     Case: 13-70025    Document: 00512716717    Page: 1   Date Filed: 07/30/2014




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

                                                                         FILED
                                 No. 13-70025                        July 30, 2014
                                                                    Lyle W. Cayce
UNITED STATES OF AMERICA,                                                Clerk


                                           Plaintiff - Appellee
v.

SHERMAN LAMONT FIELDS,

                                           Defendant - Appellant




                Appeal from the United States District Court
                     for the Western District of Texas


Before KING, JONES, and SMITH, Circuit Judges.
KING, Circuit Judge:
      Petitioner-Appellant Sherman Lamont Fields was convicted of murder
in a jury trial in federal district court and sentenced to death. We affirmed his
conviction and sentence on direct appeal. Fields unsuccessfully sought habeas
relief in the district court on numerous grounds, and now seeks a certificate of
appealability to challenge the district court’s denial of habeas relief. We hold
that reasonable jurists could not debate the district court’s conclusions and
accordingly DENY Fields’s request for a certificate of appealability.
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                                    No. 13-70025
          I.     FACTUAL AND PROCEDURAL BACKGROUND
      A. Escape and Murder of Suncerey Coleman
      Sherman Lamont Fields was arrested in September 2001 for being a
felon in possession of a firearm, and he was held in federal custody in a
detention center in Waco, Texas. In November 2001, while Fields was in
custody, he bribed a correctional officer, offering him $5,000 for a key to the
detention center’s fire escape. He used the key to escape on November 6.
      That evening, Fields met with a friend, Edward Outley, who provided
Fields with a car and a handgun.            Fields then visited his ex-girlfriend,
Suncerey Coleman, at Hillcrest Hospital in Waco, where she was caring for her
newborn child. Fields was angry at Coleman for having seen other men while
he was incarcerated. Fields convinced Coleman to leave the hospital with him
that evening, and drove her to Downsville, Texas, outside Waco. Fields and
Coleman had sexual intercourse, 1 and then he killed her by shooting her twice
in the head.     Fields hid Coleman’s body in underbrush near the road.
Coleman’s body was found two weeks later, on November 21.
      Using a handgun, Fields later carjacked an employee of Hillcrest
Hospital, Tammy Edwards, while she was exiting her car. Edwards managed
to escape, and Fields drove away in her car.
      Police arrested Fields on November 24, 2001.               In May 2003, the
government
      charged Fields by a seven-count indictment with (1) conspiring to
      escape from federal custody, (2) escaping from federal custody, (3)
      using and carrying a firearm during and in relation to escape,
      resulting in intentional murder, (4) carjacking, (5) using and
      carrying a firearm during and in relation to carjacking, (6) felon in



      1 As we noted on direct review, “[i]t is unclear whether the sex was consensual.”
United States v. Fields, 483 F.3d 313, 323 n.2 (5th Cir. 2007).
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                                       No. 13-70025
       possession of a firearm, [and] (7) using and carrying a Ruger .22
       caliber firearm during and in relation to escape.
Fields, 483 F.3d at 324. The government sought the death penalty on the
murder charge.
       B. Fields’s Trial
           1. Guilt / Innocence Phase
       Fields’s trial took place in January and February of 2004.                      Fields
represented himself pro se, with his appointed counsel acting as standby
counsel. Fields pleaded not guilty to each charge. His defense was that he did
not kill Coleman, but that his second girlfriend, Shalaykea Scroggins, did so
with Outley. He contended that Scroggins was in “a passionately jealous rage”
and shot Coleman in the back of the head, and that Outley, who was
Scroggins’s sister’s boyfriend, shot Coleman a second time. The jury rejected
Fields’s defense and found him guilty on all counts.
           2. Punishment Phase
       Fields agreed to be represented by his appointed counsel during the
punishment phase of the trial.               After hearing the evidence, the jury
recommended the death penalty. The district court sentenced Fields to death.
The district court also sentenced Fields to 715 months of imprisonment on the
noncapital counts.
       C. Post-Conviction Proceedings
           1. Direct Appeal
       On direct appeal, we rejected Fields’s claims of sentencing error and trial
error, and affirmed his convictions and sentences. Fields, 483 F.3d at 323. 2



       2 Fields raised the following claims of sentencing error: the district court admitted
testimonial hearsay in violation of Fields’s Confrontation Clause rights; the district court’s
Allen charge was coercive; the government’s use of a “televisual ‘picture in picture’ metaphor”
at closing argument violated his due process and Eighth Amendment rights; the district court
erred in admitting expert psychiatric testimony on future dangerousness; and the Federal
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           2. Federal Habeas Petition
       Fields filed several motions seeking to vacate his conviction pursuant to
28 U.S.C. § 2255, alleging a total of forty-nine claims. The district court denied
relief on all claims in its September 25, 2012 order, and found, sua sponte, that
a certificate of appealability (“COA”) should not issue. Fields filed a motion to
vacate or amend the district court’s order denying his § 2255 motion, among
other post-judgment motions, all of which the district court denied.
                           II.     STANDARD OF REVIEW
       “This court may not consider an appeal from the denial of a 28 U.S.C.
§ 2255 motion for relief unless either the district court or this court issues a
COA.” United States v. Hall, 455 F.3d 508, 513 (5th Cir. 2006) (citing 28 U.S.C.
§ 2253(c)(1)(B)); see also United States v. Bourgeois, 537 F. App’x 604, 610–11
(5th Cir. 2013) (unpublished).             To obtain a COA, Fields must make “a
substantial showing of the denial of a constitutional right.”                        28 U.S.C.
§ 2253(c)(2). “A petitioner satisfies this standard by demonstrating that jurists
of reason could disagree with the district court’s resolution of his constitutional
claims or that jurists could conclude the issues presented are adequate to
deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S.




Death Penalty Act violates the Sixth Amendment. Fields also raised the following claims of
trial error: the district court erred by failing to secure the advice of the Federal Public
Defender before appointing capital counsel; the district court’s refusal to appoint unconflicted
substitute counsel rendered Fields’s waiver of counsel involuntary and, relatedly, the court
neglected its duty to inquire about the conflict; the district court erred in instructing the jury
about the significance of the grand jury’s decision to indict Fields; the district court erred in
admitting into evidence photographs of the victim’s body; the district court abused its
discretion by requiring Fields to wear a stun belt during the trial; the district court erred by
excluding a potential juror due to the juror’s opposition to the death penalty; the government
committed prosecutorial misconduct by eliciting inadmissible evidence, goading Fields with
objections, making an improper sidebar remark, and making several improper remarks
during the closing argument; the district court’s management of Fields’s standby counsel
violated his due process rights; and lastly, Fields’s convictions must be set aside for
cumulative error.
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                                     No. 13-70025
322, 327 (2003) (citing Slack v. McDaniel, 529 U.S. 473, 484 (2000)). The
Supreme Court has explained that “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. at 338.
      In determining whether to grant a COA, “the court of appeals should
limit its examination to a threshold inquiry into the underlying merit of [the
petitioner’s] claims.” Id. at 327. This inquiry consists of “an overview of the
claims in the habeas petition and a general assessment of their merits.” Id. at
336. “[I]n a death penalty case 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) (alterations and internal quotation marks omitted).
                              III.    DISCUSSION
      Fields seeks a COA on the following claims: that (1) he received
ineffective assistance of counsel because of his trial counsels’ failure to: conduct
a competent penalty phase investigation, conduct an adequate investigation
related to the charged crime, and challenge expert testimony about Fields’s
future dangerousness; (2) he was incompetent to waive counsel; (3) his practice
cross-examination of a government witness violated his constitutional rights;
(4) the government violated its Brady obligations by failing to disclose
exculpatory evidence and correct false testimony at trial; (5) Fields is actually
innocent; (6) the district court’s Allen charge was coercive; (7) security
procedures during the trial, including the district court’s requirement that
Fields wear a stun belt, were prejudicial; (8) cumulative error requires that his
convictions be set aside; and (9) the district court erred by failing to grant
discovery or hold an evidentiary hearing. We address each claim in turn.
      A. Ineffective Assistance of Counsel
      Fields raises several separate claims of ineffective assistance of counsel
(“IAC”).   His three principal contentions are that he received ineffective
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                                 No. 13-70025
assistance because of trial counsels’ failure to: conduct a competent penalty
phase investigation, conduct an adequate investigation related to the charged
crime, and challenge expert testimony about Fields’s future dangerousness.
For the reasons that follow, we deny a COA as to each of Fields’s IAC claims.
         1. Penalty Phase Investigation
      In his § 2255 petition, Fields asserted that he received ineffective
assistance of counsel because his counsel failed to conduct a competent penalty
phase investigation.     He included with his petition “critical mitigation
evidence” that was readily available to his counsel, but which he claimed his
counsel never presented to the jury. The district court reviewed this evidence
and rejected Fields’s IAC claim, finding the evidence contained in his § 2255
petition duplicative of that adduced at trial.
      Fields now devotes nearly seventy pages of briefing to this issue,
contending that reasonable jurists would debate the district court’s rejection of
his IAC claim because he has established that his counsels’ performance was
deficient and prejudiced him. Specifically, he contends that: (1) the district
court “applied the wrong legal standard in evaluating his IAC claim”; (2) “trial
counsel performed a sub-standard investigation and therefore presented
inadequate mitigation evidence at trial”; (3) his “§ 2255 Motion presented
voluminous mitigation evidence further demonstrating the ineffectiveness of
counsel[s’] investigation”; and (4) “this new evidence establishes the prejudice
caused by trial counsel[s’] incompetence and the reasonable probability of a
different outcome had counsel been effective.” Fields’s arguments center on
the specific mitigation evidence that he claims his trial counsel should have
uncovered and presented during the penalty phase of the trial. This includes
evidence of the terrible poverty, neglect, abuse, and trauma that he faced while
growing up, his potential brain damage, his history of incarceration, and his
mental illness and family history of mental illness.
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                                        No. 13-70025
       We have reviewed the evidence provided by Fields, and for the reasons
that follow, we conclude that reasonable jurists would not debate the district
court’s holding. Accordingly, we deny Fields’s claim for a COA. 3
       To succeed on an IAC claim, a defendant must show that (1) his
“counsel’s representation ‘fell below an objective standard of reasonableness,’”
and (2) the “counsel’s deficient performance prejudiced the defendant.” Roe v.
Flores-Ortega, 528 U.S. 470, 476–77 (2000) (quoting Strickland, 466 U.S. at
688, 694). “[A] court must indulge a strong presumption that counsel’s conduct
falls within the wide range of reasonable professional assistance.” Strickland,
466 U.S. at 689.
       The objective standard of reasonableness is measured “‘under prevailing
professional norms.’” Rompilla v. Beard, 545 U.S. 374, 380 (2005) (quoting
Strickland, 466 U.S. at 688). The Supreme Court has long referred to the
American Bar Association’s standards for capital defense work as “guides to
determining what is reasonable.” Wiggins v. Smith, 539 U.S. 510, 524 (2003) 4;


       3 At the outset, we note that, contrary to Fields’s contention, the district court applied
the correct standard in conducting its IAC analysis; specifically, the district court applied the
two-part test called for by Strickland v. Washington, 466 U.S. 668, 688, 694 (1984).
       4 The American Bar Association Guidelines explain that “Penalty Counsel’s duty to
investigate and present mitigating evidence is now well established.” ABA Guidelines for
the Appointment and Performance of Defense Counsel in Death Penalty Cases 10.7, cmt.
(rev. ed. 2003), reprinted in 31 Hofstra L. Rev. 913, 1021 (2003) [hereinafter “ABA
Guidelines”]. The ABA Guidelines provide, in relevant part:
       Because the sentencer in a capital case must consider in mitigation, “anything
       in the life of a defendant which might militate against the appropriateness of
       the death penalty for that defendant,” “penalty phase preparation requires
       extensive and generally unparalleled investigation into personal and family
       history.” At least in the case of the client, this begins with the moment of
       conception. Counsel needs to explore:
       (1) Medical history (including hospitalizations, mental and physical illness or
       injury, alcohol and drug use, pre-natal and birth trauma, malnutrition,
       developmental delays, and neurological damage);
       (2) Family and social history (including physical, sexual, or emotional abuse;
       family history of mental illness, cognitive impairments, substance abuse, or
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see also Bobby v. Van Hook, 558 U.S. 4, 7–8 (2009).                      “In assessing the
reasonableness of an attorney’s investigation . . . a court must consider not only
the quantum of evidence already known to counsel, but also whether the
known evidence would lead a reasonable attorney to investigate further.” Id.
at 527.
       The Court has explained that “‘[s]trategic choices made after thorough
investigation of law and facts relevant to plausible options are virtually
unchallengeable; and strategic choices made after less than complete
investigation are reasonable precisely to the extent that reasonable
professional judgments support the limitations on investigation.’” Id. (quoting
Strickland, 466 U.S. at 690–91). The Court subsequently explained that “[a]
tactical decision is a precursor to concluding that counsel has developed a
reasonable mitigation theory in a particular case.” Sears v. Upton, 130 S. Ct.
3259, 3265 (2010) (per curiam) (internal quotation marks omitted).                          “‘[A]
defendant who alleges a failure to investigate on the part of his counsel must


