           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                          January 7, 2009

                                       No. 07-70043                   Charles R. Fulbruge III
                                                                              Clerk

GARY JOHNSON

                                                  Petitioner - Appellant
v.

NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION

                                                  Respondent - Appellee



                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 05-CV-3581


Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
       Gary Johnson was convicted of capital murder and sentenced to death for
the 1986 murders of James Hazelton and Peter Sparagana during the same
criminal transaction.        We granted a certificate of appealability (“COA”)
authorizing Johnson to appeal the district court’s denial of habeas relief for
Johnson’s due process and ineffective assistance of counsel claims. We AFFIRM.




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                     No. 07-70043

                                            I.
      The recitation of the facts that follows is drawn from the opinions of the
Texas Court of Criminal Appeals and the district court.
      Bill and Shannon Ferguson were in their pasture on the evening of April
30, 1986, waiting for a mare to foal. Sometime before 10:00 p.m., they saw a
truck pull over near a gate to the adjacent Triple Creek Ranch. They saw
someone get out of the truck, heard a chain rattle on the gate, and saw the truck
go through the gate and onto the ranch.1 The truck’s headlights were off, but
Mrs. Ferguson noticed an unusual brake light pattern on the truck (four large
round lights, two on each side, one above the other). Mrs. Ferguson went to the
barn and called the Triple Creek Ranch. She spoke to the wife of Jim Hazelton,
the ranch manager, and told her that a burglary might be taking place because
a truck had entered the ranch with its lights off. Mrs. Hazelton told Mrs.
Ferguson that her husband would be right out.
      Fifteen minutes later, the Fergusons saw Triple Creek Ranch manager
Jim Hazelton’s truck appear at the same gate. Hazelton was unable to enter the
ranch through that gate, so he backed up and entered the ranch from another
location. Eventually the Fergusons heard Hazelton’s truck stop. When they
heard a gunshot, Mrs. Ferguson went back to the barn to call the Walker County
Sheriff’s Department and Mrs. Hazelton.
      While Mrs. Ferguson was gone, Mr. Ferguson remained in the pasture.
Several minutes after the first gunshot, Mr. Ferguson heard several shots fired
in rapid succession. After a brief silence, Mr. Ferguson heard someone plead for
his life. The pleas were silenced by two more shots. When the law enforcement




      1
        Other evidence showed that the original chain had been cut and a new lock had been
placed on the gate.

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                                       No. 07-70043

officials arrived, they discovered the bodies of Jim Hazelton and his brother-in-
law, Peter Sparagana.2
      Walker County Deputy Sheriff Allen McCandles saw a truck matching
Shannon Ferguson’s description of the truck driven by the intruders in Johnson’s
pasture after the shootings, and he saw Johnson driving the truck numerous
times. Another law enforcement officer testified that two of the lights on the
back of Johnson’s truck were removed in the two weeks after the murders.
      Three of Johnson’s brothers–Tracey, Randy, and Ricky–testified for the
State at trial. Tracey testified that Johnson came to Missouri during the fall of
1986, returned Tracey’s .44 caliber pistol, and asked Tracey to destroy it because
the gun had been used in a double murder in which Johnson and their brother,
Terry, participated.
      Ricky testified that, during that same visit to Missouri, Johnson was in
possession of the .44 caliber pistol, he admitted killing one man with the gun,
and he said that he and Terry also killed a second man. A state firearms
examiner later identified a bullet fragment retrieved from Hazelton’s body as
having been fired from the same .44 caliber pistol that Johnson returned to
Tracey.
      Randy testified that Johnson told him that Johnson and Terry were out
at the Triple Creek to steal something when two men “got the drop on them”;
while Terry distracted them, Johnson shot one of the men; Johnson and Terry
caught the other man, brought him back to the barn, made him kneel, and tied
his hands behind his back; and while the second man pleaded for mercy, Johnson
shoved the gun in his mouth. The medical examiner testified that the second
man (Hazelton) died from a contact bullet wound to the mouth. Randy testified
that Johnson told him the two men were killed because “dead mean don’t talk.”



