     Case: 17-70010      Document: 00515259502         Page: 1    Date Filed: 01/06/2020




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


                                      No. 17-70010                               FILED
                                                                           January 6, 2020
                                                                            Lyle W. Cayce
REINALDO DENNES,                                                                 Clerk

              Petitioner – Appellant

v.

LORIE DAVIS, 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. 4:14-CV-19


Before JONES, SMITH, and DENNIS, Circuit Judges.
EDITH H. JONES, Circuit Judge:*
       Reinaldo Dennes (“Dennes”), a Texas death row inmate, seeks review of
the district court’s denial of his federal habeas petition.               We granted a
certificate of appealability (“COA”) on his claims that the State wrongly
suppressed impeachment evidence in violation of Brady v. Maryland and
Banks v. Dretke. We AFFIRM the district court’s denial of relief on those
claims and DENY a COA on Dennes’s challenges to the selection of two jurors.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                 No. 17-70010
                               I. Background
      On September 4, 1997, Dennes was convicted of capital murder and
sentenced to death for the murder of Janos Szucs during the commission of a
robbery. The Texas Court of Criminal Appeals (“TCCA”) affirmed his sentence
and conviction on direct appeal. See Dennes v. State, No. 72,966 (Tex. Crim.
App. Jan. 5, 2000). Dennes filed a state application for a writ of habeas corpus,
which the TCCA denied based on the findings of fact and conclusions of law
made by the trial court. See Ex Parte Dennes, No. WR-34,627-02, 2013 WL
6673058 (Tex. Crim. App. Dec. 18, 2013).
      Dennes then sought federal habeas relief on thirty-three grounds in the
Southern District of Texas. The district court denied habeas relief on all
grounds and denied a COA, finding that “each of Dennes’s claims” was
“foreclosed by clear, binding precedent.” Dennes v. Davis, 2017 WL 1102697,
at *17 (S.D. Tex. Mar. 22, 2017). Dennes then sought a COA from this court,
which we granted limited to the following three issues:
      1. the claim that the state suppressed evidence that Balderas was
      a “long-time informant” for law enforcement in Harris County,
      Texas; and
      2. the claim that the state suppressed evidence or denied due
      process by not timely revealing information about Balderas’s,
      Fugon’s, and Elvira’s participation in the Tsang robbery; and
      3. how petitioner satisfies the cause/prejudice standards for not
      having raised these issues in the state court.
      The TCCA summarized the relevant facts of the crime in its opinion on
direct appeal:
        In December of 1995, Antonio Ramirez came from Ecuador to
      work in Texas. Shortly after his arrival, Ramirez met a man



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                                  No. 17-70010
       named Francisco Rojas who sold jewelry for [Dennes]. 1 Some time
       later, Ramirez gave several rings to Rojas that he wanted to sell.
       Rojas then took Ramirez and the rings to [Dennes] at [Dennes]’s
       office in the Greenrich Building on Richmond Avenue. During this
       visit, Ramirez noticed a lathe in [Dennes]’s jewelry workshop and
       began to play with it. [Dennes] asked Ramirez if he knew how to
       operate the machine and Ramirez said that he did. [Dennis] then
       “hired” Ramirez to make watch bezels for him. 2
           Shortly thereafter [Dennes] invited Ramirez to travel to Mexico
       with him to buy a diamond. After the diamond purchase, the pair
       returned to Texas and [Dennes] gave Ramirez more work. In early
       January, 1996, [Dennes] made a sketch for Ramirez and asked him
       if he could make the object depicted. By the time he completed the
       job, Ramirez had manufactured what turned out to be a silencer
       for [Dennes]. After the silencer was completed, [Dennes], his
       brother Alberto, and Ramirez went to a field a few minutes away
       to test it. Thinking the silencer did not work as it should, [Dennes]
       modified his design and had Ramirez make another one. [Dennes]
       test fired this model in his office.
          Shortly after the completion of the second silencer, [Dennes]
       asked Ramirez to help him and Alberto rob a jewelry dealer who
       also had an office in the Greenrich Building. [Dennes] explained
       that he would take the videotape from the security station while
       Ramirez secured the diamonds and Alberto shot the dealer.
       Ramirez consented, but returned to South America two days
       later. 3
          Estrella Martinez, [Dennes]’s lover, had a cleaning job at the
       Greenrich Building. In January of 1996, [Dennes] told Martinez
       he wanted her to let him in a side door of the building after working
       hours. He told her he was going to take some videotapes from the
       security guard’s station on the first floor. On January 22, 1996,
       [Dennes] gave Martinez a cellular phone with which he planned to
       call her to tell her when to let him and Alberto into the building.


       1   [Dennes] ran a business called “Designs by Reinaldo.”

       2Ramirez stated that he did not expect to be paid for this work, but thought it would
be a good thing to do while waiting to get money from the sale of his rings.

