                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit

                                                                            FEB 11 1997
                       UNITED STATES COURT OF APPEALS

                             FOR THE TENTH CIRCUIT                     PATRICK FISHER
                                                                                Clerk


    MICHAEL D. COLBY,

                Petitioner-Appellant,

    v.                                                    No. 95-2128
                                                    (D.C. No. CIV-92-513-JP)
    JOHN THOMAS, Successor to Robert                        (D.N.M.)
    Tansy, Warden, P.N.M.; ATTORNEY
    GENERAL OF THE STATE OF NEW
    MEXICO,

                Respondents-Appellees.


                             ORDER AND JUDGMENT *


Before ANDERSON, KELLY, and LUCERO, Circuit Judges.


         Petitioner Michael D. Colby appeals from the district court’s denial of his

petition for a writ of habeas corpus. 1 Our jurisdiction over this appeal arises from

28 U.S.C. § 1291. We affirm.

*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
1
             After examining the briefs and appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The
case is therefore ordered submitted without oral argument.
      Petitioner, along with a codefendant, William Jack Stephens, was convicted

of first degree murder of a fellow inmate and sentenced to life imprisonment. The

New Mexico Supreme Court affirmed the conviction. See State v. Stephens,

600 P.2d 820 (N.M. 1979). Thereafter, petitioner moved for a new trial based on

newly discovered evidence. After holding an evidentiary hearing, the state trial

court denied a new trial. The New Mexico Supreme Court affirmed the denial.

See State v. Stephens, 653 P.2d 863 (N.M. 1982). Petitioner then filed for post-

conviction relief in state court alleging denial of his due process right to a fair

trial. He claimed (1) after the state trial court denied a new trial, he was never

able to present all of the evidence to one jury; (2) the State used perjured

testimony given in exchange for undisclosed promises during the trial; (3) the

State withheld exculpatory evidence. Additionally, petitioner challenged a

changed interpretation of parole eligibility requirements as a due process, equal

protection, and ex post facto violation. The state district court denied relief, and

the New Mexico Supreme Court subsequently denied certiorari.

      Petitioner then filed for federal habeas corpus relief asserting essentially

the same grounds he raised before the state courts. The district court adopted the

magistrate judge’s amended proposed findings, recommended disposition with

clarification, and denied relief. The district court determined that petitioner’s due

process rights were not violated because the prosecution did not make deals with


                                          -2-
certain witnesses and because the state trial court did not err in denying a new

trial based on allegedly newly discovered and exculpatory evidence. The district

court concluded petitioner was not unconstitutionally deprived of good time

credits on his life sentence when the interpretation of the parole regulations was

changed. Petitioner appealed. 2

      In reviewing the district court’s denial of habeas corpus relief, we review

the district court’s factual findings for clear error, see Matthews v. Price, 83 F.3d

328, 331 (10th Cir. 1996), except that the district court’s factual findings made

from that court’s review of the state court record are subject to independent

review, see Cunningham v. Diesslin, 92 F.3d 1054, 1062 n.6 (10th Cir. 1996).

We review the district court’s legal conclusions de novo. See Matthews, 83 F.3d

at 331.

      Petitioner first argues that because the State withheld material exculpatory

evidence, his conviction was obtained in violation of Brady v. Maryland, 373 U.S.

83 (1963). According to petitioner, the exculpatory evidence included: (1) a



2
       Because petitioner filed his notice of appeal and the district court granted a
certificate of probable cause prior to the enactment of the Antiterrorism and
Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (Apr.
24, 1996), the Act does not apply to this appeal. See Edens v. Hannigan, 87 F.3d
1109, 1112 n.1 (10th Cir. 1996); see also United States v. Hernandez, 94 F.3d
606, 612 n.4 (10th Cir. 1996)(refusing to discuss amendments at length because
petitioner not entitled to federal habeas corpus relief under more expansive scope
of review prior to Act).

                                         -3-
statement by Officer Gallegos that petitioner had left the area where the crime

was committed before it was committed; (2) undisclosed promises made to

prosecution witnesses in exchange for their testimony; (3) lost or destroyed

splinters removed from petitioner’s hands. He believes the district court should

have analyzed the cumulative effect of withholding these items of evidence,

rather than merely evaluating each nondisclosure independently.

