    Case: 14-51288    Document: 00513070062    Page: 1   Date Filed: 06/08/2015




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                                No. 14-51288               United States Court of Appeals
                                                                    Fifth Circuit

                                                                  FILED
                                                               June 8, 2015
                                                               Lyle W. Cayce
In re: CLINTON LEE YOUNG,                                           Clerk

                                         Movant


                     On Motion for Authorization to File
                    Successive Petition for Writ of Habeas
                  Corpus in the United States District Court
                      for the Western District of Texas


Before JOLLY, SMITH, and CLEMENT, Circuit Judges.
EDITH BROWN CLEMENT, Circuit Judge:
      Clinton Lee Young was convicted of the capital murders of Doyle Douglas
and Samuel Petrey on March 27, 2003. He was sentenced to death on April 14,
2003. He now seeks authorization to file a successive petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2244(b)(2)(B).           For the reasons
explained below, Young’s motions for authorization and for a stay of execution
are denied.
                       FACTS AND PROCEEDINGS
I. The Murders
      The following summary of the relevant facts comes from the opinion and
order of the Texas Court of Criminal Appeals (“TCCA”), affirming Young’s
conviction on direct appeal.
          On November 24, 2001, [Young], Darnell McCoy, Mark Ray,
      and David Page decided to drive to Longview to buy some
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 marijuana. Because none of them owned a car, [Young] asked
 [Doyle] Douglas if he could borrow his car. Douglas refused, but
 offered to drive the group to Longview himself. When they arrived
 at their destination, [Young] shot Douglas in the head with a .22
 caliber semi-automatic handgun. Ray testified that [Young]
 threatened the remainder of the group by saying, “If y’all don’t get
 him in the trunk, you’re going to be like him.” Ray assumed that
 [Young] meant that they would also be shot. Ray, McCoy, and Page
 put Douglas in the trunk.
        The group then got back in the car and [Young] drove off.
 [Young] later told Ray that he needed Douglas’s car to go see his
 girlfriend. [Young] stopped the car in a remote wooded area near a
 creek and ordered Ray, Page, and McCoy to take Douglas’s body
 out of the trunk. The men complied and dragged Douglas’s body
 down to the creek while [Young] smoked a cigarette. Page testified
 that [Young] told Ray that he was going to have to prove himself
 by shooting Douglas in the head. [Young] got a pillow from the car
 and held it against Douglas’s head which was face-down in the
 creek. Ray shot Douglas in the head once more.
        Ray testified that [Young] then drove to a gas station and
 told his companions that one of them had to go to Midland with
 him to see his girlfriend because “[i]f y’all squeal, you know, by the
 time I hear about it, your friend’s going to be dead.” Page
 volunteered to go, and [Young] took Ray and McCoy home. [Young]
 called his girlfriend, Amber Lynch, presumably to make
 arrangements to meet her, and learned that her father, Bart
 Lynch, was with her. Page testified that [Young] realized that Bart
 would recognize Douglas’s car because Douglas and Bart knew
 each other. Thus, [Young] looked for another car to steal in
 Weatherford, but was unsuccessful.
        The two then drove to Eastland and stopped at a Brookshire
 Brothers grocery store to get some gas. [Samuel] Petrey was
 walking back to his pick-up truck from the grocery store when
 [Young] abducted him at gunpoint. [Young] ordered Petrey into his
 truck and then drove off with Page following in Douglas’s car.
 [Young] later stopped at a rest area and telephoned Amber. Page
 testified that [Young] decided that they would slit Petrey’s throat
 and “leave him somewhere.”
        [Young] got back in the truck, and Page continued to follow
 in Douglas’s car until they could find a location to abandon
 Douglas’s car. Page testified that Petrey told [Young] that he was
 familiar with the area and knew of a place to hide Douglas’s car.
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      According to Page, Petrey was compliant and helpful. Petrey
      directed them to another wooded remote area, and Page parked
      Douglas’s car in some bushes. [Young] then fired several shots into
      the car in an attempt to “blow it up” but was unsuccessful.
            [Young], Page, and Petrey then drove toward Midland. They
      made several stops and eventually stopped at a Wal-Mart, where
      [Young] ordered Petrey to buy a $500 assault rifle. Because of the
      waiting period, Petrey was not able to leave with the rifle. When
      they returned to the truck, [Young] called Amber again. Bart got
      on the phone with [Young] and told him that he knew what had
      happened to Douglas. Bart indicated that the police were looking
      for [Young] and Page. He also indicated that Page’s father knew
      about the situation and wanted Page to call him. Page then called
      his father and, after speaking with him, told [Young] that he
      needed to be dropped off so that he could turn himself in. [Young]
      refused and instead drove to a “pump-jack site,” where he told Page
      that they needed to “get rid of all the evidence.”
            Page testified that Petrey was leaning up against his truck
      smoking a cigarette when [Young] walked up to him and said,
      “Sorry, Sam, you know too much. You got to die.” [Young] then shot
      Petrey twice. Some blood splashed on the bumper of Petrey’s truck,
      so [Young] ordered Page to clean it off. The two then left in Petrey’s
      truck. After discussing what to do next, Page finally persuaded
      [Young] to drop him off at an IHOP so he could turn himself in.

