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

                                                                                FILED
                                                                             February 9, 2009

                                          No. 08-70010                    Charles R. Fulbruge III
                                                                                  Clerk

FRANKLIN DEWAYNE ALIX

                                                     Petitioner-Appellant
v.

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

                                                     Respondent-Appellee



                      Appeal from the United States District Court
                          For the Southern District of Texas
                                   USDC 4:07-CV-39


Before KING,* DAVIS, and CLEMENT, Circuit Judges.
PER CURIAM:**
       Petitioner-Appellant, Franklin Dewayne Alix is a Texas death row inmate
who seeks a certificate of appealability to appeal the district court’s denial of his
petition for habeas corpus relief under 28 U.S.C. § 2254. For the reasons set
forth below, we deny the request.




       *
           Judge King concurs in the denial of the certificate of appealability only.
       **
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 08-70010

                       I. FACTS AND PROCEEDINGS
        In the early morning hours of January 3, 1998, Alix shot and killed Eric
Bridgeford while in the course of committing aggravated sexual assault, robbery
and burglary against his sister, Karyl Bridgeford. Alix admitted to robbing
Karyl and forcing her into the trunk of his car but claimed that the sexual
intercourse was consensual, the items taken were gifts, and the homicide was
in self-defense. Alix also claimed to have been coerced into robbing Karyl by
Kevin Smith, a man who allegedly threatened to kill Alix if he did not pay a drug
debt.
        Along with other evidence presented at trial, the prosecution introduced
the testimony of Dr. Delbert Wayne Van Dusen, of the Harris County Medical
Examiner’s Office, who performed the autopsy of Eric. The parties debate the
significance of certain circumstances surrounding an investigation of the
Examiner’s Office and Dr. Van Dusen’s licensing.
        During the sentencing phase of the trial, the State produced evidence of
Alix’s lengthy and violent criminal history. The State also introduced testimony
from the widow of one of Alix’s victims, Gregorio Ramirez, who identified Alix as
the shooter in her husband’s homicide. A piece of bloody gauze recovered from
the scene of this crime was also admitted into evidence. Testing initially
indicated that Alix’s DNA was present on the gauze. This finding was later
proved inconclusive and became the basis for the dismissal without prejudice of
Alix’s first federal habeas petition. Alix was convicted of capital murder on
September 2, 1998 and sentenced to death.
        On March 13, 2000, the Texas Court of Criminal Appeals (“CCA”) affirmed
Alix’s conviction and sentence. Alix sought state habeas relief which was denied.
Alix then filed a timely federal habeas petition along with a motion for discovery
and abatement, raising claims that irregularities being independently
investigated at the Houston Police Department crime lab may have implicated


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DNA evidence used against him. The district court dismissed Alix’s petition
without prejudice to allow for an analysis of these claims in state court. Alix
subsequently filed a second state habeas petition, and then a third petition,
raising additional claims. The CCA denied the second application on the merits
and the third petition as an abuse of writ.
      Thereafter, Alix filed a second federal habeas petition. The district court
denied this petition, declined to issue a certificate of appealability (“COA”), and
granted summary judgment in favor of the State. Alix now appeals, seeking a
COA under 28 U.S.C. § 2254. Alix argues that the district court erred by: 1)
abusing its discretion in failing to conduct an evidentiary hearing; 2) failing to
find that the state courts erroneously applied Napue v. Illinois; 3) failing to find
that the state courts erroneously applied Brady v. Maryland; and 4) finding that
Alix was not entitled to relief under Strickland v. Washington.
                        II. STANDARD OF REVIEW
      A petitioner must obtain a COA before appealing the district court’s denial
of habeas relief. 28 U.S.C. § 2253(c)(1). “This is a jurisdictional prerequisite
because the COA statute mandates that ‘[u]nless a circuit justice or judge issues
a certificate of appealability, an appeal may not be taken to the court of appeals
. . . .’” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (quoting 28 U.S.C. §
2253(c)(1)). Under the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), a COA petitioner “must make a substantial showing of the denial of
a constitutional right, a demonstration that . . . includes showing that
reasonable jurists could debate whether . . . the petition should have been
resolved in a different manner or that the issues presented were adequate to
deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473,
484 (2000) (quotation omitted). As the Supreme Court has explained:
      The COA determination under § 2253(c) requires an overview of the
      claims in the habeas petition and a general assessment of their
      merits. We look to the District Court’s application of AEDPA to

