Felker v. Turpin

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________

No. 96-9346
________________________

ELLIS WAYNE FELKER,

Petitioner,
versus

TONY TURPIN, Warden,
Georgia Diagnostic and
Classification Center,

Respondent.

_______________________

On Motion for Certificate of Probable Cause,
or in the Alternative, Certificate of Appealability

_______________________
(November 14, 1996)

Before BIRCH, BLACK and CARNES, Circuit Judges.

PER CURIAM:

On May 2, 1996, we denied Ellis Wayne Felker's first

application filed pursuant to 28 U.S.C. § 2244(b)(3)(A), as amended

by the Antiterrorism and Effective Death Penalty Act of 1996, Pub.

L. No. 104-132, 110 Stat. 1214, for an order permitting him to file

in the district court a second petition for federal habeas relief

under 28 U.S.C. § 2254. Felker v. Turpin, 83 F.3d 1303 (11th
Cir.), cert. dismissed, 116 S. Ct. 2333 (1996). He is now back
before us with an application requesting a certificate of probable

cause to appeal, or a certificate of appealability, permitting an

appeal from the district court's denial of his Fed.R.Civ.P. 60(b)

motion for relief from the January 26, 1994 judgment of that court

denying his 28 U.S.C. § 2254 petition. For the reasons that

follow, we deny that application.

I.

The procedural history, evidence, and facts in this case are

set out: (1) in the Georgia Supreme Court's decision affirming

Felker's convictions and sentence on direct appeal, Felker v.

State, 252 Ga. 351, 314 S.E.2d 621, cert. denied, 469 U.S. 873, 105

S. Ct. 229 (1984); (2) in our opinion affirming the denial of

Felker's first federal habeas petition, Felker v. Thomas, 52 F.3d

907 (11th Cir.), extended on denial of rehearing, 62 F.3d 342 (11th

Cir. 1995), cert. denied, 116 S. Ct. 956 (1996); (3) in our opinion

denying Felker's first application to file a second habeas

petition, Felker v. Turpin, 83 F.3d 1303 (11th Cir. 1996); and (4)

in the Supreme Court's opinion dismissing Felker's petition seeking

certiorari review of our decision, and denying his petition for an

original writ of habeas corpus, Felker v. Turpin, 116 S. Ct. 2333
(1996). Therefore, we will limit our discussion of the procedural

history to the events that have transpired since the Supreme

Court's decision on June 28, 1996.

On August 30, 1996, the Superior Court of Houston County,

Georgia, set September 10 through September 17, 1996, as the period

2
during which Felker's execution would be carried out. The State

scheduled that execution for 2:00 p.m. ET, September 10, 1996. On

September 5, 1996, Felker filed a petition for writ of habeas

corpus in the Superior Court of Butts County, Georgia. (It was his

third state habeas petition.) The Superior Court denied that

petition on September 6, 1996. Three days later, on September 9,

1996, the Georgia Supreme Court denied Felker's application for a

certificate of probable cause to appeal that denial and denied his

motion for a stay of execution. On September 10, Felker applied to

the United States Supreme Court for a stay. The Supreme Court

denied that application. However, Felker was not executed on

September 10, because he obtained a stay from the Houston County

Superior Court in a separate proceeding brought under the Georgia

Open Records Act, Ga. Code. Ann. § 50-18-70 to -76 (1994).

On May 2, 1996, prior to filing his third state habeas

petition, Felker had filed an Open Records Act lawsuit in the

Superior Court of Houston County. In that lawsuit, Felker sought

production of documents related to Felker's conviction. On

September 2, 1996, Felker filed a mandamus petition in the Georgia

Supreme Court, seeking to compel the Houston County Superior Court

to rule on his Open Records Act lawsuit. On September 6, 1996, the

Georgia Supreme Court entered an order requiring the Houston County

Superior Court to consider and rule upon Felker's lawsuit within 48

hours.

On September 8, 1996, the Houston County Superior Court held
a hearing on Felker's Open Records Act lawsuit. At that hearing,

3
a box of documents was turned over to Felker's counsel, and the

hearing was continued to the following day. On September 9, 1996,

the Superior Court stayed Felker's execution until 2:00 p.m. ET,

September 12, 1996. On September 10, the Superior Court extended

the stay of execution until 2:00 p.m. ET, September 14, 1996. On

September 12, 1996, the Superior Court, having concluded its Open

Records Act hearing, denied Felker's motion for summary judgment on

his Open Records Act claim, denied Felker's motion to withdraw the

pending execution warrant, and denied his motion for an additional

stay of execution. Thereafter, Felker's execution was rescheduled

for 3:00 p.m. ET, September 14, 1996.

