UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _____________________
No. 01-50961 consolidated with No. 02-50407 _____________________
JOHN WILLIAM ELLIOTT,
Petitioner-Appellant,
versus
JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,
Respondent-Appellee.
Appeal from the United States District Court for the Western District of Texas (1:99-CV-606)
July 25, 2002
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
John William Elliott, who received the death penalty in Texas
state court, after being convicted of murder in the course of
committing aggravated sexual assault, seeks a certificate of
appealability (COA) to appeal the denial of federal habeas relief,
raising over 20 claims, inter alia: for the federal proceedings,
denial of an evidentiary hearing; and for the state proceedings,
prosecutorial misconduct, failure to disclose exculpatory evidence,
* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. evidence insufficiency, inadequate jury instruction for the term
“beyond a reasonable doubt”, and ineffective assistance of counsel.
In addition, Elliott appeals the denial of expert and investigatory
assistance (funding) during the federal proceedings. COA DENIED;
FUNDING-DENIAL AFFIRMED.
I.
On 13 June 1986, Hanson invited eighteen-year-old Joyce
Munguia to join a group of men in front of Elizondo’s home. Also
present were Elliott, Elizondo, and Ramirez. Over the next few
hours, Munguia consumed beer, Everclear (grain alcohol), and
cocaine. She became intoxicated and, later that evening, engaged
in apparently consensual sexual relations with Elizondo in his
house. Shortly thereafter, according to Hanson: Munguia was
crying; her words were slurred; and her walking was impaired.
Munguia asked Hanson to walk her home.
Also according to Hanson: as he began walking Munguia home,
Elliott joined them and offered to help; Hanson told Elliott to
leave; Elliott refused, claiming Hanson “just wanted her [Munguia]
to himself”; after Munguia started to fall, Elliott picked her up
and, over Hanson’s protests, carried her into a dark, wooded area
under a bridge; Elliott pulled down Munguia’s shorts and Hanson
asked him to let Munguia go; Elliott threatened Hanson, but began
pulling Munguia’s shorts up; Hanson started to walk off with
Munguia when Elizondo and Ramirez arrived; Elliott then pulled
2 Munguia away from Hanson and raped her; Hanson left to call the
police, but then returned to help Munguia, only to find Ramirez
raping her; next, Elizondo raped her; the entire time, Munguia was
crying and pleading for Hanson’s help and said she was “going
straight to the police when y’all get through”.
Hanson further testified: after the rapes, Elliott told
Elizondo, “We’re going to have to get rid of her [Munguia]”, then
Elliott ran toward Elizondo’s house; Hanson began helping Munguia
with her clothes, but Elizondo took them from Hanson and said, “You
too, Danny [Hanson]”; Hanson fled to call his sister to pick him up
and had her call the police; Hanson returned to the scene later
that night, saw Munguia’s bloodied and still body, and left to call
the police again.
According to Elizondo: Hanson and Ramirez left together to
walk Munguia home; after Elizondo told Elliott he had just had sex
with Munguia, Elliott left to join Hanson and Ramirez; shortly
thereafter, Elizondo left to join them, arriving under the bridge
to find Ramirez having sex with Munguia; Elliott had sex with
Munguia after Ramirez, and Elizondo after Elliott; Munguia then
asked for her clothes; no one responded; and Munguia threatened to
call the police.
Also according to Elizondo: Elliott told him “he [Elliott]
had to kill Joyce [Munguia] and Danny [Hanson]”, that he was going
to find a gun, and that Elizondo should stay to ensure they did not
3 get away; Elliott returned with a motorcycle chain belt wrapped
around his fist and found Munguia searching for her clothes;
Elliott struck Munguia with the chain; Munguia fell to the ground;
and Elizondo ran away, turning to see Elliott strike Munguia three
more times with the chain.
