                        REVISED JUNE 9, 1999
               IN THE UNITED STATES COURT OF APPEALS

                         FOR THE FIFTH CIRCUIT

                         _____________________

                              No. 97-60687
                         _____________________


SAMUEL RICE JOHNSON,

                                 Petitioner-Appellant,

          v.

STEVE PUCKETT, Commissioner; JAMES V ANDERSON, SUPERINTENDENT,
MISSISSIPPI STATE PENITENTIARY; STATE OF MISSISSIPPI,

                                 Respondents-Appellees.

_________________________________________________________________

           Appeal from the United States District Court
             for the Southern District of Mississippi
_________________________________________________________________
                           May 20, 1999
Before KING, Chief Judge, and POLITZ and BENAVIDES, Circuit
Judges.

KING, Chief Judge:

        Samuel Johnson appeals the district court’s denial of his

habeas corpus application.    Johnson challenges his continued

confinement on several grounds, but his chief complaint is that

the state failed to disclose exculpatory material and suborned

perjury in violation of Brady v. Maryland, 373 U.S. 83 (1963),

and Giglio v. United States, 405 U.S. 150 (1972).        Because we

conclude the district court correctly denied relief on this and

all of Johnson’s other assignments of error, we affirm.

               I.    FACTUAL AND PROCEDURAL BACKGROUND
     On December 31, 1981, Mississippi Highway Patrol Officer

Billy Langham stopped a car driven by Samuel Johnson containing

three passengers (Anthony Fields, Otis Fairley, and Charles

Montgomery, Jr.) as it traveled north on Highway 49 approaching

Collins, Mississippi.   Langham asked to see Johnson’s license,

and Johnson informed the officer that he did not have one.

Langham asked the occupants of the car to exit the vehicle, and

they complied with his request.

     As the magistrate judge noted in his report in which he

recommended that the district court deny Johnson habeas relief,

“[t]here is a great deal of conflicting testimony as to what

transpired next and as to ‘who did what.’”     Ultimately, Officer

Langham was killed after being stabbed with a butcher knife in

the back between his shoulder blades and being shot at close

range with his own revolver.   Johnson, Fairley, and Montgomery

were indicted for capital murder.     Fairley and Montgomery were

convicted and each given a life sentence.     Fields, in contrast,

pleaded guilty to accessory after the fact and was sentenced to a

five-year term of imprisonment.

     Both Fairley and Fields testified at Johnson’s trial.

Johnson called Fairley as his primary witness, and Fairley

testified that Fields stabbed and shot Langham.     Fields was

called as a witness by the state and testified that Langham was

stabbed by Johnson and shot by Montgomery.     Johnson did not

testify in his own defense.

                                  2
     On September 3, 1982, Johnson was convicted of Officer

Langham’s murder and sentenced to death.      On direct appeal, the

Supreme Court of Mississippi affirmed his conviction and

sentence.   See Johnson v. State, 477 So. 2d 196 (Miss. 1985).        On

May 6, 1986, the United States Supreme Court denied Johnson’s

petition for writ of certiorari.       See Johnson v. Mississippi, 476

U.S. 1109 (1986).

     Johnson then filed a motion for post-conviction relief in

Mississippi state court.   In that motion, Johnson argued, inter

alia, that post-conviction relief was justified based on the fact

that a 1963 felony assault conviction in New York, which was one

of three aggravating circumstances that elevated Johnson’s crime

from murder to capital murder, had been set aside by the New York

courts.   See People v. Johnson, 506 N.E.2d 1177 (N.Y. 1987).     The

Mississippi Supreme Court, by a vote of 6-3, denied Johnson’s

application for post-conviction relief.      See Johnson v. State,

511 So. 2d 1333 (Miss. 1987).

     Johnson then filed a petition for writ of certiorari with

the United States Supreme Court, which the Court granted on

January 11, 1988.   See Johnson v. Mississippi, 484 U.S. 1003

(1988).   The Supreme Court vacated Johnson’s death sentence,

ruling that, in the context of the Mississippi sentencing scheme,

the Eighth Amendment requires re-examination of a death sentence

based in part on a prior felony conviction which was set aside in

the rendering state after the capital sentence was imposed.

                                   3
See Johnson v. Mississippi, 486 U.S. 578, 584-90 (1988).      On

remand, the Mississippi Supreme Court reconsidered Johnson’s

motion for post-conviction relief and remanded to the trial court

for re-sentencing.     See Johnson v. State, 547 So. 2d 59 (Miss.

1989) (en banc).   The trial court subsequently re-sentenced

Johnson to life in prison.

     On June 6, 1994, Johnson filed a second motion for post-

conviction relief with the Mississippi Supreme Court, in which he

alleged that his conviction was flawed because it was based on

the perjured testimony of a co-indictee, Fields, and because the

prosecution failed to disclose certain evidence to which Johnson

claimed he did not have access until his re-sentencing hearing.

The Mississippi Supreme Court denied relief, finding that his

petition was barred:    (1) by the applicable three-year statute of

limitations, (2) as a second, successive application for post-

conviction relief, and (3) by the doctrine of res judicata.

See Johnson v. State, No. 94-DP-00532-SCT (Miss. June 8, 1995).

     On April 23, 1996, Johnson filed an application for writ of

habeas corpus in the United States District Court for the

Southern District of Mississippi.      A magistrate judge conducted

an evidentiary hearing on April 22, 1997, limited to the

presentation of proof in support of Johnson’s claim that newly

discovered evidence was not reasonably available to Johnson at

the time of his trial.    The magistrate judge issued a report

recommending that Johnson’s habeas application be dismissed with

                                   4
prejudice.   The district court adopted the magistrate’s report on

September 25, 1997, denying Johnson relief.    The district court

construed Johnson’s timely notice of appeal as a request for a

certificate of probable cause (CPC), and granted Johnson a CPC to

appeal the denial of habeas relief to this court.

