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Swearingen v. Davis

United States District Court, S.D. Texas, Houston Division

August 20, 2019

LORIE DAVIS, Respondent.


          Andrew S. Hanen United States District Court Judge.

         In 2000, a Texas jury convicted Larry Ray Swearingen ("S wearingen" or "Petitioner") of the capital murder of Melissa Trotter ("Trotter") and he was sentenced to death. Since then, Swearingen has aggressively litigated various challenges to his conviction and sentence, including numerous habeas petitions and civil rights actions in both state and federal court. The State of Texas has set an execution date of August 21, 2019.

         On the eve of an execution date in 2009, the Court of Appeals for the Fifth Circuit preliminarily authorized Swearingen to file a successive petition for a writ of habeas corpus. That same year, this Court's predecessor entered a Memorandum and Order finding that Swearingen had not conclusively met the statutory requirements for successive habeas litigation. Now, days before his current execution date, Swearingen moves for relief from judgment under Rule 60(b) of the Federal Rules of Civil Procedure. Swearingen argues that recent admissions from the Texas Department of Public Safety Crime Laboratory prove that Respondent committed fraud earlier in the proceedings.

         While this Court began the process of analyzing the issues brought forth by Swearingen, it learned that, unbeknownst to the Court, the Petitioner had already taken the very same issues to the Fifth Circuit. The Fifth Circuit actually ruled approximately three hours after this case was filed. That Court analyzed in detail the very allegations made here and systematically rejected each one. This Court will briefly discuss the merits of each claim, but this discussion is at best superfluous, because a District Court is bound to follow the dictates of the unanimous Fifth Circuit panel. See Campbell v. Sonat Offshore Drilling, Inc., 979 F.2d 1115, 1121 n.8 (5th Cir. 1992) (superseded by statute on other grounds) ("It has been long established that a legally indistinguishable decision of this court must be followed by other panels of this court and district courts unless overruled en banc or by the United States Supreme Court."). The Court is so bound even if it disagrees with the conclusions. That being the case, Petitioner has two avenues to seek relief. He can either seek an en banc review in the Fifth Circuit or he can seek relief from the Supreme Court.

         I. Litigation Background

         For the past nineteen years, Swearingen has vigorously litigated various challenges to his conviction and sentence. After the state courts denied Swearingen's direct appeal and initial state habeas action, this Court's predecessor denied a federal habeas petition in 2005. Numerous legal challenges have followed. "Since the finality of his conviction, Swearingen has filed a convoluted tangle of habeas applications, pro se motions, mandamus actions, and amended pleadings. Throughout, Swearingen has tried to cast doubt on various aspects of the trial evidence against him." (Docket Entry No. 36 at 11). For the purposes of the pending matters, however, the Court does not need to review the prior litigation in detail other than to observe that, even though "Swearingen's challenges have taken evolving and overlapping paths" largely involving the forensic evidence presented at trial, "no court to this point has seriously questioned the integrity of his conviction." (Docket Entry No. 36 at 11).

         The pending motion resurrects issues raised in a federal habeas petition Swearingen filed in 2009. Facing an execution date of January 27, 2009, Swearingen filed a motion in the Fifth Circuit asking permission to litigate a second federal habeas petition. Among other issues, Swearingen argued that: he is actually innocent; the prosecution presented false and misleading testimony about the internal conditions in Ms. Trotter's corpse; trial counsel failed to investigate the internal findings; and his trial attorneys should have developed evidence. The Fifth Circuit authorized this Court to consider whether a successive federal action should proceed on certain issues. In re Swearingen, 556 F.3d 344, 345 (5th Cir. 2009). Specifically, the Fifth Circuit preliminarily allowed Swearingen to litigate issues relating to testimony provided by the State's medical examiner about the condition of the victim's body and the timing of her death.

         Under the Anti-Terrorism and Effective Death Penalty Act, the Court had an obligation as a "second-gatekeeper" to "conduct a 'thorough' review to determine if [Swearingen's 2009 petition] 'conclusively' demonstrate[d] that it does not meet AEDPA's second or successive motion requirements." Reyes-Requena v. United States, 243 F.3d 893, 898-99 (5th Cir. 2001) (quoting United States v. Villa-Gonzalez, 208 F.3d 1160, 1165 (9th Cir. 2000)); see also 28 U.S.C. § 2244(b)(4). The Court received considerable evidence from both parties. After reviewing the evidence, the pleadings, and the law, this Court's predecessor found that federal law did not conclusively allow Swearingen to litigate the merits of a successive federal habeas corpus petition. Swearingen v. Thaler, 2009 WL 4433221, at * 10 (S.D. Tex. 2009). The Fifth Circuit affirmed. See Swearingen v. Thaler, 421 Fed.Appx. 413, 414 (5th Cir. 2011).

         II. Swearingen's Recent Fifth Circuit Litigation and His Rule 60(b) Motion

         On August 14, 2019, Swearingen filed a motion in the Fifth Circuit seeking leave to file another successive federal habeas petition ("2019 successive petition"). In re Swearingen, No. 19- 20565. Swearingen raised the exact same issues he argues here: that newly discovered evidence proves that the State withheld material evidence and sponsored false evidence at trial. Swearingen's 2019 successive petition challenged forensic evidence discussed in this Court's 2009 action. Specifically,

the State sponsored "false and misleading" trial testimony regarding blood flecks found under Trotter's fingernails, in violation of Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). Second, based on another recent DPS letter, Swearingen claims the State withheld evidence that a criminologist had "manufactured" evidence that the torn pantyhose used to strangle Trotter matched the pantyhose found at Swearingen's house, in violation of both Giglio and Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

In re Swearingen, 2019 WL 3854457, at *2 (5th Cir. 2019).[1]

         On August 16, 2019, the Fifth Circuit denied Swearingen leave to proceed on a successive habeas petition and denied a stay of the execution. With regard to testimony regarding blood flecks under the victim's fingernails, the Fifth Circuit recounted that "[e]vidence at trial showed that the DNA profile derived from these flecks matched neither Trotter nor Swearingen," but that the Department of Public Safety ("DPS") analyst, Cassie Carradine, had testified "this blood came from 'contamination' of the sample, leading the jury to discount the possibility that the blood actually pointed to someone else as Trotter's murderer." Id. Swearingen cited a letter he had recently obtained from DPS which he said proved that Carradine testified falsely. The Fifth Circuit, however, found that "Swearingen mischaracterize[d] what the DPS letter says," id., and that the record "tell[s] a different story" than alleged by Swearingen, id. at *3. The Fifth Circuit rejected Swearingen's argument about the blood-fleck testimony because:

[c]ontrary to Swearingen's characterization, the letter does not say that Carradine testified "falsely" and says nothing to suggest that the State "sponsored" a "false contamination theory" to "mislead" the jury. Instead, the letter says at most that Carradine lacked a foundation to opine on contamination that may have occurred when the samples were outside DPS custody, ...

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