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

                                                  FILED
                                                                                   February 18, 2009

                                            No. 07-70036                         Charles R. Fulbruge III
                                                                                         Clerk

WILLIAM JOSEF BERKLEY

                                                         Petitioner-Appellant
v.

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

                                                         Respondent-Appellee




                      Appeal from the United States District Court
                           for the Western District of Texas
                                USDC No. 3:06-CV-111


Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
        Petitioner-Appellant William Josef Berkley (“Berkley”) was convicted and
sentenced to death in 2002 for the murder of Sophia Martinez (“Martinez”).
Berkley requests a Certificate of Appealability (“COA”) on five issues for which
the district court denied him a COA after rejecting Berkley’s petition for federal
habeas corpus relief. For the reasons detailed below, we decline to grant Berkley
a COA on each issue.



        *
          Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not be published
and is not precedent except under the limited circumstances set forth in 5TH CIR . R. 47.5.4.
                                  No. 07-70036

           I. FACTUAL AND PROCEDURAL BACKGROUND
A.    Factual Background
      On March 10, 2000, a security camera recorded Martinez making a small
withdrawal from an ATM at a bank near her home when a male brandishing a
handgun approached her vehicle and fired a shot into her car.         The male
assailant got into Martinez’s car and forced a bloody-faced Martinez to withdraw
an additional two hundred dollars. Martinez then drove away from the ATM
with the male assailant still in her vehicle.
      The following day, New Mexico State Police located Martinez’s vehicle
near El Paso, Texas. When found, the vehicle contained numerous blood stains.
The El Paso Police located Martinez’s body later that day beside a dirt road in
an isolated location. An autopsy revealed that Martinez had been shot five times
in the head and that she had engaged in intercourse shortly before her death.
      On December 19, 2000, an El Paso grand jury indicted Berkley on a single
count of capital murder for Martinez’s death. On April 19, 2002, a jury found
Berkley guilty of capital murder, and on May 14, 2002, the trial court sentenced
him to death. Berkley’s conviction and sentence were affirmed on direct appeal,
Berkley v. State, No. 74,336 (Tex. Crim. App. Apr. 6, 2005), and the United
States Supreme Court denied his petition for certiorari, Berkley v. Texas, 546
U.S. 1077 (2005). The Texas Court of Criminal Appeals (“TCCA”) denied state
habeas relief on March 8, 2006. Ex Parte Berkley, No. 63,079-01, 2006 WL
561467, at * 1 (Tex. Crim. App. Mar. 8, 2006). The district court denied all of
Berkley’s claims and his request for a COA to this court on August 24, 2007.
Berkley v. Quarterman, 507 F. Supp. 2d 692, 753 (W.D. Tex. 2007). Berkley
appeals the district court’s denial of his request for a COA on five grounds.


                                        2
                                  No. 07-70036

                        II. STANDARD OF REVIEW
      For this court to have jurisdiction to rule on the merits of the appeal,
Berkley must obtain a COA by making “a substantial showing of the denial of
a constitutional right.” 28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell, 537 U.S.
322, 336 (2003). “Under the controlling standard, a petitioner must sho[w] 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.” Miller-
El, 537 U.S. at 336 (alteration in original and internal quotation marks omitted).
“A prisoner seeking a COA must prove something more than the absence of
frivolity or the existence of mere good faith on his or her part.” Id. at 338
(internal quotation marks and citation omitted).             “The petitioner must
demonstrate that reasonable jurists would find the district court’s assessment
of the constitutional claims debatable or wrong.” Id. (internal quotation marks
and citation omitted). “[A] claim can be debatable even though every jurist of
reason might agree, after the COA has been granted and the case has received
full consideration, that petitioner will not prevail.” Id.
      The Supreme Court has instructed that when a district court dismisses a
habeas petition on procedural grounds, “a COA should issue when the prisoner
shows, at least, [1] that jurists of reason would find it debatable whether the
petition states a valid claim of the denial of a constitutional right and [2] that
jurists of reason would find it debatable whether the district court was correct
in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). After
noting that this is a two-part inquiry, the Court encouraged lower courts to
consider the procedural issues first and dispose of any issues that are