      2
          Mrs. Hazelton is Peter Sparagana’s sister.

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      The defense called Johnson’s brother, Terry, as a witness. (Defense
counsel’s decision to do so is the basis for Johnson’s ineffective assistance of
counsel claim.) Terry testified that Johnson killed both of the victims. The
defense also presented testimony from two inmates in the Walker County Jail
that Terry Johnson told them that he (Terry) had killed both of the victims.
      At the penalty phase of the trial, the State presented evidence that
Johnson shot and killed a neighbor’s dog from a distance of 75 to 100 yards,
while the dog was standing a few feet from the neighbor. The State also
presented evidence that Johnson was carrying a loaded handgun when he was
arrested for the murders. Dr. James P. Grigson, a psychiatrist, testified for the
State. Based on a hypothetical question that summarized the testimony about
Johnson, Dr. Grigson concluded that Johnson would be a future danger to
society.
      Johnson’s uncle testified for the defense at the penalty phase that he had
never seen Johnson act violently. Johnson’s former boss and a co-worker
testified that Johnson was hard-working, respectful, and non-violent. Johnson’s
ex-wife testified that Johnson was never violent toward their children, and never
drank or used drugs. Dr. James Marquart, a sociologist, testified for the defense.
He had studied the post-conviction criminality of sixty-nine convicted murderers
whose sentences were subsequently reduced or commuted, and none of them had
ever killed again. He pointed out that the American Psychiatric Association
takes the position that it is impossible to make a future dangerousness
assessment with 100 percent certainty. He testified that his study of cases in
which a prosecution expert predicted future dangerousness showed that the
expert was wrong two-thirds of the time.         Dr. Wendell Lee Dickerson, a
psychologist, testified that the American Psychiatric Association holds that
psychiatrists who, like Dr. Grigson, purport to predict future dangerousness



                                        4
                                   No. 07-70043

with a high degree of certainty, “are engaging in practice little short of
quackery.”
      The jury found that Johnson had acted deliberately and with a reasonable
expectation that death would result, and that it was probable that Johnson
would commit future acts of criminal violence that constitute a continuing threat
to society. The trial court sentenced to Johnson to death.
      Johnson’s conviction and sentence were affirmed on direct appeal.
Johnson v. State, 853 S.W.2d 527 (Tex. Crim. App. 1992). The Supreme Court
denied certiorari. Johnson v. Texas, 510 U.S. 852 (1993). The Texas Court of
Criminal Appeals denied Johnson’s application for state habeas relief. Ex parte
Johnson, No. 55,377-01 (Tex. Crim. App. Oct. 20, 2004). The district court
denied Johnson’s petition for federal habeas relief and denied a COA. Johnson
v. Quarterman, No. H-05-3581, 2007 WL 2891978 (S.D. Tex. Sept. 28, 2007).
      Johnson requested a COA from this court to appeal the denial of relief as
to three claims. Based on our “threshold inquiry,” consisting of “an overview of
the claims in the habeas petition and a general assessment of their merits,”
Miller-El v. Cockrell, 537 U.S. 322, 327, 336 (2003), this court granted a COA for
Johnson’s claims that (1) his due process rights under Brady v. Maryland, 373
U.S. 83 (1963), were violated by the State’s suppression of evidence that the
Fergusons, who testified for the State at trial, had been hypnotized; and (2) his
trial counsel rendered ineffective assistance by calling Johnson’s brother, Terry,
as a witness at the guilt phase of trial. Johnson v. Quarterman, 2008 WL
4155471 (5th Cir. Sept. 9, 2008). We denied a COA for Johnson’s claim that the
district court erred by refusing to consider the affidavits of attorneys on the issue
of whether Johnson’s trial counsel rendered constitutionally ineffective
assistance, on the ground that it was unnecessary. Id.
      The parties submitted supplemental briefs on the merits of the claims for
which a COA was granted. Having considered the briefs and based on our

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review of the record of the state court trial, and the state and federal habeas
proceedings, we conclude that the state court’s decision to deny relief on these
claims is not based on an unreasonable determination of the facts in the light of
the evidence presented, and is neither contrary to, nor an unreasonable
application of, clearly established federal law. We therefore AFFIRM the district
court’s denial of federal habeas relief, for the reasons that follow.
                                         II.
      Johnson is not entitled to federal habeas relief on his claims unless the
state court’s adjudication of the claims
                    (1) resulted in a decision that was contrary to, or
              involved an unreasonable application of, clearly
              established Federal law, as determined by the Supreme
              Court of the United States; or

                    (2) resulted in a decision that was based on an
              unreasonable determination of the facts in light of the
              evidence presented in the State court proceeding.
28 U.S.C. § 2254(d). The state court’s factual determinations “shall be presumed
to be correct,” and the petitioner “shall have the burden of rebutting the
presumption of correctness by clear and convincing evidence.” 28 U.S.C. §
2254(e)(1).
      “In reviewing the district court’s application of § 2254(d) to the state court
decision, we review the district court’s findings of fact for clear error and its
conclusions of law de novo.” Blanton v. Quarterman, 543 F.3d 230, 235 (5th Cir.
2008).
      We address Johnson’s Brady claim first, and then turn to his claim of
ineffective assistance of counsel.
                                         A.
      Johnson argues that the prosecution violated his right to due process by
suppressing evidence that the Fergusons, who testified for the State at the guilt-


