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           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                          January 2, 2013

                                       No. 12-70020                        Lyle W. Cayce
                                                                                Clerk

MANUEL VASQUEZ,

                                                  Petitioner-Appellant
v.

RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

                                                  Respondent-Appellee



                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:09-CV-930


Before KING, JOLLY, and GRAVES, Circuit Judges.
PER CURIAM:*
       Petitioner-Appellant Manuel Vasquez was convicted of capital murder and
sentenced to death in Texas state court. The Texas Court of Criminal Appeals
affirmed his conviction and sentence on direct appeal, and Vasquez
unsuccessfully sought both state and federal habeas relief. Vasquez now seeks
a certificate of appealability pursuant to 28 U.S.C. § 2253(c) to appeal the
district court’s denial of habeas relief. We hold that reasonable jurists could not


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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debate the district court’s well-reasoned and thorough decision that Vasquez is
not entitled to habeas relief. Accordingly, we DENY the request for a certificate
of appealability.
           I. FACTUAL AND PROCEDURAL BACKGROUND
      The factual circumstances underlying Petitioner-Appellant Manuel
Vasquez’s conviction are fully discussed in the district court’s opinion. Vasquez
v. Thaler, No. SA-09-CA-930-XR, 2012 WL 2979035, at *1-4 (W.D. Tex. July 19,
2012) (slip opinion). In brief, on the morning of March 19, 1998, Vasquez, a
member of the Mexican Mafia, together with Johnny Joe Cruz and Oligario
Lujan, forcefully entered the motel room of Juanita Ybarra. Ybarra was present,
as was Moses Bazan. Vasquez, Cruz, and Lujan proceeded to attack Bazan and
Ybarra. Bazan was assaulted until he lost consciousness. Ybarra was strangled
to death, after which her motel room was searched for valuables. The robbery
and murder were motivated by Ybarra’s failure to pay the Mexican Mafia’s
“dime” tax, consisting of 10% of the proceeds of Ybarra’s sale of illegal drugs.
      A grand jury indicted Vasquez on a single count of capital murder on June
10, 1998. Vasquez was originally represented by Jacqueline Snyder, a court-
appointed attorney, who was assisted by a court-appointed investigator. On
January 21, 1999, the trial court substituted a new court-appointed investigator
for the original investigator. Thereafter, the trial court appointed attorney
Wendellyn K. Rush as co-counsel. The trial court then granted Snyder’s motion
to withdraw as counsel, and appointed Joel Perez as first chair counsel.
      The trial’s guilt-innocence phase commenced on November 2, 1999. On
November 5, 1999, the jury returned a verdict of guilty. The trial’s punishment
phase began on November 8, 1999. Two days later, the jury returned its verdict,
finding beyond a reasonable doubt that there was a probability Vasquez would
commit criminal acts of violence constituting a continuing threat to society and
that Vasquez actually caused the death of Ybarra or intended to kill her or

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                                   No. 12-70020

another, or that he anticipated a human life would be taken. The jury further
found that there were insufficient mitigating circumstances to support a life
sentence. The trial judge then sentenced Vasquez to death. Vasquez filed a
direct appeal to the Texas Court of Criminal Appeals (“CCA”).             The CCA
affirmed Vasquez’s conviction and sentence on February 6, 2002. Vasquez did
not file a petition for a writ of certiorari with the United States Supreme Court.
      On December 13, 2001, Vasquez filed an application for a state writ of
habeas corpus. An evidentiary hearing was held by the state habeas court on
August 5 and September 30, 2005. Further proceedings on Vasquez’s application
took place on May 3, 2006. The state habeas court recommended denying
Vasquez’s application for habeas relief on March 24, 2009. The state habeas
court later amended its findings of fact and conclusions of law, but again
recommended that habeas relief be denied. The CCA adopted, in part, the state
habeas court’s findings of fact and conclusions of law, and denied habeas relief
on November 18, 2009. Ex parte Manuel Vasquez, WR-71807-01, 2009 WL
3842857 (Tex. Crim. App. Nov. 18, 2009) (unpublished).
      Vasquez next filed a petition for habeas relief in the United States District
Court for the Western District of Texas on November 12, 2010. Vasquez’s
petition asserted seven claims for relief. On July 19, 2012, the district court filed
an opinion and order denying habeas relief and a certificate of appealability
(“COA”), and also denied Vasquez’s request for an evidentiary hearing. After
receiving an extension of time, Vasquez filed an application with this court on
November 3, 2012, seeking a COA to appeal the district court’s judgment.
Vasquez’s application seeks a COA relating to the following claims: ineffective
assistance of counsel, nondisclosure of Brady material, knowing use of perjured
testimony, and violation of the fair cross-section requirement under the Sixth
and Fourteenth Amendments.



