                     UNITED STATES COURT OF APPEALS

                             FOR THE FIFTH CIRCUIT



                                  No. 91-3515



FREDERICK KIRKPATRICK,
                                                        Petitioner-Appellant,


                                    versus


JOHN P. WHITLEY, Warden, Louisiana
State Penitentiary, ET AL.,

                                                                 Respondents.

ST. TAMMANY PARISH DISTRICT
ATTORNEY'S OFFICE,

                                                             Movant-Appellee.


          Appeal from the United States District Court
              For the Eastern District of Louisiana

                         (      May 20, 1993        )


Before POLITZ, Chief Judge, KING and DAVIS, Circuit Judges.

POLITZ, Chief Judge:

     Convicted of capital murder by a Louisiana jury and sentenced

to death Frederick Kirkpatrick seeks federal habeas relief for the

second time.    The district court denied relief.           We now vacate and

remand   for    an    evidentiary       hearing    to     determine   whether

Kirkpatrick's   claims       relating   to   prosecutorial    misconduct   are

supported in fact and to reconsider the abuse of the writ issue in
light of the intervening decision by the Supreme Court in Sawyer v.

Whitley.1



                                  Background

        In our prior panel opinion we summarized the facts:

        On the night of January 27, 1982, Frederick Kirkpatrick
        and Charles Faulkner were in the home of Steven Radoste,
        who lived alone in the Pearl River area of St. Tammany
        Parish. During the night, Radoste was murdered: he was
        struck in the head with a heavy glass object, stabbed
        with a butcher knife in the abdomen and chest, and shot
        in the head. Radoste's house was robbed, and his pickup
        truck was stolen. . . . Kirkpatrick confessed that he
        and Faulkner had driven the truck to a remote area and
        that he had watched Faulkner burn it. He also stated
        that Faulkner possessed a .22 caliber Derringer
        firearm2 . . . .    Police seized several of Radoste's
        belongings from Kirkpatrick's apartment, as well as a
        pair of Kirkpatrick's sneakers, the sole pattern of which
        was matched to a bloody footprint at Radoste's home.3

Kirkpatrick, on the advice of counsel, turned down a plea offer

which would have resulted in a life sentence.                Faulkner was tried

separately and sentenced to life in prison.                 Kirkpatrick claimed

that he stabbed Radoste in self defense.               Although his version of

the events has been inconsistent, Kirkpatrick testified that he

stabbed     Radoste   after   Radoste       made,   at      gunpoint,    unwelcome

homosexual advances.

        Kirkpatrick   explained   his       presence   in    Radoste's    home   by

    1
             _____ U.S. _____, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992).

    2
             The Meridian Police seized the gun from Faulkner upon his
arrest.     The gun belonged to the victim.

        3
             Kirkpatrick v. Butler, 870 F.2d 276, 277-78 (1989).


                                        2
claiming that Radoste gave him and Faulkner a ride when they were

hitchhiking     in   Mississippi,    and    invited    them   to   his     home    in

Louisiana.      According     to   Kirkpatrick,   Radoste      suggested        that

Kirkpatrick take a shower and then, after he finished showering,

demanded sexual favors.       When Kirkpatrick refused, Radoste pulled

a gun.     Kirkpatrick claims that he then grabbed a knife, while

Radoste was distracted, and stabbed him. He offered no explanation

for the two pillows found on Radoste's head nor for the bullethole

through one and the bullet in the victim's head.4

      It is clear that the decedent's sexual preference was a

significant issue at trial because it bore upon the factual basis

for Kirkpatrick's claim of self defense.               To rebut Kirkpatrick's

theory    the   prosecution    called   Officer       McKormick,     one   of     the

investigating officers, who testified that the only evidence found

of Radoste's sexual preference was a Playboy magazine, suggestive

of   heterosexual     interest.       The    prosecution      also    offered       a


      4
          During opening statements the prosecution mused that
Faulkner shot Radoste. Only Julie Yarbrough, Faulkner's girlfriend
and the mother of his child, testified -- inconsistently with her
prior statement contained in the police reports -- that Kirkpatrick
told her that he, and not Faulkner, shot Radoste.

