                                                                  United States Court of Appeals
                                                                           Fifth Circuit
                                                                        F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                                                                        March 20, 2007
                         FOR THE FIFTH CIRCUIT
                        ______________________                       Charles R. Fulbruge III
                                                                             Clerk
                                 No. 07-10311
                            _____________________

In Re:   CHARLES ANTHONY NEALY,

                                                          Movant.
_________________________________________________________________

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

Before JOLLY, HIGGINBOTHAM, and WIENER, Circuit Judges.

PER CURIAM:*

     On Friday, March 16, 2007, Texas death row inmate Charles

Anthony Nealy, who is scheduled to be executed on March 20, 2007,

applied to this court for authorization to file a successive

application for a writ of habeas corpus in the district court.                    He

seeks authorization to file two claims in a successive federal

habeas corpus petition.       The claims are (1) that he was denied due

process of law under the Fourteenth Amendment because the State

suppressed exculpatory evidence and knowingly relied on perjured

testimony   to    convict     him;    and    (2)   that    his   conviction       is

constitutionally    unreliable       and    therefore     violates   the   Eighth

Amendment’s    requirement     that    capital     proceedings    adhere     to    a



     *
      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this opinion should not be published and is not precedent except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.
heightened degree of reliability, and the Fourteenth Amendment’s

right to due process.

      Nealy claims that unless this court intervenes, the State of

Texas will execute an innocent man.       We note, however, that he does

not dispute that he was in the convenience store at the time the

robbery and murders occurred.        Indeed, in a statement that the

state court found to have been voluntarily given, although it was

not admitted into evidence at trial, Nealy admitted that he carried

the   shotgun,   but   asserted   that   the   shooting   was   accidental.

Therefore, his claim is not that he is actually innocent of murder.

Instead, his “actual innocence” claim is that the prosecution

failed to prove beyond a reasonable doubt that he personally shot

and killed Jiten Bhakta with a shotgun during the course of robbing

Jiten Bhakta’s convenience store.

                                    I.

      Nealy was convicted of capital murder and sentenced to death

for the 1997 murder of Jiten Bhakta during an armed robbery of the

convenience store owned by Jiten Bhakta.             His conviction and

sentence were affirmed on direct appeal.            Nealy v. State, No.

73,267 (Tex. Crim. App. September 13, 2000) (unpublished), cert.

denied, 531 U.S. 1160 (2001).      In October 2001, the Texas Court of

Criminal Appeals adopted the trial court’s recommendation that

Nealy’s state habeas application be denied.          Ex parte Nealy, No.

50,361-0-1 (Tex. Crim. App. October 24, 2001) (unpublished). Among

the numerous claims raised in his first state habeas petition was

                                     2
the   claim    that    the     State    failed       to     disclose     a    plea    bargain

agreement made in exchange for Reginald Mitchell’s trial testimony

and   thereby       violated    his    due        process    rights      under       Brady    v.

Maryland, 373 U.S. 83 (1963).

      In his federal habeas petition filed in October 2002, Nealy

asserted three claims for relief:                       (1) that the evidence was

insufficient to prove beyond a reasonable doubt the essential

elements of the offense of capital murder; (2) that the trial

court’s failure to allow him to inform the jury of his parole

eligibility if the death penalty were not assessed violated his

constitutional rights to equal protection, effective assistance of

counsel,      due   process,     and    protection          from   cruel       and    unusual

punishment; and (3) that the evidence was insufficient to sustain

the State’s burden of proving that he would commit criminal acts of

violence constituting a future danger to society.                              The district

court denied relief and denied Nealy’s request for a certificate of

appealability        (“COA”).          Based       on     our   “threshold        inquiry”,

consisting of “an overview of the claims in the habeas petition and

a general assessment of their merits,” Miller-El v. Cockrell, 537

U.S. 322, 327, 336 (2003), we granted a COA for the claim of

insufficient evidence to support the jury’s verdict of guilt, and

denied a COA for the other two claims.                      Nealy v. Dretke, No. 05-

70027   (5th        Cir.   March       27,    2006)       (unpublished).          Following

supplemental briefing on the merits and oral argument, we affirmed

the district        court’s     denial       of    federal      habeas       relief    on    the

                                              3
insufficient evidence claim.         Nealy v. Dretke, No. 05-70027 (5th

Cir. May 24, 2006) (unpublished), cert. denied, 127 S.Ct. 501

(2006).

