                        REVISED, JULY 12, 2000

                  UNITED STATES COURT OF APPEALS

                         FOR THE FIFTH CIRCUIT



                             No. 99-40896



                        TONY NEYSHEA CHAMBERS,

                                       Petitioner-Appellant,

                                  v.

                    GARY L. JOHNSON, DIRECTOR,
              TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
                      INSTITUTIONAL DIVISION,

                                       Respondent-Appellee.



          Appeal From the United States District Court
                For the Eastern District of Texas

                             June 20, 2000


Before HIGGINBOTHAM, DAVIS and BENAVIDES, Circuit Judges.

DAVIS, Circuit Judge:

     Tony Neyshea Chambers (“Chambers”) was convicted of capital

murder and sentenced to death by the State of Texas.           In 1995,

Chambers filed an application for a federal writ of habeas corpus,

but it was dismissed without prejudice for him to exhaust available

state remedies.   After his state habeas petition was denied in

1998, Chambers again filed a petition for federal habeas relief.


                                   1
In   accordance     with   a   magistrate   judge’s   recommendation,   the

district    court    denied    Chambers’s    petition.    Thereafter,   the

district court also denied Chambers’s application for a Certificate

of Appealability (“COA”) to authorize an appeal, and Chambers is

now seeking a COA from this Court.          For the reasons stated below,

we deny this request.

                                      I

      In 1990, Chambers attended a middle school basketball game,

and several witnesses saw him leave with an eleven year old girl,

Carenthia Bailey (“Bailey”).        When Bailey did not return home that

evening, two of these witnesses reported last seeing her with

Chambers.    Later that evening, these witnesses saw Chambers and

inquired about Bailey.         Chambers responded that he had “got the

little bitch” and then ran away.          The witnesses attempted to catch

him, but he was able to elude capture.          Chambers called the police

and told them that unknown persons were trying to harm him.             When

the police arrived, Chambers denied even knowing Bailey.

      After learning that he was wanted for questioning in Bailey’s

disappearance, Chambers left a telephone message with an officer at

the police station, stating that he “did not want to get in trouble

if this girl came up hurt.”        He later told the officer heading the

investigation that he had only briefly spoken with Bailey on his

way out of the basketball game.        Chambers repeated this story in a

later telephone conversation and in an informal meeting with the



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officer at a restaurant.       Shortly after this meeting, Chambers

admitted leaving the area of the gym in the same direction as

Bailey, but claimed that their paths diverged soon after leaving

the game.

     The following day, Bailey’s body was discovered in a wooded

area near the middle school gym.       The crime scene showed evidence

of a sexual assault, and an autopsy uncovered abdominal wounds and

evidence of sexual assault prior to death.      The police discovered

Bailey’s body while Chambers was being voluntarily questioned at

the local police station.    When confronted with news of the body’s

discovery, Chambers became emotional and stated his remorse for

killing Bailey.     Chambers gave an extensive videotaped confession

after the police advised him of his Miranda rights.     He also signed

a written statement acknowledging that he had been given his

Miranda warnings and admitting to leaving the basketball game with

Bailey, having sex with her in the woods near the gym, and choking

her for about three minutes.    He claimed, however, that he left her

alive.   Later that night, Chambers gave a more complete statement

after again acknowledging he had received and understood his

Miranda warnings.    In this statement, Chambers admitted to choking

Bailey during intercourse, tying her to a tree with her shoe laces,

choking her while tied, untying her, and puncturing her stomach

with a scalpel and protractor.    This confession contained details,

such as the cut design left on Bailey’s abdomen, that were not


                                   3
publicly known.      Thereafter, Chambers told detectives where he had

disposed of the scalpel and protractor, and the detectives, with

Chambers’s help, were able to recover both items.            Possibly due to

a recent rain, the police found no fingerprints or blood on these

weapons.

     Chambers soon partially recanted his confession, and stated

that it was made while he was frightened and nervous.                 Chambers

asserted that he did not believe he had killed Bailey and claimed

for the first time that an acquaintance known as “Duck,” later

identified as Bryan Brooks (“Brooks”), had been watching Chambers

and Bailey have sex.        According to Chambers, Brooks later passed a

scalpel    to    Chambers   through    an   intermediary,   William    Pannell

(“Pannell”), for Chambers to throw away. Chambers then stated that

he had choked Bailey, but left her alive in the woods and theorized

that Brooks had actually killed her.            Following this statement,

Brooks was interviewed and gave a written statement claiming that

he was not around the middle school on the day of the murder.             Soon

thereafter, a jailor overheard Chambers tell another inmate that

“you know that little girl that was killed; that was me.”

