                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                  June 22, 2005
                        _____________________
                                                          Charles R. Fulbruge III
                             No. 04-70018                         Clerk
                        _____________________

                          TONY EGBUNA FORD,

                       Petitioner - Appellant,

                               versus

                           DOUG DRETKE,
         Director, Texas Department of Criminal Justice,
                     Institutional Division,

                      Respondent - Appellee.
_________________________________________________________________

           Appeal from the United States District Court
       for the Western District of Texas, El Paso Division
                District Court Cause No. 01-CA-386
_________________________________________________________________

Before HIGGINBOTHAM, DAVIS and PRADO, Circuit Judges.

PER CURIAM:*

     Tony Egbuna Ford, a Texas inmate, appeals from the district

court’s denial of his application for fedeal habeas relief under

28 U.S.C. § 2254.   A jury convicted Ford of capital murder, and

the state trial judge sentenced Ford to death.    Ford claims that

his conviction was obtained in violation of the federal

constitution.   After considering Ford’s arguments, the court

affirms the district court’s judgment.


     *
      Pursuant to 5TH CIRCUIT RULE 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIRCUIT
RULE 47.5.4.

                                  1
                      Background of the Appeal

       Ford’s conviction arose from a home invasion in which two

young black men forcibly entered a Hispanic woman’s home.      At the

time of the break-in, the mother’s teenage son, Armando, and her

two adult daughters, Myra and Lisa, were at the house.    After

breaking into the house, the two men demanded that the occupants

give them “the money.”    When the family responded that they had

no money, the men demanded jewelry and the family complied.     The

men then demanded the keys to the car parked outside the house.

Lisa threw the keys toward one of the men, who wore a long dark

coat.    After Lisa threw the keys, the man in the long dark coat

fired a gun at each member of the family.    Armando was hit and

died instantly.    Lisa and her mother were also hit, but survived;

the mother, however, was left severely disabled.    When the

shooter fired at Myra, she fell to the floor and pretended to be

hit.

       Shortly after the incident, Myra and Lisa identified Ford as

the shooter using a police photo identification lineup.    A Texas

grand jury then indicted Ford for the capital murder of Armando

and the attempted capital murders of Myra, Lisa, and the mother.

Prior to trial, Ford filed a motion asking the trial judge to

appoint him an expert on eyewitness identification.    Ford argued

that he needed an expert to dispel common notions that eyewitness

accounts of events are infallible and necessarily accurate.     Ford



                                  2
explained that Myra and Lisa were under a great deal of stress

when they observed the shooter and that they did not view the

shooter for an extended period of time.    The trial judge denied

the motion, and Ford proceeded to trial without an expert.

     Myra and Lisa testified at Ford’s trial and identified Ford

as the shooter.    The only other evidence linking Ford to the

crime was a long dark coat Ford was wearing when he was arrested.

Ford testified during his trial and maintained that he never

entered the house.    Ford explained that although he drove to the

house with Van Nash Belton and Van Nash’s younger brother, Victor

Belton, he stayed outside while Van Nash and Victor entered the

house.    Ford, Van Nash, and Victor are all black.   Ford explained

that he gave his coat to Victor to conceal a gun.     Although the

State introduced Ford’s coat as evidence, Ford did not admit the

coat was his.

     A Texas jury convicted Ford of the capital murder of Armando

on July 9, 1993 and assessed a death sentence.    The Texas Court

of Criminal Appeals affirmed the conviction and the sentence.

Later, the Court of Criminal Appeals denied Ford’s state habeas

corpus petition.

     Ford filed for federal habeas relief on July 24, 2002.      The

district court entered a final judgment denying relief and

denying Ford a certificate of appealability (COA) on April 5,

2004.    Ford then filed a notice of appeal, and this court granted

a COA on three issues: (1) whether the trial court erred in

                                  3
denying Ford a court-appointed expert, (2) whether Ford’s trial

attorneys were ineffective for failing to pursue the motion for

an expert on eyewitness identification, and (3) whether Ford’s

appellate attorney was ineffective for failing to challenge the

performance of his trial attorneys on appeal.

              Ford’s Request for an Expert Witness

     Ford maintains that Myra and Lisa were mistaken in their

identifications of him as the shooter and that Victor Belton was

the actual shooter.   In his petition for federal habeas relief,

Ford argued that the state trial judge denied his due process

right to an eyewitness identification expert.   Ford argued that

he was entitled to an expert under the Supreme Court’s opinion in

Ake v. Oklahoma because he demonstrated that the reliability of

the eyewitness testimony would be a significant factor at trial.