                          II.   DISCUSSION

     We review the district court’s findings of fact for clear

error and its conclusions of law de novo.     See Gochicoa v.

Johnson, 118 F.3d 440, 444 (5th Cir. 1997), cert. denied, 118 S.

Ct. 1063 (1998); Spence v. Johnson, 80 F.3d 989, 993 (5th Cir.

1996).   Because Johnson filed his federal habeas application in

district court prior to April 24, 1996, the date Congress enacted

the Anti-Terrorism and Effective Death Penalty Act of 1996

(AEDPA), we must apply pre-AEDPA deference standards to any state

court determinations.   See Gochicoa, 118 F.3d at 444-45.    Under

pre-AEDPA law, state court findings of fact are entitled to a

presumption of correctness, see Boyle v. Johnson, 93 F.3d 180,

186 (5th Cir. 1996), and we review state determinations of law

and mixed questions of law and fact de novo, see Gochicoa, 118

F.3d at 444; Amos v. Scott, 61 F.3d 333, 337-38 (5th Cir. 1995).

     Johnson raised twenty-eight grounds in his habeas corpus

application in the district court.    He briefs six of these issues

on appeal, and we consider the remainder abandoned.     See Trevino

v. Johnson, 168 F.3d 173, 181 n.3 (5th Cir. 1999); Yohey v.

Collins, 985 F.2d 222, 225 (5th Cir. 1993).    In addition, Johnson

                                  5
argues for the first time on appeal that collateral relief is

warranted on the basis of the cumulative effect of errors

committed by the state trial court.    “We have repeatedly held

that a contention not raised by a habeas petitioner in the

district court cannot be considered for the first time on appeal

from that court’s denial of habeas relief.”    Johnson v. Puckett,

930 F.2d 445, 448 (5th Cir. 1991).    We therefore limit our

attention to the six issues Johnson argued to the district court

and now advances on appeal.    We address these issues in turn.

A.   Brady/Giglio Claim

      Johnson bases his first claim of error on Brady v. Maryland,

373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150

(1972).   The district court concluded that this claim was

procedurally barred, a legal conclusion that we review de novo.

See Martin v. Maxey, 98 F.3d 844, 847 (5th Cir. 1996); Amos, 61

F.3d at 338.

      Johnson maintains that the state withheld exculpatory

evidence, including details concerning benefits that Fields, the

state’s chief witness, received from the state as a result of

testifying against Johnson.1   Further, Johnson maintains that the

      1
       According to Johnson, Fields’s cooperation led to him
becoming a “key man” in jail, which allowed him “to go home, walk
to the bank to do his business, go to the local store to buy food
and cigarettes, cook up whatever burgers he might buy, and even
get drinks in the jail.” In addition, Johnson contends that the
state promised Fields help in obtaining parole. Johnson also
claims that the state failed to reveal racial epithets and
threats purportedly made to Fields while he was in jail before he

                                  6
state suborned perjury because prosecutors knew or should have

known that Fields lied during his testimony.   Specifically, in

his habeas application submitted to the district court, Johnson

identifies several areas of Fields’s testimony in which he argues

that the state knew or should have known that Fields lied:

whether Fields previously had been convicted of a crime; whether

Fields, Johnson, Montgomery, and Fairley had stopped in Purvis,

Texas before they were stopped by Officer Langham; when and where

Fields first saw the knife that was eventually used in stabbing

Officer Langham; whether Johnson was wearing a coat during the

assault of the officer; the number of times Fields spoke to

authorities before testifying in Johnson’s trial; and, most

importantly, who killed Officer Langham.

     Johnson presented a similar claim in his first state motion

for collateral relief.   In that motion, Johnson argued that the

state failed to disclose Fields’s criminal record and inculpatory

statements made by Fields in violation of Brady, and that the

state failed to correct Fields’s testimony concerning his prior

criminal record that it knew was perjured, necessitating relief

under Giglio.   Johnson had not briefed either issue in his direct

appeal before the Mississippi Supreme Court, and neither argument




testified in Johnson’s trial. Johnson argues that these threats
provided an incentive for Fields to testify favorably for the
state.

                                 7
addressed the alleged deal Fields and prosecutors entered into as

a result of Fields’s testifying against Johnson.

     It is clear from the opinion rendered by the Mississippi

Supreme Court denying Johnson’s first motion for post-conviction

relief that that court declined to address the merits of these

claims because it found them to be procedurally barred.    See

Johnson, 511 So. 2d at 1335-36, 1342.   However, it is more

difficult to discern which bar the court applied in denying

relief.   The court states that Johnson waived the Brady claim,

because Johnson “failed to raise [the issue] at trial or on the

direct appeal.”   Id. at 1342.   However, the court concluded that

the Giglio claim was procedurally barred by the doctrine of res

judicata because it was “considered and addressed by us on the

direct appeal.”   Id.

     In Johnson’s second motion for post-conviction relief, he

argued that the prosecution’s failure to disclose the details of

the benefits Fields received after testifying for the state

violated Brady, and that “the government knew, or should have

known, that Fields was committing perjury in denying the full

scope of his deal, and in making inconsistent statements at

Petitioner’s trial,” in violation of Giglio.2

     2
       Johnson did not identify the statements he believed were
“inconsistent” other than those related to the purported deal
between Fields and the prosecution, and it is therefore
impossible to determine the extent of the overlap between
Johnson’s argument in his second motion for post-conviction
relief and his Giglio argument in his first motion for post-

                                  8
     The Mississippi Supreme Court again relied on procedural

bars in denying Johnson’s second motion for post-conviction

relief.   The court found that Johnson was barred:   first, by the

applicable three-year statute of limitations; second, as a second

and successive application of post-conviction relief; and third,

by the doctrine of res judicata.     The court therefore declined to

address these issues on the merits in denying Johnson collateral

relief.

