IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
_____________________
No. 98-50358 _____________________
JOHN ALBERT BURKS,
Petitioner-Appellant,
versus
GARY L. JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division,
Respondent-Appellee. _________________________________________________________________
Appeal from the United States District Court for the Western District of Texas (97-CV-98) _________________________________________________________________
January 7, 2000
Before JOLLY, WIENER, and STEWART, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:*
This habeas corpus appeal is brought by John Burks, who was
sentenced to death after his conviction in Texas state court for
the murder of Jesse Contreras. The district court denied habeas
corpus relief but granted Burks a certificate of appealability
(“COA”) on two issues: first, on the alleged failure to disclose
exculpatory information about the identity of the killer, and,
second, the admission of evidence at sentencing that was alleged to
lack credibility. On appeal, Burks attempts to raise two more
issues for which he lacks a COA: first, the exclusion of an alleged
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. confession by a third party to the murder of Jesse Contreras, and,
second, the failure to disclose exculpatory information relating to
a second murder to which Burks was alleged to have confessed. We
deny relief.
I
On Friday, January 20, 1989, Jesse Contreras was shot during
a robbery of his store, Jesse’s Tortilla Factory, in Waco, Texas.
After several weeks in the hospital, Contreras died. The police
eventually arrested John Burks for the crime.
Burks began planning the robbery weeks before, and he was not
shy about it. In late December 1988, Burks asked his cousin, Ike
Weeks, to help in a robbery, but Weeks refused. A couple of weeks
later, Burks asked Weeks for some .25- or .32-caliber cartridges.
Again, Weeks refused.
Sometime in early January, Burks also approached Aaron Bilton.
Burks, complaining of a need for money, asked Bilton to help in the
scheme to "knock off Jesse [Contreras]." Unlike Weeks, Bilton
agreed.
At about the same time, Burks went to his half-brother, Louis
McConnell, to see whether Louis owned a gun or knew someone who
did. Louis did not. One week later, Louis came home to find
Burks, Louis’s brother, Bishop McConnell III, Carlton Johnson, and
Victor Monroe sitting in the den. There was a small caliber pistol
and a dark navy or black stocking cap on the table. Louis later
2 testified that he saw Burks pick up the gun and stocking cap
before leaving.
About one week before the robbery, Burks apparently still had
not found any ammunition for his gun, so he approached Johnny Cruz,
a local grocer, and asked for some .25 caliber cartridges, once
again without success.
On January 19, Weeks happened to see Burks, Mark McConnell,
and Aaron Bilton talking in an alley. Weeks heard Burks tell Mark
to pick Burks up the following day, and that Mark would receive
some money and a bag of marijuana for his help.
By this point, Burks had developed the following plan. The
robbery was set for Friday, because that was the day Contreras
normally cashed checks. Burks wanted to commit the robbery at
noon, but because Bilton had to be at work then, they changed the
time to 11:00 a.m. Bilton was to enter Jesse’s Tortilla Factory
first to see who was there. If there was no one around, he was to
return to the car and tell Burks. Mark was to receive $100 for his
participation and the use of his car.
Vincent Guillem, one of Burks’s neighbors, was in his front
yard on the morning of the offense, January 20. Between 10:00 a.m.
and 10:30 a.m., Mark McConnell drove up in his green, four-door
Chevrolet. Guillem saw four people in the car--Bishop McConnell
III, Mark, Burks, and someone Guillem could not identify. Burks
got out of the car and asked Guillem whether he had any .25-caliber
cartridges. When Guillem said no, Burks walked across the street
3 to his own house and later returned to Mark’s car. Burks and Mark
then left alone, without Bishop or the other passenger.
Shortly afterwards, Burks and Mark picked up Bilton. The
three then proceeded to Bilton's uncle’s house. When they arrived,
Bilton went into his uncle’s house and watched television while
Mark drove Bilton’s aunt downtown. When Mark returned five minutes
later, the three men drove to Jesse's Tortilla Factory.
