                                                                                 United States Court of Appeals
                                                                                          Fifth Circuit
                                                                                        F I L E D
                            UNITED STATES COURT OF APPEALS
                                                                                         August 10, 2004
                                 FOR THE FIFTH CIRCUIT
                                                                                    Charles R. Fulbruge III
                                       __________________                                   Clerk
                                          No. 02-41592
                                       __________________


                                    ALVIN ANDREW KELLY,

                                        Petitioner-Appellant,

                                                  v.

                              DOUG DRETKE, DIRECTOR,
                       TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
                        CORRECTIONAL INSTITUTIONS DIVISION,

                                       Respondent-Appellee.

                    ______________________________________________


                      Appeal from the United States District Court for the
                             Eastern District of Texas, Beaumont
                                      No. 1:00-cv-636
                    ______________________________________________


Before BARKSDALE, DeMOSS, and BENAVIDES, Circuit Judges.

BENAVIDES, Circuit Judge:*

       Petitioner Alvin Andrew Kelly was convicted of capital murder in Texas state court and

sentenced to death. Petitioner appeals the district court’s summary judgment denial of his petition

for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The district court granted Petitioner a

certificate of appealability (“COA”) on four of the claims. The four claims are: (1) that Petitioner’s

       *
               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 R. 47.5, the Court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
conviction was obtained through the prosecution's use of perjured testimony; (2) that the prosecution

failed to disclose exculpatory evidence; (3) that the prosecution failed to disclose that it had agreed

not to prosecute Petitioner’s former wife or brother-in-law in exchange for their testimony; and (4)

that the district court made impermissible credibility determinations in connection with its grant of

summary judgment.1

       This Court denied Petitioner’s request to grant him a COA as to seven additional issues.

Kelly v. Cockrell, 72 Fed. Appx. 67 (5th Cir. 2003). We now plenarily review the claims for which

a COA was granted by the district court. For the following reasons, the district court’s denial of

Petitioner’s petition for a writ of habeas corpus is affirmed in part and reversed in part. The case is

remanded for further proceedings.

                                        I. BACKGROUND2

       On the morning of May 1, 1984, in Gregg County, Texas, the bodies of Jerry Morgan

(“Jerry”), his wife Brenda Morgan (“Brenda”), and their twenty-two month old son Devin Morgan

(“Devin”) were discovered in their home by other family members. Each victim died of gunshot

wounds. Various items were missing from the victims’ home, including a 1977 Pontiac Catalina, a

.22 caliber revolver, a .380 semi-automatic pistol, a 7-millimeter rifle, a Remington 870 pump action



       1
                 Petitioner contends that the district court made credibility determinations that are
inappropriate at the summary judgment stage. See Quorum Health Resources, L.L.C. v. Maverick
County Hosp. Dist., 308 F.3d 451, 458 (5th Cir. 2002). In his brief, Petitioner alleges that these
credibility determinations only tainted the district court’s resolution of the three substantive issues
for which a COA was granted. As such, this is not a separate ground for relief, but rather a further
procedural attack on the three substantive COA issues. We will address this averred error in our
resolution of the three substantive issues.
       2
               The factual and procedural background is taken largely from our denial of Petitioner’s
request for a COA as to additional issues, Kelly, 72 Fed. Appx. at 68-72.

                                                  2
shotgun, a .38 caliber derringer, a television set, a video recorder, a stereo, decorati ve brass

butterflies, and a coffee maker.

       These murders went unsolved for six years. In 1990, a man named Chris Vickery called the

Gregg County Sheriff’s Office and indicat ed that Cynthia May Kelly Cummings (“Cynthia”),

Petitioner’s former wife, had information for the authorities. At that time, Cynthia lived in Michigan,

and Petitioner was serving a 30-year sentence in Texas for the murder of John Ford.3 The authorities

contacted Cynthia, and ultimately obtained an indictment charging Petitioner with the capital murder

of Devin during the course of the robbery of Jerry.

       At trial, Steven Kelly (“Steven”), Petitioner’s younger brother, testified that Petitioner and

he were in the business of selling drugs. Petitioner’s source of drugs was Walter Shannon. Several

days prior to the instant offense, Steven drove with Petitioner and Ron Wilson (“Wilson”), a fellow

drug trafficker, to the Morgans’ home. Prior to exiting the vehicle, Petitioner instructed Steven to

remain in the vehicle. Disregarding that instruction, Steven walked around to the back of the house

because he heard an argument. Steven observed Petitioner pointing a gun at Jerry and threatening,

“I want you to know that I can kill you at any time.” Petitioner noticed Steven watching and angrily

ordered him back to the vehicle. As Steven returned to the vehicle, he heard Wilson arguing with a

woman inside the home. Petitioner and Wilson then returned to the vehicle.

       As the three men drove away, Wilson, obviously upset, said to Petitioner, “I told you not to

bring him [Steven] because . . . we’re supposed to take care of some business, and . . . we didn’t take

care of it, . . . we’re supposed to prove a point, and now, that they’re going to be upset with us.”



