IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-20826

In re: CHARLES D. RABY,

Movant.

Motion for an Order Authorizing

the United States District Court

for the Southern District of Texas

to Consider a Successive 28 U.S.C. § 2254 Petition

Before HIGGINBOTHAM, SMITH, and DUNCAN, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Charles Raby was convicted and sentenced to death for the gruesome 

murder of seventy-two-year-old Edna Franklin. Raby v. Dretke, 78 F. App’x 

324, 325 (5th Cir. 2003), cert. denied, 542 U.S. 905 (2004). In December 2018, 

Raby moved for an order authorizing the filing and consideration of a secondor-successive habeas corpus petition. Because Raby fails to meet the standard 

to warrant a second-or-successive petition, we deny the motion for 

authorization.

I.

Franklin was murdered in her living room after being severely beaten 

United States Court of Appeals

Fifth Circuit

FILED

June 4, 2019

Lyle W. Cayce

Clerk

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and repeatedly stabbed, her throat cut. Raby, a friend of Franklin’s grandsons, 

confessed.1

In June 1994, a Texas jury convicted Raby of capital murder, and he was 

sentenced to death based on the jury’s answers to the special issues. The Texas 

Court of Criminal Appeals (“CCA”) affirmed on direct appeal. Raby v. State, 

970 S.W.2d 1, 9 (Tex. Crim. App.), cert. denied, 525 U.S. 1003 (1998). The CCA 

denied Raby’s application for a state writ of habeas corpus. Ex parte Raby, 

No. WR-48,131-01 (Tex. Crim. App. Jan. 31, 2001).

The district court denied Raby’s federal habeas petition. Raby v. Cockrell, No. 4:02-cv-00349, slip op. at 1 (S.D. Tex. filed Nov. 27, 2002). We declined 

a certificate of appealability (“COA”). Raby, 78 F. App’x at 325–29. 

 

1 Raby’s confession stated, in relevant part, the following: 

 I drank the bottle of wine and then I walked over to Lee’s house on Westford 

Street. Lee lives there with his grandmother, Edna and his cousin Eric. There 

is an old Volkswagon [sic] in the drive way at their house. I walked up to the 

front door. The front door has a screen type door in front of a wooden door. 

I knocked on the door. I did not hear anyone answer. I just went inside. I sat 

down for a little bit on the couch. I called out when I got inside but I did not 

hear anyone say anything. I heard Edna in the kitchen. I walked into the 

kitchen and grabbed Edna. Edna’s back was to me and I just grabbed her. 

I remember struggling with her and I was on top of her. I know I had my knife 

but I do not remember taking it out. We were in the living room when we went 

to the floor. I saw Edna covered in blood and underneath her. I went to the 

back of the house and went out the back door that leads into the back yard.

 Shortly after I had left Lee’s house on Westford I was approached by a man 

and this man told me something like “I had better not catch you in my yard,” 

“jumping his fences.” Or something like that. I woke up later on the ground 

near the Hardy Toll Road and Crosstimbers. I walked home, on Cedar Hill 

from there. I remember feeling sticky and I had blood on my hands. I washed 

my hands off in a water puddle that is near the pipe line by the Hardy Toll 

Road. I do not remember what I did with my knife.

 The next day I knew I had killed Edna. I remembered being at her house 

and struggling with her and Edna was covered with blood when I left. I think 

I was wearing a black concert shirt, the blue jeans Im [sic] wearing and my 

Puma tennis shoes. I also had on a black jacket.

Raby v. State, No. AP-76,970, 2015 WL 1874540, at *2 (Tex. Crim. App. Apr. 22, 2015).

