In Re: Isaias Palacios ( 2023 )

Case: 22-50792 Document: 00516613844 Page: 1 Date Filed: 01/18/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
January 18, 2023
No. 22-50792
Lyle W. Cayce
Clerk
In re Isaias L. Palacios,
Movant.
Motion for an order authorizing
the United States District Court for the
Western District of Texas to consider
a successive 28 U.S.C. § 2254 application
Before Higginbotham, Jones, and Oldham, Circuit Judges.
Per Curiam:
Isaias L. Palacios, Texas prisoner # 1709341, moves for authorization
to file a second or successive 28 U.S.C. § 2254 application with respect to his
conviction for two counts of aggravated assault with a deadly weapon and one
count evading arrest and detention in a motor vehicle.1 He is one of many
Texas prisoners who, after previously filing state habeas applications, have
since learned that Weldon Ralph Petty, the state prosecutor who opposed
their state habeas applications, was also employed by one or more district
judges to prepare findings of fact and conclusions of law in those same habeas
1
Palacios v. State, No. XX-XXXXXXX-CR, 2013 WL 4505372, at *1 (Tex. App.—
Eastland Apr. 11, 2013, not pet.) (mem. op., not designated for publication).
Case: 22-50792 Document: 00516613844 Page: 2 Date Filed: 01/18/2023
No. 22-50792
cases.2 Palacios argues that the shared work of prosecutor Petty and the
presiding judge denied his constitutional right to an impartial judge and his
requested jury instructions.
Palacios does not rely on a new rule of constitutional law, he rather
relies on newly discovered evidence—collusion of Petty and the judge—
which he argues deprived him of a fair trial. Assuming, arguendo, that the
factual predicate for this claim was previously undiscoverable “through the
exercise of due diligence[,]”3 the facts underlying this claim do not “establish
by clear and convincing evidence that, but for constitutional error, no
reasonable factfinder would have found [Palacios] guilty of the underlying
offense[s].”4 Palacios argues that but for the collusion, the presiding judge
would have included his requested jury instructions for duress, necessity,
self-defense, and deadly force in defense of a person. But, as addressed on
appeal, these jury instructions are unavailable to Palacios because he did not
admit to the conduct through his own testimony or through statements he
made to other individuals, as required by the doctrines of confession and
avoidance.5 Palacios therefore fails to make the requisite prima facie showing
2
See, e.g., Ex parte Young, No. WR-65,137-05, 2021 WL 4302528, at *2–3 (Tex.
Crim. App. Sept. 22, 2021) (per curiam) (not designated for publication); Ex parte
Benavides, No. WR-81,593-01, 2022 WL 4360857, at *1 (Tex. Crim. App. Sept. 21, 2022)
(per curiam) (not designated for publication); Ex parte Vetter, No. WR-85,551-01, 2022 WL
610979, at *1 (Tex. Crim. App. Mar. 2, 2022) (per curiam) (not designated for publication);
Ex parte Rodriguez, Nos. WR-33, 906-02 & WR-33,906-04, 2022 WL 389403, *1 (Tex.
Crim. App. Feb. 9, 2022) (per curiam) (not designated for publication).
3
22 U.S.C. § 2244(b)(2)(B)(i).
4
Id. § 2244(b)(2)(B).
5
Palacios, 2013 WL 4505372, at *1.
2
Case: 22-50792 Document: 00516613844 Page: 3 Date Filed: 01/18/2023
No. 22-50792
that but for the collusion, no reasonable factfinder would have found him
guilty of the underlying offenses.6
To the extent that Palacios attempts to present a claim of actual
innocence, this Court “does not recognize freestanding claims of actual
innocence on federal habeas review.”7 Likewise, he may not rely on an
assertion of actual innocence to serve as a gateway to overcome the bar to
successive filing.8 Additionally, infirmities in state postconviction
proceedings are not grounds for relief under § 2254.9 Thus, none of
Palacios’s proposed challenges state a claim that is cognizable on federal
habeas review.10
Accordingly, IT IS ORDERED that the motion for authorization to
file a second or successive § 2254 application is DENIED.
6
See § 2244(b)(2), (b)(3)(C).
7
In re Swearingen, 556 F.3d 344, 348 (5th Cir. 2009).
8
See Jackson v. Lumpkin, 25 F.4th 339, 341 (5th Cir. 2022).
9
See Moore v. Dretke, 369 F.3d 844, 846 (5th Cir. 2004); see also In re Wagner, No.
22-50259, ECF 22-50259, 24-2 (5th Cir. Aug. 3, 2022) (unpublished per curiam) (denying
a motion for authorization to file a § 2254 application challenging Petty’s involvement in a
state habeas proceeding); In re Russie, No. 22-50253, ECF 22-50253, 24-2 (5th Cir. June
21, 2022) (unpublished per curiam) (same).
10
In re Gentras, 666 F.3d 910, 911 (5th Cir. 2012).
3