                                                                   United States Court of Appeals
                                                                            Fifth Circuit
                                                                         F I L E D
                          UNITED STATES COURT OF APPEALS
                               FOR THE FIFTH CIRCUIT                      April 18, 2006

                             _______________________                 Charles R. Fulbruge III
                                                                             Clerk
                                   No. 04-70031
                             _______________________


                             JOSEPH BENNARD NICHOLS,

                                                    Petitioner - Appellant,

                                      versus

                           DOUGLAS DRETKE, Director,
                    Texas Department of Criminal Justice -
                            Institutional Division,

                                                     Respondent - Appellee.



               Appeal from the United States District Court
                    For the Southern District of Texas
                                No. H-92-36


Before JONES, Chief Judge, and DAVIS and GARZA, Circuit Judges.

EDITH H. JONES, Chief Judge:*

               This case is before us a second time, following the

exhaustion in the state courts of a Brady claim that surfaced

during Nichols’ first federal habeas proceeding.                The basis for

that       claim,   the    State’s   alleged   suppression    of     identifying

information for an eyewitness to the offense, has been discussed at

length (or otherwise noted) by several courts.               See e.g., Nichols

v. Scott, 69 F.3d 1255, 1259-65 (5th Cir. 1995); Ex Parte Joseph



       *
            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opinion should not be published and is not precedent except under the limited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.
Bennard Nichols, No. 21,253-02 (Tex. Crim. App. March 12, 2003);

Nichols v. Collins, 802 F.Supp. 66, 79 (S.D. Tex. 1992).

               The       district     court    denied       Nichols    a    certificate   of

appealability (COA).                In an abundance of caution, we grant COA

based on the admonition in Miller-El I1 that a petitioner’s “claim

can be debatable even though every jurist of reason might agree,

after     .   .     .    the   case   has     received       full   consideration,     that

petitioner will not prevail.”                   Id. at 338, 123 S. Ct. at 1040.

However, for reasons stated herein, we conclude that Nichols has

not demonstrated that the Texas courts unreasonably applied Brady

to the facts of his case.                Thus, we deny his request for habeas

relief.

                                I. PROCEDURAL BACKGROUND

               In 1982, a Texas jury convicted and sentenced to death

Joseph Bennard Nichols for the 1980 capital murder of Claude

Shaffer, Jr. The Texas Court of Criminal Appeals (“TCCA”) affirmed

Nichols’ conviction on April 13, 1988.                            Nichols v. Texas, 754

S.W.2d 185 (Tex. Crim. App. 1988), cert. denied, 488 U.S. 1019, 109

S.   Ct.      819       (1989).       Nichols       filed    his    first    state   habeas

application on May 23, 1991, which the TCCA denied later that year.

In   January        of    1992,     Nichols     filed       his    first   federal   habeas

petition.         During an evidentiary hearing granted by the district

court, Nichols contended that the State had suppressed information

      1
               Miller-El v. Cockrell, 537 U.S. 322, 123 S. Ct. 1029 (2003) (“Miller-
El I”).

                                                2
concerning a material, exculpatory witness in violation of Brady v.

Maryland, 373 U.S. 83, 183 S. Ct. 1194 (1963).         The district court

ordered the State to release and retry Nichols and expressly

preserved Nichols’ Brady claim for state exhaustion purposes.

Nichols v. Collins, 802 F.Supp. 66, 79 (S.D. Tex. 1992).                 This

court    reversed   the   district   court’s   grant   of   habeas   relief.

Nichols v. Scott, 69 F.3d 1255 (5th Cir. 1995), cert. denied, 518

U.S. 1022, 116 S.Ct. 2559 (1996).

            Nichols filed his second state habeas application on

December 23, 1996, to exhaust his Fourteenth Amendment Brady claim.

The TCCA remanded Nichols’ case for an evidentiary hearing.               The

state habeas court found that although the State failed to inform

defense counsel properly of the location and true identity of an

eyewitness, Teresa Ishman,2 her testimony was neither exculpatory

nor material. Thus, the state habeas court rejected Nichols’ Brady

claim and denied his request for habeas relief in 2001.              The TCCA

affirmed the state habeas court in 2003.        Ex Parte Nichols, No. 21,

253-02 (Mar. 12, 2003), cert. denied, 504 U.S. 1218, 124 S. Ct.

