                                                     United States Court of Appeals
                                                              Fifth Circuit
                                                           F I L E D
                 UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT                August 20, 2002

                                                       Charles R. Fulbruge III
                          No. 01-40058                         Clerk


                        DELMA BANKS, JR.,

                              Petitioner-Appellee-Cross-Appellant,

                              versus

 JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
                     INSTITUTIONAL DIVISION,

                              Respondent-Appellant-Cross-Appellee.

_________________________________________________________________

           Appeal from the United States District Court
                 for the Eastern District of Texas
                           (5:96-CV-353)
_________________________________________________________________


Before HIGGINBOTHAM, BARKSDALE, and DENNIS, Circuit Judges.

PER CURIAM:*

     For the capital murder conviction of Delma Banks, Jr., the

State of Texas contests the partial habeas relief for the death

sentence, the issues being:   whether, in violation of Brady vs.

Maryland, 373 U.S. 83 (1963), the State withheld evidence that one

of its witnesses was a paid police informant; whether, for the

penalty phase, Banks’ trial counsel was ineffective; and whether

cumulative error is a basis for relief.



     *
      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this opinion should not be published and is not precedent except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.
     Concerning the denial of habeas relief for his conviction,

Banks seeks a certificate of appealability (COA), claiming:                      two

other Brady violations; ineffective-assistance at the guilt phase;

violation of Swain v. Alabama, 380 U.S. 202 (1965) (prosecutors’

purposeful,       systematic,     discriminatory         exclusion        of   venire

members); and insufficient evidence.

     COA    and     HABEAS   RELIEF   DENIED;         therefore,     REVERSED    and

RENDERED.

                                          I.

     The murder at issue occurred 22 years ago.                 Court proceedings

since then have included the direct appeal, three state habeas

petitions with evidentiary hearings, and an extensive evidentiary

hearing for the federal petition at issue.

                                          A.

     On Monday morning, 15 April 1980, Richard Whitehead was found

dead in a park near Nash, Texas, in Bowie County.                    See Banks v.

State, 643 S.W.2d 129 (Tex. Crim. App. 1982), cert. denied, 464

U.S. 904 (1983).      (Nash is near Texarkana.)             He had been shot twice

in the head and once in the upper back.           Fisher, who lived near the

park,   reported     being     awakened    by   two    gunshots     the    preceding

Saturday, 12 April, at approximately 4:00 a.m..                     And, Hicks and

Bungardt,     two     female     acquaintances         of     the   victim,     told

investigators he was last seen alive the preceding Friday evening,

11 April,   with a black male, whom they later identified as Banks.


                                          2
     As a result, Bowie County Deputy Sheriff Huff, the lead

investigator, contacted police informant Farr and told him he would

pay Farr $200 if he could obtain Banks’ gun.        On 23 April, eight

days after the victim was found, Farr, Banks, and Marcus Jefferson

drove to Dallas to obtain a gun.

     Bowie and Dallas County authorities monitored the trip and

observed Farr’s automobile, driven by Banks, stop at a south Dallas

house; Banks go to the door and soon return; and the automobile

drive away.   Id.   Officers stopped the automobile and seized a .22

caliber pistol;     it was not the murder weapon.

     Banks was arrested.      Farr and Jefferson were detained but

released the next morning.

     In addition, that next morning, Officers returned to the south

Dallas house and interviewed an occupant, Cook, who provided the

following in a statement (April 1980 statement): Banks stayed with

him the weekend of 12 April (weekend of the murder);        Banks was

driving an automobile matching the description of the victim’s;

during the weekend, Banks admitted to Cook he had killed a “white

boy”; prior to Banks’ returning to Texarkana after that 12 April

weekend, he left the automobile and a .25 caliber pistol with Cook

to discard; and Cook abandoned the automobile in west Dallas and

sold the pistol to a neighbor.




                                   3
     Deputy Huff seized the pistol from the neighbor and submitted

it for forensic testing.      The state forensics lab reported it was

the murder weapon.

                                       B.

     At a 21 May 1980 examining trial, Deputy Huff summarized the

State’s case and recounted the events leading to Banks’ arrest.

The Deputy did not disclose, however, that payments were made to

Farr.      He did disclose that Hicks and Bungardt reported the

victim’s automobile     was   having        alternator    problems   (discussed

infra).

     The following day, Banks was indicted for capital murder.

                                       C.

     Prior to trial that Fall, the Bowie County District Attorney’s

office advised Cooksey, Banks’ attorney, there would be no need to

litigate discovery issues:           “We will, without the necessity of

motions[,]    provide   you   with    all     discovery    to   which   you   are

entitled”.    That August, Cooksey filed several standard pretrial

motions, including for discovery; he did not seek a pre-trial

hearing.

     The first day of jury selection, Cooksey reported to the trial

judge that he had not seen the State’s witness list.              (It had been

provided to him the previous week.)            Nor did Cooksey object when,

in selecting the jury, the prosecution peremptorily struck the four

qualified black potential jurors.            After jury selection, prior to



                                       4
further proceedings, Cooksey complained the State had not provided

a list of the prior convictions of the State’s witnesses.

       Hicks and Bungardt testified that Banks was with the victim on

Friday, 11 April, and that the victim’s automobile required a

battery-jump in order to start.

       Fisher testified he heard the two gunshots at approximately

4:00 a.m. on Saturday morning, 12 April.

       Farr testified:   he accompanied Banks to Dallas to secure a

pistol; they stopped at Cook’s; and Banks reported the .22 caliber

pistol he secured from Cook was not his, because his pistol was “in

west Dallas”.    Farr admitted using illegal drugs, but denied being

a paid informant and speaking with any police officers.

       Cook testified:   Banks arrived at approximately 8:30 a.m. on

12 April in a green Mustang and stayed with him for two days; Banks

admitted to killing a white man in Texarkana; at Banks’ request,

Cook sold a pistol Banks had left with him and abandoned Banks’

car.

       Cook’s sister testified she met Banks when he arrived with

Cook in a green Mustang.

       Cook’s neighbor confirmed he purchased a .25 caliber pistol

(later identified as the murder weapon) and other items from Cook

approximately    one   week   before   authorities   seized   the   pistol.

       Dr. DiMaio, the State’s medical examiner, testified the victim




                                       5
died from three gunshot wounds but did not testify as to the time

of death.

     Firearms examiner Jones testified the bullets recovered from

the victim and the crime scene had been fired from the pistol

retrieved from Cook’s neighbor.

     Banks did not present any evidence.   The jury found him guilty

of capital murder.   Id. at 132.

     At the penalty phase, the State presented two witnesses: Farr

and Vetrano Jefferson. Vetrano Jefferson was the brother of Banks’

common-law wife and the older brother of Marcus Jefferson (who had

accompanied Banks and Farr to Dallas eight days after the victim

was found).

     Vetrano Jefferson testified that, one week before the victim’s

death, Banks struck him (Vetrano Jefferson) with a pistol and

threatened to kill him.

     Farr testified he, Banks, and Marcus Jefferson drove to Dallas

so that Banks could reclaim his pistol to commit armed robberies

and take care of any trouble that might arise during one.

     As part of Banks’ evidence, two witnesses testified in order

to discredit Farr:    Kelley testified he recently drove Farr to

several doctors’ offices to fill false prescriptions; and, a former

Arkansas police officer testified Farr served as a paid informant

in that State and was known to be unreliable.



                                   6
       Banks’ parents and several acquaintances testified that Banks

was a respectful, churchgoing young man.

       And, Banks testified.       Among other things, he stated it was

his idea to obtain a gun so that Farr could commit an armed

robbery.    And, he admitted striking Vetrano Jefferson with a gun

and threatening to kill him.

       In October 1980, after the jury found the requisite special

issues, the judge imposed the death penalty.

                                       D.

       In 1982, on direct appeal, the Texas Court of Criminal Appeals

affirmed the conviction and sentence.         Banks v. State, 643 S.W.2d

129.    The Supreme Court of the United States denied certiorari in

1983.    Banks v. Texas, 464 U.S. 904.

                                       E.

       Banks filed three state habeas petitions.

                                       1.

       Banks’ first raised, inter alia, a jury discrimination claim

based on Swain, 380 U.S. 202, and a sufficiency of the evidence

claim with regard to the second special sentencing issue — future

dangerousness.      After an evidentiary hearing, at which Banks

offered no live testimony, the trial court recommended denial on

the     merits;   the     Court   of   Criminal   Appeals   accepted   this

recommendation.         Ex parte Banks, No. 13,568-01 (Tex. Crim. App.

1984) (unpublished).


                                       7
                                        2.

       Banks’   second      petition,    inter    alia,   again   raised    the

sufficiency claim. After another evidentiary hearing, the petition

was again rejected on the merits.            Ex parte Banks, 769 S.W.2d 539,

540 (Tex. Crim. App. 1989).

                                        3.

       Banks’ third petition presented, inter alia, each claim raised

in this federal proceeding:             ineffective-assistance; systematic

exclusion of blacks; withholding material impeachment evidence on

Cook   and    Farr;   and    insufficient     evidence    to   support   future

dangerousness.        The trial court did not conduct an evidentiary

hearing and recommended denial.

       The Court of Criminal Appeals remanded for an evidentiary

hearing on the Swain and juror bias claims (the latter is not at

issue).      Ex parte Banks, No. 13,568-03 (Tex. Crim. App. 3 Mar.

1993) (unpublished).         Following the hearing, and concerning the

Swain claim, the trial court concluded:            the evidence established

a prima facie case of discrimination; it was rebutted, however, by

the State’s non-discriminatory reasons for the strikes.              The Court

of Criminal Appeals denied relief, based on the trial court’s

findings and conclusions.          Ex parte Banks, No. 13,568-03 (Tex.

Crim. App. 11 Jan. 1996) (unpublished).




                                         8
                                     F.

     Banks filed his federal petition after contacting Farr and

Cook.   Farr revealed he had been a paid informant.                    And, Cook

stated: significant portions of his testimony were false and given

under pressure from authorities; Deputy Huff and others assured him

that, in exchange for favorable testimony, a pending charge in

Dallas County would be dismissed; and his testimony had been

rehearsed on several occasions.

                                     1.

     On the basis of several affidavits, the magistrate judge

granted Banks limited discovery and an evidentiary hearing on his

ineffective-assistance, Brady, and Swain claims.

     As of the hearing, Farr resided in California and feared

returning   to   Texarkana    because       of   his   poor   health   and   prior

informant activities. Therefore, Banks submitted Farr’s affidavit.

The State did not seek to depose Farr and limited its objection

pursuant to Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992) (if failed to

factually develop claim during state court proceedings, petitioner

must establish cause and prejudice to be entitled to federal

evidentiary hearing).

     Farr’s affidavit stated:       he was paid $200 by Deputy Huff “to

set Delma [Banks] up”;       he convinced Banks that he (Farr) wanted a

gun to rob a pharmacy for drugs; and it was Farr’s idea to drive to

Dallas to retrieve Banks’ gun. At the federal hearing, Deputy Huff


                                        9
confirmed that Farr had been a paid informant.                     And, Marcus

Jefferson, who accompanied Banks and Farr to Dallas, testified Farr

initiated conversations with Banks about securing a gun so that

Farr could commit robberies.

     Pursuant to the discovery order, the Bowie County District

Attorney’s office disclosed an undated, 74-page transcript of

Cook’s September 1980 pretrial interview, conducted by Bowie County

law enforcement officers and prosecutors.           (This transcript is the

subject of a Brady claim COA request, discussed in part II.B.1.a.)

At the evidentiary hearing, Assistant District Attorney (ADA)

Elliot   confirmed:    at   trial,    his    co-counsel,    Raffaelli      (the

District Attorney during Banks’ trial, who died prior to the

evidentiary hearing), was in possession of the transcript and

several pages of handwritten notes; prior to trial, they had not

been disclosed   to   Banks.      Only    Cook’s    April   1980    statement,

provided   approximately    two   weeks     after   the   murder,    had   been

disclosed at the conclusion of Cook’s trial testimony on re-direct.

     Concerning the alleged deal for Cook’s testimony (the subject

of a Brady claim COA request, discussed in part II.B.1.b.), ADA

Elliot testified:     he did not arrange one, but it was possible

Raffaelli did so without his knowledge; Deputy Huff and another

investigator had contact with Dallas authorities that he (Elliot)

was not privy to, but Deputy Huff had no authority to make a deal;

and, following Banks’ trial, he (Elliot) accompanied Deputy Huff


                                     10
and Cook to Dallas and told an ADA there that, in a capital murder

case, Cook gave helpful testimony for the prosecution. Deputy Huff

similarly testified that, although he discussed the pending arson

charges with Cook, he did not tell Cook that, in exchange for

favorable testimony, they would be dismissed.

