* 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should not be published and is not precedent except under the limited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

August 24, 2007

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 05-41409

Summary Calendar

KINGS A KOMOLAFE

Plaintiff-Appellant

v.

NATHANIEL QUARTERMAN, Director, Texas Department of Criminal

Justice, Correctional Institutions Division

Defendant-Appellee

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 6:04-CV-132

Before JOLLY, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

This court granted Kings Abimbola Komolafe, Texas prisoner # 601354,

authorization to file a successive 28 U.S.C. § 2254 petition challenging his

conviction for murder. The district court denied the petition. Komolafe appealed

the denial, and the district court granted a certificate of appealability (COA) on

whether the district court erred in holding that (1) Komolafe failed to show that

Anthony Williams committed perjury at trial; (2) Smallwood’s affidavit recanting
No. 05-41409

2

his trial testimony was not credible; and (3) Smallwood’s trialtestimony was not

perjured. 

Komolafe seeks to expand the COA. This court has jurisdiction to address

his motion to expand the COA granted by the district court. See FED. R. APP. R.

22(b); Whitehead v. Johnson, 157 F.3d 384, 388 (5th Cir. 1998). When a party

expressly seeks a COA on additional issues, this court may certify those issues

if the party meets the requirements for a COA. See United States v. Kimler,

150 F.3d 429, 429-31 (5th Cir. 1998). 

This court will issue a COA only if Komolafe makes a substantial showing

of the denial of a constitutional right, a showing that “reasonable jurists could

debate whether (or, for that matter, agree that)” the court below should have

resolved the claims in a different manner or that this court should encourage

him to litigate further his claims in federal court. Ruiz v. Quarterman, 460 F.3d

638, 642 (5th Cir. 2006) (quoting Miller-El v. Cockrell, 537 U.S. 322, 336 (2003),

and quoting Slack v. McDaniel, 529 U.S. 473, 483-84 (2000)). 

When, as here, a district court has denied relief on nonconstitutional

grounds, as with a procedural-default ruling, the petitioner must show “‘that

jurists of reason would find it debatable whether the petition states a valid claim

of the denial of a constitutional right and that jurists of reason would find it

debatable whether the district court was correct in its procedural ruling.’”

Matchett v. Dretke, 380 F.3d 844, 847-48 (5th Cir. 2004), cert. denied, 125 S. Ct.

1067 (2005) (quoting Slack, 529 U.S. at 484).

Claims Surrounding Smallwood’s affidavit

Komolafe relies on Smallwood’s affidavit to support his claims that he is

actually innocent and that Williams and Smallwood perjured themselves at trial.

The district court denied Komolafe’s claims surrounding Smallwood’s affidavit

because they were procedurally defaulted but granted a COA on whether it erred

when it determined that Smallwood’s affidavit was not credible. Komolafe’s

motion to expand the COA on this issue is denied as moot. 
No. 05-41409

3

To obtain federal habeas review of claims barred because of a state-law

procedural default, a prisoner must demonstrate cause for the default and actual

prejudice or that the failure to review the claim will result in a fundamental

miscarriage of justice. House v. Bell, 126 S. Ct. 2064, 2076 (2006); Lott v.

Hargett, 80 F.3d 161, 164 (5th Cir. 1996). A federal habeas petitioner unable to

make the requisite showing of cause and prejudice can obtain habeas relief if he

can show that application of the procedural bar would constitute a miscarriage

of justice--that he is actually innocent ofthe crime. House, 126 S. Ct. at 2076-77;

Henderson v. Cockrell, 333 F.3d 592, 605 n.4 (5th Cir. 2003). “To establish the

requisite probability that he was actually innocent, the petitioner must support

his allegations with new, reliable evidence that was not presented at trial and

show that it was ‘more likely than not that no reasonable juror would have

convicted him in the light of the new evidence.’” Fairman v. Anderson, 188 F.3d

635, 644 (5th Cir. 1999) (citing Schlup v. Delo, 513 U.S. 298, 327 (1995)). This

court views recanting affidavits with extreme suspicion. Spencer v. Johnson,

80 F.3d 898, 1003 (5th Cir. 1996). 

Smallwood’s affidavits contains inconsistencies on major points.

Smallwood attested that Red and Nubbs’s brother allowed Komolafe to leave

West’s house soon after he arrived. He also attested that the posse had traveled

from Fort Worth to Tyler and had staked the house for days. That the men

allowed Smallwood,the only one ofthe group who could identify Komolafe, leave

after they gained entry to West’s house is implausible. Equally unlikely is that

they let Komolafe leave after all they had invested in pursing him.

