     Case: 09-70036 Document: 00511439121 Page: 1 Date Filed: 04/07/2011




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

                                                 FILED
                                                                             April 7, 2011

                                       No. 09-70036                         Lyle W. Cayce
                                                                                 Clerk

LARRY RAY SWEARINGEN

                                                          Petitioner - Appellant

v.

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

                                                          Respondent - Appellee




                    Appeal from the United States District Court
                         for the Southern District of Texas
                               USDC No. 4:09-CV-300


Before JONES, Chief Judge, and JOLLY and HIGGINBOTHAM, Circuit Judges.
PER CURIAM:*
       Appellant Larry Ray Swearingen was scheduled for execution on
January 27, 2009. He sought permission to file a successive petition for writ of
habeas corpus, which this court granted in part the day before his execution.
In re Swearingen, 556 F.3d 344 (5th Cir. 2009). On remand, however, the
district court concluded that Swearingen failed to satisfy the requirements of



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
    Case: 09-70036 Document: 00511439121 Page: 2 Date Filed: 04/07/2011




                                  No. 09-70036

28 U.S.C. §§ 2244(b)(2)(B)(i) and (ii). Swearingen v. Thaler, No. H-09-300,
2009 WL 4433221 (S.D. Tex. Nov. 18, 2009). He appeals that decision.
      A successive habeas petition is appropriate where:
      (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). Swearingen contends that he learned for the first time
in 2008 of tissue samples that exonerate him of the murder of Melissa Trotter.
He further contends that he could not have discovered the existence of the
samples prior to 2008 and that his attorneys provided constitutionally ineffective
assistance by failing to uncover and employ this evidence. As the district court
explained, however, these arguments are unavailing. The evidence existed at
the time of trial, 2009 WL 4433221 at *16-17, and even if it were not
discoverable through due diligence, it does not constitute “clear and convincing
evidence that, but for constitutional error, no reasonable factfinder would have
found [Swearingen] guilty of the underlying offense.” See Johnson v. Dretke,
442 F.3d 901, 911 (5th Cir. 2006) (explaining the high threshold for
§ 2244(b)(2)(B)(ii) innocence showing). Likewise, we affirm the district court’s
conclusion that Swearingen has not demonstrated ineffective assistance of
counsel. Swearingen’s trial counsel developed a reasonable strategy, including
expert testimony regarding the time of Trotter’s death.        See Strickland v.
Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984).




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    Case: 09-70036 Document: 00511439121 Page: 3 Date Filed: 04/07/2011




                               No. 09-70036

      We AFFIRM the dismissal of Swearingen’s successive habeas corpus
petition.
                                                              AFFIRMED.




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