     In his first federal habeas petition, Nealy argued that the

evidence was insufficient to convict him of causing the death of

Jiten    Bhakta   during    the    course    of   a   robbery,   because   the

eyewitness’s identification was tainted by conflicting testimony

and his lack of memory about whether he had previously identified

Nealy,    and   because    the   remaining   testimony    presented   by   the

prosecution did not establish that Nealy caused Jiten Bhakta’s

death.     In our opinion affirming the denial of federal habeas

relief on this claim, we described the evidence presented at trial

as follows:

            The State’s first witness was [Nealy’s
            nephew,] Memphis Nealy (“Memphis”).         He
            testified that between 5:00 and 7:00 p.m. on
            the evening of the robbery, he was riding with
            Nealy on Central Expressway in Dallas. When
            they passed the Expressway Mart convenience
            store, Memphis said that Nealy stated, “I’m
            going to come back and get ‘em.” Nealy did
            not want Memphis to participate in their
            return to the convenience store because
            Memphis did not have a criminal record.

                 Memphis testified that, within 24 hours,
            he saw a television news report about the
            robbery and murders at the Expressway Mart.
            On direct examination, he testified that he
            saw a “little bit” of the videotape from the
            store on television; that he saw Nealy and
            Reginald Mitchell in the videotape; and that
            he later viewed a videotape of the offense and
            observed Nealy, wearing a dark hat and
            carrying a shotgun and a briefcase.


                                       4
     On cross-examination, Memphis testified
that the police showed him the videotape of
the offense; that only a small portion of the
videotape was shown on the television news;
that he could not tell who was depicted on the
tape when he first viewed it; and that, after
the police told him that Nealy was shown on
the videotape, he was able to recognize and
identify Nealy and Claude Nealy (“Claude” --
Nealy’s nephew and Memphis’s brother).

     On    redirect   examination,    Memphis
testified that the person depicted on the
videotape with the dark hat and shotgun is
Nealy, and that the person with the light hat
and handgun is his little brother, Claude.

     Satishbhi    (Sam)   Bhakta   (“Bhakta”)
testified that his brother, Jiten Bhakta,
owned the Expressway Mart.     On August 20,
1997, about 8:20 p.m., Bhakta was helping at
the store with another employee, Vijay Patel,
while Jiten was in the office taking a nap.
Two men, one armed with a shotgun and the
other with a pistol, entered the store. The
men ordered Patel and Bhakta to lie down on
the floor. The man with the shotgun went into
the office. Bhakta heard Jiten call out and
then heard the shotgun discharge. The medical
examiner testified that Jiten died from a
shotgun wound to his chest that “pulpified”
his heart. Bhakta testified that the man with
the pistol shot Patel in the head and that
Patel died a few days later.

     Bhakta testified that the man with the
shotgun came out of the office with a
briefcase (containing $4,000) and said, “I got
the man in the office.”      The man with the
pistol replied, “I got one over here, too.”
The man with the pistol ordered Bhakta to open
the cash register, and the man with the
shotgun took the money from the register and
put it in his pocket.     Both of the robbers
took wine and beer before leaving the store.
At trial, Bhakta identified Nealy as the man
with the shotgun.



                      5
     On direct examination, Bhakta testified
first that the man with the shotgun had on a
light-colored hat, but immediately thereafter
he testified that the man with the shotgun was
wearing a dark-colored hat, and that the man
with the pistol was wearing a lighter-colored
hat.