       3Ramirez testified that he only consented so as not to alarm the Dennes brothers;
however, he had no intention of helping them.
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                        No. 17-70010
 [Dennes] also wanted Martinez to distract the guard so he could
 take the tapes.
    Janos Szucs was a reputable wholesale diamond dealer who had
 an office in the Greenrich Building. Shortly before his death, Szucs
 had a diamond inventory worth more than $3,600,000 which he
 kept in his office safe. He also had approximately $200,000 in cash
 that he planned to use to purchase diamonds on an upcoming trip.
 Szucs did not have a receptionist or secretary; access to his office
 was controlled through an electronically-locked door. Szucs had a
 television monitor in his office so he could see who was at the door
 and he would allow people in by pushing a remote button located
 on his desk. In early January 1996, Szucs and Sam Solomay
 formed a partnership and Solomay moved into Szucs’s office suite.
    On January 24th, Solomay left the office at 5:40 p.m., but Szucs
 remained, explaining that he had an appointment that evening.
 David Copeland was the security guard on duty at the Greenrich
 Building that evening, working the 3:00 p.m. to 11:00 p.m. shift. A
 videotape recorder at the security desk recorded the images from
 the security cameras around the building. When Copeland arrived
 for his shift, a technician was there working on the surveillance
 system.
     Around 6:30 p.m. that same evening, [Dennes] called Martinez
 on the cellular phone he had provided her and told her to open the
 loading dock door. [Dennes] and Alberto entered and immediately
 turned into a stairwell, thereby avoiding the security guard’s desk.
 Shortly after 7:00 p.m., [Dennes] called Martinez and told her to
 distract the security guard. Martinez told Copeland that she had
 locked her keys in a fifth floor office and asked him to help her
 retrieve them. A little after 7:30 p.m., [Dennes] again called
 Martinez and told her that he needed another distraction. The
 security guard kept the key to the snack bar so Martinez
 approached Copeland and told him that she needed to clean the
 area and asked if he would let her in. Shortly after Martinez began
 cleaning, however, the owner of the snack bar arrived and told her
 to come back later.
    When Copeland returned to the lobby, he found a man kneeling
 behind the security desk apparently working on the security
 system. Copeland assumed this was related to the earlier repairs.
 As Copeland approached, the man scrambled to his feet and
 walked briskly toward the loading dock door. As Copeland neared
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                                No. 17-70010
      the security desk, the man turned and headed back toward the
      guard. When he reached Copeland, the man placed his left hand
      on Copeland’s shoulder, stuck a .9 mm gun with a silencer to
      Copeland’s chest with his other hand and fired. The man shot the
      guard again after he had fallen. As Copeland lay there playing
      dead, he heard the man walk to the security desk. He then heard
      equipment and wires being moved around followed by footsteps
      running toward the loading dock door. 4 The owner of the snack
      bar called “911.”
         Houston Police Officer Paul Terry arrived on the scene to find
      Copeland lying face down in the lobby. Copeland told Terry what
      had happened and the officer unsuccessfully searched for a
      suspect. Inside the lobby, Terry found spent shell casings and
      fragments of a fired bullet. He also noticed that the video
      equipment was missing.
          That same evening, Szucs’s wife, Nicole, became concerned that
      her husband had not arrived home. After several failed attempts
      to reach her husband, she received a call from a friend who worked
      in the Greenrich Building who told her that the building guard had
      been shot. Nicole asked the friend to contact the building’s office
      manager. Sometime after 11:00 p.m., the building manager
      approached one of the officers remaining at the scene. Officer M.R.
      Furstenfeld and a couple of other officers then accompanied the
      manager to Szucs’s suite to check on his welfare. Upon gaining
      access to the office, Furstenfeld found Szucs’s dead body.
      Detectives who arrived at the scene noted no signs of a forced
      entry. They also noticed that the safe was empty and there were
      no signs of the $3.6 million dollar diamond inventory Szucs
      maintained or the $200,000 he was supposed to have on hand in
      cash. Plus, Szucs was not wearing the five-carat diamond pinky
      ring he always wore nor was the ring ever recovered. 5 The




      4 As she walked toward the restrooms, Martinez looked into the lobby and saw a man
in overalls approaching the guard with his hands behind his back. Martinez recognized this
person as [Dennes] by his walk, but noted that he was wearing a mustache and some sort of
disguise. Shortly after entering the bathroom, Martinez heard a strange sound. When she
returned to the lobby, Martinez saw the guard lying on the floor bleeding.

