REVISED DECEMBER 26, 2018

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-11820

TELISA DE'ANN BLACKMAN, 

Petitioner - Appellant

v.

LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL 

JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION, 

Respondent - Appellee

Appeal from the United States District Court

for the Northern District of Texas

Before DAVIS, JONES, and ENGELHARDT, Circuit Judges.

EDITH H. JONES, Circuit Judge:

Telisa Blackman, Texas prisoner # 848568, was convicted of murder in 

1998 and sentenced to life imprisonment. In this successive Section 2254

application, she challenges her conviction under Brady v. Maryland, 

373 U.S. 83, 83 S. Ct. 1194 (1963); Napue v. Illinois, 360 U.S. 264, 

79 S. Ct. 1173 (1959); and Giglio v. United States, 405 U.S. 150, 92 S. Ct. 763 

(1972). We do not reach the merits of these claims, however, because her 

petition does not fulfill the stringent requirements of 28 U.S.C. 

Section 2254(b)(2)(B) and the district court consequently erred in purporting 

to grant a COA on her merits claims after it had rejected the successive 

United States Court of Appeals

Fifth Circuit

FILED

November 28, 2018

Lyle W. Cayce

Clerk

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petition’s compliance with the statutory prerequisites. We AFFIRM the

dismissal of the successive petition.

BACKGROUND

The evidence produced at trial was summarized by a Texas Court of 

Appeals on direct appeal:

[Blackman] and the decedent, Lisa Davis, lived together in a 

lesbian relationship. One of the decedent's friends testified that 

the relationship was somewhat stormy and that, shortly before her 

death, the decedent wanted to end the relationship with appellant, 

although she was apprehensive about doing so.

The couple lived in a second-floor apartment, accessible by 

an outdoor stairway to a balcony in front of the apartment. 

Appellant testified that, on Sunday evening, June 22, 1997, she 

left the apartment complex to go to a nearby convenience store, 

Quick Way. Upon returning, she realized she did not have her 

apartment key or her pass card to the apartment complex; she 

would have to ring the buzzer to be let into the complex. She went 

to the entryway of the apartment complex and, while she was 

standing on the sidewalk before going upstairs, she saw the 

decedent's feet lying on the balcony in front of their apartment. 

The apartment door was open, and the body was lying partially 

inside the apartment and partially outside. Decedent had been 

shot. Appellant called the decedent's name, and eventually 

touched the decedent, but the decedent did not respond. Appellant 

pulled the decedent's body inside their apartment. In doing so, she 

moved the decedent's feet to the side, to get them inside the 

apartment. She then shut the door and dialed 911. As a result of 

dragging the decedent's body inside the apartment complex, she 

got blood on her socks and shoes.

Cathy Harding, a Dallas police detective, searched appellant 

in the homicide office at police headquarters because the only 

officers called to the crime scene were male; it was against 

department policy to have a male officer search a female suspect. 

Harding found blood on the soles of appellant's socks. Appellant 

told Harding that she had not taken her shoes off that evening.

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When Daniel Krieter, a Dallas police investigator, arrived at 

the murder scene, appellant asked him if he remembered her from 

an incident that had occurred about a year earlier. Appellant had 

been shot by a gun, a .25 caliber Lorcin, that she owned. When the 

police closed their investigation into that incident, appellant 

reclaimed the gun from the department's property room. 

Appellant testified at trial that the gun was stolen some two 

months after she had reclaimed it in August 1995. She did not 

report it as stolen, however, because it was not registered. 

Appellant consistently denied that she had a gun on the night of 

the murder.

No gun was found; however, Krieter's search of the 

apartment revealed some spent shell casings on the floor and some 

live shell casings in a bureau drawer. The casings were .25 caliber 

and would fit a Lorcin. Appellant and the decedent had moved into 

the apartment only some thirty days before the decedent's death. 

Appellant explained that she moved in such haste she did not have 

time to throw out the live shell casings so she simply moved them.

