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Blackman v. Davis

United States Court of Appeals, Fifth Circuit

December 26, 2018

TELISA DE'ANN BLACKMAN, Petitioner - Appellant
v.
LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION, Respondent - Appellee

          Appeal from the United States District Court for the Northern District of Texas

          Before DAVIS, JONES, and ENGELHARDT, Circuit Judges.

          EDITH H. JONES, CIRCUIT JUDGE

         Telisa Blackman, Texas prisoner # 848568, was convicted of murder in 1998 and sentenced to life imprisonment. In this successive Section 2254 application, she challenges her conviction under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194 (1963); Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173 (1959); and Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763 (1972). We do not reach the merits of these claims, however, because her petition does not fulfill the stringent requirements of 28 U.S.C. Section 2254(b)(2)(B) and the district court consequently erred in purporting to grant a COA on her merits claims after it had rejected the successive petition's compliance with the statutory prerequisites. We AFFIRM the dismissal of the successive petition.

         BACKGROUND

         The evidence produced at trial was summarized by a Texas Court of Appeals on direct appeal:

[Blackman] and the decedent, Lisa Davis, lived together in a lesbian relationship. One of the decedent's friends testified that the relationship was somewhat stormy and that, shortly before her death, the decedent wanted to end the relationship with appellant, although she was apprehensive about doing so.
The couple lived in a second-floor apartment, accessible by an outdoor stairway to a balcony in front of the apartment. Appellant testified that, on Sunday evening, June 22, 1997, she left the apartment complex to go to a nearby convenience store, Quick Way. Upon returning, she realized she did not have her apartment key or her pass card to the apartment complex; she would have to ring the buzzer to be let into the complex. She went to the entryway of the apartment complex and, while she was standing on the sidewalk before going upstairs, she saw the decedent's feet lying on the balcony in front of their apartment. The apartment door was open, and the body was lying partially inside the apartment and partially outside. Decedent had been shot. Appellant called the decedent's name, and eventually touched the decedent, but the decedent did not respond. Appellant pulled the decedent's body inside their apartment. In doing so, she moved the decedent's feet to the side, to get them inside the apartment. She then shut the door and dialed 911. As a result of dragging the decedent's body inside the apartment complex, she got blood on her socks and shoes.
Cathy Harding, a Dallas police detective, searched appellant in the homicide office at police headquarters because the only officers called to the crime scene were male; it was against department policy to have a male officer search a female suspect. Harding found blood on the soles of appellant's socks. Appellant told Harding that she had not taken her shoes off that evening.
When Daniel Krieter, a Dallas police investigator, arrived at the murder scene, appellant asked him if he remembered her from an incident that had occurred about a year earlier. Appellant had been shot by a gun, a .25 caliber Lorcin, that she owned. When the police closed their investigation into that incident, appellant reclaimed the gun from the department's property room. Appellant testified at trial that the gun was stolen some two months after she had reclaimed it in August 1995. She did not report it as stolen, however, because it was not registered. Appellant consistently denied that she had a gun on the night of the murder.
No gun was found; however, Krieter's search of the apartment revealed some spent shell casings on the floor and some live shell casings in a bureau drawer. The casings were .25 caliber and would fit a Lorcin. Appellant and the decedent had moved into the apartment only some thirty days before the decedent's death. Appellant explained that she moved in such haste she did not have time to throw out the live shell casings so she simply moved them.
Robert L. Ermatinger, a Dallas police homicide investigator, questioned appellant at the scene. Appellant told him she had gone to "the store" when the shooting occurred, although she could not say which store. When pressed, appellant said she realized while en route to the store she had forgotten her gate key and returned to the complex rather than going on to the store. When Ermatinger asked appellant at the scene if "they were a couple," that is, whether appellant and the decedent had a lesbian relationship, appellant said "they were not."
Finally, Cherissa Adams, a neighbor who lived on the first floor, testified that, on the evening of June 22, 1997, she heard a loud noise that sounded like gunfire. She looked out her window and saw a lifeless body. A young, thin girl was trying to move the body. The body's upper portion was inside an apartment. After Adams called 911, she returned to the window and continued to look out. The person who had moved the body locked the door and went downstairs. When the person looked in Adams's direction, Adams closed the blinds and moved away from the window. Adams had never seen the person before that evening and never saw her again. Adams was not able to identify appellant in court; at 11:35 p.m. on the night of the shooting, however, Adams did identify appellant in a photographic lineup.

Blackman v. State, No. 05-98-01750-CR, 2000 WL 5677985 (Tex. App.-Dallas May 8, 2000). Detective Lynette Harrison also testified at the trial. Harrison testified that Adams first chose Blackman's photograph from the photographic line up, and she affirmed that Adams did not "change her ...


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