                                                            United States Court of Appeals
                                                                     Fifth Circuit
                                                                  F I L E D
                    UNITED STATES COURT OF APPEALS
                                                                  October 26, 2006
                         FOR THE FIFTH CIRCUIT
                                                              Charles R. Fulbruge III
                                                                      Clerk


                               05-70040



     LONNIE EARL JOHNSON,

                                            Petitioner-Appellant,

                                    v.

     NATHANIEL QUARTERMAN, Director,
     Texas Department of Criminal Justice,
     Correctional Institutions Division,

                                            Respondent-Appellee.



         Appeal from the United States District Court for the
                  Southern District of Texas, Houston
                             No. H-04-3902



Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

     Petitioner Lonnie Earl Johnson, convicted of capital murder in

Texas and sentenced to death, requests this Court to issue a

Certificate    of   Appealability   (COA)   pursuant   to   28   U.S.C.      §

2253(c)(2). Johnson challenges only his death sentence. He raises

the following issues:      (1) the prosecution suppressed material

exculpatory evidence during the sentencing phase in violation of

     *
       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this opinion should not be published and is not precedent except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.
due process; (2) due process and equal protection required that his

jury be instructed regarding parole laws; and (3) the Texas capital

sentencing scheme’s failure to require the prosecution to prove

beyond a reasonable doubt future dangerousness and the absence of

mitigation evidence violates due process and is in conflict with

Supreme Court precedent.     Finding that Johnson has not made a

substantial showing of the denial of a constitutional right, we

DENY the COA.



     I.   STANDARD OF REVIEW

     Johnson filed his § 2254 petition for a writ of habeas corpus

after the effective date of the Antiterrorism and Effective Death

Penalty Act (“AEDPA”).   The petition, therefore, is subject to the

requirements, restrictions, and standards imposed by AEDPA. See

Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 2068 (1997).

Under AEDPA, a petitioner must obtain a COA before he can appeal

the district court’s denial of habeas relief.     See 28 U.S.C. §

2253(c); see also Miller-El v. Cockrell, 537 U.S. 322, 335-36, 123

S.Ct. 1029, 1039 (2003) (“[U]ntil a COA has been issued federal

courts of appeals lack jurisdiction to rule on the merits of

appeals from habeas petitioners.”).

     A COA determination under § 2253(c) requires this Court to

conduct an overview of the habeas claims and make a general

assessment of the merits.   Miller-El v. Cockrell, 537 U.S. at 336,


                                 2
123 S.Ct. at 1039. This Court looks to the district court’s

application of AEDPA to petitioner’s constitutional claims and ask

whether that resolution was debatable among jurists of reason. Id.

“This threshold inquiry does not require full consideration of the

factual or legal bases adduced in support of the claims.              In fact,

the statute forbids it.”       Id.

     A   COA   will   be   granted   only    if   the    petitioner   makes    “a

substantial showing of the denial of a constitutional right.”                  28

U.S.C. § 2253(c)(2). “A petitioner satisfies this standard by

demonstrating that jurists of reason could disagree with the

district court’s resolution of his constitutional claims or that

jurists could conclude the issues presented are adequate to deserve

encouragement to proceed further.” Miller-El, 537 U.S. at 327, 123

S.Ct. at 1034. Where the district court has denied claims on

procedural grounds, a COA should issue only if it is demonstrated

that “jurists    of   reason   would       find   it   debatable   whether    the

petition states a valid claim of the denial of a constitutional

right and that jurists of reason would find it debatable whether

the district court was correct in its procedural ruling.” Slack v.

McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 1604 (2000).                    “The

question is the debatability of the underlying constitutional

claim, not the resolution of that debate.”              Miller-El, 537 U.S. at

342, 123 S.Ct. at 1042.        “Indeed, a claim can be debatable even

though every jurist of reason might agree, after the COA has been


                                       3
granted    and    the    case    has     received      full   consideration,     that

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

Moreover, “[b]ecause the present case involves the death penalty,

any doubts as to whether a COA should issue must be resolved in

[petitioner’s] favor.”           Hernandez v. Johnson, 213 F.3d 243, 248

(5th Cir. 2000).

