In Re: Robert Will, II

United States Court of Appeals
for the Fifth Circuit

No. 17-20604

In re: Robert Gene Will, II,

Movant,

consolidated with

No. 17-70022

Robert Gene Will, II,

Petitioner—Appellant,

versus

Lorie Davis, Director, Texas Department of Criminal
Justice, Correctional Institutions Division,

Respondent—Appellee.

Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:15-CV-3474

Before Owen, Chief Judge, and Willett and Ho, Circuit Judges.
Per Curiam:
United States Court of Appeals
Fifth Circuit
FILED
August 5, 2020

Lyle W. Cayce
Clerk
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Robert Gene Will filed a second-in-time habeas petition raising Brady
and actual innocence claims. The district court concluded that Will’s petition
was successive and transferred it to this court. Will appeals the district
court’s transfer order and alternatively asks this court for authorization to file
a successive habeas application. We affirm the district court’s transfer order
and grant the motion for authorization. Will’s arguments may not prevail, but
he should be allowed to make them.
I
Robert Gene Will was convicted and sentenced to death for the capital
murder of Deputy Barrett Hill. Will has consistently maintained his
innocence and asserted that Michael Rosario, the man who fled from the
police with Will the morning of the murder, committed the heinous crime.
Will sought state appellate and state habeas remedies but received no relief.
1

Then Will filed his first federal habeas petition, asserting ineffective
assistance of counsel and actual innocence. In 2010, the district court denied
habeas relief but stayed the ineffective assistance of state habeas counsel
claim, which remains pending.
After the denial of Will’s first federal habeas petition, the Harris
County District Attorney’s Office provided information to the defense that
it had not turned over previously. This new information includes a Harris
County Sheriff’s Department document (the Hit Document) revealing that
after Hill’s murder Rosario was placed in administrative separation because
he “made contact . . . to visit w[ith] David Cruz,” apparently “soliciting
[Cruz] to make [a] hit on [Will].” A related document revealed that Cruz was

1
Will v. State, No. 74,306, 2004 WL 3093238 (Tex. Crim. App. Apr. 21, 2004)
(direct appeal); Ex parte Will, No. WR-63,590-01, 2006 WL 832456 (Tex. Crim. App. Mar.
29, 2006) (first state habeas appeal); Ex parte Will, No. WR-63,590-02, 2007 WL 2660290
(Tex. Crim. App. Sep. 12, 2007) (second state habeas appeal).
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placed in administrative separation “due to [a] possible . . . hit.” There is
also a report (the Schifani Report) in which Deputy Patricia Schifani
documented that Rosario told her he was “part of the reason” Deputy Hill
was murdered.
Will’s trial attorneys signed affidavits stating that neither the Hit
Document nor Schifani Report had been disclosed to them. Before trial, the
prosecutor had agreed to disclose “[a]ll exculpatory evidence pursuant to
Brady v. Maryland,”
2
and Will’s counsel had subpoenaed all inmate records
concerning Rosario. Will’s habeas counsel also obtained a subpoena for
Rosario’s prison records during his first federal habeas proceedings. But,
despite the trial attorneys’ diligence, neither the Hit Document nor the
Schifani Report were disclosed. An attorney at the DA’s Office
acknowledged that if she had known about the Hit Document and the
Schifani Report, Brady and the DA Office’s open file policy would have
obligated her to disclose the documents to Will’s trial counsel.
Based on this newly discovered evidence—again, disclosed by the
DA’s office only after Will’s first federal habeas petition was denied—Will
filed a third state habeas petition claiming that the prosecution
unconstitutionally suppressed evidence under Brady and that he was actually
innocent. The Texas Court of Criminal Appeals denied habeas relief. Will
then filed a second-in-time federal habeas petition in district court seeking
relief based on the State’s alleged Brady violation.
The State filed a motion for summary judgment, asserting that the
district court lacked jurisdiction to consider a successive habeas action under
the Anti-Terrorism and Effective Death Penalty Act (AEDPA). The district
court granted the State’s motion and transferred the second federal habeas

2
373 U.S. 83 (1963).
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petition to this court. Will appeals the transfer order. Alternatively, he
submitted a motion for authorization to file a second federal habeas petition.
The clerk’s office has consolidated the two cases.
3

II
We first consider whether the district court properly transferred
Will’s habeas petition to this court. The dispositive issue is whether Will’s
petition is “second or successive” under 28 U.S.C. § 2244.
4
If it is
successive, the district court’s transfer order was proper because only a court
of appeals can authorize Will’s habeas petition.
5
If it is not successive, the
district court erred in transferring Will’s habeas petition to this court.
At the time the district court issued its transfer order, neither the
Supreme Court nor the Fifth Circuit had yet decided section 2244’s
application to Brady claims. Since then, however, we have definitively spoken
on the matter and determined that Brady claims raised in second-in-time