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While his federal habeas petition was pending, Raby moved in state 

court for post-conviction DNA testing of four pieces of evidence: underwear 

found near Franklin, the nightshirt Franklin was wearing, Franklin’s fingernail clippings, and a hair found on her hand (identified as belonging to one of 

Franklin’s grandsons). Raby v. State, No. AP-74,930, 2005 WL 8154134, at *1

(Tex. Crim. App. June 29, 2005). See TEX. CODE CRIM. PROC. ANN. ch. 64 (West 

2017). The CCA granted Raby’s motion in part and allowed testing on the 

underwear, nightshirt, and fingernail clippings. Raby, 2005 WL 8154134, 

at *8.

Over a three-year period, the state trial court held a series of hearings

concerning the DNA evidence. Raby, 2015 WL 1874540, at *1; see also TEX.

CODE CRIM. PROC. ANN. art. 64.04. The nightshirt could not be located. Testing on the underwear showed only that the blood was from Franklin. Consequently, the hearings focused on the DNA evidence recovered from the fingernail clippings, which “contain[ed] a weak and incomplete DNA profile from an 

unknown male.” The state district court concluded that

[h]aving heard arguments, read the parties’ briefing, affidavit evidence, and other exhibits, reviewed the trial transcript, and considered the testimony of experts, including forensic DNA experts 

interpreting the DNA test results that have been obtained, . . . the 

results are not favorable to [Raby], and that had the DNA test 

results obtained under Chapter 64 been available in 1994, it is 

reasonably probable that Raby would have been prosecuted or 

convicted.

Raby, 2015 WL 1874540, at *1. The CCA affirmed in 2015. Id. at *5–9. Raby 

filed a subsequent state habeas application that the CCA denied as an abuse 

of the writ. Ex parte Raby, No. WR-48,131-02, 2017 WL 2131819, at *1 (Tex. 

Crim. App. May 17, 2017) (per curiam).

In August 2017, Raby filed a Federal Rule of Civil Procedure 60(b)(6) 

motion for relief from judgment. The district court denied the motion, finding 

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that a change in decisional law “does not, without more, constitute extraordinary circumstances.” Raby v. Davis, No. 4:02-cv-00349, slip op. at 5 (S.D. 

Tex. Apr. 5, 2018). We declined a COA. Raby v. Davis, 907 F.3d 880, 883 (5th 

Cir. 2018), petition for cert. filed (U.S. Mar. 4, 2019) (No. 18-8214).

Raby moves for an order authorizing the filing and consideration of a 

second habeas petition. His application presents four grounds. First, that the 

state destroyed exculpatory evidence such that it is no longer available for 

testing, in violation of California v. Trombetta2 and Arizona v. Youngblood.3 

Second, that Joseph Chu, the state’s forensic serologist, falsely referred to 

exculpatory serological results as “inconclusive,” in violation of Giglio v. United 

States.4 Third, that the state withheld material exculpatory evidence, in violation of Brady v. Maryland.5 Fourth, that Raby is actually innocent such that 

his confinement violates the Eighth and Fourteenth Amendments.6

II.

A.

Federal habeas review for a prisoner in state custody is governed by the 

Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. 

 

2 467 U.S. 479 (1984). “Whatever duty the Constitution imposes on the States to preserve evidence, that duty must be limited to evidence that might be expected to play a significant role in the suspect’s defense.” Id. at 488.

3 488 U.S. 51 (1988). In Youngblood, the Court modified Trombetta by holding that a 

state’s failure to preserve potentially useful evidence is not a violation of due process unless 

the defendant can make a showing of bad faith on the part of the state actor. Id. at 58.

4 405 U.S. 150 (1972). Giglio extended the prosecution’s Brady obligation by holding 

that both impeachment and exculpatory evidence fall within the bounds of the rule. See id.

at 154; see also United States v. Bagley, 473 U.S. 667, 676 (1985).

5 373 U.S. 83 (1963). Brady held that failure of the prosecution to turn over material 

exculpatory evidence to a defendant violates due process. Id. at 87.

6 In McQuiggin v. Perkins, 569 U.S. 383, 392 (2013), the Court stressed that it had not 

yet determined whether a petition for habeas relief could be “based on a freestanding claim 

of actual innocence.”

