United States Court of Appeals Fifth Circuit F I L E D REVISED JANUARY 25, 2006 December 28, 2005 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk
No. 05-70007
ROY LEE PIPPIN
Petitioner - Appellant
v.
DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION
Respondent - Appellee
Appeal from the United States District Court for the Southern District of Texas
Before KING, Chief Judge, and HIGGINBOTHAM and PRADO, Circuit Judges.
KING, Chief Judge:
Petitioner-appellant Roy Lee Pippin seeks a certificate of
appealability (COA) to appeal the district court’s summary
judgment dismissal of his petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. Because Pippin cannot make a
substantial showing of the denial of a constitutional right, we
DENY his application for a COA.
I. BACKGROUND
Pippin owned and operated an air conditioning business known
-1- as Pippin Services. In December 1993, Pippin became involved in
a money laundering scheme to funnel proceeds from the sale of
Colombian cocaine in the United States to Mexico, using air
conditioners and modified gas tanks of trucks to transport large
sums of money across the Mexican border. When approximately $2
million in drug proceeds was reported missing, Pippin rented a
white panel van from PV Rentals and reserved two rooms at a Motel
6 on April 27, 1994.1 At Pippin’s request, Abraham Pacheco, an
employee at Pippin Services, took two men, Elmer Buitrago and his
cousin, Fabio Buitrago, to the Motel 6 and held them captive
against their will for several days.2 Before dawn on May 4,
1994, Pippin and Pacheco took Elmer and Fabio Buitrago to a
warehouse in the rented van. Pippin then shot them each
approximately four times through a pillow to muffle the sound,
and both men then left the warehouse to get rid of the murder
weapon. Shortly thereafter, Houston Police Officer Eddie Parodi,
responding to a call of criminal mischief in progress at the
apartment complex located directly behind the warehouse, arrived
1 Pippin’s immediate supervisor in the money laundering scheme was a man identified in the record as “Alfredo.” When the missing money was discovered, Pippin apparently proceeded with the kidnapping plot under direct orders from Alfredo. 2 The record shows that Pippin paid $500 per shift to three employees from his air conditioning business (Aaron Loweth, Flavio Salazar, and Jorge Pulido) to assist in holding the two men captive. Although Pippin and his wife stayed in the next room for a short time, Pippin would generally only visit the hotel to monitor the situation and occasionally bring food, beer, and drugs to the captors.
-2- at the scene and found the fatally wounded Elmer Buitrago crying
out in English and Spanish for help.3
Before the ambulance arrived, Buitrago spoke with Officer
Parodi and identified Pippin as the shooter. Buitrago described
Pippin as a white male, approximately 5'9" and 200 pounds, with
sandy brown hair.4 Buitrago also claimed that after Pippin shot
him in the warehouse, he was able to hit Pippin with a pipe and
escape. Garza later testified that he also heard Buitrago say
“Pippin shot me” and mention the name “Roy.” Buitrago died later
that day at the hospital from his gunshot wounds. The body of
Fabio Buitrago was not discovered until the next day, when
Lieutenant Richard Maxey returned to the warehouse to obtain
statements from witnesses. Upon further investigation, the
police found eight fired nine-millimeter cartridge cases from a
semiautomatic weapon on the right side of the room and some
bullet holes and fired bullets lodged in the north wall of the
warehouse.
Law enforcement officers arrested Pippin on June 28, 1994 at
a friend’s house. At his trial, Pippin admitted to participating
3 Warren Garza, a security guard on duty at the apartment complex at the time, assisted Officer Parodi in finding the source of the commotion that resulted in the calls from concerned residents. Before Officer Parodi arrived at the scene, Garza had noticed two men fitting the physical descriptions of Pippin and Pacheco driving around the apartment complex in a white van. 4 Pippin is a white male with sandy brown hair. At trial, he testified that he is approximately 6'1" and weighs between 210 and 220 pounds.