     Four video cameras in the store recorded
the robbery. The videotape was played for the
jury during Bhakta’s testimony. Although the
tape was of poor quality, it showed a man with
a light-colored hat, and a man wearing a dark
hat, carrying a shotgun.    The tape did not
record either of the murders, but it recorded
the two men stealing money from the cash
register.

     On cross-examination, Bhakta testified
that the man with the shotgun was wearing a
white hat, and that the man with the pistol
was wearing a dark hat. He stated that the
man with the pistol and darker hat was short,
balding, had a gold tooth with a star, and was
wearing a white t-shirt and dark-colored
jeans.    He stated that the man with the
shotgun was wearing a lighter-colored hat, a
white t-shirt, and jeans.

     On redirect examination, Bhakta testified
that the man with the shotgun was wearing the
dark-colored hat.     He identified Nealy in
court as the man who had the shotgun.

     On recross-examination, Bhakta testified
that he identified the man carrying the
shotgun from a photographic line-up, but that
he did not remember if that was a picture of
Nealy.   He testified further that he also
identified and signed a photograph of the
person who was carrying the pistol.

     Reginald   Mitchell,    a   co-defendant,
testified that on the night of the robbery, he
joined Claude and Nealy in Nealy’s car and
went to the Expressway Mart. He stated that
Nealy was wearing a dark hat and that Claude
was wearing a light hat. Mitchell stated that
Claude and Nealy entered the store, and that

                      6
             Nealy had a shotgun, although he did not see
             it. He testified that Claude had a .38 or .32
             pistol.    Mitchell testified that he first
             heard a shotgun blast and then small-arms
             fire. Nealy and Claude came out of the store
             and got into the car. Mitchell testified that
             Nealy said, “This is the way the Nealys do
             it.”   When they got back to Nealy’s house,
             Nealy said that they committed the crime
             because “the bitches wouldn’t sell him no
             Blackie mounds” (referring to a type of
             cigar).     Mitchell testified that Nealy
             threatened to kill him if he told anyone about
             the crime.       The prosecutor showed the
             videotape to Mitchell and Mitchell identified
             Nealy as the person with the shotgun depicted
             on the videotape.       On cross-examination,
             Mitchell admitted that if he did not already
             know Nealy, he would not have been able to
             recognize Nealy on the videotape.

We   noted   that   Nealy’s     arguments      regarding      conflicts   in   the

testimony were pointed out to the jury by defense counsel in

closing argument, and that it was the jury’s prerogative to resolve

those conflicts.       We therefore concluded that the state court’s

decision     denying   relief    on     this    claim   did    not   involve    an

unreasonable application of clearly established federal law and was

not based on an unreasonable determination of the facts in the

light of the evidence presented at trial.

      In October 2006, two investigators from the Dallas County

District Attorney’s      office       questioned    Nealy’s     nephew,   Memphis

Nealy, about his trial testimony.**            Memphis told the investigators

      **
      Nealy’s motion is somewhat misleading because he omits
relevant information concerning the reason the District Attorney’s
office contacted Memphis.    According to the February 7, 2007,
opinion of the Texas Court of Criminal Appeals, Nealy and his
family attempted to pressure Memphis to recant his trial

                                         7
that he had been harassed by one of the prosecutors in 1997.                At a

hearing convened by the District Attorney’s office on October 11,

2006, Memphis testified that portions of his testimony at Nealy’s

capital murder trial in 1998 were false and that he was coerced by

prosecutor George West into testifying falsely at the trial.

Memphis testified that he lied at trial when he stated that Nealy

told him on the night of the murders that he was going to “come

back    and   get    ‘em.”      He   testified   further       that   he   never

independently identified Nealy from the videotape as the man with

the shotgun.     Memphis explained that he testified falsely at trial

because West threatened him with capital murder charges if he did

not cooperate, and he believed that his life was threatened and

that he had no choice but to cooperate.          Memphis, who was 17 years

old at the time of the murders, stated that he was only able to

come forward now, nine years later, and tell the truth because he

was older and felt like he had control over his life.