     Johnson admits in his brief to this court that he “was

subjected to a procedural bar in state court” on his Brady/Giglio

claim, and, during oral argument, Johnson’s counsel explicitly

asserted that the procedural bars enforced by the Mississippi

Supreme Court in its opinion denying relief on Johnson’s second

motion for post-conviction relief apply to this claim.3

Johnson’s argument on appeal thus is not that the district court

incorrectly concluded that the Mississippi Supreme Court applied

a procedural bar to this claim;4 instead, he argues that the


conviction relief.
     3
       We note that the Mississippi Supreme Court’s explicit
reliance on the three-year time limitation of MISS. CODE ANN. § 99-
39-5(2) in its denial of Johnson’s second collateral motion is an
independent and adequate state ground that bars this court from
considering the merits of the claim, subject to the normal
exceptions to the procedural bar doctrine. See Lott v. Hargett,
80 F.3d 161, 165 (5th Cir. 1996) (stating that Mississippi courts
consistently and regularly apply § 99-39-5(2)).
     4
       Johnson does disagree with the district court’s apparent
conclusion that the procedural bars from his first motion for
post-conviction relief apply to this claim. This is of no

                                 9
district court erred in concluding that he had failed to show

sufficient cause and prejudice to overcome the procedural bar

applied by the Mississippi Supreme Court.

     Federal review of a procedurally defaulted claim is

precluded unless “the prisoner can demonstrate cause for the

default and actual prejudice as a result of the alleged violation

of federal law, or demonstrate that failure to consider the

claims will result in a fundamental miscarriage of justice.”

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

cause for a procedural default, there “must be something external

to the petitioner, something that cannot fairly be attributed to

him.”   Id. at 753.   Johnson maintains that he has met this

burden; he argues that the evidence adduced at the evidentiary

hearing conducted by the magistrate judge proves that the state

interfered with his access to Fields, the state’s primary

witness, thereby limiting his ability to discover the full




import, as he admits that the Mississippi Supreme Court applied a
procedural bar to the issue he raises on appeal. We note that
the question of which procedural bar applies is more simple on
appeal than it was before the district court; Johnson’s
Brady/Giglio argument to the district court was apparently based
on more material and testimony than is the subject of this
appeal, and at least some of that material and testimony was the
subject of Johnson’s first post-conviction relief motion. We are
convinced after reading Johnson’s appellate brief and hearing his
oral argument to this court that the issue before us, which is
primarily based on alleged threats made to Fields and the scope
of a purported deal between Fields and the state, was denied as
procedurally barred in Johnson’s second motion for collateral
relief.

                                 10
ramifications of Fields’s plea bargain with the state and the

extent of his preferential treatment by authorities.

     While we agree with Johnson that a showing of “interference

by officials” is sufficient to show cause for a procedural

default, McCleskey v. Zant, 499 U.S. 467, 494 (1991) (internal

quotation marks omitted), we are unpersuaded by Johnson’s

contention that he has made such a showing.   In support of his

claim, Johnson argues that he presented unrebutted testimony at

the evidentiary hearing that Fields refused to talk to anyone on

the defense team until October 10, 1991.   However, even if this

contention were true, Johnson has not established that the cause

of Fields’s refusal to speak with Johnson’s attorneys was

interference by state law enforcement.   Fields may have made a

personal choice to avoid such contact--a choice that is well

within his rights.   See United States v. Soape, 169 F.3d 257, 271

n.9 (5th Cir. 1999) (“[A] government witness who does not wish to

speak to or be interviewed by the defense prior to trial may not

be required to do so.") (internal quotation marks omitted);

United States v. Caldwell, 750 F.2d 341, 347 (5th Cir. 1984)

(noting that a defendant’s right to access to a witness “exists

co-equally with the witness’ right to refuse to say anything”)

(internal quotation marks omitted).

     Johnson asserts, however, that Fields’s silence was not the

product of Fields’s own volition.    Rather, Johnson maintains that

Fields was “discouraged” from speaking with the defense by a

                                11
local law enforcement officer, who, according to Johnson, told

“defense counsel that Fields could only speak to the defense in

the presence of [then-]District Attorney Bob Evans.”   However,

there is no evidence to support this assertion in the record.     On

the contrary, during the evidentiary hearing conducted by the

magistrate, Fields testified on direct examination as follows:

     Q. Do you recall Sheriff Lloyd Jones telling you that
     you weren’t allowed to talk to us without [then-
     District Attorney] Bob Evans being present? Do you
     recall that?
     A. No, I don’t.

     After Fields denied that Sheriff Jones interfered with

Johnson’s counsel’s access to him, Johnson’s counsel elicited the

following cross-examination testimony from Marvin White, who had

served as special prosecutor during Johnson’s re-sentencing

proceedings:

     Q. Do you also recall that prior to the 1992 [re-
     sentencing] trial we litigated the question of defense
     access to Anthony Fields? Do you recall that?
     A. That’s correct.
     Q. Do you recall that we were being told by Sheriff
     Lloyd Jones we couldn’t talk to him. Right?
     A. No, I don’t think so.
     Q. What do you recall us litigating?
     A. I think that you asked for access to him and he
     asked for counsel and we litigated that, and Rex Jones
     represented him. You wanted access not only to Anthony
     Fields but also to his counsel, and the court ruled
     that you could not have -- Anthony Fields could talk to
     you if he wanted to and that Rex Jones did not have to
     because he had the right of privilege. Anthony Fields
     did not have to talk to you if he chose not to and he
     chose not to.
     Q. Do you recall us filing a motion saying that on
     July 15th, 1990, Sheriff Jones told my two
     investigators they could only talk with Anthony Fields
     if Bob Evans was present? Do you recall that?

                               12
     A. Yeah, you may have.
     Q. And the record would best reflect --
     A. The record certainly reflects that. Of course, you
     haven’t made that record part of this proceeding.

