UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 02-20857

RICHARD WILLIAM KUTZNER,

Petitioner - Appellant,

VERSUS

JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,

INSTITUTIONAL DIVISION,

Respondent - Appellee.

Appeal from the United States District Court

For the Southern District of Texas

August 7, 2002

Application for Permission to File Successive Habeas

Before DAVIS, JONES, and DeMOSS, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

I.

Richard William Kutzner was convicted and sentenced to death

by a jury in Mo ntgomery County Texas in September 1997 for the

murder of Kathryn Harrison. He is currently scheduled to be

executed, August 7, 2002. Kutzner’s conviction was affirmed by the

Texas Court o f Criminal Appeals, K utzner v. State

, 994 S.W.2d2

180(Tex. Crim. App. 1999). He did not seek a writ of certiorari

from the United States Supreme Court.

Kutzner sought habeas relief in the Texas state court and

relief was denied by the Texas Court of Criminal Appeals. He then

sought federal habeas relief which was denied in the district court

and this court denied Kutzner a certificate of appealability.

Kutzner v. Johnson , 242 F.3d 605 (5th Cir. 2001).

On August 5, 2002, Kutzner filed a petition in federal

district court styled “Motion for DNA Testing” to form the basis

for a motion for authorizat ion to file a successive habeas

petition. Kutzner sought a stay from the district court and argued

that if he were permitted a stay and were permitted to conduct DNA

testing, he would seek to file four claims in a successive federal

habeas petition. The district court held that Kutzner had failed to

demonstrate that he had any colorable new constitutional claims to

offer that would qualify as a ground for a successive habeas

petition under 28 U.S.C. § 2244(b). The district court then denied

the application for stay and the request for DNA testing.

II.

A.

Kutzner filed a notice of appeal from that ruling and an

application for a certificate of appealability. Under the AntiTerrorismand Effective Death Penalty Act (AEDPA), a petitioner

must obtain authorization from the Court of Appeals before filing

a successive habeas corpus application. § 2244( b). This court is3

precluded from authorizing a successive petition unless the mover

shows that the claim sought to be asserted is based on either newly

discovered evidence or a new rule of constitutional law made

retroactive to cases on collateral review by the Supreme Court that

was previously unavailable. § 2244(b)(2)(a) and (b).

Although Kutzner made no applicatio n to this court for

authorization to file a successive habeas petition, because of the

press of time, we treat Kutzner’s notice of appeal and application

for certificate of appealability as a motion for authorization to

file a successive habeas application. Our focus is on whether

Kutzner has demonstrated that the factual predicate for his claim

could n ot have been discovered through the exercise of due

diligen ce; and whether such facts, if proven, would have

established that, but for the constitutional error, no reasonable

fact finder could have found petitioner guil ty of murdering Ms.

Harrison. 28 U.S.C. § 2244(b)(2)(B)(I) and (ii).

B.

During the investigation of Ms. Harrison’s murder, the police

recovered scrapings of skin from under her fingernails and two

strands of hair on her body. The fingernail scrapings and one of

the hairs were disclosed to Kutzner before trial. Before trial

neither the state nor K utzner undertook to test either the

fingernail scrapings or the hair then known to exist. Kutzner’s

counsel argued to the jury that the identification of the killer

was the sole issue before them and criticized the state for failing1 Brady v. Maryland

, 373 U.S. 83 (1963).

2 Giglio v. United States

, 405 U.S. 150 (1972).

4 to test the nail scrapings and hair and produce DNA evidence that

could have revealed the killer’s identity . As the district court

noted, “Kutzner knew of the scrapings, blot, and first hair at

trial, on appeal, during his state habeas petition and during his

federal habeas petition. He never requested its testing.”

C.

Kutzner raised three constitutional claims that allegedly

could not have been presented earlier due to pr osecutorial

misconduct: (1) the State withheld potentially exculpatory evidence

— a hair as well as a red substance on cellophane collected at the

crime scene; (2) the State knowingly put on false testimony that no

DNA testing o f fingernail scrapings collected at the crime scene

was possible; and (3) the State allowed false testimony concerning

the scrapings to go uncorrected. However, Kutzner fails to

establish Brady 1 or Giglio 2 error that would qualify for successive

habeas relief.

To establish a Brady v. Maryland claim, Kutzner must prove

that the prosecution suppressed favorable, material evidence that

was not discoverable through due diligence. 373 U.S. at 87; R ector

v. Johnson

, 120 F.3d 551, 558 (5th Cir. 1998). Brady does not

obligate the State to furnish a defendant with exculpatory evidence

that is fully available to the defendant through the exercise of5

reasonable diligence. Rector

, 120 F.3d at 558. When evidence is

equally available to both the defense and the prosecution, the

defendant must bear the responsibility of failing to conduct a

dilige nt investigation. H errera v. Collins

, 954 F.2d 1029, 1032

(5th Cir. 1992), aff’d

, 506 U.S. 390 (1993). In this sense, B rady

applies only to “the discovery, after trial[,] of information which

had been known to the prosecution but unknown to the defense.”