Young v. State, No. AP-74643, 2005 WL 2374669, at *1–3 (Tex. Crim. App. Sep.
28, 2005) (en banc) (unpublished).
      Additionally, at trial, the defense elicited testimony that both called into
question Young’s guilt and suggested that Page may have killed Petrey. For
example, Christopher McElwee testified that, while in jail following the
murders, Page said he was wearing gloves when he shot Douglas. Young v.
Stephens, No. MO-07-CA-002-RAJ, 2014 WL 509376, at *4 & n.75 (W.D. Tex.
Feb. 10, 2014) opinion vacated in part, No. CIV. MO-07-CA-002, 2014 WL
2628941 (W.D. Tex. June 13, 2014). An expert testified that Page’s, but not
Young’s, DNA was found on gloves at the murder scene. Id. at *3 & n.67, *4 &
n.74. Further, the defense presented testimony that Page had opportunities

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to leave Young after the Douglas murder, but before the Petrey murder, but
did not, further suggesting he was a willing participant in the Petrey murder.
See id. at *4 & n.76.
II. Post-Trial Proceedings
      The TCCA affirmed Young’s conviction on direct appeal. Young filed his
first state habeas claim while his direct appeal was pending, alleging fourteen
errors. The state court held four days of hearings and thereafter recommended
denying relief. A few months later Young moved to add claims fifteen to
twenty-two to his request for relief.       The TCCA reviewed the record and
concurred with the trial court’s recommendation to deny relief; it also
dismissed Young’s new claims as an abuse of the writ because they constituted
a subsequent writ application. Ex Parte Young, No. WR-65,137-01, 2006 WL
3735395, at *1 (Tex. Crim. App. Dec. 20, 2006) (unpublished). Young filed a
petition for a writ of habeas corpus in the district court for the Western District
of Texas on December 20, 2007. On October 20, 2008, Young filed a motion to
stay his case in order to return to state court and advance new prosecutorial
misconduct claims. Young, 2014 WL 509376, at *16. The motion to stay was
granted on February 25, 2009. Id. Young then filed his second subsequent
writ of habeas corpus with the state court.
      Young asserted a variety of claims, including that the government
withheld information about Page and Ray’s plea agreements and that his trial
counsel was ineffective for failing to prove that Page and Ray shot Douglas. Id.
at *16. After the TCCA certified two issues, the trial court held five days of
evidentiary hearings to consider whether the prosecution withheld evidence
related to plea negotiations with Page and Ray, as well as whether the
prosecution withheld impeachment evidence that could have been used in
cross-examination of A.P. Merillat. Id. at *17; Ex Parte Young, No. WR-65,137-
03, 2009 WL 1546625 (Tex. Crim. App. June 3, 2009) (unpublished). The state
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court recommended denying Young’s petition for a writ on May 18, 2011,
finding that there was no plea agreement with Ray or Page at the time they
testified, that they testified accurately at trial, and that Young had abandoned
his claims related to Merillat. Young, 2014 WL 509376, at *22. The TCCA,
concurring with the trial court’s findings of fact and conclusions of law, denied
Young’s claim regarding the “prosecution’s alleged failure to disclose
exculpatory evidence.” Ex Parte Young, WR-65,137-03, 2012 Tex. Crim. App.
Unpub. 1360 (Tex Crim. App. Jun. 20, 2012) (unpublished).
      On October 18, 2012, Young filed his second amended federal habeas
petition. Young, 2014 WL 509376, at *23. The district court denied this
petition on February 10, 2014, issuing a comprehensive two-hundred page
opinion. Id. at *198–99. The district court considered Young’s Brady claim
that “the prosecution failed to disclose to petitioner’s trial counsel that it had
offered prosecution witnesses Page and Ray ‘informal promises of leniency and
of favorable plea agreements’” and that “the prosecution knowingly elicited
false testimony from both Page and Ray denying the existence of any promises
or deals.” Id. at *26.
      First, the court noted that the state court had already heard “extensive
live testimony” and found that there “were no plea agreements or promises of
leniency made to either Page or Ray” and that “nether Page nor Ray testified
falsely during petitioner’s trial.” Id. The court considered the testimony from
Young’s second successive state habeas proceeding, where both Ray and his
mother testified that Ray was offered a five-year sentence in exchange for
testifying. Id. at *28. The district court, however, found that this testimony
was refuted by several sources. The court found it persuasive that the relevant
prosecutors and investigators denied making any plea offer.            Id.   More
importantly, Ray’s trial counsel testified that, though there were some