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                        II. STANDARD OF REVIEW
      Vasquez’s habeas petition is governed by the Antiterrorism and Effective
Death Penalty Act (“AEDPA”) of 1996, §§ 101-108, Pub. L. No. 104-132, 110 Stat.
1214 (codified as amended at 28 U.S.C. §§ 2244, 2253-2266). Under AEDPA, a
state habeas petitioner may appeal a district court’s dismissal of his petition
only if he first obtains a COA from the district court or the court of appeals. 28
U.S.C. § 2253(c)(1)(A). To obtain a COA a petitioner must make “a substantial
showing of the denial of a constitutional right.” Id. § 2253(c)(2). A petitioner
makes the requisite substantial showing by demonstrating that “jurists of reason
could disagree with the district court’s resolution of his constitutional claims or
that jurists could conclude the issues presented are adequate to deserve
encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327
(2003).
      Our review of a COA request therefore requires us to conduct a threshold
inquiry into the merits of the claims a petitioner raises in his underlying habeas
petition. See id. at 336. However, “[t]his threshold inquiry does not require full
consideration of the factual or legal bases adduced in support of the claims. In
fact, the statute forbids it.” Id. In death penalty cases, “any doubts as to
whether a COA should issue must be resolved in [the petitioner’s] favor.”
Ramirez v. Dretke, 398 F.3d 691, 694 (5th Cir. 2005) (alteration in original)
(internal quotation marks and citation omitted).
      The CCA reviewed the issues Vasquez raised in his petition and denied
relief on the merits. Accordingly, the district court reviewed Vasquez’s petition
for habeas relief under § 2254(d) and (e). Under § 2254(d), the district court
could not grant habeas relief “with respect to any claim that was adjudicated on
the merits in State court proceedings unless” the CCA’s denial “(1) resulted in
a decision that was contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court of the

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United States,” or “(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d). Under § 2254(e)(1), the state court’s factual
findings are presumed correct unless Vasquez provides “clear and convincing
evidence” to the contrary.
      “A state court’s decision is contrary to Supreme Court precedent if: (1) ‘the
state court arrives at a conclusion opposite to that reached by [the Supreme
Court] on a question of law’; or (2) ‘the state court confronts facts that are
materially indistinguishable from a relevant Supreme Court precedent and
arrives at a result opposite to [that of the Supreme Court].’” Pippin v. Dretke,
434 F.3d 782, 787 (5th Cir. 2005) (alterations in original) (quoting Williams v.
Taylor, 529 U.S. 362, 405 (2000)), cert. denied, 549 U.S. 828 (2006). “A state
court’s decision is an unreasonable application of clearly established federal law
whenever the state court identifies the correct governing legal principle from the
Supreme Court’s decisions but applies that principle to the facts of the prisoner’s
case in an objectively unreasonable manner.” Id. (quoting Young v. Dretke, 356
F.3d 616, 623 (5th Cir. 2004)). “An unreasonable application may also occur if
‘the state court either unreasonably extends a legal principle from [Supreme
Court] precedent to a new context where it should not apply or unreasonably
refuses to extend that principle to a new context where it should apply.’” Id. at
787-88 (alteration in original) (quoting Young, 356 F.3d at 623).
                              III. DISCUSSION
A.    Ineffective Assistance of Counsel
      Vasquez raises six grounds on which he seeks relief for ineffective
assistance of counsel. Strickland v. Washington, 466 U.S. 668 (1984), sets the
standard for vacating a conviction for ineffective assistance of counsel. Under
Strickland, a petitioner must show (1) that trial counsel’s performance was
deficient, and (2) that petitioner’s defense suffered prejudice as a result. Cullen

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v. Pinholster, 131 S. Ct. 1388, 1403 (2011).
      To show deficient performance, “the defendant must show that counsel’s
representation fell below an objective standard of reasonableness.” Strickland,
466 U.S. at 687-88. “The proper measure of attorney performance remains
simply reasonableness under prevailing professional norms.” Id. at 688. “[A]
court must indulge a strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance,” meaning that “the defendant
must overcome the presumption that, under the circumstances, the challenged
action might be considered sound trial strategy.” Id. at 689 (internal quotation
marks and citation omitted).
      To show prejudice, “the question is not whether a court can be certain
counsel’s performance had no effect on the outcome or whether it is possible a
reasonable doubt might have been established if counsel acted differently,” but
rather “whether it is reasonably likely the result would have been different.”
Harrington v. Richter, 131 S. Ct. 770, 791-92 (2011) (internal quotation marks
and citations omitted). “The likelihood of a different result must be substantial,
not just conceivable.” Id. at 792.
      In applying Strickland to Vasquez’s application for a COA, we are mindful
that “[s]urmounting Strickland’s high bar is never an easy task” and
“[e]stablishing that a state court’s application of Strickland was unreasonable
under § 2254(d) is all the more difficult.” Premo v. Moore, 131 S. Ct. 733, 739-40
(2011) (internal quotation marks and citations omitted). “Federal habeas courts
must guard against the danger of equating unreasonableness under Strickland
with unreasonableness under § 2254(d).” Id. at 740. Under § 2254(d) we must
ask “whether there is any reasonable argument that counsel satisfied
Strickland’s deferential standard.”    Id. (emphasis added).      We proceed to
consider each of Vasquez’s ineffective assistance of counsel claims.



