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

                                                                           FILED
                                      No. 19-20574                   August 25, 2020
                                                                      Lyle W. Cayce
In re: LINDA ANITA CARTY,                                                  Clerk


              Movant




                          Motion for an order authorizing
                      the United States District Court for the
                       Southern District of Texas to consider
                     a successive 28 U.S.C. § 2254 application


Before OWEN, Chief Judge, and DENNIS and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Linda Carty was convicted on February 18, 2002 of capital murder and
sentenced to death. She seeks authorization from this court to file a successive
habeas petition in the district court to bring several claims alleging that the
prosecution engaged in misconduct by suppressing material evidence and by
knowingly presenting false testimony. Because Carty has failed to make the
required prima facie showing that the new evidence supporting these claims
could not have been discovered through the exercise of due diligence prior to
her previous federal habeas petition, her motion for authorization is DENIED.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 19-20574
                                       I
      This court and others have previously and exhaustively described the
facts adduced at Carty’s trial. See Carty v. Thaler, 583 F.3d 244, 248 (5th Cir.
2009); Carty v. Quarterman, No. 06-CV-614, 2008 WL 8104283, at *8 (S.D. Tex.
Sept. 30, 2008); Carty v. State, 74,295, 2004 WL 3093229, at *2 (Tex. Crim.
App. Apr. 7, 2004). We will repeat only those relevant to our adjudication.
      Carty “was indicted by a Texas grand jury for the kidnaping and
intentional murder of [Joana] Rodriguez.” Carty, 583 F.3d at 246. The jury
heard testimony that Carty orchestrated the kidnapping of Rodriguez and her
infant child and murdered Rodriguez on May 16, 2001. Id. Although Carty
did not herself enter the apartment in which Rodriguez and her child resided,
the jury heard evidence that Carty—who lived, along with her boyfriend or
common law husband Jose Corona, in the same apartment complex as
Rodriguez—convinced others to rob the apartment by telling them Rodriguez
and other members of the household had 200 pounds of marijuana and cocaine.
Carty, 06-CV-614, 2008 WL 8104283, at *5–*6. Corona, along with others
involved in the run-up to the robbery and kidnapping, testified at trial for the
prosecution both about the motive and means behind Carty’s plan to kidnap
Rodriguez and her child and to murder Rodriguez.
      Corona testified that Carty had lied in the past about being pregnant
and that, before the kidnapping, Carty told him she would have a baby boy the
next day. Id. at *8. Carty told others that she would be having a baby soon,
including a DEA agent, Charles Mathis, for whom she had worked as an
informant in the past. “At some point on May 14 or 15, [Carty] called Mathis
and told him that she was going to have a baby boy.” Id.
      Josie Anderson, with whom Carty had been friends since 1997, testified
that Carty had recruited her to participate in the robbery and that Carty told
her that the plan was to rob a pregnant woman and her husband. Id. at *5–
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                                   No. 19-20574
*6. Chris Robinson, Josie Anderson’s boyfriend, testified that he was recruited
to participate in the robbery at the same time as another participant, Marvin
Caston.    Id.    Robinson testified that because Carty’s apartment and
Rodriguez’s apartment had the same layout, he, Caston, Josie Anderson, and
Carty visited Carty’s apartment so that they could familiarize themselves with
its arrangement. Id. Caston corroborated this event and testified that he
staked out Rodriguez’s apartment and discussed with Carty kidnapping
Rodriguez and her infant child. Id. Gerald Anderson, Josie’s cousin, also
agreed to participate in the robbery. Id. at *8. Zebediah Combs, Robinson’s
half-brother, confined to his residence in the same apartment complex with an
ankle monitor, learned of the plan when Carty and several others came to pick
up Robinson:
      “[Carty] had a job or something for them to do, and she was trying
      to recruit some people . . . . [I]t was a drug deal . . . . [F]or the drug
      deal she wanted a favor in return: and the favor was to bring the
      lady to her.” “[P]art of the payment was showing [them] where the
      marijuana was, and she said she was going to pay them when they
      brought the lady to her.” [Carty] explained that she wanted them
      to do the kidnapping because “her husband had got the lady
      pregnant.” Once the others brought the pregnant woman to
      [Carty], she was “going to handle it from there.”

