for an Order Authorizing the United States District Court for
the Southern District of Texas to Consider a Successive 28
U.S.C. § 2254 Petition and for Stay of Execution
COSTA, WILLETT, and DUNCAN, Circuit Judges.
KYLE DUNCAN, CIRCUIT JUDGE.
Ray Swearingen, convicted nineteen years ago of capital
murder for strangling nineteen-year-old Melissa Trotter,
seeks permission to file a fourth federal habeas corpus
petition. He also moves to stay, for the fifth time, his
execution date, scheduled for the evening of Wednesday,
August 21, 2019. Finding Swearingen's claims fail to meet
the strict requirements imposed by 28 U.S.C. § 2244(b)
for authorizing a successive petition, we DENY his
application and also DENY his motion for stay of execution.
facts and extensive litigation history of Swearingen's
case have been catalogued elsewhere. See, e.g.,
Swearingen v. State, 101 S.W.3d 89, 92 (Tex. Crim. App.
2003) (direct appeal); Swearingen v. Presiding Judge of
9th Judicial Dist. Court, Montgomery Cty., 2005 WL
995214 (Tex. Crim. App. 2005) (mandamus petition);
Swearingen v. Dretke, No. H-04-2058, slip op. (S.D.
Tex. Sept. 8, 2005) (first federal habeas); Swearingen v.
Quarterman, 192 Fed.Appx. 300 (5th Cir. 2006) (per
curiam) (first federal habeas), cert. denied, 127
S.Ct. 1269 (2007); Ex parte Swearingen, 2008 WL
650306 (Tex. Crim. App. 2008) (third state writ); Ex
parte Swearingen, 2008 WL 5245348 (Tex. Crim. App. Dec.
17, 2008) (third state writ), cert. denied, 129
S.Ct. 1383 (2009); Ex parte Swearingen, 2009 WL
249759 (Tex. Crim. App. Jan. 27, 2009) (fourth state writ);
In re Swearingen, 556 F.3d 344 (5th Cir. 2009) (per
curiam) (second federal habeas); Swearingen v.
Thaler, 2009 WL 4433221 (S.D. Tex. Nov. 18, 2009)
(second federal habeas); Ex parte Swearingen, 2009
WL 249778 (Tex. Crim. App. 2009) (sixth state writ);
Swearingen v. State, 303 S.W.3d 728 (Tex. Crim. App.
2010) (third DNA motion); Swearingen v. Thaler, 421
Fed.Appx. 413, 414 (5th Cir. 2011) (per curiam) (second
federal habeas), cert. denied, 132 S.Ct. 1632;
In re Swearingen, No. 11-20276, slip op. (5th Cir.
May 9, 2011) (per curiam) (third federal habeas);
Swearingen v. Obama, 2011 WL 2037607 (S.D. Tex. May
20, 2011) (civil rights complaint construed as unauthorized
federal habeas); Ex Parte Swearingen, 2011 WL
3273901, (Tex. Crim. App. 2011) (sixth state writ); Ex
parte Swearingen, 2012 WL 6200431 (Tex. Crim. App. 2012)
(sixth and seventh state writs), cert. denied sub nom.
Swearingen v. Texas, 570 U.S. 905 (2013); State v.
Swearingen, 424 S.W.3d 32 (Tex. Crim. App. 2014) (fourth
DNA motion); In re Swearingen, 2014 WL 1101761,
(Tex. App. 2014) (mandamus petition); State v.
Swearingen, 478 S.W.3d 716 (Tex. Crim. App. 2015) (fifth
DNA motion), cert. denied, 137 S.Ct. 60;
Swearingen v. Keller, 2017 WL 6803366 (W.D. Tex.
Nov. 9, 2017) (suit against Texas Court of Criminal Appeals
dismissed as frivolous). We provide a skeletal recitation
was sentenced to death in 2000 after a Texas jury determined
that he murdered Trotter by strangulation while committing,
or attempting to commit, kidnapping or sexual assault. His
conviction was based on a "mountain of inculpatory
evidence." Swearingen, 303 S.W.3d at 736
(quoting Ex parte Swearingen, 2009 WL 249778, at *9
(Cochran, J., concurring)); see also, e.g.,
Swearingen, 2009 WL 4433221 at *2-3 (cataloguing
"the extensive evidence of [Swearingen's] guilt
which the State adduced at trial"). The Texas Court of
Criminal Appeals ("TCCA") affirmed his conviction
and sentence. Over the next two decades, "Swearingen has
filed a convoluted tangle of habeas applications, pro
se motions, mandamus actions, and amended
pleadings," seeking to overturn his conviction and
postpone his death sentence. Id. at *6; see also
id. at *6-10 (recounting state and federal
post-conviction litigation history through 2009);
Swearingen, 478 S.W.3d at 719 (recounting history of
motions for post-conviction DNA testing). These legal
machinations have resulted in Swearingen's execution
being put off five times.
March 12, 2019, his sixth execution date was set for
Wednesday, August 21, 2019. Seven days before the execution
date, Swearingen sought our court's authorization to file
a fourth habeas petition based on two claims. First, based on
a recent letter from the Texas Department of Public Safety
("DPS"), Swearingen claims the State sponsored
"false and misleading" trial testimony regarding
blood flecks found under Trotter's fingernails, in
violation of Giglio v. United States, 405 U.S. 150
(1972). Second, based on another recent DPS letter,
Swearingen claims the State withheld evidence that a
criminologist had "manufactured" evidence that the
torn pantyhose used to strangle Trotter matched the pantyhose
found at Swearingen's house, in violation of both
Giglio and Brady v. Maryland, 373 U.S. 83
(1963). Based on these claims, Swearingen has also moved for
a stay of execution.
must receive this court's authorization to file a second
or successive petition. 28 U.S.C. § 2244(b)(3)(A);
see generally, e.g., In re Raby, 925 F.3d 749, 754
(5th Cir. 2019). We may give that authorization only if we
conclude that Swearingen's application makes a prima
facie showing that it satisfies the strict requirements
in § 2244(b). Id. 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.
parties concede that Swearingen's present claims were not
raised in previous federal habeas petitions, Swearingen must
therefore 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
(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).
analysis does not address the merits of Swearingen's two
claims, but only whether Swearingen "makes a prima
facie showing that [he] can meet the [two] requirements
of § 2244(b)(2)." Swearingen, 556 F.3d at
347. Within that ...