*

Pursuant to Local Rule 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opinion should not be published and is not precedent except under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 Local Rule 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

___________________

No. 95-40573

KENNETH GENTRY,

Petitioner-Appellant,

versus

GARY L. JOHNSON, Director,

Texas Department of Criminal

Justice, Institutional Division,

Respondent-Appellee.

________________________________________________

Appeal from the United States District Court for the

Eastern District of Texas

(4:93-CV-153)

________________________________________________

August 12, 1996

Before GARWOOD, WIENER and EMILIO M. GARZA, Circuit Judges. *

GARWOOD, Circuit Judge:

Petitioner-appellant Kenneth Gentry (Gentry) appeals the

district court’s denial of his habeas petition challenging his

Texas conviction and death sentence for the capital murder of Jimmy

Don Hamm (Hamm). We affirm.

Facts and Proceedings Below

I. Pre-Trial Proceedings2

On September 16, 1983, Gentry was arrested in Min nesota for

the September 10, 1983, murder of Hamm in Denton County, Texas. On

September 17, 1983, Denton County, Texas Sheriff’s Detective Alton

Davis (Davis) first met Gentry in Minnesota after his arrest. At

that time, Davis advised Gentry of his rights under Miranda v.

Arizona

, 86 S.Ct. 1602 (1966), including the right to remain silent

and the rig h t to have a lawyer present prior to and during

questioning. Gentry waived extradition and was returned to Denton

County, Texas; he was arraigned in Texas on the same day. Gentry

was again advised of his Miranda rights by the judge during the

arraignment. Gentry requested counsel during the arraignment, and

Gary Patton (Patton) was appointed to represent him.

On October 12, 1983, Gentry’s mother, Betty Inez Gentry (Mrs.

Gentry), delivered a handgun to Gentry in jail. Mrs. Gentry was

arrested, charged with introduction of a deadly weapon into the

jail, and was placed in jail. Mrs. Gentry was held in a cell

behind her son f or approximately one month; he could hear

everything she said in the cell. After about a week in jail, Mrs.

Gentry began crying and begging Gentry to help her. According to

Gentry, his mother has physical health ailments, including

emphysema. Mrs. Gentry would cry and call out to Gentry most often

whe n the jail was sprayed for insects, apparently believing that

her jailers were trying to kill her. “[R]ight before” October 24,

1983, Gentry requested to be moved, but the police officers3

responded that there was no other place to put him.

On October 23, 1983, Gentry asked Officer Baker if his mother

would be released ( or put on probation) if he made a confession.

Officer Baker told Gentry “they probably would” make such a deal

but that he would have to speak to Davis. The next day, Officers

Baker and Wilson informed Davis that Gentry wanted to talk to him.

Davis knew that Gentry was represented by counsel and had made no

attempt to question him at any time since his September 17, 1983,

arraignment. After learning that Gentry wanted to discuss the

offense, Davis met with him and again informed him of his Miranda

rights, including his right to remain silent and the right to have

a lawyer present. Gentry confessed to Davis that he had murdered

Hamm, but when he was asked if he wanted to make a videotaped

confess ion, Gentry asked if it would help get his mother out of

jail. Davis said that he could not make any deals and that Gentry

would have to speak to the district attorney. Gentry never asked

to speak with his attorney or to have him present or notified.

In Davis’s presence, Gentry met w ith Assistant District

Attorneys Alan Levy (Levy) and Lee Gabriel at their office. When

Gentry asked if he could make a deal for his mother to be released

in return for his videotaped confession, he was informed that the

district attorney’s office would not make any deals with him. Levy

stated that whether Gentry gave a statement or not would have “no

impact whatsoever on [his] prosecution of the case.” After Davis1

In this videotaped confession, Gentry admitted to killing Hamm and

inculpated himself in other crimes. He claimed to have shot Hamm

three times (instead of two as the physical evidence at trial

showed). Gentry also claimed that he killed Hamm in response to

threats made by two unknown individuals.

4 and Gentry left the district attorney’s office, Gentry told Davis

there was no reason for him to make a videotaped statement if his

mother would not be released. According to Gentry, Davis suggested

that if he m ade a videotaped confession, then Levy might make a

deal to let his mother out of jail. Davis did not recall the

specifics of the conversation. Gentry admits that he was never

promised any specific deal for making the videotaped confession.

Instead, he understood that, after he made a videotaped confession,

they would “discuss making a deal” about his mother. Gentry agreed

to make a videotaped confession and was again advised of his

Miranda rights before making the confession. He testified that he

understood at the time he made the statement that he had the right

to remain silent, that he had the right to have a lawyer present,

and that he had the right to terminate the interview at any time.

When the sound on the first videotape failed, Gentry gave his

confession on videotape a second time. 1

After the second videotaped confession w as made, Patton was

advised by the prosecuting attorney that Gentry had confessed and

that the charges would be elevated to capital murder. Two or three

days after Gentry made his confession on videotape, Patton visited

Gentry in jail and advised him of the prosecution’s offer: Gentry2

The name Gentry has been substituted here and subsequently for

“appellant” or “the appellant” in the excerpted portion of the

opinion, and we use the spelling “Hamm” instead of the Criminal

Court of Appeals’ spelling “Ham.”

3

We note that it appears from the record that Gentry’s girlfriend

and sister first joined Gentry and Hamm in Georgia, not Texas.

5 could ple ad guilty to murder and receive a life sentence; if he

refused, then he would be re-indicted for capital murder. Gentry

refused the offer and was re-indicted for capital murder. At some

point after Gentry was re-indicted, Richard Podgorski (Podgorski)

was appointed to represent him as Patton’s co-counsel.