To show the importance of an expert to his defense, Ford

presented a report by Dr. Roy S. Malpass, an expert on eyewitness

identification.   In the report, Dr. Malpass reported the results

of a study establishing facial similarities between Ford and

Victor, discussing the risk of erroneous identification in cross-

race identifications, and explaining how the presence of a weapon

and stress decrease the reliability of an eyewitness’s

identification.   After considering Ford’s argument, the district

court determined that Ford had not rebutted the presumptive

correctness of the state trial court’s factual findings——that


                                 4
Ford was not mistakenly identified by the eyewitnesses and there

was no impropriety in the way the police conducted the photo

lineup that led to Ford’s identification.     The district court

observed that no persuasive evidence existed that Myra and Lisa

actually identified the wrong man.

     Because Ford’s claim is before the court on collateral

review, the court must first determine whether the relief Ford

seeks would create a new rule.1    “[A] case announces a new rule

if the result was not dictated by precedent existing at the time

the defendant's conviction became final.”2     If resolving the

claim in Ford’s favor would create a new rule of law, the court

will neither announce nor apply the new rule unless it falls into

one of two narrow exceptions.3     “Under the first exception, a new

rule should be applied retroactively if it places certain kinds

of primary, private individual conduct beyond the power of the

criminal law-making authority to proscribe.”4     “Under the second

exception, a new rule may be applied on collateral review if it

requires the observance of those procedures that . . . are

implicit in the concept of ordered liberty.”5

     1
      Saffle v. Parks, 494 U.S. 484, 487 (1990).
     2
      Teague v. Lane, 489 U.S. 288, 301 (1989).
     3
      Saffle, 494 U.S. at 87-88.
     4
      Butler v. McKellar, 494 U.S. 407, 415 (1990) (internal
quotations and citations omitted).
     5
      Butler, 494 U.S. at 416.

                                   5
     In the instant case, Ford would have the court extend Ake v.

Oklahoma.6    In Ake, the Supreme Court held that, upon request, a

trial court must appoint a psychiatrist for an indigent defendant

if the defendant demonstrates that his sanity will be a

significant factor at trial.7    The Court explained that “when the

State has made the defendant's mental condition relevant to his

criminal culpability and to the punishment he might suffer, the

assistance of a psychiatrist may well be crucial to the

defendant's ability to marshal his defense.”8    Ford contends that

the state trial judge should have granted his request for an

expert because his identification as the shooter was a

significant factor at trial and an expert was crucial to his

defense.     The Ake Court, however, did not consider the right of

an indigent defendant to the appointment of an expert on

eyewitness identification.    Instead, the Court was concerned with

ensuring that an indigent defendant has access to the basic tools

for an adequate defense.9    Cross-examination of an eyewitness is

the most basic tool for an adequate defense where the defendant

maintains the witness is mistaken.     As far as this court has

determined, no authority exists that requires a trial court to


     6
      Ake v. Oklahoma, 470 U.S. 68, 70 (1985).
     7
      Ake, 470 U.S. at 70.
     8
      Id. at 80.
     9
      See id. at 77.

                                   6
appoint an expert in eyewitness identification.10     Thus, Ford

seeks a new rule of law because the appointment of an expert “was

not dictated by precedent existing at the time [his] conviction

became final.”11

     Because Ford seeks a new rule of law, the court must

determine whether the rule falls into one of the two exceptions

to rule against application of a new rule of law on collateral

review.12     The first exception——where the rule places certain

kinds of primary, private individual conduct beyond the power of

the criminal law-making authority to proscribe13——does not apply

because Ford does not contend that Texas may not proscribe

capital murder.14     The second exception——where the rule requires

the observance of procedures that are implicit in the concept of

ordered liberty——is reserved “‘for watershed rules of criminal

procedure’ implicating the fundamental fairness and accuracy of

the criminal proceeding,”15 such as the right to counsel in



     10
          Jackson v. Ylst, 921 F.2d 882, 886 (9th Cir. 1990).
     11
          Teague, 489 U.S. at 301.
     12
          Jackson, 921 F.2d at 886.
     13
          Butler, 494 U.S. at 415.
     14
      See Jackson, 921 F.2d at 886 (making the same
determination in a case where a California inmate challenged the
denial of his request for an eyewitness expert in a federal
habeas petition).
     15
          Saffle, 494 U.S. at 495 (quoting Teague, 489 U.S. at 311).

                                      7
criminal proceedings for serious offenses.16     These watershed

rules are ones     “without which the likelihood of an accurate

conviction is seriously diminished.”17     A rule requiring the

appointment of an expert on eyewitness identification does not

fall within the second exception because an effective cross-

examination will ordinarily expose an erroneous eyewitness

identification.18     The rule proposed by Ford requiring the

appointment of an expert on eyewitness identification fails the

“watershed test” because it does not implicate fundamental

fairness or the accuracy of a criminal proceeding.19

     Because the rule Ford seeks does not fall within one of the

exceptions to the rule against the application of a new rule on

collateral review, the court will not consider Ford’s due process

argument further.

