Will v. Stephens
Filing
79
MEMORANDUM AND ORDER denying 59 Opposed MOTION for Discovery, denying 56 Ex Parte SEALED MOTION , denying 60 Opposed MOTION for Evidentiary Hearing, granting 76 Opposed MOTION for Leave to File Excess Pages (Signed by Judge Keith P Ellison) Parties notified.(arrivera, 4)
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United States District Court
Southern District of Texas
ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
§
§
Petitioner,
§
§
v.
§
§
BOBBY LUMPKIN, Director, Texas
§
Department of Criminal Justice, Correctional §
Institutions Division,
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§
Respondent.
§
March 28, 2023
Nathan Ochsner, Clerk
ROBERT GENE WILL, II,
CIVIL ACTION NO. 15-CV-3474
MEMORANDUM AND ORDER
This Court has a long history with this case. Will filed his initial federal petition
well over a decade ago. Throughout the years, the Court has considered various—and
evolving—challenges to Will’s conviction. This Court has presided over hearings which
have questioned the trial representation Will received and the integrity of the evidence
showing his guilt. As time has passed, Will has poked more and more holes in the case
that the State presented at trial. This Court has previously expressed deep misgivings about
the state of the evidence and given voice to weighty concerns about Will’s conviction. This
Court has “lament[ed] the strict limitations placed upon it” by federal habeas law in light
of the “disturbing uncertainties,” “total absence of eyewitness testimony or strongly
probative forensic evidence,” and “considerable evidence supporting Will’s innocence.”
Will v. Thaler, No. H-07-CV-1000, Docket Entry No. 88 at 19-20 (S.D. Tex. Jan. 17, 2012).
The petition now before the Court renews a theme that has persisted since early
days: that Michael Rosario was the one who shot the victim, Harris County Sheriff's Deputy
Barrett Hill. Unlike previous legal arguments, however, this theory is now embedded in a
1
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constitutional challenge involving the suppression of evidence. In this petition, Will
contends that the State violated his due process rights under Brady v. Maryland, 373 U.S.
83 (1963), by not disclosing two documents which implicate Rosario as the true killer.
The merits of Will’s Brady claim are not before the Court in the current procedural
posture. The question at issue is whether the Anti-Terrorism and Effective Death Penalty
Act (AEDPA) will allow Will’s successive petition containing the Brady claim to proceed.
As the Court discusses below, Will has met the legal standards which will allow his Brady
claim to be heard. The Court will also address the pending motions in this case.
Background
Judicial opinions have repeatedly told the story of Deputy Hill’s murder.1 With
robust factual discussions already provided elsewhere, the Court now gives only a concise
summary of the crime which led to Will’s capital conviction. In doing so, the Court
recognizes that, while “the record is not devoid of evidence supporting Will’s conviction,”
it also “reflects anything but a slam dunk.” In re Will, 970 F.3d 536, 546 (5th Cir. 2020).
The jury considering the charges against Will certainly had sufficient evidence to find him
guilty beyond a reasonable doubt, but time has proven that the “evidence establishing
Will’s guilt is assailable.” Id. at 546.
I.
The Murder
At around 6:30 a.m. on December 4, 2000, police received a report of men breaking
into a vehicle at an apartment complex. When Deputy Hill and his training officer, Deputy
Warren Kelly, responded to the call, they found two men standing outside. The men
1
For example, the trial court provided a detailed and extensive review of the crime which resulted in
Will’s capital-murder conviction when considering his successive state habeas application. (Docket Entry
No. 37, Exh. 39 at 3-14).
2
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appeared to be removing parts from vehicles. As Deputy Kelly pulled the police cruiser up
to them, the men ran in different directions. Deputy Hill chased one man now known to
be Will. Deputy Kelly called for backup as he chased the other man—now known to be
Michael Alan Rosario—in the opposite direction. A few moments later, Deputy Hill lay
dying from gunshot wounds.
No one witnessed the murder of Deputy Hill. Since his death, both the State and
the attorneys representing Will have examined the minutia of the moments surrounding the
event, finding clues as to who fired the killing shots. As time has progressed, so have the
challenges Will has made to the timeline of events propounded by the State at trial. Tracing
the history of those challenges leads to the claim in Will’s most-recent habeas petition.
II.
The Trial
The Fifth Circuit recently placed the trial evidence into two categories: evidence
which supported Will’s guilt and that which raised reasonable doubt. Will, 970 F.3d at
544-46.2 This Court will likewise consider first the evidence of guilt before turning to the
evidence supporting the defense.
Strong evidence pointed to Will as the killer. The two police officers chased the
men in opposite directions. Not long after giving chase, Deputy Hill announced over the
radio: “I’ve got one, in custody.” A minute later, the suspect (Rosario) that Deputy Kelly
had been chasing disappeared around a tree. When Deputy Kelly lost sight of Rosario, he
was running in the direction away from Deputy Hill. Deputy Kelly then radioed that he
“lost him on the bayou[.]”
2
Will stood trial in 2002 in the 185th District Court for Harris County, Texas with the Honorable
Susan Baetz Brown presiding. Assistant District Attorneys Lynne Parsons and Denise Nassar represented
the State at trial. Anthony Osso and David Cunningham represented Will.
3
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Eight seconds later, gunshots sounded over the radio. Deputy Kelly heard between
five and seven gunshots. The police radio broadcasted gasping sounds. Soon after hearing
the gunshots, Deputy Kelly saw Will run from the area.
Deputy Kelly tried to find his partner. When other units arrived, they joined in the
search. It took about half an hour to find Deputy Hill’s body. A medical examiner testified
at trial that Deputy Hill’s injuries was consistent with gunshots fired from above. The
police found handcuffs on the ground but the keys still on Deputy Hill’s body. Will’s blood
was on Deputy Hill’s right boot.
Respondent has summarized how the State wove that narrative into a case for Will’s
guilt:
The prosecution’s theory at trial was that Hill had Will on the ground, and
in a moment of vulnerability when Hill went to get his handcuffs, Will fired
his gun at Hill from the ground. Having accidentally shot his left hand in
the process, Will’s blood dripped onto Hill’s boot, as Will towered over
Hill’s body on the ground to fire the three final (and fatal) shots.
(Docket Entry No. 42 at 63).
The prosecution supported this theory with testimony describing events after the
murder. A woman named Cassandra Simmons testified that a man stole her car at gunpoint
soon after the shooting. Ms. Simmons identified that man as Will. She testified at trial
that Will had said: “I just shot a policeman.”
When police eventually apprehended Will in Ms. Simmons’ car (with different
license plates) several hours later, he had the murder weapon in his waistband. The police
found gunshot residue on Will’s left hand and on a glove in the car. He had a wound on
his left hand from the same gun that had killed Deputy Kelly. Will’s clothing appeared to
have been stained by bleach.
4
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But, as noted by the Fifth Circuit, not all the evidence pointed toward Will’s guilt.
The circumstances of the murder raised serious questions that do not have easy answers.
Deputy Kelly had lost sight of Rosario before the shooting. No one could account for
Rosario’s actions for a brief period afterwards. Deputy Kelly was initially wrong about
which direction he saw Rosario running. Police found Rosario’s jacket and pants around
700 feet to the east of Deputy Hill’s body.
Before shots rang out, Deputy Hill had reported that he had “the tall one . . . in
custody”—apparently meaning that Will was handcuffed or otherwise under police control.
All along, the defense has argued that it would have been difficult for Will to have shot
Deputy Hill while “in custody.”
Circumstantial evidence which pointed to Will’s guilt was not unassailable. Ms.
Simmons reported that Will claimed to have shot a policeman, but she did not tell the
prosecution that story until thirteen months after the murder. No forensic evidence
concretely established how Deputy Hill had been shot. The medical examiner could not
say with certainty how Deputy Hill had been shot or how many shots were fired. Forensic
evidence was possibly consistent with Deputy Hill being shot from behind while
handcuffing Will. All the gunshots were fired from more than two feet away.
A police photographer could not remember if the handcuffs were open or closed
when he approached the scene. Will’s blood on Deputy Hill’s boot was not conclusive
evidence of guilt—it could have landed there when Will was shot in the hand. The police
could not find any of Deputy Hill’s blood on Will. Evidence about bleach was not
irrefutable, particularly because the police never tested Will’s clothes for chemicals.