II. The State Murder-Robbery Trial

The guilt-innocence phase of Gentry’s trial began on February

29, 1984. The State rested the following morning, after calling

several witnesses and e n tering the videotaped confession into

evidence. The Texas Court of Criminal Appeals set forth the facts

of the offense as shown at trial:

“The appellant, Kenneth Gentry, and the deceased, Jimmy

Don Hamm, became acquainted when Gentry[ 2 ] gave Hamm, who

was hitchhiking, a ride into the Denton area. At the

time, Gentry was wanted by the authorities in connection

with several prior offenses, including an escape from a

Georgi a prison. After a brief visit in Denton, Gentry

and Hamm left Texas, along with Gentry’s girlfriend and

sister.[ 3 ] They travelled to Georgia, where the two men

committed an armed robbery. The foursome then moved on

t o Florida, then back to Texas, to Oklahoma, an d then

came back to the Denton area, where Hamm’s body was later

discovered.

According to the testimony adduced at trial,

approximately two days prior to the offense, Gentry posed

the following hypothetical question to Harold Loftin

[(Loftin)], his uncle: ‘If you was [sic] going to6

dispose of somebody, how would you do i t?’ Loftin

obligingly replied, ‘I would find the most wooded, most

deserted area I could find and that’s where I would do it

. . . because I love the woods.’ Gentry’s sister

overheard the conversation between Gentry and his uncle,

and testified to the effect that her brother was seeking

a new identity at that time . Linda Patterson

[Patterson], Gentry’s girlfriend, testified that Gentry

told her he intended to assume the identity of [] Hamm

and find work in another state.

On the date of the murder, September 10, 1983,

Gentry and his travelling companions (sister [Violet Ann

Hayes (Hayes)], girlfriend and Hamm) arrived at the

trailer home of Gentry’s friend, Charles Goodman

[(Goodman)]. Also present were Gentry’s two brothers,

Calvin and Larry Gentry. According to the testimony, at

one point, when Hamm left the room for a few moments,

Gentry announced: ‘There goes my new I.D.’ A short time

later, a police car was seen driving down t he road

adjoining Goodman’s property. Gentry’s sister, aware

that her brot her was wanted by the Georgia authorities

for his pris on escape and for the robbery he committed

with Hamm, ran to warn the two men. Momentarily, Gentry

and Hamm left in one vehicle, with Gentry’s two brothers

following in a truck.

According to the testimony admitted before the jury,

during the time the offense was to have occurred, Calvin

Gentry, Gentry’s younger brother, testified that he and

his brother Larry went to a local pool hall and ‘shot

pool for about two, three hours.’ While [Gentry’s]

brothers were at the pool hall, [he] took Hamm to a

remote part of Lake Dallas, ostensibly to engage in

target practicing with a pistol. The evidence indicated

that both Gentry and [] Hamm were intoxicated at the

time. Hamm finished firing the pistol and handed the gun

to Gentry. Gentry took the pistol and made as if he were

preparing to shoot toward a drink can he had thrown into

the lake. Rather than shooting the target, Gentry

abruptly swung around and shot Hamm once in the head and

once in the chest area. [] Patterson, Gentry’s

girlfriend, testified as to a conversation she had with

G entry later that evening: ‘He [Gentry] asked m e if I

knew w hat brains looked like. And I said ‘No.’ It

hadn’t got quite dark yet. He told me to look up, that

is what brains look like, like clouds

. . . . [Gentry]

said h im and [Hamm] were on the riverbank target

practicing. [Hamm] had just got through w ith his turn,

handed the gun to [Gentry], [Hamm] was doing something to

the bullets and [Gentry] pretended he was going to shoot7

whatever they were shooting at. He swung the gun around

and shot [Hamm] twice in the chest. And [Hamm] fell down

and he shot him once through the head.’

Gentry and [the] state presented contradictory

versions as to whether the wallet was on Hamm’s person at

the time of the murder or whether Gentry removed the

wallet from the decedent’s back pocket after the killing.

Gentry then dumped Hamm’s body into the shallows of Lake

D allas. It was recovered some four days later, after

being spotted floating face down in the lake by a

f isherman and his son. The autopsy revealed that the

decedent was shot twice: once in the left chest area and

o nce in the skull. According to the evidence, either

wound would have caused the death of the victim.

Following the murder, Gentry and his sister, and his

girlfriend fled to Austin, Minnesota, where the y were

later arrested and returned to Denton County after

waiving extradition. Evidence obtained from

[Patterson’s] purse included Hamm’s wallet and several

items of identification bearing the name of [] Hamm.

In addition to the above testimony, in a videotaped

statement, Gentry confessed to the murder of [] Hamm by

s hooting him with a pistol. According to Gentry, the

victim’s wallet was left on the dashboard of the car

while the two were target practicing.” Gentry v. State

, 770 S.W.2d 780, 783- 84 (Tex. Cr. App. 1988), c ert.

denied , 109 S.Ct. 2458 (1989).

Defense counsel’s cross-examination of the State’s witnesses

was brief. They asked no questions at all of seven State

witnesses. Defense counsel made no opening statement to the jury

and called no new witnesses, choosing instead to recall three of

the State’s witnesses. Gentry’s case-in-chief was also quite

brief. The case was submitted to the jury on the afternoon of

March 1——the same day the prosecution rested its case-in-chief. On

March 2, 1984, the jury returned a guilty verdict against Gentry

for the robbery-murder of Hamm.

After the j ury returned its verdict in the guilt-innocent8

phase——and possibly as late as after the verdict in the punishment

phase——a psychiatrist hired by defense co unsel evaluated Gentry.

The psychiatrist di agnosed Gentry with sociopathy and told trial

counsel that they would not want him to testify for their client.

The punishment phase of the trial began in the afternoon of March

2. The State called twelve witnesses and rested. Defense counsel

again made no opening statement and did not call any witnesses.

The jury returned a verdict later that afternoon, answering two

special issues: that Gentry acted deliberately and that there was

probability of fut ure dangerousness. The trial court sentenced

Gentry to death on March 5, 1984.

III. Appeal and Post-Conviction Proceedings

Gentry was appointed counsel for his appeal (Podgorski and

Thomas Whitlock). After Gentry’s appeal, the Texas Court of

Criminal Appeals affirmed the conviction and sentence on November

23, 1988. G entry v. State

, 770 S.W.2d 780 (Tex. Crim. App. 1988).