       3
             Petitioner pleaded guilty to the unrelated murder of John Ford which occurred after
the Morgan murders.

                                                  3
Petitioner responded, “We can always come back later and take care of it . . . there’s no problem

there.”

          Steven further testified that a few days later on the night of April 30, 1984 (the night of the

instant offense), Petitioner, Wilson, and Cynthia arrived at his house after he and his wife went to bed.

Appearing very nervous and in a hurry, Petitioner said he was in serious trouble and needed money.

Petitioner confessed that he had killed the family Steven had seen him t hreaten, and the child was

“involved.” Petitioner then opened a briefcase, handed Steven a pistol,4 and asked for “five hundred

dollars to get out of town.” Steven gave Petitioner five hundred dollars. Petitioner left with Cynthia

and Wilson.

          Cynthia testified that she met Petitioner sometime in 1982 or 1983, and that they began living

together in Tyler, Texas.5 Cynthia thereafter became addicted to methamphetamine. She frequently

accompanied Petitioner when he sold drugs. Petitioner carried a firearm and had Cynthia carry a

pistol to “watch his back.”

          On the evening of April 30, 1984, after drinking beer and injecting methamphetamine,

Cynthia, Petitioner, and Wilson drove to the victims’ home. Upon arrival, Petitioner ordered Cynthia

to remain in the vehicle. Cynthia had been unaware of both the destination and the purpose of this

trip. While waiting for the men, Cynthia heard gunfire and a baby crying. She entered the home and

saw that Petitioner had a woman, Brenda Morgan (“Brenda”), pinned against the wall and that a

baby, Devin Morgan (“Devin”), was crying. Cynthia picked up the child and shielded him from the



          4
               Petitioner was wearing a pistol when he entered Steven’s house but he did not give
that gun to Steven.
          5
                 Cynthia and Petitioner were married in 1985, after the Morgan murders.

                                                    4
sight of his mother struggling with Petitioner. Petitioner shot Brenda in the back of the neck and

dragged her to a bedroom. Cynthia put the baby in a chair and followed Petitioner to the bedroom.

Brenda’s husband Jerry had already been shot, and Petitioner placed Brenda next to him. Brenda

begged Cynthia for help, and Cynthia responded by retrieving a towel and placing it under Brenda’s

head.

        Cynthia returned to the living room and attempted to comfort the crying baby. Petitioner

grabbed the crying infant from Cynthia and shot him in the head. Petitioner aimed his gun at Cynthia

and ordered her to return to the vehicle. As she left the house, Cynthia heard Petitioner again fire a

shot. Cynthia testified that Petitioner used the same gun, a .22 caliber pistol, to shoot both Brenda

and the baby.

        Petitioner and Wilson took several items from the victims’ home, including guns, decorative

brass butterflies, and a coffee maker. Petitioner, with Wilson as a passenger, drove the victims’ car

and ordered Cynthia to follow him in their vehicle. Pursuant to Petitioner’s instructions, Wilson and

Cynthia assisted Petitioner in wiping the victims’ car to destroy any fingerprints evidence. They

abandoned the car in a hospital parking lot in Tyler, Texas. Subsequently, while driving, Petitioner

and Wilson discussed needing money, and the three “ended up at” Steven’s home. Cynthia testified

that her memory became “blurry” after that point. She did remember, however, that Petitioner and

Steven retreated to the pool room to have a conversation. She did not hear the conversation.

        The State introduced evidence corroborating several points of Cynthia’s testimony, including

the location of Brenda’s and Devin’s gunshot wounds, the caliber of the murder weapon, the location

and position of the bodies in the home, t he towel that was found under Brenda’s head, and the

location of the victims’ car, devoid of fingerprints. The State also introduced evidence that Jerry and


                                                  5
Brenda had been City Marshal Reserve Officers. The state argued that Petitioner killed the Morgans

because they were providing information to law enforcement.

         Additionally, Cynthia’s sister Violet Brownfield testified that Petitioner “bragg[ed]” about

killing a family, including a child. Danny Moore, who met Petitioner through Moore’s cousin,

testified that Petitioner said that he collected “debts at a forty-sixty split” for Walter Shannon. Moore

further testified that Petitioner said he had “taken care of that job . . . [and] need[ed] to go see the

man about some money.” Petitioner went on to say, “that man, his old lady, and the kid . . . they’re

not coming back.” Petitioner became angry and said, “I warned them, they had a chance. [T]hey

wouldn’t do nothing.” Petitioner warned, “there’s going to be a lot more people end up like this if

they don’t pay up.”

         Petitioner’s defense theory was that the victims were killed by an unidentified black assailant.

He relied on the following evidence: (1) hairs with Negroid characteristics were found in vacuum

sweepings from the Morgans’ home; (2) a pick-up truck was stolen from a parking lot near the

victims’ abandoned car; (3) two black males were apprehended for the theft of that truck; and (4) a

necklace was recovered from the black males that two of the victims’ family members initially

identified as belonging to Brenda. Petitioner’s theory was that Cynthia had a relationship with a black

man and that she fabricated her story to protect that man or to attempt revenge against Petitioner or

both.6

         In October of 1991, a Gregg County jury found Petitioner guilty of capital murder. At the



         6
                The state introduced evidence through Timothy Fallon, a Trace Evidence Analyst, that
the hairs with Negroid characteristics did not match either of the two men apprehended for the truck
theft. Additionally, Fallon explained that hair that had Negroid characteristics did not necessarily
come from a black individual and could come from a Caucasian individual.