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      1.    Failure to investigate and present exculpatory and impeachment
            evidence
      Vasquez first argues that his counsel was deficient for failing to contact,
interview, and call as witnesses at trial the residents of the motel rooms adjacent
to the motel room in which Ybarra was murdered. These witnesses included
Elvira Perez and other unidentified individuals. Vasquez further argues that
counsel should have contacted numerous other individuals related to this case,
including Ray Hernandez, Guadalupe Esparza, George Martinez, Angie and
Jerry Chavarria, Edward Guerra, Melissa Rodriguez, Maria Garcia, Juan
Vargas, Ernest Aguillon, and Brenda Monreal. Finally, Vasquez argues that
counsel should have called Vasquez’s alleged accomplice in a series of burglaries
and robberies, Jeff Lang.
      According to Vasquez, these witnesses were relevant as follows: testimony
by Perez and the other motel room residents was necessary to establish the time
frame of the murder; Hernandez and Esparza both heard from Vasquez’s co-
accomplices that Vasquez was not involved in the murder; Angie Chavarria and
Martinez saw Vasquez at their home during the time frame of the murder;
Guerra, Rodriguez, Garcia, Vargas, Aguillon, and Monreal could provide
additional information on Vasquez’s location during the day of the murder and
the night before; Martinez and the Chavarrias could also state that Vasquez did
not return with Cruz and Lujan to Martinez’s home after the murder; finally,
Lang could refute testimony that Vasquez had previously struck Garcia.
      The district court recognized that Vasquez’s contention that failing to call
these witnesses constituted ineffective assistance of counsel is mired with
difficulties that prevent him from meeting Strickland’s deficient performance
prong. At his state habeas proceeding Vasquez only called four of the listed
witnesses (Esparza, Jerry Chavarria, Martinez, and Aguillon) and submitted
affidavits from three others (Angie Chavarria, Vargas, and Lang). Nothing was


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submitted as to Elvira Perez, Hernandez, Guerra, Rodriguez, Garcia, or
Monreal. Vasquez also did not call his entire defense team—Vasquez only called
Perez, one of two attorneys who represented him at trial, and who only became
involved after Snyder, Vasquez’s first attorney, withdrew. Thus, Perez could
only testify as to the witnesses he was responsible for, and not those witnesses
with whom Snyder or Rush may have worked. Vasquez also did not call either
of the two court-appointed investigators who worked with his defense team.
Finally, Vasquez has refuted none of the justifications put forward by Perez at
the state habeas proceeding for why certain witnesses were not called. For
example, Vasquez has not responded to Perez’s testimony that various witnesses
were not called because their testimony conflicted with that of Vasquez’s alibi
witness Mercedes Villarreal.1
       Put together, Vasquez was unable to present to the state habeas court a
complete picture of his defense team’s investigation and representation. As a
result, Vasquez could not overcome the presumption that the team’s actions fell
“within the wide range of reasonable professional assistance.” Strickland, 466
U.S. at 689; see also Pondexter v. Quarterman, 537 F.3d 511, 521 (5th Cir. 2008)
(state habeas court’s conclusion that attorney’s performance was not deficient
for failing to call pathologist was arguably not contrary to, or an unreasonable
application of, Strickland, where petitioner submitted no affidavit from trial
attorney discussing whether he consulted with pathologist or explaining why he
did not call one); Bartee v. Quarterman, 574 F. Supp. 2d 624, 649 (W.D. Tex.
2008) (petitioner failed to carry burden of showing deficient performance where
he did not “present the state habeas court with any evidence . . . addressing the



       1
        Villarreal testified that, on the day of the murder, Vasquez called her between 5:30
a.m. and 6:00 a.m. She further testified that she picked Vasquez up between 6:30 a.m. and
6:45 a.m., and brought him home where he remained while she went to work, until she picked
him up at 6:00 p.m. and took him to Martinez’s home.