          Kirkpatrick complains of the prosecution approaching
witness Julie Yarbrough on the day of the trial to take a hair
sample and fingerprints. Found at the murder scene was a bloody
fingerprint on a glass and a mass of hair firmly clasped in the
victim's hand. The defense was not informed that the prints and
hair did not come from Radoste, Faulkner, or Kirkpatrick.      The
results of the test remain a mystery. We focus on the affidavits
of the first two officers to arrive at the scene which precipitate
our direction of an evidentiary hearing. The district court may
wish to reconsider Kirkpatrick's other complaints to the extent
that the evidentiary hearings may bring new light on those issues.


                                        3
photograph depicting a crutch near the victim.          Beyond the obvious

potential     of   generating   sympathy   for   the   victim,   the   crutch

pointedly tended to discount the victim's ability to present the

sort of threat that would justify the use of deadly force in self

defense.     The prosecution also presented testimony of Radoste's

neighbor, David Garrett, who claimed to have seen Radoste walking

on crutches when Garrett delivered a spaghetti dinner to Radoste,

at the same time Kirkpatrick claimed to have been riding in

Radoste's car.

     Kirkpatrick filed his first state court application for habeas

relief on October 17, 1984.        After a limited evidentiary hearing

relief was denied.      On September 19, 1984, the Louisiana Supreme

Court denied remedial writs.       Kirkpatrick promptly filed his first

federal application complaining of numerous deficiencies in his

trial as well as the method of electrocution.              All relief was

denied.5     We affirmed in part and vacated in part instructing the

district court to make factual findings regarding the sufficiency

of trial counsel's efforts to suppress physical evidence.6                 On

remand the district court again found no basis for relief.                 We

affirmed.7     A second state habeas application, raising all of the

     5
             Kirkpatrick    v. Blackburn, 597 F.Supp. 1562 (E.D.La.
1984).

     6
          Kirkpatrick v. Blackburn, 777 F.2d 272 (5th Cir. 1985),
cert. denied, 476 U.S. 1178, 106 S.Ct. 2907, 90 L.Ed.2d 993 (1986).

     7
          Kirkpatrick v. Butler, 870 F.2d 276 (5th Cir. 1989),
cert. denied, 493 U.S. 1051, 110 S.Ct. 854, 107 L.Ed.2d 848 (1990).


                                     4
points      raised      in    this,    his       second          federal      application,      won

Kirkpatrick a temporary stay of execution, but permanent relief

ultimately        was    denied.        Although            it    originally      scheduled      an

evidentiary hearing on Kirkpatrick's claims, the state court denied

relief without holding a hearing.                           The Louisiana Supreme Court

again refused to hear the case.

          The present federal habeas petition alleges multiple grounds

for collateral relief.                The claims raised can be summarized as

follows:        (1) the prosecution did not share exculpatory material

with      the   defense,       some    of    which         flatly       conflicted    with      the

prosecution's        presentation           of       the    facts,      suggesting       that   the

prosecution suborned perjury or, at least, withheld exculpatory

material despite a Brady8 request; (2) the prosecution tampered

with      witnesses      by   improper       threats;            (3)   Kirkpatrick       received

ineffective assistance of counsel; (4) the trial court erred in the

sentencing phase when it refused to instruct the jury on the

parolability of the defendant; and (5) death in the Louisiana

electric chair is cruel and unusual punishment.

          The   district      court,    in       a       thorough      and    reasoned    opinion

withheld        relief       under    the        then-controlling             standards.         No

evidentiary hearing was had.                     The court assumed the truth of the

first claim, suppression and/or knowing use of perjured testimony,

and       further    assumed         that    the          claims       were    not   barred      by


      8
          Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d
215 (1963). The state's appellate counsel candidly confirmed that
Kirkpatrick's counsel had made a timely Brady request.


