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United States Court of Appeals,

Fifth Circuit.

No. 97-00341.

In re Robert Wallace WEST, Jr., Applicant.

July 25, 1997.

Appeal from the Unite d States District Court for the Southern

District of Texas.

On Application for Order Authorizing District Court to Consider

Second Federal Habeas Corpus Petition

Before POLITZ, Chief Judge, and JOLLY and JONES, Circuit Judges.

POLITZ, Chief Judge:

Robert Wallace West, Jr. has filed a motion for stay of

execution and an application for an order authorizing the district

court to consider a second petition for writ of habeas corpus under

28 U.S.C. § 2244(b)(3)(A). Concluding that West has failed to meet

the requirements set forth in the successive writ provision of the

Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. §

2244(b), we deny both of West's requests.

Section 2244(b)(1) states that, "[a] claim pres ented in a

second or successive habeas corpus application under section 2254

that was presented in a prior application shall be dismissed." If

the claim is presented for the first time in a second or successive

applic ation, section 2244(b)(2) provides that the claim will be

dismissed unless it "relies on a new rule of constitutional law,

made retroactive to cases on collateral review by th e Supreme

Court, that was previously unavailable," or it relies on previously1 28 U.S.C. § 2244(b)(3)(C).

2 Jurek v. Texas

, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929

(1976).

3 West maintains that section 2244(b)(1) is uncon stitutional

because it prescribes rules of decision, violates due process and

equal protection, and suspends the writ of habeas corpus as applied

to him. In Felker v. Turpin

, --- U.S. ----, ----, 116 S.Ct. 2333,

2340, 135 L.Ed.2d 827 (1996), the Supreme Court found that the new

restrictions on successive petitions did not su spend the writ of

2 undiscoverabl e facts that "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." Before we may authorize West to file a

second pe tition in the district court he must make a prima facie

showing that the application satisfies the requirements of section

2244(b). 1

West c ontends that his death sentence violates his

substantive due process and equal protection rights guaranteed by

the fourteenth amendment. The Supreme Court has upheld both the

constitutionality of the death penalty and Texas's capital

sentencing procedures, 2 and ther e has been no change in the law

that favors West.

West next contends that the prosecution withheld evidence

that would have enabled him to prove his innocence of capital

murder. Alternatively he claims that his trial counsel was

ineffective for failing to uncover the exculpatory evidence. Those

same contentions were made in West's prior section 2254 application

to this court. That claim is therefore dismissed under section

2244(b)(1). 3habeas corpus and merely constituted "a modified res judicata

rule." Although the Supreme Court did not address all of the

constitutional challenges raised by West, we need not resolve those

issues today. As stated in the text, even if we applied section

2244(b)(2) rather than 2244(b)( 1), our result would remain the

same.

4 West v. Johnson , 92 F.3d 1385 (5th Cir.1996), cert. denied,

--- U.S. ----, 117 S.Ct. 1847, --- L.Ed.2d ---- (1997).

5 Jurek

.

3 We note, however, that even if we were to view this claim

under section 2244(b)(2) as resting upon previously undiscoverable

evidence, it would not have changed the outcome of the verdict, a

necessary requirement for the relief he seeks. West claims that he

could not have been convi cted of capital murder absent evidence

that he stole a necklace in the course of the murder. In his first

section 2254 application to this cou rt we held that even if the

theft of the necklace had not b een presented to the jury, West

still would have been fou nd guilty of capital murder. 4 West has

failed to make a prima facie showing which meets the requirements

of section 2244(b)(2).

Finally, West contends that he was sentenced to death based

upon materially inaccurate information. In the sentencing phase of

a capital case in T e xas the jury is presented with two, or

sometimes three, questions. 5 The second question asked is whether

the defendant is likely to commit future acts of violence that

would constitute a threat to society. West insists that the jury

made a factually incorrect prediction of his future dangerousness

because his institutional record reflects that he has committed no

criminal acts of violence that pose a threat to society.4

West contends that the facts upon which this claim is based

have not been available until now—when his execution is imminent

and the record complete. Even if we view West's claim as relying

upon a previously undiscoverable factual predicate, he fails to

demonstrate that he would be able to prove by clear and convincing

evidence that no reasonable factfinder would have found West guilty

had they known that while he was on death row, he would not commit

any further acts of violence. Additionally, West's claim is not

based upon a new rule of constitutional law made retroactive on

collateral review by the Supreme Court.

For the foregoing reasons West's appl ication for an order

authorizing the filing of a second habeas petition is DENIED.

Accordingly there are no grounds for staying the execution and the

motion for stay of execution necessarily is DENIED.