     Curiously, although Judge Robert Evans, who was the

presiding District Attorney at the time of Johnson’s original

trial, was called by the state to testify at the evidentiary

hearing, Johnson’s counsel chose not to question him regarding

any official interference with Johnson’s access to Fields.   Thus,

no evidence presented during the evidentiary hearing, and no

evidence in the entire record before this court, supports

Johnson’s contention that state officials made “compliance with

the procedural rule impracticable.”   United States v. Guerra, 94

F.3d 989, 993 (5th Cir. 1996).   We therefore have no trouble

concluding that the district court properly found that Johnson

failed in his burden to establish cause for his procedural

default, and we need not consider whether there is actual

prejudice.   See Saahir v. Collins, 956 F.2d 115, 118 (5th Cir.

1992).5

B.   Accessory-After-the-Fact Instruction

     Johnson next argues that the trial court’s refusal to

instruct the jury on the crime of accessory after the fact

violated his constitutional rights.   Johnson contends that the


     5
       In his brief, Johnson does not discuss nor oppose the
district court’s well-reasoned finding that failure to consider
this claim will not result in a fundamental miscarriage of
justice.

                                 13
court’s ruling prevented him from presenting his theory of the

case to the jury, namely, that he did not commit the murder of

Officer Langham, and that his only offense was driving the get-

away car after the killing.

     The Mississippi Supreme Court rejected this claim in

Johnson’s direct appeal.   Relying on Wilcher v. State, 455 So. 2d

727 (Miss. 1984) (en banc), vacated in part on other grounds, 635

So. 2d 789 (Miss. 1993), in which the court held that accessory

after the fact is not a lesser included offense of capital

murder, the court ruled that a defendant is not entitled “to have

the jury separately instructed and separately . . . consider

whether [Johnson] was guilty of being an accessory after the

fact.”   Johnson, 477 So. 2d at 214-15.   The district court

refused to grant Johnson habeas relief on this issue, ruling that

Johnson was not entitled to an instruction for accessory after

the fact because that offense is not a lesser included offense of

capital murder, and concluding that, in any event, “the evidence

in this case does not support a conviction for accessory-after-

the-fact and, hence, it was certainly not error for the trial

court to refuse such an instruction.”

     Johnson makes two interrelated arguments with respect to

this issue.   First, Johnson argues that under Beck v. Alabama,

447 U.S. 625 (1980), the trial court was constitutionally

required to give the requested instruction.   Johnson’s reliance

on Beck is misplaced.   In that case, the Supreme Court concluded

                                14
that Alabama’s “all-or-nothing” death penalty statute, which

forbade trial courts from issuing lesser-included-offense

instructions in capital cases, was constitutionally deficient.

See id. at 627.   As the Supreme Court explained in Schad v.

Arizona, 501 U.S. 624, 646 (1991), the

     fundamental concern in Beck was that a jury convinced
     that the defendant had committed some violent crime but
     not convinced that he was guilty of a capital crime
     might nonetheless vote for a capital conviction if the
     only alternative was to set the defendant free with no
     punishment at all.

Thus, “Beck addresses only those cases in which the jury is faced

with an ‘all-or-nothing’ decision.”   Allridge v. Scott, 41 F.3d

213, 219 (5th Cir. 1994).   Here, despite the fact that the trial

judge refused to give an instruction on accessory after the fact,

the jury was not presented with a choice between returning a

guilty verdict on a capital offense or setting Johnson free.   The

instruction that the jury in this case received on capital murder

stated:

     If you find the State has failed to prove any one of
     the essential elements of the crime of capital murder,
     you must find the defendant not guilty of capital
     murder and you will proceed with your deliberations to
     decide whether the State has proved beyond a reasonable
     doubt all the elements of the lesser crime of murder
     less than capital.

Johnson, 477 So. 2d at 212.   The jury instruction then set forth

the elements of the crimes of murder and manslaughter, and

instructed the jury that if it found that Johnson had completed

the requisite acts to be guilty of one of these crimes, but not


                                15
of capital murder, it was to return a verdict of guilty to one of

the lesser crimes.   Thus, the harm identified in Beck, that a

jury might be pressured or coerced into returning a guilty

verdict on a capital crime in order to avoid setting the

defendant free, is not present in this case.6   See Schad, 501

U.S. at 647 (“This central concern of Beck simply is not

implicated in the present case, for petitioner’s jury was not

faced with an all-or-nothing choice between the offense of

conviction (capital murder) and innocence.”); Allridge, 41 F.3d

at 220 (“But if the jury is given a third instruction,

particularly one that is supported by the evidence, then due

process is no longer implicated.”).

     Johnson further contends that the distinction between lesser

included offenses of capital murder, such as murder and

manslaughter, and lesser related offenses, such as accessory

after the fact, is “spurious,” and that the trial court was

constitutionally required to instruct the jury on his theory of

the case, that he had committed a lesser related offense, but had



     6
       Because we decide that Beck does not apply to the factual
circumstances of this case, we need not consider the application
of our recent conclusion in Creel v. Johnson, 162 F.3d 385, 390-
91 (5th Cir. 1998), petition for cert. filed, (U.S. Mar. 23,
1999) (No. 98-8720), that “a case in which the death penalty is
sought but not imposed ultimately is classified as a noncapital
case for the purposes of a Beck analysis.” In this case, as we
discussed supra, Johnson was originally sentenced to death, but
then re-sentenced by a different jury to life in prison after the
Supreme Court vacated his sentence.

                                16
not committed capital murder.   We reject Johnson’s suggestion

that any such requirement is mandated by the Constitution.