     Cook’s evidentiary hearing testimony sharply contradicted the

State’s. Cook claimed:    when authorities arrived at his home on 24

April 1980, Deputy Huff threatened to charge him with being an

accessory to murder if he failed to cooperate; he gave a statement

(April 1980 statement) that was, in many respects, incomplete and

untruthful;   he   was   fearful   of   Deputy   Huff   throughout   the

investigation and trial and continued to fear him; a month prior to

Banks’ trial, habitual offender papers were filed in the pending

case (arson) which would have significantly lengthened his (Cook’s)

maximum sentence; he understood Deputy Huff’s remarks concerning

cooperation to mean he needed to testify consistent with his April

1980 statement; while he was waiting to testify, Deputy Huff

transported him to his wife’s hotel to have conjugal visits (Cook’s

former wife gave consistent testimony); portions of his trial

testimony were untruthful; and the day Deputy Huff and Elliot

returned him to Dallas, the arson charges were dismissed.

     Cook’s sister, Carol Cook, testified:       Deputy Huff threatened

to “lock [her] brother up for the rest of his life” if she refused

to testify at Banks’ trial; Deputy Huff directed her to change her



                                   11
testimony concerning the automobile she saw Banks driving during

the 12 April weekend; although she was sure the automobile was red,

Deputy Huff insisted it was green; and although she initially told

the jury the automobile was red, she corrected herself and said it

was green.

     Regarding     ineffective-assistance,    witnesses    testified

concerning   the     time-of-death    evidence,   Cooksey’s    trial

preparedness, and the defense function in capital trials.

     Concerning time of death, although Fisher’s trial testimony

was that he heard what sounded like gunshots at 4:00 a.m. on

Saturday, 12 April, his federal testimony was:     he knew nothing

about guns; the noises could have been firecrackers, car backfires,

or rifle shots; and the noises could have occurred between 3:00 and

5:00 a.m.    Dr. Riddick, a medical examiner for the State of

Alabama, testified that several factors led him to conclude the

victim died late on the evening of 12 April (Saturday) or early

Sunday morning, 13 April.   He conceded, however, that, consistent

with the State’s theory, including the effect of the weather, it

was possible the victim was killed around 4:00 a.m. on Saturday, 12

April.

     Concerning assistance of counsel, Banks’ parents testified

that, prior to trial, Cooksey met with them only briefly, with

meetings lasting “no longer than 10 to 15 minutes”.       Mrs. Banks

testified Cooksey asked her to testify Banks was at home with her


                                 12
on Friday evening, 11 April;         she refused.    Although both parents

had testified during the penalty phase, Cooksey had not spoken with

them about the information he wanted communicated to the jury.

      Kelley, who testified concerning Farr’s bogus prescription

scheme: was unaware that Cooksey planned to call him as a witness;

had several drinks earlier on the morning of his trial testimony;

and “was drunk” when he testified.

      Vetrano Jefferson, who testified at trial for the State,

testified:    his fight with Banks he described at trial began

because he (Jefferson) was drunk and was threatening his sister

(Banks’ common law wife); Banks defended her; Jefferson started the

fight; and he never spoke with Banks’ counsel, but would have been

willing to do so.

      Dr. Cunningham, an expert in forensic psychology, testified he

conducted a thorough psychological evaluation of Banks (including

nine hours with Banks, interviews with his family, and review of

the trial transcript and his school, medical, and prison records)

and   concluded   that,   at   the   time   of   trial,   there   was   little

likelihood of additional acts of violence from Banks.

      Goldstein testified Cooksey was ineffective in:               pretrial

investigation, cross-examination of State’s witnesses, presentation

of penalty phase witnesses, and failing to utilize a mental health

expert.

      In rebuttal, the State called Waters, hired by Cooksey as an

investigator for Banks’ trial.         Waters testified he:       interviewed

                                      13
a number of witnesses, but could not recall their names; visited

and photographed the crime scene; and did not believe Banks’ claim

that he hitchhiked to Dallas, because, for example, Banks could not

describe the vehicle he rode in.

                                   2.

     The magistrate judge recommended habeas relief be granted in

part (sentence) and denied in part (conviction).           The recommended

relief was based on the State’s failure to disclose Farr’s paid

informant status and ineffective-assistance at the penalty phase.

Banks   v.   Johnson,   No.   5:96-CV-353   (E.D.   Tex.    11   May   2000)

(unpublished) (Banks-USDC).

                                   3.

     With minor modifications, the district court accepted the

recommendations.    Banks v. Johnson, No. 5:96-CV-353 (E.D. Tex. 18

Aug. 2000) (unpublished) (Banks-USDC II). The district court later

denied Banks’ Rule 59 motion to modify the judgment.               It also

denied Banks a COA.

                                   II.

     Banks’ third state habeas petition was denied approximately 15

years after his conviction. Because his federal petition was filed

shortly before the 1996 effective date of the Antiterrorism and

Effective Death Penalty Act (AEDPA), it is not applicable to the

claims for which habeas relief was granted.         See Lindh v. Murphy,




                                   14
521 U.S. 320, 336-37 (1997).        But, as discussed in part II. B., it

is applicable to Banks’ COA requests.

                                      A.

     Relief    was   granted   on    two    bases:   (1)   information    being

withheld in violation of Brady, 373 U.S. 83; and (2) ineffective-

assistance at the penalty phase.

     Under pre-AEDPA law, we “generally accord a presumption of

correctness to any state court factual findings”.             Mann v. Scott,

41 F.3d 968, 973 (5th Cir. 1994), cert. denied, 514 U.S. 1117

(1995).    In addition, we “review the district court’s findings of

fact for clear error, but decide issues of law de novo”.                 Id.

                                      1.

     Relief was granted under Brady because the State failed to

disclose   Farr,     a   penalty    phase   witness,   was    a   paid   police

informant.    Banks-USDC, at 44.      This claim was not raised in either

the first or second state petitions.           In his third, Banks claimed

the State violated Brady by failing to disclose “information that

would have revealed ... Farr as a police informant and ... Banks’

arrest as a ‘set-up’”.         The trial court’s denial recommendation

did not specifically address this Brady claim; and the Court of

Criminal Appeals, after remanding for an evidentiary hearing solely

on Banks’ unrelated Swain and juror bias claims, accepted the trial

court’s recommendation and denied relief.              Ex parte Banks, No.

13,568-03 (Tex. Crim. App. 11 Jan. 1996) (unpublished).

                                      15
     To establish a Brady claim, Banks must prove:          (1) the

“evidence was suppressed”; (2) it “was favorable to the accused”;

and (3) it “was material either to guilt or punishment”.     United

States v. Ellender, 947 F.2d 748, 756 (5th Cir. 1991).          The

district court ruled:     the substance of Farr’s penalty-phase

testimony was that he, Banks, and Marcus Jefferson traveled to

Dallas to retrieve Banks’ gun so that Banks could commit armed

robberies; and the purpose of that testimony was to demonstrate

future dangerousness.   Banks-USDC, at 43-44.

     In holding Brady had been violated, the district court relied

on Deputy Huff’s testimony at the federal hearing that Farr was a

paid informant.   Id. at 43.   Also in the record are two affidavits

in which Farr admits being a paid informant.

     The State maintains: that the affidavits and Farr’s testimony

are unexhausted, and the federal hearing at which Deputy Huff

testified was improperly granted; and that, alternatively, the

Brady claim fails on the merits.

                                  a.

     The procedural issues are: whether the federal hearing should

not have been held; and whether the evidence relied on by the

district court is unexhausted.




                                  16
                                         i.

     The State contends Banks was not entitled to the hearing in

the light of his failure, during the state proceedings, to develop

the factual bases of his Brady claim.            A petitioner is “entitled to

[a federal] evidentiary hearing if he can show cause for his

failure to develop the facts in state-court proceedings and actual

prejudice resulting from that failure”.                 Keeney, 504 U.S. at 11

(emphasis   added).          An    exception    to   this     cause-and-prejudice

requirement exists if a petitioner “can show that a fundamental

miscarriage of justice would result from failure to hold a federal

evidentiary hearing”.         Id. at 12.

     With   regard      to    Banks’    Brady    claim,     however,   the    order

establishing the issues to be considered at the federal hearing

never mentions either this cause-and-prejudice requirement or this

miscarriage-of-justice exception.                 Nevertheless, the district

court ordered the hearing based on Banks’ offering proof that “he

could not have had the information regarding this issue prior to

any of his three state evidentiary hearings” because he asked the

state court for aid in developing Cook’s testimony, and the “state

court   never   acted    on       [Banks’]    request   for    assistance”.     In

addition, the district court ruled Banks had “demonstrated ... he

did not have a full and fair opportunity to present his evidence on

[the Brady] issue to the state court, primarily because [Farr and




                                         17
Deputy Huff] did not come forward until after the state court

evidentiary hearings”.      (Emphasis added.)

      Concerning   the   witnesses’    not    coming   forward,   the    State

contends there was no evidence this was due to its interference.

See Johnson v. Puckett, 176 F.3d 809, 816 (5th Cir. 1999) (“a

showing of ‘interference by officials’ is sufficient to show cause

for a procedural default”). The State next contends that the state

courts did not prevent Banks from developing the Brady claim.

Instead, according to the State, there is nothing in the record

that demonstrates Banks was prevented from exploring this issue

during the state habeas proceedings.          As for the district court’s

observation that the state courts did not respond to Banks’ request

for investigative-assistance, the State contends such requests were

limited to assistance to investigate whether there had been a

failure to disclose Brady information regarding Cook, not Farr.

      Banks does not specifically address the challenge to holding

a   federal   evidentiary   hearing.       Instead,    he   responds    to   the

exhaustion contention, discussed infra.

      As for no evidence being presented at the state evidentiary

hearing because the state court never acted on Banks’ request for

assistance, Banks’ request was limited, as acknowledged by the

district court,     to   “investigative      assistance     regarding   Cook’s

testimony”, not Farr’s.      (Emphasis added.)         Banks had stated he

“need[ed] the aid of an investigator in order to develop fully his


                                      18
allegation that the Bowie County District Attorney’s office had not

disclosed that a favorable deal had been arranged for ... Cook, the

State’s   chief   witness,   in   exchange   for   his   testimony....”

(Emphasis added.) (Again, this alleged deal is the subject of a

Brady claim COA request, discussed in part II.B.1.b.)

     Obviously, the state court’s refusal concerning Cook is of no

relevance to the Brady claim regarding Farr.         Accordingly, not

being provided investigative assistance is not cause for not

developing this Brady issue in state court, in the light of Banks’

never asking for assistance with regard to Farr.

     As for witnesses not coming forward until after the state

court evidentiary hearing, Banks has not demonstrated that he

attempted, even if unsuccessfully, to explore this issue, or any

other issue, with those witnesses.       Farr states in one of his

affidavits:   “I would not have revealed the information in this

declaration to [Banks’ representatives], or to anyone else, before

I elected to do so in the fall of 1996”.      (Emphasis added; Banks’

third — and final — state habeas request was denied much earlier,

in January 1996.) Even accepting Farr’s statement as true, it does

not justify Banks’ not attempting to speak with Farr prior to the

conclusion of the (three) State habeas proceedings.

     Accordingly, Banks has not shown cause for not attempting in

state court to factually develop this Brady issue.        In addition,

neither the district court nor Banks in this appeal attempts to


                                  19
demonstrate the applicability of the fundamental-miscarriage-of-

justice exception.     Accordingly, the district court erroneously

granted an evidentiary hearing regarding this Brady issue.

     As a result, habeas relief cannot be granted based on the

evidence presented at the federal hearing: Deputy Huff’s testimony

that Banks was a paid informant.            Banks-USDC, at 42-44.       The

district   court’s   holding,    however,    is    predicated   upon   that

testimony.   Without it, the Brady claim must fail.             It is true

that, in Farr’s affidavits presented to the district court, he

admits his paid informant status.           But, for the reasons stated

infra, that evidence is not exhausted and, as a result, cannot

establish a Brady claim.

                                 ii.

     Assuming arguendo the evidentiary hearing was granted properly

for this Brady claim, next at issue is the State’s contention that

Deputy   Huff’s   testimony,    as   well   as   Farr’s   above-referenced

affidavits, were not exhausted.           As a prerequisite to federal

habeas relief, a petitioner must exhaust “the remedies available in

the courts of the State”.        28 U.S.C. § 2254(b) (1994).           Such

remedies are not exhausted where the petitioner “presents material

additional evidentiary support to the federal court that was not

presented to the state court”.       Graham v. Johnson, 94 F.3d 958, 968

(5th Cir. 1996).      “[N]ew factual allegations in support of a

previously asserted legal theory” must also be exhausted, even

                                     20
though such “factual allegations came into existence after state

habeas relief had been denied”.      Joyner v. King, 786 F.2d 1317,

1320 (5th Cir.), cert. denied, 479 U.S. 1010 (1986).     “There is,

however, a ‘cause and prejudice’ exception to the bar for failure

to exhaust.”   Beazley v. Johnson, 242 F.3d 248, 264 (5th Cir.),

cert. denied, 122 S. Ct. 329 (2001).