3
See United States v. Fulton, 780 F.3d 683, 688 (5th Cir. 2015) (“[W]e instruct the
clerk of the court to consolidate any request by the petitioner for . . . any motion for
authorization, to the panel considering the transferred [potentially successive] petition.”).
4
See 28 U.S.C. § 2244(b)(2). Regardless of whether the petition is “second or
successive,” Will’s substantive actual innocence claim must be dismissed because “[t]he
Fifth Circuit does not recognize freestanding claims of actual innocence on federal habeas
review.” In re Swearingen, 556 F.3d 344, 348 (5th Cir. 2009) (per curiam) (citing Graves v.
Cockrell, 351 F.3d 143, 151 (5th Cir. 2003)); see also United States v. Fields, 761 F.3d 443, 479
(5th Cir. 2014) (“Claims of actual innocence based on newly discovered evidence have
never been held to state a ground for federal habeas relief absent an independent
constitutional violation occurring in the underlying state criminal proceeding.” (quoting
Dowthitt v. Johnson, 230 F.3d 733, 741 (5th Cir. 2000))). Accordingly, only Will’s Brady
claim is cognizable.
5
See 28 U.S.C. § 2244(b)(3)(A) (“Before a second or successive application
permitted by this section is filed in the district court, the applicant shall move in the
appropriate court of appeals for an order authorizing the district court to consider the
application.”).
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habeas petitions are successive regardless of whether the petitioner knew
about the alleged suppression when he filed his first habeas petition.
6
So even
though Will did not know of the State’s alleged Brady violation at the time he
filed his first habeas petition, it is still subject to AEDPA’s statutory
requirements for filing a successive petition,
7
and the district court did not
err in transferring Will’s habeas petition to this court.
III
Given that this petition is “second or successive,” we next consider
Will’s alternative request for permission to file a successive habeas petition.
Under 28 U.S.C. § 2244(b)(3)(C), “[t]he court of appeals may authorize the
filing of a second or successive application only if it determines that the
application makes a prima facie showing that the application satisfies the
requirements” of § 2244(b). To receive authorization to file a successive
habeas petition with the district court, Will must make a prima facie showing
that: (1) his Brady claim was not presented in a prior application; (2) the
factual predicate for the Brady claim “could not have been discovered
previously through the exercise of due diligence”; and (3) he can establish by
“clear and convincing evidence that, but for [the Brady] error, no reasonable
factfinder would have found” him guilty.
8

A prima facie showing is “simply a sufficient showing of possible
merit to warrant a fuller exploration by the district court.”
9
“If in light of the

6
Blackman v. Davis, 909 F.3d 772, 778–79, 778 n.2 (5th Cir.), as revised (Dec. 26,
2018).
7
Id.
8
See id. § 2244(b)(2).
9
In re Cathey, 857 F.3d 221, 226 (5th Cir. 2017) (quoting In re Campbell, 750 F.3d
523, 530 (5th Cir. 2014)).
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documents submitted with the application it appears reasonably likely that
the application satisfies the stringent requirement for the filing of a second or
successive petition, we shall grant the application.”
10
At this stage, this court
does not rule on the ultimate merits; it simply determines if this “second or
successive” habeas application deserves fuller review by the district court.
11

Will has made the requisite prima facie showing, so his motion for
authorization is granted.
The State does not dispute that Will has “not presented” this claim
in a prior federal habeas petition. However, it asserts that Will’s counsel did
not exercise due diligence and that the Brady claim fails to demonstrate actual
innocence. We disagree with the State on both points.
A
Will made a prima facie showing that the factual predicate for his
Brady claim could not have been previously discovered through due
diligence.
12
While a “successive petitioner urging a Brady claim may not rely
solely upon the ultimate merits of the Brady claim in order to demonstrate
due diligence under § 2244(b)(2)(B),”
13
if “[t]he trial record contains no

