                    UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT
                         _____________________

                                 No. 01-50961
                              consolidated with
                                 No. 02-50407
                            _____________________

                            JOHN WILLIAM ELLIOTT,

                                                      Petitioner-Appellant,

                                      versus

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

                                                       Respondent-Appellee.


             Appeal from the United States District Court
                   for the Western District of Texas
                             (1:99-CV-606)

                                July 25, 2002

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

     John William Elliott, who received the death penalty in Texas

state court, after being convicted of murder in the course of

committing     aggravated    sexual    assault,   seeks   a   certificate   of

appealability (COA) to appeal the denial of federal habeas relief,

raising over 20 claims, inter alia:            for the federal proceedings,

denial of an evidentiary hearing; and for the state proceedings,

prosecutorial misconduct, failure to disclose exculpatory evidence,


     *
      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this opinion should not be published and is not precedent except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.
evidence insufficiency, inadequate jury instruction for the term

“beyond a reasonable doubt”, and ineffective assistance of counsel.

In addition, Elliott appeals the denial of expert and investigatory

assistance (funding) during the federal proceedings.               COA DENIED;

FUNDING-DENIAL AFFIRMED.

                                           I.

     On    13   June    1986,     Hanson    invited   eighteen-year-old   Joyce

Munguia to join a group of men in front of Elizondo’s home.                  Also

present were Elliott, Elizondo, and Ramirez.                Over the next few

hours,    Munguia      consumed    beer,    Everclear   (grain   alcohol),    and

cocaine.    She became intoxicated and, later that evening, engaged

in apparently consensual sexual relations with Elizondo in his

house.     Shortly thereafter, according to Hanson:                Munguia was

crying; her words were slurred; and her walking was impaired.

Munguia asked Hanson to walk her home.

     Also according to Hanson:             as he began walking Munguia home,

Elliott joined them and offered to help; Hanson told Elliott to

leave; Elliott refused, claiming Hanson “just wanted her [Munguia]

to himself”; after Munguia started to fall, Elliott picked her up

and, over Hanson’s protests, carried her into a dark, wooded area

under a bridge; Elliott pulled down Munguia’s shorts and Hanson

asked him to let Munguia go; Elliott threatened Hanson, but began

pulling Munguia’s shorts up; Hanson started to walk off with

Munguia when Elizondo and Ramirez arrived; Elliott then pulled


                                           2
Munguia away from Hanson and raped her; Hanson left to call the

police, but then returned to help Munguia, only to find Ramirez

raping her; next, Elizondo raped her; the entire time, Munguia was

crying and pleading for Hanson’s help and said she was “going

straight to the police when y’all get through”.

     Hanson further testified:       after the rapes, Elliott told

Elizondo, “We’re going to have to get rid of her [Munguia]”, then

Elliott ran toward Elizondo’s house; Hanson began helping Munguia

with her clothes, but Elizondo took them from Hanson and said, “You

too, Danny [Hanson]”; Hanson fled to call his sister to pick him up

and had her call the police; Hanson returned to the scene later

that night, saw Munguia’s bloodied and still body, and left to call

the police again.

     According to Elizondo:   Hanson and Ramirez left together to

walk Munguia home; after Elizondo told Elliott he had just had sex

with Munguia, Elliott left to join Hanson and Ramirez; shortly

thereafter, Elizondo left to join them, arriving under the bridge

to find Ramirez having sex with Munguia; Elliott had sex with

Munguia after Ramirez, and Elizondo after Elliott; Munguia then

asked for her clothes; no one responded; and Munguia threatened to

call the police.

     Also according to Elizondo:     Elliott told him “he [Elliott]

had to kill Joyce [Munguia] and Danny [Hanson]”, that he was going

to find a gun, and that Elizondo should stay to ensure they did not



                                 3
get away; Elliott returned with a motorcycle chain belt wrapped

around his fist and found Munguia searching for her clothes;

Elliott struck Munguia with the chain; Munguia fell to the ground;

and Elizondo ran away, turning to see Elliott strike Munguia three

more times with the chain.

     Police   officers      responded       to   Hanson’s      calls   and   located

Munguia’s body.   They arrived at Elliott’s house between 1:00 a.m.

and 1:30   a.m.   on   14   June.       The      shorts   he    was    wearing   were

splattered with blood, as were his shoes.

