In re Raby

• Decision Date: 04 June 2019
• Docket Number: No. 18-20826,18-20826
• Citation: 925 F.3d 749
• Parties: IN RE: Charles D. RABY, Movant.
• Court: U.S. Court of Appeals — Fifth Circuit

925 F.3d 749

IN RE: Charles D. RABY, Movant.

No. 18-20826

United States Court of Appeals, Fifth Circuit.

FILED June 4, 2019

Sarah Mary Frazier, Berg & Androphy, Houston, TX, Kevin Dane Mohr, Tracey Maria Robertson, Esq., King & Spalding, L.L.P., Houston, TX, for Movant.

Jefferson David Clendenin, Assistant Attorney General, Office of the Attorney General, Financial Litigation & Charitable Trusts Division, Austin, TX, for Respondent.

Before HIGGINBOTHAM, SMITH, and DUNCAN, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Charles Raby was convicted and sentenced to death for the gruesome murder of seventy-two-year-old Edna Franklin. Raby v. Dretke , 78 F. App'x 324, 325 (5th Cir. 2003), cert . denied , 542 U.S. 905, 124 S.Ct. 2837, 159 L.Ed.2d 270 (2004). In December 2018, Raby moved for an order authorizing the filing and consideration of a second-or-successive habeas corpus petition. Because Raby fails to meet the standard to warrant a second-or-successive petition, we deny the motion for authorization.

I.

Franklin was murdered in her living room after being severely beaten and repeatedly stabbed, her throat cut. Raby, a friend of Franklin’s grandsons, confessed.¹

In June 1994, a Texas jury convicted Raby of capital murder, and he was sentenced to death based on the jury’s answers to the special issues. The Texas Court of Criminal Appeals ("CCA") affirmed on direct appeal. Raby v. State , 970 S.W.2d 1, 9 (Tex. Crim. App.), cert. denied , 525 U.S. 1003, 119 S.Ct. 515, 142 L.Ed.2d 427 (1998). The CCA denied Raby’s application for a state writ of habeas corpus. Ex parte Raby , No. WR-48,131-01 (Tex. Crim. App. Jan. 31, 2001).

The district court denied Raby’s federal habeas petition. Raby v. Cockrell , No. 4:02-cv-00349, slip op. at 1 (S.D. Tex. filed Nov. 27, 2002). We declined a certificate of appealability ("COA"). Raby , 78 F. App'x at 325–29.

While his federal habeas petition was pending, Raby moved in state court for post-conviction DNA testing of four pieces of evidence: underwear found near Franklin, the nightshirt Franklin was wearing, Franklin’s fingernail clippings, and a hair found on her hand (identified as belonging to one of Franklin’s grandsons).

Raby v. State , No. AP-74,930, 2005 WL 8154134, at *1 (Tex. Crim. App. June 29, 2005). See TEX. CODE CRIM. PROC. ANN. ch. 64 (West 2017). The CCA granted Raby’s motion in part and allowed testing on the underwear, nightshirt, and fingernail clippings. Raby , 2005 WL 8154134, at *8.

Over a three-year period, the state trial court held a series of hearings concerning the DNA evidence. Raby , 2015 WL 1874540, at *1 ; see also TEX. CODE CRIM. PROC. ANN. art. 64.04. The nightshirt could not be located. Testing on the underwear showed only that the blood was from Franklin. Consequently, the hearings focused on the DNA evidence recovered from the fingernail clippings, which "contain[ed] a weak and incomplete DNA profile from an unknown male." The state district court concluded that

[h]aving heard arguments, read the parties’ briefing, affidavit evidence, and other exhibits, reviewed the trial transcript, and considered the testimony of experts, including forensic DNA experts interpreting the DNA test results that have been obtained, ... the results are not favorable to [Raby], and that had the DNA test results obtained under Chapter 64 been available in 1994, it is reasonably probable that Raby would have been prosecuted or convicted.

Raby , 2015 WL 1874540, at *1. The CCA affirmed in 2015. Id. at *5–9. Raby filed a subsequent state habeas application that the CCA denied as an abuse of the writ. Ex parte Raby , No. WR-48,131-02, 2017 WL 2131819, at *1 (Tex. Crim. App. May 17, 2017) (per curiam).

In August 2017, Raby filed a Federal Rule of Civil Procedure 60(b)(6) motion for relief from judgment. The district court denied the motion, finding that a change in decisional law "does not, without more, constitute extraordinary circumstances." Raby v. Davis , No. 4:02-cv-00349, slip op. at 5 (S.D. Tex. Apr. 5, 2018). We declined a COA. Raby v. Davis , 907 F.3d 880, 883 (5th Cir. 2018), petition for cert. filed (U.S. Mar. 4, 2019) (No. 18-8214).