      5 Nicole testified that her husband was wearing the ring that morning when she took
him to work.
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                               No. 17-70010
      detectives also discovered that Szucs’s computer had been
      damaged as if someone had tried to remove a disc with tweezers. 6
          The police eventually focused their investigation upon
      [Dennes]. A search of his office revealed a lathe that had been
      broken down and boxed up, a fired .9 mm bullet, and an owner’s
      manual for a .9 mm Taurus handgun. Firearms examiner Robert
      Baldwin determined that the bullets recovered from Szucs’s body,
      the bullet found in [Dennes]’s office, and the bullets found in the
      lobby of the Greenrich Building were all fired from the same gun.
      Moreover, the cartridge casings found in the lobby of the Greenrich
      Building and those found in the field where [Dennes] tested the
      silencer were fired from the same gun. The weapon was
      determined to be either a Taurus or a Beretta .9 mm handgun.
Dennes, slip op. at 2–7 (Tex. Crim. App. Jan. 5, 2000) (footnotes in original).
      Evidence presented at the punishment phase of trial contributed to the
jury’s findings that it was probable that Dennes would commit acts of criminal
violence constituting a continuing threat to society and that he caused and
intended Szuc’s death or anticipated that a human life would be taken. The
jury was informed that Dennes had been placed on deferred adjudication for
180 days for indecent exposure.
      Relevant here, and more important, Dennes was linked to another
robbery that took place in 1995, within a few months of the Szucs murder.
Specifically, Dennes had approached an acquaintance, David Balderas, to
suggest robbing diamond courier Albert Ohayon, whom Dennes knew from
past employment. Balderas testified that he acted as a middleman between
Dennes and the perpetrators, Hector Fugon and Francisco Elvira, to carry out
the 1995 robbery. Dennes’s involvement was significant: he suggested that
Balderas commit the robbery himself or find others to do so, met with Balderas,
Fugon, and Elvira at a fast food restaurant to discuss the robbery; provided
Balderas with the address and drove Balderas to the neighborhood to show


      6   Szucs kept his diamond inventory records on the computer.
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                             No. 17-70010
him the house; and contacted Balderas when he learned the occupant was
home.   As it turned out, Fugon and Elvira, at the direction of Balderas,
mistakenly invaded the home belonging to Danny Tsang, not Albert Ohayon.
They terrorized the Tsang family, took some jewelry, a watch, a camera, some
clothing, a gun, and a stereo system, and fled in Tsang’s car. When the police
checked on Ohayon the following day, they learned he was in the diamond
wholesale business and had just returned from a trip with approximately
$500,000 worth of diamonds.
                          II. Standards of Review
      Under the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), “our review [of Dennes’s habeas petition] is limited by the COA.”
Adekeye v. Davis, 938 F.3d 678, 682 (5th Cir. 2019). “COAs are granted on an
issue-by-issue basis, thereby limiting appellate review to those issues alone.”
Id. (citing Lackey v. Johnson, 116 F.3d 149, 151 (5th Cir. 1997)). To merit a
COA, a petitioner must “demonstrate that reasonable jurists would find the
district court’s assessment of the constitutional claims debatable or wrong.”
Miller-El v. Cockrell, 537 U.S. 322, 338, 123 S. Ct. 1029, 1040 (2003) (internal
quotation marks and citations omitted).
      Further, under AEDPA, federal “court[s] may not grant habeas relief on
a claim that a state court has adjudicated on the merits,” Harrison v.
Quarterman, 496 F.3d 419, 424 (5th Cir. 2007), unless the state courts’ decision
“was contrary to, or involved an unreasonable application of, clearly
established Federal law . . . ,” 28 U.S.C. § 2254(d)(1), or “was based on an
unreasonable determination of the facts in light of the evidence presented in
the State court proceedings.” 28 U.S.C. § 2254(d)(2). When assessing a denial
of habeas relief, “we review the district court’s findings of fact for clear error
and its conclusions of law de novo.” Dorsey v. Stephens, 720 F.3d 309, 314 (5th
Cir. 2013).

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                                      No. 17-70010
                                    III. Discussion
                                   A. Brady Claims
       With respect to the district court’s denial of his Brady claims, Dennes
contends the State suppressed material impeachment evidence that:
(1) Balderas 7 was a police informant; 8 and (2) parts of Fugon’s and Elvira’s
testimony at their separate trial impeached important aspects of Balderas’s
testimony concerning the Tsang robbery. 9 Dennes also asserts that he can
show cause and prejudice for his failure to present relevant facts in support of
his Brady claim in state court. Dennes contends that the State deliberately
delayed disclosure of this impeachment evidence and suppressed critical
information about the Tsang robbery, such that Dennes’s counsel could not
make effective use of the information at trial. 10 The district court denied all of
Dennes’s Brady claims because “the bulk of the allegedly suppressed evidence
was available to Dennes and was not suppressed within the meaning of Brady;”


       7Balderas was called as a witness during the punishment phase and testified that he
was never arrested or charged for the Tsang robbery, that he told prosecutors everything he
knew about the Tsang robbery, and that he hoped to receive immunity for his role in the
robbery in exchange for his testimony.

       8 Until Dennes petitioned this court for a COA, his claims regarding Balderas’s status
as a police informant focused on an undisclosed contractual arrangement between Harris
County and Balderas in which the State dismissed two criminal charges against Balderas in
exchange for his providing information unrelated to Dennes’s case. In his COA petition,
Dennes placed much greater emphasis on his claim that Balderas had an “ongoing-informant
relationship” with the State that lasted ten years and existed during Dennes’s trial. Neither
the TCCA nor the district court addressed this point below.