     The blood on Elliott’s shorts matched the victim’s blood type.

The blood on his shoes could not be typed, but the patterns on the

soles were consistent with those found at the murder scene.                      Sperm

collected from the victim’s body had the same blood type as

Elliott, Ramirez, and Hanson.

     During the autopsy, several metal fragments were recovered

from the victim’s head.        At trial, a forensic chemist testified

that one of the fragments matched the motorcycle chain belt in such

detail that, in his opinion, it had once been part of it.

     Elliott was convicted in January 1987 of murder in the course

of committing aggravated sexual assault.              At the punishment phase,

the jury returned affirmative answers to the special issues;

Elliott was sentenced to death.

     The conviction and sentence were affirmed on direct appeal.

Elliott v. State, 858 S.W.2d 478 (Tex. Crim. App. 1993).                          The



                                        4
Supreme Court of the United States denied certiorari.                   Elliott v.

Texas, 510 U.S. 997 (1993).

     Elliott applied for state habeas relief in April 1997, with

supplemental     applications         that        September.       He     claimed:

prosecutorial misconduct (solicitation of perjury and evidence

tampering); failure to reveal exculpatory evidence (of the claimed

prosecutorial misconduct and insanity/incompetence); insufficient

evidence of the murder’s occurring in the course of a sexual

assault;   inadequate     jury   instruction         for   the   term   “beyond    a

reasonable doubt”; failure to instruct the jury on the number of

years Elliott    would    have   to    serve       in   prison   before   becoming

eligible for parole (if sentenced to life imprisonment); and

ineffective assistance of trial and appellate counsel.

     The habeas court (Elliott’s trial court) did not hold an

evidentiary    hearing.     Instead,         it    ordered   the   submission     of

affidavits from:     the prosecutors, regarding the prosecutorial

misconduct and exculpatory evidence claims; and Elliott’s trial

counsel, regarding the ineffective assistance at trial claims. The

court also authorized Elliott to “submit affidavits from any person

with respect to [those] claims or any other claims that he deems

necessary”.

     In August 1998, that court entered findings and conclusions,

recommending denial.       In September 1999, the Court of Criminal




                                        5
Appeals adopted those findings and conclusions and denied relief.

Ex Parte Elliott, No. 42,654-01 (Tex. Crim. App. 1999).

       Elliott filed for federal habeas relief in February 2000.

(The State expressly waived the one-year limitations period for

state prisoner federal habeas petitions, 28 U.S.C. § 2244(d).) The

federal petition raised many of the claims asserted in the state

petition. The case was referred to a magistrate judge, pursuant to

28 U.S.C. § 636(b)(1)(A) and FED. R. CIV. P. 72.

       The   State    moved   for   summary     judgment    that   July.      That

September, the magistrate judge granted Elliott’s request for DNA

testing.      A   stipulation       submitted     with    the   testing    results

indicated:    Elliott could not be excluded as the donor of the sperm

taken from the victim, when 99.99% of the population would be

expected to be excluded; and the DNA profiles obtained from three

bloodstains from Elliott’s shorts were consistent with the profile

generated from the victim.           The magistrate judge ordered Elliott

and the State to brief whether, in the light of the DNA tests or

any other evidence, an evidentiary hearing was warranted.

       Elliott filed briefs in support of an evidentiary hearing,

although the precise issues for which that hearing was requested

were   not   clear.    “[E]rr[ing]     on   the    side    of   inclusion”,    the

magistrate judge scoured Elliott’s briefs to identify the precise

issues for which the hearing was sought.                  In a comprehensive 1




                                        6
March 2001 order, the magistrate judge addressed each issue and

concluded a hearing was not warranted.

     The case was delayed because certain records from Elliott’s

state habeas proceedings had not been made part of the record on

file with the district court.     After receiving those records, as

well as briefs on whether anything contained in them impacted his

prior rulings, the magistrate judge denied Elliott’s motion for

further discovery.

     That August (2001), in an extremely thorough, 53-page report

and recommendation, the magistrate judge recommended granting the

State summary judgment and denying habeas relief.   That September,

following review of Elliott’s objections and a de novo review, the

district judge accepted the report and recommendation and denied

habeas relief.   It later denied a COA.

