    Case: 19-20565    Document: 00515080515     Page: 1   Date Filed: 08/16/2019




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

                                 No. 19-20565                      FILED
                                                             August 16, 2019
                                                              Lyle W. Cayce
In re: LARRY SWEARINGEN,                                           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 Petition and for Stay of Execution


Before COSTA, WILLETT, and DUNCAN, Circuit Judges.
STUART KYLE DUNCAN, Circuit Judge:
      Larry Ray Swearingen, convicted nineteen years ago of capital murder
for strangling nineteen-year-old Melissa Trotter, seeks permission to file a
fourth federal habeas corpus petition. He also moves to stay, for the fifth time,
his execution date, scheduled for the evening of Wednesday, August 21, 2019.
Finding Swearingen’s claims fail to meet the strict requirements imposed by
28 U.S.C. § 2244(b) for authorizing a successive petition, we DENY his
application and also DENY his motion for stay of execution.
                                       I.
      The facts and extensive litigation history of Swearingen’s case have been
catalogued elsewhere. See, e.g., Swearingen v. State, 101 S.W.3d 89, 92 (Tex.
Crim. App. 2003) (direct appeal); Swearingen v. Presiding Judge of 9th
Judicial Dist. Court, Montgomery Cty., 2005 WL 995214 (Tex. Crim. App. 2005)
(mandamus petition); Swearingen v. Dretke, No. H-04-2058, slip op. (S.D. Tex.
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                                 No. 19-20565
Sept. 8, 2005) (first federal habeas); Swearingen v. Quarterman, 192 F. App’x
300 (5th Cir. 2006) (per curiam) (first federal habeas), cert. denied, 127 S. Ct.
1269 (2007); Ex parte Swearingen, 2008 WL 650306 (Tex. Crim. App. 2008)
(third state writ); Ex parte Swearingen, 2008 WL 5245348 (Tex. Crim. App.
Dec. 17, 2008) (third state writ), cert. denied, 129 S. Ct. 1383 (2009); Ex parte
Swearingen, 2009 WL 249759 (Tex. Crim. App. Jan. 27, 2009) (fourth state
writ); In re Swearingen, 556 F.3d 344 (5th Cir. 2009) (per curiam) (second
federal habeas); Swearingen v. Thaler, 2009 WL 4433221 (S.D. Tex. Nov. 18,
2009) (second federal habeas); Ex parte Swearingen, 2009 WL 249778 (Tex.
Crim. App. 2009) (sixth state writ); Swearingen v. State, 303 S.W.3d 728 (Tex.
Crim. App. 2010) (third DNA motion); Swearingen v. Thaler, 421 F. App’x 413,
414 (5th Cir. 2011) (per curiam) (second federal habeas), cert. denied, 132 S.
Ct. 1632; In re Swearingen, No. 11-20276, slip op. (5th Cir. May 9, 2011) (per
curiam) (third federal habeas); Swearingen v. Obama, 2011 WL 2037607 (S.D.
Tex. May 20, 2011) (civil rights complaint construed as unauthorized federal
habeas); Ex Parte Swearingen, 2011 WL 3273901, (Tex. Crim. App. 2011) (sixth
state writ); Ex parte Swearingen, 2012 WL 6200431 (Tex. Crim. App. 2012)
(sixth and seventh state writs), cert. denied sub nom. Swearingen v. Texas, 570
U.S. 905 (2013); State v. Swearingen, 424 S.W.3d 32 (Tex. Crim. App. 2014)
(fourth DNA motion); In re Swearingen, 2014 WL 1101761, (Tex. App. 2014)
(mandamus petition); State v. Swearingen, 478 S.W.3d 716 (Tex. Crim. App.
2015) (fifth DNA motion), cert. denied, 137 S. Ct. 60; Swearingen v. Keller, 2017
WL 6803366 (W.D. Tex. Nov. 9, 2017) (suit against Texas Court of Criminal
Appeals dismissed as frivolous). We provide a skeletal recitation here.
