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REVISED
United States Court of Appeals,
Fifth Circuit.
No. 97-00341.
In re Robert Wallace WEST, Jr., Applicant.
July 25, 1997.
Appeal from the United States District Court for the Southern
District of Texas.
On Application for Order Authorizing District Court to Consider
Second Federal Habeas Corpus Petition
Before POLITZ, Chief Judge, and JOLLY and JONES, Circuit Judges.
POLITZ, Chief Judge:
Robert Wallace West, Jr. has filed a motion for stay of
execution and an application for an order authorizing the district
court to consider a second petition for writ of habeas corpus under
28 U.S.C. § 2244(b)(3)(A). Concluding that West has failed to meet
the requirements set forth in the successive writ provision of the
Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. §
2244(b), we deny both of West's requests.
Section 2244(b)(1) states that, "[a] claim presented in a
second or successive habeas corpus application under section 2254
that was presented in a prior application shall be dismissed." If
the claim is presented for the first time in a second or successive
application, section 2244(b)(2) provides that the claim will be
dismissed unless it "relies on a new rule of constitutional law,
made retroactive to cases on collateral review by the Supreme
Court, that was previously unavailable," or it relies on previously
1

undiscoverable facts that "would be sufficient to establish by
clear and convincing evidence that, but for constitutional error,
no reasonable factfinder would have found the applicant guilty of
the underlying offense." Before we may authorize West to file a
second petition in the district court he must make a prima facie
showing that the application satisfies the requirements of section
2244(b).1
West contends that his death sentence violates his
substantive due process and equal protection rights guaranteed by
the fourteenth amendment. The Supreme Court has upheld both the
constitutionality of the death penalty and Texas's capital
sentencing procedures,2 and there has been no change in the law
that favors West.
West next contends that the prosecution withheld evidence
that would have enabled him to prove his innocence of capital
murder. Alternatively he claims that his trial counsel was
ineffective for failing to uncover the exculpatory evidence. Those
same contentions were made in West's prior section 2254 application
to this court. That claim is therefore dismissed under section
2244(b)(1).3
128 U.S.C. § 2244(b)(3)(C).
2Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929
(1976).
3West maintains that section 2244(b)(1) is unconstitutional
because it prescribes rules of decision, violates due process and
equal protection, and suspends the writ of habeas corpus as applied
to him. In Felker v. Turpin, --- U.S. ----, ----, 116 S.Ct. 2333,
2340, 135 L.Ed.2d 827 (1996), the Supreme Court found that the new
restrictions on successive petitions did not suspend the writ of
2

We note, however, that even if we were to view this claim
under section 2244(b)(2) as resting upon previously undiscoverable
evidence, it would not have changed the outcome of the verdict, a
necessary requirement for the relief he seeks. West claims that he
could not have been convicted of capital murder absent evidence
that he stole a necklace in the course of the murder. In his first
section 2254 application to this court we held that even if the
theft of the necklace had not been presented to the jury, West
still would have been found guilty of capital murder.4 West has
failed to make a prima facie showing which meets the requirements
of section 2244(b)(2).
Finally, West contends that he was sentenced to death based
upon materially inaccurate information. In the sentencing phase of
a capital case in Texas the jury is presented with two, or
sometimes three, questions.5 The second question asked is whether
the defendant is likely to commit future acts of violence that
would constitute a threat to society. West insists that the jury
made a factually incorrect prediction of his future dangerousness
because his institutional record reflects that he has committed no
criminal acts of violence that pose a threat to society.
habeas corpus and merely constituted "a modified res judicata
rule." Although the Supreme Court did not address all of the
constitutional challenges raised by West, we need not resolve those
issues today. As stated in the text, even if we applied section
2244(b)(2) rather than 2244(b)(1), our result would remain the
same.
4West v. Johnson, 92 F.3d 1385 (5th Cir.1996), cert. denied,
--- U.S. ----, 117 S.Ct. 1847, --- L.Ed.2d ---- (1997).
5Jurek.
3

West contends that the facts upon which this claim is based
have not been available until now--when his execution is imminent
and the record complete. Even if we view West's claim as relying
upon a previously undiscoverable factual predicate, he fails to
demonstrate that he would be able to prove by clear and convincing
evidence that no reasonable factfinder would have found West guilty
had they known that while he was on death row, he would not commit
any further acts of violence. Additionally, West's claim is not
based upon a new rule of constitutional law made retroactive on
collateral review by the Supreme Court.
For the foregoing reasons West's application for an order
authorizing the filing of a second habeas petition is DENIED.
Accordingly there are no grounds for staying the execution and the
motion for stay of execution necessarily is DENIED.

4