                                 II.

     Because Elliott filed his federal petition after the effective

date of the Anti-Terrorism and Effective Death Penalty Act of 1996

(AEDPA), Pub. L. No. 104-132, 100 Stat. 1214, it applies.   Martinez

v. Johnson, 255 F.3d 229, 237 (5th Cir. 2001), cert. denied, 122 S.

Ct. 1175 (2002).     “Under AEDPA, a petitioner must first obtain a

COA in order for an appellate court to review a district court’s

denial of habeas relief.”    Dowthitt v. Johnson, 230 F.3d 733, 740

(2000), cert. denied, 532 U.S. 915 (2001); see also 28 U.S.C. §

2253(c)(1)(A).


                                  7
     Appeals concerning 21 U.S.C. § 848(q)(4)(B), however, which

provides       for,     inter   alia,      “investigative,   expert,      or     other

reasonably necessary services” in post-conviction proceedings to

vacate or set aside a death sentence, do not require a COA.                         See

Clark v. Johnson, 202 F.3d 760, 768 n.1 (5th Cir.), cert. denied,

531 U.S. 831 (2000).

     “A [COA] may issue ... only if the applicant has made a

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

U.S.C.    §    2253(c)(2).          This    standard   includes    showing      “that

reasonable jurists could debate whether (or, for that matter, agree

that) the petition should have been resolved in a different manner

or that the issues presented were adequate to deserve encouragement

to proceed further”.            Slack v. McDaniel, 529 U.S. 473, 484 (2000)

(internal quotation marks and citation omitted).

     The ruling on whether a COA should issue “must be made by

viewing       ...     [Elliott]’s    arguments     through   the   lens        of   the

deferential scheme laid out in 28 U.S.C. § 2254(d)”.                Barrientes v.

Johnson, 221 F.3d 741, 772 (5th Cir. 2000), cert. dismissed, 531

U.S. 1134 (2001).         Under that scheme, a federal habeas court must

defer to the decision of a state court where it has adjudicated a

claim on the merits, unless the state court’s decision is “contrary

to, or involved an unreasonable application of, clearly established

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

States; or ... resulted in a decision that was based on an


                                             8
unreasonable determination of the facts in light of the evidence

presented in the State court proceeding”.           28 U.S.C. § 2254(d)(1)

& (2).

       A state court decision is “contrary to [] clearly established

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

States ... if the state court arrives at a conclusion opposite to

that reached by th[e] Court on a question of law or if the state

court decides a case differently than th[e] Court has on a set of

materially indistinguishable facts”.         Williams v. Taylor, 529 U.S.

362,   412-13   (2000).   A   state       court   decision   “involve[s]   an

unreasonable application of [] clearly established Federal law, as

determined by the Supreme Court of the United States ... if the

state court identifies the correct governing legal principle from

th[e] Court’s decisions but unreasonably applies that principle to

the facts of the prisoner’s case”.          Id.

       For these questions, as well as whether the state court

decision was based on an unreasonable determination of the facts in

the light of the evidence presented in the state proceeding, we

must presume the state court’s findings of fact correct unless that

presumption is rebutted by “clear and convincing evidence”.                28

U.S.C. § 2254(e)(1).

                                  A.

       Elliott presents two groups of claims: certain rulings during

the federal proceedings (e.g., denial of funding for certain expert


                                      9
and investigatory assistance and of an evidentiary hearing); and

the state trial proceedings.    Over 20 issues are raised.

     For Elliott’s 37-page brief, 14 concern one issue — the

district court’s denial of an evidentiary hearing. The brief lacks

a statement of facts, is essentially devoid of record citation,

consists largely of conclusional allegations and inference, and,

for the most part, simply attempts to “incorporate[] by reference”

papers from   earlier    proceedings   in   this   case.   For   example,

regarding the underlying basis for a number of Elliott’s claims,

alleged prosecutorial misconduct, Elliott states: “The issue of

prosecutorial misconduct has been briefed extensively and will not

be briefed; however, the previous briefing is incorporated by

reference.”   A number of his issues have absolutely no briefing.

