FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

 JUNE 27, 2008

THOMAS K. KAHN

CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 08-13598-P

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IN RE: MARK DEAN SCHWAB,

 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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(June 27, 2008)

Before: DUBINA, CARNES and HULL, Circuit Judges.

PER CURIAM: 

Mark Dean Schwab was sentenced to death for the rape and murder of an

eleven-year-old boy. The facts and the procedural history of the case through the

time we affirmed the denial of his federal habeas petition are contained in Schwab

v. Crosby, 451 F.3d 1308 (11th Cir. 2006), cert. denied, 127 S. Ct. 1126 (2007). 

We later vacated a stay that he had obtained in connection with a lawsuit he filed
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under 42 U.S.C. § 1983. Schwab v. Sec’y, Dep’t of Corrs., 507 F.3d 1297 (11th

Cir. 2007).

Schwab is now before us with an application for permission to file a second

or successive habeas corpus petition under 28 U.S.C. § 2244(b)(2)(B). The sole

ground put forward in the application is based on assertions that Schwab’s present

attorneys have persuaded Dr. William R. Samek, a clinical psychologist who

testified for the State at the sentence hearing, Schwab, 451 F.3d at 1317–18, to

change his opinion about some aspects of Schwab’s mental and emotional

problems. The application describes Dr. Samek’s partial change of opinion as a

“clarification of his original trial testimony.” It asserts that clarification gives “a

more complete picture of Mr. Schwab’s mental and emotional development,” and

it “establishes newly discovered statutory mitigating evidence that establishes

Schwab is innocent of the death penalty.” 

The application falls far short of meeting the requirements of

§ 2244(b)(2)(B). Schwab cannot show that “the factual predicate for the claim

could not have been discovered previously through the exercise of due diligence.” 

28 U.S.C. § 2244(b)(2)(B)(i). The application makes clear that the basis for Dr.

Samek’s modification of opinion is “his recent review of Mr. Schwab’s case,”

which consisted of “a more exhaustive review of the record, evaluation of Mr.
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Schwab, and interviews with family members.” All of those sources of evidence,

and any change they could bring in Dr. Samek’s opinion, were fully available to

Schwab at the time he filed his first habeas petition in April 2003. 

Even if the modification in Dr. Samek’s opinion met the requirements of

clause (i) of § 2244(b)(2)(B), it would still not meet those of clause (ii). As the

text of § 2244(b)(2)(B)(ii) plainly provides, the facts underlying the claim must 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.” Schwab’s application does not assert a constitutional error,

just a change in the opinion of an expert witness. 

Moreover, the asserted change in opinion goes to the existence of mitigating

circumstances, not to whether Schwab is guilty of the underlying offense. See In

re Diaz, 471 F.3d 1262, 1263–64 (11th Cir. 2006) (denying § 2244(b)(2)(B)

application where the petitioner asserted “new evidence” 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” but “[did]

not, and could not, suggest that the alleged new evidence would have altered the

jury finding on his guilt of the underlying offense”); see also In re Dean, 341 F.3d
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1247, 1248–49 (11th Cir. 2003) (denying § 2255 ¶8 application that challenged

sentence but not whether petitioner was guilty of the underlying offense).

APPLICATION DENIED.