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preliminary discussions about a plea agreement, he never construed those
conversations as an actual plea offer. Id.
      The district court also examined Page’s testimony at the second
successive state habeas proceeding. Before trial Page discussed a possible
thirty-year plea deal with the prosecution.          Id. at *29.    This deal was
conditioned on passing a polygraph test, which Page failed. Id. Consequently,
Page’s trial attorney did not believe that there was any plea agreement for
Page. Id. Further, the prosecution denied making any plea offers to Page. Id.
Page also testified that, though he hoped to receive leniency for cooperating,
he understood that there was not an enforceable agreement. Id. The district
court cited Knox v. Johnson, 224 F.3d 470, 482 (5th Cir. 2000), for the
proposition that a witness’s subjective hope of leniency in exchange for
cooperating with the prosecution does not establish an agreement). Id.
      Based on the foregoing, the district court found that “the state habeas
court reasonably rejected as factually flawed petitioner’s contentions that
either Page or Ray had been offered a plea agreement or that promises of
leniency had been made to Ray or Page to induce their trial testimony against
petitioner.” Id. at *30. Hence,
      petitioner failed to show the existence of any evidence at the time
      of petitioner’s trial concerning secret plea agreements or promises
      of leniency that could have been used to impeach Ray’s or Page’s
      trial testimony. Petitioner’s first claim does not satisfy the first or
      second prongs of Brady analysis, i.e., petitioner has failed to
      establish that any potentially beneficial information regarding
      undisclosed plea agreements or promises of leniency made to Ray
      or Page actually existed at the time of petitioner’s trial. In
      addition, because petitioner failed to establish that Ray or Page
      furnished any factually inaccurate testimony at petitioner’s trial,
      petitioner's first claim also fails to satisfy the first and third prongs
      of Giglio/Napue analysis, i.e., petitioner failed to show Ray or
      Page gave any false testimony or that prosecutors knew Ray or
      Page testified falsely.