-3- in the aggravated kidnappings of Elmer and Fabio Buitrago but
denied killing any of them or even being present when they were
killed. Charles Anderson, a ballistics expert for the Houston
Police Department, testified about a ballistics report he
prepared regarding the bullets and cartridge cases found at the
crime scene. Both the prosecutor Julian Ramirez and Pippin’s
defense attorneys Richard Wheelan and Joan Campbell had access to
Anderson’s report well in advance of the trial.
On September 15, 1995, Pippin was convicted of capital
murder for intentionally killing more than one person during the
same criminal transaction, and for killing Elmer Buitrago during
the course of a kidnapping. Despite the presentation of
mitigating evidence during the punishment phase of his trial,5
Pippin was sentenced to death. The Texas Court of Criminal
Appeals affirmed his conviction and sentence. Pippin v. State,
No. 72,252 (Tex. Crim. App. May 21, 1997).
Pippin filed his original state habeas corpus petition on
May 18, 1998. On July 11, 2001, he filed a second petition and
supplemental memorandum of law raising several new claims. On
August 3, 2001, the state trial court entered an order construing
5 Pippin’s mitigating evidence primarily consisted of the testimony of his ex-wife and her mother that he was not a violent person. Dr. Walter Quijano, a clinical psychologist, also testified that some studies demonstrate that violent behavior decreases with an inmate’s age. Pippin does not challenge the trial court’s admission of mitigating evidence at the punishment phase in his request for a COA.
-4- both the second application and the supplemental memorandum as
successive petitions. In a per curiam order issued on February
20, 2002, the Texas Court of Criminal Appeals expressly adopted
the trial court’s findings and conclusions, denied Pippin’s first
petition on the merits, and dismissed the other two as abuses of
the writ. Ex parte Pippin, Nos. 50,613-01, -02, -03 (Tex. Crim.
App. Feb. 20, 2002) (unpublished). The Supreme Court of the
United States subsequently denied Pippin’s petition for a writ of
certiorari on October 7, 2002. Pippin v. Texas, 537 U.S. 845
(2002).
On June 21, 2002, Pippin filed his original federal habeas
petition in the District Court for the Southern District of
Texas. The district court subsequently granted Pippin’s motion
for appointment of new counsel on December 13, 2002, which
resulted in an amended petition that was filed on May 14, 2003.
In two separate memoranda and orders, issued on November 23, 2004
and January 25, 2005, respectively, the district court granted
the respondent’s motion for summary judgment to deny habeas
relief and sua sponte declined to issue a COA.6
6 In the first memorandum and order, the district court granted respondent Dretke’s motion for summary judgment on twenty-four of Pippin’s twenty-six claims. Two claims were preserved for additional limited discovery and supplemental briefing: (1) Pippin’s claim that the prosecutor failed to disclose exculpatory evidence and (2) Pippin’s claim that the state impaired his right to effective assistance of counsel during the pretrial and jury voir dire by failing to use the ballistics evidence underlying his Brady claim. The second memorandum and order subsequently dismissed both remaining claims
-5- Pippin now asks this court to grant a COA and raises several
grounds already rejected by the district court for relief: (1)
Pippin was deprived of due process of law because the prosecutor
allegedly withheld material evidence concerning the ballistics
evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963),
because the trial court failed to instruct the jury on the lesser
included offense of felony murder, and because a juror was
purportedly inattentive during his criminal trial; (2) Pippin’s
trial counsel rendered ineffective assistance by failing to
adequately examine the ballistics evidence; (3) the trial court
denied Pippin’s constitutional right to confront adverse
witnesses under the Sixth Amendment by admitting the dying
declaration of Elmer Buitrago; and (4) the district court erred
in refusing to allow Pippin the opportunity to depose the
prosecutor Julian Ramirez.
II. DISCUSSION
A. Standard of Review
Pippin’s claim is governed by the Antiterrorism and
Effective Death Penalty Act (AEDPA) because he filed his original
federal habeas petition under § 2254 on June 21, 2002, after the
AEDPA’s April 24, 1996 effective date. See Fisher v. Johnson,
174 F.3d 710, 711 (5th Cir. 1999) (citing Lindh v. Murphy, 521
U.S. 320, 326 (1997)). Under the AEDPA, a state habeas
on summary judgment.
