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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-50348

In re: WILLIAM JOSEF BERKLEY,

Movant

Order Denying Motion to Authorize 

Second Petition for Writ of Habeas Corpus 

under 28 U.S.C. § 2244

Before JOLLY, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

William Josef Berkley is scheduled to be executed by the State of Texas on

April 22, 2010. Berkley moves this Court for a stay of execution and an order

authorizing the filing and consideration of a second petition for writ of habeas

corpus, under 28 U.S.C. § 2244(b)(3)(C). After considering Berkley’s arguments,

we DENY both motions.

The facts of this case have been documented in previous opinions by this

Court, Berkley v. Quarterman, 310 F. App’x 665 (5th Cir. 2009) (unpublished)

(per curiam), and the district court, Berkley v. Quarterman (Berkley I), 507 F.

United States Court of Appeals

Fifth Circuit

F I L E D

April 21, 2010

Lyle W. Cayce

Clerk

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Supp. 2d 692 (W.D. Tex. 2007). We repeat the facts here only as they directly

affect the instant motions. 

Sophia Martinez stopped at an ATM to make a withdrawal. Berkley I, 507

F. Supp. 2d at 702. Bank security cameras recorded a male with a handgun who

approached Martinez’s vehicle; shot into the vehicle, apparently wounding

Martinez in the head or face; and got in her car, which subsequently drove away.

Id. at 702–03. Before trial, Berkley made two confessions. Id. at 703–04. At

trial, the district court admitted portions of those confessions which established

Berkley’s account of the events that transpired on the night of Martinez’s death:

“his gun went off as he approached Martinez’s vehicle”; he “entered her vehicle

. . . and directed her to drive her vehicle away from the ATM to a deserted area”;

when they reached the deserted area, she “initiated multiple episodes of sexual

relations between them”; his gun discharged “when she attempted to hug him”;

“he passed out and did not wake up for several hours”; when he awoke, he saw

Martinez lying on the ground; “he ‘freaked out’ and drove her car to another part

of the desert where he drove it off the road” and “he then walked home.” Id.

Police found Martinez’s body the next day. Id. at 703. 

In the instant motions, Berkley does not argue against the admission or

content of his confessions or the ATM video. Instead, he argues that the State

used a now-discredited theory to connect three bullets recovered from Martinez’s

body and one found in the desert nearby, to a bullet recovered during a search

of Berkley’s residence. At trial, an FBI forensic examiner used the theory of

Comparative Bullet Lead Analysis (“CBLA”) when she testified that all five

bullets were manufactured from the same “pot” of lead. The FBI has since

acknowledged that this sort of testimony is problematic because it might lead a

jury to believe that a “pot” is very small—perhaps as small as a box of

ammunition—when in reality a pot might be much larger, thus diluting or

negating its probative value. Berkley argues that the admission of this CBLA

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testimony amounted to a violation of his constitutional rights under Brady v.

Maryland, 373 U.S. 83 (1963) and Giglio v. United States, 405 U.S. 150 (1972),

and that he is actually innocent of capital murder. At the very least, Berkley

argues that he has made a prima facie showing sufficient for this Court to

authorize the filing of a second habeas application in the district court. 

Under § 2244(b)(3)(C), “[t]he court of appeals may authorize the filing of

a second or successive application only if it determines that the application

makes a prima facie showing that the application satisfies the requirements of

this subsection.” Here, Berkley must make a prima facie showing that “the

factual predicate for the claim could not have been discovered previously through

the exercise of due diligence,” and that “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 [Berkley] guilty of the underlying offense.” 28

U.S.C. § 2244(b)(2)(B). 

Assuming that Berkley can make a prima facie showing that the flaws in

the prosecution’s bullet analysis could not have been discovered previously

through the exercise of due diligence, his claim still fails because he does not

make a prima facie showing that but for the flawed bullet analysis, no

reasonable factfinder would have found him guilty of capital murder. In fact, the

CBLA testimony went to the gun’s presence at and use in the crime, and was not

used to prove that Berkley actually fired the gun. Given the strength of the

State’s case, we cannot say that without the CBLA testimony no reasonable

factfinder would have found him guilty of capital murder. Berkley’s own

confessions, combined with the video from the ATM, establish that he

approached Martinez at the ATM; that he shot into her car, apparently

wounding her in the head; that they drove to a deserted area; that they had

sexual relations; and that his gun discharged at least one more time. 