                                        3
                                  No. 07-70036

procedurally barred before considering the constitutional issues presented by the
petition. Id. at 485.
      Where a plain procedural bar is present and the district court is
      correct to invoke it to dispose of the case, a reasonable jurist could
      not conclude either that the district court erred in dismissing the
      petition or that the petitioner should be allowed to proceed further.
      In such a circumstance, no appeal would be warranted.
Id. at 484. Finally, “any doubts as to whether a COA should issue must be
resolved in [the petitioner’s] favor.” Ramirez v. Dretke, 398 F.3d 691, 694 (5th
Cir. 2005) (alteration in original and internal quotation marks omitted).
                              III. DISCUSSION
      Berkley requests COA on five issues. First, he asserts that the state trial
court violated his rights when it refused to strike a venire member for cause.
Second, he challenges the trial court’s refusal to instruct the jury that it must
agree unanimously on the specific manner in which Berkley committed capital
murder. Berkley also asserts, in his third challenge to his conviction, that the
trial court erred in failing to instruct the jury on the lesser-included offense of
simple murder. Fourth, Berkley argues that the trial court erred by failing to
instruct the jury that it must find the absence of mitigating factors beyond a
reasonable doubt. Finally, in his fifth challenge to his conviction, Berkley argues
that the prosecution violated his rights under Brady v. Maryland, 373 U.S. 83
(1963). We consider each in turn.
A.    Bias of Venire Member Lucero
      Berkley first argues that he was denied his Sixth and Fourteenth
Amendment right to trial before a fair and impartial jury when the state trial
court refused to strike venire member Albert Ernest Lucero (“Lucero”) for cause.
The district court found that Berkley did not “fairly present” this claim to the

                                        4
                                  No. 07-70036

state court because he did not ask the State to consider this claim on federal
grounds. See Baldwin v. Reese, 541 U.S. 27, 32 (2004) (holding that “ordinarily
a state prisoner does not ‘fairly present’ a claim to a state court if that court
must read beyond a petition or a brief (or a similar document) that does not alert
it to the presence of a federal claim in order to find material, such as a lower
court opinion in the case, that does so” (emphasis added)). Accordingly, the
district court found that Berkley procedurally defaulted on this federal
constitutional claim. In the alternative, the district court found that the claim
lacked merit.
      We must first address “whether . . . jurists of reason would find it
debatable whether the district court was correct in its procedural ruling.” Slack,
529 U.S. at 484. If we conclude that the district court was correct, the inquiry
ends there. Id. In his brief to this court, Berkley has not made any argument
regarding the procedural bar and has waived this argument for failure to brief.
See F ED. R. A PP. P. 28(a)(9); United States v. Lindell, 881 F.2d 1313, 1325 (5th
Cir. 1989). In addition, Berkley failed to meet his burden of demonstrating that
it is debatable whether the district court’s procedural ruling was correct. See
Slack, 529 U.S. at 484. Berkley’s failure to argue the procedural bar issue is
dispositive of his underlying constitutional claim. We therefore deny Berkley a
COA on this issue.
B.    Jury Unanimity as to a Particular Theory of Capital Murder
      Berkley next argues that the state trial court violated his constitutional
right to a unanimous verdict when the court refused to instruct the jury that it
must agree unanimously on the specific manner in which Berkley committed
capital murder (i.e., whether Martinez was murdered during the course of the


