In re: CHARLES D. RABY, Movant.
for an Order Authorizing the United States District Court for
the Southern District of Texas to Consider a Successive 28
U.S.C. § 2254 Petition
HIGGINBOTHAM, SMITH, and DUNCAN, Circuit Judges.
E. SMITH, Circuit Judge.
Raby was convicted and sentenced to death for the gruesome
murder of seventy-two-year-old Edna Franklin. Raby v.
Dretke, 78 Fed.Appx. 324, 325 (5th Cir. 2003),
cert. denied, 542 U.S. 905 (2004). In
December 2018, Raby moved for an order authorizing the filing
and consideration of a second-or-successive habeas corpus
petition. Because Raby fails to meet the standard to warrant
a second-or-successive petition, we deny the motion for
was murdered in her living room after being severely beaten
and repeatedly stabbed, her throat cut. Raby, a friend of
Franklin's grandsons, confessed.
1994, a Texas jury convicted Raby of capital murder, and he
was sentenced to death based on the jury's answers to the
special issues. The Texas Court of Criminal Appeals
("CCA") affirmed on direct appeal. Raby v.
State, 970 S.W.2d 1, 9 (Tex. Crim. App.), cert.
denied, 525 U.S. 1003 (1998). The CCA denied Raby's
application for a state writ of habeas corpus. Ex parte
Raby, No. WR-48, 131-01 (Tex. Crim. App. Jan. 31, 2001).
district court denied Raby's federal habeas petition.
Raby v. Cock-rell, No. 4:02-cv-00349, slip op. at 1
(S.D. Tex. filed Nov. 27, 2002). We declined a certificate of
appealability ("COA"). Raby, 78 Fed.Appx.
his federal habeas petition was pending, Raby moved in state
court for post-conviction DNA testing of four pieces of
evidence: underwear found near Franklin, the nightshirt
Franklin was wearing, Franklin's fingernail clippings,
and a hair found on her hand (identified as belonging to one
of Franklin's grandsons). Raby v. State, No.
AP-74, 930, 2005 WL 8154134, at *1 (Tex. Crim. App. June 29,
2005). See Tex. Code Crim. Proc. Ann. ch. 64 (West
2017). The CCA granted Raby's motion in part and allowed
testing on the underwear, nightshirt, and fingernail
clippings. Raby, 2005 WL 8154134, at *8.
three-year period, the state trial court held a series of
hearings concerning the DNA evidence. Raby, 2015 WL
1874540, at *1; see also Tex. Code Crim. Proc. Ann.
art. 64.04. The nightshirt could not be located. Testing on
the underwear showed only that the blood was from Franklin.
Consequently, the hearings focused on the DNA evidence
recovered from the fingernail clippings, which
"contain[ed] a weak and incomplete DNA profile from an
unknown male." The state district court concluded that
[h]aving heard arguments, read the parties' briefing,
affidavit evidence, and other exhibits, reviewed the trial
transcript, and considered the testimony of experts,
including forensic DNA experts interpreting the DNA test
results that have been obtained, . . . the results are not
favorable to [Raby], and that had the DNA test results
obtained under Chapter 64 been available in 1994, it is
reasonably probable that Raby would have been prosecuted or
Raby, 2015 WL 1874540, at *1. The CCA affirmed in
2015. Id. at *5-9. Raby filed a subsequent state
habeas application that the CCA denied as an abuse of the
writ. Ex parte Raby, No. WR-48, 131-02, 2017 WL
2131819, at *1 (Tex. Crim. App. May 17, 2017) (per curiam).
August 2017, Raby filed a Federal Rule of Civil Procedure
60(b)(6) motion for relief from judgment. The district court
denied the motion, finding that a change in decisional law
"does not, without more, constitute extraordinary
circumstances." Raby v. Davis, No.
4:02-cv-00349, slip op. at 5 (S.D. Tex. Apr. 5, 2018). We
declined a COA. Raby v. Davis, 907 F.3d 880, 883
(5th Cir. 2018), petition for cert. filed (U.S. Mar.
4, 2019) (No. 18-8214).
moves for an order authorizing the filing and consideration
of a second habeas petition. His application presents four
grounds. First, that the state destroyed exculpatory evidence
such that it is no longer available for testing, in violation
of California v. Trombetta and Arizona v.
Youngblood.Second, that Joseph Chu, the state's
forensic serologist, falsely referred to exculpatory
serological results as "inconclusive," in violation
of Giglio v. United States. Third, that the state
withheld material exculpatory evidence, in violation of
Brady v. Maryland. Fourth, that Raby is actually
innocent such that his confinement violates the Eighth and
habeas review for a prisoner in state custody is governed by
the Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA"), Pub. L. No. 104-132, Title I, 110 Stat.
1214, 1217-26 (codified as amended in scattered sections of
Title 28). Because Raby previously filed a federal habeas
petition, he must receive authorization from this court to
file a second-or-successive petition. 28 U.S.C. §
permit the filing of a successive petition only if we
conclude that Raby's application makes a prima
facie showing that it satisfies the strict requirements
in § 2244(b). Id. § 2244(b)(3)(C). A
prima facie showing is "simply a sufficient
showing of possible merit to warrant a fuller exploration by
the district court." In re Campbell, 750 F.3d
523, 530 (5th Cir. 2014) (citation omitted). Consequently, if
it seems reasonably likely that a successive petition meets
the strict requirements provided in the statute, we will
grant the motion for a successive petition. Id. Our
decision to grant or deny authorization is not appealable and
may not be the subject of a petition for rehearing or writ of
certiorari. 28 U.S.C. § 2244(b)(3)(E).
parties concede that the claims presented by Raby were not
raised in his initial federal habeas petition, so he must
make a prima facie showing that he satisfies the
requirements of § 2244(b)(2)(B):
(2) A claim presented in a second or successive habeas corpus
application under section 2254 that was not presented in a
prior application shall be dismissed unless-
. . .
(B)(i) the factual predicate for the claim could not have
been discovered previously through the exercise of due
(ii) the facts underlying the claim, if proven and viewed in
light of the evidence as a whole, would be sufficient to
establish by clear and convincing evidence that, but for
constitutional error, no reasonable factfinder would have
found the applicant guilty of the underlying offense.
Id. § 2244(b)(2)(B).
petitioner who makes such a showing must also overcome the
statutory time bar. Generally, an applicant faces a one-year
limitations period to file a federal habeas petition.
Id. § 2244(d)(1). As relevant here, that period
runs from "the date on which the factual predicate of
the claim or claims presented could have been discovered
through the exercise of due diligence." Id.
§ 2244-(d)(1)(D). We may apply equitable tolling, which
"is applied restrictively and . . . is entertained only
in cases presenting rare and exceptional circumstances where
it is necessary to preserve a plaintiff's claims when
strict application ...