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No. 104-132, Title I, 110 Stat. 1214, 1217–26 (codified as amended in scattered 

sections of Title 28). Because Raby previously filed a federal habeas petition, 

he must receive authorization from this court to file a second-or-successive 

petition. 28 U.S.C. § 2244(b)(3)(A). 

We permit the filing of a successive petition only if we conclude that 

Raby’s application makes a prima facie showing that it satisfies the strict 

requirements in § 2244(b). Id. § 2244(b)(3)(C). A prima facie showing is 

“simply a sufficient showing of possible merit to warrant a fuller exploration 

by the district court.” In re Campbell, 750 F.3d 523, 530 (5th Cir. 2014) (citation omitted). Consequently, if it seems reasonably likely that a successive 

petition meets the strict requirements provided in the statute, we will grant 

the motion for a successive petition. Id. Our decision to grant or deny authorization is not appealable and may not be the subject of a petition for rehearing 

or writ of certiorari. 28 U.S.C. § 2244(b)(3)(E).

Both parties concede that the claims presented by Raby were not raised 

in his initial federal habeas petition, so he must make a prima facie showing 

that he satisfies the requirements of § 2244(b)(2)(B):

(2) A claim presented in a second or successive habeas corpus 

application under section 2254 that was not presented in a prior 

application shall be dismissed unless—

. . . 

(B)(i) the factual predicate for the claim could not have been 

discovered previously through the exercise of due diligence; 

and 

(ii) the facts underlying the claim, if proven and viewed in 

light of the evidence as a whole, would 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. 

Id. § 2244(b)(2)(B).

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A petitioner who makes such a showing must also overcome the statutory 

time bar. Generally, an applicant faces a one-year limitations period to file a 

federal habeas petition. Id. § 2244(d)(1). As relevant here, that period runs 

from “the date on which the factual predicate of the claim or claims presented 

could have been discovered through the exercise of due diligence.” Id. § 2244-

(d)(1)(D). We may apply equitable tolling, which “is applied restrictively and

. . . is entertained only in cases presenting rare and exceptional circumstances 

where it is necessary to preserve a plaintiff’s claims when strict application of 

the statute of limitations would be inequitable.” In re Wilson, 442 F.3d 872, 

875 (5th Cir. 2006) (internal quotation marks and citation omitted).

Although the Supreme Court has not determined whether a petitioner 

may receive habeas relief based on a freestanding actual-innocence claim, “a 

credible showing of actual innocence may allow a prisoner to pursue his constitutional claims . . . on the merits notwithstanding the existence of a procedural 

bar to relief.” Perkins, 569 U.S. at 392. “The Fifth Circuit does not recognize 

freestanding claims of actual innocence on federal habeas review.” E.g., In re 

Swearingen, 556 F.3d 344, 348 (5th Cir. 2009) (per curiam). Thus, we decline 

Raby’s invitation to review his actual-innocence claim on its merits. If, however, one (or more) of Raby’s claims satisfies the dual requirements of 

§ 2244(b)(2)(B), a credible showing of actual innocence would allow him to 

pursue the claim, despite a procedural bar.7

In any event, our inquiry is limited to whether Raby has made a prima

facie showing concerning any of his claims such that “it appears reasonably 

likely that the application satisfies the stringent requirement for the filing of 

 

7 The CCA dismissed the claims Raby raises here as an abuse of the writ. Raby, 2017 

WL 2131819, at *1. Therefore, the state contends that they are procedurally defaulted. 

Because we decline to grant Raby’s motion on alternative grounds, we do not reach this issue.

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a second or successive petition.” Campbell, 750 F.3d at 530. We review each 

claim in turn.

B.

