Nos. 17?6313, 17A391

IN THE

?upreme (?lnurt cf the UHniteh ?tates

 

In re ROBERT LYNN PRUETT,
Petitioner.

 

I On Original Petition for a Writ of Habeas Corpus

 

PROOF OF SERVICE

 

I hereby certify that on the 11th day of October, 2017, a copy of
Respondent?s Brief in Opposition to Petition for a Writ of Habeas
Corpus and Application for a Stay of Execution was sent by mail and
electronic mail to: David R. Dow, University of Houston Law Center, 4604
Calhoun Road, Houston, Texas 77204?6060, ddow@central.uh.edu. All parties
required to be served have been served. I am a member of the Bar of this Court.




Assistant Attorney General
Criminal Appeals Division

PO. Box 12548, Capitol Station
Austin, Texas 78711

(512) 936-1400

Counsel for Respondent

No. 17-6313, 17A391

IN THE
?upreme QEnurt of the tantra: ?tates

 

In re ROBERT LYNN PRUETT,
Petitioner.

 

On Original Petition for a Writ of Habeas Corpus

 

BRIEF IN OPPOSITION TO ORIGINAL PETITION
FOR A WRIT OF HABEAS CORPUS AND APPLICATION FOR A

 

STAY OF EXECUTION

KEN PAXTON EDWARD L. MARSHALL
Attorney General of Texas Chief, Criminal Appeals Division
JEFFREY C. MATEER JEFFERSON CLENDENIN
First Assistant Attorney General Assistant Attorney General

Criminal Appeals Division
ADRIENNE MCFARLAND Counsel of Record
Deputy Attorney General
for Criminal Justice PO. Box 12548, Capitol Station

Austin, Texas 78711?2548
(512) 936-1400
jay. clendenin@oag. texas. gov

 

Counsel for Respondent

QUESTION. PRESENTED

Petitioner Robert Pruett was found guilty and sentenced to death
in 2002 for his killing of Texas Department of Criminal Justice (TDCJ)
Correctional Officer Daniel Nagle. During the intervening fifteen years, Pruett
has filed numerous'state habeas applications arguing, inter alia, that the State
did not disclose to the defense an agreement it had with a witness, the State
failed to correct false trial testimony, the State failed to preserve physical
evidence, and he is actually innocent. His claims were rejected in each
instance. Pruett has also raised these claims in petitions for a writ of certiorari
and motions for authorization to file successive federal habeas petitions. The
Fifth Circuit denied the motions because, inter alia, the claims did not
demonstrate he is actually innocent. Pruett has raised nothing new that casts
any doubt on his guilt.

This Court has never recognized a freestanding claim of actual
innocence. After failing on several occasions to demonstrate his innocence in
efforts to'bypass procedural obstacles to his federal habeas claims, Pruett now
requests this Court to grant him the extraordinary remedy of a writ of habeas
corpus by way of an original petition. These facts raise the following question:

Should the Court exercise its original habeas corpus jurisdiction to

recognize for the first time a claim of actual innocence and

determine the burden attending such a claim where Pruett had an

adequate remedy in state court but has nonetheless failed on
several occasions to cast doubt on the jury?s verdict?

i

BRIEF IN OPPOSITION

Petitioner Robert Pruett was convicted and sentenced to death in
2002' for his murder of TDCJ Correctional Officer Daniel Nagle, which Pruett
committed 'whileserving a life sentence for a prior murder. He is scheduled to
be executed after 6:00 p.m. (Central Time) on Thursday, October 12,
2017. Pruett has unsuccessfully challenged his conviction and death sentence
in both state and federal court. His initial federal habeas proceedings
concluded when the Court denied his petition for a writ of certiorari in 2012.
. Pruett v. Thaler, 133 S. Ct. 141. Pruett recently filed his sixth subsequent state
habeas application and a motion for authorization to ?le a successive federal
habeas petition. In the application and motion, he raised the same allegations
presented in the instant petition that form the basis of his actual innocence
claim. The CCA dismissed the subsequent application and the Fifth Circuit
denied authorization, holding that Pruett?s allegations failed to show that no
reasonable factfinder would have found him guilty considering his ?new?
evidence. Ex parte Pruett, No. 62,099-08 (Tex. Crim. App. Oct. 2, 2017)
(unpublished order); In re Pruett, No. 17 41007, slip op. at 6?7 (5th Cir. Oct. 6,
2017) (unpublished). I

Pruett now seeks the extraordinary remedy of a writ of habeas corpus by
way of an original petition. See generally Petition. He argues thatlthe Court

should grant his petition to determine whether the Eighth and Fourteenth
1

Amendments prohibit the execution of someone who is actually innocent of
capital murder and whether a claim of actual innocence is cognizable in federal
habeas corpus proceedings and what the attendant burden for such a claim
would be.1 Pet. Cert. iv. Pruett is not entitled to the extraordinary relief he
requests.

First, the Court has never. recognized a claim of actual innocence. Pruett
fails to demonstrate any reason the Court should depart from its precedent.
Second, as courts have found on many occasions, none of Pruett?s allegations
demonstrate that he is innocent. Pruett is essentially seeking to appeal those
courts? determinations through an original petition in an effort to avoid the
limitations of the Anti-Terrorism and Effective Death Penalty Act (AEDPA).
Consequently, Pruett is not entitled to a writ of habeas corpus or a stay of

execution.

STATEMENT OF JURISDICTION
The Court has jurisdiction under 28 U.S.C. 2241(a).

 

1 Pruett also lists as a question presented whether the Eighth and Fourteenth
Amendments prohibit the execution of someone convicted of capital murder in a case
not involving treason, murder of an?elected of?cial, or terrorism. Pet. Cert. iv. He fails
to brief this argument in any way and it is, therefore, not before the Court.

2

STATEMENT OF THE CASE
I. Facts of the Crime
The Court of Appeals for the Fifth Circuit summarized the evidence
supporting Pruett?s capital murder conviction in its opinion denying habeas
relief:

Pruett was sentenced to 99 years in prison for his role in the 1995
murder of Ray Yarborough. His father and brother were also
convicted for their roles in the Yarborough murder.

