     Case: 16-11820      Document: 00514740207       Page: 1   Date Filed: 11/28/2018




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

                                                                           FILED
                                    No. 16-11820                   November 28, 2018
                                                                      Lyle W. Cayce
TELISA DE'ANN BLACKMAN,                                                    Clerk


             Petitioner - Appellant

v.

LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

             Respondent - Appellee



                   Appeal from the United States District Court
                        for the Northern District of Texas


Before DAVIS, JONES, and ENGELHARDT, Circuit Judges.
EDITH H. JONES, Circuit Judge:
      Telisa Blackman, Texas prisoner # 848568, was convicted of murder in
1998 and sentenced to life imprisonment. In this successive Section 2255
application, she challenges her conviction under Brady v. Maryland,
373 U.S. 83, 83 S. Ct. 1194 (1963); Napue v. Illinois, 360 U.S. 264, 79
S. Ct. 1173 (1959); and Giglio v. United States, 405 U.S. 150, 92 S. Ct. 763
(1972). We do not reach the merits of these claims, however, because her
petition    does   not   fulfill   the   stringent    requirements       of      28 U.S.C.
Section 2244(b)(2)(B) and the district court consequently erred in purporting
to grant a COA on her merits claims after it had rejected the successive
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petition’s compliance with the statutory prerequisites.      We AFFIRM the
dismissal of the successive petition.
                               BACKGROUND
      The evidence produced at trial was summarized by a Texas Court of
Appeals on direct appeal:
            [Blackman] and the decedent, Lisa Davis, lived together in a
      lesbian relationship. One of the decedent's friends testified that
      the relationship was somewhat stormy and that, shortly before her
      death, the decedent wanted to end the relationship with appellant,
      although she was apprehensive about doing so.

             The couple lived in a second-floor apartment, accessible by
      an outdoor stairway to a balcony in front of the apartment.
      Appellant testified that, on Sunday evening, June 22, 1997, she
      left the apartment complex to go to a nearby convenience store,
      Quick Way. Upon returning, she realized she did not have her
      apartment key or her pass card to the apartment complex; she
      would have to ring the buzzer to be let into the complex. She went
      to the entryway of the apartment complex and, while she was
      standing on the sidewalk before going upstairs, she saw the
      decedent's feet lying on the balcony in front of their apartment.
      The apartment door was open, and the body was lying partially
      inside the apartment and partially outside. Decedent had been
      shot. Appellant called the decedent's name, and eventually
      touched the decedent, but the decedent did not respond. Appellant
      pulled the decedent's body inside their apartment. In doing so, she
      moved the decedent's feet to the side, to get them inside the
      apartment. She then shut the door and dialed 911. As a result of
      dragging the decedent's body inside the apartment complex, she
      got blood on her socks and shoes.

             Cathy Harding, a Dallas police detective, searched appellant
      in the homicide office at police headquarters because the only
      officers called to the crime scene were male; it was against
      department policy to have a male officer search a female suspect.
      Harding found blood on the soles of appellant's socks. Appellant
      told Harding that she had not taken her shoes off that evening.


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       When Daniel Krieter, a Dallas police investigator, arrived at
 the murder scene, appellant asked him if he remembered her from
 an incident that had occurred about a year earlier. Appellant had
 been shot by a gun, a .25 caliber Lorcin, that she owned. When the
 police closed their investigation into that incident, appellant
 reclaimed the gun from the department's property room.
 Appellant testified at trial that the gun was stolen some two
 months after she had reclaimed it in August 1995. She did not
 report it as stolen, however, because it was not registered.
 Appellant consistently denied that she had a gun on the night of
 the murder.

        No gun was found; however, Krieter's search of the
 apartment revealed some spent shell casings on the floor and some
 live shell casings in a bureau drawer. The casings were .25 caliber
 and would fit a Lorcin. Appellant and the decedent had moved into
 the apartment only some thirty days before the decedent's death.
 Appellant explained that she moved in such haste she did not have
 time to throw out the live shell casings so she simply moved them.