Id. at *7 (internal citations omitted).
      Ultimately, according to Robinson, it was he, Gerald Anderson, and
Williams who carried out the robbery, entering the house with guns, while
Carty waited outside. Carty, 583 F.3d at 248. Robinson testified that he saw
Carty enter the apartment and leave with the infant. Carty, 06-CV-614, 2008
WL 8104283, at *9. Williams and Gerald Anderson brought Rodriguez out of
the apartment and put her in the trunk of Robinson’s car. Id. After the group
left the apartment complex in two cars—including Carty in her own car—
Williams opened Robinson’s trunk and taped Rodriguez’s mouth and hands at

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                                 No. 19-20574
Carty’s direction. Id. at *7, *9–*10. After returning to the apartment complex,
the group argued because the men did not find the amount of drugs Carty had
promised them and accused her of setting up a bogus robbery. Id. at *10. After
approaching the group, Comb testified that Carty excitedly told him that she
got her baby. Id. at *10. Several hours later, after the group separated,
Robinson testified that he saw Carty “in the trunk” of his car, with “[h]alf her
body . . . in the trunk,” with “one leg on the ground and leg in the trunk,” and
that Carty “had a plastic bag over [Rodriguez’s] head.” Id. Robinson also
testified that he ran up to the vehicle, saw Rodriguez was not breathing, and
tried to remove the bag, but Rodriguez was already dead. Id.
      The jury returned a verdict of guilty in Carty’s capital murder trial and
answered all three of Texas’s “special issues” during the guilt phase in favor of
sentencing Carty to death. Carty v. Thaler, 583 F.3d 244, 249, 251 (5th Cir.
2009). Carty’s conviction and death sentence were affirmed on direct appeal,
and her first round of state and federal habeas proceedings was unsuccessful.
Carty v. State, 74,295, 2004 WL 3093229, at *2 (Tex. Crim. App. Apr. 7, 2004);
Ex parte Carty, No. WR-61,055-01 (Tex. Crim. App. March 2, 2005)
(unpublished); Carty v. Quarterman, 345 F. App’x 897 (5th Cir. 2009) (denying
request to expand COA granted by district court); Carty, 583 F.3d at 257–66
(denying relief on claims on which COA was granted).
      Carty now seeks to file a second federal habeas petition, asserting that
the prosecution (1) coerced Robinson, Caston, Mathis, and Gerald Anderson to
submit false testimony; (2) withheld certain exculpatory and impeachment
statements made by these witnesses; (3) failed to disclose preferential
treatment for Caston in exchange for his testimony; and (4) presented false and
misleading testimony of, and failed to disclose impeachment and exculpatory




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                                       No. 19-20574
evidence regarding, Comb. 1 Carty argues that these claims are based on new
evidence that was not available at the time of her previous federal habeas
petition.
                                             II
       The Antiterrorism and Effective Death Penalty Act (AEDPA) requires
that “[b]efore a second or successive application permitted by this section is
filed in the district court, the applicant shall move in the appropriate court of
appeals for an order authorizing the district court to consider the application.”
28 U.S.C. § 2244(b)(3)(A). Where a claim is raised in a successive habeas
petition and was not raised in a prior federal habeas petition, AEDPA requires
that the claim be dismissed unless (1) the petitioner “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
(2) “the factual predicate for the claim could not have been discovered
previously through the exercise of due diligence” and “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.” Id. § 2244(b)(2)(A)-(B).