                                        5
                                 No. 07-70036

commission of a specific predicate felony, namely robbery, kidnapping, or
aggravated sexual assault).    The district court found that the Texas court
reasonably applied Schad v. Arizona, 501 U.S. 624 (1991), when it rejected
Berkley’s challenge to his jury instructions.
      Berkley argues that the Supreme Court, in Blakely v. Washington , 542
U.S. 296 (2004), declared that “the truth of every accusation against a defendant
should afterwards be confirmed by the unanimous suffrage of twelve of his
equals and neighbors,” id. (internal quotation marks and citation omitted).
However, as Schad made clear, Berkley’s claim is not one of jury unanimity, but
rather a challenge to Texas’s capital murder statute and the permissibility of
defining “capital murder” as a crime involving murder and one of several
alternate felonies. See Schad, 501 U.S. at 624.
      In Schad, the Supreme Court considered whether the jury instructions
violated the petitioner’s right to a unanimous verdict. 501 U.S. at 630. Schad
was convicted of first-degree murder under an Arizona statute which defined
first-degree murder as:
      A murder which is perpetrated by means of poison or lying in wait,
      torture or by any other kind of wilful, deliberate or premeditated
      killing, or which is committed in avoiding or preventing lawful
      arrest or effecting an escape from legal custody, or in the
      perpetration of, or attempt to perpetrate, arson, rape in the first
      degree, robbery, burglary, kidnapping, or mayhem, or sexual
      molestation of a child under the age of thirteen years, is murder of
      the first degree. All other kinds of murder are of the second degree.
Id. at 628 n.1 (quoting A RIZ. R EV. S TAT. A NN. § 13-1105.A (1989)). The jury
instructions did not require the jury to make a unanimous finding on either of
the available theories of premeditated murder or felony murder. Id. The Court,
in Schad, first re-characterized the petitioner’s claim. The Court found that the

                                       6
                                 No. 07-70036

issue was more properly characterized as a challenge to Arizona’s definition of
first-degree murder as a single crime. Id. at 630–31. That is, the petitioner’s
true contention was that “premeditated murder and felony murder are separate
crimes as to which the jury must return separate verdicts.” Id. at 631. The
Court concluded that Schad’s claim was “one of the permissible limits in defining
criminal conduct, as reflected in the instructions to jurors applying the
definitions, not one of jury unanimity.” Id.
      The Court noted that, generally, its “cases reflect a long-established rule
of the criminal law that an indictment need not specify which overt act, among
several named, was the means by which a crime was committed.” Id. The Court
recognized, however, that “there are limits on a State’s authority to decide what
facts are indispensable to proof of a given offense.” Id. at 633. Rather than
adopting a “single test for the level of definitional and verdict specificity
permitted by the Constitution,” id. at 637, the Court asked whether the state
statute’s specificity was consistent with the demands of due process and
fundamental fairness and noted that rationality is an essential component of
that fairness, id. Thus, the critical point is that “at which differences between
means become so important that they may not reasonably be viewed as
alternatives to a common end, but must be treated as differentiating what the
Constitution requires to be treated as separate offenses.” Id. at 633. Thus, in
determining whether a specific statute meets these requirements, courts must
      look both to history and wide practice as guides to fundamental
      values, as well as to narrower analytical methods of testing the
      moral and practical equivalence of the different mental states that
      may satisfy the mens rea element of a single offense. The enquiry
      is undertaken with a threshold presumption of legislative
      competence to determine the appropriate relationship between


                                       7
                                No. 07-70036

      means and ends in defining the elements of a crime.
Id. at 637. Thus, the Schad inquiry has two prongs: (1) whether history and
current practice indicate that the statute reflects fundamental values, and
(2) whether there is a moral equivalence between the two mental states that
permits the statute to satisfy the mens rea element of a single offense through
different mental states. Id. at 637–38; Reed v. Quarterman, 504 F.3d 465,
481–82 (5th Cir. 2007).
      In Reed, we denied a COA to a petitioner’s challenge to a capital murder

jury instruction—which was nearly identical to the instruction Berkley
received—based upon the Texas capital murder statute. 504 F.3d at 482. The
capital murder jury instruction here read, “A person commits capital murder
when such person intentionally causes the death of an individual in the course
of committing or attempting to commit robbery, kidnapping, or aggravated
sexual assault.” In Reed, the defendant challenged a jury charge which provided
that a defendant was guilty of capital murder under Texas law if
      the defendant did then and there intentionally cause the death of
      the complainant in the course of committing or attempting to
      commit robbery of the complainant or in the course of attempting to
      commit aggravated rape of the complainant.
Id. at 479–80. Considering the first Schad prong, we found that “numerous
states have traditionally defined and continue to define first-degree or
aggravated murder as including both a killing in the course of robbery and a
killing in the course of rape or attempted rape.” Id. at 482. In applying the
second prong of the Schad inquiry, we held that “a court could reasonably find
a moral equivalence between murder in the course of robbery and murder in the
course of attempted rape.” Id. at 482; accord Richardson v. United States, 526