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                                  No. 12-70020

objective reasonableness of [his] trial counsels’ strategic and tactical decision-
making” including what investigative efforts counsel undertook and the reasons
for not presenting evidence). Jurists of reason could not disagree with the
district court’s conclusion that Vasquez failed to present to the state habeas
court evidence that his attorneys’ performance was deficient.
      Vasquez similarly failed to show prejudice. There is good reason why
“[c]laims that counsel failed to call witnesses are not favored on federal habeas
review.” Woodfox v. Cain, 609 F.3d 774, 808 (5th Cir. 2010). “[T]he presentation
of witnesses is generally a matter of trial strategy and speculation about what
witnesses would have said on the stand is too uncertain.” Id. A petitioner
seeking to show ineffective assistance of counsel must therefore “name the
witness, demonstrate that the witness was available to testify and would have
done so, set out the content of the witness’s proposed testimony, and show that
the testimony would have been favorable to a particular defense.” Day v.
Quarterman, 566 F.3d 527, 538 (5th Cir. 2009). As the state habeas court and
district court observed, of the four witnesses Vasquez called to testify during the
state habeas proceeding only Jerry Chavarria testified that he would have been
available to testify. But Jerry Chavarria did not see Vasquez between 5:30 a.m.
and 8:00 a.m. the day of the murder. As to the three affidavit witnesses, none
states that he or she would have been available to testify. See Gray v. Epps, 616
F.3d 436, 443 (5th Cir. 2010) (petitioner failed to show uncalled witnesses were
available to testify where affidavits did not contain statement to that effect).
Clearly, as to those witnesses who neither testified at the state habeas
proceeding nor submitted affidavits, Vasquez also has failed to show their
availability. Having failed to do so, Vasquez cannot now claim prejudice.
      Accordingly, Vasquez cannot show that reasonable jurists would disagree
with the district court’s determination that the CCA’s rejection on the merits of
this part of Vasquez’s ineffective assistance claims was neither contrary to, nor

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involved an unreasonable application of, clearly established federal law, nor was
it based on an unreasonable determination of the facts in light of the evidence
presented at the state habeas proceeding.2
       2.     Failure to call DNA expert
       Vasquez’s next ground for seeking a COA is that his defense team failed
to review their DNA expert’s report and did not present evidence at trial that
DNA testing by the prosecution’s expert was deficient. As with Vasquez’s other
uncalled witnesses, his ineffective assistance of counsel claim was hampered by
his failure to call Perez’s co-counsel or the DNA expert during the state habeas
proceeding. Vasquez instead relied on a new DNA expert at the state habeas
proceeding. But as the district court concluded, his new expert’s observations,
which relate to deficiencies in the prosecution’s DNA testimony, do not alter the
outcome.
       First, Vasquez did not show what information the original DNA expert
provided to Vasquez’s attorneys and thus Vasquez failed to make clear how his
attorneys’ performance was deficient. See Evans v. Cockrell, 285 F.3d 370, 377
(5th Cir. 2002) (rejecting ineffective assistance of counsel claim where petitioner
“did not present any evidence or allegations concerning what the expert would
have stated, or what results the scientific tests would have yielded”). Second,
the later DNA expert’s testimony only pertained to DNA evidence recovered from
bloody articles of clothing found in Rodriguez’s car. The prosecution’s DNA
expert testified that Bazan was a possible source of DNA on a shirt and jacket
found in the car, and Vasquez was a possible source of DNA on a pair of shorts.
The district court correctly observed that this evidence does not underpin the


       2
         Our decision finds further support on grounds fully addressed in the district court’s
opinion, including that the witnesses’ testimony was not reasonably likely to alter the trial’s
outcome, and that some of the testimony would be subject to hearsay objections. We find these
reasons persuasive and adopt them as further support for our conclusion that, under AEDPA,
the CCA did not unreasonably apply Strickland.