        Robert L. Ermatinger, a Dallas police homicide investigator,
 questioned appellant at the scene. Appellant told him she had
 gone to “the store” when the shooting occurred, although she could
 not say which store. When pressed, appellant said she realized
 while en route to the store she had forgotten her gate key and
 returned to the complex rather than going on to the store. When
 Ermatinger asked appellant at the scene if “they were a couple,”
 that is, whether appellant and the decedent had a lesbian
 relationship, appellant said “they were not.”

        Finally, Cherissa Adams, a neighbor who lived on the first
 floor, testified that, on the evening of June 22, 1997, she heard a
 loud noise that sounded like gunfire. She looked out her window
 and saw a lifeless body. A young, thin girl was trying to move the
 body. The body's upper portion was inside an apartment. After
 Adams called 911, she returned to the window and continued to
 look out. The person who had moved the body locked the door and
 went downstairs. When the person looked in Adams's direction,
 Adams closed the blinds and moved away from the window.
 Adams had never seen the person before that evening and never
 saw her again. Adams was not able to identify appellant in court;
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      at 11:35 p.m. on the night of the shooting, however, Adams did
      identify appellant in a photographic lineup.

Blackman v. State, No. 05-98-01750-CR, 2000 WL 5677985 (Tex. App.—Dallas
May 8, 2000). Detective Lynette Harrison also testified at the trial. Harrison
testified that Adams first chose Blackman’s photograph from the photographic
line up, and she affirmed that Adams did not “change her mind in any way”
once she had identified Blackman.
      Blackman was tried and convicted of murder. She was sentenced to life
imprisonment. Her conviction was affirmed on appeal. The Texas Court of
Criminal Appeals (“TCCA”) also denied her petition for discretionary review.
In 2002, Blackman filed her first state habeas petition, which was denied. She
filed two federal habeas applications in 2003 and 2004, which were denied as
untimely. She filed another state habeas application in 2006, which was
dismissed as successive.
      Blackman’s mother hired new counsel, Craig Jett, in 2008. On August
27, 2009, Jett reviewed the Dallas District Attorney’s Office’s file on
Blackman. 1 Jett found a prosecutor’s note indicating that Adams had initially
picked somebody else in the photographic lineup before changing her mind and
identifying Blackman. Months later, in mid-2010, Jett sought out Blackman’s
previous counsel and determined that trial counsel, appellate counsel and writ
counsel had been unaware of this evidence. Over a year later, in 2011, the
District Attorney provided Jett with a recording of Adams’s call to 911 the day
of the murder. Adams stated in the 911 call that she saw a man lying in the
doorway and a black man push him inside the apartment and close the door.
      On December 17, 2010, Blackman filed another state habeas corpus
petition alleging that the State failed to disclose the allegedly material


      1   The District Attorney’s Office instituted a formal open file policy for writs in 2008.
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exculpatory evidence in violation of Brady and presented false or misleading
testimony in violation of Giglio and Napue. The Giglio/Napue claim was based
on the inconsistency between Detective Harrison’s trial testimony that Adams
had positively identified Blackman in the lineup and the prosecutor’s note
indicating hesitation. The state trial court held, after a hearing, that because
of the discovery of this additional evidence, Petitioner was entitled to a new
trial. The TCCA disagreed, concluded that the evidence was not material, and
denied relief. Ex parte Blackman, No. WR-52,123-03, 2012 WL 4834113 (Tex.
Crim. App. Oct. 10, 2012).
      Blackman, acting pro se, then filed her third federal habeas petition on
May 4, 2013. The district court transferred the case to this court to determine
whether Blackman could file this successive habeas application. This court
granted permission to file the successive application because Blackman had
made a prima facie showing that she could satisfy the requirements of 28
U.S.C. § 2244(b)(2)(B)(i) and (ii).
      Back in the district court, the state moved to dismiss Blackman’s petition
as time-barred pursuant to Section 2244(d)(1)(D). The district court accepted
the magistrate judge’s recommendation to deny this motion. Subsequently,
the magistrate judge considered whether the petition met the requirements of
Section 2244(b)(2)(B) for a successive petition. His recommendation concluded,
under Section 2244(b)(2)(B)(i), that the factual predicate for her claims could
not have been discovered earlier by exercising due diligence, but that the
application must be dismissed for failing to satisfy Section 2244(b)(2)(B)(ii).
The judge considered Blackman’s argument that if the two critical pieces of
impeachment information about Adams been timely disclosed, Blackman
would not have testified at trial. The magistrate judge’s opinion responded as
follows:

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      Even had Blackman not testified and her counsel impeached
      Ms. Adams’s identification testimony, and even if the jury had
      heard that Ms. Adams first believed that she saw a black male
      move the decedent into the apartment and that Ms. Adams did not
      identify Blackman initially from the photographic array, two police
      officers testified that Blackman told them that she had moved
      decedent into the apartment upon discovering her. Blackman does
      not advance (and there is no evidence to support) a theory that an
      unidentified black male moved the body into – and then out of –
      the apartment prior to Blackman’s coming home to discover the
      decedent lying outside the apartment.

The judge also rejected the contentions that one of those officers, Detective
Ermatinger, who testified on rebuttal, would not have testified if Blackman
herself had not taken the stand, and that Blackman’s trial counsel, given
access to the withheld evidence, would have successfully moved to suppress
Blackman’s statements. Blackman, in sum, had failed to establish by clear
and convincing evidence that but for the prosecution’s withholding evidence
and procuring false testimony, no reasonable factfinder would have returned a
guilty verdict.   Notwithstanding these conclusions, the magistrate judge
recommended granting a certificate of appealability (“COA”) on Blackman’s
Brady and Giglio/Napue claims.
      The district court affirmed the magistrate judge’s findings in all but one
particular. The court did not accept the magistrate judge’s assumption that
Detective Ermatinger’s rebuttal testimony would have been offered even if
Blackman had not testified. But the district court accepted the other findings
and the ultimate conclusion that Blackman failed to meet the requirements of
Section 2244(b)(2)(B)(ii).   Like the magistrate judge, the district court
dismissed Blackman’s application for lack of jurisdiction but also granted a
COA on the merits of her Brady and Giglio/Napue claims.
      Blackman has appealed.

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                                  No. 16-11820

           STANDARD OF REVIEW AND APPLICABLE LAW
      “In a habeas corpus appeal, we review the district court’s findings of fact
for clear error and review its conclusions of law de novo, applying the same
standard of review to the state court’s decision as the district court.”
Martinez v. Johnson, 255 F.3d 229, 237 (5th Cir. 2001) (citation omitted). We
review a district court’s determination that it does not have jurisdiction de
novo. Leal Garcia v. Quarterman, 573 F.3d 214, 217 (5th Cir. 2009).
      This court has jurisdiction to rule on the judgment of the district court
based on the issuance, by the district court or this court, of a Certificate of
Appealability (COA). 28 U.S.C. § 2253(c)(1). A COA is required to specify the
issue or issues on which “there is a substantial showing of the denial of a
constitutional right.”     28 U.S.C. § 2253(c)(2) and (3); Slack v. McDaniel,
529 U.S. 473, 120 S. Ct. 1595 (2000).
      The Antiterrorism and Effective Death Penalty Act (“AEDPA”) states
that second or successive habeas applications must be dismissed unless they
fall into one of two exceptions. 28 U.S.C. § 2244(b)(2)(B). The exception at
issue in this case requires the applicant to show:
      (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.

This section is jurisdictional in nature. Panetti v. Quarterman, 551 U.S. 930,
942, 127 S. Ct. 2842, 2852 (2007).