On December 17, 1999, while in prison, Pruett missed getting a
hot lunch and was given a sack lunch. He attempted to take his
lunch into the recreation area, which was in violation of prison
rules. Officer Nagle told Pruett that he needed to eat his lunch
before going to the recreation area, and wrote a disciplinary charge
against Pruett. Later that afternoon, when Nagle was in his of?ce
adjoining a multi-purpose room, Pruett stabbed Nagle eight times
with a ?shank? made of a metal rod sharpened to a point at one
end, and wrapped in tape at the other end. According to the
autopsy report, Nagle died from a heart attack that he suffered as
a result of the trauma caused by the stab wounds. The murder
weapon and a torn disciplinary report against Pruett, charging
him with attempting to take food into an unauthorized area, were i
found at the scene of the attack.

Pruett v. Thaler, 455 F. App?x 478, 479?80 (5th Cir. 2011). 
II. Trial, Direct Appeal, and Postconviction Proceedings
Having been indicted on charges of capital murder, Pruett was convicted

and sentenced to death for the murder of Of?cer Nagle. CR 2, 518, 539?41.2

 

2 refers to the ?Clerk?s Record,? the transcript of pleadings and documents
?led in the trial court, followed by the internal page number(s). refers to the
?Reporter?s Record,? the state record of transcribed trial and punishment proceedings,

3

The CCA upheld Pruett?s conviction and death sentence. Pruett v. State, 2004
WL 3093232 (Tex. Crim. App. 2004). Pruett did not ?le a petition for a writ of
certiorari appealing that decision.

Pruett next challenged his conviction and sentence on state habeas
review. The trial court held an evidentiary hearing and issued ?ndings of fact
and conclusions of law recommending that Pruett?s conviction be set aside with
respect to two claims, but recommended denial of all other claims. at
272?304.3 The CCA adopted the trial court?s ?ndings and conclusions, except
those upon which the trial court recommended a grant of relief, and denied
relief. Ex parte Pruett, 207 767 (Tex. Crim. App. Oct. 19, 2005).

Thereafter, the federal district court denied habeas corpus relief but
granted a certi?cate of appealability (COA) on two issues. Pruett v. Thaler, No.
(S.D. Tex., Aug. 12, 2010). The Fifth Circuit subsequently
af?rmed the district court?s denial of relief and declined to expand the grant of
a COA. Pruett v. Thaler, 455 F. App?x at 478, 480781, cert. denied, 133 S. Ct.

141 (2012).

 

preceded by the volume number and followed by the internal page number(s). 
refers to the State?s Exhibits that were admitted at trial by the prosecution. The
records from Pruett?s trial were previously ?led during his initial federal habeas 
proceedings in cause number (S.D. Tex).

3 refers to the Clerk?s Record of pleadings and documents ?led with the
state habeas court. See generally Ex parte Pruett, No. 62,099-01.

4

The state trial court previously set Pruett?s execution date in 2013 and
. 2014, but those settings were withdrawn for DNA testing to be conducted
pursuant to Pruett?s motion. After DNA testing,4 the trial court found that it I
was not ?reasonably probable that [Pruett] would have been acquitted had the
new results been available at trial.? Pruett v. Texas, 2014 WL 5422573, at *1
(Tex. Crim. App. Oct. 22, 2014). The CCA af?rmed the trial court?s judgment
and this Court denied Pruett?s (petition for a writ of certiorari. Id.; Pruett v.
Texas, 135 S. Ct. 1707 (2015).

Prior to his previously scheduled execution date of April 28, 2015, Pruett
filed three subsequent state habeas applications, each of which were rejected.

Ex parte Pruett, 2014 WL 12714978 (Tex. Crim. App. Dec. 10, 2014), cert.

 

4 The results of palm print analysis and DNA testing on pieces of the torn
disciplinary report that was written against Pruett and found next to Officer Nagle?s
body were inconclusive. The CCA summarized the results of the testing:

The DPS database did not yield a match to the palm print [on one of the
pieces of the disciplinary report]; Upon completion of the requested DNA
testing, the laboratory found markers at several loci, but the twelve
allele at the D13 locus was the only marker present in an amount beyond
the analytical threshold. One marker is not a suf?cient pro?le to declare
a known person to be a match, but known profiles not including the
twelve allele at the D13 locus could be excluded as the source of the palm
print. Known DNA pro?les of appellant and Officer Nagle both contain
a twelve allele at the D13 locus, so neither man could be eliminated as
the source of the palm print. The twelve allele is present at the D13 locus
in the DNA pro?les of ?approximately 20% of the Asian and Hispanic
populations, 30% of the Caucasian population, and 40% of the African
American population.?

Pruett v. Texas, 2014 WL 5422573, at 
5

denied, 135 S. Ct. 1919 (2015); Ex parte Pruett, 458 535 (Tex. Crim.
App. 2015); Ex parte Pruett, 458 537 (Tex. Crim. App. 2015). Pruett
also ?led a petition for a writ of prohibition in the CCA. In re Pruett, 2015 WL
13386964 Crim. App. April 20, 2015). The petition was denied. Id.
Pruett also ?led in the federal district court a motion for relief from
judgment and a motion for reconsideration, which were denied. Pruett v.
Stephens, 2015 WL 10767706 (S.D. Tex. Feh. 5, 2015), COA denied, 608 F.
App?X 182 (5th Cir. April 10, 2015), cert. denied, 135 S. Ct. 1919. Pruett also
filed a lawsuit pursuant to 42 U.S.C. 1983. Pruett v. Stephens, 
(S.D. Tex). Construing the lawsuit as a habeas petition, the district court
transferred the action to the Fifth Circuit for consideration of whether Pruett
was entitled to authorization to file a successive federal habeas petition. The
Fifth Circuit affirmed the district court and dismissed Pruett?s federal habeas
petition for want of jurisdiction. In re Pruett v. Stephens, 784 F.3d 287 (5th
Cir), cert. denied, 135 S. Ct. 1919 (2015). Pruett also ?led in the Fifth Circuit
a motion for authorization to file a successive habeas petition. The Fifth Circuit
denied authorization. 'In re Pruett, 609 F. App?X 819 (5th Cir. April 24, 2015).
Pruett later, after the previous execution date was stayed, ?led two
subsequent state habeas applications. The applications were dismissed. Ex

parte Pruett, 2016 WL 4275640 (Tex. Crim. App. Aug. 11, 2016).

