   Case: 10-50348       Document: 00511087622          Page: 1    Date Filed: 04/21/2010




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

                                                 FILED
                                                                            April 21, 2010

                                       No. 10-50348                         Lyle W. Cayce
                                                                                 Clerk



In re: WILLIAM JOSEF BERKLEY,

                                                   Movant




                        Order Denying Motion to Authorize
                     Second Petition for Writ of Habeas Corpus
                              under 28 U.S.C. § 2244


Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
       William Josef Berkley is scheduled to be executed by the State of Texas on
April 22, 2010. Berkley moves this Court for a stay of execution and an order
authorizing the filing and consideration of a second petition for writ of habeas
corpus, under 28 U.S.C. § 2244(b)(3)(C). After considering Berkley’s arguments,
we DENY both motions.
       The facts of this case have been documented in previous opinions by this
Court, Berkley v. Quarterman, 310 F. App’x 665 (5th Cir. 2009) (unpublished)
(per curiam), and the district court, Berkley v. Quarterman (Berkley I), 507 F.




       *
         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 R. 47.5, the Court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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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Supp. 2d 692 (W.D. Tex. 2007). We repeat the facts here only as they directly
affect the instant motions.
      Sophia Martinez stopped at an ATM to make a withdrawal. Berkley I, 507
F. Supp. 2d at 702. Bank security cameras recorded a male with a handgun who
approached Martinez’s vehicle; shot into the vehicle, apparently wounding
Martinez in the head or face; and got in her car, which subsequently drove away.
Id. at 702–03. Before trial, Berkley made two confessions. Id. at 703–04. At
trial, the district court admitted portions of those confessions which established
Berkley’s account of the events that transpired on the night of Martinez’s death:
“his gun went off as he approached Martinez’s vehicle”; he “entered her vehicle
. . . and directed her to drive her vehicle away from the ATM to a deserted area”;
when they reached the deserted area, she “initiated multiple episodes of sexual
relations between them”; his gun discharged “when she attempted to hug him”;
“he passed out and did not wake up for several hours”; when he awoke, he saw
Martinez lying on the ground; “he ‘freaked out’ and drove her car to another part
of the desert where he drove it off the road” and “he then walked home.” Id.
Police found Martinez’s body the next day. Id. at 703.
      In the instant motions, Berkley does not argue against the admission or
content of his confessions or the ATM video. Instead, he argues that the State
used a now-discredited theory to connect three bullets recovered from Martinez’s
body and one found in the desert nearby, to a bullet recovered during a search
of Berkley’s residence. At trial, an FBI forensic examiner used the theory of
Comparative Bullet Lead Analysis (“CBLA”) when she testified that all five
bullets were manufactured from the same “pot” of lead. The FBI has since
acknowledged that this sort of testimony is problematic because it might lead a
jury to believe that a “pot” is very small—perhaps as small as a box of
ammunition—when in reality a pot might be much larger, thus diluting or
negating its probative value. Berkley argues that the admission of this CBLA

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testimony amounted to a violation of his constitutional rights under Brady v.
Maryland, 373 U.S. 83 (1963) and Giglio v. United States, 405 U.S. 150 (1972),
and that he is actually innocent of capital murder. At the very least, Berkley
argues that he has made a prima facie showing sufficient for this Court to
authorize the filing of a second habeas application in the district court.
      Under § 2244(b)(3)(C), “[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.” Here, Berkley must make a prima facie showing that “the
factual predicate for the claim could not have been discovered previously through
the exercise of due diligence,” and 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 constitutional error, no reasonable
factfinder would have found [Berkley] guilty of the underlying offense.” 28
U.S.C. § 2244(b)(2)(B).
      Assuming that Berkley can make a prima facie showing that the flaws in
the prosecution’s bullet analysis could not have been discovered previously
through the exercise of due diligence, his claim still fails because he does not
make a prima facie showing that but for the flawed bullet analysis, no
reasonable factfinder would have found him guilty of capital murder. In fact, the
CBLA testimony went to the gun’s presence at and use in the crime, and was not
used to prove that Berkley actually fired the gun. Given the strength of the
State’s case, we cannot say that without the CBLA testimony no reasonable
factfinder would have found him guilty of capital murder.          Berkley’s own
confessions, combined with the video from the ATM, establish that he
approached Martinez at the ATM; that he shot into her car, apparently
wounding her in the head; that they drove to a deserted area; that they had
sexual relations; and that his gun discharged at least one more time.