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Weaknesses in the State’s case were not lost on Will’s trial attorneys. In addition
to pointing out many deficiencies in the evidence, Will’s trial attorneys crafted a defense
that pinned the murder on Rosario. Will’s trial arguments for innocence focused on the
evidentiary blackout period from when Deputy Kelly lost sight of Rosario to when
gunshots rang out. Will argued that this time—which he then gauged to be eighty-seven
seconds—was sufficient for Rosario to have committed the murder. Tr. Vol. 26 at 11819.3 Will interpreted available evidence in a manner which would place Rosario in
proximity to the killing. Will argued that he could not have shot Deputy Hill if restrained
and in custody. Will has also challenged forensic evidence including the gunshot residue
found on one of his hands and the blood found on various items.4 Will tried to undercut
Ms. Simmons’ testimony because she did not tell the police officers about Will’s
statements until soon before trial. Tr. Vol. 25 at 205-07; Tr. Vol. 26 at 73-76, 91-104.
Importantly, Will argued that Rosario’s statements and actions after the murder showed
evidence of his guilt. For example, Rosario’s girlfriend said he was nervous soon after the
murder. Rosario told her “not to say anything to the cops about him because they could
trace it back to what him and [Will] have done.” Tr. Vol. 25 at 180-6, 193, 199.
“As the centerpiece of Will’s defense, Harris County Jail inmate Victor Coronado
testified that Rosario confessed to him.” Will v. Thaler, 2011 WL 864799, at *2 (S.D. Tex.
At trial, the State argued that Rosario only had eight seconds to circle around to where Will was “in
custody.” Tr. Vo. 26 at 115-20. Respondent now states that “[t]he most straightforward interpretation of
Kelly’s account suggests Rosario had about fo[]rty-four seconds to make it across the field to Hill and shoot
him.” (Docket Entry No. 42 at 58).
3
4
Tr. Vol. 24 at 114-118 (the only gunshot residue found on Will was a result of his gunshot wound,
not firing a gun); Tr. Vol. 24 at 31 (no blood from Deputy Hill was found on Will); Tr. Vol. 24 at 24-25, 32,
35-36 (only a single, small spot of Will’s blood was found on Deputy Hill).
6
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2011).5 Rosario allegedly told Coronado that “he had no choice but to shoot the cop,” but
it was “just instinct.” Rosario allegedly told Coronado that he used “a big .40, .40 mag,”
and there “was nothing anybody could do to him” because Rosario’s father was a police
officer. Tr. Vol. 26 at 5-14. The prosecution did not present any direct evidence that
Coronado had manufactured this story, but nevertheless strongly questioned his credibility.
Despite questions raised by the trial evidence, the jury found Will guilty of capital
murder. He received a death sentence in a separate punishment hearing.
III.
Post-Trial Developments
Throughout the years, Will has repeatedly recast the trial evidence using many of
the same themes from trial, supported by evidence of various levels of credibility. Will has
intensively analyzed each moment from when the police arrived until the two men fled,
proposing different versions of what could have happened. Taken together, however, all
Will’s challenges follow the basic themes developed for trial, even if they rely on different
interpretations of the trial evidence or new evidentiary information. Throughout the postconviction process, Will’s challenges have centered on one consistent refrain: Rosario was
the true killer.
Will’s attribution of the crime to Rosario has depended on his interpretation of
physical evidence and the testimony of those to whom Rosario allegedly confessed. Over
the years, Will’s case has evolved, with his theory of how the murder happened pivoting
as new witnesses came forward or new evidence developed. Yet Will has woven the
consistent thread of Rosario’s alleged admissions into an unsettling tapestry of evidence.
Trial counsel’s opening argument asserted: “Ultimately in jail, although he has not been candid with
law enforcement, Mr. Rosario brags to those people around him, brags about the killing and tells them facts
that only the killer would know.” Tr. Vol. 17 at 43.
5
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Will based his first federal petition on affidavits he secured from three inmates—
Antonio Riojas, Rene Gonzales, and Richard Lucio—each of whom said that, while they
were incarcerated with Rosario, he confessed to committing the murder. Will subsequently
filed a Motion to Alter or Amend pursuant to Rule 59(e) of the Federal Rules of Civil
Procedure (Docket Entry No. 46, 47) based on an affidavit from his former girlfriend
Brenda Venegas. Venegas related statements Rosario allegedly made soon after the
murder. Will v. Thaler, 2012 WL 135590 at *6-7 (S.D. Tex. 2012). But none of those
witnesses was credible. The testimony from inmates and Venegas did not provide a basis
for habeas relief.6
IV.
2013 Successive State Habeas Application
In 2013, Will began a new state-court challenge which has led to the instant
petition. (Will v. Davis, 4:07-cv-1000, Docket Entry Nos. 135-36). The pleadings Will
filed in state court have led to the instant federal petition. Will’s application in the Texas
Court of Criminal Appeals raised three claims: (1) actual-innocence; (2) the suppression of
6
AError! Main Document Only.fter the appointment of new federal counsel, Will filed an
Emergency Motion for Relief asking the Court to vacate its judgment and prior orders pursuant to Federal
Rule of Civil Procedure 60(b). (Docket Entry No. 102). Will’s motion made two arguments: (1) that Will’s
state habeas counsel provided inadequate representation; and (2) that Will's previous attorneys, both in state
and federal court, failed to advance certain arguments that would inculpate Rosario. The motion, however,
raised a new claim by arguing that trial counsel should have presented inconsistent statements by Rosario to
the jury and examined forensic evidence on Will’s jacket. Will based his ineffective-assistance-of-habeascounsel claim on Martinez v. Ryan, a case pending before the United States Supreme Court. On March 19,
2012, the Court dismissed Will’s motion for want of jurisdiction. (Docket Entry No. 106). The Court found
that Will’s Rule 60(b) Motion was a successive petition for which it had not authority to consider. Will filed
a Notice of Appeal that same day. (Docket Entry No. 107). On March 20, 2012, the Supreme Court issued
an opinion in Martinez v. Ryan, 566 U.S. 1 (2012). The Fifth Circuit entered an order remanding Will’s case
to allow consideration of the Martinez ruling. This Court reopened the case for consideration of Will’s
Martinez arguments. (Docket Entry 140). The Court denied Rule 60(b) relief on September 26, 2018.
(Docket Entry No. 163). Will did not directly appeal this Court’s determination regarding the first two claims
in his federal petition. Instead, Will’s appeal focused on whether this Court erred by finding that his Rule
60(b) motion based on Martinez constituted a successive federal petition. In an opinion that did not need to
reach this Court’s decisions about the credibility or reliability of the three inmate witnesses or Venegas, the
Fifth Circuit affirmed. Will v. Lumpkin, 978 F.3d 933 (5th Cir. 2020).
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material evidence; and (3) alternatively, trial counsel should have uncovered the documents
allegedly suppressed by the State. (Docket No. 57, Ex. 71 at 2-3).
Will’s Brady claim primarily centered on the suppression of two pieces of evidence
referred to as the Hit Document and Schifani Report.
Will has summarized these
documents as follows:
The first was a Harris County Sheriff’s Office document, which reveals that
the county jail was holding Michael Rosario in a separate section of the
Harris County Jail because Rosario had asked a prison gang to kill Rob Will.
See Ex.1, Michael Rosario Administrative Separation Review Sheet (“Hit
Document”), at 1. Specifically, Rosario’s “Administrative Separation
Review Sheet” states that Rosario’s “Reason For Separation” was that
Rosario was “soliciting [the Texas Syndicate prison gang] to make [a] hit
on co-def. Robt. Will.” See id. The Hit Document also indicates that contact
was made “w[ith] [the Disruptive Group Unit] to visit w[ith] David Cruz
[Texas Syndicate].” Id. Copies of Mr. Cruz’s undisclosed jail records found
in the District Attorney’s case file show that the State knew of his
connection to Rob Will’s case before trial. Compare Ex. 6, David Cruz
Administrative Separation Review Sheet Updated 2-10- 01, at 1, with Ex.
5, David Cruz Administrative Separation Review Sheet Last Updated 4-2701, at 1.
A second document never disclosed to Mr. Will’s defense counsel was a
report by Harris County Sheriff’s Deputy Patricia Schifani. See Ex. 7,
Report of Deputy Patricia Schifani (“Schifani Report”). According to her
report, Deputy Schifani was returning Harris County jail inmates, including
Michael Rosario, from court on December 7, 2000, three days after the
murder.
Rosario looked directly at the mourning badge cover that Deputy Schifani
had been wearing in honor of Deputy Hill and said, “Do you know why you
are wearing that? . . . I am part of the reason you are wearing it, do you
know who I am?” Id. Rosario, the son of a Houston Police Department
officer, then “pointed at his armband caution text which indicated
‘*PROTECTION*’” and said, “I’m high-profile! Do you know who my
father is?” Id.
(Docket No. 37 at 3).
