I concur in the Court's dismissal of applicant's subsequent writ of habeas corpus, which is based upon an asserted Brady claim that the State withheld evidence that: 1) one of its witnesses was a paid police informant; and 2) another witness perjured himself when he testified that he had never discussed his testimony with the prosecution and had no "deal" with the State.

This is applicant's fifth habeas application filed since his capital murder conviction in 1980. He has filed three previous state applications ⁽¹⁾ and one prior federal application. He has been given four evidentiary hearings. The claims that applicant brings today have already been litigated in his federal writ, ⁽²⁾ and applicant fails to offer any explanation why the decisions of the federal courts do not deserve our respect. Indeed, the Fifth Circuit issued a 78 page opinion on August 20, 2002, discussing and rejecting applicant's present claims as well as other allegations that this Court had previously rejected. ⁽³⁾ Yet applicant now asks us to re-do the exhaustive factual and legal analysis that the Fifth Circuit has already completed. Applicant's petition for certiorari seeking to overturn the Fifth Circuit's decision on these very issues is presently pending in the United States Supreme Court.

Comparing the lengthy Fifth Circuit opinion with applicant's present claims, it appears to me that applicant ignores the extensive factual and legal conclusions reached by the Fifth Circuit. Applicant does not offer any criticism of the Fifth Circuit's opinion; he basically ignores it by merely acknowledging its existence on page 32 of his present application. Without some explanation of why this Court should repeat what the Fifth Circuit has already analyzed at such great length, applicant cannot be permitted to relitigate his previously rejected claims endlessly. See Schlup v. Delo, 513 U.S. 298, 318 (1995) (stating that repetitious habeas corpus filings pose "a threat to the finality of state court judgments and to the principles of comity and federalism").

It is also important to note that applicant makes no claim of "actual innocence" in his writ application. Indeed, he does not mention that the single most damning piece of evidence in his trial came not from either of these witnesses, but from Bennie Lee Jones, Mr. Cook's neighbor. Mr. Jones testified that, the day after the murder, applicant sold him the gun which was later tested and found to be the murder weapon. ⁽⁴⁾ Applicant has failed to allege or offer evidentiary support of a "fundamental miscarriage of justice" that might possibly provide an avenue for consideration of the merits of his fifth habeas corpus writ under the standards set out by the United States Supreme Court. See Schlup v. Delo, 513 U.S. at 314-15 (holding that capital murder habeas petitioner who had been unable to establish cause and prejudice sufficient to excuse his failure to present his evidence in support of his first writ could obtain review of his constitutional claims only if he fell within the narrow class of cases implicating a "fundamental miscarriage of justice"). As the Supreme Court stated in Schlup:

To ensure that the fundamental miscarriage of justice exception would remain "rare" and would only be applied in the "extraordinary case," while at the same time ensuring that the exception would extend relief to those who were truly deserving, this Court explicitly tied the miscarriage of justice exception to the petitioner's innocence.

Id. at 320. Absent a well-supported claim of actual innocence, I am unable to consider the merits of this, applicant's fourth, eleventh-hour, state habeas corpus application. See generally, Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U. Chi. L. Rev. 142 (1970).

In baseball, the batter is out after three strikes. Capital murder proceedings are not games; they are literally "life or death" matters to the defendant, the victims and relatives of the crime, and to society as a whole. Nonetheless, applicant has had five strikes at habeas corpus relief after his initial direct appeal was rejected by this Court and by the United States Supreme Court. At some point, our criminal justice system must reach repose and a finality of decision. After twenty-three years of litigation, review and re-review by this court and the federal courts, applicant has had his fair share of due process in our state criminal justice system. Schlup, 513 U.S. at 320.

Cochran, J.

Filed: March 10, 2003

Do Not Publish

1. In his third habeas corpus application filed in this Court, applicant raised the issue of the State withholding material impeachment evidence on these same two witnesses. The only meaningful distinction between his third writ and the present application is the fact that applicant now has additional evidence to support the Brady claims that this Court has already rejected.

2. Regarding applicant's present contention that the State withheld information that Farr was a paid police informant, the Fifth Circuit noted: "[a]s of his third state petition, Banks believed Farr had been an informant. Accordingly, Banks should have at least attempted to interview the investigating officers, such as Deputy Huff, to ascertain Farr's status." Banks v. Cockrell, No. 01-40058, slip op. at 22 (5^th Cir. Aug. 26, 2002). The Fifth Circuit, nonetheless, considered applicant's Brady claim concerning Farr on its merits and assumed that the State had, in fact, withheld his status as a paid informant. Id. at 25. Even assuming that this evidence was material, the Fifth Circuit concluded that "Farr's paid informant status, when considered against the other impeachment evidence about him, and the fact that much of his testimony concerning the trip to Dallas to retrieve Banks' pistol was corroborated [in part, by Banks himself], does not present a reasonable probability that the jury would have found differently concerning Banks' future dangerousness." Id., slip op. at 33.

Regarding applicant's present contention that the State withheld information concerning Cook's trial statement that he had never reviewed his testimony with the prosecution, the Fifth Circuit noted that applicant, after receiving the 74 page transcript of the prosecution's prior interview session with Cook, never amended his habeas petition to include this as a claim. Id., slip op. at 49-52. Apparently, applicant did not then think enough of this matter to allege it as a constitutional claim. As to the issue that the prosecutors made "a deal" with Cook in return for his testimony, the federal magistrate who heard the evidence concluded that "the evidence and testimony presented by Cook in this matter [are] not credible." Id., slip op. at 54. The Fifth Circuit then stated: "[n]eedless to say, testimony from recanting witnesses is properly viewed with suspicion, because it: upsets the finality of convictions; is often unreliable, given suspect motives; and often serves to impeach cumulative evidence, rather than undermine the accuracy of the conviction." Id., slip op. At 54-55.

3. Banks v. Cockrell, No. 01-40058 (5^th Cir. Aug. 26, 2002).

4. Trial testimony showed that applicant was the last person known to be with the murder victim in Nash, Texas at 11:30 p.m. on April 11, 1980. Applicant was next seen in Dallas the following morning driving a green Mustang that matched the description of the deceased's green Mustang. Mr. Cook, his wife and his sister all testified to seeing applicant driving the green Mustang.