     At    his    1991   trial,   Chambers’s    numerous    statements    were

presented to the jury.        In addition, the State’s medical examiner

and numerous other witnesses gave testimony supporting Chambers’s

original murder confessions.          Moreover, Chambers’s friend, Brooks,

testified consistent with his statement to the police--that he had



                                        4
been elsewhere during the crime.       This testimony was corroborated

by other witnesses.



                                II

     This Court may issue a COA only if Chambers has made a

substantial showing of the denial of a constitutional right.       See

28 U.S.C. § 2253(c)(2) (2000).          Such a showing requires the

petitioner to demonstrate that the issues are debatable among

jurists of reason, that a court could resolve the issues in a

different manner, or that the questions are adequate to deserve

encouragement to proceed further.        See Barefoot v. Estelle, 463

U.S. 880, 893, 103 S. Ct. 3383, 3394 (1983); Tucker v. Johnson, 115

F.3d 276 (5th Cir. 1997), as corrected on reh'g, (July 2, 1997).

     The applicable standard for reviewing the merits of Chambers’s

§ 2254 claims is set forth in the 1996 Antiterrorism and Effective

Death Penalty Act (“AEDPA”)1.      Chambers argues that because he

filed a habeas petition in 1995, which was later dismissed for

failure to exhaust state court remedies, we should follow the law

as it existed in 1995.     We disagree.        Chambers’s petition is



     1
      The revised section 2254(d) states that writs of habeas corpus
should not be granted in these cases unless the adjudication of the
claim “(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) (2000).

                                   5
considered under the law that was in effect at the time of his 1998

filing. We do not consider an action that has been dismissed

without prejudice as a pending case.              See Graham v. Johnson, 168

F.3d 762, 776-780 (5th Cir. 1999).

      Chambers’s appeal challenges the district court’s denial of a

single claim that the State of Texas (“State”) knowingly used his

materially false or involuntary confessions to obtain a conviction

in   violation     of   his   due    process    rights      under   the    Fifth   and

Fourteenth    Amendments.           According   to    the    statutory     standard,

Chambers must make a substantial showing that the state court’s

decision to admit his confessions was an “unreasonable application

of clearly established federal law, as determined by the Supreme

Court of the United States.”           28 U.S.C.§ 2254(d)(1).             The Supreme

Court has recently stated that a decision is contrary to clearly

established federal law "if the state court arrives at a conclusion

opposite to that reached by [the Supreme Court] on a question of

law or if the state court decides a case differently than [the]

Court   has   on    a   set   of     materially      indistinguishable       facts.”

Williams v. Taylor, --- U.S. ---, 120 S. Ct. 1495, 2000 WL 385369,

at *28 (2000).      The Court stated that § 2254(d)(1)'s unreasonable

application standard, allows a writ to issue "if the state court

identifies the correct governing legal principle from [the] Court's

decisions but unreasonably applies that principle to the facts of

the prisoner's case.”         Williams, 120 S. Ct at ---, 2000 WL 385369,


                                         6
at *28. Moreover, factual findings are presumed to be correct, see

28 U.S.C. § 2254(e)(1), and we will give deference to the state

court's   findings   unless   they   were   “based   on   an   unreasonable

determination of the facts in light of the evidence presented in

the state court proceeding.”     Id. § 2254(d)(2); see also, Hill v.

Johnson, --- F.3d ---, 2000 WL 426219, *2 (5th Cir. Apr. 20, 2000).

Because Chambers’s claims fail to meet either of these standards,

we agree with the district court that Chambers has failed to make

a substantial showing of the denial of a constitutional right, and,

accordingly, we deny issuance of a COA.



                                     III

     Chambers argues that the district court erred in rejecting his

claim that the state knowingly introduced false testimony.             More

particularly, he contends the prosecution should have known his

confessions were involuntary and false because they were obtained

through the use of coercive tactics.        He contends further that the

prosecution’s knowledge of the falsity of his confession was made

even more apparent by the inconsistency between the confession and

the physical evidence.

     The trial court’s review of the record led it to conclude that

Chambers had not introduced sufficient evidence to support his

claim that the prosecution knowingly introduced false testimony.

The district court held that the state trial court’s findings were



                                      7
not unreasonable and were fully supported by the record.



                                       A.

     To   obtain   relief   on   his   claim    that   the   state    knowingly

introduced    false   testimony,       Chambers    bears     the     burden   of

establishing that the evidence was false, that the false testimony

was material, and that the prosecution offered the testimony

knowing it to be false.       Giglio v. United States, 405 U.S. 150,

153-154 (1963); Schlang v. Heard, 691 F.2d 796, 799 (5th Cir.

1982).