       We may only authorize a successive petition to go forward in the district
court if we determine “that the application makes a prima facie showing that
the application satisfies the requirements of [AEDPA].” Id. § 2244(b)(3)(C). “A



       1 Carty raised the first three issues in a second state habeas proceeding. Ex parte
Carty, 543 S.W.3d 149, 150–51 (Tex. Crim. App. 2018). The Texas Court of Criminal Appeals
allowed the subsequent writ and remanded to the trial court for an evidentiary hearing
because the affidavits Carty relied on in support of these claims were generated after the
initial habeas petition, but ultimately denied relief on the merits. See Ex parte Carty, WR-
61,055-02, 2015 WL 831586, at *1 (Tex. Crim. App. Feb. 25, 2015); Carty, 543 S.W.3d at 150–
51. Carty raised the fourth issue in her third state habeas petition, which the TCCA rejected.
Ex parte Carty, WR-61,055-03, 2018 WL 4001302, at *1 (Tex. Crim. App. Aug. 22, 2018).
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                                    No. 19-20574
prima facie showing is ‘a sufficient showing of possible merit to warrant a fuller
exploration by the district court.      If it appears reasonably likely that the
application satisfies the stringent requirements for the filing of a second
successive petition,’ then the petition should be granted.”      In re Young, 789
F.3d 518, 525 (5th Cir. 2015) (alterations omitted) (quoting Reyes–Requena v.
United States, 243 F.3d 893, 899 (5th Cir. 2001)).
      Because Carty’s application relies on new evidence as the basis for
authorization, she must show that her petition is reasonably likely to satisfy
AEDPA’s two central requirements for a successive petition based on new
evidence:    First, that the new evidence relied on “could not have been
discovered previously through the exercise of due diligence,” and, second, that
“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 the constitutional error, no reasonable factfinder would have
found the applicant guilty of the underlying offense.”                  28 U.S.C.
§ 2244(b)(2)(B)(i)–(ii).     In analyzing the first of these requirements—due
diligence—we ask whether “due diligence at the time of [Carty’s] first habeas
petition would have led to the discovery of the facts [she] is relying on for the
new claim[s].” In re Davila, 888 F.3d 179, 184 (5th Cir. 2018).
                                          A
      In order to adequately evaluate whether Carty has made a prima facie
showing that she could not have previously discovered the facts underlying her
proposed successive petition, we set out first the evidence Carty proffers in
support of her proposed petition. See Davila, 888 F.3d at 184.
      Carty proffers several affidavits from trial witnesses and others,
including participants in the robbery and kidnapping. Several of the affidavits
recant various pieces of trial testimony or add relevant details that were
omitted at trial. Robinson, the only trial witness who actually took part in the
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                                 No. 19-20574
robbery and Rodriguez’s kidnapping, testified at trial that Carty instructed
him, Gerald Anderson, and Williams “to kill everyone in the house except
[Rodriguez].” Carty, CIV.A 06-614, 2008 WL 8104283, at *7. In his affidavit,
however, Robinson avers that Carty never in fact instructed the robbers to “kill
all the guys in the apartment.” Robinson also states in his affidavit that,
despite his trial testimony, Carty never told them to tape Rodriguez’s hands
and feet, he never in fact saw Carty place the bag over Rodriguez’s head while
she was in the trunk of his car, and Rodriguez was not actually dead when he
ripped off the bag that was on her head. Finally, Robinson avers that he failed
to tell the jury that it was actually Josie Anderson, not Carty, who was the
ringleader of the robbery and kidnapping, that there was never any plan to kill
anyone, and that he believed Rodriguez’s death had been an accident. Id 21,
32. Caston, who was not a part of the ultimate break-in or kidnapping, also
submitted an affidavit recanting trial testimony. Caston testified at trial that
he had staked out the apartment initially and heard Carty discussing
kidnapping Rodriguez and her child, and that the group had a plan to drag
Rodriguez out of the apartment. He states in his affidavit, however, that it
was actually Josie Anderson, not Carty, who first brought up the robbery; that
there was never a plan to take Rodriguez or her child; and that Josie Anderson
was the true ringleader, Gerald Anderson, who was not called as a witness in
Carty’s trial despite participating in the robbery and kidnapping, confirms the
assertions in Robinson’s and Caston’s affidavits, stating that there was “never
any plan to take the lady and the baby,” that he never heard Carty talking
about the baby, and that Carty was not the one who recruited Robinson nor
did she talk Gerald Anderson into participating in the robbery.
