Johnson v. Dretke

United States Court of Appeals
Fifth Circuit
F I L E D
March 13, 2006
Charles R. Fulbruge III
Clerk
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 03-51102
MICHAEL DEWAYNE JOHNSON,
Petitioner-Appellant,
VERSUS
DOUG DRETKE, Director, Texas Department of Criminal Justice,
Correctional Institutions Division
Respondent-Appellee.
Appeals from the United States District Court
For the Western District of Texas
Before DeMOSS, BENAVIDES, and DENNIS, Circuit Judges.
DeMOSS, Circuit Judge:
In a prior opinion, this panel granted Petitioner Michael
Dewayne Johnson, a Texas inmate sentenced to death for the murder
of Jeffrey Michael Wetterman, a certificate of appealability
(“COA”) on two issues of law: “(1) whether [Johnson’s] alleged
prosecutorial misconduct claims meet the due diligence requirement
of 28 U.S.C. § 2244(b)(2)(B)(i); and
(2) if so, whether Johnson's prosecutorial misconduct claims merit
relief.” Johnson v. Dretke, 394 F.3d 332, 338 (5th Cir. 2004).
In his successive habeas petition, Johnson claims that David

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Vest, an accomplice and witness at his trial, confessed to the
capital murder crime for which Johnson was sentenced to death.
Both Johnson and Vest were charged, separately, with aggravated
robbery by indictments that charged each man with shooting
Wetterman. Vest signed under oath a factual stipulation, in which
Vest averred that he shot Wetterman, and submitted the stipulation
to the court when he pleaded guilty to the aggravated robbery count
as charged. Although Vest’s factual stipulation was submitted to
the court, it was not read aloud at the plea hearing.
Subsequently, Vest testified at Johnson’s trial that Johnson shot
Wetterman. Johnson argues that his sentence and conviction were
obtained in violation of the U.S. Constitution because the
prosecution failed to disclose Vest’s factual stipulation to
Johnson’s counsel, in violation of Brady v. Maryland, 373 U.S. 83
(1963), and because the prosecution knowingly presented false
testimony to the jury in the form of Vest’s testimony,
contradicting his factual stipulation, that Johnson shot Wetterman,
in violation of Giglio v. United States, 405 U.S. 150 (1972). The
district court found that Johnson did not meet the successive
petition requirements, and in the alternative, if he did, that his
claims did not merit relief.
Because we conclude that Johnson cannot meet the requirements
of 28 U.S.C. § 2244(b), we are constrained to AFFIRM the district
court’s dismissal of Johnson’s successive habeas petition, even on

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a troubling record of the State’s inconsistent pretrial and trial
strategy with respect to the two co-defendants.
I. FACTUAL AND PROCEDURAL BACKGROUND
A.
The following summary of the material facts demonstrated at
trial is taken from the opinion and order of the Texas Court of
Criminal Appeals ("TCCA"), affirming Johnson’s conviction and
sentence on direct appeal. See Johnson v. State, No. 72,436, (Tex.
Crim. App. Sept. 24, 1997). David Vest testified for the State
after pleading guilty to the aggravated robbery charge alleging
that he shot Wetterman and after receiving an eight-year sentence
in return for his testimony.
According to Vest, around September 8, 1995, a friend, Michael
Barry, showed Vest a stolen Suburban and a nine-millimeter gun
Barry had found in the stolen vehicle. The following day, Vest
visited Johnson’s house while Barry was also there and saw the same
nine-millimeter gun at Johnson’s house. Later that day, September
9, Vest drove around with friends, including Barry, in a stolen
Cadillac, and eventually Vest dropped off all of the passengers and
then picked up Johnson. Vest and Johnson returned to Johnson’s
house, where by this time Barry was asleep; Johnson went inside the
house and returned with the nine-millimeter gun tucked in his
waistband. The two began driving again and headed for the Texas
coast. When the stolen car’s gas tank approached empty, the two