Raby avers that “the state destroyed exculpatory or potentially useful 

evidence” in violation of Trombetta and Youngblood. Even assuming, arguendo, that the claim is not time-barred and that Raby could not have previously 

discovered the factual predicate for the claim using due diligence, he cannot 

“establish by clear and convincing evidence that, but for constitutional error, 

no reasonable factfinder would have found [him] guilty of the underlying 

offense.” 28 U.S.C. § 2244(b)(2)(B)(ii). Consequently, he fails to make a prima

facie showing sufficient to warrant authorization for a second-or-successive 

habeas petition on this ground.

Raby asserts that Chu’s decision to perform a highly consumptive Lattes 

test on the biological material recovered from Franklin’s fingernails over a 

month after investigators recovered the material is evidence of bad faith.8 

Raby contends that, by doing so, Chu ensured that his conclusions could not be 

second-guessed. Raby avers that this evidence, especially when read in conjunction with the infamous Bromwich Report,9 constitutes a prima facie showing on this claim.

 

8 An expert witness for the state testified—as part of the article 64.04 hearings—that 

a Lattes test is an excellent test when performed on very fresh samples only a couple of days 

old. Raby therefore implies that performing the test on a not-so-fresh sample—recovered 

over a month before testing—constitutes bad faith as defined in Youngblood.

9 In the early 2000s, concerns arose regarding the practices and procedures employed 

by the Houston Police Department’s Crime Lab. Napper v. Thaler, Nos. H-10-3550, H-10-

3551, 2012 WL 1965679, at *13 (S.D. Tex. May 31, 2012). The Acting Chief appointed an 

investigative team, led by Michael Bromwich, to conduct an outside review of the lab and its 

practices, both past and present. Id. at *13, 15. The team published a report in 2007 that 

became known as the “Bromwich Report.” See id. at *14–15.

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In response, the state maintains that Raby failed to show Houston Police 

Department (“HPD”) lab employees, including Chu, “destroyed potentially 

useful evidence in bad faith.” The state asserts that there is no evidence Chu 

performed the Lattes test with knowledge that Franklin’s fingernail clippings 

contained potentially useful evidence and contends that the Bromwich Report’s 

conclusions concerning the use of inadequate procedures did not establish that 

Chu and other crime lab employees acted in bad faith. Instead, the report 

“explained that the failures in the HPD Crime Lab were the result of a lack of 

training and of the isolation of the DNA section of the Crime Lab from the 

forensic community, not the actions of rogue analysts.” Napper, 2012 WL 

1965679, at *33 (internal quotation marks omitted).

Moreover, Trombetta requires a defendant to demonstrate that (1) the 

exculpatory value of the evidence was obvious before its destruction and (2) the 

evidence was “of such a nature that the defendant would be unable to obtain 

comparable evidence by other reasonably available means.” Trombetta, 

467 U.S. at 489; see also Youngblood, 488 U.S. at 56 n.*. The state maintains 

that Raby fails to show that the exculpatory value of the evidence was apparent 

to Chu when he performed the Lattes test—i.e., “before the evidence was 

destroyed.” Trombetta, 467 U.S. at 489 (emphasis added). Consequently, Raby 

fails to establish a due process violation under either Trombetta or Youngblood.

The state has the better of the argument. First, the evidence presented 

by Raby fails to establish bad faith on the part of Chu. Contrary to Raby’s 

assertion, Chu’s decision to perform the highly consumptive Lattes test on the 

biological material before employing the preferred Absorption-Elution (“AE”) 

test is not evidence of bad faith. Rather, in line with the findings of the Bromwich Report, it is evidence of a lack of training. Further, there is nothing in 

Raby’s application to suggest that the exculpatory value of the fingernail 

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clipping evidence—which, to be clear, does not exonerate Raby—was apparent 

when Chu performed the Lattes test. As the Supreme Court has made clear, 

the evidence’s exculpatory value must be obvious before its destruction. E.g., 

Youngblood, 488 U.S. at 56 n.*. Raby thus fails to make a prima facie showing 

on this claim, and it is not reasonably likely that his claim meets the 

requirements of 28 U.S.C. § 2244(b)(2)(B)(ii). We therefore cannot allow his 

application on this claim to proceed.

