would not meet the “actual innocence”

                                            6
                                        No. 09-70025

since Coleman was charged under Texas’s law of the parties and could have been
convicted under that statute whether he was or was not the shooter, see infra,
the failure to disclose that Prado and Mosquera knew each other does not
undermine confidence in the outcome of the trial pursuant to Kyles. Under the
circumstances, we cannot conclude that Coleman has made a prima facie
showing that his conviction was constitutionally infirm under Brady.4
           Further, in Coleman I, we noted two additional grounds for denying the
motion, both of which foreclose the instant cause. First, Coleman has failed to
show that he could not have previously discovered the factual predicate for his
claim through the exercise of due diligence long before the eve of execution. As
we stated in Coleman I, “[b]y Coleman’s own admission, it was on June 16,
2003—more than a year prior to the district court’s denial of his original habeas
petition in September 2004—that his private investigator interviewed Mosquera
and learned that Mosquera had known Prado in Colombia.” 2009 WL 2957743,
at *3. Coleman argues that “it seems somewhat removed from reality to suggest
that this information could have been proved any earlier.” But he has again


requirement for a successive habeas petition under 28 U.S.C. § 2244(b)(2)(B).
       4
          Additionally, for a Brady violation to have occurred, the undisclosed evidence must
be such that it was not discoverable through due diligence. Rector v. Johnson, 120 F.3d 551,
558 (5th Cir. 1997). While an individual prosecutor has a duty to learn of any favorable
evidence known to the others acting on the government’s behalf in the case, including the
police, see Kyles 514 U.S. at 437, “Brady does not obligate the State to furnish a defendant
with exculpatory evidence that is fully available to the defendant through the exercise of
reasonable diligence.” Kutzner v. Cockrell, 303 F.3d 333, 336 (5th Cir. 2002) (citing Rector, 120
F.3d at 558). Coleman’s trial counsel could have investigated the backgrounds of the State’s
eyewitness and Coleman’s two co-defendants prior to trial. Failing that, counsel could have
asked Prado on the stand whether she knew either of the co-defendants. Coleman has never
argued that Prado was asked this question at trial and perjured herself, which would
constitute a Brady violation.

                                               7
                                  No. 09-70025

failed to show why he did not pursue the factual predicate for this Brady
claim—that prosecutors suppressed favorable evidence or failed in their duty to
learn it and disclose it—prior to the denial of Coleman’s original habeas petition,
or even prior to filing a successive petition this year.
      Second, as we said in Coleman I, “even were we to conclude that there was
a Brady violation, Coleman has not shown by ‘clear and convincing evidence’
that, but for the suppression of the exculpatory evidence, the jury would not
have found him guilty of the underlying offense . . . .” Id. There was substantial
evidence placing Coleman at the scene as a participant in the underlying
transaction, and the new Mosquera affidavit does not challenge any of that
evidence. Under Texas’s law of the parties, a criminal defendant may be found
guilty of an offense actually committed by another if, “acting with intent to
promote or assist the commission of the offense, he solicits, encourages, directs,
aids, or attempts to aid the other person to commit the offense.” See Tex. Penal
Code § 7.02(a)(2) (Vernon 1996). Accordingly, the jury could have found Coleman
guilty of capital murder without Prado’s testimony. Coleman has not shown that
but for the suppression of favorable evidence, he would not have been convicted.
      Considering the foregoing, IT IS ORDERED that Coleman’s motion for
stay of execution in Cause No. 09-70025 is denied because the motion constitutes
a successive habeas petition over which the district court had no jurisdiction. IT
IS FURTHER ORDERED that his motion for leave to file a successive habeas
petition and motion for stay of execution in Cause No. 09-20630 is denied.




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