1504 (2004).

            On July 10, 2003, Nichols filed his second federal habeas

petition based on the Brady claim, which the district court denied

on the merits.      The court also sua sponte denied Nichols a COA.



     2
            Ishman is also referred to as “Teresa McGee” and “McGee” in the
record because “McGee” is the name that she was using at the time the offense
occurred. Her other aliases include “Teresa Henry” and “Tina Henry.”

                                      3
Nichols v. Dretke, No. H-92-36, slip op. (S.D. Tex. May 25, 2004).

Nichols then filed the instant petition for COA before this court.3

                   II. THE CRIME AND THE PROSECUTION

            On   October    13,   1980,     Nichols,   Willie   Ray   Williams,

Charlotte Parker, and Evelyn Harvey drove to an apartment building

in   Houston,    Texas,    intending   to    rob   a   nearby   grocery   store.

Committing the robbery was Nichols’ idea. Armed with guns, Nichols

and Williams entered the grocery. Seventy-year old Claude Shaffer,

Jr. (“Shaffer”) was working as a deli clerk behind the counter.

Nichols pointed his gun at Shaffer, and Shaffer made a movement

that Nichols interpreted as gun retrieval.               Nichols then shot at

Shaffer.    Williams also shot at Shaffer while fleeing the store,

but he returned to the counter to take the cash box.               Shaffer was

killed by one bullet to the back.           Parker and Harvey drove Nichols

and Williams away from the scene.            The quartet were arrested soon

thereafter.




      3
            Because neither side addressed the issue, we requested letter briefs
from the parties inquiring whether Nichols’ second federal habeas petition
qualifies as “successive” under 28 U.S.C. § 2244(b)(2)(B).       They correctly
responded that Nichols’ petition is not successive because, after Nichols
discovered and requested resolution of his Brady claim in the midst of the
evidentiary hearing for this first federal habeas petition, the habeas court
dismissed the claim without prejudice to refiling for state exhaustion purposes.
See e.g., Stewart v. Martin-Villareal, 523 U.S. 637, 644, 118 S. Ct. 1618,
1621-22 (1998).


                                       4
            The State’s first attempt at prosecuting Nichols ended in

a mistrial.4     A description of Nichols' second trial appears in

this court’s previous opinion:

           In February 1982, Nichols was tried before another
      jury on the same indictment. Generally the same evidence
      was presented as at his first trial in July 1981. The
      prosecutor was the same as in that first trial. In the
      guilt/innocence phase, Williams was called as a defense
      witness but claimed his Fifth Amendment privilege and
      refused to testify. The defense then put in evidence
      Williams’ testimony as given at Nichols’ first trial. At
      the close of the evidence on the guilt/innocence stage of
      the trial, the trial court extensively instructed the
      jury on the Texas law of parties (see note 9, supra) such
      that the jury could, depending on what else it found,
      find Nichols guilty as charged either for personally
      having fired the fatal shot or for the fatal shot fired
      by Williams, if that was done pursuant to and in
      furtherance of their conspiracy to rob the deli and
      should have been anticipated by Nichols as a result of
      carrying out the conspiracy. The defense argued, as it
      had at Nichols’ first trial, that Williams fired the
      fatal shot from the deli door as he exited and came back
      in, and that this was, in the words of the charge, “the
      separate act of Willie Ray Williams, acting inde-
      pendently,” for which Nichols would not be responsible.
      The state primarily argued that Nichols fired the fatal
      shot. But, it also argued extensively, in the alterna-
      tive, that even if Williams had fired the fatal shot,
      Nichols was guilty of capital murder under the law of
      parties. The jury returned its verdict finding Nichols
      guilty of capital murder.

           At the subsequent punishment phase the state
      submitted evidence that Nichols had been convicted of


      4
            That Nichols’ first case resulted in a mistrial does not inform our
analysis as “inconsistent verdicts are constitutionally tolerable.” Dowling v.
United States, 493 U.S. 342, 353-54, 110 S. Ct. 668, 675 (1990). In any event,
Nichols has failed to set forth information regarding events that led to the
mistrial in his first case, especially in light of the state habeas court’s
rejection of his proposed finding that the jury in the first trial focused on
whether Shaffer pulled a gun. As such, Nichols has failed to demonstrate how any
inconsistency between his first and second trials “could reasonably be taken to
put the whole case in such a different light as to undermine confidence in the
[second jury’s] verdict.” Kyles, 514 U.S. at 435, 115 S. Ct. at 1566.