                                                    6
punishment phase of the trial, the state introduced evidence that Petitioner had a bad reputation for

violence and a reco rd of criminal convictions, including burglary, unlawful weapon possession,

controlled substance delivery and possession, aggravated sexual assault, and murder. The jury

affirmatively answered the special issues set forth in Article 37.071(b) of the Texas Code of Criminal

Procedure. Accordingly, the trial court sentenced Petitioner to death. The Texas Court of Criminal

Appeals affirmed the conviction and sentence. Kelly v. State, No. 71,361 (Tex.CrimApp. June 26,

1996). The Supreme Court of the United States denied Petitioner’s petition for certiorari. Kelly v.

Texas, 520 U.S. 1145 (1997).

       Petitioner filed a state habeas petition. The state trial court recommended denying relief. The

Court of Criminal Appeals denied relief without written order. Ex parte Kelly, No. 36,791-10

(Tex.Crim.App. April 8, 1998). The Supreme Court of the United States denied certiorari. Kelly v.

Texas, 525 U.S. 891 (1998).

       The federal district court dismissed Petitioner’s first federal habeas petition as unexhausted.

Petitioner then filed a second application for state post-conviction relief, which was dismissed as an

abuse of the writ by the Texas Court of Criminal Appeals. Ex Parte Kelly, No. 36,791-02

(Tex.Crim.App. September 13, 2000). Petitioner then filed the instant petition, the district court’s

denial of which he appeals.

                                 II. STANDARD OF REVIEW

        We review de novo the district court’s entry of summary judgment denying a petition for a

writ of habeas corpus. See Guy v. Cockrell, 343 F.3d 348, 351 (5th Cir. 2003). That is, we “review

the district court's factual and legal conclusions de novo, reviewing ‘the pleadings, depositions,

answers to interrogatories, and admissions on file, together with the affidavits’ to determine whether


                                                  7
‘there is no genuine issue of material fact and that the moving party is entitled to a judgment as a

matter of law.’” Id. at 352 (quoting Fed. R.Civ. P. 56(c)). “Credibility determinations are not part

of the summary judgment analysis.” Quorum Health Resources, L.L.C. v. Maverick County Hosp.

Dist., 308 F.3d 451, 458 (5th Cir. 2002).

        In undertaking our de novo review, we are mindful that, because Petitioner’s § 2254 petition

was filed in the district court after the effective date of the Antiterrorism and Effective Death Penalty

Act of 1996 (“AEDPA”), 110 Stat. 1214, the petition is subject to the procedures imposed by the

AEDPA. Lindh v. Murphy, 521 U.S. 320, 336 (1997). “Under the [AEDPA], a federal court can

grant an application for a writ of habeas corpus on behalf of a person held pursuant to a state-court

judgment if the state-court adjudication ‘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.’” Yarborough v. Alvarado, 124 S. Ct. 2140, 2143 (2004) (quoting 28 U.S.C. §

2254(d)(1)). “In order for a federal court to find a state court’s application of [Supreme Court]

precedent ‘unreasonable,’ the state court’s decision must have been more than incorrect or erroneous.

The state court's application must have been ‘objectively unreasonable.’” Wiggins v. Smith, 539 U.S.

510, 520-21 (2003) (internal citation omitted). This is all to say that “[w]e cannot grant relief under

[the] AEDPA by conducting our own independent inquiry into whether the state court was correct

as a de novo matter.” Alvarado, 124 S. Ct. at 2150.

        A federal court may also issue a writ of habeas corpus pursuant to § 2254 if the state habeas

proceeding “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.A. § 2254(d)(2) (West

2004); see also Wiggins, 539 U.S. at 528. Throughout our review, we presume correct the factual


                                                   8
determinations made by the state habeas court, though Petitioner can rebut this presumption by clear

and convincing evidence. 28 U.S.C.A. § 2254(e)(1) (West 2004); see also Wiggins, 539 U.S. at 528.

                                            III. ANALYSIS

                  a. ISSUE ONE: The state’s alleged use of perjured testimony

         Petitioner claims that the state knowingly allowed perjured testimony to be presented to the

jury at the guilt/innocence phase of his trial.

         “[A] conviction obtained by the knowing use of perjured testimony is fundamentally unfair,

and must be set aside if there is any reasonable likelihood that the false testimony could have affected

the judgment of the jury.” United States v. Agurs, 427 U.S. 97, 103 (1976). This is because the use

of such perjured testimony violates the due process clause of the Fourteenth Amendment. See Napue

v. Illinois, 360 U.S. 264, 269 (1959).