10
In re Campbell, 750 F.3d at 530 (quoting In re Morris, 328 F.3d 739, 740 (5th Cir.
2003) (per curiam)).
11
In re Cathey, 857 F.3d at 227 (holding that petitioner made “a sufficient showing
to proceed to a fuller review, though ‘[w]e express no view on whether [petitioner] will or
ultimately should prevail on his claim’” (quoting In re Mathis, 483 F.3d 395, 399 (5th Cir.
2007))); see also In re Wood, 648 F. App’x 388, 390 (5th Cir. 2016) (per curiam)
(unpublished) (“[T]his court should not, at this stage, rule on the merits, but merely
determine whether Wood’s claim deserves further exploration by the district court.”).
12
See 28 U.S.C. § 2244(b)(2)(B)(i) (requiring the dismissal of a second or
successive habeas application unless “the factual predicate for the claim could not have
been discovered previously through the exercise of due diligence”).
13
Johnson v. Dretke, 442 F.3d 901, 911 (5th Cir. 2006).
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evidence which would have put a reasonable attorney on notice,” then trial
counsel exercised due diligence.
14
On the other hand, “where the petitioner
was noticed pretrial of the existence of the factual predicate and of [its]
ultimate potential exculpatory relevance,” due diligence is not exercised.
15

Section 2244(b)(2)(B)’s due-diligence requirement “is measured
objectively, not by the subjective diligence of the petitioner.”
16
As such, Will
is required to show that the withheld records objectively could not have been
discovered through the exercise of due diligence.
17
The distinction between
a subjective and objective inquiry was squarely addressed in Johnson v.
Dretke. There, the State argued that Johnson could not satisfy the due-
diligence prong because Johnson did not demonstrate that he exercised due
diligence, and he never explained how he ultimately discovered the
previously unavailable documents.
18
We rejected that argument, holding that
“the plain text of § 2244(b)(2)(B) suggests that due diligence is measured
against an objective standard, as opposed to the subjective diligence of the
particular petitioner of record.”
19
In applying this objective standard, we
concluded that Johnson could not satisfy his burden because the record
included evidence that would have put a reasonable person on notice that
missing documents existed.
20
Johnson therefore could not explain why (or

14
See Williams v. Taylor, 529 U.S. 420, 440–42 (2000) (holding that petitioner
showed due diligence under § 2254(e)(2) in developing his juror bias and prosecutorial
misconduct claims).
15
Johnson, 442 F.3d at 911.
16
Blackman, 909 F.3d at 779 (citing Johnson, 442 F.3d at 909–10).
17
See Johnson, 442 F.3d at 908.
18
Id. at 907.
19
Id. at 908.
20
Id. at 908–09.
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that) the evidence could not have been discovered sooner, and, thus, the due-
diligence requirement was not satisfied.
21

Such is not the case here. Objectively, Will has demonstrated that the
withheld records could not have been discovered through due diligence.
Here, the prosecutor “pledge[d] to [the] Court” that she would produce all
Brady materials prior to trial; Deputy Strickland, who prepared the Hit
Document, appeared in court after refusing to comply with a subpoena duces
tecum and stated that he did not have any documents pertaining to Will’s
case; Will’s habeas counsel had subpoenaed all inmate records concerning
Rosario; an attorney in the DA’s Office acknowledged that, between Brady
and the DA’s open file policy,
22
the State would have been obligated to
disclose the withheld documents prior to trial; and Will had no exigent reason
to know that the Hit Document or Schifani Report existed. Accordingly,
there was no reason for Will or his counsel to suspect that documents were
being withheld or to do more than they did to uncover the withheld
evidence.
23

Trial counsel need not assume the prosecution may be withholding
information in order to exercise diligence. The Supreme Court has stated

21
Id.
22
See Strickler v. Greene, 527 U.S. 263, 289 (1999) (holding that petitioner
established cause for failing to previously raise a Brady claim in part because “petitioner
reasonably relied on the prosecution’s open file policy”).
23
But see Blackman, 909 F.3d at 779 (finding due diligence requirement not satisfied
where trial attorneys were put on notice of the existence of exculpatory evidence but failed
to take steps—which they could have taken—to uncover the evidence until years later); In
re Davila, 888 F.3d 179, 184–86 (5th Cir. 2018) (per curiam) (similar). As Blackman and
Davila illustrate, where a defendant has actual knowledge that exculpatory evidence
exists—such as when a defendant knows that a witness provided false, or later recanted,
incriminating testimony—the due diligence requirement cannot be satisfied if that
evidence was not pursued.
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that its “decisions lend no support to the notion that defendants must
scavenge for hints of undisclosed Brady material when the prosecution
represents that all such material has been disclosed,”
24
and trial counsel
should be able to reasonably rely on a prosecutor’s open file policy.
25
While
this Supreme Court precedent was not interpreting AEDPA, its due-
diligence analysis demonstrates that trial counsel may rely, absent notice to
the contrary, on representations by the prosecutor, as Will’s counsel
reasonably did here.
While this court does not rule on the ultimate merits of the due-
diligence inquiry at this stage,
26
the facts show that Will made a “sufficient
showing of possible merit to warrant a fuller exploration by the district
court.”
27