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primary testimony relied on by the State—that of Cruz and Bazan, who
identified Vasquez as one of the assailants. As a result, reasonable jurists would
not disagree with the district court’s decision that there is no reasonable
probability that, but for the absence of the new DNA expert’s testimony, the
trial’s outcome would have been different, and we deny a COA on this ground.
      3.    Failure to voir dire jurors regarding accomplice-witness rule
      Vasquez’s third ground on which he seeks a COA is that counsel should
have asked the venire about their views on accomplice-witness testimony and
plea bargains. The prosecution disclosed Cruz’s decision to testify for the
prosecution pursuant to a plea agreement during voir dire. At that time, nine
jurors already had been seated. Defense counsel’s request to ask the seated
jurors about the accomplice-witness rule and plea bargains was denied by the
state trial court. Accordingly, Vasquez argued in the district court that his
attorneys’ performance was deficient for not asking about these subjects prior
to the prosecution’s disclosure and the seating of the jurors.
      The district court concluded, not unreasonably, that counsel’s failure to
question the venire did not amount to deficient or prejudicial representation.
Vasquez’s defense team had no reason to ask about the accomplice-witness rule
because, until the State’s disclosure, there was no indication that Cruz would
testify for the prosecution. Vasquez’s defense team also actively argued to the
jury that the State’s agreement with Cruz was a mark of desperation, born out
of a realization that a conviction was otherwise unattainable. Further, the jury
received instructions on the accomplice-witness rule. “[J]uries are presumed to
follow their instructions . . . .” Richardson v. Marsh, 481 U.S. 200, 211 (1987).
Reasonable jurists would not debate the district court’s decision to deny habeas
relief on these grounds.
      4.    Failure to request limiting instruction
      Vasquez next contends that he should be granted a COA because his

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attorneys did not request a limiting instruction on Vasquez’s membership in the
Mexican Mafia. Although Vasquez’s attorneys did make such a request in an
oral motion in limine, they did not renew their request during Cruz’s testimony
or the testimony of a police detective who testified that Vasquez’s tattoo was a
Mexican Mafia tattoo. As a result, Vasquez contends that this issue was not
preserved for direct appeal. See Lasiter v. State, 283 S.W.3d 909, 915 (Tex.
App.—Beaumont 2009, pet. ref’d).
      We do not grant Vasquez’s request for a COA because he fails to explain
how reasonable jurists would disagree with the district court’s determination
that Perez’s justification for not renewing the objection—that evidence on the
Mexican Mafia would come in over objections and that he did not wish to appear
to “hide the ball”—was a legally valid trial strategy. See Cotton v. Cockrell, 343
F.3d 746, 752-53 (5th Cir. 2003) (“A conscious and informed decision on trial
tactics and strategy cannot be the basis for constitutionally ineffective assistance
of counsel unless it is so ill chosen that it permeates the entire trial with obvious
unfairness.” (citation omitted)). This is especially so given the state trial court’s
denial of a motion in limine seeking such an instruction.
      The same result applies to the district court’s prejudice analysis. The
district court noted that “[w]ith or without a limiting jury instruction,
[Vasquez’s] jury was going to learn of [Vasquez’s] Mexican Mafia membership.”
Reasonable jurists would not debate the district court’s application of AEDPA
to this claim.
      5.     Failure to object to background evidence
      Vasquez contends that his attorney failed to object to evidence of Vasquez’s
participation in a “drug party” the night before the murder, and that this failure
amounted to deficient representation resulting in material prejudice.
Accordingly, Vasquez seeks a COA to appeal the district court’s dismissal of this
claim.

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      During trial, evidence was submitted that a group, including Cruz, Lujan,
Vasquez, and several girls under the age of sixteen (one of whom had with her
a one-year old baby), were in Vasquez’s motel room smoking marijuana, drinking
beer, and injecting heroin the night before the murder. Vasquez’s attorney
testified at the state habeas proceeding that he opted not to challenge this
evidence because it was beneficial to the defense. Specifically, it allowed for the
impeachment of Cruz’s testimony because the jury would know that Cruz sold
drugs to minors. The CCA adopted the state habeas court’s conclusion that this
evidence helped impeach two of the prosecution’s witnesses. The district court
also observed that admission of this evidence allowed Vasquez’s defense team to
call a toxicologist expert to testify about the harmful effects of cocaine and heroin
on the human brain, including on the ability to perceive and recall events.
      Vasquez does not address the efficacy of his attorneys’ strategy and we
conclude that reasonable jurists would not disagree with the district court’s
determination that counsel’s decision not to challenge admission of this evidence
was part of an objectively reasonable trial strategy. See id.
      6.     Failure to object to closing argument
      Vasquez’s final ineffective assistance of counsel claim is that his attorneys
should have objected to closing remarks by the prosecution during the trial’s
punishment phase and that a COA should issue as a result. Vasquez specifically
objects to two of the prosecutor’s statements.          First, he complains of the
prosecutor’s statement during closing that “I would hazard to guess that
[Vasquez] may be perhaps the most dangerous man to ever set foot in this
building.” Second, Vasquez objects to the prosecutor’s description of the death
penalty. “[A] needle will be inserted into [Vasquez’s] arm as painlessly as
possible . . . . [a]nd then, finally, quickly and gently he will drift off to sleep and
never wake up again.” Vasquez contends that such statements violated his due
process rights under the Eighth and Fourteenth Amendments.