         In his pleadings before the district court, Petitioner offered eight instances in which he claims

that the state knowingly allowed perjured testimony to be presented to the jury or to defense counsel

without correction. Petitioner concedes that only two of the sub-claims were presented to the state

habeas court and that the rest were procedurally defaulted. See Lambriz v. Singletary, 520 U.S. 518,

523 (1997). Petitioner argues, however, that this default is excused because he has shown cause and

prejudice and that failure to consider these alleged instances of the use of perjured testimony would

result in a fundamental miscarriage of justice. See Murray v. Carrier, 477 U.S. 478, 485-86 (1986).

The district court, rather than determining whether cause and prejudice existed to excuse the

procedural default, ruled on the merits of the defaulted claims. See 28 U.S.C.A. § 2254(b)(2) (West

2004).

         The two alleged instances of perjury that were procedurally defaulted are: 1) Cynthia’s


                                                    9
testimony at trial that Jerry was dead before she entered his home, and 2) Cynthia’s testimony at trial

that she was not offered anything by the state in exchange for her testimony. The remaining alleged

instances of perjury are: 1) Cynthia’s deposition testimony that she did not participate in the murder

of John Ford; 2) Cynthia’s trial testimony that she saw three brass butterflies that had come from the

Morgans’ home for the first time on the morning after the murders; 3) Cynthia’s trial testimony that

she carried a weapon only when directed to do so by Petitioner; 4) Cynthia’s trial testi mony that

Petitioner shot Devin; 5) Cynthia’s deposition testimony that she never spoke about the Morgan

murders with Detective Roy Bean; and 6) Steven’s trial testimony that Petitioner confessed to killing

the Morgan family. We first address the non-defaulted alleged instances of the state’s use of perjured

testimony and then turn to the district court’s resolution of the procedurally defaulted instances.

                                    1. The non-defaulted claims

                           A. Cynthia did not claim to have killed Jerry

       Petitioner argues that the state knew that Cynthia told her sister that she (Cynthia) killed Jerry.

This would, of course, conflict with Cynthia’s trial testimony. The state habeas court, however,

found that “Cynthia May Kelly Cummings never told her sisters that she shot Jerry Morgan. Cynthia

talked about a nightmare to her sister that she had shot a man.” Ex Parte Alvin Andrew Kelly, No.

18,693-B-H-1, Findings of Fact and Conclusions of Law (Jan. 23, 1998) at ¶ 12, SHR at 551.

Petitioner po ints to nothing to suggest that this finding of fact was unreasonable in light of the

evidence presented. See 28 U.S.C.A. § 2254(d)(2) (West 2004). Neither has Petitioner pointed to

anything that would clearly and convincingly show this finding of fact to be incorrect. See 28

U.S.C.A. § 2254(e)(1) (West 2004).

       Because Cynthia never told her sister that she killed Jerry, the prosecution did not knowingly


                                                   10
present perjured testimony to the jury with respect to this issue. See also Kelly, 72 Fed. Appx. at 75-

76.   The state habeas court’s conclusion of law, therefore, was neither contrary to nor an

unreasonable application of clearly established federal law. See 28 U.S.C.A. § 2254(d)(1) (West

2004); Alvarado, 124 S. Ct. at 2143. Summary judgment as to this alleged incident of perjury was

appropriate.

                           B. Cynthia was not offered a deal by the state

       Petitioner argues that the state offered Cynthia a deal in exchange for her testimony against

him at trial. By allowing her to testify otherwise, Petitioner argues, the state knowingly presented

perjured testimony to the jury. The state habeas court found that “[t]here was no agreement between

the state and Cynthia May Kelly Cummings that she would not be prosecuted for the murders to

induce her to testify.” Ex Parte Alvin Andrew Kelly, No. 18,693-B-H-1, Findings of Fact and

Conclusions of Law (Jan. 23, 1998) at ¶ 21, SHR at 552. Petitioner points to nothing to suggest that

this finding of fact was unreasonable in light of the evidence presented. See 28 U.S.C.A. §

2254(d)(2) (West 2004). Neither has Petitioner po inted to anything that would clearly and

convincingly show this finding of fact to be incorrect. See 28 U.S.C.A. § 2254(e)(1) (West 2004).

Moreover, Cynthia did not commit any act sufficient to support a conviction as an accomplice. See

Kelly, 72 Fed. Appx. at 74.

       The state, then, did not knowingly present perjured testimony with respect to this issue. The

state habeas court’s conclusion of law, therefore, was neither contrary to nor an unreasonable

application of clearly established federal law. See 28 U.S.C.A. § 2254(d)(1) (West 2004);Alvarado,

124 S. Ct. at 2143. Summary judgment as to this alleged incident of perjury was appropriate.

                                      2. The defaulted claims


                                                  11
    A. Cynthia’s deposition testimony that she did not participate in the murder of John Ford

       Cynthia claimed that she did not participate in the murder of John Ford in her deposition taken

by Petitioner’s trial counsel. Petitioner produced affidavits in which Ricky and Shelly Kelly allege

that Cynthia told them that she killed Jo hn Ford. In a subsequent affidavit, Cynthia denied ever

claiming to have shot anyone. As the district court noted, this does present a controverted factual

issue. The district court was correct in noting that this fact issue, however, was not material largely

because Petitioner pleaded guilty to murdering John Ford.