       domestic violence; poverty, familial instability, neighborhood environment,
       and peer influence); other traumatic events such as exposure to criminal
       violence, the loss of a loved one, or a natural disaster; experiences of racism or
       other social or ethnic bias; cultural or religious influences; failures of
       government or social intervention (e.g., failure to intervene or provide
       necessary services, placement in poor quality foster care or juvenile detention
       facilities);
       (3) Educational history (including achievement, performance, behavior, and
       activities), special educational needs (including cognitive limitations and
       learning disabilities) and opportunity or lack thereof, and activities;
       (4) Military service[] (including length and type of service, conduct, special
       training, combat exposure, health and mental health services);
       (5) Employment and training history (including skills and performance, and
       barriers to employability);
       (6) Prior juvenile and adult correctional experience (including conduct while
       under supervision, in institutions of education or training, and regarding
       clinical services)[.]
Id. at 1022–23 (footnotes omitted).
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                                  No. 13-70025
allege with specificity what the investigation would have revealed and how it
would have altered the outcome of the trial.’” Trottie v. Stephens, 720 F.3d 231,
243 (5th Cir. 2013) (quoting Druery v. Thaler, 647 F.3d 535, 541 (5th Cir.
2011)).
      Prejudice is established if “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.” Rompilla, 545 U.S. at 390 (internal quotation marks omitted). “A
reasonable probability is a probability sufficient to undermine confidence in
the outcome.” Wiggins, 539 U.S. at 534 (internal quotation marks omitted).
“To assess that probability, we consider ‘the totality of the available mitigation
evidence—both that adduced at trial, and the evidence adduced in the habeas
proceeding’—and ‘reweig[h] it against the evidence in aggravation.’” Porter v.
McCollum, 558 U.S. 30, 41 (2009) (quoting Williams v. Taylor, 529 U.S. 362,
397–98 (2000)) (alteration in original).
            a. Evidence of Fields’s poverty, neglect, abuse, trauma, and
               history of incarceration, as well as social history records and
               interviews of additional family members
      We conclude that the district court’s denial of relief on Fields’s IAC claim
concerning these areas of mitigation evidence is not debatable by reasonable
jurists. Because it is important to consider the mitigating evidence presented
during the trial’s penalty phase before turning to the evidence in Fields’s
§ 2255 motion, we first review this material.
      Fields’s penalty-phase investigation team included his counsel (Scott
Peterson and Robert Swanton), a mitigation specialist (Jane McHan, now Bye),
an investigator (Dan Youngblood), and a psychiatrist (Dr. J. Randall Price). In
his affidavit, Swanton explains that he asked Dr. Price “to assess Mr. Fields’[s]
intelligence and to offer defense strategy opinions regarding Mr. Fields after
his interviews with Mr. Fields.”      He “also asked Dr. Price to assess the

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                                  No. 13-70025
relationship between Mr. Fields’[s] intelligence and his ability to adapt to
prison, if Fields were sentenced to life.” Swanton did not ask Dr. Price to
conduct any neuropsychological testing of Fields, but he “knew Dr. Price had
experience in the field of neuropsychology and would have relied on his opinion
if he felt any such testing was warranted after his interviews with Mr. Fields.”
      In the defense’s opening statement, Peterson told the jury that Fields
had a “very disruptive, a very violent childhood,” in which Fields “learned from
the streets” and was exposed to his alcoholic mother’s boyfriend, who beat his
mother and whipped Fields and his siblings with a belt “on a regular basis.”
Peterson talked about Fields’s family’s move to the housing projects in Waco,
and Fields’s exposure there to “the drugs, the violence, the weapons, the
alcoholism,” and “[e]verything that we think of as bad in our society.” He noted
several “traumatic events” in Fields’s early life, including his attempted suicide
with his best friend at age fourteen, during which his friend died; the murder
of another friend; his mother getting shot by her boyfriend; and his grandfather
getting “run over by a drunk driver . . . in Sherman’s presence.” Peterson noted
that Fields had been imprisoned for an extended period, including as a
teenager.
      Defense counsel called nine witnesses during the penalty phase of the
trial. Three correctional officers testified about Fields’s recent good behavior.
Jane Bye testified about Fields’s background, including the fact that his
mother was on welfare around the time Fields was born; his abuse by his
mother’s boyfriend, William Bradford; the fact that his mother shot Bradford,
for which she was incarcerated for fifty days; the fact that Fields began
committing crimes the year after his mother was incarcerated; his family’s
difficult move to the projects; Fields’s exposure to drugs, guns, and other types
of crimes in the projects; the lack of supervision of Fields or his siblings;
Fields’s suicide attempt and his friend’s death; the fact that three of his friends
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                                 No. 13-70025
died in violent fashion in 1989; the fact that Fields witnessed a drunk driver
kill his grandfather; Fields’s multiple attempts to commit suicide while at the
Texas Youth Commission; and the fact that Melvin Swinnie, with whom
Fields’s mother was romantically involved after Bradford, shot her in the head
in 1993.
      Next, Fields’s uncle, Vincent Green, testified about Fields’s background,
including the fact that Fields was present when his grandfather was killed;
that the projects were dangerous; and that Fields told Green he wanted to
leave the projects after his family moved there. Fields’s grandfather’s stepson,
Reverend Edward Green, also testified about Fields’s background, including
the details of the day that Fields’s grandfather was killed; the fact that the
projects were a rough neighborhood and not a good environment for raising
children; and his opinion that Fields’s move to the projects was a “traumatic
change.” Adrian Dow, a prior girlfriend, testified that Fields was a positive
influence on their daughter and treated Dow with respect. Fields’s mother,
Alice Swinnie, testified about Fields’s background, including that her former
boyfriend, Bradford, had an alcohol problem and beat her and her children;
that the abuse continued from when Fields was around two years old until he
was ten or eleven; that there were violence and drugs in the projects, to which
Fields was exposed; that Swinnie was absent for extended periods of time
because of the multiple jobs she worked, leaving Fields and his siblings
unsupervised; that she shot Bradford and spent fifty days in prison as a result;
that it was especially hard on Fields when she was imprisoned; and that
another man she dated shot her in the head. She also testified that she
believed Fields could change his life, and do “some good things,” including
continuing his education, if he received a life sentence.     Lastly, Dr. Price
testified about Fields’s IQ and ability to adapt to a prison environment.


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                                         No. 13-70025
       As this review makes clear, Fields’s counsel investigated and presented
evidence of Fields’s poverty, neglect, abuse, attempted suicides, exposure to
violence, incarceration while a teenager and later, and the death of close family
members and friends. Thus, while Fields contends that his trial counsel should
have found and presented precisely this type of evidence, the record reflects
that his trial counsel did so.
       The mitigating evidence presented generally falls into the category of
“family and social history,” as described by the ABA Guidelines: a category that
includes physical and emotional abuse, domestic violence, poverty, familial
instability, neighborhood environment, peer influence, and “other traumatic
events such as exposure to criminal violence [or] the loss of a loved one.” ABA
Guidelines. As earlier noted, the ABA Guidelines are “guides to determining
what is reasonable.” Wiggins, 539 U.S. at 524. The fact that Fields’s trial
counsel investigated and presented evidence of each of these “family and social
history” sub-categories is a strong indication that the district court’s
conclusion, that counsels’ performance was reasonable, is not debatable.
       Fields’s argument that the mitigating evidence his trial counsel
presented was inadequate because it was in “outline form” and “devoid of
detail” is unpersuasive. The fact that the jury unanimously found the presence
of nine mitigating factors, and found by a majority the presence of four other
mitigating factors, belies Fields’s argument. 5               The jury’s answers to the



       5   The jury unanimously found the presence of the following nine statutory mitigating
factors:
       •     The Defendant has lived most of his life without having a significant father
             figure.
       •     The Defendant has spent a large portion of his life incarcerated.
       •     The Defendant’s periods of incarceration have included significant time in
             solitary confinement.
       •     The Defendant suffered from physical abuse during his formative years[.]
       •     The Defendant suffered from emotional abuse during his formative years.
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                                      No. 13-70025
mitigation questions indicate that the jury credited Fields’s witnesses and gave
careful consideration to the challenges that Fields faced. Nonetheless, the jury
concluded that the aggravating factors outweighed the mitigating factors.
       Fields analogizes to Wiggins, in which the Court found counsels’
performance deficient where counsel “abandoned their investigation of [the]
petitioner’s background after having acquired only rudimentary knowledge of
his history from a narrow set of sources.” 539 U.S. at 524. Fields explains that
Wiggins “makes it clear that conducting some mitigation investigation does not
suffice,” as opposed to conducting a full investigation.
       Wiggins is distinguishable and does not support Fields’s argument. In
Wiggins, “counsel introduced no evidence of Wiggins’ life history” during the
punishment phase of the trial. Id. at 515 (emphasis added). The Court’s focus
was on “whether the investigation supporting counsel’s decision not to
introduce mitigating evidence of Wiggins’ background was itself reasonable.”
Id. at 523. The Court concluded it was not. Id. at 533. Counsels’ investigation



       •   The Defendant suffered from parental neglect during his formative years.
       •   The Defendant is the product of an impoverished background which
           impaired or hampered his integration into the social and economic
           mainstream of society.
       •   The Defendant’s mother has a history of criminal behavior and
           incarceration.
       •   The Defendant was exposed to the violent deaths of family members, loved
           ones, and friends during his formative years.
The jury found the presence of the following four statutory mitigating factors by a majority:
       •   The imposition of a death sentence would cause emotional injury, harm and
           loss to the Defendant’s mother, children and other family members. [11
           jurors]
       •   That as the Defendant ages, his behavioral problems may decrease. [11
           jurors]
       •   The Defendant can be of some productive value in a prison setting. [9
           jurors]
       •   The Defendant grew up in an atmosphere of violence and fear, which
           misshaped his perception as to the acceptability or necessity of violent
           conduct. [7 jurors]
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relied on only three sources: a psychologist’s examination, a presentence
investigation report, and records kept by the Baltimore City Department of
Social Services (“DSS”) documenting the petitioner’s placement in foster care.
Id. at 523. Counsel did not prepare any social history report, id. at 524, and
did not pursue leads suggested by the DSS documents, including the
petitioner’s mother’s alcoholism or the effect of foster care on the petitioner, id.
at 525. Counsel did not discover the petitioner’s exposure to severe physical
and sexual abuse by his mother and while under the care of foster parents. Id.
at 516, 525, 535. The Court concluded that counsels’ deficient performance
prejudiced the petitioner. Id. at 535–36.
       Here, by contrast, counsel investigated and introduced evidence of
Fields’s social history through multiple witnesses, a mitigation specialist
among them. Fields’s counsel investigated numerous sources, unlike the three
sources relied on by trial counsel in Wiggins. Id. at 533. As indicated by Bye’s
testimony, Fields’s trial counsel and mitigation team conducted a thorough
investigation of Fields’s background and social history, which revealed Fields’s
physical abuse; suicide attempts; exposure to drugs, guns, and violence; and
the deaths of friends and family members in violent fashion, among other
topics. 6   Finally, unlike in Wiggins, where trial counsel did not uncover
pervasive sexual abuse, id. at 525, there is no indication here that trial counsel




       6 See also Affidavit of Jane Bye (“My duties on this case included investigating Mr.
Fields’[s] social and mental health history, consulting with the attorneys, the investigator,
and other members of the defense team.”; “In the course of my work, I learned that Mr. Fields
had experienced a great deal of trauma in his life. Mr. Fields had witnessed a great deal of
violence and had lost friends and family members in a violent manner. He had attempted
suicide more than once.”); February 3, 2004 Trial Transcript (testimony of Jane Bye)
(describing investigatory steps she undertook to gather information).
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                                        No. 13-70025
failed to uncover or investigate any such issue in Fields’s background (with the
exception of Fields’s mental health, which we address below). 7
       Lastly, Fields contends that the new evidence he offers is “materially
different” from the evidence presented by trial counsel. However, our review
of the evidence presented at trial, when compared to the additional evidence
Fields claims his counsel should have discovered, convinces us that reasonable
jurists would not disagree with the district court’s determination that the new
evidence is not materially different from that presented at trial. Rather, it
offers more detail about each category of mitigation evidence, but duplicates
the evidence already presented.
       Accordingly, we conclude that reasonable jurists would not debate the
district court’s holding.
              b. Mental illness and family history of mental illness
       We similarly conclude that reasonable jurists would not debate the
district court’s rejection of Fields’s IAC claim with respect to his counsels’
performance in presenting mitigating evidence of Fields’s mental illness and



       7 Escamilla v. Stephens, No. 12-70029, -- F.3d ---, 2014 WL 1465361 (5th Cir. Apr. 15,
2014), to which Fields directs our attention in a Rule 28(j) letter, is distinguishable on this
basis, as well. There, we granted a COA on the petitioner’s deficient mitigation investigation
claim where counsel neglected to obtain unredacted versions of the petitioner’s Texas Youth
Commission reports, “unreasonably relied upon” the petitioner’s family members’
descriptions of the petitioner’s childhood as “stable,” and “declined to hire a mitigation
specialist, failed to obtain a psychological evaluation for their client until after trial began,
and failed to ensure that the expert evaluating [the petitioner] was aware of his family
background and social history.” Id. at *9. We found prejudice, noting that the “jury that
sentenced [the petitioner] to death was presented with evidence that [the petitioner] was a
‘pretty normal’ kid until age eleven,” despite the fact that the petitioner faced “disadvantages,
instability, and trauma” as a child. Id. at *10. This included the petitioner’s suffering a
“violent and abusive upbringing” and his “untreated substance abuse problems.” Id. at *3.
        Here, counsel presented evidence of the disadvantages, instability, and trauma that
Fields faced during his childhood. Unlike in Escamilla, Fields’s jury heard evidence of
Fields’s abusive upbringing, among other topics. Moreover, counsel hired a mitigation
specialist, Jane Bye, who testified at length about Fields’s background. For these reasons,
Escamilla is distinguishable.
                                              15
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                                 No. 13-70025
family history of mental illness. The mental illness evidence adduced during
the penalty phase of the trial consisted of the following:
         • Fields received psychiatric and psychological treatment while at
           the Texas Youth Commission (testimony of Jane Bye);
         • Fields’s mother suffered from mental retardation (testimony of
           Jane Bye);
         • Fields had been diagnosed with an antisocial adolescent behavior
           disorder (testimony of Dr. Price on cross-examination).
In Fields’s habeas motion, he presented evidence of diagnoses of bipolar
disorder and post-traumatic stress disorder (“PTSD”), and a family history of
mental illness. In ruling on Fields’s motion, the district court acknowledged
the “relative paucity of evidence regarding [Fields’s] history of mental illness
and his family’s history of mental illness” that was presented during the trial,
as well as the fact that “further information regarding any mental illness
suffered by [Fields] or the genetic predisposition to mental illness based on his
family history could have been mitigating if true.”
      With respect to the other categories of mitigation evidence discussed
above, such as abuse and trauma, trial counsel presented some evidence of the
issue, and Fields seeks to have more evidence considered now. With respect to
the mental health evidence, however, trial counsel presented no evidence of
Fields’s bipolar disorder or PTSD, nor of Fields’s family history of mental
illness (beyond the mention of Fields’s mother’s mental retardation, which the
testimony suggested may derive, in part, from her being shot in the head).
      Assuming without deciding that counsels’ performance was deficient, we
conclude that the district court’s holding that counsels’ performance did not
prejudice Fields is not debatable. The district court held that Fields could not
establish prejudice because “additional evidence of [Fields’s] specific mental
illnesses could possibly have been utilized as evidence that [Fields] was a
future danger to society,” and the “record reflects that the government had