                                                     5
Kirkpatrick's failure to raise them in the first petition but

denied relief, concluding that neither the conviction nor the

sentence were tainted by the assumed misconduct.9       The second

claim, tampering with witnesses, was reviewed to determine whether

a different outcome would have been reached had the tampering been

disclosed -- the court answered the question in the negative.   The

third claim, ineffective assistance of counsel, was dismissed for

abuse of the writ.   The jury instruction, the fourth claim, was

also dismissed for abuse of the writ and alternatively for lack of

merit.10   The final claim, that Louisiana's chosen method of

execution was unconstitutional as applied, failed on its merits.

Kirkpatrick timely appealed.    On appeal we review the factual

findings for clear error; mixed questions of fact and law generally

receive independent review, and questions of law are reviewed de

novo.11

                             Analysis

     9
          The court treated the report containing a prior
inconsistent statement of witness Garrett, Radoste's neighbor, as
a suppression issue rather than an issue relating to the knowing
use of perjured testimony. The court may wish to reconsider this
and other issues should an evidentiary base develop during the
directed evidentiary hearing.

     10
          The jury sent two notes to the trial judge inquiring as
to the duration of a life sentence and the possibility of parole.
The judge refused to give the instruction on parole.       Such an
instruction is not constitutionally mandated. O'Bryan v. Estelle,
714 F.2d 365, 389 (5th Cir. 1983), cert. denied sub nom. O'Bryan v.
McKaskle, 465 U.S. 1013, 104 S.Ct. 1015, 79 L.Ed.2d 245 (1984).

     11
          Baker v. Metcalfe, 661 F.2d 391 (5th Cir. Unit B 1981),
cert. denied, 456 U.S. 1011 (1982).


                                6
     Kirkpatrick      makes    allegations,   which     are   substantially

supported by evidence not previously available to him, that raise

serious   questions    about   the   reliability   of   the   prosecution's

evidence.    Kirkpatrick claims that the prosecution knew:          (1) that

Radoste possessed substantial hardcore homosexual pornography of

which Officer McKormick was aware; (2) that Radoste had a drawer

full of rubber gloves, which are commonly used by homosexuals;

(3) that Radoste's neighbor, David Garrett, did not see him when he

claimed to or see him on crutches at any time;12 and (4) that the

crutch was used as a stage prop for the photograph.             Kirkpatrick

also claims that the prosecution tampered with witnesses by threats

and coercion.

     The absence of an evidentiary hearing in either the state or

district court hampers our review of both the factual bases for

Kirkpatrick's claims and their effect, if any, on the outcome of

the trial.   It is clear, however, from the affidavits of the first

two officers on the scene that neither saw a bloody crutch next to

Radoste's body or anywhere in Radoste's apartment.            Moreover, they

claim that Officer McKormick himself showed them a "stack of

magazines that were filled with pictures of nude men."           We focus on

the evidence which was not available to Kirkpatrick on his first

habeas petition.


     12
          Apparently the testimony of Garrett was the only
admissible evidence of Radoste's use of a crutch.     Garrett's
testimony could also have been discredited by an autopsy report
indicating that spaghetti was not among the contents of the
victim's stomach.


                                      7
      1.    Abuse of the writ

      Before considering the merits of Kirkpatrick's claims, we

perforce consider whether the issues are properly before us.             The

prosecution claims that Kirkpatrick's failure to raise these claims

in   his   first   habeas   petition   constitutes   abuse   of   the   writ.