     “We further note that when reviewing the district court's

assessment, we must be mindful of the deferential standard of

review of 28 U.S.C. § 2254(d).”             Brown v. Dretke, 419 F.3d 365, 371

(5th Cir. 2005), cert. denied, 126 S.Ct. 1434 (2006).                         Under §

2254(d), a federal court cannot grant habeas corpus relief with

respect to any claim that was adjudicated on the merits in state

court proceedings unless the adjudication of that claim either (1)

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 States, or (2)

resulted    in    a     decision    that        was   based   on   an   unreasonable

determination of the facts in light of the evidence presented in

the state court proceeding.              28 U.S.C. § 2254(d).       With respect to

the review of factual findings, AEDPA significantly restricts the

scope of federal habeas review.              Factual findings are presumed to

be correct, and a petitioner has the burden of rebutting this

presumption      with    clear     and    convincing     evidence.      28   U.S.C.   §

2254(e)(1).


                                            4
       II.    SUPPRESSION OF EVIDENCE

       Johnson argues that the State failed to disclose exculpatory

evidence relating to a State’s witness who testified during the

punishment phase.          See Brady v. Maryland, 373 U.S. 83, 83 S.Ct.

1194 (1963).      The State has a duty to disclose evidence favorable

to the accused that is material to guilt or punishment.                      See id.

at 86-87, 83 S.Ct. at 1196-97.                  To establish this due process

violation, an accused must show that the State withheld evidence,

that the evidence was favorable, and that the evidence was material

to the defense.           Little v. Johnson, 162 F.3d 855, 861 (5th Cir.

1998).       “Brady    applies      equally      to   evidence    relevant   to   the

credibility     of    a    key    witness   in    the   state’s    case   against   a

defendant.”      Graves v. Dretke, 442 F.3d 334, 339 (5th Cir. 2006)

(citing Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763

(1972)), cert. denied,              ___ S.Ct. ___, (NO. 05-1568) 2006 WL

2795465, (Oct 02, 2006).           However, a new trial is not automatically

required “whenever a combing of the prosecutors’ files after the

trial has disclosed evidence possibly useful to the defense but not

likely to have changed the verdict.”                  Giglio, 405 U.S. at 154, 92

S.Ct. at 766 (quotation marks and citation omitted).

       The standard for determining “materiality is a ‘reasonable

probability’ of a different result.”                  Kyles v. Whitley, 514 U.S.

419,   434,    115    S.Ct.      1555,   1566    (1995).     In   assessing    Brady

materiality, “[t]he question is not whether the defendant would

                                            5
more likely than not have received a different verdict with the

evidence, but whether in its absence he received a fair trial,

understood as a trial resulting in a verdict worthy of confidence.

A ‘reasonable probability’ of a different result is accordingly

shown   when    the    [State’s]     evidentiary    suppression    ‘undermines

confidence in the outcome of the trial.’”              Id. (citation omitted).

       During the punishment phase of Johnson’s capital murder trial,

the State called Donald Richardson to testify regarding violent

threats Johnson made during a motorcycle trip from Tomball, Texas

to Austin.      Richardson testified that Johnson, who was armed with

a gun, threatened to kill a man for his car.                     Subsequent to

Johnson’s conviction, Richardson recanted his trial testimony in an

affidavit, stating that it was “all false” and he “consented to do

this on the grounds that [the Harris County District Attorney’s

Office] would contact the Texas Board of Pardons and Parole and

secure my early release from prison.”

       During   Johnson’s        state   habeas   proceedings,    his    attorney

submitted a note that had been handwritten by Richardson to Diana

Lynn    Glaeser,      one   of    the    prosecutors    at   Johnson’s    trial.

Apparently, Johnson’s habeas attorney had discovered the following

note in the prosecution file:

       I need to see you as soon as possible, please come see me
       at the jail. I am at 1301 Franklin 7th Floor at the
       moment.   I am having some problems that I need fixed
       right now.    If you can’t make it today please send
       someone else to assist me. Thank you.
       Sincerely Donald Richardson


                                          6
       [address omitted]
       P.S. Pertaining to Lonnie E. Johnson case.

With respect to the chronology of events, the note was written on

October 10, 1994.       The jury found Johnson guilty of both capital

murders on November 14, 1994, and three days later the judge

accepted the jury’s punishment verdict of a death sentence.                   On

January 30, 1995, the prosecutor informed Johnson’s trial attorney

that Richardson disavowed his testimony and wanted to “change his

testimony, or words to that effect.”

       During    Johnson’s   state     habeas    proceedings,    his     counsel

submitted an affidavit from Richardson, which provided as follows:

“The statements I made at trial about Lonnie displaying a handgun

and wanting to kill a motorist were all false.                        These were

statements made to make the district attorney happy, so she would

secure my early release from prison.”

       The state habeas trial court made the ensuing findings of fact

with   respect    to   the   instant   claim    based   upon    the    “credible

affidavit of Di Glaeser, the trial prosecutor in the primary case.”