On September 12, 1996, Felker appealed to the Supreme Court of

Georgia, seeking a stay of execution, review of the Superior

Court's Open Records Act ruling, and reconsideration of the Georgia

Supreme Court's prior denial of a certificate of probable cause to

appeal the denial of Felker's third state habeas petition. On the

same day, the Georgia Supreme Court stayed Felker's execution for

forty days and directed the Houston County Superior Court to make

findings of fact and conclusions of law regarding Felker's Open

Records Act lawsuit. During the forty-day stay of execution, the

Georgia Supreme Court denied Felker's motion for reconsideration.

On September 23, 1996, the Houston County Superior Court

entered written findings of fact and conclusions of law, concluding

that the district attorney had complied with Felker's Open Records

Act request. Felker again appealed to the Georgia Supreme Court.
While that appeal was pending, Felker's execution was rescheduled

4
for 7:00 p.m. ET, November 14, 1996. On October 28, 1996, Felker

filed a motion with the Georgia Supreme Court for a stay of

execution. On October 30, 1996, the Georgia Supreme Court affirmed

the judgment of the Houston County Superior Court with respect to

Felker's Open Records Act lawsuit, and denied Felker's motion for

a stay.

On November 8, 1996, Felker, acting jointly with another

Georgia death row inmate, Larry Lonchar, filed a motion for a

preliminary injunction and complaint for declaratory and injunctive

relief pursuant to 42 U.S.C. § 1983 in the United States District

Court for the Middle District of Georgia. The basis for that

§ 1983 action was a contention that death by electrocution is a

cruel and unusual punishment in violation of the Eighth Amendment

of the United States Constitution. On November 12, 1996, the

district court denied Felker's motion for a preliminary injunction

and denied his request for declaratory and injunctive relief. He

appealed, and on November 13, 1996, another panel of this Court

affirmed denial of that relief. Felker v. Turpin, No. 96-9334

(11th Cir. Nov. 13, 1996). Thereafter, Felker filed in the United

States Supreme Court a petition for a writ of certiorari and a

motion for stay of execution. On November 14, 1996, the Supreme

Court denied both.

On November 11, 1996, Felker filed his fourth state habeas

petition, together with a motion for a stay of execution, in the

Butts County Superior Court. On the following day, that court

dismissed Felker's petition and denied his motion for a stay of

5
execution. On November 12, 1996, Felker applied to the Georgia

Supreme Court for a stay of execution and for a certificate of

probable cause to appeal the denial of his fourth habeas petition.

On November 14, 1996, the Georgia Supreme Court denied all

requested relief.

On the afternoon of November 14, 1996, Felker filed in the

United States District Court for the Middle District of Georgia a

motion under Federal Rule of Civil Procedure 60(b)(1), (2), (3),

and (6), for relief from the January 26, 1994 judgment of that

court denying his 28 U.S.C. § 2254 petition. He also filed a

motion for a stay of execution. The district court denied Felker's

Rule 60(b) motion on two grounds. First, it held that the motion

was untimely under the express provisions of the rule itself and

applicable case law. Second, the district court held that even if

the Rule 60(b) motion had been timely filed under that rule itself,

the court would still have denied it. The court explained that the

motion for Rule 60(b) relief was tantamount to a second or

successive petition, and Felker had failed to obtain from this

Court an authorization to file it, as required by 28 U.S.C. §

2244(b)(3)(A), as amended. Felker applied to the district court

for a certificate permitting him to appeal, and the district court

denied that application, also.

6
 Felker filed a notice of appeal, and he has now filed with us

an application for a certificate of probable cause, or in the

alternative, for a certificate of appealability.1

II.

Felker's Rule 60(b) motion for relief from judgment was

properly denied by the district court, because it was due to be

treated as a second or successive habeas corpus application. 28

U.S.C. § 2244(b)(3)(A), as amended by the Antiterrorism and

Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat.

1214, requires that an applicant move in the appropriate court of

appeals for an order authorizing the district court to consider

such an application. Felker failed to do so. Instead, he contends

that his Rule 60(b) motion should not be treated as a successive

petition. We disagree.

