Motion for authorization to file successor petition 12 Jan 2016

Movant Richard Allen Masterson respectfully moves this Honorable Court, under 28 U.S.C. § 2244(b)(2)(B), for an order authorizing the filing of a successive petition for writ of habeas corpus in the United States District Court for the Southern District of Texas. Mr. Masterson moves this Court to do so because his capital murder conviction and death sentence violate his Fifth, Sixth, Eighth, and Fourteenth Amendment rights. Mr. Masterson has uncovered evidence that he is factually and legally innocent of murder and that the State suppressed, and continues to suppress, evidence that its expert witness presented false and misleading testimony
and material exculpatory evidence that showed Mr. Masterson’s innocence. In support, Mr. Masterson incorporates by reference his attached habeas petition and submits the following additional information:

JURISDICTION
This Court has subject matter jurisdiction over this case under 28 U.S.C. §§ 2254(a) and
2244(b)(3)(A). Mr. Masterson is incarcerated and facing imminent execution because of his
conviction and sentence in the 176th Judicial District Court of Harris County, Texas.

DISCUSSION
Mr. Masterson seeks authorization to filed the following claims in a successive federal habeas petition:

1. Mr. Masterson is actually innocent of murder, so his confinement and death sentence violate the Eighth Amendment’s ban on cruel and unusual punishment and his Fourteenth Amendment’s guarantee of substantive due process.

2. Mr. Masterson is innocent of capital murder, so his confinement and death sentence violate the Eighth Amendment’s ban on cruel and unusual punishment and the Fourteenth Amendment’s guarantee of substantive due process.

3. In violation of Napue v. Illinois, 360 U.S. 264 (1959), and Giglio v. United States, 405 U.S. 150 (1972), the State presented and failed to correct false and misleading expert testimony regarding the cause of the complainant’s death.

4. In violation of Brady v. Maryland, 373 U.S. 83 (1963), the State withheld and continues to suppress material exculpatory evidence that its expert witness and attending medical examiner was not qualified to perform the complainant’s autopsy, causing him to issue an incorrect opinion on the complainant’s cause of death.

5. In violation of Brady v. Maryland, 373 U.S. 83 (1963), the State withheld and continues to suppress material impeachment evidence that its expert witness and attending medical examiner falsified his qualifications on his employment application, was unqualified to perform autopsies, regularly perjured himself when testifying about his qualifications to testify as an expert witness, and perjured himself in Mr. Masterson’s trial.

I. Because Mr. Masterson presents compelling evidence of actual innocence, he need not satisfy the normal requirements for successor habeas petitions under 28 U.S.C. § 2244(b).

Because Mr. Masterson presents compelling, credible evidence that he is actually innocent of capital murder, he is categorically excluded from eligibility for the death penalty.

Because he is actually innocent and therefore categorically excluded from the class of people eligible for execution, any statutory bars to presenting these claims are unconstitutional. Herrera v. Collins, 506 U.S. 390 (1993).

Beyond the categorical exclusion, condemned inmates who can present substantial cases of actual innocence cannot be prevented access to federal courts due to legal technicalities. To do so violates the Suspension Clause of the United States Constitution. Cf. Boumediene v. Bush, 5534 U.S. 723, 729, 733 (2008) (discussing the constitutional guarantee to petition for a writ of habeas corpus that cannot be replaced by an ineffective and inadequate statutory scheme).

Additionally, a freestanding claim of actual innocence is the most important concern of the Great Writ of habeas corpus. Because it is so central, federal courts must issue the writ to protect that fundamental concern. See, e.g., Schriro v. Summerlin, 542 U.S. 348, 362 (2004) (Breyer, J., joined by Stevens, Souter & Ginsburg, JJ., dissenting) ( Great Writ’s basic
objectives include protecting the innocent against erroneous conviction ); Dretke v. Haley, 541 U.S. 386, 398 99 (2004) (Stevens, J., dissenting) ( Habeas corpus is, and has for centuries been, a ‘bulwark against convictions that violate fundamental fairness.’ ); Bousley v. United States, 523 U.S. 614, 620 (1998) ( one of the ‘principal functions of habeas corpus [is] to assure that no man has been incarcerated under a procedure which creates an impermissibly large risk that the innocent will be convicted. ’ ); O’Neal v. McAninch, 513 U.S. 432, 442 (1995) ( basic purposes underlying the writ of habeas corpus include curing error of constitutional dimension the sort that risks an unreliable trial outcome and the consequent conviction of an innocent person ); Schlup v. Delo, 513 U.S. 298, 324 25 (1995) ( [T]he individual interest in avoiding injustice is most compelling in the context of actual innocence. The quintessential miscarriage of justice is the execution of a person who is entirely innocent. Indeed, concern about the injustice that results from the conviction of an innocent person has long been at the core of our criminal justice system. (footnote omitted; citing numerous authorities)); id. at 326 ( paramount importance of avoiding the injustice of executing one who is actually innocent ); id. at 326 n.42 ( fundamental injustice would result from the erroneous conviction and execution of an innocent person ); Jacobs v. Scott, 513 U.S. 1067, 1067 70 (1995) (Stevens, J., dissenting from denial of stay, joined by Ginsburg, J.) (prosecutor admittedly made inconsistent arguments at petitioner’s trial and at his sister’s trial about whether petitioner or sister actually committed the capital murder, and [i]f prosecutor’s statements at the [sister’s] trial were correct, then [petitioner] is innocent of capital murder ; case accordingly presents self-evident and deeply troubling injustice warranting stay of execution to consider petitioner’s claims); Withrow v. Williams, 507 U.S. 680, 700 (1993) (O’Connor, J., concurring in part and dissenting in part)