-6- petitioner may appeal a district court’s dismissal of his
petition only if the district court or the court of appeals first
issues a COA. 28 U.S.C. § 2253(c)(1) (2004); Miller-El v.
Cockrell, 537 U.S. 322, 336 (2003) (describing a COA as a
“jurisdictional prerequisite” without which “federal courts of
appeals lack jurisdiction to rule on the merits of appeals from
habeas petitioners”); Neville v. Dretke, 423 F.3d 474, 478 (5th
Cir. 2005). In determining whether to grant a petitioner’s
request for a COA, the Supreme Court has instructed that a “court
of appeals should limit its examination to a threshold inquiry
into the underlying merit of his claims.” Miller-El, 537 U.S. at
327 (citing Slack v. McDaniel, 529 U.S. 473, 481 (2000)). “This
threshold inquiry does not require full consideration of the
factual or legal bases adduced in support of the claims. In
fact, the statute forbids it.” Id. at 336.
A COA will be granted “only if the applicant has made a
substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2) (2004). In order to meet this standard,
Pippin must demonstrate that “jurists of reason could disagree
with the district court’s resolution of his constitutional claims
or that jurists could conclude the issues presented are adequate
to deserve encouragement to proceed further.” Miller-El, 537
U.S. at 327 (citing Slack, 529 U.S. at 484). “The COA
determination under § 2253(c) requires an overview of the claims
in the habeas petition and a general assessment of their merits.”
-7- Id. at 336. Although the issuance of a COA “must not be pro
forma or a matter of course,” the petitioner satisfies the burden
under § 2253(c) by “demonstrat[ing] that reasonable jurists would
find the district court’s assessment of the constitutional claims
debatable or wrong.” Id. at 337-38. “[A] claim can be debatable
even though every jurist of reason might agree, after the COA has
been granted and the case has received full consideration, that
petitioner will not prevail.” Id. at 338. Finally, any doubt as
to whether a COA should issue in a death-penalty case must be
resolved in favor of the petitioner. Medellin v. Dretke, 371
F.3d 270, 275 (5th Cir. 2004) (per curiam); Newton v. Dretke, 371
F.3d 250, 254 (5th Cir. 2004).
In determining whether the district court’s denial of
Pippin’s petition was debatable, we must keep in mind the
deferential standard of review that the AEDPA requires a district
court to apply when considering a petition for habeas relief.
See Brown v. Dretke, 419 F.3d 365, 371 (5th Cir. 2005) (“With
respect to the review of factual findings, AEDPA significantly
restricts the scope of federal habeas review.”); see also Miniel
v. Cockrell, 339 F.3d 331, 336 (5th Cir. 2003). Under the AEDPA,
a federal court is not to grant a writ of habeas corpus “with
respect to any claim that was adjudicated on the merits in State
court proceedings” unless it determines that the state court’s
adjudication “resulted in a decision that was contrary to, or
-8- 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 state court’s decision is
contrary to Supreme Court precedent if: (1) “the state court
arrives at a conclusion opposite to that reached by [the Supreme
Court] on a question of law”; or (2) “the state court confronts
facts that are materially indistinguishable from a relevant
Supreme Court precedent and arrives at a result opposite to [that
of the Supreme Court].” Williams v. Taylor, 529 U.S. 362, 405
(2000) (opinion of O’Connor, J.) (interpreting the statutory
language “contrary to, or involved an unreasonable application
of”). “A state court’s decision is an unreasonable application
of clearly established federal law whenever the state court
identifies the correct governing legal principle from the Supreme
Court's decisions but applies that principle to the facts of the
prisoner's case in an objectively unreasonable manner.” Young v.
Dretke, 356 F.3d 616, 623 (5th Cir. 2004) (internal quotation
marks omitted); accord Williams, 529 U.S. at 409. “An
unreasonable application may also occur if ‘the state court
either unreasonably extends a legal principle from [Supreme
Court] precedent to a new context where it should not apply or
unreasonably refuses to extend that principle to a new context
where it should apply.’” Young, 356 F.3d at 623 (alteration in
original) (quoting Williams, 529 U.S. at 407).
