REVISED MAY 30, 2000
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 99-10801 _____________________
MACK ORAN HILL
Petitioner - Appellant
v.
GARY L JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION
Respondent - Appellee
_________________________________________________________________
Appeal from the United States District Court for the Northern District of Texas _________________________________________________________________ April 20, 2000 Before KING, Chief Judge, and JOLLY and PARKER, Circuit Judges.
KING, Chief Judge:
As is required under 28 U.S.C. § 2253(c), Texas death row
inmate Mack Oran Hill requests that we grant a certificate of
appealability to enable him to obtain review of the district
court’s denial of habeas relief. For the reasons that follow, we
deny his request.
I. PROCEDURAL BACKGROUND
Following a jury trial, Mack Oran Hill (“Hill”) was
convicted of capital murder on July 7, 1989, and was sentenced to
death on August 3, 1989. The Texas Court of Criminal Appeals affirmed his conviction and sentence on May 5, 1993. Hill’s writ
of certiorari was denied on June 13, 1994. See Hill v. Texas,
512 U.S. 1213 (1994).
Hill was appointed counsel to represent him in state habeas
proceedings on March 24, 1997. With the permission of the Court
of Criminal Appeals, Hill’s counsel filed in state court on April
11, 1997 a skeletal petition for habeas relief, and filed a
complete petition on December 17, 1997. In the latter petition,
Hill asserted eight grounds for relief. On August 5, 1998, the
state habeas court, which was also Hill’s trial court, held an
evidentiary hearing on Hill’s claim that the district attorney
improperly withheld information as to the existence of a deal for
leniency with several witnesses who testified at Hill’s trial.
Shortly after the conclusion of that hearing, the state court
recommended that relief be denied, and on November 12, 1998
issued its findings of fact and conclusions of law. The Texas
Court of Criminal Appeals denied relief with written order on
February 24, 1999.
Hill’s counsel almost immediately filed a motion for
equitable tolling of the statute of limitations of the Anti-
Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub.
L. No. 104-132, 110 Stat. 1214, arguing that the significant
delay in appointing counsel for purposes of Hill’s state habeas
proceedings warranted tolling. The filing of the skeletal
petition had stayed the statute of limitations, see 28 U.S.C.
2 § 2244(d)(2), but left only 13 days remaining in Hill’s one-year
grace period. See Flanagan v. Johnson, 154 F.3d 196, 200 (5th
Cir. 1998) (applying rule announced in United States v. Flores,
135 F.3d 1000 (5th Cir. 1998), to petitions filed under 28 U.S.C.
§ 2254 and thus allowing prisoners whose convictions were final
before AEDPA’s effective date until April 24, 1997 to file
petitions in federal court). The court denied the benefits of
equitable tolling, but construed Hill’s motion as one for an
extension under 28 U.S.C. § 2263. The court granted an extension
until March 31, 1999.
Hill filed his petition seeking federal habeas relief on
March 30, 1999. He filed motions under 21 U.S.C. § 848(q)(4)(B)
seeking the assistance of a forensic expert (on June 7, 1999),
and of an investigator for discovery purposes (on June 11, 1999),
and under Rule 6 of the Rules Governing Section 2254 Cases
seeking additional discovery (on June 11, 1999). Each of these
motions was denied the same day it was filed. The district court
held on June 11 a hearing regarding Respondent Gary L. Johnson’s
(“Respondent”) June 10 motion for summary judgment, and on July
1, issued its findings of fact and conclusions of law, granted
Respondent’s motion, and entered a judgment dismissing Hill’s
petition with prejudice.
Hill filed a timely notice of appeal. He sought a
certificate of appealability (“COA”) from the district court on
3 June 30, 1999. The district court declined to grant a COA on any
of the issues he raises before us.