(discussing the ultimate equity on the prisoner’s side a sufficient showing of actual innocence ); id. at 718 (Scalia, J., concurring in part and dissenting in part) ( The most significant countervailing equitable factor [on which habeas corpus petitioner may seek to rely is] possibility that the assigned error produced the conviction of an innocent person. ).
II. Nevertheless, the claims presented in the attached petition satisfy 28 U.S.C. §2244(b)(2)(B).
To seek relief in federal habeas proceedings through a successor petition under 28 U.S.C. § 2254, the petitioner must first seek authorization from the applicable United States Court of
Appeals. 28 U.S.C. § 2244(b)(3)(A). In the motion seeking authorization, the movant must show that (1) the evidence presented is new, id. § 2244(b)(2), (2) the new facts could not have been
discovered through due diligence, id. § 2244(b)(2)(B)(i), (3) the new facts support a constitutional error, id. § 2244(b)(2)(B)(ii), and (4) the facts establish, by clear and convincing
evidence, that no reasonable juror would convict the movant or sentence him to death absent the constitutional error, id.
6

A. Mr. Masterson presents new evidence that the State’s medical examiner and expert witness, Paul Shrode, falsified his credentials and committed fraud against the State, the courts, and Mr. Masterson at trial; qualified experts that have reviewed Dr. Shrode’s testimony and the autopsy report now opine that the decedent’s death was not a homicide and that Mr. Shrode’s
testimony, which was the only expert testimony presented to rebut Mr. Masterson’s evidence of an accidental death, was scientifically unsupportable.

1. Mr. Shrode lied on his job application to become an Assistant Medical Examiner, was unqualified to perform the decedent’s autopsy, lied under oath previously and subsequently, and botched numerous autopsies.

Mr. Shrode is a prolific, habitual liar who does not care about oaths or the penalties of perjury. His courtroom lies and incorrect conclusions started before he moved to Texas. Before
Texas, Mr. Shrode was a medical examiner in Ohio. There, he botched another autopsy in a capital case with eerily similar facts. In 1997, in Ohio v. Nields, Mr. Shrode provided the critical
testimony that raised a murder to a capital murder. For Mr. Nields’ clemency application filed in 2010, a new, qualified doctor, Robert Pfalzgraf, reviewed Mr. Shrode’s work and conclusions.

The new doctor found serious flaws in Mr. Shrode’s work. Specifically, Mr. Shrode gave false testimony in five crucial aspects:
1. Mr. Shrode opined that injuries on the decedent’s head were inflicted between fifteen minutes and six hours before death. This opinion allowed the State to argue that Mr. Nields viciously attacked the decedent with premeditation, fitting its theory for capital murder. A qualified review of Mr. Shrode’s medical conclusion, however, showed that it was inaccurate. Bruising can only be estimated by the healing process. The decedent had no signs of healing, so there was no evidence that the injuries were inflicted any period of time before death.
2. In another effort to age injuries on the decedent’s head, Mr. Shrode relied on rigor mortis to date bruising. But Dr. Pfalzgraf corrected this fundamental misunderstanding of medical science. Rigor mortis has no relevance to dating trauma or bruises.
3. Disturbingly similar to his testimony in Mr. Masterson’s case, Mr. Shrode also opined that the decedent’s injuries indicated that she sustained a concussion and lost
consciousness before death. The State’s argument based on this evidence was that Mr.Nields must have intended to kill the victim because she was unconscious before she was strangled to death. Dr. Pfalzgraf rectified Mr. Shrode’s erroneous conclusion. Injuries cannot indicate a loss of consciousness; Mr. Shrode had no scientific basis to opine that the decedent lost consciousness before dying from the strangulation.
4. Mr. Shrode testified that the lack of DNA evidence under the decedent’s fingernails indicates that she lost consciousness before dying from strangulation. Again, Dr. Pfalzgraf corrected this testimony. He informed the parole board that it is actually rare for fingernails to collect evidence during a crime.
5. Finally, Mr. Shrode used the presence of petechial to scientifically determine the time of death. Dr. Pfalzgraf corrected this fundamental medical error. Petechial is not relevant to
a time-of-death determination. Ex. 10.1

Mr. Shrode’s work was the basis for the State’s theory that Mr. Nields killed the decedent with premeditation and prolonged viciousness. The State of Ohio also relied on Mr.
Shrode’s false testimony to argue to the jury that Mr. Nields continued to choke the decedent after she lost consciousness to ensure that she was dead, just as the State of Texas did in Mr. Masterson’s case. The Ohio parole board recommended clemency for Mr. Nields based primarily on Mr. Shrode’s scientifically flawed testimony.

And Mr. Shrode’s lies and biased, shoddy work did not end when he moved to Texas. His first job in Texas was with the Harris County Medical Examiner’s Office. He applied to that office on May 27, 1997. In his application, Mr. Shrode lied about his qualifications. Ex. 6. He claimed to have a paralegal degree from Southwest Texas State University. But he did not have a paralegal degree. Mr. Shrode only attended the University for one semester in 1979 and was enrolled in political science courses. He did not earn any degree from Southwest Texas State University.

Mr. Shrode’s lies continued afterward, becoming more brazen and distinguished. On his application for employment with the El Paso County Medical Examiner’s Office, Mr. Shrode improved his degree significantly, declaring that he had obtained a graduate law degree from Southwest Texas State University. Ex. 12. And Mr. Shrode had no qualms about taking a sworn oath in a court of law recounting this lie. In 2007, he testified that he had earned a degree in law from the graduate school of political science at Southwest Texas State University. He swore that he attended one year of law school to earn the degree but that the graduate political science program conferred his degree because the law school did not become accredited. Ex. 9 at 217.