                                       16
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                                      No. 13-70025
presented compelling aggravating evidence regarding [Fields’s] future
dangerousness.” We have considered “the totality of the available mitigation
evidence,” and performed the required reweighing of this evidence against that
in aggravation. Porter, 558 U.S. at 41. The district court’s holding is not
debatable because there is not a probability “sufficient to undermine
confidence in the outcome,” Wiggins, 539 U.S. at 534, that, if trial counsel had
presented the mitigating evidence of mental illness to the jury, the jury would
have reached a different result.
       Evidence of mental illness can be mitigating, in that it can influence a
jury’s appraisal of a defendant’s moral culpability. Porter, 558 U.S. at 454.
However, such evidence can also be “double-edged,” as the district court noted,
since it can lead a jury to conclude that a defendant poses a future risk of
violence. Martinez v. Quarterman, 481 F.3d 249, 255 (5th Cir. 2007); see also
Vasquez v. Thaler, 389 F. App’x 419, 429 (5th Cir. 2010); Woods v. Thaler, 399
F. App’x 884, 895 (5th Cir. 2010).
       The mental health evidence that Fields asserts should have been
presented may have led the jury to find an additional mitigating factor related
to that evidence. However, even if the jury made such a finding, the jury would
have weighed it, along with the other mitigating factors, against the severe
aggravating factors that led the jury to impose the death penalty in the first
place. 8     Reasonable jurists would not disagree with the district court’s


       8   The jury unanimously found the presence of the following statutory aggravating
factors:
       •    The death, or the injury resulting in death, of the victim, Suncerey
            Coleman, occurred during the commission or attempted commission of an
            offense, that is, escape.
       •    The defendant, Sherman Lamont Fields, has previously been convicted of
            a federal or state offense punishable by a term of imprisonment of more
            than one year involving the use or the attempted or threatened use of a
            firearm against another person.
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                                      No. 13-70025
conclusion that the jury’s calculus would not have changed if such evidence
had been presented.
      The jury heard ample mitigating evidence, and found nine statutory
mitigating factors unanimously and another four by a majority. Nonetheless,
the jury concluded that the aggravating factors outweighed these mitigating
factors, and sentenced Fields to death. The jury heard testimony that Fields:
escaped from prison, subsequently murdered Coleman, and later carjacked
Edwards while using a gun; shot a man in the head during a drive-by shooting
in 1991, pled guilty to attempted murder, and received an eight-year prison
sentence for the crime; participated in another drive-by shooting in 2000; raped
and beat his ex-wife, April Fields, threatened to kill her, and at one point drove
her to a dark, wooded area where he made her get out of the car and pulled a



(The jury did not unanimously find the presence of the statutory aggravating factor that
Fields “committed the offense after substantial planning and premeditation to cause the
death of the victim, Suncerey Coleman.”)
Lastly, the jury unanimously found the presence of the following three non-statutory
aggravating factors:
      •   The defendant, Sherman Lamont Fields, caused injury, harm, and loss to Suncerey
          Coleman, her family and children, and her friends as demonstrated by the victim’s
          personal characteristics as an individual, including the fact that she was a new
          mother to a prematurely born infant, and the impact of her death upon her family,
          children and friends.
      •   Prior to the murder of Suncerey Coleman, the defendant, Sherman Lamont Fields,
          participated in attempted murders and other serious acts of violence. Serious acts
          of violence means serious criminal activity, causing or intending to cause serious
          bodily injury or death; not trivial, accidental, reckless or negligent acts.
      •   The defendant, Sherman Lamont Fields, is likely to commit serious acts of violence
          in the future which would be a continuing and serious threat to the lives and safety
          of others, including, but not limited to, inmates and correctional officers in an
          institutional correctional settings [sic], as evidenced by the offenses charged in
          this case and the statutory and non-statutory aggravating factors alleged in this
          case. In addition to the capital offense charged in this case and the statutory and
          non-statutory aggravating factors alleged in this case, Sherman Lamont Fields
          has engaged in a continuous pattern of violent conduct, has threatened others with
          violence, has demonstrated low rehabilitative potential, has made specific
          admissions of violence, is an escape risk, and/or has demonstrated lack of remorse.
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                                        No. 13-70025
gun on her, but decided not to kill her; attempted to escape from prison after
his arrest for Coleman’s murder by removing an air vent in the ceiling; and
engaged in violent conduct and threatened the lives of correctional officers and
their families while he was imprisoned. The jury found, unanimously, that
Fields “participated in attempted murders and other serious acts of violence”
before killing Coleman. The jury concluded, also unanimously, that Fields “is
likely to commit serious acts of violence in the future which would be a
continuing and serious threat to the lives and safety of others.”
       Given Fields’s violent crimes, his history of violence, the jury’s finding
that he posed a risk of future violence, and the fact that evidence of mental
illness can be “double-edged,” see Vasquez, 389 F. App’x at 429, Woods, 399 F.
App’x at 897, reasonable jurists would not debate the district court’s holding
that the verdict would not have changed even had the jury heard evidence of
Fields’s mental illnesses. Accordingly, we deny a COA. 9
              c. Potential brain damage
       Lastly, we conclude that reasonable jurists would not debate the district
court’s rejection of Fields’s IAC claim with respect to his counsels’ performance
in not further investigating or presenting mitigating evidence of brain damage.
Dr. Price, the clinical and forensic psychologist and neuropsychologist who was
a member of Fields’s penalty phase investigation team, stated in his
declaration that he “did not conduct any neuropsychological testing on Mr.
Fields as [he] did not find any suggestion of congenital or acquired brain
damage.” Fields’s counsel, Swanton, stated in his declaration that he “would
have relied on [Dr. Price’s] opinion if he felt any [neuropsychological] testing



       9 The fact that the district court issued an Allen charge does not affect this conclusion,
contrary to Fields’s argument. The Allen charge, by itself, does not demonstrate that the jury
was so deadlocked such that the presentation of additional mitigation evidence would have
altered the outcome. (Moreover, as explained infra, Fields’s Allen charge claim is barred.)
                                              19
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                                    No. 13-70025
was warranted after his interviews with Mr. Fields.” In his habeas materials,
Fields does not provide any evidence of brain damage; rather, he speculates
that brain damage may have occurred due to his upbringing and attempted
suicides. Based on counsels’ reliance on Dr. Price’s opinion and the lack of
evidence of brain damage offered by Fields, jurists of reason would not debate
the    district   court’s   conclusion    that   counsels’   performance    was   not
unreasonable.
           2. Investigation of the Homicide
        Fields’s second IAC claim is that his counsel failed to conduct an
adequate investigation into the facts of the charged homicide. Specifically, he
asserted in his § 2255 petition that counsel did not interview the following
three potential witnesses:
        Renee “Na-Na” Alberta Hampton, who Fields contends was an
        eyewitness to the crime. . . . Edward Outley III, who Fields
        asserted was an accomplice to the actual killer, Shalaykea
        Scroggins. . . . [And] Debra Alexander, a witness that the
        Government identified as one who could corroborate Fields’[s]
        defense that Scroggins was the actual killer.
He also argued that counsel only investigated and interviewed a small number
of the government’s witnesses.           The district court rejected Fields’s claim,
finding that he failed to indicate what facts the uncalled witnesses would have
testified to or how their testimony would have changed the outcome of the trial.
The district court also concluded that Fields failed to establish how additional
investigation or interviews would have uncovered favorable testimony for him
or otherwise altered the trial’s outcome.
        Fields suggests that the district court’s holding is debatable because: his
counsel was ineffective; Moore v. Quarterman, 534 F.3d 454 (5th Cir. 2008),
indicates that he should have an opportunity to develop the factual record; the
district court improperly stated that Fields never sought a continuance to

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                                 No. 13-70025
subpoena witnesses, when in fact the court had foreclosed this possibility; and
the district court failed to address his claim concerning his counsels’
investigation of witnesses on the government’s witness list. We deny a COA
because jurists of reason could not disagree with the district court’s rejection
of Fields’s arguments.
      “[A] defendant who alleges a failure to investigate on the part of his
counsel must allege with specificity what the investigation would have
revealed and how it would have altered the outcome of the trial.” Trottie, 720
F.3d at 243 (internal quotation marks omitted).       We have explained that
“[c]omplaints of uncalled witnesses are not favored in federal habeas corpus
review because allegations of what a witness would have testified are largely
speculative.” Sayre v. Anderson, 238 F.3d 631, 635–36 (5th Cir. 2001) (internal
quotation marks omitted). To prevail on such a claim, “the petitioner must
name the witness, demonstrate that the witness was available to testify and
would have done so, set out the content of the witness’s proposed testimony,
and show that the testimony would have been favorable to a particular
defense.” Day v. Quarterman, 566 F.3d 527, 538 (5th Cir. 2009).
      Reasonable jurists would not debate the district court’s holding because
Fields’s allegations about the testimony of uncalled witnesses are “largely
speculative,” see Sayre, 288 F.3d at 635–36, and he fails to “allege with
specificity” what the investigation would have revealed about Hampton,
Alexander, and Outley, or “how it would have altered the outcome of the trial,”
Trottie, 720 F.3d at 243 (internal quotation marks omitted). Fields’s counsel
attempted to interview Hampton, but she refused to speak with the defense
investigator, as Fields acknowledges in his petition. Moreover, Fields does not
allege with specificity what Hampton would have stated had she testified; he
merely asserts that she was a “potential eyewitness to the murder.” Similarly,
Fields only asserts that Alexander could “corroborat[e] Fields’[s] defense that
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                                       No. 13-70025
Scroggins was the actual killer.” Fields’s statement that Outley is “alleged to
be an accomplice to the actual killer,” is also conclusory and devoid of specifics.
Furthermore, Outley testified at trial, thereby providing Fields with an
opportunity to cross-examine him about his alleged role in Coleman’s murder.
Fields does not indicate how the testimony of any of the witnesses would have
changed the outcome of the trial, Trottie, 720 F.3d at 243, and therefore, cannot
establish that the district court’s holding is debatable. 10
       Moore, to which the district court analogized, does not help Fields. Like
the petitioner there, Fields has not indicated what the additional witnesses
“would have testified to.” Moore, 543 F.3d at 468. The fact that the petitioner
in Moore received an evidentiary hearing does not entitle Fields to one, because
the record is adequate to dispose of his claim, as discussed infra.
       Fields’s argument that his counsels’ performance was deficient because
they only interviewed “four of the fifty-nine witnesses” who testified for the
government is unpersuasive. As with Fields’s claims concerning Hampton,
Alexander, and Outley, Fields fails to allege what the investigation of the
additional government witnesses would have revealed or how it would have
altered the trial’s outcome.         His conclusory argument and appeal to bare
numbers does not make the district court’s holding debatable. Trottie, 720 F.3d
at 243.
       Fields’s contention that his trial counsel only investigated “73 of the 120
witnesses” on the government’s witness list, and that this investigation was



       10 The district court’s observation that Fields did not seek a continuance “to interview
and possibly subpoena witnesses” did not affect its conclusion that Fields’s arguments
regarding the uncalled witnesses were devoid of the specific allegations necessary to obtain
relief. Moreover, Fields’s assertion that such a continuance was foreclosed by the district
court’s statement during pretrial proceedings that further delay was “not going to happen” is
misleading; the district court’s point was that Fields could have sought to interview and
subpoena witnesses at an earlier date.
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                                    No. 13-70025
limited to open-file review of the government’s work, is unconvincing for
similar reasons. At no point does Fields state what his trial counsel would
have discovered from additional investigation of these witnesses. Moreover,
Fields does not indicate how the investigation of these other witnesses would
have altered the outcome at trial. See Trottie, 720 F.3d at 243.
      For these reasons, we conclude that no reasonable jurist would debate
the district court’s denial of Fields’s claim.
           3. Failure to Adequately Challenge Expert Testimony 11
      Fields’s final standalone IAC claim is that his trial counsel failed to
adequately challenge the admissibility of the testimony of Dr. Coons, the
government’s expert on future dangerousness, or to adequately attack Dr.
Coons’s methodology and conclusion that Fields posed a risk of future
dangerousness. For the reasons that follow, we deny a COA on Fields’s claim.
Because our analysis requires careful consideration of the challenges that
Fields’s counsel levied against Dr. Coons at trial, we first review this material.
      Dr. Richard Coons, a forensic psychiatrist, testified during the penalty
phase of the trial. Fields, 483 F.3d at 341. Fields’s attorneys learned what Dr.
Coons would testify concerning two days before he testified. Dr. Coons did not
prepare a written report. Before Dr. Coons testified, Fields’s counsel moved to
examine him outside the presence of the jury to make a challenge pursuant to
Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), which the
district court granted. During the voir dire, Fields’s counsel stated as a fact
that “the American Psychiatric Association [“APA”] has essentially taken the
position that the area of future dangerousness is not one that can be predicted
with any sort of regularity or scientific regularity.” Fields’s counsel questioned