-9- “[A] determination of a factual issue made by a State court
shall be presumed to be correct” unless the petitioner rebuts the
presumption “by clear and convincing evidence.” 28 U.S.C.
§ 2254(e)(1). This presumption of correctness attaches not only
to explicit findings of fact, but also to “unarticulated findings
which are necessary to the state court’s conclusions of mixed law
and fact.” Pondexter v. Dretke, 346 F.3d 142, 148 (5th Cir.
2003) (quoting Valdez v. Cockrell, 274 F.3d 941, 948 n.11 (5th
Cir. 2001)). A writ of habeas corpus may issue if the state
court’s adjudication of a claim “resulted in a decision that was
based on an unreasonable determination of the facts in light of
the evidence presented in the State court proceeding.” 28 U.S.C.
§ 2254(d)(2).
B. Due Process Claims
1. The Brady Claim
Pippin asserts that his constitutional rights were violated
by the prosecutor’s alleged suppression of exculpatory evidence
in violation of Brady v. Maryland, 373 U.S. 83 (1963). These
allegations of prosecutorial misconduct involve the disputed
contents of the state’s ballistics report in this case. At
trial, Houston Police firearms examiner Charles Anderson
testified about two sets of bullets; one set was recovered from
Elmer Buitrago’s body and one set from Fabio Buitrago’s body. In
addition, Anderson testified about cartridge cases recovered from
-10- the crime scene. Anderson testified that the cartridge cases
were all fired from the same gun. He also testified that two of
the bullets found in the body of Fabio Buitrago were fired from
the gun that fired one of the two bullets found in the body of
Elmer Buitrago. During its case-in-chief, the defense recalled
Anderson, who then testified that two of the bullets recovered
from Elmer Buitrago came from different guns. Anderson explained
that this fact was not clearly stated in his report, but that he
had discussed this discrepancy with the prosecutor before he
testified.
Anderson’s affidavit stated that the defense ballistics
expert Floyd McDonald had access to and examined the bullet
fragments before trial. Both experts concluded that the bullets
were fired by two separate guns. The prosecutor Julian Ramirez
has consistently asserted that he employed an open-file policy
with the defense during the course of this trial and relied upon
the same written ballistics reports that were provided to the
defense counsel, which did not clearly disclose the involvement
of a second gun.
Pippin now contends that the prosecutor withheld this
information from the defense. Thus, Pippin asserts that this
court should issue a COA because the district court’s resolution
of his Brady claim was debatable among jurists of reason. The
Texas Court of Criminal Appeals held that Pippin failed to
-11- establish the materiality of the evidence that two guns were
involved. In resolving this claim of error, the court observed
that “failure to disclose evidence favorable to the defendant is
constitutional error 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.” Pippin v. State,
No. 72,252, slip op. at 21 (citing United States v. Bagley, 473
U.S. 667, 682 (1985)). The court reasoned that (1) defense
counsel had learned about the evidence in time to cross-examine
Anderson and (2) the jury had Elmer Buitrago’s eyewitness
statement identifying Pippin as the shooter. Id. at 21-22.
Therefore, the court found that Pippin had failed to demonstrate
a “reasonable probability” that the result of the proceeding
would have been different to support his Brady claim.
Although finding the facts somewhat unclear, the district
court correctly focused on the state court’s resolution of the
alleged Brady violation to determine whether it was contrary to,
or involved an unreasonable application of, clearly established
federal law. In examining the state court’s findings, the
district court noted that while Anderson’s ballistics report
fails to explicitly mention the possibility of a second gun, the
prosecution’s theory that Pippin was responsible for both deaths
does not necessarily conflict with the available evidence from
-12- the ballistics report.7 According to the district court, the
report did clearly state that Anderson could not identify two of
the bullets (designated EB-3 and EB-4) from Fabio Buitrago’s
body. The report also affirmatively indicated, however, that
bullets EB-1 and EB-2 recovered from Fabio Buitrago’s body were
fired from the same gun as one of the two bullets recovered from
Elmer Buitrago’s body.