In short, regarding those issues that require a COA, and other than

to repeat the Slack standard, Elliott has made no effort to show

that the issues are debatable among jurists of reason.

     In its response, the State notes the inadequacy of Elliott’s

briefing and asserts that, as a result, his claims are abandoned.

Elliott did not file a reply brief or otherwise attempt to correct

any of the noted deficiencies.         (In the alternative, the State

addresses the claims.)

     It goes without saying that issues not properly briefed will

not be considered.   See, e.g., Martin v. Cain, 206 F.3d 450, 455

n.1 (5th Cir.), vacated on other grounds, 531 U.S. 801 (2000);


                                  10
Abbott v. Equity Group, Inc., 2 F.3d 613, 627 n.50 (5th Cir. 1993),

cert. denied, 510 U.S. 1177 (1994).              Along this line, a party

cannot simply incorporate by reference positions taken in district

court; the issues must be briefed here.               See Peel & Co., Inc. v.

Rug Market, 238 F.3d 391, 398-99 (5th Cir. 2001).                   Issues not

adequately briefed are deemed abandoned.                 See, e.g., Lamb v.

Johnson, 179 F.3d 352, 355 n.1 (5th Cir.), cert. denied, 528 U.S.

1013 (1999); Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir.),

cert. denied, 498 U.S. 966 (1990); Brinkmann v. Dallas County

Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).

     In this light, we will discuss the one issue that is arguably

adequately briefed — the denial of a federal evidentiary hearing.

     But,     even   regarding      this     issue,    there   is   significant

uncertainty    in    the   relief   sought.      To   obtain   an   evidentiary

hearing, “[a] habeas petitioner must make specific allegations;

‘conclusory allegations unsupported by specifics[]’ ... will not

entitle one to ... a hearing”.             Perillo v. Johnson, 79 F.3d 441,

444 (5th Cir. 1996) (quoting Blackledge v. Allison, 431 U.S. 63, 74

(1977)).

     This notwithstanding, the district court was “forced to scour

[Elliott’s] briefs and make its best guess as to the identity of

the matters on which [Elliott] seeks the right to present evidence

on his petition”, because Elliott had failed to present “a clear

statement of the claims on which [he] proposes to present evidence”

                                       11
or “a brief summary of the anticipated evidence”.                      After an

extremely    liberal      consideration       of   Elliott’s      briefing,      the

magistrate      judge   concluded      that     Elliott    “appear[ed]      to   be

requesting an evidentiary hearing” on seven issues, including

“[w]hether the prosecution engaged in misconduct in eliciting

allegedly false testimony [or] suppressing the testimony of ...

Ramirez”.    (Emphasis added.)

     In   his    briefing      here,     Elliott   fails    to    rectify     these

deficiencies.     It is not clear what evidence he seeks to produce,

which claims the evidence will support, or how the evidence will

support them.      Rather, Elliott complains that “the trial court

judge was never able to hear from the witnesses who mattered most,

... Ramirez and his sisters”.

     We   conclude      that   Elliott    has   appealed    the   denial    of    an

evidentiary hearing only to the extent he sought a hearing to

produce testimony from Ramirez and his sisters in support of his

claims that “the prosecution engaged in misconduct in eliciting

allegedly false testimony [or] suppressing the testimony of ...

Ramirez”.    Elliott contends “there were many unresolved factual

issues that he had not been able to develop at state court and

therefore an evidentiary hearing was required”; but, he fails to

adequately brief any other factual issue or claim with respect to

which he believes the district court erred by not holding an

evidentiary hearing.


                                         12
                                     B.

      “[W]hen ‘[t]he district court ha[s] sufficient facts before it

to make an informed decision on the merits of [the habeas] claim’

it   does   not   abuse   its   discretion   in   failing   to   conduct   an

evidentiary hearing”.       Barrientes, 221 F.3d at 770 (second and

third alterations in original; quoting McDonald v. Johnson, 139

F.3d 1056, 1060 (5th Cir. 1998)); see also         Murphy v. Johnson, 205

F.3d 809, 816 (5th Cir.), cert. denied, 531 U.S. 957 (2000).          Along

those lines, there can be no abuse of discretion in such denial

where the state habeas court has already provided petitioner with

a full and fair hearing.        See id. at 816; Clark v. Johnson, 202

F.3d at 766.

