[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
FILED
No. 06-16362 U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
December 11, 2006
THOMAS K. KAHN
IN RE: CLERK
ANGEL NIEVES DIAZ,
Petitioner.
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Application for Leave to File a Second or Successive
Habeas Corpus Petition, 28 U.S.C. § 2244(b)
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Before TJOFLAT, MARCUS and PRYOR, Circuit Judges.
B Y T H E C O U R T:
Angel Nieves Diaz, a Florida prisoner under sentence of death and
scheduled to be executed by lethal injection on December 13, 2006, seeks
permission to file a successive habeas petition and a stay of execution. See 28
U.S.C. §§ 2244(b)(3)(A), 2251, 1651. Diaz raises three claims as grounds for his
application to file a successive habeas petition: (1) newly discovered evidence of
innocence establishes that but for constitutional error no reasonable factfinder
would have found Diaz eligible for death; (2) Diaz’s conviction and sentence are
in violation of Brady v. Maryland; and (3) Diaz’s right of confrontation was
violated at his trial. We deny the application for permission to file a successive
habeas petition for failure to satisfy the statutory criteria, and we deny the
application for a stay of execution as moot.
The “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 [section 2244(b)(2)].” 28 U.S.C.
§ 2244(b)(3)(C) (emphasis added). The petitioner must establish either (1) 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,” 28
U.S.C. § 2244(b)(2)(A), or (2) that “the factual predicate for the claim could not
have been discovered previously through the exercise of due diligence; and . . . the
facts underlying the claim . . . 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)(B)(i), (ii).
Diaz argues that newly discovered evidence, in the form of an affidavit of
Ralph Gajus, the jailhouse informant who testified at Diaz’s trial, establishes that,
but for constitutional error, no reasonable juror would have found Diaz eligible for
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the death penalty. This argument, which relies on the second exception to the bar
against successive habeas petitions, fails for at least two reasons.
First, the affidavit of Gajus is not newly discovered evidence because the
affidavit is consistent with Gajus’s testimony at Diaz’s trial and with statements
made by Gajus that were presented in Diaz’s first motion for post-conviction relief
filed in state court. At Diaz’s trial, Gajus testified that, while they were in jail,
Diaz indicated by using his hands that he shot the victim, but had not said in words
he had shot the victim. Gajus also testified that Diaz was able to speak English
well. In his initial Rule 3.850 motion, filed in 1989, Diaz argued that “Mr. Gajus
has informed current counsel that Mr. Diaz never admitted complicity to him and
that Mr. Diaz’s English was very, very poor.” In his current affidavit, which Diaz
argues constitutes newly discovered evidence, Gajus again states that Diaz’s
English was poor, Diaz did not say that he had shot anyone, but Diaz had “acted
out the shooting using his hands.” Gajus further states in his affidavit that he was
unsure who was the shooter because Diaz had not told him, but only acted it out
with his hands. Diaz asserts that Gajus’s statement that he was unsure who the
shooter was is newly discovered evidence that Gajus lied at the trial. On the
contrary, the statements made by Gajus at trial, to the Rule 3.850 counsel in 1989,
and in his affidavit are entirely consistent on the material point that Diaz did not
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tell Gajus he had shot the victim, but that Gajus had inferred this fact from Diaz’s
hand motions. Because it does not present any new testimony, the affidavit given
by Gajus is not newly discovered evidence.
Second, and more important, Diaz does not argue that, but for the alleged
error in Gajus’s testimony, he would not have been convicted of the underlying
crime. To be eligible to file a successive habeas petition, Diaz must show that the
“newly discovered evidence” would “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)(B)(ii)
(emphasis added). Diaz’s only argument with regard to the testimony of Gajus is
that the “information that Mr. Gajus was untruthful at trial and therefore, not
credible, would have impacted the jury recommendation at the penalty phase by
undermining the weight of the aggravators presented at trial, and adding to the
weight of mitigation.” Because Diaz does not, and could not, suggest that the
alleged new evidence would have altered the jury finding on his guilt of the
underlying offense, he is not eligible for relief under the second exception. In re
Dean, 341 F.3d 1247, 1248 (11th Cir. 2003); In re Medina, 109 F.3d 1556, 1564-
65 (11th Cir. 1997).
Diaz next argues that he was convicted and sentenced to death in violation
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of Brady v. Maryland. Because, as Diaz admits in his application, this claim was
presented to the federal district court in Diaz’s initial habeas petition, it cannot be
the basis of a claim for leave to file a successive habeas petition on the ground of
newly discovered evidence.
Diaz’s third claim relies on the first exception to the bar against successive
habeas petitions. Diaz argues that testimonial hearsay was presented at the penalty
phase of his trial to establish an aggravating factor and that the testimony was
presented in violation of Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354
(2004), which he asserts states a “new rule of constitutional law” that should apply
retroactively. This argument fails. To be eligible for relief based on a new rule of
constitutional law, Diaz must establish that the new rule was “made retroactive to
cases on collateral review by the Supreme Court.” 28 U.S.C. § 2244(b)(2)(A).
“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.” In re Rutherford, 437 F.3d 1125, 1128 (11th Cir.), cert. denied,
127 S. Ct. 465 (2006).
Diaz’s application to file a successive habeas petition is DENIED, and
Diaz’s application for stay of execution is DENIED as moot.
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