IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                            March 9, 2009

                                       No. 09-10191                    Charles R. Fulbruge III
                                                                               Clerk

In re: James Edward Martinez,

                                                   Movant,




                         On Motion for Authorization to File
                       Successive Petition for Writ of Habeas
                     Corpus in the United States District Court
                   for the Northern District of Texas, Fort Worth




Before DAVIS, SMITH and DENNIS, Circuit Judges.
PER CURIAM:*
       James Edward Martinez, who is scheduled for execution tomorrow, March
10, 2009, moved for a stay of execution and for an order authorizing the filing of
a successive petition for writ of habeas corpus pursuant to 28 U.S.C. §
2244(b)(3)(C). Martinez’s motion is supported by an affidavit from a witness,
Monique Walker, which Martinez alleges demonstrates that he is actually
innocent of the murders he stands convicted of committing. Even if we assume
that a claim of “actual innocence” would support habeas relief in an appropriate



       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
                                  No. 05-70029

case, Martinez’s claim based on actual innocence is patently inadequate. We
therefore DENY both Martinez’s motion for stay of execution and for authority
to file a successive petition for writ of habeas corpus.
                                        I.
      Most of the procedural history of this case is set out in our March 31, 2006
opinion denying a certificate of appealability seeking to appeal the district
court’s denial of habeas relief. Following our March 2006 ruling, the Supreme
Court denied Martinez’s petition for certiorari on October 16, 2006.
      On February 17, 2009, Martinez filed an application for leave to file a
subsequent writ of habeas corpus in the Texas Court of Criminal Appeals. The
Texas court dismissed Martinez’s application as an abuse of the writ. Ex parte
James Edward Martinez, No. 59,313-03 (Tex. Crim. App. Feb. 26, 2009). On
March 6, 2009, Martinez filed in this court his motion for stay of execution and
for an order authorizing filing of his second petition for writ of habeas corpus.
                                        II.
      The facts of Martinez’s offense are set forth in our March 31, 2006 opinion.
In summary, Martinez was convicted of shooting Sandra Walton and Michael
Humpreys in west Fort Worth, Texas on the night of May 20, 2000. The state
presented evidence that on that same night, Martinez met his friend, Casey
Ashford, at a farm where he was staying and delivered a black canvas bag
containing a number of items including the murder weapon. Ashford testified
that he buried the bag, although he later disclosed its location to the police. At
trial, Martinez tried to blame the murders on Ashford. More importantly for
purposes of Martinez’s current motions, he produced at trial the testimony of his
mother and step-brother who testified that he had been at home on the night of
the murders.
      As indicated above, Martinez’s motion for stay of execution and
authorization to file a successive habeas application are predicated on a one-page

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affidavit from Monique Walker. Ms. Walker asserts in her affidavit that on the
night of the murders she was in the south Fort Worth home petitioner shared
with his mother, Marta Martinez, and his step-brother, Curtis Faulkner. Ms.
Walker asserts she was in the bedroom with Martinez’s step-brother, Curtis
Faulkner, which was located next to Martinez’s bedroom. She asserts that she
knows that Martinez was in the adjoining bedroom that night because he
repeatedly banged on the wall separating the two bedrooms and complained of
the volume of Curtis Faulkner’s music. She also asserts that she did not come
forward earlier because at the time of the murders she was only 15 years old,
was involved in a sexual relationship with Curtis Faulkner and was concerned
that Faulkner would be in serious trouble if her parents or law enforcement
officials were aware that they were involved in a sexual relationship.
                                        III.
      Section 2244(b)(2) requires:
      A claim presented in a second or successive federal habeas corpus
      application . . . that was not presented 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 not have been
      discovered previously through the exercise of due diligence; and

      (ii) the facts underlying the claim, if proven and viewed in the light
      of the evidence as a whole, would be sufficient to establish by clear
      and convincing evidence that, but for constitutional error, no
      reasonable factfinder would have found the applicant guilty of the
      underlying offense.

28 U.S.C. § 2244(b)(2)(West 2008).




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        Martinez does not argue that his claim relies on a new rule of law that was
previously unavailable. Instead, he asserts that the evidence he now presents
could not have been discovered previously through the exercise of due diligence.
Martinez bases this assertion only on the fact that “Mrs. Walker did not fully
appreciate the seriousness of the charges against Mr. Martinez due to her youth”
and failed to come forward until now because “she feared the recriminations of
her parents and other adults because she was engaged in a sexual relationship
with Mr. Martinez’s brother, Curtis Faulkner, who was an adult.”
                                        IV.
        The state asserts a number of legal reasons we should deny Martinez’s
motions: (l) the successive petition is time barred under 28 U.S.C. § 2244(d); (2)
given the rejection of Martinez’s claim by the Texas Court of Criminal Appeals
as an abuse of the writ, Martinez’s federal claim is procedurally defaulted; and
(3) claims of actual innocence based on newly discovered evidence do not as a
matter of law provide a basis for federal habeas relief.
        We find it unnecessary to reach these legal arguments advanced by the
state because even if Martinez prevails on all of these arguments, we conclude
that the facts asserted in Monique Walker’s affidavit when viewed in light of the
evidence as a whole, would not be “sufficient to establish by clear and convincing
evidence that but for constitutional error, no reasonable factfinder would have
found    the   applicant guilty   of the      underlying   offense.”   28   U.S.C. §
2244(b)(2)(B)(ii).
        Monique Walker’s assertion that Martinez was at home on the night of the
murders is neither new evidence nor evidence that was not presented at trial.
Both Martinez’s step-brother, Curtis Faulkner, and his mother testified that
Martinez was at home that night. In fact, Faulkner testified to the exact same
fact that Walker now attests: that he knew Martinez was home all night because
he was banging on the wall that separated their rooms and yelling at Faulkner

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to turn his music down. Monique Walker’s affidavit at best only bolsters the
testimony of Faulkner and Martinez’s mother. In light of the overwhelming
evidence of Martinez’s guilt, the jury obviously rejected the testimony of
Faulkner and Martinez’s mother. Under these circumstances, Martinez cannot
meet his burden of demonstrating that no reasonable juror would have convicted
him had Monique Walker produced the evidence at trial that she asserts in her
affidavit, which is largely cumulative of evidence the jury rejected. See House
v. Bell, 

, 536-39 (2006); Graves v. Cockrell, 

, 152-53 (5th
Cir. 2003).
      For the reasons stated above, we DENY Martinez’s motion to file a
successive writ of habeas corpus. We also DENY Martinez’s motion to stay his
execution.




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