B
Will has also made a prima facie showing, by clear and convincing
evidence, that no reasonable factfinder would find him guilty.
28
As a
reminder, a prima facie showing is “simply a sufficient showing of possible
merit to warrant a fuller exploration.”
29
In other words, “[i]f we determine

24
Banks v. Dretke, 540 U.S. 668, 695 (2004).
25
Strickler, 527 U.S. at 289.
26
In re Cathey, 857 F.3d at 227 (holding that petitioner made “a sufficient showing
to proceed to a fuller review, though ‘[w]e express no view on whether [petitioner] will or
ultimately should prevail on his claim.’” (quoting In re Mathis, 483 F.3d at 399)).
27
Id. at 226 (quoting In re Campbell, 750 F.3d at 530).
28
See 28 U.S.C. § 2244(b)(2)(B)(ii) (requiring the dismissal of a second or
successive habeas application unless “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”).
29
In re Cathey, 857 F.3d at 226 (quoting In re Campbell, 750 F.3d at 530).
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that it appears ‘reasonably likely’ that . . . the application meets the ‘stringent
requirement’ for the filing of a successive petition, then we must grant the
filing.”
30
But any such grant is “tentative.”
31
Even after we authorize a
petitioner to file a successive petition, the district court must conduct its own
“thorough review” to determine whether the requirements of §2244(b)(2)
have been satisfied, and it must dismiss the motion, without reaching the
merits, if it determines that the petitioner has not met his burden.
32
In this
way, the district court serves as a “second gate through which the petitioner
must pass before the merits of his or her motion are heard.”
33

As for our review, we consider both the new evidence and the existing
evidence in assessing the likely impact of the Brady material on reasonable
jurors.
34
The third prong of § 2244(b) is a demanding standard described as
“a strict form of innocence, roughly equivalent to the Supreme Court’s
definition of ‘innocence’ or ‘manifest miscarriage of justice’ in Sawyer v.
Whitley.”
35
However, to grant a motion for authorization to file a successive
habeas petition, we need not determine that Will is factually innocent; we
only consider whether there is possible merit to his claim that, if the withheld

30
Id. at 226–27 (quoting In re Woods, 155 F. App’x 132, 135 (5th Cir. 2005) (per
curiam) (unpublished)).
31
Id. at 226 (quoting In re Morris, 328 F.3d at 741).
32
Id.
33
Id. (quoting In re Morris, 328 F.3d at 741).
34
See House v. Bell, 547 U.S. 518, 538 (2006) (explaining that habeas courts
consider “all the evidence” to “assess the likely impact of the evidence on reasonable
jurors” for actual innocence claims (quoting Schlup v. Delo, 513 U.S. 298, 328 (1995))).
35
Johnson, 442 F.3d at 911 (quoting 2 RANDY HERTZ & JAMES S. LIEBMAN,
FEDERAL HABEAS CORPUS PRACTICE & PROCEDURE § 28.3e, at 1459–60 (5th ed. 2005));
see also 28 U.S.C. § 2244(b)(2)(B)(ii); see also, e.g., id. (finding standard not satisfied where
three witnesses, unaffected by the withheld evidence, testified that defendant confessed to
the shooting).
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evidence had been provided, no reasonable juror would have found Will
guilty of shooting Deputy Hill.
36
Again, we objectively review the evidence
as a whole to determine whether it’s reasonably likely that the withheld
evidence would have changed the outcome.
It would be impossible to recreate the entire trial in a single opinion,
but the below chart outlines the key pieces of evidence
37
:
Evidence Supporting Guilt Evidence Supporting Reasonable Doubt
At the scene of a reported robbery, Deputy Hill chased
Will while Deputy Kelly chased Rosario in opposite
directions.
Deputy Kelly lost sight of Rosario before Deputy Hill
was shot.
When Deputy Kelly lost sight of Rosario, Rosario was
running east, in the opposite direction of Deputy Hill.
Deputy Kelly testified that his original report stating
that Rosario ran “east along the bayou” was based on
an “incorrect belief.”
– – – –
Deputy Kelly reported that he had “the tall one,”
meaning Will, “in custody,” suggesting Will was
handcuffed or otherwise under Deputy Kelly’s
control.
Shortly after Deputy Kelly lost sight of Rosario, Deputy
Kelly heard between 5 and 7 gunshots.
38