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decided to steal gasoline from a gasoline station. The two men
switched positions in the car, and Johnson drove to several
gasoline stations; the pair ultimately stopped at the third, a
Lorena Fastime convenience store and gas station. Vest began
pumping gasoline, and as he was doing so, the clerk, Jeff
Wetterman, came out of the store and began talking to him. Johnson
then got out of the car and walked to the rear of the car. Vest
asked Johnson whether Johnson had the weapon, and Johnson lifted
his shirt revealing the gun in his waistband. Vest muttered “shit”
under his breath, and as he returned the gasoline nozzle to the
pump, he heard a shot and saw Wetterman fall. Johnson and Vest got
back in the car and sped away. On their way home, Johnson sold the
gun to a truck driver, and the next day, Vest saw an account of the
murder and told his mother what happened. Id., slip op. at 1-3.
In addition to Vest’s testimony recounted above, other
evidence was presented by the State. A witness at the scene,
Wetterman’s co-worker, testified that Wetterman left the store to
help a customer. The witness heard a shot, and when she looked out
to the pumps, she saw Wetterman on the ground and a blond-haired
man standing by the passenger door of what she later identified as
a Cadillac. Larry Reynolds testified that he was at Vest’s house
after the incident when Vest and Johnson arrived there. Reynolds
testified that Johnson told him that Johnson and Vest had tried to
steal gasoline and that Johnson had shot the victim in the face

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1Other witnesses also identified Johnson and Vest in several
locations, consistent with Vest’s testimony, on the day of the
shooting. Also, hair evidence from the recovered Cadillac was
determined to be consistent with Johnson’s, and cigarette butts
found in the car revealed deoxyribonucleic acid evidence
consistent with blood samples taken from both Johnson and Vest.
Id., slip op. at 3-5.
5
after he thought he heard Vest say “shoot.” Barry testified that
he had stolen both the Suburban and the Cadillac and left the gun
at Johnson’s house, but that he awoke in Johnson’s house to find
the gun missing. When Barry asked Johnson about it, Barry
testified that Johnson replied he had shot someone and was forced
to dispose of the gun. A witness, Paul Muniti, also testified that
Johnson said Johnson had shot someone while he and Vest were
stealing gasoline. Id., slip op at 3-5.1
In presenting an alibi defense, Johnson offered the testimony
of several witnesses. His mother testified that Johnson had been
at his aunt’s farm on the weekend of the incident, and another
witness testified to having seen Johnson at the farm that weekend
and having been with Johnson on the night of September 9, 1995.
Id., slip op. at 5-6.
B.
Johnson was convicted in May 1996 of capital murder and
sentenced to death. See TEX. PENAL CODE ANN. § 19.03(a)(2). The
Texas Court of Criminal Appeals ("TCCA") affirmed the conviction
and sentence, and the U.S. Supreme Court denied certiorari.
Johnson filed his first state application for habeas relief on

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October 6, 1997, and the state trial court held a hearing before
recommending denial of relief. On March 29, 2000, the TCCA denied
Johnson’s application based on the trial court's findings. On
September 13, 2000, Johnson filed his first application for federal
habeas relief in the Western District of Texas. That request was
denied, as was his request for a COA, and the Supreme Court denied
his request for certiorari on March 24, 2003.
Approximately one week before his scheduled execution, Johnson
filed a second state habeas application on February 13, 2003.
There, Johnson asserted the same claims of prosecutorial misconduct
he presents now in federal court (as well as the same ineffective
assistance of counsel claim upon which this panel denied COA). The
TCCA determined that Johnson's application was an abuse of the writ
under Article 11.071 of the Texas Code of Criminal Procedure and
dismissed his application on February 19, 2003.
Johnson requested leave from this Court to file a successive
federal petition. A majority of this panel granted his motion to
file a successive writ on February 25, 2003, authorizing the
district court to consider a successive habeas corpus application
and granting a stay of execution. Under AEDPA, the district court
was required to dismiss Johnson's motion without reaching the
merits if it found the claim did not meet the standards for a
successive petition. See 28 U.S.C. § 2244(b)(4). The district
court so dismissed Johnson's application, but then notwithstanding

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2Section 2244(b)(2)(B) provides,
(B)(i) the factual predicate for the claim could not
have been discovered previously through the exercise of
due diligence; and
(ii) 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.
§ 2244(b)(2)(B)(i)-(ii).
7
that dismissal, proceeded to deny habeas relief on the merits of
Johnson’s claims as well. Johnson moved for a COA from that
denial, claiming he meets the requirements of § 2244(b)(2)(B) for
successive petitions.2 Johnson argues he is entitled to habeas
relief because his conviction and sentence were obtained in
violation of the U.S. Constitution.
This panel granted a limited COA as quoted above. The parties
submitted supplemental briefing, and oral argument was heard on
September 13, 2005.
C.
David Vest was originally indicted separately from Johnson but
with a nearly identical indictment. Vest’s indictment charged him
with two counts of first degree felony aggravated robbery, see TEX.
PENAL CODE ANN. § 29.03(a)(1), (2), and noticed that during the
commission of that felony, a deadly weapon was used and exhibited.
Paragraph Two of Vest’s indictment, the count charged under §