To establish a Brady claim, the petitioner must demonstrate:
(1) the prosecutor suppressed evidence, (2) favorable to the
defense, and (3) material to guilt or punishment. Brady, 373
U.S. at 87; Miller v. Dretke, 404 F.3d 908 (5th Cir. 2005). The
suppressed evidence is material 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); see also Kyles v.
Whitley, 514 U.S. 419, 437 (1995) ([T]he prosecution, which alone
can know what is undisclosed, must be assigned the consequent
responsibility to gauge the likely new effect of all such
evidence and make disclosure when the point of ‘reasonable
7 A claim that is largely speculative with respect to the effect of the allegedly exculpatory evidence on the jury’s ultimate determination of guilt or innocence cannot support a Brady violation. See Medellin v. Dretke, 371 F.3d 270, 281 (5th Cir. 2004) (declining to issue a COA where the Brady claim depended upon a “substantial degree of speculation”); Hughes v. Johnson, 191 F.3d 607, 630 (5th Cir. 1999) (denying an evidentiary hearing to investigate a “purely speculative” Brady claim underlying the petitioner’s request for a COA).
-13- probability’ is reached.”). Pippin contends that the fact that
the defense had a separate ballistics expert does not obviate the
state’s affirmative obligation to disclose material exculpatory
evidence under Brady. The state argues, however, that the
evidence that two guns had been used to shoot Elmer Buitrago was
equally available to defense expert Floyd McDonald. See Rector
v. Johnson, 120 F.3d 551, 558-59 (5th Cir. 1997) (“The State has
no obligation to point the defense toward potentially exculpatory
evidence when that evidence is either in the possession of the
defendant or can be discovered by exercising due diligence.”).
Moreover, the state maintains that Pippin’s arguments more
accurately question the competence of his own expert witness,
rather than demonstrate any negligent or intentional withholding
of evidence on the part of the prosecution.
Because the defense ballistics expert Floyd McDonald had
full access to the ballistics evidence and an opportunity to
conduct his own tests before trial, we conclude that the district
court’s resolution of Pippin’s Brady claim is not debatable among
jurists of reason. As the district court pointed out,
notwithstanding the confusion in Anderson’s report, the record
does not show that the prosecution actually withheld any
exculpatory evidence from the defense during the trial to satisfy
the first prong of the Brady inquiry. See United States v.
Agurs, 427 U.S. 97, 109 (1976) (noting that “there is ‘no
constitutional requirement that the prosecution make a complete
-14- and detailed accounting to the defense of all police
investigatory work on a case’”) (quoting Moore v. Illinois, 408
U.S. 786, 795 (1972)). Although the district court acknowledged
that due process is offended when the prosecution withholds
exculpatory evidence, the state “bears no responsibility to
direct the defense toward potentially exculpatory evidence that
either is in the possession of the defense or can be discovered
through the exercise of reasonable diligence.” Bigby v. Dretke,
402 F.3d 551, 574-75 (5th Cir. 2005) (citing Rector, 120 F.3d at
558-59 (5th Cir. 1997)); see also Kutzner v. Cockrell, 303 F.3d
333, 336 (5th Cir. 2002) (explaining that “defendant must bear
the responsibility of failing to conduct a diligent
investigation” when the exculpatory evidence is available to both
defense and prosecution); United States v. Marrero, 904 F.2d 251,
261 (5th Cir. 1990) (noting that Brady “does not place any burden
upon the Government to conduct a defendant’s investigation or
assist in the presentation of the defense’s case”); United States
v. Brown, 628 F.2d 471, 473 (5th Cir. 1980) (“[W]hen information
is fully available to a defendant at the time of trial and his
only reason for not obtaining and presenting the evidence to the
Court is his lack of reasonable diligence, the defendant has no
Brady claim.”). Indeed, the district court concluded that
Pippin’s own expert Floyd McDonald was provided sufficient
opportunity to independently examine the ballistics evidence
before trial. Thus, we decline to issue a COA on this ground.