On the day of his previously scheduled execution date, Pruett moved for,
and was granted, DNA testing. Following DNA testing, the state trial court
conducted an evidentiary hearing. See generally 2 DNA RR.5 The trial court
later entered ?ndings and conclusions. DNA CR 39?214. The trial court found
that the results of the DNA testing were not exculpatory and denied relief.
Speci?cally, the trial court found:

(1) as tested in 2015, the tape wrapped around the shank
contained no DNA pro?le; (2) there was no DNA profile on the
shank when it was originally tested for trial in 2000 other than
the profile of Officer Nagle, which was found on the sharp-end of
the shank; (3) when tested in 2015, the shank contained an
unknown female DNA profile. However, since 2000, the shank was
handled on numerous occasions by members of the British
Broadcasting Corporation and Pruett?s postconviction defense
team, with no one wearing gloves; (4) the DNA pro?le found on the
shank during the most recent testing, which was not present on
the rod when it was originally tested, could not be considered
relevant to Pruettis? motion; (5) the DNA analyst?s testimony
adequately addressed the most recent problems concerning the
Federal Bureau of Investigation (FBI) database and DNA
calculations; (6) the motion for DNA testing and the motion to stay
Pruett?s execution were not filed until the day Pruett was
scheduled for execution, even though counsel emailed the motions
to the trial court the day before; (7) Pruett?s counsel were aware of
the prior failure to test the requested items as early as April 16,
2015. However, for some inexplicable reason, they waited until
two days before the execution to contact the DNA expert; (8) no
affidavit for good cause was attached to Pruett?s pleadings in

 

5 refers to the Reporter?s Record of the hearing in the state trial court
pursuant to Pruett?s motion for DNA testing. That Reporter?s Record is contained in
three volumes, a master index, the transcript of the proceedings, and the exhibits
admitted at the hearing. The volume containing the transcript of the hearing will be
cited to as ?2 DNA The volume contains the exhibit submitted at the hearing
and will be cited to as ?3 DNA The Clerk?s Record from the evidentiary hearing
will be cited to as 

7

violation of the Court of Criminal Appeals Miscellaneous Rule 1 1?
003; and (9) on July 23, 2015, Pruett filed his first motion for the
authorization of funds for expert services requesting $5,750.00.
During the August 13 hearing, Pruett re-urged his request, but
the court Withheld its ruling until all of the evidence had been
.presented.

Pruett v. State, 2017 WL 1245431, at Pruett appealed the denial of relief.
The CCA affirmed the trial court. Id. at 9?14. Pruett ?led in this Court a
petition for a writ .of certiorari appealing the opinion. Pruett v. Texas,
No. 17-5127. ThelCourt denied the petition. S. Ct. 2017 WL 3008846, at
*1 (Oct. 2, 2017).

Pruett also ?led in the CCA a subsequent state habeas application and
two suggestions to reconsider its denial of two of his earlier subsequent state
habeas applications. The CCA dismissed the subsequent application and
declined to reconsider its denial of the two earlier applications. Ex parte Pruett,
Nos. 62,099-01, -02, and -08 (Tex. Crim. App. Oct. 2, 2017) (unpublished order).

Pruett filed in the Fifth Circuit another motion for authorization to file
a successive federal habeas petition. In re Pruett, No. 17?41007 (5th Cir). The
motion was denied. Id.

Pruett ?led in the district court a civil-rights complaint. Pruett v. Choate,
et al., Civ. Act. No. H-17-CV-2418 (S.D. Tex). The district court dismissed the
complaint for lack of jurisdiction. 2017 WL 4277206, at *5 (SD. Tex. Sept. 25,

2017). Pruett then appealed the district court?s judgment to the Fifth Circuit.

The Fifth Circuit affirmed the district court?s judgment. Pruett v. Choate, et al.,
No. 17-70021 (5th Cir. Oct. 6, 2017). Pruett filed in this Court a petition for a
writ of certiorari. The petition is pending.

Pruett ?led an original petition for a writ of habeas corpus and a motion
for a stay of execution. In re Pruett, Nos. 17-6313, 17A39l. The instant brief in
opposition follows.

ARGUMENT

Pruett asks the Court to recognize for the first time an actual innocence
claim and to enunciate the standard a federal habeas court would apply to such
a claim. Pet. Cert. iv. But he fails to giustify the extraordinary remedy he seeks
and he fails to even suggest the appropriate standard the Court should apply
to the claim he seeks to raise.

Supreme Court Rule 20.4(a) provides that, justify the granting of a
writ of habeas corpus, the petitioner must show that exceptional circumstances
warrant the exercise of the Court?s discretionary powers, and that adequate
relief cannot be obtained in any other form or from any other court. This writ
is rarely granted.? See Felker v. Turpin, 618 US. 651, 665 (1996) (explaining
that Rule 20.4(a) delineates the standards under which the Court grants such
writs). For the reasons explained below, Pruett fails to advance a compelling
or exceptional reason for the Court to exercise its discretionary powers to issue

a writ of habeas corpus in this case.

I. Pruett Is Not Entitled to the Extraordinary Remedy He Seeks.

First, Pruett is not entitled to the extraordinary remedy of a writ of
habeas corpus by way of an original petition because he had a remedy in state
court. The CCA has recognized a freestanding claim of actual innocence. Ex
parte Elizondo, 947 202, 209 (Tex. Crim. App. 1996) (stating that, to
obtain relief for a claim of actual innocence, an applicant ?must show by clear
and convincing evidence that no reasonable juror would have convicted him in
light of? newly discovered or newly available evidence), superseded by statute
on other grounds, Tex. Code Crim. Free. art. 11.071 as recognized in
Ex parte Blue, 230 151, 162 n.46 (Tex. Crim. App. 2007); see Ex parte
Spencer, 387 869, 877 (Tex. Crim. App. 2011). Because Pruett has not
attempted to show that ?adequate relief [could] not be obtained in any other
forum or from any other court,? Pruett is not entitled to the extraordinary relief
he seeks in this Court. Felher, 518 US. at 652.