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      During the state habeas proceeding, Vasquez’s attorney Perez testified
that he did not object to the prosecutor’s statements in an effort to salvage
credibility and “not look obstructive.” The CCA adopted the state habeas court’s
conclusion that there was no prejudice under Strickland. The district court
reasoned that Vasquez’s attorney could have reasonably concluded that an
objection would draw additional attention to the prosecutor’s remarks about
Vasquez’s dangerousness and the painlessness of lethal injection and thus trial
counsel’s representation also was not deficient. We conclude that jurists of
reason would not disagree and that this claim is not worthy of further
encouragement. See Drew v. Collins, 964 F.2d 411, 423 (5th Cir. 1992) (“A
decision not to object to a closing argument is a matter of trial strategy.”); see
also Hernandez v. Thaler, 398 F. App’x 81, 87 (5th Cir. 2010) (“When weighing
the harm caused by drawing attention to the fact that [petitioner] may have
strangled [the victim] with only his hands, against the benefit of bolstering the
credibility of the written confession, it is reasonable to decide that making an
objection was not in the defense’s best interest.”).
      We reach the same result as to the district court’s conclusion that Vasquez
suffered no prejudice in light of the extensive evidence detailing Vasquez’s
violent criminal background, which included evidence that he had killed at least
three people (and almost killed a fourth), engaged in a series of burglaries and
armed robberies, and never expressed remorse or contrition for his criminal
activities. See Pondexter, 537 F.3d at 525 (overwhelming evidence of petitioner’s
guilt precluded establishing prejudice as a result of counsel’s failure to object
during closing argument).      Vasquez failed to explain how his attorney’s
justifications for not objecting were incorrect or how an objection would have had
a reasonable likelihood of achieving a different outcome at the punishment phase
of the trial. Accordingly, we deny Vasquez’s request for a COA on his claim that
his attorneys improperly failed to object to the prosecutor’s closing argument.

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B.     Brady Material
       In addition to claiming ineffective assistance of counsel, Vasquez seeks a
COA on the basis that the prosecution failed to comply with its obligations under
Brady v. Maryland, 373 U.S. 83 (1963). Specifically, Vasquez contends that the
prosecution did not inform his defense team of notes from an interview with
Bazan on August 17, 1999, during which Bazan described the events of the
murder differently from how he described them at trial.                      Further, the
prosecution is alleged not to have disclosed Guerra’s statement that Vasquez left
his room early on March 19, 1998, to meet Villarreal. The prosecution also
purportedly did not disclose Rodriguez’s statement that Vasquez was staying
with George and Angie Martinez, and left his motel room the day before the
murder between 5:00 p.m. and 9:00 p.m.3 This information, Vasquez asserts,
would have allowed him to impeach Bazan’s testimony regarding the assault, as
well as show that Vasquez was not present during the time of the murder.
       “[T]he 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.”
Id. at 87. Evidence that may give rise to a Brady violation includes evidence
used to impeach a witness’ testimony “[w]hen the ‘reliability of a given witness
may well be determinative of guilt or innocence.’” Giglio v. United States, 405
U.S. 150, 154 (1972) (quoting Napue v. Illinois, 360 U.S. 264, 269 (1959)). To
establish a Brady claim, Vasquez must show “that the prosecution suppressed
favorable, material evidence that was not discoverable through due diligence.”
Kutzner v. Cockrell, 303 F.3d 333, 336 (5th Cir. 2002) (citing Brady, 373 U.S. at
87). Put another way, Vasquez must show “that (1) the prosecution suppressed
evidence; (2) the evidence was favorable to the defendant because it was either

       3
        As the district court noted, Vasquez refers to “Melissa Rodriguez,” which is likely a
reference to prosecution witness Michelle Rodriguez.

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                                  No. 12-70020

exculpatory or impeaching; and (3) the evidence was material.” United States
v. Edwards, 442 F.3d 258, 264 (5th Cir. 2006).
      Vasquez’s attorney Perez testified that he had seen multiple statements
from Bazan, including written statements to the police and oral statements to
hospital personnel, and was able to attack inconsistencies among those
statements to impeach Bazan’s credibility at trial. But Perez was unable to
specifically recall whether the information cited by Vasquez was disclosed to
him. Nevertheless, as already discussed, Vasquez did not call his attorney’s co-
counsel, who had been involved in the case significantly longer, or his previous
attorney, who represented him for over a year. As the state habeas court and
the district court correctly observed, this made it impossible to ascertain
whether the prosecution did, in fact, suppress the alleged evidence. This alone
was sufficient to deny Vasquez’s Brady claim and Vasquez has not called that
conclusion into doubt.
      Vasquez also did not demonstrate to the district court that the allegedly
suppressed evidence was material. “[E]vidence 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.” Rector v. Johnson, 120 F.3d
551, 562 (5th Cir. 1997) (alteration in original) (quoting United States v. Bagley,
473 U.S. 667, 682 (1985)). In evaluating the materiality of a petitioner’s Brady
claim “we must determine whether the allegedly suppressed evidence,
considered collectively and in light of all of the evidence at trial, could
reasonably be taken to put the entire case in a different light so as to ‘undermine
confidence in the outcome of the trial.’” Edwards, 442 F.3d at 267 (alteration
omitted) (quoting Kyles v. Whitley, 514 U.S. 419, 434 (1995)).
      At best, the allegedly undisclosed statements by Bazan would have
provided additional impeachment material.         But given the defense team’s
already extensive cross-examination and impeachment of Bazan, Vasquez has