     Again, Banks’ third (final) state petition was denied in

January 1996. Neither of Farr’s affidavits — dated 4 November 1996

and 21 May 1999 — was presented in state court.    A district court

should not consider an affidavit that was not offered to the state

court where no cause for failure to exhaust has been shown.   Woods

v. Johnson, 75 F.3d 1017, 1029 n.16 (5th Cir.), cert. denied, 519

U.S. 854 (1996); see Hogue v. Johnson, 131 F.3d 466, 505 (5th Cir.

1997) (holding federal court should not consider affidavits not

presented to state court), cert. denied, 523 U.S. 1014 (1998).

     As for cause, in his brief here, Banks contends:

          [Banks] pleaded that Farr was an informant in
          his third state habeas proceeding.      Candor
          required the state to respond truthfully and
          admit his true status.         Instead, [the
          attorney] who was then representing the
          state’s interest, ignored the claim and made
          no response. It was only after this matter
          was filed in federal court that ... Banks
          located and gained access to ... Farr, who for
          the first time revealed his informant status
          in this matter.

(Emphasis added.)   In this light, it is clear that, at the time of

Banks’ third state habeas proceeding, he believed Farr had been a

                                21
paid informant.     Nevertheless, Banks offers no reason why he did

not attempt to locate Farr and ascertain his true status.               If Banks

had sought Farr’s testimony, and Farr had been uncooperative, then,

arguably, Banks would have shown cause.                 Instead, because it

appears he made no such effort, the “cause” for Banks’ failure to

obtain Farr’s information was Banks’ lack of diligence.

     Along   this   line,     Banks   maintains   the    State   should    have

responded to his state habeas Farr-was-an-informant contention.

But, when the State did not respond, this should have prompted him

to further investigate this claim, i.e., speak with Farr, rather

than do nothing.

     Concerning Deputy Huff’s federal testimony that Farr was a

paid informant, and as for cause, Banks contends:              “[I]t was only

because of the [federal] ... hearing that [he] had the opportunity

to put [the State’s attorney] and [Deputy] Huff under oath and

directly inquire about ... Farr’s true status”.                This does not

demonstrate cause.    As of his third state petition, Banks believed

Farr had been an informant.           Accordingly, Banks should have at

least attempted to interview the investigating officers, such as

Deputy Huff, to ascertain Farr’s status.

     Therefore,     neither    Farr’s      affidavits    nor   Deputy    Huff’s

testimony are exhausted, and Banks has not shown cause for his

failure to do so.    Federalism concerns demand that state courts be

given an opportunity to consider a claim on the same evidence as do



                                      22
federal courts.       Because this evidence is procedurally barred, and

is the only evidence Banks offers in support of this Brady claim,

it fails.

                                           b.

       Assuming both that the federal hearing concerning this claim

was proper and that the evidence was exhausted, at issue are the

merits of the Brady claim.                Again, Banks must satisfy each of

Brady’s     three    prongs:        the   State     withheld   evidence;    it   was

favorable to him; and it was material.                See Ellender, 947 F.2d at

756.

                                           i.

       The State maintains Banks has not presented evidence that it

withheld     Farr’s       status.    Noticeably       absent   from   the   record,

according to the State, is any statement from Banks’ trial counsel

(Cooksey) that he did not know Farr’s status.                   The State raised

this issue in district court, asserting in its summary judgment

motion: “defense counsel [Cooksey] was obviously aware of evidence

that Farr was a police informant”; and “Banks has failed to allege

or prove exactly what evidence the prosecution purportedly knew

about that the defense did not”.                The district court disagreed:

“At    no   time    did    the   State    correct    Farr’s    erroneous    [trial]

testimony [that he was not paid for his testimony] or announce

Farr’s paid informant status”.             Banks-USDC, at 44.




                                           23
     Banks responds that the evidence does demonstrate Farr’s

informant identity was never provided to him.   According to Banks:

“Although the Brady doctrine required the trial prosecutors to

formally advise counsel of Farr’s status, there is no pleading or

oral reference to Farr’s status as an informant anywhere in the

trial record”.

     Banks also asserts that, at the pre-indictment examining

trial, Deputy Huff refused to disclose the informant’s identity.

And, at trial, when Banks’ counsel asked Farr whether he was paid

for his testimony, Farr denied he was.    According to Banks, given

his counsel’s strategy to discredit Farr, had he known he was a

paid informant, he surely would have challenged Farr’s response.

Finally, Banks points to Deputy Huff’s inquiry to Banks’ counsel at

the federal hearing on whether it was permissible to identify Farr

as an informant:

          Q.     In this particular case, you received the
                 aid from an informant, did you not?

          A      Yes, sir.

          Q      And who was that?

          A      His name is Robert Farr. I don’t know if
                 it’s procedurally regular –

          Q      We’ve inquired. Mr. Farr has no problem
                 with revealing his identity.

          A      Robert Farr.




                                 24
      The State responds that it had no duty to disclose Farr’s

informant status or that he was paid; and that Banks was not

diligent in seeking disclosure.

      In   the    light   of   Banks’      failure   to    exhaust     the   evidence

supporting this Brady claim, as well as our holding, infra, that

Farr’s status was not material to the jury’s penalty phase finding,

we need not decide whether the State had a duty to disclose Farr

was a paid informant and, if so, whether it did so.                     Instead, we

will assume this information was withheld.

                                           ii.

      At issue, therefore, is whether the withheld evidence was

favorable    to    Banks.      In    the    report   and       recommendation,      the

magistrate judge stated that Farr testified that he, Banks, and

Marcus Jefferson “traveled to Dallas to retrieve [Banks’] gun so

that Banks could commit several armed robberies”.                     Banks-USDC, at

43-44 (emphasis added).            The State notes Farr instead testified:

“We   were   going   to     pull    some    robberies     on    the   way    back   [to

Texarkana]”.      (Emphasis added.)

      Farr states in his affidavits that he never intended to commit

an armed robbery; that he only told Banks that so that he would

retrieve Banks’ gun.         According to the State, the jury

             was presented with a scenario in which two
             people were acting together for an illegal
             purpose.   It would hardly be favorable to
             Banks’ case for the jury to be told that Farr
             only made up the story about the robbery so
             that Banks would ... get his gun. This set of

                                           25
           facts would have had only one of the two men –
           Banks – believing the gun would be used in an
           armed robbery.

      Banks does not respond to this contention, focusing instead on

the third Brady prong — materiality.           In any event, the State’s

contention misses the mark.      The withheld evidence was Farr’s paid

informant status.       Such information, obviously, has a bearing on

his credibility; Farr’s being a paid informant would certainly be

favorable to Banks in attacking Farr’s testimony.            Accordingly,

Banks has satisfied the second Brady prong.

                                   iii.

      For the final Brady prong, 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 have been different.      A
           reasonable  probability  is  a   probability
           sufficient to undermine confidence in the
           outcome.

Ellender, 947 F.2d at 756 (emphasis added; internal quotation marks

omitted). The State contends Farr’s status is not material because

his   testimony   was    corroborated     by   other   witnesses   and    the

information’s impeachment value would have been cumulative.

      During the penalty phase, Farr testified that he, Banks, and

Marcus Jefferson traveled to Dallas to “pick up a pistol”.               When

they arrived at Cook’s house, Banks went to the front porch and

returned with a gun that was not his, stating Cook had given his

(Banks’) gun to a woman in west Dallas.            As stated, concerning


                                    26
their intent, Farr testified: “We were going to pull some robberies

on the way back [to Texarkana]”.

     According   to   the   State,   Marcus    Jefferson’s   guilt   phase

testimony was consistent with Farr’s.         Jefferson testified:    when

he, Farr and Banks reached Dallas, they drove around looking for a

house; when they reached it, Banks went to the front porch,

returned with a pistol, and stated that the person who had given

him that pistol, Cook, did not have his (Banks’) gun because he had

given it to someone else.

     The State also relies on Cook’s trial testimony:         while Banks

was staying in his house one day after the murder, he (Cook) took

Banks’ gun and sold it; Banks later came to his house and told him

he needed a pistol; and Banks asked him where his (Banks’) was.

     The State also contends that Banks’ own trial testimony

corroborates many of Farr’s statements.        During the penalty phase,

Banks testified:   Farr planned to commit “some robberies”;          and it

was his (Banks’) idea “to go get the gun”.         On cross-examination,

Banks testified that, when he arrived at Cook’s house, Cook did not

have Banks’ gun and gave him (Banks) another.          Ultimately, Banks

admitted he was “going to supply [Farr] the means and possible

death weapon in an armed robbery”.

     In its second contention concerning materiality, the State

maintains that the impeachment value of Farr’s paid informant

status is low because of other impeachment evidence used against



                                     27
him.    During Farr’s penalty phase cross-examination, he denied:

(1)    going   to   Arkansas   the   previous   week   to   obtain   false

prescriptions and getting into an altercation with a doctor who

refused to provide him with one; (2) being a “snitch” for Owens, an

Arkansas narcotics officer; and (3) that his wife shot him.

       During the penalty phase, however, defense witness Kelly

contradicted Farr’s denial of an altercation with a doctor in

Arkansas. According to Kelly, when he went into the hospital where

Farr was located, the doctor and Farr were “fussing” and the doctor

told Farr “to get his ass out of there”.          Kelly also testified

that, after unsuccessfully attempting to obtain prescription drugs

from other hospitals in Arkansas, Farr stated “he was going to get

what he was after [prescription drugs] before we got back to

Texarkana”.

       The above-referenced Arkansas officer, Owens, testified for

the defense at the penalty phase and contradicted Farr’s assertion

that he never was an informant for him and that he had not been

shot by his (Farr’s) wife.      Owens testified he had used Farr as an

informant once or twice and that, because his “information was not

correct”, he no longer used him.

       Banks does not respond to these assertions by the State.

Instead, Banks’ argument is two-fold.       First, he contends:

           As the state had little other evidence to
           demonstrate that [he] would be a danger in the
           future, the result at the penalty phase likely
           would have been different had the jury known
           that Farr had every reason to testify as he

                                     28
            did to protect his business relationship with
            law enforcement and to avoid prosecution.

     Second, Banks maintains that, because the prosecution failed

to correct Farr’s untruthful testimony during the guilt phase, the

standard for materiality is less onerous. The referenced testimony

occurred when, on questioning by Banks’ attorney, Farr denied “ever

tak[ing] any money from some police officers”.

     For this second contention, Banks relies upon Kirkpatrick v.

Whitley, 992 F.2d 491, 497 (5th Cir. 1993), which held that, “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’”.

(Quoting United States v. Bagley, 478 U.S. 667, 679 n.9 (1985)

(citing Napue v. Illinois, 360 U.S. 264, 269 (1959) (Fourteenth

Amendment violation if “the State, although not soliciting false

evidence, allows it to go uncorrected when it appears”))); see also

Giglio v. United States, 405 U.S. 150, 153-55 (applying Napue

standard where the Government did not correct a witness’ false

testimony concerning an agreement not to prosecute in exchange for

his testimony).

     Kirkpatrick, however, does not hold that the Brady materiality

standard is lessened because of false testimony. Instead, Kirkland

delineates    the    Brady     materiality   standard   from   that    for   a


                                       29
Giglio/Napue claim.         992 F.2d at 497 (“We observe that different

standards of materiality apply to Brady claims and claims that the

prosecution    has     knowingly     used       perjured    testimony     or    false

evidence.”).       In short, Kirkpatrick makes clear that a Brady claim

and   a   Giglio/Napue      claim    are    separate     and    distinct.       E.g.,

Barrientes    v.    Johnson,   221    F.3d      741,   752-53    (5th    Cir.   2000)

(analyzing    Brady    claim    separately        from     Giglio   claim),     cert.

dismissed,    531    U.S.    1134    (2001).        Accordingly,        whether   the

prosecution failed to correct Farr’s testimony is irrelevant to

Banks’ Brady claim and its materiality standard.

      To the extent Banks attempts to establish a Giglio/Napue

claim, the State maintains it must fail for several reasons:                    Banks

never raised it in his federal petition; the district court did not

grant relief based on it; and, even if Banks had presented it, it

should be denied on the merits.

      No Giglio/Napue claim is presented in Banks’ federal petition.

He does, however, make such an assertion in his federal post-

hearing brief and in his proposed findings and conclusions.                        We

need not decide whether Banks sufficiently raised this claim; the

district court granted relief under Brady, not Giglio/Napue.                       It

did recognize that, at “no time did the State correct Farr’s

erroneous testimony or announce Farr’s paid informant status”; it

granted relief, however, on the basis of withheld impeachment

evidence.    Banks-USDC, at 44.

                                           30
      Assuming Banks raised a Giglio/Napue claim in district court,

we cannot consider it, because Banks does not seek a COA based on

the   district    court’s    not    granting   relief   on     this   basis.