II. DISCUSSION
Hill seeks a COA from this court on four issues relating to
his state trial. Hill alleges that the district attorney failed
to reveal implied understandings for leniency between himself and
several witnesses, failed to correct false and misleading
testimony, and failed to disclose impeachment evidence. He also
asserts that his due process and equal protection rights were
violated when the Texas Court of Criminal Appeals failed to
utilize the “reasonable alternative hypothesis” construct for
review of the sufficiency of circumstantial evidence entered
against him, in direct contravention of its own decision to apply
that construct to cases such as his. In addition, Hill
challenges the district court’s denial of his motions requesting
additional discovery, and the assistance of a forensic expert and
of an investigator, and its granting of Respondent’s motion for
summary judgment.
Hill’s petition for federal habeas relief was filed on March
30, 1999, and therefore his case is governed by the provisions of
the AEDPA. See Green v. Johnson, 116 F.3d 1115, 1119-20 (5th
Cir. 1997). Under 28 U.S.C. § 2253(c)(1)(A), Hill must first
obtain a COA before he may obtain appellate review of the
district court’s denial of habeas relief. A COA can issue only
4 if Hill makes a “substantial showing of the denial of a
constitutional right.” Id. § 2253(c)(2). Such a showing
“requires the applicant to ‘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.’” Drinkard
v. Johnson, 97 F.3d 751, 755 (5th Cir. 1996) (quoting Barefoot v.
Estelle, 463 U.S. 880, 893 n.4 (1983)), overruled on other
grounds by Lindh v. Murphy, 521 U.S. 320 (1997). We resolve
doubts about whether to grant a COA in Hill’s favor, and we may
consider the severity of his penalty in determining whether he
has met his “substantial showing” burden. See Fuller v. Johnson,
114 F.3d 491, 495 (5th Cir.), cert. denied, 522 U.S. 963 (1997).
In assessing whether Hill is entitled to a COA, we must keep
in mind the deference scheme laid out in 28 U.S.C. § 2254(d).
See Trevino v. Johnson, 168 F.3d 173, 181 (5th Cir.), cert.
denied, 120 S. Ct. 22 (1999). Under that scheme, we review pure
questions of law and mixed questions of law and fact under
§ 2254(d)(1), and review questions of fact under § 2254(d)(2),
provided that the state court adjudicated the claim on the
merits. See 28 U.S.C. § 2254(d). The Texas Court of Criminal
Appeals explicitly adopted the findings of fact and conclusions
of law of the trial court, and denied relief. This qualifies as
an “adjudication on the merits.” See Trevino, 168 F.3d at 181;
5 Davis v. Johnson, 158 F.3d 806, 812 (5th Cir. 1998), cert.
denied, 119 S. Ct. 1474 (1999).
As a result, we must defer to the state court unless its
decision “was contrary to, or involved an unreasonable
application of clearly established Federal law, as determined by
the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1).
A decision is contrary to clearly established Federal law “if the
state court arrives at a conclusion opposite to that reached by
[the Supreme Court] on a question of law or if the state court
decides a case differently than [the] Court has on a set of
materially indistinguishable facts.” Williams v. Taylor, -- U.S.
-- , 120 S. Ct. 1495, 2000 WL 385369, at *28 (2000). Under
§ 2254(d)(1)’s “unreasonable application” language, a writ may
issue “if the state court identifies the correct governing legal
principle from [the] Court’s decisions but unreasonably applies
that principle to the facts of the prisoner’s case.” Williams,
2000 WL 385369, at *28. Factual findings are presumed to be
correct, see 28 U.S.C. § 2254(e)(1), and we will give deference
to the state court’s decision unless it “was based on an
unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.” Id. § 2254(d)(2).
A.