Although Felker argues that his Rule 60(b) motion "does not

implicate any considerations of 'successive' petitions," he

acknowledges decisions from other circuits "that hold to the

contrary, construing Rule 60(b) motions as essentially identical to

successive petitions." See Memorandum of Law in Support of

Petitioner's Motion for Relief from Judgment at 2 n.2 (M.D. Ga.

1
Although Felker's actual application to this Court came only
at the eleventh hour before his execution, the prior pleadings,
motions, and briefs of the parties in other state and federal
courts, and the opinions and orders of those courts, were lodged
with this Court as they were generated. Because of that, we have
been able to consider the contentions and arguments of the parties
before Felker's application was actually formally filed with this
Court.

7
Nov. 14, 1996). Felker cites as examples of decisions contrary to

his position Clark v. Lewis, 1 F.3d 814, 825-26 (9th Cir. 1993)

("authority suggests, however, that where a habeas petitioner tries

to raise new facts ... not included in prior proceedings in a Rule

60(b) motion, such motion should be treated as the equivalent of a

second petition for writ of habeas corpus"); Blair v. Armontrout,

976 F.2d 1130, 1134 (8th Cir. 1992), cert. denied, 113 S. Ct. 2357

(1993) ("a motion to remand was the functional equivalent of a

second or successive habeas corpus petition, and that if such

petition would be dismissed as abusive of the writ, the motion to

remand should also be denied"); Kyles v. Whitley, 5 F.3d 806, 808

(5th Cir. 1993) (citing an earlier order in that case holding that

petitioner's Rule 60(b) motion was due to be denied on the ground

that "a petitioner may not use a Rule 60(b) motion to raise

constitutional claims that were not included in the original

petition"), rev'd on other grounds, 115 S. Ct. 1555 (1995). Then,

citing no court decision in support of his position, Felker

dismisses those contrary decisions as representing a "questionable

practice."

What Felker fails to come to grips with is that the

established law of this circuit, like the decisions he acknowledges

from other circuits, forecloses his position that Rule 60(b)

motions are not constrained by successive petition rules. See,
e.g., Scott v. Singletary, 38 F.3d 1547, 1553 (11th Cir. 1994)

("The district court chose to construe the [Rule 60(b)] motion as

a subsequent petition for habeas corpus and we will review the

8
district court's denial of relief in the same light."); Lindsey v.

Thigpen, 875 F.2d 1509, 1515 (11th Cir. 1989) (stating that even if

the death row inmate's claim is meritorious "the proper posture in

which to raise that claim is a successive petition for habeas

corpus )) not in a motion pursuant to Fed.R.Civ.P. 60(b)"); Booker

v. Dugger, 825 F.2d 281, 284-85 n.7 (11th Cir. 1987) ("We also note

that the requirements of federal habeas corpus, including the abuse

of the writ standard applied to successive writs, Rule 9(b), 28

U.S.C. § 2254, may properly be superimposed on this independent

action [filed under Rule 60(b)]."). Rule 60(b) cannot be used to

circumvent restraints on successive habeas petitions. That was

true before the Antiterrorism and Effective Death Penalty Act was

enacted, and it is equally true, if not more so, under the new act.

See Felker, 116 S. Ct. at 2340 ("The Act also codifies some of the

pre-existing limits on successive petitions, and further restricts

the availability of relief to habeas petitioners.")

Felker also argues that his Rule 60(b) motion does not bring

into play the Antiterrorism and Effective Death Penalty Act

amendments to the habeas statute, because the underlying ruling

that he seeks to amend, the denial of his first habeas petition,

became final with the denial of rehearing on certiorari on April

15, 1996. That was nine days before the new act went into effect

on April 24, 1996. However, in Felker, 116 S. Ct. 2333 (1996), the
Supreme Court applied the successive petition restrictions of the

new act, which are to be codified as amendments to § 2244(b), to

Felker's attempt to file a second habeas proceeding after the

9
effective date of the act, even though his first habeas petition

had been filed and decided before. Likewise, we hold that the

successive petition restrictions contained in the amendments to §

2244(b) apply to Rule 60(b) proceedings, even where those

proceedings seek to amend a judgment that became final before the

effective date of the amendments. Because Felker's Rule 60(b)

proceeding was due to be treated as a second or successive habeas

corpus application, and because he failed to move in this Court for

an order authorizing the district court to consider that

application, as he was required to do by § 2244(b)(3)(A), the

district court's denial of his motion was entirely proper, and he

has failed to make a substantial showing of the denial of a

constitutional right, as required by 28 U.S.C. § 2253(c)(2), as

amended, before a certificate of appealability may be issued.