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29.03(a)(2), read,
David Noel Vest [in the County of McLennan, State of
Texas] on or about the 10th day of September, 1995, did
then and there, while in the course of committing theft
of property and with intent to obtain and maintain
control of the property, namely gasoline, intentionally
and knowingly cause bodily injury to JEFFREY MICHAEL
WETTERMAN, by shooting him with a handgun, and did use
and exhibit a deadly weapon, namely said firearm.
Johnson concedes that he knew of Vest’s indictment, and the record
reflects that Johnson’s counsel was present in the courtroom at the
time of Vest’s guilty plea to Paragraph Two of the indictment.
With respect to Vest’s guilty plea, Johnson argues that he
could not have discovered the following facts, exercising due
diligence, in time to include the prosecutorial misconduct claims
now presented and based upon these facts in his initial habeas
petition.
Vest’s factual stipulation, which was signed by Vest under
oath and submitted to the court in support of his plea, read:
I stipulate that I did then and there, while in the
course of committing a theft of property and with intent
to obtain and maintain control of the property, namely
gasoline, intentionally and knowingly cause bodily injury
to JEFFERY MICHAEL WETTERMAN, by shooting him with a
handgun, and did use and exhibit a deadly weapon, namely
said firearm.
Thus, the factual stipulation tracked verbatim the language of
Paragraph Two of the indictment, the sole count to which Vest
pleaded guilty. Vest’s sworn stipulation was offered in support of
his plea to Paragraph Two of the indictment. At the plea hearing,

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3Although the record on appeal did not originally indicate
whether Vest’s sworn statement was read aloud at the plea,
counsel for the State moved to supplement the record at oral
argument, proffering a copy of the transcript of Vest’s plea.
The panel granted the State’s motion to supplement, and the State
later filed the transcript. After supplementation, the record
also reflects what was said at the time of Vest’s guilty plea.
9
Vest waived a reading of the indictment.3
At Vest’s plea, held on February 29, 1996, Mr. Crawford Long,
the Assistant District Attorney who also prosecuted Johnson, and
Mr. Jack Hurley, counsel for Vest, made appearances before the
court. Vest identified himself to the court, averring that he was
charged in the relevant case number with the offense of aggravated
robbery. Vest indicated his understanding that “the State elected
to proceed only on paragraph 2 of th[e] indictment.” The court
began to request that Mr. Long read the allegations, but counsel
for Vest waived the reading of the indictment. Vest immediately
pleaded guilty “to the allegations of Aggravated Robbery, as
alleged in Paragraph 2 of the indictment.”
The court later asked about the existence of a plea bargain
between the State and Vest. Mr. Long answered that in exchange for
a plea of guilty on the aggravated robbery charge, Vest would
“testify truthfully and honestly in the trial of Mr. Johnson.” Mr.
Long tendered the plea agreement, signed by Vest, to the court
which indicated its review of the agreement and then permitted the
withdrawal of the agreement out of the record. The court then
accepted Vest’s guilty plea but declined to find him guilty,

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instead ordering a presentence investigation. The hearing
concluded.
Johnson argues that he could not have discovered Vest’s
factual stipulation supporting his plea in the exercise of due
diligence because the prosecution violated its Brady duty to
disclose the stipulation. Johnson argues the prosecution’s failure
to provide the stipulation is equivalent to an affirmative
concealment that, as a matter of law, should satisfy the “due
diligence” requirement of § 2244(b)(2)(B)(i).
II. DISCUSSION
Johnson’s successive petition is subject to the congressional
requirements of the Anti-Terrorism and Effective Death Penalty Act
(“AEDPA”). See 28 U.S.C. § 2244; Johnson, 394 F.3d at 334. The
State raises two procedural bars under AEDPA to the success of
Johnson’s petition: untimeliness and procedural default. The State
also argues that the petition does not satisfy § 2244(b)(2)(B).
However, on this record the factual predicate of Johnson’s
substantive claims also bears upon the analysis of the issues of
timeliness, procedural default, and “due diligence” under §
2244(b)(2)(B)(i). Accordingly, we first address the intersection
of the Brady duty of prosecutorial disclosure and a successive
petitioner’s duty to demonstrate that due diligence would not have
previously revealed the factual predicate of claims presented in a
successive petition.