Second, Pruett fails to address how the new rule he seeks could be
applied deepite the non-retroactivity doctrine recognized in Teague 0. Lane,
489 U.S. 288, 309?10 (1989). Unless a new constitutional rule falls within a
Teague exception, the ?new constitutional rules . . . will not be applicable to
cases which have become final before the newl rules are announced.? Teague,
489 US. at 310 (emphasis added). And Teague defines a non-?nal case as one

??pending on direct review or not yet final.? Id. at 305?6 (quoting Griffith v.
10

Kentucky, 479 U.S. 314, 328 (1987)). Pruett?s conviction has long been final for
purposes of Teague, hence, any new constitutional rule recognized by this
Court could not be applicable to him unless he meets a Teague exception. In
other words, because a invocatiOn of original habeas corpus jurisdiction in this
Court would have the same impact upon the ?nality of Pruett?s conviction as a
federal habeas petition, the Court is bound to consider the issues raised only
in light of clearly established constitutional principles dictated by precedent as
of the time Pruett?s conviction became ?nal. Consequently, Pruett?s Petition
presents no important questions of law to justify this Court?s exercise of its
original jurisdiction.

Third, as noted above, the Court has never recognized a freestanding
actual innocence claim, and Pruett fails to demonstrate a reason the Court
should do so in this case. The Court in Herrera 0. Collins explained that such
a claim is not cognizable because federal habeas courts sit to ensure that
individuals are not imprisoned in violation of the Constitution, not to correct
errors of fact. 506 U.S. 390, 400 (1993). The Court recognized that ew
rulings would be more disruptive of our federal system than to provide for
federal habeas review of freestanding claims of actual innocence,? and that
federal habeas courts reviewing such claims would not ensure any more
reliable result than the trial. Id. at 401, 405. And, importantly, the Court noted

1 that the fact? that the petitioner raising an actual innocence claim was

11

sentenced to death does not require a different standard than would apply to
non-capital petitioners. Id. at 405. Assuming, arguendo, that an actual
innocence claim could be recognized, the Court stated that the threshold for
demonstrating the claim?s merit would be ?extraordinarily high.? Id. at 417.

In subsequent cases, the Court has not departed from its holding in
Herrera. However, the Coin-t has recognized that a proper showing of actual
innocence may serve as a gateway for a federal habeas court to consider the
merits of a claim that would otherwise be barred. See, McQuiggin v.
Perkins, 133 S. Ct. 1924, 1931 (2013).6 Pruett has recently availed himself of
the opportunity to show that the allegations he raises in his petition satisfied
the standard under 28 U.S.C. 2244(b) by showing, inter alia, that his
allegations show ?in light of the evidence viewed as a whole,? no reasonable
factfinder would have found him guilty of capital murder absent constitutional
violations. In each instance, Pruett failed to satisfy that relatively low
threshold. In re Pruett, No. 17-41007, slip op. at 7; In re Pruett, 609 F. App?x at
823.

Pruett does not cite to this Court?s action in In re Davis, but it should be

noted that Pruett?s allegations pale in comparison to those in In re Davis. 557

 

6 Contrary to Pruett?s assertion, the Court in McQuiggin did not assume without
deciding that a freestanding claim of actual innocence would be cognizable. Pet. Cert.
6 n.6.

12

U.S. 952 (2009). In that case, the petitioner ?led an original petition for writ
of habeas corpus. He presented seven recantations by the State?s key
witnesses, several of whom implicated a State?s witness as the actual
murderer, in support of his claim of actual innocencef? Id. at 953 (Stevens, .,
concurring). By contrast, no witness has recanted his testimony in Pruett?s
case. And contrary to Pruett?s assertion, no physical evidence points to any
other suspect. Perhaps most importantly, Pruett?s postconviction defense team .
contributed to the contamination of evidence in his case. Simply put, In re
Davis has no bearing on the Court?s consideration of Pruett?s petition. Notably,
the Court in In re Davis did not formally! recognize a claim of actual innocence
or elaborate on the burden of proof for such a claim. See In re Davis, 557 U.S.
at 953 (Stevens, ., concurring) (showing that the Court exercised jurisdiction
merely to remand for an evidentiary hearing pursuant to Rule 20.4(a) and its 
original habeas jurisdiction).

Pruett is also not entitled to the extraordinary relief he seeks because
his original petition is, in effect, an effort to circumvent restriction
on successive habeas petitions. Indeed, the allegations Pruett raises in his

petition were the basis of the claims he has twice sought to raise in the Fifth

 

7 Even then, the petitioner failed to substantiate his claim" of actual innocence
after the petition was transferred to the district court. See Davis v. Terry, 625 F.3d
716, 718 (11th Cir. 2010).

13

Circuit in motions for authorization. Both motions were denied, and he plainly
seeks to raise those same allegations in this Court to support his claim of actual
innocence. But knowing he is statutorily precluded from appealing the Fifth
Circuit?s denials of authorization,3 he has sought relief through an original
petition. Pruett?s attempt to circumvent AEDPA should not be condoned.
Indeed, the Court in Felker held that while 28 U.S.C. 2244(b)(3)(E) did not
repeal the Court?s authority to entertain original habeas petitions, 2244(b)(1)
?inform [the Court?s] consideration of original habeas petitions. Felker, 518 
U.S. at 662?63. Consequently, the fact that Pruett?s allegations raised in the
original petition have been repeatedly rejected in the lower courts ?inform[s]?
the Court?s consideration of Pruett?s original petition. Id.

Rule 20.4(a) and 28 U.S.C. 2242 state that an original habeas petition
in the Supreme Court must set forth ?reasons for not making application to the
district court.? In this case, the reasons are clear: Pruett?s. original habeas
petition is actually a successive habeas petition. Pruett is, therefore, actually
seeking to appeal the Fifth Circuit?s denial of authorization because he could
not meet the successive petition requirements of 28 U.S.C 2244 in that court.