Even after being challenged about this absurdity, he unequivocally stated that he had a law degree from the graduate school of political science. Id. at 218. He then incredibly asserted falsely that he was a member of the State Bar of Texas from 1979 to 1983. Id. at 219-220. Mr. Shrode lied under oath and lied on his employment applications. He attended Southwest Texas State University for one semester in 1979. He took only political science courses. He obviously did not earn a degree not a paralegal degree, not a political-science degree, not a law degree, and certainly not a graduate law degree. Southwest Texas State University does not confer those degrees for one semester of coursework.

Eventually, Mr. Shrode’s lack of qualification and lies caught up with him. After Mr. Masterson’s trial, the Harris County Medical Examiner’s Office reprimanded Mr. Shrode for his defective and improper work. Ex. 8. Specifically, Mr. Shrode incorrectly classified a death as a homicide when it was a drug overdose. But Mr. Shrode’s work did not improve afterward. In 2003, the Harris County Medical Examiner’s Office again reprimanded Mr. Shrode. In that reprimand, the Office noted that Mr. Shrode had an inordinately large number of pending cases (103 cases) [and] uncompleted (classified and pending) autopsy reports (178 cases currently in the medical records area). The Office did not assign new cases to Mr. Shrode for three days for him to diminish these backlogs. Mr. Shrode was also required to create a log of his work during those days for his superiors to review. Ex. 7. Then, in 2007, Mr. Shrode was partially exposed as a fraud during a jury trial regarding Child Protective Services and parents of a protected child. There, attorneys revealed that Mr. Shrode had lied on his employment applications, as discussed above. Ex. 9. Mr. Shrode’s charade culminated in 2010. That year, the Ohio governor commuted Mr. Nields’ death sentence to a life sentence based on Mr. Shrode’s incorrect and biased work in the case. Ex. 11. In the same year, an El Paso County judge publicly declared that he had lost confidence in Dr. Shrode. He predicted more revelations: As time goes on, I believe a lot more is going to come to light regarding him. Ex. 12. After much pressure from politicians and others, the El Paso Chief Medical Examiner’s Office finally fired Mr. Shrode. Ex. 13.

Mr. Masterson remains ignorant of many of the facts related to Mr. Shrode’s fraud on the States of Texas and Ohio, instances of his botched autopsy reports and findings, instances of his false testimony, and the circumstances surrounding his censure by the courts and the State of Texas. The State never notified Mr. Masterson when it learned it had presented patently unreliable expert testimony at his trial, by a patently unreliable expert. It has not turned over any discovery for Mr. Masterson to rely upon for exculpatory and impeachment purposes. Instead, the State kept all information regarding Mr. Shrode’s fraud hidden from Mr. Masterson, despite that Mr. Masterson cannot independently access much of this information.

Instead of informing Mr. Masterson that he was convicted on the basis of fraudulent expert testimony, the State attempted to preemptively avoid any legal challenges based on Mr. Shrode’s dishonesty by arguing in its Answer and Motion for Summary Judgment in the initial federal proceedings that Dr. Shrode opined that the crime was intentional rather than accidental because Honeycutt would have survived autoerotic asphyxiation.

Dr. Shrode’s conclusion was premised more on logic than medical opinion[]. Respondent Thaler’s Answer and Motion for Summary Judgment with Brief in Support at p. 18, Masterson v. Thaler, Case No. 4:09-cv-02731, ECF No. 5 (Oct. 12, 2010). The State’s attempt to avoid this issue by disclaiming Mr. Shrode’s expert status at Mr. Masterson’s trial should not prevail. Dr. Shrode provided the jury with an expert pathological opinion, under oath, that Mr. Masterson intentionally killed Mr. Honeycutt based on a botched autopsy and false, scientifically unsupportable conclusions. The State is now seeking to execute Mr. Masterson without any court of law reviewing the validity of his conviction and sentence in light of Mr. Shrode’s fraud on the court. But Mr. Masterson’s execution under these circumstances would work a manifest injustice against Mr. Masterson and
the public.

Mr. Masterson is simultaneously requesting discovery from the State to fully develop the
claims he presents in his attached petition.

2. Two qualified pathologists reviewed the decedent’s autopsy and have given expert opinions that the decedent’s manner of death was not homicide.

Mr. Shrode committed fraud to get his Assistant Medical Examiner job. He had to falsify his qualifications because he is simply not competent to conduct an autopsy. Mr. Shrode grievously mishandled Mr. Honeycutt’s autopsy and gave scientifically erroneous testimony in Mr. Honeycutt’s case. He mishandled other autopsies as well.

Mr. Shrode’s testimony was the only expert evidence that Mr. Honeycutt’s cause of death was a homicide. As every pathologist to look at the autopsy report since Mr. Masterson’s conviction and sentence has pointed out, Mr. Shrode’s opinion was incorrect because he did not understand elementary medical concepts. Instead, he simply conformed his opinion to the prosecution’s theory of the case and testified falsely.