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4The parties also agree that Vest’s stipulation is the
factual predicate for both of Johnson’s claims of prosecutorial
misconduct presented here, the Brady and Giglio claims.
11
A. Johnson Has Not Demonstrated Due Diligence.
In relevant part, AEDPA requires that Johnson’s successive
petition be dismissed unless “the factual predicate for the claim[s
not presented in a prior application] could not have been
discovered previously through the exercise of due diligence.” 28
U.S.C. § 2244(b)(2)(B)(i). The parties implicitly agree that
Johnson could not meet the due diligence requirement in the absence
of his Brady claim because Johnson’s only basis for satisfaction of
§ 2244(b)(2)(B)(i)’s due diligence requirement is that the
prosecution’s failure to disclose material and favorable evidence,
Vest’s stipulation,4 is as a matter of law equivalent to active
suppression. According to Johnson, due diligence would not produce
the discovery of a factual predicate that the prosecution was
required to disclose.
Johnson’s primary argument is that AEDPA’s due diligence
requirement should not be binding upon this Court because in his
view the courts exist “for the purpose of insuring that the States
respect the Supreme law of the land” and in obtaining his
conviction and sentence, Texas failed to do so. In essence,
Johnson argues that the constitutional due process guarantee
protected by Brady is eviscerated by AEDPA if a petitioner is
required to be duly diligent in searching for evidence that should

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have been disclosed to him by the prosecution under Brady. Johnson
also argues that he meets the due diligence requirement as a matter
of law because Vest’s stipulation was located in a separate case
file from his own and that, under the Open File policy of the
prosecution at the time of the trial, the prosecution’s failure to
place Vest’s stipulation in the Open File constitutes active
suppression. Johnson asks this Court to collapse AEDPA’s due
diligence requirement into the Brady duty such that due diligence
is met under § 2244(b)(2)(B)(i) whenever a Brady claim has merit.
The State responds that due diligence must be demonstrated
under § 2244(b)(2)(B)(i) before a court may reach the ultimate
merits of a Brady claim. The State argues that even assuming the
Brady claim has merit, Johnson cannot and has not shown that Vest’s
stipulation could not have been discovered in the exercise of due
diligence prior to the filing of his first habeas petition, because
(1) Vest’s stipulation was part of the public record, in Vest’s
file, and available to anyone who sought it, including Johnson; (2)
Johnson’s counsel knew of Vest’s indictment and was present when
Vest pleaded guilty to Paragraph Two of the indictment, and the
stipulation tracked identically the language in Vest’s indictment;
and (3) Johnson has never explained how he ultimately discovered
the stipulation, suggesting that the manner of its discovery was
available to Johnson at the time he filed his initial petition.

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To determine whether due diligence is satisfied by Johnson’s
inaction — or by his failure to explain what actions were taken —
based upon his reliance on Brady disclosure, we begin with the
plain language of AEDPA. See Moore v. Cain, 298 F.3d 361, 366 (5th
Cir. 2002) (quoting Withrow v. Roell, 288 F.3d 199, 203 (5th Cir.
2002)). AEDPA permits the filing of a successive petition when
either “the applicant shows that the claim relies on a new rule of
constitutional law . . . ,” § 2244(b)(2)(A) (emphasis added), or
when “the factual predicate for the claim could not have been
discovered previously through the exercise of due diligence” and
the petitioner establishes prejudice in the absence of successive
review, § 2244(b)(2)(B) (emphasis added). This distinction in
congressional language between the two paths by which a successive
petition may be raised informs the question presented here. While
Congress requires a petitioner to bear the burden of showing that
his claim relies upon a new rule of constitutional law, the
language it chose with respect to a claim based upon new evidence
or a new factual predicate is cast in the passive voice. As such,
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. The
burden to make such a showing, of course, remains the petitioner’s.
§ 2244; see also Moore v. Dretke, 369 F.3d 844, 846 (5th Cir.
2004).