     In Hopkins v. Reeves, 118 S. Ct. 1895, 1897-98 (1998), the

Supreme Court considered “whether Beck requires state trial

courts to instruct juries on offenses that are not lesser

included offenses of the charged crime under State law,” and

concluded that “such instructions are not constitutionally

required.”   The Court in that case considered the claims of a

habeas petitioner who had been convicted of felony murder in

Nebraska state court.   See id. at 1898.   The petitioner claimed

that the trial court’s refusal to issue instructions on murder in

the second degree and manslaughter, which, under Nebraska state

law, were not lesser included offenses of felony murder,

necessitated collateral relief.    The situation that the Court

faced in Hopkins was unquestionably more difficult than the

instant case; the jury in Hopkins was given an all-or-nothing

choice between conviction or setting the defendant free, as

Nebraska law recognized no lesser included offenses of felony

murder.   Even so, the Court rejected the petitioner’s

constitutional challenge on the merits, stating:

     The Court of Appeals [which had granted habeas relief]
     in this case . . . required in effect that States
     create lesser included offenses to all capital crimes,
     by requiring that an instruction be given on some other
     offense--what could be called a “lesser related
     offense”--when no lesser included offense exists. Such
     a requirement is not only unprecedented, but also
     unworkable. . . . The Court of Appeals apparently would
     recognize a constitutional right to an instruction on

                                  17
     any offense that bears a resemblance to the charged
     crime and is supported by the evidence. Such an
     affirmative obligation is unquestionably a greater
     limitation on a State’s prerogative to structure its
     criminal law than is Beck’s rule that a State may not
     erect a capital-specific, artificial barrier to the
     provision of instructions on offenses that actually are
     lesser included offenses under state law.

Id. at 1901.    Likewise, under Mississippi law, accessory after

the fact is not a lesser included offense of capital murder.

See Wilcher, 455 So. 2d at 734.    The trial court’s refusal to

grant an instruction on accessory after the fact was therefore

not a violation of Johnson’s constitutional rights.     See Hopkins,

118 S. Ct. at 1901.

     It is irrelevant that, subsequent to Johnson’s conviction,

the Mississippi Supreme Court has determined that a defendant has

a right under state law to an instruction on “a lesser crime

which could be found to have been committed on the evidence

before the jury.”     Toliver v. State, 600 So. 2d 186, 192 (Miss.

1992) (Banks, J., concurring); see Gangl v. State, 539 So. 2d

132, 135 (Miss. 1989) (en banc) (“The better rule in cases such

as this is that the defendant may request an instruction

regarding any offense carrying a lesser punishment if the lesser

offense arises out of a nucleus of operative fact common with the

factual scenario giving rise to the charge laid out in the

indictment.”).    First, the Supreme Court made clear in Hopkins

that any such right does not arise under the federal

Constitution.    See 118 S. Ct. at 1901 (stating that “[w]e have


                                  18
never suggested that the Constitution requires anything more”

than an instruction on lesser included offenses in capital

trials); see also Greenawalt v. Ricketts, 943 F.2d 1020, 1029

(9th Cir. 1991) (denying relief on habeas petitioner’s claim

based on trial court’s refusal to grant instruction on lesser

related, but not lesser included, offense).    In habeas review, we

limit the issuance of the writ to those cases where there have

been federal constitutional violations.     See Castillo v. Johnson,

141 F.3d 218, 223 (5th Cir. 1998); Mayo v. Lynaugh, 882 F.2d 134,

137 (5th Cir. 1989).   Second, as our discussion of Beck and

Hopkins makes clear, the rule Johnson advocates was not “dictated

by precedent” in 1986, when Johnson’s conviction became final.

Teague v. Lane, 489 U.S. 288, 301 (1989).     We are therefore

prohibited from creating or applying such a rule on habeas review

under the Teague anti-retroactivity doctrine.     See id.; Vega v.

Johnson, 149 F.3d 354, 357 (5th Cir. 1998), cert. denied, 119 S.

Ct. 899 (1999).

     Lastly, Johnson was not entitled to the accessory after the

fact instruction simply because it was his theory of the case.

“A defendant is always entitled to have his theory of the case,

if it could amount to a lawful defense, fairly submitted to the

consideration of the jury.”   United States v. Flom, 558 F.2d

1179, 1185 (5th Cir. 1977) (emphasis added); see United States v.

Lamp, 779 F.2d 1088, 1097 (5th Cir. 1986).    Accessory after the

fact, unlike self-defense, is not a lawful defense to the crime

                                19
of capital murder.   The trial judge’s refusal to instruct the

jury on accessory after the fact therefore did not amount to a

violation of due process.   See Lamp, 779 F.2d at 1097 (stating

that failure to give defendant’s proffered instruction was not

error where theory, even if believed, “would not have warranted

acquittal”); United States v. Grapp, 653 F.2d 189, 195 (5th Cir.

Unit A Aug. 1981) (“Reversible error occurs when there is an

evidentiary foundation for the defense and the defense would be

legally sufficient to warrant an acquittal if believed by the

jury.”).   We thus affirm the district court’s denial of habeas

relief on this issue.

C. Limitation on Testimony Regarding Fields’s Motive

     Johnson’s next argument on appeal is that the trial court’s

limitation on his cross-examination of Fields regarding Fields’s

motive to kill Officer Langham violated his rights under the

Confrontation Clause, as incorporated to the states through the

Fourteenth Amendment.   The trial court’s grant of the state’s

motion in limine prevented the introduction of testimony or

evidence concerning Fields’s belief that Officer Langham had

previously killed an African-American man.   According to Johnson,

the court’s ruling prevented him from effectively impeaching

Fields by showing that he had a motive to kill Officer Langham.

     The Mississippi Supreme Court rejected Johnson’s argument in

his direct appeal, concluding that “[t]he mere fact Langham had



                                20
[previously] killed a black man in and of itself had no relevancy

to this case.”   Id. at 211.   Whether the trial court’s refusal to

allow cross-examination on this subject violated Johnson’s

constitutional rights is a mixed question of law and fact that

this court reviews de novo.    See Gochicoa, 118 F.3d at 445.    A

state court’s evidentiary rulings present cognizable habeas

claims only if they run afoul of a specific constitutional right

or render the petitioner’s trial fundamentally unfair.     See Cupit

v. Whitley, 28 F.3d 532, 536 (5th Cir. 1994).