When they arrived, Bilton entered the store, ostensibly to
purchase corn tortillas, but Contreras had not made any that
morning. Bilton then returned to the car and announced that
Contreras was the only person inside. Burks told Bilton to go back
and purchase flour tortillas instead while making certain that
Contreras was alone. Bilton did so and again returned to the car.
At that point, Burks told Mark to let him out and then to drive to
a side street and park. Wearing a dark stocking cap, Burks got out
of the car and started toward the store’s entrance. Mark and
Bilton did as instructed, and about five minutes later, Burks
arrived at the car holding his stocking cap in his hands. Bilton
thought that the stocking cap had something in it, but Burks said
that he did not get any money. The three then left and took Bilton
to work. Bilton later testified that he did not know that
Contreras had been shot until that evening’s local news report.
At about 11:00 a.m. that same day, Victor Macias drove to
Jesse’s Tortilla Factory to cash a check. He observed a short
black man carrying a dark object in his hand and "trotting" towards
4 a green late sixties model car parked on the side of a road near
Jesse’s Tortilla Factory. The man got into the backseat of the
green car. When Macias arrived at Jesse’s Tortilla Factory, he saw
Jesse Contreras, the store owner, running towards the side of the
building and blood on the pavement trailing from the building’s
front door. No one was in the store, but there was blood on the
floor. Macias went back outside and he saw a green car speeding
away. When Macias went back inside the building, Contreras was
calling his daughter on the telephone. Macias stayed until she
arrived. When Gloria Contreras Diaz got to the store, her mother
was already tending to her father. Contreras told them a black man
with a mask had tried to rob him, and that when Contreras had
thrown a trash can at the robber, the robber had shot him.
Contreras died twenty-seven days later.
A few days after the botched robbery, Burks’s aunt accused him
of having been seen at Jesse’s Tortilla Factory when Contreras was
shot. Burks denied this, saying that no one had been there when he
left. He then threatened his aunt when she said that she would
call the police if she found out that he had shot Contreras.
The investigation began with an analysis of the evidence from
the scene. A firearms’ expert determined that two .25-caliber
bullets removed from Contreras’s body were fired from the same gun,
probably a .25-caliber semi-automatic Raven Arms pistol--a compact
pistol easily carried in a pocket and sometimes referred to as a
"Saturday Night Special.” Four other spent bullets found at the
5 crime scene were also .25-caliber. A .25 caliber semi-automatic
Raven Arms pistol can hold up to six cartridges. In addition, the
police found five spent .25 caliber shell casings at the crime
scene.
While separately talking to Contreras and Macias, Detective
Price of the Waco Police Department obtained a description of the
suspect as being a black male of small build, 5'6" to 5'7" tall.
Price soon ascertained that the car involved was a green four-door
mid- to late-sixties model Chevrolet. Four days after the offense,
Price observed Mark McConnell driving a car matching that
description, and the police arrested him. The police also soon
arrested Bilton.
In February 1989, Detective Price notified the police in
Harlingen that a warrant had been issued for Burks’s arrest in
connection with this offense. During the first week of March 1989,
two Harlingen police officers in a patrol car noticed Burks walking
on a sidewalk in the western part of town and drove up behind him.
When Detective Davilla called to Burks and identified himself as a
police officer, Burks ran. The police eventually captured him and
took him into custody.
Burks was convicted of capital murder and sentenced to death
in 1989. He appealed to the Texas Court of Criminal Appeals, which
affirmed his conviction and sentence in early 1994. The United
States Supreme Court denied certiorari in early 1995. In mid 1995,
Burks sought habeas corpus relief in Texas state court. The trial
6 court held an evidentiary hearing in November 1995 and issued
findings of fact and conclusions of law in January 1996. The court
of criminal appeals then denied relief on October 16, 1996. The
United States Supreme Court again denied certiorari in the spring
of 1997.
On July 21, 1997, Burks filed his federal habeas petition.
The district court granted the state’s summary judgment motion and
denied Burks’s application in the spring of 1998. Motions for a
new trial and a request for additional findings of fact were also
denied. Burks then sought and received from the district court a
certificate of appealability on some, but not all, of the issues he
raises on appeal.