Moreover, Pruett?s request that the Court should transfer his petition to

the district court is erroneous. Pet. Cert. 33. While the Court ordinarily has

 

8 28 U.S.C. 2244(b)(3)(E).
14

the statutory authority to transfer a petition for a writ of habeas corpus to a
district court, 28 U.S.C. 2241(b), as noted above, Pruett?s claim could now
only be presented to the circuit court because it is plainly successive. 28 U.S.C.
2244(b)(3)(A). The relief Pruett requests is, consequently, statutorily
impermissible. And even if Pruett were permitted to seek permission of the
Fifth Circuit to raise his claim in the district court, permission would be denied
for the third time. 28 U.S.C. 2241(b)(1). Again, Pruett is attempting to
circumvent the plain language of AEDPA by avoiding ?ling his successive
claim in the Fifth Circuit. Pruett?s attempt to do so should not be condoned and
his petition should be denied.
II. Pruett?s Claim Falls Far Short of Demonstrating His Innocence.
Even if the Court considered recognizing an actual innocence claim for
the first time, Pruett?s case is a poor vehicle. First, Pruett?s assertion of actual
innocence is merely an allegation of legally insufficient evidence. Second,
Pruett poses several purportedly ?new? facts of which his jury was unaware
that now cast doubt on the jury?s verdict, but as the Fifth Circuit has twice
concluded, none of Pruett?s allegations demonstrate that he is innocent. Pet.
Cert. 29?30. Specifically, Pruett asserts that the jury did not know (1) no
physical evidence connected him to the murder, (2) other individuals had a
motive to kill Officer Nagle, (3) the DNA found on the torn disciplinary report

could have been from one-third of the inmates and guards in his prison unit,

15

(4) the tape-matching testimony presented at his trial was based on ?junk
science,? (5) the State did not disclose to the defense that it had made deals
with inmates in exchange for the testimony against Pruett, (6) defense
witnesses were threatened, and (7) an unknown pro?le is on the murder
weapon. Pet. Cert. 29?30. None of Pruett?s allegations have any merit.

i4. Pruett?s allegations allege only his legal innocence, not his
factual innocence.

Pruett poses several arguments to cast doubt on the jury?s verdict. But
the bulk of Pruett?s assertion state, at most, a claim of legal innocence. For
example, Pruett?s claims that the State withheld evidence, failed to correct
false testimony, and presented unreliable scientific testimony allege only that
the jury?s verdict would have been different absent constitutional errors. Such
an allegation does not raise a claim of actual innocence. See Bousley v. United
States, 523 U.S. 614, 613 (1998); Dagger v. Adams, 489 U.S. 401, 412 11.6 (1989)
(actual innocence requires more than a showing of constitutional error, even
when the jury?s verdict would have been different absent the error); Kuhlmann
D. Wilson, 477 U.S. 436, 455 n.17. (1986). Consequently, Pruett?s petition is an
improper vehicle to consider recognizing an actual innocence claim for the ?rst
time because Pruett?s claim is not one of factual innocence. Nonetheless, as
discussed below, Pruett?s assertions fall far short of demonstrating his actual

innocence. Herrera, 506 U.S. at 417 (stating that if a ?truly persuasive?

16

showing of actual innocence could warrant federal habeas relief, the threshold
for such a claim would be ?extraordinarily hig 

B. Pruett presents nothing new regarding the physical
evidence.

First, Pruett asserts that ?postconviction DNA testing has established
conclusively that no physical evidence connects [him] to the crime.? Pet. Cert.
29. Pruett fails to acknowledge, however, that his jury knew that his DNA was
not found on Of?cer Nagle?s clothing and that Of?cer Nagle?s DNA ?was not
found on Pruett?s clothing. All of the postconviction DNA testing results are
consistent with the evidence that was presented at trial. The only exception is
I the presence of a partial unknown female DNA pro?le that was found on the
murder weapon in 2015. Pruett fails to acknowledge that that DNA analyst
testi?ed unequivocally that the partial female pro?le was not on the weapon
when it was ?rst tested in 2000, and he fails to acknowledge that his
postconviction defense team (which included females) contributed to that
contamination. Pruett cannot, and has not, demonstrated his innocence
through the postconviction DNA testing.

When Pruett recently requested authorization from the Fifth Circuit to
?le a successive federal habeas petition, the court denied authorization
because Pruett?s allegation failed even to make a prima facie showing of actual

innocence. The court stated,

17

For example, the 2013 DNA analysis of the disciplinary report

showed only that Pruett and one-third of the others at the prison

could have been the source of the DNA on the report; this is hardly

exculpatory. And the 2015 DNA analysis of the murder weapon

provided only a DNA profile of an unknown female that was not
found when the pretrial DNA analysis was performed?the only
likely conclusion from this is that the weapon was contaminated
post-trial.
In re Pruett, No. 17-41007, slip op. at 7 (emphasis added). The Fifth Circuit
came to the same conclusion in 2015. In re Pruett, 609 F. App?x at 823.

The evidence Pruett points to is a torn prison disciplinary report written
against Pruett by Of?cer Nagle earlier on the day of Of?cer Nagle?s murder.
The torn disciplinary report was found at the scene at which Officer Nagle was
stabbed to death. Pruett v. State, 2014 WL 5422573, at Blood and a palm
print were found on the disciplinary report. 42 RR 365; 44 RR 49. Testing prior
to Pruett?s 2002 trial indicated the blood came from Officer Nagle, but the palm
print was not identi?able. 42 RR 365; 44 RR 49. Touch testing was not
conducted on the disciplinary report prior to Pruett?s trial.

In 2013, Pruett moved in state court for testing of the palm print on the
disciplinary report and testing for the presence of DNA in epithelial cells.
Pruett v. State, 2014 WL 5422573, at Testing of the palm print did not yield
a match. Id. The DNA testing was inconclusive, although the testing did not
exclude either Pruett or Officer Nagle as the contributor of the epithelial cells

on the disciplinary report. Id.

18

Pruett seems to suggest that another unknown individual murdered
Officer Nagle, tore the disciplinary report that contained Pruett?s name, and
left the torn disciplinary report at the scene to frame Pruett. But, as the Fifth
Circuit recognized in 2015, this runs directly contrary to Pruett?s own trial
testimony. In re Pruett, 609 F. App?x at 823.? Pruett testified at the
guilt/innocence phase of his trial that, after Officer Nagle wrote the
disciplinary report against him, he spoke to Officer Nagle to explain why he
had been in possession of contraband. 45 RR 51; Pruett v. Thaler, F. App?x at
480. Pruett testi?ed that Officer Nagle tore up the disciplinary report in
Pruett?s presence and that Pruett then walked away. Id. The suggestion that
he was framed by an-unknown individual who tore up the disciplinary report
and left it at the scene of the murder is not credible because of Pruett?s own
testimony that Officer Nagle tore the disciplinary report. Therefore, Pruett?s
claim is meritless. See California 0. Trombetta, 467 US. 479, 489 (1984)
(rejecting due process challenge based on the failure of the State to preserve
evidence where, inter alia, the chances that preserved evidence would
exculpate the defendants were ?extremely low?).