Will fit the allegedly suppressed evidence into a broader narrative about the murder,
most of which echoes his earlier allegations. Independent of the Hit Document and
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Schifani Report which the State had allegedly suppressed, Will’s state habeas application
also relied on the following new evidence to show his innocence:
•
K-9 Report- Shortly after the murder a K-9 Unit bloodhound picked up a
scent from the tool bags that Will and Rosario used before the police foot
chase. Will argued that a report detailing the two tracks taken by the
bloodhound followed a path which Will allegedly never took, but could
place Rosario near the killing. (Docket No. 57, Ex. 71 at 15). Will did not
allege that the State suppressed the K-9 report.
•
New Timetable- At trial, and in all the proceedings since, the parties have
debated the timing of events surrounding the murder. At trial, the
prosecution argued Rosario had only eight seconds to reach and shoot Hill.
The defense argued that he had eighty-seven seconds to do so. Tr. Vol. 26
at 115-20. Using the trial testimony, Will recalculated the time as being
between 26 and 104 seconds in which Rosario could have reached where
the murder occurred. (Docket No. 57, Ex. 71 at 17).
•
Forensic Evidence- Will reassessed the forensic evidence in an effort to pin
the murder on Rosario. Specifically, Will looked at (1) the gunshot wound
to the back of Hill’s head; (2) a reassessment of Will’s evolving stories
about how he was freed from handcuffs; (3) gunshot residue detected on
Will’s left-hand glove (but not his right); and (4) blood from which DNA
could not be extracted on clothing abandoned around 700 feet east of Hill’s
body. (Docket No. 57, Ex. 71 at 19-22).
•
Rosario’s Actions After the Murder- Will readdressed Rosario’s actions
after the murder and alleges that they indicate his guilt. (Docket No. 57,
Ex. 71 at 22-23).
•
Ms. Simmons’ Testimony- Will alleged that Ms. Simmons did not say he
had confessed to the murder until long after the crime. (Docket No. 57, Ex.
71 at 23-25). In state habeas court, Will based this argument on an affidavit
in which Ms. Simmons’ boyfriend explained that the police had shown her
gruesome photographs of the victim’s body. While the connection between
that undisclosed information and her trial testimony is somewhat unclear,
Will apparently speculated that the reaction to the photographs caused her
to invent a story that he had confessed when he stole her car.7
Will claimed that Cassandra Simmons, the witness who testified at trial that Will told her “he had
just shot a policeman,” did not tell that to the police initially. Will claimed that the prosecution did not
divulge that, on the eve of trial, it showed Ms. Simmons “very gruesome and extremely graphic” photographs
of the slain victim. (Docket No. 57, Ex. 71 at 25). Will claimed that the photos “no doubt biased her
testimony, causing her to recount a statement that, the evidence shows, was not part of her actual recollection
of the events.” (Docket No. 57, Ex. 71 at 25). As discussed below, the parties dispute whether the suppression
of the evidence that the police had shown these photographs to Ms. Simmons is properly encompassed within
7
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On February 5, 2014, the Court of Criminal Appeals entered an order remanding
the subsequent state habeas application. The trial-level habeas court considered Will’s
evidence without holding an evidentiary hearing. On January 26, 2015, the trial court
entered a 49-page-long recommendation containing explicit findings of fact and
conclusions of law. (Docket No. 57, Ex. 74 at 701-49). The trial-court findings addressed
Will’s new evidence and considered its effect in the larger context of all the record
evidence. On that basis, the trial-level habeas court recommended that relief be denied.
The Court of Criminal Appeals reviewed the record and, on November 25, 2015,
adopted the lower court’s findings with limited exceptions. Ex parte Will, WR-63,590-03
(Tex. Crim. App. Nov. 25, 2015); Docket Entry No. 37, Ex. 38.
V.
Will’s Successive Federal Petition
On November 27, 2015, Will filed a federal petition which mirrored his successive
state habeas application. (Docket Entry No. 1). Will’s 2015 petition raised three grounds
for relief: (1) his actual innocence should forgive any procedural impediments to federal
review and offer an actionable basis for habeas relief; (2) the State violated his
constitutional rights under Brady; and (3) alternatively, trial counsel provided
constitutionally deficient representation by not discovering the material on which Will
bases his Brady claim. Will premised all three claims on evidence that the State allegedly
did not provide to the defense before trial.
AEDPA generally anticipates a “one bite at the post-conviction apple” approach to
federal habeas review. United States v. Barrett, 178 F.3d 34, 57 (1st Cir. 1997). AEDPA
the scope of Will’s Brady claim. The state habeas court considered this allegedly suppressed evidence as a
component of Will’s Brady claim.
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protects against abuse of the habeas writ by mandating that, “if the prisoner asserts a claim
that was not presented in a previous petition, the claim must be dismissed unless it falls
within one of two narrow exceptions.” Tyler v. Cain, 533 U.S. 656, 661 (2001).
Before his successive action will continue, an inmate must prove:
(1)
the factual predicate for the claim could not have been discovered
previously through the exercise of due diligence; and
(2)
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).
An inmate wishing to file a successive federal petition “must get through two gates
before the merits of the motion can be considered.” Reyes-Requena v. United States, 243
F.3d 893, 899 (5th Cir. 2001) (quoting Bennett v. United States, 119 F.3d 468, 470 (7th
Cir. 1997). As the “first gate,” AEDPA established a pre-authorization procedure where
an inmate must first seek approval for filing from a three-judge panel of the circuit court.
See 28 U.S.C. § 2244(3). The circuit court assesses whether to allow the filing of a
successive petition in the lower court. Reyes-Requena, 243 F.3d at 899. A circuit court
preliminarily authorizes the filing of a successive action if a petitioner shows that it is
“reasonably likely” that his successive petition meets section 2244(b)’s “stringent
requirements.” In re Morris, 328 F.3d 739, 740 (5th Cir. 2003).
On September 25, 2017, this Court transferred Will’s successive federal petition
to the Fifth Circuit. (Docket Entry No. 20). There, Will abandoned the ineffectiveassistance-of-counsel claim he had raised before this Court.
Will instead seeks
authorization to file two claims in the district court: (1) that “the State violated his due
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process rights under Brady v. Maryland by withholding material exculpatory evidence”;
and (2) that “his conviction and death sentence and continued incarceration violate his
Eighth and Fourteenth Amendment rights because he is actually innocent.” Brief Of
Petitioner-Appellant Robert Gene Will, II and Motion for an Order Authorizing Filing and
Consideration of Second Petition, In re Will, 17-70022, at 26.
The Fifth Circuit found that Will passed through the first gate by making “a prima
facie showing that his Brady claim was not previously presented, that the evidence could
not have been discovered through due diligence, and that his claim has merit[.]” Will, 970
F.3d at 548. On August 5, 2020, the Fifth Circuit entered an order authorizing Will to file
a successive petition in the district court:
Based on the probative value of the previously withheld evidence, Will has
made a sufficient showing to proceed to a fuller review. He’s demonstrated
it is reasonably likely that, after hearing the new evidence alongside the old
evidence, every reasonable juror would have some level of reasonable
doubt. We express no view on whether Will should ultimately prevail on
the merits or whether he is actually innocent. We hold only that Will has
made a prima facie showing that his Brady claim deserves fuller
consideration. He may be right. He may be wrong. But he should be heard.
Id. at 547-48 (footnotes omitted).
VI.
District Court Proceedings
On December 9, 2020, Will filed an amended petition in this Court. (Docket Entry
No. 37). Respondent moved to dismiss. (Docket Entry No. 42). Respondent argued that
Will had not shown that his claims could pass through the second AEDPA gateway to a
merits review. On the same day he filed a response to the motion to dismiss, Will moved
for discovery and an evidentiary hearing. (Docket Entry Nos. 59, 60).
On September 20, 2022, the Court entered an Order denying the motion to dismiss
subject to sua sponte reconsideration. (Docket Entry No. 67). The Court needed additional
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briefing from the parties before deciding whether Will’s successive petition may proceed
to adjudication. The parties have responded to the court-ordered briefing. (Docket Entry
Nos. 73, 74, 75, and 77). The question of whether Will has met the standards for successive
habeas review is ripe.
VII.
Evidence Developed on Federal Habeas Review
Before turning to the question of AEDPA’s successive-petition review, the Court
pauses to comment on evidence which has come to light only recently. After the Fifth
Circuit remanded this case, the State disclosed many documents that it had withheld from
the defense for over two decades. On January 6, 2022, Will’s current attorneys requested
another review of the Harris County District Attorney’s case file. After reviewing the files,
the District Attorney’s Office revealed a document which had been withheld as “work
product.”8 On June 23, 2022, the State turned over 250 pages of documents which had
never been seen by the defense despite earlier attempts to see the State’s full file.