II
A
Before moving to the substance of Burks’s appeal, we must
first determine the appropriate standards of review. We confront
two sets of issues on this appeal, one for which the district court
granted certificates of appealability, and the other for which
Burks has not yet obtained such certificates. We approach each set
differently. We start with the issues for which Burks already has
a COA. The first of these is that the state failed to disclose
exculpatory information about statements overheard by two emergency
room nurses about the killer’s identity, denying Burks his due
process rights under Brady v. State of Maryland, 373 U.S. 83, 83
S.Ct. 1194, 10 L.Ed.2d 215 (1963). The second issue on which a COA
7 was issued is that evidence lacking credibility was admitted during
sentencing, and that the admission violated Burks’s due process
rights under Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92
L.Ed. 1690 (1958).
The district court applied the AEDPA standard to review the
state court’s denial of habeas relief on these claims because Burks
filed his federal appeal after April 24, 1996, the date that the
AEDPA became active. See Lindh v. Murphy, 521 U.S. 320, 324-26,
117 S.Ct. 2059, 138 L.Ed.2d 481 (1997)(establishing the date AEDPA
became active). Because the district court made a summary judgment
determination, we review de novo, and we use the same standard as
the district court.
Burks contends, however, that the AEDPA standard is being
retroactively applied to him contrary to established principles of
law. In Landgraf v. USI Film Products, 511 U.S. 244, 281, 114
S.Ct. 1483, 128 L.Ed.2d 229, the Supreme Court held that without a
clear statement of retroactivity in the statute itself, courts
should not apply a statute retroactively. Application of the AEDPA
standard is retroactive and impermissible when it “attach[es] new
legal consequences to events completed before its enactment.” Id.
at 270.
We agree that there is no statement of retroactivity in the
AEDPA. We therefore agree that the AEDPA’s application cannot be
allowed to have a retroactive effect in this case. As for its
retroactive effect in this case, Burks concedes that he filed his
8 appeal in federal court after the April 24 effective date. He
points out, however, that his state court habeas proceedings were
already underway before the effective date of the AEDPA. He then
asserts that, had he known that the AEDPA would apply later to
those federal proceedings, “perhaps he could have acted
differently” in conducting his state court proceedings. Thus, he
concludes, application of the AEDPA standard attached new legal
consequences to his actions during the state court proceedings that
were underway before the statute became active.1
We cannot accept this argument. As explained in Drinkard v.
Johnson, 97 F.3d 751, 766 (5th Cir. 1996), for application of the
new law to have a retroactive effect, a defendant must have relied
on the status of the law before its change. Burks cannot point to
such a reliance. He fails to explain how his conduct would have
been any different in state court had he known that the AEDPA’s
standard would apply. Thus, application of the AEDPA to this
federal appeal does not have a retroactive effect on Burks or his
conduct of the state court proceedings.
Consequently, the standard of review that we shall apply to
the two issues on which the district court granted a COA are found
1 Burks also contends that the state habeas court was less careful because it expected federal review under the less deferential standard, and so the district court’s application of that standard denied him adequate habeas review. This perception of the state courts is not only untrue, but is condescending. It is not, therefore, a grounds for relief.
9 in the AEDPA. Under that statute, federal courts cannot grant
writs of habeas corpus unless:
(1) the state proceedings resulted in a decision contrary to, or involving an unreasonable application of, clearly- established federal law as determined by the Supreme Court.
(2) the state proceedings were based on an unreasonable determination of the facts.
28 U.S.C. § 2254. The issues presented in the COA turn on a
determination of facts by the state court. Thus, under (2) above,
state court factual findings are presumed correct unless rebutted
by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Trevino
v. Johnson, 168 F.3d 173, 181 (5th Cir. 1999), cert. denied, ___
U.S. ____, 120 S.Ct. 22, ____ L.Ed.2d ____, 68 U.S.L.W. 3136
(1999).
B
We now turn to the two issues for which Burks did obtain a COA
from the district court.