Additionally, Smallwood attested that Red shot Shigeta as she fled outthe

back door. Trial testimony, however, established that Shigeta was shot in the

face, neck, chest, and stomach, in a manner indicating that she was shot from

above while lying down on a bed. Komolafe’s argument that these inconsistencies

are attributable to the fact that Smallwood was not an eyewitness to the

shooting begs the question whether Smallwood’s affidavit is reliable. 
No. 05-41409

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Not only does Smallwood’s affidavit contain inconsistencies, but it

is unsupported and uncorroborated by other evidence. See Summers v. Dretke,

431 F.3d 861, 871 (5th Cir. 2005). Komolafe seeks to remedy this problem by

arguing that the affidavit would have been corroborated by his testimony that

the people Smallwood named in his affidavit are the same people who later

kidnaped him and shot him, which testimony was precluded by the trial court’s

grant of a motion in limine. Komolafe’s argument ignores that he is not now

precluded from supplying the proper names of the individuals in the affidavit or

other evidence to support it, but he has not done so. 

Finally, the credibility of Smallwood’s affidavit is mitigated by the fact

that it was submitted eight years after Komolafe was convicted. See Herrera V.

Collins, 506 U.S. 390, 417-18 (1993). Komolafe’s reliance on Smallwood’s

affidavit to obtain federal habeas review of his procedurally defaulted claims

that he is actually innocent and that Smallwood and Williams perjured

themselves at trial is misplaced. See House, 126 S. Ct. at 2076; Lott, 80 F.3d

at 164.

Claims surrounding the affidavit of the handwriting expert

Komolafe also relies on the affidavit of a handwriting expert’s affidavit to

support his claims that Williams and Smallwood perjured themselves. The

district court concluded that Komolafe’s claims relative to that affidavit were

successive. Any challenge to the district court’s finding is outside the scope of

the district court’s grant of a COA. See Lackey v. Johnson, 116 F.3d 149, 151 (5th

Cir. 1997). 

Komolafe seeks to expand the COA to include whether the district court

erred when it dismissed his claims surrounding the handwriting expert’s

affidavit as successive. Komolafe knew the factual predicate for the handwriting

claim prior to filing his first § 2254 petition insofar as he alleged in his first state

habeas petition ineffective assistance of counsel based on counsel’s failure to

challenge the handwriting on the greeting cards. See § 2244(b)(2). Because
No. 05-41409

5

reasonable jurists would not debate that the district court correctly dismissed

Komolafe’s claims based on this affidavit, he is not entitled to an expanded COA

on those claims. See Slack, 529 U.S. at 484. 

Even if, however, the handwriting expert’s affidavit is considered, the

affidavit is not “new, reliable evidence” that was not presented at trial because

Komolafe told the jury that the writing on the cards was not his. See Schlup,

513 U.S. at 327; Fairman, 188 F.3d at 644. Moreover, that Smallwood and not

Komolafe authored the cards does not establish Komolafe’s innocence given the

other evidence, set forth above, that points to his guilt. Therefore, Komolafe’s

reliance on the handwriting expert’s affidavit as new, reliable evidence showing

that, had the jury been presented with it, it would have not have convicted him

is misplaced. See Schlup, 513 U.S. at 327; Fairman, 188 F.3d at 644. Komolafe

fails to show that the handwriting expert’s affidavit entitles him to federal

habeas review on his procedurally defaulted perjury claims. See House, 126 S.

Ct. at 2076; Lott, 80 F.3d at 164.

Claims based on Jackie Komolafe’s affidavit

Komolafe seeks to expand the COA to include whether the district court

erred when it determined that his claims based on the affidavit of Jackie

Komolafe are successive. Jackie Komolafe’s affidavit was executed in 1995.

Therefore, the factual predicate for claims based on her affidavit was available

to Komolafe when he filed his first § 2254 petition on September 14, 1999. See

§ 2244(b)(2). Because reasonable jurists would not debate that the district court

correctly dismissed Komolafe’s claims based on this affidavit, he is not entitled

to an expanded COA on those claims. See Slack, 529 U.S. at 484. 

Evidentiary Hearing

Komolafe asks this court to expand the COA to include whether the district

court erred when it denied him an evidentiary hearing. Komolafe was not

entitled to an evidentiary hearing. See Clark v. Johnson, 227 F.3d 273, 284 (5th
No. 05-41409

6

Cir. 2000). An expanded COA on this claim is not warranted. See Slack, 529

U.S. at 483-84.

Accordingly, Komolafe’s motion to expand the COA is DENIED;the denial

of Komolafe’s successive § 2254 petition is AFFIRMED.