       9 Specifically, Dennes argues that during their trial for the Tsang robbery, (1) Fugon
and Elvira both failed to identify Dennes as being involved; (2) Fugon denied knowing
Balderas and denied that Balderas was involved in the Tsang robbery; and (3) Elvira never
identified Balderas or Dennes as being involved in the Tsang robbery.

       10 Specifically, Dennes argues that if his trial counsel had received timely advance
notice of the Tsang robbery, “trial counsel could have moved for a continuance of Dennes’s
trial until exculpatory witnesses Fugon and Elvira no longer had a Fifth Amendment
privilege against self-incrimination, after their appeals became final, and Dennes could then
compel their exculpatory testimony.”
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                                No. 17-70010
Dennes “fail[ed] to demonstrate that the evidence was material;” and at least
some of his allegations were procedurally barred for failure to exhaust state
court remedies. Dennes, 2017 WL 1102697, at *6–7.
      To establish a Brady violation, Dennes had to prove that (1) the
prosecution actually suppressed evidence, (2) the suppressed evidence was
favorable to him, and (3) the suppressed evidence is material. See Kyles v.
Whitley, 514 U.S. 419, 433–34, 115 S. Ct. 1555, 1565–66 (1995); see also
Strickler v. Greene, 527 U.S. 263, 281–82, 119 S. Ct. 1936, 1948 (1999) (“The
evidence at issue must be favorable to the accused, either because it is
exculpatory, or because it is impeaching; that evidence must have been
suppressed by the State, either willfully or inadvertently; and prejudice must
have ensued.”).   Evidence is considered 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.”            United States v. Bagley,
473 U.S. 667, 682, 105 S. Ct. 3375, 3383 (1985). “A ‘reasonable probability’ is
a probability sufficient to undermine confidence in the outcome.” Id.; see also
United States v. Sipe, 388 F.3d 471, 485 (5th Cir. 2004). But if the suppressed
evidence was discoverable through due diligence, a petitioner’s Brady claim
necessarily fails. United States v. Brown, 650 F.3d 581, 588 (5th Cir. 2011),
cert. denied, 566 U.S. 970, 132 S. Ct. 1969 (2012).
   1. Evidence Concerning Balderas’s Status as a Police Informant
      In his motion for a new trial in state court, Dennes alleged that
Balderas’s status as a police informant was material impeachment evidence
that had been suppressed from the defense. Specifically, Dennes asserted that
the state failed to disclose a contractual arrangement with Harris County
involving different criminal offenses from those in Dennes’s case, and that the
state had dismissed two criminal charges against Balderas in exchange for his


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                              No. 17-70010
providing information also unrelated to Dennes’s case. The deal allegedly
prompted Balderas to testify falsely against Dennes.
      The state courts rejected these contentions.         The state trial court
evaluated the evidence of dealings between Harris County and Balderas and
concluded it did not see “the relevancy at all with regard to the trial of
[Dennes’s] case or the testimony of anybody that has provided any evidence in
[Dennes’s] case regarding the effect of these documents on [Balderas’s]
testimony.”   Indeed, the trial court emphasized that because the contract
involved wholly different offenses and the parties had fulfilled their
contractual obligations months before Dennes’s trial began, this evidence
provided no incentive for Balderas to taint his testimony in favor of the State.
The TCCA agreed, holding, “As [Balderas] had no relation to the instant case
and the contract was completed before the trial in [Dennes’s] case, [Dennes]
fails to show there was a reasonable probability the outcome of the trial would
have been different.”
      The district court also agreed that the completed contract between
Harris County and Balderas was not impeachment material because it
provided no reason for Balderas to fabricate his testimony against Dennes. See
Dennes, 2017 WL 1102697, at *6.
      In his brief to this court, Dennes argues that the information about these
dealings is material because it shows a relationship between Balderas and the
State, which he analogizes to the relationship between the sheriff’s office and
the informant who was a star witness at the Banks capital murder trial. Banks
v. Dretke, 540 U.S. 668, 693–94, 124 S. Ct. 1256, 1273–74 (2004). In Banks,
the Supreme Court held that a Brady violation had occurred where the
prosecution failed to turn over evidence of a money payment to the testifying
informant for his involvement in the case against defendant Banks. 540 U.S.
at 685, 124 S. Ct. at 1269. Banks is distinguishable, among other reasons,