(1)
Burks’s first claim is that he was denied constitutional due
process of law when at trial the state failed to disclose
exculpatory evidence. Prosecutors violate a defendant’s right to
due process when they fail to disclose material evidence favorable
to the defense. Brady, 373 U.S. at 87. Thus, there must be both
(1) a failure to disclose, and (2) the evidence that was not
disclosed must have been material and favorable to the defense.
10 The evidence that supposedly was not disclosed to Burks is
alleged statements overheard by two nurses at the hospital on the
day of the shooting. Connie Mejia testified at the state
evidentiary hearing that someone in the emergency room had said
either that the killer spoke Spanish or that the killer spoke with
a Spanish accent. Rebecca Adams thought she remembered someone
saying that the killer spoke Spanish. Burks contends that this was
exculpatory evidence because he does not speak Spanish, nor does he
speak with a Spanish accent. He argues that because the
prosecutors failed to provide his counsel with information about
what the nurses overheard, a Brady violation occurred.
When Burks first raised this Brady claim in his state habeas
proceeding, the court found against Burks on both Brady prongs.
The court held, first, that prosecutors had, in fact, disclosed the
evidence, and, second, that the evidence was not material because
it “would not have made a difference between conviction and
acquittal.”
The first, and in this case, dispositive, question to answer
is whether the material was disclosed. This is a factual
determination, and we review the state court’s finding of
disclosure under the AEDPA’s “reasonableness” standard of review.
If that determination was reasonable, there is no reason to
consider the materiality of the evidence.
We believe that the state habeas court’s determination that
this information was disclosed was reasonable. 28 U.S.C.
11 § 2254(d). One of the prosecutors testified to telling at least
one of Burks’s lawyers about the nurses’ statements. Burks’s
lawyers, on the other hand, all contend that they never received
this information. Thus, this is a credibility issue, and we cannot
conclude that the state court’s reliance on the prosecutor’s
testimony was unreasonable. Or, stated differently, although
Burks’s attorneys deny receiving this information, their denial
does not constitute clear and convincing rebuttal evidence that can
set aside a credibility determination made by the state court.
Because this credibility determination was reasonable, we must
conclude that the evidence was disclosed. Burks has, therefore,
failed to satisfy the first prong of Brady, and we need not address
whether the evidence was material.
(2)
We now turn to the second issue on which the district court
granted a COA. This issue related to the sentencing phase of
Burks’s trial. Burks challenges the admission of testimony during
sentencing about his involvement in a murder unrelated to the
Contreras killing, arguing that because this evidence was
unreliable, its admission violated his due process rights. The
unrelated murder had occurred in 1982. Burks had allegedly
confessed to that crime to another prison inmate, his cousin, Gary
Bridgewater. At the time, the state had decided not to try Burks
for the crime because of credibility concerns about Bridgewater.
During sentencing for the Contreras murder, however, prosecutors
12 introduced testimony implicating Burks in that murder as evidence
of his “deathworthiness” under Article 37.071 § (b)(1) of Texas’
Annotated Code of Criminal Procedure: “whether there is a
probability that the defendant would commit criminal acts of
violence that would constitute a continuing threat to society.”
The only basis upon which Burks attacks this evidence in this
federal habeas corpus appeal is as follows: as part of his
testimony that Burks had confessed to the earlier murder,
Bridgewater explained that Burks’s confession came when the two
were discussing a newspaper article about the murder. Burks
contends that Bridgewater’s testimony was untrue, because there was
no such newspaper article when the two men were together in prison
and because Burks could not read. Burks argues, therefore, that
admission of this testimony was a violation of Burks’s due process
rights because he was “sentenced on the basis of assumptions
concerning his criminal record which were materially untrue.”
Townsend v. Burke, 334 U.S. 736, 741, 68 S.Ct. 1252, 92 L.Ed. 1690
(1948).
We will not consider Burks’s arguments with respect to whether
Bridgewater’s testimony about the newspaper article proves that
testimony unreliable because Burks failed to raise it either in
state court or with the district court. Consideration of these
facts is precluded because Burks did not exhaust the claim based on
these facts in state court. Petitioners fail to exhaust their
state remedies when they resort to material evidentiary support in
13 federal court that was not presented in state court. Graham v.