In 1990, Richardson contacted a law enforcement agency and provided

information about Johnson. In October of 1990, Richardson spoke to

an investigator with the Harris County District Attorney’s Office

and the information provided in that interview was consistent with

Richardson’s trial testimony. The “State’s file was always open to

the applicant’s trial counsel, and that trial counsel went to the

State’s office to inspect the file.”            The court further found:


                                        7
     that Donald Ray Richardson contacted the Harris County
     District Attorney’s Office several times in the days
     leading up to the trial of the primary case; that
     Richardson was serving concurrent prison sentences for
     auto theft and burglary at the time of trial and was
     bench warranted from TDC to the Harris County Jail prior
     to trial; that Richardson indicated that he was having
     problems in the jail and wanted to be moved; that Glaeser
     passed this information on to her investigator, who in
     turn contacted the county jail personnel; and that
     Richardson was ultimately moved within the jail.

Additionally, the court found that after Richardson was moved once

within the jail, any other requests he made, including to be moved

again, were ignored by the State.          Richardson was informed that he

would not receive any “deals” in exchange for his testimony against

Johnson.       The court expressly found that Glaeser neither made a

deal with Richardson nor instructed or encouraged him to lie at

trial.

     The court also found credible the affidavits of Rob Kepple, an

assistant district attorney who was involved in the pretrial

proceedings, and D.C. Wells, an investigator for the Harris County

District Attorney’s office.         Both affiants stated that Richardson

received no deal or agreement in exchange for his testimony.

     In    a     nutshell,   the   state   habeas   court   found    that   the

prosecution did not promise anything in exchange for Richardson’s

testimony.        The only “benefit” Richardson received was being

relocated away from Johnson within the jail.            As the court below

stated,    the    state   habeas   court’s   factual   findings     “destroyed

Johnson’s habeas claims.”

     Johnson contends that he did not have a “fair opportunity to

                                       8
challenge   the    credibility    of   the    prosecutors”      and   that    “all

credibility decisions were made from a cold record.”                      Prior to

AEDPA,    this    Court    has   explained     that    “the    presumption        of

correctness does not become inapplicable for the sole reason that

no live evidentiary hearing has been held.”             May v. Collins, 955

F.2d 299, 311 (5th Cir. 1992) (emphasis in original).                 Thus, this

challenge to the factual findings would have failed even pre-AEDPA.

AEDPA “jettisoned all references to a ‘full and fair hearing’ from

the presumption of correctness accorded state court findings of

fact.”    Valdez v. Cockrell, 274 F.3d 941, 949 (5th Cir. 2001).

“The    presumption   of    correctness      erected   in     its   place    at    §

2254(e)(1), now simply provides that unless the petitioner can

rebut the findings of fact through clear and convincing evidence,

those findings of fact are presumed to be correct.”                 Id.    Johnson

has failed to marshal clear and convincing evidence to rebut the

presumption of correctness afforded the state court’s findings of

fact.

       Moreover, as the district court concluded, “[e]ven if the

prosecution knew that Richardson would fabricate his testimony or

made a ‘deal’ that resulted in his lies – and Johnson has not made

either showing – the evidence against Johnson would allow the state

habeas court to conclude that Richardson’s testimony was not

material under the Brady standard.”             “The materiality of Brady

material depends almost entirely on the value of the evidence


                                       9
relative to the other evidence mustered by the state.”            Edmond v.

Collins, 8 F.3d 290, 293 (5th Cir. 1993) (internal quotation marks

and citation omitted).       Johnson does not dispute the state court’s

finding that “there were twenty-three punishment phase witnesses

other than Donald Richardson who testified concerning at least nine

incidents of actual violence by [Johnson] as well as many other

incidents of threatened violence.”           Moreover, numerous witnesses

(both prison guards and inmates) testified to Johnson’s continuing

violent behavior after his incarceration for the instant capital

murders.      In view of the other evidence of Johnson’s future

dangerousness, combined with the instant execution-style murders of

the two teenage boys who apparently were attempting to help Johnson

with   his   feigned   car   trouble,   we   conclude   that   there   is   no

reasonable probability that disclosure of the allegedly suppressed

evidence would have resulted in a different outcome at sentencing.

Accordingly, because we conclude that jurists of reason would not

find the district court’s disposition of this claim debatable, we

deny a COA.



       III. PAROLE INSTRUCTION

       Johnson next contends his due process and equal protection

rights require that a jury be instructed with respect to parole

laws and the “implication of a life sentence.”            Johnson did not

request that the jury be so instructed, and the state habeas court


                                    10
found that the claim was procedurally barred.        The district court

therefore found that it was procedurally barred from considering

this claim.

