*Pursuant to 5 TH C IR . R. 47.5, the Court has determ ined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . R. 47.5.4. United States Court of Appeals Fifth Circuit 

## FILED April 7, 2006 Charles R. Fulbruge III Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 05-70003

ERIC DEWAYNE CATHEY, Petitioner-Appellant,

versus DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION, Respondent-Appellee.

Appeal from the United States District Court fo r the Southern District of Texas

Before WIENER, BENAVIDES and STEWART, Circuit Judges. CARL E. STEWART, Circuit Judge: * Peti tioner Eric Dewayne Cathey, convicted of capital murder in Texas and sentenced to death, requests from this court a Certificat e of Appealabilit y (“COA”) pursuant to 28 U.S.C. § 2253(c)(2). Cathey’s application to this court addresses th e single issue of whether the district court erred in2

denying habeas relief because the jury was not told about a key wit ness’s understanding th at he had a “promised deal limiting his sentence.” For the reasons set forth below, we deny the COA.

I. FACTUAL AND PROCEDURAL BACKGROUND Eric Dewayne Cathey was one of six men who planned to rob twenty year old Christina Castillo and her boyfriend in order to take drugs an d money that the m en believed they had. Trial testimo ny by on e of th e six men, Lionel Bonner, revealed that in September 1995 the men waited outside Castillo’s apartm

ent and, when she arrived, Cathey grabbed her by the th roat and held her at gunpoint. The men fo rced her int o a car and, in t wo vehicles, the group took her to the house of Cathey’s mo ther. Bonner indicated th at Cathey was the only one of the six th at was armed. Castillo’s hands and feet were secured wit h duct tape and the men int errogated her about drugs and mo ney. She denied having any. The men beat and kicked the ninet y seven pound young woman for fifteen minut es, even though she continued to deny having drugs or mo ney and she told them th at she was pregnant. They decided to abandon Castillo and took her to a desolate lo cation in a lo w-income, highcrime area. As Bonner and som e of the men w ere about to leave the area in one of the vehicles, Bonner saw Cathey reach toward Castillo outside the other vehicle. When they drove away, Bonner heard gunshots. Bonner also testified he saw Cathey lat er th at evening and Cathey said “I shot her,” and told him not to tell anyo ne. A few days later, som eone found Castillo’s body while collecting aluminum cans. Three cartridge casings were fo und near her body. Two to fo ur weeks lat er, Bonner asked Cathey if he really shot the girl. Cathey said yes and said he did not know why he shot her. Othe r evidence indicated that in October 1995 Cathey was in possession of the weapon that a3

Houston Pol

ice Departm

ent crimino lo gist identified as the same weapon th at had fir e d th e three cartridge cases that had been found near Castillo’s body. In March 1997, Eric Dewayne Cathey was conv ict ed by a j ury of capital murder for the murder of Christina Castillo and sentenced to death. On direct appeal, the Texas Court of Criminal Appeals affirmed the conviction and sentence. C athey v. Texas , 992 S.W. 2d 460 (Tex. Crim. App. 1999). The United States Supreme Court denied Cathey’s peti tion for a writ of certiorari. Cathey

v. Texas , 528 U.S. 1082 (2000). Thereafter, Cathey filed an application fo r state habeas relief th at included the claims asserted in the inst ant peti tion. On January 29, 2003, the tri al court adopted the Respondent’s Proposed Findings of Fact, Conclusions of Law and ordered the clerk of court to send the record and transcripts to the state court of criminal appeals alo ng wit h it s recom mendation that habeas relief be denied. The Texas Court of Criminal Appeals adopted the tri al court’s findings and conclusions, and denied Cathey’s application on April 2, 2003. Ex Parte Cathey , No. 55,161-01 (Tex. Crim. App. Apr. 2, 2003) (unpublished). Cathey filed the inst ant peti tion fo r a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in federal district court on April 2, 2004, asserting seven grounds for relief. The respondent, Douglas Dretke (“the Director”), mo ved fo r summary judgment on all o f Cathey’s claims, and the district court granted th at mo tion in it s Memorandum Opinion and Order dated December 23, 2004. The district court also entered a final judgment th at denied Cathey’s § 2254 peti tion and, sua sponte, denied issuance of a Certificate of Appealibility (COA) on December 23, 2004. Cathey now requests a COA from this court, asserting an alleged violation of B rady v. Md. , 373 U.S. 83 (1963) and Giglio v. United States , 405 U.S. 150 (1972) (“ Brady claim”). II. STANDARD OF REVIEW4