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      petitioner’s constitutional claims and ask whether that resolution
      was debatable amongst jurists of reason. This threshold inquiry
      does not require full consideration of the factual or legal bases
      adduced in support of the claims. In fact, the statute forbids it.
      When a court of appeals sidesteps this process by first deciding the
      merits of an appeal, and then justifying its denial of a COA based
      on its adjudication of the actual merits, it is in essence deciding an
      appeal without jurisdiction.
Miller-El, 537 U.S. at 336–37.
      Where an application for a writ of habeas corpus was adjudicated on the
merits in state court proceedings, a COA is not issued unless 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)(1)–(2).

      “Any doubt regarding whether to grant a COA is resolved in favor of the

petitioner, and the severity of the penalty may be considered in making this

determination.” ShisInday v. Quarterman, 511 F.3d 514, 520 (5th Cir. 2007).

“[A] determination of a factual issue made by a State court shall be presumed to

be correct. The applicant shall have the burden of rebutting the presumption of

correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).

                              III. DISCUSSION
A.    Evidentiary Hearing
      Alix claims that the district court should be reversed because it failed to
grant him an evidentiary hearing before denying his petition on the merits.
Relying on Hall v. Quarterman, 534 F.3d 365 (5th Cir. 2008), Alix argues that
he did not have full access to the discovery process in his state habeas

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proceedings and was therefore denied a full and fair hearing. He further asserts
that the district court’s determination that he was not entitled to an evidentiary
hearing on his federal petition is reviewable under the abuse of discretion
standard set forth in Hall.
      As previously noted, a COA petitioner must make a substantial showing
that he has been deprived of a constitutional right. Slack, 529 U.S. at 484. If no
constitutional violation is asserted, the non-constitutional claims are only
considered to the extent that they are connected to a claim on which a COA is
granted.   Lewis v. Quarterman, 272 F.App’x 347, 351 (5th Cir. 2008)
(unpublished). Thus, a petition challenging an evidentiary ruling may only be
entertained as corollary to a constitutional violation. Id.
      Alix asserts no denial of a constitutional right in his evidentiary challenge.
Therefore, no COA is issuable. To the extent that the district court’s denial of
an evidentiary hearing is salient to his remaining challenges, it will be
considered in conjunction with those claims. Furthermore, Alix’s reliance on
Hall is misplaced as this court only reached the issue of whether the petitioner
was entitled to an evidentiary hearing after granting a COA on the claim. Hall,
534 F.3d at 367.
B.    Prosecutorial Misconduct Under Napue
      Alix claims that the prosecution introduced false DNA testimony linking
him to the murder of Ramirez and violated his rights through the presentation
of autopsy evidence from Dr. Van Dusen. Alix also contends that, during closing
argument, the prosecution mischaracterized Dr. Van Dusen’s testimony and
improperly argued that Alix fabricated his claims of coercion by Smith. These
acts, he asserts, constitute due process violations under the Fourteenth
Amendment. Alix argues that the district court, as well as the state courts,
misapplied Napue v. Illinois, 360 U.S. 264 (1959), in analyzing his claims of
prosecutorial misconduct by placing the burden on him, rather than the

