                                                                              United States Court of Appeals
                                                                                       Fifth Circuit
                                                                                     F I L E D
                     IN THE UNITED STATES COURT OF APPEALS
                                                                                     August 29, 2006
                              FOR THE FIFTH CIRCUIT
                                                                                 Charles R. Fulbruge III
                                                                                         Clerk

                                          No. 05-70041




CLIFFORD ALLEN KIMMEL,

                                                                             Petitioner-Appellant,
                                              versus
NATHANIEL QUARTERMAN, Director,
Texas Department of Criminal Justice,
Correctional Institutions Division,

                                                                            Respondent-Appellee.




                          Appeal from the United States District Court
                               for the Western District of Texas



Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.

CARL E. STEWART, Circuit Judge:*

       Clifford Allen Kimmel was indicted on six counts of capital murder for the murders of three

persons. Kimmel pleaded guilty and was subsequently sentenced to death. The district court denied

Kimmel’s petition for habeas relief and denied his application for a Certificate of Appealability




       *
        Pursuant to 5th Cir. R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5th Cir. R.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.
(“COA”). Kimmel seeks a COA from this court on four grounds. For the following reasons, we deny

the application.

                       I. FACTUAL AND PROCEDURAL BACKGROUND

        On the evening of April 9, 1999, Kimmel and Derrick Murphy went to the apartment of their

acquaintance, Rachel White, planning to commit robbery. They waited for several people to leave,

and then approached the apartment and asked to use the phone. Murphy entered the apartment and

pointed a gun at White and her two remaining guests, Susan Halverstadt and Brett Roe. After

securing the victims’ hands with rope, Murphy took White into the bathroom and demanded to know

where she kept her money. When White resisted, Murphy injected her in the arm with a syringe

containing cleaning fluid. Murphy then smothered White with a pillow until she stopped thrashing,

and then he cut her neck. Thereafter, Kimmel injected Roe with cleaning fluid. When Roe attempted

to run for the front door, Kimmel and Murphy tackled him and Kimmel stabbed him in the chest.

Murphy took the knife from Kimmel, cut Roe’s throat, and stabbed him multiple times while Kimmel

held his legs. Murphy then stabbed Halverstadt. Kimmel and Murphy carried White from the

bathroom into the bedroom and Murphy stabbed her in the chest and throat. Murphy and Kimmel

took several items from White’s apartment including, inter alia, a stereo, a VCR, White’s purse,

Roe’s wallet, a wooden jewelry box, a silver letter opener, and a collection of CDs. They later sold

much of the stolen property, and used White’s credit card at gasoline stations and a hotel. All three

victims died as a result of the injuries they sustained that night.

        On May 18, 1999, Kimmel was arrested on a parole revocation warrant. Following his arrest,

he gave a written statement to the police in which he denied any personal involvement in the murders.

But two days later, after Murphy gave police an inculpatory statement, Kimmel gave a second written


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statement in which he admitted to participating in the murders. On August 11, 1999, a grand jury

indicted Kimmel on six counts of capital murder. More specifically, counts one, two, and three of

the indictment charged Kimmel with having intentionally killed Rachel White, Susan Halverstadt, and

Brett Roe by stabbing and cutting each of them with a knife while in the course of robbing each of

these victims. Counts four, five, and six charged Kimmel with having intentionally killed White,

Halverstadt, and Roe by cutting and stabbing each of them with a knife all in the same criminal

transaction.

       On February 14, 2000, Kimmel pleaded guilty. The punishment phase of the trial began on

the same day. On February 18, 2000, the jury returned its verdict, finding separately with regard to

each murder victim that (1) Kimmel posed a future danger; (2) he actually caused the death of the

decedent or intended to kill the deceased, or anticipated that a human life would be taken; and (3)

there were insufficient mitigating circumstances to warrant a sentence of life imprisonment rather than

a death sentence. Accordingly, Kimmel was sentenced to death.

       The Texas Court of Criminal Appeals affirmed Kimmel’s conviction and sentenced him on

November 7, 2001. Kimmel v. State, No. 73,786 (Tex. Crim. App. Nov. 7, 2001). Kimmel did not

petition the Supreme Court for a writ of certiorari. On November 15, 2001, Kimmel filed a state

habeas petition. The Texas Court of Criminal Appeals denied relief, adopting the trial court’s findings

of fact and conclusions of law on October 15, 2002. Ex parte Kimmel, No. 57,028-01 (Tex. Crim.

App. Oct. 15, 2003).

       On September 15, 2004, Kimmel filed the instant federal habeas petition urging six grounds

for relief. The district court denied relief on all six grounds and denied Kimmel’s request for a COA.

On appeal, Kimmel requests a COA from this court on four issues.