                                       5
theft in 1979, and had pleaded guilty in May 1980 to an
April 1980 robbery for which he was sentenced in July
1980 to nine years’ felony probation, which he was
serving when he committed the instant offense.      Addi-
tionally, it was shown that on August 13, 1980, Nichols
committed an armed robbery of a convenience store,
shooting the clerk in the shoulder when he did not
respond speedily enough to Nichols’ demand for more
money. Nichols continued to demand more money as the
clerk was bleeding from his wound.           Further, on
October 11, 1980, two days before the present offense,
Nichols committed another robbery of a convenience store,
aiming his pistol at the clerks. There was also evidence
that when booked into jail following his arrest for the
instant offense, Nichols had stated he would “shoot any
deputy that got in his way.” Finally, there was evidence
that in June 1981, while in jail awaiting trial, Nichols
conspired with others to engage in an escape involving
the use of a firearm and other weapons.       The defense
called fifteen witnesses. Many testified they thought
Nichols could be rehabilitated, that he was nineteen at
the time of the offense, and that at school he had had
average grades, had been an excellent athlete, and had
presented no disciplinary problems. His parents divorced
when he was seven, but both maintained a good relation-
ship with him. He married, and dropped out of school, at
about age seventeen to support his young child.       His
parents thought he had gotten into trouble due to the
pressure he was under to support his young child and
because he got in with a bad crowd.

     The court submitted the three punishment special
issues to the jury (see note 6, supra). No instruction
was given respecting the law of parties. The defense
argued, among other things, that the fatal shot was fired
by Williams, and that any shooting was in reaction to
Shaffer’s having grabbed his gun. Emphasis was put on
Nichols’ youth, his family, his character witnesses, and
his potential for rehabilitation. The state argued that
Nichols fired the fatal shot, but did not argue any of
the special issues solely on that theory. It stressed
Nichols’ prior offenses and conduct in jail. Neither
side argued that the verdict of guilty established or
meant that Nichols fired the fatal shot, or that any of
the special issues were to be answered by reference to
Williams’, rather than Nichols’, state of mind or conduct
or the like. On February 26, 1982, the jury returned its



                           6
verdict answering all three special issues in the
affirmative, and the court sentenced Nichols to death.

Nichols did not testify at either stage of his February
1982 trial.

The charge also submitted the lesser included offense of
murder.

Thus, for example, the prosecutor argued:

          ‘This lawsuit, if you really boil it
     down, concerns itself with parties, the law of
     parties given to you in number five and number
     six of this charge. Note that in parties to
     be guilty of capital murder as a party to it,
     a defendant does not have to fire the fatal
     shot that killed somebody.’ (Emphasis added).

The prosecutor further argued:

          ‘The Judge has instructed you to find the
     defendant guilty of capital murder if you
     believe from the evidence, number one, that
     he’s involved in a conspiracy to rob, number
     two, that at the time of the robbery he was
     doing something to help or make that robbery
     successful, that there was a murder and that
     somebody had the specific intent to kill
     somebody, either Jojo had it or Willie had it,
     either one.    It doesn’t matter.    That the
     murder was done in furtherance of the original
     plan of the robbery, to help it in some way or
     to get away, immediate flight therefrom. And
     you must believe that this murder was an
     offense that the defendant should have antici-
     pated.
          If you believe those five things from the
     evidence it will be your duty to find that man
     guilty of capital murder.’ (Emphasis added).

Additionally the prosecutor argued:

           ‘The defense is saying that what you
     really have here is a situation where there
     are cracks in the law and we want you to let
     Jojo Nichols slip through these cracks and get
     away.    Well, the legislature thought about

                           7
          that. They’re not completely dumb up there.
          Somebody told them what to do. And they have
          the law of parties. It fills in the cracks.
          It’s like the mortar in a brick wall.      You
          guys are all responsible when you go in there
          with loaded guns under certain conditions.
          Was there a conspiracy to rob, rob them of
          anything, money, guns, anything else.      Was
          there a conspiracy to rob. The defense admits
          that, yes, there was.       When the robbery
          occurred, was Jojo doing anything to promote
          or assist that robbery? The defense admits,
          yes, he was pointing a gun, telling you to put
          money in the sack and fired a gun.         The
          defense admits it. He fired a gun before he
          ran out that door.