In his opposed motion for discovery (Docket Entry No. 59), Will outlines material
which the State turned over to him only recently:
1.
A note in which a police officer recounted his encounter with
Rosario at the scene the morning of Deputy Hill’s murder. Rosario
told the officer that his “dad is HPD.”
2.
Typewritten notes of an interview with a maintenance man at the
apartment where Will lived with his girlfriend, Venegas. The
maintenance man reported that Venegas said that “she was not sure
if Robert had killed the deputy because Rosario had blood on his
clothes and had washed them at her apartment that same morning.”
The work-product doctrine protects “documents and tangible things that are prepared in anticipation
of litigation or for trial by or for another party or its representative [] including the other party's attorney . . .
.” Fed. R. Civ. P. 26(b)(3). “The privilege derived from the work-product doctrine is not absolute.” United
States v. Nobles, 422 U.S. 225, 239 (1975). “Because Brady is based on the Constitution, it overrides courtmade rules of procedure. Thus, the work-product immunity for discovery . . . prohibits discovery . . . but it
does not alter the prosecutor’s duty to disclose material that is within Brady.” See 2 Charles Alan Wright,
Federal Practice and Procedure § 254.2 (3d ed. 2000); see also Dickson v. Quarterman, 462 F.3d 470, 479
n.7 (5th Cir. 2006).
8
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3.
An affidavit from the maintenance man which mentions that law
enforcement had interviewed him after the murder but omits
mention of his conversation with Venegas
4.
An email exchange between the lead prosecutor and a police officer.
The email indicates that the officer had spoken with Will’s trial
counsel. The email says: “Will has reported that he has had several
meetings with Stricklin [sic] in the jail. Will has told his lawyer that
Stricklin [sic] has asked him about the shooting and his actions at
the shooting. Will is sticking with the story that Rosario is the
shooter. Ms. Parsons knew Deputy Strickland had spoken with
several inmates about Rosario.”
5.
A handwritten note labeled “Stricklin” which indicates that a
prosecutor spoke with Deputy Strickland and knew that he had
interviewed four inmates about Rosario, not two like she said in
open court. It also indicates that the prosecution was aware that the
defense only knew about two of the inmates. The note allegedly
indicates that the prosecution took seriously the possibility of
Rosario ordering a hit.
6.
A handwritten note with “Rene Gonzalez” at the top allegedly
indicating that Will asked Gonzales to tell law enforcement about
the hit.
7.
A handwritten note indicating that Texas Syndicate members
confirmed that Rosario had put a hit on Will because Will accused
him of being the shooter.
(Docket Entry No. 59 at 10-18). The parties also debate whether these new revelations
merely supplement the Brady claim in Will’s successive petition or whether they give rise
to entirely new Brady claims.9
This Court has elsewhere noted concerns about the Harris County District
Attorney’s Office using the “work-product doctrine . . . to hide relevant and exculpatory
information from the defense.” Prible v. Davis, 2020 WL 2563544, at n.21 (S.D. Tex.
2020), vacated sub nom. Prible v. Lumpkin, 43 F.4th 501 (5th Cir. 2022). Respondent has
9
Will has not yet asked the Court to allow a return to state court to exhaust any issues relating to this
new information.
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not explained why this information was withheld from Will for decades. It appears that
the newly disclosed material could have been helpful to Will at trial and during his later
post-conviction state-court litigation.
Will wants discovery related to these belated
disclosures by the State.
Second Gatekeeper Review Standard
The law is clear that the first gateway made by the circuit court is a prima facie
inquiry subject only to threshold consideration. Congress gave the circuit courts only a
short timeline for their initial-gatekeeper review, 28 U.S.C. § 2244(b)(3)(D) (“30 days”),
which limits the circuit court review in various ways. For example, the abbreviated
timeline means the circuit decision likely will not rest on a full review of the state court
record. See In re McDonald, 514 F.3d 539, 543 (6th Cir. 2008) (“When considering
motions pursuant to 28 U.S.C. § 2244(b) for permission to file a second or successive
habeas corpus petition, the court does not have a developed record because the new petition
has not yet been considered by a district court.”). As one circuit has observed:
The typical authorization proceeding is an ex parte matter, with little if any
factual record, that is to be decided—conclusively, if denied—in thirty
days. These parameters indicate a streamlined procedure with a narrow
focus on a fixed set of pre-specified and easily assessed criteria, which
would be disrupted by engaging the manifold merits issues raised by
potentially complex, fact-bound constitutional claims.
Ochoa v. Sirmons, 485 F.3d 538, 542 (10th Cir. 2007).
The circuit court’s brief examination precludes a deep-dive into the merits of
habeas claims. The circuit court’s review only looks to whether an inmate has made a
prima facie showing of compliance with section 2244(b)(3)(A).
See 28 U.S.C. §
2244(b)(3)(C) (“The court of appeals may authorize the filing of a second or successive
application only if it determines that the application makes a prima facie showing that the
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application satisfies the requirements of this subsection.”). Thus, the circuit court’s
determination is “tentative”—it is only a prima facie assessment of a matter which a district
court must conclusively decide. Reyes-Requena, 243 F.3d at 899 (5th Cir. 2001) (quoting
Bennett, 119 F.3d at 469).
AEDPA makes the district court a “second-gatekeeper” that “conduct[s] a
‘thorough’ review to determine if the [petition] ‘conclusively’ demonstrates that it does not
meet AEDPA’s second or successive motion requirements.” Reyes-Requena, 243 F.3d at
898-99 (quoting United States v. Villa-Gonzalez, 208 F.3d 1160, 1165 (9th Cir. 2000)); see
28 U.S.C. § 2244(b)(4). The Fifth Circuit’s prima facie decision carries no weight; the
district court must “decide the § 2244(b)(1) & (2) issues fresh, or in the legal vernacular,
de novo.” Jordan v. Secretary, Dep’t of Corrections, 485 F.3d 1351, 1358 (11th Cir. 2007).
A district court’s duty is deeper and more pointed than the circuit court’s prima
facie review. “A district court shall dismiss any claim” in a successive petition “unless the
applicant shows that the claim satisfies the requirements of this section.” 28 U.S.C. §
2244(b)(4) (emphasis added). This Court’s focus is on whether Will has met his burden
under the section 2244(b)(2).
Analysis
I.
Issues Available For Review
Under AEDPA’s plain language, a circuit court preliminarily authorizes the filing
of an “application,” not of individual claims. 28 U.S.C. § 2244(b)(3). Taken broadly,
Will’s petition raises two claims: a substantive claim of actual innocence and a Brady
claim. In contrast with the circuit court’s role, this Court’s review is not on whether Will’s
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whole petition should qualify for successive review. This Court must examine whether
each claim warrants additional consideration. See 28 U.S.C. § 2244(b)(4).
Will’s substantive actual-innocence claim does not pass through the second
gateway to further review. “Actual innocence” is not an independent ground for habeas
corpus relief. See Herrera v. Collins, 506 U.S. 390, 400 (1993); In re Raby, 925 F.3d 749,
755 (5th Cir. 2019); Foster v. Quarterman, 466 F.3d 359, 367 (5th Cir. 2006). Insofar as
Will argues that his actual innocence entitles him to relief separate from any other
constitutional issue, he does not raise a cognizable habeas claim.
The Court must decide the contours of the Brady claim Will raises on successive
federal review. The parties debate whether Will’s Brady claim properly encompasses the
alleged suppression of evidence related to Ms. Simmons’s testimony.
Specifically,
Respondent contends that Will failed to raise properly the argument that the State
unlawfully failed to disclose that prosecutors showed Ms. Simmons graphic photographs
of Deputy Hill’s body just before she testified about Will’s statement.
Respondent’s argument lacks merit. Will has raised this argument consistently in
his briefing. See Docket Entry No. 1 at 10, 20-22 (Original Petition); Docket Entry No. 37
at 22, 33-35 (Amended Petition); Brief Of Petitioner-Appellant Robert Gene Will, II and
Motion for an Order Authorizing Filing and Consideration of Second Petition, In re Will,
17-70022, at 55-57 (Fifth Circuit Application). And his presentation of this argument
closely resembles his presentation of the same argument in state court, which prompted the
state court to examine this argument at length. Docket No. 57, Ex. 71 at 23-25; Docket
Entry No. 57, Ex. 74 at 742-44. It is true that Will provides a case citation to Brady only in
a footnote. But the contours of his argument are clear in his initial petition, his amended
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petition, and his motion for authorization filed in the Fifth Circuit. The Court finds that
the suppression of evidence surrounding Ms. Simmons’s testimony is properly
encompassed within the scope of Will’s Brady claim.