Similarly, Pruett?s argument regarding the murder weapon does not
demonstrate that he is actually innocent. Testing of the murder weapon in
2015 revealed a partial female DNA pro?le. The DNA analyst testified in state

court that the profile was not present on the weapon when it was originally

19

. tested in 2000 and could only be the result of contamination. Indeed, a bailiff
testi?ed during the state court?s hearing on Pruett?s motion for DNA testing
that he witnessed members of Pruett?s postconviction DNA team, accompanied
by a film crew from the British Broadcasting Corporation (each of which
included females), handling the murder weapon without wearing gloves. As
the state court found, the presence of the partial female DNA pro?le was not
relevant in light of the evidence of contamination. Pruett v. State, 2017 WL
?1245431, at *13. And. as noted above, the Fifth Circuit recently held that
Pruett?s allegations regarding the contamination of the murder weapon do not
establish his innocence. Further, it goes Without saying that the fact that the
murder weapon was contaminated after Pruett?s trial does not cast any doubt
on the jury?s verdict.

C. Pruett?s allegation of a conspiracy to kill Of?cer Nagle does
not demonstrate his innocence.

Next, Pruett contends that other individuals in his prison unit had a
motive to kill Officer Nagle. Despite every opportunity, Pruett has never
substantiated this conspiracy. And Pruett elides the fact that his. trial counsel
attempted to demonstrate in 2002 that others in the prison unit might have
killed Officer Nagle to cover-up a money laundering scheme. 41 RR 88?99. The
warden of the unit, however, testified that Officer Nagle was not cooperating

with, or a part of, the investigation at the prison unit regarding other

20

correctional of?cers smuggling contraband into the unit. 41 RR 95. Indeed, the
warden testi?ed Of?cer Nagle was not involved in the reporting of his fellow
correctional officers. 41 RR 96. The trial court disallowed the questioning
because Pruett?s theory was based on nothing but speculation. Nothing has
changed. Pruett has-presented nothing in the intervening ?fteen years to
substantiate the conspiracy theory based on speculation. Consequently, his
allegation falls far short of the ?extraordinarily high? threshold of
demonstrating his actual innocence. i

D. Pruett?s assertion that his conviction rested on ?junk
science? is meritless.

Pruett argues that the State presented false testimony regarding the
physical match between pieces of tape that was found on the shank used to kill
Officer Nagle and a roll of tape recovered from Pruett?s cellmate. Pet. Cert. 29.
He asserts that a 2009 National Academies of Science (NAS) report
demonstrates that the witness, Lisa Baylor, gave false testimony regarding the
?junk science? of physical matching. He also asserts that a 2015 affidavit by a
member of the report?s drafting committee shows that Ms. Baylor?s testimony
was false. Pruett?s allegations do not demonstrate his innocence.

Jimmy Mullican, an inmate, testi?ed that he was standing outside the
craft shop on December 17, 1999, when another inmate, Phillips, who was

inside the craft shop, asked him to pass some masking tape on to Pruett. 42

21

RR 204. The tape was rolled onto the handle of a toothbrush. 42 RR 205.
Mullican slid it under the door of the multipurpose room. Id.

Lisa Baylor, a forensic scientist with the Texas Department of Public
Safety (DPS) crime lab in Corpus Christi, was responsible for collecting and
processing the physical evidence. 42 RR 296. She examined over ?fty rolls of
masking tape and matched the end of the masking tape wrapped around the
weapon to the end of a roll of masking tape found in Phillips?s locked work

station in the craft room. 42 RR 279, 338-339.

I The DPS lab has guidelines to be followed for a physical match
I comparison for things such as torn tape. 42 RR 307, 313. The DPS guidelines
include standards and controls to insure consistency and accuracy. 42 RR 307.
Ms. Baylor followed guidelines. 42 RR 308. She had studied using
patterns as a method of matching items that were at one time connected. 42
RR 308. She also relied on an article entitled ?Fractal Surfaces as Models of
Physical Matches.? 42 RR 308.

Ms. Baylor looked at approximately fifty-six rolls of tape in this case. 42
RR 309-310. She catalogued all of the physical characteristics of each roll. 42 .
RR 309. She then compared the rolls to the tape found on the weapon. 42 RR
309. Some rolls were quickly eliminated by gross features, such as being too 
wide, too thin, or the wrong color. 42 RR 310. Using a stereoscope, her FBI and

DPS training, and procedures, Ms. Baylor ultimately eliminated all but
22

one roll of tape. 42 RR 310, 316. A senior analyst then checked Ms. Baylor?s
work, and arrived at the same conclusion. 42 RR 312. The match was accurate
and precise enough that Ms. Baylor considered it reliable. 42 RR 311.

Ms. Baylor performed a physical comparison, or ?jigsaw match?, between
the tape from a roll of masking tape and the tape that was taken from the
weapon. 42 RR 338. She determined that the tape from the weapon came from
a particular roll of masking tape, which had been recovered from Phillips?s
work station in the craft shop. 42 RR 279, 339.

Pruett?s claim does not demonstrate that he is actually innocent. As
discussed above, the State presented substantial evidence of Pruett?s guilt, of
which the tape was only one piece. Pruett?s preparation for, and carrying out
of, his murder of Of?cer Nagle was witnessed by several inmates. Pruett v.
Thaler, 455 F. App?x at 480?81. He was seen shortly after the murder with a
wound to the ball of his thumb and discarding his bloody prison clothes. And
Pruett admitted to other inmates to having killed Officer Nagle. Id.

As the Fifth Circuit has recognized, the 2009 NAS report does not
address analysis like the tape-matching at issue in this case. In re Pruett, 609
F. App?x at 823. That one member of the drafting committee has asserted that
torn pieces of tape lie ?in the domain? of the report does not demonstrate that
the report was intended to speci?cally address tape-matching. And as the Fifth

Circuit has found, even without Ms. Baylor?s testimony regarding the tape-

23

matching, Pruett?s guilt was clear. In re Pruett, 609 F. App?x at 823. Several
inmates testified as to Pruett?s efforts to obtain tape to wrap around the
shank?s handle and witnessed Pruett attacking Officer Nagle. Further, Pruett
was seen immediately after the murder discarding his bloody prison clothes
and with a wound to the ball of his thumb. In re Pruett, No. 17?41007, slip op.
at 7. Consequently, Pruett?s allegation falls far short of the ?extremely high?
threshold of demonstrating his actual innocence.