       On November 9, 2006, Nealy filed a subsequent application for

state   habeas      relief,   raising   claims   of   actual    innocence   and



identification testimony.    When the District Attorney’s office
discovered the plan, investigators contacted Memphis.       In its
response in opposition to Nealy’s motion to file a successive
habeas application, the State offers further details. According to
the State, a posting on a website for Nealy charged that the police
had “blackmailed” Memphis to testify.      Through the use of its
subpoena power, the Dallas County District Attorney’s Office
learned of a letter that Nealy wrote to his sister on August 20,
2006, and a subsequent three-way telephone call between Nealy, his
sister, and Memphis, in which Nealy asked his sister to find
Memphis and bring Memphis to the prison to visit him.

                                        8
prosecutorial misconduct.             The Texas Court of Criminal Appeals

dismissed the actual innocence claim and remanded the claim of

prosecutorial misconduct to the trial court for resolution.

      The state trial court conducted an evidentiary hearing on

December 13, 2006.          At that hearing, Memphis testified that, if the

investigators from the District Attorney’s office had not contacted

him, he never would have come forward and told the truth.                         In its

response to Nealy’s motion, the State asserts that at that hearing,

Memphis described a detective, Anthony Winn, rather than prosecutor

West, as his alleged harasser.                   The State notes that the trial

court   found    that       Memphis   was    not    a   credible    witness      at   the

“recantation”     hearings,       that      his    allegations     of   prosecutorial

misconduct      and    false    trial       testimony     were     untrue      and    were

fabricated to obtain a stay of execution, and that his trial

testimony was not false, coerced, or fabricated.

      In   an   investigation         conducted      as   a   result     of    Memphis’s

recantation, defense investigators allegedly discovered that a

signature on a statement purportedly given by co-defendant Claude

Nealy (“Claude”), secured in connection with the prosecution of

Nealy, appears to be fabricated. In his purported statement to the

police on September 18, 1997, Claude admitted his involvement in

the robbery and stated that Charles Nealy shot and killed both of

the victims at the convenience store. On December 18, 2006, Claude

signed an affidavit in which he stated that he did not make or sign

any   statement       for    detectives.          Nealy   asserts       that    Claude’s

                                             9
signature on this affidavit does not resemble the signature on the

September 1997 statement.        He therefore asserts that the September

1997 statement “appears to be a fabrication.” The State points out

that Claude’s statement was never introduced into evidence at

Nealy’s trial, and thus was not used to convict Nealy.                   In any

event, the State notes that Claude’s December 2006 affidavit does

not dispute the facts of the crime recited in the September 1997

statement.

     Nealy also claims that on December 20, 2006, Reginald Mitchell

told a defense investigating attorney that he lied at Nealy’s

capital murder trial when he testified that the State had not made

any deal     with   him   in   exchange     for   testifying   against   Nealy.

Because of logistical difficulties in getting witnesses to Dallas

County for the evidentiary hearing, counsel for the parties agreed

that the testimony of Reginald Mitchell and Claude Nealy would be

provided in affidavit form.         Mitchell, however, refused to sign an

affidavit because he did not want to become involved in this case

and was    afraid    of   getting   into     trouble.    Accordingly,     Nealy

submitted the affidavit of defense investigating attorney Karen

Cunningham, who had spoken with Mitchell on several occasions.               In

her affidavit, she stated that Mitchell told her that he made an

agreement with the prosecution, without the involvement of his

trial counsel, to testify against Nealy in exchange for a three-

year sentence and a lesser charge.



                                       10
      On December 26, 2006, the trial court recommended that relief

be denied.      The Texas Court of Criminal Appeals adopted the trial

court’s recommendation and denied relief.                 Ex Parte Nealy, No. 50,

361-03 (Tex. Crim. App. February 7, 2007) (unpublished). The Court

of   Criminal      Appeals   adopted    the       trial   court’s   finding    that

Memphis’s allegations of prosecutorial misconduct and false trial

testimony are untrue and were fabricated to secure a stay of

execution.    The court noted that Nealy also tried to raise a claim

that was not before the trial court -- that Reginald Mitchell had

an undisclosed deal with prosecutors.                The court dismissed that

claim as an abuse of the writ on the ground that it had been

rejected     when    Nealy   raised    it    in    his    initial   state   habeas

application filed in July 2000.