Police officers responded to Hanson’s calls and located
Munguia’s body. They arrived at Elliott’s house between 1:00 a.m.
and 1:30 a.m. on 14 June. The shorts he was wearing were
splattered with blood, as were his shoes.
The blood on Elliott’s shorts matched the victim’s blood type.
The blood on his shoes could not be typed, but the patterns on the
soles were consistent with those found at the murder scene. Sperm
collected from the victim’s body had the same blood type as
Elliott, Ramirez, and Hanson.
During the autopsy, several metal fragments were recovered
from the victim’s head. At trial, a forensic chemist testified
that one of the fragments matched the motorcycle chain belt in such
detail that, in his opinion, it had once been part of it.
Elliott was convicted in January 1987 of murder in the course
of committing aggravated sexual assault. At the punishment phase,
the jury returned affirmative answers to the special issues;
Elliott was sentenced to death.
The conviction and sentence were affirmed on direct appeal.
Elliott v. State, 858 S.W.2d 478 (Tex. Crim. App. 1993). The
4 Supreme Court of the United States denied certiorari. Elliott v.
Texas, 510 U.S. 997 (1993).
Elliott applied for state habeas relief in April 1997, with
supplemental applications that September. He claimed:
prosecutorial misconduct (solicitation of perjury and evidence
tampering); failure to reveal exculpatory evidence (of the claimed
prosecutorial misconduct and insanity/incompetence); insufficient
evidence of the murder’s occurring in the course of a sexual
assault; inadequate jury instruction for the term “beyond a
reasonable doubt”; failure to instruct the jury on the number of
years Elliott would have to serve in prison before becoming
eligible for parole (if sentenced to life imprisonment); and
ineffective assistance of trial and appellate counsel.
The habeas court (Elliott’s trial court) did not hold an
evidentiary hearing. Instead, it ordered the submission of
affidavits from: the prosecutors, regarding the prosecutorial
misconduct and exculpatory evidence claims; and Elliott’s trial
counsel, regarding the ineffective assistance at trial claims. The
court also authorized Elliott to “submit affidavits from any person
with respect to [those] claims or any other claims that he deems
necessary”.
In August 1998, that court entered findings and conclusions,
recommending denial. In September 1999, the Court of Criminal
5 Appeals adopted those findings and conclusions and denied relief.
Ex Parte Elliott, No. 42,654-01 (Tex. Crim. App. 1999).
Elliott filed for federal habeas relief in February 2000.
(The State expressly waived the one-year limitations period for
state prisoner federal habeas petitions, 28 U.S.C. § 2244(d).) The
federal petition raised many of the claims asserted in the state
petition. The case was referred to a magistrate judge, pursuant to
28 U.S.C. § 636(b)(1)(A) and FED. R. CIV. P. 72.
The State moved for summary judgment that July. That
September, the magistrate judge granted Elliott’s request for DNA
testing. A stipulation submitted with the testing results
indicated: Elliott could not be excluded as the donor of the sperm
taken from the victim, when 99.99% of the population would be
expected to be excluded; and the DNA profiles obtained from three
bloodstains from Elliott’s shorts were consistent with the profile
generated from the victim. The magistrate judge ordered Elliott
and the State to brief whether, in the light of the DNA tests or
any other evidence, an evidentiary hearing was warranted.
Elliott filed briefs in support of an evidentiary hearing,
although the precise issues for which that hearing was requested
were not clear. “[E]rr[ing] on the side of inclusion”, the
magistrate judge scoured Elliott’s briefs to identify the precise
issues for which the hearing was sought. In a comprehensive 1
6 March 2001 order, the magistrate judge addressed each issue and
concluded a hearing was not warranted.
The case was delayed because certain records from Elliott’s
state habeas proceedings had not been made part of the record on
file with the district court. After receiving those records, as
well as briefs on whether anything contained in them impacted his
prior rulings, the magistrate judge denied Elliott’s motion for
further discovery.