C.

Raby asserts that “the state knowingly sponsored or failed to correct 

Mr. Chu’s and the lead HPD detective’s false testimony regarding exculpatory 

blood typing results,” in violation of Giglio. To establish a due process violation 

under Giglio, a habeas petitioner must show “(1) the witness gave false testimony; (2) the falsity was material in that it would have affected the jury’s verdict; and (3) the prosecution used the testimony knowing it was false.” Reed v. 

Quarterman, 504 F.3d 465, 473 (5th Cir. 2007). Evidence is material in the 

Giglio sense if it is reasonably likely that it “could have affected the jury’s verdict.” Westley v. Johnson, 83 F.3d 714, 726 (5th Cir. 1996) (citation and 

quotation mark omitted).

As a preliminary matter, Raby fails to establish that the state knowingly 

presented false testimony. First, as the state emphasizes, Chu’s testimony was 

probably the result of inadequate training and procedures at the HPD crime 

lab. Cf. Napper, 2012 WL 1965679, at *35–41. The detection of A, B, and H 

antigen activity on fingernail clippings from Franklin’s right hand, and B and 

H antigen activity on fingernail clippings from her left hand, did not conclusively exclude Raby as a contributor to the tested sample, especially given that

H antigen activity is present in those individuals who, like Raby, possess 

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blood type O.10 

Moreover, Raby does not show that the prosecution used the testimony 

knowing that it was false. Nothing in the record suggests that prosecutors or 

the police department were aware of the crime lab’s deficiencies in 1994, and

HPD took immediate action in disclosing issues with the lab when they came 

to light in late 2002.11 At least two district courts have rejected similar falsetestimony claims concerning the HPD crime lab (and even Chu specifically).12 

Even assuming, arguendo, that Raby could establish a constitutional violation under Giglio—an assumption that is, again, doubtful—and that he could 

satisfy AEDPA’s diligence requirement, 28 U.S.C. § 2244(b)(2)(B)(i), he does 

not have a reasonable likelihood of showing, by clear and convincing evidence, 

that but for the Giglio violation, not a single reasonable juror would have found 

him guilty of murder. Raby contends that had the serology testing been properly undertaken and reported, HPD would have conducted further testing and 

considered additional suspects. He also avers that defense strategy would have 

been different and that, in light of blood typing results showing A antigen 

activity in the biological material recovered from Franklin’s right hand, “all 

other evidence presented by the [s]tate would have little value, or be outright 

contradicted, including the custodial statement.” Raby asserts that this evidence is so compelling that any reasonable factfinder would have disregarded 

Raby’s confession.

 

10 Franklin had blood type B. Individuals with blood type A have A antigens on their 

red blood cells, individuals with blood type B have B antigens on their red blood cells, and 

individuals with blood type AB have both A and B antigens on their red blood cells.

11 See, e.g., Alvarez v. Davis, No. 4:09-CV-3040, 2017 WL 4844570, at *38 (S.D. Tex. 

Oct. 25, 2017), appeal filed (5th Cir. Jan. 18, 2018) (No. 18-70001).

12 E.g., id. at *38–39; Napper, 2012 WL 1965679, at *40–41 (highlighting that the CCA 

found that Chu did not commit perjury and that the state did not use false testimony).

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In response, the state stresses that “Raby’s assertion that the presence 

of a foreign blood type in Ms. Franklin’s hands exculpates him must be considered in light of the extensive circumstantial evidence of his guilt.” The state 

proffers the following evidence: Raby was a friend of Franklin’s grandsons. 

Roughly a week before her murder, Franklin and Raby were involved in an 

altercation. Franklin informed an intoxicated Raby that he was not welcome 

in her house, and he responded by verbally abusing Franklin and hurling a 

beer bottle onto her porch.