Will asks this Court to allow extensive factual development and an evidentiary
hearing before deciding whether he has passed through the second gateway. AEDPA
sharply restricts the introduction of new evidence in any federal habeas proceeding. For
the purposes of the limited question currently before the Court, the section 2244(b)(2)(B)
review only needs to focus on the state court record. With that focus, the Court finds that
the state court record provides an adequate basis to decide if Will has met his AEDPA
burden.
With that in mind, the Court looks to Will’s briefing to see if he has shown (1) due
diligence and (2) actual innocence that will allow his claim to proceed.
II.
Due Diligence
This Court must dismiss this case if Will cannot show that “the factual predicate
for [his Brady] claim could not have been discovered previously through the exercise of
due diligence.” 28 U.S.C. § 2244(b)(2)(B)(i). The Fifth Circuit has held that a court
measures an inmate’s diligence under section 2244(b)(2)(B)(i) “objectively, not by the
subjective diligence of the petitioner.” Will, 970 F.3d at 541-42 (quoting Blackman, 909
F.3d at 779); see also Johnson v. Dretke, 442 F.3d 901, 908 (5th Cir. 2006) (“[T]he plain
text of § 2244(b)(2)(B) suggests that due diligence is measured against an objective
standard, as opposed to the subjective diligence of the particular petitioner of record.”). A
court asks if an inmate who acted diligently could have discovered “the factual basis for
the new claim” and then “included [it] in the first petition.” In re Davila, 888 F.3d 179,
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184 (5th Cir. 2018); see also Johnson, 442 F.3d at 910 (focusing the due diligence inquiry
on the time “before the filing of the first habeas petition”).
A Brady claim requires a showing that the prosecution suppressed evidence. See
Pippin v. Dretke, 434 F.3d 782, 789 (5th Cir. 2005) (observing that a Brady claim requires
a three-part showing: “(1) the prosecutor suppressed evidence, (2) favorable to the defense,
and (3) material to guilt or punishment”). An inmate’s claim that the State suppressed
evidence has some overlap with an inmate’s duty under AEDPA to show he could not have
raised a claim earlier. Still, the substance of a Brady claim and the AEDPA showing are
separate. The Fifth Circuit has held that section 2244(b)(2)(B)(i) “must be resolved prior
to, and independently of, consideration of the similar elements of a Brady claim.” Johnson,
442 F.3d at 909.10
Will provides a timeline of events which he alleges shows sufficient diligence to
meet the requirements of section 2244(b)(2)(B)(i). (Docket Entry No. 37 at 10-12). To
summarize, the trial prosecutors promised to turn over any Brady material. Will’s trial
attorneys specifically requested information about Rosario. Will secured an affidavit from
an attorney with the Harris County District Attorney’s Office stating that both Brady and
the Office’s open-file policy would have required disclosure of the challenged documents.
The officer who prepared the Hit Document refused to comply with a subpoena duces
tecum and testified in court that he did not have any documents relating to Will's case.
Even though several attorneys sought records and reviewed the prosecutor’s files, no one
discovered the Hit Document or Schifani Report until after Will filed his federal petition.
(Docket Entry No. 37 at 12).
The Court notes that, when deciding Will’s Brady claim, the state courts assumed that the State had
withheld the two challenged documents. (Docket Entry 57, Ex. 74 at 738-39).
10
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Aside from Will’s general diligence seeking material, a reasonable person would
have no specific reason to suspect that the challenged documents existed, much less that
they had been withheld. See Will, 970 F.3d at 542 n. 23 (“[W]here a defendant has actual
knowledge that exculpatory evidence exists—such as when a defendant knows that a
witness provided false, or later recanted, incriminating testimony—the due diligence
requirement cannot be satisfied if that evidence was not pursued.”).
In the motion to dismiss, Respondent provides a counterposing timeline which
identifies points at which, assuming that the State had not suppressed the material, an
attorney could have made efforts to find the two documents. Respondent speculates that
Will should have known that Deputy R.W. Strickland (the author of the Hit Document)
had lied and withheld documents from the defense. Respondent also suggests that the
documents in question were in the State’s files all along and that the initial state and federal
attorneys just did not look hard enough. (Docket Entry No. 42 at 23, n. 14).
But the Supreme Court has never held that “defendants must scavenge for hints of
undisclosed Brady material when the prosecution represents that all such material has been
disclosed.” Banks v. Dretke, 540 U.S. 668, 695 (2004). The State told that defense that it
had an open file policy; the defense could reasonably rely on that promise See Strickler v.
Green, 527 U.S. 263, 283 n.23 (1999) (“[I]f a prosecutor asserts that he complies with
Brady through an open file policy, defense counsel may reasonably rely on that file to
contain all materials the State is constitutionally obligated to disclose under Brady.”); Smith
v. Maggio, 696 F.2d 365, 367 (5th Cir. 1983) (“Counsel had no duty to file pretrial motions,
because the prosecutor established an open file policy that made the filing of discovery
motions or Brady requests pointless.”). Will searched the prosecution’s records and made
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efforts to secure information about Rosario. Despite generalized concerns that Deputy
Strickland withheld material, nothing suggests that a reasonable attorney should have been
specifically aware of the two challenged documents and made efforts to discover them.
The record does not show when the two challenged documents were placed in the State’s
files or how they got there, but it appears that Will made reasonable efforts to find relevant
information.
The Court finds that Will has met section 2244(b)(2)(B)(i)’s requirement that “the
factual predicate for [his Brady] claim could not have been discovered previously through
the exercise of due diligence.” While the analysis above travels a somewhat-similar path,
the Court emphasizes that this is not a finding that the prosecution suppressed evidence
under Brady. Ultimate questions about whether Will has proven the merits of his Brady
claim must wait until full consideration of the facts and record. Still, the Court finds that
Will has met the showing necessary for this case to move forward.
III.
AEDPA’s Actual-Innocence Inquiry
After an inmate has shown diligence under section 2244(b)(2)(B)(i), he must then
show 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
constitutional error, no reasonable factfinder would have found the applicant guilty of the
underlying offense.” 28 U.S.C. § 2244(b)(2)(B)(ii). The Supreme Court has stated that
section 2244(b)(2)(B)(ii) is a “modified version” of habeas law’s miscarriage of justice
exception—in other words, a revised actual-innocence inquiry. See McQuiggin v. Perkins,
569 U.S. 383, 397 (2013). The parties’ original briefing failed to recognize how AEDPA’s
text modified the actual-innocence standard. The Court ordered the parties to brief the law
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on this portion of section 2244(b)(2)(B)(ii). The parties’ subsequent briefing debates how
to interpret various provisions of the relevant statute.
Understanding the proper interpretation of a statute “almost always start[s] with a
careful consideration of the text.” Brnovich v. Democratic National Committee, ___ U.S.
___, 141 S. Ct. 2321, 2337 (2021). Here, the successiveness question is best understood
by placing Will’s arguments in the context of each independent phrase from section
2244(b)(2)(B)(ii). The Court will examine whether: (A) the facts underlying the claim, (B)
if proven and (C) viewed in light of the evidence as a whole, would be sufficient to establish
by clear and convincing evidence that, (D) but for constitutional error, (E) no reasonable
factfinder would have found the applicant guilty of the underlying offense.
A.
“Facts Underlying the Claim”
Will’s new Brady claim primarily relies on two pieces of evidence: the Hit
Document and the Schifani Report.11 In tentatively authorizing successive proceedings,
the Fifth Circuit summarized the “Hit document” as follows:
. . . the Hit Document . . . reveals that Rosario was placed in administrative
separation for soliciting another to ‘make a hit’ on Will. The timing of the
document is important. It suggests that Rosario attempted to have Will, the
only other witness to Deputy Hill's murder, killed prior to trial—before Will
could testify against him. Though this evidence is not immune from attack,
it does provide convincing evidence that Rosario—not Will—had testimony
to bury.
Will, 970 F.3d at 546.12
11
As discussed above, these are not the only pieces of evidence on which Will relies. He also focuses
on the suppression of evidence that the police showed Ms. Simmons graphic pictures of Deputy Hill’s body.
Further, the State disclosed additional evidence only after Will filed his Petition. Nevertheless, this Order
focuses on these two main pieces of evidence because, even without more, they are enough for Will’s Petition
to proceed through this stage.
It is unclear what the Fifth Circuit meant by the phrase “before Will could testify against him.”