That August (2001), in an extremely thorough, 53-page report
and recommendation, the magistrate judge recommended granting the
State summary judgment and denying habeas relief. That September,
following review of Elliott’s objections and a de novo review, the
district judge accepted the report and recommendation and denied
habeas relief. It later denied a COA.
II.
Because Elliott filed his federal petition after the effective
date of the Anti-Terrorism and Effective Death Penalty Act of 1996
(AEDPA), Pub. L. No. 104-132, 100 Stat. 1214, it applies. Martinez
v. Johnson, 255 F.3d 229, 237 (5th Cir. 2001), cert. denied, 122 S.
Ct. 1175 (2002). “Under AEDPA, a petitioner must first obtain a
COA in order for an appellate court to review a district court’s
denial of habeas relief.” Dowthitt v. Johnson, 230 F.3d 733, 740
(2000), cert. denied, 532 U.S. 915 (2001); see also 28 U.S.C. §
2253(c)(1)(A).
7 Appeals concerning 21 U.S.C. § 848(q)(4)(B), however, which
provides for, inter alia, “investigative, expert, or other
reasonably necessary services” in post-conviction proceedings to
vacate or set aside a death sentence, do not require a COA. See
Clark v. Johnson, 202 F.3d 760, 768 n.1 (5th Cir.), cert. denied,
531 U.S. 831 (2000).
“A [COA] may issue ... only if the applicant has made a
substantial showing of the denial of a constitutional right”. 28
U.S.C. § 2253(c)(2). This standard includes showing “that
reasonable jurists could debate whether (or, for that matter, agree
that) the petition should have been resolved in a different manner
or that the issues presented were adequate to deserve encouragement
to proceed further”. Slack v. McDaniel, 529 U.S. 473, 484 (2000)
(internal quotation marks and citation omitted).
The ruling on whether a COA should issue “must be made by
viewing ... [Elliott]’s arguments through the lens of the
deferential scheme laid out in 28 U.S.C. § 2254(d)”. Barrientes v.
Johnson, 221 F.3d 741, 772 (5th Cir. 2000), cert. dismissed, 531
U.S. 1134 (2001). Under that scheme, a federal habeas court must
defer to the decision of a state court where it has adjudicated a
claim on the merits, unless the state court’s decision is “contrary
to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United
States; or ... resulted in a decision that was based on an
8 unreasonable determination of the facts in light of the evidence
presented in the State court proceeding”. 28 U.S.C. § 2254(d)(1)
& (2).
A state court decision is “contrary to [] clearly established
Federal law, as determined by the Supreme Court of the United
States ... if the state court arrives at a conclusion opposite to
that reached by th[e] Court on a question of law or if the state
court decides a case differently than th[e] Court has on a set of
materially indistinguishable facts”. Williams v. Taylor, 529 U.S.
362, 412-13 (2000). A state court decision “involve[s] an
unreasonable application of [] clearly established Federal law, as
determined by the Supreme Court of the United States ... if the
state court identifies the correct governing legal principle from
th[e] Court’s decisions but unreasonably applies that principle to
the facts of the prisoner’s case”. Id.
For these questions, as well as whether the state court
decision was based on an unreasonable determination of the facts in
the light of the evidence presented in the state proceeding, we
must presume the state court’s findings of fact correct unless that
presumption is rebutted by “clear and convincing evidence”. 28
U.S.C. § 2254(e)(1).
A.
Elliott presents two groups of claims: certain rulings during
the federal proceedings (e.g., denial of funding for certain expert
9 and investigatory assistance and of an evidentiary hearing); and
the state trial proceedings. Over 20 issues are raised.