Raby moves for an order authorizing the filing and consideration of a second habeas petition. His application presents four grounds. First, that the state destroyed exculpatory evidence such that it is no longer available for testing, in violation of California v. Trombetta² and Arizona v. Youngblood .³ Second, that Joseph Chu, the state’s forensic serologist, falsely referred to exculpatory serological results as "inconclusive," in violation of Giglio v. United States .⁴ Third, that the state withheld material exculpatory evidence, in violation of Brady v. Maryland .⁵ Fourth, that Raby is actually innocent such that his confinement violates the Eighth and Fourteenth Amendments.⁶

II.

A.

Federal habeas review for a prisoner in state custody is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, Title I, 110 Stat. 1214, 1217–26 (codified as amended in scattered sections of Title 28). Because Raby previously filed a federal habeas petition, he must receive authorization from this court to file a second-or-successive petition. 28 U.S.C. § 2244(b)(3)(A).

We permit the filing of a successive petition only if we conclude that Raby’s application makes a prima facie showing that it satisfies the strict requirements in § 2244(b). Id . § 2244(b)(3)(C). A prima facie showing is "simply a sufficient showing of possible merit to warrant a fuller exploration by the district court." In re Campbell , 750 F.3d 523, 530 (5th Cir. 2014) (citation omitted). Consequently, if it seems reasonably likely that a successive petition meets the strict requirements provided in the statute, we will grant the motion for a successive petition. Id . Our decision to grant or deny authorization is not appealable and may not be the subject of a petition for rehearing or writ of certiorari. 28 U.S.C. § 2244(b)(3)(E).

Both parties concede that the claims presented by Raby were not raised in his initial federal habeas petition, so he must make a prima facie showing that he satisfies the requirements of § 2244(b)(2)(B) :

(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—

...

(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.

Id . § 2244(b)(2)(B).

A petitioner who makes such a showing must also overcome the statutory time bar. Generally, an applicant faces a one-year limitations period to file a federal habeas petition. Id . § 2244(d)(1). As relevant here, that period runs from "the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence." Id . § 2244-(d)(1)(D). We may apply equitable tolling, which "is applied restrictively and ... is entertained only in cases presenting rare and exceptional circumstances where it is necessary to preserve a plaintiff’s claims when strict application of the statute of limitations would be inequitable." In re Wilson , 442 F.3d 872, 875 (5th Cir. 2006) (internal quotation marks and citation omitted).

Although the Supreme Court has not determined whether a petitioner may receive habeas relief based on a freestanding actual-innocence claim, "a credible showing of actual innocence may allow a prisoner to pursue his constitutional claims ... on the merits notwithstanding the existence of a procedural bar to relief." Perkins , 569 U.S. at 392, 133 S.Ct. 1924. "The Fifth Circuit does not recognize freestanding claims of actual innocence on federal habeas review." E.g. , In re Swearingen , 556 F.3d 344, 348 (5th Cir. 2009) (per curiam). Thus, we decline Raby’s invitation to review his actual-innocence claim on its merits. If, however, one (or more) of Raby’s claims satisfies the dual requirements of § 2244(b)(2)(B), a credible showing of actual innocence would allow him to pursue the claim, despite a procedural bar.⁷

In any event, our inquiry is limited to whether Raby has made a prima facie showing concerning any of his claims such that "it appears reasonably likely that the application satisfies the stringent requirement for the filing of a second or successive petition." Campbell , 750 F.3d at 530. We review each claim in turn.

B.

Raby avers that "the state destroyed exculpatory or potentially useful evidence" in violation of Trombetta and Youngblood . Even assuming, arguendo , that the claim is not time-barred and that Raby could not have previously discovered the factual predicate for the claim using due diligence, he cannot "establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found [him] guilty of the underlying offense." 28 U.S.C. § 2244(b)(2)(B)(ii). Consequently, he fails to make a prima facie showing sufficient to warrant authorization for a second-or-successive habeas petition on this ground.

Raby asserts that Chu’s decision to perform a highly consumptive Lattes test on the biological material recovered from Franklin’s fingernails over a month after investigators recovered the material is evidence of bad faith.⁸ Raby contends that, by doing so, Chu ensured that his conclusions could not be second-guessed. Raby avers that this evidence, especially when read in conjunction with the infamous Bromwich Report,⁹ constitutes a prima facie showing on this claim.

In response, the state maintains that Raby failed to show Houston Police Department ("HPD") lab employees, including Chu, "destroyed potentially...