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                                    II. STANDARD OF REVIEW

        Under Antiterrorism and Effective Death Penalty Act (“AEDPA”), a petitioner must obtain

a COA before he can appeal the district court’s denial of habeas relief. See 28 U.S.C. § 2253(c); see

also Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). A COA will be granted only if the petitioner

makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). A

petitioner must demonstrate that “reasonable jurists would find the district court’s assessment of the

constitutional claims debatable or wrong.” Hall v. Cain, 216 F.3d 518, 521 (5th Cir. 2000) (citing

Slack v. McDaniel, 529 U.S. 473 (2000). “When the district court denies a habeas petition on

procedural grounds without reaching the prisoner’s underlying constitutional claim, a COA should

issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the

petition states a valid claim of the denial of a constitutional right and that jurists of reason would find

it debatable whether the district court was correct in its procedural ruling.” Id. “The question is the

debatability of the underlying constitutional claim, not the resolution of that debate.” Miller-El, 537

U.S. at 342. “Indeed, a claim can be debatable even though every jurist of reason might agree, after

the COA has been granted and the case has received full consideration, that petitioner will not

prevail.” Id. at 338. Moreover, “‘any doubts as to whether a COA should issue must be resolved in

[petitioner’s] favor.’” Hughes v. Dretke, 412 F.3d 582, 588 (5th Cir. 2005), cert. denied, 126 S.Ct.

1347 (2006) (alteration in original) (quoting Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir.

2000)). Accordingly, “[w]e look to the District Court’s application of AEDPA to petitioner’s

constitutional claims and ask whether that resolution was debatable amongst jurists of reason. This

threshold inquiry does not require full consideration of the factual or legal bases adduced in support

of the claims.” Id.


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                                          III. DISCUSSION

        Kimmel seeks a COA on the following claims: (1) his Sixth and Fourteenth Amendment right

to have a fair cross section of the community on panels from which grand juries are chosen was

violated; (2) his confession was obtained in violation of the Fifth, Sixth, and Fourteenth Amendments;

(3) his due process rights were violated when the State suppressed exculpatory and impeachment

evidence; and (4) his due process rights were violated when the State knowingly presented perjured

testimony.

                                                   A.

        The district court concluded that the first two claims were procedurally defaulted. On habeas

review, a federal court may not review a claim for the denial of a federal right if the last state court

to consider the claim expressly based its denial of relief on an independent and adequate state law

ground. Finley v. Johnson, 243 F.3d 215, 218 (5th Cir. 2001). “To satisfy the ‘independent’ and

‘adequate’ requirements, the dismissal must ‘clearly and expressly’ indicate that it rests on state

grounds which bar relief, and the bar must be strictly or regularly followed by state courts, and

applied to the majority of similar claims.” Id. This bar applies equally to substantive and procedural

grounds. Id. “A procedural default will be excused . . . if ‘the prisoner can demonstrate cause for the

default and actual prejudice as a result of the alleged violation of federal law’ or if the default would

work ‘a fundamental miscarriage of justice.’” Busby v. Dretke, 359 F.3d 708, 718 (5th Cir. 2004)

(quoting Coleman v. Thompson, 501 U.S. 722, 750 (1991)).

                                                   1.

        Kimmel asserts that his Sixth and Fourteenth Amendment right to have a fair cross section

of the community on panels from which grand juries are chosen was violated because Hispanics were


                                                   5
disproportionately excluded from the pool of eligible persons to serve on grand juries in Bexar

County, Texas. He asserts that Hispanics were systematically underrepresented on grand juries in

Bexar County from 1990 through 2000. The district court concluded that this claim was procedurally

defaulted for two reasons: first, Kimmel failed to raise a challenge to the composition of the grand

jury through a timely pretrial motion to quash the indictment, and second, Kimmel failed to raise this

claim on direct appeal.

        Kimmel has not argued, much less demonstrated, cause for the default or prejudice. Further,

Kimmel failed to raise this issue on direct appeal. Soria v. Johnson, 207 F.3d 232, 249 (5th Cir.

2000). Accordingly, Kimmel failed to show that “jurists of reason would find it debatable whether

the petition states a valid claim of the denial of a constitutional right.” Hall, 216 F.3d at 521.

Further, under Texas law, “a defendant must raise a challenge to the composition of the grand jury

at the earliest point possible.” Ratcliff v. Estelle, 597 F.2d 474, 476 (5th Cir. 1979). There is no

dispute that Kimmel failed to raise the claim by a pre-trial motion to quash. Reasonable jurists would

not debate the district court’s conclusion that this claim is procedurally defaulted; therefore, Kimmel

is not entitled to a COA on this issue. Neville v. Dretke, 423 F.3d 474, 478 (5th Cir. 2005).

                                                   2.