Gentry’s c onviction became final when the United States Supreme

Court denied certiorari on June 5, 1989. G entry v. Texas

, 109

S.Ct. 2458 (1989). Gentry’s execution was first set for August 1,

1989, but it was stayed to allow Gentry to file a post-conviction

application for a state writ of habeas corpus. Gentry, through new

counsel, filed a state habeas application on January 22, 1990. His

execution date was mod ified to March 20, 1990. The state trial

court, the same judge who had presided at Gentry’s trial, resolved9

factual issues underlying petitioner’s claims on the basis of

attorney affidavits supplied by petitioner’s two trial counsel, and

entered findings and conclusions recommending denial of habeas

relief on March 9, 1990. The Texas Court of Criminal Appeals later

adopted these findings and denied habeas relief in an unpublished

opinion issued April 1, 1992. The United States Supreme Court

denied certiorari review of the denial of state habeas relief on

January 19, 1993.

Gentry, thro ugh the same counsel who represented him in the

state habeas proceedings, filed the instant petition under 28

U.S.C. § 2254 on June 28, 1993. The State responded, incorporating

a motion for summary judgment in its response on December 8, 1993.

Gentry filed a motion for summary judgment on February 23, 1994.

An evidentiary hearing was held on May 16, 1994. At the hearing,

the district court heard testimony from Gent ry’s family members

regarding his childhood and relationship with his family, and

Gentry offered exhibits regarding his trial attorneys’ fees. The

district court ordered the hearing to be resumed on July 7, 1994.

Gentry continued his effort s to obtain certain evidence through

discovery. On June 15, 1994, the district court ordered the State

to answer Gentry’s interrogatories and to produce all available

documents requested in Gentry’s request for produ ction. On June

27, the State provided some of the requested discovery, but it

claimed that most of the documents requested were reposed with the

Den ton County District Attorney, who had provided all of the10

documents in the county’s possession.

At the July 7, 1994, evidentiary hearing, the district court

heard testimony fro m one of Gentry’s trial counsel (Patton), his

sister Hayes, and L.D. Shipman (Shipman) o f the Denton County

District Attorney’s Office. Shipman testified that while the

section 2254 proceeding was pending he had provided Gentry’s habeas

counsel with every requested item in the county’s possession, but

that some of the pages from the physical evidence file were

missing. The pages in the physical evidence file were handnumbered and were no longer in order. After the July 7 evidentiary

hearing, the district court ordered a final evidentiary hearing to

be held on December 16, 1994. On November 22, 1994, the district

court denied Gentry’s motion for summary judgment, and it granted

the State’s motion for summary judgment on all claims except the

claims of ineffective assistance of counsel and improper inducement

of his confession. Thus, the only remaining issues of fact to be

considered at the December 16, 1994, evidentiary hearing were

related to the ineffectiveness of Gentry’ s trial counsel and

improper inducement of his confession. At the December 16 hearing,

the district court heard testimony from Gentry’s other trial

counsel (Podgorski), the psychiatrist retained by Gentry’s trial

counsel (Dr. Edwin Taboada (Taboada)), and prosecutor Levy.

The district court entered its final order denying all relief

to Gentry on April 12, 1995, and it denied his motion for

reconsideration on June 12, 1995. Gentry filed a notice of appeal4

In its post-oral argument letter brief, the State relies on the

habeas corpus provisions of the Antiterrorism and Effective Death

Penalty Act of 1996. Because we affirm the denial of Gentry’s

petition on other grounds, we do not reach the issues raised by the

State in its letter brief.

5

Gentry also implies that the videotaped confession was involuntary

under the Fifth Amendment because it was improperly induced by (1)

improper promises that his confession would aid his mother’s case,

and (2) a false promise that giving a statement would not harm his

case. These implied arguments are without merit.

Gentry suggests that he was impr operly induced to give his

confession by suggestions allegedly made by Levy and Davis that, if

Gentry confessed, his mother would be given more lenient treatment.

Gentry testified that he understood that prosecutor Levy and

Detective Davis would “discuss making a deal” regarding his mother

after he made a videotaped confession. He does not claim that any

specific promises were made to him by any police officer or

prosecutor. Prosecutor Levy denied suggesting that a deal might be

made if Gentry confessed on videotape. Davis, who was present

during the meeting between Gentry and Levy, testified that his

impression from the conversation was that no deals would be made.

The district court believed the State’s version of the facts. The

district court’s credibility determination is not clearly

erroneous. See United States v. Leal , 74 F.3d 600, 605 (5th Cir.

1996) (applyi ng clearly erroneous standard to district court’s

credibility choices and findings of fact). Because Levy did not

suggest that Gentry’s mother might be released from jail if he

confessed on videotape, Gentry was not induced to confess by such

a suggestion by Levy. In contrast to Levy, Davis did not

specifically deny suggesting that Gentry’s mother might be treated

more lenien tly if he confessed. Davis stated that he did not

11 on June 29, 1995, and the district court granted a certificate of

probable cause on August 17, 1995.

Discussion 4

I. Sixth Amendment Right to Counsel

Gentry argues that the state trial court erred by allowing his

videotaped confession to be admitted into evidence because it was

obtained in violation of his Sixth Amendment right to counsel. 5recall making such a suggestion. Nevertheless, the fact that Levy

specifically told Gentry that he would make no deals, along with

the fact that Gentry knew that Davis had no authority to make a

deal with him, supports the district court’s implicit finding that

Gentry was not induced by any suggestion Davis may have made. The

district court’s implicit finding is not clearly erroneous.

Gentry also claims that he was improperly induced to provide

the videotaped confession by Levy’s statement that a confession

would have no impact whatsoever on the prosecution of his case

because this statement misled Gentry to believe that his confession

w ould not lead to the elevation of the charge against him fro m

murder to capital murder. As noted by the district court, Gentry

“ h as never testified that he operated under such a

misapprehension .” In addition, Levy testified that he:

“told [Gentry] I would not make a deal with him under any

circumstance . Matter of fact, I think part of the

conversation was the defendant indicated that rather than

go to prison he would rather get the death penalty. And

I told him that I would be happy to accommodate him.”

The district court credited Levy’s testimony, and its credibility

choice is not clearly erroneous. The context in which Levy’s

statement was made supports the district court’s finding that such

statement did not induce Gentry’s videotaped confession.