      Swearingen was sentenced to death in 2000 after a Texas jury
determined that he murdered Trotter by strangulation while committing, or
attempting to commit, kidnapping or sexual assault. His conviction was based
on a “mountain of inculpatory evidence.” Swearingen, 303 S.W.3d at 736
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(quoting Ex parte Swearingen, 2009 WL 249778, at *9 (Cochran, J.,
concurring)); see also, e.g., Swearingen, 2009 WL 4433221 at *2–3 (cataloguing
“the extensive evidence of [Swearingen’s] guilt which the State adduced at
trial”). The Texas Court of Criminal Appeals (“TCCA”) affirmed his conviction
and sentence. Over the next two decades, “Swearingen has filed a convoluted
tangle of habeas applications, pro se motions, mandamus actions, and amended
pleadings,” seeking to overturn his conviction and postpone his death sentence.
Id. at *6; see also id. at *6–10 (recounting state and federal post-conviction
litigation history through 2009); Swearingen, 478 S.W.3d at 719 (recounting
history of motions for post-conviction DNA testing). These legal machinations
have resulted in Swearingen’s execution being put off five times.
      On March 12, 2019, his sixth execution date was set for Wednesday,
August 21, 2019. Seven days before the execution date, Swearingen sought our
court’s authorization to file a fourth habeas petition based on two claims. First,
based on a recent letter from the Texas Department of Public Safety (“DPS”),
Swearingen claims the State sponsored “false and misleading” trial testimony
regarding blood flecks found under Trotter’s fingernails, in violation of Giglio
v. United States, 405 U.S. 150 (1972). Second, based on another recent DPS
letter, Swearingen claims the State withheld evidence that a criminologist had
“manufactured” evidence that the torn pantyhose used to strangle Trotter
matched the pantyhose found at Swearingen’s house, in violation of both Giglio
and Brady v. Maryland, 373 U.S. 83 (1963). Based on these claims, Swearingen
has also moved for a stay of execution.
                                       II.
                                       A.
      Swearingen must receive this court’s authorization to file a second or
successive petition. 28 U.S.C. § 2244(b)(3)(A); see generally, e.g., In re Raby,
925 F.3d 749, 754 (5th Cir. 2019). We may give that authorization only if we
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                                  No. 19-20565
conclude that Swearingen’s application makes a prima facie showing that it
satisfies the strict requirements in § 2244(b). Id. A prima facie showing is
“simply a sufficient showing of possible merit to warrant a fuller exploration
by the district court.” In re Campbell, 750 F.3d 523, 530 (5th Cir. 2014) (citation
omitted). Consequently, if it seems reasonably likely that a successive petition
meets the strict requirements provided in the statute, we will grant the motion
for a successive petition. Id.
      As both parties concede that Swearingen’s present claims were not
raised in previous federal habeas petitions, Swearingen must therefore make
a prima facie showing that he satisfies the requirements of § 2244(b)(2)(B):
      (2) A claim presented in a second or successive habeas corpus
      application under section 2254 that was not presented in a prior
      application shall be dismissed unless—
            ...
          (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.