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Id.
III. Young’s New Evidence
A. Evidence of Page’s Plea Offer
       On December 13, 2013, Young’s counsel interviewed Russell Stuteville,
who was in custody with Page before Young’s trial. Stuteville allegedly told
Young’s counsel that Page not only used the word “we” when referring to the
Petrey homicide but also admitted that he held Petrey at gunpoint on various
occasions.    According to Stuteville, once Page began meeting with the
prosecution he changed his version of events to focus on Young’s actions and
no longer said “we” in reference to the murders. Id. Stuteville also said Page
told him that he was going to plead guilty and receive twenty years of
probation. This led Young’s counsel to reinterview Page.
       In a January 9, 2014, interview with Young’s counsel, Page allegedly said
that he entered into a plea agreement before Young’s trial. After reviewing his
plea agreement, however, he stated that his dates were wrong.            Then, in
another interview on February 21, 2014, Page allegedly admitted that the
prosecution offered him an unconditional thirty-year plea bargain before
Young’s trial. In further interviews in April and May of 2014, Page allegedly
clarified that the offer was verbal and involved comments such as “[g]ive me
what I want and I’ll give you what you want.”
       Similarly to Stuteville, Elias Gomez, who was also incarcerated with
Young, stated in a February 20, 2014, interview that he “recalled Page saying
he had a plea deal with the state.” Young does not offer new testimony from
Page’s trial counsel or the prosecution to rebut their previous testimony that,
despite discussions of plea bargains, there was never a plea bargain with Page.
B. Evidence of “Inducements and Threats to Additional Witnesses”
       Additionally, Young alleges that the prosecution failed to disclose that it
offered inducements to or intimidated three government witnesses—Dano
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Young (“Dano”), Joshua Tucker, and Patrick Brook. Young alleges that, during
an April 2014 interview, Tucker, for the first time, talked about certain
inducements made by the prosecution. Tucker was convicted of committing an
unrelated robbery with Young shortly before the murders and was sentenced
to four years’ imprisonment.        During the sentencing phase of Young’s
subsequent murder trial, a government investigator, J.D. Luckie, transported
Tucker and Brook to the courthouse to testify.          While driving them the
investigator allegedly told Tucker and Brook that they might receive favorable
treatment or reduced sentences if they testified for the prosecution.
Additionally, the investigator allegedly told them that Young was a child
molester and beat his girlfriend.      The former comment appears to be a
reference to Young sticking his penis in an inmate’s ear during a fight. Tucker
allegedly told Young’s counsel that, but for the prospect of favorable treatment
and the negative comments about Young, he would not have testified. Brook
also stated in an April 2014 interview that, after being arrested for the
unrelated robbery he committed with Young, investigators told him he would
receive ten years in prison or less if he cooperated during the sentencing phase
of Young’s trial.
      Dano is Young’s half-brother. The day before he testified at Young’s
trial, Dano was arrested for drug possession. According to Young’s lawyer,
during a May 2014 interview, Dano alleged that, while en route to Young’s
trial, he was told that if he cooperated with the case he might receive help on
his pending drug charges.        Dano also received the impression from a
government investigator that, if he didn’t cooperate, his time in jail for the drug
charges would be made more difficult or longer. This investigator allegedly
also told Dano “everyone knows [Young] is guilty” several times. Young does
not explain why he did not obtain this evidence from his brother earlier.