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                             No. 17-70010
because the arrangement between Balderas and Harris County existed prior
to and wholly independent of the case against Dennes. 11 And the Bagley case
is distinguishable because there, the witness received a benefit from testifying,
whereas Balderas received none in this case. Bagley, 473 U.S. at 671–72,
105 S. Ct. at 3378–79 (1985). As to this element of the claim, which was
exhausted in the state courts, the TCCA did not unreasonably apply governing
Supreme Court law by denying relief.
       Dennes also seeks to enhance his Brady claim by asserting that the State
failed to disclose that Balderas was an ongoing informant for Harris County
from at least 1989 through 1999, two years after Dennes’s trial. Dennes raised
this argument about Balderas’s ongoing informant status for the first time in
his petition for a COA from this court. Dennes makes three claims based on
this allegation: 1) at trial, the State falsely represented that Balderas was not
an ongoing informant at the time of Dennes’s trial; 2) this was valuable
impeachment evidence that Brady compelled the state to provide the defense
and which could have been used to attack Balderas’s credibility under Davis v.
Alaska, 415 U.S. 308 (1974); and 3) the State trial court suggested it may have
ruled differently “if there was an ongoing relationship.”
       Several procedural hurdles must be overcome for Dennes to succeed on
this argument. The evidence in support of his contention that Balderas was
an ongoing informant for the State derives from statements made by
Balderas’s attorney in a federal court sentencing hearing in 1999, the
transcript of which was never presented to the state courts. Federal courts are
precluded, absent limited circumstances, from considering evidence in habeas


       11 Dennes’s related claim, raised for the first time in federal court, that Balderas’s
drug charges were dismissed as consideration for his testimony in Dennes’s case, is not only
entirely speculative but is procedurally barred because he failed to present the claim to the
TCCA for review on either direct appeal or in his state habeas application, as recognized by
the district court. See 28 U.S.C. § 2254(b)(1); Dennes, 2017 WL 1102697, at *6–7.
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                               No. 17-70010
proceedings that was not produced before the state courts for adjudication on
the merits. Cullen v. Pinholster, 563 U.S. 170, 185, 131 S. Ct. 1388, 1400–01
(2011). On that basis alone, this claim fails. But to the extent that Dennes
raises this as a standalone Brady claim, it is also procedurally barred by not
having been raised at all in the state courts. See 28 U.S.C. § 2254(b)(1).
        Dennes attempts to show cause and prejudice as a means to overcome
the procedural bar against his unexhausted claim and to avoid AEDPA’s
limitation on federal courts’ review to evidence developed in state court
records. Dennes relies on Banks for the proposition that a petitioner can
overcome a procedural bar to a Brady claim if suppression of material
exculpatory evidence caused the default. Banks, 540 U.S. at 691, 124 S. Ct. at
1272.
        Cause, in this context, means that the State prevented Dennes from
gaining access to the relevant Brady information. “[A] petitioner shows ‘cause’
if ‘the reason for his failure to develop facts in state-court proceedings was the
State’s suppression of the relevant evidence.’” Murphy v. Davis, 901 F.3d 578,
597 (5th Cir. 2018) (quoting Banks, 540 U.S. at 691, 124 S. Ct. at 1272).
Dennes claims he was not aware of Balderas’s alleged longstanding status as
an informant for Harris County because the State withheld the information.
But evidence is not suppressed under Brady if the defendant knew or should
have known of Balderas’s status. Here, there is ample evidence to suggest
that, at minimum, Dennes should have known about Balderas’s status.
        At the motion for new trial hearing, Dennes’s counsel argued that
Balderas “had a working relation and we believe the documents speak of an
ongoing working relationship with the State of Texas out of which he received
a dismissal of a major drug case . . . that relationship with the State and his
desire to work with the state in order to secure dismissal of the case . . . should
have been disclosed under Brady.” During the course of these proceedings, the

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                              No. 17-70010
State also turned over Balderas’s informant contract to the trial court and
acknowledged his informant relationship with the State.                     And, as if this
evidence were not enough, Dennes’s counsel proffered the testimony of
Balderas’s attorney, John Munier, who was present at the motion for new trial
hearing and was willing to testify about Balderas’s informant relationship with
the State. 12 Taken together, these points establish that Dennes had, if not
actual knowledge, sufficient opportunity to learn of Balderas’s status by the
conclusion of the motion for new trial hearing.
       Dennes claims, however, he first learned of Balderas’s status from the
transcript of Balderas’s 1999 sentencing hearing. But supposing this is true,
the TCCA did not decide his direct appeal until Jan. 5, 2000, and his state
habeas      appeal    remained       pending       until    2013.      Dennes      v.   Davis,
2017 WL 1102697, at *3 (S.D. Tex. Mar. 22, 2017). Thus, since Dennes should
have been aware during state court proceedings, he could have supplemented
his brief or raised this suppression issue in state courts before filing his federal
habeas petition. 13
       Even assuming arguendo that Dennes’s long-term informant status was
“suppressed,” it is not material. “Unless suppressed evidence is material for
Brady purposes, [its] suppression [does] not give rise to sufficient prejudice to



       12 John Munier was Balderas’s attorney who also later handled Balderas’s 1999
sentencing hearing, the transcript of which allegedly notified Dennes of Balderas’s ongoing
relationship with the State.