               Was there a murder?    You bet.   And it
          doesn’t matter who killed him under our law,
          under this rule of parties. Was it reasonable
          to expect that this could happen? Of course.’
          (Emphasis added).

     For example, in respect to the first special issue,
     dealing with deliberateness, the prosecutor argued:

          ‘Was his conduct deliberate. He doesn’t have
          to fire the fatal shot. But was his conduct
          deliberate. You bet it was deliberate. It
          was even more than that. He planned that rob-
          bery. He picked that store. It was a pre-
          meditated robbery. He thought about the fact
          that he’s going to need a gun when he went in
          there.   You know that he meant to use it
          because it was loaded and you know he fired
          that gun into an innocent man.’     (Emphasis
          added).

Nichols v. Scott, 69 F.3d at 1262-64 (footnotes omitted).

          It should also be noted that Nichols (in his confession),

Williams (through his prior testimony), and deli employee Cindy

Johnson all testified about the series of events and shots inside

the deli during the robbery.   Nichols told his confederates as they


                                  8
drove from the scene that he thought he had shot Shaffer in the

chest and that Williams shot Shaffer in the shoulder.              Williams’

testimony was that when he and Nichols drew guns on Shaffer,

Shaffer pointed a gun at them, and Nichols shot at Shaffer first;

Williams shot at Shaffer as Williams was fleeing toward the door.

Johnson had given an initial police statement indicating that

Shaffer squatted behind the counter reaching for a gun.            At trial,

however, she disavowed this statement as a mistake and testified

firmly instead that Shaffer did not reach for anything.             Finally,

the medical examiner’s testimony tended to support the State’s

theory that Nichols shot Shaffer, although the fatal bullet was not

identified and this conclusion was based on inference from the

bullet’s trajectory through Shaffer’s body.

                         III.   THE BRADY VIOLATION

            The current habeas petition involves the State’s alleged

suppression of Ishman’s location and identity. The following facts

were developed in the state habeas hearing.                 Ishman, a deli

employee,   was   also    inside   the    store   during   the   robbery   and

shooting.   She left the scene just as the police arrived.          The deli

owner, Dean McDaniel, informed police of Ishman’s departure.                An

officer, running outside to catch Ishman, saw a black female enter

a vehicle but was unable to stop her at that time.                  McDaniel

informed the police that Ishman asked not to work at the deli right

after the shooting, that she requested employment at another



                                      9
establishment he owned, and that he fired her instead.               Nichols’

defense counsel were aware of McDaniel’s statements concerning

Ishman.

            Ishman   was    later   located   by    a   prosecutor    and    an

investigator prior to the Williams trial.               She was extremely

uncooperative and initially denied witnessing the crime.                    The

State’s prosecutor informed Nichols and his counsel in writing that

the police had interviewed Ishman, but claimed that he did not

recall the substance of the interview.

            In preparation for Nichols’ second trial, the State

attempted to subpoena Ishman in Houston under the name “Teresa

McGee,” but the subpoena was returned marked “return to sender,

undeliverable as addressed.”        An investigator for the prosecution

then traced Ishman to her hometown of Bogalusa, Louisiana, and

ascertained that she had been in scrapes with the law there.                The

State concluded that Ishman was not a credible witness and dropped

her from its witness list.

            The   state    habeas   court   found   that   the   State   knew

Ishman/McGee’s true name, location, and Social Security number,

and, thus, also knew that Ishman could not be served at the address

used on the subpoena.       However, the state habeas court refused to

find that the State failed to disclose Ishman as a witness or that

the State knew the substance of Ishman’s testimony before Nichols'

trial.    The state habeas court also found that although Ishman had

informed a prosecutor, prior to the Williams trial, that she saw

                                     10
Shaffer draw a gun before Nichols and Williams fired their guns,

there was also credible evidence that Ishman failed to provide this

information to the police or to the prosecutor responsible for

Nichols’ trial. The state habeas court further found that, as part

of the State’s argument that Nichols fired the fatal shot, the

State relied heavily on the testimony of Cindy Johnson.                      However,

the state court rejected Nichols’ proposed finding that the jury

focused on whether Shaffer pulled a weapon.                   Finally, the state

habeas court concluded that Nichols failed to show that Ishman’s

testimony would have been material in light of the record as a

whole.5

                          IV. STANDARD OF REVIEW

            Nichols filed his petition for a writ of habeas corpus

after the effective date of the Antiterrorism & Effective Death

Penalty    Act     (“AEDPA”),    28     U.S.C.    §   2254,       April    24,     1996.

