     Case: 12-10612       Document: 00512323536          Page: 1     Date Filed: 07/29/2013




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

                                                                             FILED
                                                                            July 29, 2013
                                       No. 12-10612
                                                                            Lyle W. Cayce
                                                                                 Clerk
IN RE: CALVIN DEWAYNE WARREN,

                                                   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 BARKSDALE, DENNIS, and GRAVES, Circuit Judges.
PER CURIAM:*
       Calvin DeWayne Warren, Texas prisoner # 789034, was convicted of
aggravated sexual assault and sentenced to a term of probation. The trial court
subsequently revoked his probation and sentenced him to 75 years in prison.
Warren seeks authorization to file a successive 28 U.S.C. § 2254 application. He
argues that there was insufficient evidence supporting his plea; newly discovered
evidence in the form of the victim’s notarized statement reveals that he did not
commit the offense; counsel rendered ineffective assistance; and his plea was not
knowing and voluntary. He requests an evidentiary hearing, subpoenas ad
testificandum, a polygraph examination, the production of documents, the
appointment of an attorney, and the appointment of an expert recantation
witness to aid him in pursuing his successive habeas application.

       *
        Pursuant to Fifth Circuit Rule 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not be published and is not precedent except under the limited circumstances set forth in Fifth
Circuit Rule 47.5.4.
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      To the extent that Warren presented these claims in a prior § 2254
application, these claims may not be brought in a successive application. See 28
U.S.C. § 2244(b)(1). To the extent that these claims were not presented in his
prior § 2254 application, Warren has not shown that the claims rely on any new
rule of constitutional law, made retroactive to cases on collateral review by the
Supreme Court, that was previously unavailable, or that the factual predicate
for the claims could not have been discovered previously through due diligence,
and that the facts underlying the claims, if proven, would “establish by clear and
convincing evidence that, but for constitutional error, no reasonable factfinder
would have found [him] guilty of the underlying offense.” § 2244(b)(2)(A), (B).
      The dissent interprets McQuiggin v. Perkins, 133 S. Ct. 1924 (2013), to
allow a petitioner to circumvent the statutory restrictions of § 2244(b)(1) and (2)
upon a showing of “actual innocence” – i.e., that it is more likely than not, in
light of new and reliable evidence, that no reasonable juror would have found the
defendant guilty. Schlup v. Delo, 513 U.S. 298, 329 (1995). In McQuiggin, the
Court held that a prisoner filing a first-time federal habeas petition could
overcome the one-year statute of limitations in § 2244(d)(1) upon a showing of
“actual innocence” under the Schlup standard. 133 S. Ct. at 1928. Critically,
the holding in McQuiggin was based on the Court’s conclusion that Congress,
through its silence on the issue, had not intended to eliminate the pre-existing
equitable “actual innocence” exception for an untimely first-time filer. See id. at
1934. On the other hand, the Court expressly recognized that Congress, through
§ 2244(b), had intended to “modify” and “constrain[]” the “actual innocence”
exception with respect to second or successive petitions. See id. at 1933-34.
Nothing in McQuiggin authorizes us to ignore or bypass these constraints.
      Warren’s claims are essentially identical to the claims he identified in his
prior motion for authorization to file a successive § 2254 application.
Accordingly, he is warned that the filing of repetitious or frivolous motions for
authorization to file successive habeas corpus applications will invite the

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imposition of sanctions, including dismissal, monetary sanctions, and/or
restrictions on his ability to file pleadings in this court and any court subject to
this court’s jurisdiction.
      IT IS ORDERED that Warren’s motion for authorization to file a
successive habeas corpus application is DENIED, and a SANCTION WARNING
IS ISSUED.




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DENNIS, Circuit Judge, dissenting in part and concurring in part:
       Although I agree with the majority opinion that Warren is procedurally
barred from raising most of his claims, I respectfully dissent from its judgment
denying Warren authorization to pursue his actual innocence claim in the
district court. The Supreme Court’s recent decision in McQuiggin v. Perkins, 133
S. Ct. 1924 (2013), makes clear that the Schlup actual innocence exception has
survived the passage of Antiterrorism and Effective Death Penalty Act (AEDPA),
by holding that “actual innocence, if proved, serves as a gateway through which
a petitioner may pass whether the impediment is a procedural bar, as it was in
Schlup [v. Delo, 513 U.S. 298 (1995)] and House [v. Bell, 547 U.S. 518 (2006)], or
[an] expiration of the [AEDPA] statute of limitations.” Id. at 1928.
       In Schlup, the Supreme Court held that a prisoner otherwise subject to
procedural bars on the filing of abusive or successive writs of habeas corpus may
have his federal constitutional claim considered on the merits if he makes a
proper showing of actual innocence. 513 U.S. at 326-27.1 “To be credible, such a
claim requires petitioner to support his allegations of constitutional error with
new reliable evidence—whether it be exculpatory scientific evidence,
trustworthy eyewitness accounts, or critical physical evidence—that was not
presented at trial.” Id. at 324. “To establish the requisite probability, the
petitioner must show that it is more likely than not that no reasonable juror
would have convicted him in the light of the new evidence.” Id. at 327. Because