     We are unpersuaded by Johnson’s argument that his inability

to delve into whether Fields was aware that Officer Langham had

previously killed an African-American man violated his rights

under the Confrontation Clause.    “[T]rial judges retain wide

latitude insofar as the Confrontation Clause is concerned to

impose reasonable limits on such cross-examination based on

concerns about, among other things, harassment, prejudice,

confusion of the issues, the witness’ safety, or interrogation

that is repetitive or only marginally relevant.”     Delaware v. Van

Arsdall, 475 U.S. 673, 679 (1986).     In order to determine whether

a trial court’s restriction on cross-examination is reasonable,

“we must assess whether the jury was given adequate information

to appraise the bias and motives of the witness.”     United States

v. Mizell, 88 F.3d 288, 293 (5th Cir. 1996); see United States v.

Cooks, 52 F.3d 101, 104 (5th Cir. 1995).



                                  21
     The trial judge in this case allowed extensive testimony and

questioning regarding potential sources of Fields’s bias and his

credibility as a witness.   First, throughout the cross-

examination of Fields, Johnson’s attorney questioned Fields

regarding multiple inconsistent statements Fields had made before

Johnson’s trial.   Second, Johnson’s attorney questioned Fields

extensively regarding Fields’s guilty plea to accessory after the

fact and his incentive to testify that Johnson had killed Officer

Langham in order to exculpate himself of the killing.      Third,

Fields admitted on cross-examination that, during some portion of

his direct-examination testimony, he was not testifying from

personal knowledge, but rather that he was relying on information

provided by “the investigators that were questioning” him.

Further, Fields admitted on cross-examination that sometimes when

he “get[s] nervous and upset, it’s hard for [him] to tell the

truth,” and that he was nervous and upset when he gave several

statements to the authorities.   In addition, Fairley’s testimony

that he had seen Fields murder Officer Langham raised a strong

inference that Fields was lying.      Given the testimony the jury

heard regarding Fields’s incentive to testify favorably for the

state, we do not believe that the jury would have received a

significantly different impression of Fields’s credibility had

defense counsel been able to cross-examine Fields on his belief

that Officer Langham had killed an African-American man.      See Van

Arsdall, 475 U.S. at 680; Mizell, 88 F.3d at 294 (concluding that

                                 22
excluded impeachment evidence did not violate defendant’s

Confrontation Clause rights, given extensive admitted impeachment

evidence); United States v. Hamilton, 48 F.3d 149, 155 (5th Cir.

1995) (concluding that because “so much additional impeachment

evidence was admitted,” trial judge’s refusal to allow

impeachment of witness in certain area “could not have affected

the trial so as to prejudice [the defendant’s] substantial

rights”).

     We are also convinced that the trial court’s refusal to

allow testimony on whether Fields believed that Officer Langham

had previously killed an African-American man did not violate

Johnson’s rights under the Due Process Clause by rendering

Johnson’s trial fundamentally unfair.   The failure to admit

evidence amounts to a due process violation only when the omitted

evidence is a crucial, critical, highly significant factor in the

context of the entire trial.   See Thomas v. Lynaugh, 812 F.2d

225, 230 (5th Cir. 1987).   Again, we agree with the district

court that the mere fact that Fields may have known that Officer

Langham had killed an African-American man would not have been a

crucial, critical, highly significant factor in the context of

the entire trial.

     Johnson also argues that his rights under the Confrontation

Clause were violated because the trial court “refused to allow

the defense to []examine Fairley on a statement made to him by

Fields that ‘[Fields] knew the Highway Patrolman had murdered a

                                23
black person and that if [Fields] let him go he thought the

Highway Patrolman would go for his gun and kill us before we

could leave.’”   We find no authority in support of Johnson’s

assertion that his rights under the Confrontation Clause extend

to the opportunity to impeach the state’s primary witness through

the testimony of a witness favorable to the defense.7    See, e.g.,

Davis v. Alaska, 415 U.S. 308, 315-16 (1974) (“The main and

essential purpose of confrontation is to secure for the opponent

the opportunity of cross-examination.”) (internal quotation marks

omitted) (emphasis in original);     cf. United States v. Kindig,

854 F.2d 703, 709 (5th Cir. 1988) (stating that Confrontation

Clause is not implicated where witness’s testimony is not adverse

to defendant).

     Further, we note that, despite Fairley’s assertion in his

affidavit that he was “not allowed to testify” to his entire

statement, the motion in limine did not prevent Fairley from

testifying that Fields had admitted to killing Officer Langham or

that Fields was worried that “if he let [Officer Langham] go he

thought the Highway Patrolman would go for his gun and kill us

     7
       Even assuming that the trial court’s evidentiary
limitation prevented Johnson from offering the testimony of a
favorable witness, and that this prohibition infringed Johnson’s
rights under the Compulsory Process Clause of the Sixth
Amendment, such infringement was harmless. Given the scope of
impeachment evidence allowed as to Fields’s bias to testify in
favor of the state and his credibility as a witness, we do not
believe that the omission contributed “beyond a reasonable doubt”
to the verdict. Van Arsdall, 475 U.S. at 684; see Crane v.
Kentucky, 476 U.S. 683, 691 (1986).

                                24
before we could leave.”    The motion in limine therefore only

prevented Fairley from testifying that Fields believed that

Officer Langham had previously killed an African-American man.

The omission of this information, as we concluded supra, did not

amount to a violation of Johnson’s due process rights.    We

therefore affirm the district court’s denial of habeas relief on

this ground.

D.   Trial Court’s Denial of Johnson’s Continuance Motion

     Johnson next claims that the trial court’s refusal to grant

a continuance to obtain the attendance of allegedly crucial

expert witnesses denied his right to a fair trial.   The experts

in question were forensic scientists, Dale Nute and James

Halligan, both of whom were allegedly prepared to testify that

cuts on Johnson’s hands were consistent with his defense that he

tried to prevent Fields from stabbing Officer Langham with the

knife.   According to Johnson, scheduling conflicts prevented the

two men from testifying.

