IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 92-7272

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JUSTIN LEE MAY,

Petitioner-Appellant,

v.

JAMES A. COLLINS, Director,

Texas Department of Criminal Justice,

Institutional Division,

Respondent-Appellee.

_________________________________________________________________

On Application for a Certificate of Probable Cause

and for a Stay of Execution

_________________________________________________________________

(May 6, 1992)

Before KING, JOLLY, and SMITH, Circuit Judges.

PER CURIAM:

Justin Lee May is scheduled to be executed before dawn on

May 7, 1992. On February 26, we affirmed the denial of habeas

relief in his third federal habeas corpus petition. May v.

Collins, 955 F.2d 299 (5th Cir. 1992), petition for cert. and for

stay of execution filed, No. 91-7832 (U.S. April 2, 1992). On

April 29, he filed a motion for relief from judgment under Rule

60(b) of the Federal Rules of Civil Procedure and a motion for a

stay of execution. The district court denied the Rule 60(b)

motion, denied a stay, and denied a certificate of probable cause
 

1 The key claims were that the prosecution knowingly used

false testimony in violation of Giglio v. United States, 405 U.S.

150 (1972), and Mooney v. Holohan, 294 U.S. 103 (1935) (per

curiam), and that the prosecution failed to disclose material

exculpatory evidence in violation of Brady v. Maryland, 373 U.S.

83 (1963). May, 955 F.2d at 305.

2

to appeal. May has applied to this court for a certificate of

probable cause and for a stay of execution.

I.

The facts and long procedural history of this case can be

found in our most recent opinion. May, 955 F.2d at 301-307. The

facts relevant to this appeal are as follows: In support of his

third state habeas petition, May submitted affidavits in which

two persons who had testified at trial, Richard Miles and Oren

Howard, stated that their testimony was false and that

prosecutors used it knowing it was false. May used this "newly

discovered evidence" to argue that his conviction was obtained in

violation of the Sixth, Eighth and Fourteenth Amendments.1 The

State countered with affidavits in which the police and

prosecutors involved in the case maintained that they did not

knowingly use false testimony. The state judge, without holding

a hearing, found that the Miles and Howard affidavits were

unworthy of belief and that the State committed no constitutional

violations. The Texas Court of Criminal Appeals affirmed.

May filed his third federal habeas petition, raising the

claims rejected by the state courts. The district court applied

the presumption of correctness, 28 U.S.C. § 2254(d), to the state
3

court's factual findings and denied relief. We affirmed,

rejecting May's argument that the state court's failure to hold a

live evidentiary hearing was an inadequate factfinding procedure

which rendered the presumption of correctness inapplicable under

§ 2254(d)(2) or (3). May, 955 F.2d at 314 & 315 n.19. May's

next action in the district court was to file the motion which is

the subject of the instant appeal.

II.

Under Fed. R. App. P. 22(b), the district court's refusal to

grant a certificate of probable cause precludes us from

entertaining May's appeal unless we find that May has made a

"'substantial showing of the denial of [a] federal right.'" 

Barefoot v. Estelle, 463 U.S. 880, 893 (1983) (quoting Stewart v.

Beto, 454 F.2d 268, 270 n.2 (5th Cir. 1971), cert. denied, 406

U.S. 925 (1972)). To succeed in this showing, May "must

demonstrate that the issues are debatable among jurists of

reason; that a court could resolve the issues [in a different

manner]; or that the questions are adequate to deserve

encouragement to proceed further." Barefoot, 463 U.S. at 893 n.4

(citations omitted). As we explain below, the issue presented on

appeal is not controversial. We decline to grant either a CPC or

a stay of execution.

May's Rule 60(b) motion was predicated on remarks made on a

television program entitled "City Under Siege" by the state trial
4

judge who presided over both May's trial and third state habeas

petition. During the program, the judge stated:

I don't think the affidavits are probably worth the paper

they're written on. . . . There was an eyewitness that was

going into the Western Auto store right before the shot was

heard, and May comes walking out of the Western Auto store,

with a gun.

May argued that this newly discovered evidence entitled him to

relief under Rule 60(b)(2) or 60(b)(6). He reasoned that,

because there was no eyewitness to the shooting, the judge's

statement showed the state court factfinding procedures to be

inadequate; the federal district court's basis for applying the

presumption of correctness having been eliminated, he contended,

he was now entitled to a federal evidentiary hearing.

In denying relief, the district court observed that the

state trial judge's findings of fact and conclusions of law do

not indicate any reliance on the eyewitness. Moreover, the court

held, the broadcast was a collection of sound bites and the

juxtaposition of the statements quoted by May does not suggest

that the trial judge relied on the "phantom witness" in

determining that the affidavits were not worthy of belief. At

most, the program indicated that the judge was confused about the

role of the eyewitness.

We find that the district court acted well within its

discretion to deny the motion. Streetman v. Lynaugh, 835 F.2d

1521, 1524 (5th Cir. 1988). The factual question in state habeas

was whether the Miles and Howard affidavits were true. The judge

found that they were not, and so concluded that May could not
5

establish a constitutional violation. The same factual question

was presented in federal habeas, only the district court was not

required to retry the facts unless the state procedures were

inadequate. Even viewing the state judge's statement on the

television program in the light most favorable to May, it cannot

possibly establish that the state court's procedures were

inadequate because it has absolutely nothing to do with that

court's factfindings. Assuming that the judge was confused about

the role of the eyewitness at the time he ruled on the petition,

such confusion was unrelated to the task of assessing the

credibility of the Miles and Howard affidavits in light of the

police and prosecutors' affidavits and in light of Miles' and

Howard's trial testimony. As the district judge recognized, the

state judge's ultimate findings and conclusions were not in any

way dependent on a perfectly accurate recollection of the role of

the eyewitness.

Moreover, the judge's statement does not necessarily

indicate that he depended on his belief about the eyewitness in

determining the truthfulness of the affidavits. The television

segment was edited, so the two sentences quoted above did not

constitute one continuous statement. As the district court

noted, the segment could give the impression that the trial judge

thought the affidavits were valueless because Miles' and Howard's

trial testimony was corroborated by an eyewitness to the crime,

but contrary inferences are quite reasonable. The district court

did not, as May argues on appeal, hold him to "an unjustifiably
6

high burden of proof." Finding that the segment led to the

reasonable inference that the judge did not base his decision on

the affidavits on the eyewitness, the court exercised its

discretion to determine that May's evidence did not warrant

relief under Rule 60(b). 

Finally, May has built this entire motion on what seems to

us a false characterization of the state judge's belief about the

eyewitness. Robert Dohle, a former Freeport police officer,

testified that he saw a man acting suspiciously outside the

Western Auto store in Freeport shortly before 6:00 p.m. on the

evening of the murders. Shortly after 6:00, Frank and Jeanetta

Murdaugh were found dead in the store. Dohle paid close

attention to the man and later gave police a detailed description

which was consistent with May's physical characteristics. Dohle

did not see May come out of the store after the murders, but the

trial judge's statement does not indicate that he thought Dohle

had seen May exit the store. Rather, the statement suggests that

the judge was referring to the eyewitness who saw May before he

entered the store. Contrary to the impression which May seeks to

convey, the judge did not harbor a wholly fanciful belief in a

phantom witness to the crime. 

For the foregoing reasons, May's application for a

certificate of probable cause and for a stay of execution are

DENIED.