              IN THE UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT

                       _____________________

                            No. 98-50358
                       _____________________

JOHN ALBERT BURKS,

                                               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 Western District of Texas
                            (97-CV-98)
_________________________________________________________________

                          January 7, 2000

Before JOLLY, WIENER, and STEWART, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:*

     This habeas corpus appeal is brought by John Burks, who was

sentenced to death after his conviction in Texas state court for

the murder of Jesse Contreras.    The district court denied habeas

corpus relief but granted Burks a certificate of appealability

(“COA”) on two issues: first, on the alleged failure to disclose

exculpatory information about the identity of the killer, and,

second, the admission of evidence at sentencing that was alleged to

lack credibility.    On appeal, Burks attempts to raise two more

issues for which he lacks a COA: first, the exclusion of an alleged


     *
      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this opinion should not be published and is not precedent except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.
confession by a third party to the murder of Jesse Contreras, and,

second, the failure to disclose exculpatory information relating to

a second murder to which Burks was alleged to have confessed.      We

deny relief.

                                  I

       On Friday, January 20, 1989, Jesse Contreras was shot during

a robbery of his store, Jesse’s Tortilla Factory, in Waco, Texas.

After several weeks in the hospital, Contreras died.       The police

eventually arrested John Burks for the crime.

       Burks began planning the robbery weeks before, and he was not

shy about it.    In late December 1988, Burks asked his cousin, Ike

Weeks, to help in a robbery, but Weeks refused.     A couple of weeks

later, Burks asked Weeks for some .25- or .32-caliber cartridges.

Again, Weeks refused.

       Sometime in early January, Burks also approached Aaron Bilton.

Burks, complaining of a need for money, asked Bilton to help in the

scheme to "knock off Jesse [Contreras]."        Unlike Weeks, Bilton

agreed.

       At about the same time, Burks went to his half-brother, Louis

McConnell, to see whether Louis owned a gun or knew someone who

did.    Louis did not.    One week later, Louis came home to find

Burks, Louis’s brother, Bishop McConnell III, Carlton Johnson, and

Victor Monroe sitting in the den.     There was a small caliber pistol

and a dark navy or black stocking cap on the table.       Louis later




                                  2
testified that he saw Burks pick up the gun and stocking cap

before leaving.

     About one week before the robbery, Burks apparently still had

not found any ammunition for his gun, so he approached Johnny Cruz,

a local grocer, and asked for some .25 caliber cartridges, once

again without success.

     On January 19, Weeks happened to see Burks, Mark McConnell,

and Aaron Bilton talking in an alley.    Weeks heard Burks tell Mark

to pick Burks up the following day, and that Mark would receive

some money and a bag of marijuana for his help.

     By this point, Burks had developed the following plan.      The

robbery was set for Friday, because that was the day Contreras

normally cashed checks.    Burks wanted to commit the robbery at

noon, but because Bilton had to be at work then, they changed the

time to 11:00 a.m.    Bilton was to enter Jesse’s Tortilla Factory

first to see who was there.   If there was no one around, he was to

return to the car and tell Burks.    Mark was to receive $100 for his

participation and the use of his car.

     Vincent Guillem, one of Burks’s neighbors, was in his front

yard on the morning of the offense, January 20.   Between 10:00 a.m.

and 10:30 a.m., Mark McConnell drove up in his green, four-door

Chevrolet.    Guillem saw four people in the car--Bishop McConnell

III, Mark, Burks, and someone Guillem could not identify.      Burks

got out of the car and asked Guillem whether he had any .25-caliber

cartridges.   When Guillem said no, Burks walked across the street




                                 3
to his own house and later returned to Mark’s car.   Burks and Mark

then left alone, without Bishop or the other passenger.

     Shortly afterwards, Burks and Mark picked up Bilton.       The

three then proceeded to Bilton's uncle’s house. When they arrived,

Bilton went into his uncle’s house and watched television while

Mark drove Bilton’s aunt downtown. When Mark returned five minutes

later, the three men drove to Jesse's Tortilla Factory.

     When they arrived, Bilton entered the store, ostensibly to

purchase corn tortillas, but Contreras had not made any that

morning.   Bilton then returned to the car and announced that

Contreras was the only person inside.   Burks told Bilton to go back

and purchase flour tortillas instead while making certain that

Contreras was alone.   Bilton did so and again returned to the car.

