                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                           JUN 7 2004
                                TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                               Clerk


ROBERT LEROY BRYAN,

       Movant-Appellant,

v.
                                                         No. 04-6185
MIKE MULLIN, Warden, Oklahoma
State Penitentiary, and RON J. WARD,
Director, Oklahoma Department of
Corrections,

       Respondents-Appellees.




                                     ORDER


Before KELLY, HENRY, and MURPHY, Circuit Judges.


      Robert Leroy Bryan, a convicted murderer, is scheduled to be executed by

the state of Oklahoma at 6:00 p.m. on June 8, 2004. In a series of last-minute

filings, Bryan seeks, inter alia, permission to file a successive 28 U.S.C. § 2254

petition and a stay of execution pending the determination of his request to file a

successive petition. Exercising jurisdiction pursuant to 28 U.S.C. §

2244(b)(3)(A), this court (1) grants “Bryan’s Emergency Motion for Permission

to Proceed In Forma Pauperis,” (2) strikes “Bryan’s Emergency Request for En
Banc Consideration,” (3) denies “Bryan’s Motion for an Order Authorizing the

District Court to Consider Second Habeas Corpus Application,” and (4) denies

“Bryan’s Emergency Request for Stay of Execution.”

      This court begins by noting that there is no provision in 28 U.S.C.

§ 2244(b)(3) for the filing of a request for initial en banc consideration of a

request to file a second or successive § 2254 habeas petition. Instead,

§ 2244(b)(3)(B) specifically provides that “[a] motion in the court of appeals for

an order authorizing the district court to consider a second or successive

application shall be determined by a three-judge panel of the court of appeals.”

Section 2244(b)(3)(E) further provides that “[t]he grant or denial of an

authorization by a court of appeals to file a second or successive application shall

not be appealable and shall not be the subject of a petition for rehearing or for a

writ of certiorari.” Taken together, § 2244(b)(3)(B) and (E) appear to foreclose

Bryan’s request for initial en banc consideration of his request to file a second or

successive § 2254 habeas petition. Accordingly, this court strikes Bryan’s

Emergency Request for En Banc Consideration.

      However, we recognize this court has, sua sponte, ordered that a request for

permission to file a second or successive habeas petition be heard initially en




                                         -2-
banc. Browning v. United States, 241 F.3d 1262, 1263 (10th Cir. 2001). 1 It must

be emphasized, however, that there is no discussion in Browning of the propriety

of such action in the face of the language in § 2244(b)(3)(B) and (E). Id.

Browning is not, therefore, a definitive ruling on this jurisdictional question. See

United States v. L.A. Tucker Truck Lines, 344 U.S. 33, 38 (1952) (“[T]his Court is

not bound by a prior exercise of jurisdiction in a case where it was not questioned

and it was passed sub silentio.”). Thus, in an abundance of caution, Bryan’s

various motions were circulated to all active judges of this court. No judge

requested a poll on the question whether Bryan’s request to file a successive §

2254 habeas petition should be heard initially by the en banc court and, thus, no

en banc consideration is warranted or available.

      In his request for permission to file a second or successive habeas petition,

Bryan appears 2 to raise an omnibus assertion that newly discovered evidence

      1
       Two circuits have specifically concluded that sua sponte en banc review of
a request for permission to file a second or successive § 2254 habeas petition is
appropriate despite § 2244(b)(3)(E). See In re Byrd, 269 F.3d 585, 585 (6th Cir.
2001) (en banc); Thompson v. Calderon, 151 F.3d 918, 922 (9th Cir. 1998) (en
banc). In must be noted, however, that neither Byrd nor Thompson considered the
impact of § 2244(b)(3)(B). Bryd, 269 F.3d at 585; Thompson, 151 F.3d at 922.
Furthermore, one circuit has concluded that sua sponte panel rehearing is
appropriate despite § 2244(b)(3)(E). Triestman v. United States, 124 F.3d 361,
367 (2d Cir. 1997). Because Triestman did not involve the question of en banc
review, § 2244(b)(3)(B) was not implicated in the case.
      2
       We use the term “appears” because Bryan’s request to file a second or
successive § 2254 habeas petition is far from a model of clarity. Furthermore,
counsel for Bryan did not attach to his request the petition that he proposes to file

                                         -3-
supports “a colorable claim of innocence that undermines the reliability of his

conviction and death sentence.” Request to File Second § 2254 Habeas Petition

at 5. Bryan supports this omnibus claim with the following five subsidiary

“claims”: (1) bullet comparison evidence used at trial to connect a bullet fragment

recovered from the victim with bullets found in Bryan’s room is now discredited;

(2) hair comparison testimony used to connect the victim to a car rented by Bryan

was wholly unreliable; (3) the newly discovered unreliability of the bullet and

hair analysis demonstrates that Bryan did not receive full adversarial testing of

the prosecution’s case at trial; (4) the newly discovered unreliability of the bullet

and hair analysis demonstrates that Bryan did not receive a reliable sentencing

determination; and (5) the state’s failure to disclose these reliability problems at

some point well after trial and sentencing was complete is a violation of Brady v.

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

      The AEDPA strictly limits the filing of second or successive § 2254 habeas

petitions. According to § 2244(b),




in the district court. This court notes for the benefit of counsel that in the future
the better practice would be to attach a copy of the proposed second or successive
§ 2254 petition to any § 2244(b)(3) request filed in this court. Nevertheless, this
court has done its best to parse out the legal claims Bryan seeks to assert in a
second or successive petition and to apply the statutory framework set out in
§ 2244(b)(1) and (2) to those claims.