Therefore, the petition is subject to the procedures imposed by

AEDPA and post-AEDPA precedent.               Lindh v. Murphy, 521 U.S. 320,

336, 117 S. Ct. 2059, 2068 (1997).             Upon grant of a COA, to obtain

habeas    relief    Nichols     must    demonstrate      that     the     state    court

proceeding    “resulted    in    a     decision   that      was   contrary        to,   or

involved    an   unreasonable        application      of,    clearly      established

Federal law, as determined by the Supreme Court of the United


      5
            We agree with the district court that the state habeas court made a
scrivener’s error where, at one point, it appears to endorse a conclusion that
Ishman’s testimony was material.     All of the court’s other findings and
conclusions cut against this isolated discrepancy.

                                         11
States.”   28 U.S.C. § 2254(d)(1).     A state court’s decision falls

within this rubric “if the state court arrives at a conclusion

opposite to that reached by this Court on a question of law or if

the state court decides a case differently than [the Supreme Court]

has on a set of materially indistinguishable facts.”      Williams v.

Taylor, 529 U.S. 362, 413, 120 S. Ct. 1495, 1523 (2000).      A state

court decision may also qualify under § 2254(d)(1) “if the state

court identifies the correct governing legal principle from the

Court’s decisions but unreasonably applies that principle to the

facts of the prisoner's case.”    Id. at 413, 120 S. Ct. 1523.   Under

§ 2254(d)(1), we need only determine whether the state court’s

application of clearly established federal law was objectively

unreasonable.     Neal v. Puckett, 286 F.3d 230, 236 (5th Cir. 2002)

(en banc), cert. denied, 537 U.S. 1104, 123 S. Ct. 963 (2003).    “We

have no authority to grant habeas corpus relief simply because we

conclude, in our independent judgment, that a state supreme court’s

application of [federal law] is erroneous or incorrect.”     Id., 286

F.3d at 236.       Pursuant to the express dictates of AEDPA, “a

determination of a factual issue made by a State court shall be

presumed to be correct. The applicant shall have the burden of

rebutting the presumption of correctness by clear and convincing

evidence.”     28 U.S.C. 2254(e)(1).   Further, we review the district

court’s findings of fact for clear error, and its conclusions of

law de novo.    Finley v. Johnson, 243 F.3d 215, 218 (5th Cir. 2001).



                                  12
                                V. DISCUSSION

            On appeal, Nichols maintains that the State violated his

Brady right to be informed of exculpatory evidence by suppressing

Ishman’s location and complete identifying information.                 Nichols

assigns    prejudicial      error    to     the   State’s   purported     Brady

infraction, contending that: (1) Ishman’s testimony contradicted

Johnson’s testimony regarding what, if any, actions Shaffer took in

the moments before he was shot; (2) the federal district court’s

findings regarding the State’s use of Johnson’s testimony conflicts

with that of the state habeas court; and (3) Ishman’s testimony

undermines the guilt and punishment verdicts rendered by the jury.

The federal district court, although skeptical about the State's

conduct with regard to Ishman’s whereabouts and testimony,6 found

that Nichols failed to demonstrate that Ishman’s testimony would

have been material under Brady.

            Pursuant to Brady, “suppression by the prosecution of

evidence favorable to an accused upon request violates due process

where the evidence is material either to guilt or punishment,

irrespective of the good faith or bad faith of the prosecution.”

373 U.S. at 87, 83 S. Ct. at 1196-97 (1963) (emphasis added).

Thus, to state a successful Brady claim on habeas, Nichols must

show: (1) suppression by the State; (2) the exculpatory nature of



      6
            The district court expressly refused to decide whether the “troubling
facts” surrounding the State’s nondisclosure of Ishman’s correct name and
location constituted suppression for Brady purposes.

                                       13
the evidence; and (3) materiality.                   In re Smith, 142 F.3d 832, 836

(1998).    A Brady violation is not cognizable absent materiality.

