* Pursuant to 5 TH 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH CIR

. R. 47.5.4.

### IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-70003

ALVIN ANDREW KELLY Petitioner-Appellant v. NATHANIEL QUARTERMAN, Director, Texas Department of Criminal Justice, Correctional Institutions Division Respondent-Appellee

Appeal from the United States District Court for the Eastern District of Texas, Beaumont

USDC No. 1:00CV636
Before BARKSDALE, BENAVIDES, and DENNIS, Circuit Judges. PER CURIAM: * Petitioner Alvin AndrewKelly (Kelly) appeals thedenial offederal habeas relief after remand for an evidentiary hearing with respect to his claims of knowing use of perjured testimony and failure to disclose material exculpatory evidence. The sole issue on appeal is whether the district court clearly erred in finding that a witness did not recant her trial testimony. We AFFIRM. United States Court of Appeals

Fifth Circuit 

### F I L E D April 10, 2008 Charles R. Fulbruge III ClerkNo. 07-70003

1 Vickery was Cynthia’s first husband. 2 I. BACKGROUND On May 1, 1984, the bodies ofJerry Morgan, his wife Brenda, and their twenty-twomonth old son Devin werediscovered in their home in Gregg County, Texas. All three had suffered fatal gunshot wounds. Jerry and Brenda Morgan
were City Marshal Reserve Officers. The Morgans’ car, several guns and other items had been taken. At the time of the murders, Kelly was married to Cynthia Kelly (Cynthia). The murders went unsolved for six years. In 1990, a man named Chris Vickery called the Gregg County Sheriff’s Office and stated that his former wife, Cynthia, had information. 1 At this point in time, Cynthia and Kelly were divorced, and Cynthia was living in Michigan. Kelly was serving a 30-year sentence for an unrelated murder in Texas. The authorities interviewed Cynthia and after further investigation obtained an indictment charging Kelly with the capital murder of Devin Morgan during the course of the robbery of Jerry Morgan. At trial, Kelly’s brother Steven Kelly (Steven) testified that he and Kelly
were in the business of selling drugs. Steven had witnessed Kelly threaten to kill Jerry Morgan. Steven also testified that Kelly confessed to Steven that he killed the Morgans. Cynthia testified that on the night of the murders, after hearing gunfire, she entered the Morgan home and witnessed Kelly shoot Brenda and Devin Morgan. Kelly was convicted of capital murder in Texas and sentenced to death. After exhausting his state habeas remedies, Kelly filed a petition for federal habeas relief. The district court denied relief, and Kelly appealed. This Court affirmed in part and reversed in part, finding that an evidentiary hearing was necessary with respect to whether Cynthia had recanted her testimony in a conversation with Kelly’s sister, Nancy BrownNo. 07-70003

2A more detailed history ofthis case can be found in our prior opinions. Kellyv. Dretke, 2006WL 1049049 (5th Cir. April 20, 2006); Kelly v. Dretke, 111 F. App’x. 199 (5th Cir. 2004); Kelly v. Cockrell, 72 F. App’x 67 (5th Cir. 2003). 3 (Nancy). 2 On remand, after conducting an evidentiary hearing, the district court found that Cynthia had not recanted her trial testimony. The district court denied reliefand granted a Certificate ofAppealability pursuant to 28 U.S.C. § 2253(c)(2). Kelly v. Quarterman, 2007 WL 541941 (E.D. Tex. Feb. 15, 2007). Kelly now appeals. II. STANDARD OF REVIEW Kelly filed his § 2254 petition for a writ ofhabeascorpusafter theeffective date o f the Antiterrorism and Effective Death Penalty Act (AEDPA). The petition, therefore, issubject toAEDPA. SeeLindh v. Murphy, 521 U.S. 320, 336 (1997). Pursuant to the federal habeas statute, as amended by AEDPA, 28 U.S.C. § 2254(d), we defer to a state court’s adjudication ofa petitioner’s claims
on the merits unless the state court’s decision was: (1) “contrary to, or involved
an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States”; or (2) “resulted in a decision that
was based on an unreasonable determination ofthe facts in light ofthe evidence presented in the State court proceeding.” A state court’s decision is deemed contrary to clearly established federal law if it reaches a legal conc l usion in direct conflict with a prior decision of the Supreme Court or if it reaches a different conclusion than the Supreme Court based on materially indistinguishable facts. Williamsv. Taylor, 529 U.S. 362, 404-08 (2000). A state court’s decision constitutes an unreasonable application of clearly established federal law if it is objectively unreasonable. Id. at 409. Additional ly, here, the district court conducted an evidentiary hearing and made findings. We review the federal district court’s findings of fact for clearNo. 07-70003