                                          -4-
            (1) 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) 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—
                   (A) the applicant shows that the claim 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.

28 U.S.C. § 2244(b)(1), (2). This court may authorize the filing of a second or

successive § 2254 petition “only if [we] determine[] that the application makes a

prima facie showing that the application satisfies the requirements of” §

2244(b)(1) and (2). 28 U.S.C. § 2244(b)(3)(C).

      This court begins by noting several potential infirmities in Bryan’s request

to file a second or successive § 2254 habeas petition. First, Bryan’s § 2244(b)(3)

request could be read as simply stating a single claim of actual innocence. As this

court has made clear, however, “an assertion of actual innocence, although

operating as a potential pathway for reaching otherwise defaulted constitutional

claims, does not, standing alone, support the granting of the writ of habeas


                                         -5-
corpus.” LaFevers v. Gibson, 238 F.3d 1263, 1265 n.4 (10th Cir. 2001); see also

Herrera v. Collins, 506 U.S. 390, 400 (1993) (“Claims of actual innocence based

on newly discovered evidence have never been held to state a ground for federal

habeas relief absent an independent constitutional violation occuring in the

underlying state criminal proceeding.”). Accordingly, this court focuses on

Bryan’s assertion that the state suppressed evidence relating to the reliability of

bullet comparison and hair analysis, thereby rendering his guilt and penalty

phases constitutionally unreliable. 3 Second, as this court previously noted in

LaFevers, it is far from clear whether a challenge to the propriety of a death

sentence is cognizable under § 2244(b)(2)(B)(ii). 238 F.3d at 1267. As was true

in LaFevers, however, this court need not resolve that difficult question because

even assuming such a claim is available, it fails for the reasons set out below.

Finally, in the portion of his request to file a second or successive § 2254 habeas

petition relating to the reliability of his capital sentencing determination, Bryan



      3
        This court notes serious doubt as to the potential applicability of Brady v.
Maryland, 373 U.S. 83 (1963), in light of the fact that the evidence relied upon by
Bryan to assert the unreliability of the bullet comparison and the hair analysis did
not exist until well after the completion of Bryan’s direct appeal. It is thus
difficult to conceive how such information could have been suppressed by the
prosecutors in violation of Brady. We need not address this contention, however,
because we conclude infra that even if the objected-to evidence were totally
excised from the trial, the result would have remained unchanged. Hence, Bryan
cannot satisfy the requirements of § 2244(b)(2)(B)(ii) and is not entitled to
permission to file a second or successive § 2254 habeas petition.

                                          -6-
appears to request that this court revisit the question of the effectiveness of his

trial counsel. Such a claim is precluded by § 2244(b)(1) which requires dismissal

of any claim presented in a second or successive § 2254 habeas petition that was

presented in a prior application.

      Upon consideration of Bryan’s request to file a second or successive § 2254

habeas petition, this court concludes that he has not made a prima facie showing

that he satisfies the requirements of § 2244(b)(2)(B)(ii). In particular, the

evidence of Bryan’s guilt was, though almost entirely circumstantial,

overwhelming. See Bryan v. Mullin, 335 F.3d 1207, 1211-12 (10th Cir. 2003) (en

banc) (recounting evidence of Bryan’s guilt); Bryan v. Gibson, 276 F.3d 1163,

1167-68 (10th Cir. 2001) (same). Considering the clear and convincing evidence

standard set out in § 2244(b)(2)(B)(ii), Bryan has simply not come close to

making a prima facie showing that absent the bullet-comparison evidence and the

hair evidence the outcome of either the guilt or sentencing phase of his trial

would have turned out differently. Thus, assuming the existence of a viable

constitutional claim, i.e., a Brady claim, and assuming the claim could not have

been previously discovered through the exercise of due diligence, Bryan has still

failed to make a prima facie showing that he can satisfy the requirements of

§ 2244(b)(2)(B)(ii). Accordingly, this court denies Bryan’s request to file a




                                          -7-
second or successive § 2254 habeas petition. Having done so, this court likewise

denies his request for an emergency stay of execution.

                                      ENTERED FOR THE COURT



                                      Michael R. Murphy
                                      Circuit Judge




                                       -8-
No. 04-6185, Bryan v. Mullin

Henry, Circuit Judge, Concurring.



      I join the order denying the application for permission to file a successive §

2254 petition. Mr. Bryan is unable to demonstrate that the newly discovered

evidence establishes by clear and convincing evidence that a reasonable fact

finder would not have found Mr. Bryan guilty of the charged offense. See 28

U.S.C. § 2244(b).

      Although Mr. Bryan cannot satisfy the requirements of § 2244, I reiterate

my dissent from the panel and en banc opinions as to Mr. Bryan’s ineffective

assistance of counsel and re-urge the State of Oklahoma to “reflect on these

matters and consider settling this case by either agreeing to a new sentencing

phase where a fairly composed jury can evaluate” the compelling evidence of Mr.

Bryan’s diseased mental state, “or by renewing its offer of life imprisonment with

no possibility of parole.” See Bryan v. Gibson, 335 F.3d 1207, 1247 (10th Cir.

2003) (en banc) (Henry, J., concurring in part and dissenting in part).

      Mr. Bryan received inadequate assistance by inexperienced counsel at the

time of his trial. Given Mr. Bryan’s current poor health, the fact that the jury

never learned of his delusions and his previous institutionalization for mental

illness, his execution will contribute to no social purpose.