At that point, Burks told Mark to let him out and then to drive to

a side street and park.   Wearing a dark stocking cap, Burks got out

of the car and started toward the store’s entrance.        Mark and

Bilton did as instructed, and about five minutes later, Burks

arrived at the car holding his stocking cap in his hands.    Bilton

thought that the stocking cap had something in it, but Burks said

that he did not get any money.   The three then left and took Bilton

to work.    Bilton later testified that he did not know that

Contreras had been shot until that evening’s local news report.

     At about 11:00 a.m. that same day, Victor Macias drove to

Jesse’s Tortilla Factory to cash a check.      He observed a short

black man carrying a dark object in his hand and "trotting" towards




                                  4
a green late sixties model car parked on the side of a road near

Jesse’s Tortilla Factory.     The man got into the backseat of the

green car. When Macias arrived at Jesse’s Tortilla Factory, he saw

Jesse Contreras, the store owner, running towards the side of the

building and blood on the pavement trailing from the building’s

front door.    No one was in the store, but there was blood on the

floor.     Macias went back outside and he saw a green car speeding

away.    When Macias went back inside the building, Contreras was

calling his daughter on the telephone.       Macias stayed until she

arrived.    When Gloria Contreras Diaz got to the store, her mother

was already tending to her father.     Contreras told them a black man

with a mask had tried to rob him, and that when Contreras had

thrown a trash can at the robber, the robber had shot him.

Contreras died twenty-seven days later.

     A few days after the botched robbery, Burks’s aunt accused him

of having been seen at Jesse’s Tortilla Factory when Contreras was

shot.    Burks denied this, saying that no one had been there when he

left.    He then threatened his aunt when she said that she would

call the police if she found out that he had shot Contreras.

     The investigation began with an analysis of the evidence from

the scene.     A firearms’ expert determined that two .25-caliber

bullets removed from Contreras’s body were fired from the same gun,

probably a .25-caliber semi-automatic Raven Arms pistol--a compact

pistol easily carried in a pocket and sometimes referred to as a

"Saturday Night Special.”     Four other spent bullets found at the




                                   5
crime scene were also .25-caliber.           A .25 caliber semi-automatic

Raven Arms pistol can hold up to six cartridges.                In addition, the

police found five spent .25 caliber shell casings at the crime

scene.

     While separately talking to Contreras and Macias, Detective

Price of the Waco Police Department obtained a description of the

suspect as being a black male of small build, 5'6" to 5'7" tall.

Price soon ascertained that the car involved was a green four-door

mid- to late-sixties model Chevrolet. Four days after the offense,

Price    observed   Mark   McConnell       driving   a    car    matching   that

description, and the police arrested him.                The police also soon

arrested Bilton.

     In February 1989, Detective Price notified the police in

Harlingen that a warrant had been issued for Burks’s arrest in

connection with this offense. During the first week of March 1989,

two Harlingen police officers in a patrol car noticed Burks walking

on a sidewalk in the western part of town and drove up behind him.

When Detective Davilla called to Burks and identified himself as a

police officer, Burks ran.     The police eventually captured him and

took him into custody.

     Burks was convicted of capital murder and sentenced to death

in 1989.   He appealed to the Texas Court of Criminal Appeals, which

affirmed his conviction and sentence in early 1994.                  The United

States Supreme Court denied certiorari in early 1995. In mid 1995,

Burks sought habeas corpus relief in Texas state court.                The trial




                                       6
court held an evidentiary hearing in November 1995 and issued

findings of fact and conclusions of law in January 1996.   The court

of criminal appeals then denied relief on October 16, 1996.      The

United States Supreme Court again denied certiorari in the spring

of 1997.

     On July 21, 1997, Burks filed his federal habeas petition.

The district court granted the state’s summary judgment motion and

denied Burks’s application in the spring of 1998.      Motions for a

new trial and a request for additional findings of fact were also

denied.    Burks then sought and received from the district court a

certificate of appealability on some, but not all, of the issues he

raises on appeal.

