IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-40554

In re: ROBERT LYNN PRUETT, 

 Movant

On Motion for Authorization to File

Successive Petition for Writ of Habeas

Corpus in the United States District Court

For the Southern District of Texas, Corpus Christi

Before STEWART, Chief Judge, and JOLLY and SMITH, Circuit Judges.

PER CURIAM:*

Robert Lynn Pruett was sentenced to death for capital murder in Texas 

in 2002 and is scheduled to be executed on April 28, 2015. On April 23, he 

moved for this authorization to file a successive federal habeas petition to raise 

two claims:

(1) In view of recently discovered evidence, as well as the discovery of 

evidence that should have been revealed to his trial counsel under Brady v. 

Maryland, 373 U.S. 83 (1963), no reasonable juror would have voted to convict 

Pruett of capital murder.

* 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

April 24, 2015

Lyle W. Cayce

Clerk

 

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(2) Recently discovered evidence, which was wrongfully withheld from 

his trial counsel in violation of Brady v. Maryland, further buttresses the 

proposition that, in view of the totality of the evidence, no reasonable juror 

would have voted to convict him of capital murder. 

He further asserts that his application is based on the Eighth 

Amendment, which bars his execution because he is actually innocent of 

capital murder, and a violation of his Fourteenth Amendment right to due 

process, because the State (1) failed to disclose deals made with inmates who 

testified against him, (2) failed to correct false testimony given by one of those 

inmates, (3) failed to disclose it had threatened with retaliation inmates who 

wished to testify for him, and (4) failed to preserve physical evidence which 

could demonstrate his innocence.

A brief description of the evidence and procedural history, for context, 

follows.

Pruett was convicted and sentenced to death for the murder of Texas 

Department of Criminal Justice Correctional Officer Daniel Nagle, which he 

committed while serving a life sentence for a prior murder. Nagle was stabbed 

with a shank made of a metal rod sharpened to a point at one end, and wrapped 

in tape at the other end. The State argued that Pruett’s motive for the murder 

was that he was upset because Officer Nagle had written a disciplinary report 

for Pruett’s having food in an area of the prison where food was not permitted. 

The shank and torn pieces of the disciplinary report were found near Officer 

Nagle’s body after the murder. Blood found on the torn disciplinary report was 

tested for DNA and found to have come from Officer Nagle. There was no 

physical evidence connecting Pruett to the murder. The evidence against him 

consisted largely of testimony from inmates. We described that evidence in 

our opinion affirming the denial of Pruett’s first federal habeas petition as 

follows:

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Inmates Allen Thompson and Johnny Barnett testified that they 

were in the multi-purpose room and saw and heard Pruett 

attacking Nagle. Inmate Anthony Casey testified that he heard 

Pruett talking about a weapon with another inmate before the 

attack. Casey, through a recreation yard window, later saw Pruett 

near Nagle’s desk, and then saw Pruett remove his clothing in a 

hallway and push it through a gas port into the recreation yard. 

Inmates James Dale Keller, Robert Michael Lewis, and Jimmy 

Mullican testified that they witnessed Pruett’s attack on Nagle 

from the craft shop across from the multi-purpose room. Inmate 

Harold Mitchell testified that he was in the multi-purpose room 

before the attack. He said that Pruett came into the room and 

suggested that he leave because Pruett was going to “do 

something.” When Mitchell questioned Pruett, Pruett said that he 

was going to kill Nagle. According to Mitchell, Pruett said that he 

was tired of life in prison and wasn’t going to kill himself, but didn’t 

have a problem making the State do it for him.

Pruett v. Thaler, 455 F. App’x 478, 480 (5th Cir. 2011).

Inmate Mullican also testified that, at the request of Pruett’s cellmate, 

Shelton Phillips, Mullican gave some tape to Pruett. The day after the murder, 

two rolls of tape were collected from Phillips’s workstation in the craft shop. 

An expert witness for the State, Lisa Harmon Baylor, testified that based on 

her analysis, one of the rolls of tape removed from Phillips’s workstation was 

the source of the tape that was wrapped around the shank.

Pruett maintains that others at the prison might have had a motive for 

wanting Nagle dead because there was a drug smuggling and money 

laundering operation at the prison, Nagle was aware of it, and was in the 

process of writing a grievance about it when he was murdered. He asserts that 

the indictment of three correctional officers for laundering drug money for 

inmates increased the plausibility that he had been framed for the murder. 

Pruett testified at trial that he watched Officer Nagle tear up the report. 

However, his proposed successive petition alleges that he believed “that 

someone else tore up the pieces of the disciplinary report in an attempt to 

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frame him for the murder of Officer Daniel Nagle and that the person who tore 

up the disciplinary report and killed Officer Nagle might have left a sufficient 

amount of epithelial cells on the report to allow for the creation of a DNA profile 

that would aid in identifying the actual murderer.” Therefore, on May 17, 

2013, he filed in state court a motion for DNA testing using techniques that 

were not available at the time of trial.