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      Accordingly, we DENY Berkley’s motions for a stay of execution and an
order authorizing the filing and consideration of a second petition for writ of
habeas corpus.




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DENNIS, Circuit Judge, specially concurring:
        I concur in the denial of Berkley’s motions for authorization to file a
successive habeas petition and for a stay of execution. The only issue presented
to this panel is whether Berkley satisfies the exacting standard for authorization
of a successive habeas petition under 28 U.S.C. § 2244 and thus is entitled to a
stay to pursue this claim. The order accurately captures why, in light of
Berkley’s arguments, he has not met this standard.
        Nonetheless, I write separately to call attention to an issue of grave
concern raised by the proceedings in Berkley’s case. In the weeks prior to the
instant filing, this court was informed by Berkley’s counsel that they would not
be pursuing clemency or other non-habeas remedies or stays of execution that
might be available to Berkley, as they were “appointed solely for the purpose of
the federal habeas case.” This statement appears to rely upon the wording of the
district court’s order appointing counsel. That order assigned counsel to
represent Berkley in his “federal habeas corpus proceeding.” Order of Mar. 31,
2006.
        However, the statute under which Berkley’s counsel were appointed, 18
U.S.C. § 3599, has recently been construed by the Supreme Court in Harbison
v. Bell, 129 S. Ct. 1481 (2009), to contain a broader obligation of representation.1
The Court indicated that the plain language of 18 U.S.C. § 3599(e)—requiring


        1
          I note that in originally appointing counsel, the district court purported to do so
pursuant to 21 U.S.C. § 848(q). Order of Mar. 31, 2006. However, this statute no longer existed
at the time. It had been replaced by 18 U.S.C. § 3599, which has not since been substantively
amended. USA Patriot Improvement and Reauthorization Act of 2005, Pub. L. No. 109-177,
tit. II, §§ 221-222, 120 Stat. 231 (Mar. 9, 2006); Judicial Administration and Technical
Amendments Act of 2008, Pub. L. No. 110-406, § 12(c), 122 Stat. 4294 (Oct. 13, 2008)
(amending 18 U.S.C. § 3599(g) to allow the chief judge of any circuit to delegate his or her
authority to approve expenses associated with representation under the statute to a “senior”
judge, in addition to an active judge, who was already allowed to be a designee of the chief
judge under the statute). See also Harbison, 129 S. Ct. at 1487 n.3 (noting this legislative
history). Therefore, the district court must have intended to appoint counsel pursuant to 18
U.S.C. § 3599 and Harbison’s analysis of the statute is directly on point.

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that each attorney appointed under the statute “shall represent the defendant
throughout every subsequent stage of available judicial proceedings, including
. . . all available post-conviction process, together with applications for stays of
execution and other appropriate motions and procedures, and shall also
represent the defendant in such competency proceedings and proceedings for
executive or other clemency as may be available to the defendant”—controls any
interpretation of counsels’ duties under the statute. See Harbison, 129 S. Ct. at
1486. Thus, the Court held that federally appointed counsel are “authorize[d]
. . . to represent their clients in [available] state clemency proceedings” and are
“entitle[d] . . . to compensation for that representation.” Id. at 1491.
      Yet, following Harbison, we have not had occasion to make clear whether
counsel can be provided a narrower appointment, as may have been done in the
instant case, than the broader representation described in Harbison. This leaves
an untenable gap in our jurisprudence and in the high level of procedural
protections we should afford death penalty–eligible defendants. Without
knowing our understanding of Harbison, counsel like those in this case could
reasonably interpret their mandate as ending once their client’s federal habeas
proceedings have concluded, even though this appears to be contrary to the
Supreme Court’s articulation of 18 U.S.C. § 3599’s demands. At the same time,
defendants are left without a clear conception of their rights or remedies in light
of Harbison.
      Therefore, I write separately to call attention to the evident duty of
federally appointed counsel to represent death row inmates in state clemency
proceedings in order to ensure “that no prisoner [will] be put to death without
meaningful access to the ‘fail-safe’ of our justice system.” Harbison, 129 S. Ct. at
1491 (quoting Herrera v. Collins, 506 U.S. 390, 415 (1993)). If my reading of
Harbison is correct, federally appointed counsel must timely seek clemency for



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a death row inmate who requests such a petition. See 37 Tex. Admin. Code §
143.43 (stating clemency petitions must be filed 21 days prior to an execution).




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