– – – –
After the last shot was fired, Deputy Kelly saw
“somebody” running from the direction where Deputy
– – – –

36
In re Cathey, 857 F.3d at 226 (quoting In re Campbell, 750 F.3d at 530).
37
For the avoidance of doubt, we only consider the evidence that the jury received.
We are not factoring in, for example, evidence that was excluded from trial, affidavits or
evidence that were uncovered post-trial, or counsels’ opening and closing statements. See
Zafiro v. United States, 506 U.S. 534, 541 (1993) (recognizing that “opening and closing
statements are not evidence”).
38
In its brief, the Government asserts that only 8 seconds passed between the time
Deputy Kelly lost sight of Rosario and when he heard the first gunshot, meaning Rosario
would not have had time to run over 400 feet to reach Deputy Hill and Will. However,
evidence of this was not presented during trial; it was a conclusion offered by the
Government’s counsel during closing argument, which is not evidence. See Zafiro, 506 U.S.
at 541. In response, Will’s counsel offered his conclusion that significantly more time (at
least 87 seconds) passed between these two events, such that Rosario would have had ample
time. But, again, arguments offered in closing statements are not evidence. See id.
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Evidence Supporting Guilt Evidence Supporting Reasonable Doubt
Hill was shot toward a parking lot. When Deputy Kelly
got to the parking lot, a woman (Cassandra Simmons)
told Deputy Kelly that a man stole her car at gun point.
Simmons testified that a man she identified as Will
opened her car door, ordered her to get out, said “I just
shot police,” and put a gun to her neck.
Simmons’ testimony did not include the statement “I
just shot a policeman” until thirteen months after she
gave her first statement to officers, even though Ms.
Simmons knew, at the time she gave her first
statement, that the theft of her car was related to an
investigation into the death of a police officer.
When Will was ultimately pulled over in Simmons’ car,
the murder weapon was also found in the vehicle.
There was no evidence that Will was holding the gun
at the time Deputy Hill was shot.
Gunshot residue was found on Will’s left hand and on
the left-hand glove that was found in Simmons’ car.
Will was shot in the left hand by the same gun that
shot Deputy Hill, and the examiner testified that the
residue was “almost certainly” from the gunshot
wound to the hand.
If Will shot himself in the left hand, he probably
would have been holding the gun in his right hand, but
the gun residue tests were inconclusive as to Will’s
right hand and the right glove.
The medical examiner testified that the wound to
Deputy Hill’s left hand would be consistent with an
individual “laying on the ground getting ready to be
handcuffed, taking a moment, pulling a gun out and
shooting upward.”
State Forensic evidence shows that Hill was shot in
the back of the head, and the medical examiner
testified that the wounds would similarly be consistent
with an officer handcuffing a person and another
person approaching the officer from the left side and
shooting the officer in the head.
State Forensic evidence shows that all of the gunshot
wounds to Deputy Hill were long-range, meaning the
gun was more than 2 feet away from Deputy Hill with
each shot.
The medical examiner could not say how Deputy Hill
was standing at the time he was shot, what position
the shooter was when he fired the weapon, or how
many shots were fired.
Handcuffs were found on the ground near Deputy
Hill’s body; the handcuff key was in his pocket; and
spare handcuff key was found by on Deputy Hill’s boot
laces.
Deputy Dalrymple, who photographed the scene,
could not recall if the handcuffs were opened or
closed when he arrived at the scene.
Will’s blood was found on Deputy Hill’s right boot.
There was only a single droplet of Will’s blood found
on the toe of Deputy Hill’s boot, and the blood could
have come from Will being shot in the hand.
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Evidence Supporting Guilt Evidence Supporting Reasonable Doubt
Deputy Hill’s blood was not found on Will.
Officers testified that Will’s clothes had “large white
spots . . . that appeared like maybe bleached or
something,” Will told officers his eyes were burning
and “that it might be a chemical he had in the car”
causing the burning, and Simmons testified she had
bleach in the back of the car Will stole.
Officers did not notice an unusual smell on Will when
they pulled him over.
Will’s blood was still extractable and testable from his
clothing.
The light-colored spots on Will’s clothing were not
tested for any chemicals.
– – – –
Witness who saw Rosario later that same day
described him as “[n]ervous, in a hurry, rushing to
leave.” Rosario told this witness “[n]ot to say
anything to the cops about him because they could
trace it back to what him and Robert [Will] have
done.”
– – – –
Witnesses testified to seeing Rosario the day of the
robbery and described him seeming “nervous and
edgy” and shadow boxing alone outside.
Actual blood stains were not detected on Rosario’s
clothing; any “traces of blood” could have been caused
by packaging Rosario’s clothes in the same bag as
clothing that did have blood on it.
Rosario’s shirt had stains “consistent with traces of
blood.”
– – – –
A fellow inmate testified that Rosario told him that
Rosario “had no choice but to shoot the cop. It was
just instinct and he ran.”
Certainly, the record is not devoid of evidence supporting Will’s
conviction, but it reflects anything but a slam dunk. Even before the Hit
Document and the Schifani Report came to light, the district court noted that
there are “disturbing uncertainties,” a “total absence of eyewitness
testimony or strongly probative forensic evidence,” and “considerable
evidence supporting Will’s innocence.”
39
The district court’s analysis of the