III.

Alternatively, even if we treat Felker's application for a

certificate of appealability as a request that we authorize him to

file a second or successive habeas application, such a request is

due to be denied, because the claims do not fall within the §

2244(b)(2)(A) or (B) exception.

A.

All of the claims that Felker raises are Brady v. Maryland,
373 U.S. 83, 83 S. Ct. 1194 (1963), claims, and none of them

"relies on a new rule of constitutional law, made retroactive to

10
cases on collateral review by the Supreme Court, that was

previously unavailable," as required by § 2244(b)(2)(A).

Accordingly, that first exception to the bar against second

petitions raising new claims is inapplicable.

B.

The second exception is also inapplicable, because this is not

a case where "the factual predicate for the claim could not have

been discovered previously through the exercise of due diligence,"

as required by § 2244(b)(2)(B)(i). It is undisputed that Felker

discovered what he asserts as the factual predicate for each of his

claims as a result of his filing a Georgia Open Records Act lawsuit

in May of this year. In a November 12, 1996 order, the Superior

Court of Butts County, Georgia denied Felker's fourth state habeas

petition, which raised claims identical to those in this

proceeding. In doing so, the court found that "[a]ll of the claims

in the present petition are based on information which counsel

obtained pursuant to the Open Records Act proceedings," and that

"[i]t is clear that counsel for Petitioner could have sought this

information prior to the first state habeas petition being filed in

1984," because nothing prevented him from filing the Open Records

Act lawsuit twelve years ago. Felker v. Turpin, No. 96-V-655, at
2 (Sup. Ct. Butts County Nov. 12, 1996) (order dismissing petition

and denying stay of execution).

Likewise, it follows that there is no reason that Felker could

not have filed the same Open Records Act lawsuit before he filed

11
his first federal habeas petition three years ago. Despite having

an opportunity to do so in both his state and federal filings,

Felker has not suggested any reason why such a lawsuit would not

have been just as available before he filed his first habeas

petition as it was after he had unsuccessfully litigated that

petition.

C.

Because Felker has failed to satisfy the first prong of

§ 2244(b)(2)(B), we need not consider the second prong of that

provision. However, for the sake of completeness, we point out

that even if Felker could satisfy the subdivision (i) provision, he

still could not satisfy the subdivision (ii) provision, which

requires 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).

The Brady claims Felker seeks to get over the second petition

bar in this proceeding involve three pieces of previously

undisclosed evidence turned up by his Open Records Act lawsuit.

The first is a partial transcript of an interview of Katherine Gray

by law enforcement officers. Some background facts about Ms. Gray

and a discussion of Felker's first habeas petition Brady claim
involving her are contained in Felker v. Thomas, 52 F.3d at 909-11,

as extended, 62 F.3d at 343. Ms. Gray did not testify at trial,

12
and we have previously held that if she had, she would have done

Felker at least as much harm as good. The reason is that she would

have placed Felker with the victim, Joy Ludlam, even closer to the

date of her death and in direct contradiction to Felker's own sworn

testimony. Id.

Ms. Gray was first interviewed by law enforcement officers on

December 11, 1981, and at that time she picked out of a photo

spread a photograph of the man she said she had seen with the

victim, Joy Ludlam. The photograph she picked out was of Felker,

or at least that is what law enforcement officers told her shortly

after that first photo spread, which came just days after the

events she had witnessed. See 52 F.3d at 910 n.2; Deposition of

Katherine Gray 6, 9, 30-31, 33-34 (February 13, 1985). The partial

transcript in question "if proven," see § 2244(b)(2)(B)(ii), would

merely establish what happened when law enforcement officers re-

interviewed Ms. Gray sometime after September 15, 1982.2 While

2
The partial transcript is undated. However, in it the
officers refer to Ms. Gray's having talked to some officers "last
year shortly after this case" arose, which would have been in
November or December of 1981. Ms. Gray had in fact talked to
officers and viewed a photo spread on December 11, 1981. See
Felker v. Thomas, 52 F.3d at 910 n.2. For that to be "last year"
the partially transcribed interview would have had to have taken
place sometime in 1982. Moreover, the transcript discusses Ms.
Gray's having talked with Fred Hasty, who was Felker's trial
counsel. We know from Mr. Hasty's testimony in the state habeas
proceeding that he first talked with Ms. Gray on September 15,
1982. Therefore, the partial transcript is of an interview that
took place sometime after September 15, 1982. It is also likely
that the partially transcribed interview occurred before the trial,
which began in January of 1983.

