"Swearingen contends that he learned for the first time in 2008 of tissue samples that exonerate him of the murder of Melissa Trotter. He further contends that he could not have discovered the existence of the samples prior to 2008 and that his attorneys provided constitutionally ineffective assistance by failing to uncover and employ this evidence. As the district court explained, however, these arguments are unavailing. The evidence existed at the time of trial, 2009 WL 4433221 at *16-17, and even if it were not discoverable through due diligence, it does not constitute "clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found [Swearingen] guilty of the underlying offense."
U.S. COURT OF APPEALS: FIFTH CIRCUIT;
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PUBLISHER'S NOTE: the U.S. Court of Appeals Fifth Circuit decision published on April 7, 2011, Appeals Court dismisses Larry Swearingen's latest application in just four paragraphs. Strip away the citations and the legal verbiage - - which I have included for this purpose - and it becomes apparent that the Court has devoted even less space in it's frighteningly technical approach to the very crucial and compelling issues raised by Mr. Swearingen. It is this type of cold, heartless approach that can only draw Texas' judiciary into further disrepute. To this scribe, it's just another form of hurrying the defendant on to execution because the courthouse office closes at 5. 00 PM - as happened in yet another notorious Texas case;
HAROLD LEVY; PUBLISHER. THE CHARLES SMITH BLOG;
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BACKGROUND: Larry Swearingen was sentenced to death in 2000 for the murder of Melissa Trotter in 1998. Melissa Trotter went missing on 8 December 1998. Larry Swearingen was arrested three days later, and has been incarcerated ever since. The body of Melissa Trotter was found in a forest on 2 January 1999. Larry Swearingen was tried for her murder, and sentenced to death. He maintains his innocence of the murder. Several forensic experts have provided statements and testimony that support his claim. One of these experts, Dr Joyce Carter, is the former Chief Medical Examiner of Harris County in Texas who performed the autopsy of Melissa Trotter and testified at Larry Swearingen’s trial that in her opinion, Melissa Trotter had died 25 days before her body was found. In an affidavit signed in 2007, Dr Carter stated that she had looked again at the case and changed her opinion. She concluded that Melissa Trotter’s body had been left in the forest within two weeks of it being found. If accurate, this would mean that the body was dumped at a time when Larry Swearingen was already in custody.
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PARAGRAPH ONE: "Appellant Larry Ray Swearingen was scheduled for execution on January 27, 2009. He sought permission to file a successive petition for writ of habeas corpus, which this court granted in part the day before his execution. In re Swearingen, 556 F.3d 344 (5th Cir. 2009). On remand, however, the district court concluded that Swearingen failed to satisfy the requirements of 28 U.S.C. §§ 2244(b)(2)(B)(i) and (ii). Swearingen v. Thaler, No. H-09-300, 2009 WL 4433221 (S.D. Tex. Nov. 18, 2009). He appeals that decision.
PARAGRAPH TWO; A successive habeas petition is appropriate where:
(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.
PARAGRAPH THREE; 28 U.S.C. § 2244(b)(2)(B). Swearingen contends that he learned for the first time in 2008 of tissue samples that exonerate him of the murder of Melissa Trotter. He further contends that he could not have discovered the existence of the samples prior to 2008 and that his attorneys provided constitutionally ineffective assistance by failing to uncover and employ this evidence. As the district court explained, however, these arguments are unavailing. The evidence existed at the time of trial, 2009 WL 4433221 at *16-17, and even if it were not discoverable through due diligence, it does not constitute "clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found [Swearingen] guilty of the underlying offense." See Johnson v. Dretke, 442 F.3d 901, 911 (5th Cir. 2006) (explaining the high threshold for § 2244(b)(2)(B)(ii) innocence showing). Likewise, we affirm the district court's conclusion that Swearingen has not demonstrated ineffective assistance of counsel. Swearingen's trial counsel developed a reasonable strategy, including expert testimony regarding the time of Trotter's death. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984).
PARAGRAPH FOUR; We AFFIRM the dismissal of Swearingen's successive habeas corpus petition.
AFFIRMED.
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THE DECISION CAN BE FOUND AT:
http://www.leagle.com/xmlResult.aspx?xmldoc=In%20FCO%2020110407122.xml&docbase=CSLWAR3-2007-CURR
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PUBLISHER'S NOTE: The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at:
http://www.thestar.com/topic/charlessmith
For a breakdown of some of the cases, issues and controversies this Blog is currently following, please turn to:
http://www.blogger.com/post-edit.g?blogID=120008354894645705&postID=8369513443994476774
Harold Levy: Publisher; The Charles Smith Blog; hlevy15@gmail.com;