4 error and conclusions of law de novo. H orn v. Quarterman, 508 F.3d 306, 311 (5th Cir. 2007), petition for cert. filed, (U.S. Feb. 6, 2008) (No. 07-9537). III. ANALYSIS In support of Kelly’s claims that the State (1) used perjured testimony to convict him and (2) failed to disclose material exculpatory evidence, he alleged that Cynthia had recanted her trial testimony. More specifically, Kelly alleged that Cynthia told his sister, Nancy, that he did not kill Devin Morgan. During the evidentiary hearing, Nancy testified that while she was visiting Kelly on death rowshe met Tom Sullivan, an attorney, who asked her: “Do you know anything you can do to help your brother?” He also said Kelly needed such help “quickly.” Nancy testified as follows: I had an impression as I prayed about [Kelly’s] case and asked the Lord toshowme what had really happened to my brother and what the truth was in this case. And I had an impression in my heart one morning from God that if I would find Cynthia that she would bare her heart to me, that it was more than what was on the paper. Although Nancy had met Cynthia on only one occasion, she obtained Cynthia’s address and she and her husband Conley Brown (Conley) traveled to Cynthia’s house in Georgia for an unannounced visit. Their visitwascordial and lasted for several hours. Nancy testified that while she and Cynthia were alone, Cynthia said: “This is between you, me and God.” Cynthia then told Nancy that Kelly did not kill the baby, Devin Morgan. Conley testified at the hearing that he and his wife Nancy went to visit Cynthia “becauseafter talking to [Kelly] wewereconvinced that he was innocent and that [Cynthia] had lied on the stand” at Kelly’s murder trial. Conley also thought Cynthia had lied based on her “past character,” presumably referring to her past drug use. Conley further testified that after the visit they wrote letters to Cynthia in an attempt to “get her to come forth with the truth ofwhat she had told us.” After her refusal to come to Texas and tell the authoritiesNo. 07-70003

5 Kelly had not killed the baby, Conley testified that they did not have any more contact with Cynthia. Kelly testified at the evidentiary hearing that he had never met the Morgansand had not killed them. He admitted his involvement in the unrelated murder case, in which he had pleaded guilty. He also admitted that he had been
a drug dealer but claimed to have “made a conversion to Christ.” He claimed that on the night ofthe instant murders, he was changing the engine in a truck
w i th a man named Johnny Waller. Kelly claimed that Cynthia and her sister Violet Brownfield lied in their testimony at his trial. He also claimed his brother Steven lied while testifying at his murder trial. Cynthia testified that Nancy and Conley did visit her at her home in Georgia but denied sayi ng that Kelly did not shoot the baby. She also denied telling anyone that she had shot any of the victims or that she had been threatened by law enforcement authorities. Cynthia did admit that she previously had used drugs but had not for six years. Russell Potts, the chief investigator for the Gregg County District Attorney’s Of

fice, testified that he traveled to Michigan to meet with Cynthia during his investigation with respect to the Morgan case. He testified that Cynthia was cooperative and willing to testify but hesitant because of her fear ofretaliation from Kelly. He did not threaten Cynthia and was not aware of any other law enforcement officer threatening her. Cynthia’s sister, Beverly Frank (Frank) testified by deposition that she had previously signed an affidavit in which she stated that Cynthia had claimed to have killed Jerry Morgan. Frank initially believed Cynthia’s claim but later decided itwas not true. Frank explained that Cynthia had made the claim when shewasangry and trying toscare Frank. Cynthia was angry because Frank was trying tostop Cynthia’s drug use. Frank testified that Cynthia was not capable of killing anyone.No. 07-70003

6 After the hearing, thedistrict court issued an opinion finding that Cynthia had not recanted her trial testimony. The district court found that: [T]he credibility (or lack thereof) ofthe witnesses who testified was not obvious from either their statements or their demeanor. The Court therefore considered the testimony in light of the entire record, which supported [Cynthia] slightly more than Nancy Brown. In addition, the similarity between Nancy Brown’s testimony ofher encounter with [Cynthia] and her testimony about the vision she experienced while prayi ng for Kelly suggests to the Court that Nancy Brown’s memory of [Cynthia’s] recantation arose from that vision, rather than from reality. Finally, the Court noted a disc repancy between Nancy Brown’s and Conley Brown’s testimony: Conley Brown testified that [Cynthia] made some of the same statements to him and hiswife together that Nancy Brown testified [Cynthia] made to her only in private . . . .
The Court finds by a preponderance of the evidence that Cynthia

. . . did not recant her trial testimony in her conversations with Nancy Brown and/or Conley Brown. Specifically, the Court finds that [Cynthia] did not say that Kelly did not kill the Morgan infant; did not say that law enforcement was involved in the murder[;] and did not say that the reason she testified against Kelly at his trial was because she had been threatened by law enforcement with harm, to herself and to her child Alvin Jr., ifshe refused to do so. Kelly, 2007 WL 541941 at *5. As previously set forth, we review findings of fact for clear error and conclusions of law de novo. H orn, 508 F.3d at 311. Our review for clear error with respect tocredibility determinations isvery deferential because thedistrict court observed the witnesses testify. United States v. Casteneda, 951 F.2d 44, 48 (5th Cir. 1992). “We, however, will intervene, and declare testimony incredible as a matter oflaw, ‘when testimony is so unbelievable on its face that it defies physical laws.’” I d. (quoting United States v. Lindell , 881 F.2d 1313, 1322 (5th Cir. 1989)).No. 07-70003

3 We note that although respondent argues that Kelly’s claims are procedurally barred, we deny relief based on the merits of the claim. See Busby v. Dretke , 359 F.3d 708, 720 (5th Cir. 2004) (explaining thatcourtsneed not “invariably” consider thequestion ofprocedural default before reaching the merits). 7 We have reviewed the record of the evidentiary hearing and there is evidence to support the district court’s factual findings. Kelly falls woefully short ofdemonstrating clear error. In light of the finding that Cynthia did not recant her trial testimony, Kelly has not shown that the state court’s rejection of his claims of knowing use of perjured testimony and failure to disclose material exculpatory evidence are objectively unreasonable. 3 The district court’s judgment is AFFIRMED.