For Elliott’s 37-page brief, 14 concern one issue — the
district court’s denial of an evidentiary hearing. The brief lacks
a statement of facts, is essentially devoid of record citation,
consists largely of conclusional allegations and inference, and,
for the most part, simply attempts to “incorporate[] by reference”
papers from earlier proceedings in this case. For example,
regarding the underlying basis for a number of Elliott’s claims,
alleged prosecutorial misconduct, Elliott states: “The issue of
prosecutorial misconduct has been briefed extensively and will not
be briefed; however, the previous briefing is incorporated by
reference.” A number of his issues have absolutely no briefing.
In short, regarding those issues that require a COA, and other than
to repeat the Slack standard, Elliott has made no effort to show
that the issues are debatable among jurists of reason.
In its response, the State notes the inadequacy of Elliott’s
briefing and asserts that, as a result, his claims are abandoned.
Elliott did not file a reply brief or otherwise attempt to correct
any of the noted deficiencies. (In the alternative, the State
addresses the claims.)
It goes without saying that issues not properly briefed will
not be considered. See, e.g., Martin v. Cain, 206 F.3d 450, 455
n.1 (5th Cir.), vacated on other grounds, 531 U.S. 801 (2000);
10 Abbott v. Equity Group, Inc., 2 F.3d 613, 627 n.50 (5th Cir. 1993),
cert. denied, 510 U.S. 1177 (1994). Along this line, a party
cannot simply incorporate by reference positions taken in district
court; the issues must be briefed here. See Peel & Co., Inc. v.
Rug Market, 238 F.3d 391, 398-99 (5th Cir. 2001). Issues not
adequately briefed are deemed abandoned. See, e.g., Lamb v.
Johnson, 179 F.3d 352, 355 n.1 (5th Cir.), cert. denied, 528 U.S.
1013 (1999); Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir.),
cert. denied, 498 U.S. 966 (1990); Brinkmann v. Dallas County
Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).
In this light, we will discuss the one issue that is arguably
adequately briefed — the denial of a federal evidentiary hearing.
But, even regarding this issue, there is significant
uncertainty in the relief sought. To obtain an evidentiary
hearing, “[a] habeas petitioner must make specific allegations;
‘conclusory allegations unsupported by specifics[]’ ... will not
entitle one to ... a hearing”. Perillo v. Johnson, 79 F.3d 441,
444 (5th Cir. 1996) (quoting Blackledge v. Allison, 431 U.S. 63, 74
(1977)).
This notwithstanding, the district court was “forced to scour
[Elliott’s] briefs and make its best guess as to the identity of
the matters on which [Elliott] seeks the right to present evidence
on his petition”, because Elliott had failed to present “a clear
statement of the claims on which [he] proposes to present evidence”
11 or “a brief summary of the anticipated evidence”. After an
extremely liberal consideration of Elliott’s briefing, the
magistrate judge concluded that Elliott “appear[ed] to be
requesting an evidentiary hearing” on seven issues, including
“[w]hether the prosecution engaged in misconduct in eliciting
allegedly false testimony [or] suppressing the testimony of ...
Ramirez”. (Emphasis added.)
In his briefing here, Elliott fails to rectify these
deficiencies. It is not clear what evidence he seeks to produce,
which claims the evidence will support, or how the evidence will
support them. Rather, Elliott complains that “the trial court
judge was never able to hear from the witnesses who mattered most,
... Ramirez and his sisters”.
We conclude that Elliott has appealed the denial of an
evidentiary hearing only to the extent he sought a hearing to
produce testimony from Ramirez and his sisters in support of his
claims that “the prosecution engaged in misconduct in eliciting
allegedly false testimony [or] suppressing the testimony of ...
Ramirez”. Elliott contends “there were many unresolved factual
issues that he had not been able to develop at state court and
therefore an evidentiary hearing was required”; but, he fails to
adequately brief any other factual issue or claim with respect to
which he believes the district court erred by not holding an
evidentiary hearing.