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prosecution, to establish that he was prejudiced by the challenged conduct. He
also asserts that the district court erred in finding that the prosecution
committed no Napue violation. Further challenging the district court, Alix
argues that it conflated the legal principles of Brady v. Maryland, 373 U.S. 83
(1963), with those set forth in Napue.
      Alix’s arguments fail; reasonable jurists would not debate the correctness
of the district court’s denial of relief. In Napue, the Supreme Court held that,
where a witness provides false testimony, known to be so by the prosecution and
the State does nothing to correct it, the defendant is denied due process. 360
U.S. at 269. In its Napue discussion, the district court laid out the well-settled
rule that, to succeed in a due process violation claim, petitioner must show: “(1)
[the witness] gave false testimony; (2) the falsity was material in that it would
have affected the jury’s verdict; and (3) the prosecution used the testimony
knowing it was false.” May v. Collins, 955 F.2d 299, 315 (5th Cir. 1992). Alix’s
assertion that the burden of proof rests with the prosecution to disprove his
Napue allegations is contrary to clear precedent. There can therefore be no
debate that the district court correctly placed the burden on Alix to prove that
the State knowingly suborned perjury.
      Furthermore, while the district court’s opinion set forth the Brady and
Napue standards jointly, it discussed each claim separately. This analysis was
proper and not contrary to settled federal law.
      In applying Napue and its progeny to Alix’s claims of prosecutorial
misconduct, the district court’s determination that Alix failed to establish such
a violation is neither contrary to nor an unreasonable application of federal law.
The district court denied relief on Alix’s claim that Dr. Van Dusen’s testimony
should have been excluded from trial because he was not licensed in Texas. Alix
argues that the CCA applied the wrong state law in finding that a medical
examiner may delegate duties to deputy examiners, such as Dr. Van Dusen, who

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are not licensed. Even if we assume arguendo that the state court erred, there
is no due process violation claim for evidence improperly admitted under state
law. “We have stated many times that federal habeas corpus relief does not lie
for errors of state law.” Estelle v. McGuire, 502 U.S. 62, 67 (1991) (internal
quotations omitted).
      With respect to the prosecution’s closing arguments, the district court
found Alix’s claims without merit on two independent grounds: 1) any challenges
to the prosecution’s closing arguments were procedurally barred for failure to
timely object, Wainwright v. Sykes, 433 U.S. 72, 86–87 (1977); and 2) Alix made
no showing of prejudice stemming from these statements even if not waived.
United States v. Wise, 221 F.3d 140, 152 (5th Cir. 2000). The district court
undertook the two-step analysis outlined in Wise: 1) whether the prosecution
made an improper remark, and 2) whether the remark affected the substantive
rights of the defendant. Id. The district court reasoned that the prosecution’s
statements regarding both Dr. Van Dusen’s expert status as well as Alix’s
fabrication of Smith’s existence were permissible under Texas law as
summations of, and reasonable inferences from, the evidence. See Moody v.
State, 827 S.W.2d 875, 894 (Tex.Crim.App. 1992).          The district court’s
application of Wise and Moody is an appropriate application of federal law.
      During the sentencing phase of Alix’s trial, to show Alix’s continued
danger to society, along with other evidence linking Alix to the homicide of
Ramirez, the State introduced DNA evidence and the testimony of a chemist.
Both indicated that Alix’s DNA was on the gauze recovered from the crime scene.
The presence of Alix’s DNA was later called into question. As the district court
noted, Alix did not argue—much less carry the burden of showing—that the
testimony regarding the DNA evidence was false, material, and knowingly used
by the prosecution. May, 955 F.2d at 315. Alix simply re-asserts that it is the



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State’s burden to prove that he was not prejudiced by the evidence. The district
court’s denial of relief is not debatable among reasonable jurists.
      Because Alix has failed to meet the requirements for an issuance of a COA
on his Napue claim, there is no basis upon which to consider the district court’s
denial of an evidentiary hearing.
C.    Prosecutorial Misconduct under Brady
      Reasserting the facts alleged as grounds for error in his Napue claim, Alix
argues that the district court should be reversed for failure to find a Brady
violation. Based largely on the same analysis discussed above, the district court
found that Alix’s Brady claims also failed. We agree. The district court’s
conclusion is not debatable among reasonable jurists.
      Under Brady, “the suppression by the prosecution of evidence favorable to
an accused upon request violates due process where the evidence is material
either to guilt or to punishment, irrespective of the good faith or bad faith of the
prosecution.”     373 U.S. at 87.    “[E]vidence is material only if there is a
reasonable probability that, had the evidence been disclosed to the defense, the
result of the proceeding would have been different. A ‘reasonable probability’ is
a probability sufficient to undermine confidence in the outcome.” United States
v. Bagley, 473 U.S. 667, 682 (1985).
      The district court carefully reviewed the record and applied the
appropriate legal analysis. The district court found that the prosecution did not
withhold material exculpatory evidence and, even accepting Alix’s assertion that
the inconclusive DNA results were exculpatory, found that Alix failed to show
materiality or a reasonable probability that the jury’s determination would have
been different.    Furthermore, the district court determined that the DNA
evidence linking Alix to the Ramirez murder was presented as part of a larger
body of proof—including his long history of violence—that Alix posed a continued