12 Specifically, he argues that the Sixth Amendment mandates the

presence and participation (or at least notification of) counsel in

an accused’s post-indictment decision to forego further assistance

of counsel. The State responds that the only pertinent inquiry is

w hether, under a totality of the circumstances test, Gentry

voluntarily waived his Sixth Amendment right to counsel.

We have previously held that “[a] defendant [who is

represented by counsel] may waive his [Sixth Amendment] right to

counsel without notice to counsel.” S elf v. Collins

, 973 F.2d

1198, 1218 (5th Cir. 1992) (citation omitted), cert. denied, 113

S.Ct. 1613 (1993); see Mann v. Scott

, 41 F.3d 968, 976 n.7 (5th

Cir. 1994) (recognizing and agreeing with holding in Self ), cert.6

Massiah

, Maine

, and Brewer, relied on by Gentry, were each rendered

prior to our decision in Self

. S ee Maine v. Moulton

, 106 S.Ct. 477

(1985); Brewer v. Williams

, 97 S.Ct. 1232 (1977); Massiah v. United

States

, 84 S.Ct. 1199 (1964). Gentry also relies on M ichigan v.

Jackson

, 106 S.Ct. 1404 (1986), but Jackson was considered by this

Court in Mann. Mann

, 41 F.3d at 975. Neither does Holloway v.

State , 780 S.W.2d 787, 795 (Tex. Cr. App. 1989), support Gentry’s

position. H olloway

, a state court decision, would not dictate a

new federal constitutional rule to this Court. And H olloway was

rendered more than four months after Gentry’s conviction became

final, meaning that it could not have dictated the rule within the

appropriate time frame. Finally, we acknowledge that H olloway has

been interpreted to stand for the proposition that, once the Sixth

Amendment right to counsel attaches, “the police may initiate

interrogation only through not ice to defense counsel, and a

defendant’s unilateral waiver of his Sixth Amendment right to

counsel is invalid under these circumstances .” Upton v. State

, 853

S.W.2d 548, 553 (Tex. Cr. App. 1993) (en banc) (emphasis added).

But, because Holloway involved state-initiated questioning, it does

not necessarily support petitioner’s requested rule that under any

circumstances a

defendant cannot unilaterally validly wa ive his Sixth Amendment

right to counsel after such right has attached. S ee State v. Frye

,

13 de nied , 115 S.Ct. 1977 (1995). In M ann

, we rejected an argument

identical to Gentry’s: that whether a defendant initiated any

communication with police is irrelevan t because the State had a

duty under the Sixth Amendment to notify his counsel prior to

engaging in int errogation and obtaining a confession from him.

Mann , 41 F.3d at 976. We note that, even if we were inclined and

able to alter our previous rule, a habeas petitioner such as Gentry

would not be entitled to have such a new rule applied to his case

unless it were “dictated by precedent existing at the time [his]

conviction became final.” Id. (quoting Teague v. Lane , 109 S.Ct.

1061 (1989)). No such precedent exists. 6897 S.W.2d 324, 327 (Tex. Cr. App. 1995) (applying Holloway to

state-initiated telephone conversations) ; Upton

, 853 S.W.2d at 553-

54 (“[H]ere, it is undispute d that each statement resulted from

police-initiated interrogation.); Holloway

, 780 S.W.2d at 79 5

(finding Si xth Amendment violation occurred pursuant to policeinitiated interrogation).

7

We reject Gentry’s argument that the Harvey language is inapposite

because Harvey allowed evidence admitted only for impeac h ment

purposes. While the H arvey decision does address the admissibility

of a confession for impeachment purposes, the distinction between

evidence admitted for impeachment purposes and that admitted as

substantive evidence has no bearing on the antecedent question

whether the evidence is obtained in violation of the Sixth

Amendment.

14 In fact, two Supreme Court cases have suggested that

petitioner’s requested rule should be rejected. First, the Supreme

Court stated in dicta in Patterson v. Illinois

, 108 S.Ct. 2389,

239 4 (1988)(citation omitted), that if the defendant had invoked

his right to counsel, then the State would have been prohibited

from questioning him further “unless the accused himself initiates

f urther communication.” Second, the Supreme Court described the

prophylactic rule prohibiting the admission of statements obtained

in violation of the Sixth Amendment right to counsel as applicable

when the State initiates the communication

. Michigan v. Harvey

,

110 S.Ct. 1176, 1177 (1990) (“once a criminal defendant invokes his

Sixth Amendment right to counsel, a subsequent waiver of that

right——even if voluntary, knowing, and intelligent under

traditional standards——is presumed invalid if secured pursuant to

police-initiated conversation ”(emphasis added)). 7 The extension of15

the prophylactic rule to exclude voluntary statements made in

defendant-initiated conversations with the State is not supported

by the precedent of this Circuit or the Supreme Court. Even if

this Court were to create such a new rule, Gentry could not benefit

from it because the rule did not exist prior to when his conviction

became final. The district court did not err in refusing to grant

the writ of habeas corpus on this ground. Consequently, the

question is whether, under the totality of the circumstances test,

Gentry voluntarily waived his Sixth Am endment right to counsel.

For this purpose we accept the district court’s findings of

historical facts, as those findings are not clearly erroneous, see

Mann at 975, and considering the totality of the circumstances, we

conclude, as did the district court, that the waiver was voluntary.

There is sufficient evidence to support the district court’s

finding that Gentry initiated his statement with the police. Davis

testified that Gentry informed officer Baker of his desire to speak

with Davis about the offense. Davis also testified that when he

met with Gentry he again informed him of his Miranda rights,

including the right to remain silent and to have an attorney

present. Gentry does not deny that he initiated the communications

with Davis, nor does he claim to have ever requested the

assistance, presence, or notification of counsel after he initiated

the communication with Davis. His only argument that he did not

validly waive his Sixth Amendment right to counsel——other than the16

legal argument that he could not validly waive his right to counsel

without notice to counsel——is that he did not ini tiate the

communication with Levy because Davis suggested the meeting between

G entry and Levy. His argument implies that a defendant’s

initiation of communications to one State actor does not allow

other state actors to then participate in the communications. We

reject such a distinction. S ee Michigan v. Jackson

, 106 S.Ct.

