                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
              IN THE UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT                    October 29, 2003

                         _____________________             Charles R. Fulbruge III
                                                                   Clerk
                              No. 03-10352
                         _____________________

                         PABLO MELENDEZ, JR.,

                        Petitioner - Appellant,

                                versus

                      DOUG DRETKE, Director,
              Texas Department of Criminal Justice,
               Correctional Institutions Division,

                        Respondent - Appellee.

_________________________________________________________________

           Appeal from the United States District Court
                for the Northern District of Texas
                   District Cause No. 00-CV-190
_________________________________________________________________

Before HIGGINBOTHAM, DAVIS and PRADO, Circuit Judges.1

PRADO, Circuit Judge.

     Pablo Melendez, Jr., was convicted of capital murder and

sentenced to death.   Melendez seeks a Certificate of

Appealability (COA) to appeal the district court’s denial of

federal habeas relief based on one claim.       After considering that

request, this Court denies a COA.




     1
      Pursuant to 5th Cir. R. 47.5, this Court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5th Cir. R.
47.5.4.

                                   1
                  Background of the Request for COA

       A Texas jury convicted Melendez of capital murder and

assessed a death sentence.    The Texas Court of Criminal Appeals

affirmed the conviction and sentence, and the United States

Supreme Court denied Melendez’s petition for writ of certiorari.

Subsequently, the Court of Criminal Appeals denied Melendez’s

state habeas corpus petition.

       Melendez applied for federal habeas relief on November 9,

2000, and amended his petition on December 22, 2000.    The

district court entered a final judgment denying relief on March

14, 2003, and later denied Melendez’s request for a COA.

Melendez then filed a notice of appeal and asked this Court for a

COA.

                  Background of Melendez’s Offense

       The Court of Criminal Appeals summarized the relevant facts

of the underlying crime in its opinion on direct appeal:

            At the guilt/innocence stage of trial, the State
       presented fifteen witnesses, including testimony from
       the surviving victim, to establish the circumstances
       surrounding the robbery/murder of which [Melendez] was
       convicted. Their testimony, if believed, established
       the following. On the evening of September 1, 1994,
       [Melendez], who was eighteen years old, visited and
       drank beer with a group of friends in the driveway of a
       Fort Worth residence. At approximately 11:30 p.m.,
       [Melendez] stated, in a voice loud enough for most to
       hear, his intention to rob “some mother fucker,” and he
       walked away alone.
            At that same time, in the nearby parking lot of a
       self-service car wash, the two victims in this case had
       parked their pick-up truck parallel to a walk-up pay
       phone. They had been there a number of minutes when

                                  2
     one of them, Tommie Joe Seagraves, noticed [Melendez]
     walking up behind the truck. As Seagraves looked on,
     he warned the truck’s driver, Michael Sanders, of
     [Melendez’s] approach. [Melendez] positioned himself
     about fifteen feet from the driver’s side door.
     Without any warning or even a word being spoken,
     [Melendez] turned and fired one shot into the cab of
     the vehicle, and it struck Seagraves in the neck.
     [Melendez] then announced his first demand that Sanders
     hand over all the money in the truck. As Sanders
     pleaded with [Melendez] not to shoot him, he was
     ordered from the vehicle, and then forced to walk
     toward [Melendez] and hand over the money. Relieved of
     his money, Sanders turned and started back toward the
     truck where Seagraves still sat wounded and unable to
     move. Before he reached the vehicle, [Melendez] fired
     again and struck Sanders in the back. In rapid
     succession, [Melendez] fired three more shots and all
     struck Sanders in either the back or the arm. Sanders
     finally toppled forward through the open driver’s side
     door and came to rest in the floorboard of the truck
     with his head resting against Seagraves’ leg. As
     Sanders lay dying, [Melendez] approached, reached
     through the cab with the gun in his hand, placed the
     muzzle next to Seagraves’ forehead, and pulled the
     trigger. Nothing happened. The gun was empty, so
     [Melendez] simply turned and walked back in the
     direction he had come. In the end, Seagraves received
     two bullet wounds; the initial wound when [Melendez]
     first approached and a second wound received from a
     bullet that had passed through the decedent and struck
     Seagraves’ arm. Sanders was shot four times and died
     within minutes.

Melendez v. Tex., No. 72,420 slip opinion at 2-3 (Tex. Crim. App.

Oct. 7, 1998) (not designated for publication).

     Shortly after Melendez’s trial, Sanders’s mother, Gracie

Jett, provided Melendez’s attorneys with information that a man

named Jeffrey Jackson had come upon the murder scene, saw a truck

with a woman passenger parked nearby, and saw two Hispanic males

going through the pockets of one of the victims.   According to



                                3
Melendez, Jett relayed this information to Diane Tefft, the Fort

Worth police detective that was handling the case.       Tefft

purportedly told Jett not to get involved in the investigation

and Tefft failed to follow up on the information Jett provided.

