                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT

                   _______________________________

                             No. 00-30136

                   _______________________________


ERNEST LEWIS,

                                                 Petitioner-Appellant,


versus


BURL CAIN, Warden, Louisiana State Penitentiary,

                                                  Respondent-Appellee.

         _________________________________________________

              Appeal from the United States District Court
                  for the Eastern District of Louisiana
                              (99-CV-924-F)
         _________________________________________________
                              March 9, 2001


Before WIENER and STEWART, Circuit Judges, and SMITH, District
Judge.*

PER CURIAM**:

     Petitioner-Appellant     Ernest   Lewis   (“Lewis”)   appeals   the

district court’s dismissal of his habeas corpus petition, in which

Lewis alleged that during his armed robbery trial the prosecution


     *
        District Judge of the Western District of Texas, sitting
by designation.
     **
        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that this opinion should not be published and is not precedent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.
suppressed exculpatory evidence in violation of Brady v. Maryland.1

Finding no constitutional error, we affirm the district court’s

decision and dismiss Lewis’s petition.

                                   I.

                       FACTS AND PROCEEDINGS

     Lewis, along with a co-defendant, was convicted after a jury

trial in Louisiana state court in 1985 on two counts of armed

robbery for the holdup of brothers Derrick and Benny Barnes.2    He

was sentenced to 198 years’ imprisonment at hard labor without

benefit of parole, probation, or suspension of sentence.        His

conviction was affirmed on direct appeal, but his sentence was

vacated and the case remanded for resentencing.3   On remand, Lewis

was resentenced to 198 years on the first count and 99 years on the

second count.4

     In 1999, Lewis filed this successive federal petition for writ

of habeas corpus pursuant to 28 U.S.C.A. § 2254.5      Among other

claims, Lewis advanced that the state violated Brady by failing to

turn over to the defense a supplemental police report relating that



     1
         373 U.S. 83, 86 (1963).
     2
         State v. Rattler, 503 So.2d 168 (La. Ct. App. 1987).
     3
         Id. at 170, 172.
     4
        See State v. Lewis, 537 So.2d 1315, 1315-16 (La. App. 4th
Cir. 1989).
     5
        Lewis previously filed for habeas relief in federal court
in 1991.

                                   2
five days after the robbery, Derrick Barnes, the only victim to

identify Lewis at trial, stated that “he did not get a good enough

look at the two men to identify them from photos.”              Twelve days

after he made this statement, however, Derrick Barnes identified

Lewis from a photo array, and he repeated the identification at

trial.

      In light of the police report newly discovered by Lewis,6 this

court granted him permission to file a successive habeas petition

pursuant to 28 U.S.C.A. § 2254(b)(2)(B).7             The district court for

the Eastern District of Louisiana dismissed the petition with

prejudice on the recommendation of the magistrate judge, who

concluded that Lewis’s failure to obtain the police report before

he filed a previous habeas petition in 1991 “does not equate with

a   finding   of   due   diligence”       under   §   2254(b)(2)(B)(i).   The

      6
        The state concedes that it did not turn over the report
to Lewis at trial. He received it in 1993 on a writ of mandamus
from the Civil District Court for the Parish of Orleans.
      7
          28 U.S.C.A. § 2254(b)(2)(B) states:

      (b)(2) A claim presented in a second or successive
      habeas corpus application under section 2254 that was
      not presented in a prior application shall be dismissed
      unless —— . . .
           (B)(i) the factual predicate for the claim could
      not have been discovered previously through the
      exercise of due diligence; and
           (ii) the facts underlying the claim, if proven and
      viewed in the light of the evidence as a whole, would
      be sufficient to establish by clear and convincing
      evidence that, but for constitutional error, no
      reasonable factfinder would have found the applicant
      guilty of the underlying offense.


                                      3
magistrate judge also recommended that Lewis’s claim be denied on

the merits.

     The magistrate judge first noted that the police report, which

was not a verbatim account of the victim’s statements, might not

have been appropriately used for impeachment.8      Additionally, she

pointed out that the defense (1) learned before trial that Barnes

did not make an identification at the initial photographic lineup

and (2) had a full opportunity to cross-examine Barnes about his

identification of Lewis.9 Finally, the magistrate judge noted that

the Louisiana state courts had rejected Lewis’s Brady claim in his

attempts   to   obtain   post-conviction   relief   in   state   court,

determinations entitled to great deference by the district court.10

The magistrate judge concluded that, “[w]hen viewed in the context

of the entire trial, the Court does not believe that the outcome of

Lewis’ trial would have been any different had the disputed report

been presented to the defense.”       The district court adopted the

magistrate’s report and recommendation and dismissed the petition

     8
        See, e.g., United States v. Merida, 765 F.2d 1205, 1215-
16 (5th Cir. 1985).
     9
        Derrick Barnes testified that he identified Lewis’s
picture at the apartment the brothers shared. Actually, he was
unable to identify anyone when the police showed him photographs
there. Benny Barnes accurately testified later in the trial that
Derrick did not identify either robber during the first
photographic showing, but did pick Lewis from a photo array
subsequently shown at police headquarters.
     10
        See, e.g., Drinkard v. Johnson, 97 F.3d 751, 767-68 (5th
Cir. 1996), overruled in part on other grounds, Lindh v. Murphy,
521 U.S. 320 (1997).

                                  4
with prejudice.

