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

                                                 FILED
                                                                        September 16, 2009

                                       No. 09-20586                    Charles R. Fulbruge III
                                                                               Clerk



IN RE: CHRISTOPHER COLEMAN,

                                            Movant




                       On Motion for Authorization to File
                      Successive Petition for Writ of Habeas
                  Corpus in the United States District Court for
                 the Southern District of Texas, Houston Division


Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Christopher Coleman has moved this court for permission to file a
successive petition for a writ of habeas corpus in the United States District
Court for the Southern District of Texas and for a stay of execution. In June
1997, a Texas state jury convicted Coleman of killing three people—including a
three-year-old child—and sentenced him to death. The Texas Court of Criminal
Appeals affirmed Coleman’s conviction and sentence, Coleman v. State, No.
72,895 (Tex. Crim. App. May 5, 1999), and denied his initial state application for
a writ of habeas corpus, Ex parte Coleman, No. 48,523-01 (Tex. Crim. App. Apr.
18, 2001). A second state habeas application was dismissed as an abuse of the

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                 No. 09-20586

writ. Ex parte Coleman, No. 48,523-02 (Tex. Crim. App. Sept. 11, 2002). In
September 2004, the district court denied Coleman’s federal habeas application
and refused to grant a certificate of appealability (“COA”) on any of Coleman’s
claims. Coleman v. Dretke, No. H-02-3865 (S.D. Tex. Sept. 28, 2004 ). This court
denied Coleman’s application for a COA in July 2006. Coleman v. Quarterman,
456 F.3d 537 (5th Cir. 2006). The Supreme Court denied Coleman’s writ of
certiorari the next year. Coleman v. Quarterman, 549 U.S. 1343 (2007). Two
subsequent state court habeas petitions have also been denied as an abuse of the
writ. See Ex parte Coleman, No. 48,523-03 (Tex. Crim. App. Oct. 10, 2007) and
Ex parte Coleman, No. 48,523-04 (Tex. Crim. App. March 18, 2009). Coleman
filed a new petition for a writ of habeas corpus with the Texas Court of Criminal
Appeals on September 10, 2009, which was denied without written order on
September 14, 2009. Execution has been scheduled for September 22, 2009.
      The authority of this court to act on a motion to authorize a successive
application rests on 28 U.S.C § 2244(b)(3)(C):
       The 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 applicant satisfies the
       requirements of this subsection.

In Reyes-Requena v. United States, this court adopted the Seventh Circuit's
definition of “prima facie showing,” applying it to successive petitions by both
state and federal prisoners:
       “By ‘prima facie showing’ we understand . . . simply a sufficient
       showing of possible merit to warrant a fuller exploration by the
       district court.” Therefore, if from the application and its
       supporting documents, “it appears reasonably likely that the


                                       2
                                  No. 09-20586

      application satisfies the stringent requirements for the filing of a
      second or successive petition,” the application shall be granted.

243 F.3d 893, 898-99 (5th Cir. 2001) (quoting Bennett v. United States, 119 F.3d
468, 469-70 (7th Cir. 1997)). These stringent requirements are found in 28
U.S.C. § 2244(b)(2), which mandates that a new claim presented in a successive
petition shall be dismissed unless the applicant shows that the claim
       (A) . . . relies on a new rule of constitutional law, made retroactive
       to cases on collateral review by the Supreme Court, that was
       previously unavailable; or
       (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.

      We have carefully reviewed Coleman’s motion and the documents
appended as exhibits thereto and the response filed by the State. We find that
Coleman has not made the requisite prima facie showing that he could satisfy
the requirements of 28 U.S.C § 2244(b)(2).
      Coleman argues that this court should grant his motion and permit a
successive habeas petition in the district court because the prosecution in his
criminal trial committed a violation pursuant to Brady v. Maryland, 373 U.S. 83
(1963). Specifically, he argues that Elsie Prado, an eyewitness to the murders
who identified Coleman as the shooter, has only recently revealed that she knew
Coleman’s co-defendant Enrique Mosquera and his family in Colombia prior to
Prado’s emigration to the United States. Coleman also alleges that Prado had