At approximately 5:00 pm on the day of the murder, Raby stopped at the 

home of Shirley Gunn, who lived near Franklin. Raby was wearing a jacket 

and carrying a knife, approximately 2- to 3-inches long, that he used to groom 

his fingernails while at Gunn’s house. Gunn stated that she smelled alcohol 

on Raby’s breath. Raby left her home at around 6:00 pm. Before leaving, Raby 

asked Gunn whether Gunn’s son was at Franklin’s house. Barbara Wright, 

who lived about ten blocks from Franklin, witnessed Raby pass by at around 

5:00 pm and again at around 6:00. He was carrying a black jacket on his 

shoulder.

At 6:45 pm, Franklin spoke with her daughter, Linda McClain, on the 

phone. Sometime between 7:00 and 7:45, Raby knocked on the back door of 

Mary Alice Scott’s home. Scott also lived close to Franklin. After hearing the 

knock, Scott looked outside and observed Raby, in her driveway, walking 

toward the street. Scott testified that Raby was wearing a dark jacket and 

blue jeans.

At around 8:00 pm, Martin Doyle pulled into the driveway of Leo Truitt, 

who lived behind Franklin’s home. Doyle witnessed a white male cut through 

Truitt’s yard and hop over his fence, then head east away from Truitt’s home. 

Both Doyle and Truitt followed the man down the street but ended their pur-

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suit after they confronted him and determined he had not stolen anything from 

Truitt’s yard.

At trial, Doyle described the man’s height as six feet or less. In court,

Raby was asked to stand. Doyle then stated that Raby was about the same 

height as the man in Truitt’s yard. In a statement given to police the day after 

Franklin’s murder, Truitt stated that the man in his yard weighed about 160

pounds and was between five feet, six inches and five feet, seven inches tall. 

Raby is approximately five feet, seven inches tall and weighs roughly 

160 pounds.

Police attempted to arrest Raby on Friday, October 16 (the day after the 

murder), but he evaded capture by fleeing out the back door of his girlfriend’s 

home. He was arrested without incident a few days later and taken to the

station. He waived his Miranda rights and agreed to speak with police. Sergeant Waymon Allen asked Raby to recall the events of Thursday, October 15. 

Raby initially recalled a version of events that did not place him at Franklin’s 

home that night. But after Allen told Raby that he knew Raby was being untruthful because one of Franklin’s neighbors witnessed Raby jump over a fence 

leaving Franklin’s home, Raby became emotional and stated, inter alia, “I was 

there” and “I saw her on the living room floor.”13 Raby then confessed.

Considering the overwhelming circumstantial evidence and Raby’s confession, Raby has not shown that it is reasonably likely that he will be able to 

demonstrate, by clear and convincing evidence, that but for the alleged Giglio

violation, no reasonable juror would have voted to convict him of murder. See

28 U.S.C. § 2244(b)(2)(B)(ii). To forestall this inevitable conclusion, Raby 

 

13 Franklin’s body was found on the floor of her living room. Raby, 970 S.W.2d at 2.

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asserts that his confession was unreliable for any number of reasons.14 For 

example, he contends that he could not have struggled with Franklin because 

no blood was found on his clothes, and he did not have any scratches on his 

body. Such evidence does not, however, contradict Raby’s confession. It is 

entirely possible that given Franklin’s frailty, “she was taken by surprise, overpowered, and unable to fight back.” Raby, 2015 WL 1874540, at *4. The 

absence of blood and scratches is also reasonable considering Raby’s written 

confession that he grabbed her from behind while holding his knife. Id.

Raby avers that his statement about entering through the front door was 

inconsistent with the police investigation finding that the assailant entered 

through a bedroom window by dislodging a screen. As the state highlights, 

however, Raby’s intoxication on the night of the murder may have caused him 

to misremember some of the details. Uncontradicted evidence placed Raby 

near Franklin’s home at the time she was murdered. Moreover, shortly before 

Franklin was murdered, Raby asked a friend’s mother whether her son was at 

Franklin’s house. Additionally, despite his claim that he has recanted his

confession, Raby does not deny murdering Franklin. Instead, Raby merely 

states that he has “no memory of killing Mrs. Franklin,” but at the same time 

emphasizes that he “did not rape her.”

