                                                     United States Court of Appeals
                                                              Fifth Circuit
                                                            F I L E D
                  UNITED STATES COURT OF APPEALS            January 5, 2004
                           FIFTH CIRCUIT
                                                       Charles R. Fulbruge III
                                                               Clerk
                           No. 02-30917
                         Summary Calendar


                         JOSHUA WILLIAMS,

                                             Petitioner-Appellant,

                              versus

         BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY,

                                              Respondent-Appellee.

                       * * * * * * * * * *

                           DUANE HENRY,
                                             Petitioner-Appellant,

                              versus

         BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY,

                                              Respondent-Appellee.


          Appeals from the United States District Court
              for the Eastern District of Louisiana
                  (02-CV-640-I) & (02-CV-643-I)


Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges

PER CURIAM:*

     Joshua Williams and Duane Henry, Louisiana prisoners #345191

and #345189, convicted of second degree murder, appeal, pro se, the


     *
        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this opinion should not be published and is not precedent except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.
denial of habeas relief under 28 U.S.C. § 2254.                     A certificate of

appealability was granted on the materiality of Detective Jansen’s

report, which was either not disclosed to Williams and Henry or

disclosed but not used by their attorneys at trial.                       (The parties

were    also    directed      to   address    the    timeliness      of    the   §   2254

petitions, which were filed more than a year after the convictions

became final by direct review.                Petitioners claim an exception

based on claimed late discovery of the report.                    We need not rule on

the time bar vel non, because the denial of relief is affirmed.)

       The report indicated that Romesee Washington, who was also

shot by the perpetrators, initially described them as short, with

one    having    two   gold    teeth.        (On    the   other    hand,    Washington

testified at trial that:           one of the shooters was short; the other

was tall; and both had gold teeth, with the shorter one having

more.)    The report also stated that Washington attempted to commit

suicide on the day before the shootings.

       Williams and Henry contend: had the report been introduced at

trial, there is a reasonable probability that the outcome of the

trial would have been different because the report would have

discredited Washington’s identification of them.                          They assert:

their convictions were in violation of Brady v. Maryland, 373 U.S.

83 (1963), if the report was not disclosed; or in violation of

Strickland v. Washington, 466 U.S. 668, 688, 694 (1984), if it was

disclosed but not used by their attorneys at trial.
     The tests for materiality for a Brady claim and for prejudice

for an ineffective assistance of counsel claim are the same:              a

reasonable probability that the       outcome of the proceedings would

have been different had the evidence been disclosed and used at

trial.   Johnson v. Scott, 68 F.3d 106, 109-10 (5th Cir. 1995).           An

evidentiary hearing was not necessary to determine whether the

report was disclosed because the materiality of the report can be

determined from the record.      Lawrence v. Lensing, 42 F.3d 255, 259

(5th Cir. 1994).

     The state habeas courts did not state reasons for denying the

state habeas applications.      Reviewing Williams’ and Henry’s claims

de novo, see Nobles v. Johnson, 127 F.3d 409, 416 (5th Cir. 1997),

we agree with the district court that:      the report was not material

under Brady;   and,   if   it   was   disclosed,   petitioners    were   not

prejudiced by their attorneys’ not using it at trial.

     Detective Jansen’s report entry indicating that Washington had

described the shooters as short was based upon his interview with

Washington after she awoke from surgery (following being shot).

Washington’s handwritten responses to Jansen’s questions during

that interview were introduced and discussed at trial.           Other than

the indication that both shooters were short and the inference that

only one had gold teeth, the report’s description of the offense is

very similar to Washington’s testimony.            Washington positively

identified both Williams and Henry from a photographic line up and


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in court.    Also, circumstantial evidence connected Henry to the

offense.    The report entry of Washington’s initial description of

the   shooters   was   not    material,    because     Detective    Jansen’s

interpretation   of    what   Washington   said   is   not   as    useful    as

Washington’s testimony and handwritten notes introduced at trial.

See Duncan v. Cain, 278 F.3d 537, 539 (5th Cir.), cert. denied, 537

U.S. 829 (2002); Wilson v. Whitley, 28 F.3d 433, 440-43 (5th Cir.

1994).

      With respect to the report entry discussing Washington’s

suicide attempt the day before the shooting, Williams and Henry

contend that such information would have demonstrated Washington’s

drug use, which would have affected her ability to accurately

identify the shooters.        Evidence was introduced at trial that

Washington had taken medication and drugs the day before the

shooting.   Williams and Henry have not shown that, had the report

been introduced at trial, there is a reasonable probability that

the outcome would have been different.            Given the evidence at

trial, the report information would have had only a marginal or

cumulative effect on Washington’s credibility.               See    Kyles v.

Whitley, 514 U.S. 419, 434 (1995); Jackson v. Johnson, 194 F.3d

641, 650 (5th Cir. 1999).

                                                                  AFFIRMED




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