                           Standard of Review

     As for Ford’s remaining claims, the standards established by

the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)

govern Ford’s application for federal habeas relief.     Under the

AEDPA, this court may not grant relief on a claim the state



     16
          Id.
     17
          Teague, 489 U.S. at 313.
     18
          United States v. Christophe, 833 F.2d 1296, 1300 (9th Cir.
1987).
     19
          See Jackson, 921 F.2d at 886.

                                     8
courts have adjudicated on the merits “unless the adjudication of

the claim . . . resulted in a decision that was contrary to, or

involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the United

States.”20     “A state court's decision is deemed ‘contrary to’

clearly established federal law if it relies on legal rules that

directly conflict with prior holdings of the Supreme Court or if

it reaches a different conclusion than the Supreme Court on

materially indistinguishable facts.”21     “A state court's decision

constitutes an unreasonable application of clearly established

federal law if it is objectively unreasonable.”22     This court

presumes the state court findings of fact are correct, and the

petitioner has the burden of rebutting the presumption of

correctness by clear and convincing evidence.23     The court

reviews the district court’s findings of fact for clear error and

its conclusions of law de novo, applying the same standards to

the state court’s decision as did the district court.24

          Ford’s Ineffective Assistance of Trial Counsel Claim



     20
          28 U.S.C. § 2254(d)(1).
     21
      Busby v. Dretke, 359 F.3d 708, 713 (5th Cir. 2004)
(quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000)).
     22
          Pondexter v. Dretke, 346 F.3d 142, 146 (5th Cir. 2003).
     23
          See 28 U.S.C. § 2254(e)(1).
     24
          See Busby, 359 F.3d at 713.

                                    9
     Ford’s attorneys filed the motion for the appointment of an

expert on July 6, 1992.   The state trial judge first considered

the motion during a hearing on August 5, 1992.   During the

hearing, the trial judge expressed his concern that an expert

would invade the province of the jury, but postponed further

consideration of the motion until a second hearing on April 2,

1993.   During that hearing, the prosecutor suggested that a state

court opinion existed that held that eyewitness expert testimony

was not admissible at trial.   The judge directed the prosecutor

to provide him with a copy of the opinion and stated that he

would hold Ford’s motion in abeyance.   The judge then told Ford’s

attorneys, “If it’s not brought to me within the two week period,

then you reurge your motion.   Otherwise, it’s overruled.”    The

record does not reflect   that the prosecutor ever presented the

opinion to the trial judge.    Ford’s attorneys did not reurge the

motion.

     In his petition for federal habeas relief, Ford argued that

his trial attorneys were ineffective because they failed to

pursue his motion for the appointment of an expert after the

trial judge gave them the opportunity to provide authority for

the motion.   The district court considered this claim de novo

because the state habeas court did not make a specific finding

about deficient performance.   The district court concluded that

Ford failed to meet his burden to demonstrate ineffective

assistance because he did not show that, as of the date of his

                                 10
trial, a United States Supreme Court opinion established a right

to a court-appointed eyewitness identification expert and that he

failed to overcome the presumption that his attorneys acted

reasonably.

     To establish ineffective assistance of counsel, a criminal

defendant must show that his attorney’s assistance was deficient

and that the deficiency prejudiced him.25     “To establish

deficient performance, a petitioner must demonstrate that

counsel’s representation ‘fell below an objective standard of

reasonableness.’”26     “In any case presenting an ineffectiveness

claim, the performance inquiry must be whether counsel’s

assistance was reasonable considering all the circumstances.”27

     The circumstances here do not indicate that Ford’s trial

attorneys were ineffective.     Even though they were unsuccessful

in obtaining the appointment of an eyewitness expert and failed

to further urge the motion when given the opportunity, Ford’s

attorneys presented Ford’s defense of mistaken identity by

effectively cross-examining Myra and Lisa and demonstrating the

possibility that the sisters were mistaken in their

identification of Ford as the shooter.


     25
      Hopkins v. Cockrell, 325 F.3d 579, 586 (5th Cir.), cert.
denied, 504 U.S. 968 (2003).
     26
      Wiggins v. Smith, 539 U.S. 510, 521 (2003) (quoting
Strickland v. Washington, 466 U.S. 668, 688 (1984)).
     27
          Strickland v. Washington, 466 U.S. 668, 688 (1984).