Mr. Shrode opined that Mr. Honeycutt’s death was a homicide and that the cause of death was external neck compression, which is medical jargon for strangulation. He noted that Mr. Honeycutt had a critical artery with more than 90% blockage, but discounted that as a contributor to the death, testifying that his opinion, based solely on his autopsy findings, was that Mr. Honeycutt was intentionally murdered. In 2015, Mr. Masterson’s qualified medical expert reviewed Mr. Shrode’s work and exposed his errors. Ex. 15. In addition, Mr. Masterson’s other medical expert, Dr. Paul B. Radelat, opined that Mr. Honeycutt’s autopsy results were in fact consistent with Mr. Masterson’s trial testimony. Ex. 14. Dr. Christena Roberts directly contradicts Mr. Shrode’s findings. As an initial matter, she notes that Mr. Shrode did not properly review his work and that he did not follow all necessary protocols to allow his work to be reviewed. Perhaps this occurred because Mr. Shrode had a significant backlog due to his lack of qualification. Perhaps it occurred because he just did not know how to competently prepare autopsies. Nevertheless, it is just another example of Mr. Shrode’s poor work product. Dr. Roberts detailed Mr. Shrode’s errors, revealing how an innocent man was convicted.

First, Dr. Roberts noted that the decedent was found with his face lower than the rest of his body. She correctly identified that the petechial hemorrhages on Mr. Honeycutt’s face are often caused by increased pressure on blood vessels caused by gravity after death. Dr. Roberts noted that she had personally seen cases with much worse hemorrhaging just from the gravity of a face being lower than the rest of the body. Mr. Shrode’s conclusion that the petechial hemorrhages indicated strangulation were, therefore, scientifically unfounded.

Second, Dr. Roberts exposed Mr. Shrode’s false testimony regarding defensive wounds on the decedent. She reviewed the autopsy photos, finding one that showed the left hand. Mr. Shrode swore that he noted defensive wounds on this hand. Dr. Roberts correctly noted that the hand had no defensive wounds. And even if the decedent had bruises that were undetectable in the photos, scientific evidence cannot date them without histological sections, which Mr. Shrode did not perform.

Third, Dr. Roberts exposed Mr. Shrode’s incorrect assumption that the decedent had suffered blunt force trauma. Mr. Shrode emphasized an abrasion over the decedent’s right eye and three abrasions on his upper right buttock. But these superficial marks have no medical or forensic significance despite Mr. Shrode’s testimony. The mark above Mr. Honeycutt’s eye is consistent with a common rug burn easily explained by his face resting on the floor postmortem. And the linear, superficial scratches on Mr. Honeycutt’s buttocks are consistent with consensual sex as Mr. Masterson described.

Most importantly, Dr. Roberts explained why Mr. Shrode’s expert opinion that Mr. Honeycutt died from external neck compression was incorrect. She started by noting that there is no documentation in the autopsy report of evidence of external neck compression.

She destroyed the basis for Mr. Shrode’s erroneous findings: [H]emorrhagic sclera (white part of the eye) and congestion of the conjunctivae lining the eye (bulbar) and the eyelids (palpebral). There is no documentation of petechial hemorrhages of the conjunctivae. There is no description of distribution or size of the petechiae. There is no description of confluence of petechiae (larger pools). The only place this is listed is under pathologic findings simply as a diagnosis of bilateral bulbar and palpebral petechial hemorrhages.

It should be noted that petechial hemorrhages when found with other findings in the neck are supportive of a diagnosis of strangulation and are not diagnostic of strangulation. Petechial hemorrhages are caused by increased pressure in the vessels in the eyes which results in rupture of the tiny capillaries. This can occur in various types of manual strangulation (see discussion below) but can also be seen in natural disease processes such as fatal heart disease. Petechial hemorrhages can be found in positional asphyxia (upside down position) secondary to pooling of the blood, increased pressure and rupture of the vessels.

Hemorrhages in the eyes can also be seen when the head is in a lower position than the body after death (or when just face down) and the blood pools in the facial tissues by gravity. The vessels eventually rupture causing petechial hemorrhages that may become large. This is called dependent lividity as would be expected with the body position in this case. It is quite easy to find textbook references in Forensic literature showing extensive facial, periorbital and conjunctival hemorrhages in people who die of heart disease and are found in the prone position (face down).

As noted above, review of the photographs from the court records clearly show congestion that is consistent with dependent lividity. There are a few scattered large petechial hemorrhages that could be from the extreme dependent position of the body or could be from antemortem increased pressure. There is no scientific reliable way to separate the two as petechial hemorrhages are a non-specific finding that only indicates increased pressure with rupture of the tiny vessels and pooling. In addition, there were early decompositional changes of the face and some of the red discoloration in the eyes would be from decomposition. These changes also can’t be reliably separated from dependent lividity. Ex. 15 (emphasis in original). And to drive home Mr. Shrode’s egregious errors, Dr. Roberts noted that even Mr. Shrode admitted that Mr. Honeycutt’s body showed no physical signs of  strangulation.

The body had no external bruising on the neck, and it had no internal evidence of trauma. The lack of injuries on the inside or outside of Mr. Honeycutt’s neck should have ruled out strangulation, but Mr. Shrode was either unqualified to know or purposefully lied to fit the prosecution’s theory. Specifically, Dr. Roberts explained that strangulation leaves discoloration of the soft tissues inside the neck, which is not present here. Without this discoloration, there could be no hemorrhaging in the anterior neck structures. So Mr. Honeycutt was not strangled to death, as Mr. Shrode expertly opined. Furthermore, other normally present physical signs of strangulation were missing. The sensitive hyoid bone and thyroid cartilage were intact and had no fractures as qualified medical professionals would normally expect to see in strangulation deaths. There was not even blood around the structures. Critically, the autopsy did not note any petechial of the larynx or trachea. And finally, Mr. Honeycutt’s neck had no signs of defensive wounds or a struggle as normally seen in manual-strangulation cases. Dr. Roberts would expect to see these scratches in a case of manual strangulation.

