from the United States District Court for the Northern
District of Texas
DAVIS, JONES, and ENGELHARDT, Circuit Judges.
H. JONES, CIRCUIT JUDGE
Blackman, Texas prisoner # 848568, was convicted of murder in
1998 and sentenced to life imprisonment. In this successive
Section 2255 application, she challenges her conviction under
Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194
(1963); Napue v. Illinois, 360 U.S. 264, 79 S.Ct.
1173 (1959); and Giglio v. United States, 405 U.S.
150, 92 S.Ct. 763 (1972). We do not reach the merits of these
claims, however, because her petition does not fulfill the
stringent requirements of 28 U.S.C. Section 2244(b)(2)(B) and
the district court consequently erred in purporting to grant
a COA on her merits claims after it had rejected the
successive petition's compliance with the statutory
prerequisites. We AFFIRM the dismissal of the successive
evidence produced at trial was summarized by a Texas Court of
Appeals on direct appeal:
[Blackman] and the decedent, Lisa Davis, lived together in a
lesbian relationship. One of the decedent's friends
testified that the relationship was somewhat stormy and that,
shortly before her death, the decedent wanted to end the
relationship with appellant, although she was apprehensive
about doing so.
The couple lived in a second-floor apartment, accessible by
an outdoor stairway to a balcony in front of the apartment.
Appellant testified that, on Sunday evening, June 22, 1997,
she left the apartment complex to go to a nearby convenience
store, Quick Way. Upon returning, she realized she did not
have her apartment key or her pass card to the apartment
complex; she would have to ring the buzzer to be let into the
complex. She went to the entryway of the apartment complex
and, while she was standing on the sidewalk before going
upstairs, she saw the decedent's feet lying on the
balcony in front of their apartment. The apartment door was
open, and the body was lying partially inside the apartment
and partially outside. Decedent had been shot. Appellant
called the decedent's name, and eventually touched the
decedent, but the decedent did not respond. Appellant pulled
the decedent's body inside their apartment. In doing so,
she moved the decedent's feet to the side, to get them
inside the apartment. She then shut the door and dialed 911.
As a result of dragging the decedent's body inside the
apartment complex, she got blood on her socks and shoes.
Cathy Harding, a Dallas police detective, searched appellant
in the homicide office at police headquarters because the
only officers called to the crime scene were male; it was
against department policy to have a male officer search a
female suspect. Harding found blood on the soles of
appellant's socks. Appellant told Harding that she had
not taken her shoes off that evening.
When Daniel Krieter, a Dallas police investigator, arrived at
the murder scene, appellant asked him if he remembered her
from an incident that had occurred about a year earlier.
Appellant had been shot by a gun, a .25 caliber Lorcin, that
she owned. When the police closed their investigation into
that incident, appellant reclaimed the gun from the
department's property room. Appellant testified at trial
that the gun was stolen some two months after she had
reclaimed it in August 1995. She did not report it as stolen,
however, because it was not registered. Appellant
consistently denied that she had a gun on the night of the
No gun was found; however, Krieter's search of the
apartment revealed some spent shell casings on the floor and
some live shell casings in a bureau drawer. The casings were
.25 caliber and would fit a Lorcin. Appellant and the
decedent had moved into the apartment only some thirty days
before the decedent's death. Appellant explained that she
moved in such haste she did not have time to throw out the
live shell casings so she simply moved them.
Robert L. Ermatinger, a Dallas police homicide investigator,
questioned appellant at the scene. Appellant told him she had
gone to "the store" when the shooting occurred,
although she could not say which store. When pressed,
appellant said she realized while en route to the store she
had forgotten her gate key and returned to the complex rather
than going on to the store. When Ermatinger asked appellant
at the scene if "they were a couple," that is,
whether appellant and the decedent had a lesbian
relationship, appellant said "they were not."
Finally, Cherissa Adams, a neighbor who lived on the first
floor, testified that, on the evening of June 22, 1997, she
heard a loud noise that sounded like gunfire. She looked out
her window and saw a lifeless body. A young, thin girl was
trying to move the body. The body's upper portion was
inside an apartment. After Adams called 911, she returned to
the window and continued to look out. The person who had
moved the body locked the door and went downstairs. When the
person looked in Adams's direction, Adams closed the
blinds and moved away from the window. Adams had never seen
the person before that evening and never saw her again. Adams
was not able to identify appellant in court; at 11:35 p.m. on
the night of the shooting, however, Adams did identify
appellant in a photographic lineup.
Blackman v. State, No. 05-98-01750-CR, 2000 WL
5677985 (Tex. App.-Dallas May 8, 2000). Detective Lynette
Harrison also testified at the trial. Harrison testified that
Adams first chose Blackman's photograph from the
photographic line up, and she affirmed that Adams did not
"change her ...