In Re: Roy Pippin , 223 F. App'x 391 ( 2007 )

United States Court of Appeals
Fifth Circuit
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT F I L E D
March 21, 2007
No. 07-20180
Charles R. Fulbruge III
In Re: ROY LEE PIPPIN Clerk
Movant
On Motion for Authorization to File Successive Petition
for Writ of Habeas Corpus in the United States
District Court for the Southern District of Texas, Houston
On Motion for Stay of Execution
Before KING, HIGGINBOTHAM, and PRADO, Circuit Judges.
PER CURIAM:*
On September 15, 1995, death-row inmate Roy Lee Pippin was
convicted of capital murder for intentionally killing two men
during the same criminal transaction and for intentionally
killing one of the men during the course of a kidnapping.1 At
the time of the killings Pippin was involved in a money
laundering scheme to transport the profits from cocaine sales in
the United States across the border to Mexico. When
*
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this opinion should not be published and is not precedent except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.
1
The facts underlying Pippin’s conviction are detailed in
Pippin v. Dretke, 434 F.3d 782 (5th Cir. 2005).
1
approximately $2 million in drug proceeds went missing, Pippin’s
immediate supervisor “Alfredo” directed Pippin to kidnap Elmer
Buitrago and his cousin, Fabio Buitrago. After Pippin and his
cohorts kept the two men captive for several days, Pippin shot
each of the men approximately four times. Pippin now faces
execution on March 29, 2007.
In his initial federal habeas petition filed June 21, 2002,
Pippin asserted twenty-six separate claims for relief. The
district court denied Pippin’s petition in two separate memoranda
and orders issued on November 23, 2004, and January 25, 2005,
respectively, and this court denied Pippin’s application for a
certificate of appealability in December 2005. Pippin v. Dretke,
434 F.3d 782 (5th Cir. 2005).
Pippin, acting pro se, now moves in this court for
authorization to file a successive application for writ of habeas
corpus with the United States District Court pursuant to 28
U.S.C. § 2244(b)(3)(A). He contends that the claims asserted in
his successive application are based on newly discovered evidence
that was not available to allow timely submission to the federal
district court before its denial of his first petition. Pippin
also moves for a stay of execution and for leave to proceed in
forma pauperis. Because Pippin has failed to make a prima facie
showing that his application satisfies the requirements of
§ 2244(b)(2)(b)(i) and (ii), we DENY his motions.
2
I. AEDPA STANDARD
The Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”) assigns circuit courts a “gatekeeping” role in the
consideration of successive federal habeas corpus applications,
requiring that an applicant who wishes to file a successive
application first “move in the appropriate court of appeals for
an order authorizing the district court to consider the
application.” 28 U.S.C. § 2244(b)(3)(A); Felker v. Turpin, 518
U.S. 651, 657 (1996). In considering such a motion, this court
must determine whether “the application makes a prima facie
showing that the application satisfies the requirements of”
§ 2244(b). 28 U.S.C. § 2244(b)(3)(C). The portion of § 2244(b)
relevant in this case requires that:
(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).2 A prima facie showing that these
2
The other ground that may support consideration of a
successive federal habeas petition——a “claim [that] relies on a
new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously
unavailable”——is not asserted by Pippin. 28 U.S.C.
3
requirements are met involves “simply a sufficient showing of
possible merit to warrant a fuller exploration by the district
court.” In re Morris, 328 F.3d 739, 740 (5th Cir. 2003).
II. PRIMA FACIE CASE
Pippin identifies one set of recently obtained documents
that he believes supports a claim of actual innocence——three
letters sent to Pippin over the past year from a woman who
allegedly worked for Pippin’s supervisor Alfredo at the time of
the murders. The letters describe nervous and suspicious
behavior by Alfredo and his associate, Cocoy, the day after the
murders and relate statements made by them concerning the
disposal of “it.” In one letter the woman opines that the
murders were part of Alfredo and Cocoy’s “master plan” to “set
everything and everyone up to take the fall for the big heist,”
including Pippin.
However, Pippin has failed to make a prima facie showing
that the letters cast sufficient doubt on his guilt to meet the
requirements of § 2244(b)(2)(B)(ii). In fact, the first letter
acknowledges Pippin’s guilt, referring to “the incident that
occurred when [Alfredo] ordered [Pippin] to take care of the two
so called thieves” and confirming that Pippin “w[as] acting under
orders.” Moreover, the vague statements concerning Alfredo’s
role in running the operation are consistent with the State’s
§ 2244(b)(2)(A).
4
theory of Alfredo’s involvement and fail to implicate anyone
other than Pippin in carrying out the murders.
Pippin also alleges that newly discovered evidence supports
his claims that the State violated Brady v. Maryland, 373 U.S. 83
(1963), by failing to turn over ballistics evidence and that the
State engaged in fraud to cover up the Brady violation. However,
the evidence on which he relies is either not new or was
previously discoverable through the exercise of due diligence,
and, in any event, fails to cast doubt on his guilt in the manner
required by § 2244(b)(2)(B)(ii).3 Pippin’s remaining claims are
similarly unsupported by previously undiscoverable evidence that
3
To support the claims, Pippin relies on his own expert’s
ballistics report from the time of trial, statements from his
expert’s deposition taken during the course of his initial
federal habeas proceedings, affidavits from Pippin’s own attorney
that were drafted in 2000, and a recent response to an open
records request indicating that the City of Houston Police
Department did not maintain entry logs to track access to
ballistics evidence during the time of Pippin’s trial. All but
the last piece of evidence were available to Pippin for timely
presentation in his initial federal habeas petition, and the
entry logs information was readily discoverable through the
exercise of due diligence. Even if it were not, the information
has no bearing on his guilt.
5
calls his guilt into question.4
III. CONCLUSION
For the foregoing reasons, we DENY Pippin’s motion for
authorization to file a successive habeas application. His
motions for a stay of execution and for leave to proceed in forma
pauperis are also DENIED. The State’s motion to strike Pippin’s
4
In addition to the previously mentioned claims, Pippin
alleges that he was denied effective assistance of counsel during
trial, appeal, and habeas proceedings; that he was denied the
right to present a duress defense during trial; that the Texas
capital sentencing schemes enacted since 1974 are
unconstitutional; that the Due Process Clause requires
proportionality review; and that the Texas method of execution by
lethal injection amounts to cruel and unusual punishment.
In his discussion of these claims, Pippin refers to other
pieces of supposedly new evidence, including the affidavit of a
relative who describes his observations during Pippin’s trial, a
letter from the owner of the night club Pippin claims he was at
during the time of the murders stating that he was never
contacted by Pippin’s counsel (though also stating that he has no
memory of the day of the murders), and his belief that certain
people might have information leading to exculpatory evidence.
All of this information was previously known to Pippin, and none
of the information casts doubt on his guilt.
6
motion for authorization to file a successive habeas application
is DENIED.
7