Robert L. Ermatinger, a Dallas police homicide investigator, 

questioned appellant at the scene. Appellant told him she had 

gone to “the store” when the shooting occurred, although she could 

not say which store. When pressed, appellant said she realized 

while en route to the store she had forgotten her gate key and 

returned to the complex rather than going on to the store. When 

Ermatinger asked appellant at the scene if “they were a couple,” 

that is, whether appellant and the decedent had a lesbian 

relationship, appellant said “they were not.”

Finally, Cherissa Adams, a neighbor who lived on the first 

floor, testified that, on the evening of June 22, 1997, she heard a 

loud noise that sounded like gunfire. She looked out her window 

and saw a lifeless body. A young, thin girl was trying to move the 

body. The body's upper portion was inside an apartment. After 

Adams called 911, she returned to the window and continued to 

look out. The person who had moved the body locked the door and 

went downstairs. When the person looked in Adams's direction, 

Adams closed the blinds and moved away from the window. 

Adams had never seen the person before that evening and never 

saw her again. Adams was not able to identify appellant in court; 

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at 11:35 p.m. on the night of the shooting, however, Adams did 

identify appellant in a photographic lineup.

Blackman v. State, No. 05-98-01750-CR, 2000 WL 5677985 (Tex. App.—Dallas 

May 8, 2000). Detective Lynette Harrison also testified at the trial. Harrison 

testified that Adams first chose Blackman’s photograph from the photographic 

line up, and she affirmed that Adams did not “change her mind in any way” 

once she had identified Blackman.

Blackman was tried and convicted of murder. She was sentenced to life 

imprisonment. Her conviction was affirmed on appeal. The Texas Court of 

Criminal Appeals (“TCCA”) also denied her petition for discretionary review. 

In 2002, Blackman filed her first state habeas petition, which was denied. She 

filed two federal habeas applications in 2003 and 2004, which were denied as 

untimely. She filed another state habeas application in 2006, which was 

dismissed as successive.

Blackman’s mother hired new counsel, Craig Jett, in 2008. On August 

27, 2009, Jett reviewed the Dallas District Attorney’s Office’s file on 

Blackman.1 Jett found a prosecutor’s note indicating that Adams had initially 

picked somebody else in the photographic lineup before changing her mind and 

identifying Blackman. Months later, in mid-2010, Jett sought out Blackman’s 

previous counsel and determined that trial counsel, appellate counsel and writ 

counsel had been unaware of this evidence. Over a year later, in 2011, the 

District Attorney provided Jett with a recording of Adams’s call to 911 the day 

of the murder. Adams stated in the 911 call that she saw a man lying in the 

doorway and a black man push him inside the apartment and close the door.

On December 17, 2010, Blackman filed another state habeas corpus 

petition alleging that the State failed to disclose the allegedly material 

 

1 The District Attorney’s Office instituted a formal open file policy for writs in 2008.

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exculpatory evidence in violation of Brady and presented false or misleading 

testimony in violation of Giglio and Napue. The Giglio/Napue claim was based 

on the inconsistency between Detective Harrison’s trial testimony that Adams 

had positively identified Blackman in the lineup and the prosecutor’s note 

indicating hesitation. The state trial court held, after a hearing, that because 

of the discovery of this additional evidence, Petitioner was entitled to a new 

trial. The TCCA disagreed, concluded that the evidence was not material, and 

denied relief. Ex parte Blackman, No. WR-52,123-03, 2012 WL 4834113 (Tex. 

Crim. App. Oct. 10, 2012).

Blackman, acting pro se, then filed her third federal habeas petition on 

May 4, 2013. The district court transferred the case to this court to determine 

whether Blackman could file this successive habeas application. This court 

granted permission to file the successive application because Blackman had 

made a prima facie showing that she could satisfy the requirements of 28 

U.S.C. § 2244(b)(2)(B)(i) and (ii).

Back in the district court, the state moved to dismiss Blackman’s petition

as time-barred pursuant to Section 2244(d)(1)(D). The district court accepted 

the magistrate judge’s recommendation to deny this motion. Subsequently, 

the magistrate judge considered whether the petition met the requirements of

Section 2244(b)(2)(B) for a successive petition. His recommendation concluded, 

under Section 2244(b)(2)(B)(i), that the factual predicate for her claims could 

not have been discovered earlier by exercising due diligence, but that the 

application must be dismissed for failing to satisfy Section 2244(b)(2)(B)(ii). 