                                          6
                                    No. 07-70043

innocence phase of the trial, were hypnotized. The law governing claims that
prosecutors improperly withheld evidence from a defendant is clearly
established. See Brady v. Maryland, 373 U.S. 83 (1963). “The Due Process
Clause of the Fourteenth Amendment requires prosecutors to disclose to a
defendant, on request, any evidence which is favorable and material to the issue
of guilt or punishment.” Titsworth v. Dretke, 401 F.3d 301, 306 (5th Cir. 2005).
“This disclosure requirement imposes a duty to learn of any favorable evidence
known to the others acting on the government’s behalf in the case, including the
police.” Id. (internal quotation marks and citation omitted). To establish his
Brady claim, Johnson must demonstrate that: “(1) the prosecutor suppressed
evidence, (2) favorable to the defense, and (3) material to guilt or punishment.”
Pippin v. Dretke, 434 F.3d 782, 789 (5th Cir. 2005) (citing Brady, 373 U.S. at 87).
“The suppressed evidence is material if there is ‘a reasonable probability that,
had the evidence been disclosed to the defense, the result of the proceeding
would have been different.’” Id. (quoting United States v. Bagley, 473 U.S. 667,
682 (1985)).
      In 1997, Johnson’s state habeas counsel discovered evidence indicating
that Mrs. Ferguson had been hypnotized by agents of the Walker County
Sheriff’s Office on June 10, 1986 (nearly six weeks after the murders on April 30,
1986). An attempt to hypnotize Mr. Ferguson was unsuccessful. Johnson filed
a supplemental state habeas application in which he contended that the
suppression of this evidence violated his due process rights under Brady and
state law, citing Zani v. State, 758 S.W.2d 233 (Tex. Crim. App. 1988).3
      The state habeas court conducted an evidentiary hearing on the claim and
made the following findings and conclusions:



      3
        Zani deals with the admissibility of hypnotically enhanced testimony under Texas
evidence law.

                                           7
                     No. 07-70043

       According to the presentation by Petitioner’s
counsel, the State suppressed from the defense
information that two [of the] State’s witnesses, Mr. and
Mrs. Ferguson, had been hypnotized by agents of the
State during the investigation, and that said
information was not divulged to the defense prior to
trial, and that said hypnotized evidence presented by
the State during trial was therefore tainted under the
Court of Criminal Appeals decision in Zani v. State, 758
S.W.2d 233.

      This court finds:

      (a)   In the evidence presented during the
            habeas corpus hearing, by the ex-District
            Attorney in charge of this prosecution, and
            his law enforcement agents, and the trial
            counsel Hal Ridley, that it was undisputed
            that Mr. and Mrs. Ferguson did undergo a
            hypnosis session in June, 1987, and that
            said witnesses did testify for the State, and
            that defense counsel Ridley was never told
            about the existence of this hypnosis
            enhanced testimony.

      (b)   This court finds, therefore, that as a matter
            of law, relevant and material evidence was,
            in fact, suppressed from the defense prior
            to trial, by the State’s failure to notify
            Ridley that hypnosis sessions had been
            performed upon these State witnesses. See
            Zani v. State, supra, which requires the
            State to notify the defense where hypnosis
            sessions are conducted as part of the
            State’s investigation.

      (c)   During the hearing in this case, the State
            presented evidence from the sheriff’s
            deputy who performed the hypnosis
            sessions on both Mr. and Mrs. Ferguson,
            and other witnesses who were involved in
            this investigation. It appears that the

                           8
              No. 07-70043

      sheriff deputy who performed this hypnosis
      session, Mr. Rick Berger, performed this
      session at the instruction of Chief Deputy
      Sheriff Ted Pierce, of the Walker County
      Sheriff’s office, who was in charge of this
      investigation, and that Mr. Berger did not
      follow the guidelines recommended by the
      Court of Criminal Appeals in the Zani
      decision.

(d)   Mr. Berger was not shown to have the
      necessary qualifications to perform such
      hypnosis sessions.        No preliminary
      statement was taken from the witnesses by
      Berger to determine what the witnesses
      recalled. The session was apparently tape
      recorded, but the tape recordings are now
      missing. There is no showing that the
      witnesses received any psychological
      counseling prior to the session, and absent
      any recorded evidence of said session, this
      court finds that the hypnosis session was
      not properly conducted pursuant to the
      guidelines as set out in Zani v. State,
      supra, since none of the witnesses had any
      present recollection of the procedures used
      during said session.

