     Case: 12-40966       Document: 00512129888         Page: 1     Date Filed: 01/30/2013




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

                                                                            FILED
                                                                         January 30, 2013
                                     No. 12-40966
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

FRANK FIGUEROA,

                                                  Petitioner-Appellant

v.

RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION,

                                                  Respondent-Appellee


                   Appeals from the United States District Court
                        for the Southern District of Texas
                              USDC No. 2:10-CV-374


Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Frank Figueroa, Texas prisoner # 1485880, pled guilty to seven counts of
aggravated sexual assault of a child and three counts of indecency with a child
for which he was sentenced to 20 years of imprisonment on each count to run
concurrently. He previously sought and was denied relief under 28 U.S.C.
§ 2254. Following the denial of his motion for a certificate of appealability
(“COA”) by this court, he filed a postjudgment motion that the district court


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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                                     No. 12-40966

denied. The district court also dismissed without prejudice any successive
Section 2254 claims because Figueroa had not obtained authorization from this
court to raise them. Figueroa has filed in this court a motion for appointment
of counsel and a document styled as a motion for a COA and a brief in support.
His motion for a COA refers to the district court’s denial of his postjudgment
motion. Affording Figueroa’s COA brief the requisite liberal construction, it
appears that he is requesting authorization to file a successive Section 2254
application.
      Figueroa refers to the denial of his postjudgment motion in his motion for
a COA but does not address the substance of that ruling in either his motion or
brief. Accordingly, Figueroa has abandoned any challenge to the denial of his
postjudgment motion, and his motion for a COA is denied. See Brinkmann v.
Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).
      Figueroa has failed to make the requisite prima facie showing for
authorization to file a successive Section 2254 application. See 28 U.S.C.
§ 2244(b)(3)(C). Figueroa faults counsel for failing to obtain expert analysis of
the victims’ physical injuries in light of his penile impairment. Because he was
aware of his penile impairment prior to abusing the victims, he has not
established that he could not have discovered the factual predicate of his claim
of ineffective assistance of counsel previously through the exercise of due
diligence. See § 2244(b)(2)(B)(i).
      Figueroa also faults counsel for failing to discover the results of one
victim’s medical examination and the fact that the victims claimed to be living
at the wrong address when he abused them. He does not explain how the results
of the medical examination would have undermined that victim’s credibility.
Assuming arguendo evidence that the victims gave the wrong address would
have undermined their credibility, Figueroa has not demonstrated that no
reasonable factfinder would have found him guilty but for counsel’s alleged



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                                 No. 12-40966

ineffectiveness. See § 2244(b)(2)(B)(ii). Accordingly, Figueroa’s alternative
motion for authorization to file a successive Section 2254 application is denied.
      Figueroa’s motion for appointment of counsel is denied as the interests of
justice would not be served by an appointment. See Schwander v. Blackburn,
750 F.2d 494, 502-03 (5th Cir. 1985).
      MOTION FOR A COA DENIED; MOTION FOR AUTHORIZATION TO
FILE A SUCCESSIVE § 2254 APPLICATION DENIED; MOTION FOR
APPOINTMENT OF COUNSEL DENIED.




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