935 F.3d 415
5th Cir.2019Background
- Larry Ray Swearingen was convicted and sentenced to death in Texas in 2000 for the strangulation murder of Melissa Trotter; courts have repeatedly described a "mountain of inculpatory evidence."
- Swearingen has pursued numerous state and federal post-conviction actions over two decades; his execution has been stayed multiple times and a sixth execution date was set for August 21, 2019.
- Seven days before that execution date, Swearingen sought this court's authorization to file a fourth federal habeas petition raising two newly-claimed Giglio/Brady-based issues tied to recent letters from the Texas DPS crime lab.
- Claim 1: A DPS letter (Aug. 9, 2019) allegedly shows DPS analyst Cassie Carradine lacked foundation and that the State sponsored false testimony about blood flecks under the victim’s fingernails (contamination theory).
- Claim 2: A DPS letter (July 19, 2019) and examiner notes allegedly show Sandy Musialowski’s pantyhose/ligature “match” testimony should be revised and that the State withheld notes (Brady/Giglio).
- The Fifth Circuit considered only whether Swearingen made the prima facie showing required to authorize a successive petition under 28 U.S.C. § 2244(b)(2)(B), not the merits of the claims.
Issues
| Issue | Swearingen's Argument | State's Argument | Held |
|---|---|---|---|
| Whether DPS letter about Carradine shows Giglio (false/impeachable testimony) and meets § 2244(b)(2)(B) | Carradine’s contamination testimony was false/misleading and newly shown by the 2019 letter; therefore, factual predicate was newly discovered and would establish by clear and convincing evidence that no reasonable juror would convict | The letter does not say testimony was false or state-sponsored; trial record already showed lack of foundation and counsel cross-examined Carradine; even if true, the fingernail DNA would not overcome the overwhelming evidence of guilt | Denied: claim fails both due-diligence and no-reasonable-juror prongs of § 2244(b)(2)(B) |
| Whether DPS letter and notes about Musialowski’s pantyhose/ligature opinion establish Giglio or Brady violations sufficient under § 2244(b)(2)(B) | DPS letter ‘‘retracts’’ or narrows her conclusion; withheld notes show initial uncertainty and would have impeached her, so newly discoverable material would likely change the outcome | The letter does not retract but only narrows terminology; notes are cumulative of trial testimony and were discoverable or known at trial; even if credited, they would not overcome the totality of evidence | Denied: both prongs of § 2244(b)(2)(B) not met—no new undiscoverable factual predicate and no showing that no reasonable juror would convict |
| Authorization to file a successive habeas petition under § 2244(b)(3)(A) | Seeks authorization to file a fourth petition based on the above new DPS materials | Authorization requires a prima facie showing under § 2244(b)(2)(B); Swearingen fails to make that showing | Denied authorization to file a successive petition |
| Motion to stay execution | Stay sought to allow consideration of the new claims | No authorization granted; claims lack required prima facie showing so stay is unwarranted | Denied motion to stay execution |
Key Cases Cited
- Giglio v. United States, 405 U.S. 150 (1972) (prosecution’s knowing use of false testimony can violate due process)
- Brady v. Maryland, 373 U.S. 83 (1963) (prosecution must disclose material exculpatory or impeaching evidence)
- In re Raby, 925 F.3d 749 (5th Cir. 2019) (standards for prima facie authorization of successive habeas petitions)
- In re Campbell, 750 F.3d 523 (5th Cir. 2014) (prima facie showing standard explained)
- Blackman v. Davis, 909 F.3d 772 (5th Cir. 2018) (counsel’s notice to investigate undermines novelty of successive claims)
- Kutzner v. Cockrell, 303 F.3d 333 (5th Cir. 2002) (Giglio requires that prosecution know testimony false to implicate due process)
- Swearingen v. State, 303 S.W.3d 728 (Tex. Crim. App. 2010) (trial record and post-conviction history discussing evidentiary issues)
- Swearingen v. State, 424 S.W.3d 32 (Tex. Crim. App. 2014) (discussion of DNA and fingernail evidence)