### 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 d efendant 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 d efendant 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 5 TH C IR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED February 22, 2 017 Lyle W. Cayce Clerk Case: 15-50522 Document: 00513886517 Page: 1 Date Filed: 02/22/2017No. 15

- 50522

2 Court had held in Schlup v. Delo , 1 15 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 , s ince 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 She disclaims naming anyone else as the shooter and only that she is not re ally sure of the identification she originally made.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 wh at 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 pa nts and a dark blue windbreaker. S he told abo ut 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 identifie d 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 g un from his pocket as he walked, Case: 15-50522 Document: 00513886517 Page: 2 Date Filed: 02/22/2017No. 15

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3 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