      Even if the factual basis for a habeas claim has not been

developed, AEDPA nevertheless precludes an evidentiary hearing

under certain circumstances.       “[W]here the failure to develop the

factual basis is directly attributable to a decision or omission of

the petitioner”, the “petitioner’s entitlement to an evidentiary

hearing ... is restricted to the narrow exceptions of 28 U.S.C. §

2254(e)(2)”.      Clark, 202 F.3d at 765; see also Williams v. Taylor,

529 U.S. 420, 431-32 (2000).       That subsection provides:

            If the applicant has failed to develop the
            factual basis of a claim in State court
            proceedings, the court shall not hold an
            evidentiary hearing on the claim unless the
            applicant shows that —

            (A) the claim relies on —


                                     13
                   (i) a new rule of constitutional law,
                   made retroactive to cases on collateral
                   review by the Supreme Court, that was
                   previously unavailable; or

                   (ii) a factual predicate that could
                   not have been previously discovered
                   through   the   exercise   of   due
                   diligence; and

             (B) the facts underlying the claim would be
             sufficient   to   establish    by  clear   and
             convincing     evidence     that    but    for
             constitutional error, no reasonable factfinder
             would have found the applicant guilty of the
             underlying offense.

28 U.S.C. § 2254(e)(2) (emphasis added).

      Even where the basis for a claim remains undeveloped through

no   fault   of   the    petitioner,    or   where   the    petitioner’s      claim

satisfies one of the § 2254(e)(2) exceptions, the petitioner is not

necessarily entitled to a hearing.               See Clark, 202 F.3d at 765

(“[O]vercoming the preclusive effect of § 2254(e)(2) does not

guarantee an evidentiary hearing[;] it only opens the door for

one”.); McDonald, 139 F.3d at 1059-60 (“[E]ven if [petitioner’s]

claim is not precluded by § 2254(e)(2), that does not mean he is

entitled     to   an    evidentiary    hearing   —   only   that   he   may   be”.

(Emphasis in original.)).             “Pursuant to Rule 8 of the Rules

Governing § 2254 Cases, the district court retains discretion over

the decision to grant an evidentiary hearing once a petitioner

overcomes the barriers presented by § 2254(e)(2)”. Clark, 202 F.3d

at 765.


                                        14
      To show abuses of discretion in an evidentiary hearing denial,

a petitioner must establish, inter alia, that “if proven true, his

allegations would entitle him to relief”.              Murphy, 205 F.3d at 816

(emphasis added); Clark, 202 F.3d at 766 (emphasis added).                        As

noted, the petitioner’s claim must be based on specific — not

conclusory — allegations of fact.             He is not authorized a fishing

expedition, see Ward v. Whitley, 21 F.3d 1355, 1367 (5th Cir.

1994), cert. denied, 513 U.S. 1192 (1995); nor can he rely on

“contentions that in the face of the record are wholly incredible”,

Blackledge, 431 U.S. at 74.

                                        1.

      The state court provided Elliott a full and fair hearing on

his claims and the district court had sufficient facts before it on

which to make an informed decision on the merits of those claims.

“A   full   and    fair   hearing    does    not    necessarily    require      live

testimony.”       Murphy, 205 F.3d at 816 (citing Perillo, 79 F.3d at

446-47).      “We have repeatedly found that a paper hearing is

sufficient to afford a petitioner a full and fair hearing on the

factual issues underlying his claims, especially where as here, the

trial court and the state habeas court were one in the same.”                    Id.

      In support of his claims of solicitation of perjury and

suppression       of   Ramirez’s    testimony,      Elliott’s   state     petition

included a copy of a letter, apparently authored in 1987 by members

of   Ramirez’s     family   for    purposes    of   Ramirez’s     trial   (he    was

                                        15
convicted of sexual assault).            It states, in part:         “The District

Attorney, Carla Garcia has g[u]aranteed a 20 year sentence for our

brother Pete Ramirez, who was not even present at the time the

victim was murdered.         Ms. Garcia wants our brother to change his

statement in the order of which it will help her case.”                  As noted,

after reviewing Elliott’s petition, including the Ramirez letter,

the    state      habeas   court   ordered      those   prosecutors     to   submit

affidavits regarding the alleged misconduct and directed Elliott to

“submit affidavits from any person with respect to the above claims

or any other claims that he deems necessary”.                 (Emphasis added.)