Rule 9(b) governing cases brought under 28 U.S.C. § 2254 provides:

      A second or successive petition may be dismissed if the
      judge finds that it fails to allege new or different
      grounds for relief and the prior determination was on the
      merits or, if new and different grounds are alleged, the
      judge finds that the failure of the petitioner to assert
      those grounds in a prior petition constituted abuse of
      the writ.13

The Supreme Court's recent decision in McCleskey v. Zant14 guides

our analysis. In McCleskey the habeas petitioner complained of the

admission of his statement to a cellmate.        McCleskey alleged that

the fellow prisoner was an agent of the state and that placing the

agent in his cell violated his sixth amendment right to counsel as

interpreted in United States v. Massiah.15       He raised the claim in

his first state habeas petition but omitted it from his first

federal petition.       It was not until his second federal habeas


      13
           See also 28 U.S.C. § 2244(b) (". . . a subsequent
application [by] such [a] person need not be considered by a court
. . . unless the application alleges and is predicated on a factual
or other ground not adjudicated on the hearing of the earlier
application for the writ, and unless the court . . . is satisfied
that the applicant has not on the earlier application deliberately
withheld the newly asserted ground or otherwise abused the writ.").

      14
            499 U.S. _____, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991).

      15
            377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964).


                                       8
petition that McCleskey reurged the Massiah claim.              The district

court granted relief but the Eleventh Circuit reversed, finding

error in the district court's failure to find an abuse of the writ.

     On certiorari the Supreme Court affirmed, clarifying for the

first time the standard to be employed to ascertain abuse of the

writ.     Under the regime announced in McCleskey, when there has not

been a prior determination on the merits the government bears the

initial burden of pleading and proving abuse of the writ; the

habeas petitioner must then counter that claim.

     In the instant case the government met its initial burden, but

the district court assumed, for the purposes of its decision, that

Kirkpatrick successfully established that he had not abused the

writ with respect to his claims that the prosecution suborned

perjury, withheld evidence, and tampered with witnesses. Equitable

principles govern this decision and, ultimately, it rests in the

sound discretion of the district court.16            But that discretion is

not completely unfettered; the district court must recognize abuse

where it is evident. We must therefore determine whether the court

abused its discretion by not finding abuse in Kirkpatrick's failure

to raise these issues in his first federal petition.

     Under the standards announced in McCleskey, abuse of the writ

consists     either   of   the   deliberate      withholding   of   claims   or

inexcusable    neglect.      The   latter   is    applicable   herein.       The

McCleskey     court   adopted    the   cause-and-prejudice     standard      for


     16
             McCleskey, 111 S.Ct. at 1465, 113 L.Ed.2d at 538.


                                       9
determining whether neglect is excusable. Under this standard, the

habeas petitioner first must explain his failure to present the

claim by some objective factor external to the defense which

impeded counsel's efforts to raise the claim previously and must

also demonstrate actual prejudice resulting from the error.17

       Absent a showing of cause and prejudice, the failure to raise

a claim in a prior habeas petition may be overlooked only when a

constitutional violation probably has resulted in the conviction of

one innocent of the crime.               Finding cause and prejudice in the

evidence presented by the two police officers, we need not reach

the        issue    of   actual    innocence.       We    note,   however,   that

Kirkpatrick's claims of self defense would establish a lack of

criminal responsibility under the test announced in Sawyer v.

Whitley.18         On remand, the district court should examine the abuse

issues in light of the new standards.

       The claims of suppression and falsification of evidence were

not raised          in   the   first   federal   habeas   petition   for   obvious

reasons:           the "'factual . . . basis . . . was not reasonably

available to counsel.'"19 Although Kirkpatrick's trial counsel made

       17
               McCleskey.

       18
          945 F.2d 812 (5th Cir. 1991), aff'd, _____ U.S. _____,
112 S.Ct. 2514, 2522, 120 L.Ed.2d 269 (1992).

      19
          McCleskey, 111 S.Ct. at 1470, 113 L.Ed.2d at 544 (quoting
Murray v. Carrier, 477 U.S. at 488). The Court in McCleskey also
recognized "interference by officials" as a cause for the failure
to present claims in the previous habeas application.       Unlike
McCleskey, Kirkpatrick did not himself possess knowledge of the
officers' identity or their knowledge of the events.