Dr. Robert specifically rebutted Mr. Shrode’s testimony that Mr. Honeycutt must have died during manual strangulation, and once against highlighted Mr. Shrode’s clinically unacceptable practices: Dr. Shrode testified that the victim could not have survived the external neck compression. Victims often lose consciousness from manual strangulation and suffer anoxic brain injury and die at a later time. He states during his testimony that this was not present at autopsy as evidenced by no cerebral edema. The autopsy report has a blank space where the brain weight should have been documented so it is unknown is [sic] the brain was swollen and heavier than it should have been. The standard of Forensic Pathology would be to submit sections of brain for microscopic examination and look for ischemic changes. As no microscopic sections were taken of the brain Dr. Shrode or another pathologist can’t rule out the presence of schemic changes. As no microscopic sections were taken of the brain and no brain weight was recorded, no independent evaluation can be made. Ex. 15. Mr. Shrode’s disregard for this important procedure ensures that no other professional can determine if the heart muscle had signs of being ischemic, medical jargon for a heart attack.

Nonetheless, after reviewing all available evidence, Dr. Roberts opined that Mr. Honeycutt died of a heart attack not strangulation. This expert opinion supports Mr. Masterson’s testimony that Mr. Honeycutt died accidentally after the two engaged in sexual asphyxiation.

Dr. Roberts’ review of the available evidence showed the most critical problem with the State’s case: there is no evidence of this neck compression at autopsy but only relayed by the defendant. She gave her qualified, expert opinion:

There is no independent scientific evidence of external neck compression or any other type of manual strangulation in the autopsy of Darrin Honeycutt. There is no external bruising of the neck, hemorrhage in the strap muscles or soft tissues of the neck or fractures of neck structures. The petechial hemorrhages that were listed as a diagnosis in the autopsy report and testified to as evidence of external neck compression are non-specific. The hemorrhages in the eyes are simply from increased pressure and rupture of tiny capillaries. This could have occurred from a fatal cardiac event, antemortem compression of the neck or dependent lividity from blood pooling after death. There is no accurate scientific method to distinguish between them. In addition, there were early decompositional changes of the face with some degree of red discoloration further complicating interpretation.

Even in the event that one could separate out antemortem petechial hemorrhages they are supportive of but not diagnostic of a manual compression event. The pathologist appears to have relied on the confession and not any independent scientific observation.

In his trial Richard Masterson testified that during a sexual act Darrin Honeycutt asked him to perform erotic asphyxiation. During this act his body weight was pressing on the torso of the decedent and when they both fell to the floor they were in a dependent position. The decreased oxygenation could have created stress on the heart. Darrin Honeycutt had severe coronary artery disease which easily could have triggered an ischemic event with resultant fatal ventricular arrhythmia and death following the increased stress on the heart.

The pathologist in this case inaccurately ruled out that Darrin Honeycutt died from an acute ischemic event of the heart followed by a lethal arrhythmia based on the absence of hemorrhaging in the heart muscle. As noted above there would be no visual findings in the heart tissue if one died immediately from that event. Ex. 15.

In a nutshell, Mr. Shrode’s lack of qualifications and professionalism led him to botch Mr. Honeycutt’s autopsy. He missed obvious evidence that Mr. Honeycutt died of a heart attack brought on accidentally through a combination of consensual sex with Mr. Masterson involving sexual asphyxiation and pre-existing, severe heart disease. Mr. Shrode did not understand elementary medical principles of cardiology. His fundamental lack of knowledge led him to simply adopt the State’s theory instead of relying on medical science. Instead of acknowledging his lack of qualifications, and admitting that he could not give a qualified expert opinion on the cause of death questions asked of him on the witness stand, Mr. Shrode simply provided an erroneous opinion that bolstered the State’s case and rebutted the defense’s case. He had no scientific basis for his opinion.

3. Scientific evidence not available at the time of Mr. Masterson’s trial gives the biological foundation for his suicidal behavior during his confession to police.

In 2010, the National Institute of Alcohol Abuse and Alcoholism first recognized the need for further research in the scientific discipline of neuropsychology and stimulant withdrawal. As a result, it funded the first Consortium on the Neurobiology of Adolescent Drinking in Adulthood. On November 24, 2015, Mr. Masterson retained an expert neurobiologist who is part of that consortium Dr. Wilkie A. Wilson. Ex. 16.

Dr. Wilson interviewed Mr. Masterson and reviewed the trial transcripts and expert reports. He noted the importance of one particular study that demonstrated a remarkable correlation between the symptoms of major depressive disorder and the effects of withdrawal from stimulants. The biological effects of stimulant withdrawal drastically decrease dopamine levels in the rain. Dopamine is the pleasure neurotransmitter in the brain. So without dopamine, Mr. Masterson was severely depressed. Dr. Wilson noted that these major depressive symptoms often include suicidal ideation. Ex. 16. And that is exactly what happened to Mr. Masterson when he was incarcerated in Florida.

After Dr. Wilson evaluated Mr. Masterson and reviewed all relevant scientific literature and case documents, he formed an expert opinion: Mr. Masterson was suicidal when Officer Null visited him in the Florida jail. Mr. Masterson attempted to commit suicide by confession. Ex. 16. After Officer Null interrogated Mr. Masterson off the record, Mr. Masterson gave a rehearsed confession that fit the evidence and statutory aggravator for the death penalty perfectly. Of course, everyone believed his false confession and did not test the hard, scientific evidence that could have exonerated him.

And how do we know that Mr. Masterson falsely confessed? We know he falsely confessed the way people often discover undeniable false confessions: the scientific evidence exonerates him. Mr. Honeycutt’s death was not a homicide. He did not die from strangulation. His death was an accidental one. Mr. Honeycutt died from a heart attack after putting too much stress on his severely diseased heart.

Mr. Masterson is an innocent man.