Furthermore,     again   assuming   the   federal   petition    included   a

Giglio/Napue claim, Banks’ first and second state habeas petitions

did not.   In his third petition, while he does cite Giglio, he does

so only in connection with the Brady claim concerning Cook, not

Robert Farr:

           As extensively detailed elsewhere in this
           Petition, the prosecutors concealed promises
           of leniency and favorable treatment made to
           key State’s witness Cook. Had this evidence
           been disclosed to the defense, as required by
           Giglio v. United States, 405 U.S. 150 (1972),
           and Brady v. Maryland, 373 U.S. 83 (1963), the
           jury likely would have rejected Cook’s
           testimony and acquitted Mr. Banks.

      In contrast, in Banks’ third state petition, in the section

presenting his Brady claim concerning Farr’s paid informant status,

there is no mention of a Giglio/Napue violation.

           To exhaust, a petitioner must have fairly
           presented the substance of his claim to the
           state courts. It is not enough that all the
           facts necessary to support the federal claim
           were before the state courts....       Indeed,
           where petitioner advances in federal court an
           argument based on a legal theory distinct from
           that relied upon in the state court, he fails
           to satisfy the exhaustion requirement.

Wilder v. Cockrell, 274 F.3d 255, 259 (5th Cir. 2001) (internal

quotation marks and citations omitted).



                                     31
     Accordingly, because Banks seeks relief on a legal theory

distinct from that relied on in state court, any Giglio/Napue claim

is unexhausted.       Therefore, under the materiality standard for

Brady, not Giglio/Napue, we must determine whether there is a

reasonable probability that, had the jury been informed of Farr’s

status, it would not have assessed the death penalty.

     As detailed above, much of Farr’s penalty phase testimony was

corroborated, even by Banks.        Obviously, although such testimony

was crucial to the State’s position on future dangerousness, Farr’s

paid informant status would not have directly contradicted his

testimony regarding Banks’ intent.        Instead, evidence of his true

status would only have directly impeached his testimony that he was

not an informant.

     Furthermore,     even   assuming    it   was   not    Banks’    intent   to

actually participate in the planned robberies, it was certainly his

intent to provide Farr with a weapon to do so.                   Neither Farr’s

affidavits nor Deputy Huff’s testimony disputes this.

     And, to the extent Farr’s informant status would have been

useful   as   other   impeachment   evidence,       Farr   had    already   been

impeached on three bases:      that he did not get into an altercation

regarding false prescriptions; that he was not an informant for

Arkansas law enforcement; and that he had not been shot by his

wife.




                                    32
      Accordingly, Farr’s paid informant status, when considered

against the other impeachment evidence about him, and the fact that

much of his testimony concerning the trip to Dallas to retrieve

Banks’ pistol was corroborated, does not present a reasonable

probability that the jury would have found differently concerning

Banks’ future dangerousness.         See Drew v. Collins, 964 F.2d 411,

419   (5th    Cir.    1992)   (holding       evidence    of    an    “incremental

impeachment value” not material), cert. denied, 509 U.S. 925

(1993).   Therefore, the district court erroneously granted relief

based on Brady.

                                       2.

      Relief was also granted on Banks’ ineffective-assistance claim

for the penalty phase.         He did not raise it in his first state

petition; in his second, he claimed only appellate counsel was

ineffective.       In his third state petition, however, he claimed

trial counsel was ineffective for both phases.                 In recommending

denial, the state trial court stated:               Banks received effective

assistance    at     all   trial   stages;    and    counsel    adequately    and

effectively     investigated        “matters        relevant    to     both   the

guilt/innocence and punishment phases”.                 Again, after remanding

for an evidentiary hearing concerning Banks’ Swain and juror bias

claims, the Court of Criminal Appeals accepted the trial court’s

recommendation and denied habeas relief.                 Ex parte Banks, No.

13,568-03 (Tex. Crim. App. 11 Jan. 1996) (unpublished).

                                       33
      To    prevail    on   ineffective-assistance,             Banks    must    prove

deficient-performance        and    resulting         prejudice.      Strickland      v.

Washington, 466 U.S. 668, 687 (1984).                   Performance is deficient

when the representation falls “below an objective standard of

reasonableness”.       Id. at 688.

      Prejudice occurs if counsel’s errors “were so serious as to

deprive the defendant of a fair trial, a trial whose result is

reliable”.     Id. at 687.      Accordingly, Banks must show “there is a

reasonable    probability       that,     but    for    counsel’s     unprofessional

errors, the result of the proceeding would have been different”.

Id. at 694.    “When a defendant challenges a death sentence ..., the

question is whether there is a reasonable probability that, absent

the errors, the sentencer ... would have concluded that the balance

of aggravating and mitigating circumstances did not warrant death”.

Id. at 695 (emphasis added).

      The   district    court      held   counsel’s       performance     “deficient

[because he] fail[ed] to investigate or prepare for the punishment

phase,     despite    ...   available     mitigating       evidence     relating      to

Banks’s background” and “fail[ed] to interview or prepare the

witnesses he ... called and examined” at that phase.                     Banks-USDC,

at   24.     Concerning      prejudice,         the    court   held   there     was   “a

reasonable probability that[,] but for the errors and omissions of

trial counsel at the punishment phase, combined with the State’s

failure to disclose Farr as a paid informant, the outcome of

                                          34
Banks’s punishment phase would have been different”.         Id. at 24-25

(emphasis added; cumulation of error discussed infra).

     The district court first found deficient-performance because

counsel did not “attempt[] to obtain a social history from Banks or

his family”.     Id. at 22.       In addition, it found:    counsel never

questioned Banks’ parents about his childhood; never informed them

they would be called to testify at the penalty phase; and waited

until the guilty verdict was returned to instruct Banks’ mother to

“gather   witnesses   for    the   punishment   phase,   which   began   the

following day”.    Id.

     The district court also based deficient-performance on Dr.

Cunningham’s testimony at the federal hearing; the court stated:

“Banks’s father abused alcohol and subjected Banks to repeated

incidents of brutality and harsh discipline”; as a child, “Banks

witnessed many episodes of cruelty directed at his mother”; and

“Banks ... had no history of violence or alcohol abuse and seemed

to possess a self-control that would suggest no particular risk of

future violence”.     Id. at 23.       According to the district court,

counsel never explored any of these issues and never presented this

evidence to the jury.       Id.

     The district court also found that, prior to trial, counsel

made no attempt to interview Vetrano Jefferson, the State witness.

Id. at 22.     As noted, he was the second of the two penalty phase

witnesses used to establish future dangerousness; he testified


                                      35
Banks had hit him with a gun and threatened to kill him.

     According to the district court, if counsel had interviewed

Vetrano Jefferson, he would have known that

          Jefferson, not Banks, was the aggressor in the
          fight between the two men which occurred the
          proceeding April [the month of the murder].
          The trial testimony of Jefferson and the
          prosecutor’s    argument   left   the    clear
          impression that Banks was the aggressor.

Id. at 23.

                                  a.

     First at issue is whether counsel was ineffective for failing

to obtain Banks’ social history and to investigate mitigating

psychological evidence.

                                  i.

     The two failures are related. Obviously, to determine whether

expert   assistance   was   needed,    counsel    needed       to   know   the

circumstances of Banks’ past.    For example, was he abused;           did he

have mental   deficiencies?     Failure   to     ask   these    and   similar

questions of his parents and others, a failure the State does not

dispute, falls below an objective standard of reasonableness.

Banks has demonstrated deficient-performance.

                                 ii.

     Regarding prejudice, in his brief here, Banks relies on Dr.

Cunningham’s testimony:

          Dr. Cunningham’s testimony showed that [Banks’
          father’s] chronic abuse of alcohol nearly tore
          his family apart, caused ... Banks to endure

                                  36
                 repeated incidents of undeserved brutality and
                 harsh   discipline,   and  to   witness   many
                 instances of extreme cruelty directed at his
                 mother and siblings.

       Dr. Cunningham testified:                  (1) Banks was physically and

mentally abused by his father; (2) he witnessed his father’s abuse

of his mother; (3) his father discharged firearms in the house; (4)

his father was an alcoholic; (5) Banks had a learning disability;

(6) he suffered from a chronic skin disease; and (7) there was a

low risk Banks would commit future acts of violence.

       The       State    maintains    Dr.     Cunningham’s      testimony       is    not

exhausted, because it was not presented in the state proceedings.

There, Banks submitted the affidavits of Dr. Pina, which stated:

his   observations         indicated      Banks     suffered   brain    damage;       and,

ultimately, Banks did “not understand much of what was happening at

his trial, [and] he also did not understand much of what his lawyer

was saying”.         In his amended affidavit, Dr. Pina discussed, inter

alia, Banks’ skin condition and his conclusion that Banks was

“beaten and terrorized by his alcoholic father; at least one such

beating involved young Delma’s being tied to a tree and whipped”.

He    also       stated   that    “some   of      the[]    features   of   ...    Banks’

psychological profile accurately would have predicted that he would

prove        a     ‘safe,’       nonviolent       inmate     during     his      present

incarceration”.

       Banks does not address the exhaustion issue.                    He also stated

that “some of the[] features of ... Banks’ psychological profile

                                             37
accurately would have predicted that he would prove a ‘safe,’

nonviolent inmate during his present incarceration”.

     He fails to show cause for not presenting Dr. Cunningham’s

testimony to the state courts.   This testimony is not exhausted; it

is a significant expansion of the facts and opinions presented in

state court through Dr. Pina’s affidavits.    See Beazley, 242 F.3d

at 264. Accordingly, the only exhausted evidence for this claim is

through Dr. Pina’s affidavits.

     As discussed supra, those affidavits addressed, inter alia,

Banks’ father’s “beating” and “terrorizing” him, including the

tying-whipping incident. Dr. Pina concluded: “[These] experiences

alone would be enough to account for a large part of Mr. Banks’

psychological impairment”.   As for Banks’ skin condition, Dr. Pina

concluded: “[This] illness, compounding the trouble in his parents’

marriage from his father’s alcoholism, impaired the development of

normal and supportive bonding relationships between [Banks] and his

mother and father”.   Accordingly, Dr. Pina concluded:

          Banks learned to see himself as he thought the
          world saw him:     as a ghastly, frightful,
          monstrous eyesore. He understandably went to
          great lengths to hide himself from public view
          throughout life.... His fears of rejection,
          confirmed by his classmates, only led to lower
          self esteem.

     This psychological information, while possibly mitigating,

does not present a reasonable probability that, had the jury been

presented with it, it would have not assessed the death penalty.


                                 38
In other words, in the light of the nature of the murder, Banks’

intent soon thereafter to retrieve a weapon to be used in future

armed robberies, and Banks’ continued denial during the penalty

phase that he committed the murder, there is not a reasonable

probability that this evidence would have changed the outcome of

the penalty phase.          Accordingly, the district court erred in

granting relief on this basis.

                                    b.

       Next at issue is whether counsel was ineffective in failing to

prepare penalty phase witnesses — in particular, Banks’ parents —

to testify.

                                    i.

       Regarding deficient-performance, the State does not dispute

the finding that Banks’ counsel never attempted to prepare Banks’

parents or any of the other defense witnesses offered during the

penalty phase.    We will assume deficient-performance.

                                   ii.

       Regarding prejudice, Banks’ father testified at the federal

hearing that he had a drinking problem in his “younger days” and

“used to get drunk every weekend”.        When asked “what would you have

wanted to tell the jury about your son when they were going to go

back   and   decide   the    sentence   in   this   case”,   Banks’   father

responded: “I would’ve just [told] them to spare his life, because

I know I raised him real nice.          He couldn’t [have done anything]



                                    39
like that.     I still say that”.     In an affidavit submitted in the

state habeas proceedings, Banks’ father stated that, when Banks was

in elementary school, he tied him to a tree and “whipped him with

a leather belt or strap” to discipline him for tricking other

students out of their lunch money.

     Banks’ mother testified at the federal evidentiary hearing:

Banks suffered from a skin disorder, as well as an inferiority

complex; and her husband had a drinking problem while Banks was

growing up. She testified during state habeas proceedings that her

husband “would get drunk and he would get angry and holler at me”.

     Accordingly, at issue is whether, had Banks’ counsel prepared

Banks’ parents to testify to the above described events (including:

(1) the father’s drinking; (2) the tying-whipping incident; and (3)

the skin disorder), there is a reasonable probability the jury

would not have assessed the death penalty.                 There is not a

reasonable probability that, had the jury been presented with this

information,    it   would   not   have   assessed   the   death   penalty.

Therefore, the district court erred in granting relief on this

basis.

     As for the failure to prepare other penalty phase witnesses,

the district court pointed to Kelly’s being intoxicated on the

morning he testified at Banks’ trial and Banks’ counsel’s “speaking

with Kelly for no more than one minute prior to testifying”.

Banks-USDC, at 22.     The district court did not specify, nor does



                                     40
Banks, what Kelly’s testimony would have been had counsel prepared

him.    (In fact, Kelly’s testimony was quite helpful to Banks; it

impeached Farr’s testimony concerning his attempts to illegally

obtain prescription drugs.)       Likewise, for his other penalty phase

witnesses, Banks does not state what their testimony would have

been    had   they   been   prepared.         Accordingly,    there   is   not   a

reasonable probability that, had counsel prepared them, the jury

would not have sentenced Banks to death. Again, the district court

erred in granting relief on this basis.