Id. § 2244(b)(2)(B).
      This analysis does not address the merits of Swearingen’s two claims,
but only whether Swearingen “makes a prima facie showing that [he] can meet
the [two] requirements of § 2244(b)(2).” Swearingen, 556 F.3d at 347. Within
that framework, we consider each of Swearingen’s claims in turn.
                                        B.
      Swearingen claims that a recent letter from the DPS crime lab director—
sent to Swearingen’s counsel on August 9, 2019—shows the State sponsored
“false and misleading” trial testimony from a DPS analyst, Cassie Carradine,

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                                  No. 19-20565
concerning blood flecks found under Trotter’s fingernails. Evidence at trial
showed that the DNA profile derived from these flecks matched neither Trotter
nor Swearingen. Swearingen, 303 S.W.3d at 735. According to Swearingen,
Carradine testified this blood came from “contamination” of the sample,
leading the jury to discount the possibility that the blood actually pointed to
someone else as Trotter’s murderer. Now he claims that the 2019 DPS letter
shows Carradine’s testimony was fraudulently concocted by the State in
violation of Giglio. This claim fails to meet both of the § 2244(b)(2)(B) threshold
requirements.
      At the outset, we observe that Swearingen mischaracterizes what the
DPS letter says. He claims that the letter “proves” that Carradine’s testimony
was “false and misleading” and thus “demonstrates that the State sponsored
the false contamination theory for the purpose of misleading the jury.” The
letter (which we reproduce in full below) says nothing like that. The letter first
notes that Carradine “was qualified” to opine about contamination “within the
DPS laboratory or based on the packaging and condition of the evidence,” but
that she lacked “direct knowledge” about how the evidence was “collected or
stored prior to its submission to DPS” (emphasis added). Thus, the letter states
that a “more appropriate answer” from Carradine “would have been that she
could not speak to the possibility of contamination of the samples when they
were outside the control of the DPS laboratory.” Next, the letter states that
Carradine had an “insufficient basis” to opine regarding contamination and
that, therefore, she should have testified that “[t]he full range of possibilities
include contamination or that it was not contamination and the [DNA] profile
did come from the evidence.” Contrary to Swearingen’s characterization, the
letter does not say that Carradine testified “falsely” and says nothing to
suggest that the State “sponsored” a “false contamination theory” to “mislead”
the jury. Instead, the letter says at most that Carradine lacked a foundation to
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                                   No. 19-20565
opine on contamination that may have occurred when the samples were outside
DPS custody, and that her answers should have recognized that nuance.
      We also note that Swearingen’s application neither quotes Carradine’s
actual trial testimony nor provides transcripts of her testimony. Nonetheless,
Swearingen baldly claims that Carradine “definitively told the jury” that the
blood flecks were “the result of contamination either at the DPS Crime Lab or
at earlier Autopsy [sic].” That is false. The trial record pages Swearingen cites
to support that claim tell a different story. After describing how she collected
the flakes, Carradine testified only that there was a “possibility” of
contamination. And while she briefly referred to the possibility that the flecks
may have been deposited “at the time . . . the sample was being collected,” she
focused far more on the possibility that the contamination might have occurred
in the DPS lab. Furthermore, Swearingen’s counsel objected to Carradine’s
testimony as “speculation,” and then cross-examined her extensively on how
the fingernail scrapings were packaged and how she handled them. During
that cross-examination, Carradine was asked how the samples were
transported to DPS and she responded, “I have no way of knowing how they
were transported to the office.”
      Having properly characterized Swearingen’s claim regarding the letter,
we can now assess whether his claim meets the two prongs of § 2244(b)(2)(B).
We conclude it meets neither.
      First, the claim’s “factual predicate”—that Carradine lacked a
foundation for her testimony regarding possible contamination—could have
been discovered long before the DPS letter was sent in August 2019. Indeed,
the record shows that Swearingen’s attorneys were already aware of the issue:
His trial attorneys objected to Carradine’s testimony on this point as
“speculative,” they cross-examined her on how she received and handled the
fingernail scrapings, and they elicited an admission that she had “no way of
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                                     No. 19-20565
knowing” how the samples were handled before arriving at DPS. More broadly,
whether the blood flecks came from contamination was vigorously contested at
trial. See, e.g., Swearingen, 424 S.W.3d at 39 (observing that “[t]he jury chose
to believe that the foreign DNA either was contamination or that it came from
outside the context of the crime”); Swearingen, 2009 WL 249778 at *5 n.7
(Cochran, J., concurring) (listing post-conviction court’s findings on blood
flakes). Any “reasonable attorney would have been put on notice” that they
should have probed the basis for Carradine’s testimony on this issue—and
Swearingen’s attorneys did just that at trial. See Blackman v. Davis, 909 F.3d
772, 779 (5th Cir. 2018), cert. denied, 139 S. Ct. 1215 (2019).
        Second, even assuming the facts underlying this claim are true —again,
that     Carradine      lacked   a   foundation   for   testifying   about   possible
contamination—we cannot say that no reasonable jury would have found
Swearingen guilty “in light of the evidence as a whole.” 28 U.S.C.
§ 2244(b)(2)(B)(ii). As the State points out, Carradine’s testimony was
cumulative of more detailed expert testimony from Dr. Joye Carter, from which
a jury might have readily reached the same conclusion about the blood. And
even if we assume the foreign DNA under Trotter’s fingernails was not from
contamination, that would not clearly and convincingly exonerate Swearingen.
We cannot improve on the TCCA’s reasoning on this point:
        We are not persuaded that results showing the presence of another
        DNA donor in the fingernail scrapings would overcome the
        “mountain of evidence” of the appellee’s guilt. Primarily, this is
        because the victim’s having encountered another person would not
        factually exclude the appellee from having killed her.