United States v. Agurs

, 427 U.S. 97, 103 (1976).

In this case, essentially all of the “suppressed” evidence was

discussed at trial when State’s witness Peggy Frankhouser was

cross-examined by Kutzner regarding the biological evidence

collected at the crime scene.

It is clear from the exchange with this witness that Kutzner

u nderstood that at least one hair, possibly “a couple,” were

collected at the crime scene. To the extent that Kutzner argues

that a second hair was suppressed, it a ppears that Ms.

Frankhouser’s memory was somewhat incomplete; however, the issue

was not pursued. Kutzner was also aware that fingernail scrapings

were gathered but n ot tested. Further, the cellophane was

discussed twice. No evidence was suppressed and trial counsel

could have tested any piece of it at the time of trial. Kutzner

fails to demonstrate that prosecutorial misconduct in this regard

prevented him from discovering the factual basis of his successive

claims at the time his first habeas petition was litigated.6

Similarly, Kutzner fails to prove the elements of Giglio v.

United States , i.e., that the State knowingly presented or failed

to correct materially false testimony during trial. 405 U.S. at

153-54; Kutzner v. Johnson

, 242 F.3d at 609. Importantly, due

process is not implic ated by the prosecution’s introduction or

allowance of false or perjured testimony unless the prosecution

actually knows or believes the testimony to be false or perjured;

it is not enough that the testimony is challenged by another

witness or is inconsistent with prior statements. K u tzner

, 242

F.3d at 609; K och v. Puckett

, 907 F.2d 524, 531 (5th Cir. 1990);

United States v. Sutherland , 656 F.2d 1181, 1203 (5th Cir. 1981).

As Ms. Frankhouser’s testimony makes clear, she was unsure of

the number of hairs collected and offered to consult her notes on

the matter. Kutzner did not pursue the matter further. Moreover,

Frankhouser testified that no DNA testing was conducted on the

fingernail scrapings, not that no DNA testing was possible. Once

again, Kutzner chose not to pursue the matter. As stated above,

Kutzner even argued the dearth of scientific evidence to the jury

as proof of reasonable doubt. See, e.g., 13 SR 107-09.

The evidence proving Kutzner’s guilt was certainly

circumstantial, but it was not weak. Tie wra ps and electrical

wiring used to restrain the victim and choke her were linked to

Kutzner. Further, multiple items

— money orders, a VCR, and a

computer keyboard

— taken from the two crime scenes were traced7

back to Kutzner. Also and perhaps most damaging was evidence that

Kutzner committed another murder in Harris County about two weeks

earlier with striking similarities to the Harrison murder. In

light of this evidence, DNA exclusions or identifications from

fingernail scrapings or stray hairs could not have affe cted the

outcome of this case. Both victims were murdered in a place of

business where dozens - possibly hundreds - of people had

unwittingly deposited genetic material over the preceding months.

Petitioner focuses on the single strand of hair that the state

discovered since the trial. But even if this hair is tested and it

is determined not to belong to Kutzner, this would not be

persuasive evidence of his innocence. This is particularly true in

light of the state’s strong circumstantial evidence of guilt. As

a result, Kutzner fails to make a pr ima facie showing that DNA

tests would prove his innocence of the murder of Kathryn Harrison.

For the reasons stated above, Kutzner has failed to meet the

successive petition requirements of the AEDPA because:

1) Petitioner does not rely on a new rule of constitutional

law;

2) He has not demonstrated that the predicate facts for his

claims could not have been discovered previously through

the exercise of due diligence; and

3) Even if t he tests of hair and nail scrapings revealed

that they belonged to someone other than Kutzner, this8 w ould be insufficient to establish by clear an d

convincing evidence that, but for constitutional error,

no reasonable factfinder would have found the applicant

guilty of the underlying offense.

III.

Kutzner argues that we should not treat his pleadings filed in

the district court and in this court as an application to file a

successive habeas petition. He relies on McFarland v. Scott , 512

U.S. 849 (1994), and its holding that appointed counsel and a stay

of execution is available in a post conviction proceeding under §

2254 or § 2255. We do not agree with Kutzner, however, that this

right to a stay of execution is absolute.