      11 As with several of Fields’s arguments on appeal, this one encompasses multiple
claims from his § 2255 petition. We address each claim below. For Fields’s subsequent
multiple-claim arguments, we address the claims as they are grouped on appeal.
                                          23
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                                  No. 13-70025
Dr. Coons regarding the empirical data he relied on in reaching his
determination, his awareness “of the studies that indicate that the prediction
of future dangerousness is not reliable,” the lack of peer review of Dr. Coons’s
findings, and the fact that Dr. Coons’s findings cannot be scientifically tested.
Dr. Coons admitted that he did not perform any follow-up studies in connection
with his previous determinations of future dangerousness.
      The court overruled Fields’s objections and allowed the government to
call Dr. Coons to testify. As we explained on direct appeal,
      After Dr. Coons testified regarding his education and experience,
      the prosecutor posed a hypothetical, which consisted of the facts of
      the instant capital murder and some of Fields’s background and
      criminal history. Based upon this hypothetical, the prosecutor
      asked Dr. Coons whether such an individual would constitute a
      future danger to others, including persons in a correctional facility.
      Dr. Coons responded that there was a “probability of future
      violence.”
Fields, 483 F.3d at 341. During cross-examination, Fields’s counsel elicited
several admissions from Dr. Coons regarding his conclusions: Dr. Coons stated
that there is a “considerable subjective element” to his opinion; he could not
identify a study validating an expert’s subjective opinion about a prisoner’s
future dangerousness; he admitted that his opinion had not been subjected to
peer review; he admitted that he could not provide an error rate for his opinion;
he admitted that he did not know the APA’s position on future dangerousness
and that some members of the organization “have difficulty with the issue”; he
admitted that there is a possibility Fields will not be dangerous in the future;
he admitted that he had reviewed Fields’s records, and stated that he did not
know of any instance of Fields “actually physically injuring a guard”; and he
stated that there are studies indicating that as prisoners age, they are less
likely to be violent.



                                       24
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                                        No. 13-70025
       The district court rejected Fields’s claim, finding that he could not
establish that his counsels’ performance was deficient or prejudicial.                      We
conclude that reasonable jurists would not debate the district court’s holding,
because Fields fails to show that his trial counsels’ performance was deficient,
either in adequately challenging the admissibility of Dr. Coons’s testimony
before trial, 12 or in adequately attacking Dr. Coons’s methods and conclusion
during trial, such as by introducing evidence to counter Dr. Coons’s
assessment. Fields’s trial counsel made a Daubert challenge to Dr. Coons’s
testimony, performed a voir dire of Dr. Coons, and objected to the admission of
Dr. Coons’s testimony. See Fields, 483 F.3d at 341. Once the district court
overruled counsels’ objections, counsel performed a cross-examination of Dr.
Coons during which counsel elicited several admissions from him regarding his
methodology and the scientific validity of his conclusions.
       Considering the record and these circumstances, reasonable jurists
would not debate the district court’s holding that trial counsels’ performance
did not fall below an objective standard of reasonableness. See Flores-Ortega,
528 U.S. at 476–77. Fields’s counsel challenged Dr. Coons’s conclusion on
multiple grounds, revealing its subjectivity and casting doubt on its scientific
or statistical validity. Thus, trial counsel undertook precisely what Fields
argues he failed to do: he attacked Dr. Coons’s methodology and techniques.
       Fields’s reliance on Gobert v. State, No. AP-76345, 2011 WL 5881601
(Tex. Crim. App. Nov. 23, 2011), and Coble v. State, 330 S.W.3d 253 (Tex. Crim.
App. 2010), for the proposition that these cases “fully repudiated” Dr. Coons’s


       12 Dr. Coons’s qualification as an expert under Daubert is not at issue in this appeal,
since Fields does not brief it and we decided the issue on direct appeal. See Fields, 483 F.3d
at 341–45. Challenges to issues decided on direct appeal are foreclosed from consideration
in a § 2255 motion. United States v. Kalish, 780 F.2d 506, 508 (5th Cir. 1986). Thus, to the
extent Fields faults his counsel for failing to adequately object to Dr. Coons’s admissibility as
an expert, such a claim is foreclosed by our prior opinion. Id.
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                                       No. 13-70025
methodology and techniques, and therefore demonstrate that the district
court’s opinion is incorrect, is unavailing. 13 Ineffective assistance of counsel
was not an issue in Coble or Gobert with respect to Dr. Coons’s testimony.
Rather, the primary question in both cases concerning Dr. Coons’s testimony
was its admission pursuant to Texas’s evidentiary rules. Coble, 330 S.W.3d at
270; Gobert, 2011 WL 5881601, at *6–7. As a result, the cases’ bearing here is
limited.    Moreover, as earlier noted, we decided the issue of Dr. Coons’s
admissibility on direct appeal, so its consideration is foreclosed here.




       13 In Coble, 330 S.W.3d at 270, the court considered the admissibility of Dr. Coons’s
expert testimony about the appellant’s future dangerousness. Although the court agreed
with the appellant that Dr. Coons’s testimony was improperly admitted under Texas Rule of
Evidence 702 because “it was insufficiently reliable,” id., the court concluded that the
admission of the testimony did not affect the appellant’s substantial rights to a fair
sentencing hearing, id. at 286. The court gave five reasons for its conclusion: (1) “[t]here was
ample other evidence supporting a finding that there was a probability that appellant would
commit future acts of violence”; (2) “[t]he same basic psychiatric evidence of appellant’s
character for violence was admissible and admitted, without objection, through other,
entirely objective, independent medical sources—the reports by Dr. Hodges and the military
doctor years before appellant committed these murders”; (3) “Dr. Coons’s opinion was not
particularly powerful, certain, or strong,” coming as it did “after an extremely long and
convoluted hypothetical,” and simply stating, “there is a probability that” the appellant would
be a continuing threat; (4) “Dr. Coons’s testimony was effectively rebutted and refuted by”
another expert, Dr. Cunningham, “who not only relied upon specifically listed scientific
materials and data during his testimony, but who also noted that Dr. Coons and his
methodology had been criticized by both the American and Texas Psychological Association”;
and (5) the prosecution “barely mentioned Dr. Coons during closing argument and did not
emphasize him or his opinions.” Id. at 286–87.
        Similarly, in Gobert, the court concluded that the trial judge “abused his discretion in
admitting Dr. Coons’s opinion on future dangerousness in this case for the same reasons that
we held it inadmissible in Coble v. State.” 2011 WL 5881601, at *7 (internal footnote omitted).
However, the court found that the admission was harmless error, explaining, “[g]iven the
overwhelming evidence of appellant’s life-long penchant for violence, the circumstances of
the capital murder, the evidence of his conspiracy to commit capital murder to effectuate his
escape from jail, [and] his own testimony concerning his prior violence in prison and toward
anyone—including his own mother—who angers him, we are confident that this error did not
affect appellant’s substantial rights to a fair sentencing trial.” Id. The court also noted that
the prosecution did not “emphasize or rely upon” Dr. Coons’s testimony during closing
argument. Id.
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                                 No. 13-70025
      It is true that Fields’s counsel did not call an expert to rebut Dr. Coons,
as counsel did in Coble.     See Coble, 330 S.W.3d at 282.          However, this
distinction does not indicate that the district court’s holding concerning
counsels’ performance is debatable, given that counsel attacked Dr. Coons’s
methodology and conclusion at length on cross-examination.
      Fields’s contention that his counsels’ deficient performance is evidenced
by Swanton’s acknowledgement that he “did not conduct any additional
research or review prior transcripts of Dr. Coons’[s] testimony,” and by the fact
that Swanton did not prepare a written challenge to Dr. Coons’s testimony, is
unpersuasive. Swanton’s affidavit indicates that while he did not conduct
additional research, he did not do so because “[he] had previously tried cases
involving Dr. Coons, so [he] was familiar with [Dr. Coons’s] approach to
predicting future dangerousness.”      Swanton notes that he “attacked Dr.
Coons’[s] methodology” during his cross-examination, “rather than the ‘facts’
underlying [Dr. Coons’s] opinion.” Similarly, Swanton did not submit a written
challenge to Dr. Coons’s testimony because the government did not prepare a
written Daubert report. Given our review of the record, we cannot say that
reasonable jurists would debate that district court’s holding.
      Fields argues that his trial counsel was deficient for failing to introduce
evidence that the Bureau of Prisons was equipped to prevent violence within
its prisons by using super-maximum facilities. The district court rejected this
argument,    concluding   that   Fields’s   counsel   “reasonably    focused”   on
establishing that Fields’s violent tendencies would decrease over time,
“[r]ather than presenting evidence” on “super-secure facilities.” Jurists of
reason would not debate the district court’s holding. Fields’s counsel focused
on Fields’s recent improved behavior, and on studies suggesting that his
behavior would continue to improve with age, rather than focusing on the
safeguards available at Bureau of Prisons facilities, which “may have
                                       27
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                                 No. 13-70025
reinforced to the jury the idea that [Fields] would always remain a future
danger,” as the district court found. Fields’s counsel called multiple prison
employees who testified that Fields’s behavior had improved during his
imprisonment; defense witness Dr. Price testified that he agreed with studies
showing that behavioral problems decrease with age; and Dr. Coons
acknowledged these studies.     Moreover, Dr. Price’s affidavit explains that
Swanton decided “to limit the extent of information presented about [Fields’s]
risk to engage in violent behavior in prison due to his prior behavior while
incarcerated.”   Fields has not shown that the district court’s holding is
debatable, or given us reason to second-guess counsels’ strategic decision not
to explore this topic. See Strickland, 466 U.S. at 681.
      Fields also fails to establish that the district court’s holding that he was
not prejudiced by any deficient performance of counsel is debatable. The jury
was present for Fields’s counsels’ cross-examination of Dr. Coons, and heard
the challenges to Dr. Coons’s methodology.         The jury also heard other
testimony that could have lead it to conclude that Fields posed a risk of future
dangerousness, including testimony about his numerous prior acts of violence,
successful escape from prison, escape attempt after being imprisoned for
Coleman’s murder, and threats to correctional officers. Given these facts, and
the jury’s unanimous findings that Fields had “participated in attempted
murders” in the past and “is likely to commit serious acts of violence in the
future,” reasonable jurists would not debate the holding of the district court
that there is not a probability “sufficient to undermine confidence in the
outcome,” Wiggins, 539 U.S. at 534, that, if Dr. Coons’s testimony had not been




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                                       No. 13-70025
admitted or counsel had offered a defense expert to rebut Dr. Coons, the jury
would have reached a different result. 14
       Fields’s arguments that the admission of Dr. Coons’s testimony “worked
an independent violation” of his Fifth and Eighth Amendment rights and
constituted error “as a matter of federal evidence law under the Federal Death
Penalty Act” are barred because we decided them on direct appeal. Fields, 483
F.3d at 343–45; see Kalish, 780 F.2d at 508. For these reasons, we conclude
that reasonable jurists would not debate the district court’s holding, and we
deny a COA.
       B. Competency to Waive Counsel
       Fields contends that he suffers from mental illness and was incompetent
to waive counsel, that the district court’s pretrial inquiry into his competence
was constitutionally inadequate, and that his counsels’ performance was
deficient because counsel failed to conduct an adequate investigation into his
competence “despite numerous red flags.” He contends that reasonable jurists
would debate the correctness of the district court’s decision to deny relief. We
conclude that reasonable jurists would not debate the district court’s holding,
and deny a COA.



