                       REVISED JUNE 16, 2000
                  UNITED STATES COURT OF APPEALS
                       For the Fifth Circuit



                           No. 99-10446



                      ADOLPHO GIL HERNANDEZ,

                                               Applicant-Appellant,


                              VERSUS


           GARY JOHNSON, DIRECTOR OF THE INSTITUTIONAL
      DIVISION OF THE TEXAS DEPARTMENT OF CRIMINAL JUSTICE,

                                               Respondent-Appellee.




          Appeal from the United States District Court
               For the Northern District of Texas
                           May 30, 2000


Before EMILIO M. GARZA, DeMOSS, and BENAVIDES, Circuit Judges.

DeMOSS, Circuit Judge:

     Applicant-Appellant Adolpho Gil Hernandez, a Texas death row

inmate, whose petition for habeas corpus relief and request for a

Certificate of Appealability (“COA”) were both denied by the

federal district court, now seeks a COA from this Court pursuant to

28 U.S.C. § 2253(c)(2).   For the reasons set forth below, we deny

the request for a COA.
                                 I. BACKGROUND

     On the evening of September 30, 1988, at about 5:00 p.m.,

Hernandez   and   a    friend,   Mike   Martinez,    went   to    the   home   of

Margarita Davila in Slaton, Texas, with an eight-pack of “pony”

beers.   The three shared the beers, with Davila drinking one and

the two men consuming the rest.         While at the residence, Hernandez

played baseball with Davila’s young son, teaching him how to swing

a baseball bat.       Around 7:30 p.m., Hernandez and Martinez decided

to leave the residence to purchase more beer.               Before leaving,

Hernandez took the baseball bat despite Davila’s request to leave

the bat alone.

     Upon purchasing a six-pack of beer, Hernandez and Martinez

went to the home of Kenneth Hodges, where they shared the six-pack

with Hodges and another adult male.              Eventually, Hernandez and

Martinez decided to leave Hodges’ home.             The two walked together

for a short time before they separated.           Martinez went to another

friend’s home to watch the Olympics.         Hernandez still carried the

bat from Davila’s home.

     Around 9:00 p.m., Hernandez approached the home of Ysidoro

Maldonado, a young boy who lived with his grandmother in a house

located in the same area of Slaton as the residence of Elizabeth

Alvarado, who ultimately became Hernandez’ victim.               Upon hearing a

knock, Ysidoro looked out the window to see who was on the porch.

Unable to see who was there, Ysidoro opened both the front and



                                        2
screen doors. Recognizing Hernandez, Ysidoro asked what he wanted;

whereupon, Hernandez swung the bat at the young boy.            Ysidoro was

able to close the door to avoid being struck by the bat, but the

bat broke the screen door.        Hernandez ran off in the general

direction of Alvarado’s home.

       A short time later, Josie Vargas, who is Alvarado’s daughter,

and Reuben Alvarado (“Reuben”), Alvarado’s great-grandson, saw

Hernandez coming out of Alvarado’s kitchen. Both Vargas and Reuben

noticed that Hernandez was carrying Alvarado’s purse. In addition,

Vargas testified that Hernandez was carrying a baseball bat.           When

Hernandez saw the two individuals outside the house, he retreated

back inside and then exited out the front door with the purse and

bat    in   hand.   Waiting   outside   the   house,   Vargas   confronted

Hernandez, who stared at her and asked if she was alone.           When she

replied that she was, Hernandez raised the bat as if he was about

to strike her, whereupon Vargas grabbed hold of the bat and

wrestled with Hernandez until she was able to get the bat away from

him.    Vargas then chased Hernandez, striking him with the bat,

until he escaped.

       Thereafter, Vargas and Reuben entered the home and checked on

Alvarado.     They found her with her right arm noticeably broken and

beaten beyond recognition.     Nevertheless, she was apparently alive

as she was still breathing.     Medical personnel attempted to revive

Alvarado, but she was pronounced dead upon arrival at Lubbock

General Hospital.

                                    3
      Alvarado was found to have both bones broken in her right

wrist.      Furthermore, she had lacerations on her head, a broken

nose, as well as a depressed fracture of the skull.                         Alvarado had

suffered a massive subdural hemorrhage and had endured eight blows

to her head: three to the right side, two to the top, one to the

side,    and      two    to    the   left.         According     to   the    pathologist

responsible for Alvarado’s autopsy, the several hits about her head

caused Alvarado’s death.