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Thus, the plain language of the statute requires that we
determine not whether Johnson has shown that Vest’s stipulation
could not have been discovered previously through Johnson’s
exercise of due diligence but instead whether Vest’s stipulation
could have been discovered previously through the exercise of due
diligence. See § 2244(b)(2)(B)(i). This is not necessarily a
distinction without a difference, especially in the instant case
where Johnson argues that with respect to Brady material, due
diligence is objectively satisfied not by reference to Johnson’s
action or inaction, but instead by reference to the State’s action
or inaction. Were we to accept Johnson’s approach, we would ask
only whether Johnson had demonstrated that (1) the State bore a
duty to disclose the stipulation and (2) the State failed to
fulfill this duty. If so, then according to Johnson’s analysis the
stipulation might have been discovered by significant diligence but
could not have been discovered by due diligence alone because
inaction was the only response due on Johnson’s behalf.
The State responds that the plain language of AEDPA creates a
due diligence burden for petitioners that is higher than the
elements of a Brady claim, even though the two are similar. The
higher burden of AEDPA is acceptable, according to the State,
because the assessment is jurisdictional in nature. Compare §
2244(b)(2)(B)(i), with § 2254(e)(2) (requiring due diligence but,
unlike § 2244(b)(2)(B)(i) at issue here, containing an opening

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clause that precludes an evidentiary hearing where the petitioner
is “at fault” for failing to develop the factual basis of a claim
in state court); see also Williams v. Taylor, 529 U.S. 420, 431-32
(2000) (interpreting § 2254(e)(2)’s introductory clause, “if the
applicant has failed to develop the factual basis of a claim,” and
concluding that no failure exists in the absence of a “lack of
diligence, or some greater fault” on petitioner’s behalf).
In Williams, the Supreme Court addressed diligence under a
different AEDPA provision, § 2254(e)(2), in the context of a Brady
claim. The Court found petitioner there diligent, under the
statutory requirement, in pursuing his prosecutorial misconduct
claim, in part because counsel had no reason to believe the
misconduct existed given that the prosecutor remained silent when
asked questions that would have revealed the misconduct. Id. at
441-42. The record was void of evidence that would have put a
reasonable attorney on notice of misconduct, and therefore defense
counsel was misled affirmatively into believing no issue existed to
be pursued with diligence. Id.
Such is not the case on this record, which includes evidence
that would put a reasonable attorney on notice of the existence of
Vest’s stipulation. Here, Johnson knew of Vest’s indictment, knew
of Vest’s guilty plea to the indictment as charged in Paragraph
Two, and knew of Vest’s submission of both the stipulation and a
plea agreement to the court at his plea hearing. The record before

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us is absolutely void of any assertion that any attempt was ever
made either to request Vest’s file or information about the
stipulation from the prosecution or to investigate the
circumstances surrounding Vest’s plea, despite the fact that
defense counsel was present in the courtroom at the time of the
plea and aware of both the plea and the indictment. Moreover,
Williams indicates that by “diligence” Congress intended to require
more of petitioners than Johnson has demonstrated. “Diligence . .
. depends upon whether the [petitioner] made a reasonable attempt,
in light of the information available at the time, to investigate
and pursue claims in state court . . . .” Id. at 435. However,
Williams pertains to diligence under § 2254(e), and while it is
instructive, it does not control our analysis or conclusion here.
One purpose of AEDPA is to enforce the preference for the
state’s interest in finality of judgment over a prisoner’s interest
in additional review. See Calderon v. Thompson, 523 U.S. 538, 557
(1998). This purpose suggests that the elements of § 2244(b)(2)(B)
must be resolved prior to, and independently of, consideration of
the similar elements of a Brady claim. In this manner the Eleventh
Circuit has explained the burden upon a petitioner such as Johnson.
In Felker v. Turpin, 101 F.3d 657, 658 (11th Cir. 1996), petitioner
sought and was denied a COA on a Rule 60(b) motion for relief from
judgment denying his § 2254 petition. There, the petitioner
claimed that his conviction was obtained in violation of Brady