12 B.
“[W]hen ‘[t]he district court ha[s] sufficient facts before it
to make an informed decision on the merits of [the habeas] claim’
it does not abuse its discretion in failing to conduct an
evidentiary hearing”. Barrientes, 221 F.3d at 770 (second and
third alterations in original; quoting McDonald v. Johnson, 139
F.3d 1056, 1060 (5th Cir. 1998)); see also Murphy v. Johnson, 205
F.3d 809, 816 (5th Cir.), cert. denied, 531 U.S. 957 (2000). Along
those lines, there can be no abuse of discretion in such denial
where the state habeas court has already provided petitioner with
a full and fair hearing. See id. at 816; Clark v. Johnson, 202
F.3d at 766.
Even if the factual basis for a habeas claim has not been
developed, AEDPA nevertheless precludes an evidentiary hearing
under certain circumstances. “[W]here the failure to develop the
factual basis is directly attributable to a decision or omission of
the petitioner”, the “petitioner’s entitlement to an evidentiary
hearing ... is restricted to the narrow exceptions of 28 U.S.C. §
2254(e)(2)”. Clark, 202 F.3d at 765; see also Williams v. Taylor,
529 U.S. 420, 431-32 (2000). That subsection provides:
If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that —
(A) the claim relies on —
13 (i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.
28 U.S.C. § 2254(e)(2) (emphasis added).
Even where the basis for a claim remains undeveloped through
no fault of the petitioner, or where the petitioner’s claim
satisfies one of the § 2254(e)(2) exceptions, the petitioner is not
necessarily entitled to a hearing. See Clark, 202 F.3d at 765
(“[O]vercoming the preclusive effect of § 2254(e)(2) does not
guarantee an evidentiary hearing[;] it only opens the door for
one”.); McDonald, 139 F.3d at 1059-60 (“[E]ven if [petitioner’s]
claim is not precluded by § 2254(e)(2), that does not mean he is
entitled to an evidentiary hearing — only that he may be”.
(Emphasis in original.)). “Pursuant to Rule 8 of the Rules
Governing § 2254 Cases, the district court retains discretion over
the decision to grant an evidentiary hearing once a petitioner
overcomes the barriers presented by § 2254(e)(2)”. Clark, 202 F.3d
at 765.
14 To show abuses of discretion in an evidentiary hearing denial,
a petitioner must establish, inter alia, that “if proven true, his
allegations would entitle him to relief”. Murphy, 205 F.3d at 816
(emphasis added); Clark, 202 F.3d at 766 (emphasis added). As
noted, the petitioner’s claim must be based on specific — not
conclusory — allegations of fact. He is not authorized a fishing
expedition, see Ward v. Whitley, 21 F.3d 1355, 1367 (5th Cir.
1994), cert. denied, 513 U.S. 1192 (1995); nor can he rely on
“contentions that in the face of the record are wholly incredible”,
Blackledge, 431 U.S. at 74.
1.
The state court provided Elliott a full and fair hearing on
his claims and the district court had sufficient facts before it on
which to make an informed decision on the merits of those claims.
“A full and fair hearing does not necessarily require live
testimony.” Murphy, 205 F.3d at 816 (citing Perillo, 79 F.3d at
446-47). “We have repeatedly found that a paper hearing is
sufficient to afford a petitioner a full and fair hearing on the
factual issues underlying his claims, especially where as here, the
trial court and the state habeas court were one in the same.” Id.
In support of his claims of solicitation of perjury and
suppression of Ramirez’s testimony, Elliott’s state petition
included a copy of a letter, apparently authored in 1987 by members
of Ramirez’s family for purposes of Ramirez’s trial (he was
15 convicted of sexual assault). It states, in part: “The District
Attorney, Carla Garcia has g[u]aranteed a 20 year sentence for our
brother Pete Ramirez, who was not even present at the time the
victim was murdered. Ms. Garcia wants our brother to change his
statement in the order of which it will help her case.” As noted,
after reviewing Elliott’s petition, including the Ramirez letter,
the state habeas court ordered those prosecutors to submit
affidavits regarding the alleged misconduct and directed Elliott to
“submit affidavits from any person with respect to the above claims
or any other claims that he deems necessary”. (Emphasis added.)
