Ex Parte James Agbeze

Affirmed and Opinion filed November 5, 2015.

In The

Fourteenth Court of Appeals

NO. 14-15-00474-CR

EX PARTE JAMES AGBEZE

On Appeal from the 180th District Court

Harris County, Texas

Trial Court Cause No. 1288928-A

OPINION

Appellant James Agbeze appeals the habeas court’s order denying his post-

conviction application for writ of habeas corpus on his conviction for theft of

property by a government contractor with an aggregated value of $1,500 or more,

but less than $20,000. See Tex. Code Crim. Proc. art. 11.072. In his appeal,

appellant argues the habeas court abused its discretion in denying his requested

relief. We affirm.

BACKGROUND

Appellant claims that in 2007 an investigator in his case, Ihenacho Nnadi,

solicited a bribe in exchange for preparing a report that would allow appellant to

avoid prosecution. Appellant refused to pay, and Nnadi said appellant would face

prison time. Appellant was convicted on February 11, 2013, and assessed

punishment of seven years community supervision and a $10,000 fine. Thereafter,

Nnadi was arrested and pled guilty to federal charges of bribery.

Appellant then filed an application for writ of habeas corpus seeking to

vacate his conviction on grounds that he is actually innocent, based on newly

discovered evidence and the State’s Brady violation for failing to disclose Nnadi’s

corruption.1 The habeas court denied the application and filed written findings of

fact and conclusions of law.

STANDARD OF REVIEW

We review the denial of habeas corpus relief under an abuse-of-discretion

standard and consider the facts in the light most favorable to the habeas court’s

ruling. Ex parte Wheeler, 203 S.W.3d 317, 324 (Tex. Crim. App. 2006). An

applicant seeking post-conviction habeas corpus relief bears the burden of

establishing by a preponderance of the evidence that the facts entitle him to relief.

Ex parte Richardson, 70 S.W.3d 865, 870 (Tex. Crim. App. 2002). We afford

almost complete deference to the habeas court’s determination of historical facts

supported by the record, especially when those factual findings rely upon an

evaluation of credibility and demeanor. Ex parte Tarlton, 105 S.W.3d 295, 297

(Tex.App.—Houston [14th Dist.] 2003, no pet.). We apply the same deference to

review the habeas court’s application of law to fact questions, if the resolution of

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Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

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those determinations rests upon an evaluation of credibility and demeanor; if the

outcome of those ultimate questions turns upon an application of legal standards,

we review the habeas court’s determination de novo. Id.

APPLICABLE LAW

A claim of actual innocence is cognizable in a post-conviction habeas corpus

proceeding. Ex parte Elizondo, 947 S.W.2d 202, 205 (Tex. Crim. App. 1996); Tex.

Code Crim. Proc. Ann. art 11.072 (procedures in community supervision case).

Two types of actual innocence claims may be raised. Herrera v. Collins, 506 U.S.

390, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993); Schlup v. Delo, 513 U.S. 298, 115

S.Ct. 851, 130 L.Ed.2d 808 (1995). A Herrera-type claim is a substantive claim in

which the applicant asserts a “bare claim of innocence based solely on newly

discovered evidence.” Ex parte Franklin, 72 S.W.3d 671, 675 (Tex. Crim. App.

2002). In contrast, a Schlup-type claim is a procedural claim in which the

applicant’s claim of innocence does not alone provide a basis for relief, but is tied

to a showing of constitutional error at trial. Id; Ex parte Brown, 205 S.W.3d 538,

544–45 (Tex. Crim. App. 2006); see Schlup, 513 U.S. at 315, 115 S.Ct. 860–61

(concluding Schlup’s constitutional claims were otherwise procedurally barred). A

Schlup-type claim may not be brought in an initial habeas application, as the

constitutional claims are not procedurally barred. Ex Parte Villegas, 415 S.W.3d

885, 887 (Tex. Crim. App. 2013).

When an applicant asserts actual innocence based on a Herrera-type claim,

the habeas court must first consider whether the applicant presented newly

discovered evidence that affirmatively establishes his innocence. Franklin, 72

S.W.3d at 678; see also Ex parte Calderon, 309 S.W.3d 64, 65 (Tex. Crim. App.