In his first challenge, Hill contends that the State
violated the commands of Giglio v. United States, 405 U.S. 150
6 (1972), in failing to reveal implied understandings for leniency
between the district attorney and two witnesses, Danny and Allen
Crawford. The Crawfords testified at Hill’s trial regarding the
removal of property from the shop of the individual Hill was
accused of murdering. That an accused’s constitutional rights
are violated when the State withholds material evidence affecting
the credibility of witnesses is well-established. See, e.g.,
Pyles v. Johnson, 136 F.3d 986, 998 (5th Cir.), cert. denied, 524
U.S. 933 (1998). In general, a petitioner seeking habeas relief
who asserts that the State violated its duty to disclose material
evidence must demonstrate that (1) the prosecution withheld
evidence, (2) the evidence was favorable to the petitioner, and
(3) the evidence was material. See Pyles, 136 F.3d at 998;
Spence v. Johnson, 80 F.3d 989, 994 (5th Cir. 1996). “[E]vidence
is material only if there is a reasonable probability that, had
the evidence been disclosed to the defense, the result of the
proceeding would have been different.” United States v. Bagley,
473 U.S. 667, 682 (1985). As the Supreme Court has noted, “[t]he
question is not whether the defendant would more likely than not
have received a different verdict with the evidence, but whether
in its absence he received a fair trial, understood as a trial
resulting in a verdict worthy of confidence.” Kyles v. Whitley,
514 U.S. 419, 434 (1995).
The state habeas court conducted an evidentiary hearing
regarding Hill’s contention that the State withheld evidence of
7 deals for leniency, and reviewed an audio tape that the district
attorney had made of a telephone conversation between himself and
David Schulman, the attorney for Allen Crawford. The court
subsequently denied relief, finding that there were “no deals,
express, implied or otherwise offered to any witness that were
not disclosed to Applicant’s trial attorneys.”
Hill contends that the state habeas court misrepresented and
misapplied the facts brought forth at the evidentiary hearing.
In particular, he argues that the state court relied on the audio
tape and ignored uncontradicted evidence suggesting that the tape
had been altered, and that the court further ignored evidence
that indicates that Allen Crawford and Schulman were led to
believe that some consideration would be given in return for
Crawford’s testimony.
The district court, after reviewing the record, concluded
that, at most, three individuals had a subjective belief that
there was an implied deal, but that the record did not support
the conclusion that the district attorney intended to make, or
actually made, a deal for leniency in exchange for the witnesses’
testimony. The district court also concluded that Hill had not
presented evidence sufficient to rebut the presumption of
correctness a federal court must apply to the state court’s
findings of fact, and that Hill had not shown that the state
court’s conclusions were unreasonable in light of the evidence.
8 The district court also denied Hill’s request for a forensic
expert to examine the audio tape made by the district attorney,
and his motions for additional discovery and for the appointment
of an investigator. In his latter motions, Hill sought the
transcripts of hearings in another individual’s state habeas
proceedings, which Hill believed contained evidence that the
district attorney maintained a secret file containing possibly
exculpatory information related to capital cases, and that the
contents of that secret file had been destroyed. This evidence,
Hill contended, supported the inference of a continuing pattern
of misconduct on the part of the district attorney. Hill also
wished to interview witnesses from the other individual’s state
habeas hearing regarding facts relating to Hill’s case, or to the
credibility of individuals involved in Hill’s case.
We conclude that Hill has not made a substantial showing of
the denial of a constitutional right. With regard to the state
court’s findings of fact, Hill’s basic argument is that the
court, after granting an evidentiary hearing, “ignored” some
evidence but accepted other evidence. Much is made of Schulman’s
testimony at the evidentiary hearing suggesting that the district
attorney altered the tape recording of a telephone conversation
between the two. However, Hill notes that evidence that the
district attorney altered the tape would go to the district
attorney’s credibility; he does not contend that the tape
contained the district attorney’s admission of the existence of a
9 deal. Given the testimony of other witnesses that there was no
deal, Hill has not come close to rebutting by clear and
convincing evidence the presumption of correctness that we must
accord the state court’s findings. In addition, Hill neither
points to a Supreme Court decision holding that the subjective
beliefs of witnesses regarding the possibility of future
favorable treatment are sufficient to trigger the State’s duty to
disclose under Brady v. Maryland, 373 U.S. 83 (1963), and
Giglio,1 nor gives us cause to believe that the state court’s
conclusions involved an unreasonable application to the facts of
law existing at the time of its decision. Cf. Williams, 2000 WL
385369, at *28 (explaining that “clearly established Federal law,
as determined by the Supreme Court of the United States” “refers
to the holdings, as opposed to the dicta, of [the] Court’s
decisions as of the time of the relevant state-court decision”).