                                        c.

       Next at issue is whether Banks’ counsel was ineffective for

failing to interview Vetrano Jefferson.

                                        i.

       Concerning deficient-performance, the State does not dispute

that Banks’ counsel never interviewed Jefferson, one of only two

penalty phase witnesses offered by the State.                This failure falls

below    an   objective     standard     of    reasonableness.        Counsel’s

performance was deficient.

                                       ii.

       Again, in holding there was prejudice, the district court

determined that, based on Jefferson’s testimony at the evidentiary

hearing, had Banks’ counsel interviewed him, counsel “would have

known that Jefferson, not Banks, was the aggressor in the fight

between the two men....       The trial testimony of Jefferson ... left



                                        41
the clear impression that Banks was the aggressor”. Banks-USDC, at

23 (emphasis added).        The State        maintains:     that Jefferson’s

testimony    at   the   federal    hearing    is    unexhausted;     and   that,

alternatively, no prejudice resulted from the failure to interview.

                                      (a)

     The State asserts, and Banks does not dispute, that Vetrano

Jefferson’s post-trial testimony was never presented during the

state habeas proceedings.         (The State points out that the unsigned

affidavit of Demetra Jefferson, (Vetrano Jefferson’s sister and the

mother of Banks’ children) was presented during those proceedings.

The district court apparently did not rely on that affidavit, and

Banks does not contend that we should consider it in determining

exhaustion vel non.)

     Banks does not address exhaustion, much less show cause for

why, in the state proceedings, he did not present Jefferson’s

current version of the events.              Accordingly, his testimony is

unexhausted;      without   it,    Banks    has    not   shown   a   reasonable

probability that the outcome of the penalty phase would have been

different, as there is no evidence to contradict Jefferson’s trial

testimony.

                                      (b)

     Even assuming exhaustion, Banks has not shown prejudice.                 At

the penalty phase, Banks admitted he hit Jefferson with a gun and

threatened to kill him.


                                      42
     Although, at trial, Jefferson testified that Banks did so, he

gave no background regarding the altercation.              Jefferson provided

that aspect at the federal hearing:

           I was drunk one day I came over and I was
           threatening my sister and he [Banks] defended
           her. And when he told me to leave her alone,
           I told him I’ll whoop his ass. So we got into
           a fight. And he got a gun and hit me in the
           face with it.

Jefferson testified that he started the fight.

     The only difference between Jefferson’s trial and federal

hearing testimony is his stating Banks hit and threatened to kill

him in response to his “threatening” his (Jefferson’s) sister and

telling Banks that he would “whoop his ass”.               Thus, at issue is

whether,   based    on   this   information,       there    is    a    reasonable

probability   the    jury    would   not    have     answered         the   future

dangerousness issue as it did.

     Needless to say, Banks’ assaulting and threatening to kill

Jefferson is far from a proportional response to verbal threats of

a non-lethal nature.        Based on Banks’ violent response, coupled

with Farr’s testimony about Banks’ post-murder intent to commit, or

at least assist in, armed robberies, had the jury been presented

with Jefferson’s federal testimony, there is not a reasonable

probability   it    would    not   have    found    future       dangerousness.

Accordingly, the district court erred in granting relief on this

basis.

                                     3.

                                     43
     As stated, relief should not have been granted on the basis of

either ineffective-assistance or Brady error.   But, the magistrate

judge seems to have grounded her recommendations with respect to

both claims on cumulative error.

     For the Brady claim, the magistrate judge recommended that the

withheld information was material because

           the State’s failure to disclose Farr’s
           informant status, coupled with trial counsel’s
           dismal performance during the punishment
           phase, undermined the reliability of the
           jury’s verdict regarding punishment. There is
           a reasonable probability that[,] but for the
           foregoing, the results of the punishment phase
           of the trial would have been different.

Banks-USDC, at 44 (emphasis added).

     For the ineffective-assistance claim, regarding prejudice, the

magistrate judge stated:

           This is not a case where the evidence
           presented by the State compels the conclusion
           that the specific evidence offered by Banks
           would not have made any difference in the
           outcome with respect to punishment. There is
           a reasonable probability that[,] but for the
           errors and omissions of trial counsel at the
           punishment phase, combined with the State’s
           failure to disclose Farr as a paid informant,
           the outcome of Banks’ punishment phase would
           have been different.

Banks-USDC, at 24-25 (emphasis added).

     The State objected to the report and recommendation on the

basis that the cumulative error doctrine had been improperly

invoked.   The district judge overruled the objection, holding that



                                 44
the magistrate judge “separately considered and analyzed” the Brady

and ineffective-assistance claims.             Banks-USDCII, at 5.         The

district judge also overruled the objection on the basis that the

two claims are interrelated, because Banks “contend[ed] that the

State failed   to   produce,      and   his   counsel,   due   to   inadequate

preparation,   contrary      to    Strickland,      failed     to    discover,

substantial evidence regarding Farr’s status”.             Id.      Ultimately,

the district judge noted that

          federal habeas corpus relief may only be
          granted for cumulative errors in the conduct
          of a state trial where (1) the individual
          errors involved matters of constitutional
          dimension rather than mere violations of state
          law; (2) the errors were not procedurally
          defaulted for habeas purposes; and (3) the
          errors so infected the entire trial that the
          resulting conviction violates due process.

Id. at 5-6 (quoting Derden v. McNeel, 978 F.2d 1453, 1454 (5th Cir.

1992) (en banc), cert. denied, 508 U.S. 960 (1993)).

     The magistrate judge did separately address the claims; but,

each holding included the other as the basis of materiality or

prejudice.   The district judge was also incorrect that the claims

were interrelated.      In   discussing       ineffective-assistance,      the

magistrate judge stated:

          The State had a clear duty to correct Farr’s
          untruthful testimony and failed to do so.
          While trial counsel cannot be faulted for
          failing to object on this basis, Farr’s
          inaccurate testimony compounded the otherwise
          inadequate efforts of trial counsel during the
          punishment phase of the trial.


                                        45
Banks-USDC, at 24 (emphasis added).                Although this statement

attempts to link the two claims through cumulative error, it is not

a   conclusion   that   the   Brady       claim   is    related     to   deficient-

performance.

      Instead, it is the opposite.             In fact, in his brief, Banks

makes clear he does not claim counsel was ineffective regarding the

Brady claim: “[Trial counsel’s] failure to impeach ... Farr’s most

damaging sentencing testimony ... cannot be laid at his feet”.

Accordingly, contrary to the district court’s holding that the

claimed errors were related, the magistrate judge’s recommendation

was instead based upon cumulative error.

                                     a.

      Banks, however, did not claim cumulative error in his federal

petition, with the exception of asserting that the “cumulative

effect of the prosecutors’ multifarious violations ... [denied him]

a fundamentally fair trial”.          (Emphasis added.)            Furthermore, he

did not claim cumulative error in any of his three state petitions.

Accordingly the district court’s cumulative error holding is based

on an unexhausted claim.

                                          b.

      Assuming   this   claim   is    exhausted        and   was   raised   in   the

district court, the cumulative error holding fails on the merits.

      Such error is predicated upon the theory that, although

certain errors, considered individually, do not mandate relief,

                                          46
those errors, when considered in the aggregate, do.                      See United

States    v.   Sepulveda,     15   F.3d    1161,    1195-96    (5th      Cir.   1993)

(“Individual errors, insufficient in themselves to necessitate a

new trial, may in the aggregate have a more debilitating effect”.),

cert. denied, 512 U.S. 1223 (1994).

     It goes without saying that, for there to be cumulative error,

there must first be error.           Likewise, where there is no error,

there is nothing to cumulate.             See, e.g., Yohey v. Collins, 985

F.2d 222, 229 (5th Cir. 1993).             Banks has not established error

either under Brady or for ineffective-assistance.                        Therefore,

relief cannot be based on cumulative error.

                                          B.

     Notwithstanding that Banks filed pre-AEDPA for federal relief,

he must obtain a COA, pursuant to AEDPA, in order to appeal a

denied claim.     See Green v. Johnson, 116 F.3d 1115, 1120 (5th Cir.

1997); 28 U.S.C. § 2253(c)(1)(A).              To receive a COA, he must make

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

28 U.S.C. § 2253(c)(2) (emphasis added); see also Barefoot v.

Estelle, 463 U.S. 880, 893 (1983). He must demonstrate: the issues

are subject to debate among reasonable jurists; or a court could

resolve   the   issues   in    a   different       manner;    or   the    questions

presented are worthy of encouragement to proceed further. Slack v.

McDaniel, 529 U.S. 473, 483 (2000); Estelle, 463 U.S. at 893 n.4.



                                          47
     For    claims   denied     on    constitutional        grounds,    Banks     must

“demonstrate    that    reasonable      jurists     would     find   the   district

court’s    assessment    of   the     constitutional        claims   debatable     or

wrong”.     Slack, 529 U.S. at 484.          For those denied on procedural

grounds, Banks must show “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”.    Id. (emphasis added).

     The claims for which he seeks a COA are:                Brady; ineffective-

assistance at the guilt phase; Swain; and sufficiency of the

evidence.

                                        1.

     Banks’ two Brady claims concern Cook:                   suppression of the

earlier-described       transcript      (the      74-page    transcript     of     the

prosecution’s    pretrial,      September      1980   interview      of    Cook   (as

opposed to his April 1980 statement)); and suppression of the

earlier-described alleged deal for his testimony.

                                        a.

     The    district    court    refused     to    consider    the     Brady    claim

concerning the transcript.           The State maintains Banks never raised

this issue in his petition; instead, he included the allegations in

his proposed federal findings and conclusions, in his objection to

the report and recommendation, and in his Rule 59 motion.                         That

                                        48
motion to amend the judgment to discuss this claim was denied.

Such denial is reviewed for an abuse of discretion.              Martinez v.

Johnson, 104 F.3d 769, 771 & n.3 (5th Cir.), cert. denied, 522 U.S.

875 (1997).     Consequently, Banks must show jurists of reason would

find it debatable whether the court abused its discretion.

     Banks insists he pleaded the issue sufficiently by stating

prosecutors “knowingly failed to turn over exculpatory evidence as

required   by    Brady”,   mentioning   Cook   and   Farr   in    that   same

paragraph.      Further, Banks contends the State acknowledged Brady

materials include impeachment evidence.

     The State responds that the Brady claim in Banks’ petition

focused entirely on suppression of evidence concerning another

murder suspect; linking “Cook to Robert Farr and to Texarkana

generally”; revealing Farr’s status as a police informant; and

exposing Cook’s motivation to testify favorably for the State to

avoid prosecution on the unrelated arson charge that could have

resulted in his receiving a life sentence (this different Brady

claim is discussed infra).     The State further asserts Banks should

have sought leave to amend his petition under Federal Rule of Civil

Procedure 15 because issues first raised in objections to a report

and recommendation are not properly before the district court. See

United States v. Armstrong, 951 F.2d 626, 630 (5th Cir. 1992);

United States v. Colon-Padilla, 770 F.2d 1328, 1334 n.6 (5th Cir.



                                   49
1985); see also United States v. Saenz, 282 F.3d 354, 356 (5th Cir.

2002) (Rule 15 appropriate for amending habeas petition).

     Banks contends, however, that discovery and declarations from

Cook and Farr demonstrated their extensive discussions with the

prosecutors,    leading   to   the    production    of   the   transcript.

Following this production, the magistrate judge ruled that one

issue for which evidence would be received concerned, inter alia,

the State’s     “withholding   exculpatory    and   impeachment    evidence

concerning at least two important witnesses — Charles Cook and

Robert Farr”.

     The transcript was introduced at the federal hearing to

establish the Brady claim of suppression of material impeachment

evidence.   Instead of objecting because Banks either was expanding

his due process claim or failed to exhaust his claims in state

court, the State, according to Banks, signaled to the court in pre-

trial submissions that it intended to utilize the transcript and to

call Bowie County ADA Elliot and Deputy Huff to defend against

Banks’ due process claim.

     Accordingly, Banks contends Rule 15(b) applies: “When issues

not raised by the pleadings are tried by express or implied consent

of the parties, they shall be treated in all respects as if they

had been raised in the pleadings”.        FED. R. CIV. P. 15(b).    “[O]nce

issues are presented and argued without objection by opposing

counsel, such issues are tried by implied consent of the parties


                                     50
and are treated as if they had been raised in the pleadings”.

Apple Barrel Productions, Inc. v. Beard, 730 F.2d 384, 389 (5th

Cir. 1984); see also Hardin v. Manitowoc-Forsythe Corp., 691 F.2d

449, 456 (5th Cir. 1982)(“The test of consent is whether the

opposing party had a fair opportunity to defend and whether he

could have presented additional evidence....”).

     Because of the discovery order, the discussion of the issue at

the federal hearing, and Banks’ cross-examination of the State’s

witnesses, Banks maintains the State had sufficient notice that

suppression of the transcript was included within the Brady claim.