(e)   Therefore, evidence was suppressed from
      the defense, and that such evidence was
      not shown by the State, as required by the
      law, to be admissible in any Texas trial
      court proceeding.

(f)   However, the State introduced evidence
      during the hearing that Mr. Ferguson was
      not hypnotized, but Mrs. Ferguson was,
      and that prior to the hypnosis session, Mrs.
      Ferguson gave a full and complete written
      statement to other law enforcement agents,
      which comported in general with her trial
      testimony.     The state has taken the

                     9
                                  No. 07-70043

                         position that since none of Mrs. Ferguson’s
                         testimony was apparently altered by the
                         hypnosis session to the detriment of
                         Petitioner, that the admission of this
                         hypnosis evidence should be considered to
                         be harmless error.

                  (g)    As to the State’s argument that such
                         evidence was not harmful to Petitioner,
                         this court would defer to the Court of
                         Criminal Appeals for further ruling on the
                         issue of “harmless error,” since such
                         determination is a question of law, which
                         must ultimately be determined by the
                         Court of Criminal Appeals on review of this
                         habeas corpus action.

                  Therefore, this court finds that error was
            committed in that evidence was suppressed from the
            defense, and that such evidence was not shown to be
            admissible under the law available at that time, or even
            now. The trial court will defer any final decisions to the
            Court of Criminal Appeals as to whether or not the
            admission of this hypnotically enhanced testimony
            constitutes reversible error or not, under the harmless
            error standards applicable to this proceeding.
      The Court of Criminal Appeals noted that the trial judge had deferred to
it for a determination on a question of law presented in Johnson’s supplemental
state habeas application. The Court of Criminal Appeals adopted the trial
judges findings and conclusions and, based on those findings and conclusions
and its own review, found all of Johnson’s claims to be without merit and denied
relief. Ex parte Johnson, No. 55,377-01 (Tex. Crim. App. Oct. 20, 2004).
      The district court observed that the question of whether any error was
harmless is legally inapplicable to a Brady claim, because claims of Brady error
are not subject to harmless error analysis. Kyles v. Whitley, 514 U.S. 419, 434-35
(1995). Furthermore, the state habeas court did not cite Brady or any other


                                       10
                                  No. 07-70043

federal law; the only case it cited was Zani. As a result, the district court found
that the state habeas court apparently had analyzed the claim under state law.
Accordingly, the district court concluded that it owed no deference under the
Anti-Terrorism and Effective Death Penalty Act (“AEDPA”) to the state court’s
finding of materiality.
      In any event, the district court held that, even if the state habeas court
had found that the evidence of hypnosis was material under Brady, such a
finding was an unreasonable application of Supreme Court precedent and was
not entitled to any deference. The district court stated that Supreme Court
precedent clearly established that evidence is material under Brady “if there is
a reasonable probability that, had the evidence been disclosed to the defense, the
result of the proceeding would have been different.” United States v. Bagley, 473
U.S. 667, 682 (1985). The district court reasoned that, even assuming that the
disclosure of the evidence of hypnosis would have completely destroyed the
credibility of the Fergusons’ testimony, there was not a reasonable probability
that the result of Johnson’s trial would have been different.
      The district court characterized the Fergusons’ testimony as merely
providing context for the murders. It stated that, even if they had never
testified, the jury still would have heard testimony that two dead bodies were
found on the ranch; that both men died from gunshot wounds; and that Johnson
returned a .44 caliber handgun to his brother and admitted participating in a
double murder. The only significant detail that the jury might not have heard
if the Fergusons had not testified was Mrs. Ferguson’s observation of the
unusual brake light pattern on the truck. The district court concluded that,
although this detail, and Johnson’s possession of a truck with similar brake
lights, strengthened the State’s case, it was not a dispositive fact in the light of
Johnson’s admissions to his brothers and his possession of the murder weapon.