Raby also contends that the presence of A antigen activity in the biological material recovered from Franklin’s right hand is inconsistent with his confession. The serological results, however, do not exclude Raby as a contributor 

of the biological material. Nor do they necessarily demonstrate the presence 

of an unknown assailant. The A antigen activity may have come, for example,

 

14 In 2003, during Raby’s first habeas proceeding, we emphasized that Raby “signed a 

confession to every aspect of the relevant charge, with the exception of the explicit act of 

stabbing.” Raby, 78 F. App’x at 327. Raby adopted his confession in open court by affirming 

that it was “true.”

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from contamination at the HPD crime lab, which was criticized in the Bromwich Report for failing to utilize proper controls to detect such contamination. 

It could have also come from the saliva or perspiration of an individual who 

had recently been in Franklin’s home.

The absence of Raby’s DNA on Franklin’s body also does not contradict 

his confession. Raby’s grandsons, for example, were often in close contact with 

Franklin, and their DNA was not found on her hands. DNA analysis did, 

however, find the presence of low-level male DNA on two of Franklin’s fingernails. Raby, 2015 WL 1874540, at *6. “The sample was a mixture of at least 

two males,” but the DNA did not belong to either Raby or Franklin’s grandsons. 

Id. Neither the state’s expert, nor Raby’s, could rule out contamination as the 

source of the DNA, id. at *7, particularly since DNA collection standards were 

different in 1992 than they are now, id. at *6. The state’s expert also contended 

that Franklin “could have picked up male DNA from laying on the floor after 

her attack.” Id. at *7. In any event, there was no way to determine when 

Franklin encountered the unknown male DNA. Id.

The larger point is this: After twenty-five years, Raby seeks to relitigate 

his state murder conviction in federal court on its merits. AEDPA, however, 

definitively bars him from doing so. We readily acknowledge that the previously unavailable evidence muddies the waters. But at this stage of the proceedings, a greater showing is required, and we are bound by the strict standards outlined in § 2244(b). Raby does not establish that if the newly discovered evidence had been available to him in 1994, no reasonable juror would 

have voted to convict. Notably, Sergeant Allen, the lead detective, acknowledged at trial that there was no physical evidence connecting Raby to the 

crime. In spite of this, the jury voted to convict Raby of murder, undoubtedly

based on the strength of the other evidence presented.

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Even with multiple generous assumptions in his favor—i.e., that Raby’s 

claims are not procedurally barred or time-barred and that they satisfy § 2244-

(b)(2)(B)(i)’s diligence requirement15—Raby does not make a prima facie showing that § 2244(b)(2)(B)(ii)’s requirements are met. We therefore deny his 

petition for authorization to proceed on his Giglio claim.

D.

Raby contends that “the [s]tate withheld material, exculpatory evidence,” including (1) blood serology results indicating an unidentified source to 

the sample of blood recovered from under Franklin’s fingernails and (2) lab 

results finding no blood on the clothing Raby wore on the night of the murder, 

in violation of Brady. To establish a due process violation under Brady, a 

habeas petitioner must satisfy three elements. Strickler v. Greene, 527 U.S. 

263, 281–82 (1999). 

First, the evidence suppressed must be favorable to the defendant. Id. 

at 281. The evidence may be either exculpatory or impeaching. Id. at 282. 

Second, the state must have suppressed the evidence. Id. The suppression 

may be willful or inadvertent. Id. Third, “prejudice must have ensued”—i.e., 

the suppressed evidence must have been material. Id. “[E]vidence is material 

only if there is a reasonable probability that, had the evidence been disclosed 

to the defense, the result of the proceeding would have been different. A ‘reasonable probability’ is a probability sufficient to undermine confidence in the 

outcome.” Bagley, 473 U.S. at 682. A Brady violation must be found if a petitioner demonstrates “that the favorable evidence could reasonably be taken to 

put the whole case in such a different light as to undermine confidence in the 

 

15 In fact, the state concedes none of these points and makes compelling arguments to 

the contrary.