4. Mr. Masterson’s evidence is new.
Mr. Masterson did not present these factual bases or arguments in his previous federal habeas petition. They are, therefore, new.

B. The factual predicate of Mr. Masterson’s claims for relief could not have been discovered previously through the exercise of due diligence because the State affirmatively withheld, and failed to honor its duty to disclose, evidence that a material expert witness at trial was unqualified and gave scientifically unsupported expert testimony.
1. The State affirmatively obfuscated Mr. Shrode’s fraud.
As discussed in the attached Petition, the State suppressed evidence of Mr. Shrode’s fraud before trial, at trial, and ever since. Mr. Shrode was a state actor for Brady purposes, and he was part of the investigative arm of the Harris County District Attorney’s Office for Napue purposes. The State had constitutional obligations to notify Mr. Masterson of Mr. Shrode’s lack of qualifications, lack of required education, and prior perjury and false statements. It did not do so.

And the State compounded this error after Mr. Shrode’s lies and shoddy work were discovered in other cases. It did not correct Mr. Shrode’s false testimony or tell Mr. Masterson about his long and distinguished career full of lies. Instead, it tried to minimize Mr. Shrode’s role in the trial, as if his expert status did not carry any weight with the jury.

The State did not acknowledge the central role of the only witness to present evidence that scientifically declared Mr. Honeycutt’s death a homicide. Mr. Shrode was certainly a central witness in Mr. Masterson’s trial, and the State had a duty to inform Mr. Masterson of the truth about Mr. Shrode. It never did and still has not.

2. The scientific evidence about Mr. Masterson’s brain chemistry was not available at the time of his trial.
As detailed in Dr. Wilkie A. Wilson’s report, the scientific evidence about stimulant withdrawal and suicidal, major depression was not available at the time of Mr. Masterson’s trial. Indeed, it was not widely available until after 2010, years after Mr. Masterson’s trial. Ex. 16.

This new neuropsychological evidence explains the only other evidence suggesting that Mr. Honeycutt’s death was a homicide: Mr. Masterson’s false confession. As explained in Dr. Wilson’s report, new scientific evidence demonstrates that Mr. Masterson gave a false confession because of a rapid and drastic decrease in his dopamine levels due to sudden
stimulant withdrawal after his incarceration. This neurobiological shift caused Mr. Masterson to become severely depressed and suicidal.

3. Mr. Masterson’s habeas attorney exercised reasonable diligence investigating Mr. Shrode’s fraud.

The Harris County District Attorney’s Office famously has an open-file policy on all cases. Criminal defense attorneys rely on this open-file policy, trusting that the State has made all exculpatory evidence available. But in this case, the State kept the evidence of Mr. Shrode’s fraud secreted. Upon information and belief, Mr. Shrode still has not revealed the full extent of his misconduct to the general public, so Mr. Masterson has no choice but to rely upon discovery from the State to substantiate his Brady and Napue claims.

The first public evidence of Mr. Shrode’s fraud surfaced where Mr. Shrode first worked as a medical examiner, Ohio. There, in a death-row clemency case, an independent medical expert cast doubt on Mr. Shrode’s forensic conclusions only in part. The expert agreed with Mr. Shrode’s work concerning the cause and manner of death. He only disagreed with Mr. Shrode’s work as it related to statutory aggravators for the death penalty. The clemency board recommended clemency, and the Governor granted it. The other public information about Mr. Shrode arose in El Paso, not in the Southern District of Texas where Mr. Masterson’s case and attorneys were located. And again, the State did not make public the full extent of Mr. Shrode’s fraud and mistakes. Only piecemeal information was available.

Congress only required reasonable diligence to discover new evidence when it enacted the AEDPA. Mr. Masterson’s previous counsel were reasonably diligent when investigating Mr. Shrode. He raised issues related to Mr. Shrode’s faulty testimony and requested an evidentiary hearing. The State, however, continued to obfuscate the factual predicates necessary for Mr. Masterson’s counsel to discover Mr. Shrode’s fraud and the full extent of his errors in this case.

It moved to summarily dismiss all attempts counsel made to litigate the matter and discover new evidence.

Because the State secreted Mr. Shrode’s fraud and lies, it kept Mr. Masterson from learning about it. In these circumstances, Mr. Masterson’s attorneys exercised due diligence. Cf. In re Swearingen, 556 F.3d 344, 348-49 (5th Cir. 2009) (State’s interactions with its witnesses could not have been discovered with due diligence because they were internal conversations).

Most importantly, the State continues to withhold evidence of Mr. Shrode’s misconduct, and Mr. Masterson still does not know the extent of the facts surrounding Mr. Shrode’s issues.

As part of his attached habeas petition, Mr. Masterson will request leave to conduct discovery to fully develop the factual predicates known only to state actors at this time.

C. These new factual predicates establish serious constitutional violations underlying Mr. Masterson’s conviction and death sentence.

Mr. Masterson incorporates by express reference the constitutional claims for relief raised in the attached petition for habeas corpus relief, and in the interests of efficiency will not fully argue them herein.

1. These newly discovered facts establish serious prosecutorial misconduct and the imminent execution of an innocent man.
a. The State violated, and continues to violate, Mr. Masterson’s Fourteenth Amendment due-process right to discovery of exculpatory evidence because it has failed to disclose Mr. Shrode’s repeated fraud.