                                        11
                                       No. 07-70043

The district court concluded that the evidence was, therefore, not material under
Brady.
       Johnson argues, first, that the district court erred by failing to defer to the
state habeas court’s determination that the suppressed evidence is material.
This contention is without merit. The state habeas court did not cite Brady or
federal law in its findings and conclusions, and it deferred to the Court of
Criminal Appeals on the question of whether the suppression of the hypnosis
evidence was harmless. As the district court correctly observed, harmless error
analysis does not apply to Brady claims. Accordingly, we agree with the district
court’s determination that the state habeas court’s finding of materiality was
based on state evidence law, and not Brady. The district court therefore did not
err by failing to defer to the state habeas court’s finding of materiality.
       Johnson contends further that the district court applied an incorrect
standard of materiality. According to Johnson, the correct inquiry is whether
there is a reasonable likelihood that the testimony could have affected the
judgment of the trier of fact. He argues that the evidence of hypnosis is material
under that standard because, if defense counsel had known that the Fergusons
had been hypnotized, he could have persuaded the trial court exclude their
testimony. In his supplemental brief, Johnson cites cases holding that, when the
defense is informed of the use of hypnosis, there are no due process violations.
He argues that it is, therefore, logical to assume that if the evidence of hypnosis
is suppressed, thus denying the defense the opportunity to challenge it, there are
due process problems.4 In his supplemental reply brief, Johnson argues that the
standard for materiality can differ from state to state, depending on state law.
He contends that, in a state such as Texas, where the state courts have

       4
          Johnson’s argument refers to Confrontation Clause violations resulting from the
failure to disclose evidence of hypnosis. He did not present a claim for violation of his rights
under the Confrontation Clause and did not request or obtain a COA authorizing him to appeal
as to any such claim.

                                              12
                                 No. 07-70043

determined that the prosecution must reveal to the defense even a mere attempt
to hypnotize a prospective witness, the failure to do so must be material.
Johnson contends that the lack of disclosure deprived him of his right, under
state law, to a pretrial hearing on the issue; that he was deprived of the
opportunity to make appropriate inquiries of prospective jurors as to their
knowledge and predilection as to hypnosis evidence, in order to challenge their
fairness to consider such evidence; that he was deprived of the opportunity to
secure expert witnesses to challenge the hypnotically enhanced testimony
presented, and to confront and cross-examine the State’s witnesses before the
jury on the reliability of their recollections under hypnosis; and that he was
deprived of an opportunity to challenge the hypnotically enhanced testimony on
direct appeal.
      Contrary to Johnson’s assertion, the district court applied the correct
standard of materiality: whether “there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the proceeding would have
been different.” Bagley, 473 U.S. at 682. Under that standard, the evidence of
the hypnosis of Shannon Ferguson and the attempted hypnosis of Bill Ferguson
is not material because there is not a reasonable probability that the result of
Johnson’s trial would have been different had the evidence of hypnosis been
disclosed. That is so because the evidence is clear that the hypnosis had no
effect on the testimony of Bill and Shannon Ferguson, and thus no “hypnotically
enhanced” testimony was presented at trial. The evidence is undisputed that the
attempt to hypnotize Mr. Ferguson was not successful. Mrs. Ferguson had
described the unusual configuration of the brake lights on the truck to law
enforcement officers on the night of the murders, nearly six weeks before she
was hypnotized. Her description of the brake lights after hypnosis was the same
as before hypnosis. Accordingly, her trial testimony was not enhanced or
affected by the hypnosis. Furthermore, as the district court correctly concluded,


                                       13
                                  No. 07-70043

even if the Fergusons’ testimony had been excluded, there is no reasonable
probability that Johnson would have been acquitted.
      Deputy Ted Pierce testified at the guilt-innocence phase of the trial that
he found out about the distinctive taillight pattern on the night of the murders,
when he talked to Bill and Shannon Ferguson. He said that they gave him a
description of the truck with the four taillights, and that he put out a “be on the
lookout” alert for it. Deputy Pierce testified that late that night or early the
following morning, a constable told him that Gary Johnson drove a truck like the
one described by Mrs. Ferguson. Allan McCandles, a Walker County deputy
sheriff, testified at trial that he heard over the radio on the night of the murders
a witness’s description of the vehicle involved in the murders as having four
large taillights, two on each side, one above the other, and a Koenig-type bed.
      At the state habeas evidentiary hearing, the State introduced into
evidence a transcript of Ranger Wesley Stiles’s interview of Shannon Ferguson
on May 4, 1986 (over a month prior to the hypnosis session). In that interview,
Mrs. Ferguson described the brake lights on the truck in the same manner that
she described them in her testimony at trial. She also stated in the interview,
consistent with her testimony at trial, that the day after the murders, she saw
a vehicle, like the one she had seen the night before, at Gary Johnson’s home.
      At the state habeas evidentiary hearing, the State also introduced into
evidence a copy of the Walker County Sheriff’s Department offense report. It
states that Shannon Ferguson described the taillights to Officer Pierce on the
night of the murders:
            The vehicle appeared to be a utility truck, similar to a
            Gulf States truck or a Koenig truck with tool boxes.
            There were two brake lights in the regular place and
            there were two more that appeared to be on the tool
            boxes. All four brake lights were round in shape.