Elliott submitted an affidavit from an investigator who had
spoken with Ramirez and shown him a copy of the letter authored by
his family. According to the affidavit, Ramirez told the
investigator, inter alia, that: “Ms. Garcia wanted [Ramirez] to
testify that he was present when the murder was committed”; “he
refused the deal because he did not want to perjure himself”; “his
refusal to testify against [Elliott] was because he ‘did not want
to get mixed up in the case’ when he ‘knew that the other guys were
changing their stories’”; and “he did not take their plea [offer],
so that he could stay out of the case”. The investigator
concluded: “The implication that the other guys [presumably Hanson
and Elizondo] were lying was evident in the fact that [Ramirez]
then stated that he was not willing to ‘budge’ from what he ‘knew
to be the truth’”. (Emphasis added.)
16 The State submitted affidavits from the two former
prosecutors. The first provides:
I did not solicit false testimony of ... Ramirez, who participated in and was convicted for the sexual assault of Joyce Munguia, nor am I aware of any agent for the State of Texas who did solicit his false testimony. I negotiated a plea bargain agreement with ... Ramirez’s attorney. The terms of the plea bargain agreement required ... Ramirez to provide the State with a complete and truthful confession regarding the sexual assault and murder of Joyce Munguia and that he pass a polygraph examination. If ... Ramirez met the conditions of the plea agreement, i[t] was ou[r] intention to call [him] to testify in the trial of John William Elliott.... Ramirez failed the polygraph examination. Consequently, I did not enter into a plea bargain agreement with his attorney and did not call ... Ramirez to testify in the trial of John William Elliott.
.... The State did not conceal any solicitation of false testimony of ... Ramirez.
The second affidavit is substantially similar.
As is apparent, the record concerning Elliott’s claims was
well developed when the state habeas court ruled that “the
controverted, previously unresolved factual issues material to the
legality of [Elliott’s] confinement c[ould] be resolved on the
basis of the affidavits filed and personal recollection by this
court and without a[ live] evidentiary hearing”. It was in this
light that the court made the following findings: “[t]he
prosecutor ... negotiated for the testimony of [Elliott’s]
17 codefendant, ... Ramirez, with the condition that Ramirez pass a
polygraph examination regarding the truthfulness of his
statements”; “Ramirez failed the polygraph examination; therefore,
the negotiations ceased”; “[Elliott] has made no showing and has
not filed or caused to be filed any affidavits of ... any ...
witness with respect to his allegations of the solicitation of
perjury or suppression of testimony by the state”; and “the
prosecutors did not suppress such solicitation or suppression”.
The district court had this record before it when it denied an
evidentiary hearing. Moreover, in accordance with our admonition
that, “[i]n determining whether an evidentiary hearing is proper,
the district court may expand the record and consider affidavits,
exhibits, or other materials that cast light on the merits of the
petition”, McDonald, 139 F.3d at 1060, the district court also
considered a new affidavit from the same investigator who had
spoken with Ramirez in 1997. It provides, in part: “When I spoke
with [Ramirez’s sisters who had signed the 1987 letter], they
indicated that they did not remember anything about the letter that
they had written regarding allegations that the State wanted ...
Ramirez to testify to untruths at ... Elliott’s trial.”
That affidavit, coupled with the affidavits and letter that
had been considered in the earlier state proceeding, comprised a
well developed record on Elliott’s claims. “The district court had
sufficient facts before it to make an informed decision on the
18 merits of [those] claim[s]”, id. at 1060; consequently, it did not
abuse its discretion in denying an evidentiary hearing.
2.
Elliott appears to insist, however, that the factual basis for
his claims was not well developed, through no fault of his own.
