* Local Rule 47.5.1 provides: "The publication of opinions that have no

precedential value and merely decide particular cases on the basis of wellsettled principles of law imposes needless expense on the public and burdens on

the legal profession." Pursuant to that rule, the court has determined that this

opinion should not be published.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 95-30302

Summary Calendar

_______________

HERBERT H. WILLIAMS,

Petitioner-Appellant,

VERSUS

BURL CAIN,

Acting Warden, Louisiana State Penitentiary,

and

RICHARD IEYOUB,

Attorney General, State of Louisiana,

Respondents-Appellees.

_________________________

Appeal from the United States District Court

for the Eastern District of Louisiana

(93 CV 4078)

_________________________

August 10, 1995

Before KING, SMITH, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Claiming that exculpatory evidence was withheld in violation

of Brady v. Maryland, 373 U.S. 83 (1963), Herbert Williams appeals

the denial of his state prisoner's petition for writ of habeas
2

corpus filed pursuant to 28 U.S.C. § 2254. Finding no error, we

affirm.

I.

Glenn Bates testified that he and his brother, Timothy Lewis,

were walking through the Iberville housing project in New Orleans

on their way to the movies around 8 p.m. on December 5, 1985, when

they noticed a group of people selling drugs. The lighting in the

area was fair, and Bates was able to see the faces of the men in

the group. Bates and Lewis declined the group's solicitation to

purchase drugs.

As Bates and Lewis neared Bienville Street, the drug sellers

pulled guns. The group approached Bates and Lewis. Bates believed

there were four or five men in the group, and he was able to see

four or five faces. The men robbed Bates and Lewis. Bates got a

good look at the robbers and identified Herbert Williams as one of

them. Bates identified a blue-hooded jacket as worn by Williams.

Bates testified that officers of the New Orleans Police

Department ("NOPD") came to his residence on December 16 and showed

him three groups of photographs and specifically identified one

photograph from the second group and one from the third group as

photos of one of his robbers. Bates had no doubts regarding the

photo in the second group.

On cross-examination, Bates testified that he saw the face of

the man in the photos during the robbery. He had never seen the

man before then. He was sure, when viewing the photographs, that
3

the man he identified was the man who had robbed him.

Bates testified that the man in the photos had worn the bluehooded jacket during the robbery. Bates was unable to describe the

man to the police immediately after the robbery, beyond describing

him as wearing a blue jacket. Bates identified the photographs on

December 16 without prompting by the police, however.

NOPD Detective Dwight Deal testified that he presented the

photographic line-up to Bates and Lewis. According to Deal, Bates

selected a photograph of Williams. Deal obtained arrest warrants

for the suspects Bates and Lewis identified. Williams was arrested

in the Iberville project on December 22. Williams was wearing the

blue-hooded jacket when he was arrested.

Deal testified that he notified William of his Miranda rights

orally and in writing. According to Deal, Williams acknowledged

that he understood those rights. He signed the written form

informing him of his rights. According to Deal, neither he nor

his partner coerced Williams or made any promises to induce

Williams to sign the form.

Deal testified that Williams orally confessed his involvement

in the robbery. He identified three other individuals as his

partners in crime, including two individuals identified in the

photographic line-up. He also named a fourth individual, Leon

Johnson. Williams helped the police find Johnson, then Williams

and Johnson helped the police find Leroy Crosby, who resided in the

Calliope housing project. The police took Williams, Johnson, and

Crosby to a downtown police station.
4

According to Deal, Williams dictated a written confession to

him there. Officer Emelda Tony Blanco typed the confession as

Williams spoke. Deal testified that the form on which the

confession was typed carried another written Miranda warning.

According to Deal, Williams signed all three pages of the written

confession. Williams understood his rights and waived them. Deal

did not coerce Williams. Nor did he promise Williams anything to

obtain the written confession. On cross-examination, Deal

testified that Bates identified Williams without hesitation but

that Lewis did not.