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                                  No. 07-70043

The offense report states further that Johnson was a possible suspect as of May
6, 1986 (before the hypnosis in June), because he drove a truck with lights like
those described by Mrs. Ferguson.
      Mr. Ferguson testified at the state habeas evidentiary hearing that he and
his wife were up most of the night after the murders and that all she talked
about was the taillights on the truck and that the truck had to be a utility-type
vehicle. He testified further that they saw such a vehicle the very next day, and
she was convinced it was the same one.
      Mrs. Ferguson also testified at the state habeas evidentiary hearing. She
stated that she described the configuration of the taillights on the vehicle on the
night of the murders; that she saw a vehicle with the same light configuration
parked at a trailer house the following day; and that she gave the same
information to Ranger Stiles when he interviewed her on May 4, 1986. Mrs.
Ferguson testified that she did not remember anything under hypnosis that she
had not remembered before, and that she provided no new information to the
interviewer; and, therefore, the hypnosis had no effect whatsoever on her trial
testimony.
      Ridley, Johnson’s trial counsel, testified at the state habeas evidentiary
hearing that, if he had known that the Fergusons had been hypnotized, he would
have tried to find out what they were saying prior to the hypnosis to see if it was
consistent with what they said afterward. He said he possibly would have
moved for a hearing and would, at least, have interviewed the person who
hypnotized them. Ridley testified that the major point of Shannon Ferguson’s
testimony was the configuration of the lights on the back of the truck. He
acknowledged that she had talked about those lights in her statement to the
police before she was hypnotized, and that she had said she observed a vehicle
with the same type of taillights at Gary Johnson’s trailer the day after the
murders.


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                                   No. 07-70043

      Rick Berger, who performed the hypnosis, testified that Mr. Ferguson was
not susceptible to hypnotism and that when he checked “yes” on the form to
indicate that new information was obtained as a result of hypnosis of Shannon
Ferguson, he meant that it was new information to him, not that it had not
already been provided to law enforcement.
      Thus, the evidence–both at trial and at the state habeas evidentiary
hearing–is clear that the hypnosis had no enhancing effect on the Fergusons’
testimony at trial. Accordingly, the suppressed evidence of the hypnosis was not
material and Johnson was not prejudiced by the State’s failure to disclose it.
Even if we assume that the Fergusons’ testimony would have been excluded by
the state court had the evidence of hypnosis been disclosed to the defense, it
would not have affected the outcome of the trial in the light of the substantial
other evidence of Johnson’s guilt. Indeed, the Fergusons’ testimony centered
altogether on establishing by circumstantial evidence that Johnson was present
when the murders occurred, a fact that was hardly disputed at trial; the focus
of the defense was who did the actual killing.
      Because the evidence of hypnosis was not material, within the meaning of
Brady, the decision of the Texas Court of Criminal Appeals denying relief on
Johnson’s Brady claim, was not contrary to, or an unreasonable application of,
clearly established federal law.
      We now turn to consider Johnson’s ineffective assistance of counsel claim.
                                       B.
      Johnson argues that he was denied the effective assistance of counsel in
violation of the Sixth and Fourteenth Amendments when his trial counsel called
Johnson’s brother, Terry, as a witness, knowing that Terry would testify that
Johnson had shot both of the victims.       To establish a Sixth Amendment
violation, Johnson must prove that his counsel rendered deficient performance
and that the deficient performance prejudiced his defense.        Strickland v.

                                       16
                                  No. 07-70043

Washington, 466 U.S. 668, 687 (1984). To receive federal habeas relief on his
ineffective assistance claim, Johnson must establish that the decision of the
Texas Court of Criminal Appeals is either contrary to, or an unreasonable
application of, Strickland. See Blanton, 543 F.3d at 235.
      Terry was charged with capital murder along with Johnson. Terry was
arrested on May 20, 1988. That same day, he gave a written statement to law
enforcement authorities implicating his brother, Gary Johnson, in the shooting
of both victims. On June 23, 1988, Terry spoke to Johnson’s trial counsel,
Ridley. During that interview, Terry told Ridley that he had made a deal with
the prosecutors and that Gary Johnson had killed both of the victims. On July
18, 1988, Terry entered into an agreement with the State, pursuant to which the
State waived the death penalty and Terry agreed to plead guilty to murder, for
which he would be sentenced to a term of years to be decided after full review of
the case.
      In his opening statement for the defense, made after the State had rested
its case-in-chief without calling Terry as a witness, Ridley asserted that Terry,
acting alone, had murdered both of the victims, and that Ricky, Randy, and
Tracey testified as that did out of fear of what Terry would do to them or their
families. Ridley called Terry as one of the witnesses for the defense. Terry
denied firing any shots, and testified that Gary shot both of the victims. In his
lengthy testimony, Terry also admitted that he gave a statement to police,
implicating his brother Gary, within twenty to thirty minutes after he was
arrested, in order to spare himself from the death penalty.            On cross-
examination, he testified that Gary’s favorite expression was “kill them all, let
God sort them out.”
      At the state habeas evidentiary hearing, Ridley testified that he was fully
aware that Terry had maintained from the beginning that Gary Johnson did all
of the shooting. Ridley testified that he had anticipated that Terry would testify