      On March 14, 2007, Nealy filed another application for post-

conviction relief in state court.             On March 15, 2007, the Texas

Court of Criminal Appeals dismissed, as an abuse of the writ,

Nealy’s claims (1) that the prosecutorial misconduct that he

identified in his first subsequent state habeas application also

rendered his conviction unreliable, in violation of the Eighth

Amendment, and (2) that he is mentally retarded and cannot be

executed.    Ex parte Nealy, No. WR-50,361-04 (Tex. Crim. App. March

15, 2007) (unpublished).

      On February 27, 2007, Nealy’s counsel advised this court that

he   would   not    be   filing   anything        further    on   Nealy’s   behalf.

Nevertheless, on Friday, March 16, counsel called and said that

                                        11
they were going to file a motion for authorization to file a

successive federal habeas application.          The motion was filed later

that afternoon and received by this court after 5:00 p.m. on

Friday.   This court ordered the State to file a response, and it

did so on Monday, March 19.

                                       II.

     This court may authorize the filing of a successive petition

only if we determine that “the application makes a prima facie

showing that the applicant satisfies the requirements” of 28 U.S.C.

§ 2244(b).    28 U.S.C. § 2244(b)(3)(C).        The claims that Nealy seeks

to assert were not presented in his previous application for

federal habeas relief.          Therefore, he must make a prima facie

showing that

             (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.

28 U.S.C. § 2244(b)(2)(B).

     “A prima facie showing ... is simply a sufficient showing of

possible merit to warrant a fuller [exploration] by the district

court.”   In re Hearn, 418 F.3d 444, 445 (5th Cir. 2005).          “If it is

‘reasonably    likely’   that    the   motion   and   supporting   documents

indicate that the application meets the ‘stringent’ requirements

                                       12
for the filing of a successive petition, then we must grant

authorization to file the petition.”          In re Henderson, 462 F.3d

413, 415 (5th Cir. 2006) (quoting In re Morris, 328 F.3d 739, 740

(5th Cir.     2003)).    The   state    court’s    findings   regarding   the

credibility of Memphis’s recantation, as well as its application of

state procedural bars, “are wholly irrelevant to our inquiry as to

whether [Nealy] has made a prima facie showing of entitlement to

proceed with his federal habeas application, which is an inquiry

distinct from the burden that [Nealy] must bear in proving his

claim in the district court.”     In re Wilson, 442 F.3d 872, 878 (5th

Cir. 2006).

     Nealy contends that the factual predicate of his claims could

not have been discovered previously through the exercise of due

diligence, because the claims rely on facts discovered for the

first time four years after he filed his federal habeas petition in

October 2002.    He asserts that Memphis Nealy’s testimony that the

prosecution coerced him into testifying falsely at Nealy’s capital

murder trial was discovered only because two investigators with the

Dallas County District Attorney’s office approached Memphis at his

workplace and questioned him about the veracity of his trial

testimony. Memphis testified that he never would have come forward

to tell the truth had he not been contacted by the State’s

investigators.     Nealy asserts that his investigators learned of

Reginald    Mitchell’s   false   testimony        and   Claude’s   fabricated

statement only after Memphis recanted his trial testimony.                 He

                                       13
claims that none of this information could have been discovered

previously through the exercise of due diligence because the State

actively concealed the information.        He contends further that his

counsel could not have learned of the deal that existed between the

State and Reginald Mitchell, because that deal was never made part

of the record.

     Nealy asserts that the facts underlying these claims, if

proven and viewed in the 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

him guilty of the capital murder of Jiten Bhakta.           He asserts that,

without the false testimony given by Memphis and Mitchell, no

reasonable jury would have convicted him solely on the basis of the

contradictory, unreliable testimony of the eyewitness, Sam Bhakta.

