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Eric John King v. Ernest Trujillo

March 28, 2011


Per curiam.



Before: Alex Kozinski, Chief Judge, Andrew J. Kleinfeld, and Richard C. Tallman, Circuit Judges.

Pursuant to 28 U.S.C. § 2244(b)(3) of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Eric John King, an Arizona prisoner on death row, requests permission to file a second or successive application for a writ of habeas corpus in the District of Arizona. Additionally, he asks that we stay his execution, currently scheduled for March 29, 2011. We deny both requests.


King was convicted in Arizona state court on September 5, 1990, for the December 27, 1989, armed robbery and murders of Ron Barman, a convenience-store clerk, and Richard Butts, the store's security guard.*fn1 He was sentenced to death on March 4, 1991. Since then, he has filed numerous state and federal appeals in an attempt to have both his conviction and sentence set aside. None have been successful. On February 8, 2011, the Arizona Supreme Court granted the State's motion for a warrant of execution. The warrant authorizes the State to execute King at 10 a.m. on March 29, 2011, and is valid for twenty-four hours.

The Maricopa County Superior Court dismissed King's fourth petition for post-conviction relief on February 8, 2011.*fn2

In this petition, King argued that the recording*fn3 of the crimes by the store's time-lapse cameras, which the State prosecutors used to create some of the exhibits ultimately introduced at trial-namely, still photos and an edited compilation of the recorded images-was not the original recording, but a copy. King thus claimed that he was convicted on false testimony- not because the "copy" did not fairly and accurately depict the events that occurred, but because one of the prosecution's witnesses might have inaccurately testified that the tape identified as Exhibit 1, but never admitted into evidence, was the original. He argued that this is newly discovered evidence and that, absent the witness's false testimony, he could not have been convicted. The Superior Court concluded that King's claim was procedurally barred and, alternatively, failed on the merits. On March 15, 2011, the Arizona Supreme Court summarily denied his petition for review.*fn4

On March 23, 2011, the Superior Court likewise denied King's fifth petition for post-conviction relief as procedurally barred.*fn5 In that petition, King again argued that he had been convicted on false testimony-specifically, the testimony of Michael Jones, who had been with King on the night of the murders, and who was a witness for the prosecution at King's trial. King attached a March 7, 2011, "recantation" affidavit from Jones, who stated that he was so intoxicated on the night of the murders that he had no memory of the events of that day and remembered only waking up in jail the following morning.*fn6 Like the arguments in his fourth state petition for post-conviction relief, King claims that Jones's lack of memory is newly discovered evidence showing actual innocence. The Arizona Supreme Court denied King's petition for review on March 28, 2011.*fn7

King now seeks to relitigate these same issues in federal court. Because we have previously considered and denied habeas claims brought by King, he asks us to grant him leave to file a second or successive petition in the district court.*fn8


We begin, as always, with the statutory text. To be entitled to an order authorizing the district court to consider his second or successive petition, King must "make[ ] a prima facie showing that [his] application satisfies the requirements of this subsection."*fn9 In that regard, § 2244(b) provides: (2) A claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior application shall be dismissed unless-

(A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or

(B)(i) the factual predicate for the claim could not have been discovered previously through the ...

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