Swearingen, 424 S.W.3d at 38–39. Given that “mountain of evidence,” jurors
could have found the DNA evidence outweighed by the prosecution’s case, even




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                                       No. 19-20565
without a suggestion that the sample was contaminated. 1 While theoretically
possible that DNA evidence from the blood flakes could have swayed the jury,
it is not sufficient under § 2244(b) merely to show that evidence “muddies the
waters.” In re Raby, 925 F.3d at 759. “Clear and convincing” evidence is
required. § 2244(b)(2)(B)(ii). Even assuming Carradine’s testimony on this
point lacked any foundation, Swearingen has not come close to establishing
that “no reasonable factfinder” would have found him guilty. 2
                                              C.
       Swearingen next claims that, in violation of Giglio, the State sponsored
false trial testimony from a criminologist, Sandy Musialowski, concerning the
degree of “match” between the ligature used to strangle Trotter and the torn
pantyhose found at Swearingen’s home. He also claims that, in violation of
Brady, the State withheld exculpatory and impeaching evidence on this issue.
His Giglio claim is based on another recent DPS letter which he says “retracts”
Musialowski’s opinion that the ligature and the pantyhose matched. His Brady


       1 Swearingen cites four state cases where blood under a victim’s fingernails was found
sufficient to support a guilty verdict. See Cotton v. State, 144 So.3d 137, 142 (Miss. 2014);
State v. Abdelmalik, 273 S.W.3d 61, 66 (Mo. App. 2008); State v. Scott, 97 So.3d 1046, 1052
(La. Ct. App. 2012); State v. Gibbs, 763 N.W.2d 430, 443 (ND 2009). Those cases do not help
his claim. The cases do not stand for the proposition that the presence of foreign DNA under
the victim’s fingernails necessarily establishes a defendant’s innocence, particularly in a case
like this one where there is a massive amount of evidence, distinct from the fingernail
evidence, tying the defendant to the crime.
       2 Reinforcing this point, Swearingen also fails to establish that “but for constitutional
error, no reasonable factfinder would have found the applicant guilty of the underlying
offense” because he has not put forward a prima facie case for a constitutional violation. 28
U.S.C. § 2244(b)(2)(B)(ii). For purposes of a Giglio claim, “due process is not implicated by
the prosecution’s introduction or allowance of false or perjured testimony unless the
prosecution actually knows or believes the testimony to be false or perjured.” Kutzner v.
Cockrell, 303 F.3d 333, 337 (5th Cir. 2002); see also Raby, 925 F.3d at 756–57. While
Swearingen argues that Carradine’s testimony was false, he fails to argue the State knew it
was false at the time. Thus, Swearingen fails to show a prima facie constitutional error under
Giglio, and so he cannot establish that “but for constitutional error” no rational jury would
have found him guilty.


