IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 96-10012

EARL RUSSELL BEHRINGER, Petitioner-Appellant,

versus

GARY L. JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee.

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

February 5, 1996

Before GARWOOD, HIGGINBOTHAM, and DAVIS, Circuit Judges.

PER CURIAM:

I

Earl Russell Behringer is now scheduled to be executed on

February 15, 1996. We have today in Cause No. 95-10976 denied

Behringer’s application for stay of execution and refused to issue

a certificate of probable cause. Behringer filed his notice of

appeal from the judgment in No. 95-10976 on October 18, 1995. On

December 21, 1995, while his motion for stay of execution pending

appeal and application for certificate of probable cause were

pending before this court, Behringer filed a motion for relief from

judgment and brief in support thereof under Fed. R. Civ. P. 60(b) in the district court. Judge McBryde denied the motion on December

27, 1995, and on January 2, 1996, petitioner filed his notice of

appeal from that order. Behringer also seeks a stay of execution

and a certificate of probable cause in his appeal from the district

court’s denial of relief under Rule 60(b).

II

Behringer’s motion for relief under Rule 60(b) asserted his

actual innocence of the capital offense; that he was denied

effective assistance of counsel at trial when his attorney failed

to introduce the testimony of Jerry Hogue. Jerry Hogue is also on

death row in Texas. Behringer asserts that Hogue will testify that

Scott Rouse, Behringer’s co-defendant, admitted to Hogue that he,

Rouse, killed both the murder victims. The contention is that

although aware of Hogue’s testimony, petitioner’s trial counsel

failed to offer the evidence at trial. Behringer’s counsel in the

habeas proceeding approached Hogue in 1994, but according to

Behringer, Hogue refused to provide sworn statements regarding his

claimed conversations with Rouse. Behringer asserted that on

November 27, 1995, Hogue told his lawyer in a telephone call that

he would cooperate, and on December 12, gave his affidavit to the

effect that Rouse had admitted killing the two murder victims.

Behringer asserts that Hogue “notified Larry Moore, petitioner’s

trial attorney, that Rouse had acknowledged his own guilt of the

double murder.”

2 III

We review denial of relief under 60(b) by an abuse of

discretion standard. See Fackelman v. Bell,

(5th

Cir. 1977).

We begin by noting that petitioner may not add new claims

after the district court has entered final judgment. Briddle v.

Collins,

(5th Cir.) (cert. denied)

(Dec. 11, 1995). Relatedly, a motion raising new claims after

entry of a final judgment is properly viewed as a second federal

petition. Williams v. Whitley,

(5th Cir.

1993).

Accepting the facts stated by Behringer’s petition, Hogue’s

testimony is not newly discovered. Behringer’s counsel interviewed

Hogue in June 1994 regarding Hogue’s conversations with Rouse.

Indisputably, Behringer knew of the factual basis of his present

claim before he filed his amended state habeas application on

October 25, 1994 and before he filed his second state habeas

application on March 9, 1995. Behringer’s first habeas petition

was filed in the district court on May 30, 1995. None of these

state or federal petitions presented the present claim or asserted

that he could not do so because Hogue was not willing to provide an

affidavit.

IV

On these facts, we cannot find that the district court abused

its discretion in denying Rule 60(b) relief. Further, whatever be

the merit of Behringer’s present claims regarding the testimony of

3 Hogue, he must assert them in a newly filed habeas petition after

exhausting his claim in the state courts. We decide nothing today

regarding the merit of this unexhausted claim. The application for

stay of execution and certificate of probable cause in this appeal

are denied. We decline to consolidate the appeal in this case with

the appeal in No. 95-10976.

4