     The Mississippi Supreme Court rejected this claim on

Johnson’s direct appeal, concluding it was “frivolous” because

Johnson did not attach any affidavits to his continuance motion

indicating the materiality of the experts’ testimony and because

he filed his motion only ten days before his trial was set to

begin.   Johnson, 477 So. 2d at 210-11.   The district court

concluded that the state trial court had not abused its



                                 25
discretion in denying the continuance motion, and, in any event,

that Johnson had failed to show that the experts’ testimony would

have altered the verdict.    We review Johnson’s claim that the

trial court’s denial of his continuance motion amounted to a due

process violation de novo.     See Schrader v. Whitley, 904 F.2d

282, 288-89 (5th Cir. 1990).

     As the district court correctly noted, “‘[w]hen a denial of

a continuance forms a basis of a petition for a writ of habeas

corpus, not only must there have been an abuse of discretion but

it must have been so arbitrarily and fundamentally unfair that it

violates constitutional principles of due process.’”      Schrader,

904 F.2d at 288 (quoting Hicks v. Wainwright, 633 F.2d 1146, 1148

(5th Cir. Unit B Jan. 1981)).    Among the factors we must consider

in determining whether a trial court abused its discretion in

denying a continuance motion are:      the defense’s diligence in

interviewing and procuring the presence of the witnesses, the

defense’s estimation of the probability of procuring live

testimony within a reasonable time, the specificity with which

the defense is able to describe the expected testimony, the

degree to which such testimony is expected to be favorable to the

accused, and the unique or cumulative nature of the testimony.

See id.; Hicks, 633 F.2d at 1149.

     We agree with the Mississippi Supreme Court and the district

court that Johnson has failed to show that the trial court abused

its discretion in denying the continuance motion.      Johnson’s only

                                  26
argument in support of his contention that the trial court abused

its discretion in denying the motion is that, quoting United

States ex rel. Martinez v. Thomas, 526 F.2d 750, 755 (2d Cir.

1975), “a myopic insistence upon expeditiousness in the face of a

justifiable request for delay can render the right to defend with

counsel an empty formality.”   We agree with Johnson that, under

some circumstances, a trial court’s refusal to grant a

continuance can interfere with a defendant’s constitutional

rights.   See Hicks, 633 F.2d at 1149-50 (concluding that trial

court’s denial of continuance motion violated petitioner’s due

process rights).   However, unlike in Hicks, Johnson has presented

no evidence that he informed the trial judge of the uniqueness,

materiality, and imminent availability of his witnesses’ live

testimony.   On the contrary, Johnson attached no affidavits to

his continuance motion indicating what the experts’ proposed

testimony would be or addressing the materiality or necessity of

their testimony.   Moreover, on August 18, 1982, twelve days

before the trial was to begin, the trial court told Johnson’s

counsel that “I don’t know what [the experts are] going to

testify to or anything about it and I don’t know where it’s

material or immaterial . . . .”    Johnson’s attorney only replied

that Johnson would likely call the experts to testify, and that

the availability of the experts was important to “help [the

defense] understand the basis of [the state’s] case.”    Unlike in

Hicks, where it was clear that the witness at issue would be

                                  27
available to testify later that day, see id. at 1148, Johnson’s

counsel gave no indication when Nute and Halligan could give

testimony.   Thus, we conclude that, given the lack of specificity

with which Johnson’s counsel described the experts’ proposed

testimony, the materiality of the testimony, or the probability

of procuring the presence of the experts within a reasonable

time, the trial court did not abuse its discretion in denying

Johnson’s motion for a continuance.    We therefore affirm the

district court’s denial of habeas relief on this issue.

E.   Batson Claim

      Johnson next claims that he is entitled to collateral relief

because his conviction for capital murder was the result of

racial prejudice in the selection of his jury, relying on Batson

v. Kentucky, 476 U.S. 79 (1986).     Specifically, he requests that

this court order a Batson hearing in light of his assertion that

the prosecutor in Johnson’s trial used each of his seven

peremptory challenges to strike African Americans from the jury.

      Prior to his trial, Johnson moved the court for an order to

enjoin the prosecution from using peremptory challenges to

exclude African Americans from the jury.    The trial court granted

Johnson’s motion.   Johnson maintains that, despite the motion, at

his trial the prosecution exercised all seven of its peremptory

challenges to strike African Americans.    It is clear from the

record that Johnson did not object to the prosecution’s use of



                                28
its peremptory strikes during his trial.   Johnson first raised

his argument that, under Batson, he had made a prima facie

showing that the state’s use of its peremptory strikes violated

the Equal Protection Clause in his first motion for post-

conviction relief.

     We agree with the district court that the state court relied

on a procedural bar in denying relief on this issue.   Under the

procedural default doctrine, a federal court may not consider a

state prisoner’s federal habeas claim when the state has based

its rejection of that claim on an independent and adequate state

ground.   See Martin, 98 F.3d at 847.   We conclude that the

Mississippi Supreme Court based its rejection of Johnson’s Batson

claim on state procedural bars independent of the merits of the

claim--namely, that Johnson had failed to object to the state’s

use of its peremptory challenges during his trial and that he

failed to raise the issue on direct appeal.   In the first

paragraph of its opinion, the court stated that it would “address

only those assignments contemplated by the [Mississippi Uniform

Post-Conviction Collateral Relief Act] for which we are

authorized to review in a petition of this nature.”    Johnson, 511

So. 2d at 1335.   It then proceeded to discuss the two procedural

bars relevant to Johnson’s Batson claim, a petitioner’s failure

to raise an objection during his or her trial and a petitioner’s

failure to raise an issue on direct appeal.    See id. at 1336



                                29
(quoting MISS. CODE ANN. § 99-39-21).8    The Mississippi Supreme

Court’s failure to discuss Johnson’s Batson claim on the merits,

in light of its statement that it found those issues that it did

not discuss on the merits to be procedurally barred, convinces us

that the state court based its rejection of this claim on a state

procedural bar.

