                  UNITED STATES COURT OF APPEALS

                        FOR THE FIFTH CIRCUIT



                            No. 99-20341



                        VICTOR LYNN FARRIS,

                                                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 Southern District of Texas
                          (H-97-CV-1596)
                            June 20, 2000
Before GARWOOD, DeMOSS and PARKER, Circuit Judges.

PER CURIAM:*

      Victor Lynn Farris, Texas prisoner # 363035, appeals the

denial of his habeas corpus application brought pursuant to 28

U.S.C. § 2254 (1994).   We affirm.

                   FACTS AND PROCEDURAL HISTORY

      Farris was convicted by a jury of aggravated rape and was

  *
   Pursuant to 5TH CIR. R. 47.5, the 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opinion should not be published and is not precedent except under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.

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sentenced to life imprisonment.           See Farris v. State, 712 S.W.2d

512, 513 (Tex. Crim. App. 1986).            Farris’s accomplice, Timothy

Huffman, testified against Farris at trial, describing in detail

Farris’s role in the crime and directly contradicting Farris’s

alibi testimony.

      On   direct   appeal,   a   Texas    intermediate   appellate   court

reversed Farris’s conviction and ordered a new trial based on

Farris’s due process claim that the State failed to disclose a plea

agreement it had made with Huffman. The court’s decision was based

on new evidence consisting of testimony given by Huffman, his

attorney and the assistant district attorney at a hearing on

Huffman’s successful motion to set aside his guilty plea.               The

court stated that the “record demonstrates either that the state

specifically promised Huffman’s attorney a recommendation of a 30-

year sentence in exchange for Huffman’s testimony against [Farris],

or that the State promised at least to notify the court in

Huffman’s case of Huffman’s cooperativeness in prosecuting [Farris]

and to request leniency in that case.”         Farris, 676 S.W.2d at 675-

77.

      The Court of Criminal Appeals reversed that decision and

remanded, holding that the Court of Appeals had no authority to

supplement the record with testimony from the Huffman hearing. See

Farris, 712 S.W.2d at 514-16.        The court noted that Farris still

had a remedy through a post-conviction writ of habeas corpus.           See


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id. at 516 n.3.     On remand for consideration of the remaining

grounds of error, Farris’s conviction was affirmed.

      Farris then filed a state habeas corpus application, which was

denied without a written order on the findings of the trial court

after a hearing.    The trial court considered the same testimony

from Huffman’s motion for new trial that the intermediate appellate

court had found compelling during Farris’s direct appeal and

concluded that no agreement or promise for a specific number of

years existed, that the jury was apprised of the only agreement

between the State and Huffman, and that notwithstanding Huffman’s

testimony, there was sufficient evidence of Farris’s guilt.2

      Farris then filed this 28 U.S.C. § 2254 application.      The

district court denied habeas relief and denied Farris a certificate

of appealability (“COA”).     This court granted COA on Farris’s

claims that the State failed to disclose evidence of a plea

agreement for leniency with Huffman and presented false evidence

about the nature of its agreement with Huffman to the jury.

                            DISCUSSION

A. Standard of review


  2
   Farris argues that the findings of the trial court at his state
habeas evidentiary hearing are in conflict with a Texas
intermediate appellate court decision in Huffman v. State, 676
S.W.2d 677 (Tex. App.-Houston [1st Dist] 1984), and the state is
collaterally estopped from continuing to litigate the issue.
Collateral estoppel does not apply against the prosecution in a
criminal case on the basis of an earlier determination in the
criminal case of a different defendant. See Nichols v. Scott, 69
F.3d 1255, 1270 (5th Cir. 1987).

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     The determination of factual issues made by the state court

shall be presumed to be correct, and the applicant has the burden

of rebutting the presumption of correctness by clear and convincing

evidence.    See 28 U.S.C. § 2254(e)(1).

B. Giglio Claim

     The State has a duty to disclose evidence favorable to the

accused that is material to guilt or punishment.      See Brady v.

Maryland, 373 U.S. 83, 86-87 (1963).       If the reliability of a

witness may be determinative of guilt or innocence, nondisclosure

of evidence affecting credibility falls within the general rule of

Brady.    See Giglio v. United States, 405 U.S. 150, 154-55 (1972).

A promise of leniency made to a key witness in return for his

testimony is impeachment evidence to which a defendant is entitled.

See id.     Likewise, a due process violation occurs if the State

knowingly fails to correct false testimony which reasonably could

have affected the judgment of the jury.    See Blackmon v. Johnson,

145 F.3d 205, 208 (5th Cir. 1998), cert. denied, 119 S. Ct. 1258

(1999).

     There is no dispute that the State made an agreement with

Huffman that may have affected the jury’s view of his credibility

and that the jury was apprised of the existence of an agreement.

Farris’s position is that the State did not disclose the entirety

of the agreement to Farris and allowed Huffman’s testimony that did

not accurately describe the agreement to stand uncorrected in front


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of the jury.      We begin by presuming the correctness of the state

court’s determination that the jury was apprised of the only

agreement between the State and Huffman. The question then becomes

whether      Farris    has     rebutted    that    presumption         by   clear   and

convincing evidence.

       Huffman, in response to questions posed by the State and

Farris’s trial counsel, told the jury that, in exchange for his

testimony, he had been offered the opportunity to plead guilty to

the aggravated rape charge, that the State would drop the other two

charges and that the State would tell the sentencing Judge that

Huffman had cooperated but would not recommend a certain number of

years.    Farris has presented evidence, in the form of testimony by

Huffman,     Huffman’s       trial    counsel     and    the    assistant    district

attorney that         the    agreement    was   for     the    State   to   “recommend

leniency” in sentencing Huffman in return for Huffman pleading

guilty and testifying against Farris, but that the agreement did

not specify a certain number of years.                  While the articulation of

the agreement in front of the jury did not include the words

“recommend leniency,” Huffman’s evidence does not clearly and

convincingly rebut the state court’s conclusion that the jury                       was

apprised of the agreement. Certainly, the jury understood that the

reason the State agreed to advise Huffman’s sentencing judge of his

cooperation with the State during Farris’s trial was to induce

leniency in sentencing.              Farris has not presented any evidence

that   his    jury     was    deprived    of    information       material     to   its

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assessment of Huffman’s credibility.

                            CONCLUSION

     Based on the conclusion that Farris has not rebutted the state

court’s determination of facts, we find no due process violation

meriting habeas corpus relief and therefore affirm the district

court’s dismissal of Farris’s claims.

     AFFIRMED.




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