The judge considered Blackman’s argument that if the two critical pieces of 

impeachment information about Adams been timely disclosed, Blackman

would not have testified at trial. The magistrate judge’s opinion responded as 

follows:

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Even had Blackman not testified and her counsel impeached 

Ms. Adams’s identification testimony, and even if the jury had 

heard that Ms. Adams first believed that she saw a black male 

move the decedent into the apartment and that Ms. Adams did not 

identify Blackman initially from the photographic array, two police 

officers testified that Blackman told them that she had moved 

decedent into the apartment upon discovering her. Blackman does 

not advance (and there is no evidence to support) a theory that an 

unidentified black male moved the body into – and then out of –

the apartment prior to Blackman’s coming home to discover the 

decedent lying outside the apartment.

The judge also rejected the contentions that one of those officers, Detective 

Ermatinger, who testified on rebuttal, would not have testified if Blackman 

herself had not taken the stand, and that Blackman’s trial counsel, given 

access to the withheld evidence, would have successfully moved to suppress

Blackman’s statements. Blackman, in sum, had failed to establish by clear 

and convincing evidence that but for the prosecution’s withholding evidence 

and procuring false testimony, no reasonable factfinder would have returned a 

guilty verdict. Notwithstanding these conclusions, the magistrate judge 

recommended granting a certificate of appealability (“COA”) on Blackman’s 

Brady and Giglio/Napue claims.

The district court affirmed the magistrate judge’s findings in all but one 

particular. The court did not accept the magistrate judge’s assumption that 

Detective Ermatinger’s rebuttal testimony would have been offered even if 

Blackman had not testified. But the district court accepted the other findings 

and the ultimate conclusion that Blackman failed to meet the requirements of 

Section 2244(b)(2)(B)(ii). Like the magistrate judge, the district court 

dismissed Blackman’s application for lack of jurisdiction but also granted a 

COA on the merits of her Brady and Giglio/Napue claims.

Blackman has appealed.

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STANDARD OF REVIEW AND APPLICABLE LAW

“In a habeas corpus appeal, we review the district court’s findings of fact 

for clear error and review its conclusions of law de novo, applying the same 

standard of review to the state court’s decision as the district court.” 

Martinez v. Johnson, 255 F.3d 229, 237 (5th Cir. 2001) (citation omitted). We 

review a district court’s determination that it does not have jurisdiction de 

novo. Leal Garcia v. Quarterman, 573 F.3d 214, 217 (5th Cir. 2009).

This court has jurisdiction to rule on the judgment of the district court 

based on the issuance, by the district court or this court, of a Certificate of 

Appealability (COA). 28 U.S.C. § 2253(c)(1). A COA is required to specify the 

issue or issues on which “there is a substantial showing of the denial of a 

constitutional right.” 28 U.S.C. § 2253(c)(2) and (3); Slack v. McDaniel, 

529 U.S. 473, 120 S. Ct. 1595 (2000).

The Antiterrorism and Effective Death Penalty Act (“AEDPA”) states 

that second or successive habeas applications must be dismissed unless they 

fall into one of two exceptions. 28 U.S.C. § 2244(b)(2)(B). The exception at 

issue in this case requires the applicant to show:

(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.

This section is jurisdictional in nature. Panetti v. Quarterman, 551 U.S. 930, 

942, 127 S. Ct. 2842, 2852 (2007). 

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APPELLATE JURISDICTION

What might have been a relatively straightforward appeal concerning 

the difficult requirements for filing a successive federal habeas petition has 

been confused by the district court’s erroneous partial grant of COA and some 

convoluted arguments of the state. Rather than parse the complex procedural 

history at play, we will cut to the chase. The district court was not authorized

to grant COA on the merits of Blackman’s claims while also determining that 

her petition ultimately failed to meet the statutory prerequisites for a 

successive try at federal habeas relief. The Supreme Court has plainly stated 

that “[w]hen the district court denies a habeas petition on procedural grounds 

without reaching the prisoner’s underlying constitutional claim,” a COA 

requires a showing “at least,” that reasonable jurists could debate both the 

procedural ruling and whether the petition states a valid constitutional claim. 