      The affidavits also discuss the conduct of prosecutors Connie Spence and
Craig Goodhart during Carty’s case. Robinson avers that Spence and Goodhart
intimidated him, threatened him with the death penalty himself “if Linda
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                                 No. 19-20574
Carty did not get the death penalty,” and required that he edit his testimony
to fit their version of events. Robinson claims in his affidavit that he never
saw Carty put a bag over Rodriguez’s head; he testified at trial that he
witnessed that event only at the insistence of the prosecutors. He also avers
that he told the prosecutors repeatedly that he never saw Rodriguez dead in
his car, but that they insisted he knew she was dead and he “just said what
Goodhart and Spence wanted me to say.”
      Caston testified at trial that Spence and Goodhart did not threaten him
in any way and that Carty initially brought up the crime. He states in his
affidavit, however, that Goodhart and Spence threatened him with thirty years
in prison if Carty did not get the death penalty and that Josie Anderson
initially brought up the crime. Ex. A-19 at ¶¶ 3–8. Caston avers that he lied
at trial about these facts and other details about the enterprise because of
pressure from Spence and Goodhart. Id. at ¶¶ 4, 7, 10, 11.
      Anderson, who ultimately refused to testify, states that “Spence went
through a whole story of what she said happened and what I was supposed to
know,” but much of the information was either untrue or Anderson had no
knowledge of it. Ex. A-18 at ¶10. For example, Anderson states that Spence
wanted him to testify at trial that he was present when Carty supposedly said
that she was going to “cut the baby out of” Rodriguez, that there was a
preexisting plan to kidnap Rodriguez and her child, and that Carty recruited
him and Robinson to perform the kidnapping. Id. at ¶¶ 11–14. According to
Anderson, he refused to testify because he did not want to lie, but that leading
up to that point, Spence had threatened to prosecute him instead or, if he
agreed to go along, promising that “she would make [his] drug cases go away.”
Id. at ¶¶ 15–19.
      Carty also submits an affidavit from Mathis, a former DEA agent who
was familiar with Carty because of her previous work as an informant. Ex. A-
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                                 No. 19-20574
21. Mathis states that although he did not say anything false at trial, “Spence
threatened [him] with an invented affair that I was supposed to have had with
[Carty]” to induce him to testify. Id. at ¶¶ 19 – 20. Mathis states that he does
not believe Carty could have committed the crime with which she was charged,
does not believe she was a compulsive liar, and does not believe she was a cold-
blooded murderer who was a danger to society, and he wanted to testify to that
effect but was prevented from doing so. Id. at ¶¶ 27–28, 32. He also states
that he wanted to testify about alleged police misconduct during the
investigation of Carty by the Houston Police Department, but Spence
prevented him from so doing. Id. at ¶ 26.
      Finally, Carty proffers emails obtained during discovery in her
subsequent state habeas proceedings between prosecutors in Carty’s case
discussing the need for Comb’s testimony. Carty contends that these emails
reflect that prosecutors had an undisclosed understanding with Comb that
they would seek a reduction in Comb’s sentence in federal court with the
assistant United States Attorney in exchange for Comb’s testimony in Carty’s
capital murder trial. Ex. A-4; Ex. A at 33–36, 48–50.
      Carty argues that the portions of testimony recanted in these affidavits,
as well as testimony to the effect that Robinson, Caston, and Combs were not
promised anything or threatened to provide testimony, give rise to a claim
under Giglio v. United States, 405 U.S. 150 (1972), that the prosecution
knowingly proffered false testimony at trial. Ex. A at 31–41. Much of these
same details from the affidavits, according to Carty, along with the alleged
misconduct the prosecution engaged in while preparing these witnesses, give
rise to a claim under Brady v. Maryland, 373 U.S. 83 (1963), for suppression
of evidence that would have been favorable to Carty; namely, that the true
version of events reflects that Carty is far less culpable than the prosecution
claimed at trial, and that much of this evidence would have been valuable
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                                  No. 19-20574
impeachment evidence regarding witnesses’ motives for testifying against
Carty. Ex. A at 41–51.