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C. Newly Discovered Evidence that Page Shot Petrey
      Lastly, Young argues that this court should authorize filing and
consideration of his successive motion to evaluate the impact of “newly
discovered evidence of innocence.” This evidence concerns comments three
individuals—James Kemp, John Hutchinson, and Amanda Williams—
allegedly overheard Page make concerning his culpability for Petrey’s murder.
      On December 13, 2013, Young’s investigator interviewed James Kemp,
who was incarcerated with Page from late 2009 to early 2010. Young’s counsel
was allegedly prevented from interviewing him before Young’s second state
habeas hearing. Kemp alleged that, in 2010, before he testified at Young’s
second state habeas hearing, he was visited by two agents from the district
attorney’s office. These agents allegedly left Kemp with the impression that
he would benefit by not testifying in Young’s favor. He did not, and received a
ten-month sentence, which ran concurrently to a prior sentence. Kemp would
allegedly have otherwise testified that he overheard Page say, through the
prison ventilation system, that the police didn’t find fingerprints on the gun
from the Petrey shooting because Page had worn gloves and that Page was
lucky not to get a longer sentence, given what he actually did.
      John Hutchinson was another witness Young allegedly tried to interview
before his 2010 habeas hearing.       Hutchinson told Young’s counsel in a
February 2014 interview that law enforcement had also paid him a “hostile
visit” before the 2010 state habeas hearing, so he did not testify in Young’s
favor. Hutchinson told Young’s counsel that he overheard Page say that he
killed Petrey with a .22 caliber pistol. Hutchinson also stated that Page said
he received a favorable deal compared to his accomplice, who was on death row.
      Amanda Williams is the third witness who allegedly overheard Page
making inculpatory comments. Williams claims that, before the murders, she
overheard Page talking to McCoy about wiping bullet casings before loading
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them to avoid leaving fingerprints. Williams also claims that she overheard
Page say that going to the police first after getting into trouble results in a
“better deal.”
                                      DISCUSSION
       Based on the foregoing new evidence, Young moves this court to
authorize the filing of a successive petition. The authority for this court to act
on a motion to authorize a successive petition rests on 28 U.S.C § 2244(b)(3)(C),
which states: “[t]he court of appeals may authorize the filing of a second or
successive application only if it determines that the application makes a prima
facie showing that the application satisfies the requirements of this
subsection.” A 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. Reyes-
Requena v. United States, 243 F.3d 893, 899 (5th Cir. 2001) (quoting Bennett
v. United States, 119 F.3d 468, 469–70 (7th Cir. 1997)).
       The legal standard we apply to determine if Young has made a prima
facie showing is set out in 28 U.S.C. § 2244(b)(1)–(2). First, Young must show
that his proposed claims were not presented in a previous petition. 28 U.S.C.
§ 2244(b)(1). Second, his petition must rely on new evidence that “could not
have been discovered previously through the exercise of due diligence” and, “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). 1



       1  Young could instead show, but does not argue, that his “claim relies on a new rule of
constitutional law, made retroactive.” 28 U.S.C. § 2244(b)(2)(A).
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I. Evidence of Page’s Plea Offer Does Not Satisfy § 2244(b)(1)
      The first question is whether the Brady claim related to Page’s alleged
plea offer is a second or successive petition that was presented in a prior
application and must, therefore, be dismissed under 28 U.S.C. § 2244(b)(1).
Young argues that the Brady evidence is new and may be considered because
it “fundamentally alters” his previous Brady claim by alleging that the terms
of the deal offered to Page were different and more favorable than Young
previously understood.
      The government contends that Young “raised substantially similar
prosecutorial-misconduct . . . in the district court.” Indeed, the government
contends that Young has admitted as much in his motion: compare his
description of his old claim, “[the prosecution] told Page he could get a fifteen-
to-thirty year sentence if he passed a polygraph test and testified [against
Young]”; with his new claim, “[Page admitted] that the state made him a 30-
year plea offer before Young’s trial that was never conditioned on him passing
any polygraph test.”
      Young litigated the issue of whether the government withheld Brady
evidence related to Page and Ray’s settlement offers in his first successive state
habeas petition. Young, 2014 WL 509376, at *7 & n.170–83. The state trial
court found that Ray’s testimony regarding undisclosed plea offers was not
credible and denied relief. See id. at *22. The state court also found that Page
did not receive a plea deal despite preliminary negotiations. Id. The district
court carefully reviewed the state trial court’s findings and found no error in
its analysis. Id. Specifically, the district court noted that testimony from Page,
Page’s attorney, and the trial prosecutor, all demonstrated that Page was not
offered a deal and that any hope of leniency in exchange for testifying was not
Brady material. Id. at *29. As noted above, Young’s current Brady claim is