13
they were questioning her, Ms. Gray tried to get the officers to

tell her if the picture she had picked out of the photo spread as

the man who had been with the victim shortly before the crime was

Felker. The officers did not tell her. The relevant part of the

exchange is as follows:

Q: This guy that was with 'em, would you say that
he's my height or taller than I am

A: I think he was a little taller than you, he
had on boots

Q: A little bit taller, I'd like for you to look
at these photographs and see if you see
anybody that looks like him

A: This looks something like him...but his beard,
this was cut down, you know, like he had come
from a barber shop

Q: Trimmed down? okay

A: I picked the wrong guy, didn't I

Q: Well, we don't know. How long do you reckon
they were in the store?

A: (inaudible) less than 45 minutes, not more
than 45.

Partially Transcribed Interview with Katherine Gray 4 (undated).

Felker extrapolates from that one question, "I picked the wrong

guy, didn't I" the conclusion that Ms. Gray actually did identify

someone other than Felker as the man she had seen with the victim.

That conclusion simply does not follow. The law enforcement

officer questioning her did not acknowledge that she had picked out

anyone other than Felker at that second photo spread, and there is

no evidence that she did.

14
 Moreover, it must be remembered that because Ms. Gray did not

testify as a witness for the prosecution at the trial, we are not

talking about impeachment. To the extent that the partial

transcript might cast any doubt upon Ms. Gray's credibility as a

witness, it is irrelevant, because she was not a witness. Instead,

Felker's Brady claim rests upon the theory that had he been aware

of the partial transcript at the time of trial, he could have

called Ms. Gray to testify that she had seen the victim in the

company of a man other than Felker shortly before the victim was

killed. The problem with that, of course, is that Felker has not

established that she would have so testified. Even if she had, her

testimony would have been thoroughly impeached and discredited by

the fact that just days after the events in question, she had

selected out of a photo spread a picture of Felker as the man whom

she had seen with the victim. The partial transcript, if

authenticated and proven to be an accurate recounting of an

interview and second photo lineup session that took place at least

nine months later, when "viewed in light of the evidence as a

whole, would [not] be sufficient to establish by a clear and

convincing evidence that ... no reasonable factfinder would have

found the applicant guilty of the underlying offense,"

§ 2244(b)(2)(B)(ii).

The second piece of new evidence that Felker discovered as a

result of his Open Records Act lawsuit is a transcript of a January

22, 1982 jailhouse interview of Felker by an officer named Enckler.

This transcript is relevant, Felker says, not to anything Officer

15
Enckler testified to at trial, but instead to the testimony of

another witness, Officer Upshaw. At trial, Upshaw testified that

when he had questioned Felker on the night of November 25, 1981,

Felker had told him that on November 24, 1981, the victim had

called in sick to her work place from Felker's house.

At trial, the defense tried to get Officer Upshaw's testimony

about that admission by Felker excluded as the unreliable product

of an hypnosis session that Upshaw had undergone on January 21,

1982. The trial court overruled defense objections after finding

that Upshaw had an independent recollection of Felker having made

that statement to him. So what does all of this have to do with

the previously undisclosed transcript of Officer Enckler's January

22, 1982 interview of Felker? Everything, argues Felker, because

the transcript shows that Enckler questioned Felker about making

that statement to Upshaw. That otherwise unremarkable fact is made

remarkable, Felker contends, because it happened just one day after

Upshaw's hypnosis session. From that chronology, Felker leaps to

the conclusion that Officer Upshaw must not have remembered Felker

making the statement to him until Upshaw was hypnotized.

Therefore, Upshaw's testimony about the statement was a product of

hypnosis and should have been excluded.

In rejecting this specific Brady claim, the Superior Court of
Butts County pointed out that, because Felker was the one being

interviewed by Officer Enckler, he can hardly claim that the

questions he was asked were suppressed from him by the state. At

all relevant times, Felker knew what Enckler had asked him and

16
when. Felker v. Turpin, No. 96-V-655, at 3 (Sup. Ct. Butts County

Nov. 12, 1996).