Nothing in the record suggests that the State planned to call Will as a witness against Rosario in his trial for
12
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The Schifani Report is a memorandum Deputy Patricia Schifani wrote on
December 9, 2000, regarding an interchange with Rosario two days before. Will cites two
statements in that report as evidence that Rosario was the one who shot Officer Hill: (1)
Rosario claimed to be “part of the reason” Deputy Schifani was wearing a mourning badge
cover in honor of Deputy Hill and (2) “pointed at his armband caution text which indicated
‘*PROTECTION*’” and said, “I’m high-profile! Do you know who my father is?” Will
describes the inferences that he alleges a jury could make based on the Schifani Report:
Rosario was not the distant bystander to Deputy Hill’s murder that the State
described throughout trial; he confessed his active participation in the
shooting to Deputy Schifani, relying on the perceived protection of his
father, and then sought to kill the only witness to his crime, Rob Will. . . .
[T]his is “convincing evidence” that Mr. Will was not the shooter.
(Docket Entry No. 37 at 4).13
B.
“If Proven . . .”
AEDPA asks the Court to consider how the “facts underlying the claim” would
appear “if proven.” 28 U.S.C. § 2244(b)(2)(B)(ii). Respondent interprets this phrase as
imposing a burden “to ‘prove’ the facts underlying his claim . . . .” (Docket Entry No. 73
at 4); see also (Docket Entry No. 73 at 8) (referring to “the petitioner’s requirement to
‘prove’ facts”). But this is not the adjudicative stage. Section 2244(b)(2)(B)(ii) only
mentions proof as part of a broader statement: the Court considers the evidence “if proven
and viewed in light of the evidence as a whole.” The Court then looks to see what it “would
auto theft. Possibly, the Fifth Circuit meant that Rosario anticipated that Will would take the stand in his
own capital murder case and would blame the killing on Rosario.
13
In making that statement, however, Will misstates the opinion by the Fifth Circuit preliminarily
authorizing these proceedings. Will says, “As the court of appeals held, this is ‘convincing evidence’ that
Mr. Will was not the shooter.” (Docket Entry No. 37 at 4). The Fifth Circuit, however, actually stated:
“Though this evidence is not immune from attack, it does provide convincing evidence that Rosario—not
Will—had testimony to bury.” Will, 970 F.3d at 546 (emphasis added).
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establish.” Thus, section 2244(b)(2)(B)(ii) contains a conditional phrase. A court looks at
an inmate’s facts “if proven” and does so to decide if they “would be” (not, “are”) sufficient
to convince a jury that he is not guilty.
The inquiry at this stage warrants comparison to Fed. R. Civ. P. 12(b)(6) under
which a claim survives a motion to dismiss when the plaintiff raises any set of facts that, if
proven at trial, would entitle them to recover. See, e.g., Hamilton v. United Healthcare of
Louisiana, Inc., 310 F.3d 385, 388 (5th Cir. 2002) (“Rule 12(b)(6) motions should not be
granted unless it appears beyond a doubt that the plaintiff can prove no set of facts in
support of his claim which would entitle him to relief.”) (quotation omitted); Babb v.
Dorman, 33 F.3d 472, 475 (5th Cir. 1994) (“To survive a motion to dismiss in cases where
the qualified immunity defense is raised, a plaintiff must state facts, which if proven, would
defeat the defense.”). Similar to the Rule 12(b)(6) inquiry, some circuits have explicitly
stated a court accepts a petitioner’s allegations as true under section 2244(b)(2)(B)(ii). See
In re Bolin, 811 F.3d 403, 408 (11th Cir. 2016) (“[H]e must allege newly discovered facts
that, taken as true, establish a constitutional error.”); In re Boshears, 110 F.3d 1538, 1541
(11th Cir. 1997) (observing that section 2244(b)(2)(B)(ii) require a court to “accept [an
inmate’s facts] as true for purposes of evaluating the application”).
All along, Will has attributed the shooting to Rosario. If proven, the underlying
allegations in Will’s successive petition contain a confession by Rosario that he had a role
in the killing. Will then supports that evidence with a document showing that Rosario
ordered a hit on him, presumably indicating that Rosario wanted to kill the only witness
who saw him kill a police officer. If proven, the evidence underlying Will’s successive
petition may be the strongest yet implicating Rosario in the murder.
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C.
“Viewed in Light of the Evidence as a Whole”
After isolating the evidence which Will wishes to prove, AEDPA asks that it be
“viewed in light of the evidence as a whole . . . .” 28 U.S.C. § 2244(b)(2)(B)(ii). The
parties debate what exactly evidence constitutes “the whole.” This question has a practical
application in this case. Respondent wants this Court to confine its analysis to the evidence
specifically underlying Will’s successive Brady claim and the trial court record. Will, on
the other hand, asks for an expansive review which includes his new Brady claim; evidence
from his state habeas proceedings which is external to his Brady claim, such as K-9 tracking
evidence; and evidence which has come to light since he came to federal court, such as the
material which the State kept in its “work product” folder.
1.
Pre-AEDPA Supreme Court Law
Courts have looked to the Supreme Court’s pre-AEDPA actual-innocence law for
guidance in interpreting section 2244(b)(2)(B)(ii). Before AEDPA, the Supreme Court
recognized two different actual-innocence standards. First, federal courts considered an
inmate’s innocence of his conviction under the “fundamental miscarriage of justice”
standard found in Supreme Court cases such as Schlup v. Delo, 513 U.S. 298 (1995). The
Schlup standard broadly allows an inmate to “establish through new and reliable evidence
that it was more likely than not that no reasonable juror would have convicted him in the
light of the new evidence.” Woodfox v. Cain, 609 F.3d 774, 794 (5th Cir. 2010) (internal
quotation marks and citation omitted). Under that standard, a “habeas court must consider
all the evidence, old and new, incriminating and exculpatory, without regard to whether it
would necessarily be admitted under rules of admissibility that would govern at trial.”
House v. Bell, 547 U.S. 518, 537 (2006) (internal quotation marks and citation omitted).
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Second, the Supreme Court adopted a stricter review of innocence when an inmate
alleged actual innocence of a punishment. To show “actual innocence” of a death sentence,
the Supreme Court required inmates to “show by clear and convincing evidence that, but
for a constitutional error, no reasonable juror would have found the petitioner eligible for
the death penalty under the applicable state law.” Sawyer v. Whitley, 505 U.S. 333, 336
(1992).
The “more stringent Sawyer standard” contains two features that differ
significantly from the Schlup standard. Schlup, 513 U.S. at 326. First, Sawyer imposed a
“clear and convincing” requirement which imposes a higher burden of proof than Schlup’s
“more-likely-than-not” standard. See Schlup, 513 U.S. at 327. Second, Sawyer considered
a much narrower range of evidence. See Sawyer, 505 U.S. at 345-46 (“A federal district
judge confronted with a claim of actual innocence may with relative ease determine
whether a submission . . . consists of credible, noncumulative, and admissible evidence
negating the element of intent.”). In contrast to the Schlup review of all available evidence,
Sawyer focuses on “the evidence allegedly kept from the jury due to an alleged
[constitutional] violation.” Sawyer, 505 U.S. at 349.14
2.
AEDPA’s Incorporation of Actual-Innocence Jurisprudence
Congress obviously had the Supreme Court’s actual-innocence jurisprudence in
mind when it enacted AEPDA. Congress transposed portions of the judge-made innocence
Evidence of innocence under Sawyer must focus directly on whether an “defendant [is] eligible for
the death penalty,” not on other “evidence that was prevented from being introduced as a result of a claimed
constitutional error.” Sawyer, 505 U.S. at 347; see also White v. Thaler, 522 F. App’x 226, 233 (5th Cir.
2013). In other words, Sawyer “require[d] petitioners to link their exculpatory evidence to a specific
constitutional error that prevented the jury from adequately considering the evidence.” O’Dell v. Netherland,
95 F.3d 1214, 1247 n.26 (4th Cir. 1996); see also Morris v. Dretke, 90 F. App’x 62, 68 (5th Cir. 2004) (“If .
. . a capital petitioner challenges his death sentence, based on reliable evidence not presented at trial, again
because of constitutional error, the petitioner must show by clear and convincing evidence that no reasonable
juror would have found the petitioner eligible for the death penalty in light of the new evidence.”); Jacobs v.
Scott, 31 F.3d 1319, 1325 (5th Cir. 1994) (finding Sawyer inapplicable if the allegations of innocence are not
tethered to an independent constitutional error).