       Petitioner does not explain how Cynthia’s deposition testimony was used to obtain the

conviction at trial. See Agurs, 427 U.S. at 103. This failure alone defeats Petitioner’s position.

Moreover, Cynthia never testified at trial about the murder of John Ford because Petitioner’s trial

counsel filed a motion in limine to preclude such testimony in an effort to keep the jury unaware of

Petitioner’s prior murder conviction during the guilt/innocence segment of the trial.

       Moreover, the prosecutors, even if told of Cynthia’s alleged statement by Ricky Kelly, would

have had no reason to believe Ricky Kelly’s second-hand account of a statement made by Cynthia (a

statement she denied making) over Petitioner’s admission that he killed John Ford. Assuming true

everything that Petitioner has claimed with respect to this alleged incident of perjury, Petitioner does

not present a genuine issue of material fact.

       As a matter of law, with respect to this alleged incident, Petitioner cannot show that the state

knowingly allowed Cynthia to testify falsely and that the testimony led to the conviction. See Agurs,

427 U.S. at 103. Absent such a showing, the claim fails. Summary judgment as t o this alleged

incident of perjury was appropriate.

                                    B. The three brass butterflies


                                                  12
        Cynthia saw three brass butterflies at the Morgans’ home the night that they were killed. In

1990, Cynthia executed an affidavit in which she stated that she saw the butterflies in her closet on

the night of the murder. In August 1991, however, she indicated that the first time that she saw the

butterflies in her closet was the morning after the Morgan murders. At trial, in October 1991, she

reiterated that the first time that she remembered seeing the butterflies in her closet was the morning

after the murders.

        Petitioner alleges that Cynthia perjured herself at trial. Petitioner also alleges that the state

knowingly allowed this perjury because prosecutors knew of the 1990 deposition. Petitioner offered

no evidence tending to show that the prosecution had any reason to believe her 1990 deposition was

correct and that she perjured herself at trial. Petitioner’s counsel cross-examined Cynthia with

respect to her apparently contradictory testimony. The state did not hide this conflict, and Petitioner

was given opportunity to develop it.

        Petitioner gives us no reason to believe that the prosecution knew that Cynthia’s testimony

with respect to the butterflies was false (if indeed it was false). See Agurs, 427 U.S. at 103.

Summary judgment as to this alleged incident of perjury, therefore, was appropriate.

     C. Cynthia’s trial testimony that she carried a weapon only when directed by Petitioner

        Cynthia testified at trial that she only carried a gun when directed to by Petitioner. Petitioner

alleges that, in an interview with a defense investigator after the trial, Cynthia stated that she carried

a gun whenever she and Petitioner collected drug money. As the district court noted, these

statements are not mutually exclusive. Petitioner has also failed to show perjury and failed to show

that the state knew that Cynthia carried a firearm in such circumstances.

        As a matter of law, with respect to this alleged incident, Petitioner cannot show that the state


                                                   13
knowingly allowed Cynthia to testify falsely. See Agurs, 427 U.S. at 103. Absent such a showing,

the claim fails. Summary judgment as to this alleged incident of perjury was appropriate.

       D. Cynthia’s alleged statement to Nancy Brown that Petitioner did not kill the baby

        Petitioner claims that, in a statement to Nancy Brown, Cynthia recanted her trial

testimony. Petitioner also claims that the prosecution had actual or imputed knowledge that

Cynthia’s testimony was false because state agents coerced her into testifying falsely. Petitioner

submitted an affidavit from Nancy Brown in which she stated as much. The district court noted

that, if believed, Cynthia’s renouncement of her trial testimony may serve as the basis for relief.

        As already noted, the district court in its discretion opted to address the claim on its

merits, rather than determine whether the procedural default was excused. Finding that Petitioner

did not offer any corroboration of Nancy Brown’s affidavit, however, the district court found that

the affidavit was not credible. See Memorandum Opinion (Oct. 17, 2002) at 10 (“The Court

therefore finds that Brown’s affidavit is not credible.”). Nancy Brown’s affidavit did raise a

material issue of fact.7 To resolve that question of material fact, the district court made a

credibility determination. “Credibility determinations are not part of the summary judgment

analysis.” Quorum Health Resources, L.L.C., 308 F.3d at 458 (5th Cir. 2002).

        Accordingly, we must reverse the district court’s grant of summary judgment on this sub-

claim and remand for proper disposition of this claim. We, of course, express no opinion as to the



        7
                 While it appears that the district court made a reasonable analysis of whether Nancy
Brown’s affidavit was credible, we cannot, nor can the district court, make such a determination on
summary judgment. We note, however, that, even if Nancy Brown’s affidavit were ultimately
accepted as true, it does not mean a fortiori that Petitioner is entitled to any relief. Cynthia may have
lied to Nancy Brown. In any case, without a proper factual finding that Nancy Brown’s affidavit is
not credible, it is inappropriate to dispose of the claim on summary judgment.

                                                   14
ultimate resolution of this claim either on the merits or as procedurally defaulted.