United States v. Agurs, 427 U.S. 97, 109-10, 96 S. Ct. 2392, 2400

(1976).    “[E]vidence is material only if there is a reasonable

probability that, had the evidence been disclosed to the defense,

the   result   of    the    proceeding         would    have      been       different.     A

‘reasonable probability’ is a probability sufficient to undermine

confidence in the outcome.”             United States v. Bagley, 473 U.S. 667,

682, 105 S. Ct. 3375, 3383 (1985).               If the suppressed information,

although favorable, could not reasonably cast the entire case in a

light that undermines confidence in the jury’s verdict, then the

information    is    not     material      and       there     is       no   constitutional

violation of the petitioner’s Fifth Amendment rights. See Kyles v.

Whitley,    514     U.S.    419,   435,        115    S.   Ct.      1555,      1566    (1995)

(clarifying that this review is not for evidentiary sufficiency).7

            The district court deferred to the state habeas court

findings that although Ishman’s testimony would have been in some

respects favorable to Nichols, her testimony was not material to

Nichols’   case     in     light   of    the    record       as     a    whole.       Nichols

principally    maintains       here,      as    he     did     below,        that   Ishman’s

testimony would have impeached Johnson’s testimony, which Nichols


      7
            Additionally, this Court has held that a Fourteenth Amendment
violation will not lie “if the defendant, using reasonable diligence, could have
obtained the information....” In re Smith, 142 F.3d at 836. However, this rule,
cited by the State, is inapposite where, as here, we have no cause to question
the lower court findings that Nichols could not have, through due diligence,
located Ishman without her correct name and address in Louisiana.

                                           14
characterizes as the sole basis for the State’s position that

Nichols killed Shaffer.        Ishman would have “proved” that Nichols

did not kill Shaffer, and this demonstration allegedly undermines

confidence in the jury's findings on guilt and capital punishment.

            Taking as true the substance of Ishman’s testimony,

despite its contradictions8 — Ishman’s assertion that Johnson could

not have witnessed Shaffer pulling a gun and her claim that she saw

Shaffer draw a gun before Nichols and Williams shot at him — is

constitutionally immaterial to Nichols’ guilt/innocence or capital

punishment.      First, with regard to the guilt phase of trial,

regardless whether he fired the fatal shot or was guilty for party

liability under Texas law,9 the jury was correctly informed that a

defendant committing a violent felony cannot claim self-defense.10

Ishman’s testimony is factually immaterial under Brady because,

despite   Nichols’     attempt   to   inflate    the   import    of   Johnson’s

testimony on points which could have been undermined by Ishman’s

testimony, other evidence in the record supported the State's

contentions that Shaffer never drew a gun and that Nichols fired


      8
            Ishman's statements in 1992 and 1997 are hardly consistent on several
points, e.g., whether Cindy Johnson could have witnessed the shooting; whether
Johnson actually saw Shaffer with a gun in hand; at what point she ran to the
back of the store; when she spoke to the police. Moreover, her use of multiple
names and reluctance to aid the investigation because of her own troubles with
the law would have rendered her testimony somewhat vulnerable.
      9
            Tex. Pen. Code §§ 7.01, 7.02.
      10
            See Davis v. State, 597 S.W.2d 358, 360 (Tex. Crim. App.
1980)(holding that a robber has no right of self-defense against his victim);
Callins v. Collins, 998 F.2d 269, 278 (5th Cir. 1993) (recognizing this Texas
rule).

                                       15
the fatal shot.          The gun that store owner McDaniel kept behind the

deli counter had not been moved and did not have any fingerprints

on it.      Additionally, Nichols admitted to his accomplices in the

getaway car that he thought he had shot Shaffer in the chest and

that Williams had shot Shaffer in the shoulder.                  In addition to the

testimony just cited, Nichols fully confessed, inter alia, that he

planned the robbery; entered the deli; drew his weapon at Shaffer;

demanded money; and shot Shaffer as Shaffer bent down to retrieve

something.

                 The critical issue in this case is whether Ishman’s

testimony would have been helpful to Nichols and therefore material

- in the punishment phase.