Related to Hill’s Giglio claim is his contention that the
district court abused its discretion in denying his requests
under 21 U.S.C. § 848(q)(4)(B) for assistance of a forensic audio
expert to analyze the district attorney’s tape recording and for
the assistance of an investigator. Under § 848(q)(4)(B)(9), the
1 As Hill observes, the Court’s decision in Giglio addressed the State’s duty to disclose an express agreement between the State and a witness. Although we are restricted by 28 U.S.C. § 2254(d)(1) to evaluate the state court’s decision in light of Supreme Court precedent, we note that this circuit has held that a witness’ “nebulous expectation of help from the state” is not Brady material. See Goodwin v. Johnson, 132 F.3d 162, 187 (5th Cir. 1998); United States v. Nixon, 881 F.2d 1305, 1311 (5th Cir. 1989).
10 district court, “[u]pon a finding that investigative, expert, or
other services are reasonably necessary for the representation of
the defendant, . . . . may authorize the defendant’s attorneys to
obtain such services . . . .” To be entitled to the assistance
of a forensic audio expert or an investigator, Hill must show
indigence and that the requested assistance is reasonably
necessary for his representation. See Fuller, 114 F.3d at 502.
We find no abuse of discretion.2 Hill’s request for a
forensic expert is motivated by an attempt to gain additional
evidence supporting Schulman’s suggestion that the district
attorney’s audio tape was altered. Schulman testified at the
state habeas court’s evidentiary hearing that a complete playing
of the tape (i.e., without the alleged editing) would make it
clear that his statements regarding consideration to be given
were true. Schulman did not testify that the district attorney
stated during their phone conversation that there was a deal, and
in fact stated that there was no express deal. His statements
regarding consideration indicated only that when he and Allen
Crawford had left a meeting with the district attorney, they were
under the impression that Crawford would get some unspecified
consideration for his testimony. Thus, the primary evidence that
the forensic expert would be able to supply — i.e., that the tape
was altered — would do nothing to make viable Hill’s Giglio
2 A COA is not required for appeals under § 848(q)(4)(B). See Sterling v. Scott, 57 F.3d 451, 454 n.3 (5th Cir. 1995).
11 claim. Under these circumstances, the district court did not
abuse its discretion in denying Hill’s request for a forensic
expert.
Also related to Hill’s Giglio claim is his request for a COA
on the district court’s denial of his motion for additional
discovery pertaining to the district attorney’s activities. We
conclude that Hill has not demonstrated that the question whether
the district court abused its discretion in denying this request
is debatable among jurists of reason. In order to be entitled to
additional discovery, Hill must show “good cause.” See Rules
Governing Section 2254 Cases 6(a) (“A party shall be entitled to
invoke the processes of discovery available under the Federal
Rules of Civil Procedure if, and to the extent that, the judge in
the exercise of his discretion and for good cause shown grants
leave to do so, but not otherwise.”). As we recently noted,
“[g]ood cause may be found when a petition for habeas corpus
relief ‘establishes a prima facie [case] for relief.’” Murphy v.
Johnson, 205 F.3d 809, 814 (5th Cir. 2000) (quoting Harris v.
Nelson, 394 U.S. 286, 289 (1969)). In addition, Hill’s factual
allegations must be specific, as opposed to merely speculative or
conclusory, to justify discovery. See Murphy, 205 F.3d at 814.
“Rule 6 . . . does not authorize fishing expeditions.” Ward v.
Whitley, 21 F.3d 1355, 1367 (5th Cir. 1994); see also Murphy, 205
F.3d at 814.
12 The district court could easily conclude that Hill had not
shown “good cause” for discovery related to the district
attorney’s alleged maintenance and destruction of a secret file.
None of the evidence he seeks can transform Hill’s contention
that parties left a meeting with the district attorney
entertaining the belief that some unspecified consideration may
be forthcoming in the future into a viable claim that the
district attorney withheld from Hill and his counsel information
regarding a deal for leniency in return for witness testimony.
Cf. Murphy, 205 F.3d at 814 (concluding that petitioner had
failed to demonstrate the existence of a deal or that proof of a
deal would be material).3 We therefore decline to issue a COA on
Hill’s Giglio claim, and on the related discovery issue.