      Not    more       than   an    hour   after       the   beating,   Hernandez    was

apprehended, hiding behind a tree.                      After a jury trial, he was

convicted of capital murder on January 31, 1990.                         On February 5,

1990,    after      a     separate      hearing         on    punishment,     the    jury

affirmatively answered the two special issues submitted to it

pursuant     to    former      Texas    Code       of   Criminal   Procedure    article

37.071.1    As a result, punishment was assessed at death.

      Hernandez’ conviction and sentence were automatically appealed

to the Texas Court of Criminal Appeals, which affirmed both on June

29, 1994.      The United States Supreme Court denied his petition for


  1
    Former article 37.071 provided in pertinent part:
   (b) On conclusion of the presentation of the evidence, the
   court shall submit the following issues to the jury:
      (1) whether the conduct of the defendant that caused the
      death of the deceased was committed deliberately and with
      the reasonable expectation that the death of the deceased
      or another would result;
      (2) whether there is a probability that the defendant
      would commit criminal acts of violence that would
      constitute a continuing threat to society . . . .
Tex. Code Crim. Proc. Ann. art. 37.071 (Vernon 1981).

                                               4
writ of certiorari on April 24, 1995.   See Hernandez v. Texas, 115

S. Ct. 1798 (1995).

     Thereafter, Hernandez filed an application for state writ of

habeas corpus.    On September 15, 1998, the state habeas court,

which was also Hernandez’ trial court, entered findings of fact and

conclusions of law, recommending that habeas relief be denied. The

Texas Court of Criminal Appeals adopted those findings and denied

Hernandez’ application for habeas relief on November 18, 1998.   On

November 23, 1998, Hernandez filed an application for federal writ

of habeas corpus, which was denied on March 18, 1999. Furthermore,

his application for a COA was denied by the district court on April

23, 1999.   That application is now pending before this court.



                           II. DISCUSSION

     Because Hernandez’ application for writ of habeas corpus was

filed on November 23, 1998, it is governed by the provisions of the

Antiterrorism and Effective Death Penalty Act (“AEDPA”). See Lindh

v. Murphy, 117 S. Ct. 2059 (1997); Clark v. Johnson, 202 F.3d 760,

763 (5th Cir. 2000), petition for cert. filed, (U.S. Apr. 25, 2000)

(No. 99-9327).   “Under AEDPA, before an appeal from the dismissal

or denial of a § 2254 habeas petition can proceed, the petitioner

must first obtain a COA, which will issue ‘only if the applicant

has made a substantial showing of the denial of a constitutional

right.’”    See id. (quoting 28 U.S.C. § 2253(c)(2)).


                                  5
     Recently, the Supreme Court ratified the standard to obtain a

Certificate of Probable Cause, as announced in Barefoot v. Estelle,

103 S. Ct. 3383 (1983), as the appropriate standard to determine

whether a habeas prisoner has made a substantial showing of the

denial of a constitutional right.     See Slack v. McDaniel, 120 S.

Ct. 1595, 1603-04 (2000).    Under that standard, an applicant makes

a substantial showing when he demonstrates that his application

involves issues that are debatable among jurists of reason, that

another court could resolve the issues differently, or that the

issues are suitable enough to deserve encouragement to proceed

further.   See Clark, 202 F.3d at 763 (citing Drinkard v. Johnson,

97 F.3d 751, 755 (5th Cir. 1996), overruled in part on other

grounds, Lindh, 117 S. Ct. 2059).     Specifically, where a district

court has rejected a prisoner’s constitutional claims on the

merits, the applicant must demonstrate that reasonable jurists

would find the district court’s assessment of the constitutional

claims debatable or wrong.    See Slack, 120 S. Ct. at 1604.   “When

the district court denies a habeas petition on procedural grounds

without reaching the prisoner’s underlying constitutional claim, a

COA should issue when the prisoner shows, at least, that jurists of

reason would find it debatable whether the petition states a valid

claim of the denial of a constitutional right and that jurists of

reason would find it debatable whether the district court was

correct in its procedural ruling.”     Id.   Because the present case


                                  6
involves the death penalty, any doubts as to whether a COA should

issue must be resolved in Hernandez’ favor.       See Clark, 202 F.3d at

764.

