In Re: Ricky McGinn

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-10367
IN RE: RICKY NOLEN McGINN,
Movant
Order on Application for Leave to File a Successive Writ
United States District Court for the
Northern District of Texas
June 1, 2000
Before HIGGINBOTHAM, JONES, and DENNIS, Circuit Judges.
PER CURIAM:
Petitioner filed on April 11, 2000, a petition for leave to
file a successive writ. At that time McGinn was scheduled for
execution on April 27, 2000. The parties consented to a
rescheduling of the execution date for June 1, 2000, an effort to
accommodate petitioner’s counsel whose records were scattered by a
tornado which struck the city of Fort Worth, Texas. The State
responded on April 28, 2000. Petitioner then sought relief in the
Court of Criminal Appeals of Texas by filing a subsequent writ
seeking a stay to allow additional DNA testing. That court found
the application to be an abuse of the writ, and by order of May 30,
2000, denied the application. Petitioner’s application to the

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Texas Court included “defendant’s motion to authorize retesting of
physical evidence by defense DNA expert....”
The State argues that this court should deny leave to file a
subsequent writ on two grounds. First, the ruling by the Texas
Court of Criminal Appeals that Petitioner had abused the process is
an adequate and independent state ground. Second, this court lacks
jurisdiction to grant the requested relief under 28 U.S.C. § 2244.
We are persuaded that we cannot grant leave to file a
successive writ because the petitioner cannot meet the requirements
of 28 U.S.C. § 2244(b)(2)(B)(i). Specifically, petitioner cannot
show that “the factual predicate for the claim[s] could not have
been discovered previously through the exercise of due diligence.”
It is clear that at the original trial there was extensive testing
of blood samples, including reverse paternity DNA tests. The claim
is that while better tests could have been performed then,
developing science enhances the possibility of a better test today.
Yet no submission has been made to this court that any testing
methods developed in the five years following the testing done for
trial were not available to allow timely submission to the federal
district court by February 23, 1999, when it denied habeas relief
in the first petition. We do not reach the issue of whether the
petitioner could meet the statute’s innocence requirement.
We do not suggest that in striving to both convict the guilty
and free the innocent, criminal process can look away from
exculpatory evidence with such potential explanatory power.

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Rather, we remind that this is a court of limited jurisdiction,
only part of an entire system. We are persuaded that Congress has
withheld jurisdiction from this court to grant the requested relief
here. On the facts of this case, Petitioner must obtain his relief
from other parts of this process, a process in which each player
does his job. We express no opinion whether DNA evidence may, in
other circumstances, allow a prisoner to escape the strictures of
the subsequent writ.
The application for leave to file a subsequent writ and for
stay of execution is DENIED.

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