     Johnson’s argument that the state court failed to “clearly

state[] and appl[y]” a procedural bar because it mistakenly did

not list his Batson claim in its list of claims that were

procedurally barred lacks merit.       See id. at 1342 (denying as

procedurally barred three claims, including Johnson’s Brady

claim, discussed supra, that Johnson had “failed to raise at

trial or on the direct appeal”).       Simply put, it does not fairly

appear from our reading of the state court’s opinion that the

Mississippi Supreme Court “rested its decision primarily on

federal law”; thus, we need not reach the question of whether the

state court’s opinion “contains a plain statement that its


     8
         That section provides in part:

     Failure by a prisoner to raise objections, defenses,
     claims, questions, issues or errors either in fact or
     law which were capable of determination at trial and/or
     on direct appeal, regardless of whether such are based
     on the laws and the Constitution of the state of
     Mississippi or of the United States, shall constitute a
     waiver thereof and shall be procedurally barred, but
     the court may upon a showing of cause and actual
     prejudice grant relief from the waiver.

MISS. CODE ANN. § 99-39-21(1).

                                  30
decision rests upon adequate and independent state grounds.”

Harris v. Reed, 489 U.S. 255, 261 (1989) (internal quotation

marks omitted) (alterations omitted); see Young v. Herring, 938

F.2d 543, 548 (5th Cir. 1991) (en banc).   In sum, “any ambiguity

that may have existed pertained only to the precise state law

ground on which Mississippi based its rejection of [Johnson’s]

claim, and such an ambiguity is not relevant to a Harris plain

statement analysis.”   Young, 938 F.2d at 551.

     Thus, we conclude that the Mississippi Supreme Court based

its rejection on a state procedural ground independent of the

merits of Johnson’s claim.   In addition to the requirement that

the state procedural ground relied upon by the state court be

independent of the merits of the claim, the procedural bar must

also be adequate; i.e., the procedural rule must be strictly or

regularly applied by the state to the vast majority of similar

claims.   See Martin, 98 F.3d at 847; Amos, 61 F.3d at 339.    This

requirement has been met here; the Mississippi Supreme Court

regularly applies the contemporaneous objection rule to Batson

claims.   See Wiley v. Puckett, 969 F.2d 86, 103 (5th Cir. 1992);

Hill v. Black, 887 F.2d 513, 516-17 (5th Cir. 1989), vacated on

other grounds, 498 U.S. 801 (1990), reinstated, 920 F.2d 249 (5th

Cir. 1990).

     Unlike the Brady/Giglio claim discussed supra, Johnson does

not attempt to show cause for, or actual prejudice resulting

from, his procedural default.   We are therefore precluded from

                                31
considering the merits of this claim, and we affirm the district

court’s denial of habeas relief on this issue.

F.   The Capital Murder Instruction

     In his final claim of error, Johnson argues that the trial

court’s failure to instruct the jury on an essential element of

the offense of murder violated his constitutional rights.

Specifically, Johnson contends that the instruction describing

the offense of murder to the jury relieved the state of its

burden to prove intent on Johnson’s part, as required by

Mississippi Code § 97-3-19.

       The jury instruction at issued provided that “[t]he

defendant, Samuel Johnson, has been charged by an indictment with

the crime of capital murder for having wilfully, unlawfully,

feloniously, of his malice aforethought and without authority

kill[ed] and murder[ed] Billy Morris Langham, a human being

. . . .”   The second part of the instruction was composed of six

requirements for a guilty verdict, including the following two:

     1) The defendant, Samuel Johnson, aided and commanded
     Charles Montgomery to commit capital murder by stabbing
     Officer Billy Morris Langham with a knife and ordering
     Charles Montgomery to shoot Officer Billy Langham; and
     2) That Charles Montgomery wilfully, unlawfully,
     feloniously and of his malice aforethought and without
     authority of law kill[ed] and murder[ed] Billy Morris
     Langham . . . .

     Johnson argues that the jury instruction failed to instruct

the jury that they must find that Johnson intended to kill




                                32
Officer Langham, and instead allowed the jury to impute the

intentions of Montgomery to Johnson.

     The Mississippi Supreme Court rejected this argument on

Johnson’s direct appeal.   See Johnson, 477 So. 2d at 212.

According to the state court, “[i]t can be readily observed that

the first part of [the instruction] requires intent on the part

of Johnson to kill Langham,” and the second part of the

instruction “clearly define[s] the acts necessary to come within

the capital murder framework.”   Id.   The Mississippi Supreme

Court concluded that “[t]he jury could not have been misled by

this instruction.”   Id.

     As we stated in Kinnamon v. Scott, 33 F.3d 462 (5th Cir.

1994), “[a]s a federal habeas court, our question is whether the

ailing instruction by itself so infected the entire trial that

the resulting conviction violates due process, not merely whether

the instruction is undesirable, erroneous, or even universally

condemned.”   Id. at 465 (internal quotation marks omitted)

(citing Henderson v. Kibbe, 431 U.S. 145, 154 (1977)); see

Livingston v. Johnson, 107 F.3d 297, 312 (5th Cir.), cert.

denied, 118 S. Ct. 204 (1997).   We agree with the district

court’s conclusion that “[a]lthough the instruction could have

been made clearer, its problematic portions regarding intent were

not so egregious as to violate due process.”   Considering the

charge as a whole, the testimony adduced at trial, and the

arguments of counsel, we are not persuaded that there is a

                                 33
“reasonable likelihood that the jury applied the instruction in a

constitutionally impermissible way.”   Kinnamon, 33 F.3d at 465.

We therefore affirm the district court’s denial of collateral

relief on this issue.

                        III.   CONCLUSION

     For the foregoing reasons, we AFFIRM the judgment of the

district court.




                                34