2010); Brown, 205 S.W.3d at 546. If the applicant presents such evidence, the

habeas court then determines whether the applicant proved by clear and convincing

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evidence that no reasonable juror would have convicted him in light of the newly

discovered evidence. Brown, 205 S.W.3d at 544; Franklin, 72 S.W.3d at 678. The

habeas court must examine the “newly discovered evidence” and determine

whether the “new” evidence, when balanced against the “old” inculpatory

evidence, unquestionably establishes the applicant’s innocence. Ex parte

Thompson, 153 S.W.3d 416, 417 (Tex. Crim. App. 2005). The habeas court does

not review the fact finder’s verdict but instead decides whether the newly

discovered evidence would have convinced the fact finder of the applicant’s

innocence. Ex parte Elizondo, 947 S.W.2d at 207, 209; see Ex parte Thompson,

153 S.W.3d at 427–28 (Cochran, J., concurring).

Under Brady, the State is required to provide a defendant with exculpatory

material or other evidence favorable to his defense. Thomas v. State, 841 S.W.3d

399, 407 (Tex. Crim. App. 1992). However, Brady does not apply to evidence

known or available to the defense. See Hayes v. State, 85 S.W.3d 809, 815 (Tex.

Crim. App. 2002); Badillo v. State, 255 S.W.3d 125, 132 (Tex.App.—San Antonio

2008, no pet.).

ANALYSIS

In his brief, appellant asserts the habeas court improperly denied his

application alleging that he was actually innocent of the crime and that the State

committed a Brady violation when it failed to disclose Nnadi’s corruption to trial

counsel. It is unclear whether appellant is thereby alleging a Herrera-type claim, a

Schlup-type claim or both. Among other findings, the habeas court found 1) Nnadi

sought a bribe in 2007 in exchange for appellant’s avoiding prosecution, 2) Nnadi

did not testify or prepare any analysis at appellant’s trial, and 3) appellant failed to

present any false evidence that was presented at his trial. The court concluded, in

part, 1) appellant did not present any new evidence that would shed new light on

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his conviction, and 2) appellant provided no new evidence of relevant facts that the

appellant was not aware of at the time of his trial.

To the extent appellant argues a “bare claim of innocence based solely on

newly discovered evidence,” we conclude Nnadi’s corruption does not

“unquestionably establish” appellant’s innocence. Franklin, 72 S.W.3d at 676.

Further, it is not “newly discovered evidence,” as appellant was well aware of it at

the time of trial. Brown, 205 S.W.3d at 545 (concluding evidence was not newly

discovered where the same evidence had been attached to a motion for new trial

two years earlier). Accordingly, it does not support appellant’s claim of actual

innocence on that basis. See Elizondo 947 S.W.2d at 210 (requiring a showing by

clear and convincing evidence that no reasonable juror would have convicted in

light of the newly discovered evidence).

To the extent appellant’s argument rests on the alleged Brady violations, we

note that this habeas application is appellant’s first. Because appellant's Brady

claims are not procedurally barred as subsequent, a Schlup-type innocence claim

dependent on them is improper. Ex Parte Villegas, 415 S.W.3d at 887. The fact

that Nnadi attempted to elicit a bribe from appellant was a fact known and

available to the defense.2 Thus, because Brady does not apply to evidence known

or available to the defense, the State did not violate its duty to disclose. See Hayes,

85 S.W.3d at 815, and Jackson v. State, 552 S.W.3d 798, 804 (Tex. Crim. App.

1976). Appellant’s Schlup-type claim for relief depends critically on the validity of

his Brady claims. See Schlup v. Delo, 513 U.S. at 315, 115 S. Ct. at 861. For these

reasons, we conclude the record does not reflect the habeas court abused its

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We further note that appellant alleges only that the FBI, not the State, was aware of

Nnadi’s dishonesty. See Rubalcado v. State, 424 S.W.3d 560, 574 n.72 (Tex. Crim. App. 2014)

(recognizing knowledge would not necessarily be imputed if the agent at issue worked for a

different sovereign than the one who conducts the prosecution).

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discretion in denying appellant’s application for writ of habeas corpus. Appellant’s

issue is overruled and the order of the habeas court is affirmed.

/s/ Martha Hill Jamison

Justice

Panel consists of Justices Jamison, McCally, and Wise.

Publish — Tex. R. App. P. 47.2(b).

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