                                E. Cynthia and Detective Roy Bean

       In her defense deposition, Cynthia claimed to never talk about the Morgans with Detective

Roy Bean. Detective Bean, however, stated by affidavit that he spoke with Cynthia about the

Morgan murders on several occasions, but that she refused to go into details unless she was promised

immunity. The district court noted that these two statements were not necessarily contradictory.

       We need not determine this, however, because Petitioner has not shown how Cynthia’s

deposition testimony that she never talked about the Morgans with Detective Bean, even if false and

known by the state, was in any way used to obtain Petitioner’s conviction. See Agurs, 427 U.S. at

103. Absent such a showing, the claim fails. Summary judgment as to this alleged incident of perjury

was appropriate.

   F. Steven’s statements that he testified against Petitioner for a crime that Petitioner did not

                                               commit

       Steven testified at trial that Petitioner admitted to him on the night of the Morgan murders

that Petitioner killed the Morgan family, including Devin. Later, Steven allegedly stated to his niece

and her husband that he “turned state’s evidence against his brother for a crime he didn’t do.”

Assuming Steven did fabricate Petitioner’s confession, Petitioner has failed to make any showing that

the state knew Steven was perjuring himself at trial. See Agurs, 427 U.S. at 103. Absent a showing

that the state knew the witness was testifying falsely, the claim fails. Summary judgment as to this

alleged incident of perjury was appropriate.

                                  3. Recapitulation of Issue One

       All but one of the alleged uses of perjured testimony fail as a matter of law. Summary


                                                 15
judgment as to those issues is appropriate.

       Petitioner’s claim that Cynthia admitted to Nancy Brown that she testified falsely because

agents of the state threatened her, however, cannot be defeated on the merits without making a

credibility determination regarding Nancy Brown’s affidavit. At summary judgment it is inappropriate

to make such a determination. We must, therefore, reverse and remand as to this part of Issue One.

    b. ISSUE TWO: The state’s alleged failure to disclose material exculpatory evidence

       Kelly contends that the state, in violation of Brady and its progeny, failed to disclose evidence

that could have been used to impeach Cynthia or otherwise aid in his defense. “Brady, we reiterate,

held that ‘the 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.’” Banks v. Dretke, 124 S. Ct. 1256, 1272 (2004)

(quoting Brady v. Maryland, 373 U.S. 83, 87 (1963)).

       There are “three components or essential elements of a Brady prosecutorial misconduct claim:

‘The evidence at issue must be favorable to the accused, either because it is exculpatory, or because

it is impeaching; that evidence must have been suppressed by the state, either willfully or

inadvertently; and prejudice must have ensued.’” Banks, 124 S. Ct. at 1272 (quoting Strickler v.

Green, 527 U.S. 263, 281-82 (1999)). As to the prejudice, or materiality, requirement, “[i]t is not

whether the result [at trial] would have been different. Rather, it is whether given the non-disclosures

of material evidence the verdict is less worthy of confidence.” Morrow v. Dretke, 367 F.3d 309, 316

(5th Cir. 2004).

       The state contends that this claim is procedurally defaulted. Petitioner argues, as he does with

respect to his first claim, that this default is excused because he has shown cause and prejudice and


                                                  16
that failure to consider these alleged instances of the use of perjured testimony would result in a

fundamental miscarriage of justice. See Murray v. Carrier, 477 U.S. 478, 485-86 (1986).            The

district court declined to determine whether the claim was procedurally defaulted, and, if so, whether

the default was excused. Instead, it denied the claim on the merits. See 28 U.S.C.A. § 2254(b)(2)

(West 2004).

       Petitioner alleges that the government failed to disclose the following: 1) that Cynthia and her

baby were threatened with death if she did not testify against Petitioner; 2) that Cynthia discussed the

Morgan murders with Detective Roy Bean several years prior to 1989 despite having claimed during

a deposition that she first contacted the prosecution regarding the murders in 1989; 3) that Cynthia

was more deeply involved in Petitioner’s drug dealing than she admitted in a defense deposition and

at trial; 4) that Cynthia helped dispose of John Ford’s body and the weapon used to kill him, and that

she admitted being involved in killing John Ford; 5) that Cynthia was on Demerol when she testified

at Petitioner’s trial; 6) that, during an argument, Cynthia produced a machine gun and threatened Bill

Morgan; 7) that Cynthia once shot at Petitioner and was involved in a four-way standoff where she

and the other three participants were armed; 8) that Cynthia used drugs and cooked

methamphetamine; 9) that in 1985, Cynthia lied to her doctor by telling him that her first two children

had been killed when they had been removed by the state and by indicating that she did not have a

drug problem despite having a drug problem;10) that Cynthia requested and was made offers of

witness protection; and 11) that Walter Shannon was in Tyler the day after the Morgan murders and

said that he had dropped off a car at the hospital.

                       1. Alleged impeachment evidence related to Cynthia

       We first address the first through tenth allegedly withheld facts related to Cynthia. To


                                                  17
overcome the procedural default bar to federal habeas consideration of this claim, Petitioner urges

as prejudice that, had these facts been disclosed, his trial counsel could have more convincingly

impeached Cynthia’s key testimony. It is uncontested that Cynthia was a key prosecution witness.