1404, 1410 (1986) (“[T]he Sixth Amendment concern s the

confrontation between the State and the individual.”). Because

Gentry initiated the communication with the State, never indicated

any desire whatsoever to speak to his attorney (or have him present

or notified), and repeatedly disavowed his right to counsel, we

hold that the district court properly found a voluntary and valid

waiver of his Sixth Amendment right to counsel.

II. Brady Complaints

Gentry argues that the State improperly denied him access to

exculpatory material available to the S tate at trial, thus

requiring reversal under Brady v. Maryland , 83 S.Ct. 1194 (1963).

The Supreme Court held in Brady that t he Due Process Clause is

violated when material evidence fa vorable to the accused is

withheld from the defense

. B rady

, 83 S.Ct. at 1196-97. To

establish a violation of Due Process under Brady

, a defendant must

show that (1) the State withheld evidence (2) which was favorable

to the defense and (3) was material either to guilt or punishment.17

Id. ; Westley v. Johnson

, 83 F.3d 714, 725 (5th Cir. 1996) (citation

omitted). Evidence is material under B rady if there is a

reasonable probability that disclosure would have resulted in a

different outcome. K yles v. Whitley

, 115 S.Ct. 1555, 1565 (1995);

United States v. Bagley

, 105 S.Ct. 3375, 3383 (1985). A reasonable

probability is probability sufficient to undermine confidence in

the outcome. Kyles

, 115 S.Ct. at 1566; Bagley

, 105 S.Ct. at 3383.

Thus, Gentry must show the suppression of “favorable evidence

[that] could reasonably be taken to put the w hole case in such a

different light as to undermine confidence” in the outcome. K yles

,

115 S.Ct. at 1566. He fails to meet this burden.

A. The missing pages

Gentry’s trial counsel specifically requested production of

certain pages from the State’s physical evidence file prior to voir

d ire

. The State refused to produce some of the specified pages.

The trial court denied Gentry’s request to order the State to

produce the pages, and it declined to review the pages in dispute.

The trial court did, however, specifically order the State not to

destroy or dispose of the disputed pages in order to preserve them

for appeal. The State is now unable to locate forty-two of the

disputed pages. Gentry argues that the forty-two missing pages

from the State’s physical evidence file should be deemed to be

exculpatory under the adverse inference rule.

The Supreme Court has expressed its unwillingness to impose an18

absolute constitutional duty on police to retain and preserve all

material that might conceivably be significant evidence. Arizona

v. You ngblood , 109 S.Ct. 333, 337 (1988). Although generally

courts allow an adverse inference to be drawn from the destruction

of records, the destruction must have been committed in bad faith.

See Vick v. Texas Employment Com m’n , 514 F.2d 734, 737 (5th Cir.

1975). Mere negligence is not enough to trigger the inference. I d.

A similar adverse inference rule, grounded in the Due Process

Clause, may be applied against prosecutors in the criminal context,

and it, too, is o nly applied if the criminal defendant can prove

bad faith. See Youngblood , 109 S.Ct. at 337.

Gentry suggests that bad faith should be in ferred in the

instant case because the State failed to preserve evidence pursuant

to a court order. The State’s failure to preserve evidence which

it has been ordered to retain might, in some cases, be one indicia

of possible bad faith, but all of the surrounding circ umstances

must be considered in determining bad faith. See, e.g.

, Woodson v.

Surgitek, Inc.

, 57 F.3d 1406, 1418 (5th Cir. 1995) (considering

facts surrounding party’s ref usal to comply with court orders to

find bad faith). The B rady claim was not raised in state court

(for good reason), and the district court made no express finding

regarding bad faith. Gentry points to two pieces of “evidence” of

the State’s bad faith——other than the State’s failure to preserve

the missing pages pursuant to court order. First, Gentry accuses8

Levy testified that he had a general open files policy at the time

of Gentry’s trial, but that he could not guarantee what Gentry’s

trial counsel did or did not see. In contrast, Podgorski testified

that he had never seen certain specific documents. The district

court credi ted Podgorski’s more specific memory but did not find

that Levy had lied about the policy. We likewise do not view the

somewhat conflicting testimony as evidence that Levy lied about the

policy. Gentry points to no other “evidence” of Levy’s alleged

deceit, and we find none.

Nor does the record support Gentry’s assertion that the State

intentionally suppressed information implicating Loftin. Gentry

cites to Loftin’s affidavit to support this assertion. Loftin’s

affidavit is consistent with his testimony. Of all of the other

evidence which was withheld from Gentry’s trial counsel, only

Hayes’s statement implicates Loftin, and it does so only to the

extent that it repeats the assertion that Loftin told Gentry that

the woods would be a good place t o kill someone. Loftin’s

suggestion of the woods as a killing place was before the jury at

trial through Loftin’s own testim ony. The other suppressed

evidence includes a report of Loftin’s polygraph test, showing that

he truthfully answered questions that he was not involved in the

murder of Hamm, and tape d interviews of Calvin Gentry, Larry

Gentr y, and Patterson. None of this evidence implicates Loftin.

Thus, we find no record support of an intent to withhold evidence

implicating Loftin.

19 Levy of lying about having an open file policy during trial.

Second, he accuses the State of suppressing from his counsel “each

and every document in its files that re flected [the state]

investigators’ suspicion” of Loftin. Neither claim is supported by

the record. 8 On the other hand, Shipman’s undisputed testimony

that the pages in the physical evidence file were all hand-numbered

and were out of order suggests negligence, not bad faith. We find

that Gentry fails to carry his burden of proving bad faith. S ee

Youngblood

, 109 S.Ct. at 337. While the court’s order certainly

obligated the State to retain the now-missing evidence, and while20

we do not condone the State’s negligent failure to do so, we reject

Gentry’s invitation to extend the adverse inference rule to cases

in which bad faith has not actually been proven.