B.
Hill’s second and third grounds for relief deal with the
sentencing phase of his trial, and in particular, the testimony
of a psychiatric expert, Dr. James Grigson, regarding the
probability that Hill would in the future be a danger to society.
Before the state habeas court, Hill contended the State withheld
the existence and the contents of the “Kinne Report,” which
purportedly was in the possession of Dr. Grigson and described
the conduct of individuals whom he had testified would “with
3 As a result, we find as well that the district court did not abuse its discretion in denying the assistance of an investigator.
13 certainty” be future dangers. The Report purportedly indicated
that those individuals whose sentences were commuted to life
imprisonment were model, or at least well-adapted, prisoners.
Hill contended that, had he had been given the Report, he could
have used it to impeach Dr. Grigson’s testimony regarding his
predictions of future dangerousness.
Hill charges the State with both the failure to provide him
with the Kinne Report in violation of Brady v. Maryland, 373 U.S.
83 (1963), and failure to correct false and misleading testimony
given by Dr. Grigson about the accuracy of his predictions in
violation of Napue v. Illinois, 360 U.S. 264 (1959). We have
indicated above what Hill must prove in order to establish a
Brady violation. In order to show that the State failed to
correct false and misleading testimony, Hill must demonstrate
that (1) “‘the testimony was actually false,’” (2) “‘the state
knew it was false,’” and (3) “‘the testimony was material.’”
Pyles, 136 F.3d at 996 (quoting Faulder v. Johnson, 81 F.3d 515,
519 (5th Cir. 1996)).
The state habeas court did not conduct an evidentiary
hearing on these issues. It found that the State had no
knowledge of the Kinne Report at the time of Hill’s trial, that
the Kinne Report was “nothing more than a list of a certain
number of inmates from Dallas County and a report of their
conduct while in prison,” that the letter did not contain
information that made Dr. Grigson’s predictions more or less
14 probable, that Dr. Grigson was not an “arm of the prosecution,”
and that the defense’s expert ably impeached Dr. Grigson’s
testimony. The state court concluded that Hill’s claims were not
supported by credible evidence in the record, or by evidence
submitted to the state habeas court.
The district court concluded that Hill’s claims failed
because he had not demonstrated that (1) Dr. Grigson’s testimony
was perjured, (2) the Kinne Report was in possession of Dr.
Grigson or the prosecution, and (3) the Kinne Report was
unattainable through reasonable diligence. In Hill’s discovery
motion, he stated he was requesting additional discovery in part
to obtain information related to his second and third claims.
That information regarded when Dr. Grigson became aware of the
contents of the Kinne Report, whether he communicated the
contents to members of the district attorney’s office, and the
nature of the relationship between Dr. Grigson and that office.
As we noted above, the district court denied his motion.
Beyond arguing that the state court’s findings are not
deserving of the statutory presumption of correctness, Hill’s
challenge to the state court’s action focuses on its application
of law underlying its finding that Dr. Grigson was not an “arm of
the state,” and its conclusion that the Kinne Report was not
“impeachment” evidence.4 We begin with an assessment of Hill’s
4 Hill also attacks the state court’s “alternative” conclusion that Hill’s claims were disposed of by Clark v. State, 881 S.W.2d 682, 687 (Tex. Crim. App. 1994). We find we do not
15 contention that the state habeas court’s finding that Dr. Grigson
was not an “arm of the prosecution” reflected an improper
application of law to the facts. Hill relies principally on the
Supreme Court’s description of Dr. Grigson’s role in Estelle v.
Smith, 451 U.S. 454, 467 (1981) (“When Dr. Grigson went beyond
simply reporting to the court on the issue of competence and
testified for the prosecution at the penalty phase on the crucial
issue of respondent’s future dangerousness, his role changed and
became essentially like that of an agent of the State recounting
unwarned statements made in a postarrest custodial setting.”), to
support his challenge to the state court’s finding. Hill
interprets the Court’s language as suggesting that when Dr.