Therefore, Banks asserts this claim was before the district court.

See Mongrue v. Monsanto Co., 249 F.3d 422, 427-28 (5th Cir. 2001).

     The State counters: a federal evidentiary hearing is not a

trial for Rule 15 purposes; it opposed Banks’ hearing request,

maintaining, pursuant to Keeney, 504 U.S. at 5-6 (if petitioner

fails   to   develop   claim   in   state   court,   must   show   cause   and

prejudice to receive federal evidentiary hearing), he was not

entitled to one; no authority exists to suggest an evidentiary

hearing waives exhaustion or procedural default defenses or the

requirement that Banks must amend his petition to assert additional

claims; and Banks’ questioning witnesses at an evidentiary hearing

does not substitute for his not amending his petition.

     On this issue, the district court correctly determined:               in

his petition, Banks did not state a Brady claim concerning the


                                      51
transcript, because Banks did not learn of it until three years

after it was filed; Banks should have sought leave to amend his

petition to add this claim; and issues first raised in objections

to a report and recommendation are not properly before the district

court.     See Armstrong, 951 F.2d at 630.               Further, Banks has not

pointed to any authority supporting his contention that, for Rule

15 purposes, an evidentiary hearing equates with a trial.                      Banks

has    failed    to   demonstrate     “jurists      of   reason   would   find    it

debatable whether the district court was correct” in denying his

Rule 59 motion.         Slack, 529 U.S. at 484.

                                        b.

       Also denied was the Brady claim of suppression of assurances

to Cook that, in exchange for favorable testimony, prosecutors

would arrange for dismissal of the pending arson charge.                       Banks

asserts:       the charge was discussed by Deputy Huff and Cook; the

Deputy informed Cook of the filing of habitual offender papers

(life imprisonment); prior to trial, Cook was provided daily

conjugal visits with his wife; and the charge was dismissed the day

after Cook’s testimony because ADA Elliot and Deputy Huff traveled

to Dallas with Cook, where Elliot spoke to the prosecutor there.

       Banks    bases    error   on   the   district     court’s:       relying   on

“misleading evidence” submitted in state court proceedings; and

finding the Dallas County prosecutor stated by affidavit there was

no    prearranged     plea   bargain.       Banks    contends,    and    the   State


                                        52
concedes, that the affidavit shows the prosecutor was involved in

an unrelated forgery prosecution against Cook more than a year

after Banks’ trial. Banks contends the evidence sufficiently shows

the denial of a constitutional right, citing Giglio (suppression of

a deal with prosecution’s witness).

     The State counters that the evidence submitted during the

state habeas proceedings was not misleading. In those proceedings,

in its response to this claim, the State provided affidavits from

Deputy Huff, ADA Elliot, and former Dallas County ADA Byrne.

     Byrne’s 12 May 1992 affidavit states in relevant part: he was

a Dallas County ADA in June 1981 (eight months after Banks’ trial);

he was the prosecuting attorney in State of Texas v. Charles Edward

Cook, No. F81-2140-P; and he had no recollection of any deal in

exchange for Cook’s testimony in Banks’ trial.     Banks explained in

his state court reply that Byrne was the prosecutor for the forgery

conviction following Banks’ trial.      The state habeas court found

“no agreement between the State and ... Cook”.         As noted, state

court   factual   findings   are   entitled   to   a   presumption   of

correctness. See Green, 116 F.3d at 1120 (applying pre-AEDPA law);

28 U.S.C. § 2254(d) (1994).

     Further, the State maintains the district court’s ruling was

not based solely on Byrne’s affidavit but considered all the

evidence:   the arson occurred on 7 May 1980, 13 days after Cook’s

April 1980 statement; Bowie County District Attorney Raffaelli


                                   53
stated at trial no deal had been made in exchange for Cook’s

testimony; ADA Elliott denied any discussions with Cook prior to

Banks’   trial     but,    following     it,   discussed    Cook’s     favorable

testimony   with    a     Dallas    County   prosecutor    when   he   (Elliott)

returned Cook there; the discussion with that prosecutor was not a

reward for Cook, but was done because Elliot wanted that prosecutor

to know Cook had cooperated with law enforcement and hoped the same

would be done for him in cases he was handling.

     The magistrate judge recommended that Cook’s testimony at the

federal hearing provided Banks’ only evidence of a deal between the

State and Cook or of threats to compel his testimony.                    Citing

Spence v. Johnson, 80 F.3d 989 (5th Cir.), cert. denied, 519 U.S.

1012 (1996), the magistrate judge recommended denying relief on

this claim because “the evidence and testimony presented by Cook in

this matter [are] not credible”.             (Emphasis added.)     Needless to

say, testimony from recanting witnesses is properly viewed with

suspicion, because it:             upsets the finality of convictions; is

often unreliable, given suspect motives; and often serves to

impeach cumulative evidence, rather than undermine the accuracy of

the conviction.         Dobbert v. Wainwright, 468 U.S. 1231 (1984)

(Brennan, J., dissenting); May v. Collins, 955 F.2d 299, 314 (5th

Cir.), cert. denied, 504 U.S. 901 (1992); see also Olson v. United

States, 989 F.2d 229, 231 (7th Cir.), cert. denied, 510 U.S. 895




                                        54
(1993); United States v. Provost, 969 F.2d 617, 620 (8th Cir.

1992), cert. denied, 506 U.S. 1056 (1993).

     Banks     disagrees     with   the       district     court’s        credibility

determinations.    It goes without saying that we “accept magistrate

judge’s findings [adopted by the district judge] unless they are

clearly erroneous”.        United States v. Breeland, 53 F.3d 100, 103

(5th Cir. 1995) (“Clear error is especially rigorous when applied

to credibility determinations because the trier of fact has seen

and judged the witnesses.”          (Emphasis added; internal quotation

marks omitted.)).

     The   findings    with   respect         to   Cook   and       ADA   Elliot   were

“plausible in light of the record viewed in its entirety”.                          Id.

(internal quotation marks omitted).                And, again, the state habeas

court’s    identical   finding      is    entitled        to    a    presumption     of

correctness.     See Green, 116 F.3d at 1120.                  Banks has failed to

demonstrate the district court’s assessment of this Brady claim was

debatable or wrong.     See Slack, 529 U.S. at 484.

                                         2.

     For the COA requested for ineffective-assistance at the guilt

phase, see Strickland, 466 U.S. at 668, Banks claims failure: to

investigate; to prepare for trial; and to effectively cross-examine

witnesses.     (In addition, in the heading of one section of his

brief here, Banks states counsel was ineffective for failing “To

Object to Prosecutor’s Repeated Vouching for [Farr’s and Cook’s]

                                         55
Credibility”.     Because of the contemporaneous objection rule, this

failure-to-object prevented Banks from raising a prosecutorial

misconduct claim.        See Jackson, 194 F.3d at 652.                But, because

counsel was unaware of Farr’s paid-informant status and Cook’s

prior   statements,      there    was   no    deficient-performance        in   this

regard. Further, this claim was never raised in district court and

is not properly before us.          See, e.g., Dowthitt v. Johnson, 230

F.3d 733, 741 n.3 (5th Cir. 2000), cert. denied, 532 U.S. 915

(2001); Puckett, 176 F.3d at 814; Hallmark, 118 F.3d at 1079 n.3;

Yohey, 985 F.2d at 226.)

     Obviously, a reasonable attorney engages in “a reasonable

amount of pretrial investigation”, including interviewing potential

witnesses and making an independent investigation of the facts and

circumstances, Bryant v. Scott, 28 F.3d 1411, 1415 (5th Cir. 1994),

and adequately and independently searching for available defense

evidence.    See Moore v. Johnson, 194 F.3d 586, 608 (5th Cir. 1999)

(lack of investigation into evidence in state’s file and evidence

used to counter defendant’s alibi defense).

     Banks also contends an ineffective-assistance claim involves

consideration of the strength of the State’s case.                     Restated, a

weak case for the State means counsel’s ineffective performance has

a much greater impact on the trial’s outcome.                      For example, in

Bryant,   the    court   noted    that       the   lack    of   physical   evidence

connecting      the   defendant    to    the       crime   scene    increased    the

                                         56
importance of pre-trial investigation of eyewitnesses; something a

reasonable lawyer would have realized and acted upon.               28 F.3d at

1418.

       Banks contends that, in the light of the evidence at the

examining hearing four months before trial, his counsel should have

investigated the following:         Banks’ claim he hitchhiked to Dallas,

which contrasted with the State’s contention he drove the victim’s

vehicle there; the victim’s time of death; and Cook’s credibility.

       First, the State’s theory was that, after shooting the victim,

Banks drove his automobile to Dallas.            Investigating the identity

of the individual who (according to Banks) allegedly picked Banks

up and drove him to Dallas or finding ways to attack the State’s

view    that   Banks   drove   an   automobile     with   serious   electrical

problems to Dallas would have been important to Banks’ defense.

       Second, concerning the claimed time of death, Banks arrived in

Dallas    by   8:30    a.m.    on   Saturday.      The    victim    was   killed

approximately 180 miles from Dallas.            Therefore, evidence that the

victim was shot after 5:00 a.m. on Saturday would have been

exculpatory.

       And third, Cook was the only witness to testify that Banks

made incriminating statements.         Obviously, Cook’s credibility and

the reliability of his account of the events of the 12 April

weekend were critical.




                                       57
      Additionally, Banks contends that, other than his counsel’s

(Cooksey’s) speaking to witnesses identified by Banks’ common-law

wife a few days after Cooksey was retained, Cooksey did little

else.      He filed several pretrial motions but did not ask to be

heard pre-trial.     Further, his remarks on the record demonstrate

his lack of preparation:      on the first day of jury selection, “I’m

not   in   possession   of   any   information    on   any   of   the   State’s

witnesses”; after jury selection, prior to further proceedings, “I

don’t have [a list of prosecution witnesses’ prior convictions] yet

and I can not effectively cross-examine these people without it”;

and during those subsequent proceedings,          I’ve “never been to the

[crime scene] ... I don’t even know where it is” and “I haven’t

seen the ballistics report”.

      Banks cites other claimed ineffective-assistance.                 During

trial, in cross-examining two persons who were with the victim on

Friday night, 11 April, Hicks and Bungardt (he didn’t cross-examine

the latter), Cooksey failed to develop the full extent of the

problems with the victim’s automobile.           Counsel made no effort to

attack Fisher’s recollection of two gunshots as unreliable because

of Fisher’s groggy state, with Fisher’s testimony being the State’s

only evidence of time of death.            (In closing arguments, Cooksey

stated:     Fisher “certainly told you [the jury] the truth, without

a doubt”.)     He did not cross-examine Deputy Huff.         And, his cross-




                                      58
examination of the medical examiner pertained only on the amount of

alcohol consumed by the victim prior to his death.

     Banks contends: had Cooksey reasonably prepared for trial, he

could have demonstrated the autopsy report and crime scene evidence

suggested time of death was 12 to 24 hours after Fisher reported

hearing the gunshots.       In support, Banks notes:           rigor mortis

appears very soon after death, usually rendering the body stiff

within 12 to 24 hours and usually waning about 36 hours following

death; nevertheless, Deputy Huff and Dr. DiMaio observed full rigor

mortis in the body, even though Deputy Huff did not observe the

victim until approximately 54 hours after Fisher heard the loud

noises and Dr. DiMaio observed him roughly 24 hours after Deputy

Huff.   Banks also notes:    72 hours after death, DiMaio should have

observed a drying of the lips, a graying discoloration of the lower

abdomen, and clouding of the corneas; however, although DiMaio

looked for these symptoms, he found none.

     Likewise, Banks contends reasonable preparation would have

resulted in:   having a mechanic testify about the unreliability of

the victim’s automobile; exposing the difference between Hicks’ and

Bungardt’s testimony about a defective car and Cook’s testimony

never   mentioning   any   problems    with   it   (in   the   state   habeas

proceedings, the court concluded it was highly unlikely the vehicle

described by Hicks and Bungardt could have been driven to Dallas




                                      59
without major repair work); and adequately cross-examining arguably

non-hostile prosecution witnesses.

     Accordingly, Banks contends he has shown deficient-performance

and prejudice considering his counsel’s approach to the entire

trial, including the witnesses and readily available evidence that

could have provided the jury with reasonable doubt.

     In countering these sweeping assertions, the State reminds

that, on the merits, Banks must show “counsel made errors so

serious that [he] was not functioning as the ‘counsel’ guaranteed

the defendant by the Sixth Amendment”.     Strickland, 466 U.S. at

687; see also Bell v. Cone, 122 S. Ct. 1843 (2002); Lackey v.

Johnson, 116 F.3d 149, 152 (5th Cir. 1997). Judicial scrutiny must

be “highly deferential”.    Strickland, 466 U.S. at 689; see also

Bell, 122 S. Ct. at 1852.   Again, for prejudice, Banks must (on the

merits) demonstrate to a reasonable probability that, but for

counsel’s errors, the result of the proceeding would have been

different.   Williams v. Taylor, 529 U.S. 362, 391 (2000) (citing

Strickland, 466 U.S. at 694).   (Of course, to obtain a COA, he must

make only a substantial showing of ineffective assistance.)

