## F I L E D United States Court of Appeals Tenth Circuit 

### JUN 7 2004 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ROBERT LEROY BRYAN, Movant-Appellant,

v. MIKE MULLIN, Warden, Oklahoma State Penitentiary, and RON J. WARD, Director, Oklahoma Department of Corrections, Respondents-Appellees. No. 04-6185

ORDER

Before KELLY , HENRY , and MURPHY , Circuit Judges.

Robert Leroy Bryan, a convicted murderer, is schedu led to be executed by the state of Oklahoma at 6:00 p.m. on June 8, 2004. In a series of last-minute filings, Bryan seeks, inter alia , permission to file a successive 28 U.S.C. § 2254 petition and a stay of execution pending the determ ination of his request to file a successive petition. Exercising jurisdiction pursu ant to 28 U.S.C. § 2244(b)(3)(A), this court (1) grants “Bryan’s Emergency Motion for Permission to Proceed In Forma Pauperis,” (2) strikes “Bryan’s Emergency Request for En-2-

Banc Consideration,” (3) denies “Bryan’s Motion for an Order Authorizing the District Court to Consider Second Habeas Corpus App lication,” and (4) denies “Bryan’s Emergency Request for Stay of Execution.” This court begins by noting that there is no provis ion in 28 U.S.C. § 2244(b)(3) for the filing of a request for initia l en banc consideration of a request to file a second or successive § 2254 habea s petition. Instead, § 2244(b)(3)(B) specifically provides that “[a] mot ion in the court of appeals for an order authorizing the district court to considera second or successive application shall be determined by a three-judge pa nel of the court of appeals.” Section 2244(b)(3)(E) further provides that “[t]he grant or denial of an authorization by a court of appeals to file a secon d or successive application shall not be appealable and shall not be the subject of apetition for rehearing or for a writ of certiorari.” Taken together, § 2244(b)(3)( B) and (E) appear to foreclose Bryan’s request for initial en banc consideration of his request to file a second or successive § 2254 habeas petition. Accordingly, th is court strikes Bryan’s Emergency Request for En Banc Consideration. However, we recognize this court has, sua sponte , ordered that a request for permission to file a second or successive habeas pe tition be heard initially en1 Two circuits have specifically concluded that sua sponte en banc review of

a request for permission to file a second or succes sive § 2254 habeas petition is appropriate despite § 2244(b)(3)(E). See In re Byrd, 269 F.3d 585, 585 (6th Cir. 2001) (en banc); Thompson v. Calderon , 151 F.3d 918, 922 (9th Cir. 1998) (en banc). In must be noted, however, that neither Byrd nor Thompson considered the impact of § 2244(b)(3)(B). Bryd, 269 F.3d at 585; Thompson , 151 F.3d at 922. Furthermore, one circuit has concluded that sua sponte panel rehearing is appropriate despite § 2244(b)(3)(E). Triestman v. United States , 124 F.3d 361, 367 (2d Cir. 1997). Because Triestman did not involve the question of en banc review, § 2244(b)(3)(B) was not implicated in the c ase.

2 We use the term “appears” because Bryan’s request t o file a second or successive § 2254 habeas petition is far from a mod el of clarity. Furthermore, counsel for Bryan did not attach to his request the petition that he proposes to file -3- banc

. Browning v. United States , 241 F.3d 1262, 1263 (10th Cir. 2001). 1 It must be emphasized, however, that there is no discussionin Browningof the propriety of such action in the face of the language in § 224 4(b)(3)(B) and (E). Id. Browningis not, therefore, a definitive ruling on this jur isdictional question. See United States v. L.A. Tucker Truck Lines , 344 U.S. 33, 38 (1952) (“[T]his Court is not bound by a prior exercise of jurisdiction in a case where it was not questioned and it was passed sub silentio .”). Thus, in an abundance of caution, Bryan’s various motions were circulated to all active judge s of this court. No judge requested a poll on the question whether Bryan’s re quest to file a successive § 2254 habeas petition should be heard initially by the en banc court and, thus, no en banc consideration is warranted or available. In his request for permission to file a second or s uccessive habeas petition, Bryan appears 2 to raise an omnibus assertion that newly discovere d evidencein the district court. This court notes for the be nefit of counsel that in the future

the better practice would be to attach a copy of th e proposed second or successive § 2254 petition to any § 2244(b)(3) request filed i n this court. Nevertheless, this court has done its best to parse out the legal clai ms Bryan seeks to assert in a second or successive petition and to apply the statutory framework set out in § 2244(b)(1) and (2) to those claims. -4- supports “a colorable claim of innocence that undermines the reliability of his conviction and death sentence.” Request to File Se cond § 2254 Habeas Petition at 5. Bryan supports this omnibus claim with the f ollowing five subsidiary “claims”: (1) bullet comparison evidence used at tr ial to connect a bullet fragment recovered from the victim with bullets found in Bry an’s room is now discredited; (2) hair comparison testimony used to connect the v ictim to a car rented by Bryan was wholly unreliable; (3) the newly discovered unr eliability of the bullet and hair analysis demonstrates that Bryan did not recei ve full adversarial testing of the prosecution’s case at trial; (4) the newly disc overed unreliability of the bullet and hair analysis demonstrates that Bryan did not r eceive a reliable sentencing determination; and (5) the state’s failure to discl ose these reliability problems at some point well after trial and sentencing was comp lete is a violation of Brady v. Maryland, 373 U.S. 83 (1963). The AEDPA strictly limits the filing of second or s uccessive § 2254 habeas petitions. According to § 2244(b),-5- (1) A claim presented in a second or successive hab eas corpus application under section 2254 that was presented i n a prior application shall be dismissed. (2) A claim presented in a second or successive hab eas corpus application under section 2254 that was not present ed in a prior application shall be dismissed unless—