As discussed in the attached petition, the State has violated Mr. Masterson’s due-process right to Brady evidence since before trial and continues to violate it now. It suppressed evidence that Mr. Shrode lied on his employment application, lied to qualify as an expert witness in many matters, and performed autopsies in a sloppy, incorrect manner. Most importantly, Mr. Shrode botched the autopsy in Mr. Masterson’s case. And the State still has not disclosed any evidence about Mr. Shrode’s fraud, lies, and mistakes.

b. The State violated Mr. Masterson’s Fourteenth Amendment due process right to not be convicted with false testimony when it failed to correct Mr. Shrode’s fraudulent testimony.

Relatedly, Mr. Shrode gave false and misleading testimony in Mr. Masterson’s trial. The State did not correct that testimony at trial, and it still has not corrected it. This failure violates Mr. Masterson’s due-process rights as well.

c. The State is violating Mr. Masterson’s Eighth Amendment right to not be exposed to cruel and unusual punishment because it intends to execute him despite his innocence.

In Herrera v. Collins, supra, the Supreme Court noted that petitioners who make strong showings of actual innocence enjoy the constitutional right to not be executed.

Mr. Masterson makes a strong, compelling showing that he is actually innocent. It, therefore, would be cruel and unusual to execute him.

d. The State is violating Mr. Masterson’s Fourteenth Amendment substantive-due-process right to not be executed because he is innocent.

In Herrera, the Supreme Court also noted that substantive-due-process forbids states from executing the innocent. Because Mr. Masterson has made a compelling showing of innocence, the State cannot execute him without violating his Fourteenth Amendment rights.

2. Mr. Masterson need only allege a colorable violation of his constitutional rights.

This Court’s role at this juncture is limited to reviewing Mr. Masterson’s attached petition to determine whether he has pled a prima facie case for relief. 28 U.S.C. 2244(b)(3)(C);
In re Sparks, 657 F.3d 258, 262 & n.3 (5th Cir. 2011) (per curiam). Therefore, this Court’s
review does not resolve whether the attached petition actually satisfies the successive-petition standard or whether Mr. Masterson is ultimately entitled to relief. See id.

D. The facts underlying Mr. Masterson’s claims for relief, viewed in light of the evidence as a whole, are sufficient to establish by clear and convincing evidence that, but for the State’s violation of his Fifth, Sixth, Eighth and Fourteenth Amendment rights, no reasonable factfinder would have found Mr. Masterson guilty of capital murder or sentenced him to death.

1. Mr. Masterson’s newly discovered facts show that he must be factually innocent of any murder, including capital murder, because Mr. Shrode’s testimony was the only evidence of a homicide.

As detailed above, the State’s expert witness who performed Mr. Honeycutt’s autopsy was a fraud; he botched the autopsy, and he fabricated testimony to bolster the State’s case without having a valid scientific basis for that testimony. Mr. Masterson retained two medical experts who exposed Mr. Shrode’s mistakes. A quick chart of the most critical mistakes shows just how harmful the errors were:

Mr. Shrode’s Erroneous Findings
How the Mistakes Bolstered the State’s Theory
Dr. Robert’s Corrections
Emphasized petechial hemorrhaging in face.
Argued the death was a homicide caused by external strangulation.
Cannot determine when the petechial hemorrhaging occurred due to Shrode’s sloppy work. Likely caused by pools of blood in face because of body’s condition.
Easily could have happened after death. Not probative of external strangulation.
Testified about a defensive wound on Mr. Honeycutt’s hand.
The defensive wound was caused by Mr. Honeycutt fighting back.
The one photograph that should have shown the defensive wound did not show any wound.
Testified about an abrasion above Mr. Honeycutt’s eye.
Wounds from a struggle. The abrasion is a common rug-burn caused by the face resting on the ground after death.
Testified about scratches on Mr. Honeycutt’s upper right buttock.
Wounds from a struggle. Perfectly consistent with consensual sex.
The cause of death was external strangulation.
The only scientific evidence at trial suggesting a homicide.
See below.
The cause of death was not a heart attack.
Scientific evidence refuting the defense theory and defeating any innocence claim.
See below.

Mr. Shrode’s biggest and most prejudicial error was his cause-of-death determination.
This blunder hid the uncomfortable truth now facing this Court: Mr. Honeycutt’s death was not a homicide. Mr. Honeycutt died from a heart attack.

To reach his incorrect conclusion, Mr. Shrode overemphasized petechial hemorrhages that he observed. He essentially ended his evaluation after that point despite scientific evidence clearly establishing that petechial hemorrhages are only supportive of strangulation if combined with other evidence of neck injury, which was not found in Mr. Honeycutt’s autopsy. But that was only the beginning of his errors. Mr. Shrode also did not understand that these hemorrhages often occur after death when the body is situated face down, like Mr. Honeycutt’s was found. So not only did Mr. Shrode overemphasize their presence, he did not recognize that their presence had no forensic significance whatsoever. Readily available textbooks show heart-attack victims with facial petechial hemorrhages when their bodies rest head down.

Furthermore, Mr. Shrode documented that Mr. Honeycutt’s neck had no injuries at all as would be expected in a strangulation victim. Internally, Mr. Honeycutt’s neck showed no discoloration, which means that he had no hemorrhages in his anterior neck structures. This soft tissue would have hemorrhaged after a violent strangulation. Additionally, Mr. Honeycutt’s fragile hyoid bone and thyroid cartilage were unharmed. They did not even have blood around them. Qualified medical professionals often see harm to these sensitive areas after a strangulation. And externally, Mr. Honeycutt’s neck had no bruising or scratches. Normally, strangulation victims attempt to remove the hands or arm closing their airways. These efforts usually leave scratches on the victims’ necks. Mr. Honeycutt did not have these defensive wounds.