       14 We also note that the factors the Coble court looked to, in concluding that the
admission of Dr. Coons’s testimony was harmless, similarly suggest that any error here was
not prejudicial. As in Coble, “there was ample evidence that there was a probability that
[Fields] would commit future acts of violence quite apart from Dr. Coons’s testimony.” 330
S.W.3d at 281. Additionally, “Dr. Coons’s opinion was not particularly powerful, certain, or
strong,” coming as it did “after an extremely long and convoluted hypothetical,” and simply
stating “there is a probability that” Fields would be a continuing threat. Id. at 286. Lastly,
as in Coble, “the prosecution did not rely heavily upon Dr. Coons’s testimony during its
closing arguments.” Id. at 283. The government did not mention Dr. Coons or his research
in the closing argument, and instead reminded the jury of Fields’s past violent conduct, and
asked the jury consider the “track record of [Fields’s] choices,” and his “pattern of conduct,”
in determining if he posed a risk of future dangerousness. These facts belie Fields’s argument
that Dr. Coons was “the focal point” for the government’s case about his future
dangerousness.
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                                       No. 13-70025
            1. Factual Background
       While awaiting trial, Fields moved to appear pro se on multiple
occasions, only to subsequently withdraw his motions. 15 Again during the
pretrial hearing, Fields requested to waive counsel and proceed pro se. He
informed the district court that he felt his appointed counsels’ “actions are
suspicious and I think they’re working with the prosecutor instead of working
for me.” He stated that his counsel “prepared a strategy . . . in an attempt to
try to get me a life sentence when I repeatedly profess my innocence.” The
district court indicated that it would not appoint replacement counsel at that
point in the proceedings. The district court informed Fields of his right to
represent himself, and indicated that it would need to ensure that Fields was
waiving his right to counsel voluntarily and intelligently. The district court
proceeded to evaluate Fields’s understanding of the nature of the proceedings
and his decision to proceed pro se. The district court cautioned Fields against
taking such a course of action, and twice asked Fields if he “still want[ed] to
represent [him]self,” to which Fields replied in the affirmative.
       The government suggested that the district court arrange for an
evaluation of Fields’s competency and capacity, in light of the defense’s offering
of diminished capacity as a possible mitigation instruction. Fields’s defense
counsel agreed, requesting that the court arrange for Fields to be examined
“out of an abundance of caution.” Fields’s counsel noted that Dr. Price had
evaluated Fields, and determined that he had an IQ of 114 and was “fairly



       15 Fields moved to “represent self” on September 25, 2002, and moved to appear pro se
on March 4, 2003. He moved to withdraw his motion to appear pro se on April 30, 2003,
which the district court granted, thereby mooting his motion to “represent self.” Fields again
moved to appear pro se on August 12, 2003. The district court held a motion hearing on
Fields’s request, at which “Defendant stated that he no longer pursues this request.” The
docket sheet indicates that “Defendant was warned by the Court that if he decides to
complain about his attorneys in the future it would not delay or continue his trial date.”
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                                  No. 13-70025
bright.” The court noted that the current proceedings were taking place on a
Friday afternoon, with voir dire set to begin the following Monday morning.
Nonetheless, the district court arranged for an evaluation of Fields by a
psychiatrist, Dr. Stephen Mark, at 8:00 a.m. that Monday morning, prior to
the beginning of voir dire. Dr. Mark evaluated Fields and reported that Fields
“has had some history of depression in the past and maybe some now with his
current situation, but it does not interfere with the competency.” Dr. Mark
stated that Fields
      is not psychotic. He is not organic. He appeared able to think
      through questions and not distract. He appeared able to make
      decisions adequately for himself. In terms of the specific question
      can he make the decision to represent himself and be competent,
      the answer is yes. He is competent to do so.
The district court permitted Fields to proceed pro se, with his appointed
counsel acting as standby counsel.
         2. Applicable Law
      The Constitution “does not permit trial of an individual who lacks
‘mental competency.’” Indiana v. Edwards, 554 U.S. 164, 170 (2008). “It has
long been accepted that a person whose mental condition is such that he lacks
the capacity to understand the nature and object of the proceedings against
him, to consult with counsel, and to assist in preparing his defense may not be
subjected to a trial.” Drope v. Missouri, 420 U.S. 162, 171 (1975); see also Dusky
v. United States, 362 U.S. 402, 402 (1960) (per curiam) (“[T]he test must be
whether he has sufficient present ability to consult with his lawyer with a
reasonable degree of rational understanding—and whether he has a rational
as well as factual understanding of the proceedings against him.”) (internal
quotation marks omitted). In Faretta v. California, 422 U.S. 806, 807 (1975),
the Court held that the Sixth and Fourteenth Amendments include a “right to



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                                  No. 13-70025
proceed without counsel when” a criminal defendant “voluntarily and
intelligently elects to do so.”
        In Edwards, the Court addressed “the relation of the mental competence
standard to the right of self-representation.” 554 U.S. at 170. The Court
clarified that “the Constitution permits States to insist upon representation by
counsel for those competent enough to stand trial under Dusky but who still
suffer from severe mental illness to the point where they are not competent to
conduct trial proceedings by themselves.” Id. at 178. The Court noted that
“the trial judge . . . will often prove best able to make more fine-tuned mental
capacity decisions, tailored to the individualized circumstances of a particular
defendant.” Id. at 177. We have explained that Edwards’s “new rule applies
only in the ‘exceptional’ situation where a defendant is found competent to
stand trial and elects to appear pro se, but is so severely mentally ill that his
self-representation threatens an improper conviction or sentence.” Panetti v.
Stephens, 727 F.3d 398, 414 (5th Cir. 2013), petition for cert. filed (Jan. 27,
2014) (No. 13–8453). Edwards is also “permissive, allowing the state to insist
on counsel, but not requiring that the state do so.” Id. In Panetti, we concluded
that Edwards is not retroactively applicable on collateral review. Id. at 414–
15.
        There are “‘no fixed or immutable signs which invariably indicate the
need for further inquiry to determine fitness to proceed.’” United States v.
Flores-Martinez, 677 F.3d 699, 706 (5th Cir. 2012) (quoting Drope, 420 U.S. at
180).    Rather, “‘the question is a difficult one in which a wide range of
manifestations and subtle nuances are implicated.’” Id. (quoting Drope, 420
U.S. at 180). “‘[I]n determining whether the court should order a mental
competency hearing, the court must consider three factors: (1) the existence of
a history of irrational behavior, (2) the defendant’s demeanor at trial, and (3)


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                                 No. 13-70025
prior medical opinion on competency.’” Id. at 706–07 (quoting United States v.
Ruston, 565 F.3d 892, 902 (5th Cir. 2009)).
         3. Analysis
              a. Fields’s competency to waive counsel
      The district court rejected Fields’s competency arguments, finding his
waiver of counsel intelligent and voluntary, and explaining that his “demeanor
before the Court at the pretrial hearing and in previous hearings reflects that
he had the ability to consult with his lawyer and the Court with a reasonable
degree of rational understanding and that he had a rational understanding of
the criminal proceedings against him.” The district court noted that Fields’s
pro se filings showed that “he rationally understood the criminal proceedings.”
As a result, the court concluded that Fields was competent to waive his right
to counsel.
      Fields argues that the district court failed to reevaluate its competency
conclusion and rejected Fields’s new evidence, and that he is therefore entitled
to relief on his claim.    He contends that his mental illnesses and their
symptoms, including “paranoid ideation, delusional thinking, irritability,
impaired judgment and impulse control, and grandiosity,” impaired him to
such a degree that he did not meet the Dusky standard for mental competency,
rendering him unfit to “stand trial, waive counsel and proceed with his own
defense.” He asserts that the evidence from his § 2255 motion supports this
argument, including: a declaration from Dr. George Woods, a psychiatrist,
opining that Fields’s symptoms “impaired his competency to waive his right to
counsel” and that Fields was not “competent to waive counsel and/or represent
himself”; documents reflecting that Fields was hospitalized at a psychiatric
hospital as a teenager, during which time he was diagnosed with PTSD and
evaluated as potentially having bipolar disorder; and his inmate grievance
reports, submitted while he was awaiting trial, which contain complaints that
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                                  No. 13-70025
his prison guards were conspiring to murder him, and “clearly evidence
paranoid ideation and delusional thinking.”
      We conclude that jurists of reason would not disagree with the district
court’s holding, because Fields does not show that his competency fell below a
standard that would have required the district court to deny his request to
represent himself. Dr. Woods’s declaration, executed in 2010, six years after
Fields’s trial, is not sufficient to establish that the district court’s careful and
reasoned decision that Fields was competent to waive counsel is debatable. We
note that the district court reached its conclusion after considering Fields’s pro
se oral motion for access to a law library and his motion to change venue,
questioning Fields about his decision to waive counsel, speaking with Fields’s
counsel about his competency, arranging for Fields’s psychiatric evaluation by
Dr. Mark, and considering the results of Dr. Mark’s evaluation. Reasonable
jurists would not debate the district court’s conclusion that its inquiry into the
issue demonstrated that Fields “ha[d] sufficient present ability to consult with
his lawyer with a reasonable degree of rational understanding,” and a “rational
as well as factual understanding of the proceedings against him.” Dusky, 362
U.S. at 402. Considering all the circumstances, and acknowledging that “the
trial judge . . . will often prove best able to make more fine-tuned mental
capacity decisions, tailored to the individualized circumstances of a particular
defendant,” Edwards, 554 U.S. at 177, we conclude that the district court’s
holding is not debatable.
      Fields argues that his delusional belief that his attorneys were
conspiring against him was not rational, and that therefore, he did not have
the requisite rational understanding of the proceedings against him or the
present ability to consult his attorney.       This argument is unpersuasive.
Reasonable jurists would not disagree with the district court’s conclusion that
the factors noted above—Fields’s demeanor at trial, his pro se motions, and Dr.
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                                  No. 13-70025
Mark’s evaluation—indicate that Fields was competent to waive his right to
counsel.
      Fields’s reliance on documents from his teenage years suggesting PTSD
and bipolar disease, and his inmate grievance reports, is unavailing. The
documents regarding Fields’s psychiatric evaluations as a teenager date from
1989. As such, they do not call into question the district court’s conclusion
about Fields’s rational understanding of the proceedings against him, or his
ability to consult with his counsel, at the time of his trial twenty-five years
later. Similarly, the inmate grievance reports date from April through July of
2003, approximately six months before Fields’s trial began in January 2004,
and likewise would not cause reasonable jurists to disagree with the district
court’s conclusion about Fields’s competency at the time of trial.
      Fields’s reliance on Edwards is also unavailing.        The district court
concluded that Edwards had no bearing, because the case provides the trial
court with “discretionary authority” to consider competency under a higher
standard, but does not so require. Reasonable jurists would not disagree with
the district court. As we have recently explained, “in Edwards, the Supreme
Court addressed the constitutionality of the denial of the right to self-
representation; the Court did not address the competency of a defendant who
is granted the right to self-representation, nor did it suggest that a trial court
which allows a defendant to represent himself is required to first ascertain that
he is capable of doing so.” United States v. West, -- F. App’x ---, 2014 WL
1797725, at *1 (5th Cir. May 7, 2014); see also Panetti, 727 F.3d at 414 (noting
that Edwards is permissive). Thus, reasonable jurists would not debate that
Edwards is not applicable here. Even assuming Edwards is relevant, Fields
has not shown that his competency fell below a standard that would have
required the district court to deny his request to represent himself. See id.;
Edwards, 554 U.S. at 178.
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                                     No. 13-70025
      Based on the lack of probative evidence tending to show incompetence,
we cannot say that reasonable jurists would find the district court’s decision
debatable or wrong. See Wilkins v. Stephens, -- F. App’x ---, 2014 WL 1202524,
at *10 (5th Cir. Mar. 25, 2014).
              b. Adequacy of the district court’s pretrial inquiry
      Fields contends that the district court erred by relying on Fields’s
counsels’ failure to contest competency “as proof of Fields’[s] competency”;
relying on Dr. Mark’s evaluation, which was “wholly uniformed”; relying on Dr.
Price’s evaluation of Fields’s academic potential; conducting a hearing of only
one minute in duration; and failing to consider if Fields’s waiver of counsel was
rational.    The district court rejected Fields’s arguments, holding that Dr.
Mark’s thirty-minute examination, “coupled with” Fields’s demeanor at trial,
his attorneys’ observations, and Dr. Price’s evaluation focusing on his
intelligence, did not deprive Fields of his constitutional rights. Fields suggests
that the district court’s holding is wrong, entitling him to relief.
      For the reasons noted supra, reasonable jurists would not debate the
district court’s holding that Fields was competent to waive his right to counsel.
Similarly,    reasonable   jurists    would   not    debate    the   district   court’s
determination that its pretrial inquiry into Fields’s competency was adequate.
The district court considered several factors in finding Fields competent,
including its interactions with him, his pro se motions, counsels’ interactions
with him, and Dr. Mark’s evaluation. The district court did not rely on any
single factor as “proof” of Fields’s competency.
      Fields’s argument that the hearing does not satisfy due process because
it lasted only one minute is unavailing. In fact, the competency hearing was
spread over two days, and involved the district court consulting Fields, counsel
for both sides, and Dr. Mark. Contrary to Fields’s contention, in rejecting his
§ 2255 petition, the district court did consider whether his waiver was rational,
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                                  No. 13-70025
and concluded that Fields had the ability to consult with counsel “with a
reasonable degree of rational understanding and that he had a rational
understanding of the criminal proceedings against him.” For these reasons,
reasonable jurists would not debate the district court’s holding that its inquiry
did not violate Fields’s constitutional rights.
            c. Ineffective assistance of counsel
      Fields contends that his counsels’ performance was deficient because
counsel failed to conduct an investigation into his competence. The district
court held that counsels’ performance “was neither deficient nor prejudicial.”
Given our analysis, supra, Fields cannot establish prejudice, even if his
counsels’ performance had been deficient. See Strickland, 466 U.S. at 700
(“Failure to make the required showing of either deficient performance or
sufficient prejudice defeats the ineffectiveness claim.”). Thus, Fields has not
shown that reasonable jurists would disagree with the district court’s holding.
      C. Practice Cross-Examination
      Fields argues that the district court required him to reveal privileged
trial strategy in violation of his Fifth, Sixth, and Eighth Amendment rights
when it compelled him to conduct a “dry run” of his cross-examination of
Scroggins. We deny a COA because reasonable jurists would not debate the
district court’s conclusion that the practice cross-examination (“dry run”) did
not violate Fields’s constitutional rights.
         1. Factual Background
      During the trial, the government called Shalaykea Scroggins to the
witness stand. As the district court explained, Scroggins testified that:
      (1) she was [Fields’s] girlfriend; (2) she knew that the murder
      victim, Ms. Coleman, was [Fields’s] other girlfriend; (3) she was
      aware that [Fields] had implicated her as the murderer; (4) she
      had never threatened Ms. Coleman with bodily injury; and (5)
      [Fields] admitted to Ms. Scroggins that he had murdered Ms.