E. ?Pruett?s allegations that the State withheld from the
defense that it made deals with witnesses or threatened
defense witnesses do not demonstrate that he is actually
innocent.

Pruett also claims that a prosecution witness, Harold Mitchell, agreed to
testify in exchange for a promise that he would be transferred out of state to a
different prison. Pruett presents a TDCJ Supplemental Offense Report, which
contains notes regarding various inmates and witnesses to Pruett?s murder of
Officer Nagle. Included in those notes is a notation regarding Harold Mitchell
stating ?wants out of state.? Pruett also presents affidavits from three
individuals, which he asserts support his claim that Mitchell was offered an
undisclosed promise to be transferred out of state. PX A, E, G.

Pruett?s exhibits establish, at most, that Mitchell possessed a unilateral

expectation or subjective belief that he would receive a benefit in exchange for

his testimony. The notation that Mitchell ?want[ed] out of state? shows nothing

24

more than that Mitchell may have had a subjective hopeof receiving a bene?t
in exchange for his testimony. Other than the notation that Mitchell ?want[ed]
out of state,? Pruett presents af?davits of inmates who were incarcerated with
Mitchell.9

Scott Kimes was an inmate in the prison unit in which Pruett murdered
Officer Nagle. PX A. Kimes states that Mitchell told him that of?cers told
Mitchell that he would ?make first parole? if he gave ?a statement against
Pruett.? PX A. Jimmy Matthews states that Mitchell asked to be transferred
out of state in exchange for his testimony, but was told by prison of?cials that
they could not ?help him make parole? if he was out of state. PX E. Mitchell
rescinded the request to be transferred out of state because he could receive
assistance in obtaining release on parole if he remained'in Texas. PX E.
Matthews also states that Mitchell was not released on parole until 2012. PX
E.

All of the assertions in the af?davits Pruett submits regarding Mitchell?s
desire to be transferred out of state are purely hearsay. Pruett presents no
evidence to corroborate the hearsay statements recalling what -Mitchell said
over a decade ago. Nonetheless, Mitchell testi?ed at Pruett?s trial that the

prosecutors had promised to try to ensure Mitchell?s safety and that the

 

9 Notably, the af?davits were signed in?2013 and 2014, fourteen years after
Of?cer Nagle?s murder in 1999.

25

prosecutors had stated that they might put a favorable letter in Mitchell?s
parole ?le. 42 RR 245446. Pruett presents no competent evidence that any
additional promise was made or that any additional agreement was actually
entered into other than the ones that were disclosed to the jury. In fact, even
accepting the unveri?ed hearsay as true, Pruett?s evidence indicates that
Mitchell in fact did not agree to testify in exchange for a promise that he would
be transferred out of state. PX E. According to Matthews?s af?davit, Mitchell
rescinded his request to be transferred out of state. PX E. Clearly then,
Mitchell did not testify in exchange for a promise to be transferred out of state.

For the same reason, Pruett cannot show that the jury?s verdict would
have been affected if it had learned of the evidence he now presentsl0 Again,
Mitchell did not testify in exchange for a promise to be transferred out of state.
PX H. Therefore, Pruett?s assertion that any Such promise was made has no I
bearing on the credibility of Mitchell?s trial testimony. Further, the State?s
witnesses testi?ed regarding bene?ts they received in eXchange for their
testimony. 42 RR 75 (Anthony Casey?s testimony that he agreed to testify

in exchange for the prosecutor?s promise to ?drop? an assault charge, remove a

 

10 Pruett presents an af?davit of a juror stating that evidence showing that the
State?s witnesses ?had been promised things such as being transferred out of state or
receiving other special treatment that was not disclosed at trial? would have
?in?uenced the degree to which informant testimony in?uenced [his] decision.? PX I
at 132. That evidence is plainly inadmissible. Fed. R. Evid. 606(b); Warger v. Shavers,
135 S. Ct. 521, 525 (2014); Tanner v. U.S., 483 US. 107, 121?22 (1987); Summers v.
Dretke, 431 F.3d 861, 873 (5th Cir. 2005).

26

detainer, place a favorable letter in Casey?s parole file, and to place him into
protective custody). As noted above, Mitchell testi?ed that prosecutors
promised to try to ensure his safety and that they might put a favorable letter
in his parole file. 42 RR 245?46. Pruett cannot show that evidence that Mitchell
testi?ed in hopes that he would be transferred out of state would have had any
effect on the jury?s verdict where Mitchell testified that he was promised other
bene?ts in exchange for his testimony.

Additionally, the State presented extensive evidence corroborating
testimony showing that Pruett attacked and killed Officer Nagle. Pruett v.
Thaler, 455 F. App?x at 480 (discussing testimony of six inmates in addition to
Mitchell regarding Pruett?s obtaining a weapon prior to his attacking Of?cer
Nagle, Pruett?s attack on Of?cer Nagle, and Pruett?s disposing of evidence after
the attack). The State also presented evidence that Pruett admitted to other
inmates to killing Of?cer Nagle. 45 RR 74, 164, 180. Mitchell?s testimony was
cumulative to the State?s other evidence and, therefore, Pruett cannot show
that any evidence of Mitchell?s hope of being transferred out of state would
have affected the jury?s verdict or demonstrates his innocence.