B. Specific evidence

Gentry next points to two specific, a llegedly exculpatory

pieces of evidence which were withheld from him at trial as Brady

v iolations. This evidence, according to Gentry, was material to

punishment because it would have allowed him to raise doubt about

robbery as the motive for the murder and to raise the possibility

of mitigating circumstances.

First, Gentry complains that statements attributed to himself

in the affidavit of David Travis (Travis) were not made available

to him. Travis was an inmate in the Denton County Jail, along with

Gentry, in September and early October 1983. Travis testified for

the State during the punishment phase of Gentry’s trial about

conversations he had with Gentry in jail regarding Gentry’s plan to

escape and kill his brothers and fath er for reporting him to the

police. Travis made a written statement to the State on October 4,

1983. The State did not provide this statement to Gentry. Gentry

argues that it was a violation of Brady to withhold Travis’s

statement because portions of the statement repeating three of

Gentry’s own statemen ts are exculpatory. We reject this9

Gentry does not claim that he could have impeached Travis with any

part of his statement. Instead he points to three particular

statements that Gentry himself made to Travis, and that Travis

repeated in his statement to the police, as exculpatory. Gentry

told Travis that: (1) Hamm left his billfold on the dashboard

d uring the murder; (2) Loftin came up with the idea of Gentry

killing Hamm for his identification and that Loftin suggested that

he kill Hamm soon; and (3) Gentry shot Hamm three times, instead

of two as the autopsy report showed. We doubt that the first two

of these statements are exculpatory at all.

Gentry’s statement that he was in possession of his brother’s

identification and that Hamm left his billfold on the dashboard

does not support an inference that he had no intent to rob Hamm

when viewed in context of the entire statement. The relevant

paragraph of Travis’s undisclosed statement follows:

“Gentry said that he was using his brother’s

identification for work, but the police found out that he

was living in a trailer over in Krum, so it was time for

him to get out of town. He and [Hamm] left in Gentry’s

car and went to Oklahoma, and spent a day and a night

there. Then they came back to Gentry’s uncle’s place.

He said the uncle’s name is Harold. The uncle came up

with the idea of Gentry killing [Hamm] and taking his

identification to use. Harold said to Gentry, ‘if you’re

going to do it, now’s the best time.’ He said that he

could [switch] ID with [Hamm], and then Harold would go

and identify the body as that of Gentry, and this would

take the heat off Gentry. Gentry said he was headed out

to do it right then.”

This statement cannot reasonably be viewed as providin g an

inference that Gentry lacked the intent to rob Hamm. Similarly, no

reasonable juror c ould view the claim that Loftin initiated the

idea of killin g Hamm f or his identification as weakening the

State’s claim of a robbery motive.

We also find it doubtful that a reasonable juror could view

Loftin’s alleged initiation of the idea to kill Hamm as a

mitigating circumstance. Mitigating circumstances relevant to

punishment within the meaning of the Eighth Amendment include

evidence of “the defendant’s background and character [which will

support a] belief, long held by this society, that defendants who

commit criminal acts that are attributable to a disadvantaged

background, or to emotional and mental problems, may be less

culpable than defendants who have no such excuse.” S ee California

v. Brown

, 107 S.Ct. 837, 841 (1987) (O’Connor, J. concurring).

21 contention. Even if the statement is exculpatory, 9 it is notLoftin’s alleged initiation of the murder does not fit our

understanding of a mitigating circumstance.

22 material. Travis’s statement is not material under Brady because

all of the allegedly exculpatory material is merely repeated from

Gentry himself. Gentry obviously had knowledge of the alleged

facts which he complains were withheld. A defendant cannot

establish a Brady claim based on withheld evidence if he already

has knowledge of it. S ee, e.g., Williams v. Scott , 35 F.3d 159,

163 (5th Cir. 1994), cert. denied , 115 S.Ct. 959 (1995) (“A Brady

violation does not arise if the defendant, using reasonable

diligence, could have obtained the information”); B lackmon v.

Scott

, 22 F.3d 560, 564-65 (5th Cir.), cert. denied

, 115 S.Ct. 671

(1994) (“The state is not required to furnish a defendant with

exculpatory evidence that is fully available to t he defendant or

that could be obtained through reasonable diligence”); Duff-Smith

v. Collins

, 973 F.2d 1175, 1181 (5th Cir. 1992), cert. denied

, 113

S.Ct . 1958 (1993); M ay v. Collins

, 904 F.2d 228, 231 (5th Cir.

1990), cert. denied , 111 S.Ct. 770 (1991). “ Brady claims involve

‘the discovery, after trial of information which had been known to

the prosecution but unknown to the defense.’ U nited States v.

Agurs

, 427 U.S. 97, 103, 96 S.Ct. 23 92, 2397, 49 L.Ed.2d 342

(1976).” L awrence v. Lensing

, 42 F.3d 2 55, 257 (5th Cir. 1994).

In Lawrence

, we quoted with approval the following from United

States v . Jackson , 6 F.3d 911, 918 (2d Cir. 1993): “Evidence is10

In addition, we also note that Gentry’s claims that Hamm’s billfold

was on the dashboard and that he shot Hamm three times were before

the jury in the form of Gentry’s confession. Merely cumulative

evidence is not material under Brady

. Further, the allegedly

exculpatory portions of Travis’s statement are inadmissible hearsay

that was not reasonably likely to lead to admissible evidence. S ee

Wood v. Bartholomew , 116 S.Ct. 7, 10-11 (1995) (holding that

inadmissible evidence is not material for Brady purposes); Rumbaugh

v. State

, 589 S.W.2d 414, 417 (Tex. Cr. App. 1979) (hearsay barred

in Texas criminal p roceedings); P orter v. State

, 578 S.W.2d 742,

748 (Tex. Cr. App. 1979) (trial cour t must abide by rules of

evidence, including hearsay, in punishment phase of capital murder

trial).