(A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or (B)(i) the factual predicate for the claim could no t have been discovered previously through the exercis e of due diligence; and (ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would b e sufficient to establish by clear and convincing evi dence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense. 28 U.S.C. § 2244(b)(1), (2). This court may author ize the filing of a second or successive § 2254 petition “only if [we] determine[ ] that the application makes a prima facie showing that the application satisfies the requirements of” § 2244(b)(1) and (2). 28 U.S.C. § 2244(b)(3)(C). This court begins by noting several potential infirmities in Bryan’s request to file a second or successive § 2254 habeas petiti on. First, Bryan’s § 2244(b)(3) request could be read as simply stating a single cl aim of actual innocence. As this court has made clear, however, “an assertion of act ual innocence, although operating as a potential pathway for reaching otherwise defaulted constitutional claims, does not, standing alone, support the grant ing of the writ of habeas3 This court notes serious doubt as to the potential applicability of Brady v.

Maryland, 373 U.S. 83 (1963), in light of the fact that the evidence relied upon by Bryan to assert the unreliability of the bullet comparison and the hair analysis did not exist until well after the completion of Bryan’ s direct appeal. It is thus difficult to conceive how such information could have been suppressed by the prosecutors in violation of Brady . We need not address this contention, however, because we conclude infrathat even if the objected-to evidence were totally excised from the trial, the result would have remai ned unchanged. Hence, Bryan cannot satisfy the requirements of § 2244(b)(2)(B)( ii) and is not entitled to permission to file a second or successive § 2254 habeas petition. -6- corpus.” LaFevers v. Gibson , 238 F.3d 1263, 1265 n.4 (10th Cir. 2001); see also Herrera v. Collins , 506 U.S. 390, 400 (1993) (“Claims of actual innoc ence based on newly discovered evidence have never been held t o state a ground for federal habeas relief absent an independent constitutional violation occuring in the underlying state criminal proceeding.”). According ly, this court focuses on Bryan’s assertion that the state suppressed evidenc e relating to the reliability of bullet comparison and hair analysis, thereby render ing his guilt and penalty phases constitutionally unreliable. 3 Second, as this court previously noted in
LaFevers , it is far from clear whether a challenge to the p ropriety of a death sentence is cognizable under § 2244(b)(2)(B)(ii). 238 F.3d at 1267. As was true in LaFevers , however, this court need not resolve that difficu lt question because even assuming such a claim is available, it fails f or the reasons set out below. Finally, in the portion of his request to file a se cond or successive § 2254 habeas petition relating to the reliability of his capital sentencing determination, Bryan-7-

appears to request that this court revisit the ques tion of the effectiveness of his trial counsel. Such a claim is precluded by § 2244 (b)(1) which requires dismissal of any claim presented in a second or successive § 2254 habeas petition that was presented in a prior application. Upon consideration of Bryan’s request to file a sec ond or successive § 2254 habeas petition, this court concludes that he has n ot made a prima facie showing that he satisfies the requirements of § 2244(b)(2)( B)(ii). In particular, the evidence of Bryan’s guilt was, though almost entire ly circumstantial, overwhelming. See Bryan v. Mullin , 335 F.3d 1207, 1211-12 (10th Cir. 2003) (en banc) (recounting evidence of Bryan’s guilt); Bryan v. Gibson , 276 F.3d 1163, 1167-68 (10th Cir. 2001) (same). Considering the c lear and convincing evidence standard set out in § 2244(b)(2)(B)(ii), Bryan has simply not come close to making a prima facie showing that absent the bullet-comparison evidence and the hair evidence the outcome of either the guilt or se ntencing phase of his trial would have turned out differently. Thus, assuming the existence of a viable constitutional claim, i.e. , a Bradyclaim, and assuming the claim could not have been previously discovered through the exercise of due diligence, Bryan has still failed to make a prima facie showing that he can satisfy the requirements of § 2244(b)(2)(B)(ii). Accordingly, this court denies Bryan’s request to file a-8-

second or successive § 2254 habeas petition. Havin g done so, this court likewise
denies his request for an emergency stay of execution.
ENTERED FOR THE COURT

Michael R. Murphy Circuit JudgeNo. 04-6185, Bryan v. Mullin

Henry , Circuit Judge, Concurring.

I join the order denying the application for permis sion to file a successive § 2254 petition. Mr. Bryan is unable to demonstrate that the newly discovered evidence establishes by clear and convincing eviden ce that a reasonable fact finder would not have found Mr. Bryan guilty of the charged offense. See 28 U.S.C. § 2244(b). Although Mr. Bryan cannot satisfy the requirements of § 2244, I reiterate my dissent from the panel and en banc opinions as to Mr. Bryan’s ineffective assistance of counsel and re-urge the State of Oklahoma to “reflect on these matters and consider settling this case by either a greeing to a new sentencing phase where a fairly composed jury can evaluate” th e compelling evidence of Mr. Bryan’s diseased mental state, “or by renewing its offer of life imprisonment with no possibility of parole.” See Bryan v. Gibson , 335 F.3d 1207, 1247 (10th Cir. 2003) ( en banc ) (Henry, J., concurring in part and dissenting in part). Mr. Bryan received inadequate assistance by inexper ienced counsel at the time of his trial. Given Mr. Bryan’s current poor health, the fact that the jury never learned of his delusions and his previous ins titutionalization for mental illness, his execution will contribute to no social purpose.