       As to the first sub-claim, that the state failed to disclose that Cynthia was coerced by law

enforcement into testifying against Petitioner, the district court acknowledged that if Nancy Brown’s

affidavit, the same affidavit discussed supra, were true, then Petitioner may have a claim for relief.

The district court, however, made a credibility determination that the affidavit was not credible. This

was inappropriate at summary judgment for the same reason discussed vis-a-vis Nancy Brown’s

affidavit in the first claim. Accordingly, we must reverse this part of the summary judgment and

remand for further proceedings. We again note that we take no position as to the ultimate disposition

of this sub-claim, either on its merits or on procedural defaults grounds.

       As to the second sub-claim, that the state failed to disclose that Cynthia had been in contact

with Detective Roy Bean prior to 1989, but refused to discuss the Morgan murders in detail,

Petitioner does not indicate how this is materially exculpatory or impeaching evidence. Cynthia never

testified regarding her contact with investigators prior to 1989. It is not clear what this would

impeach, other than Cynthia’s general truthfulness. As the district court noted, however, Detective

Roy Bean’s and Cynthia’s statements do not necessarily conflict. This allegation, if true, in no way

diminishes our confidence in the verdict. See Morrow, 367 F.3d at 316. Accordingly, this sub-claim

fails. Summary judgment as to this allegedly withheld piece of evidence was appropriate.

       Petitioner’s third sub-claim is that the state failed to disclose that Cynthia was more deeply




                                                  18
involved in Petitioner’s drug dealing than she admitted in a defense deposition and at trial.8 Petitioner

has not made any showing that the Prosecution knew, and therefore suppressed, evidence of

Cynthia’s involvement in Petitioner’s drug trade. Moreover, Petitioner would have know the extent

of Cynthia’s involvement with him selling drugs. Failure to disclose evidence of which the Petitioner

has first hand knowledge is not a basis for relief. See Williams v. Brown, 609 F.2d 216, 221 (5th Cir.

1980). Accordingly, this sub-claim fails. Summary judgment as to this allegedly withheld piece of

evidence was appropriate.

        Similarly Petitioner’s fourth sub-claim, that the state failed to disclose that Cynthia helped

dispose of John Ford’s body and the weapon used to kill him, fails because Petitioner pleaded guilty

to the crime. He, therefore, had first hand knowledge of the murder. See id. Summary judgment as

to this allegedly withheld piece of evidence was appropriate.

        Petitioner’s fifth sub-claim, that the state failed to disclose that Cynthia was on Demerol

when she testified at Petitioner’s trial also fails. Petitioner has offered no evidence that reasonably

suppo rts his contention that the government knew, or had any legitimate reason to believe, that

Cynthia was on Demerol during the trial. Absent any reason to know that Cynthia was on Demerol,

the go vernment could not have suppressed such evidence. Moreover, even if the government did

suppress the fact that Cynthia was on Demerol, the suppression fails the prejudice test. We in no way

have less confidence in the verdict because of the suppression. See Morrow, 367 F.3d at 316.

Accordingly, Petitioner fails on this sub-claim. Summary judgment as to this allegedly withheld piece

of evidence was appropriate.


        8
                Although this claim references statements made by Cynthia at trial, Petitioner has not
offered this to support his claim that the state knowingly used perjured testimony to secure the
conviction.

                                                   19
       Petitioner’s sixth and seventh sub-claims, that the state failed to disclose that during an

argument Cynthia produced a machine gun and threatened Bill Morgan and that Cynthia once shot

at Petitioner and was involved in a four-way standoff where she and the other three participants were

armed, both fail. Petitioner was present for these events. Accordingly, he had firsthand knowledge

of what transpired.    See Williams, 609 F.2d at 221. Summary judgment as to these allegedly

withheld pieces of evidence was appropriate.

       Similarly, the eighth sub-claim, that the government failed to disclose that Cynthia was heavily

involved in drugs, fails. Petitioner does not make a showing as to how the government suppressed

her use of drugs. This fact was well known and Cynthia told Petitioner’s counsel as much. See

Exhibit 51 (Dist. Ct. R. at 508) attached to Petitioner’s First Supplemental Application for Writ of

Habeas Corpus (Dist. Ct. Doc. 48). This claim fails because Petitioner knew the information. See

Williams, 609 F.2d at 221. Summary judgment as to this allegedly withheld piece of evidence was

appropriate.

       Petitioner’s ninth sub-claim, that the government failed to disclose that in 1985, Cynthia lied

to her doctor by telling him that her first two children had been killed when they had been removed

by the state and by indicating that she did not have a drug problem despite having a drug problem also

fails. We agree with the district court that Petitioner had failed to show how this would do anything

other than minimally impeach Cynthia’s general trustworthiness. She did not lie to her doctor as part

of an official investigation. This allegation, if true, does not diminish our confidence in the verdict.

See Morrow, 367 F.3d at 316. Summary judgment as to this allegedly withheld piece of evidence was

appropriate.