       Elliott submitted an affidavit from an investigator who had

spoken with Ramirez and shown him a copy of the letter authored by

his    family.       According     to    the    affidavit,    Ramirez    told   the

investigator, inter alia, that:                “Ms. Garcia wanted [Ramirez] to

testify that he was present when the murder was committed”; “he

refused the deal because he did not want to perjure himself”; “his

refusal to testify against [Elliott] was because he ‘did not want

to get mixed up in the case’ when he ‘knew that the other guys were

changing their stories’”; and “he did not take their plea [offer],

so    that   he    could   stay    out   of    the   case”.    The   investigator

concluded: “The implication that the other guys [presumably Hanson

and Elizondo] were lying was evident in the fact that [Ramirez]

then stated that he was not willing to ‘budge’ from what he ‘knew

to be the truth’”.         (Emphasis added.)


                                          16
       The   State     submitted      affidavits       from     the    two     former

prosecutors.     The first provides:

                  I did not solicit false testimony of ...
             Ramirez, who participated in and was convicted
             for the sexual assault of Joyce Munguia, nor
             am I aware of any agent for the State of Texas
             who did solicit his false testimony.         I
             negotiated a plea bargain agreement with ...
             Ramirez’s attorney.    The terms of the plea
             bargain agreement required ... Ramirez to
             provide the State with a complete and truthful
             confession regarding the sexual assault and
             murder of Joyce Munguia and that he pass a
             polygraph examination. If ... Ramirez met the
             conditions of the plea agreement, i[t] was
             ou[r] intention to call [him] to testify in
             the trial of John William Elliott.... Ramirez
             failed     the     polygraph     examination.
             Consequently, I did not enter into a plea
             bargain agreement with his attorney and did
             not call ... Ramirez to testify in the trial
             of John William Elliott.

                  ....
                  The   State          did     not    conceal         any
             solicitation of          false     testimony of          ...
             Ramirez.

The second affidavit is substantially similar.

       As is apparent, the record concerning Elliott’s claims was

well    developed     when   the   state      habeas   court    ruled       that   “the

controverted, previously unresolved factual issues material to the

legality of [Elliott’s] confinement c[ould] be resolved on the

basis of the affidavits filed and personal recollection by this

court and without a[ live] evidentiary hearing”.                  It was in this

light    that   the    court   made    the     following      findings:        “[t]he

prosecutor      ...   negotiated      for     the   testimony     of    [Elliott’s]



                                        17
codefendant, ... Ramirez, with the condition that Ramirez pass a

polygraph    examination   regarding    the      truthfulness     of   his

statements”; “Ramirez failed the polygraph examination; therefore,

the negotiations ceased”; “[Elliott] has made no showing and has

not filed or caused to be filed any affidavits of ... any ...

witness with respect to his allegations of the solicitation of

perjury or   suppression   of   testimony   by   the   state”;   and   “the

prosecutors did not suppress such solicitation or suppression”.

     The district court had this record before it when it denied an

evidentiary hearing.   Moreover, in accordance with our admonition

that, “[i]n determining whether an evidentiary hearing is proper,

the district court may expand the record and consider affidavits,

exhibits, or other materials that cast light on the merits of the

petition”, McDonald, 139 F.3d at 1060, the district court also

considered a new affidavit from the same investigator who had

spoken with Ramirez in 1997.    It provides, in part:      “When I spoke

with [Ramirez’s sisters who had signed the 1987 letter], they

indicated that they did not remember anything about the letter that

they had written regarding allegations that the State wanted ...

Ramirez to testify to untruths at ... Elliott’s trial.”

     That affidavit, coupled with the affidavits and letter that

had been considered in the earlier state proceeding, comprised a

well developed record on Elliott’s claims. “The district court had

sufficient facts before it to make an informed decision on the



                                  18
merits of [those] claim[s]”, id. at 1060; consequently, it did not

abuse its discretion in denying an evidentiary hearing.

                                2.