                 During argument, Nichols’ counsel conceded that the issue

of   whether       the    victim,      Mr.   Shaffer,   was    shot    while     he   was

attempting to retrieve a weapon under the counter was a red

herring.11         This left the issue of whether Ishman’s suppressed

testimony would have either undercut any testimony by Johnson that

aided the State in establishing that Nichols rather than Williams

fired      the    shot    that    killed     Shaffer    or    assisted     Nichols    in

establishing that Williams fired the fatal shot.                      After a careful

review     of     the    record   we    conclude   that      there    is   no   material




      11
             When asked about the materiality of testimony regarding Shaffer
possibly retrieving a weapon, Nichols’ counsel conceded that “the gun issue is
a red herring” and “doesn’t get this petition where it needs to go.”

                                             16
difference in the testimony of Johnson and Ishman bearing on

whether Nichols or Williams fired the fatal shot.

               Both   Johnson   and   Ishman   placed   the   two    gunmen   in

essentially the same position when the initial shots were fired.

The medical examiner’s opinion that Nichols fired the fatal shot

was   based    primarily   on   Nichols’   position.      Because      Ishman’s

testimony did not undermine Johnson’s testimony as to the positions

of Nichols and Williams relative to Shaffer, Ishman’s testimony

would not have undercut Johnson’s testimony on this point.

              Both Johnson and Ishman testified that after the robbers

demanded money, Shaffer stooped down and both Nichols and Williams

fired at Shaffer. Ishman’s testimony, therefore, is not helpful in

resolving whether Nichols or Williams fired the fatal shot.

              So even if Ishman had testified that Johnson was in the

kitchen or the bathroom at the time of the shooting and not in a

position to see the robbery and shooting, Ishman’s testimony was

not materially different from Johnson’s.           It is true that in the

guilt phase of the trial the prosecutor argued: “and I’ll tell you

that it was [Nichols’] hand that did the killing.             How do you know

that?   Cindy [Johnson] saw it.        She told you.”

              What Johnson actually testified to was that after two or

three shots were fired by either or both of the robbers she saw

Shaffer go down and saw him bleeding from the side.                 Contrary to

the prosecutor’s argument, Johnson’s testimony in this respect was



                                      17
not helpful in resolving whether Nichols or Williams fired the shot

that produced the injury that caused Shaffer to fall to the floor.

            So stripped to its essence both Johnson and Ishman stated

that both Nichols and Williams were pointing pistols at Shaffer,

and shortly thereafter multiple shots were fired by one or both

robbers.    Johnson testified that as she ran toward the back of the

store she saw Shaffer go down; this was a detail that Ishman did

not address.     Both Johnson and Ishman heard one or more shots fired

after they ran to the back of the deli.           This is presumably the

shot Williams fired after he came back into the store to grab the

cash box.   As far as the initial shots that were fired — which both

Johnson and Ishman claimed to have witnessed — both thought that

Nichols    and   Williams   fired   shots   at   Shaffer.      Under   these

circumstances we conclude that had the State disclosed Ishman’s

identity and location so that she could have been called by Nichols

as a witness, her testimony would not have contradicted Johnson’s

testimony in any material way insofar as establishing whether

Nichols rather than Williams fired the fatal shot.

            Nichols would have us focus on only that part of Ishman’s

testimony in which she stated that Johnson was already in the

restroom when Ishman ran from the store and therefore Johnson was

not in a position to have seen the shooting.          But Nichols cannot

choose selected portions of Ishman’s testimony to the exclusion of

others.    He must establish that Ishman’s testimony in its entirety

would have materially benefitted his defense.               Nichols has not

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persuaded us from this record that Ishman’s testimony would have

achieved this result.    See, e.g., Miller v. Dretke, 431 F. 3d 241,

245 (2005)(“In determining whether evidence is material for Brady

purposes, we must consider the cumulative effect of all suppressed

evidence, rather than ruling on each item individually.”)(citing

Kyles v. Whitley, 514 U.S. 419, 436-37 (1995).

          Because we are unpersuaded that the absence of Ishman’s

testimony undermines confidence in the reliability of the jury’s

guilt and punishment verdicts, we affirm the district court’s

conclusion that the state courts did not act contrary to or

unreasonably   apply    Supreme   Court   precedents   regarding   Brady

violations in finding Ishman’s testimony immaterial.       Accordingly,

we AFFIRM the judgment denying habeas relief.

                                                              AFFIRMED.




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