Slack, 529 U.S. at 484, 120 S. Ct. at 1604. If the petition is procedurally 

barred, no further inquiry should be made and no appeal is warranted. Id. Put 

otherwise, Blackman would have been able to secure a COA on the merits of 

her claims only if the district court had also determined that reasonable jurists 

could debate the court’s procedural ruling. Id. The district court got the order 

of procedure exactly backward.2 Blackman’s counsel recognized the error and 

persuaded this court to expand the COA in an order dated May 22, 2018, 

pursuant to which we have jurisdiction to rule on whether the district court’s 

 

2 The district court clearly erred to the extent that it apparently accepted the 

magistrate judge’s reasoning that in some circuits, Brady and related claims may not be 

subject to the strictures of Section 2244(b)(2), and hence the Brady claims may be 

independently appealed. As is explained more fully in the next section, this court holds to 

the contrary. Leal Garcia v. Quarterman, 573 F.3d 214, 220-22 (5th Cir. 2009); Johnson v. 

Dretke, 442 F.3d 901, 906-12 (5th Cir. 2006). Thus, a petitioner asserting a newly discovered 

Brady claim in a successive habeas case must pass the tests of Section 2244(b)(2) before a 

federal court may reach the merits.

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procedural decision comported with the threshold requirements of 

Section 2244 (b)(2)(B).

DISCUSSION

Blackman’s brief first assumes that Section 2244(b)(2)(B) controls and 

contends that the district court erred in dismissing her petition for failure to 

demonstrate that, but for the state’s withheld or perjured evidence, no 

reasonable factfinder would have found her guilty of murder. 

28 U.S.C. Section 2244(b)(2)(B)(ii). More broadly, she argues that her Brady 

and Giglio/Napue claims are not second or successive and that this court has 

not yet resolved whether Brady claims are subject to the requirements of 

Section 2244(b)(2)(B).3

To begin, Blackman’s argument that these claims do not fit or are in 

tension with AEDPA’s requirements for successive petitions under 

Section 2244(b)(2)(B) has been rejected conclusively by this court. 

In re Davila, 888 F.3d 179, 184-87 (5th Cir. 2018), applied this statutory

provision to a petitioner’s Brady claims and held that the requirements for 

pursuing a successive petition were not fulfilled. In Leal Garcia, this court 

emphasized that “[s]ection 2244(b)(2)(B)(i) states that claims based on a 

factual predicate not previously discoverable are successive.” 573 F.3d at 221

(emphasis in original). Blackman’s Brady and Giglio/Napue claims rely on 

precisely such previously undiscovered facts and are therefore within the 

purview of the statutory language. Even more pointedly, this court refused to 

“collapse AEDPA’s due diligence requirement [section 2244(b)(2)(B)(i)] into the 

 

3 Responding to Blackman’s brief, the state rejects her successive petition arguments 

and urges in addition that at least one of her claims was not pursued within the one-year

AEDPA statute of limitations. 28 U.S.C. Section 2244(d)(1)(D). Because Blackman’s petition 

must be dismissed pursuant to Section 2244(b)(2)(B), we need not discuss the district court’s 

conclusion that Blackman’s successive claim was timely under the statute of limitations.

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Brady duty...” and concluded that the statutory requirements for a successive 

petition must be considered prior to evaluation of the merits of the petitioner’s 

Brady claim. Johnson v. Dretke, 442 F.3d 901, 906-911 (5th Cir. 2006). We are 

bound by these clear precedents and proceed to examine whether Blackman’s 

claims satisfy the statutory requirements.

