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In re Swearingen

United States Court of Appeals, Fifth Circuit

August 16, 2019

In re: LARRY SWEARINGEN, Movant

         Motion 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

          Before COSTA, WILLETT, and DUNCAN, Circuit Judges.

          STUART KYLE DUNCAN, CIRCUIT JUDGE.

         Larry 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.

         I.

         The 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 here.

         Swearingen 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.

         On 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.

         II.

         A.

         Swearingen 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.

         As both 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 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.

Id. § 2244(b)(2)(B).

         This 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 ...


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