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because the prosecution failed to disclose documents the petitioner
ultimately discovered as a result of filing a Georgia Open Records
Act lawsuit. Id. at 662. Addressing the intersection of
petitioner’s Brady claims with § 2244's due diligence requirement
as an alternative basis for denial of COA, the court affirmed that
the factual predicates for the Brady claims were information that
“counsel for Petitioner could have sought . . . prior to the first
state habeas petition.” Id. The court reasoned that petitioner
might have filed the same Open Records Act suit at any time before
filing his first habeas petition and therefore failed to meet the
burden required by § 2244(b)(2)(B)(i). Id.
Following Felker, the Eleventh Circuit has consistently
required successive petitioners stating Brady claims to first show
that the factual predicate could not have been discovered
previously before ever reaching whether the prosecution failed to
disclose Brady material. See In re Buenoano, 137 F.3d 1445 (11th
Cir. 1998); In re Jones, 137 F.3d 1271 (11th Cir. 1998); In re
Magwood, 113 F.3d 1544 (11th Cir. 1997); In re Boshears, 110 F.3d
1538 (11th Cir. 1997). Petitioner Boshears claimed the state
withheld, in violation of Brady, a police report of an
investigator’s interview with a physician who examined the victim
of the crime that permitted an exculpatory conclusion from the
medical evidence. Boshears, 110 F.3d at 1540. Interpreting
Felker, the court stated the standard required of the petitioner to

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permit a successive filing under § 2244(b)(2)(B)(i). Id. “[A]n
applicant seeking permission to file a second or successive habeas
motion must show some good reason why he or she was unable to
discover the facts supporting the motion before filing the first
habeas motion.” Id. Moreover, a petitioner who alleges no more
than a lack of knowledge of the facts underlying his claim “does
not pass this test.” Id.
Thus, in addressing the intersection between successive
petition due diligence and prosecutorial misconduct, the Eleventh
Circuit asks “whether a reasonable investigation undertaken before
the initial habeas motion was litigated would have uncovered the
facts the applicant alleges are ‘newly discovered.’” Id. In
Boshears, the petitioner failed to make the requisite due diligence
showing because he failed to explain why a reasonable investigation
would not have uncovered the factual predicate of his claim and,
indeed, the record demonstrated that a diligent effort would have
disclosed the factual predicate prior to the filing of the first
habeas petition. Id. at 1541 (noting that a telephone log in the
public defender’s office showed defense counsel made contact with
the doctor whose report was sought and that defense counsel
admitted to deciding not to use the doctor as a witness). Were we
to adopt the Eleventh Circuit’s approach, Johnson would fail to
meet the due diligence requirement of § 2244 because he has done no
more than allege his lack of knowledge of Vest’s stipulation, the

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factual predicate for his Brady claim. In other words, Johnson
both fails to show that he could not have discovered the document
and he fails to offer any “good reason” why he could not locate the
stipulation before the filing of the first habeas petition,
irrespective of any prosecutorial disclosure duty.
However, we need not adopt the Eleventh Circuit’s approach,
even though the State relies upon Felker and Boshears. In this
Circuit, we have previously suggested that the merits of Brady
cannot be collapsed with the due diligence requirements of §
2244(b)(2)(B)(i). Kutzner v. Cockrell, 303 F.3d 333, 337 (5th Cir.
2002) (denying petitioner’s request to file a successive petition
in part because petitioner failed to show that the facts underlying
his Brady claim could not have been previously discovered through
the exercise of due diligence). There, petitioner failed to
demonstrate that “prosecutorial misconduct . . . prevented him from
discovering the factual basis of his successive claims at the time
his first habeas petition was litigated,” id. at 336, where the
factual basis of his claim, potentially exculpatory physical
evidence, was “equally available to both the defense and the
prosecution” and was discussed at the petitioner’s trial, id.
Thus, in this Circuit, the Brady and due diligence analyses are not
collapsed where the record demonstrates that the defendant or
defense counsel was aware of the potential Brady material but
failed to pursue investigation of that ultimate claim.