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                                    No. 19-20565
claim is based on notes, written by Musialowski during her examination of the
torn pantyhose, that he claims the State withheld. We conclude that these
interrelated claims fail to satisfy § 2244(b)(2)(B).
      The Giglio claim turns on a July 19, 2019 letter from DPS that
Swearingen again misrepresents. The letter (also reproduced below) does not
“retract” Musialowski’s testimony—it merely says her testimony about the
match between the ligature and the torn pantyhose would today use different
terminology. “Today,” says DPS, “we would report that the two pieces [of
pantyhose] were once joined, but would not include the statement ‘to the
exclusion of all others.’” At the same time, the letter affirms that Musialowski
“did not err in her reporting or testimony regarding [the pantyhose match].”
We think it sufficient to dispose of this claim to say this: Even if proven true,
we do not think the claim provides clear and convincing evidence that no
reasonable jury would find Swearingen guilty. In other words, even if
Musialowski’s testimony were revised from “the litgature and the pantyhose
were a unique match to the exclusion of all others,” to “the litgature and the
pantyhose were once joined,” we see no possibility that this would make any
difference to Swearingen’s guilt.
      Finally, the Brady claim turns on Musialowski’s allegedly undisclosed
notes. The notes document that, at the initial stages of her examination,
Musialowski could not say the ligature and the pantyhose were a “physical
match,” but as her examination progressed, she was able to determine that
they were indeed a “unique physical match.” Swearingen claims this is
evidence that his attorneys could have used to impeach Musialowski’s key
conclusion linking him to the murder weapon. We conclude this claim fails both
prongs of § 2244(b)(2)(B).
      With respect to the due diligence prong, § 2244(b)(2)(B)(i), Swearingen’s
attorneys were obviously aware at trial of the precise nature of Musialowski’s
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                                   No. 19-20565
examination of the pantyhose, which is reflected in the allegedly undisclosed
notes. For instance, the statement plausibly helpful to Swearingen in the notes
is the notation that Musialowski, having initially observed the ligature and
pantyhose under glass plates, observed “no physical match between ligature
and pantyhose.” But this phase of the investigation, and the difficulties
Musialowski faced, were discussed in detail at trial. Musialowski testified that
she attempted to observe the ligature and pantyhose on glass plates, but
“because the ends were rolling, it was difficult for [her] to keep the ends down
to compare.” So, she used other methods, including pinning the fabric to a foam
board, which ultimately led to her conclusion of a match. The notes are
consistent with Musialowski’s testimony at trial, and thus do not constitute
new evidence previously undiscoverable by due diligence. Swearingen’s claim
thus fails under § 2244(b)(2)(B)(i).
      Alternatively, Swearingen’s claim about the notes fails the second prong
of § 2244(b)(2)(B). As already discussed, Musialowski’s notes were basically
cumulative of her trial testimony about her developing examination of the
pantyhose    and    ligature.   Introducing   the     notes    would   simply    have
established—as her trial testimony did—that Musialowski did not initially see
a match when analyzing the items on glass plates, but did see one upon further
investigation. These facts were already present in her trial testimony and
would have been, at most, marginally enhanced by the notes. Thus, the notes,
even if introduced and credited by the jury, would not have led to a trial in
which “no reasonable factfinder would have found the applicant guilty of the
underlying offense.” 28 U.S.C. § 2244(b)(2)(B).
      That conclusion is particularly compelling given that § 2244(b) requires
us to assess the claim “in light of the evidence as a whole.” § 2244(b)(2)(B)(ii).
We have before alluded to the “mountain of inculpatory evidence,” discussed in
detail by numerous courts, state and federal, that seals Swearingen’s guilt for
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                                    No. 19-20565
Trotter’s murder. Swearingen, 303 S.W.3d at 736. We end by quoting a
relatively succinct summary of that evidence from a federal district court,
which underscores why Swearingen’s “new” claims in this latest phase could
not possibly have made any difference to the outcome of his trial:
      To reiterate, Swearingen was the last person that Ms. Trotter was
      seen with alive. Ms. Trotter had been in Swearingen’s truck, where
      he forcibly removed hair follicles. Swearingen’s histological evidence
      does not explain why she was in his house that day, why it was later
      found to be in disarray, and why he falsely claimed that there had
      been a burglary there. The evidence itself does not explain why
      papers belonging to Ms. Trotter were found near the house of
      Swearingen’s parents and her cigarettes were in Swearingen’s
      house. The new information does not explain why Ms. Trotter was
      found wearing the same clothes as when she disappeared and why
      she had a note given to her by a friend on December 8 in her back
      pocket. The new evidence does not show why cell phone records
      traced Swearingen to a location near where Ms. Trotter was found.
      Histology does not explain why half of a pair of pantyhose belonging
      to Swearingen’s wife was found in Swearingen’s house and the other
      half around Ms. Trotter's neck. The new evidence does not explain
      why the same meal Ms. Trotter was last seen eating was found in
      her stomach. Swearingen lied about his whereabouts, tried to
      fabricate an alibi, made false police reports, fled from the police,
      asked friends to lie in his behalf, told others that the police would
      be after him, and crafted an ultimately inculpatory letter to throw
      attention away from himself. Swearingen told other inmates, “Fuck,
      yeah, I did it.”

Swearingen, 2009 WL 4433221, at *23 (footnote omitted). 3
                                          III.
    We DENY authorization to file a successive habeas corpus petition. We
DENY the motion for stay of execution.



      3 The TCCA today dismissed the claims Swearingen raises here as an abuse of the
writ. Ex parte Larry Ray Swearingen, No. WR-53,613-14 (Tex. Crim. App. Aug. 15, 2019).
Because we deny Swearingen’s application on other grounds, we need not decide whether his
claims are procedurally defaulted as well. See In re Raby, 925 F.3d at 755 n.7.
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                           APPENDIX




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                           No. 19-20565
                           APPENDIX




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