                                      8
                                  No. 07-70036

U.S. 813, 818 (1999) (When the underlying offenses are but a means of proving
a single element, “the jury need only agree that the defendant committed . . . the
underlying crimes the Government has tried to prove. The jury need not agree
about which [underlying crime was committed].”); Rodriguez v. Texas, 146
S.W.3d 674, 677 (Tex. Crim. App. 2004) (recognizing a moral equivalence
between the various offenses that can be proven to support the “nature of
conduct” element of capital murder). In Reed, we concluded that “reasonable
jurists would not debate that the Texas court reasonably applied Schad when it
rejected Reed’s challenge to his jury instructions.” Id. at 482.
      This holding, denying a COA to a challenge to Texas’s capital murder
statute after finding that reasonable jurists could not dispute that Schad was
properly applied, controls the instant case. Berkley’s jury instruction was nearly
identical to the jury instruction at issue in Reed. Accordingly, we hold that
reasonable jurists could not debate that the district court correctly concluded
that the Texas court properly applied Schad to this case. We therefore deny
Berkley a COA on this issue.
C.    Lesser-Included Offense Instruction on Simple Murder
      In his third claim for relief, Berkley asserts that the trial court erred in
failing to instruct the jury on the lesser-included offense of simple murder, and
that this omission is reversible error under Beck v. Alabama, 447 U.S. 625
(1980). Before proceeding to the merits of Berkley’s claims, however, we must
first consider whether Berkley has failed to exhaust this claim or is otherwise
procedurally barred from raising the claim before this court. Cf. Slack, 529 U.S.
at 485.   Berkley’s petition fails due to two procedural bars to his claim:
(1) Berkley failed to exhaust his state court remedies, and (2) Berkley has


                                        9
                                    No. 07-70036

procedurally defaulted on his claim by failing to comply with state procedural
rules.
         Berkley failed to request a lesser-included-offense instruction during the
guilt-innocence phase of his trial. He also did not challenge the failure to include
the instruction during either his direct appeal or in his state habeas proceedings.
Berkley candidly admits that this claim is unexhausted, but he argues on federal
habeas review that the futility exception to the exhaustion requirement should
excuse his failure to exhaust this issue in state court. The district court rejected
Berkley’s futility argument and held that it was “statutorily precluded” from
granting federal habeas relief on Berkley’s lesser-included offense claim because
the claim was unexhausted.
         The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),
Pub. L. No. 104-132, 110 Stat. 1214, requires that federal habeas petitioners
“exhaust[] the remedies available in the courts of the State.”           28 U.S.C.
§ 2254(b)(1)(A). “The exhaustion requirement is satisfied when the substance
of the federal habeas claim has been fairly presented to the highest state court.”
Morris v. Dretke, 413 F.3d 484, 491 (5th Cir. 2005) (internal quotation marks
and citation omitted). A federal habeas petitioner seeking review from a Texas
state law conviction must have presented his claims to the TCCA.                See
Richardson v. Procunier, 762 F.2d 429, 431–32 (5th Cir. 1985).             Lack of
exhaustion may be excused, however, if he can demonstrate that the
presentation of the claims to the state court “would be plainly futile.” Morris,
413 F.3d at 492 (quoting Graham v. Johnson, 94 F.3d 958, 969 (5th Cir. 1996)).
         In Fisher v. Texas, 169 F.3d 295 (5th Cir. 1999), we held that “the
exhaustion requirement may be excused when seeking a remedy in state court