        Kimmel also argues that his confession was involuntary because he was under the influence

of a drug prescribed at the jail, and thus, the confession was obtained in violation of the Fifth, Sixth,

and Fourteenth Amendments. Kimmel explains that, before his arrest, a crisis center prescribed

Prozac for his suicidal thoughts; accordingly, he began taking Prozac on May 6, 1999, and continued

taking it until his arrest on May 18, 1999. After his arrest, the jail personnel began treating him for

depression with doxepin hydrochloride. He contends that the combination of the two medications


                                                   6
prevented him from being able to knowingly and intelligently waive his rights before giving the May

20, 1999, statement. Therefore, he contends that the police did not obtain a valid waiver of his rights

before eliciting the incriminating statements and the use of this involuntary confession at his trial

violated his due process rights.

       The district court concluded that Kimmel procedurally defaulted this claim by failing to make

a timely objection to the admission of his second confession on the ground that he was intoxicated.

In Texas, “[i]n order to complain on appeal about the admissibility of a confession there must have

been an objection thereon in the trial court, and the objection must have called the attention of the

trial court to the particular complaint raised on appeal.” Little v. State, 758 S.W.2d 551, 564 (Tex.

Crim. App. Mar. 23, 1988). The state habeas court concluded that this claim was not preserved for

review because Kimmel failed to raise it at his suppression hearing or before the trial court. Kimmel

also failed to raise this claim on direct appeal. Kimmel does not dispute this finding nor does he

attempt to show cause and prejudice for the default. Accordingly, reasonable jurists would not debate

whether Kimmel states a valid claim of the denial of a constitutional right, nor would reasonable

jurists debate the district court’s conclusion that the claim is procedurally defaulted. Hall, 216 F.3d

at 521. For these reasons, Kimmel is not entitled to a COA. Hughes, 412 F.3d at 597.

                                                  B.

       Kimmel’s third and fourth claims relate to notes taken by the State’s prosecutor, Juanita

Vasquez-Gardner, during conversations she had with two experts regarding the significance of

Kimmel’s tattoos. The tattoos include an “A” with a circle around it above the word “Chaos” on

Kimmel’s shoulder; the word “White” on one of his forearms; and the word “Pride” on the other

forearm. Kimmel argues that (1) the prosecution failed to inform the court or defense counsel that


                                                  7
the experts did not know the meaning of the tattoos and (2) the prosecution suggested to a defense

witness that the tattoos signified something other than what the experts had suggested.

        As part of her investigation into the meaning of the tattoos, Vasquez-Gardner interviewed

Royce Smithey and Bill Cheatham, Department of Corrections experts on prison gangs. Smithey told

Vasquez-Gardner that the A with a circle around it could refer to the Aryan Brotherhood/Nation, but

he was just guessing; and Cheatham indicated that the tattoo may very possibly be an Aryan Circle,

but there was no indication that Kimmel had ever been suspected or monitored as being a part of the

Aryan gang. Vasquez-Gardner’s notes also indicate that Smithey stated the words “white pride” may

or may not mean anything, and may or may not signify gang membership. Vasquez-Gardner also

consulted Rocky Dyer of the San Antonio Police Department. Dyer was unable to explain how the

tattoos related specifically to Kimmel, but did provide general information as to what the symbols

might mean, including that the circled A could symbolize anarchy. Vasquez-Gardner continued to

investigate the meaning of the tattoos on the internet and came to believe, based on her conversation

with Dyer and articles she found on the internet, that the symbol represented anarchy.

       During the punishment phase of trial, the defense called Dr. Edward Gripon, a psychiatrist,

who opined that it was unlikely that Kimmel would commit criminal acts of violence that would

constitute a continuing threat to society. On cross-examination, the prosecutor questioned Dr. Gripon

regarding Kimmel’s tattoos. Specifically, the prosecutor questioned the doctor regarding whether the

circled A tattoo signified anarchy. Outside the presence of the jury, the prosecutor asked Dr. Gripon

whether Kimmel had informed Dr. Gripon that the symbol signified anarchy or whether Dr. Gripon

knew of that meaning; Dr. Gripon answered “No.”




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          In the presence of the jury, she asked Dr. Gripon whether Kimmel had tattoos that indicated

anarchy and Dr. Gripon answered “Yes. That’s what I think is supposed to be the meaning of them,

yes.” The prosecutor also referenced an incident during which Kimmel referred to a prison guard by

a racial epithet and then questioned the doctor regarding Kimmel’s “white pride” tattoos. She asked

whether the anarchist tattoos could be interpreted to mean that someone does not want to abide by

the laws and rules of society. Dr. Gripon responded that this was a possible interpretation, but that

one must be careful in interpreting tattoos because they are often an expression of extremism, not

necessarily a clear indicator of what a person believes.

                                                   1.