The State sent the torn disciplinary report to the University of North 

Texas Center for Human Identification (UNTCHI) for collection and analysis 

of DNA. On July 9, 2013, UNTCHI reported that its testing had been 

inconclusive. At Pruett’s request, the trial court appointed an expert, whose 

review revealed that the 12 allele was present in an amount above the 

analytical threshold at the D13 locus. Because the DNA profiles of both Nagle 

and Pruett contain the 12 allele at the D13 locus, neither of them could be 

eliminated as being a possible source of the DNA on the disciplinary report. 

Because the 12 allele is present at the D13 locus in the DNA profiles of 

approximately 20% of the Asian and Hispanic populations, 30% of the 

Caucasian population, and 40% of the African American population, 

approximately one-third of the inmates and guards at the prison where Nagle 

was murdered could not be excluded as contributing the DNA present on the 

torn disciplinary report. The state trial court concluded that the DNA evidence 

was not exculpatory and the TCCA affirmed. Pruett v. State, No. AP-77,037, 

2014 WL 5422573 (Tex. Crim. App. Oct. 22, 2014). The Supreme Court denied 

Pruett’s petition for a writ of certiorari. Pruett v. Texas, No. 14-8097, 2015 WL 

302598 (U.S. Mar. 30, 2015).

Having described the relevant facts and procedural history, we now turn 

to consider whether Pruett has satisfied the statutory requirements for filing 

a successive habeas petition.

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Pursuant to 28 U.S.C. § 2244(b)(3), we may authorize the filing of a 

successive habeas application only if we determine that the application makes 

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

2244(b). The claims Pruett seeks to raise in a successive petition were not 

presented in his initial federal habeas petition. Therefore, he has to make a 

prima facie showing that his application satisfies the requirements of 28 U.S.C. 

§ 2244(b)(2), which provides in relevant part that:

(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.

28 U.S.C. § 2244(b)(2).

Pruett argues that he has made a prima facie showing that his 

application satisfies the requirements of § 2244(b)(2)(B). He contends that the 

factual predicate for his claims could not have been discovered previously 

through the exercise of due diligence; furthermore, the facts underlying his 

claims would be sufficient to establish by clear and convincing evidence that 

no reasonable juror would have found him guilty of capital murder.

Specifically, Pruett contends that the factual bases for his claims did not 

exist until after he filed his first federal habeas petition in 2006: (1) the 

technique used for the 2013 DNA analysis was not widely available until 2007 

or 2008; (2) the National Academies of Science report, which discredits physical 

matching comparisons, and therefore discredits the State’s expert’s testimony 

about the tape wrapped around the handle of the murder weapon, was not 

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available until 2009; and (3) the undisclosed evidence that Harold Mitchell, an 

inmate witness, did not acknowledge that he wanted the authorities to transfer 

him out of state, could not have been discovered until the Special Prosecution 

Unit released its records in 2013.

Pruett argues that, in the light of the fact that there is no physical 

evidence connecting him to the murder, no reasonable juror would have 

convicted him if the jury had known (1) the results of the DNA analysis 

conducted in 2013, (2) that the State’s expert’s testimony about the tape was 

based on discredited “junk” science, (3) that numerous other people in the 

prison had a motive to see Officer Nagle dead and that the DNA evidence does 

not exclude those others, (4) that Harold Mitchell falsely testified that he had 

not been promised anything other than that the prosecutors would do their 

best to ensure his safety and might write a favorable letter to the parole board, 

and (5) the full extent of the negative treatment received by inmates who 

refused to testify for the State or who desired to testify for Pruett.

Even if we assume that Pruett has made a prima facie showing that the 

factual predicates for his claims could not have been discovered previously 

through the exercise of due diligence, he has not made a prima facie showing 

that the facts underlying his claims, “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 [him] guilty of the underlying offense.” 28 U.S.C. § 2244(b)(2)(B)(ii). For 

example, Pruett’s theory that the murderer tore up the disciplinary report is 

inconsistent with his trial testimony that Officer Nagle tore up the report; 

Pruett’s preparation for, and carrying out of, the murder of Officer Nagle was 

witnessed by several inmates (whose deals with the State were disclosed at 

trial); and he admitted to other inmates that he had killed Officer Nagle. See 

Pruett, 455 F. App’x at 480-81. Still further, the May 2013 DNA analysis, 

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which shows that Pruett and one-third of the others at the prison could have 

been the source for DNA found on the torn disciplinary report, does not 

exonerate Pruett. Pruett has not demonstrated by clear and convincing 

evidence that the State’s expert’s testimony concerning the tape has been 

discredited by the 2009 report, which criticized bite-mark evidence, but did not 

address analysis of fiber evidence such as the tape. In the light of the trial 

testimony which disclosed many of the problems with the inmates’ credibility,

Pruett has not shown by clear and convincing evidence that he would not have 

been convicted if the jury had known about Harold Mitchell’s desire to be 

transferred out of state and had known further details about negative 

treatment of inmates who wanted to testify for Pruett or refused to testify for 

the State. In sum, Pruett has not made a prima facie showing that his 

proposed successive application satisfies the requirements of § 2244(b)(2). 

IT IS ORDERED that Pruett’s motion for authorization to file a 

successive habeas corpus petition is DENIED.

IT IS FURTHER ORDERED that Pruett’s motion for a stay of execution 

is DENIED.

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