                                         10
                                   No. 07-70036

would be futile,” id. at 303. “The futility exception applies when . . . the highest
state court has recently decided the same legal question adversely to the
petitioner.” Id. In Fisher, we considered whether it would have been “futile” for
a federal habeas petitioner to have argued to the state court a Batson claim
premised on the exclusion of venire members based on their religious affiliation
after the state court had rejected the merits of precisely such a constitutional
claim. Id. We held in favor of the petitioner and considered the claim despite
the petitioner’s failure to present it first to the state court. Id. Thus, this court
has recognized a futility exception when the highest state court has recently
rejected a federal claim on the merits.
      Unlike the petitioner in Fisher—in which a state court had rejected the
petitioner’s challenge to federal law on the merits—Berkley asks this court to
apply the futility exception to excuse his failure to challenge a state’s procedural
law in state court. At trial, Berkley failed to object to the jury instructions; and
under Texas’ contemporaneous objection rule, this failure to object procedurally
bars Berkley from pursuing this issue on appeal in state court. We have held
repeatedly that “‘[t]he Texas contemporaneous objection rule is strictly or
regularly applied evenhandedly to the vast majority of similar claims, and is
therefore an adequate [state] procedural bar.’” Turner v. Quarterman, 481 F.3d
292, 301 (5th Cir. 2007) (quoting Dowthitt v. Johnson, 230 F.3d 733, 752 (5th
Cir. 2000)). As such, the contemporaneous objection rule “is an independent and
adequate state ground for decision, precluding federal review.” Id. at 300.
Berkley never challenged this procedural bar in state court because, as he
asserts, this challenge would have been futile because the TCCA had previously
dismissed a challenge to a petitioner’s conviction in a similar case.            See


                                          11
                                  No. 07-70036

Kinnamon v. Texas, 791 S.W.2d 84, 96 (Tex. Crim. App. 1990) (en banc) (holding
that the defendant’s failure to request a jury instruction on the lesser-included
offense of simple murder constituted a waiver of the objection), overruled on
other grounds by Cook v. Texas, 884 S.W.2d 485 (Tex. Crim. App. 1994).
However, this court has not yet addressed, much less recognized, a futility
exception when the state court’s decision rests upon a long-standing procedural
rule that is an independent and adequate state law ground for denying recovery.
      To do so here would deprive the state court the opportunity to address
state law in the first instance and ignore the basic principles behind the
exhaustion requirement. The exhaustion requirement “is grounded in concerns
of comity and federalism.” Duncan v. Walker, 533 U.S. 167, 179 (2001). It
provides state courts the opportunity to address federal law in the first instance.
Most importantly for our purposes, the exhaustion requirement also allows state
courts to be the primary adjudicators of state law. Id. Thus, the doctrine is
especially important when the state court review that the petitioner seeks to
avoid is premised upon “‘a state law ground that is independent of the federal
question and adequate to support the judgment.’” Rosales v. Dretke, 444 F.3d
703, 707 (5th Cir. 2006) (quoting Coleman v. Thompson, 501 U.S. 722, 729
(1991)).   Applying the futility exception to excuse a petitioner’s failure to
challenge a state procedural rule would subvert state court procedural rules and
undermine the principles of finality, comity, and federalism underpinning our
general requirement that a federal habeas petitioner must first present the
substance of her challenge to the highest state court.
      Thus, the futility exception does not apply to excuse a petitioner’s failure
to challenge in state court a state procedural rule that would be an independent


                                        12
                                  No. 07-70036

and adequate ground to support the judgment. Because reasonable jurists would
not debate that the district court correctly concluded that this exception is not
available to excuse Berkley’s failure to make a contemporaneous objection to his
jury instructions, we must deny Berkley a COA on this issue.
        Even assuming that the futility exception applies to excuse Berkley’s
failure to exhaust, Berkley would still be barred by the procedural default
doctrine. The procedural default doctrine is distinct from, though related to, the
exhaustion doctrine. “A habeas petitioner who has [procedurally] defaulted his
federal claims in state court [due to a state procedural rule] meets the technical
requirements for exhaustion.” Coleman v. Thompson, 501 U.S. at 732. However,
“there are no state remedies any longer ‘available’ to him” because he has
procedurally defaulted on those claims. Id. (citations omitted). “‘Under the
procedural default doctrine, a federal court may not consider a state prisoner’s
federal habeas claim when the [S]tate based its rejection of that claim on an
adequate and independent state ground.’” Coleman v. Quarterman, 456 F.3d
537, 542 (5th Cir. 2006) (internal quotation marks and citations omitted). Even
though the TCCA never considered Berkley’s challenge to his jury instructions,
the “State need not explicitly apply [a] procedural bar ‘if the petitioner failed to
exhaust state remedies and the court to which the petitioner would be required
to present his claims in order to meet the exhaustion requirement would now
find the claims procedurally barred [under state law].’” Beazley v. Johnson, 242
F.3d 248, 264 (5th Cir. 2001) (quoting Coleman v. Thompson, 501 U.S. at 735
n.1).   Because the contemporaneous objection rule is an independent and
adequate state ground for decision, see Turner, 481 F.3d at 300, Berkley has
procedurally defaulted this claim absent a demonstration of “cause for the