      Under Brady we review mixed questions of law and fact de novo. See

Banks v. Reynolds, 54 F.3d 1508, 1516 (10th Cir. 1995). The prosecution’s

suppression of exculpatory evidence, despite a defendant’s request, violates due

process if that evidence is material to guilt, irrespective of the good or bad faith

of the prosecution. See Brady, 373 U.S. at 87. To establish a Brady violation,

petitioner must show the prosecution suppressed material evidence favorable to

him. See Banks, 54 F.3d at 1516. Evidence is material if there is a reasonable

probability that, if the evidence had been disclosed, the result of the proceeding

would have been different. See Kyles v. Whitley, 115 S. Ct. 1555, 1566 (1995);

see also Banks, 54 F.3d at 1516 (primary consideration is whether failure to

disclose resulted in unfair trial). In evaluating the materiality of the withheld

evidence, a court considers the cumulative impact of the evidence, in light of the

entire record, including its utility to the defense and its potentially damaging

impact on the prosecution’s case. See Banks, 54 F.3d at 1518.


                                          -4-
      The parties agree that Officer Gallegos’ statement to prison officials after

the murder—that petitioner had left the area before the crime was committed and

that he did not see any blood on petitioner’s clothes—was never revealed to

petitioner. The New Mexico Supreme Court found that there was no evidence

that the prosecution knew of Officer Gallegos or his statement to prison officials

until the hearing on the motion for new trial and that petitioner did not exercise

due diligence to learn of Officer Gallegos. See Stephens, 653 P.2d at 866-68.

Petitioner believes the prosecution’s obligation to turn over evidence was

independent of any knowledge petitioner should have had. Petitioner further

contends that he could not have learned of Officer Gallegos or his statement

because there was no written record regarding Officer Gallegos’ area of

assignment.

      We need not determine whether petitioner was diligent in his discovery, or

whether knowledge of the information should have been imputed to the

prosecution and therefore disclosed. See Smith v. Secretary of N.M. Dep’t of

Corrections, 50 F.3d 801, 824-25 (10th Cir.), cert. denied, 116 S. Ct. 272 (1995).

Brady requires disclosure of exculpatory evidence only if the evidence is material.

See Ballinger v. Kerby, 3 F.3d 1371, 1376 (10th Cir. 1993). This evidence was

not material. Although an officer’s testimony may carry more weight than that of

an inmate, there is no indication that Gallegos’ statement was material because, as


                                         -5-
the district court determined, it was cumulative to the testimony of five witnesses

and to that of petitioner and Stephens.

      Petitioner argues that the State (1) did not disclose information regarding

“deals” given to trial witnesses, and (2) allowed perjury from witnesses at trial.

As evidence the prosecution made undisclosed promises to prosecution witnesses,

petitioner points to several executive clemencies granted shortly after trial. It is

settled that a prosecutor must disclose promises made by the State to prosecution

witnesses in exchange for their testimony. See Giglio v. United States, 405 U.S.

150, 153-55 (1972). In reviewing petitioner’s claim that several witnesses were

promised release from prison in exchange for their testimony, the New Mexico

Supreme Court concluded that the release of inmates through executive clemency

did not patently prove they were promised release in exchange for testimony. See

Stephens, 653 P.2d at 869. The record supports this finding. The testimony at

trial and at the hearing on the motion for new trial established that the only

promises made to witnesses concerned safety. In contrast, petitioner merely

alleges without support that promises had been made, but not disclosed. See

Demps v. Wainwright, 805 F.2d 1426, 1432 (11th Cir. 1986). The evidence of the

subsequent granting of executive clemencies alone does not establish that

undisclosed promises were made. See United States ex rel. Jones v. DeRobertis,




                                          -6-
766 F.2d 270, 273 (7th Cir. 1985). Like the district court and state courts, we

decline to infer undisclosed promises were made.