     Elliott appears to insist, however, that the factual basis for

his claims was not well developed, through no fault of his own.

Specifically, he asserts that, without a live evidentiary hearing,

“the trial judge was never able to hear from the witnesses who

mattered most, ... Ramirez and his sisters”, particularly because

Ramirez refused to prepare an affidavit.    (The investigator’s 1997

affidavit states that Ramirez’s “reasons for not wanting to sign an

affidavit ... or to be called to testify are because he fears that

he will lose his job and upset his parents if his name appears in

the newspapers and his involvement is made public”.)

     Elliott appears to contend he need not satisfy the narrow

exceptions of § 2254(e)(2) because any failure to develop the

factual basis of his claims is attributable solely to the state

court’s denial of an evidentiary hearing.    (As the district court

noted, Elliott “does not argue that he can meet the heightened

burden of § 2254(e)(2)(A) & (B), and makes no such attempt to carry

that stringent burden”.)

     Even assuming that the factual basis for Elliott’s claims

remains undeveloped, with the fault not being Elliott’s, the

district court still did not abuse its discretion in denying an

evidentiary hearing.    As noted, to show abuse of discretion,


                                19
Elliott must assert “specific allegations of fact”, Ward, 21 F.3d

at 1367, that, “if proven true,... would entitle him to relief”,

Murphy, 205 F.3d at 816 (emphasis added); Clark, 202 F.3d at 765

(emphasis added).

     Concerning Elliott’s claim that the prosecution entered into

an agreement with Ramirez or intimidated him to keep him silent,

the district court concluded: “[N]one of the hearsay statements in

the [Ramirez family] letter or [investigator’s] affidavit are

inconsistent   with    the   prosecutor’s          statement    that   the   plea

agreement with Ramirez required that he provide a full statement

and pass a polygraph test, and that when he failed the test she

declined to call him at trial”; and “[n]othing in the evidence

already   gathered    supports    the    claim     that   prosecutors    had   an

agreement   with   Ramirez   to   keep       him   silent   —   even   Ramirez’s

statements do not support that claim”.

     Elliott does not address these points.                 Nor does he even

attempt to suggest what Ramirez’s testimony might be if called as

a witness. As the district court concluded: “Clearly, Elliott has

no idea what Ramirez will state under oath”.              Elliott’s claim that

the prosecution attempted to suppress Ramirez’s testimony appears

to be speculation; “[h]is request [for a hearing] in this regard is

tantamount to an impermissible fishing expedition”.                See Murphy,

205 F.3d at 816.     The district court did not abuse its discretion




                                        20
in   denying    an   evidentiary   hearing       to   determine   whether   the

prosecution attempted to silence Ramirez.

      Regarding      Elliott’s   claim    that   calling   Ramirez    (or   his

sisters) to testify in an evidentiary hearing would enable him to

prove   the    prosecution   knowingly     presented     perjured    testimony

(presumably from Hanson and Elizondo), the district court likewise

did not abuse its discretion.              “‘To establish a due process

violation based on the State’s knowing use of false or misleading

evidence, [a habeas petitioner] must show (1) the evidence was

false, (2) the evidence was material, and (3) the prosecution knew

that the evidence was false.’”              Barrientes, 221 F.3d at 753

(alteration in original; quoting Nobles v. Johnson, 127 F.3d 409,

415 (5th Cir. 1997)).

      Elliott does not even identify evidence presented by the

State, much less make specific allegations that it was false,

material, or known to be false.          As the district court noted, “the

only evidence that could conceivably support the speculation that

the prosecutor elicited false testimony is an ‘implication’ that

the investigator found to be ‘evident’ from what Ramirez told the

investigator”.

                                     C.

      In the alternative, notwithstanding the wholly inadequate

briefing by Elliott for the other COA requests, and pursuant to our

review, there was no substantial denial of a constitutional right.


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Therefore, Elliott is not entitled to a COA for any of those

issues.   Likewise, there was no reversible error concerning the

district court’s denial of expert and investigatory assistance.

                              III.

     For the foregoing reasons, Elliott’s request for a COA is

DENIED, and the denial of funding for expert and investigatory

assistance is AFFIRMED.

                           COA DENIED; FUNDING-DENIAL AFFIRMED




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