       1
         Schlup provides that the actual innocence exception applies to the situation at issue
in the present case: where a petitioner, barred from filing his second or successive federal writ
of habeas corpus, may have his constitutional claim considered on the merits by first making
a credible showing of actual innocence. 513 U.S. at 326-27. Contrary to the majority opinion,
therefore, the Schlup actual innocence exception has always been available to petitioners
seeking to have a second or successive petition considered on the merits. McQuiggin extends
Schlup to apply to a type of procedural bar not at issue in Schlup—namely, where a petitioner
seeks to bring an out-of-time petition. 133 S. Ct. at 1928. Nothing in McQuiggin suggests that
Schlup is no longer good law; indeed, the Supreme Court relied upon Schlup in both
McQuiggin and House to apply the actual innocence exception to new procedurally barred
claims. See id.; House, 547 U.S. at 536-37.

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this standard is intended to focus the inquiry on actual innocence, “the district
court is not bound by the rules of admissibility that would govern at trial.” Id.
“Instead, the emphasis on ‘actual innocence’ allows the reviewing tribunal also
to consider the probative force of relevant evidence that was either excluded or
unavailable at trial.” Id. at 327-28. Indeed, “[t]he habeas court must make its
determination concerning the petitioner’s innocence ‘in light of all the evidence,
including that alleged to have been illegally admitted (but with due regard to
any unreliability of it) and evidence tenably claimed to have been wrongly
excluded or to have become available only after the trial.’” Id. at 328 (quoting
Henry J. Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal
Judgments, 1 U. Chi. L. Rev. 142, 160 (1970)). “It is not the district court’s
independent judgment as to whether reasonable doubt exists that the standard
addresses; rather the standard requires the district court to make a probabilistic
determination about what reasonable, properly instructed jurors would do.” Id.
at 329. “Thus, a petitioner does not meet the threshold requirement unless he
persuades the district court that, in light of the new evidence, no juror, acting
reasonably, would have voted to find him guilty beyond a reasonable doubt.” Id.
      Further, in Bousley v. United States, 523 U.S. 614, 623 (1998), the
Supreme Court held that the defaulted claim of a petitioner who pleaded guilty
may still be reviewed in a collateral proceeding if he can establish that the
constitutional error in his plea colloquy has probably resulted in the conviction
of one who is actually innocent in accord with Schlup, 513 U.S. at 327-328, and
Murray v. Carrier, 477 U.S. 478, 496 (1986).
      Applying the principles and standards of Schlup and Bousley to the
present case, I conclude that Warren has made a prima facie showing that he
was actually innocent of the charge to which he pleaded nolo contendre, such
that we should authorize the district court to consider his application by first



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assessing whether Warren has in fact satisfied the Schlup requirements and, if
he has, to consider Warren’s application for habeas relief on its merits.
                                        I.
      Warren, a Texas prisoner, is seeking habeas relief from his conviction and
75 year sentence for sexual abuse of a child, arguing that his nolo contendre plea
was neither voluntarily nor intelligently entered due to the ineffective assistance
of his counsel.   He presents powerful new reliable evidence of his actual
innocence in the form of a signed and notarized affidavit from the victim, his
niece Patricia Neloms (“Neloms”), attesting that Warren, her uncle, had never
sexually assaulted or abused her in any way. Neloms subscribed to the affidavit
in 2005, after she had become an adult. In 1996, when she was a minor under
the age of 14 years, Neloms, in response to her teacher’s inquiry, confided that
she had been sexually assaulted by her uncle, Warren. The teacher relayed that
information to the police, who arrested and charged Warren with aggravated
sexual assault. In Texas, a person commits aggravated sexual assault if the
victim is a child under the age of 14. Tex. Penal Code Ann. §§ 22.021(a)(1) and
(a)(2)(B) (West 2011). Warren, upon the advice of counsel, pleaded nolo
contendre to the charge and was sentenced to probation in Dallas County, Texas.
However, Warren’s probation was later revoked because he failed to notify his
probation officer of his change of address. Warren was then sentenced to 75
years imprisonment. Neloms, now an adult, explained in her affidavit that her
stepfather, Willie Lee Offord (“Offord”), had sexually abused her continually for
five years, beginning when she was ten years old and ending when she was
fifteen. In her affidavit, Neloms explained that Offord ordered her not to tell
anyone that he had abused her, but to say that Warren was her abuser. Offord
threatened that he would kill Neloms and her family if she did not follow his
instructions. She explained that Offord continued to abuse her and that she felt
that her life was in danger. Neloms’ affidavit is unequivocal:

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       I am writing yall to let yall know that my uncle Calvin DeWayne
       Warren he did not mess with me this guy name Willie Lee Offord
       messed with me when I was ten years old until I got 15 years old.
       He had threatened me to say my uncle Calvin DeWayne Warren did
       it. He said I was going to be killed and my family was going to be
       killed if I told them that he did it. My life was in danger at that time
       I was thinking about what he told me about my family. . . . I feel bad
       about my uncle in the pin for nothing for somebody else
       responsibility. My mother did not know about it because I didn’t tell
       her because Willie Lee Offord told me not to tell her. She kept
       asking me was he messing with me I said no. I want my uncle out
       of the pen. I love my uncle I want Willie Lee Offord to have death
       role in there. I was just a little girl he took my virginity.

       The 2005 affidavit contains new evidence for the purposes of
Schlup because it was not available to Warren until after he pleaded nolo
contendere and after his first § 2254 application was denied. “To be credible, [an
actual innocence] claim requires [the] petitioner to support his allegations of
constitutional error with new reliable evidence—whether it be exculpatory
scientific evidence, trustworthy eyewitness accounts, or critical physical
evidence—that was not presented at trial.” Schlup, 513 U.S. at 324 (emphasis
added). “To establish the requisite probability that he was actually innocent, the
petitioner must support his allegations with new, reliable evidence that was not
presented at trial.” Fairman v. Anderson, 188 F.3d 635, 644 (5th Cir. 1999)
(emphasis added). The issue, then, for establishing newness is whether the
evidence was available and presented at the time of trial.2

       2
         There is a circuit split as to whether, under Schlup, the evidence was not discoverable
at the time of trial or whether it is sufficient that the evidence be newly presented. See Wright
v. Quarterman, 470 F.3d 581, 591 (5th Cir. 2006) (discussing the circuit split). We need not

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       Moreover, Warren’s delay of several years in presenting the affidavit as
evidence of his actual innocence does not defeat his claim. The Supreme Court
has “reject[ed] the . . . argument that habeas petitioners who assert convincing
actual-innocence claims must prove diligence to cross a federal court’s
threshold.” McQuiggin, 133 S. Ct. at 1935. Undue delay is a factor that the
district court may weigh in assessing whether the petitioner’s actual innocence
claim has been convincingly shown. See id. at 1935-36.3
       The affidavit, which Neloms authored, signed, and had notarized after
reaching adulthood, unequivocally asserts Warren’s innocence and persuasively
tends to explain why she falsely accused Warren in 1996. Moreover, because
Warren did not go to trial, but pleaded nolo contendere, it is unlikely that
Neloms ever testified or was subjected to cross-examination in this case.4
Further, it is also possible she has given no written statement, sworn or
otherwise, as to Warren’s guilt in this case. Her 2005 affidavit may well be her
first and only sworn statement regarding Warren, and in it she expressly attests
to his innocence. The credibility of her affidavit also is supported by evidence




resolve this issue here. The new evidence of Warren’s actual innocence—namely, the
affidavit—was not available at the time of his plea and therefore satisfies the more stringent
definition of “new evidence.”
       3
         Warren has asserted additional evidence of his actual innocence, namely that on April
16, 1996, the day that police alleged that he sexually assaulted Neloms, he was incarcerated
on an unrelated charge. Warren asserts that his counsel was ineffective, inter alia, because
he failed to investigate or seek confirmation of his incarceration alibi. Warren does not rely
on this alibi as the new, reliable evidence essential to his actual innocence claim, but if he
proves that he could not have committed the crime because he was incarcerated, this fact may
be taken into consideration by the district court in deciding the merits of his habeas petition.
       4
          It is not known at this time whether Neloms ever gave any statement to the police.
The only police report in the record before us is a narrative of Neloms’ teacher’s statement to
the police. The police officer who wrote the narrative noted that at the time, Neloms had not
been interviewed. The state has not entered an appearance or submitted any evidence or a
brief in this case.