-15- 2. The Jury Instruction Claim
Pippin next argues that he was denied due process by the
trial court’s refusal to instruct the jury on the lesser included
offense of felony murder. Specifically, Pippin contends that his
own testimony at trial provided a basis for the jury to
rationally find him guilty only of felony murder, rather than
capital murder. He maintains that the district court’s
conclusion on the propriety of his jury instruction is debatable
among reasonable jurists and accordingly asks this court to issue
a COA on this ground.
The Texas Court of Criminal Appeals found no due process
violation in the trial court’s jury instruction. Due process
requires that a defendant receive a charge on a lesser-included
offense if: (1) the lesser offense is included within the proof
necessary to establish the offense charged, and (2) there exists
some evidence in the record that would permit a jury rationally
to find, if the defendant is guilty, he is guilty only of the
lesser offense. Pippin v. State, No. 72,252, slip op. at 25
(citing Wolfe v. State, 917 S.W.2d 270, 278 (Tex. Crim. App.
1996)). Although the court acknowledged that felony murder is a
lesser included offense of capital murder under the first prong
of the analysis, the court held that there was no due process
violation because Pippin had received a jury charge that
incorporated the lesser-included offenses of aggravated
-16- kidnapping and kidnapping.
In reaching its conclusion, the state court focused on
Pippin’s testimony at trial that he was involved only in the
abduction and confinement for several days of the victims.
Throughout his trial, Pippin steadfastly maintained that he
played absolutely no role in the actual killings. The court
concluded that the actions he admitted to at trial “d[id] not
constitute the commission or attempted commission of an ‘act
clearly dangerous to human life that cause[d] the death’ of one
or both of the victims.” Id. at 27 (quoting TEX. PENAL CODE
§ 19.02(a)(3)). Therefore, the court found no error in trial
court’s decision to provide the lesser-included offenses of
aggravated kidnapping and kidnapping, rather than felony murder,
in the jury instructions.
Following the same reasoning, the district court determined
that the state court’s ruling was not contrary to, or an
unreasonable application of, clearly established federal law.
Due process requires a jury charge on a lesser included offense
“when the evidence unquestionably establishes that the defendant
is guilty of a serious, violent offense–-but leaves some doubt
with respect to an element that would justify conviction of a
capital offense . . . .” Beck v. Alabama, 447 U.S. 625, 637
(1980). A lesser included offense charge serves to protect the
jury (and, by extension, the criminal defendant) from the false
dichotomy of choosing between convicting on the capital charges
-17- or outright acquittal when a “third option” of a lesser included
offense exists. Id. As the district court correctly noted,
however, because the jury in Pippin’s case was instructed on the
lesser included offense of aggravated kidnapping, the due process
concerns at the heart of Beck were not implicated.
The district court found that the state court’s conclusion
that this jury instruction did not run afoul of the “fundamental
concern in Beck” was not contrary to, nor an unreasonable
application of, clearly established federal law. Schad v.
Arizona, 501 U.S. 624, 646 (1991) (clarifying the requirements of
Beck to provide an alternative lesser included offense, but not
necessarily all conceivable ones, in the jury charge to comport
with due process); Livingston v. Johnson, 107 F.3d 297, 313 (5th
Cir. 1997) (declining to issue a COA where the trial court did
not need to provide a “wider menu of jury instructions” under
Beck and Schad). Therefore, Pippin has not made a substantial
showing of the denial of a constitutional right that would merit
the issuance of a COA under § 2253(c)(2). In light of the
clarifying language in Schad, we conclude that jurists of reason
could not debate the district court’s resolution of this claim
and deny Pippin’s request for a COA on this issue as well.