                                 II

                                  A

     Before moving to the substance of Burks’s appeal, we must

first determine the appropriate standards of review.     We confront

two sets of issues on this appeal, one for which the district court

granted certificates of appealability, and the other for which

Burks has not yet obtained such certificates.   We approach each set

differently.    We start with the issues for which Burks already has

a COA.     The first of these is that the state failed to disclose

exculpatory information about statements overheard by two emergency

room nurses about the killer’s identity, denying Burks his due

process rights under Brady v. State of Maryland, 373 U.S. 83, 83

S.Ct. 1194, 10 L.Ed.2d 215 (1963).    The second issue on which a COA




                                  7
was issued is that evidence lacking credibility was admitted during

sentencing, and that the admission violated Burks’s due process

rights under Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92

L.Ed. 1690 (1958).

       The district court applied the AEDPA standard to review the

state court’s denial of habeas relief on these claims because Burks

filed his federal appeal after April 24, 1996, the date that the

AEDPA became active.    See Lindh v. Murphy, 521 U.S. 320, 324-26,

117 S.Ct. 2059, 138 L.Ed.2d 481 (1997)(establishing the date AEDPA

became active). Because the district court made a summary judgment

determination, we review de novo, and we use the same standard as

the district court.

       Burks contends, however, that the AEDPA standard is being

retroactively applied to him contrary to established principles of

law.     In Landgraf v. USI Film Products, 511 U.S. 244, 281, 114

S.Ct. 1483, 128 L.Ed.2d 229, the Supreme Court held that without a

clear statement of retroactivity in the statute itself, courts

should not apply a statute retroactively. Application of the AEDPA

standard is retroactive and impermissible when it “attach[es] new

legal consequences to events completed before its enactment.”   Id.

at 270.

       We agree that there is no statement of retroactivity in the

AEDPA.    We therefore agree that the AEDPA’s application cannot be

allowed to have a retroactive effect in this case.      As for its

retroactive effect in this case, Burks concedes that he filed his




                                  8
appeal in federal court after the April 24 effective date.               He

points out, however, that his state court habeas proceedings were

already underway before the effective date of the AEDPA.             He then

asserts that, had he known that the AEDPA would apply later to

those       federal   proceedings,   “perhaps   he    could   have    acted

differently” in conducting his state court proceedings.          Thus, he

concludes, application of the AEDPA standard attached new legal

consequences to his actions during the state court proceedings that

were underway before the statute became active.1

     We cannot accept this argument.       As explained in Drinkard v.

Johnson, 97 F.3d 751, 766 (5th Cir. 1996), for application of the

new law to have a retroactive effect, a defendant must have relied

on the status of the law before its change.          Burks cannot point to

such a reliance.       He fails to explain how his conduct would have

been any different in state court had he known that the AEDPA’s

standard would apply.        Thus, application of the AEDPA to this

federal appeal does not have a retroactive effect on Burks or his

conduct of the state court proceedings.

     Consequently, the standard of review that we shall apply to

the two issues on which the district court granted a COA are found



        1
       Burks also contends that the state habeas court was less
careful because it expected federal review under the less
deferential standard, and so the district court’s application of
that standard denied him adequate habeas review. This perception
of the state courts is not only untrue, but is condescending. It
is not, therefore, a grounds for relief.




                                     9
in the AEDPA.         Under that statute, federal courts cannot grant

writs of habeas corpus unless:

     (1)    the state proceedings resulted in a decision contrary to,
            or involving an unreasonable application of, clearly-
            established federal law as determined by the Supreme
            Court.

     (2)    the state proceedings were based on an unreasonable
            determination of the facts.

28 U.S.C. § 2254.         The issues presented in the COA turn on a

determination of facts by the state court.               Thus, under (2) above,

state court factual findings are presumed correct unless rebutted

by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Trevino

v. Johnson, 168 F.3d 173, 181 (5th Cir. 1999), cert. denied, ___

U.S. ____, 120 S.Ct. 22, ____ L.Ed.2d ____, 68 U.S.L.W. 3136

(1999).

                                           B

     We now turn to the two issues for which Burks did obtain a COA

from the district court.

                                       (1)

     Burks’s first claim is that he was denied constitutional due

process    of   law    when   at   trial       the   state   failed   to   disclose

exculpatory evidence.         Prosecutors violate a defendant’s right to

due process when they fail to disclose material evidence favorable

to the defense.       Brady, 373 U.S. at 87.           Thus, there must be both

(1) a failure to disclose, and (2) the evidence that was not

disclosed must have been material and favorable to the defense.