Specifically, he asserts that, without a live evidentiary hearing,
“the trial judge was never able to hear from the witnesses who
mattered most, ... Ramirez and his sisters”, particularly because
Ramirez refused to prepare an affidavit. (The investigator’s 1997
affidavit states that Ramirez’s “reasons for not wanting to sign an
affidavit ... or to be called to testify are because he fears that
he will lose his job and upset his parents if his name appears in
the newspapers and his involvement is made public”.)
Elliott appears to contend he need not satisfy the narrow
exceptions of § 2254(e)(2) because any failure to develop the
factual basis of his claims is attributable solely to the state
court’s denial of an evidentiary hearing. (As the district court
noted, Elliott “does not argue that he can meet the heightened
burden of § 2254(e)(2)(A) & (B), and makes no such attempt to carry
that stringent burden”.)
Even assuming that the factual basis for Elliott’s claims
remains undeveloped, with the fault not being Elliott’s, the
district court still did not abuse its discretion in denying an
evidentiary hearing. As noted, to show abuse of discretion,
19 Elliott must assert “specific allegations of fact”, Ward, 21 F.3d
at 1367, that, “if proven true,... would entitle him to relief”,
Murphy, 205 F.3d at 816 (emphasis added); Clark, 202 F.3d at 765
(emphasis added).
Concerning Elliott’s claim that the prosecution entered into
an agreement with Ramirez or intimidated him to keep him silent,
the district court concluded: “[N]one of the hearsay statements in
the [Ramirez family] letter or [investigator’s] affidavit are
inconsistent with the prosecutor’s statement that the plea
agreement with Ramirez required that he provide a full statement
and pass a polygraph test, and that when he failed the test she
declined to call him at trial”; and “[n]othing in the evidence
already gathered supports the claim that prosecutors had an
agreement with Ramirez to keep him silent — even Ramirez’s
statements do not support that claim”.
Elliott does not address these points. Nor does he even
attempt to suggest what Ramirez’s testimony might be if called as
a witness. As the district court concluded: “Clearly, Elliott has
no idea what Ramirez will state under oath”. Elliott’s claim that
the prosecution attempted to suppress Ramirez’s testimony appears
to be speculation; “[h]is request [for a hearing] in this regard is
tantamount to an impermissible fishing expedition”. See Murphy,
205 F.3d at 816. The district court did not abuse its discretion
20 in denying an evidentiary hearing to determine whether the
prosecution attempted to silence Ramirez.
Regarding Elliott’s claim that calling Ramirez (or his
sisters) to testify in an evidentiary hearing would enable him to
prove the prosecution knowingly presented perjured testimony
(presumably from Hanson and Elizondo), the district court likewise
did not abuse its discretion. “‘To establish a due process
violation based on the State’s knowing use of false or misleading
evidence, [a habeas petitioner] must show (1) the evidence was
false, (2) the evidence was material, and (3) the prosecution knew
that the evidence was false.’” Barrientes, 221 F.3d at 753
(alteration in original; quoting Nobles v. Johnson, 127 F.3d 409,
415 (5th Cir. 1997)).
Elliott does not even identify evidence presented by the
State, much less make specific allegations that it was false,
material, or known to be false. As the district court noted, “the
only evidence that could conceivably support the speculation that
the prosecutor elicited false testimony is an ‘implication’ that
the investigator found to be ‘evident’ from what Ramirez told the
investigator”.
C.
In the alternative, notwithstanding the wholly inadequate
briefing by Elliott for the other COA requests, and pursuant to our
review, there was no substantial denial of a constitutional right.
21 Therefore, Elliott is not entitled to a COA for any of those
issues. Likewise, there was no reversible error concerning the
district court’s denial of expert and investigatory assistance.
III.
For the foregoing reasons, Elliott’s request for a COA is
DENIED, and the denial of funding for expert and investigatory
assistance is AFFIRMED.
COA DENIED; FUNDING-DENIAL AFFIRMED