Grigson testifies as to an individual’s future dangerousness, he
is necessarily an agent of the State. This is not what the
Supreme Court held. Moreover, Hill has given us no reason to
believe that his case was factually similar to that of the
defendant in Smith.5 We therefore conclude that the Court’s
language in Smith is not applicable to Hill’s case.
need to address these arguments. 5 Unlike the situation in Smith, the record does not reveal that Hill was examined by Dr. Grigson prior to his giving testimony, or that Dr. Grigson’s testimony as to his predictions of Hill’s future dangerousness was based on any examination of Hill. Instead, Dr. Grigson was given a hypothetical, and asked for his assessment of the likelihood that the individual described in the hypothetical would be a continuing threat to society.
16 With no other basis for challenging the state habeas court’s
finding that Dr. Grigson was not an arm of the prosecution, Hill
cannot meet his burden of making a substantial showing of a
denial of a constitutional right. Hill contends that the state
court’s findings should not be presumed correct because the state
court denied him an evidentiary hearing. However, we have
frequently noted that the absence of an evidentiary hearing at
the state level does not lead to the conclusion that the state
court’s findings should not be presumed correct. See, e.g.,
Carter v. Johnson, 131 F.3d 452, 460 n.13 (5th Cir. 1997) (“We
have consistently recognized that, to be entitled to the
presumption of correctness, a state court need not hold an
evidentiary hearing . . . .”), cert. denied, 523 U.S. 1099
(1998). As we recently observed, this court has “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 . . . the trial court and the state
habeas court were one and the same.” Murphy, 205 F.3d at 816
(citing Perillo v. Johnson, 79 F.3d 441, 446-47 (5th Cir. 1996)).
Hill was given an opportunity during the state habeas
proceedings to provide evidence supporting any allegation he may
have made that the State (as distinguished from Dr. Grigson)
possessed the Kinne Report, or knew of its existence and
contents, and to argue that the Report was material, i.e., that
in its absence, he did not receive “a fair trial, understood as a
17 trial resulting in a verdict worthy of confidence.” Kyles v.
Whitley, 514 U.S. 419, 434 (1995). The state court found that
the State did not have knowledge of the Kinne Report at the time
of Hill’s trial, and that even without that Report, defense
counsel ably impeached Dr. Grigson’s testimony.
Hill attempted to gain evidence rebutting these findings
through additional discovery. However, his request for
additional discovery indicates that he had no evidence supporting
knowledge on the part of the State (as distinguished from Dr.
Grigson) while before the district court.6 In a previous case,
we concluded that “[m]ere speculative and conclusory allegations
that the [State] might have known about [the alleged impeachment
material] are not . . . sufficient to entitle [a petitioner] to
discovery . . . .” East v. Scott, 55 F.3d 996, 1003 (5th Cir.
1995); see also Murphy, 205 F.3d at 814. We conclude that Hill
has not shown that jurists of reason would find debatable the
question whether the district court abused its discretion in
denying Hill’s request for additional discovery. We must
therefore decline his request for a COA on his second and third
grounds for relief.
C.
6 The state court’s conclusions of law regarding Hill’s Brady claim also suggest that Hill produced no evidence indicating that the State had prior knowledge of the Kinne Report.
18 Hill next challenges the Texas Court of Criminal Appeals’
failure to apply the “reasonable alternative hypothesis” in its
review of the sufficiency of circumstantial evidence in his case.
He argues that this failure constituted a violation of his due
process and equal protection rights under the U.S. Constitution
because the Court of Criminal Appeals had stated in Geesa v.
State, 820 S.W.2d 154, 165 (Tex. Crim. App. 1991), that the
“reasonable alternative hypothesis” standard would be applied in
cases pending appeal at the time. His was such a case.
The state habeas court did not conduct an evidentiary
hearing on this claim. It found that the changes implemented by
Geesa were “procedural in nature and do not implicate any
constitutional rights,” using language from Geesa in support.
See 820 S.W.2d at 163 (“The rules are not of constitutional
dimension per se; rather, the rules serve to implement the
constitutional requirement that a criminal conviction cannot
stand except upon proof beyond a reasonable doubt.” (internal
quotation marks omitted)). The state court concluded that all
defendants were treated equally because in all cases, the State
had to prove guilt beyond a reasonable doubt. The district court
essentially came to the same conclusions.
