In re Carty

In re: LINDA ANITA CARTY, Movant

No. 19-20574

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

August 25, 2020

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 application

Before OWEN, Chief Judge, and DENNIS and SOUTHWICK, Circuit Judges.

PER CURIAM:^*

Linda Carty was convicted on February 18, 2002 of capital murder and sentenced to death. She seeks authorization from this court to file a successive habeas petition in the district court to bring several claims alleging that the prosecution engaged in misconduct by suppressing material evidence and by knowingly presenting false testimony. Because Carty has failed to make the required prima facie showing that the new evidence supporting these claims could not have been discovered through the exercise of due diligence prior to her previous federal habeas petition, her motion for authorization is DENIED.

I

This court and others have previously and exhaustively described the facts adduced at Carty's trial. See Carty v. Thaler, 583 F.3d 244, 248 (5th Cir. 2009); Carty v. Quarterman, No. 06-CV-614, 2008 WL 8104283, at *8 (S.D. Tex. Sept. 30, 2008); Carty v. State, 74,295, 2004 WL 3093229, at *2 (Tex. Crim. App. Apr. 7, 2004). We will repeat only those relevant to our adjudication.

Carty "was indicted by a Texas grand jury for the kidnaping and intentional murder of [Joana] Rodriguez." Carty, 583 F.3d at 246. The jury heard testimony that Carty orchestrated the kidnapping of Rodriguez and her infant child and murdered Rodriguez on May 16, 2001. Id. Although Carty did not herself enter the apartment in which Rodriguez and her child resided, the jury heard evidence that Carty—who lived, along with her boyfriend or common law husband Jose Corona, in the same apartment complex as Rodriguez—convinced others to rob the apartment by telling them Rodriguez and other members of the household had 200 pounds of marijuana and cocaine. Carty, 06-CV-614, 2008 WL 8104283, at *5-*6. Corona, along with others involved in the run-up to the robbery and kidnapping, testified at trial for the prosecution both about the motive and means behind Carty's plan to kidnap Rodriguez and her child and to murder Rodriguez.

Corona testified that Carty had lied in the past about being pregnant and that, before the kidnapping, Carty told him she would have a baby boy the next day. Id. at *8. Carty told others that she would be having a baby soon, including a DEA agent, Charles Mathis, for whom she had worked as an informant in the past. "At some point on May 14 or 15, [Carty] called Mathis and told him that she was going to have a baby boy." Id.

Josie Anderson, with whom Carty had been friends since 1997, testified that Carty had recruited her to participate in the robbery and that Carty told her that the plan was to rob a pregnant woman and her husband. Id. at *5-*6. Chris Robinson, Josie Anderson's boyfriend, testified that he was recruited to participate in the robbery at the same time as another participant, Marvin Caston. Id. Robinson testified that because Carty's apartment and Rodriguez's apartment had the same layout, he, Caston, Josie Anderson, and Carty visited Carty's apartment so that they could familiarize themselves with its arrangement. Id. Caston corroborated this event and testified that he staked out Rodriguez's apartment and discussed with Carty kidnapping Rodriguez and her infant child. Id. Gerald Anderson, Josie's cousin, also agreed to participate in the robbery. Id. at *8. Zebediah Combs, Robinson's half-brother, confined to his residence in the same apartment complex with an ankle monitor, learned of the plan when Carty and several others came to pick up Robinson:

"[Carty] had a job or something for them to do, and she was trying to recruit some people . . . . [I]t was a drug deal . . . . [F]or the drug deal she wanted a favor in return: and the favor was to bring the lady to her." "[P]art of the payment was showing [them] where the marijuana was, and she said she was going to pay them when they brought the lady to her." [Carty] explained that she wanted them to do the kidnapping because "her husband had got the lady pregnant." Once the others brought the pregnant woman to [Carty], she was "going to handle it from there."

Id. at *7 (internal citations omitted).