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                                      No. 16-11820

                          APPELLATE JURISDICTION
       What might have been a relatively straightforward appeal concerning
the difficult requirements for filing a successive federal habeas petition has
been confused by the district court’s erroneous partial grant of COA and some
convoluted arguments of the state. Rather than parse the complex procedural
history at play, we will cut to the chase. The district court was not authorized
to grant COA on the merits of Blackman’s claims while also determining that
her petition ultimately failed to meet the statutory prerequisites for a
successive try at federal habeas relief. The Supreme Court has plainly stated
that “[w]hen the district court denies a habeas petition on procedural grounds
without reaching the prisoner’s underlying constitutional claim,” a COA
requires a showing “at least,” that reasonable jurists could debate both the
procedural ruling and whether the petition states a valid constitutional claim.
Slack, 529 U.S. at 484, 120 S. Ct. at 1604. If the petition is procedurally
barred, no further inquiry should be made and no appeal is warranted. Id. Put
otherwise, Blackman would have been able to secure a COA on the merits of
her claims only if the district court had also determined that reasonable jurists
could debate the court’s procedural ruling. Id. The district court got the order
of procedure exactly backward. 2 Blackman’s counsel recognized the error and
persuaded this court to expand the COA in an order dated May 22, 2018,
pursuant to which we have jurisdiction to rule on whether the district court’s




       2 The district court clearly erred to the extent that it apparently accepted the
magistrate judge’s reasoning that in some circuits, Brady and related claims may not be
subject to the strictures of Section 2244(b)(2), and hence the Brady claims may be
independently appealed. As is explained more fully in the next section, this court holds to
the contrary. Leal Garcia v. Quarterman, 573 F.3d 214, 220-22 (5th Cir. 2009); Johnson v.
Dretke, 442 F.3d 901, 906-12 (5th Cir. 2006). Thus, a petitioner asserting a newly discovered
Brady claim in a successive habeas case must pass the tests of Section 2244(b)(2) before a
federal court may reach the merits.
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                                       No. 16-11820

procedural     decision      comported      with   the     threshold     requirements      of
Section 2244 (b)(2)(B).
                                           DISCUSSION
       Blackman’s brief first assumes that Section 2244(b)(2)(B) controls and
contends that the district court erred in dismissing her petition for failure to
demonstrate that, but for the state’s withheld or perjured evidence, no
reasonable      factfinder     would       have    found     her    guilty    of     murder.
28 U.S.C. Section 2244(b)(2)(B)(ii). More broadly, she argues that her Brady
and Giglio/Napue claims are not second or successive and that this court has
not yet resolved whether Brady claims are subject to the requirements of
Section 2244(b)(2)(B). 3
       To begin, Blackman’s argument that these claims do not fit or are in
tension    with    AEDPA’s         requirements     for    successive    petitions    under
Section 2244(b)(2)(B)        has    been    rejected      conclusively   by   this     court.
In re Davila, 888 F.3d 179, 184-87 (5th Cir. 2018), applied this statutory
provision to a petitioner’s Brady claims and held that the requirements for
pursuing a successive petition were not fulfilled. In Leal Garcia, this court
emphasized that “[s]ection 2244(b)(2)(B)(i) states that claims based on a
factual predicate not previously discoverable are successive.” 573 F.3d at 221
(emphasis in original). Blackman’s Brady and Giglio/Napue claims rely on
precisely such previously undiscovered facts and are therefore within the
purview of the statutory language. Even more pointedly, this court refused to
“collapse AEDPA’s due diligence requirement [section 2244(b)(2)(B)(i)] into the



       3Responding to Blackman’s brief, the state rejects her successive petition arguments
and urges in addition that at least one of her claims was not pursued within the one-year
AEDPA statute of limitations. 28 U.S.C. Section 2244(d)(1)(D). Because Blackman’s petition
must be dismissed pursuant to Section 2244(b)(2)(B), we need not discuss the district court’s
conclusion that Blackman’s successive claim was timely under the statute of limitations.
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                                  No. 16-11820