Upon learning of this information, Melendez’s attorneys

interviewed Jackson.    Jackson confirmed Jett’s rendition,

although Jackson’s version of the events changed somewhat with

subsequent interviews.    Jackson apparently expressed his

willingness to appear in court and testify about what he

witnessed, but failed to appear when served with a subpoena for

Melendez’s motion for new trial.       This purported new evidence

serves as the basis for Melendez’s request for a COA.

                         Standard of Review

     To obtain a COA, Melendez must make “a substantial showing

of the denial of a constitutional right.”       28 U.S.C. §

2253(c)(2); Miller-El, 123 S. Ct. at 1039; Slack v. McDaniel, 529

U.S. 473, 483 (2000).    To make this showing, Melendez must

demonstrate that “reasonable jurists could debate whether (or,

for that matter, agree that) the petition should have been

resolved in a different manner or that the issues presented were

adequate to deserve encouragement to proceed further.”        Miller-

El, 123 S. Ct. at 1039 (quoting Slack, 529 U.S. at 484).         Because

the district court denied relief on the merits, rather than on

procedural grounds, Melendez “must demonstrate that reasonable


                                   4
jurists would find the district court’s assessment of the

constitutional claims debatable or wrong.”       Slack, 529 U.S. at

484.

       In determining whether to grant a COA, this Court’s

examination is limited “to a threshold inquiry into the

underlying merit of [Melendez’s] claim[].”       Miller-El, 123 S. Ct.

at 1034.    “This threshold inquiry does not require full

consideration of the factual or legal bases adduced in support of

the claims.”    Id. at 1039.   Instead, this Court’s determination

is based on “an overview of the claims in the habeas petition and

a general assessment of their merits.”     Id.   “Any doubt regarding

whether to grant a COA is resolved in favor of the petitioner,

and the severity of the penalty may be considered in making this

determination.”    Tennard v. Cockrell, 284 F.3d 591, 594 (5th Cir.

2002).

                       Melendez’s Brady Claim

       Melendez’s claim in support of his request for a COA is a

purported Brady violation.     Melendez claims his due process

rights were violated because the State of Texas (the State)

failed to disclose material exculpatory evidence; specifically,

that the State failed to tell him that Jackson came upon the

crime scene and observed someone going through the pockets of one

the victims.    Although Melendez does not argue that the

particular evidence would have made a difference in his case, he


                                   5
maintains the evidence is material and admissible.   Melendez

complains that by failing to conduct an evidentiary hearing, the

state courts denied him the opportunity to develop his Brady

claim and foreclosed his ability to show he is entitled to habeas

relief.

     In Brady v. Maryland, the United States Supreme Court

explained that “the suppression by the prosecution of evidence

favorable to an accused upon request violates due process where

the evidence is material either to guilt or to punishment,

irrespective of the good faith or bad faith of the prosecution.”

Brady v. Md., 373 U.S. 83, 87 (1963).   To establish a Brady

violation, a petitioner must demonstrate that (1) the prosecution

suppressed evidence, (2) the evidence was favorable to the

petitioner, (3) the evidence was material either to guilt or

punishment, and (4) nondiscovery of the allegedly favorable

evidence was not the result of a lack of due diligence.

See Rector v. Johnson, 120 F.3d 551, 558 (5th Cir. 1997).

     In assessing the materiality of undisclosed evidence, the

"evidence is material only if there is a reasonable probability

that, had the evidence been disclosed to the defense, the result

of the proceeding would have been different."   U.S. v. Bagley,

473 U.S. 667, 682 (1985).   "A 'reasonable probability' is a

probability sufficient to undermine confidence in the outcome."

Id. at 682.   A "reasonable probability" of a different result is


                                 6
shown when the non-disclosure "could reasonably be taken to put

the whole case in such a different light as to undermine

confidence in the jury verdict."       Kyles v. Whitley, 514 U.S. 419,

434 (1995).

     In the instant case, the state habeas court2 first concluded

that Melendez failed to establish that the purported Brady

evidence was withheld.    Although Jett testified during the

hearing on Melendez’s motion for new trial that she told Tefft

about Jackson’s observation, the trial judge determined that Jett

was not a credible witness.    The district court correctly

deferred to that finding.     See 28 U.S.C. § 2254(e)(1)

(determination of state court’s factual finding is presumed

correct unless applicant rebuts finding with clear and convincing

evidence).    Because Melendez did not rebut the state court’s

finding with evidence to the contrary, the district court

correctly determined that adequate factual support exists to

support the state judge’s conclusion that Melendez did not prove

the State withheld the disputed evidence.