                                       10
       The evidence that supposedly was not disclosed to Burks is

alleged statements overheard by two nurses at the hospital on the

day    of    the     shooting.           Connie         Mejia    testified       at    the   state

evidentiary hearing that someone in the emergency room had said

either that the killer spoke Spanish or that the killer spoke with

a Spanish accent.               Rebecca Adams thought she remembered someone

saying that the killer spoke Spanish.                         Burks contends that this was

exculpatory evidence because he does not speak Spanish, nor does he

speak       with    a     Spanish      accent.           He     argues    that    because       the

prosecutors failed to provide his counsel with information about

what the nurses overheard, a Brady violation occurred.

       When Burks first raised this Brady claim in his state habeas

proceeding, the court found against Burks on both Brady prongs.

The court held, first, that prosecutors had, in fact, disclosed the

evidence, and, second, that the evidence was not material because

it    “would       not    have    made       a    difference      between       conviction      and

acquittal.”

       The first, and in this case, dispositive, question to answer

is    whether       the    material          was    disclosed.           This    is    a   factual

determination,            and     we    review       the       state   court’s        finding    of

disclosure under the AEDPA’s “reasonableness” standard of review.

If    that determination               was       reasonable,      there    is    no    reason    to

consider the materiality of the evidence.

       We believe that the state habeas court’s determination that

this    information             was    disclosed         was     reasonable.          28     U.S.C.




                                                   11
§ 2254(d).     One of the prosecutors testified to telling at least

one of Burks’s lawyers about the nurses’ statements.                  Burks’s

lawyers, on the other hand, all contend that they never received

this information. Thus, this is a credibility issue, and we cannot

conclude that the state court’s reliance on the prosecutor’s

testimony was unreasonable.            Or, stated differently, although

Burks’s attorneys deny receiving this information, their denial

does not constitute clear and convincing rebuttal evidence that can

set aside a credibility determination made by the state court.

     Because this credibility determination was reasonable, we must

conclude that the evidence was disclosed.              Burks has, therefore,

failed to satisfy the first prong of Brady, and we need not address

whether the evidence was material.

                                       (2)

     We now turn to the second issue on which the district court

granted a COA.        This issue related to the sentencing phase of

Burks’s trial.    Burks challenges the admission of testimony during

sentencing about his involvement in a murder unrelated to the

Contreras    killing,    arguing   that      because    this   evidence   was

unreliable, its admission violated his due process rights.                The

unrelated    murder   had   occurred    in   1982.     Burks   had   allegedly

confessed to that crime to another prison inmate, his cousin, Gary

Bridgewater.     At the time, the state had decided not to try Burks

for the crime because of credibility concerns about Bridgewater.

During sentencing for the Contreras murder, however, prosecutors




                                       12
introduced testimony implicating Burks in that murder as evidence

of his “deathworthiness” under Article 37.071 § (b)(1) of Texas’

Annotated   Code   of   Criminal     Procedure:     “whether    there    is   a

probability that the defendant would commit criminal acts of

violence that would constitute a continuing threat to society.”

     The only basis upon which Burks attacks this evidence in this

federal   habeas   corpus   appeal   is   as   follows:    as   part    of   his

testimony   that   Burks    had    confessed   to    the   earlier      murder,

Bridgewater explained that Burks’s confession came when the two

were discussing a newspaper article about the murder.                    Burks

contends that Bridgewater’s testimony was untrue, because there was

no such newspaper article when the two men were together in prison

and because Burks could not read.         Burks argues, therefore, that

admission of this testimony was a violation of Burks’s due process

rights because he was “sentenced on the basis of assumptions

concerning his criminal record which were materially untrue.”

Townsend v. Burke, 334 U.S. 736, 741, 68 S.Ct. 1252, 92 L.Ed. 1690

(1948).

     We will not consider Burks’s arguments with respect to whether

Bridgewater’s testimony about the newspaper article proves that

testimony unreliable because Burks failed to raise it either in

state court or with the district court.             Consideration of these

facts is precluded because Burks did not exhaust the claim based on

these facts in state court.          Petitioners fail to exhaust their

state remedies when they resort to material evidentiary support in




                                     13
federal court that was not presented in state court.                 Graham v.