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16

verdict.” Kyles v. Whitley, 514 U.S. 419, 435 (1995). It is Raby’s burden under 

AEDPA to establish that he has a viable claim such that he is entitled to relief. 

See Montoya v. Johnson, 226 F.3d 399, 404 (5th Cir. 2000).

As an initial matter, Raby fails to carry his burden concerning the second 

element. The state notes that “Raby’s Brady claim depends critically on his 

assertions that trial counsel, Felix Cantu, was not provided a copy of Mr. Chu’s 

lab report during trial and was, consequently, unaware that Mr. Chu’s testing 

revealed the presence of an A blood type and did not indicate the presence of 

blood on Raby’s clothes.” At trial, however, the prosecution asserted that it 

had opened its entire file to Raby and his counsel.16 Raby’s counsel did not 

contradict this assertion. Cantu did receive a copy of an offense report stating 

that the blood typing results were “inconclusive.” Importantly, Cantu 

acknowledged in a 2009 affidavit that the HPD Crime Lab report may have 

been produced to him during trial.17

 

16 The trial transcript reads, in relevant part:

State Prosecutor: I would like the record to reflect that the State at this time 

has opened its entire file to the Defense. . . . For the record, we have also agreed 

to submit a bunch of records on the Defendant, all of which are on file, dating 

back to the time when the Defendant was 12 years old.

. . .

Trial Court: Motion for discovery and inspection I think you’ve been granted 

that. It’s my understanding that the State has opened the file to the Defense, 

and I know from previous conversations on and off the record, the State has 

agreed to give you just about everything that they have.

State Prosecutor: That’s correct, Your Honor. Both lawyers have looked at the 

State’s case. They have taken a lot of time doing that. I kept them abreast on 

a daily basis of the latest developments as I find incriminating evidence or

exculpatory evidence, as it were. I have turned over the names of at least one 

or two witnesses they may want to call in mitigation on punishment. And as 

I said before, we have provided them with a copy of all records of everything 

on file.

17 In that affidavit, Cantu stated,

That report was either never produced to me at trial, or it was produced in the 

midst of a witness examination; in either case, I had no opportunity to incorpor-

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However, even assuming that Raby could make a sufficient showing on 

his Brady claims and could satisfy AEDPA’s diligence requirement, 28 U.S.C. 

§ 2244(b)(2)(B)(i), he does not have a reasonable likelihood of showing, by clear 

and convincing evidence, that but for the alleged Brady violation, not a single 

reasonable juror would have found him guilty of murder. Id. § 2244-

(b)(2)(B)(ii), (3)(C). Consequently, we cannot permit him to proceed with this 

claim.

The motion for an order authorizing the filing of a successive 28 U.S.C. 

§ 2254 petition is DENIED.

 

ate the contents of that page into my examination, much less submit it to someone with the expertise to explain what the notes on that chart meant. I am 

told that the report was not within the trial files I forwarded to Mr. Raby’s 

current counsel in about 2001, and that is what I would expect. 

Raby notes that when his current counsel began representing him in 2001, “they collected the trial record and the other materials they could obtain, including via the Public 

Information Act, from former counsel, as well as materials Mr. Raby’s friends had succeeded 

in obtaining to that point.” “Among those boxes was a collection of about 40 pages appearing 

to come from the HPD Crime Lab.” Raby states that “[a] single page in this pile of pages says 

in handwriting within a chart, for one hand, ‘A +2’, and for the other hand, nothing about ‘A’; 

there is no other information or narrative report, other than the homicide report’s short supplement declaring the results inconclusive.” Thus, it is, at best, unclear whether Chu’s notes 

and findings concerning the presence of A antigen activity were available to Raby at trial.

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