3. The Inattentive Juror Claim
Pippin argues that the presence of an inattentive juror
during his criminal trial violated his constitutional right to
-18- due process. More specifically, Pippin raised a claim in his
state habeas application that a member of the jury was reading a
book during part of his defense counsel’s presentation. Pippin
relied upon the single uncorroborated affidavit of his brother-
in-law Michael L. Martin to support this claim. During the state
habeas proceedings, both Pippin’s attorneys and the prosecutor
submitted sworn statements flatly rejecting this observation and
noting that the small size of the courtroom would have made it
impossible for such behavior to escape notice. In weighing the
credibility of the affiants, the state habeas court found no due
process violation for the allegedly inattentive juror. When
Pippin raised the same claim in his federal habeas petition, the
district court concluded that Martin’s affidavit was insufficient
to rebut the presumption of correctness afforded to the state
habeas court’s factual finding under § 2254(e)(1). See 28 U.S.C.
§ 2254(e)(1) (providing that “a factual issue made by a State
court shall be presumed to be correct” and that “[t]he applicant
shall have the burden of rebutting the presumption of correctness
by clear and convincing evidence”).
In light of the deferential standard under § 2254(e)(1),
reasonable jurists could not debate the district court’s
conclusion that the state habeas court’s determination was not
contrary to, or an unreasonable application of, clearly
established federal law. A trial court’s credibility
determinations made on the basis of conflicting evidence are
-19- entitled to a strong presumption of correctness and are
“virtually unreviewable” by the federal courts. Moore v.
Johnson, 194 F.3d 586, 605 (5th Cir. 1999) (citing Marshall v.
Lonberger, 459 U.S. 422, 432 (1983)). Therefore, the district
court correctly deferred to the state court’s reasonable weighing
of this conflicting evidence. We decline to issue a COA on this
claim.
C. Ineffective Assistance of Counsel Claim
Pippin’s claim of ineffective assistance of counsel is
closely related to his Brady claim. Specifically, Pippin argues
that the state’s failure to disclose evidence that two guns had
been used to shoot the victim rendered his counsel unable: (1) to
effectively conduct voir dire; (2) to elicit a timely confession
from Aaron Loweth, who participated in the kidnappings and
allegedly boasted to acquaintances after the killings that he had
“popped” someone; (3) to effectively impeach Abraham Pacheco’s
testimony; and (4) to negotiate a plea agreement to a lesser
offense. Beyond reiterating its arguments with respect to the
Brady claim, the state maintains that the strategic trial
decisions of Pippin’s attorneys in dealing with the testimony of
Loweth and Pacheco cannot support an ineffective assistance
claim.8 The state also disputes that the evidence of a second
8 With respect to Loweth’s testimony, the state questions whether the existence of a second weapon would have exculpated Pippin in any manner. Loweth testified that Pippin instructed him to dispose of the murder weapon following the shootings, and
-20- gun would have placed Pippin in a better pretrial bargaining
position.
Looking to the state habeas court’s reasoning, the district
court rejected Pippin’s claim of ineffective assistance of
counsel on two separate grounds. First, the district court
agreed with the state habeas court’s finding that the claims were
procedurally defaulted. See Sayre v. Anderson, 238 F.3d 631, 634
(5th Cir. 2001) (“When a state court declines to hear a
prisoner’s federal claims because the prisoner failed to fulfill
a state procedural requirement, federal habeas is generally
barred if the state procedural rule is independent and adequate
to support the judgment.”). Specifically, the state habeas court
found that Pippin’s claims were not properly before the court
because they were first presented in his pro se state habeas
application, even though his counsel subsequently incorporated
them into a supplemental application. Under Texas law, state
habeas petitioners are not entitled to hybrid representation.
Rudd v. State, 616 S.W.2d 623, 625 (Tex. Crim. App. 1981)
(holding that a defendant is not entitled to hybrid
representation). The district court recognized that the state
it is difficult to comprehend how a second gun would have shifted blame away from Pippin or harmed the state’s case in any material way. Moreover, as the district court noted, Pippin was not convicted of the homicide about which Loweth boasted to his girlfriend. Therefore, in accordance with the state habeas court’s decision, the district court concluded that the decision to avoid placing this information before the jury was a valid and reasonable trial strategy entitled to deference.