                                         B
      At this stage, “[w]e do not address the merits of [Carty’s] claims and only
consider whether to excuse [her] procedural default of failing to raise them in
[her] first federal habeas petition.” In re Swearingen, 556 F.3d 344, 347 (5th
Cir. 2009). In making this determination, we first ask whether Carty’s new
evidence could “have been discovered previously through the exercise of due
diligence.” 28 U.S.C. § 2244(b)(2)(B)(i). “To succeed at this stage, [Carty] must
make a prima facie showing that [she] could not have discovered, through
exercise of due diligence, the facts predicating [her] new . . . claim[s] at the
time [she] filed [her] first federal petition.” In re Davila, 888 F.3d 179, 184 (5th
Cir. 2018).
      If the “newly discovered” recantations were not available when Carty
filed her prior federal habeas petition, AEDPA requires that she make a prima
facie showing that she could not have discovered the factual basis for these
affidavits through the exercise of due diligence before she began her initial
federal habeas proceedings in 2006. 28 U.S.C. § 2244(b)(2)(B)(i); see also BRIAN
R. MEANS, FEDERAL HABEAS MANUAL § 11:28 (May 2020 Update) (“A state
prisoner seeking permission to file a second or successive habeas motion must
show some good reason why he was unable to discover the facts supporting the
motion before filing the first habeas petition. . . . An applicant that merely
alleges that he did not actually know the facts underlying his claim does not
pass this test.”). Though the burden is only for a prima facie showing of
diligence, that burden rests with Carty. Id. Included in this showing is a
requirement that Carty articulate a reason why the evidence was not available
earlier. See In re Young, 789 F.3d 518, 527–28 (5th Cir. 2015). In Young, we
denied authorization to file a successive habeas petition where, with respect to
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                                 No. 19-20574
one piece of evidence, the petitioner “ma[de] no argument as to why he could
not have discovered this evidence through due diligence” in the fourteen years
between his conviction and his successive habeas petition; the petitioner “was
socially acquainted with [the witness]” and “d[id] not allege that [the witness]
was unavailable or otherwise unable or unwilling to talk with [the petitioner’s]
counsel.” 789 F.3d at 527–28.
      As in Young, Carty has failed to articulate or allege any reason why she
was unable to interview or otherwise communicate with the witnesses on
whom she now relies. Carty argues rather that AEDPA’s due diligence hurdle
is met where an applicant alleges that a witness’s recantation of false
testimony has brought to light Giglio and Brady violations, citing Young for
the proposition that “perjured testimony . . . could not simply have been
obtained through the exercise of due diligence.” 789 F.3d at 529 (citations
omitted). However, this is taken out of context and misstates Young, which
holds, in pertinent part, only that having had the opportunity to cross-examine
a witness does not trigger the date on which a defendant “should have been
aware of that witness’s perjured testimony” for the purposes of AEDPA’s one
year statute of limitations for newly discovered evidence. Id. at 528. Rather,
“[a]bsent evidence that [the defendant] knew or should have known” that the
witness’s testimony had been perjured at an earlier point, this date is triggered
by the witness’s recantation. Id. This argument is inapposite to the question
of whether Carty has made a prima facie showing that she could not have
discovered the factual basis for her current claims through the exercise of due
diligence before she began her initial habeas petition.
      Carty’s argument that she has satisfied AEDPA due diligence under the
Brady standard—that because the prosecution hid this information, it could
not have been discovered earlier through the exercise of due diligence—is also
unavailing. Ex. A-1 at 25–28. In Davila, we explained the distinction between
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                                      No. 19-20574
AEDPA’s due diligence requirement and due diligence as it relates to a
traditional Brady analysis: Though Brady requires “prosecutorial misconduct
to be the reason for a defendant’s failure to discover favorable, material
evidence for use at trial,” AEDPA requires due diligence at the time of the first
habeas petition and asks whether such diligence “would have resulted in the
discovery of the factual basis for the new claim such that it could have been
included in the first petition.” In re Davila, 888 F.3d at 184. Therefore,
AEDPA’s due diligence requirement “must be resolved prior to, and
independently of, consideration of the similar elements of a Brady claim.” Id.