                                  III.

     Nealy has not made the requisite showing under 28 U.S.C. §

2244(b)(2)(B)(i) to raise his prosecutorial misconduct and Eighth

Amendment    “unreliable   process”    claims   in   a    successive    habeas

application.     The   evidence   he   relies   on   is    neither     new   nor

previously    undiscoverable.     Memphis   Nealy,       Claude   Nealy,     and

Reginald Mitchell were available for further investigation by the

defense before Nealy filed his first federal habeas application in

2002.   Memphis’s allegedly “false” testimony has been known to

Nealy since his trial.     Reginald Mitchell’s allegedly undisclosed

deal with prosecutors has been known by Nealy at least since July

                                      14
2000, when he raised a Brady claim based on the same allegations in

his    first    state   habeas      application.         Had     he   exercised     due

diligence, these claims could have been discovered and raised in

his first federal habeas application.

       Furthermore, Nealy has not made a prima facie showing of

prosecutorial      misconduct       or    an    Eighth   Amendment      violation    by

showing that the facts of his claim, if proven and viewed in the

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 him guilty of

capital murder, as required by 28 U.S.C. § 2244(b)(2)(B)(ii).

       The evidence of Nealy’s guilt is not undermined by Memphis’s

recantation of his testimony, and Nealy has not made a prima facie

showing that he would have been acquitted if Memphis had not been

“coerced” into testifying.           Mitchell testified that he and Claude

rode   in   Nealy’s     car    to   the    Expressway     Mart    and    stopped    for

gasoline.      Mitchell went into the store, paid for the gasoline, and

returned to the car to pump the gas.               They drove away but returned

a few minutes later.          Nealy, carrying a shotgun, and Claude, armed

with a pistol, entered the store.               Mitchell heard a shotgun blast,

followed by small-arms fire.              Mitchell testified that when Nealy

came out of the store, he was carrying a briefcase.                       Sam Bhakta

testified that when the robber armed with the shotgun came out of

Jiten’s office after shooting Jiten, that individual was carrying

Jiten’s briefcase.        Nealy told Mitchell he committed the crime

                                           15
because the victims would not sell him a cigar.         At trial, after

viewing the videotape of the incident, Mitchell identified Nealy as

the robber wearing a dark hat and carrying the shotgun, and

identified Claude as the robber with the pistol.        Sam Bhakta also

identified Nealy as the robber who had the shotgun. Although there

were discrepancies and inconsistencies in Sam Bhakta’s testimony,

as described in our prior opinion (quoted earlier in this opinion),

at trial he identified Nealy as the robber wearing the dark hat and

carrying the shotgun.     Contrary to Nealy’s assertion that Sam

Bhakta’s testimony must be disregarded in its entirety because of

the   inconsistencies,   the   jury   was   entitled   to   consider   his

testimony and to resolve any issues relating to his credibility.

      Nealy has not satisfied his burden to make a prima facie

showing that Reginald Mitchell testified falsely that he had not

made a deal with the prosecutors for a lesser sentence in exchange

for his testimony against Nealy.         The only evidence offered by

Nealy in support of this allegation is the hearsay affidavit of one

of his investigating attorneys.        Mitchell has never stated under

oath that he lied at Nealy’s trial.          Furthermore, there is no

evidence that Mitchell told the investigating attorney that he was

lying when he testified regarding the events of the robbery and

murder, and in particular his testimony that Nealy was wearing a

dark hat and carrying a shotgun.

      In sum, Nealy has failed to make a prima facie showing in both

requirements of the statute:     that is, he has failed to show that

                                  16
the evidence presented could not have been previously discovered

through the exercise of due diligence and secondly, he has failed

to show that even if the claims were proved, that they would be

sufficient to change the outcome of the guilty verdict in this

case.

                               IV.

     For the foregoing reasons, Nealy’s motion for authorization to

file a successive federal habeas application is

                                                           DENIED.




                                17