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                                  No. 13-70025
      Coleman by luring her away from the hospital, driving her to
      Downsville, and then shooting her twice in the head.
Fields then conducted his cross-examination of Scroggins.         Fields’s cross-
examination resulted in numerous objections that the court sustained based
on form, relevancy, and content.      Fields argued with the witness, asked
questions that were repetitive, and sought to elicit hearsay testimony. Fields
tried to read from documents not in evidence.           Fields offered his own
commentary on matters and made arguments under the guise of asking
questions.
      The district court dismissed the jury, and determined that it would
proceed by having Fields read questions to the witness from his prepared list
of questions, after which the government would object if it had any objections.
If the court sustained the objection, Fields would remove the question from his
list of questions to ask the witness before the jury the next day. The district
court explained, “There’s no point in having the jury sit here for an
interminable length of time listening to questions that are objected to and the
objection is sustained when they’re merely an attempt by you to get things into
the record improperly, Mr. Fields.” The district court concluded the dry run
once it determined that Fields had asked all his prepared questions, and the
dry run had reached a point where “Fields is not only discussing with Mr.
Swanton every single question, he’s asking half a question and then going back
to Mr. Swanton to find out what the other half of the question is supposed to
be,” which is “entirely counterproductive” and “something that we can’t do in
front of the jury tomorrow.”
      Fields completed his cross-examination of the witness without incident
the next day, January 28, 2004.




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                                    No. 13-70025
         2. Applicable Law
      The Sixth Amendment entitles a defendant to “‘an opportunity for
effective cross-examination, not cross-examination that is effective in whatever
way, and to whatever extent, the defense might wish.’” United States v. Hitt,
473 F.3d 146, 156 (5th Cir. 2006) (quoting Delaware v. Van Arsdall, 475 U.S.
673, 679 (1986)). “‘The Confrontation Clause . . . is satisfied where defense
counsel has been permitted to expose to the jury the facts from which jurors,
as the sole triers of fact and credibility, could appropriately draw inferences
relating to the reliability of the witness.’” Id. (quoting United States v. Restivo,
8 F.3d 274, 278 (5th Cir. 1993)).
       “Trial courts retain wide discretion ‘to limit reasonably a criminal
defendant’s right to cross-examine a witness based on concerns about, among
other things, harassment, prejudice, confusion of the issues, the witness’
safety, or interrogation that is repetitive or only marginally relevant.’” Id.
(quoting Michigan v. Lucas, 500 U.S. 145, 149 (1991)) (internal quotation
marks omitted); see also United States v. Mizell, 88 F.3d 288, 292 (5th Cir.
1996) (“A district court has broad discretion to reasonably restrict cross-
examination; however, this discretion is limited by the Sixth Amendment.”).
      Federal Rule of Evidence 611 provides: “The court should exercise
reasonable control over the mode and order of examining witnesses and
presenting evidence so as to: (1) make those procedures effective for
determining the truth; (2) avoid wasting time; and (3) protect witnesses from
harassment or undue embarrassment.” Fed. R. Evid. 611(a). The rule “permits
courts to preclude questions that obscure truth because they are ambiguous,
confusing, misleading, argumentative, compound, or assume facts not in
evidence.” 28 Charles Alan Wright, et al., Federal Practice & Procedure § 6164
(2d ed. 2014) (footnotes omitted). “Subdivision (a) also provides a basis for


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                                  No. 13-70025
controlling questions that waste time because they are collateral, cumulative
or repetitive, have been asked and answered, or call for speculation.” Id.
         3. Analysis
      The district court denied relief on Fields’s claim, holding that the dry run
did not violate Fields’s constitutional rights because it was necessary “to filter
out” his “improper and repetitious questions to avoid the needless consumption
of time.” Reasonable jurists would not debate the district court’s determination
that its decision to perform the dry run was proper under the circumstances
and did not violate Fields’s rights. The district court’s decision to conduct the
dry run fell within its discretion “to limit reasonably a criminal defendant’s
right to cross-examine a witness based on concerns about . . . harassment,
prejudice, confusion of the issues . . . or interrogation that is repetitive or only
marginally relevant,” Hitt, 473 F.3d at 156 (internal quotation marks omitted),
and to “exercise reasonable control over the mode and order of examining
witnesses and presenting evidence,” Fed. R. Evid. 611(a). The district court
conducted the dry run because of Fields’s repeatedly unsuccessful efforts to
cross-examine Scroggins without offering his own arguments, seeking to
introduce hearsay, or reading from exhibits that had not been introduced and
were of questionable relevancy, among other issues.            The district court
explained that there would be “no point in having the jury sit here for an
interminable length of time” while Fields attempted “to get things into the
record improperly.”    The district court noted that Fields was “taking the
opportunity to make speeches and to make statements that [he] otherwise
wouldn’t be able to make and that’s not appropriate.”           These statements
indicate that the district court determined it was necessary to perform a dry
run to avoid wasting time and permitting Fields to continue to “testify” through
his cross-examination. Accordingly, reasonable jurists would not debate the
district court’s holding.
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                                       No. 13-70025
       Fields was still accorded the opportunity to perform his cross-
examination of Scroggins.           See Hitt, 473 F.3d at 156.             The jury heard
Scroggins’s answers to Fields’s questions, and was able to evaluate Scroggins’s
demeanor and credibility over the course of two days of direct and cross-
examination testimony. Thus, Fields was able to “expose to the jury the facts
from which jurors, as the sole triers of fact and credibility, could appropriately
draw inferences relating to the reliability of the witness.” Id.
       Fields claims that the jury was denied the opportunity to judge
Scroggins’s credibility based on “fresh and candid reactions.” However, Fields
had the opportunity to develop additional questions with his standby counsel
after the dry run, and apparently took that opportunity. See January 27, 2004
Trial Transcript (District court: “Y’all can stay up all night, if you can convince
[your standby counsel] to do that, trying to construct the questions that you
want to ask.”). Thus, many of the questions that Fields asked Scroggins in
front of the jury on January 28, 2004, were not asked during the January 27
dry run. 16 For these new questions and impeachment evidence, the jury had
an opportunity to evaluate Scroggins’s candid reaction, since she had not been
asked these questions before.
       As to the questions that Fields asked during the dry run and then again
in front of the jury, Scroggins’s reactions on January 28 admittedly were not
as “fresh and candid” as they might have been.                       However, given the
circumstances, including Fields’s numerous attempts to testify and argue with
Scroggins under the guise of conducting a cross-examination, reasonable
jurists would not debate the district court’s holding that its decision to conduct


       16  Compare January 28, 2004 Trial Transcript with January 27, 2004 Trial Transcript
(asking questions not asked the prior day about the witness’s relationship with Edward
Outley; the evening of November 6, 2001, when the witness saw Fields “scraping something
off of [his] clothes”; the date the witness was arrested; and Fields’s phone call to the witness
after the murder; Fields also offered a letter into evidence to impeach the witness).
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                                     No. 13-70025
the dry run in Scroggins’s presence was not unreasonable. See Hitt, 473 F.3d
at 156. Additionally, we note that the dry run only became necessary because
of Fields’s decision to represent himself, and “[t]he right of self-representation
is not a license to abuse the dignity of the courtroom,” nor “is it a license not to
comply with relevant rules of procedural and substantive law.” Faretta, 422
U.S. at 834 n.46.
      Fields’s reliance on Wardius v. Oregon, 412 U.S. 470, 479 (1973), is
misplaced. As Fields notes, the Court in Wardius stated that “discovery must
be a two-way street,” id. at 475, and that “[i]t is fundamentally unfair to
require a defendant to divulge the details of his own case while at the same
time subjecting him to the hazard of surprise concerning refutation of the very
pieces of evidence which he disclosed to the State,” id. at 476. However, the
Court in Wardius addressed a state statute that required defendants to reveal
details of any alibi defense in advance of trial, while granting “no discovery
rights to criminal defendants.” Id. at 475. The issue here does not concern
pre-trial discovery. Moreover, because the government had already performed
its direct examination when Fields conducted his cross-examination and dry
run, he was not required to “divulge the details of his own case” while facing
any risk of surprise concerning the government’s refutation of the evidence on
which he planned to rely. Id.
      Although Fields argues that the government’s objections “created a
severe risk of witness coaching,” he does not contend that witness coaching
took place. Furthermore, there is no indication of coaching, such as through
baseless objections or the use of non-verbal cues. 17 In fact, the prosecution’s
objections were not baseless, and nearly all were sustained.


      17  See, e.g., United States v. Jones, 180 F.3d 261, 1999 WL 274441, at *3 & n.4 (5th
Cir. Apr. 15, 1999) (unpublished table decision) (finding no prosecutorial misconduct where
defendant accused the government of coaching the witness by using “nods of the head”);
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                                    No. 13-70025
      Fields also claims that his appellate counsel’s failure to raise the issue
on direct appeal constitutes ineffective assistance. The district court denied
relief on this claim because it concluded that Fields could not show that his
counsels’ conduct was deficient or prejudicial in light of the district court’s
rejection of his claim on the merits.       Given our analysis, supra, reasonable
jurists would not debate the district court’s holding. See Strickland, 466 U.S.
at 700.
      We conclude that reasonable jurists would not debate the district court’s
determination that Fields failed to establish that the dry run violated his
constitutional rights, and deny a COA on this basis.
      D. Brady Violations
      Fields    argues    that   the   government       failed   to   disclose   critical
impeachment evidence.        Specifically, he contends that (1) the government
committed Brady violations by failing to disclose the scope of Edward Outley’s
immunity deal or to disclose Homero DeLeon’s handwritten notes; (2) the
government failed to correct a false statement Outley made at trial; and (3)
DeLeon acted under government direction in violation of Fields’s Sixth
Amendment rights.         We conclude that a COA should not issue because
reasonable jurists could not disagree with the district court’s conclusion that
the government did not commit any Brady violations.
          1. Factual Background
      Before Fields’s trial, the government sent a letter to Edward Outley’s
attorneys, dated January 2, 2004 (“2004 Letter”), explaining the agreement
between the government and Outley.              The 2004 Letter concerns Outley’s




McClaran v. Plastic Indus., Inc., 97 F.3d 347, 360 (9th Cir. 1996) (finding no misconduct
where party asserted that attorney “attempt[ed] to coach witnesses with baseless
objections”).
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                                  No. 13-70025
cooperation in the investigation into Coleman’s murder, and states that it
“certif[ies] that your client is considered a witness in the case and not a target
or subject of the investigation.” The 2004 Letter continues:
            Correspondingly, any statement or testimony, or evidence
      derived directly or indirectly from the statements or testimony
      which your client provides regarding this matter or any other
      matter into which he may be inquired by any agent or attorney
      associated with this case or any testimony furnished to a grand or
      petit jury will not be used against him in this or any further
      criminal proceeding, either federal or state, except a prosecution
      for perjury or otherwise making a false statement.
            This grant of immunity is completely conditional upon Mr.
      Outley’s truthful, candid cooperation and is voidable by the United
      States in the event it can demonstrate to a court that Mr. Outley
      has made a material misstatement of fact to the Court or ceases to
      cooperate in this case.
Fields received the 2004 Letter as part of the discovery process. In Fields’s
§ 2255 motion, he includes an affidavit from Outley stating that Outley “did
not want to testify against Mr. Fields.” In particular, the affidavit stated:
      The only reason I testified is because the Government gave me
      complete immunity for any charges. Thus, because I could not be
      prosecuted for any crimes, I had to testify—my attorneys told me
      I could not take the Fifth on anything.
      At trial, Outley testified that he provided Fields with a gun, but did not
shoot Coleman and was not present when she was shot. On cross-examination,
Fields asked Outley the following question: “And, Mr. Outley, at one point --
Mr. Outley, have [sic] the government made you any promises, or --.” Outley
responded, “No. The government hasn’t made me any promises.”
      Turning to Homero DeLeon, in November 2003, Assistant United States
Attorney Gregory Gloff and Special Agent Douglas J. Kunze, with the Bureau
of Alcohol, Tobacco, Firearms and Explosives, interviewed DeLeon. DeLeon
stated that he had been Fields’s cellmate in November 2001, prior to Fields’s
escape, and then again in November 2002. DeLeon stated that Fields told him
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                                    No. 13-70025
how he escaped from prison by digging “through a vent in the ceiling with a
light switch plate and metal part from a shower.” DeLeon stated that Fields
told him that he had killed his girlfriend, and told him “about a tree where he
killed his girlfriend.”
      At trial, DeLeon testified along similar lines. He stated that he had
previously provided testimony for the government in a different case in order
to receive a reduced sentence. He replied affirmatively when asked if the
government had filed a motion to reduce his existing sentence for cooperating
in Fields.
      In Fields’s § 2255 motion, he included the affidavit of Rick Ojeda, a
former FBI agent and police officer, who interviewed DeLeon in December
2008. Ojeda stated that during the interview, DeLeon reported that Fields
informed him that “Fields escaped from the jail by crawling through a vent,
carjacked an old lady and drove to the hospital, picked up his girlfriend, and
then drove her to a deserted location where he shot her.” Ojeda stated that
DeLeon informed him that he had prepared ten or eleven pages of handwritten
notes based on his conversations with Fields, which he sent to Assistant United
States Attorney Gloff without retaining a copy.
      2. Analysis
      The district court held that Fields failed to establish that the government
violated his rights. We conclude that reasonable jurists would not debate the
district court’s holding. Our analysis will proceed in three parts: (1) the Brady
violations, including the government’s alleged failure to disclose the scope of
Outley’s immunity deal and to disclose DeLeon’s notes; (2) the government’s
failure to correct Outley’s statement at trial; and (3) the claim that DeLeon
acted under government direction.