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that Offord, her stepfather, eventually was charged with and pleaded guilty to
aggravated sexual assault of a child for his abuse of Neloms.5
        Accordingly, I conclude that Warren is entitled to pursue his actual
innocence claim and habeas petition because he has made a prima facie showing
that no juror, acting reasonably, would have voted to find him guilty beyond a
reasonable doubt of the 1996 sexual assault upon Neloms in light of the new
reliable evidence of Neloms’ affidavit attesting that Warren is innocent and that
her stepfather, Offord, rather than Warren, is the person who sexually abused
her.
                                            II.
        The majority mis-perceives its role as an appeals court in purporting to
decide the merits of Warren’s actual innocence claim. Warren has moved for an
order authorizing the district court to consider his successive habeas petition
and actual innocence claim, pursuant to 28 U.S.C. § 2244(b)(3)(A) . Thus, it is
our job to determine whether Warren has made a prima facie showing that he
satisfies the Schlup requirements for proving actual innocence, and, if so, to
authorize the district court to consider both his actual innocence claim and—if
it finds that Warren has in fact satisfied the Schlup requirements—the merits
of his habeas application asserting a constitutional violation. Applying the
teachings of the Supreme Court’s actual innocence cases and our own cases
dealing with second or successive habeas corpus applications by analogy, I would
conclude that Warren has presented a prima facie actual innocence claim and
direct the district court to consider and determine the merits of that claim.




        5
         On March 8, 2001, Willie Lee Offord pleaded guilty in Dallas County, Texas to
aggravated sexual assault of a child under the age of 14 and was sentenced to a 12-year term
of imprisonment. The offense occurred on August 1, 1998. Offord was released from prison on
May 18, 2012. Texas v. Offord, Judgement on Plea of Guilty or Nolo Contendere Before Court,
No. F-0020003-TJ (Dallas County Crim. Dist. Ct. 3, March 3, 2001).

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      In my view, because we are an appellate court, it is not our function or role
to take evidence or to decide the merits of an actual innocence claim in the first
instance, as the majority purports to do here. The Supreme Court has said that
“‘actual innocence’ means factual innocence, not mere legal insufficiency.”
Bousley, 523 U.S. at 623. “In other words, the Government is not limited to the
existing record to rebut any showing that petitioner might make. Rather, [in the
district court], the Government should be permitted to present any admissible
evidence of petitioner’s guilt even if that evidence was not presented during
petitioner’s plea colloquy . . . . In cases where the Government has forgone more
serious charges in the course of plea bargaining, petitioner’s showing of actual
innocence must also extend to those charges.” Id. at 624. Furthermore, in
Schlup, the Court stated that “the District Court must assess the probative force
of the newly presented evidence in connection with the evidence of guilt adduced
at trial.” Schlup, 513 U.S. at 331-32.
      Moreover, this approach is analogous to and in accord with the approach
our court takes when a petitioner seeks to file a successive petition pursuant to
the stringent requirements of 28 U.S.C. § 2244(b). Petitioners must first make
a prima facie showing that they have met these requirements. 28 U.S.C.
§ 2244(b)(3)(C); In re Wilson, 442 F.3d 872, 873 (5th Cir. 2006). “This requires
‘a sufficient showing of possible merit to warrant a fuller exploration by the
district court.’” In re Swearingen, 556 F.3d 344, 347 (5th Cir. 2009) (quoting In
re Morris, 328 F.3d 739, 740 (5th Cir. 2003)). Once authorization has been
granted and the petitioner has filed his petition in the district court, the district
court must independently determine whether the petition actually satisfies the
standard required of an actual innocence claim. In doing so the district court can
develop the record—by holding an evidentiary hearing, appointing counsel, or
requesting briefing from both parties, as it deems necessary—in order to assess
whether Warren’s claim of actual innocence is sufficiently credible to act as a

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gateway through which he may pass to have his otherwise procedurally barred
claims of constitutional error heard on the merits.
      For these reasons, I respectfully dissent from the majority’s refusal to
authorize Warren to pursue his actual innocence claim together with his habeas
claim in the district court, although I concur in all other respects.




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