11

Although Jamie’s statement is inadmissible hearsay, it might still

be Brady material if there were a reasonable probability that it

could have changed the outcome (the death penalty) by leading to

other admissible evidence. S ee Wood

, 116 S.Ct. at 10-11. Unlike,

Gentry’s own statements to Travis, there is no indication that

Gentry (or his counsel) knew that Loftin may have been at the crime

scene on the day of the murder. Gentry points to no source other

than Jamie that could have provided this information. Under W ood

, this Court cannot assume that Loftin himself would have recanted

and contradicted himself when faced with his son’s statement. S ee

id. at 10-11. It is possible, though not certain given Jamie’s

23 not ‘suppressed’ if the defen dant either knew, or should have

known, of the essential facts permitting him to take advantage of

any exculpatory evidence.” L awrence at 257 (citation and internal

quotation marks omitted). 10

Gentry next argues that it was a violation of Due Process

under Brady to withhold the statement of seven-year-old Jamie

Loftin (Jamie), Harold Loftin’s son. Jamie’s statement places

(Harold) Loftin at or near the scene of the crime on the day of the

murder, in direct contrast to Loftin’s own testimo ny. Assuming

that Jamie could have been qualified as a witness 11 and would haveconfused musings during the cassette-taped interview of him, that

Gentry may have been able to qualify Jamie as a witness to testify

that he and his father were fishing at or near the crime scene on

the day of the murder.

24 testified that Loftin was present at or near the crime scene on the

day of the murder, Gentry argues that this statement would have

allowed the jury to infer that Loftin was actually involved in the

murder. He further argues that implicating Loftin would have had

a two-fold effect. First, it could have cast doubt on the motive

of robbery. Second, it would have allowed the jury to consider

that Gentry might not be a future danger if he were locked in

prison away from the malignant influence of Loftin. Neither of

these arguments withstands examination.

Jamie’s statement provides evidence only that Loftin (and

Jamie) were at or near the scene of the crime on the day of the

murder. Considering the several witness statements that Gentry

said he wanted to obtain Hamm’s identification

—— in conjunction with

the fact that Hamm’s identification w as in the possession of

Gentry, Hayes, and Patterson when they were arres t ed

—— Jamie’s

statement does not undermine our confidence in the jury’s

determination that Gentry’s motive for murdering Hamm was to obtain

his identification. Gentry’s argument that there is a reasonable

probability that the jury would have answered the future violence

issue negatively if they had evidence that Loftin was at the scene12

Gentry’s implied argument is that he would kill someone because his

uncle told him to. A jury is likely to find this itself to be

evidence of future dangerousness. There is certainly no reasonable

probability that a reasonable juror would find Gentry less culpable

than defendants who have no such “excuse.” S ee Brown

, 107 S.Ct. at

841.

25 of the crime earlier in the day is meritless. 12

C. Cumulative effect of withheld evidence

Gentry argues that the district court e rred by parsing the

undisclosed statements into their component parts and conclud ing

that each potentially exculpatory clause was not material. While

the Supreme Court has held that the cumulative effect of

undisclosed evidence must be considered as a whole, it noted at the

same time that th e evaluation of the tendency and force of the

evidence must be done item by item. K yles

, 115 S.Ct. at 1567 n.10.

Thus, in sections II. A. & B. supra

, we evaluated ea ch item of

undisclosed evidence separately. Because Gentry is not entitled to

the adverse inference rul e, the missing documents provide him no

support for a Brady error. Travis’s statement also lends no weight

to the cumulative effect of the alleged Brady error. Gentry’s

a rgument that the State violated the Due Process Clause by

withholding material, favorable evidence from him must rely solely

on Jamie’s statement. Our analysis of the cumulative effect of

Jamie’s statement is the same as our analysis of Jamie’s statement

alone. Its admission would not have provided a reasonable

probability of a different punishment. In summary, viewing all of26

the suppressed evidence as a whole, the suppression does not

undermine our confidence in the outcome of the punishment imposed.

See Bagley

, 105 S.Ct. at 3383. For these reasons, we find there

was no Brady

error.

III. Ineffective Assistance of Counsel

Gentry argu es that the district court erred in denying his

claim of ineffective assistance of trial counsel. To establish

this claim, Gentry must sat isfy the two-prong test enunciated in

Strickland v. Washington

, 104 S.C t. 2052 (1984). First, Gentry

must prove that trial counsel’s performance fell below an objective

standard of reasonableness as measured by prevailing professional

norms. Id. at 2064. Second, he must also show that a reasonable

probability exists that, but for counsel’s unprofessional errors,

the outcome would have been different. Id

.

Relying on eviden ce presented in three evidentiary hearings

before it, and without giving deference to the state habeas court

findings, the district court held that Gentry’s trial counsel’s

performance was deficient in, and only in, failing to cast doubt on

the state’s theory that the murder was committed during the course

of a robbery. But, the district court held that Gentry failed to

satisfy the second prong of the Strickland test to show prejudice

from this deficiency.

On appeal, Gentry restricts his a rgument of ineffective27

assistance to counsel’s presentation of evidence at the sentencing

stage of trial, arguing that the prejudice he suffered was in

receiving the death penalty instead of incarceration. He points to

three areas in which his trial counsel’s performance was deficient

and prejudiced him: (1) failing to develop the possible role of his

uncle, Loftin, in the murder; (2) failing to develop, investigate,

and call witnesses to testify as to mitigating circumstances in his

past; and (3) failing to provide information to and call a medical

expert to testify that he would not be a danger in the future

.

A. Harold Loftin’s role

Gentry argues that trial counsel’s failure to produce evidence

regarding “the implications of Harold Loftin’s involvement in the

offense” prejudiced him. He suggests two possible reasons this

failure may have prejudiced him at the sentencing stage: the jury

may reasonably have believed that Loftin (1) committed——or at least

participated in——the murder, leaving Gentry a less culpable role,

and/or (2) may have influenced Gentry to commit the crime, also

making Gentry less culpable. The State responds that crossexamination of Loftin would not have resulted in Loftin’s admission

of a significant role in Hamm’s murder, that Gentry fails to

establish that any evidence of Loftin’s alleged role cou ld have

been developed in any other manner, and that there is no reasonable

probability that the jury would have viewed such evidence as

lessening Gentry’s culpability to the extent that he would not be28

a future danger.