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         a. Brady violations
           i.   Government’s alleged failure to disclose Outley’s immunity
                agreement
      The district court denied relief on Fields’s claim, explaining that Fields
did not provide “any evidence of such a broad and undisclosed immunity
agreement,” and holding that the government fulfilled its obligations by
disclosing the 2004 Letter to Fields. The district court concluded that even if
a broader immunity agreement existed, Fields could not establish a reasonable
probability that the evidence would have changed the result of the proceeding.
We deny a COA on Fields’s claim because jurists of reason would not disagree
with the district court’s holding.
      “There are three components to a Brady violation. First, the evidence
must be favorable to the accused, a standard that includes impeachment
evidence. Second, the State must have suppressed the evidence. Third, the
defendant must have been prejudiced.” United States v. Hughes, 230 F.3d 815,
819 (5th Cir. 2000). To establish the third element, a defendant must show
that the 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 omitted).      “The defendant has the burden to establish a
reasonable probability that the evidence would have changed the result.” Id.
      Fields cannot show that the government suppressed any evidence. He
does not establish that Outley received a broader immunity agreement than
that outlined in the 2004 Letter, which the government provided to Fields
before trial. Taken alone, Outley’s statement in his affidavit that he only
testified “because the Government gave me complete immunity for any
charges” would not cause reasonable jurists to debate the district court’s
holding. As the government suggests, it is likely the case that “[t]o the extent



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                                  No. 13-70025
Outley’s description of immunity differed from the immunity described in the
January 2, 2004 letter, those differences are . . . the result of confusion.”
      Even if the government failed to disclose a broader immunity grant, it is
not debatable that Fields cannot show prejudice. The jury already knew that
Outley was testifying in part because he was concerned that he might face
additional criminal charges.     Knowing the extent of the scope of Outley’s
immunity would not have affected the jury’s perception of Outley or his
testimony. Moreover, the jury heard substantial evidence from other witnesses
supporting Fields’s convictions, which Fields has not rebutted or shown to be
unreliable. Accordingly, Fields has not established that jurists of reason would
debate the district court’s holding that there is no reasonable probability that
the allegedly suppressed evidence would have changed the result of the
proceeding.
          ii.   Government’s alleged failure to disclose DeLeon’s notes
      The district court denied relief on Fields’s claim, concluding that the
missing notes did not constitute favorable evidence because they would largely
corroborate “DeLeon’s compelling testimony at trial as to [Fields’s] confession
to murdering Ms. Coleman.” We deny a COA on Fields’s claim because jurists
of reason would not disagree with the district court’s holding. Again, Fields
cannot show that the government suppressed any evidence. DeLeon wrote a
letter to the prosecutor in February 2003, describing his potential testimony,
in which he did not reference the existence of any notes. Similarly, Assistant
United States Attorney Gloff and Special Agent Kunze interviewed DeLeon in
November 2003, and their report did not mention the existence of any notes.
Coupled with the government’s use of open-file discovery, these facts strongly
indicate that there were no notes.
      The district court held that even if the notes could have shown
inconsistencies in DeLeon’s testimony, no prejudice resulted because other
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                                 No. 13-70025
witnesses provided compelling testimony to support Fields’s convictions, and
Fields thus failed to show there was a reasonable probability that the
proceeding would have been different. Reasonable jurists would not debate the
district court’s holding. Fields places much import on discrepancies between
the facts in DeLeon’s report to Ojeda and DeLeon’s testimony. However, these
inconsistencies concern the timeline of events, and not the occurrence of the
events. The testimony at trial established that Fields did, in fact, escape from
jail, carjack a woman, pick up Scroggins from a hospital, and kill her in a
deserted location, as DeLeon reported to Ojeda. The carjacking took place
later, as did Fields’s attempted escape through a vent, but DeLeon’s statement
that each of these events occurred is correct. Therefore, Fields has not shown
that the district court’s conclusion, that there is no reasonable probability
DeLeon’s missing notes would have changed the trial’s outcome, is debatable.
      For these reasons, we deny a COA as to Fields’s Brady claims.
         b. Government’s failure to correct Outley’s statement at trial
      The district court rejected Fields’s argument, holding that Fields could
not establish that Outley’s testimony was false and that the government knew
it was false, given that Fields never asked the specific question whether Outley
“had received any promises in exchange for his testimony against” Fields. The
district court also concluded that Outley’s testimony was not material. We
deny a COA because Fields has not shown that reasonable jurists would debate
the district court’s holding.
      “‘[A] conviction obtained through use of false evidence, known to be such
by representatives of the State, must fall under the Fourteenth Amendment
. . . . The same result obtains when the State, although not soliciting false
evidence, allows it to go uncorrected when it appears.’”       United States v.
O’Keefe, 128 F.3d 885, 893 (5th Cir. 1997) (quoting Napue v. Illinois, 360 U.S.
264, 269 (1959)). “A Napue violation may occur not only when the prosecuting
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                                 No. 13-70025
attorney knows that a witness’s testimony is false, but also when another
government attorney knows of the false testimony and does nothing to correct
it.” Id. “To establish a due process violation based on the government’s use of
false or misleading testimony, [a defendant] must show that (1) the testimony
in question was actually false; (2) the testimony was material; and (3) the
prosecution had knowledge that the testimony was false.” United States v.
Webster, 392 F.3d 787, 801 (5th Cir. 2004).
      Assuming without deciding that Outley’s statement that “[t]he
government hasn’t made me any promises” is false in light of his immunity
deal, reasonable jurists would not debate the district court’s holding because
Outley’s testimony is not material. As we have explained, “we have limited
material lies to those that occur as a part of the prosecution’s case.” O’Keefe,
128 F.3d at 894. “Thus, when the defense elicits the alleged perjury on cross-
examination, no material falsehood has occurred because the government has
not itself knowingly presented false testimony.” Id. In O’Keefe, the court
concluded that falsehoods were not material because “falsehoods, to the extent
that any were uttered, occurred as a result of the defense’s cross-examination,
not from testimony elicited by the prosecution.” Id. at 896. Here, the falsehood
also occurred during cross-examination. As a result, the testimony is not
material. Id.
      Moreover, the jury knew Outley was serving an eight-year sentence at
the time he testified, and that he was testifying in part because he was
concerned he might face additional criminal charges. Therefore, the jury heard
information sufficient to evaluate Outley’s credibility in light of a potential
immunity deal with the government.         See id. at 894.     Based on these
considerations, Fields has not shown that the district court’s holding was
debatable.


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                                 No. 13-70025
         c. Whether DeLeon acted under government direction
      The district court rejected Fields’s claim that DeLeon acted as a
government agent, in violation of Fields’s Sixth Amendment rights, finding “no
evidence demonstrating that the [g]overnment directed or otherwise
knowingly exploited Mr. DeLeon to act as a [g]overnment agent in eliciting
information from” Fields. We deny a COA on Fields’s claim because jurists of
reason would not disagree with the district court’s holding.
      The Supreme Court has “held a criminal defendant may not have ‘used
against him at his trial evidence of his own incriminating words, which federal
agents had deliberately [and surreptitiously] elicited from him after he had
been indicted and in the absence of his counsel.’” Henderson v. Quarterman,
460 F.3d 654, 664 (5th Cir. 2006) (quoting Massiah v. United States, 377 U.S.
201, 206 (1964)) (alteration in original).    A Massiah violation has three
elements: “(1) the Sixth Amendment right to counsel has attached; (2) the
individual seeking information from the defendant is a government agent
acting without the defendant’s counsel’s being present; and (3) that agent
‘deliberately elicit[s]’ incriminating statements from the defendant.” Id.
(alteration in original). “[T]he Sixth Amendment is not violated whenever—by
luck or happenstance—the State obtains incriminating statements from the
accused after the right to counsel has attached.” Maine v. Moulton, 474 U.S.
159, 176 (1985).
      Fields has not shown that the district court’s holding is debatable.
DeLeon testified that he elicited as much information as he could from Fields
so that he could then pass that information to the government.             He had
previously cooperated with the government and saw an opportunity to do so
again. Similarly, his letter to the government outlines steps that he took prior
to communicating with prosecutors. The record thus shows that DeLeon was
not acting at the direction of the government.             There is no evidence
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                                       No. 13-70025
demonstrating that the government “directed or otherwise knowingly
exploited” DeLeon to act as a government agent. Accordingly, jurists of reason
would not debate the district court’s rejection of Fields’s Massiah claim. See
United States v. Cutno, 431 F. App’x 275, 280 (5th Cir. 2011) (rejecting Massiah
claim where the “district court found no evidence to demonstrate that [witness]
was acting at the Government’s behest at the time that [defendant] made his
confession to [witness]”).
       E. Actual Innocence
       Fields argues that he has “set forth specific factual allegations
supporting his actual innocence of the murder of Suncerey Coleman.” He
contends that: forensic evidence could establish his innocence, and seeks
additional DNA testing; Scroggins and Outley “offered patently false testimony
at trial”; and the testimony of jailhouse informants was false and unreliable.
The district court rejected each of Fields’s contentions. Because we conclude
that reasonable jurists would not debate the district court’s holding, we deny
a COA.
            1. Applicable Law
       “A habeas petitioner, unlike the usual civil litigant in federal court, is
not entitled to discovery as a matter of ordinary course.” Bracy v. Gramley,
520 U.S. 899, 904 (1997). Rather, Rule 6(a) of the Rules Governing § 2255
Cases permits discovery “for good cause.” Rule 6 of the Rules Governing 28
U.S.C. § 2255; see also Bracy, 520 U.S. at 904 (discussing Rule 6 of the Rules
Governing 28 U.S.C. § 2254). 18 A petitioner demonstrates “good cause” under
Rule 6(a) “where specific allegations before the court show reason to believe


       18 Because Rule 6 of the Rules Governing § 2254 Cases is nearly identical to Rule 6 of
the Rules Governing § 2255 Cases, and both use the same “good cause” standard, courts have
looked to cases interpreting the former when applying the latter. See, e.g., Lafuente v. United
States, 617 F.3d 944, 947 (7th Cir. 2010); Pizzuti v. United States, 809 F. Supp. 2d 164, 175–
76 (S.D.N.Y. 2011).
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                                  No. 13-70025
that the petitioner may, if the facts are fully developed, be able to demonstrate
that he is . . . entitled to relief.” Bracy, 520 U.S. at 908–09 (internal quotation
marks omitted). We have noted that Rule 6 of the Rules Governing § 2254
petitions “does not authorize fishing expeditions.” Ward v. Whitley, 21 F.3d
1355, 1367 (5th Cir. 1994).      “[T]he district court’s decision regarding the
availability of discovery is . . . committed to the sound discretion of the district
court, and is reviewed under the abuse of discretion standard.”           Clark v.
Johnson, 202 F.3d 760, 765–66 (5th Cir. 2000).
      “‘Claims of actual innocence based on newly discovered evidence have
never been held to state a ground for federal habeas relief absent an
independent constitutional violation occurring in the underlying state criminal
proceeding.’” Dowthitt v. Johnson, 230 F.3d 733, 741 (5th Cir. 2000) (quoting
Herrera v. Collins, 506 U.S. 390, 400 (1993)); see also Moore, 534 F.3d at 465
n.19. “Rather, a claim of actual innocence is a gateway through which a habeas
petitioner must pass to have his otherwise barred constitutional claim
considered on the merits.” Dowthitt, 230 F.3d at 741 (internal quotation marks
omitted).   For a petitioner to obtain relief, “the evidence must establish
substantial doubt about his guilt to justify the conclusion that his execution
would be a miscarriage of justice unless his conviction was the product of a fair
trial.” Id. (internal quotation marks omitted).
         2. Analysis
      We conclude that reasonable jurists would not debate the district court’s
rejection of Fields’s actual innocence claim, and deny a COA. Initially, we note
that our caselaw does not recognize freestanding actual innocence claims.
Dowthitt, 230 F.3d at 741; Moore, 534 F.3d at 465. The district court rejected
Fields’s claim, finding it not cognizable.       To the extent Fields makes a




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                                         No. 13-70025
freestanding claim that he is entitled to habeas relief because he is actually
innocent, reasonable jurists would not debate the district court’s holding. 19
                 a. Forensic evidence
       Fields contends that his § 2255 petition “established that no physical
evidence was presented at trial that connected him to the murder of Suncery
Coleman.”         He offers several “examples of situations where the forensic
evidence he specifically requested in his DNA Motion could establish his
innocence by contradicting the unreliable testimony upon which he was
convicted.” 20 The district court rejected Fields’s argument, noting “there is no
requirement that [Fields] be linked to the murder through a positive DNA



       19  We also note that in Fields’s brief, he only provides record cites to his habeas
petitions in the district court (which, in turn, rely on earlier petitions), and at no point directs
the court to evidence in the record or trial transcript that supports his claims. As a result,
he may have waived his arguments by failing to adequately brief them. See Fed. R. App. P.
28(a)(8)(A); United States v. Lopez, 426 F. App’x 260, 263 (5th Cir. 2011) (unpublished); see
also United States v. Scroggins, 599 F.3d 433, 446–47 (5th Cir. 2010).
       20   Fields offers the following examples:
             •   Scroggins “testified that Fields had blood on his clothes and shoes the night of
                 Coleman’s death,” but the red Pontiac Grand Am that Fields drove that
                 evening “was forensically examined and tested, [and] produced no inculpatory
                 evidence linking Fields to the crime.”
             •   “The area where Coleman’s body was located was covered in huge thorns that
                 would have left cuts on anyone in that area, yet Fields, who was wearing shorts
                 that night, was uninjured.”
             •   “The blue Jaguar that the Government told the jury Edward Outley III and
                 Scroggins were driving the evening of the murder actually had been wrecked
                 and totaled in 1998.”
             •   “The gold Jaguar that Outley and Scroggins were actually driving the evening
                 of the murder was never forensically tested because Outley and Scroggins
                 conspired to hide the car by falsely telling investigators that they were in a
                 blue, rather than a gold vehicle.”
             •   “The detective who took buccal swabs and a blood sample from Fields the night
                 he was arrested falsely claimed to have found Fields’[s] blood on a .22 caliber
                 gun (which was not alleged to be the murder weapon), but Fields had no
                 injuries that would have left his blood on that weapon that night.”