Johnson, 94 F.3d 958, 968 (5th Cir. 1996).              Moreover, because he

failed to raise the issue before the district court, this claim is

not properly before us, and should not be considered for the first

time on appeal.    Davis v. Scott, 51 F.3d 457, 467 (1995).             Because

this is the only argument his brief makes with respect to the

unreliability of evidence at sentencing, he has presented no basis

for relief on this issue.

                                     III

     We now move to the remaining two issues for which Burks does

not have a proper COA.

                                      A

     There are also two issues Burks raises for which he does not

have a COA.   He first charges that the trial court’s decision to

exclude testimony that someone else had confessed to the Contreras

murder constituted a denial of due process under Green v. Georgia,

442 U.S. 95, 99 S.Ct. 2150, 60 L.Ed.2d 738 (1979).                  Burks also

contends that     the   state,    under    Brady   v.   Maryland,    failed   to

disclose exculpatory information that would have been material

during sentencing.

     Before we can review either issue, we must first determine

whether a COA is appropriate.        We will treat his notice of appeal

as a request for the COA.        Fed. R. App. P. 22(b)(2).2         Determining

    2
     The rule reads: “A request addressed to the court of appeals
may be considered by a circuit judge or judges, as the court




                                     14
whether to issue a COA is a two-step inquiry.      First, a petitioner

must demonstrate exhaustion of remedies in state court.       Sterling

v. Scott, 57 F.3d 451, 453 (5th Cir. 1995).      Second, there must be

substantial showing of denial of a federal right.          Barefoot v.

Estelle, 463 U.S. 880, 893 n.4, 103 S.Ct. 3383, 77 L.Ed.2d 1090

(1983).3        With respect to the second prong, Burks need not show

that he should prevail on the merits.      Rather, he must demonstrate

that the issues are debatable among jurists of reason; that a court

could resolve the issues in a different manner; or that the

questions are adequate to deserve encouragement to proceed further.

Id.     If we determine that a COA is warranted, we then conduct a

review under the AEDPA standard already discussed.

                                     B

      We first address the habeas claim concerning evidence excluded

at trial.        Burks tried to call Regina Burks4 to testify that, on

the day of the murder, she had heard Bishop McConnell brag that he

himself was the killer.        Bishop had been drunk at a bar at the

time.         The trial court excluded Regina’s testimony on hearsay

grounds.       The Texas Court of Criminal Appeals, however, later held


prescribes. If no express request for a certificate is filed, the
notice of appeal constitutes a request addressed to the judges of
the court of appeals.”
          3
       Though these cases dealt with the grants of the pre-AEDPA
Certificates of Probable Cause, the distinction is irrelevant. We
have previously held that the standard for obtaining either is the
same. Murphy v. Johnson, 110 F.3d 10, 11 (5th Cir. 1997).
      4
        The two are not related.




                                     15
that because Bishop’s statement was against penal interest, the

statement fell within an exception to the hearsay rule and was

therefore improperly excluded. Burks v. State, 876 S.W.2d 877, 905

(Tex. Crim. App. 1994)(en banc). That court nevertheless concluded

that the exclusion was harmless error because the statement was not

credible.   Id. at 906.5

     Burks did not obtain a COA for his assertion that exclusion of

Regina Burks’s testimony constituted a denial of constitutional due

process, rendering his trial fundamentally unfair.    See Lowenfield

v. Phelps, 817 F.2d 285, 196 (5th Cir. 1987).          He bases his

argument on Green v. Georgia, 442 U.S. 95.        In that case, the

Supreme Court held that exclusion of evidence highly relevant to a

critical issue, where there were substantial reasons to assume its

reliability, constituted a violation of the defendant’s due process

rights.   Id. at 97.   Fundamental to a Green claim, however, is that

there be such substantial reasons to assume its reliability.    In a

similar case, where there were no such reasons, we held that there

had not been a denial of due process even though the trial court

had excluded testimony about the confession of someone other than

the defendant.    Little v. Johnson, 162 F.3d 855, 860 (5th Cir.

    5
     Burks’s first challenge, for which he does have a COA, is the
manner in which the court of criminal appeals conducted its
harmless error review. But because the Texas court treated its
harmless error analysis as a matter of Texas law under Texas Rule
of Appellate Procedure 81(b)(2), we cannot review the manner in
which it conducted this analysis or its conclusions. The Texas
court did not analyze the exclusion under either federal or
constitutional law.




