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In re Rodriguez

United States Court of Appeals, Fifth Circuit

March 23, 2018

In re: ROSENDO RODRIGUEZ, III, Movant

          Before JONES, SMITH, and DENNIS, Circuit Judges.

          ORDER

          PER CURIAM:

         Rosendo Rodriguez, III ("Rodriguez") was convicted of capital murder and sentenced to death in 2009. He is scheduled to be executed by the State of Texas on March 27, 2018. Rodriguez challenged his conviction and sentence on direct appeal, in state post-conviction proceedings, and in a federal habeas proceeding; none of these were successful.

         On March 19, 2018, eight days before his scheduled execution, he filed a motion to reopen his federal habeas proceedings under Federal Rule of Civil Procedure 60(b). The following day, Rodriguez filed motions for authorization to file a successive petition and to stay execution in this court. On March 22, the district court held that Rodriguez's Rule 60 Motion constituted a successive petition for habeas relief under 28 U.S.C. § 2244(b) and transferred the case to this court.

         Because Rodriguez fails to demonstrate he is entitled to file a successive habeas petition, we DENY Rodriguez's request to file a successive petition and DENY his request for a stay of execution.

          I.

         The facts surrounding Rodriguez's conviction are set forth in our previous opinion. Rodriguez v. Davis, 693 Fed.Appx. 276 (5th Cir.), cert denied, 138 S.Ct. 389 (2017). Briefly, Rodriguez was convicted and sentenced to death in Texas in March 2009 for the 2005 capital murder of Summer Baldwin, a pregnant prostitute, committed in the course of his committing or attempting to commit aggravated sexual assault. Baldwin's body was discovered in a Lubbock city landfill, stuffed in a suitcase. The prosecution claimed that Rodriguez beat, strangled, and sexually assaulted Baldwin in a hotel room before purchasing the suitcase at a local Walmart, placing her body in it, and discarding it in a dumpster. Baldwin was pregnant at the time of her murder. Because Rodriguez confessed to killing Baldwin, because he maintained that he strangled her in self defense, the trial centered on whether it rose to the level of Texas capital murder. The jury rejected his claim of self-defense and convicted him; he was sentenced to death.

         The Texas Court of Criminal Appeals ("TCCA") affirmed Rodriguez's conviction and death sentence on direct appeal. Rodriguez v. State, No. AP-75901, 2011 WL 1196871 (Tex. Crim. App. Mar. 2, 2011), cert. denied, 565 U.S. 1080 (2011).

         Rodriguez presented twenty-one claims for relief during state habeas review, including a claim that trial counsel were ineffective in their investigation and cross-examination of the medical examiner, Dr. Sridhar Natarajan. After hearing testimony from Natarajan, the state habeas court recommended denying relief and the TCCA denied the habeas application. Ex parte Rodriguez, No. WR-78, 127-01, 2013 WL 1920737 (Tex. Crim. App. May 8, 2013).

         Rodriguez pursued similar efforts in his federal habeas proceeding, where he received funding to investigate an unexhausted claim regarding trial counsel's cross-examination of the medical examiner's testimony regarding the cause of death. The district court denied federal habeas relief in 2016, holding "the timing of [Baldwin's] death would have no logical effect on the verdict, and reasonably effective counsel could have concluded there was nothing to be gained by such a detailed explanation of the victim's last moments of life." Rodriguez v. Davis, No. 5:13-cv233, 2016 WL 4098339, at *34 (N.D. Tex., Aug. 1, 2016).

         This court denied a certificate of appealability ("COA") on May 24, 2017, Rodriguez v. Davis, 693 Fed.Appx. 276 (5th Cir. 2017), and the Supreme Court denied Rodriguez's petition for a writ of certiorari on October 30, 2017, Rodriguez v. Davis, 138 S.Ct. 389 (2017). The 140th District Court of Lubbock County set Rodriguez's execution date on November 8, 2017.

         On February 16, 2018, Rodriguez allegedly discovered a 2015 wrongful termination lawsuit involving Dr. Natarajan and a former employee of the Lubbock County Medical Examiner's Office. On February 20, 2018, Rodriguez filed in the state district court a motion for stay of execution, asking the court to withdraw his execution date pursuant to Texas Code of Criminal Procedure Article 43.141(d)(1) so that he could prepare and file a petition for a successive writ under Tex. Code Crim. Pro. Art. 11.071. Rodriguez argued that the wrongful termination lawsuit bears on the credibility and admissibility of Dr. Natarajan's state trial testimony.

         The motion was denied on March 6. On March 12, Rodriguez filed a petition for a successive writ in the state court pursuant to Tex. Code Crim. Pro. Arts. 11.071 § 5 and 11.073. On March 14, he filed a motion for discovery and two days later, on March 16, he filed a motion for stay of execution pending the outcome of his application for a successive writ. The TCCA dismissed his application as an abuse of the writ, without reviewing the merits, and denied his motion for stay of execution. Ex parte Rodriguez, WR-78, 127-02 (Tex. Crim. App. March 19, 2018).

         On March 19, Rodriguez filed a Motion for Relief from Judgment Pursuant to Federal Rule of Civil Procedure 60(b) in the district court, seeking reconsideration of the merits of his ineffective assistance of counsel claim regarding the medical examiner's testimony. While the Rule 60(b) motion was pending, on March 20 Rodriguez moved this court for authorization to file a successive federal habeas petition under 28 U.S.C. § 2244(b), raising four new claims related to his discovery of the wrongful termination lawsuit. According to Rodriguez, his capital murder conviction and sentence violate his Fifth, Sixth, Eighth, and Fourteenth Amendment rights because newly discovered evidence shows the state suppressed evidence of its expert's false and misleading testimony and exculpatory evidence demonstrates Rodriguez's possible innocence of capital murder. The state insists the evidence - which came into existence seven ...


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