Johnson, 94 F.3d 958, 968 (5th Cir. 1996). Moreover, because he
failed to raise the issue before the district court, this claim is
not properly before us, and should not be considered for the first
time on appeal. Davis v. Scott, 51 F.3d 457, 467 (1995). Because
this is the only argument his brief makes with respect to the
unreliability of evidence at sentencing, he has presented no basis
for relief on this issue.
III
We now move to the remaining two issues for which Burks does
not have a proper COA.
There are also two issues Burks raises for which he does not
have a COA. He first charges that the trial court’s decision to
exclude testimony that someone else had confessed to the Contreras
murder constituted a denial of due process under Green v. Georgia,
442 U.S. 95, 99 S.Ct. 2150, 60 L.Ed.2d 738 (1979). Burks also
contends that the state, under Brady v. Maryland, failed to
disclose exculpatory information that would have been material
during sentencing.
Before we can review either issue, we must first determine
whether a COA is appropriate. We will treat his notice of appeal
as a request for the COA. Fed. R. App. P. 22(b)(2).2 Determining
2 The rule reads: “A request addressed to the court of appeals may be considered by a circuit judge or judges, as the court
14 whether to issue a COA is a two-step inquiry. First, a petitioner
must demonstrate exhaustion of remedies in state court. Sterling
v. Scott, 57 F.3d 451, 453 (5th Cir. 1995). Second, there must be
substantial showing of denial of a federal right. Barefoot v.
Estelle, 463 U.S. 880, 893 n.4, 103 S.Ct. 3383, 77 L.Ed.2d 1090
(1983).3 With respect to the second prong, Burks need not show
that he should prevail on the merits. Rather, he must demonstrate
that the issues are debatable among jurists of reason; that a court
could resolve the issues in a different manner; or that the
questions are adequate to deserve encouragement to proceed further.
Id. If we determine that a COA is warranted, we then conduct a
review under the AEDPA standard already discussed.
We first address the habeas claim concerning evidence excluded
at trial. Burks tried to call Regina Burks4 to testify that, on
the day of the murder, she had heard Bishop McConnell brag that he
himself was the killer. Bishop had been drunk at a bar at the
time. The trial court excluded Regina’s testimony on hearsay
grounds. The Texas Court of Criminal Appeals, however, later held
prescribes. If no express request for a certificate is filed, the notice of appeal constitutes a request addressed to the judges of the court of appeals.” 3 Though these cases dealt with the grants of the pre-AEDPA Certificates of Probable Cause, the distinction is irrelevant. We have previously held that the standard for obtaining either is the same. Murphy v. Johnson, 110 F.3d 10, 11 (5th Cir. 1997). 4 The two are not related.
15 that because Bishop’s statement was against penal interest, the
statement fell within an exception to the hearsay rule and was
therefore improperly excluded. Burks v. State, 876 S.W.2d 877, 905
(Tex. Crim. App. 1994)(en banc). That court nevertheless concluded
that the exclusion was harmless error because the statement was not
credible. Id. at 906.5
Burks did not obtain a COA for his assertion that exclusion of
Regina Burks’s testimony constituted a denial of constitutional due
process, rendering his trial fundamentally unfair. See Lowenfield
v. Phelps, 817 F.2d 285, 196 (5th Cir. 1987). He bases his
argument on Green v. Georgia, 442 U.S. 95. In that case, the
Supreme Court held that exclusion of evidence highly relevant to a
critical issue, where there were substantial reasons to assume its
reliability, constituted a violation of the defendant’s due process
rights. Id. at 97. Fundamental to a Green claim, however, is that
there be such substantial reasons to assume its reliability. In a
similar case, where there were no such reasons, we held that there
had not been a denial of due process even though the trial court
had excluded testimony about the confession of someone other than
the defendant. Little v. Johnson, 162 F.3d 855, 860 (5th Cir.
5 Burks’s first challenge, for which he does have a COA, is the manner in which the court of criminal appeals conducted its harmless error review. But because the Texas court treated its harmless error analysis as a matter of Texas law under Texas Rule of Appellate Procedure 81(b)(2), we cannot review the manner in which it conducted this analysis or its conclusions. The Texas court did not analyze the exclusion under either federal or constitutional law.