Hill contends that the state habeas court misconstrued his
claim as one challenging the sufficiency of the evidence. He
asserts that instead his claim is that the Texas Court of
Criminal Appeals’ Geesa decision created a classification of
19 appellants, and gave those appellants whose cases were tried
before Geesa a protected interest. The Court of Criminal
Appeals’ failure to apply the reasonable alternative hypothesis
construct deprived him of his right to treatment equal to that
given similarly situated individuals whose claims were reviewed
under the reasonable alternative hypothesis standard, and
deprived him of his due process rights because the Court of
Criminal Appeals failed to follow its own precedent.
We are not persuaded that the state habeas court incorrectly
interpreted Hill’s claims. At the heart of those claims is the
contention that the state court’s failure to follow its own rules
regarding the analysis it would undertake in reviewing a case on
appeal violated the U.S. Constitution. Even if we assume that
the “reasonable alternative hypothesis” analysis was an explicit
procedural protection and that the Court of Criminal Appeals did
not apply that analysis to Hill’s case, we must deny a COA on
this issue.
Notably, Hill does not assert that the analysis the Texas
Court of Criminal Appeals applied to his case violates the Due
Process Clause. See Murphy v. Collins, 26 F.3d 541, 543 (5th
Cir. 1994) (noting that a state’s failure to follow its own rules
does not violate the Constitution where “‘constitutional minima
[have] nevertheless . . . been met’”) (quoting Jackson v. Cain,
864 F.2d 1235, 1251 (5th Cir. 1989)). Thus, his argument focuses
on the mere failure of the state court to follow the rule
20 applicable to pending cases that it devised in Geesa. Although
Hill relies heavily on Supreme Court cases to support his
contention that his rights under the U.S. Constitution have been
violated, none of the cases he cites provides the rule that he
needs to prevail: that a state court’s failure to follow its own
holding and apply one procedural rule rather than another
constitutes, by itself, a violation of the Due Process Clause.7
We conclude that Hill has not met his burden of making a
substantial showing of a denial of a constitutional right.
The “reasonable alternative hypothesis” analysis merely
provided a reviewing court with a means to assess whether a
rational trier of fact could find the defendant guilty beyond a
reasonable doubt. See Butler v. State, 769 S.W.2d 234, 238 n.1
(Tex. Crim. App. 1989) (“[W]e do not mean to imply an adoption of
[the reasonable hypothesis theory] as the standard of review for
the sufficiency of the evidence. The reasonable hypothesis
theory as utilized by this Court is merely an analytical
construct to facilitate the application of the [Jackson v.
Virginia, 443 U.S. 307 (1979)] standard.”). Even if the Texas
Court of Criminal Appeals did not apply the construct it
indicated in Geesa it would to a case such as Hill’s, and in
doing so, violated “the law,” this was a violation of state law.
7 We have previously held that the type of claim Hill makes lacks merit. See, e.g., Giovanni v. Lynn, 48 F.3d 908, 912 (5th Cir. 1995) (“Mere failure to accord the procedural protections called for by state law or regulation does not of itself amount to a denial of due process.”).
21 The Supreme Court has repeatedly stated that such a violation is
not the concern of a federal habeas court. See, e.g., Estelle v.
McGuire, 502 U.S. 62, 67-68 (1991) (“[W]e reemphasize that it is
not the province of a federal habeas court to reexamine state-
court determinations on state-law questions. In conducting
habeas review, a federal court is limited to deciding whether a
conviction violated the Constitution, law, or treaties of the
United States.”). Because Hill’s claims regard, at best, a
state-law violation, we must deny a COA.
D.
In his final challenge, Hill contends that the district
court erred in granting summary judgment without giving him an
adequate opportunity for discovery and factual development of his
claims. Given our disposition of his other claims, we deny a COA
on this issue as well.
III. CONCLUSION
For the foregoing reasons, we DENY Hill’s request for a COA.