1. Section 2244(b)(2)(B)(i) Due Diligence

The district court determined that Blackman met the due diligence 

requirement of Section 2244(b)(2)(B)(i). We disagree, at least in part, based on

Johnson v. Dretke, supra. In that case, the petitioner, Johnson, alleged in a 

successive petition that his accomplice signed a stipulation confessing to the 

murder Johnson was accused of committing. Johnson further alleged that, in 

violation of Brady, his accomplice testified at trial that Johnson committed the 

murder. Months before his conviction, however, Johnson was aware of the 

accomplice’s indictment, guilty plea, and the submission of a stipulation and 

plea agreement. Id. at 904, 906, 908-09. This court held that Johnson could 

not meet the due diligence requirement of Section 2244(b)(2)(B)(i) because a 

reasonable attorney would have been put on notice of the existence of the 

accomplice’s stipulation. Id. at 908-09. Together with the reasonable attorney 

standard, Johnson holds that under this provision, due diligence is measured 

objectively, not by the subjective diligence of the petitioner. Id. at 909-10

In this case, Adams’s call to 911 was discussed at the trial by Adams and

the firefighter/paramedic who responded to the scene. A reasonable attorney 

would have been put on notice at that time that a recording or transcript of the 

call may exist. Not one of Blackman’s attorneys inquired as to the existence of 

a transcript until years after the trial. As in the Johnson case, they plainly 

failed to meet the due diligence requirement for at least this aspect of her 

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claims. Even assuming however, that Blackman satisfied the diligence

requirement, her claims fail under Section 2244(b)(2)(B)(ii). 

2. Section 2244(b)(2)(B)(ii) Innocence Requirement

The district court held that Blackman’s claims did not satisfy the 

requirement of Section 2244(b)(2)(B)(ii) because, taken together with the proof 

adduced at trial, the newly discovered evidence does not show “by clear and 

convincing evidence” that, but for the prosecution’s misconduct, “no reasonable 

factfinder would have found her guilty” of murder. We agree. To reiterate, all 

of Blackman’s claims rely on (1) the 911 call in which Adams stated that she 

saw a man lying on the ground and a man drag the body inside the apartment, 

(2) the prosecutor’s note stating that Adams initially picked out another person 

from the photographic lineup before picking Blackman, and (3) Detective 

Harrison’s testimony that Adams did not change her mind during the 

photographic lineup.

But the fact that Adams was unable to identify Blackman at the defense 

table in court seriously undermines her theory. She was thus a dubious

eyewitness even without additional impeachment evidence. Concededly, the 

new evidence casts a more negative light on Adams’s prior identification of 

Blackman in the photographic lineup, but this is no more than cumulative 

impeachment. On the other hand, the state produced significant evidence

corroborating Adams’s identification and the substance of her 911 call. 

Officer Canales testified on direct examination that Blackman acknowledged

at the scene of the crime that she had moved the body inside. Officer Harding 

also testified that Blackman said she moved the body back into their 

apartment. Blackman’s contemporaneous statements placed her at the scene 

and moving the body of the deceased.

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Significant additional evidence supports that a reasonable juror could 

find Blackman guilty beyond a reasonable doubt. Most provocatively, the soles

of her socks had blood on them even though she denied to Detective Harding 

that she had taken her shoes off that evening. Detective Krieter testified that 

the bullets and shell casings from the fatal shots found in the apartment would 

fit a .25 caliber Lorcin, a pistol that Blackman admitted having owned at one 

point. Live shell casings and a live bullet were found in two drawers in her 

bedroom, although Blackman claimed she no longer had the pistol (which was 

never found by the investigators). Additionally, Davis’s friend testified that 

Davis and Blackman had at least one violent argument, and about a week 

before her death Davis stated to her friend that she wanted out of her 

relationship with Blackman. The totality of the evidence does not prove clearly 

and convincingly, even with the additional impeachment of Adams’s 

identification, that a reasonable jury would have been swayed to acquit 

Blackman. We concur with the district court that because Blackman did not 

surmount the standard of Section 2244(b)(2)(B)(ii), the court was required to 

dismiss for lack of jurisdiction. 

Accordingly, we AFFIRM the judgment of the district court dismissing 

Blackman’s successive habeas petition.

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