16 1998)(limiting Green to where there are “persuasive assurances of
trustworthiness” with respect to the confession).
To obtain the COA, Burks must first demonstrate exhaustion of
remedies in state court. Sterling, 57 F.3d at 453. It appears
that Burks did raise this issue in state court in a vague manner,
though the state court did not address it in its decision.
Having overcome the first hurdle, Burks must also establish
that a court could hold that he has made a substantial showing of
denial of a federal right or that the questions deserve
encouragement to proceed further in order to obtain a COA.
Barefoot, 463 U.S. at 893 n.4. We again note that the federal
right asserted under Green is a due process violation because of
the exclusion of evidence highly relevant to a critical issue,
where there were substantial reasons to assume its reliability.
Although Burks can satisfy the requirement that the identity of the
murderer be a critical issue, Burks cannot establish that a court
could find substantial reasons to assume the reliability of the
confession.
It is true that the Texas Court of Criminal Appeals found
evidence that “sufficiently corroborate[d] Regina Burks’ testimony
to render it admissible under R. 803(24).” Burks, 876 S.W.2d at
905. That court discussed six points of “evidence” in support.
First, as the state court pointed out, Bishop made his “confession”
“only hours after the offense occurred, and the record [did] not
reflect that Bishop had any reason to lie or that he would gain
17 some advantage by admitting the offense.” Burks, 876 S.W.2d at
905. Second, Louis McConnell testified that he might have seen
Bishop handle a small caliber gun about a week before the offense.
Third, because Victor Macias could not identify the black man at
the scene, it arguably could have been Bishop. Fourth, the court
pointed out that Bilton never testified that he saw Burks shoot
Contreras, nor did Burks admit shooting Contreras. Fifth, Bilton
testified that he did not hear any gunshots and that he did not see
Burks with a gun on the day of the offense. Sixth, no gun was
recovered from Burks.
Nevertheless, although the Texas court held that the
confession should have been admissible, that does not mean that
there were “substantial reasons to assume its reliability” for
constitutional purposes under Green. The Texas court also
concluded that the statement was of “questionable credibility,” and
that the impact of its admission at trial “would, at best, have
been negligible.”
Anything more than a passing glance at the “evidence” that
supports the “confession” reveals the tenuous character of that
evidence. Of the six items discussed above, only the first two are
really evidence of an affirmative nature. The other four are
merely minor gaps in the prosecution’s case of direct evidence that
might allow speculation about the possibility of another murderer,
but only if the strong circumstantial evidence is discarded or
discounted. Such questions can be raised in many cases, and they
18 do not constitute persuasive reasons to believe that the confession
was reliable.
Indeed, even weighing the two points of affirmative evidence--
Bishop’s lack of an incentive to lie and the fact that he may have
handled a gun--against the other evidence presented at trial
presents us with strong reasons to conclude that the confession was
plainly false. First, according to Regina Burks, the first time
she heard Bishop discuss the murder, he said, “We shot Jesse.” It
was only afterwards that he began taking credit. And at the time,
as Regina Burks said, Bishop was “drunk,” “staggering,” “pretty out
of it,” and “about to fall.” Second, Regina Burks testified that
Bishop “was always talking trash like that,” that “nobody ever pays
no attention to him when he’s drunk,” and that nobody believed
Bishop when he made the statement.
Third, it would have been almost impossible for Bishop to have
committed the murder under the circumstances proved by the
prosecution at trial. Most importantly, Bishop was not with the
men who went to rob Contreras. Bilton testified that Bishop was
not in the car when he, Burks, and Mark McConnell drove to Jesse’s
Tortilla Factory on January 20. Regina Burks happened to be at
Guillem’s house that same morning, and she saw that when Mark drove
off with Burks in the car, Bishop was not with them. Moreover,
Guillem, who also saw the car drive off, testified that Bishop was
not in it. In addition, Burks told his aunt that there was no one
at Jesse’s Tortilla Factory after he left that morning. Thus,
19 unless we discard virtually all evidence adduced at trial, it is
impossible to give the slightest credence to Bishop’s “confession”
except under the following scenario: he drove himself, he hid from
Burks during the attempted robbery, he sneaked into the shop
immediately afterwards and shot Contreras and then escaped unseen
before Macias’s arrival.