Brady duty…” and concluded that the statutory requirements for a successive
petition must be considered prior to evaluation of the merits of the petitioner’s
Brady claim. Johnson v. Dretke, 442 F.3d 901, 906-911 (5th Cir. 2006). We are
bound by these clear precedents and proceed to examine whether Blackman’s
claims satisfy the statutory requirements.
   1. Section 2244(b)(2)(B)(i) Due Diligence
      The district court determined that Blackman met the due diligence
requirement of Section 2244(b)(2)(B)(i). We disagree, at least in part, based on
Johnson v. Dretke, supra. In that case, the petitioner, Johnson, alleged in a
successive petition that his accomplice signed a stipulation confessing to the
murder Johnson was accused of committing. Johnson further alleged that, in
violation of Brady, his accomplice testified at trial that Johnson committed the
murder. Months before his conviction, however, Johnson was aware of the
accomplice’s indictment, guilty plea, and the submission of a stipulation and
plea agreement. Id. at 904, 906, 908-09. This court held that Johnson could
not meet the due diligence requirement of Section 2244(b)(2)(B)(i) because a
reasonable attorney would have been put on notice of the existence of the
accomplice’s stipulation. Id. at 908-09. Together with the reasonable attorney
standard, Johnson holds that under this provision, due diligence is measured
objectively, not by the subjective diligence of the petitioner. Id. at 909-10
      In this case, Adams’s call to 911 was discussed at the trial by Adams and
the firefighter/paramedic who responded to the scene. A reasonable attorney
would have been put on notice at that time that a recording or transcript of the
call may exist. Not one of Blackman’s attorneys inquired as to the existence of
a transcript until years after the trial. As in the Johnson case, they plainly
failed to meet the due diligence requirement for at least this aspect of her



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                                 No. 16-11820

claims.   Even assuming however, that Blackman satisfied the diligence
requirement, her claims fail under Section 2244(b)(2)(B)(ii).
   2. Section 2244(b)(2)(B)(ii) Innocence Requirement
      The district court held that Blackman’s claims did not satisfy the
requirement of Section 2244(b)(2)(B)(ii) because, taken together with the proof
adduced at trial, the newly discovered evidence does not show “by clear and
convincing evidence” that, but for the prosecution’s misconduct, “no reasonable
factfinder would have found her guilty” of murder. We agree. To reiterate, all
of Blackman’s claims rely on (1) the 911 call in which Adams stated that she
saw a man lying on the ground and a man drag the body inside the apartment,
(2) the prosecutor’s note stating that Adams initially picked out another person
from the photographic lineup before picking Blackman, and (3) Detective
Harrison’s testimony that Adams did not change her mind during the
photographic lineup.
      But the fact that Adams was unable to identify Blackman at the defense
table in court seriously undermines her theory.      She was thus a dubious
eyewitness even without additional impeachment evidence. Concededly, the
new evidence casts a more negative light on Adams’s prior identification of
Blackman in the photographic lineup, but this is no more than cumulative
impeachment. On the other hand, the state produced significant evidence
corroborating Adams’s identification and the substance of her 911 call.
Officer Canales testified on direct examination that Blackman acknowledged
at the scene of the crime that she had moved the body inside. Officer Harding
also testified that Blackman said she moved the body back into their
apartment. Blackman’s contemporaneous statements placed her at the scene
and moving the body of the deceased.



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                                    No. 16-11820

      Significant additional evidence supports that a reasonable juror could
find Blackman guilty beyond a reasonable doubt. Most provocatively, the soles
of her socks had blood on them even though she denied to Detective Harding
that she had taken her shoes off that evening. Detective Krieter testified that
the bullets and shell casings from the fatal shots found in the apartment would
fit a .25 caliber Lorcin, a pistol that Blackman admitted having owned at one
point. Live shell casings and a live bullet were found in two drawers in her
bedroom, although Blackman claimed she no longer had the pistol (which was
never found by the investigators). Additionally, Davis’s friend testified that
Davis and Blackman had at least one violent argument, and about a week
before her death Davis stated to her friend that she wanted out of her
relationship with Blackman. The totality of the evidence does not prove clearly
and convincingly, even with the additional impeachment of Adams’s
identification, that a reasonable jury would have been swayed to acquit
Blackman. We concur with the district court that because Blackman did not
surmount the standard of Section 2244(b)(2)(B)(ii), the court was required to
dismiss for lack of jurisdiction.
      Accordingly, we AFFIRM the judgment of the district court dismissing
Blackman’s successive habeas petition.




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