       A state court’s determination of a factual issue shall be

presumed to be correct unless rebutted by clear and convincing

evidence.    See 28 U.S.C. § 2254(e)(1); Davis v. Johnson, 158 F.3d

806, 812 (5th Cir. 1998), cert. denied, 119 S. Ct. 1474 (1999).

When the state habeas court and the trial court are one and the

same, the presumption is especially strong. See Clark, 202 F.3d at

764.

       In his application, Hernandez presents two issues for which he

seeks a COA: 1) whether he was denied the effective assistance of

counsel    when   his   court-appointed   trial   attorneys   failed   to

recognize the validity and importance of an alcoholic blackout

defense, and 2) whether he was denied a fair trial when the State

allegedly utilized and relied upon materially inaccurate evidence.

We now address those issues in light of the standards for the

issuance of a COA.

                                   A.

       Hernandez’ first challenges his trial counsel’s performance at

trial and sentencing, arguing that they failed to recognize the

validity and importance of an alcoholic blackout defense.              To

prevail on an ineffectiveness of counsel claim, Hernandez must show

that his trial counsel’s performance was deficient and that the


                                    7
deficiency prejudiced his defense.    See Strickland v. Washington,

104 S. Ct. 2052, 2064 (1984).    The trial counsel’s performance is

deficient when the representation falls below an objective standard

of reasonableness.    See id.; Davis, 158 F.3d at 812.   In assessing

the trial counsel’s performance, we must make every effort “to

eliminate the distorting effects of hindsight, to reconstruct the

circumstances of counsel’s challenged conduct, and to evaluate the

conduct from counsel’s perspective at the time.”    Strickland, 104

S. Ct. at 2065.      There is a strong presumption that the trial

counsel’s conduct falls within the wide range of objectively

reasonable conduct.    See id.

     To establish that the trial counsel’s deficiency prejudiced

his defense, Hernandez “must show that there is a reasonable

probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.”     Id. at 2068.

“A reasonable probability is a probability sufficient to undermine

confidence in the outcome.” Id. Thus, when a defendant challenges

a conviction, we must ask whether, absent the errors, a reasonable

probability exists that the jury would have had a reasonable doubt

as to guilt.    See id. at 2068-69.     When the challenge is to a

sentence, we must examine whether, absent the errors, a reasonable

probability exists that the sentencer would have concluded that the

balance of aggravating and mitigating circumstances did not warrant

death.   See id. at 2069.


                                  8
     Here, Hernandez maintains that his trial counsel’s failure to

recognize the validity and importance of an alcoholic blackout

defense constituted      deficient      performance   that   prejudiced   his

overall defense at trial and at sentencing.           First, he notes that

at trial and at sententcing, his trial counsel did not enlist an

expert to aid their understanding of Hernandez’ condition on the

night of the murder.          Second, Hernandez argues that his trial

counsel failed to present available evidence that would show: a)

that alcohol consumption by an alcohol-dependent individual is

compulsive, not voluntary, and that, therefore, Hernandez did not

voluntarily consume alcohol; and b) that Hernandez was in a state

of anterograde, rather than typical, amnesia and, consequently,

could   not   have   acted    intentionally    or   deliberately.     Third,

Hernandez believes that by not recognizing the alcoholic blackout

defense, his trial counsel did not develop or tie in evidence of

prior alcoholic blackouts to the blackout surrounding the instant

offense and, thus, failed to use any such evidence to mitigate the

offense. Fourth, he contends that his trial counsel’s inability to

understand    the    importance    of   the   alcoholic   blackout   defense

deprived him of a material fact witness that would have supported

his defense.    Dave Martinez, the lead trial attorney on the case,

is Hernandez’ cousin and was the first individual whom he called

after being arrested.        According to Dave Martinez, Hernandez could

be heard in the background during Martinez’ conversation with the

police.   Moreover, Hernandez did not appear to understand what was

                                        9
going on or what charges were being pressed against him.                   Hernandez

suggests that if his trial counsel had realized the importance of

the alcoholic blackout defense, then Dave Martinez would not have

participated      as   a   defense    attorney     and    would,     instead,     have

provided support by testifying as a fact witness as to Hernandez’

condition on the night of the murder.                    The gist of Hernandez’

allegations is that by failing to recognize the importance of an

alcoholic    blackout      defense,    his     trial   counsel     did    not    offer

evidence that his actions on the night of the murder were not

voluntary or intentional.