       13Dennes claims that he could not have raised this suppression issue in state habeas
proceedings because the TCCA would have treated an amendment to his habeas application
as a successor petition. But if the 1999 hearing did reveal new and suppressed information,
then it would have satisfied the successor petition standard that the “current claims and
issues have not been and could not have been presented previously in a timely initial
application or in a previously considered application filed under this article or Article 11.07
because the factual or legal basis for the claim was unavailable on the date the applicant filed
the previous application[.]” E.g. TEX. CODE CRIM. PROC. ANN. ART. 11.071 § 5(a)(1) (West
2003).
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                               No. 17-70010
overcome [a] procedural default.” Banks, 540 U.S. at 698, 124 S. Ct. at 1276
(quotation marks and citations omitted). The test for materiality and prejudice
is 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, 124 S. Ct. at 1276; Banks, 540 U.S. at 698,
124 S. Ct. at 1276; Strickler, 527 U.S. at 280, 119 S. Ct. at 1948. Balderas’s
conflict of interest had already been made glaringly obvious to the jury. At the
time of Dennes’s trial, Balderas had not received an official offer of immunity
in exchange for his testimony, and Dennes’s counsel drew significant attention
to this fact. Additionally, and contrary to the narrative Dennes attempts to
craft suggesting that Balderas willingly helped the prosecution, Balderas
testified that the prosecution subpoenaed his testimony. That Balderas was
involuntarily “drug” into court suggests he did not take the stand pursuant to
an ongoing relationship with the State. Moreover, Munier’s testimony at the
1999 sentencing hearing affirmed that Balderas received no benefit for his
testimony.
      Evidence of Balderas’s long-time informant status would have been, at
best, cumulative proof of bias. But cumulative impeachment is not material.
“Undisclosed evidence that is merely cumulative of other evidence is not
material[.]” Rocha v. Thaler, 619 F.3d 387, 396 (5th Cir. 2010); see Canales v.
Stephens, 765 F.3d 551, 575–76 (5th Cir. 2014) (finding that suppressed
evidence of inmate-witnesses receiving assistance with their housing and
parole issues in exchange for testimony was not prejudicial because “the jury
heard at least some of this information at trial,” as “Canales’s attorney at least
asked some inmate-witnesses about being encouraged to help the State in
exchange for benefits”); see also Felder v. Johnson, 180 F.3d 206, 213 (5th Cir.
1999) (citing United States v. Amiel, 95 F.3d 135, 145 (2d Cir. 1996)
(“Suppressed evidence is not material when it merely furnishes an additional

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                                No. 17-70010
basis on which to impeach a witness whose credibility has already been shown
to be questionable.”)).
      Additionally, circumstantial evidence strongly corroborates Balderas’s
testimony. “[T]he impeached testimony of a witness whose account is strongly
corroborated by additional evidence supporting a guilty verdict . . . generally is
not found to be material[.]”     Rocha, 619 F.3d at 396–97 (quotation marks
omitted); see also Kopycinski v. Scott, 64 F.3d 223, 226 (5th Cir. 1995) (finding
that a witness leading police to the decedent’s body was corroborative of his
testimony that the defendant had murdered the decedent such that “leading
the police to the body essentially makes his testimony unimpeachable”).
      The Tsang home invasion was undertaken for jewelry, as shown by
Fugon and Elvira’s repeated demands for diamonds. Albert Ohayon and his
wife, Rachel, the likely intended targets of the robbery, lived just a few doors
away. Ohayon was a diamond salesman who had just returned to Houston
with approximately $500,000 worth of diamonds in his briefcase. Ms. Ohayon
testified that she knew Dennes from her work in the diamond business, and
that Dennes and her husband had worked for the same company, albeit at
different times. MGI, Ms. Ohayon’s former place of employment, and Szucs
Jewelry were both subsidiary companies of Satler’s Jewelry, where Dennes had
worked.
      Neither Balderas, Fugon, nor Elvira would have had any reason to know
where a diamond wholesaler lived. Balderas, for example, was an automobile
body shop worker. Moreover, both robberies occurred close in time, 14 both were
planned robberies of diamond wholesalers, and both were connected to the
company Dennes had previously worked for. Such evidence makes it unlikely
that a jury would have found Balderas to be any less credible based on his