                                        13
                                  No. 07-70036

default and actual prejudice as a result of the alleged violation of federal law,”
Ogan v. Cockrell, 297 F.3d 349, 356 (5th Cir. 2002). See Rowell v. Dretke, 398
F.3d 370, 375 (5th Cir. 2005) (recognizing that Fifth Circuit case law forecloses
review of challenges to a jury instruction to which a petitioner did not
contemporaneously object absent a finding of cause and actual prejudice).
Berkley concedes that the contemporaneous objection rule would have barred his
claim in Texas state court and makes no argument that cause and prejudice
exist to overcome the procedural default.
      Because Berkley’s claims are both unexhausted and procedurally
defaulted, we deny Berkley a COA on this issue.
D.    Burden of Proof on the Issue of Mitigation
      In his fourth claim, Berkley asserts that his Sixth and Fourteenth
Amendment rights were violated when the trial court failed to instruct the jury
that it must find the absence of mitigating factors beyond a reasonable doubt.
Berkley relies upon Apprendi v. New Jersey, 530 U.S. 466 (2000), and Ring v.
Arizona, 536 U.S. 584 (2002), for his contention that any findings of facts that
increase a defendant’s punishment must be found by a jury beyond a reasonable
doubt.
      This court has rejected this same argument on at least three occasions.
In Granados v. Quarterman, 455 F.3d 529 (5th Cir. 2007), we considered
whether the Texas mitigation issue was “constitutionally flawed in that it does
not require the State to prove beyond a reasonable doubt the absence of
mitigating circumstances,” id. at 536. We recognized that Texas requires all
elements of capital murder to be proved beyond a reasonable doubt, including all
factual findings that were prerequisites to the imposition of the death penalty.


                                       14
                                 No. 07-70036

Id. The court found that the State did not violate either Apprendi or Ring “by
not asking the jury to find an absence of mitigating circumstances beyond a
reasonable doubt in addition to questions it required the jury to answer,” id.,
because a “finding of mitigating circumstances reduces a sentence from death,
rather than increasing it to death,” id. at 537.
      Applying the holding in Granados, we denied the petitioners in Scheanette
v. Quarterman, 482 F.3d 815, 828–29 (5th Cir. 2007), and Ortiz v. Quarterman,
504 F.3d 492, 504–05 (5th Cir. 2007), a COA on the very question presented
here. In both cases, we found that reasonable jurists would not debate the
dismissal of the defendant’s claim. See Ortiz, 504 F.3d at 505; Scheanette, 482
F.3d at 829.
      Accordingly, we once again hold that reasonable jurists could not debate
the propriety of the district court’s dismissal. The “Texas death penalty scheme
does not violate Apprendi or Ring by failing to require the State to prove beyond
a reasonable doubt the absence of mitigating circumstances.” Ortiz, 504 F.3d at
505. We therefore deny Berkley a COA on this issue.
E.    Brady Claims
      In Berkley’s fifth and final claim, he argues that the prosecution violated
his rights under Brady v. Maryland, 373 U.S. 83 (1963), by withholding: (1) the
photo array containing a picture of Martinez’s ex-boyfriend, Jose Hernandez
(“Hernandez”), that was provided to witness Douglas Bosanko (“Bosanko”), and
(2) information regarding Hernandez’s then-pending indictment for leaving the
scene of an accident. Berkley contends that the two pieces of withheld evidence
would have shown that Hernandez was involved in Martinez’s murder.
Specifically, he asserts that he would have used the photo array to bolster