       All   of   these    allegations,        however,   do   not      amount   to   a

substantial showing of the denial of a constitutional right. Under

Texas law, voluntary intoxication does not constitute a defense to

the commission of a crime.           See Tex. Pen. Code Ann. § 8.04 (Vernon

1994).    Neither does evidence of voluntary intoxication negate the

element of specific intent required for capital murder.                     See Raby

v. State, 970 S.W.2d 1, 6 (Tex. Crim. App. 1998), cert. denied, 119

S. Ct. 515 (1998).         Although involuntary intoxication may absolve

one of criminal culpability, see Torres v. State, 585 S.W.2d 746,

749 (Tex. Crim. App. 1976), Texas courts have consistently ruled

that     alcoholism    may    not    be    the    basis    for     an    involuntary

intoxication defense, see Shurbet v. State, 652 S.W.2d 425, 428

(Tex. App.–Austin 1982, no pet.); Heard v. State, 887 S.W.2d 94, 98

(Tex. App.–Texarkana 1994, pet. ref’d) (referring to Shurbet for


                                          10
support); cf. Martinez v. State, No. 04-95-00032-CR, 1996 WL

134969, at *3 (Tex. App.–San Antonio March 27, 1996, no pet.)

(unpublished disposition) (holding that evidence of an addiction

does not warrant an instruction on involuntary intoxication).

Thus, Hernandez’ consumption of alcohol on the night of the murder

was not involuntary, and he could not have predicated a defense on

the possibility that he was in an alcoholic blackout.            Therefore,

his trial counsel’s failure to obtain an expert on alcoholism, to

counter with evidence the State’s argument that he voluntarily

drank alcohol and intentionally committed the murder, to tie in

past incidents of alcoholic blackouts, or to realize that Dave

Martinez might be the sole witness to Hernandez’ alcoholic blackout

was immaterial and irrelevant to the guilt-or-innocence phase of

the   trial.     None   of   those   failures   translate   to   deficient

performance at trial on the part of Hernandez’ trial counsel; nor

did those failures prejudice his defense.

      Admittedly, Hernandez’ trial counsel could have introduced

evidence about alcoholic blackouts to mitigate punishment.             See

Tex. Pen. Code Ann. § 8.04(b) (“Evidence of temporary insanity

caused by intoxication may be introduced by the actor in mitigation

of the penalty attached to the offense for which he is being

tried.”).      But they would first have had to establish 1) that

Hernandez’ voluntary intoxication caused him not to know his

conduct was wrong or 2) that it caused him to be incapable of


                                     11
conforming his conduct to the requirements of the law that he

violated.     See Cordova v. State, 733 S.W.2d 175, 190 (Tex. Crim.

App. 1987).       Mere voluntary intoxication on the part of Hernandez

would have been insufficient to warrant an affirmative instruction

on temporary insanity caused by voluntary intoxication.              See id.

     According to the state habeas court’s findings of fact, there

was no evidence in the record that Hernandez suffered from an

alcoholic blackout or was even intoxicated.                Instead, various

witnesses, from Davila to Mike Martinez, testified that Hernandez

was not drunk or that they were unsure that he had even been

drinking on the night of the murder.          We must presume that those

findings    are    correct   unless   they   are    rebutted   by   clear   and

convincing evidence.

     Hernandez has failed to do that.              He does not refer to any

evidence in the record indicating that he was drunk or in an

alcoholic blackout on the night of the murder; nor could he

considering the tenor of the evidence.             At trial, any discussion

about blackouts or Hernandez’ drunken nature were in reference to

past incidents, and not to the night in question.                    Although

Hernandez clearly drank alcohol before murdering Alvarado, the

record just does not lend credence to the view that Hernandez was

somehow intoxicated, let alone temporarily insane.

     Indeed, the record reveals that Hernandez took a baseball bat

from Davila’s home despite Davila’s objections, that Hernandez


                                      12
attempted to break into the Maldonado residence, that Hernandez

questioned Vargas as to her being alone before he attacked her,

that Hernandez stole property from Alvarado’s home, that Hernandez

disposed of the stolen property and part of the clothing that he

had on during the murder, and that Hernandez was hiding when the

police arrested him.       All of those events demonstrate intentional

conduct on the part of Hernandez and that he was aware of his

actions.