39
Will v. Thaler, 2012 WL 135590, at *10 (S.D. Tex. Jan. 17, 2012) (unpublished)
(noting that the evidence against Will is purely circumstantial, “lamenting the strict
limitations placed upon the [district court prohibiting it from reversing Will’s conviction
and death sentence],” and imploring the state executive branch to “exercise restraint in
the execution of Will’s sentence”).
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evidence does not bind this court, but it demonstrates that the old evidence
establishing Will’s guilt is assailable.
Now the new evidence. First, there’s the Hit Document, which
reveals that Rosario was placed in administrative separation for soliciting
another to “make a hit” on Will. The timing of the document is important.
It suggests that Rosario attempted to have Will, the only other witness to
Deputy Hill’s murder, killed prior to trial—before Will could testify against
him. Though this evidence is not immune from attack, it does provide
convincing evidence that Rosario—not Will—had testimony to bury.
Second, we have the Schifani Report. In this report, Deputy Schifani
recounts that, while moving inmates between cells, Rosario observed a
“mourning” badge cover Deputy Schifani was wearing in honor of Deputy
Hill. As Deputy Schifani describes it, Rosario “pointed at [her] badge cover
and sarcastically asked [her], ‘Do you know why you are wearing that?’”
When Deputy Schifani responded in the affirmative, Rosario continued, “I
am part of the reason you are wearing it. Do you know who I am?” Again,
Deputy Schifani responded in the affirmative. Rosario then stuck his arm out
and instructed Deputy Schifani to look at his armband, pointing to the
cautionary text that read “*PROTECTION*.” The report goes on to
recount Rosario’s “swagger[]” as she moved him to his separation cell and
that he “appeared to take pleasure in his notoriety.” As with the Hit
Document, this evidence is not a “smoking gun,” but it also does not evince
the distant bystander to Deputy Hill’s murder that the State described
throughout trial. To the contrary, Rosario is confessing to an active role in
the murder of Deputy Hill, undermining the State’s theory of the case and
further bolstering Will’s unrelenting protestations that he was not the
shooter. Clear and convincing evidence by any account.
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The dissent would have us reach a different conclusion because
neither piece of evidence is a “smoking gun” of Will’s innocence.
40
But, as
we’ve explained, the controlling standard is not whether the newly
discovered evidence proves innocence beyond all doubt. The standard is one
of reasonable doubt—whether Will has made a prima facie showing, by clear
and convincing evidence, that no reasonable factfinder would find him guilty.
As the district court stressed, there is “considerable evidence supporting
Will’s innocence,” including “the total absence of eyewitness testimony or
strongly probative forensic evidence.”
41
There were “disturbing
uncertainties” of Will’s culpability even before the introduction of the
withheld evidence.
42
Now, with the new evidence in hand, the uncertainties
are even more disturbing.
Based on the probative value of the previously withheld evidence, Will
has made a sufficient showing to proceed to a fuller review.
43
He’s
demonstrated it is reasonably likely that, after hearing the new evidence
alongside the old evidence, every reasonable juror would have some level of
reasonable doubt.
44
We express no view on whether Will should ultimately

40
See Dissenting Op. at *21.
41
Will v. Thaler, 2012 WL 135590, at *10. The dissent also quotes an affidavit from
Will’s trial counsel, see Dissenting Op. at *19; however, this affidavit was not (and almost
definitely cannot be) put before a jury, and it is therefore not part of our review.
42
Id.
43
See In re Morris, 328 F.3d at 741 (Higginbotham, J., concurring) (expressing
skepticism as to defendant’s ability to satisfy the third prong of § 2244(b)(2) but concurring
“dubitante” because the defendant had demonstrated “enough merit to warrant further
exploration by the district court” and because this court’s ruling is “tentative,” pending
the district court’s further examination).
44
See In re Winship, 397 U.S. 358, 364 (1970) (“[T]he reasonable doubt standard is
indispensable, for it impresses on the trier of fact the necessity of reaching a subjective state
of certitude on the facts in issue.” (emphasis added) (internal quotation omitted)).
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prevail on the merits or whether he is actually innocent.
45
We hold only that
Will has made a prima facie showing that his Brady claim deserves fuller
consideration. He may be right. He may be wrong. But he should be heard.
* * *