                                       15
                                  No. 07-70036

Bosanko’s credibility, and that he would have used the pending indictment to
challenge Hernandez’s credibility on cross-examination.
      Under Brady, the government may not withhold evidence that is favorable
to a criminal defendant. United States v. Walters, 351 F.3d 159, 169 (5th Cir.
2003). “To establish a Brady violation, a defendant must show that (1) the
prosecution suppressed evidence; (2) the evidence was favorable, such as
exculpatory or impeachment evidence; and (3) the evidence was material.”
United States v. Skilling, __ F.3d __, 2009 WL 22879, at *34 (5th Cir. Jan. 6,
2009) (citing Mahler v. Kaylo, 537 F.3d 494, 499–500 (5th Cir. 2008)). “Where
a defendant fails to establish any one element of Brady, we need not inquire into
the other components.” Id. at *34. Like the district court, we assume that
Berkley has met the first two elements of Brady, and thus confine ourselves
solely to determining whether the suppressed evidence was material.
      The third element—materiality—“‘is generally the most difficult to prove.’”
Id. (quoting Mahler, 537 F.3d at 500). “In assessing materiality, we must
determine whether the favorable evidence could reasonably be taken to put the
whole case in such a different light as to undermine confidence in the verdict.”
Id. (internal quotation marks and citations omitted). To determine materiality,
we must consider the four guideposts outlined by the Supreme Court:
      First, materiality does not require the defendant to demonstrate by
      a preponderance of the evidence that omitted evidence would have
      resulted in acquittal. Second, he need not weigh the withheld
      evidence against the disclosed evidence to show he would have been
      acquitted by the resulting totality. Third, if evidence is found
      material, there is no need to conduct a harmless error analysis.
      Fourth, the withheld evidence should be considered as a whole, not
      item-by-item.
Id. at *35 (quoting DiLosa v. Cain, 279 F.3d 259, 263 (5th Cir. 2002)). This court

                                       16
                                  No. 07-70036

has held that “[t]he sum of these four guideposts means that to show a due
process violation when the [S]tate withholds evidence, a defendant need not
prove that his trial necessarily would have had a different outcome; a lack of
faith in the result is sufficient.” Id. (alteration in original, internal quotation
marks and citation omitted). Finally, “materiality depends largely on the value
of the suppressed evidence relative to evidence that the government disclosed.”
Id. (citing United States v. Sipe, 388 F.3d 471, 478 (5th Cir. 2004)).
      Berkley first asserts that the State violated Brady by failing to turn over
a photo array that the police showed to defense witness Bosanko. The context
of Bosanko’s testimony, however, reveals that the suppressed photo array was
immaterial. The jury heard evidence that Hernandez was at the scene of the
crime when Martinez was killed. The defense called Bosanko, the owner of a
wrecker and locksmith company, who testified that on the night of Martinez’s
murder he observed an unidentified person get out of a vehicle, similar to
Martinez’s vehicle, about twenty-five to thirty feet off of the highway. Sixty to
eighty minutes later, Bosanko passed the same stretch of highway, but this time
noted that the vehicle appeared abandoned. Continuing down the highway three
to four miles, he observed a Hispanic male, with the same build as the man near
the vehicle, pacing back and forth. Bosanko stopped to see if the man needed a
ride. The Hispanic man said he was waiting for a friend to give him a lift so
Bosanko left him on the highway.
      Upon learning of Martinez’s murder, Bosanko contacted the police
department. He testified that the police made a composite sketch based upon his
descriptions of the Hispanic male. Later, the police visited Bosanko at his home
and showed him a photo array that included Hernandez’s photo. According to


                                        17
                                 No. 07-70036

the written reports of the detectives and the testimony of El Paso Police
Detective Jesus Pantoja, Jr. (“Det. Pantoja”), Bosanko was unable to identify
anyone from the photo array. The defense received copies of these reports, but
the actual photo array was not provided to the defense until after the jury had
begun its deliberations.
      Berkley has provided no argument suggesting how the photo array would
have been beneficial to his case. He received copies of the detectives’ reports
that indicated that Bosanko had failed to identify anyone in the photo array.
The jury was aware that the photo array existed and heard testimony from
Bosanko that he was unable to identify anyone in the array. Most critically,
Bosanko told the jury that he identified a man other than Berkley at the scene
of the crime at approximately the time Martinez was murdered. Finally, the
jury heard evidence that Bosanko later identified Hernandez in a one-on-one
line-up at the police station.   The jury was thus well aware of Bosanko’s
testimony placing Hernandez at the scene of the crime at the time that Martinez
was killed. Thus, the actual photo array would have provided no additional
value at trial, and Berkley fails to make any plausible suggestion to the
contrary.
      Berkley also contends that the State violated Brady by failing to disclose
that Hernandez, a State rebuttal witness, was under indictment for leaving the
scene of an accident. Hernandez was called to testify after a dispute arose
regarding whether Bosanko identified him in a one-on-one line-up that the police
conducted after Bosanko failed to identify anyone in the photo array. Bosanko
testified that he identified Hernandez in the line-up as the man he had spoken
with on the side of the highway the night of Martinez’s murder. In addition,