     Chambers challenged the voluntariness and truthfulness of his

confessions in state court at a lengthy pretrial suppression

hearing, on direct appeal, and in an application for state habeas

relief.    After the suppression hearing, the trial court entered

findings of fact and conclusions of law that Chambers’s confessions

were knowingly and voluntarily made.           On direct appeal, the Texas

Court of Criminal Appeals gave a detailed explanation of the

circumstances of Chambers’s confession and its basis for rejecting

Chambers’s arguments that his confessions were involuntary and

false.    Furthermore, the state habeas trial court entered detailed

findings rejecting these same arguments.2          In support of his state

     2
     The state habeas trial court entered the following findings
of fact and conclusions of law relevant to these allegations:

     FINDINGS OF FACT:

     3.     [Chambers] was not under arrest when he gave

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habeas petition, Chambers proffered the affidavits of two forensic

pathologists critical of Dr. Gonzalez, the State’s medical expert




          his first statement to police.

     4.   [Chambers’s] confessions given after his
          arrest were freely, intelligently, knowingly,
          and voluntarily given.

     5.   [Chambers’s] confessions after he was given
          his Miranda and statutory warning were (sic)
          not tainted by any prior statement and were
          freely,    intelligently,   knowingly,   and
          voluntarily given.

     7.   There is no credible evidence that the legally
          obtained confessions were obtained by a police
          “penchant” for illegal confessions.

     8.   There is no credible evidence that the police
          interrogation induced a false confession.

     9.   The    confessions[’]   admissibility    was
          considered and found to be voluntarily given
          on direct appeal.

     CONCLUSIONS OF LAW:

     2.   The police interrogation techniques did not
          render   [Chambers’s]  voluntary   statement
          involuntary.

     5.   [Chambers]’s    confessions    were    freely,
          intelligently, knowingly, and voluntarily made
          by [Chambers’s] after a knowing, intelligent,
          and voluntary waiver of his rights.

     6.   [Chambers]’s confessions were legally obtained
          after a free, knowing, intelligent, and
          voluntary waiver of [Chambers]’s rights.

     7.   The police activity in prior cases was not a
          cause-in-fact   of   any   of   [Chambers]’s
          confessions.


                                9
who examined Bailey’s body and testified at trial.                   While these

affidavits may generally support a conclusion that Gonzalez did not

utilize the most advanced techniques for retrieving, documenting,

or   preserving    forensic   evidence,      the    state   habeas    court   was

entitled to find that they were insufficient to cast enough doubt

on Chambers’s confessions to show they were materially untrue. The

federal district court correctly held that the state courts’

rejections    of    Chambers’s      claims   that    his    confessions       were

materially false did not involve an unreasonable application of

clearly established federal law or an unreasonable determination of

the facts in light of the evidence, 28 U.S.C. § 2254(d).



                                       B.

      Even   if    Chambers   had    shown    that    his   confessions       were

materially false, he must also prove that Texas prosecutors knew or

should have known of their falsity in order to obtain habeas relief

from this Court.     See Blackmon v. Scott, 22 F.3d 560, 565 (5th Cir.

1994).   The facts surrounding Bailey’s disappearance — which are

largely undisputed — belie this claim: (1) Chambers had last been

seen with Bailey before her disappearance; (2) Chambers contacted

police and stated that if Bailey “came up hurt,” he was not

involved; (3) when a police investigator informed him that Bailey

had been found dead, he blurted out that he did not mean to hurt

her; (4) after Chambers gave the second written statement, he took



                                       10
the police officers to the location where he disposed of the

scalpel;    (5)    until    that    time,     the    police   knew    neither    what

instrument was used in the murder nor where it was located; (6)

Chambers never denied going into the woods where Bailey’s body was

found and having intercourse with her; (7) after Chambers had given

at least two statements in which he did not mention that anyone

else was in the woods with him and Bailey, he came up with a

different version; and (8) this version was contrary to witness

accounts concerning the whereabouts of Brooks, Chambers’s friend

who    he   attempted      to    implicate    in     the   crime.      Because       the

prosecutors were aware of these facts, Chambers’s claim that they

knew or should have known that his confessions were untrue is very

dubious.

       In support of this claim, Chambers argues that investigators

purposefully       used    an     interrogator,       Officer       Alexander,       and

interrogation tactics that had recently been shown to elicit a

false confession from another suspect. In addition, he argues that

another false confession Officer Alexander obtained several years

before he questioned Chambers should have put the officers on

heightened      notice    that    Chambers’s       confessions      were    materially

untrue.     However, as previously noted, the Texas Court of Criminal

Appeals found that Officer Alexander had minimal involvement in

questioning Chambers.           Moreover, as stated above, the state courts

have    found     that    the    officers     used    no   coercive        tactics    in



                                         11
questioning Chambers. See generally Pemberton v. Collins, 991 F.2d

1218, 1225 (5th Cir.1993).      These state court rulings are not

unreasonable in light of the evidence.



                                     IV

     For the above reasons, we conclude that Chambers has failed to

make a substantial showing of the denial of a constitutional right.

We   therefore   deny   Chambers’s        motion   for   a   Certificate   of

Appealability.




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