                                        3
                                  No. 09-20586

vulnerable relatives in Colombia who might have been subject to reprisals if she
had named Mosquera as the shooter. If this information had been known to
Coleman’s trial counsel, he argues, reasonable doubts could have been raised
about possible bias and the accuracy of Prado’s testimony.
      This allegation is supported with affidavits from Coleman’s trial counsel,
as well as an affidavit from a private investigator describing a September 2008
interview with Prado. There is also a translated transcript of a separate 2007
interview with a second private investigator (with supporting affidavits from
that investigator). Finally, Coleman offers a 2007 affidavit from a private
investigator who describes a 2003 interview with Mosquera. Neither Prado nor
Mosquera have provided any affidavits concerning this issue.
      Even if the facts alleged in these hearsay statements are true, however,
they would not support a Brady claim. Under Brady, the prosecution has a duty
to disclose to the defense exculpatory evidence that is material either to guilt or
to punishment. Brady, 373 U.S. at 87. “[T]he individual prosecutor has a duty
to learn of any favorable evidence known to the others acting on the
government’s behalf in the case, including the police.” Kyles v. Whitley, 514 U.S.
419, 437 (1995); see also Strickler v. Greene, 527 U.S. 263, 280-81 (1999). “To
establish a Brady violation, a defendant must show that (1) the prosecution
suppressed evidence; (2) the evidence was favorable, such as exculpatory or
impeachment evidence; and (3) the evidence was material.” United States v.
Skilling, 554 F.3d 529, 574 (5th Cir. 2009) (citing Mahler v. Kaylo, 537 F.3d 494,
499-500 (5th Cir. 2008)). “Where a defendant fails to establish any one element
of Brady, we need not inquire into the other components.” Id. (citations omitted).



                                        4
                                  No. 09-20586

      Coleman has failed to offer any evidence that the prosecution suppressed
evidence that Prado and Mosquera knew each other. Suppression of evidence is
fundamental to a Brady claim; there is no due process violation if a prosecutor
is not aware of the existence of favorable evidence. Ross v. Texas, 474 F.2d 1150,
1153 (5th Cir. 1973). Coleman theorizes that the impeaching evidence was
“never revealed to the defense, either because [Prado] never revealed it to the
State, or because the State never shared this information with the defense,” and
argues that it is “highly unlikely” that prosecutors did not know about the
favorable evidence. Yet an applicant’s speculation about the suppression of
evidence is an insufficient basis to support a Brady claim. Hughes v. Johnson,
191 F.3d 607, 629-30 (5th Cir. 1999). Coleman has failed to show that there was
any Brady violation and that his conviction was therefore constitutionally
infirm.
          Additionally, Coleman has failed to show that he could not have
previously discovered the factual predicate for his claim through the exercise of
due diligence. He provides no reason why he could not have discovered, prior to
the filing of the instant motion, whether potentially exculpatory evidence was
suppressed. By Coleman’s own admission, it was on June 16, 2003—more than
a year prior to the district court’s denial of his original habeas petition in
September 2004—that his private investigator interviewed Mosquera and
learned that Mosquera had known Prado in Colombia. In his affidavit, the
private investigator claims that he “couldn’t confirm this information” because
Prado refused to be interviewed at that time. Whether Prado would talk to
private investigators, however, is irrelevant to the claim Coleman wishes to raise
in the district court: that prosecutors knew of and suppressed this information

                                        5
                                  No. 09-20586

in violation of Brady. Coleman provides no evidence that he did anything, then
or now, to confirm that the prosecution suppressed material, favorable
information at his trial. The factual predicate to the instant claim could have
been discovered through the exercise of due diligence prior to the denial of
Coleman’s original habeas petition in September 2004 and certainly prior to the
filing of the instant motion.
      Finally, even were we to conclude that there was a Brady violation,
Coleman has not shown by “clear and convincing evidence” that, but for the
suppression of the exculpatory evidence, the jury would not have found him
guilty of the underlying offense, as required by 28 U.S.C. § 2244(b)(2)(B)(ii). As
established at trial and noted by the Texas Court of Criminal Appeals in denying
Mosquera’s direct appeal, there was substantial evidence, independent of Prado’s
testimony, that Coleman was present at the scene of the murders and
participated in the robbery that led to the killings. See Mosquera v. State, No. 01-
98-00347-CR, 1999 WL 318823, at *2 (Tex. App.–Houston [1st Dist.] May 20,
1999, pet. ref’d) (not designated for publication). Under Texas’s “law of the
parties,” a criminal defendant may be found guilty of an offense actually
committed by another if, “acting with intent to promote or assist the commission
of the offense, he solicits, encourages, directs, aids, or attempts to aid the other
person to commit the offense.” See Tex. Penal Code § 7.02(a)(2) (Vernon 1994).
Accordingly, the jury may have found Coleman guilty of capital murder even
without relying on the testimony of the state’s eyewitness. Certainly, Coleman
has not shown by clear and convincing evidence that but for the Brady violation
he would not have been found guilty, which is a requirement for an exception to
the rule that new claims raised in successive habeas petitions must be

                                         6
                                 No. 09-20586

dismissed. Coleman’s assertion that this allegedly suppressed evidence would
have been material to the punishment phase of his trial is irrelevant under §
2244(b)(2)(B)(ii), which requires an applicant to show by clear and convincing
evidence that, but for the constitutional violation, “no reasonable factfinder
would have found the applicant guilty of the underlying offense.”
      Coleman has not made a prima facie showing that his application meets
the requirements of § 2244(b)(2) for pursuing a successive habeas application.
Accordingly, IT IS ORDERED that Applicant’s motion for leave to file a
successive habeas petition is denied. Having shown no grounds to justify a stay,
IT IS FURTHER ORDERED that Applicant’s motion for stay of execution is also
denied.




                                       7