                                      18
                                  No. 07-70036

Bosanko testified that he positively identified the voice of the man in the one-on-
one line-up. In rebuttal of this testimony, the State called Det. Pantoja, who
testified that Bosanko did not positively identify Hernandez. The State then
called Hernandez, who testified that he participated in the line-up and that the
police told him that he had been identified, but that he did not believe them. He
further testified that he was at home with his girlfriend and his parents at the
time that Martinez was killed and that he did not kill Martinez.
      Berkley contends that had his trial counsel been aware of the pending
charges, they would have shown Hernandez’s testimony to be tainted by “bias,
prejudice, and motive.” United States v. Collins, 472 F.2d 1017, 1019 (5th Cir.
1972) (holding that “evidence of pending charges is admissible for the purpose
of showing bias, prejudice, and motive of a witness”). Even assuming that
evidence of his pending indictment would have been admissible as impeachment
evidence, see United States v. Abadie, 879 F.2d 1260, 1266–67 (5th Cir. 1989),
Berkley has failed to make out a Brady violation.
      There is not a reasonable probability that the jury would have returned a
different verdict based upon this evidence. Additional evidence suggesting that
Hernandez’s testimony was biased would not have lessened the impact of the
overwhelming evidence of Berkley’s guilt. Berkley provided a two-page written
statement in which he confessed that he had approached Martinez’s vehicle at
the ATM. He further stated that his gun went off as he approached her, and
that he then directed her to withdraw $200 and drive away from the ATM to a
deserted area. Berkley stated that once they arrived at that location, “the girl”
initiated multiple episodes of sexual relations; and that during one of those
encounters, his gun “went off.” He confessed that he passed out and that when


                                        19
                                  No. 07-70036

he awoke the woman was lying on the ground. He stated that he “freaked out”
and drove her car to another part of the desert where he drove it off the road and
walked home.
      Two days after giving his first statement, Berkley provided a second
statement in which he confessed that the murder weapon was a .22 caliber
handgun that he had taken from his father, that his close friend Michael
Jacques (“Jacques”) had helped in the planning and execution of the robbery and
the disposal of Martinez’s car, and that he burned Martinez’s driver’s license in
a barbeque grill.
      The jury heard testimony from Jacques’s estranged wife that she observed
a set of car keys and a driver’s license belonging to Martinez in her kitchen and
that Martinez’s driver’s license was later burned in a barbeque grill. An El Paso
Police officer confirmed her testimony, testifying that Martinez’s car keys were
discovered on the roof of the apartment building where Jacques and Berkley had
resided in March, 2000. In addition, the prosecution presented evidence that
police had discovered a .22 caliber handgun and ammunition inside a night-
stand drawer in Berkley’s parents’ master bedroom. Finally, the jury heard
testimony that Berkley’s DNA matched the sperm fraction recovered from
Martinez’s vaginal swabs.
      Cumulatively, the suppressed evidence does not undermine our confidence
in the verdict. At most, the photo array and the pending indictment would have
supported the defense’s theory that Hernandez participated in Martinez’s
murder. However, the strongest evidence supporting that theory, Bosanko’s
testimony, was provided to the jury. There is not a reasonable probability that
the jury would have returned a different verdict based upon the suppressed


                                       20
                                  No. 07-70036

evidence given the overwhelming evidence of Berkley’s guilt before it.
Accordingly, we hold that reasonable jurists would not debate that the Texas
courts and the district court correctly concluded that the suppressed evidence
was not material. We therefore deny Berkley a COA on this issue.
                              IV. CONCLUSION
      For the reasons stated above, we find that reasonable jurists could not
debate the merits of any of Berkley’s claims and DENY Berkley’s Application
for a Certificate of Appealability.
      DENIED.




                                      21
