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

                                                FILED
                                                                  June 30, 2009
                               No. 08-30216
                             Summary Calendar               Charles R. Fulbruge III
                                                                    Clerk

RALPH R STOGNER, III

                                           Petitioner-Appellant

v.

BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY

                                           Respondent-Appellee


                 Appeal from the United States District Court
                    for the Eastern District of Louisiana
                           USDC No. 2:05-CV-4317


Before DAVIS, BARKSDALE and PRADO, Circuit Judges.
PER CURIAM:*
      Ralph R. Stogner, III, Louisiana prisoner # 323032, appeals the denial of
his 28 U.S.C. § 2254 petition challenging his first degree murder conviction.
Stogner was undisputedly granted a certificate of appealability (COA) on the
issues whether the State violated Brady v. Maryland, 373 U.S. 83 (1963), by (1)
failing to reveal all known information pertaining to 12 hairs alleged to have
come from the victim and (2) failing to reveal all known information pertaining



      *
      Pursuant to 5 TH C IR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5 TH C IR. R. 47.5.4.
                                  No. 08-30216

to New Orleans Police Officer Joseph Tafaro. The parties disagree, however, on
whether Stogner was also granted a COA on his claim that trial counsel was
ineffective for failing to challenge the authenticity of DNA evidence that Stogner
alleged was tampered with and planted by Officer Tafaro. While the district
court’s COA order is indeed ambiguous in this regard, remand is unnecessary.
Stogner’s ineffective assistance of counsel claim turns on the viability of his
assertion that Officer Tafaro tampered with evidence. As discussed below,
Stogner’s allegation of evidence tampering is purely conclusional and
unsupported by competent evidence. Consequently, his ineffective assistance of
counsel claims necessarily fail because he cannot show the requisite prejudice.1
See Strickland v. Washington, 466 U.S. 668, 687 (1984).
      On appeal from the denial of § 2254 relief, we review the district court’s
findings of fact for clear error and its legal conclusions de novo. Summers v.
Dretke, 431 F.3d 861, 868 (5th Cir. 2005).         Under § 2254(d)’s deferential
standard, federal habeas relief cannot be granted unless the state court’s
adjudication “either (1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established federal law, as determined
by the Supreme Court . . . , or (2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the evidence presented in the
state court proceeding.” Id.
      Stogner argues that the State violated Brady by suppressing evidence that
four of the victim’s twelve hairs found during a search of Stogner’s home and
vehicle had been forcibly removed from the victim’s head. To establish a Brady


      1
         Stogner’s appellate arguments also include claims that counsel was
ineffective for (1) failing to produce unspecified evidence favorable to Stogner
and (2) failing to call Patsy Daniels as a trial witness. Even affording the
district court’s COA grant the most liberal of constructions, it cannot be said that
the district court granted a COA on these issues. Stogner has not sought to
expand the COA grant. Therefore, we lack jurisdiction to consider them. See
United States v. Kimler, 150 F.3d 429, 431 (5th Cir. 1998).

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violation, Stogner must show that the State withheld evidence, that the evidence
was favorable, and that the evidence was material to the defense. See Little v.
Johnson, 162 F.3d 855, 861 (5th Cir. 1998).
      Stogner’s Brady claim is plagued with difficulties insofar as (1) Stogner
has not shown that this evidence was known by the State prior to trial and
(2) the exculpatory nature of the evidence is questionable, at best. Regardless,
evidence that four hairs were forcibly removed from the victim was disclosed at
trial during FBI Agent Fram’s testimony. “Brady claims involve the discovery
after trial of information which had been known to the prosecution but unknown
to the defense.” Lawrence v. Lensing, 42 F.3d 255, 257 (5th Cir. 1994) (internal
quotation marks and citation omitted) (emphasis added). Consequently, where
as here, the existence of evidence is disclosed at trial, the prosecution cannot be
said to have withheld evidence, and, thus, Stogner cannot establish a Brady
violation. See id.
      Stogner additionally argues that the State violated Brady by withholding
evidence that Officer Tafaro had prior convictions for perjury and evidence
tampering in an unrelated criminal investigation. We have thoroughly reviewed
the evidence Stogner has submitted in support of these allegations and agree
with the district court that Stogner’s evidence does not establish that Officer
Tafaro was even charged with, much less convicted of, perjury or evidence
tampering in that unrelated case.       Given the dubious nature of Stogner’s
evidence, his claim that Officer Tafaro, by extension, tampered with and planted
all of the DNA evidence used to secure Stogner’s conviction is purely




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conclusional, and conclusional allegations do not warrant habeas relief.2 See
Nichols v. Scott, 69 F.3d 1255, 1286 (5th Cir. 1995).
      Stogner has not shown that the state court’s adjudication of his
constitutional claims was contrary to clearly established federal law or based on
an unreasonable determination of the facts. See Summers, 431 F.3d at 868. As
such, Stogner’s contention that the district court erred in dismissing his petition
without first affording him the benefit of an evidentiary hearing is rejected. See
United States v. Edwards, 442 F.3d 258, 264 (5th Cir. 2006) (28 U.S.C. § 2255).
      AFFIRMED.




      2
       Stogner also contends that the State had a duty to call Officer Tafaro as
a witness to authenticate the evidence. This last argument, however, was held
by the district court not to be a Brady claim. Insofar as this claim is considered
independent of Stogner’s Brady claims, he was not granted a COA on this issue
and has not moved this court to expand the COA grant to include this issue.
Therefore, we lack jurisdiction to consider it. See Kimler, 150 F.3d at 431.

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