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Earl Russell BEHRINGER, Petitioner-Appellant, v. Gary L. JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee

United States Court of Appeals for the Fifth Circuit1996-02-05No. No. 96-10012
75 F.3d 189

Summary

Holding. The district court's denial of Rule 60(b) relief was affirmed, and the application for stay of execution and certificate of probable cause was denied.

Earl Russell Behringer, facing execution, filed a motion for relief from judgment under Federal Rule of Civil Procedure 60(b) claiming actual innocence based on newly available testimony. Behringer argued that his trial counsel failed to present testimony from another death row inmate, Jerry Hogue, who allegedly would confirm that Behringer's co-defendant Scott Rouse admitted to committing both murders. However, Behringer's own counsel had interviewed Hogue in June 1994 and knew the factual basis for this claim long before filing his initial federal habeas petition in May 1995, yet never raised the issue in any of his state or federal petitions at that time.

The district court denied the Rule 60(b) motion, and Behringer appealed while also seeking a stay of execution and certificate of probable cause. The appellate court concluded that the district court did not abuse its discretion in rejecting the motion, emphasizing that Behringer could not introduce new claims after final judgment. The court noted that even if Hogue's testimony had merit, Behringer was required to exhaust his claims in state court first before pursuing them in a new federal habeas petition.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

  • Whether newly discovered testimony constitutes grounds for Rule 60(b) relief from judgment
  • Whether counsel's failure to present available defense testimony supports an ineffective assistance claim
  • Procedural bar against raising new claims after final judgment in habeas proceedings
  • Requirement to exhaust state remedies before raising unexhausted federal claims

Procedural posture

Behringer appealed the district court's denial of his Rule 60(b) motion for relief from judgment filed while his federal habeas petition was pending and while he was scheduled for execution.

Authorities cited

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Opinion

majority opinion

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 proba: ble 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.”

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. Scott, 63 F.3d 364, 376 (5th Cir.) cert. denied — U.S. -, 116 S.Ct. 687, 133 L.Ed.2d 531 (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 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.