      14 The Tsang home invasion occurred on November 15, 1995. Szucs’s robbery and
murder took place just over two months later, on January 24, 1996.
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                               No. 17-70010
alleged informant status on unrelated matters. Once again, Dennes is unable
to show materiality or prejudice.
      Finally, several of Dennes’s extreme claims about Balderas’s “false”
testimony simply do not square with the record.       Dennes claims that the
prosecution falsely presented Balderas as an honest witness who came forward
of his own volition with information about the Tsang robbery and received
nothing but immunity in exchange for his participation. Yet Dennes offers
nothing except naked speculation to suggest this narrative is untrue. For
example, Dennes asserts that Balderas lied when he testified that he
“voluntarily” approached his brother-in-law, a Houston Police Department
(“HPD”) homicide detective, with information about the Tsang home invasion.
In support, Dennes points to Balderas’s arrest for felony possession of
marijuana the same month he discussed the Tsang home invasion with the
HPD. Besides the sequence of events, however, Dennes offers no evidence that
there was a quid pro quo, the drug charges were dropped pursuant to a contract
that concluded prior to his testimony Dennes’s trial, and Dennes ignores that
Balderas’s testimony was subpoenaed. As another example, Dennes argues
that the prosecution lied about their intent to use Balderas as a witness. Not
only did the prosecution not have to disclose its witnesses or strategy at the
January 1997 pre-trial hearing, Dennes offers no evidence that raising the
Tsang home invasion or calling Balderas as a witness were definitive parts of
the State’s strategy at that point. The State counters that there was no intent
to call Balderas until Fugon invoked his Fifth Amendment privilege and was
unavailable to testify while his conviction was pending on direct appeal. This
is corroborated by Officer Miller’s 1996 letter indicating that he intended to
focus on securing Fugon’s testimony against Dennes.
      Dennes raises these claims of “false” testimony to avail himself of the
more lenient standard to establish prejudice under Giglio v. United States,

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                                  No. 17-70010
405 U.S. 150, 154, 92 S. Ct. 763, 766 (1972) (“A new trial is required if the false
testimony could . . . in any reasonable likelihood have affected the judgment of
the jury . . ..”) (internal quotation marks and citations omitted).                But, as
pointed out above, the allegations that the State knowingly used “false”
testimony are dubious at best and largely foreclosed by the record. In Giglio,
a key witness testified that he believed he could still be prosecuted for a crime
even though the State had granted him immunity in exchange for his
testimony.     Id. at 151–52, 765.        The prosecution’s failure to correct this
blatantly false testimony led the Supreme Court to remand for a new trial.
Dennes has not shown that anything approximating that level of false
testimony occurred during his trial, and he is therefore held to the stricter
materiality standards under Brady. Accordingly, Dennes has failed to show
cause or prejudice to overcome the procedural barriers to his claims.
    2. Evidence Concerning Fugon’s and Elvira’s Testimony
       Dennes’s remaining Brady claims assert that the State failed to disclose
until immediately before trial that the Tsang robbery would be offered as
evidence of extraneous crimes during any punishment phase. Specifically,
Dennes claims that the robbers’ testimony at their trial for the Tsang home
invasion was known by the Harris County District Attorneys who were
handling that case, 15 but that the State did not disclose Fugon’s name or his
role in the crime until August 13, 1997, five days before the beginning of
testimony at the guilt phase of Dennes’s case on August 18. Dennes asserts
his counsel had insufficient time to ascertain that both Fugon and Elvira had



       15Balderas offers a letter from 1996 that was faxed from an investigator in the Dennes
case to a then-prosecutor of Dennes regarding the investigator’s discussions with Fugon,
Elvira, and Balderas. Because this letter does not appear to have been introduced in the
state courts, this court is prohibited from considering it. Pinholster, 563 U.S. at 185,
131 S. Ct. at 1400–01.

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                               No. 17-70010
testified that they did not know Balderas and that they could not identify
Dennes as an instigator of the Tsang robbery. 16 Consequently, Dennes was
deprived of further impeachment evidence against Balderas, the only witness
presented by the State concerning Dennes’s involvement in the Tsang robbery.
Dennes further argues that his federal habeas counsel only located Fugon’s
testimony after “several months” because the State allegedly failed to provide
Dennes’s trial counsel with Fugon’s and Elvira’s transcripts with enough time
to “make meaningful use of the impeachment information.”
       As with the late-breaking claims about Balderas’s status as a long-term
police informant, the evidence of Fugon’s and Elvira’s testimony at the Tsang
robbery trial was not raised in the state courts and is therefore not amenable
to our consideration. Pinholster, 563 U.S. at 185, 131 S. Ct. at 1400–01. 17
       In addition, the district court, ruling on the merits, observed that most
of this additional information originated from Fugon’s trial, and thus “the bulk
of the allegedly suppressed evidence was available to Dennes.”                    Dennes,
2017 WL 1102697, at *6.
       We agree that this evidence became available to Dennes at least in
sufficient time for him to have used it in state court proceedings. The Tsang
trial occurred almost a year before Dennes’s capital murder trial. Fugon’s and
Elvira’s convictions were on appeal at the time of Dennes’s capital murder
trial. Dennes had been informed in early 1996 of the State’s plan to introduce
evidence of his connection to an extraneous home invasion robbery.                     His



       16Dennes posed the timing issue in various ways in the state courts and was rebuffed.
To the extent that the timing ultimately raised only issues of state law, no federal
constitutional claims are involved.