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slightly different from his state habeas testimony in that he now alleges that
Page’s deal was not predicated upon passing a polygraph test, in contravention
of the testimony of Page’s attorney and the state prosecutor.
       28 U.S.C. § 2244(b)(1) states that “[a] claim presented in a second or
successive habeas corpus application under section 2254 that was presented in
a prior application shall be dismissed.” 2 The only difference between this claim
and Young’s prior federal habeas claim is that Young now alleges there was no
polygraph condition attached to Page’s deal. But Young offers no evidence to
rebut the defense and government attorneys’ testimony to the contrary, or
indeed Page’s previous contrary testimony, which both the state trial court and
district court found compelling.               This new gloss on a previous claim is
insufficient to overcome § 2244(b)(1).
       Even if we found that Young’s claim was not presented in a prior
application, it would still require dismissal because it does not satisfy the
materiality prong of 28 U.S.C. § 2244(b)(2)(B)(ii). This second deficiency is
discussed below.
II. Evidence of “Inducements,” “Threats to Additional Witnesses,” and
Page’s Plea Offer do Not Satisfy 28 U.S.C. § 2244(b)(2)(B)(ii)

       Young has not made the requisite showing under 28 U.S.C.
§ 2244(b)(2)(B)(ii) to raise a successful successive habeas claim concerning the
alleged inducements and Page’s new Brady testimony. While it is likely that
Young has also failed to show that he could not have discovered the inducement



       2  Young argues that his Brady claim was not raised in a prior petition because the allegation
that Page’s deal was not conditional “fundamentally alters” the evidence (citing Vasquez v. Hillery,
474 U.S. 254, 259 (1986); Smith v. Quarterman, 515 F.3d 392 (5th Cir. 2008); Kunkle v. Dretke, 352
F.3d 980, 988 (5th Cir. 2003)). We find this argument unpersuasive. First, these cases concern the
issue of exhaustion, not whether a petition is successive. Second, even if these cases did apply to a
§ 2244 analysis, Young’s Brady evidence is not a changed focus to a new, previously unraised
substantive area, it is a slight accumulation of evidence in support of a previous argument. See, e.g.,
Smith, 515 F.3d at 401–02. Thus, these cases are not persuasive.
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evidence with due diligence, see § 2244(b)(2)(B)(i), we need not reach that issue
because the addition of Tucker, Brooks, and Dano’s statements to the evidence
adduced at trial, even when coupled with Page’s new Brady testimony, does
not establish by clear and convincing evidence that, but for the new evidence,
no reasonable factfinder would have found Young guilty.
      First, evidence of J.D. Luckie’s, inducements to Brook and Tucker while
transporting them to court could not have weighed on the jury’s determination
of guilt or innocence because those inducements occurred during the
sentencing phase of trial. Young’s motion states that Tucker “testified at
Young’s punishment-phase trial.”      The district court identifies this same
testimony as relating to the sentencing phase. See 2014 WL 509376, at *16 &
n.81. Young does allege that Brook was also offered inducements in a separate
incident in 2001. Brook’s testimony could conceivably have affected the jury’s
finding of guilt and so must be considered separately.
      Second, Young’s trial counsel introduced testimony from Christopher
McElwee that, while in jail, Page made inculpatory statements about Petrey’s
death. Thus the jury already had evidence from which to conclude he was both
biased and an alternative suspect in the Petrey shooting.
      Third, even if one assumes that the jury completely discounted the
testimony of the induced witnesses—Brook and Dano—and Page (because of
his motive to fabricate), it would not mean that they could not have found
Young guilty.    McCoy and Ray testified that they observed Young shoot
Douglas. They also testified that Young later admitted to shooting Douglas.
McCoy was later able to lead police to Douglas’s body. Bart and Amber Lynch
and Rosemary Sanders each testified that Young admitted he stole Petrey’s
truck and that they saw Young with the truck, or a substantially similar truck.
When Amber Lynch hugged Young she could tell that he was carrying a gun.