14
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standards into the new AEDPA requirements for review. Specifically, Congress relied on
actual-innocence law when writing (1) section 2244(b)(2)(B)(ii); (2) section 2254(e)(2)
which establishes the threshold for obtaining an evidentiary hearing on claims the
petitioner failed to develop in state court;15 and (3) section 2255(h)(1) which establishes
the standard for successive motions for federal inmates.16
Congress crafted section 2244(b)(2)(B)(ii) to contain “a strict form of ‘innocence,
roughly equivalent to the Supreme Court’s definition of ‘innocence’ . . . in Sawyer.” In re
Rodriguez, 885 F.3d 915, 918 (5th Cir. 2018); see also Will, 970 F.3d at 543; In re Davila,
888 F.3d 179, 186 (5th Cir. 2018); Johnson, 442 F.3d at 911; 2 Randy Hertz & James S.
Liebman, Federal Habeas Corpus Practice & Procedure § 28.3e, at 1459-60 (5th ed. 2005).
In doing so, “Congress rejected the Schlup standard and reverted to the Sawyer standard
when it enacted § 2244(b)(2)(B).” Rivas v. Fischer, 687 F.3d 514, 541 (2nd Cir. 2012);
see also House, 547 U.S. at 539 (finding the section 2244(e)(2)(B)(ii) standard differs from
the Schlup).
But Congress chose to deviate slightly from the Sawyer review. See In re Webster,
605 F.3d 256, 258-59 (5th Cir. 2010). Sawyer concerned itself with being “eligible for the
death penalty” and section 2244(b)(2)(B)(ii) applied to cases in which the inmate claimed
not to be “guilty of the underlying offense.” See Thompson v. Calderon, 151 F.3d 918,
Section 2254(e)(2) only allows for an evidentiary hearing when “the facts underlying the claim
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.”
15
16
In comparison, Congress amended the statute for federal motions, section 2255(h)(1), to permit a
successive petition if the petitioner puts forward “newly discovered evidence that, if proven and viewed in
light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no
reasonable factfinder would have found the movant guilty of the offense.” 28 U.S.C. § 2255(h)(1). While
likewise based on Sawyer, this standard differs from section 2244(b)(2)(B)(ii) in application to “newly
discovered evidence” and not including the phrase “but for constitutional error.”
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923 (9th Cir. 1998) (noting differences between AEDPA and Sawyer); see also In re
Webster, 605 F.3d 256, 259 n.7 (5th Cir. 2010) (relying on Thompson).17 Also, Congress
introduced a new phrase into Sawyer’s actual-innocence standard a new phrase: the inmate
must focus on “the facts underlying the claim” but “if proven and viewed in light of the
evidence as a whole.”18
3.
Circuit Interpretation of Actual Innocence Requirement
A circuit split exists over how to interpret section 2244(b)(2)(B)(ii)’s actualinnocence requirements. The Fourth and Sixth Circuits suggest that the “evidence as a
whole” language in section 2244(b)(2)(B)(ii) intended to codify a broad Schlup-like review
of all evidence. See Long v. Hooks, 972 F.3d 442, 470 (4th Cir. 2020); Clark v. Warden,
934 F.3d 483, 496 (6th Cir. 2019); United States v. MacDonald, 641 F.3d 596, 612 (4th
Cir. 2011); Lott v. Bagley, 569 F.3d 547 (6th Cir. 2008) (summarily adopting the reasoning
of a district court which had employed Schlup-type review). Those circuits use the Schlup
inquiry and look at all available evidence, old and new, whether admissible at trial or not.
The Tenth Circuit generally treats section 2244(b)(2)(B)(ii) as a codification of the
Sawyer standard. The Tenth Circuit observed that, like Sawyer, section 2244(b)(2)(B)(ii)
“binds together a successive applicant’s claim of actual innocence and his claim of
Congress’ choice of language which extended the breadth of the Sawyer standard raised the question
of whether AEDPA “replaced the Schlup standard with a stricter test based on Sawyer.” House, 547 U.S. at
539. In House, the Supreme Court held that AEDPA did not eviscerate the Schlup standard in one category
of cases: “a first federal habeas petition seeking consideration of defaulted claims based on a showing of
actual innocence.” 547 U.S. at 339. The Supreme Court, however, reached that decision by drawing a
contrast between initial habeas petitions and the places in which Congress inserted language from Sawyer
into AEDPA.
17
“Under the canons of statutory construction, the similarity of the language between Sawyer and §
2244(b)(2)(B)(ii) potentially cuts both ways. On the one hand, the fact that the standards are nearly identical
suggests that Congress intended to codify the Sawyer standard. On the other hand, the slight difference
between the two could be read as suggesting that Congress intended just the opposite: to enact a provision
similar to but more stringent than the Sawyer standard.” Thompson, 151 F.3d at 923.
18
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constitutional error.”
Case v. Hatch, 731 F.3d 1015, 1033-34 (10th Cir. 2013).19
Accordingly, the Tenth Circuit founds “as a textual matter, subparagraph (B)(ii) excludes
the consideration of evidence unconnected to the constitutional error at trial.” Id. Thus,
the Tenth Circuit interprets the “evidence as a whole” language to mean a “factual universe
[that] does not encompass either new facts that became available only after trial, nor does
it include facts not rooted in constitutional errors occurring during trial.” Brian R. Means,
Innocence, Federal Habeas Manual § 11:30 (citing Case, 731 F.3d at 1034, 1038)
(“subparagraph (B)(ii) excludes the consideration of evidence unconnected to the
constitutional error at trial).20
The Eleventh Circuit employs a hybrid standard which holds that an inmate must
make two separate showings: “(1) ‘clear and convincing evidence of actual innocence,’
and (2) another, separate ‘constitutional violation.’” In re Dailey, 949 F.3d 553, 559 (11th
Cir. 2020) (quoting In re Davis, 565 F.3d 810, 823 (11 Cir. 2009). The Eleventh Circuit
calls this “the ‘actual innocence plus’ standard.” In re Everett, 797 F.3d 1282, 1290 (11th
Cir. 2015) (quoting Davis, 565 F.3d at 823).
The Fifth Circuit has not directly confronted the circuit split concerning the
applicable standard. Without significant elaboration the Fifth Circuit has cited the Tenth
Circuit’s standard approvingly. See In re Young, 789 F.3d 518, 529 (5th Cir. 2015).21
The Tenth Circuit found support for “this linkage requirement” in the Supreme Court’s reading of
section 2244(b)(2)(B)(ii) to require that “the facts underlying the [constitutional] claim establish [a
petitioner’s] innocence by clear and convincing evidence.” Calderon v. Thompson, 523 U.S. 538, 558 (1998)
(emphasis added).
19
20
The Eighth Circuit has not engaged in a substantive examination of the question, but has seemingly
adopted an approach similar to the Tenth Circuit. See Rhodes v. Smith, 950 F.3d 1032, 1036 (8th Cir. 2020)
(“[W]e must determine whether this new evidence, when added to the ‘body of evidence produced at trial,’
clearly and convincingly shows no reasonable factfinder would have found Rhodes guilty of murdering his
wife.”).
The Fifth Circuit cited House when stating that it would “consider both the new evidence and the
existing evidence in assessing the likely impact of the Brady material on reasonable jurors.” Will, 970 F.3d
21
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4.
Actual Innocence in this Case
The Court does not need to resolve the circuit split. As discussed below, Will has
met the AEDPA standard under the most restrictive review imposed by the Tenth Circuit.
The Court, therefore, will consider Will’s successive petition under the same “the universe
of facts” as the Tenth Circuit, consisting “only of evidence presented at the time of trial,
adjusted for evidence that would have been admitted or excluded ‘but for constitutional
error’ during trial proceedings.” Case, 731 F.3d at 1034. In other words, the Court will
plug the evidence underlying Will’s Brady claim—taking it for granted that he can prove
that evidence—into the evidence at trial.
D.
“But for Constitutional Error”
AEDPA specifically asks the Court to place Will’s evidence into the jury’s
deliberations as they would have existed “but for” the constitutional error. This inquiry
recenters the focus on an alleged violation of constitutional law, not an existential question
of whether the inmate is innocent or guilty. The phrase “but for” essentially asks why
something did not happen. The question is whether a reasonable jury would have found
the inmate guilty except for the alleged constitutional claim—in other words, asking if the
constitutional error prevented the jury from finding him not guilty. See Jenkins v. Hutton,
137 S. Ct. 1769, 1772 (5th Cir. 2017) (considering similar language from Sawyer to remind
at 543. But the Fifth Circuit was explicit in its own analysis: it “only consider[ed] the evidence that the jury
received. [It was] not factoring in, for example, evidence that was excluded from trial, affidavits or evidence
that were uncovered post-trial, or counsels’ opening and closing statements.” Will, 970 F.3d at 546 n.37.
The Fifth Circuit did not address all facts and arguments Will put before it, but only that from trial and the
evidence related to his Brady claim.
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that the inquiry does not look at “whether the alleged error might have affected the jury’s
verdict,” but analyzes what the jury would have done absent the alleged error).