Thus, instead of constituting substantial reasons to assume
the reliability of the statement, substantial evidence provides
compelling reasons to confidently conclude that Bishop’s confession
was unreliable. Its exclusion, therefore, could not arguably
constitute a violation of due process under Green. We therefore
deny Burks’s request for a COA on this issue.
C
The final issue Burks raises for which he lacks a COA is a
second Brady claim, alleging a failure to disclose exculpatory
evidence. This claim relates to evidence of the unrelated 1982
murder presented during sentencing, which we have discussed
earlier. Burks had not been the only suspect in that 1982 murder.
A man named James Shaw had allegedly confessed the same crime to an
acquaintance, Gary Hawes. Hawes gave the police a written
statement and took a polygraph, which indicated that he was lying
about details of his story of Shaw’s alleged confession. Hawes
later admitted to those lies.
Burks contends that, although his lawyers were informed about
what Hawes had told police about Shaw’s “confession,” they never
20 received Hawes’s written statement or polygraph results from the
state. Had he received these documents, Burks argues, he somehow
would have more aggressively presented Shaw as the person who had
committed the earlier murder.6
We begin by analyzing whether a COA is warranted. Burks did
exhaust his state remedies by raising this issue in his state
habeas proceeding. We therefore move to whether he has established
the debatable denial of a federal right. Since at this stage we
are merely determining the propriety of a COA, we are not governed
by the AEDPA’s deferential standard.
As we have earlier noted, the first prong of Brady asks
whether there was a failure to disclose, and we begin with Burks’s
claim concerning Shaw’s written statement. Burks points to his
files, which lack several pages from that statement. These pages
contained information not disclosed anywhere else. Burks’s
argument, however, is belied by his attorney’s questions at trial.
These questions reveal knowledge of information from those
allegedly missing pages. In short, the evidence indicates that
Burks’s attorneys had this information at that time. Burks has
6 Burks raises a connected issue for which he does have a COA: whether the district court’s deference to the state court under the AEDPA was appropriate on this issue. Burks contends that because the state court did not issue specific findings of fact or analysis of law related to this habeas claim, the district court should not have deferred to its dismissal of the claim under the AEDPA. But because we independently hold that Burks has failed to establish an arguable federal right with respect to this claim, we need not determine what standard the district court should have used in reviewing the state court decision.
21 presented no explanation as to how his counsel had that knowledge
other than from these pages. Thus, the mere fact that these pages
are now misplaced does not satisfy the first Brady prong--a showing
that there has been a failure to disclose.
That leaves the polygraph testimony, which does not appear to
have been disclosed. We must, therefore, determine whether the
polygraph results were exculpatory under Brady’s second prong. To
qualify, the undisclosed evidence must be “material,” meaning that
there is a reasonable probability that had it been disclosed, the
result of the proceeding would have been different. United States
v. Burns, 162 F.3d 840, 851 (5th Cir. 1998). “Mere speculation”
that disclosure would have spurred defense counsel to additional
investigation [does] not make that evidence “material.”
Bartholomew, 516 U.S. 1, 6, 116 S.Ct. 7, 133 L.Ed.2d 1 (1995).
Based on this standard, a court could not hold that the
polygraph results were exculpatory. First, they were inadmissible.
Id. Even if they had been admitted, the fact that they showed that
Hawes had lied would not have helped Burks. Burks’s argument for
materiality, that having the results somehow would have led him to
emphasize Shaw as a suspect in the earlier murder, is analogous to
the argument the Supreme Court rejected as “mere speculation” in
Bartholomew. Thus, no court could hold that this evidence was
exculpatory. Because the claim fails to even debatably qualify
under Brady’s second prong, we deny the COA on this issue and end
our review.
22 IV
For the reasons stated herein, Burks’s petition for habeas
corpus relief is
D E N I E D.