This case is governed by the Ant it errori sm and Ef fective De ath Penal

ty Act (“AEDPA”) because Cathey filed his § 2254 habeas peti tion in the district court aft er the April 24, 1996 effective date of the AEDPA. S ee Lindh v. Murphy , 521 U.S. 320, 336 (1997). Under the AEDPA, a peti tioner must obtain a COA before he can proceed to appeal the dismissal or denial of a § 2254 hab eas peti

tion. 2 8 U.S.C. § 2253(c)(2). A COA is granted only if the applicant has “made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). In order to make th is showing, Cathey must demonstrate that “reasonable jurists could debate whether (or, for that mat ter, agree th at) the peti tion should have been resolved in a different manner or th at th e issues presented were adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell , 537 U.S. 322, 336 (2003); Slack v. McDaniel , 529 U.S. 473, 484 (2000) (“[P]etitioner must demonstrate th at reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.”); Miller v. Dretke , 404 F.3d 908, 913 (5th Cir. 2005). I n determ ining whether a COA should be granted, “we are mindful th at, in rul ing on the merit s, the district court was required to defer to the state court’s adjudication of [Cathey]’s claims

on both questions of law and mixed questions of law and fact.” Id. Under the AEDPA’s requi red deferential standard,

an application fo r a writ of habeas corpus shall not be granted with respect to any claim th at was adjudicated on the merit s in state court proceedings unless the adjudication of the claim: (1) resulted in a decision th at was contrary to, or invo lved an unreasonable application of , clearly established Federal law, as determ ined by the Supreme Court of the United States; or (2) resulted in a decision th at was based on an unreasonable determ

inat io n of the fac ts i n light of the evidence presented in the State court proceeding. Morrow , 367 F.3d at 313; 28 U.S.C. § 2254(d). A state court’s decision is an unreasonable application of established law when it is “o bjectively unreasonable, and is contrary to established law5

when it “reaches a legal conclusion in direct opposition to a prior deci sio n of the United States Supreme Court or when it reaches a different conclusion than the United States Supreme Court on a set of materially indist inguishable facts.” R iddle v. Cockrell , 288 F.3d 713, 716 (5th Cir. 2002).

“ Alt ernatively, a state court ‘unreasonably applies’ clearly established federal law if it correctly identifies the governing precedent but un reasonably appl

ies it to the facts of a particular case.” Morrow , 367 F.3d at 313. “[F]ederal habeas relief is only merit ed where the state court decision is both inco rrect and objectively unreasonable.” Id. Moreover, in deciding Cathey’s peti tion fo r habeas relief, the district court had to be mindful th at state court findings of fact are presumed to be correct unless Cathey rebutted this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). Only aft er a COA is granted w ill a reviewing court examine whether the trial court’s determ inat io n was proper regarding the alleged undisclosed taci t agreement. C

f. Miller-El , 537 U.S. at 341. In determ

ining whether to grant a COA, we are l imit ed, inter alia, to a threshold inquiry int o the underlying merit of [Cathey’s] claims. This th reshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims. Instead, our analysis requires an overview of the claims in the habeas peti tion and a general assessment of their merit s. This being a death penalty case, any doubts as to whether a COA should issue must be resolved in [Cathey’s] favor. Miller , 404 F.3d at 913 (citations and int ernal quotation marks om it ted); see also Morrow v. Dretke , 367 F.3d 309, 313 (5th Cir. 2004) (“The COA determination requires an overview of the claims in the habeas petition and a general assessment of their merit s but not full consideration of the factual or legal bases adduced in support of the claims.” (citations and internal quotation marks omitted)). Accordingly, “[a]t this stage . . . we only ask whether the district court’s application of AEDPA deference to [Cathey’s Brady ] claim was debatable amongst jurists of reason.” Miller-El , id.6 III. DISCUSSION Of the seven constitutional v io lat io ns that Cathey’s asserted in his petition to the federal d ist rict court, the only one fo r which he requests a COA is the Brady claim th at his consti tuti onal rights were vio lat ed because the prosecutor f ailed to disclose information about an alleged tacit agreement among Bonner, Williams, and the State of Texas. A. Applicable Law “A prosecutor must disclose evidence favorable to an accused if it ‘is of sufficient significance to result in the denial of the defendant's right to a fair tri al.’” Morro w , 367 F.3d at 316 (quoting United States v. Agurs , 427 U.S. 97, 108 (1976). Prosecutori al suppression of evidence favorable to the defense “vio lat es due process where the evidence is mat erial to guilt or to punishment , irrespective of the good fait h or bad fait h of the prosecution.” Johnson v. Dretke 394 F.3d 332, 336 (5th Cir. 2004) (quoting Brady , 373 U.S. at 87). Resolution of Cathey’s COA appl ication requires a preliminary, though not definitive, consideration of the th