E.
“Sufficient to Establish by Clear and Convincing Evidence that No
Reasonable Factfinder Would Have Found the Applicant Guilty of the
Underlying Offense”
As the capstone of the AEDPA second-gateway inquiry, an inmate must insert his
new claim into the evidence from trial and show that it “would be sufficient to establish by
clear and convincing evidence that . . . no reasonable factfinder would have found [him]
guilty of the underlying offense.” 28 U.S.C. § 2244(b)(2)(B).
Before considering whether Will has made the showing which would entitle him to
further proceedings, the Court pauses to reiterate that this is not a conclusive determination
of his successive claim. This is only a second gateway, not an adjudication of the merits.
This matter comes before this Court with a richer factual record and fuller legal briefing
than Will could present in the circuit court. Unlike the circuit court which operates under
a statutory timeline in making its prima facie assessment, this Court may perform a more
in-depth probe of the facts and the law. But making too much of this gateway would violate
AEDPA’s text and blur the lines between threshold review and adjudication of the merits.
This Court engages in a “‘thorough’ review,” but only of whether the petition
“‘conclusively’ demonstrates that it does not meet AEDPA’s second or successive motion
requirements.” Reyes-Requena, 243 F.3d at 898-99. The second-gateway review is
independent from an adjudication of the merits.
F.
Will’s Brady Claim Satisfies the Requirements of Section 2244(b)
The Court finds that Will can proceed through the second gateway. This Court
particularly considers Will’s evidence in the context of its long background with the case.
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The Court has previously commented on the “considerable evidence supporting Will’s
innocence” and “total absence of eyewitness testimony or strongly probative forensic
evidence.”
The Court has previously noted “disturbing uncertainties” about Will’s
culpability. Since then, Will has uncovered even more information that would have been
useful to his trial defense team.
All along, it has been clear that Rosario played some part in the events which
resulted in Deputy Hill’s death. The State’s case at trial alleged that his part was only to
flee from police. At trial, the jury heard from a jail inmate who said that Rosario had
claimed responsibility for the killing. The jury’s verdict suggests that they did not believe
his testimony.
The instant petition is far from the first time Will used Rosario’s statements while
incarcerated to call his guilt into question. Inmate testimony has proven important at all
stages of this case. In his initial habeas petition, Will claimed to be actually innocent based
on affidavits from three inmates who were incarcerated in the Harris County Jail at the
same time as Will and Rosario. Will now relies on another inmate witness’ testimony to
covey a familiar refrain: Rosario claimed to have been the killer. And, as before, this
Court’s concern is with the credibility of the evidence Will raises.
The Schifani Report contains a similar admission by Rosario to a second witness,
but one who did not suffer from the credibility concerns that his trial testimony faced.
Assuming for the purposes of this Order that the Schifani Report means what Will says it
does, it shows that Rosario may not have been a distant bystander or fleeing robber, but an
active participant in the shooting. The information in the Hit Document not only supports
that testimony, it also reaffirms its credibility by suggesting that law enforcement officers
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believed that Rosario wanted Will to be killed. Will describes how the Hit Document
would benefit the defense: “Rosario solicited the Texas Syndicate to make a hit on Mr.
Will, Deputy Strickland believed Cruz was involved, the lead detective and lead prosecutor
were also aware of the hit, and the State covered it all up.” (Docket Entry No. 58 at 20-21.)
Taking the two documents together “shows that not long after Rosario admitted playing an
active role in the shooting, he actually attempted to kill the only other witness to the crime.”
(Docket Entry No. 58 at 23).
Will argues that “[t]hroughout trial, the prosecution stressed that the strongest
evidence of Rob Will’s guilt was the contrast between his ‘desperate’ actions to avoid
getting caught and Rosario’s lack of any incriminating conduct after the shooting.”
(Docket Entry No. 74 at 34). In fact, “[i]n the final moment of the State’s closing argument,
the prosecution reached the bottom line of its case: the total lack of eyewitness testimony
or any probative forensic evidence against Rob Will did not matter because the evidence
showed that after the murder, Michael Rosario showed no signs that he was guilty.”
(Docket Entry No. 74 at 34). The jury previously had little reason to find Rosario played
a part in the murder, other than the testimony of one inmate to whom he had allegedly
confessed. With the evidence underlying the new Brady claim, the jury could find support
for the inmate testimony and see reasons to believe that Rosario acted in a guilty manner.
In the context of all the evidence, and considering all the other uncertainties raised by the
trial evidence, Will has shown that his Brady claim passes through AEDPA’s second
gateway. His claims should be heard.
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IV.
Adjudicating Will’s Successive Petition
Passing through the second gateway, Will’s petition may proceed to adjudication.
In doing so, however, Will’s petition falls within other AEDPA restrictions. Will has
exhausted his current Brady claim in state court. The state courts rejected Will’s Brady
claim. In doing so, the state courts made explicit factual findings and legal conclusions.
AEDPA places tight constraints on what the Court may consider and how the Court may
view the state court’s adjudication. For example, the Supreme Court has recently discussed
how section 2254(e)(2) limits a federal court’s ability to hold an evidentiary hearing or
consider new evidence. See Shinn v. Ramirez, ___ U.S. ___, 142 S Ct. 1718, 1739 (2022).
Even so, questions remain unresolved about what evidence may be considered as
the case progresses. The Court expresses concern that the State has only recently turned
over evidence that it had previously withheld as “work product.” Had the State revealed
that information at trial or during the earlier state post-conviction proceedings, the state
courts could have factored it into a discussion of Will’s current Brady claim. It seems
unfair to allow the State the benefit of hiding material from the defense until procedural
hurdles render it unusable. The parties will have to brief how the Court may consider the
newly disclosed information—if it can consider it at all—under AEDPA.
Pending Motions
Four motions are pending. First, Will has filed an opposed motion for discovery.
(Docket Entry No. 59).
Will seeks factual development both “to support pending
allegations and evidence justifying his right to habeas corpus relief under Brady” and “to
augment evidence of innocence under 28 U.S.C. § 2244(b)(2)(B) and gateway innocence
pursuant to Schlup v. Delo, 513 U.S. 298 (1995).” (Docket Entry No. 59 at 1). Second,
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Will complements his discovery requests with a motion for an evidentiary hearing.
(Docket Entry Nos. 59, 60). The Court finds that it has sufficient facts before it to decide
the threshold question of whether successive proceedings are appropriate under AEDPA.
The Court, therefore, will deny Will’s motions for discovery and for an evidentiary hearing
without prejudice.
Successive habeas proceedings are not a retrial of Will’s guilt. AEDPA places strict
constraints on the development of new evidence in habeas actions. The parties must
provide additional briefing before the Court can decide if discovery or a hearing are
permissible. Will may renew his requests for factual development involving his successive
petition throughout the proper course of adjudication.
Third, a sealed, ex parte motion for the approval of a litigation budget is pending.
(Docket Entry No. 56). Without detailing the contents of the sealed pleading, Will’s
proposed budget anticipates significant factual development in this case. As the Court has
not authorized any factual development at this time, and the course of the litigation has
changed since Will filed his motion, the Court will need a revised proposed budget. The
Court denies Will’s sealed motion without prejudice.
Fourth, Will filed a motion for leave to file excess pages regarding his supplemental
briefing. (Docket Entry No. 76). The Court will grant his motion.
Earlier in this case, Respondent filed a motion to dismiss. (Docket Entry No. 42.)
The Court denied that motion subject to sua sponte reconsideration after the parties
provided additional briefing. (Docket Entry No. 67.) This Order resolves the questions
raised by the earlier motion to dismiss.
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Conclusion
For the reasons discussed above, the Court finds that Will has complied with
AEDPA’s requirements for the consideration of his successive federal habeas corpus
petition. In addition, the Court grants Will’s motion for leave to file excess pages. (Docket
Entry No. 76). The Court denies Will’s ex parte sealed motion (Docket Entry No. 56),
opposed motion for discovery (Docket Entry No. 59), and opposed motion for an
evidentiary hearing (Docket Entry No. 60).
Will has requested permission to amend his federal petition. (Docket Entry No. 37
at 67). Will may file any amended petition within sixty days from the entry of this Order.
Will shall either include in the amended petition or in a separate document arguments
which shoulder his burden under AEDPA. Respondent may file an answer and any
appropriate responsive motion within sixty days thereafter. Will may file a reply thirty
days afterwards. The Court will consider any future request for factual development in the
context of Will’s burden under AEDPA.
It is so ORDERED.
Signed at Houston, Texas on March 28, 2023.
_______________________________
Keith P. Ellison
United States District Judge
37
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