       Petitioner’s tenth sub-claim is that the government failed to disclose that Cynthia requested


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and was made offers of witness protection. The only evidence Petitioner offers in support of the

claim that Cynthia requested or was offered witness protection is an apparent investigation note, the

entire relevant part of which reads: “witness protection - Roy Bean?” Exhibit 44 (Dist. Ct. R. at 501),

attached to Petitioner’s First Supplemental Application for Writ of Habeas Corpus (Dist. Ct. Doc.

48). There is no actual proof that Cynthia requested or was offered witness protection.

       Moreover, even if there were proof that she requested or was offered protection, the sub-

claim fails. Petitioner argues that this fact would impeach her deposition testimony that she “‘really

did not give a lot of thought’ to whether she could be prosecuted and that she had no deals with the

State” Appellant’s Br. at 45 (quoting Exhibit 51 (Dist. Ct. R. at 501)), attached to Petitioner’s First

Supplemental Application for Writ of Habeas Corpus (Dist. Ct. Doc. 48)). These statements do not

conflict. Witness protection and an agreement not to prosecute are not the same. This evidence is

not impeaching and is, therefore, of no discernable benefit to Petitioner. See Banks, 124 S. Ct. at

1272. This sub-claim, therefore, raises no genuine issue of material fact. Summary judgment as to

this allegedly withheld piece of evidence was appropriate.

                  2. Alleged impeachment evidence related to Walter Shannon

       Petitioner alleges that the state knew that a man named Walter, whom Petitioner presumes

was Walter Shannon, was in Tyler the day after the Morgan murders and had left a vehicle at the

same hospital parking lot in which Petitioner abandoned the Morgans’ vehicle. Petitioner argues that

this information could have been used to implicate Walter Shannon in the Morgan murders. The

district court noted that this information was not material. We agree.

       Petitioner’s trial strategy was to cast the blame for the murders on an unknown black male.

The strategy was based upon was based on the hair containing Negroid characteristics. Walter


                                                  21
Shannon was not black. Petitioner, in the single paragraph in which he discusses this sub-claim in his

brief, see Brief of Appellant at 46, does not begin to show how he could have used this evidence to

cause a jury to believe Walter Shannon may have possibly committed the Morgan murders, thereby

creating a reasonable doubt as to Petitioner’s guilt. We in no way have less confidence in the verdict

because of the state’s purported failure to disclose this information. See Morrow, 367 F.3d at 316.

Accordingly, this sub-claim fails. Summary judgment as to this allegedly withheld piece of evidence

was appropriate.

                                  3. Recapitulation of Issue Two

       All but one of the allegedly withheld pieces of material evidence do not cause us to lose any

amount of confidence in the verdict, either because the facts were known to Petitioner, the facts were

not impeaching, or the facts would have had no impact on a jury. Those sub-claims, therefore, fail

as a matter of law.

       As to the first allegedly withheld piece of evidence, that Cynthia was coerced by law

enforcement into testifying falsely against Petitioner, however, we cannot be certain that our

confidence in the verdict would not be undermined if Nancy Brown’s affidavit were true. At

summary judgment it is inappropriate to make such a credibility determination. We must, therefore,

reverse and remand as to this part of Issue Two.

 c. ISSUE THREE: The state’s alleged failure to disclose agreements made with witnesses

       Petitioner alleges that the prosecution failed to disclose that the state entered into

agreements with Cynthia and Steven in which the prosecution agreed not to prosecute Cynthia or

Steven for other crimes in exchange for their testimony against Petitioner. Under Brady and its

progeny, the government must disclose agreements that it has made with witnesses if the


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agreements could call into question the credibility of a witness. See Giglio v. United States, 405

U.S. 150, 154-55 (1972). As we have noted already, the state habeas court found that no

agreements were made with Cynthia. This presumptively correct factual finding has not been

rebutted. Cynthia’s credibility could not be called into question as a result of a non-existent

agreement.

        As for Petitioner’s apparent argument that the state made a deal with Steven in exchange

for his testimony, Petitioner offers nothing in support of this claim. Other than the heading to his

discussion of the issue, see Brief of Appellant at 55, Petitioner makes no mention of Steven with

respect to this issue. As such, to the extent Petitioner actually claims that the state failed to

disclose an agreement it made with Steven, Petitioner’s complete lack of briefing as to Steven

defeats the claim. See Cinel v. Connick, 15 F.3d 1338, 1345 (5th Cir. 1994) (“A party who

inadequately briefs an issue is considered to have abandoned the claim.”).

        Petitioner’s Giglio claim does not raise a question of material fact. It fails as a matter of

law. Summary judgment as to this claim was appropriate.

                                         IV. CONCLUSION

        Petitioner has failed to show that a genuine issue of material fact exists as to most of his

claims. As to the parts of two claims that relate to Nancy Brown’s affidavit, however, summary

judgment based upon the record presented is inappropriate. Accordingly, we affirm in part,

reverse in part, and remand for further proceedings consistent with this opinion.

        AFFIRMED IN PART, REVERSED IN PART, and REMANDED.




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