     Concerning time of death, the State contends that, at the

evidentiary hearing, Banks’ expert conceded (as discussed supra) it

was possible the victim was killed at the time the State theorized.

Accordingly, the State asserts Banks failed to prove the result of

the trial would have been different.

                                 60
     Concerning the victim’s automobile, the State contends Banks

failed to sufficiently plead these claims with specificity and to

show what evidence such investigations would have revealed.                         Banks

must state with specificity what the investigation would have

revealed and how it would have altered the outcome.                          See United

States v. Green, 882 F.2d 999, 1003 (5th Cir. 1989).

     The     State    contends     Banks       merely       makes     conclusory     and

speculative     allegations        which        do     not     sufficiently         raise

constitutional       issues   to   justify         relief.      See    Blackledge     v.

Allison, 431 U.S. 63, 74 (1977); Barnard v. Collins, 958 F.2d 634,

643 n.11 (5th Cir. 1992), cert. denied, 506 U.S. 1057 (1993); Ross

v. Estelle, 694 F.2d 1008, 1012 (5th Cir. 1983).                             The State

maintains the district court also implicitly rejected these claims

because they were improperly raised in Banks’ proposed findings and

conclusions rather than in his habeas claim; and, considering

Banks’ conclusory claims, this implicit rejection was not an abuse

of discretion. See United States v. Cervantes, 132 F.3d 1106, 1111

(5th Cir. 1998) (refusal to consider claims raised by unauthorized

amendments reviewed for abuse of discretion) (citing United States

v. Armstrong, 951 F.2d 626, 630 (5th Cir. 1992); Barksdale v. King,

699 F.2d 744, 747 (5th Cir. 1983)).

     For   purposes      of   obtaining        a     COA,    Banks    does    not   show

reasonable    jurists    would     find    it      debatable    whether       Cooksey’s

performance was deficient.         Cooksey did not personally investigate

                                          61
certain aspects of the case; but, his investigator did conduct an

investigation,   which   included    visiting    the    crime    scene    and

interviewing witnesses.     Further, although Banks can speculate

about Cooksey’s cross-examination techniques, Cooksey has never

been asked to explain these aspects of his trial strategy (even

though, in state habeas proceedings, he did provide testimony

concerning Banks’ Swain claim).

     Moreover, for purposes of obtaining a COA, and assuming

deficient-performance in investigation, trial preparation, and

cross-examination, Banks has failed to show, for the prejudice

prong, that “reasonable jurists would find the district court’s

assessment ... debatable or wrong”.      Slack, 529 U.S. at 484.         Banks

has not made a substantial showing that the trial-result would be

different.   His expert conceded the time of death could have been

as the State suggested; Banks does not show that the alleged errors

would have changed the jury’s consideration of Cook’s testimony

concerning   Banks’   confession    to   him;   and    Banks’   allegations

concerning problems with the victim’s automobile are too conclusory

and do not show how that evidence could have provided reasonable

doubt.

                                    3.

     Near the end of jury selection, Banks passed Cooksey a note:

“[W]e need[] black[s]”. Cooksey responded: “State will strike all

blacks”.   Indeed, the State used four peremptory strikes to remove


                                    62
all qualified blacks from the jury pool.                 Accordingly, Banks

presents a Swain claim.

     As noted, concerning this claim, no contemporaneous objection

was made at trial.      Banks contends it is not procedurally barred by

counsel’s failure to raise it at trial because it was rejected on

the merits in state habeas proceedings and because the State waived

the defense by not raising it in a timely manner and by electing to

resolve the claim on the merits.              Further, Banks asserts:         we

should not defer to the state court’s ruling; and he has made a

substantial showing of the denial of a constitutional right, namely

that Bowie County prosecutors engaged in the systematic exclusion

of black jurors continuing through Banks’ trial.

     In his first state habeas application, Banks pleaded a Swain

claim.      The State did not claim untimeliness; and the court

recommended its denial on the merits, finding “no systematic

exclusion    by   the   State   of   any    black   veniremen   or   jurors   in

contravention of [Banks’] rights”. On appeal, the State again made

no waiver or procedural default assertion; the claim was denied

based on the trial court’s findings.          Ex Parte Banks, No. 13,568-01

(Tex. Crim. App. 1984) (unpublished).

     In his third state application, Banks again raised his Swain

claim; the State urged denial on the merits; and the trial court

recommended denial.       On appeal, the State claimed, for the first




                                       63
time, that Banks defaulted his Swain claim because Cooksey failed,

at trial, to make a contemporaneous objection.

     On remand to the trial court for an evidentiary hearing on,

inter alia, the Swain claim, that court found Cooksey failed to

raise the    claim   because   he   did   not    believe   the   prosecutors’

practices showed a Swain violation, and consequently, the claim was

procedurally barred.    In addition, the court reached the merits of

the claim.   As discussed supra, although it concluded the evidence

showed a prima facie case of systematic exclusion, it found the

peremptorily-struck four black jurors were removed for non-racial

reasons.    On appeal, the claim was denied for the reasons given by

the trial court.     Ex Parte Banks, No. 13,568-03 (Tex. Crim App.

1996) (unpublished).

     Banks contends the district court incorrectly found Texas’

contemporaneous objection rule is an adequate and independent

ground for procedural default, claiming the rule was not “firmly

established and regularly followed” at the time of the default.

Ford v. Georgia, 498 U.S. 411, 423-24 (1991) (quoting James v.

Kentucky, 466 U.S. 341, 348 (1984)).            The inquiry is whether the

rule “is strictly or regularly applied evenhandedly to the vast

majority of similar claims”, Amos v. Scott, 61 F.3d 333, 339 (5th

Cir.) (emphasis removed), cert. denied, 516 U.S. 1005 (1995), or

“identical claims”, id. at 343; see also           Finley v. Johnson, 243



                                     64
F.3d 215, 218 (5th Cir. 2001); Martin v. Maxey, 98 F.3d 844, 847-48

(5th Cir. 1996).

     Banks asserts that, although Texas courts regularly apply the

contemporaneous objection rule to other types of claims, they have

not strictly and regularly applied it to Swain claims.         See, e.g.,

Hogue v. Johnson, 131 F.3d 466 (5th Cir. 1997) (applying rule to

unobjected-to introduction of prior convictions), cert. denied, 523

U.S. 1014 (1998); Clark v. Collins, 19 F.3d 959 (5th Cir.) (Batson

v. Kentucky, 476 U.S. 79 (1986), claim), cert. denied, 513 U.S.

1036 (1994); Harris v. Collins, 990 F.2d 185, 187 (5th Cir.)

(Batson claim), cert. denied, 509 U.S. 933 (1993).         Banks contends

the court in Ex Parte Haliburton, 755 S.W.2d 131, 135 n.5 (Tex.

Crim. App. 1988), reached the merits of a Swain claim even though

the defendant failed to show he timely objected at trial; and, in

Chambers v. State, 568 S.W.2d 313 (Tex. Crim. App. 1978), cert.

denied, 440 U.S. 928 (1979), although it was unclear the issue was

preserved because it was not raised in the new trial motion, the

court   addressed   the   merits   of   a   claim   that    blacks   were

systematically excluded from jury service.      Banks also contends a

Batson claim is not a “similar claim” because Batson claims solely

consider a prosecutor’s use of peremptory strikes in individual

trials and depend on contemporaneous credibility determinations to

explain a discriminatory pattern of strikes; on the other hand,



                                   65
Swain claims look at prosecutors’ historical, systematic, and

continued discriminatory jury selection practices.

     Banks also contends:         the Supreme Court has never held its

procedural default jurisprudence applies to Swain claims; they are

unlike any other a defendant might raise at trial because the claim

requires collection of extensive historical material which is hard

to collect prior to trial; and, indeed, the reason the Court

rejected Swain for Batson was because the facts necessary to

support a Swain claim were not reasonably available at trial.

     The    State   correctly     contends    federal     habeas    relief     is

precluded   when    the   last   state   court   judgment    relies    upon    an

independent   and    adequate    state    procedural      bar.      Coleman    v.

Thompson, 501 U.S. 722, 729-30 (1991); Harris v. Reed, 489 U.S.

255, 264 & n.10 (1989) (even if the state court reaches the merits

of the claim); Buxton v. Collins, 925 F.2d 816, 821 (5th Cir.),

cert. denied, 498 U.S. 1128 (1991).

     Banks’   contention     that   Texas    does   not    firmly    apply    the

contemporaneous objection rule to Swain claims is undermined by

case law.     See Trevino v. Texas, 503 U.S. 562, 566-67 (1992)

(failure to challenge in some form the exclusion of black jurors

implicates contemporaneous objection rule); Teague v. Lane, 489

U.S. 288, 297 (1989).      Texas courts regularly applied the rule in

the pre-Batson, Swain era. Williams v. State, 773 S.W.2d 525, 534-



                                     66
35 (Tex. Crim. App. 1988), cert. denied, 493 U.S. 900 (1989)

Mathews v. State, 768 S.W.2d 731, 733 (Tex. Crim. App. 1989).

     In response to the cases cited by Banks, the State contends

Chambers assumed, without deciding, that the issue was properly

before it, see 568 S.W.2d at 328,          but stated the failure to object

waives the right and bars consideration on appeal.                 Id. at 319.

Also, Ex Parte Halliburton merely stated:                “[W]e could not say

prior to applicant’s evidentiary hearing that he needed to object

at trial in order to preserve Swain error”.             755 S.W.2d at 135 n.5.

Further,    “an   occasional   act   of    grace   by    the   Texas   court   in

entertaining the merits of [a] claim that might have been viewed as

waived by procedural default” does not constitute failure to

regularly apply the rule.            Hogue, 131 F.3d at 487 (internal

quotation marks omitted); Bass v. Estelle, 705 F.2d 121, 122-23

(5th Cir.), cert. denied, 464 U.S. 865 (1983).

     Additionally, the State asserts the contemporaneous objection

rule is applied to substantially similar claims because Batson

merely changed the quantum of proof rather than the type claim

asserted.    See, e.g., Andrews v. Collins, 21 F.3d 612, 621 (5th

Cir. 1994) (Batson claim), cert. denied, 513 U.S. 1114 (1995);

Harris v. Collins, 990 F.2d 185, 187 (5th Cir.) (same), cert.

denied,    509 U.S. 933 (1993); Jones v. Butler, 864 F.2d 348, 369-70

(5th Cir. 1988) (pre-Batson, Swain provided a means to raise a


                                      67
Batson-type claim.), cert. denied, 490 U.S. 1075 (1989); see also

Wright v. Hopper, 169 F.3d 695, 709 (11th Cir.) (Swain claim

procedurally defaulted for failure to object), cert. denied, 528

U.S. 934 (1999).

      Finally,    Banks       contends    the      State   waived       the    procedural

default defense by not timely raising it.                  (Banks also asserts the

State’s failure to raise this defense shows the contemporaneous

objection rule is not a firmly established rule for Swain claims.)

“[P]rocedural default is normally a ‘defense’ that the State is

‘obligated to raise’ and ‘preserv[e]’ if it is not to ‘lose the

right to assert the defense thereafter.’”                  Trest v. Cain, 522 U.S.

87, 89 (1997) (quoting Gray v. Netherland, 518 U.S. 152, 166

(1996)); see also Engle v. Isaac, 456 U.S. 107, 124 n.26 (1982)

(“[A]   State’s        plea   of    default        may   come     too    late     to    bar

consideration of the prisoner’s constitutional claim”.).                           In the

exhaustion context, the Supreme Court rejected a rule allowing, or

even encouraging, “the State to seek a favorable ruling on the

merits in the district court while holding the exhaustion defense

...   for   use   on    appeal      [because       the   rule   might]        prolong   the

prisoner’s    confinement          for   no    other     reason   than    the     State’s

postponement of the [] defense....” Granberry v. Greer, 481 U.S.

129, 132 (1987).

      A State waives a procedural bar defense by failing timely to

raise it.    Fisher v. Texas, 169 F.3d 295 (5th Cir. 1999)(waiver for

                                              68
failure to raise the defense in district court); Emery v. Johnson,

139 F.3d 191, 195 n.4 (5th Cir. 1997) (waiver for failure “to plead

procedural bar in the district court”) (citing United States v.

Marcello, 876 F.2d 1147, 1153 (5th Cir. 1989)), cert. denied, 525

U.S. 969 (1989); see also Cooper v. State, 791 S.W.2d 80 (Tex.

