[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
____________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 06-10784 January 30, 2006
____________________________ THOMAS K. KAHN
CLERK
IN RE:
ARTHUR DENNIS RUTHERFORD,
Petitioner.
____________________________
Application for Leave to File a Second or Successive
Habeas Corpus Petition, 28 U.S.C. § 2244(b)
____________________________
(January 30, 2006)
Before CARNES, HULL and WILSON, Circuit Judges.
BY T H E C O U R T:
This Court affirmed the district court’s denial of Arthur Dennis Rutherford’s
first federal habeas corpus petition in Rutherford v. Crosby, 385 F.3d 1300 (11th
Cir. 2004), cert. denied, 125 S. Ct. 1847 (2005). See also Rutherford v. State of
Florida, No. SC06-18, ___ So.2d ___, 2006 WL 204838 at *4–5 (Fla. Jan. 27,
2006) (recounting additional procedural history) . We now have before us
Rutherford’s Application For Permission to File a Successive Habeas Corpus
Petition, and a Motion for Stay of Execution relating to that application, both of
which were filed yesterday.1
In the present application, Rutherford requests that we issue an order
authorizing him to file in the district court five new claims that he did not raise in
his first federal habeas petition. We cannot grant this type of application, unless:
(A) the applicant shows that the claim relies on a new rule of
constitutional law, made retroactive to cases on collateral review by
the Supreme Court, that was previously unavailable; or
(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.
28 U.S.C. § 2244(b)(2)(A)–(B).
The first claim for which Rutherford requests a § 2244(b) authorization
order is that the State violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194
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We do not address in this order the Application for a Stay of Execution and for
Expedited Appeal that Rutherford has filed in connection with his appeal from the district court’s
dismissal of his 42 U.S.C. § 1983 complaint. Those matters will be the subject of a separate
order.
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(1963), by not disclosing to the defense that Mary Heaton, one of the many
witnesses against Rutherford, allegedly had provided law enforcement with
statements in which she claimed to have been present when Rutherford murdered
the victim, instead of having been involved only in the cashing of a check that
Rutherford stole from the victim. We are indebted to the Florida Supreme Court
for its detailed and insightful explanation of why there is no reasonable probability
that disclosure of any such statement by Heaton would have made any difference
at the guilt or penalty stage of Rutherford’s trial. See Rutherford v. State, ___
So.2d at ___, 2006 WL 204838 at *10–11 (affirming the denial of successive post-
conviction motion for relief). We cannot improve on that explanation.
We add only that the burden Rutherford faces here is even higher than the
one he did not carry before the Florida Supreme Court. Here he must show not
just a reasonable probability of a different result, but that “the facts underlying the
claim, if proven and viewed in the light of the evidence as a whole, would be
sufficient to establish by clear and convincing evidence that, but for the
constitutional error, no reasonable factfinder would have found the applicant
guilty of the underlying offense.” 28 U.S.C. § 2244(b)(2)(B)(ii). He has failed to
do that for the same reasons the Florida Supreme Court explained that he had
failed to carry the lesser burden in that Court.
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The second claim Rutherford seeks authorization to present in a second
federal habeas petition is one of actual innocence based upon a since-recanted
statement or statements that Mary Heaton allegedly made to another person
(apparently after the trial) in which she supposedly said that she was the murderer
and had put the blame on Rutherford. In rejecting Rutherford’s newly discovered
evidence claim, the Florida Supreme Court explained why, even assuming that
Heaton did make such statements, they were unbelievable and would not have
changed the result at trial when considered in the context of all the evidence.
Rutherford v. State, ___ So.2d at ___, 2006 WL 204838 at *6–9. We agree with
its explanation and applying the § 2244(b)(2)(B)(ii) standard conclude that
Rutherford has failed to establish clearly and convincingly that no reasonable
factfinder aware of the statements, if Heaton did make them, would find
Rutherford guilty.
The third claim Rutherford wants to present in a second federal habeas
petition is his assertion that the state courts in the post-conviction proceedings
violated his due process rights by failing to provide him with records of Mary
Heaton’s mental health records so Rutherford could see if she had confessed while
in the mental institution to having committed the murder. Again, Rutherford has
failed to meet his § 2244(b)(2)(B)(ii) burden. See also Quince v. Crosby, 360 F.3d
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1259, 1261–62 (11th Cir. 2004) (errors and defects in a state collateral proceeding
do not state a claim for violation of due process); Spradley v. Dugger, 825 F.2d
1566, 1568 (11th Cir. 1987) (same).
The fourth claim in Rutherford’s application is a procedurally barred,
hearsay Confrontation Clause claim, which he did not raise at trial and which the
Florida Supreme Court held to be procedurally barred from review on direct
appeal. See Rutherford v. State, 727 So.2d 216, 220–21 (Fla. 1998). He would
like to present this claim in a second federal habeas petition as one arising under
Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354 (2004). Rutherford
acknowledges that there is a split among the circuits about whether the Crawford
decision is retroactively applicable under the Teague v. Lane, 489 U.S. 288, 109 S.
Ct. 1060 (1989), doctrine, but asserts that it should be.
Even if we adopted that assertion, it would not be of any help to Rutherford.
For this type of claim to be presented in a second or successive federal habeas
petition, the new rule of constitutional law that it relies on must have been “made
retroactive to cases on collateral review by the Supreme Court.” 28 U.S.C. §
2244(b)(2)(A). It is not enough that some federal appellate court has held that the
new rule is retroactively applicable. Tyler v. Cain, 533 U.S. 656, 663, 121 S. Ct.
2478, 2482 (2001) (“We thus conclude that a new rule is not ‘made retroactive to
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cases on collateral review’ unless the Supreme Court holds it to be retroactive.”).
Because the Supreme Court has not made its Crawford decision retroactively
applicable to cases on collateral review, it may not be asserted in a second federal
habeas petition.
Finally, Rutherford asks us to allow him to present a Deck v. Missouri, __
U.S. __, 125 S.Ct. 2007 (2005), claim in a second petition. Like the Crawford
decision, the Deck decision has not been made retroactively applicable to cases on
collateral review by the Supreme Court, and for that reason the requirements of §
2244(b)(2)(A) have not been met. See also Marquard v. Sec’y of Dep’t of
Corrections, 429 F.3d 1278, 1311 (11th Cir. 2005) (holding that the Deck decision
is not retroactively applicable to cases on collateral review).
For these reasons, the Rutherford’s application for an order authorizing him
to file a second or successive federal habeas petition, his motion for a stay of
execution as it relates to this application, and all other requests for relief relating
to it are DENIED.
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