ree-step framework mandated by Brady and reaffirmed in lat er precedents. Cf. Miller-El , 537 U.S. at 338. “The[se] well-known elements fo r a Brady -claim are: (1) the prosecutor suppressed evidence, (2) favorable to the defense, (3) and material to guilt or punishment.” Miller , 404 F.3d at 914 (citing Brady , 373 U.S. at 87). The inst ant COA request must be considered against the backdrop of these elements. Id. at 913. “[F]or Brady purposes, evidence is material if there is a reasonable probability that, had the evidence been disclosed, the result would have been different.” Miller , 404 F.3d at 916 (citing United States v. Bagley , 473 U.S. 667, 682 (1985)); United States v. Webster , 392 F.3d 787, 798 (5th Cir. 2004). “[A] reasonable probability is one sufficient to undermine confidence in the outcom e.” Miller1 Bonner was sentenced to imprisonment fo r not mo re th an thirty years. Bonner filed a

mo tion fo r new tri al pursuant to which testimony and other evidence was adduced. In his motion, Bonner alleged th at he had an unwritten “understanding” that the prosecutor agreed that Bonner’s sentence would be ten years probation, or imprisonment for not more than about ten years. 7 v. Dretke , 431 F.3d 241, 251 (5th Cir. 2005) (citing Kyles v. Whitley , 514 U.S. 419, 433- 34 (1995)). At is sue is whether given the non-disclosure of material evidence the verdict is less worthy of confidence, not whether the result wo uld have been different. M orrow , 376 F.3d at 317. “If the evidence provides only incremental impeachment value, it does not ri se to the lev el o f Brady mat erialit y. ” Miller , 431 F.3d at 251. B. Analysis 1. State Habeas Court Findings of Fact and Conclusions of Law In it s decision on Cathey’s request fo r habeas relief, the Texas tri al court adopted, int er alia, the fo llo wing factual findings regarding the alleged undisclosed agreement: Lio nel Bonner pled guilt y to aggravated kidnaping pursuant to a written plea agreement th at indicated there was no plea bargain regarding sentencing and th at Bonner’s punishment was to be determ ined by the tri al court. Bonner stated during his guilt y plea colloquy that he had been prom ised nothing and had made or received

no deals concerning his sentence, and th at he was putting the sentencing decision in the hands of the court. The prosecutor also stated there was no agreement wit h Bonner fo r a certain number of years. Bonner testified that originally he had been charged wit h capital murder, th at his lawyer reached an agreement to reduce hi s charge to aggravated robbery, and that the trial court would make his sentencing decision. The prosecutor had expressed his opinio n th at Bonner would be sentenced at the lo wer end of the spectrum, but there had been no prom ise or agreement about a “cap” to be applied to Bonner’s statutory sentencing range. In Bonner’s mo tion fo r new tri al, 1 the tri al court8

stated that Bonner had not told the truth and th at i t f ound no reason to believe that there was any kind of deal between Bonner and anyone else. The state habeas tri al court also adopted, int er alia, the fo llo wing conclusions of law: Based

on Bonner’s sworn testimo ny, Bonner had no deal wit h the State in exchange fo r his testimo ny. Based

on Bonner’s lack of credibilit y in Bonner’s mo tion fo r new tri al, Cathey failed to show th at there was

an agreement th at should have been disclosed to the jury. Alt ernatively, any alleged failure to disclose