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                                  No. 13-70025
test,” and concluding that, “even assuming that the outcome of any DNA test
would be favorable to [Fields], he has not established that such outcome would
raise a reasonable probability of his actual innocence.”
      Fields argues that the district court ignored his factual allegations and
erred in denying him relief. We conclude that reasonable jurists would not
debate the district court’s holding, because Fields’s allegations are speculative
and conclusory, they do not give “reason to believe that the petitioner may, if
the facts are fully developed, be able to demonstrate that he is . . . entitled to
relief,” Bracy, 520 U.S. at 908–09, and they therefore do not show “good cause”
as required under Rule 6(a).
      Fields’s first “example,” his observation that the red Pontiac Grand Am
he drove the evening of Coleman’s murder “was forensically examined and
tested, [and] produced no inculpatory evidence linking Fields to the crime,”
does not support his argument that he is entitled to discovery. Fields cannot
show that his claim is debatable simply by pointing to a lack of physical
evidence on one issue; this is not the type of “specific allegation[]” that would
give us “reason to believe that the petitioner may, if the facts are fully
developed, be able to demonstrate that he is . . . entitled to relief.” Bracy, 520
U.S. at 908–09. This is particularly true, we note, when there was compelling
evidence of guilt presented at trial. Moreover, Fields does not acknowledge
that at trial, there was testimony that the Grand Am “looked like it had been
detailed [and] wiped down.” When the investigating team submitted the car
for examination, they did not expect anything to be found, “given how clean the
car” was. See also January 29, 2004 Trial Transcript (testimony of James
Blair) (stating that the car had “suspicious stains that could possibly be blood”).
      Fields’s observation that the “[t]he area where Coleman’s body was
located was covered in huge thorns that would have left cuts on anyone in that
area, yet Fields, who was wearing shorts that night, was uninjured,” is
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                                  No. 13-70025
similarly unhelpful. Again, Fields cannot establish that the district court’s
rejection of his discovery claim is debatable simply by noting the absence of a
particular piece of evidence he asserts should exist—here, cuts on Fields’s
legs—without any “specific allegations.” See Bracy, 520 U.S. at 908–09. Fields
provides no factual or record support for his conclusory statement that he was
uninjured. (Additionally, Fields offers no explanation for the logical response
that he could have cut his legs on thorns during the November 6th murder of
Coleman, and that those cuts could have healed by his November 24th capture,
more than two weeks later.)
      Fields’s remaining examples amount to conclusory assertions, with no
specificity; he does not indicate how these assertions would establish his
entitlement to discovery. He also provides no support for his contention that
“[t]he detective who took buccal swabs” from him “falsely claimed to have found
Fields’[s] blood on a .22 caliber gun.” Accordingly, Fields’s “examples” fail to
cause reasonable jurists to debate the district court’s rejection of Fields’s claim.
            b. DNA testing
      The district court rejected Fields’s argument that he was entitled to DNA
testing, holding that Fields “fails to show how any new DNA or forensic
evidence testing would constitute direct evidence of his innocence.” The court
explained that, “[g]iven the compelling evidence of guilt presented at trial, the
Court does not conclude that any DNA testing would raise a reasonable
probability of [Fields]’s actual innocence.”
      We conclude that reasonable jurists would not debate the district court’s
holding, because we are not persuaded by Fields’s arguments that additional
DNA testing should be performed on hairs found on Coleman’s clothing, a
fingernail clipping from Coleman, and Coleman’s body and clothing. Fields
fails to argue that he satisfies the requirements of 18 U.S.C. § 3600. “To secure
court ordered testing of DNA an applicant must satisfy each of the ten
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                                No. 13-70025
prerequisites enumerated in the statute.” United States v. Fasano, 577 F.3d
572, 575 (5th Cir. 2009). Accordingly, he fails to adequately brief the issue,
Scroggins, 599 F.3d at 446–47, or establish his entitlement to testing under
§ 3600.
      Additionally, Fields does not acknowledge that Coleman’s clothing was
provided to evidence technicians and analyzed. See January 27, 2004 Trial
Transcript (testimony of Jill Urban), id. (testimony of Jacqueline Harris).
Similarly, Coleman’s fingernails from her left hand were collected and
analyzed for DNA. Id. (testimony of Katherine Long); January 28, 2004 Trial
Transcript (testimony of Jill Urban on recall). Moreover, Fields’s arguments
for why additional DNA testing, beyond that already conducted, should be
performed on Coleman’s body and clothing are conclusory and speculative.
Fields’s apparent suggestion that Coleman’s body should be exhumed for
further testing, without more, amounts to a fishing expedition. See Ward, 21
F.3d at 1367.
      Fields suggests that Fasano, 577 F.3d 572, supports his “right to DNA
testing and a hearing” on his claim. In Fasano, the petitioner argued that he
met all ten requirements of 18 U.S.C. § 3600(a), two of which were contested
in the appeal. Id. at 575. The Fasano court concluded that the petitioner met
the two requirements at issue. Id. Here, however, Fields has not argued that




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                                       No. 13-70025
he satisfies the requirements of § 3600(a). 21 Accordingly, Fasano does not help
his claim. 22
       For these reasons, reasonable jurists would not debate the district court’s
holding that Fields is not entitled to additional DNA testing.
                c. Testimony of Scroggins, Outley, and jailhouse informants
       The district court rejected Fields’s argument that Scroggins and Outley
provided false testimony, and that jailhouse informants similarly provided
false and unreliable testimony. The court explained that Fields “provides no
corroborating evidence to support his allegations that various government
witnesses gave false testimony at trial,” and “failed to provide sufficient
specific allegations to demonstrate that any of his discovery requests will yield
evidence to support any of his grounds for relief.” We conclude that reasonable
jurists would not debate the district court’s holding, because Fields identifies
supposed inconsistencies in these witnesses’ testimony, but offers no evidence
suggesting that the witnesses lied or were otherwise unreliable.                           His
conclusory allegations do not give the court “reason to believe that the
petitioner may, if the facts are fully developed, be able to demonstrate that he
is . . . entitled to relief.” Bracy, 520 U.S. at 908–09.




       21Additionally, Fields likely cannot satisfy the third requirement of § 3600(a), which
provides, in relevant part, that the “specific evidence to be tested . . . was not previously
subjected to DNA testing.” 18 U.S.C. § 3600(a)(3). Fields has not argued that his request
falls under one of the exceptions provided for in that subsection, for example, that although
the evidence was tested before, “the applicant is requesting DNA testing using a new method
or technology that is substantially more probative than the prior DNA testing.” Id.
§ 3600(a)(3)(B).
       22 Fields’s two-sentence argument that the “continued refusal to provide Fields with
access to the requested DNA evidence also violates Fields’[s] right under the Eighth
Amendment to be free of cruel and unusual punishment,” is similarly unconvincing. Fields
cites no caselaw in support of his argument, and fails to adequately brief the issue. Scroggins,
599 F.3d at 446–47.
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                                  No. 13-70025
      For these reasons, we conclude that reasonable jurists would not debate
the district court’s holding that Fields failed to establish his actual innocence
or his entitlement to additional DNA testing or discovery on his claim, and we
deny a COA on this basis.
      F. Allen Charge
      The district court held that Fields could not relitigate his Allen charge
claim because we resolved it on direct appeal. We conclude that reasonable
jurists would not debate the district court’s holding, since we rejected Fields’s
claim on direct review, Fields, 483 F.3d at 340, and it is therefore barred from
collateral review, United States v. Rocha, 109 F.3d 225, 230 (5th Cir. 1997);
Kalish, 780 F.2d at 508. Accordingly, we deny a COA.
      G. Security Measures
      Fields argues that his constitutional rights were violated (1) when the
district court required him to wear a stun belt, (2) by his conditions of
confinement during trial, and (3) by the security measures during trial,
including the increased presence of United States Marshals and the Marshals’
role in escorting jurors to their cars during the penalty phase of the trial.
      The district court held that Fields could not relitigate his stun belt claim
because we resolved it on direct appeal. Reasonable jurists would not debate
the district court’s holding, since we rejected Fields’s claim on direct review,
Fields, 483 F.3d at 356–57, and it is therefore barred from collateral review,
Rocha, 109 F.3d at 230, Kalish, 780 F.2d at 508. Fields’s contention that his
actual innocence claim allows him to overcome any procedural bar fails because
he does not establish his actual innocence.
      The district court rejected Fields’s conditions of confinement arguments,
finding that Fields cited no authority to support his claim and “presented no
credible evidence to suggest that the nature of his detention adversely
impacted his ability to represent himself at trial.” Reasonable jurists would
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                                       No. 13-70025
not debate the district court’s holding because Fields does not establish how
his factual allegations about his conditions of confinement during trial
implicate the Fifth or Sixth Amendments.                 He articulates no connection
between the single case he cites, a § 1983 case with language concerning the
Eighth Amendment, and his claim that his confinement violated his right to
self-representation. Fields’s conclusory allegations, without support, do not
establish that his claim is debatable. 23
       Lastly, the district court denied relief of Fields’s claim about the court’s
use of increased security measures, concluding that the balancing of interests
“tipped in favor of additional security measures as it had been established that
[Fields] was an escape risk with a history of violent behavior.” Scrutiny of
security practices “must be balanced against the court’s obligation to protect
the court and its processes, and to attend to the safety and security of those in
the courtroom.” United States v. Nicholson, 846 F.2d 277, 279 (5th Cir. 1988).
This “balancing of competing interests is entrusted to the sound discretion of
the trial court.” Id. Prior to the trial, a United States Marshal reported to the
district court on security concerns. The Marshal noted that Fields had a
“violent criminal history,” a “history of escape and escape attempts since he’s
been back in custody” after the murder, and had shown “aggressive” and
“combative” behavior while in custody. As a result, the Marshal recommended
increased security measures, which the district court employed. Given these
facts, we conclude that reasonable jurists would not debate the district court’s
holding that additional security measures were appropriate. 24


       23Because Fields fails to brief his argument that his conditions of confinement violated
the Eighth Amendment, we do not consider it. See Scroggins, 599 F.3d at 446–47.
       24 Fields provides no support for his assertion that the district court had ex parte

contact “with at least one juror that suggested Fields was dangerous.” Accordingly, we hold
this argument waived. See Lawyers Title Ins. Corp. v. Doubletree Partners, L.P., 739 F.3d
848, 857 (5th Cir. 2014).
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                                  No. 13-70025
      For these reasons, we conclude that reasonable jurists would not debate
the district court’s holding that Fields failed to establish that the security
measures violated his constitutional rights, and deny a COA on this basis.
      H. Cumulative Error
      “Under the cumulative error doctrine, relief may be obtained only when
constitutional errors so fatally infect the trial that they violate the trial’s
fundamental fairness.” United States v. Stephens, 571 F.3d 401, 412 (5th Cir.
2009) (internal quotation marks omitted). Where the district court does not
commit an error, there can be no cumulative error. Id. The district court
rejected Fields’s claim because it determined that “[n]o error was committed
during” either phase of the trial. We conclude that reasonable jurists would
not debate the district court’s holding, because Fields fails to establish that the
district court committed any error; like the petitioner in Stephens, Fields’s
cumulative error argument “essentially summarizes the other issues raised on
appeal.” Id. at 411. Accordingly, we deny a COA.
      I. Discovery and Evidentiary Hearing
      Fields contends that he is entitled to an evidentiary hearing on his
claims. In a § 2255 proceeding, a hearing is required “[u]nless the motion and
the files and records of the case conclusively show that the prisoner is entitled
to no relief.” 28 U.S.C. § 2255(b). We review a district court’s refusal to grant
an evidentiary hearing on a § 2255 motion for abuse of discretion. United
States v. Edwards, 442 F.3d 258, 264 (5th Cir. 2006).
      The district court held that Fields was not entitled to an evidentiary
hearing because the record and written submissions were sufficient to dispose
of each ground for relief. We conclude that reasonable jurists would not debate
the district court’s holding because the record and Fields’s motion are adequate
to dispose of each of Fields’s claims. See United States v. Plewniak, 947 F.2d


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                                   No. 13-70025
1284, 1290 (5th Cir. 1991) (finding no error where district court refused to hold
hearing).
      Fields also contends that he is entitled to discovery on several of his
claims.     As we noted before, “[a] habeas petitioner, unlike the usual civil
litigant in federal court, is not entitled to discovery as a matter of ordinary
course.” Bracy, 520 U.S. at 904. A petitioner demonstrates “good cause” for
discovery under Rule 6(a) “where specific allegations before the court show
reason to believe that the petitioner may, if the facts are fully developed, be
able to demonstrate that he is . . . entitled to relief.” Bracy, 520 U.S. at 908–
09 (internal quotation marks omitted).
      The district court held that Fields was not entitled to discovery because
he “failed to provide sufficient specific allegations to demonstrate that any of
his discovery requests will yield evidence to support any of his grounds for
relief.” Reasonable jurists would not debate the district court’s holding because
Fields has not provided specific allegations that lead us to believe he could
demonstrate his entitlement to relief if the facts are fully developed. Bracy,
520 U.S. at 908–09. Accordingly, we deny a COA on Fields’s claim concerning
his entitlement to discovery and evidentiary hearing.
                             IV.    CONCLUSION
      For the foregoing reasons, we DENY a COA as to all of Fields’s claims.




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