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threat to society. The district court’s denial of Alix’s Brady claim was not
contrary to established precedent or an unreasonable application of Brady.
     Having found no violation warranting a COA, there are no grounds upon
which to revisit the district court’s denial of an evidentiary hearing.
D.    Ineffective Assistance of Counsel
      Alix argues that his trial counsel was ineffective, violating his
constitutional rights under Strickland v. Washington, 466 U.S. 668 (1984). Alix
broadly claims that trial counsel was lazy and did not adequately investigate his
defense. To illustrate the claimed deficiencies, Alix asserts that trial counsel
should have pursued Dr. Van Dusen’s qualifications more vigorously and should
have discovered an ongoing investigation by the District Attorney into the Harris
County Medical Examiner’s Office much earlier in preparing his defense.
Furthermore, Alix contends that trial counsel should have insisted on the
testimony of District Attorney, Johnny Holmes, regarding this investigation.
Alix claims that accepting as adequate the statements of a deputy prosecutor,
on behalf of the District Attorney’s office, was deficient representation.
      The district court’s finding that Alix had shown no Strickland violation is
not contrary to, or an unreasonable application of, federal law.             Under
Strickland, a reversal of a defendant’s sentence is warranted only where a
petitioner has met a two-part test:
      First, the defendant must show that counsel’s performance was
      deficient. This requires showing that counsel made errors so serious
      that counsel was not functioning as the “counsel” guaranteed the
      defendant by the Sixth Amendment. Second, the defendant must
      show that the deficient performance prejudiced the defense. This
      requires showing that counsel's errors were so serious as to deprive
      the defendant of a fair trial, a trial whose result is reliable. Unless
      a defendant makes both showings, it cannot be said that the
      conviction or death sentence resulted from a breakdown in the
      adversary process that renders the result unreliable.



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466 U.S. at 687. Furthermore, “[j]udicial scrutiny of counsel’s performance must
be highly deferential.” Id. at 689.
      In its extensive analysis of Alix’s claim, the district court found that Alix
failed to meet either prong of the Strickland test because counsel’s performance
was neither deficient nor prejudicial. The district court pointed out that trial
counsel diligently prosecuted the case. Trial counsel was aware that Dr. Van
Dusen did not have a Texas license and that the District Attorney was
investigating the Harris County Medical Examiner’s Office. Trial counsel cross-
examined Dr. Van Dusen and raised the issue of the ongoing investigation. A
motion to bar Dr. Van Dusen’s testimony was set forth and denied. Trial counsel
re-asserted the initial objections to Dr. Van Dusen’s testimony throughout trial.
After Dr. Van Dusen testified, counsel moved to strike his testimony, sought a
mistrial, and also moved for a continuance. All motions were denied. Having
found no deficient representation, the district court also found no prejudice.
Given the highly deferential standard applied to review of counsel’s performance
and the district court’s thorough review of the record, the district court’s
application of Strickland is a reasonable application of settled federal law.
      As discussed above, when no COA is granted on a matter, the issuance of
an evidentiary hearing on that issue is also foreclosed. In any event, Alix did not
seek an evidentiary hearing on his Strickland claim from the district court and
the matter is therefore waived. See Lewis, 272 F.App’x at 351–52.
                                CONCLUSION
     Alix has not made a substantial showing of the denial of a constitutional
right on any of his claims and reasonable jurists would not debate the district
court’s conclusions that the state court appropriately applied federal law.
Therefore, Alix’s petition for COA is DENIED.




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