IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-50522

TOMAS VIZCARRA, 

 Petitioner - Appellant

v.

KENNETH REAGANS, Warden, 

 Respondent - Appellee

Appeal from the United States District Court

for the Western District of Texas

USDC No. 3:10-CV-159

Before REAVLEY, ELROD, and GRAVES, Circuit Judges.

PER CURIAM:*

This defendant was convicted of murder, and the date of final conviction 

was March 2, 1999. The time for habeas collateral attack expired on March 2, 

2000. The defendant did not file for habeas until more than seven years later. 

However, with the Supreme Court allowing a claim for actual innocence to go 

forward with some consideration of time; the Court sent back the case to this 

court for consideration of McQuiggin v. Perkins, 133 S. Ct. 1924 (2013). The 

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

February 22, 2017

Lyle W. Cayce

Clerk

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No. 15-50522

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Court had held in Schlup v. Delo, 115 S. Ct. 851 (1995) that the time 

requirement does not prevent correcting a fundamental miscarriage of justice 

if a petitioner makes a credible showing of actual innocence. We decide in this 

case that there has been no credible showing of actual innocence and affirm 

the judgment.

Martha Carzoli was an important witness for the prosecution, since she 

was the one who testified that she actually saw the defendant as he shot and 

killed the deceased. The evidence of innocence is based on an affidavit she 

signed on November 14, 2006 saying that she now is not sure that the person 

responsible for the shooting was Tomas Vizcarra. She disclaims naming 

anyone else as the shooter and only that she is not really sure of the 

identification she originally made. 

Carzoli had no uncertainty about what she had seen or what she said in 

1994 and 1997. She had been busily working as a waitress on the night of the 

shooting. The following day, October 15, 1994, she went to the El Paso Police 

Department and made a full statement about what she had seen the night 

before. She described what the defendant had been wearing and how he 

walked up to the victim and shot him in the head. She made a lengthy report 

about what happened from the beginning to end. Another man had come into 

the bar with the defendant, one she knew and one never seen before. Carzoli 

positively identified the shooter as the stranger wearing dark blue pants and 

a dark blue windbreaker. She told about the effort to keep the defendant from 

escaping and how, when she was in the parking lot trying to hold him for the 

police, he told her to shut up and not say anything. Then Carzoli testified at 

length before the jury in February of 1997. She identified the defendant in the 

courtroom. She testified that the defendant had many tattoos and she had 

seen him come back in the bar, taking out a gun from his pocket as he walked, 

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No. 15-50522

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and shoot the victim. She said that she had a good view of all of the action. 

She had given the same testimony before the grand jury.

With this record, we conclude that this defendant has no credible 

evidence of innocence and affirm.

AFFIRMED.

 Case: 15-50522 Document: 00513886517 Page: 3 Date Filed: 02/22/2017