The state trial court read Williams's confession to the jury.

In addition to admitting his participation in the December robbery,

Williams stated that he had needed $200-300 per day to sustain his

heroin habit. In response to a question regarding whether he was

coerced or threatened into making his statement, Williams stated

that he was making the statement of his own free will. Williams

signed the statement.

Lewis testified that he and Bates were robbed in the Iberville

project on December 5, while on their way to the movies. Four or

five men with guns approached Lewis and Bates. Lewis threw his

wallet onto the ground. Lewis testified that he got a good look at

only two of the robbers.

Lewis ran to the police station and reported the robbery but

did not name Williams as a suspect. He identified two photos in

the first two sets of photos on December 16 and no photos in the

third set.
5

Blanco testified that she typed Williams's confession.

According to Blanco, Williams understood his rights. Nobody

coerced Williams or made promises to him to obtain the statement.

NOPD Detective Tyrrone Martin testified that he and Detective

Woolfork arrested Williams in the Iberville project on December 22.

Williams was wearing the blue-hooded sweatshirt, blue jeans, and

white tennis shoes. According to Martin, the police had been told

that Williams always wore those items of clothing.

Martin testified that Deal informed Williams of his rights.

Williams indicated that he understood those rights. According to

Martin, nobody threatened, intimidated, or coerced Williams into

making a statement. Nobody promised Williams anything or used

physical force against him. Martin was able to hear part of

Williams's confession. According to Martin, Deal again advised

Williams of his rights before Williams gave his written confession.

Williams testified that he was arrested on December 22. The

arresting officer did not inform him of the charges against him but

merely asked him his name and threw him into a police car.

Williams did not recall having been informed of his Miranda rights.

He denied that he orally confessed to Deal. He signed the written

confession only because Deal placed a gun to his head. He signed

the confession without looking at the words on the page.

According to Williams, he was watching television at his

sister's residence on December 5. He remembered being there

because he missed dollar day at the movies that evening. He

arrived at his sister's residence for the evening at around 7 p.m.
6

and did not leave until around 10 p.m.

On cross-examination, Williams testified that he did not live

in the Iberville project. He identified the blue shirt as his. He

testified that Martin beat him in the car on the way to the police

station. Deal beat Williams at the station. Blanco was somewhat

more sympathetic to Williams than the other officers and told him

not to worry about what the other officers were saying. Before

trial, Williams did not inform his attorney or the sheriff's

department about police mistreatment. Williams testified that he

was a heroin addict and that the $200-300 figure listed in the

written confession might have been an accurate, though lucky,

estimate by the police. According to Williams, he did not obtain

the funds for his habit from robbery.

Joann Williams testified that she was Williams's oldest

sister. According to Joann, Williams lived with her in the

Iberville project in December 1985. Joann remembered December 5

because her birthday was December 6. Williams was in Joann's

residence on the evening of December 5. He had been at the house

all day and did not leave unless it was later at night. Joann was

downstairs cooking food on the evening of December 5 and would have

known if Williams had left.

On cross-examination, Joann testified that it never occurred

to her to go to NOPD or the district attorney to protest Williams's

innocence. Joann stated, "[h]e had so many charges against him,

not just this here." Joann testified that she probably saw

Williams ten times during the course of a sixteen-hour day on
7

December 5.

Kim Williams testified that she and Williams lived with Joann

in the Iberville project on December 5. According to Jim, Williams

was in the living room of the residence listening to music. Kim

did not remember what she was doing.

Deal testified in rebuttal that NOPD did not abuse Williams

physically. According to Deal, the sheriff will not accept

injured prisoners. 

II.

Williams was convicted of armed robbery and attempted robbery.

His conviction was affirmed. State v. Williams, 541 So. 2d 401,

402 (La. App. 4th Cir. 1989), writ denied, 564 So. 2d 320 (1990).

Williams filed what the district court construed as a habeas

corpus petition, seeking only a copy of a state-court transcript.