     The   evidence      that   Hernandez     proffers   and     that   is   most

suggestive of intoxication, and possibly temporary insanity, is the

affidavits of Dr. Brian Derrick and Dave Martinez, both of which

were before the state habeas court and were rejected as a basis for

relief. Derrick’s affidavit relies on portions of the trial record

rather than any first-hand examination of Hernandez on the night of

the murder.    Other than Hernandez’ consumption of beer that night

and the arresting officer’s statement that Hernandez smelled of

alcohol at the time he was arrested, none of the factual summary

used by    Derrick    to   formulate    his   opinion    makes    reference    to

Hernandez being intoxicated when he murdered Alvarado.                  Instead,

Derrick    bases   his     analysis    primarily   on    instances      of   past

misconduct by Hernandez.        Of the factual summary’s references that

could possibly point to an intoxicated Hernandez on the night of

the murder, none are particularly supportive. The mere consumption

of alcohol does not necessarily translate into intoxication, nor

does the smell of alcohol mean that one was drunk.

                                       13
      As for Dave Martinez’ affidavit, it is just a subjective

statement, from someone who was not present with Hernandez at the

time of the offense, that Hernandez was in an alcoholic blackout

when he murdered Alvarado.       Although Hernandez did apparently tell

Dave Martinez that he remembered nothing of that night, Hernandez’

statements to Martinez would have been inadmissible hearsay.              See

Tex. R. Crim. Evid. 802. Similarly, Dave Martinez’ assertion that,

based on the telephone call by Hernandez from jail, he was the only

one who could testify as to Hernandez being intoxicated and in an

alcoholic blackout is also unavailing. According to Dave Martinez,

Hernandez could be heard in the background repeatedly asking the

police officer what the charges were and why he was being arrested.

Even if those statements were not hearsay, Hernandez’ questions to

the   police   officer   would    not    have   established   that   he   was

intoxicated    or   temporarily    insane.       The   repetitiousness     of

Hernandez’ questioning could have just reflected his inability to

comprehend the legal nature of the charges.            Moreover, the fact

that Hernandez was hiding from the police belies any suggestion

that he was in a drunken stupor, unable to realize why he was being

arrested.

      But even if Hernandez was intoxicated on the night of the

murder, he undeniably knew his conduct was wrong; otherwise, he

would not have been hiding from the police, or disposing of the

stolen property and his clothing, or attempting to get away from



                                        14
Vargas with force. Neither do Hernandez’ violent actions the night

of the murder indicate that he was incapable of conforming his

conduct to the requirements of the law that he violated.     Rather

than act in a murderous rage throughout the night, Hernandez acted

violently only when he wanted something, such as: 1) to break into

the Maldonado residence; 2) to steal from Alvarado; or 3) to escape

Vargas’ grasp.   Clearly, then, Hernandez’ voluntary intoxication

did not cause him not to know that his conduct was wrong or make

him incapable of conforming his conduct to the requirements of the

law that he violated so as to warrant an instruction on temporary

insanity by intoxication under Texas law.

     Thus, we conclude that Hernandez has not demonstrated a

substantial showing of the denial of a constitutional right.

First, he has not tendered clear and convincing evidence to rebut

the presumption of the state court’s findings that he was not in an

alcoholic blackout or intoxicated.    As a result, he could not have

established the necessary prerequisites for a determination that he

was temporarily insane by intoxication.   Second, even if Hernandez

was intoxicated on the night of the murder, the evidence does not

support a finding that he was temporarily insane under Texas law.

Therefore, any failure by Hernandez’ trial counsel to recognize the

importance of the alcoholic blackout defense was neither deficient

performance nor prejudicial to Hernandez’ representation, and we

must deny a COA on that issue.

                                 B.

                                 15
     The second issue presented in Hernandez’ application for a COA

is whether Hernandez was denied a fair trial because the State

utilized and relied upon allegedly materially inaccurate evidence

in violation of the Eighth Amendment’s protections from cruel and

unusual punishment as pronounced in Johnson v. Mississippi, 108 S.

Ct. 1981 (1988).     That issue was before the state habeas court,

which denied relief, finding that it was not supported by any

credible evidence in the record.      Germane to the issue are the

testimonies of Drs. James Grigson and Ralph Erdmann.     Hernandez

maintains that Grigson testified falsely as to the number of

defendants that he had interviewed to determine their propensity

for future dangerousness and that this testimony greatly influenced

the jury’s answer as to whether Hernandez posed a future danger.