Putting that problem with Felker's theory to the side, it is

readily apparent that there are two other glaring problems with it.

First, his whole theory is based on the premise that because

Officer Enckler asked Felker questions about his statement to

Officer Upshaw just one day after Upshaw had been hypnotized, that

proves Upshaw must not have remembered Felker making the statement

until Upshaw underwent hypnosis. That conclusion simply does not

follow. Another critical problem with Felker's theory about this

evidence is that even if Upshaw's testimony about the statement had

been excluded, the evidence against Felker still would have been

more than sufficient to convict. Certainly, we cannot say of the

transcript of Officer Enckler's interview of Felker that, "if

proven and viewed in light of the evidence as a whole, [it] 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).

The third piece of evidence turned up by Felker's Open Records

Act lawsuit is a purported "confession" by another prison inmate,

whom Felker says has a prior conviction for rape. This document,

which is dated January 22, 1988, or five years after the trial,

purports to be handwritten "by John Harrison for Chaplain Elliott

Lyons" and bears the signature of Daniel Thomas Sylvester. The

document says that Joy Ludlam, who is described as having worked as

17
either a security guard or clerk at the Warner Robbins Holiday Inn,

asked "Danny Sylvester" to tie her to the bed and kiss her, but

that he got carried away and raped her. After that, according to

the "confession," Ms. Ludlam said: "It's knife time," and that she

was a "sacrificial lamb of God." So, according to the

"confession," Sylvester then choked her and after she passed out,

he cut her with a knife and used the knife to mutilate her in the

anal and vaginal area. For reasons the document does not reveal,

all of this is said to have taken place at Felker's house, or at

his parents' house. No explanation is given about how Sylvester

gained access to either of those two places.

This so-called "confession" is patently unreliable on its

face. Ms. Ludlam worked as a cocktail waitress, not as a security

guard or clerk; she was strangled to death, not stabbed; and her

body was not sexually mutilated with a knife. Furthermore, there

is no indication that she would have asked anyone to tie her up and

kill her, but there is undisputed evidence that Felker had a

proclivity for engaging in bondage and sadistic sexual practices.

Felker v. Thomas, 52 F.3d 907, 908 (11th Cir.), extended on denial
of rehearing, 62 F.3d 342 (11th Cir. 1995), cert. denied, 116 S.

Ct. 956 (1996); Felker v. State, 252 Ga. 351, 364-65, 314 S.E.2d

621, 635-36, cert. denied, 469 U.S. 873, 105 S. Ct. 229 (1984).

Section 2244(b)(2)(B)(ii) requires as an initial matter that

the facts asserted state a claim of constitutional error. Because

the alleged confession in this case did not exist until five years

after the trial, the state cannot be charged with a Brady violation

18
for failing to disclose it at trial. At most, a post-trial

confession from another person would be relevant to a Herrera v.
Collins, 506 U.S. 390, 113 S. Ct. 853 (1993), claim of actual

innocence, and Felker has not attempted to make a Herrera claim in

this case. Therefore, Felker has failed to satisfy

§ 2244(b)(2)(B)(ii) for that reason. In addition, even if there

were a constitutional violation which could be used as a vehicle

for gaining consideration of the purported confession document,

there is simply no way that that document, with all of its

discrepancies, would have prevented any reasonable factfinder from

finding Felker guilty of the crimes for which he was convicted.

We have also considered Felker's three Brady claims jointly,

as well as separately, and we have considered the new evidence

those claims rely upon along with all of the new evidence his

earlier Brady claims relied upon. After doing so, we are convinced

that, "the facts underlying the claim, if proven and viewed in

light of the evidence as a whole, would [not] 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).

Therefore, even if Felker could not have discovered the factual

predicates for the claims "previously through the exercise of due

diligence," § 2244(b)(2)(B)(i), he would still not be entitled to

authorization to file a second habeas petition containing the

claims.

19
 IV. CONCLUSION

Felker's application for a certificate of appealability,

taken as such, and also construed as an application, pursuant to 28

U.S.C. § 2244(b)(3), as amended, for an order authorizing the

district court to consider his Fed.R.Civ.P. 60(b) motion as a

second or successive petition for habeas corpus relief, is denied.

20