                                       17
                                  No. 07-70043

for the prosecution in its case-in-chief. When the State rested without having
called Terry, Ridley testified that he “was concerned because I already felt there
was sufficient evidence to implicate Gary in both killings, and what I was trying
to do was pin the blame, quite frankly, on Terry Johnson.” Ridley explained that
he was surprised by Randy Johnson’s trial testimony, because in statements
made to Ridley prior to trial, Randy had exculpated Gary Johnson and stated
that Terry had killed both of the victims. Ridley believed that Randy’s testimony
was the most harmful evidence presented by the State. He wanted to show the
jury that Terry had made a deal with the State, and he wanted the details of the
deal before the jury. He also wanted to show that Terry was not a credible
witness, and that he had sold out his own brother to save his neck. Ridley
testified that he wanted the jury to see Terry because he thought that was Gary
Johnson’s best chance for acquittal. He explained that, as a trial lawyer,
sometimes you have to get into some things that hurt you in order to get some
things that also help you, and that he really thought there was a chance of
defeating the capital murder charge against Gary Johnson by showing that he
was an accomplice of Terry in the murders. Ridley pointed out that Louie John
Brown and Bruce Edward Davis testified that Terry had told them that he had
committed both of the murders. Ridley stated that, even if he had not called
Terry and had only called Brown and Davis, the State might have called Terry
in rebuttal as its “smoking gun” witness. He explained that he did not “want
Terry Johnson, of all people, to be the last person they heard from in the case.”
      The state habeas court found that Ridley called Terry as a witness for
three purposes: (1) to impeach Terry as to his credibility and show him to be the
perpetrator who made a deal for a life sentence; (2) to get this information before
the jury for use as mitigation against a death sentence; and (3) to try to get an
accomplice witness instruction. The state habeas court ruled:



                                        18
                                  No. 07-70043

                   The court finds that Terry Johnson testified that
            Petitioner killed both individuals. The court also finds
            that by putting Terry Johnson on the stand, Petitioner
            was able to inform the jury that Terry Johnson had
            made a deal for life imprisonment with the State and
            impeach Terry Johnson by two witnesses who stated
            Terry Johnson told them he had committed both
            killings. . . . The court also finds the combination of
            Terry Johnson’s testimony and the impeachment by two
            witnesses who testified Terry Johnson admitted the
            killings is a reasonable trial strategy.

                   Therefore, the court finds that the decision to put
            Terry Johnson on the witness stand for the purpose of
            impeaching him and showing his relatively lighter
            sentence of life, was a decision of strategy that does not
            fall below the level of competence of trial counsel.

      The state habeas court also observed that Johnson’s guilt was established
through Randy’s testimony that Johnson admitted shooting one victim and
putting a gun in the mouth of the other, and the testimony of the medical
examiner that the second victim had died from a gunshot wound inflicted by a
gun near the victim’s mouth. The state habeas court also held that the decision
to put Terry on the stand did not harm Johnson. Instead, it stated that the fact
that Terry made a deal for life was a strike against the death penalty for
Johnson.
      The district court pointed out that Johnson himself, in his pleadings and
briefs, had acknowledged that the testimony of his brothers Randy and Ricky,
and the testimony of the medical examiner, created a strong inference that
Johnson shot both of the victims. The district court stated that Johnson’s
counsel was left with the options of trying to discredit the testimony about
Gary’s admissions to his brothers or of arguing that, while Johnson put the gun
in the second victim’s mouth, someone else pulled the trigger. Instead, counsel
chose to offer the jury the alternative theory that Terry shot the victims and sold