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Unlike Kutzner, here the potentially exculpatory material,
Vest’s stipulation itself, was not discussed at Johnson’s trial.
However, the record does demonstrate that Johnson was aware of
Vest’s indictment and that Johnson’s counsel was present at Vest’s
plea. The transcript of that plea reflects that Vest’s factual
stipulation was submitted. Thus, Johnson’s counsel knew or should
have known that Vest was also charged with shooting Wetterman and
pleaded guilty to that charge as indicted. In light of this
notice, Johnson pursued an alibi defense at his trial, and
Johnson’s counsel did not attempt to impeach Vest with the language
of the indictment that identified Vest as the shooter. On such a
record, Johnson cannot demonstrate that Vest’s stipulation could
not have been discovered previously in the exercise of due
diligence. The failure to previously discover Vest’s stipulation
is objectively a bar to Johnson’s successive petition, irrespective
of the merits of his Brady claim.
This conclusion is bolstered by other Circuits’ rejection of
any collapse of AEDPA’s duty upon successive petitioners to show
due diligence into Brady’s duty upon prosecutors to disclose
material, exculpatory information. The Fourth Circuit, citing
Williams, recognized the AEDPA policy supporting the separation of
the successive petition due diligence requirement from the
prosecutorial misconduct evaluation under Brady. Evans v. Smith,
220 F.3d 306, 323 (4th Cir. 2000). In finding that the petitioner

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failed to make the requisite showing of due diligence, the court
implied that to reach the merits of the Brady claim, when
petitioner had failed to show he could not have with due diligence
discovered the factual basis for the claim prior to filing his
first federal habeas petition, “would thwart the statutory scheme
and render Congress’ limitations on second or successive petitions
a nullity in a wide range of cases.” Id. at 324.
In Cooper v. Woodford, 358 F.3d 1117, 1124 (9th Cir. 2004),
the petitioner argued that the prosecution’s failure to disclose
potentially exculpatory evidence constituted a Brady violation and
permitted his successive petition, and the en banc court granted
authorization to file in district court a successive petition but
declined to fully review the intersection of the Brady claim and §
2244. Dissenting, Judge Tallman addressed the question avoided by
the en banc court and the question we must address today. Id. at
1125 (Tallman, J., dissenting). Judge Tallman identified that
AEDPA’s due diligence provision in § 2244(b)(2)(B) precludes the
normal review of prosecutorial misconduct. Id. In explaining why
he would not have permitted the filing of the successive petition
for the writ, Judge Tallman wrote: “[t]he proper test under §
2244(b)(2)(B)(i) is whether this information was available upon the
exercise of due diligence. The warden’s declaration explicitly
states that she was ready and willing to share this information
with the defense. . . . [T]he defense’s utter failure to

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independently investigate the issue evinces a lack of diligence.”
Id. at 1125-26.
In light of the plain text of AEDPA and our caselaw, we must
conclude that 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) where the
petitioner was noticed pretrial of the existence of the factual
predicate and of the factual predicate’s ultimate potential
exculpatory relevance. Johnson has presented no more, and as such,
his successive petition must be dismissed.
B. Johnson Cannot Satisfy 28 U.S.C. 2244(b)(2)(B)(ii).
Though we need not address it in light of the above
conclusion, we note that even if we concluded that 28 U.S.C. §
2244(b)(2)(B)(i) allowed due diligence to be satisfied by a
meritorious Brady claim, we would be forced to affirm the district
court’s dismissal of Johnson’s successive petition because he
cannot satisfy § 2244(b)(2)(B)(ii). In order for his successive
petition to survive dismissal, Johnson must show that “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.” § 2244(b)(2)(B)(ii) (emphasis added). This
standard has been described as “a strict form of ‘innocence,’ . .

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. roughly equivalent to the Supreme Court’s definition of
‘innocence’ or ‘manifest miscarriage of justice’ in Sawyer v.
Whitley.” 2 RANDY HERTZ & JAMES S. LIEBMAN, FEDERAL HABEAS CORPUS PRACTICE &
PROCEDURE § 28.3e, at 1459-60 (5th ed. 2005) (citing Sawyer v.
Whitley, 505 U.S. 333 (1992)).
Johnson has made no such showing here. We cannot say that no
reasonable jury would have found Johnson guilty where three
witnesses, unaffected by Vest’s testimony or the potentially
exculpatory evidence and Vest’s related plea, each testified that
Johnson confessed to shooting the victim.
Because we determine that Johnson cannot meet AEDPA’s filing
requirements for his successive petition, see § 2244(b)(2)(B), we
need not address the State’s argument that the petition is
untimely, see § 2244(d)(1), or procedurally barred based upon the
TCCA’s dismissal of the successive petition as an abuse of the
writ, see TEX. CODE CRIM. PROC. ANN. art. 11.071, § 5.
CONCLUSION
Accordingly and for the foregoing reasons, we affirm the
district court’s dismissal of Johnson’s successive habeas petition
for failure to meet the requirements of § 2244(b).
AFFIRMED.

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