The core concern of McFarland

— that an un-counseled prisoner

would be required to “proceed without counsel in order to obtain

counsel and thus would expose him to the substantial risk that his

habeas claims never would be heard on the merits,” 512 U.S. at 856

— is not implicated here. Kutzner w as represented by qualified

counsel appointed under section 848(q)(4)(B) and his original §

2254 petition was fully litigated on the merits. Further, current

counsel has represented Kutzner for more than one year. “The

McFarland Court was concerned only with that period of time between

the habeas petitioner’s motion for the appointment of counsel and

the filing of the initial petition.” Turner v. Johnson

, 106 F.3d

1178, 1182 (5th Cir. 1997) (emphasis added). Thus, M cFarland does9

not justify appointment of counsel or stay of execution for the

preparation of a second federal habeas petition.

Finally, a federal court is without jurisdiction to consider

a request for stay of execution in connection with a successive

habeas petition “in the absence of express au thorization by this

[C]ourt pursuant to 28 U.S.C. § 2244(b)(3)(A).” M artinez v. Texas

Court of Criminal Appeals

, 292 F.3d 417, 423 (5th Cir.), cert.

denied, 122 S. Ct. 1992 (2001). For reasons stated above, such

authorization is not wa rranted in this case. Kutzner had

sufficient time to seek appointment of counsel, investigate the

instant claims, and litigate them in his original habeas petition

because the bases of Kuztner’s claims were available to him since

the time of trial proceedings. Allowance of a stay of execution

under these circumstances would signal tacit approv al of endless

stays for the preparation of endless successive petitions.

Kutzner also argues that his motion for assistance to prepare

a successive petition should

- like a Rule 60(b) motion - not be

characterized as an att empt to file a successive petition.

Contrary to Kutzner’s argument, a motion under Rule 60(b) is the

equivalent of a second or successive habeas petition subject to the

standards of section 2244(b). H ess v. Cockrell

, 281 F.3d 212, 214-

15 (5th Cir. 2002); Fierro v. Johnson

, 197 F.3d 147, 151 (5th Cir.

1999), cert. denied, 530 U.S. 1206 (2000); United States v. Rich

,

141 F.3d 550, 551-52 (5th Cir. 1998). Like a Rule 60(b) motion,10

Kuztner’s motions for DNA testing and stay of execution in the

lower court essentially attacked his conviction and sentence on

constitutional grounds by leveling accusations of prosecutorial

misconduct. Although his protestations are without merit, Kutzner

has no other explanation f or why he did not raise the instant

issues earlier. Thus, there is no functional distinction between

Kutzner’s motions and a request for successive habeas relief.

Nevertheless, even assuming arguendo that Kutzner’s appeal

should be considered an application for certificate of

appealability (“COA”), he is not entitled to relief. It is well

settled that the Court’s appellate jurisdiction in habeas cases is

premised on 2 8 U.S.C. § 2253(c)(1)(A). The COA standard to be

applied is whether Kuztner “has made a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2);

Barefoot v. Estelle

, 463 U.S. 880, 893 (1983); Dowthitt v. Johnson

,

230 F.3d 733, 740 (5th Cir. 2000), cert. denied, 532 U.S. 915

(2001). This standard “includes showing that reasonable jurists

could debate whether (or, for that matter, agree that) the petition

should have been resolved in a different manner or that the issues

presented were a dequate to deserve encouragement to proceed

further.” S lack v. McDaniel

, 529 U.S. at 483-84 (inte rnal

quotations and citations omitted); Dowthitt

, 230 F.3d at 740.

Ordinarily, “the determination of whether a COA should issue

must be made by viewing the petitioner’s arguments through the lens11

of the deferential scheme laid out in 28 U.S.C. § 2254(d).”

Barrientes v. Johnson

, 221 F.3d 741, 772 (5th Cir. 2000), cert.

dismissed, 531 U.S. 1134 (2001). However, because Kuztner’s appeal

is functionally a second or successive petition for habeas relief,

Fierro v. Johnson

, 197 F.3d at 151, Kutzner’s claims should be

viewed “through the lens” of 28 U.S.C. § 2244(b)(2). In essence,

the issue is whether it is debatable that Kutzner has substantially

proved the elements of section 2244(b)(2)(B)(i) & (ii) —

constitutional error and actual innocence established by newly

discovered evidence. Therefore, under either standard this appeal

is meritless.

CONCLUSION.

For reasons stated above, we treat Kutzner’s filings as a

petition for authority to file a successive habeas. We conclude

th at Kutzner has failed to meet the successive petition

requirements of 28 U.S.C. § 2244 (b)(2)(B)(i) and (ii). We,

therefore, deny petitioner authority to file a successi ve habeas

petition. We also deny his motion for stay of execution.