                                  16
1998)(limiting Green to where there are “persuasive assurances of

trustworthiness” with respect to the confession).

       To obtain the COA, Burks must first demonstrate exhaustion of

remedies in state court.       Sterling, 57 F.3d at 453.         It appears

that Burks did raise this issue in state court in a vague manner,

though the state court did not address it in its decision.

       Having overcome the first hurdle, Burks must also establish

that a court could hold that he has made a substantial showing of

denial    of   a   federal   right   or    that   the     questions   deserve

encouragement to proceed further in order to obtain a COA.

Barefoot, 463 U.S. at 893 n.4.            We again note that the federal

right asserted under Green is a due process violation because of

the exclusion of evidence highly relevant to a critical issue,

where there were substantial reasons to assume its reliability.

Although Burks can satisfy the requirement that the identity of the

murderer be a critical issue, Burks cannot establish that a court

could find substantial reasons to assume the reliability of the

confession.

       It is true that the Texas Court of Criminal Appeals found

evidence that “sufficiently corroborate[d] Regina Burks’ testimony

to render it admissible under R. 803(24).”              Burks, 876 S.W.2d at

905.     That court discussed six points of “evidence” in support.

First, as the state court pointed out, Bishop made his “confession”

“only hours after the offense occurred, and the record [did] not

reflect that Bishop had any reason to lie or that he would gain




                                     17
some advantage by admitting the offense.”           Burks, 876 S.W.2d at

905.    Second, Louis McConnell testified that he might have seen

Bishop handle a small caliber gun about a week before the offense.

Third, because Victor Macias could not identify the black man at

the scene, it arguably could have been Bishop.            Fourth, the court

pointed out that Bilton never testified that he saw Burks shoot

Contreras, nor did Burks admit shooting Contreras.           Fifth, Bilton

testified that he did not hear any gunshots and that he did not see

Burks with a gun on the day of the offense.              Sixth, no gun was

recovered from Burks.

        Nevertheless,   although    the   Texas   court     held   that   the

confession should have been admissible, that does not mean that

there were “substantial reasons to assume its reliability” for

constitutional   purposes   under    Green.       The    Texas   court    also

concluded that the statement was of “questionable credibility,” and

that the impact of its admission at trial “would, at best, have

been negligible.”

       Anything more than a passing glance at the “evidence” that

supports the “confession” reveals the tenuous character of that

evidence.   Of the six items discussed above, only the first two are

really evidence of an affirmative nature.               The other four are

merely minor gaps in the prosecution’s case of direct evidence that

might allow speculation about the possibility of another murderer,

but only if the strong circumstantial evidence is discarded or

discounted.   Such questions can be raised in many cases, and they




                                    18
do not constitute persuasive reasons to believe that the confession

was reliable.

     Indeed, even weighing the two points of affirmative evidence--

Bishop’s lack of an incentive to lie and the fact that he may have

handled a gun--against the other evidence presented at trial

presents us with strong reasons to conclude that the confession was

plainly false.     First, according to Regina Burks, the first time

she heard Bishop discuss the murder, he said, “We shot Jesse.”            It

was only afterwards that he began taking credit.           And at the time,

as Regina Burks said, Bishop was “drunk,” “staggering,” “pretty out

of it,” and “about to fall.”        Second, Regina Burks testified that

Bishop “was always talking trash like that,” that “nobody ever pays

no attention to him when he’s drunk,” and that nobody believed

Bishop when he made the statement.

     Third, it would have been almost impossible for Bishop to have

committed    the   murder   under   the    circumstances   proved   by   the

prosecution at trial.       Most importantly, Bishop was not with the

men who went to rob Contreras.        Bilton testified that Bishop was

not in the car when he, Burks, and Mark McConnell drove to Jesse’s

Tortilla Factory on January 20.           Regina Burks happened to be at

Guillem’s house that same morning, and she saw that when Mark drove

off with Burks in the car, Bishop was not with them.             Moreover,

Guillem, who also saw the car drive off, testified that Bishop was

not in it.   In addition, Burks told his aunt that there was no one

at Jesse’s Tortilla Factory after he left that morning.              Thus,




                                     19
unless we discard virtually all evidence adduced at trial, it is

impossible to give the slightest credence to Bishop’s “confession”

except under the following scenario: he drove himself, he hid from

Burks during the attempted robbery, he sneaked into the shop

immediately afterwards and shot Contreras and then escaped unseen

before Macias’s arrival.