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Accordingly, we DENY Berkley’s motions for a stay of execution and an

order authorizing the filing and consideration of a second petition for writ of

habeas corpus.

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 I note that in originally appointing counsel, the district court purported to do so 1

pursuant to 21 U.S.C. § 848(q). Order of Mar. 31, 2006. However, this statute no longer existed

at the time. It had been replaced by 18 U.S.C. § 3599, which has not since been substantively

amended. USA Patriot Improvement and Reauthorization Act of 2005, Pub. L. No. 109-177,

tit. II, §§ 221-222, 120 Stat. 231 (Mar. 9, 2006); Judicial Administration and Technical

Amendments Act of 2008, Pub. L. No. 110-406, § 12(c), 122 Stat. 4294 (Oct. 13, 2008)

(amending 18 U.S.C. § 3599(g) to allow the chief judge of any circuit to delegate his or her

authority to approve expenses associated with representation under the statute to a “senior”

judge, in addition to an active judge, who was already allowed to be a designee of the chief

judge under the statute). See also Harbison, 129 S. Ct. at 1487 n.3 (noting this legislative

history). Therefore, the district court must have intended to appoint counsel pursuant to 18

U.S.C. § 3599 and Harbison’s analysis of the statute is directly on point.

5

DENNIS, Circuit Judge, specially concurring: 

I concur in the denial of Berkley’s motions for authorization to file a

successive habeas petition and for a stay of execution. The only issue presented

to this panel is whether Berkley satisfies the exacting standard for authorization

of a successive habeas petition under 28 U.S.C. § 2244 and thus is entitled to a

stay to pursue this claim. The order accurately captures why, in light of

Berkley’s arguments, he has not met this standard. 

Nonetheless, I write separately to call attention to an issue of grave

concern raised by the proceedings in Berkley’s case. In the weeks prior to the

instant filing, this court was informed by Berkley’s counsel that they would not

be pursuing clemency or other non-habeas remedies or stays of execution that

might be available to Berkley, as they were “appointed solely for the purpose of

the federal habeas case.” This statement appears to rely upon the wording of the

district court’s order appointing counsel. That order assigned counsel to

represent Berkley in his “federal habeas corpus proceeding.” Order of Mar. 31,

2006.

However, the statute under which Berkley’s counsel were appointed, 18

U.S.C. § 3599, has recently been construed by the Supreme Court in Harbison

v. Bell, 129 S. Ct. 1481 (2009), to contain a broader obligation of representation.1

The Court indicated that the plain language of 18 U.S.C. § 3599(e)—requiring

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that each attorney appointed under the statute “shall represent the defendant

throughout every subsequent stage of available judicial proceedings, including

. . . all available post-conviction process, together with applications for stays of

execution and other appropriate motions and procedures, and shall also

represent the defendant in such competency proceedings and proceedings for

executive or other clemency as may be available to the defendant”—controls any

interpretation of counsels’ duties under the statute. See Harbison, 129 S. Ct. at

1486. Thus, the Court held that federally appointed counsel are “authorize[d] 

. . . to represent their clients in [available] state clemency proceedings” and are

“entitle[d] . . . to compensation for that representation.” Id. at 1491.

Yet, following Harbison, we have not had occasion to make clear whether

counsel can be provided a narrower appointment, as may have been done in the

instant case, than the broader representation described in Harbison. This leaves

an untenable gap in our jurisprudence and in the high level of procedural

protections we should afford death penalty–eligible defendants. Without

knowing our understanding of Harbison, counsel like those in this case could

reasonably interpret their mandate as ending once their client’s federal habeas

proceedings have concluded, even though this appears to be contrary to the

Supreme Court’s articulation of 18 U.S.C. § 3599’s demands. At the same time,

defendants are left without a clear conception of their rights or remedies in light

of Harbison.

Therefore, I write separately to call attention to the evident duty of

federally appointed counsel to represent death row inmates in state clemency

proceedings in order to ensure “that no prisoner [will] be put to death without

meaningful access to the ‘fail-safe’ of our justice system.” Harbison, 129 S. Ct. at

1491 (quoting Herrera v. Collins, 506 U.S. 390, 415 (1993)). If my reading of

Harbison is correct, federally appointed counsel must timely seek clemency for

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a death row inmate who requests such a petition. See 37 Tex. Admin. Code §

143.43 (stating clemency petitions must be filed 21 days prior to an execution).

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