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Petrey’s wife testified about the timing of his disappearance, which generally
fit the government’s timeline. A store clerk at a gun shop testified that Young,
Page, and Petrey were in his store the night of Petrey’s murder trying to buy
an assault rifle and that Young, not Page, appeared to be in charge. A security
officer in a hospital parking lot saw Young, Page, and Petrey in Petrey’s pick-
up truck. When the police tried to apprehend Young, he fled in Petrey’s truck.
When Young was arrested, in Petrey’s truck, he had a .22 caliber pistol in his
possession. Tim Counce testified that this pistol fired the shell casings found
inside Douglas’s car and near Petrey’s body.
         Thus even the complete lack of Page, Brooks, and Dano’s testimony at
the guilt stage of trial would not prevent a reasonable jury from convicting
Young. Young argues that the proffered inducements would lead the jury to
distrust the entirety of the government’s case. We disagree. There was too
much corroborating evidence introduced at trial to call into serious question
the integrity of the government’s case-in-chief. Young has not met AEDPA’s
requirements for filing a successive petition, 28 U.S.C. § 2244(b)(2)(B)(ii). We
need not, therefore address the other requirements for granting a successive
petition under the AEDPA.
III.     Newly Discovered Evidence that Page Shot Petrey Does Not
Satisfy 28 U.S.C. § 2244(b)(2)(B)(i)–(ii)
         Lastly, we address the comments of three witnesses who allegedly heard
Page make inculpatory comments regarding the Petrey murder. Young has
not presented this evidence in either district or state court because he alleges
he discovered it on December 13, 2013 (Kemp), February 2014 (Hutchinson),
and April 2014 (Williams). Young argues that 28 U.S.C. § 2244(b)(2)(B) is
satisfied because these claims were not presented in a prior application, could



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not have been discovered previously, and would have altered the outcome of
the trial.
       Williams, before the 2001 murders, allegedly heard Page talking about
how not to leave fingerprints on bullets and how going to the police before an
accomplice will get you a better deal. Young makes no argument as to why he
could not have discovered this evidence through due diligence in the preceding
fourteen years. According to Young’s counsel’s proffer, Williams was socially
acquainted with Young. Young does not allege that she was unavailable or
otherwise unable or unwilling to talk with Young’s counsel. Tellingly, when
Young sets out his argument why he could not get testimony from Kemp and
Hutchinson, he does not mention Williams. The requirements of 28 U.S.C.
§ 2244(b)(2)(B)(i), therefore, are not met because Young has not demonstrated
that he could not have discovered Williams’ testimony earlier through the
exercise of due diligence. For the same reasons, Young’s claim regarding
Williams’ testimony is also likely barred by the statute of limitations. 28
U.S.C. § 2244(d)(1). 3
       Kemp and Hutchinson testified at Young’s 2010 state court habeas
proceeding. Young alleges that he was denied access to them before they
testified, while the government intimidated them into not revealing Page’s
statements by threatening them. Kemp, who was Page’s cellmate for a period
of time from late 2009 to early 2010, recanted his testimony and, in a December


       3  The Fifth Circuit has not decided whether 28 U.S.C. § 2244(d)(1) applies piecemeal
to each claim or to the whole habeas application. Though we do not decide that issue today,
it appears that applying the statute of limitations to each claim is consistent with AEDPA
and the precedent of other circuits. See, e.g., Zack v. Tucker, 704 F.3d 917, 921–24 (11th Cir.
2013) (en banc) (containing an in-depth discussion of the issue and collecting cases); see also
Capozzi v. United States, 768 F.3d 32, 33 (1st Cir. 2014); Bachman v. Bagley, 487 F.3d 979,
984 (6th Cir. 2007); DeCoteau v. Schweitzer, 774 F.3d 1190, 1192 (8th Cir. 2014); Mardesich
v. Cate, 668 F.3d 1164, 1171 (9th Cir. 2012); Prendergast v. Clements, 699 F.3d 1182, 1187
(10th Cir. 2012).
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                                  No. 14-51288


