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Earl Russell Behringer v. Gary L. Johnson, Director, Texas Department of Criminal Justice, Institutional Division
Citation: 75 F.3d 189Docket: 96-10012
Court: Court of Appeals for the Fifth Circuit; March 18, 1996; Federal Appellate Court
Earl Russell Behringer is scheduled for execution on February 15, 1996. He has unsuccessfully sought a stay of execution and a certificate of probable cause regarding his appeal from a previous judgment. Behringer filed a motion for relief from judgment under Federal Rule of Civil Procedure 60(b), claiming actual innocence and ineffective assistance of counsel. He argued that his trial attorney failed to present the testimony of Jerry Hogue, a fellow death row inmate, who allegedly had knowledge that Behringer’s co-defendant, Scott Rouse, confessed to the murders. The district court denied Behringer's motion, and he subsequently appealed that decision. The appellate court reviewed the denial, focusing on whether Behringer's claims constituted new evidence. It determined that Hogue's testimony was not newly discovered since Behringer had been aware of the factual basis for his claim prior to his state habeas petitions filed in 1994 and 1995. The court emphasized that new claims cannot be introduced after a final judgment and that Behringer must assert any unexhausted claims in a newly filed habeas petition after pursuing them in state courts. Ultimately, the appellate court found no abuse of discretion in the district court's denial of Behringer's Rule 60(b) relief and denied both the stay of execution and the certificate of probable cause. The court declined to consolidate this appeal with Behringer's prior appeal.