In addition, Hernandez asserts Erdmann falsely testified as to

examining the victim’s heart, and therefore, Erdmann     could not

have honestly stated that Alvarado’s cause of death was not a heart

attack.   Due to Erdmann’s supposedly false testimony, Hernandez

contends that the jury was convinced of the baseball attack as

having caused Alvarado’s death, and this belief persuaded the jury

that he was a future danger.

     Johnson involved a death sentence under Mississippi law.

Before imposing the death penalty, a Mississippi jury had to

determine whether aggravating circumstances outweighed mitigating

circumstances.     See id. at 1984.   In that case, the jury found


                                 16
three aggravating circumstances: 1) the defendant had previously

been convicted of a violent felony; 2) the defendant had committed

the capital murder for the purpose of avoiding arrest or effecting

an escape from custody; and 3) the capital murder was especially

heinous, atrocious, and cruel.     See id.    The sole basis for the

first aggravating circumstance was a document showing that the

defendant had been convicted in New York of second-degree assault

with intent to commit first-degree rape.      See id.    After weighing

the aggravating and mitigating circumstances, the jury concluded

that the three aggravating circumstances outweighed the mitigating

ones, and the death penalty was imposed.      See id.

     Thereafter, the New York felony conviction was reversed, and

the defendant sought post-conviction relief on the ground that the

New York conviction was invalid and could not be used as an

aggravating circumstance.   See id. at 1985.       The Supreme Court

ultimately reversed the death sentence, noting that the Eighth

Amendment’s prohibition against cruel and unusual punishment gives

rise to a special need for reliability in the determination that

death is the appropriate punishment.      See id. at 1986.   The Court

remarked that to allow the jury to consider evidence that was

materially inaccurate was error.      See id. at 1989.

     The present case does not parallel the situation addressed in

Johnson nor the vast majority of cases that have relied upon

Johnson to determine whether evidence of a criminal conviction or


                                 17
conduct may be properly admitted at sentencing.                     Instead of a

materially inaccurate criminal conviction, we confront purportedly

materially inaccurate testimony.             Notwithstanding the difference,

Hernandez   must    still   establish        that    Grigson’s     and    Erdmann’s

testimonies were false and material.                See Fuller v. Johnson, 114

F.3d 491, 497 (5th Cir. 1997) (holding that habeas prisoner’s

Eighth Amendment claim failed because he had not adequately shown

that Erdmann’s testimony was false or material).

     Although neither the Supreme Court nor this circuit has

defined    “materially”     in   the    context      of   an    Eighth    Amendment

violation under Johnson, the Supreme Court has had occasion to

elaborate    on    materiality    in     the    analogous       context    of     the

government’s      suppression    of    material      evidence    under    Brady    v.

Maryland, 83 S. Ct. 1194 (1963).          See Kyles v. Whitley, 115 S. Ct.

1555 (1995). In Kyles, it noted that the touchstone of materiality

is a “reasonable probability” of a different result.                     See id. at

1566; United States v. O’Keefe, 128 F.3d 885, 894 (5th Cir. 1997).

Under such a standard, Hernandez must show that Grigson’s and

Erdmann’s testimonies undermined confidence in the outcome of the

trial.    See Kyles, 115 S. Ct. at 1566; see also O’Keefe, 128 F.3d

at 894 (“Materiality, stated another way, occurs when the falsehood

results in a ‘corruption of the truth-seeking function of the trial

process.’”) (quoting United States v. Agurs, 96 S. Ct. 2392, 2397

(1976)).

                                        18
       With those pronouncements in mind, we address the allegations

about Grigson and Erdmann in turn.           Again, we reiterate that we

must give due deference to the state habeas court’s findings and

presume them to be correct.       Although the state habeas court termed

some of its findings regarding Grigson’s and Erdmann’s testimonies

as conclusions of law, it did clearly state that there was no

credible evidence to support Hernandez’ Eighth Amendment claim.

       A review of Grigson’s testimony and Hernandez’ proffered

evidence does not dissuade us from the state habeas court’s view.