          Kimmel argues that the prosecution failed to disclose material evidence favorable to the

defense in violation of Brady v. Maryland, 373 U.S. 83 (1963). Specifically, he argues that the

prosecution failed to inform the defense or the court that the State’s experts expressed doubts about

the meaning of the tattoos or that they suggested a different meaning.

          To establish a Brady violation, Kimmel must prove that “(1) the prosecution suppressed

evidence; (2) the evidence was favorable to the defendant because it was either exculpatory or

impeaching; and (3) the evidence was material.” United States v. Edwards, 442 F.3d 258, 264 (5th

Cir. 2006). “‘Evidence is ‘material’ if there is a reasonable probability that, had the evidence been

disclosed, the result at the trial would have been different; a reasonable probability is one that

undermines confidence in the outcome of the trial.’” Summers v. Dretke, 431 F.3d 861, 878 (5th Cir.

2005), cert. denied, 126 S.Ct. 2948 (2006) (quoting Duncan v. Cain, 278 F.3d 537, 539-40 (5th Cir.

2002)).

          “There is no duty to furnish a defendant with exculpatory evidence that is fully available to

the defendant though the exercise of reasonable diligence.” Gibbs v. Johnson, 154 F.3d 253, 256 (5th

                                                   9
Cir. 1998). As the State argues, Kimmel was in the best position to know the significance of his own

tattoos. Moreover, nothing prevented Kimmel’s counsel from conducting research regarding the

significance of the tattoos. “Although exculpatory and impeachment evidence fall within the purview

of Brady, neutral evidence does not.” United States v. Dillman, 15 F.3d 384, 390 (5th Cir. 1994).

Neither officer offered a conclusive opinion as to the significance of the tattoos, and Kimmel has not

shown how this information would have impeached Dr. Gripon’s testimony. Cf. Id. (“[The witness]’s

statement-to the effect that she did not remember the meeting-is neutral, not exculpatory or

impeaching in nature.”). Moreover, Kimmel has not shown that the evidence was material, i.e., that

there is a reasonable probability that the result of the punishment phase of trial would have been

different. Miller v. Dretke, 404 F.3d 908, 916 (5th Cir. 2005) (“[F]or Brady purposes, evidence is

material if there is a reasonable probability that, had the evidence been disclosed, the result would

have been different.”). Further, defense counsel was aware that Dr. Gripon had previously indicated

that he was unaware of the tattoo’s meaning; accordingly, on redirect, defense counsel could have

addressed Dr. Gripon’s knowledge of the tattoo, or lack thereof, and impeached or clarified his

testimony without the aid of the officers’ statements. Reasonable jurists would not debate the district

court’s rejection of this claim; accordingly, Kimmel is not entitled to a COA.

                                                  2.

       Kimmel also argues that the prosecutor knowingly used false testimony in violation of Napue

v. Illinois, 360 U.S. 264 (1959), by “duping” Dr. Gripon into agreeing that the tattoos signified

anarchy, and failing to alert the trial judge that this testimony was false. Kimmel contends that the

prosecutor failed to inform the court that she was guessing about the tattoo signifying anarchy or that

the experts had suggested a different meaning. He argues that, outside the presence of the jury, Dr.

Gripon indicated that he did not know the significance of the tattoos; however, in front of the jury,

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the witness was duped into agreeing with the prosecutor that the tattoos signified anarchy because

the prosecution previously suggested this meaning.

        “In order to establish a Napue violation, the defendant must show (1) the statements in

question are actually false; (2) the prosecution knew that the statements were false; and (3) the

statements were material.” United States v. Haese, 162 F.3d 359, 365 (5th Cir. 1998). Kimmel has

neither argued nor demonstrated that Dr. Gripon’s testimony was in fact false; instead, he contends

that the prosecutor failed to inform the court that two of her experts did not know what the tattoos

signified or that she was guessing. This does not show that the testimony is false, but rather that

others did not know the meaning of the tattoos. Cf. United States v. Wall, 389 F.3d 457, 473 (5th

Cir. 2004), cert. denied, 544 U.S. 978 (2005) (“Wall has not established that McDowell’s testimony

was actually false. He has merely shown that Ristau’s testimony would establish a conflict in the

testimony, a far cry from showing that it was ‘actually false.’”). As noted above, defense counsel

could have questioned Dr. Gripon on the accuracy of his testimony regarding the meaning of the

tattoos on redirect, but chose to not use this opportunity. Because Kimmel has not demonstrated that

the testimony was in fact false, the district court’s conclusion that he was not entitled to relief on this

claim is not debatable among reasonable jurists; consequently, Kimmel is not entitled to a COA.

                                          IV. CONCLUSION

        Kimmel has failed to show that jurists of reason could debate the district court’s resolution

of his habeas petition. Accordingly, his application for a COA is DENIED.




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