Crim. App. 1990) (en banc) (state’s obligation to raise the issue

before the appellate court); Tallant v. State, 742 S.W.2d 292, 294

(Tex. Crim. App. 1987) (en banc) (“[T]he State must call to the

attention of the court of appeals in orderly and timely fashion

that an alleged error was not preserved.”).                On the other hand,

waiver is averted if the State raises the default “at any point in

the district court proceedings”.            Wiggins v. Procunier, 753 F.2d

1318, 1321 (5th Cir. 1985) (emphasis added).              It is undisputed the

State then raised the issue; therefore, in this regard, Banks’

assertion fails.

     Assuming he defaulted on his Swain claim, Banks contends:                he

has shown sufficient cause and prejudice.             See, e.g., Harris v.

Reed,   489   U.S.   255   (1989).     He    maintains     ineffectiveness    of

counsel, Murray      v.    Carrier,   477   U.S.   478,    488-89   (1986),   or

conflict of interest, Cuyler v. Sullivan, 446 U.S. 335 (1980),

provide sufficient cause.        Banks contends his trial counsel was

ineffective for: failing to object; failing to conduct a reasonable

investigation; and misunderstanding his burden of proof.



                                      69
     Failure     to     make      a   contemporaneous            Swain     objection       may

constitute deficient-performance, providing cause for procedural

default in the light of the evidence supporting the Swain claim.

Jackson    v.   Herring,         42   F.3d    1350,       1358     (11th    Cir.),       cert.

dismissed, 515 U.S. 1189 (1995).               In the state habeas proceedings,

Cooksey testified he “probably would have” raised a Swain objection

had he possessed historical evidence of a practice of systematic

exclusion of black venire members and would have raised the claim

if there had been even a “scintilla of success”.                           Banks contends

Cooksey, as the former District Attorney, was uniquely aware of the

practice.

     During the last four years of Cooksey’s tenure as District

Attorney, 94% of black venire members were struck compared with

approximately     20%       of   whites.          In    this    regard,    at     the    state

evidentiary     hearing,         Cooksey     conceded      the     District       Attorney’s

striking    practice,        including        at       Banks’    trial,     was    racially

disproportionate        –    over     92%    of    black        venire    members       struck

peremptorily compared to less than 20% of whites.                         Given Cooksey’s

knowledge, Banks contends Cooksey’s failure to object was not a

reasonable tactical decision.

     Banks further contends Cooksey failed to conduct a “reasonable

investigation” into the viability of a Swain claim.                             Strickland,

466 U.S. at 691.      The state habeas court found Cooksey:                        was aware

of Swain; evaluated his chances for a successful challenge; and


                                             70
concluded he could not prevail.              On the other hand, it also found

the statistics presented “a prima facie case” of exclusion.                    Banks

contends:      the record is devoid of any evidence of investigation

into the merits of a Swain claim; and Cooksey’s testimony was that

he did not raise a Swain claim                 because, in an earlier case

prosecuted by Raffaelli, he (Cooksey) noticed two blacks were on

the jury, even though he conceded on cross-examination that Swain

required an examination of the striking practice over a series of

cases.      Banks    maintains       these    inconsistencies,       coupled   with

counsel’s assurance, during jury selection, that the “State will

strike all blacks”, suggests Cooksey’s failure to investigate was

not sound trial strategy and fell below “the range of competence

demanded of attorneys in criminal cases”.                   Cook v. Lynaugh, 821

F.2d 1072, 1078 (5th Cir. 1987) (quoting McMann v. Richardson, 397

U.S. 759, 771 (1970)).

     Again, counsel “must have a firm command of the facts of the

case as well as the governing law before he can render reasonably

effective assistance”. Ex Parte Welborn, 785 S.W.2d 391, 393 (Tex.

Crim. App. 1990).          Cooksey had an erroneous view of the Swain

burden of proof.          He believed statistical proof was not useful

under the circumstances; and that, beyond establishing a prima

facie    case,      the    defendant         must   prove     the     prosecutor’s

discriminatory intent.         Establishing a prima facie case, however,

shifts   the    burden    to   the    State    to   rebut    the    presumption   of

                                         71
discrimination.     Willis v. Zant, 720 F.2d 1212, 1220-21 (5th Cir.

1983), cert. denied, 467 U.S. 1256 (1984).

     Because the failure to object resulted in an all-white jury,

Banks contends Cooksey’s deficient-performance prejudiced him.

Systematic    exclusion   of   blacks    from   petit   juries   slants      the

judicial process unfairly against black defendants.            See Hollis v.

Davis, 941 F.2d 1471, 1482 (11th Cir. 1991) (“[W]e would have

greater confidence in the [result reached by a racially mixed

jury], finding much less probability that racial bias had affected

it”.), cert. denied, 503 U.S. 938 (1992); see also Cassell v.

Texas, 339 U.S. 282 (1950) (Jackson, J. dissenting).

     The State responds:        the state habeas court found Cooksey

evaluated his chances of success and determined a Swain claim would

have been frivolous; and, because Texas courts have repeatedly

rejected Swain claims, see Andrews, 21 F.3d at 623; Evans v. State,

622 S.W.2d 866 (Tex. Crim. App. 1981), deciding to forgo the Swain

claim   was   not   constitutionally     deficient,     see   id.;   Wiley    v.

Puckett, 969 F.2d 86, 102 (5th Cir. 1992); Koch v. Puckett, 907

F.2d 524, 526 (5th Cir. 1990).          Because Texas courts repeatedly

reject Swain claims, the State also contends any objection would

have been unsuccessful, which prevents Banks from demonstrating

prejudice.

     Also, Banks claims Cooksey had a conflict of interest because

a Swain claim would implicate him in his prior role as District

                                    72
Attorney.   To warrant relief from procedural default, however, the

conflict must have been actual, not merely speculative. Barrientos

v. United States, 668 F.2d 838, 841 (5th Cir. 1982).               Actual

conflict exists when “a defense attorney owes duties to a party

whose interests are adverse to those of the defendant”.        Zuck v.

Alabama, 588 F.2d 436, 439 (5th Cir.), cert. denied, 444 U.S. 833

(1979); see also United States v. Martinez, 630 F.2d 361 (5th Cir.

1980) (previous   representation    of   prosecution   witness),    cert.

denied, 450 U.S. 922 (1981); Stephens v. United States, 595 F.2d

1066 (5th Cir. 1979) (concurrent representation of prosecution

witness).   Banks contends the conflict in this case was exposing a

practice that Cooksey had engaged in for years.

     The State responds that Banks has failed to show a conflict of

interest under Cuyler, 446 U.S. at 348.     See Hernandez v. Johnson,

108 F.3d 554, 559-60 (5th Cir.) (assuming without deciding the

Cuyler standard applies when a former district attorney represents

a defendant), cert. denied, 522 U.S. 984 (1997).       Banks must show:

trial counsel’s situation was “inherently conducive to divided

loyalties”, Perillo v. Johnson, 205 F.3d 775, 801 (5th Cir. 2000)

(internal quotation marks omitted); and counsel did not pursue the

strategy because of the conflict,        Hernandez, 108 F.3d at 560.

Because mere conclusory allegations are insufficient, Perillo, 205

F.3d at 802, Banks has failed to show any evidence in the record

that Cooksey failed to make the Swain objection because of his

                                   73
former position.      See also Mickens v. Taylor, 122 S. Ct. 1237

(2002).

     For COA purposes, the Swain claim was procedurally defaulted.

Texas courts regularly apply the contemporaneous objection rule to

Swain, as well as to similar Batson, claims.              As for cause and

prejudice to overcome the default, although it may be that counsel

was deficient in not contemporaneously raising this claim, Banks

has failed to show prejudice sufficient to overcome the bar.             In

the light of the state court’s finding of a prima facie Swain

violation, the State proved that, for Banks’ trial, no black venire

member was excluded because of his or her race.           Consequently, for

his Swain claim, Banks fails to make a substantial showing of the

denial of a constitutional right.

                                      4.

     Banks    contends      the   evidence   fails   to   establish   future

dangerousness beyond a reasonable doubt.         Jackson v. Virginia, 443

U.S. 307 (1979).      At trial, the State relied upon the underlying

facts   of   the   crime,   Vetrano   Jefferson’s    testimony   of   Banks’

unprovoked assault with a pistol, and Farr’s testimony that Banks

sought to reclaim his pistol in Dallas in order to commit armed

robbery and, if necessary, eliminate witnesses.            Banks maintains

evidence revealed in this appeal establishes: Jefferson’s testimony

as to who was the aggressor was misleading; Farr’s testimony was




                                      74
false; and, without their testimony, the evidence did not establish

future dangerousness.

     Although Banks contested sufficiency of the evidence in each

of his three state habeas petitions, he did not do so on direct

appeal.   The last state court judgment on this issue (third state

habeas proceeding) held his claim meritless and expressly and

unambiguously applied a procedural bar:

               The evidence is sufficient to support an
          affirmative answer to the second [future
          dangerousness] special issue. This claim is
          procedurally barred. Sufficiency of evidence
          may not be raised in collateral attack. Ex
          parte Brown, 757 S.W.2d 367 (Tex. Crim. App.
          1988); Ex parte Williams, 703 S.W.2d 6[74]
          (Tex. Crim. App. 1986).

Ex Parte Banks, No. 80-F-86-102-C (D. Ct. Bowie County 22 Feb.

1993) (unpublished)(emphasis added). The Court of Criminal Appeals

summarily accepted the findings and conclusions.      See Ex Parte

Banks, No. 13,568-03 (Tex. Crim. App. 11 Jan. 1996) (unpublished).

     Accordingly, the district court held the claim defaulted. See

Coleman, 501 U.S. 739-30.   As discussed supra, even if the state

court reaches the merits of a claim, federal courts must honor an

independent and adequate procedural bar.   Harris, 489 U.S. at 264

n.10; Corwin v. Johnson, 150 F.3d 467, 473 (5th Cir.), cert.

denied, 525 U.S. 1049 (1998).   The state court’s invocation of the

bar must be clear and express; and the bar must be followed

regularly by state courts and applied to a majority of identical or


                                 75
similar claims.   Finley, 243 F.3d at 218; Martin, 98 F.3d at 847-

48; Amos, 61 F.3d at 341.

     Texas courts regularly apply this bar to claims raised for the

first time on collateral review.    See, e.g., Ex parte Sanchez, 918

S.W.2d 526, 527 (Tex. Crim. App. 1996).     And, as a bar to federal

habeas review, our court has similarly acknowledged Texas courts’

application of this bar.    E.g., Renz v. Scott, 28 F.3d 431, 432

(5th Cir. 1994); Clark v. State of Texas, 788 F.2d 309, 310 (5th

Cir. 1986).

     Nevertheless, Banks asserts: because “state courts repeatedly

forgave [the failure to raise the claim on direct appeal] and

reviewed the claim on its merits during [his] first and second

[state] proceedings”, the state court’s default determination, in

his third habeas proceeding, was actually a determination that the

court would not again review the merits.     This contention ignores

the clear language of the above-quoted last state court decision,

applying the procedural bar.

     Banks further submits that, even if the claim is defaulted,

given the record before the court, a miscarriage of justice will

occur in the absence of review.    Calderon v. Thompson, 523 U.S. 538

(1998); Schlup v. Delo, 513 U.S. 298 (1995).     According to Banks,

at the federal evidentiary hearing:      Farr testified his penalty

phase testimony was a misrepresentation, because Banks had no plans

to commit further crimes; Vetrano Jefferson testified his trial

                                  76
testimony was misleading, because he was the aggressor and Banks

acted primarily to protect his pregnant common-law wife; and Banks’

unrebutted time of death evidence made it unlikely he could have

committed the crime.         Banks contends the new evidence shows by

clear and convincing evidence that, had the jury known of this

evidence, he would not have been convicted or sentenced to death.

See Reasonover v. Washington, 60 F. Supp. 2d 937 (E.D. Mo. 1999)

(key witness testimony fabricated and another witness received

sentencing leniency); Richter v. Bartee, 973 F. Supp. 1118 (D. Neb.

1997) (new evidence that complainant fabricated sexual assault).

       As the State correctly observes, the miscarriage of justice

exception   is    reserved    for   cases     of   factual    innocence.      See

Rodriguez v. Johnson, 104 F.3d 694, 697 (5th Cir. 1997).                The State

contends:   the testimony by Farr and Vetrano Jefferson had nothing

to do with whether Banks murdered the victim; Banks failed to

identify    recanted    testimony    from     Cook    showing    Banks’    actual

innocence; and Banks’ expert admitted it was possible the victim

was shot when Fisher reported hearing the loud noises.

       For COA purposes, the last state court to address Banks’

sufficiency claim found it procedurally barred; Banks has failed to

show   cause     and   prejudice    to    excuse     that    default;   and   the

miscarriage of justice exception does not apply. In sum, Banks has

not shown that jurists of reason would find it debatable that the

district court was incorrect in ruling Banks defaulted this claim.


                                         77
                                   III.

     For the foregoing reasons, we DENY the COA requests; REVERSE

and DENY   the   grant   of   habeas    relief;   and,   therefore,   RENDER

judgment for Respondent.

  COA and HABEAS RELIEF DENIED; JUDGMENT REVERSED and RENDERED




                                       78