Finally, and most importantly for these constitutional claims, Mr. Shrode erroneously discounted the true manner and cause of death: a natural death from a heart attack. His reason to discount the truth boils down to his lack of knowledge about basic principles of cardiology. Mr. Shrode discounted a heart attack because Mr. Honeycutt’s heart muscle showed no signs of hemorrhaging. This reasoning is patently and completely clinically unsound. When people die suddenly from a heart attack, their hearts do not show visual signs of injury. Because Mr. Shrode did not follow proper procedure and collect microscopic samples of Mr. Honeycutt’s heart, neither he nor anyone else could test to determine definitively whether Mr. Honeycutt suffered a heart attack.

Nevertheless, the weight of the available scientific medical evidence shows the truth about Mr. Honeycutt’s death. Mr. Honeycutt was a seriously ill man before his death. He suffered from AIDS and took the harsh medicines necessary to combat that terrible virus. Those harsh medicines have serious adverse side effects that impact the liver. In addition to those awful ailments, Mr. Honeycutt had severe coronary artery disease. His heart was significantly weakened, and his main artery was already over 90% closed by what is commonly called ‘The Widow Maker. And Mr. Honeycutt did not maintain a calm lifestyle to protect his failing health. Instead, he regularly went to bars, drank alcohol, and stayed out until establishments closed in the early morning hours. His close friends warned him about his lifestyle, but he did not listen.

In the early morning hours of January 26, 2001, Mr. Honeycutt pushed his ailing body to extremes for physical pleasure. He drank alcohol while taking harsh medications that adversely affected his liver. He stayed at a bar until it closed around 2:00 AM. He took a stranger home for near-anonymous sex. And to further heighten his sexual pleasure, he asked Mr. Masterson to perform a risky sexual practice known as sexual asphyxiation. This practice compresses the cardioid arteries on both sides of the neck. These arteries carry the oxygen-rich blood from the heart to the brain. When performed, the sudden deprivation of oxygen and the accumulation of carbon dioxide creates giddiness, lightheadness, and pleasure. Author George Shuman described the resulting pleasure as a lucid, semi-hallucinogenic state called hypoxia. Combined with orgasm, the rush is said to be no less powerful than cocaine, and highly addictive. Mr. Honeycutt’s already failing health simply could not handle that extra stress. The lack of oxygen, abundance of carbon dioxide, added stress, and weight of Mr. Masterson’s body was finally too much for his severely diseased heart. Mr. Honeycutt had a fatal heart attack. He did not die from strangulation. Mr. Masterson thought that he had accidentally killed Mr. Honeycutt. In his cocaine- and alcohol-induced stupidity, he made the house look like it had been burglarized. Because others had seen him with Mr. Honeycutt, he mistakenly thought that no one would think he was stupid enough to then kill and rob him. Then he understood that the police would not believe his story due to his history, and feared that his homosexual activity would be badly received by investigating officers, the courts and the public. Despite the truth, Mr. Masterson believed he would be convicted. So he fled and continued his drug binge. The police finally caught him in Florida.

Florida police incarcerated Mr. Masterson as soon as they found him. That incarceration ended Mr. Masterson’s drug binge, causing him to descend into extreme, suicidal depression.

Mr. Masterson began using drugs as a young teenager. He had run away from home to escape horrific physical and sexual abuse at the hands of his father and older brother. After he left, no one came to look for him; he was on his own. So he turned to the coping mechanisms that teenage runaways often use to survive: drugs and prostitution. His drug use quickly became drug addiction. And a drug addiction during adolescence severely damages brain development during one of the most critical times for that development.

At the time of Mr. Honeycutt’s death and Mr. Masterson’s subsequent arrest, Mr. Masterson was shooting cocaine, smoking crack cocaine, shooting methamphetamine, and drinking alcohol on a daily basis. He had been abusing those drugs every day for at least a year.

In fact, Mr. Masterson smoked so much crack for so long that he started having seizures. When Mr. Masterson was arrested and incarcerated, he no longer received his daily drugs, causing him to experience horrific withdrawals. Unfortunately, neuropsychological research did not completely explain the significance of this withdrawal until after Mr. Masterson’s trial and sentencing.

This evidence, viewed in light of the evidence presented at trial as a whole, satisfies §2244(b)(2)(B)’s clear and convincing standard.

CONCLUSION

The State’s expert witness and attending medical examiner, Paul Shrode, incorrectly classified the death in this case as a homicide. The State suppressed, and continues to suppress, critical evidence that Mr. Shrode lied on his job application to qualify for his position, consistently performed poorly at the job, repeatedly botched autopsies and cause of death determinations in Texas criminal cases, and ultimately botched Mr. Honeycutt’s autopsy and gave material, false testimony in this case. While the State may have initially been the victim of Mr. Shrode’s fraud, the State also had a duty to investigate their agents’ credentials to ensure their qualifications and the integrity of their life-or-death opinions. The State neglected that duty with regard to Mr. Shrode.

At some point, the State learned the full extent of Mr. Shrode’s misdeeds. But instead of notifying Mr. Masterson and the courts that it had sponsored false testimony in this case, and instead of turning over material, exculpatory evidence related Mr. Shrode’s misdeeds in this and other cases, the State opted to keep Mr. Shrode’s fraud and fraudulent testimony secret, seeking to execute Mr. Masterson before a fair trial not plagued by false expert testimony could be had.

To allow the State to execute Mr. Masterson in these circumstances would work a manifest injustice against Mr. Masterson and the public, both of whom have real interests in avoiding the execution of innocent persons.

Because of the State misconduct in this case and new evidence of Mr. Masterson’s actual innocence, this Court should authorize Mr. Masterson to contest his unconstitutional conviction and sentence in the federal courts.

Respectfully submitted,
etc.

Motion for authorization to file successor petition