                                        19
                                  No. 07-70043

out his brother to avoid a death sentence. In order to accomplish this goal,
counsel called Terry as a witness to try to discredit him. The district court
concluded that the fact that, in hindsight, the strategy was unsuccessful does not
change the fact that it was a legitimate strategic choice by counsel.
      Johnson acknowledges that Ridley’s decision to call Terry as a witness was
a strategic decision, but he argues that the strategy was so unsound that it is
unconstitutional. He acknowledges that the testimony of his brothers, Randy
and Ricky, could be taken as establishing that he (Johnson) admitted having
committed both murders, but he asserts that their testimony was not clear. He
argues that calling Terry to impeach Terry’s credibility and show Terry to be the
perpetrator who made a deal for a life sentence could not have benefitted him at
the guilt-innocence phase because, even if Ridley had been successful in
impeaching Terry, the testimony still would have resulted in demonstrating that
he (Johnson) was guilty as a party. He contends that putting Terry on the stand
for the purpose of getting an accomplice witness instruction was not a reasonable
strategy, because even if he had been successful, the State could easily point to
the testimony of Randy and Ricky as corroborating Terry’s testimony. Finally,
he argues that calling Terry as a defense witness to present mitigating evidence
was of no benefit to him at the guilt phase of trial. Johnson argues that
confidence in the outcome is undermined because Terry’s testimony turned the
case from a weak punishment case to a strong one. He notes that he had one
fifteen-year-old misdemeanor conviction, no felony convictions, and no history
of violent behavior. Furthermore, there was no psychiatric testimony that he
had any psychotic tendencies. He therefore contends that it is extremely
doubtful that the jury would have found him to be a future danger to society
without Terry’s testimony.
      In support of his ineffective assistance claim, Johnson attached to his
federal habeas petition the affidavits of five attorneys experienced in Texas


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capital law. All five attorneys stated in their affidavits that no reasonable trial
counsel would have used the strategy that Johnson’s trial counsel used in this
case.5 The district court refused to consider the affidavits, because the proffered
expert testimony did not assist the court within the meaning of Rule 702 of the
Federal Rules of Evidence. The district court explained:
                     This court is intimately acquainted with the legal
              standards governing ineffective assistance of counsel
              claims. Expert testimony purporting to tell the court
              how those legal standards apply to the facts of a
              particular case invade the court’s province as trier of
              the law, and are not helpful to the court in determining
              the facts of the case. Because the proposed expert
              testimony both moves beyond the appropriate
              boundaries of expert testimony and is unhelpful to the
              court in its role as trier of fact, the affidavits will not be
              considered.
       We conclude that, for the reasons given by the district court, the district
court did not abuse its discretion in refusing to consider the attorney affidavits.
We agree with the reasoning of the Eleventh Circuit in Provenzano v. Singletary,
148 F.3d 1327, 1332 (11th Cir. 1998):
              [I]t would not matter if a petitioner could assemble
              affidavits from a dozen attorneys swearing that the
              strategy used at his trial was unreasonable. The
              question is not one to be decided by plebiscite, by
              affidavits, by deposition, or by live testimony. It is a
              question of law to be decided by the state courts, by the
              district court, and by this Court, each in its own turn.


       5
         One of the “expert” affidavits was signed by Roy Greenwood, who was appointed as
co-counsel for Johnson on direct appeal, along with Ridley (Johnson’s trial counsel).
Greenwood signed Johnson’s brief on direct appeal. In that brief, in connection with his
argument that the trial court erred in failing to give an accomplice witness instruction, he
argued that calling Terry as a witness was crucial to the defense, especially because the State
refused to call Terry. He stated in that brief that he “simply had to have the jury view Terry
Johnson, and review his story, and then be able to impeach brother Terry with other
admissions, threats, misstatements, etc., in order to allow the jury to arrive at the truth as to
the culpability for these murders.”

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      With respect to the merits of Johnson’s ineffective assistance claim, we
agree with the district court’s assessment that the state court did not
unreasonably apply Strickland in denying relief. Although counsel’s decision to
call Terry as a witness ultimately was not a successful strategy, the state court
did not unreasonably apply Strickland in determining that it was not deficient
performance. Even assuming that it was deficient performance, the state court’s
determination that Johnson was not prejudiced is neither contrary to, nor an
unreasonable application of, Strickland.        Terry’s testimony did not add
significantly to the substantial other evidence of Johnson’s guilt that was
already before the jury. As the state habeas court found, Randy had already
testified that Johnson told him that he (Johnson) shot “the one with the gun”
and that they caught “the other man” and that he (Johnson) stuck the gun in his
mouth. Because the state courts did not unreasonably apply Strickland, the
district court did not err in denying federal habeas relief on Johnson’s ineffective
assistance of counsel claim.
                                        III.
      For the foregoing reasons, we AFFIRM the judgment of the district court
denying Johnson’s petition for federal habeas relief.
                                                                      AFFIRMED.




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