     Thus, instead of constituting substantial reasons to assume

the reliability of the statement, substantial evidence provides

compelling reasons to confidently conclude that Bishop’s confession

was unreliable.      Its exclusion, therefore, could not arguably

constitute a violation of due process under Green.           We therefore

deny Burks’s request for a COA on this issue.

                                   C

     The final issue Burks raises for which he lacks a COA is a

second Brady claim, alleging a failure to disclose exculpatory

evidence.    This claim relates to evidence of the unrelated 1982

murder   presented   during   sentencing,   which     we   have   discussed

earlier.    Burks had not been the only suspect in that 1982 murder.

A man named James Shaw had allegedly confessed the same crime to an

acquaintance,    Gary   Hawes.   Hawes   gave   the    police     a   written

statement and took a polygraph, which indicated that he was lying

about details of his story of Shaw’s alleged confession.                Hawes

later admitted to those lies.

     Burks contends that, although his lawyers were informed about

what Hawes had told police about Shaw’s “confession,” they never




                                   20
received Hawes’s written statement or polygraph results from the

state.    Had he received these documents, Burks argues, he somehow

would have more aggressively presented Shaw as the person who had

committed the earlier murder.6

     We begin by analyzing whether a COA is warranted.            Burks did

exhaust his state remedies by raising this issue in his state

habeas proceeding. We therefore move to whether he has established

the debatable denial of a federal right.          Since at this stage we

are merely determining the propriety of a COA, we are not governed

by the AEDPA’s deferential standard.

     As we have earlier noted, the first prong of Brady asks

whether there was a failure to disclose, and we begin with Burks’s

claim concerning Shaw’s written statement.          Burks points to his

files, which lack several pages from that statement.          These pages

contained   information   not    disclosed     anywhere   else.     Burks’s

argument, however, is belied by his attorney’s questions at trial.

These    questions   reveal   knowledge   of    information   from    those

allegedly missing pages.        In short, the evidence indicates that

Burks’s attorneys had this information at that time.              Burks has

    6
      Burks raises a connected issue for which he does have a COA:
whether the district court’s deference to the state court under the
AEDPA was appropriate on this issue. Burks contends that because
the state court did not issue specific findings of fact or analysis
of law related to this habeas claim, the district court should not
have deferred to its dismissal of the claim under the AEDPA. But
because we independently hold that Burks has failed to establish an
arguable federal right with respect to this claim, we need not
determine what standard the district court should have used in
reviewing the state court decision.




                                    21
presented no explanation as to how his counsel had that knowledge

other than from these pages.     Thus, the mere fact that these pages

are now misplaced does not satisfy the first Brady prong--a showing

that there has been a failure to disclose.

      That leaves the polygraph testimony, which does not appear to

have been disclosed.      We must, therefore, determine whether the

polygraph results were exculpatory under Brady’s second prong.      To

qualify, the undisclosed evidence must be “material,” meaning that

there is a reasonable probability that had it been disclosed, the

result of the proceeding would have been different.       United States

v. Burns, 162 F.3d 840, 851 (5th Cir. 1998).      “Mere speculation”

that disclosure would have spurred defense counsel to additional

investigation    [does]    not   make   that   evidence    “material.”

Bartholomew, 516 U.S. 1, 6, 116 S.Ct. 7, 133 L.Ed.2d 1 (1995).

      Based on this standard, a court could not hold that the

polygraph results were exculpatory. First, they were inadmissible.

Id.   Even if they had been admitted, the fact that they showed that

Hawes had lied would not have helped Burks.     Burks’s argument for

materiality, that having the results somehow would have led him to

emphasize Shaw as a suspect in the earlier murder, is analogous to

the argument the Supreme Court rejected as “mere speculation” in

Bartholomew.    Thus, no court could hold that this evidence was

exculpatory.    Because the claim fails to even debatably qualify

under Brady’s second prong, we deny the COA on this issue and end

our review.




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                              IV

     For the reasons stated herein, Burks’s petition for habeas

corpus relief is

                                                   D E N I E D.




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