13, 2013, interview claimed he heard Page making inculpatory comments
concerning wearing gloves during Petrey’s killing and getting a good deal in
his plea bargain. Similarly, Hutchinson testified in February 2014 that he
heard Page bragging about killing Petrey with a .22 handgun.
      The first question is whether these claims are barred by the statute of
limitations. 28 U.S.C. § 2244(d)(1)(D). AEDPA’s 1-year statute of limitations
for newly discovered evidence runs from “the date on which the factual
predicate of the claim or claims presented could have been discovered through
the exercise of due diligence.” Id. We have held that this means the date a
petitioner is on notice of the facts which would support a claim, not the date on
which the petitioner has in his possession evidence to support his claim. See
Flanagan v. Johnson, 154 F.3d 196, 199 (5th Cir. 1998). The state argues that
Young’s 2010 cross-examination of Kemp and Hutchinson triggered the statute
of limitations clock. Young argues that he could not have discovered evidence
of Page’s statements because the government intimidated Kemp and
Hutchinson before they testified in 2010. The record does not explain why,
four years later, Kemp and Hutchinson recanted their allegedly perjured
testimony.
      The government does not cite any precedent for the proposition that the
opportunity to cross-examine a witness in a habeas proceeding triggers the
date on which Young should have been aware of that witness’s perjured
testimony. Absent evidence that Young knew or should have known that Kemp
and Hutchinson lied in their 2010 testimony, we do not agree with the
government’s position.    This holding is consistent with the limited cases
addressing a similar issue. See, e.g., Sierra v. Evans, 162 F.3d 1174, 1998 WL
712578, at *2 (10th Cir. 1998) (table op.) (unpublished) (28 U.S.C.
§ 2244(d)(1)(D) clock started when newspaper reports about DEA chemist

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                                   No. 14-51288


surfaced, not when petitioner had an opportunity to cross-examine the chemist
at trial); Pacheco v. Artuz, 193 F. Supp. 2d 756, 760–61 (S.D.N.Y. 2002)
(holding that evidence of “perjured testimony . . . could not simply have been
obtained through the exercise of due diligence” and, therefore, § 2244(d)(1)(D)’s
trigger was when the witness came forward). Hence we find that Young’s
claims regarding Kemp and Hutchinson are not time barred by 28 U.S.C.
§ 2244(d)(1)(D), or procedurally barred by 28 U.S.C. § 2244(b)(2)(B)(i).
      Kemp and Hutchinson’s statements, however, do not satisfy the
requirements of 28 U.S.C. § 2244(b)(2)(B)(ii). Young argues that Kemp and
Hutchinson’s testimony would color Page as untrustworthy and lead the jury
to conclude that Page killed Petrey.         This argument overlooks important
counterpoints that mitigate the impact of Kemp and Hutchinson’s testimony.
Kemp and Hutchinson’s testimony itself is not trustworthy. First, it comes
more than a decade after trial. Second, it is in direct contradiction to their
2010 testimony under oath. There is little doubt that their credibility would
be significantly diminished by cross-examination.
      Young also ignores that the jury already heard testimony from McElwee
that Page admitted to killing Petrey and other testimony that Page could have
left Young before Petrey was murdered and thus was, arguably, a willing
participant. Young, 201 WL 509376, at *4 & n.75, *75 & n.76. Further, Page
testified at trial that, while he didn’t have an explicit deal with the prosecution,
he hoped his testimony would help him. Thus the jury heard impeachment
evidence that Page: 1) had a motive to lie; 2) could have abandoned Young but
didn’t; and 3) confessed to killing Petrey. We need not rehash all the evidence
adduced at trial, but reiterate that Young was arrested with the gun that
produced the bullet casings found next to Petrey’s body. Based on this, we
cannot conclude that the testimony of Kemp and Hutchison, if offered at trial,

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“would be sufficient to establish by clear and convincing evidence that, but for
constitutional error, no reasonable factfinder would have found [Young] guilty
of [Petrey’s murder].” 28 U.S.C. § 2244(b)(2)(B)(ii). We also doubt that, but
need not consider whether, Young has “show[n] a linkage between the alleged
constitutional error and the new facts of innocence.” See Case v. Hatch, 731
F.3d 1015, 1032 (10th Cir. 2013).
                               CONCLUSION
      Accordingly, for the reasons discussed, Young’s motion for authorization
to file a successive petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2244(b)(2) is DENIED, and his motion for a stay is DENIED.




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