Ultimately, according to Robinson, it was he, Gerald Anderson, and Williams who carried out the robbery, entering the house with guns, while Carty waited outside. Carty, 583 F.3d at 248. Robinson testified that he saw Carty enter the apartment and leave with the infant. Carty, 06-CV-614, 2008 WL 8104283, at *9. Williams and Gerald Anderson brought Rodriguez out of the apartment and put her in the trunk of Robinson's car. Id. After the group left the apartment complex in two cars—including Carty in her own car—Williams opened Robinson's trunk and taped Rodriguez's mouth and hands atCarty's direction. Id. at *7, *9-*10. After returning to the apartment complex, the group argued because the men did not find the amount of drugs Carty had promised them and accused her of setting up a bogus robbery. Id. at *10. After approaching the group, Comb testified that Carty excitedly told him that she got her baby. Id. at *10. Several hours later, after the group separated, Robinson testified that he saw Carty "in the trunk" of his car, with "[h]alf her body . . . in the trunk," with "one leg on the ground and leg in the trunk," and that Carty "had a plastic bag over [Rodriguez's] head." Id. Robinson also testified that he ran up to the vehicle, saw Rodriguez was not breathing, and tried to remove the bag, but Rodriguez was already dead. Id.

The jury returned a verdict of guilty in Carty's capital murder trial and answered all three of Texas's "special issues" during the guilt phase in favor of sentencing Carty to death. Carty v. Thaler, 583 F.3d 244, 249, 251 (5th Cir. 2009). Carty's conviction and death sentence were affirmed on direct appeal, and her first round of state and federal habeas proceedings was unsuccessful. Carty v. State, 74,295, 2004 WL 3093229, at *2 (Tex. Crim. App. Apr. 7, 2004); Ex parte Carty, No. WR-61,055-01 (Tex. Crim. App. March 2, 2005) (unpublished); Carty v. Quarterman, 345 F. App'x 897 (5th Cir. 2009) (denying request to expand COA granted by district court); Carty, 583 F.3d at 257-66 (denying relief on claims on which COA was granted).

Carty now seeks to file a second federal habeas petition, asserting that the prosecution (1) coerced Robinson, Caston, Mathis, and Gerald Anderson to submit false testimony; (2) withheld certain exculpatory and impeachment statements made by these witnesses; (3) failed to disclose preferential treatment for Caston in exchange for his testimony; and (4) presented false and misleading testimony of, and failed to disclose impeachment and exculpatoryevidence regarding, Comb.¹ Carty argues that these claims are based on new evidence that was not available at the time of her previous federal habeas petition.

II

The Antiterrorism and Effective Death Penalty Act (AEDPA) requires that "[b]efore a second or successive application permitted by this section is filed in the district court, the applicant shall 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). Where a claim is raised in a successive habeas petition and was not raised in a prior federal habeas petition, AEDPA requires that the claim be dismissed unless (1) the petitioner "shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable," or (2) "the factual predicate for the claim could not have been discovered previously through the exercise of due diligence" and "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)(A)-(B).

We may only authorize a successive petition to go forward in the district court if we determine "that the application makes a prima facie showing that the application satisfies the requirements of [AEDPA]." Id. § 2244(b)(3)(C). "Aprima facie showing is 'a sufficient showing of possible merit to warrant a fuller exploration by the district court. If it appears reasonably likely that the application satisfies the stringent requirements for the filing of a second successive petition,' then the petition should be granted." In re Young, 789 F.3d 518, 525 (5th Cir. 2015) (alterations omitted) (quoting Reyes-Requena v. United States, 243 F.3d 893, 899 (5th Cir. 2001)).

Because Carty's application relies on new evidence as the basis for authorization, she must show that her petition is reasonably likely to satisfy AEDPA's two central requirements for a successive petition based on new evidence: First, that the new evidence relied on "could not have been discovered previously through the exercise of due diligence," and, second, that "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 the constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense." 28 U.S.C. § 2244(b)(2)(B)(i)-(ii). In analyzing the first of these requirements—due diligence—we ask whether "due diligence at the time of [Carty's] first habeas petition would have led to the discovery of the facts [she] is relying on for the new claim[s]." In re Davila, 888 F.3d 179, 184 (5th Cir. 2018).

A

In order to adequately evaluate whether Carty has made a prima facie showing that she could not have previously discovered the facts underlying her proposed successive...