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                                        No. 12-70020

not shown that, under AEDPA, the district court was wrong to conclude that
Vasquez did not establish a reasonable probability that the trial’s outcome would
have been different.4         See Drew, 964 F.2d at 419-20 (“[A]ny incremental
impeachment value [petitioner] would receive from the minor inconsistencies
between the statements does not raise a reasonable probability that, had the
statement been disclosed to [petitioner’s] counsel, the outcome of the proceeding
would have been different.”).
       Oral statements allegedly made by Guerra, Garcia, and Rodriguez, and
contained in the prosecutor’s handwritten notes, are similarly unavailing. At
the outset, as the district court made clear, Vasquez’s understanding of the
contents of the prosecution’s handwritten notes is based on his own
interpretation.      At his state habeas proceeding, Vasquez did not call the
witnesses whose statements are allegedly reflected in the handwritten notes.
Vasquez also did not question the State prosecutor about the notes’ substantive
contents. Having had the opportunity to call witnesses at his habeas proceeding,
and actually having had the prosecutor available for questioning, Vasquez
cannot now rely on ambiguity in the handwritten notes to create a reasonable
probability that the result of the proceeding would have been altered by their
disclosure.5 Cf. Parr v. Quarterman, 472 F.3d 245, 254-55 (5th Cir. 2006)


       4
        Among the inconsistencies Vasquez’s counsel elicited from Bazan at trial was Bazan’s
uncertainty as to whether there were three or four assailants, as well as whether he actually
saw anyone strangle Ybarra.
       5
         We further take note of the district court’s observation that the contents of the notes
related to Rodriguez do not constitute material evidence, even when interpreted in Vasquez’s
favor. Rodriguez allegedly told police that Vasquez left the motel between 5:00 p.m and 9:00
p.m. the night before the murder and herself went to sleep between 10:00 p.m. and 11:00 p.m.
Because the murder occurred the following morning, the district court correctly concluded that
this evidence does nothing to counter testimony by Bazan and Cruz that Vasquez participated
in the assault and murder of Ybarra.
        As with Vasquez’s ineffective assistance of counsel claim, we also observe that no
evidence has been offered, either in the form of testimony or affidavits, that Guerra or Garcia
would have been available to testify at trial. See Woodfox, 609 F.3d at 808; Boyd v. Estelle, 661

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                                       No. 12-70020

(accepting state court’s interpretation of handwritten notes as pertaining to one
witness rather than another, where witness actually testified and prosecutor
provided explanation of notes during state habeas proceeding).
       We conclude that the district court correctly found that Vasquez failed to
satisfy Brady’s suppression and materiality prongs and that reasonable jurists
would not disagree, and accordingly deny his request for a COA on this ground.
C.     Perjured Testimony
       Vasquez next seeks a COA under Napue, 360 U.S. 264, arguing that the
prosecution was aware that Cruz was a member of the Mexican Mafia and was
required to alert the state trial court when Cruz testified to the contrary.
       “The Supreme Court has held that the Due Process Clause is violated
when the government knowingly uses perjured testimony to obtain a conviction.”
Kinsel v. Cain, 647 F.3d 265, 271 (5th Cir. 2011) (citing Napue, 360 U.S. at 269).
To establish a denial of due process through the use of perjured testimony, a
petitioner must show “that (1) the witness gave false testimony; (2) the falsity
was material in that it would have affected the jury’s verdict; and (3) the
prosecution used the testimony knowing it was false.” Reed v. Quarterman, 504
F.3d 465, 473 (5th Cir. 2007); see also Creel v. Johnson, 162 F.3d 385, 391 (5th
Cir. 1998).
       The district court determined that Vasquez failed to meet the first
requirement. Vasquez presented no evidence that Cruz actually was a member
of the Mexican Mafia. The only evidence to that effect was that state and county
prison officials considered him a member of the Mexican Mafia. As the district
court observed, there was no evidence that Cruz presented himself as a member
of the Mexican Mafia at the time of trial, that he bore any identifiable Mexican


F.2d 388, 390 (5th Cir. 1981) (observing that complaints by uncalled witnesses are not favored
“because allegations of what a witness would have testified are largely speculative” (citation
omitted)).

