JONES, SMITH, and DENNIS, Circuit Judges.
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.
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
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.
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.
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).
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).
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,
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.
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.
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).
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