* 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.

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 Andrew Kelly (Kelly) appeals the denial of federal 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

Clerk
No. 07-70003

1 Vickery was Cynthia’s first husband. 

2

I. BACKGROUND

On May 1, 1984, the bodies of Jerry Morgan, his wife Brenda, and their

twenty-two month old son Devin were discovered 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 Brown
No. 07-70003

2 A more detailed history of this case can be found in our prior opinions. Kelly v. Dretke,

2006 WL 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 relief and granted a Certificate of Appealability 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 of habeas corpus after the effective

date of the Antiterrorism and Effective Death Penalty Act (AEDPA). The

petition,therefore, is subjectto AEDPA. See Lindh 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 of a 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 of the facts in light of the 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 conclusion 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. Williams v. 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. 

Additionally, here, the district court conducted an evidentiary hearing and

made findings. We review the federal district court’s findings of fact for clear
No. 07-70003

4

error and conclusions of law de novo. Horn 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 row she 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 to show me 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 visit was cordial 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 “because after talking to [Kelly] we were convinced 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 of what

she had told us.” After her refusal to come to Texas and tell the authorities
No. 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

Morgans and 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 of the instant murders, he was changing the engine in a truck

with 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 saying 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 Office, 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

of retaliation 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 affidavitin which she stated that Cynthia had claimed

to have killed Jerry Morgan. Frank initially believed Cynthia’s claim but later

decided it was nottrue. Frank explained that Cynthia had made the claim when

she was angry and trying to scare Frank. Cynthia was angry because Frank was

trying to stop Cynthia’s drug use. Frank testified that Cynthia was not capable

of killing anyone. 
No. 07-70003

6

After the hearing,the district courtissued an opinion finding that Cynthia

had not recanted her trial testimony. The district court found that:

[T]he credibility (or lack thereof) of the 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 of her

encounter with [Cynthia] and her testimony about the vision she

experienced while praying 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

discrepancy between Nancy Brown’s and Conley Brown’s testimony:

Conley Brown testified that [Cynthia] made some of the same

statements to him and his wife 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., if she

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. Horn, 508 F.3d at 311. Our review for clear error

with respectto credibility determinations is very deferential because the district

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 of law, ‘when testimony is so unbelievable on its face that

it defies physical laws.’” Id. (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 that courtsneednot“invariably” consider the questionof procedural

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 of demonstrating 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.