     The state court also determined that the evidence was not

material.    The district agreed and determined that even if the

state trial judge were wrong about whether the State withheld

evidence, the evidence is not material.      The record supports that

conclusion.


     2
      Notably, the state habeas judge was also the trial judge.

                                   7
     Jett testified to the most favorable version of the disputed

evidence.   During the hearing on Melendez’s motion for new trial,

Jett explained that she spoke with several people who were

located near the scene of her son’s death in an effort to solve

her son’s murder.   Jett stated Jackson owned a barbeque

restaurant a block from the car wash where her son was killed and

that she spoke with Jackson over the telephone after her son’s

death.   Jett explained that Jackson told her that he had heard

several gunshots around 11:30 on the evening of her son’s death

and heard someone scream, “the MFs are shooting at me.”

According to Jett, Jackson and his girlfriend then drove to the

carwash, saw a white truck parked by the telephone, saw a black

truck park along the street with a woman inside the truck, and

observed two Hispanic males in the parking lot going through the

pockets of a man in the white truck.   Jett further testified that

Jackson stated that he asked the men if they needed any help and

that the men told him everything was under control.   Jett

explained that Jackson then left the scene and agreed to relay

his observations to the police.

     Jett also testified that she advised Tefft about what

Jackson had observed and that Tefft told her not to get involved

in the investigation.   Jett also stated that she gave the

information to the lead prosecutor in the case and that the

prosecutor had told her that Melendez had not killed her son.

Jett explained that she did not tell Melendez’s attorney about

                                  8
this information because she did not become convinced that

Melendez was not the killer until after the trial.       Notably, this

information, if true, is consistent with the evidence presented

during trial and during the hearing on the motion for new trial.

     Both of the prosecutors for Melendez’s trial stated in

affidavits that there was evidence of another truck at the scene

of the murder shortly after the shooting and that the defense was

aware of that information.   To support these assertions, the

State submitted Seagraves’s written statement in which Seagraves

states that a Mexican man and a younger boy stopped behind the

truck after the shooting and asked him what was wrong.       This

statement was admitted at trial.       The State also submitted a

written statement by Susie Carillo who stated that after hearing

shots, she saw a man run up the street.       Carillo explained that

she went outside and heard a man crying “please help me.”

According to Carillo, she called 911, walked down to the car

wash, observed a group of men in a pickup truck stopped at the

scene, and saw one of the men trying to help the men in the

truck.   Although her trial testimony was somewhat disorganized,

the written statement summarizes Carillo’s trial testimony.

Thus, Jett’s version of what Jackson observed is consistent with

Seagraves’s statement about what happened after the shooting and

Carillo’s version of the events.       Moreover, substantially the

same information was presented to the jury.

     During trial, a paramedic and a police officer who responded

                                   9
to the car wash testified that Sanders’s pockets were turned

inside out.   The paramedic also testified that several people at

the car wash waved the ambulance down as it arrived.   In

addition, a police detective who responded to the murder scene

testified he spoke to a Hispanic male at the scene of the murder.

Additionally, a photo exhibit reflected that Sanders’s pants

pockets were pulled out.   Thus, the jury knew that someone

arrived at the car wash after the shooting and that Sanders’s

pockets were altered.   Even with this information, the jury found

Melendez guilty.

     The district court accurately assessed the implications of

the information Jackson may have provided:

     The information Jackson provided may have helped to
     explain why the pockets were turned out, but it would
     not have cast doubt on Melendez’s guilt. . . . [A]s the
     record makes clear, Jackson’s hearing gunshots and
     someone yelling and then witnessing a dark pickup truck
     and two Hispanic men at the scene, one looking through
     the pockets of the murder victim, is not contrary to
     Melendez’s conviction. Instead, since everything
     Jackson witnessed at the scene was after the shooting,
     it is consistent with testimony given by other
     witnesses at trial and statements made by other persons
     at the scene.

The district court correctly concluded that Melendez’s Brady

claim lacked merit because the events Melendez contends Jackson

observed occurred after the shooting.   Even if Jackson’s

observations were disclosed to the defense, there is no

reasonable probability the result of the proceeding would have

been different.    Melendez’s Brady issue deserves no encouragement

                                 10
such that a hearing is required.     Reasonable jurists could not

conclude that Melendez’s purported Brady evidence placed the case

in such a different light as to undermine confidence in the

jury’s verdict.   As a result, Melendez is not entitled to a COA.

Accordingly, this Court DENIES Melendez’s application for a COA.




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