       17  Dennes’s contention that his federal habeas counsel had to pry out the trial
testimony of Fugon and Elvira over “several months” rings hollow in light of the timing of
their trial in 1996 and the fact that the TCCA did not issue its ruling on Dennes’s direct
appeal until January 5, 2000.
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                                No. 17-70010
counsel was given access to the HPD offense reports about the robbery, which
revealed the perpetrators’ identities, before the beginning of the punishment
phase when the evidence of the Tsang robbery was introduced. Most important
for present purposes, even if, as counsel asserts, Dennes did not have timely
access to the Fugon/Elvira trial transcript during his own trial, the transcript
was certainly available during the over-two-year interlude between Dennes’s
conviction and the rendering of the TCCA opinion affirming his conviction in
2000. The State has no obligation to provide exculpatory or impeachment
evidence that is available to the defense through the exercise of due diligence.
See Rector v. Johnson, 120 F.3d 551, 558–59 (5th Cir. 1997); see also Kutzner v.
Cockrell, 303 F.3d 333, 336 (5th Cir. 2002) (“Brady does not obligate the State
to furnish a defendant with exculpatory evidence that is fully available to the
defendant through the exercise of reasonable diligence.”). The transcript was
not suppressed during state court proceedings, yet Dennes never sought to
offer it until his federal habeas petition.   As a result, this claim is also
unexhausted and procedurally barred from review in federal court. 28 U.S.C.
Sec. 2254(b)(1).
                         B. Jury Selection Claims
      Dennes also seeks a COA based on a claim that the trial court violated
his Sixth and Fourteenth Amendment right to be tried by an impartial jury by
denying his challenges for cause to two prospective jurors. Dennes contends
that two venire members, Richard Miller and Martha Jean Gutierrez, were
biased and that challenges for cause should have been granted as to both
because their views would prevent or substantially impair the performance of
their duties as jurors in accordance with their oaths. Dennes argues that the
trial court erroneously required him to exercise his peremptory strikes to
remove those jurors, and he was denied effective use of additional peremptory
strikes whereby he would have removed two other allegedly biased jurors,

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                              No. 17-70010
Irene B. Collins and Belle Symmank. The TCCA rejected this claim on the
basis of state law.
      The district court assumed arguendo that Miller and Gutierrez should
have been removed for cause according to federal constitutional law, but
because the record reflected that the trial court granted Dennes two additional
peremptory strikes, after which both parties “promptly accepted the next juror
on the list as the twelfth juror,” Dennes failed to make any showing “that any
of the jurors, including the alternates, were not impartial.”               Dennes,
2017 WL 1102697, at *12. The court reasoned that “[a]t most, Dennes was
forced to accept an alternate juror who he would have challenged if he had an
additional peremptory challenge,” and thereby failed to demonstrate a Sixth
Amendment violation. Id.
      The Sixth and Fourteenth Amendments guarantee an accused the right
to a trial by an impartial jury, but the forced use of a peremptory challenge
does not rise to the level of a constitutional violation. See Ross v. Oklahoma,
487 U.S. 81, 85–88, 108 S. Ct. 2273, 2277–78 (1988). Rather, a “district court’s
erroneous refusal to grant a defendant’s challenge for cause is only grounds for
reversal if the defendant establishes that the jury which actually sat to decide
his guilt or innocence was not impartial.” United States v. Snarr, 704 F.3d 368,
386 (5th Cir. 2013) (internal quotation marks and citation omitted); see also
Jones v. Dretke, 375 F.3d 352, 355 (5th Cir. 2004) (“As a general rule, a trial
court’s erroneous venire rulings do not constitute reversible constitutional
error ‘so long as the jury that sits is impartial.’” (internal citation omitted)).
      Even assuming that the trial court should have granted Dennes’s
challenges for cause, Dennes cannot establish a constitutional violation
because he used peremptory strikes to exclude both Miller and Gutierrez from
the jury. See Ross, 487 U.S. at 85–88, 108 S. Ct. at 2277–78. Therefore, “[a]ny
claim that the jury was not impartial . . . must focus not on [Miller and

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                                 No. 17-70010
Gutierrez], but on the jurors who ultimately sat.” Id. at 86, 108 S. Ct. at 2277.
Although Dennes asserts that Collins and Symmank were actually biased
jurors who sat on his guilt-innocence and punishment phases of trial, he fails
to identify how or why they were biased or why his counsel did not use
peremptory strikes to remove them. Accordingly, there was no constitutional
violation because the challenged jurors were removed from the jury by
Dennes’s use of peremptory challenges and Dennes cannot establish that he
was sentenced by a partial jury. Id. Reasonable jurists would not debate the
district court’s application of the law governing juror selection and peremptory
strikes in capital trials to the decisions made by the state courts.
                               IV. Conclusion
      For the above-stated reasons, we AFFIRM the district court’s denial of
Dennes’s federal habeas petition insofar as it raises Brady issues and DENY
COA on the jury selection issues.




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