At most, Grigson may have falsely testified to the number of

defendants whom he interviewed and determined not to be dangerous,2

but any discrepancy in that testimony does not arise to the level

of materiality required for an Eighth Amendment violation.             “It is

axiomatic that not every lie is material.”             O’Keefe, 128 F.3d at

894.    Hernandez essentially quibbles over the number of cases

Grigson may have examined to argue that Grigson has no credibility

and    that   Grigson’s     future    dangerousness    prediction     has    no

foundation.        During   the   trial,    however,    Hernandez    had     the

opportunity to do just that. He offered five experts who testified

that future dangerousness predictions are inaccurate, and one of

them   testified    that    Grigson   had   been   wrong   on   at   least    15



  2
   After being impeached by Hernandez’ trial counsel as being
biased in favor of the State, Grigson testified that he had
interviewed "tens" of defendants whom he deemed not to be
dangerous.

                                      19
occasions.      Thus, Grigson’s credibility was severely tested, and

whether he may have falsely stated the number of defendants whom he

examined and concluded to be not dangerous was immaterial to the

result. Indeed, the future dangerousness of Hernandez was, in many

ways,    more    adeptly      established    by   evidence     indicating   that

Hernandez had: 1) five prior felony convictions; 2) assaulted his

wife and daughter; 3) disciplinary problems during prior prison

terms;    4)    encouraged      his   son    to   kill   the   son’s   maternal

grandfather; 5) assaulted his four- and five-year-old relatives; 6)

repeatedly stabbed a person with a knife; 7) assaulted a fellow

inmate while in county jail awaiting trial in this case; and 8)

made threats of killing a trial judge in this case.                 In light of

all those facts, we conclude that, even if Grigson had testified

falsely, his testimony was not material and that, therefore,

Hernandez      has   failed    to   substantially    show    the   denial   of   a

constitutional right.

     Similarly, Hernandez’ contention regarding Erdmann must also

fail.    Hernandez argues that Erdmann did not actually inspect

Alvarado’s heart and, thus, could not have truthfully testified

that Alvarado did not die of a heart attack.                He bases that claim

on a statement by Erdmann that Alvarado’s “new implants were in

good shape” and on the fact that no Y-incision to the thoracic area

appears to have been made despite Erdmann’s testimony to the

contrary. Although the portions of Erdmann’s testimony referred to

by Hernandez suggest that Erdmann testified to examining the heart,

                                        20
there is no affirmative declaration by Erdmann that he did do such

an examination. Even if we did conclude that Erdmann had testified

as such and that other evidence, such as the autopsy photo of the

body    without   a   Y-incision,    corroborates     Erdmann’s   lack    of

truthfulness as to inspecting Alvarado’s heart, those conclusions

do not establish the falsity of Erdmann’s analysis that Alvarado

did not die from a heart attack.          His determination that a heart

attack did not cause Alvarado’s death was not necessarily dependent

on an examination of the heart.       The failure to inspect the heart

does not negate Erdmann’s belief that blows from a blunt object

caused Alvarado’s death.

       At best, Hernandez has demonstrated that Erdmann lied about

inspecting Alvarado’s heart.         We do not believe that such an

inaccuracy is material, considering that Hernandez has neither

asserted nor shown that Erdmann’s testimony about the cause of

death was actually false.      See Fuller, 114 F.3d at 496.       Take out

any testimony remotely discussing an examination of Alvarado’s

heart, and we are still left with testimony stating that blows by

a blunt object, like a baseball bat, killed Alvarado and that a

heart attack did not cause her death.3

       Finally,   even   assuming   all   of   Hernandez’   argument   about


  3
   Rather than focusing on Erdmann’s perceived false testimony to
challenge his blanket statement that a heart attack did not cause
Alvarado’s death, Hernandez should have challenged on re-cross the
methods by which Erdmann reached that conclusion. See Fuller, 114
F.3d at 496-97.

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Erdmann’s testimony is true, we must still defer to the state

habeas court’s finding that the State presented credible evidence

from two additional pathologists that Erdmann had been correct in

his assessment of the manner and cause of death.         Hernandez has not

rebutted that finding, and we must presume that it is correct.

     Consequently,   we   conclude    that   Erdmann’s    testimony   about

Alvarado’s heart was not material and that, therefore, Hernandez

has failed to substantially show the denial of a constitutional

right.

                           III. CONCLUSION

     Because Hernandez has failed to make a substantial showing of

the denial of a constitutional right with respect to both issues

raised in his application for a COA, his application is DENIED.




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