Because Will made a prima facie showing that his Brady claim was not
previously presented, that the evidence could not have been discovered
through due diligence, and that his claim has merit, we grant Will’s motion
to file a successive habeas petition.
IV
For the foregoing reasons, we AFFIRM the district court’s transfer
order and GRANT the motion for authorization to file a successive habeas
petition.

45
See In re Cathey, 857 F.3d at 227 (granting the motion to authorize a successive
petition while acknowledging that “[w]e express no view on whether [petitioner] will or
ultimately should prevail on his claim” (quoting In re Mathis, 483 F.3d at 399)).
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James C. Ho, Circuit Judge, dissenting:
Federal courts cannot interfere with state criminal convictions,
including capital convictions, except under the limited circumstances
recognized by Congress and the Supreme Court. Our review is limited, not
because Congress and the Supreme Court disrespect constitutional rights,
but because they respect “the principles of comity, finality, and federalism.”
Panetti v. Quarterman, 551 U.S. 930, 945 (2007) (cleaned up). Comity and
federalism, because we honor the sovereign prerogative of state judiciaries to
enforce criminal law and constitutional rights—and finality, because a system
of endless appeals is antithetical to the rule of law.
“Federal habeas review of state convictions . . . intrudes on state
sovereignty to a degree matched by few exercises of federal judicial
authority.” Harrington v. Richter, 562 U.S. 86, 103 (2011). It “frustrates both
the States’ sovereign power to punish offenders and their good-faith
attempts to honor constitutional rights.” Id. So Congress enacted the
Antiterrorism and Effective Death Penalty Act of 1996 to reaffirm “that state
courts are the principal forum for asserting constitutional challenges to state
convictions”—and that “habeas corpus is a ‘guard against extreme
malfunctions in the state criminal justice systems,’ not a substitute for
ordinary error correction through appeal.” Id. at 102–03 (quoting Jackson v.
Virginia, 443 U.S. 307, 332 n.5 (1979) (Stevens, J., concurring in the
judgment)).
Our reticence to interfere should be particularly acute where, as here,
the defendant has been convicted, and the conviction has been repeatedly
affirmed, first on direct appeal, and then again and again in multiple rounds
of habeas petitions and appeals, in both state and federal court. When all that
process has been afforded, when dozens of state and federal judges have
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reviewed and approved the conviction and sentence, it is long past time for
closure—for the victims, for the defendant, and for the legal system.
Federal law reflects this sentiment by forbidding federal courts of
appeals from authorizing successive federal habeas petitions, except under
extremely narrow circumstances. Among other requirements, there must be
“clear and convincing evidence,” after taking any new facts “in light of the
evidence as a whole,” 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)(B)(ii) (emphasis added).
So we have no choice but to deny authorization to proceed on a
successive habeas petition unless “no reasonable juror would have voted to
convict.” In re Raby, 925 F.3d 749, 758 (5th Cir. 2019). Not surprisingly, we
have described the standard as a “strict form of innocence.” Johnson v.
Dretke, 442 F.3d 901, 911 (5th Cir. 2006) (cleaned up).
This case comes nowhere close to meeting that rigorous standard. Far
from meeting a “strict form of innocence,” the evidence of guilt is
compelling—and certainly sufficient for a reasonable juror to convict:
• Will confessed to shooting Hill just moments after it happened.
Shortly after the shooting, he pointed a gun at an innocent bystander,
Cassandra Simmons, and ordered her out of her car, claiming that he
had “just shot a police officer” and needed her car to flee. (Will
denies that he ever confessed to Simmons. But he has offered no
credible theory as to what would have motivated Simmons to lie.)
• Not long after the carjacking occurred, Will was caught in Simmons’s
stolen car, in possession of a loaded gun.
• Subsequent testing confirms that the loaded gun in Will’s possession
at the time of his arrest was indeed the gun used to kill officer Hill.
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• The physical evidence indicated that Will tried to conceal that he had
fired the gun. According to the trial record, his clothing was covered
with bleach, and he complained to the arresting officer that he had
gotten bleach in his eyes. (Simmons later testified she had a bottle in
bleach in her trunk at the time Will carjacked her. At the time of
arrest, that bottle of bleach was found in the passenger seat.)
• Despite Will’s efforts to conceal his acts, his hands tested positive for
gunshot residue. (No one has offered an innocent explanation for why
Will would have taken the time to cover himself in bleach.)
• The medical examiner testified that the physical evidence supported
the conclusion that Will shot Hill while in custody.
Yet Will claims that no reasonable juror would have voted to convict
him, despite all of these facts? I find that unfathomable.
1