      Petitioner argues that the State suppressed additional exculpatory evidence

when splinters taken from his hands were later lost or destroyed. Petitioner did

not raise this issue in his federal habeas corpus petition. He first raised the issue

in his district court briefs, and the district court declined to address it. Typically

issues not raised in the habeas petition may not be raised on appeal. See

Cacoperdo v. Demosthenes, 37 F.3d 504, 507 (9th Cir. 1994) (issue first raised in

traverse and not considered by district court, not cognizable on appeal); Smith v.

Black, 970 F.2d 1383, 1389 (5th Cir. 1992); Kennedy v. Delo, 959 F.2d 112, 117

(8th Cir. 1992). Were we to consider the argument, it has no merit. Petitioner

has not shown bad faith on the part of the state in failing to preserve this alleged

exculpatory evidence. See Arizona v. Youngblood, 488 U.S. 51, 56 n.*, 57-58

(1988); United States v. Fleming, 19 F.3d 1325, 1331 (10th Cir. 1994).

      Petitioner next argues that the failure to grant a new trial based on newly

discovered evidence violated his due process rights. As grounds for this claim,

petitioner points to the recanted testimony of the prosecution’s eye witness,

Ronnie Fritts, who petitioner claims was unavailable to testify at the hearing on

the motion for a new trial. The trial court determined Fritts was not unavailable

at the time of the hearing and offered to delay ruling on the motions for new trial


                                           -7-
in order to allow petitioner to exhaust all possible remedies to obtain this witness.

However, petitioner apparently made no further attempts to obtain the witness or

secure his affidavit. Additionally, the state district court refused to admit as

hearsay a statement of an investigator that Fritts recanted his testimony. We

agree with the district court that under the circumstances the state trial court did

not err in refusing to declare Fritts unavailable or in refusing to allow the

inadmissible hearsay statement of the investigator.

      Petitioner contends that Michael Price’s confession that he committed the

murder with Fritts and that petitioner and Stephens had no involvement in the

murder was new evidence. 3 Petitioner disputes the determination of the district

court that this evidence could have been discovered prior to trial, by arguing that

although petitioner and Price were co-defendants they were not co-conspirators.

The New Mexico Supreme Court determined that Price’s confession was merely

cumulative to the defense presented by petitioner that someone else had

committed the murder. See Stephens, 653 P.2d at 868. Our review of the record

supports that determination. We also consider that Price’s various explanations

for delay in confessing suggest his confession may not have been credible. At the

time of the hearing, Price, petitioner, and Stephens were together charged with



3
      Price was indicted as a codefendant. During trial he was severed as a
defendant, and later pled guilty to voluntary manslaughter.

                                          -8-
murder in another case. Price asserted the Fifth Amendment when asked whether

he had become close friends with petitioner and Stephens. Thus, Price’s

confession probably would not have produced an acquittal in the event of a new

trial.

         Petitioner claims he was entitled to a new trial due to the newly discovered

evidence of Officer Gallegos. As noted, Officer Gallegos’ statement was

cumulative to the evidence presented.

         Petitioner has not shown (1) his failure to learn of the new evidence was

not due to his own lack of diligence, (2) the evidence was not merely cumulative,

or (3) it would probably produce an acquittal in the event of a retrial. Cf. United

States v. Palmer, 766 F.2d 1441, 1446 (10th Cir. 1985). We therefore conclude

petitioner has failed to prove his due process rights were violated when he was

denied a new trial.

         Finally, petitioner argues that the district court erred in summarily deciding

he was properly deprived of good time credits without considering all of the

arguments he raised not precluded by Stephens v. Thomas, 19 F.3d 498 (10th Cir.

1994). Petitioner maintains the district court did not address his arguments that

his due process and equal protection rights and his right against an ex post facto

law were violated when the New Mexico parole board changed its interpretation

of the word “serve” in only part of the statute. These arguments were fully


                                            -9-
discussed and rejected in Stephens. The district court did not err by failing to

elaborate further.

      AFFIRMED.

                                       ENTERED FOR THE COURT



                                       Carlos F. Lucero
                                       Circuit Judge




                                         -10-