                                           10
a Brady request before trial, the statements, indeed the very

identity, of the first two officers on the murder scene, were not

discovered at trial because the then-controlling state law would

not permit discovery of the initial police report.     That law has

since been amended.20 Notwithstanding, that report was not produced

during the previous federal or state habeas proceedings.

     While we are confident that the district court would have

allowed discovery in the first habeas proceeding had counsel reason

to request it, we recognize that in order to obtain discovery in

habeas proceedings "good cause" must be shown.21   Counsel could not

establish good cause for the production of information of which he

had no knowledge.   The discovery rules do not permit the sort of

fishing expedition that would have been necessary to locate the

reports of the first two officers on the scene.22 In short, we find

much support for the district court's assumption that "cause"

existed for Kirkpatrick's failure to raise this issue in the first

federal habeas proceeding.




     20
          In 1984 Louisiana amended its public records provisions
to provide for public examination of initial police reports. La.
R.S. 44:3A(4)(a) (West Supp. 1993). The amendment took effect on
September 1, 1985; Kirkpatrick was tried in 1982 and the federal
district court denied his first federal habeas application in 1984.

     21
          Rule 6, 28 U.S.C. § 2254.

     22
          As it is, counsel for Kirkpatrick explained at argument
that he obtained the report by serendipity when a police official
offered it in response to a request for other information.


                                11
     We also agree with the district court's assumption that

Kirkpatrick met his burden of proving actual prejudice.           If the

errors of which he complains are supported by the evidence adduced

at the evidentiary hearing then Kirkpatrick will have confirmed

that the prosecution presented falsified evidence and suppressed

exculpatory evidence.      The presentation of falsified evidence and

the withholding of exculpatory evidence from the jury might have

led to a different result not only with respect to the sentence

imposed,23 but also to the jury's consideration of Kirkpatrick's

defense.

     We therefore agree with the district court's preliminary

assumption that Kirkpatrick did not abuse the writ by failing to

raise these issues in his first federal habeas application.24

     2.    Falsification and suppression

     We turn now to Kirkpatrick's allegations of falsification and

suppression of evidence. While we are cognizant of the toll habeas

wreaks on finality, we are also concerned that both fairness and

the appearance of fairness be preserved, especially in light of the

punishment   assessed.25      In   our   criminal   justice   system   the

     23
          During deliberations the jury sent out notes suggesting
that they were inclined toward life imprisonment if parole were not
possible. They were not informed that under Louisiana law there is
no parole from a life sentence.

     24
          In light of Sawyer's teachings, the district court may
wish to revisit other issues previously deemed barred.

     25
           See Morgan v. Illinois, 112 S.Ct. 2222, 119 L.Ed.2d 492
(1992).


                                    12
prosecutor has at his disposal the substantial resources of the

government as well as considerable other advantages.                In exchange,

that system reposes great trust in the prosecutor to place the ends

of justice above the goal of merely obtaining a conviction.26

     Kirkpatrick's claims, if true, raise serious questions about

both the reality and appearance of fairness in his conviction and

punishment.     We may not, absent an adequate factual record, sweep

away these charges on the assumption that the jury would not have

arrived at a different conclusion at either stage of the trial had

they been      told   of   the   matters     Kirkpatrick   attributes    to   the

prosecution.      As Kirkpatrick's counsel points out, the use of

Officer McKormick's testimony with respect to Radoste's sexual

preferences, and the introduction of the photograph depicting the

crutches at the scene of the murder, may constitute knowing use of

perjured testimony and false evidence.             The same may be true of the

testimony of Julie Yarbrough, the only witness to testify that

Kirkpatrick admitted shooting the victim, or David Garrett, who may

not have seen the victim on crutches or at a time when the defense

claimed that Radoste was with Kirkpatrick and Faulkner.                       The

cumulative     effect      of    this   scenario    likewise   is    manifestly

uncertain.27

     26
          Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47
L.Ed.2d 128 (1976).    See also ABA Model Rules of Professional
Conduct, Rules 3.2(a)(4), 3.4(a), (b), and (f), and 3.8, all of
which Kirkpatrick claims to have been violated by the prosecution.