-21- habeas court considered the merits of the ineffective assistance
of counsel claim only in the alternative. The district court
held that the state habeas court’s finding was not contrary to,
or an unreasonable application of, clearly established federal
law. Because reasonable jurists could not debate the district
court’s conclusion in this regard, we will not issue a COA for
ineffective assistance of counsel in this case.
Although finding the claims procedurally defaulted, the
district court nonetheless examined the state habeas court’s
treatment of Pippin’s various claims of ineffective assistance of
counsel under the familiar test established in Strickland v.
Washington, 466 U.S. 668 (1984), and found that the state court’s
alternative conclusion that Pippin had not established a Sixth
Amendment violation was not contrary to, or an unreasonable
application of, clearly established federal law. Although the
district court’s conclusion is not, in our view, debatable among
jurists of reason, we pretermit any discussion of it in view of
the adequacy of the procedural default determination.
We decline to issue a COA on Pippin’s ineffective assistance
of counsel claims.
D. Sixth Amendment Confrontation Claim
Pippin argues that the admission into evidence of Elmer
Buitrago’s dying declaration to Officer Parodi before the
ambulance arrived identifying Pippin as the shooter violated
-22- Pippin’s right to confront his accuser under the Sixth Amendment.
Again, Pippin attempted to raise this claim for the first time in
his pro se state habeas application, which was dismissed as an
abuse of the writ. Ex parte Pippin, Nos. 50,613-01, -02, -03.
Following the reasoning provided in the state habeas court’s
decision, the district court accordingly found the claim to be
procedurally defaulted.
Even if not procedurally defaulted, the district court’s
habeas review did not show that the state court’s findings were
contrary to, or involved an unreasonable application of, clearly
established federal law. In fact, the district court noted that
dying declarations and excited utterances are well-established
exceptions to the hearsay rule and are admissible in evidence.9
See FED. R. EVID. 803(2), 804(b)(2). Contrary to Pippin’s
argument, the district court’s review of the trial testimony of
Officer Parodi clearly demonstrated that the factual predicate
for the dying declaration exception to the hearsay rule had been
established.10 Pippin has offered nothing beyond a cursory
9 The Texas Court of Criminal Appeals relied exclusively upon the excited utterance exception to the hearsay rule and did not consider Pippin’s argument with respect to the dying declaration exception. Pippin v. State, No. 72,252, slip op. at 14. 10 In order to be admissible under the dying declaration exception, the statement must be made while the declarant is conscious of impending death and believes he has no hope of recovery. Herrera v. Collins, 904 F.2d 944, 949 n.5 (5th Cir. 1990). Pippin does not argue that Elmer Buitrago was unaware of his impending death when he identified Pippin as the shooter.
-23- historical survey of the Confrontation Clause to suggest that we
should transform a matter of state evidentiary law into a federal
constitutional issue worthy of additional review. See Herrera,
904 F.2d at 949 (finding no error in the admission of dying
declaration testimony and noting that “this Circuit resists
challenges to evidentiary matters by collateral habeas corpus
review”). We conclude that reasonable jurists could not debate
the district court’s resolutions of this claim and accordingly
deny Pippin’s request for a COA.
E. Denial of Right to Depose the Prosecutor Claim
Finally, the issue of whether the district court should have
allowed Pippin to take a particular deposition does not raise any
constitutional issues--indeed, Pippin does not even argue that it
does--and it is not, therefore, the proper subject of an
application for a COA. Since we have concluded that a COA will
not issue as to any of Pippin’s constitutional claims, we have no
jurisdiction to consider the deposition matter. See 28 U.S.C.
§ 2253(c).
III. CONCLUSION
Because Pippin has not shown that reasonable jurists could
debate the district court’s resolution of his various
constitutional claims, we DENY Pippin’s application for a COA.
Instead, he relies on an exceptionally broad construction of the Sixth Amendment’s Confrontation Clause protections that has no basis in the Supreme Court’s law or this circuit’s precedent.
-24-