Behringer v. Scott ( 1996 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-10012
EARL RUSSELL BEHRINGER,
Petitioner-Appellant,
versus
GARY L. JOHNSON, Director,
Texas Department of
Criminal Justice,
Institutional Division,
Respondent-Appellee.
Appeal from the United States District Court
for the Northern District of Texas
February 5, 1996
Before GARWOOD, HIGGINBOTHAM, and DAVIS, Circuit Judges.
PER CURIAM:
I
Earl Russell Behringer is now scheduled to be executed on
February 15, 1996. We have today in Cause No. 95-10976 denied
Behringer’s application for stay of execution and refused to issue
a certificate of probable cause. Behringer filed his notice of
appeal from the judgment in No. 95-10976 on October 18, 1995. On
December 21, 1995, while his motion for stay of execution pending
appeal and application for certificate of probable cause were
pending before this court, Behringer filed a motion for relief from
judgment and brief in support thereof under Fed. R. Civ. P. 60(b)
in the district court. Judge McBryde denied the motion on December
27, 1995, and on January 2, 1996, petitioner filed his notice of
appeal from that order. Behringer also seeks a stay of execution
and a certificate of probable cause in his appeal from the district
court’s denial of relief under Rule 60(b).
II
Behringer’s motion for relief under Rule 60(b) asserted his
actual innocence of the capital offense; that he was denied
effective assistance of counsel at trial when his attorney failed
to introduce the testimony of Jerry Hogue. Jerry Hogue is also on
death row in Texas. Behringer asserts that Hogue will testify that
Scott Rouse, Behringer’s co-defendant, admitted to Hogue that he,
Rouse, killed both the murder victims. The contention is that
although aware of Hogue’s testimony, petitioner’s trial counsel
failed to offer the evidence at trial. Behringer’s counsel in the
habeas proceeding approached Hogue in 1994, but according to
Behringer, Hogue refused to provide sworn statements regarding his
claimed conversations with Rouse. Behringer asserted that on
November 27, 1995, Hogue told his lawyer in a telephone call that
he would cooperate, and on December 12, gave his affidavit to the
effect that Rouse had admitted killing the two murder victims.
Behringer asserts that Hogue “notified Larry Moore, petitioner’s
trial attorney, that Rouse had acknowledged his own guilt of the
double murder.”
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III
We review denial of relief under 60(b) by an abuse of
discretion standard. See Fackelman v. Bell, 564 F.2d 734, 736 (5th
Cir. 1977).
We begin by noting that petitioner may not add new claims
after the district court has entered final judgment. Briddle v.
Collins, 63 F.3d 364, 376 (5th Cir.) (cert. denied) 116 S.Ct. ____
(Dec. 11, 1995). Relatedly, a motion raising new claims after
entry of a final judgment is properly viewed as a second federal
petition. Williams v. Whitley, 994 F.2d 226, 230-31, n.2 (5th Cir.
1993).
Accepting the facts stated by Behringer’s petition, Hogue’s
testimony is not newly discovered. Behringer’s counsel interviewed
Hogue in June 1994 regarding Hogue’s conversations with Rouse.
Indisputably, Behringer knew of the factual basis of his present
claim before he filed his amended state habeas application on
October 25, 1994 and before he filed his second state habeas
application on March 9, 1995. Behringer’s first habeas petition
was filed in the district court on May 30, 1995. None of these
state or federal petitions presented the present claim or asserted
that he could not do so because Hogue was not willing to provide an
affidavit.
IV
On these facts, we cannot find that the district court abused
its discretion in denying Rule 60(b) relief. Further, whatever be
the merit of Behringer’s present claims regarding the testimony of
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Hogue, he must assert them in a newly filed habeas petition after
exhausting his claim in the state courts. We decide nothing today
regarding the merit of this unexhausted claim. The application for
stay of execution and certificate of probable cause in this appeal
are denied. We decline to consolidate the appeal in this case with
the appeal in No. 95-10976.
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