an agreement wit h Bonner was not mat erial because tri al counsel th oroughl y cross-examined Bonner about the benefit s he received from the State in return fo r his testimo ny, and the jury was free to accept or rej ect any portion of his testimony based on his possible motives. 2. Federal Habeas Court Findings of Fact and Conclusions of Law The district court reviewed Cathey’s peti tion fo r federal habeas relief and noted th at Cathey did not dispute th at the prosecution disclosed the fact th at Bonner’s guilt y plea ensured th at he would not be charged wit h a capital of fense. Nevertheless, Cathey alleged th at the prosecution also entered int o an “understanding” about Bonner’s ult imat e sentence. Cathey supported this claim wit h affidavit s from Bonner and Cathey’s tri al counsel, Connie Williams. The distric t court al so noted that other evidence suggested that no tacit agreement existed between Bonner and the prosecution. The district court determ ined that Cathy failed to show that the prosecution suppressed mat erial because, at best, the evidence suggests th at Bonner and/or his counsel held a subjective belief th at he had entered int o an agreement wit h the prosecution wit h no evidence th at an actual sentencing agreement existed on paper or th rough discussions. The district court (a) concluded th at, even if Bonner and his counsel believed th ere was an agreem ent, that belief does not make it so, and (b)9

fo und th at Cathey failed to show th at the relevant parties entered int o any plea agreement beyo nd th at to which Bonner testified at trial. The district court also fo und th at even if t here had been an undisclosed tacit agreement, the state h abeas court’s alternative finding was not unreasonable. Bonner’s testimony about the agreement th at allo wed him to avert the possibilit y of a capital murder conviction was such th at the extent to which he would benefit from the alleged punishment agreement would not mat erially differ if the jury knew that the prosecution had promised a ten year cap on his sentence. There being no failure to disclose material evidence, Cathey failed the third element of the Brady analysis. 3. Our Threshold Analysis The record reveals th at during the hearing on his motion for new trial, Bonner testified th at just prior to his court appearance on the day of his guilt y plea, Bonner was not going to sign the plea agreement papers because he wanted som ething in writing about the “understanding” that his sentence would be at the low end. According to Bonner, the prosecutor told him t hat there was no such agreement and that if he did not plead guilt y he could be charged wit h capital murder. Bonner further testified th at the prosecutor did not th reaten him but just did not give him much choice, so he made the decision to sign the plea agreement and plead guilty. Bonner signed a written plea agreement th at reveals no plea bargain about sentencing and no reduction to his sentencing exposure of nin ety -nine years imprisonment. Moreover, the plea agreement states th at the State would not make a sentencing recom mendation. Bonner testified th at just before he pled guilt y he did not know what his sentence would be and that there was never an agreement for a specific sentence. During the guilty plea colloquy, Bonner said he understood th at the tri al court could sentence him to any term of imprisonment from five to ninet y- nine years. Bonner10

also said that no one had promised him any “deal.” Two prosecutors testified th at there was never any agreement other t h an to charge Bonner wit h aggravated kidnaping. Bonner’s counsel, Connie Williams, said there was no agreement to limit the judge’s sentencing discretion alt hough Bonner may have taken what Williams had said to him to mean that there was such an agreement. Our review of the record reveals th at Cathey presented testimo ny and affidavit s indicating th at Bonner and Will

iams believed there was a tacit agreement and that a prosecutor said he thought Bonner would receive a sentence on the lo wer end of the sentencing range. Nevertheless, his presentation was not the clear and convincing evidence required to rebut the presumption of correctness th at the AEDPA requires the district court to attri bute to the state habeas court’s factual finding th at there was no undisclosed agreement . Likewise, the record reveals th at the district court properl y applied the AEDPA’s requisite deference when it determ ined th at the state court disposition of Cathey’s application for habeas relief was neither an unreasonable application of law, nor was it contrary to, or an unreasonable application of , established law. Accordingly, reasonable jurists could not debate whether the district court should have determ ined th at Cathey did not make a substantial showing that he was denied a constitutional right on the Brady issue presented for our review. IV. CONCLUSION For the fo regoing reasons, we find th at reasonable jurists could not debate whether the district court’s disposition of this Brady claim should have been resolved differently and the request fo r COA is DENIED.