Second, Pruett claims that the State failed to disclose that witnesses who
wanted to testify on Pruett?s behalf were threatened and physically assaulted.
Pruett presents two letters written by inmate James Richard to one of

Richard?s correspondents in which Richard states that he was threatened and

27

beaten after he refused to testify against Pruett. PX F, G. The letters are
undeniably unsworn, unveri?ed, and inadmissible hearsay.11_ Nonetheless,
Pruett cannot show that any evidence regarding inmates? treatment in prison
was suppressed. Indeed, Pruett?s trial counsel presented evidence regarding
inmates who wanted to testify on Pruett?s behalf receiving negative treatment.
44 RR 66?67 (defense counsel?s argument to the trial judge that ?we have
talked about how the State?s witnesses have been treated, and I want the jury
to know how the defense witnesses are being treated, judge?). Defense counsel
also argued that an inmate, Damont Jackson, was willing to testify on P-ruett?s
behalf but declined to do so due to ?pressure put on him by 44 RR 72.
Further, Kevin Veschi testi?ed outside the presence of the jury that he had
been denied showers, recreation, food, and air conditioning because he was a
potential witness for Pruett. 44 RR 90?93. Veschi also testi?ed that a
correctional of?cer threatened him by stating, ?[y]ou haven?t seen me get
violent. I will f?--cking crush you.? 44 RR 91. Veschi testi?ed that another
of?cer threatened that he would open Veschi?s cell door and ?kick [his] ass.? 44

RR 92. The defense team?s investigator, James Dickson, testi?ed in front of the

 

11 Additionally, Richard?s letters establish little, if anything. Richard states that
he declined to testify for the State and that one point several guards ran in on
[him] and beat [him] really bad.? Even assuming the uncorroborated assertion is true,
he does not even assert that he was assaulted because he refused to testify for the 
State.

28

jury that he spoke to inmates who were potential defense witnesses. 45 RR
111. Mr. Dickson testified that potential defense witnesses terminated their
interviews due to ear of repercussion.? 45 RR 113. Mr. Dickson testified that
the State?s witnesses ?were getting rewards? and ?the defense witnesses were
being threatened.? 45 RR 118.

Pruett cannot show that any evidence regarding inmates receiving poor
treatment was suppressed. For the same reason, Pruett cannot show he is -
actually innocent where he presents no new evidence that would have changed
the jury?s verdict. As the Fifth Circuit held in 2015, Pruett?s claims do not show
that no reasonable juror would have found him guilty if the complained-of
evidence was presented to the jury. In re Pruett, 609 F. App?x at 823 (?In the
light of the trial testimony which many of the problems with 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?). The court of appeals reached the same conclusion just
one week ago. In re Pruett, No. 17?41007, slip op. at 7 (even assuming ?the
prosecution failed to disclose some impeachment evidence for two inmate-

witnesses and some negative treatment of other witnesses does not preclude

29

?nding Pruett guilty beyond a reasonable doubt, given that trial testimony had
already exposed credibility issues with the inmates?).
Pruett Is Not Entitled to a Stay of Execution.

A request for a stay ?is not available as a matter of right, and equity
must be sensitive to the State?s strong interest in enforcing its criminal
judgments without undue interference from the federal courts.? Id. (citing
Nelson 1). Campbell, 541 US. 637, 649?50 (2004)). Rather, the inmate must
satisfy all of the requirements for a stay, including a showing of a significant
possibility of success on the merits. Id. (citing Barefoot v. Estelle, 463 US. 880,
895?96 (1983)). When the requested relief is a stay of execution, a court must
consider:

(1) whether the stay applicant has made a strong showing that he

is likely to succeed on the merits; (2) whether the applicant will be

irreparably injured absent a stay; whether issuance of the stay

will substantially injure the other parties interested in the

proceed; and (4) where the public interest lies.

Nken v. Holder, 556 US. 418, 434 (2009) (quoting Hilton 0. Braunskill, 481
US. 770, 776 (1987)).

Importantly, a federal court must consider ?the State?s strong interest in

proceeding with its judgment? and ?attempt[s] at manipulation,? as well as ?the

extent to which the inmate has delayed unnecessarily in bringing the claim.?

Nelson, 541 US. at 649?50. Indeed, ?there is a strong presumption against the

30

grant of a stay where a claim could have been brought at such a time as to
allow consideration of the merits without requiring entry of a stay.? Id. at 650.

As demonstrated above, Pruett presents no occasion for this Court to
recognize for the first time an actual innocence claim. Thus, Pruett cannot
demonstrate the likelihood of success on the merits of his claim on appeal; nor
can he demonstrate that his ground for relief amounts to a substantial case on
the merits that would justify the granting of relief. 12

Further, ?[b]oth the State and the victims of crimes have an important
interest in the timely enforcement of a sentence.? Hill I). McDonough, 547 US.
573, 584 (2006). Pruett?s challenges to his death sentence have persisted since
i 1999, and he seeks further unjustifiable delay through his litigation here. Most
importantly, as discussed - above, Pruett?s postconviction defense team
contributed to contamination of the murder weapon. Pruett v. State, 2017 WL
1245431, at *10. In light of the significant delay in Pruett?s request for DNA
testing of the murder weapon and the invitation of error on the part of Pruett?s
postconviction defense team, Pruett cannot overcome the strong presumption

against granting a stay or demonstrate that the balance of equities entitles

 

12 For the same reason, Pruett fails to show that he would suffer irreparable
harm if denied a stay of execution. As the Fifth Circuit has explained, ?the merits of
I [the movant?s] case are essential to [the court?s] determination of whether he will
suffer irreparable harm if a stay does not issue.? Walker 0. Epps, 287 F. App?x 371,
375 (5th Cir. 2008). As discussed above, Pruett?s actual innocence claim is plainly
without merit. Consequently, he cannot show that he would be irreparably harmed if
denied additional process to which he has no entitlement.

31

him to a stay of execution. Pruett is not entitled to a stay of execution to allow
him to further investigate the results of contamination for which he is
responsible. Moreover, as this Court recognized in Hill, epetitive? litigation
raises the same concerns as where a petitioner ?les a speculative or dilatory
suit. Each concern is present here. As discussed above, Pruett has repeatedly
raised the very allegations he presents in his petition and he has been properly
rejected in each instance. His claims are based on pure speculation and do not
demonstrate his factual innocence. And Pruett filed his original petition only
two dayslbefore his scheduled execution. Consequently, equity does not favor
a stay of execution.
CONCLUSION
The petition for a writ of habeas corpus should be denied.
Respectfully submitted,

KEN PAXTON
Attorney General of Texas

JEFFREY c. MATEER
First Assistant Attorney General

ADRIENNE MCFARLAND
Deputy Attorney General
for Criminal Justice

EDWARD L. MARSHALL
Chief, Criminal Appeals Division

32

WRSOMNDENIN
ssistant Attorney General
Criminal Appeals Division

. PO. Box 12548, Capitol Station
Austin, Texas 78711

Tel: (512) 936-1800

Fax: (512) 320-8132

e-mail: iav.clendenin@oag.texas.aov

Counsel for Respondent

33