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                                      No. 12-70020

Mafia tattoos, or that other members of the Mexican Mafia identified him as a
member. This lack of evidence persuades us that this claim is not worthy of
further encouragement and that a COA should not issue as to it.
       The same result follows from the district court’s finding that Vasquez
could not meet the second requirement—materiality. Cruz testified that he
associated with Mexican Mafia members, knew that Ybarra’s robbery and
murder was ordered by the Mexican Mafia, and agreed to split the proceeds of
that robbery with members of the Mexican Mafia. From this evidence it is likely
that the jury concluded that Cruz was a member of the Mexican Mafia,
regardless of his assertions to the contrary. Certainly Vasquez would have
gained little from Cruz’s admission of membership in light of all the evidence
that he associated and cooperated with members of that criminal organization.
See Drew, 964 F.2d at 419-20. This is especially so given that Vasquez’s defense
team was able to impeach Cruz on a number of topics, including the fact that
prison officials considered him a member of the Mexican Mafia.6
       We conclude that Vasquez has failed to show how he is entitled, under
AEDPA, to a COA on his perjured testimony claim.
D.     Fair Cross-Section
       Vasquez finally seeks a COA on the basis that his right to have a fair
cross-section of the community on panels from which grand jurors are chosen
was violated by an under-represented grand jury process. He contends that the
grand jury that indicted him consisted of 12 people, only three of whom were
Hispanic. According to Vasquez, this is evidenced by the fact that only three had
Hispanic surnames. Vasquez proceeds to observe that persons of Hispanic origin
were estimated to comprise 56.2% of the county population from which grand


       6
         The district court noted that cross-examination of Cruz revealed that he had lied to
police following his arrest, his plea agreement allowed him to avoid prosecution for capital
murder, and his latest statement to police omitted the robbery of Ybarra.

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                                  No. 12-70020

jurors were pulled, but that only 33.6% of those individuals serving on grand
juries between 1990 and 2000 had Hispanic surnames. Vasquez reasons that
this demonstrates a woeful imbalance between the proportion of Hispanics in the
population and those serving on grand juries, and results in violations of the
Sixth and Fourteenth Amendments.
      To establish a prima facie fair cross-section claim a petitioner must show
that (1) “the group alleged to be excluded is a ‘distinctive’ group in the
community,” (2) “the representation of this group in venires from which juries
are selected is not fair and reasonable in relation to the number of such persons
in the community,” and (3) “this underrepresentation is due to systematic
exclusion of the group in the jury-selection process.” Duren v. Missouri, 439 U.S.
357, 364 (1979). Importantly, “[t]he fair-cross-section requirement does not
guarantee ‘jur[ies] of any particular composition.’” Paredes v. Quarterman, 574
F.3d 281, 289 (5th Cir. 2009) (alteration in original) (quoting Taylor v.
Louisiana, 419 U.S. 522, 538 (1975)).
      The district court enumerated a number of reasons why Vasquez’s fair
cross-section claim must fail. We focus on two. First, Vasquez only presents
evidence of the composition of actual grand jury panels. It is well established
that “[t]his data is irrelevant to the Sixth Amendment inquiry.” Paredes, 574
F.3d at 290; see also Rivas v. Thaler, 432 F. App’x 395, 403 (5th Cir. 2011)
(unpublished). Second, even if this evidence were relevant, it is unreliable
insofar as Vasquez has compiled it based solely on his view of which of the
names on juror lists appear Hispanic. Such evidence is clearly insufficient for
establishing the actual number of Hispanic grand jurors and, by extension, the
ratio between Hispanic and non-Hispanic grand jurors. See Paredes, 574 F.3d




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                                      No. 12-70020

at 290 (rejecting as “irrelevant” and “unreliable” grand jury data consisting of
table “purporting to show the number of people with Hispanic names”).7
       Having presented to the district court evidence that is not pertinent to the
Sixth Amendment analysis, and that in any event is unreliable, Vasquez’s
request for a COA is denied.
                                  IV. CONCLUSION
       For the reasons set forth above, the application for a COA is DENIED.




       7
        To the extent Vasquez also alleges a denial of equal protection, we observe that this
would require a showing of purposeful discrimination, and that Vasquez did not make such
a showing before the district court. See Castaneda v. Partida, 430 U.S. 482, 493 (1977).
Reasonable jurists would also not disagree with the district court’s dismissal of Vasquez’s
equal protection claim for the reasons discussed above.

                                             21