     27
            See Derden v. McNeel, 978 F.2d 1453 (5th Cir. 1992) (en
banc).


                                        13
     Regardless of their label, Kirkpatrick's claims are serious

and, at least at this stage, sufficiently supported.      Whether they

have firm grounding in reality remains to be seen.       To the extent

that they are supported, the critical question will be whether the

prosecution simply withheld evidence or put on evidence it knew to

be false.    The withholding of exculpatory information in violation

of Brady merits relief where the information is so material that

the prosecution's withholding would deprive the defendant of a fair

trial.28

     We observe that different standards of materiality apply to

Brady claims and claims that the prosecution has knowingly used

perjured testimony or false evidence. The materiality standard for

Brady claims, regardless of whether the defense made a specific or

general request (or no request at all) for the withheld evidence

prior to trial,29 is as follows:       "'The evidence is material only

if there is a reasonable probability that, had the evidence been

disclosed to the defense, the result of the proceeding would be

different.    A "reasonable probability" is a probability sufficient




    28
          United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87
L.Ed.2d 481 (1985).

    29
          Bagley, 473 U.S. at 682, 105 S.Ct. at 3383, 87 L.Ed.2d at
494 (opinion of Blackmun, J., joined by O'Connor, J.); James v.
Whitley, 926 U.S. 1433, 1439 (5th Cir. 1991); but see United States
v. Buchanan, 891 F.2d 1436, 1441 (10th Cir. 1989).


                                  14
to undermine confidence in the outcome.'"30               Conversely, if the

prosecutor has knowingly used perjured testimony or false evidence,

the standard is considerably less onerous: the conviction "must be

set aside if there is any reasonable likelihood that the false

testimony could have affected the jury's verdict. . . ."31

     Thus, should the evidence adduced support Kirkpatrick's claims

of perjury, the proper question is whether "there is any reasonable

likelihood   that    the    false    testimony    could   have   affected   the

judgment of the jury."32       Such a corruption of the truth-seeking

process would strike at the confidence of the conviction and

sentence.    Moreover, given the unanimity required at the Louisiana

punishment phase, the proper frame of reference, at least with

regard to the punishment assessed, is whether the mind of one juror

could have been changed with respect to the imposition of the

sentence    of   death.33     If,    on    the   other   hand,   no   misconduct

appropriately is attributable to the prosecution, the court must

consider the proper context of any Brady violations it finds.

     30
            James, 926 F.2d at 1439 (quoting Bagley, 682 U.S. at
682).

     31
          Bagley, 682 U.S. at 679 n.9 (citing Napue v. Illinois,
360 U.S. 264 (1959)) (emphasis added).

     32
            United    States    v.    Agurs, 427 U.S. at 103 (footnote
omitted).

    33
          Louisiana law requires unanimity in a jury's sentence of
death.   La. Code Crim. Proc. art. 905.6 (West 1984).     We have
frequently recognized the strategic value of relying on "residual
doubt."   E.g., Smith v. Black, 904 F.2d 950 (5th Cir. 1990),
vacated, 112 S.Ct. 1463, 117 L.Ed.2d 609 (1992).

                                          15
      We   express   no    opinion    about     the    veracity    of   any   of

Kirkpatrick's claims.       That remains initially for the trial court.

We do note that appellate counsel disagreed about the two officers

on whose affidavits Kirkpatrick relies -- were they police officers

or emergency medical technicians?          Would that make a difference?

These and other facts, and the assessment of credibility of the

witnesses are, necessarily, to be resolved by the trial court after

a   hearing.34   But      resolve   them   we   must   before     the   ultimate

punishment constitutionally may be imposed.

      VACATED and REMANDED.




     34
          Streetman v. Lynaugh, 812 F.2d 950 (5th Cir. 1987). See
also Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770
(1963) (listing circumstances mandating a hearing) and its partial
codification at 28 U.S.C. § 2254(d).


                                      16