What’s more, Will’s own experts admitted that the physical evidence
implicated Will as the shooter. According to an affidavit from Will’s trial
counsel, Will’s blood spatter expert told counsel: “[Y]ou do not want to call
me as a witness in this case . . . My conclusions are that the physical evidence
is consistent with your client shooting the deputy.”
2

1
The majority includes an evidence chart that, in its view, supports Will’s
successive habeas petition. But the chart actually proves the opposite—it shows that a
reasonable juror had ample basis to convict Will. As the majority admits, “the record is
not devoid of evidence supporting Will’s conviction.” So then how can the successive
petition proceed under AEDPA? The majority says it’s because the evidence to convict is
not “a slam dunk.” But that gets AEDPA exactly backward: AEDPA allows the filing of a
successive habeas petition only when a reasonable juror is compelled to acquit—not (as the
majority suggests) when a reasonable juror is not compelled to convict.
2
The majority notes that “this affidavit was not (and almost definitely cannot be)
put before a jury.” True enough. It was introduced at the evidentiary hearing in Will’s
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In response, Will cites two documents that the prosecution failed to
disclose until after his first federal habeas petition. But neither document
comes close to making it irrational for any juror to convict—particularly
against the mountain of trial evidence highlighted above.
First is the report from another officer, Patricia Schifani. According
to that report, Rosario bragged that he was “part of the reason” Hill was
killed. But Rosario’s “part[ial]” role in the events is entirely consistent with
the State’s theory of the case at trial: Officers found Will and Rosario running
from a crime scene. Hill pursued Will, while Kelly pursued Rosario. So there
is no question that Rosario played a “part”—and tellingly, only a “part”—
in the events that led to Hill’s murder.
Second is a jail report ordering that Rosario be keep separate from
another inmate, Daniel Cruz. That report contained the following notation:
“soliciting $ to make hit on co-def Robt. Will.” But notably, the report did
not explain why Rosario might have wanted to kill Will. In particular, the
report offered nothing that would connect any motive to kill Will with the
murder of Hill—as opposed to any other dispute those two felons might have
had with one another.
To its credit, the majority is careful to note that this is not a ruling on
the merits, but only an authorization of a successive federal habeas petition.
But the result should be the same. Because under AEDPA, a “court of
appeals may authorize the filing of a second or successive application only if
it determines that the application makes a prima facie showing that the
application satisfies the requirements of this subsection.” 28 U.S.C.

first federal habeas petition—the same proceedings from which the majority quotes the
district court’s interpretation of the trial evidence.
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§ 2244(b)(3)(C) (emphasis added). To authorize this successive petition,
then, the majority must conclude that Will has stated a prima facie case.
But the majority admits that neither the Schifani report nor the Cruz
separation order constitutes “smoking gun” evidence of innocence. That
should be fatal to Will’s request for authorization to file a successive petition.
Because there is no doubt that the evidence presented at trial was more than
sufficient to permit a reasonable juror to convict—and neither the Schifani
report nor the Cruz separation order alters that conclusion. Accordingly, we
may not permit this successive habeas petition to proceed, consistent with
Congress’s instructions. See, e.g., In re Swearingen, 935 F.3d 415, 420 (5th
Cir. 2019) (denying authorization to file a successive habeas corpus petition,
noting that “it is not sufficient under § 2244(b) merely to show that evidence
‘muddies the waters’”) (quoting In re Raby, 925 F.3d at 759).
* * *
It is often said that “death is different.” True enough. But under
AEDPA, the same rules apply. I respectfully dissent.
3

3
Section 2244(b)(2)(B) imposes a “due diligence” requirement as well as a
requirement that “no reasonable factfinder” would convict. Will plainly fails under the
second prong, so I do not analyze whether his petition should additionally fail under the
first prong. See Majority Op. at 9 & n. 49; see also, e.g., Blackman v. Davis, 909 F.3d 772
(5th Cir. 2018); In re Davila, 888 F.3d 179, 184 (5th Cir. 2018); Johnson, 442 F.3d at 910.
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