In Re: Charlie Stewart ( 2021 )

Case: 20-50808 Document: 00515704997 Page: 1 Date Filed: 01/13/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
January 13, 2021
No. 20-50808
Lyle W. Cayce
Clerk
In re: Charlie Lee Stewart, Sr.,
Movant.
Motion for an order authorizing
the United States District Court for the
Western District of Texas to consider
a successive 28 U.S.C. § 2254 application
Before Jones, Elrod, and Higginson, Circuit Judges.
Per Curiam:*
Charlie Lee Stewart, Sr., Texas prisoner # 01897620, requests
authorization to file a successive 28 U.S.C. § 2254 application challenging his
conviction for continuous sexual abuse of a child. Stewart asserts that he is
actually innocent based on new evidence, i.e., an affidavit from Esmeregilda
Soliz stating that the victim recanted her trial testimony to Soliz.
We will grant Stewart authorization to file a second or successive
§ 2254 application only if he makes a prima facie showing that his claim relies
on either (1) “a new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously unavailable,” or
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 20-50808 Document: 00515704997 Page: 2 Date Filed: 01/13/2021
No. 20-50808
(2) facts that “could not have been discovered previously through the
exercise of due diligence . . . [that] 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.” 28 U.S.C.
§ 2244(b)(2)(A), (B); see § 2244(b)(3)(C).
Stewart presents actual innocence as a freestanding claim. We do not
recognize freestanding claims of actual innocence on federal habeas review.
See In re Swearingen, 556 F.3d 344, 348 (5th Cir. 2009). Accordingly, Stewart
has not made the required prima facie showing under § 2244(b). See id.; In re
Gentras, 666 F.3d 910, 911 (5th Cir. 2012). For the same reason, Stewart’s
invocation of Schlup v. Delo, 513 U.S. 298, 327-29 (1995), is unavailing. See
In re Swearingen, 556 F.3d at 348.
IT IS ORDERED that Stewart’s motion for authorization to file a
successive § 2254 application is DENIED.
2