       Habeas petitioners must, regardless of the merits of their underlying
Brady and Giglio claims, exercise diligence in seeking out the factual predicate
for a claim ahead of their initial habeas petition. See Davila, 888 F.3d at 184–
87; see also Blackman v. Davis, 909 F.3d 772, 778–79 (5th Cir. 2018)
(“Blackman’s Brady and Giglio/Napue claims rely on . . . previously
undiscovered facts and are therefore within the purview of the statutory
language” of AEDPA, such that “the statutory requirements for a successive
petition must be considered prior to evaluation of the merits of the petitioner’s”
claims.).    Because Carty “does not allege that [these witnesses] [were]
unavailable or otherwise unable or unwilling to talk with . . . counsel,” and
because Carty was aware of the identity of these witnesses after trial at the
latest, she has failed to make out a prima facie showing of diligence under
AEDPA. 2 In re Young, 789 F.3d at 528.




       2Although Carty also argues that her new Brady and Giglio claims meet AEDPA’s
requirement that no reasonable factfinder would have convicted Carty of capital murder
when combined with her previously brought ineffective assistance of counsel claims, and that
the accumulation of constitutional error separately violates due process, we pretermit these
claims, as their predicate, the ability to bring her new Brady and Giglio claims sought
through the motion for authorization at bar, has not been met.
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                                 No. 19-20574
      Nor does the record before us reveal a basis for a finding of due diligence
under AEDPA. Caston and Anderson do not state in their affidavits that they
were previously unavailable to Carty’s counsel. Although Mathis states in his
affidavit that he has “attempted to avoid speaking to . . . Carty’s attorneys
because [he has] serious on-going health complications and because this case
is a source of stress and difficulty for [him],” he does not state he would have
refused to speak with them.      But more revealing is the fact that Mathis
previously made himself available to defense counsel and provided an affidavit
in 2006, indicating that Carty’s counsel had access to Mathis before Carty’s
initial habeas petition. Similarly, Robinson states that he “didn’t want to talk
about the case,” but he never asserts he would not have discussed the case with
Carty’s lawyers had he been approached—Carty does not allege that her
attorneys ever tried to speak with Robinson prior to her first habeas petition.
Given that Carty does not argue that Robinson or Mathis’s statements of
reticence to discuss the case amount to her and her counsel’s diligence, and the
absence of any evidence of an attempt to do so, we cannot conclude Carty has
made a prima facie case of diligence with respect to these witnesses.
      The final piece of evidence supporting Carty’s claims of prosecutorial
misconduct through threats and incentives is correspondence between
prosecutors Spence and Goodhart regarding Comb. It is true, as Carty argues,
that she did not discover these emails until they were produced in discovery
during her subsequent state habeas proceedings, after she filed her initial
federal habeas petition. But to conclude from this fact alone that she exercised
diligence under AEDPA runs counter to our precedent. See In re Davila, 888
F.3d at 186 (“Given the lack of argument as to why the discovery of the factual
predicate for his new claim exhibited due diligence, [the petitioner] would have
the court simply assume that due diligence corresponds directly with the date
of discovery. Such a standard plainly contradicts not only the plain language
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                               No. 19-20574
of Section 2244(b)(2)(B) but also our precedent.”). Absent from the record is
any evidence explaining any prior diligent search for information relating to
Comb.
                                    ***
      Lacking any argument from Carty that she exercised diligence in
attempting to uncover the evidence she now seeks to present in a second
habeas petition, and unable to muster any such argument from the record
before us, we conclude Carty has failed to make a prima facie showing of
diligence under AEDPA and her motion for authorization fails.
      Accordingly, we DENY Carty’s motion for authorization to file a
successive habeas petition.




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