      Lewis appealed, proceeding pro se and in forma pauperis.     We

granted him a certificate of appealability on the issue whether the

State improperly withheld exculpatory evidence in violation of

Brady.11

                                 II.

                               ANALYSIS

A.   Standard of Review

      The standard for collateral federal review of state-court

convictions is given in 28 U.S.C. § 2254(d)12:

           An application for writ of habeas corpus on behalf
      of a person in custody pursuant to the judgment of a
      State court shall not be granted with respect to any
      claim that was adjudicated on the merits in State court
      proceedings unless the adjudication of the claim ——
           (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 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.


B.   Discussion

      We agree with the district court that Lewis did not exercise

due diligence within the meaning of § 2254(b)(2)(B)(i).    Although

police reports were considered confidential and not subject to

      11
        Therefore, none of Lewis’s other claims, including an
ineffective assistance of counsel claim rejected by the district
court, are before us.
      12
           See Singleton v. Johnson, 178 F.3d 381, 384 (5th Cir.
1999).

                                  5
disclosure under Louisiana law at the time of Lewis’s trial, they

became public records subject to disclosure through public records

requests effective August 31, 1986.13    Lewis states that he never

had access to the police report that was suppressed at trial, and

that he “had no knowledge of how to obtain any public records but

was assisted by several different prisoners over the years in

seeking discovery and preparation of Habeas Corpus applications.”

     The district court noted, however, that in 1988 Lewis sought

post-conviction relief from the state courts on a Brady claim based

on a different police report withheld by the state at trial,

indicating that Lewis knew how to obtain police reports before he

filed his first application for federal habeas corpus relief in

1991.     Lewis nevertheless failed to ask the district attorney for

a copy of the file regarding his arrest and prosecution until

October 1992.     Because Lewis apparently could have obtained the

supplemental police report here at issue before he filed his first

federal habeas petition, he could have discovered the factual

predicate for this successive petition through the exercise of due

diligence, barring relief under § 2244(b)(2)(B)(i).14

     In the alternative, we turn to the merits of Lewis’s claim.

After an accused requests exculpatory material, suppression by the

     13
        See Hudson v. Whitley, 979 F.2d 1058, 1061 (5th Cir.
1992) (citing State v. McDaniel, 504 So.2d 160, 161 (La. App. 2d
Cir. 1987)); State v. Shropshire, 471 So.2d 707, 708 (La. 1985).
     14
        See Graham v. Johnson, 168 F.3d 762, 789-90 (5th Cir.
1999), cert. denied, 529 U.S. 1097 (2000).

                                   6
prosecution of favorable evidence violates due process if the

evidence is material either to guilt or to punishment.15               To prove

a Brady violation, a petitioner must show that (1) the prosecution

suppressed or withheld evidence; (2) the evidence was favorable;

and   (3)    the   evidence   was   material   to   the   defense.16     Brady

encompasses evidence that may be used to impeach a witness’s

credibility.17      Withheld evidence is “material” under Brady “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.”18      A “reasonable probability” is shown “when the

government’s evidentiary suppression ‘undermines confidence in the

outcome of the trial.’”19

      We again agree with the district court that there is no

reasonable probability that the result of Lewis’s trial would have

been different had the state disclosed the police report to the

defense. Significant to our determination is the fact that Lewis’s

photograph was not included in the initial array shown to the

victim.       That array did include a photograph of Lewis’s co-


      15
            Brady, 373 U.S. at 87.
      16
            United States v. Stephens, 964 F.2d 424, 435 (5th Cir.
1992).
      17
        Kopycinski v. Scott, 64 F.3d 223, 225 (5th Cir. 1995)
(citing United States v. Bagley, 473 U.S. 667, 676 (1985)).
      18
            Bagley, 473 U.S. at 682.
      19
        Kyles v. Whitley, 514 U.S. 419, 434 (1995) (quoting
Bagley, 473 U.S. at 678).

                                       7
defendant, Donald Lee Williams,20 who was convicted along with Lewis

of   the     armed   robbery   of    the    Barnes     brothers.    Benny   Barnes

identified Williams from the first array; Derrick identified no

one.        After Lewis had emerged as a suspect in the holdup, the

brothers were shown a second array less than three weeks after the

crime, which array included Lewis’s photograph, but not Williams’s.

Derrick Barnes identified Lewis; Benny identified no one.                   These

facts fit the description of the robbery given at trial, in which

the brothers explained that, because of the way that the robbery

transpired and the physical layout of the scene, each of them saw

only one of the perpetrators.               Derrick Barnes testified at trial

that he had been able to see Lewis’s face.

       The police report unquestionably should have been turned over

to the defense. Nevertheless, on these facts, we are not convinced

that there is a reasonable probability that Lewis would have been

acquitted had the defense obtained access to the withheld report’s

version of the victim’s statement that “he did not get a good

enough look at the two men to identify them from photos.”

                                           III.

                                     CONCLUSION

       For     the   foregoing      reasons,      we   are   satisfied   that   the

supplemental police report is not “material” evidence under Brady,

and that the state adjudication of Lewis’s claim was not contrary


       20
             Also known as Ray A. Rattler.

                                            8
to federal law or based on an unreasonable determination of the

facts.   We therefore affirm the judgment of the district court

dismissing Lewis’s petition for habeas corpus.

AFFIRMED.


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