                                   11
     During his cross-examination of Myra, Ford’s attorney cast

doubt on Myra’s identification of Ford by showing that Myra

avoided looking at the intruders because she recognized Van Nash

as a familiar face and did not want him to recognize her.      During

cross, Myra admitted that she looked down much of the time the

men were in the house.   The attorney also explored the

discrepancies in Myra’s description of Ford.    Myra testified that

the shooter was between five-four and five-five, wore a knitted

cap that covered his hair and ears, and had a clear face.      Cross-

examination also established that on the night of the shootings,

Myra described the shooter as being small-framed and with a clear

complexion.   These descriptions contrasted sharply with Ford’s

actual height of five-eight and his complexion which was marred

by seven scars.   Myra admitted that she never told the police

that the shooter had any scars on his face.    The attorney also

established that although Myra testified on direct that she saw

Ford shoot her brother and her mother, on the night of the

incident, she did not tell the police that she actually saw the

shooter shoot them.   Instead, Myra told the police that she saw

the back of the shooter and heard gunshots.    Myra’s cross-

examination also showed that Myra viewed the shooter for a very

short period of time; Myra estimated the shooting incident took

between two and five seconds.

     The attorney also cast doubt on Lisa’s identification.

During cross, Ford’s attorney established that Lisa did not see

                                12
the shooter shoot members of the family because she had buried

her face in a pillow; instead, the attorney showed that Lisa

simply heard the gunshots.    The attorney also showed that very

shortly after the incident, Lisa was unable to give the police an

accurate description of the men who entered her mother’s house.

Like Myra, Lisa described the shooter as having a very clear

complexion and never mentioned that the shooter had scars on his

face.   The attorney confirmed with Lisa that the shooting

incident occurred in a very short time period——in just five

seconds, emphasizing the short period of time the sisters viewed

the shooter.

     Notably, the attorneys succeeded in getting a photo of

Victor Belton admitted into evidence.    The photo was taken very

shortly after the murder.    Using the photo, the attorneys

compared the physical characteristics of Ford and Victor Belton

and explained how Ford and Victor Belton were the same height and

were very close in weight and age.    During closing arguments for

the guilt-innocence phase of trial, Ford’s attorney compared the

relative weight, height, skin color, and facial features of Ford

and Victor to show the jury how the sisters could be mistaken in

their identifications of Ford.    In addition, he emphasized how

the physical similarities between Ford and Victor Belton, the

stress of the situation, and the short period of time that the

shooting occurred would have made it difficult for the sisters to

remember precisely what the intruders looked like and could have

                                 13
resulted in a mistaken identity.     Thus, although they did not

reurge the motion, the attorneys presented the substance of what

an eyewitness expert would have contributed.     In the absence of

controlling authority requiring the appointment of an expert on

eyewitness identification, the district court was correct: the

performance of Ford’s attorneys was not objectively unreasonable.

             Whether Appellate Counsel Was Ineffective

     Ford also complained in his federal habeas petition that his

appellate attorney was ineffective for failing to raise a due

process claim based on the failure of Ford’s trial attorneys to

reurge the motion for an expert.     The district court dismissed

this argument after concluding that Ford’s trial attorneys were

not ineffective for failing to pursue his motion and that the

trial judge did not deny Ford due process by denying his request

for an expert.   The district court reasoned that an attorney’s

failure to present a meritless argument cannot give rise to an

ineffective assistance claim because such performance is not

deficient and the result of the proceeding would not have been

different.

     To show ineffective assistance of counsel on appeal, the

petitioner

     must first show that his counsel was objectively
     unreasonable in failing . . . to discover nonfrivolous
     issues and to file a merits brief raising them. If
     [he] succeeds in such a showing, he then has the burden
     of demonstrating prejudice. That is, he must show a
     reasonable probability that, but for his counsel’s


                                14
     unreasonable failure to file a merits brief, he would
     have prevailed on his appeal.28

The court’s discussion of Ford’s argument about the performance

of his trial attorneys shows the argument had no merit.        Ford’s

appellate counsel was not required to raise an argument without

merit.     The district court was correct in holding that Ford’s

appellate counsel was not deficient.

                               Conclusion

      The adjudication of Ford’s claims about ineffective

assistance of counsel did not result in a decision that was

contrary to, or involve an unreasonable application of, clearly

established federal law, as determined by the Supreme Court.29

The state court's resolution of Ford’s arguments does not rely on

legal rules that directly conflict with prior holdings of the

Supreme Court or reach a different conclusion than the Supreme

Court on materially indistinguishable facts.30     Thus, the

district court properly denied Ford’s application for federal

habeas relief.     Consequently, the court AFFIRMS the district

court’s judgment.

AFFIRMED.




     28
          Smith v. Robbins, 528 U.S. 259, 285 (2000).
     29
          28 U.S.C. § 2254(d)(1).
     30
          Busby, 359 F.3d at 713.

                                    15