     Johnson acknowledges that no objection was made. Nonetheless,

relying on Texas state law, he argues that he was not required to

object based on the “right not recognized” exception.            When faced

with this precise argument, this Court has explained that “it is

not the province of a federal habeas court to reexamine state-court

determinations on state-law questions.”         Rosales v. Cockrell, 48

F.App’x 103 *6 (5th Cir. 2002) (unpublished) (quoting Estelle v.

McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475 (1991)).             As such, the

district court’s conclusion that habeas review of Johnson’s claim

is procedurally barred is not debatable among reasonable jurists.

Johnson has not demonstrated either cause or prejudice, or that

imposition of the bar would constitute a miscarriage of justice.

He thus has failed to show that jurists of reason would find the

district court’s procedural bar debatable.

     In any event, our precedent squarely precludes Johnson from

making a substantial showing regarding the denial of due process or

equal protection rights with regard to this claim.               See, e.g.,

Coleman v.    Quarterman,   456   F.3d   537,   544-45   (5th    Cir.   2006)

(rejecting claim that the equal protection clause is violated by

the discretionary ability of Texas trial judges to instruct a jury

regarding a defendant’s parole eligibility); Miller v. Johnson, 200


                                   11
F.3d 274, 290 (5th Cir. 2000) (rejecting claim that due process

required   parole   instruction    regarding   petitioner’s   parole

eligibility).   The district court’s disposition of this claim is

not debatable, and thus, we deny a COA.



     IV.   UNCONSTITUTIONAL SENTENCING SCHEME

     In his final claim, Johnson argues that the Texas sentencing

scheme is “unconstitutional because there is no requirement that

the State prove beyond a reasonable doubt that the answers to the

special issues presented to the jury must be answered ‘yes.’”    In

support of this argument, Johnson principally relies on United

States v. Booker, 543 U.S. 220, 125 S.Ct. 738 (2005), Blakely v.

Washington, 542 U.S. 296, 124 S.Ct. 2531 (2004), and Ring v.

Arizona, 536 U.S. 584, 122 S.Ct. 2428 (2002).    The district court

denied relief, stating, inter alia, that it could not grant relief

without creating a new rule in violation of Teague v. Lane, 489

U.S. 288, 109 S.Ct. 1060 (1989).

     With respect to Johnson’s reliance on Booker and Blakely,

“[t]his argument is foreclosed before this court by United States

v. Gentry, 432 F.3d 600, 605 (5th Cir. 2005), and In re Elwood, 408

F.3d 211, 212-13 (5th Cir. 2005) (per curiam), both of which hold

that the Blakely/Booker line of cases does not apply retroactively

to cases on collateral review.” United States v. Edwards, 442 F.3d




                                  12
258, 268 (5th Cir. 2006).1     With respect to his reliance on Ring,

the Supreme Court has explicitly held that “Ring announced a new

procedural rule that does not apply retroactively to cases already

final on direct review.”     Schriro v. Summerlin, 542 U.S. 348, 358,

124 S.Ct. 2519, 2526 (2004).2            Moreover, this Court recently

rejected the claim that the State is constitutionally required to

prove    beyond   a   reasonable   doubt   the   absence   of   mitigating

circumstances.     Granados v. Quarterman, 455 F.3d 529, 536-37 (5th

Cir.), petition for cert. filed (Sept. 28, 2006)(NO. 06-6932). The

district court’s disposition of this claim is not debatable and

thus, we deny a COA.



     V.     CONCLUSION

     For the above reasons, the request for a COA is DENIED.




     1
         Although Edwards involved a section 2255 motion, its
holding is applicable to the instant section 2254 proceeding. See
United States v. Orozco-Ramirez, 211 F.3d 862, 864 n.4 (5th Cir.
2000). “‘Because of the similarity of the actions under sections
2254 and 2255, they have traditionally been read in pari materia
where the context does not indicate that would be improper.’” Id.
(quoting United States v. Flores, 135 F.3d 1000, 1002 n. 7 (5th
Cir. 1998)).
     2
        Johnson also cites Victor v. Nebraska, 511 U.S. 1, 114
S.Ct. 1239 (1994), in which the Supreme Court held that an
instruction defining “reasonable doubt” did not violate the due
process clause. We agree with the district court’s conclusion that
Victor is inapposite because Johnson is not challenging any
definition   of  “reasonable   doubt”   contained   in  the   jury
instructions.

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