The district court denied Williams relief. This court dismissed

Williams's appeal and noted that his petition should have been

viewed as a mandamus petition. Williams v. Whitley, No. 93-3610,

slip op. at 1-2 (5th Cir. Mar. 23, 1993) (unpublished).

Williams filed a federal petition for habeas relief, alleging

that the state had withheld the initial police report about the

December 5 robbery. Williams contended that the police report

could have been used to impeach Bates's testimony and that the

police report could have been used to find witnesses favorable to

him. Williams also argued that the photographic lineup was

impermissibly suggestive.
1 Williams abandons his contention that the photographic line-ups were

impermissibly suggestive.

8

The state conceded that Williams had exhausted state-law

remedies. The district court dismissed the petition as an abuse of

the writ. We vacated the dismissal and remanded, holding that the

district court erred by dismissing Williams's petition as abusive

because his first petition sought mandamus and not habeas relief.

The magistrate judge recommended that the district court deny

habeas relief. The district court adopted the recommendation, then

granted Williams a certificate of probable cause to appeal.

III.

Williams avers that the state improperly withheld the police

report.1 He argues that the report would have shown that another

individual was wearing the blue-hooded sweatshirt on December 5 and

that he was not at a residence with three other suspects. He

contends that the report would have shown that Bates and Lewis had

failed to identify the robbers initially because it was dark

outside. He argues that the report would have contradicted Bates's

testimony regarding the number of robbers.

Williams contends that the police report should be considered

in the light of police testimony at his preliminary hearing that

Bates and Lewis had failed to identify the robbers initially

because of fear. He also contends that Lewis's testimony at

Johnson's trial indicated that he was not the person wearing the

blue-hooded sweatshirt. Williams does not allege that the report
9

might have led him to any witnesses favorable to him.

Brady requires disclosure of exculpatory evidence that is

material to guilt or punishment. 373 U.S. at 87. "In order to

state a Brady violation, [the petitioner] must show that (1) the

prosecution suppressed evidence that was (2) favorable to the

accused and (3) `material to either guilt or punishment.'" Cordova

v. Collins, 953 F.2d 167, 171 (5th Cir.) (quoting Brady, 373 U.S.

at 87), cert. denied, 502 U.S. 1067 (1992). "[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).

The police report does not indicate that Bates or Lewis

adopted or ratified the report, nor did Bates or Lewis testify that

he had done so. "`If a witness has not made as his own the

investigator's summary, it is unfair for the defense to use the

language or interpretations of someone else for impeachment.'"

White v. Whitley, No. 92-3939, slip op. at 4 (5th Cir. Apr. 22,

1994) (unpublished) (citations omitted). Williams therefore could

not have used the report to impeach Bates or Lewis.

Moreover, it is unlikely that the report would have made any

difference in the case, even had Williams possessed it. Bates

testified that he had been unable to describe the robbers to the

police initially. The jury therefore had before it evidence that

Bates had not identified Williams on December 5. Deal, however,

testified that Bates identified Williams's photograph without
10

hesitation on December 16. Additionally, Williams confessed to the

crime. Williams's explanation of the circumstances surrounding

that confession was rendered less than credible by his testimony

that he had informed neither his attorney nor the sheriff of his

mistreatment by NOPD. Additionally, Williams and Joann Williams

provided contradictory testimony regarding Williams's residence and

the amount of time Williams spent at Joann's residence on

December 5. It is unlikely that the information in the report

could have overcome the effect of Williams's confession and his own

less-than-credible evidence.

In his district court pleading, Williams did not raise his

contention regarding Lewis's testimony at Johnson's trial. We need

not consider issues not considered by the district court.

"[I]ssues raised for the first time on appeal are not reviewable by

this court unless they involve purely legal questions and failure

to consider them would result in manifest injustice." Varnado v.

Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991). Lewis's testimony at

Johnson's trial does not involve a purely legal question.

AFFIRMED.