1. A direct role in the murder for Loftin

The record reflects that boot prints and shotgun shell casings

were located near the scene of the murder. It also reflects that

there was evidence that Loftin left work on the day of the murder,

that he was weari ng boots and carried a shotgun, that Loftin and

his son went fishing at or near the crime scene on the day of the

murder, that Loftin and his wife (Mrs. Loftin) were upset shortly

after the ti me of the murder, that Loftin and his wife were

concerned that Patterson might talk to the police, and that Mrs.

Loftin destroyed photographs in Hamm’s wallet after the murder and

described her plan to claim Hamm’s body as the body of Gentry.

As the district court noted, trial counsel’s decision not to

portray Loftin as a plausible sus pect must be viewed in light of

the situation counsel actually faced. See Bouchillon v. Collins

,

907 F.2d 589, 597 (5th Cir. 1990). “We must ‘indulge a strong

presumption that counsel’s conduct falls within the wide range of

reasonable professional assistance’ and that the ‘challenged action

might be considered sound trial strategy.’” B elye v. Scott

, 67

F.2d 535, 538 (5th Cir. 1995) (quoting Strickland

, 104 S.Ct. at

2065), cert. denied

, 116 S.Ct. 1438 (1996). Gentry confessed that

he killed Hamm alone. There is no evidence that Gentry ever

repudiated his confession, to his lawyer or anyone else. Gentry

also told Hayes, Mrs. Loftin, Patterson, and Goodman that he had29

committed the murder with no mention of Loftin’s presence, though

he did indicate that Loftin suggested that the murder take place in

a wooded area. The bullets which killed Hamm were .38 caliber,

consistent with the weapon carried by Gentry——not shotgun shells.

All of the evidence which might implicate Loftin in the murder is

also consistent w ith Gentry’s version of events. Neither Gentry

nor any other witness has ever testified or furnished an affidavit

saying either that Loftin was in fact present at (or participated

in) the murder of Hamm o r that Gentry (or anyone else) ever so

informed any of Gentry’s lawyers. Though there was some indication

that Loftin may have lied about being at the scene of the crime on

the day of the murder, the statement placing him at or near the

scene did not implicate him in the murder. There is to this day no

evidence that Loftin was present at, or directly participated in,

the murder of Hamm. We agree with the district court that

“an agonistic stance toward Loftin might well have

injected damaging evidence against petitioner. The jury

might have heard of [Mrs.] Loftin’s destruction of Hamm’s

photogra phs from the billfold, and her plan to claim

Hamm’s body as the body of Gentry. Such evidence, not

introduced a t trial, would have bolstered the state’s

theory that the object of the murder was a new identity

for petitioner . . . . [A] strategy to implicate Loftin

would have fortified Gentry’s motive for murder without

shifting the responsibility for the murder convincingly

to Loftin.”

Gentry fails to carry his burden of showing either that counsel’s

performance was deficient in this respect or that any reasonable

probability exists that Gentry would not have been given the death30

penalty if his trial counsel had attempted to implicate Loftin

directly in the murder.

2. Loftin’s bad influence

Gentry argues that there is a reasonable probability that the

jury would not have sentenced him to death if counsel had informed

the jury of Loftin’s adverse influence on him since he was a young

teenager. Gentry points to no specific evidence of this bad

influence on appeal. There is record evidence that Loftin was

involved with G entry’s burning of a car that Gentry stole from a

neighbor. There is also evidence that Loftin gave Gentry advice

about where to kill Hamm and may have given him the idea to do it.

We agree with the district court that

“[i]n order to have further explored the extent of

[Loftin’s bad] influence, counsel would have been

required to detail joint criminal enterprises conducted

in the past by Loftin and Gentry. Any marginal benefit

accru ing from such a strategy would have to be weighed

against the resulting damage . . . .”

Because any evidence of Loftin’s bad influ ence would likely have

also shown Gentry’s own bad acts, Gentry has not shown either that

counsel’s performance was deficient in this respect or that there

is a ny reasonable probability that, by counsel’s addressing

Loftin’s bad influence on him, Gentry could have avoided the death

penalty. Gentry fails to show either defective performance or

prejudice from counsel’s failure to im plicate Loftin directly in

the crime.13

Gentry fails to point to any nonfamily witnesses who could have

testified about his childhood traumas.

31 B. Witnesses of childhood hardship

Gentry complains that trial counsel failed to provide

effective assistance by failing to interview witnesses and present

mitigating evidence of his childhood hardships, including alcoholic

parents, childhood physical abuse, attempted suicide, several

successful suicides in his fa mily, psychiatric problems from

adolescence, and periodic black-outs since infancy. Ineffective

assistance of counsel results from counsel’s failure to interview

witnesses only where a petitioner demonstrates that counsel would

have found witnesses to support the defense theory, and that, if

counsel had located and called the witnesses, they would have been

willing to testify and their testimony would have been favorable.

See Alexander v. McCotter , 775 F.2d 595, 602 (5th Cir. 1985).

The record shows that Gentry informed his counsel that he did

not want any of h is family members to testify. A petitioner can

show no defective performance und er S trickland by his counsel’s

failure to interview witnesses whom the petitioner ha s opposed

having testify. A mos v. Scott

, 61 F.3d 333, 348-49 (5th Cir.)

,

cert. denied

, 116 S.Ct. 557 (1995). 13 Moreover, the district court

found, on the basis of clearly adequate evidence, that Gentry’s

trial counsel “were aware of th e evidence regarding petitioner’s

traumatized youth and his mental, emotional, and physical problems,14

Moreover, we note that Gentry’s failed attempted escape from the

jail was in part for the pu rpose of killing his father, brother,

and uncle, whom

he believed had turned against him. His father

had c ontacted the authorities, and several of his family members

testified for the state. His mother was involved in the attempted

escape and had smuggled a gun to him.

32 but made an informed tactical choice not to present such evidence”

based on “the state of Te xas law at the time of petitioner’s

trial”

—— years before Penry v. Lynaugh

, 109 S.Ct. 2934 (1989)

—— under

which counsel concluded “‘it would have only hurt him [Gentry].’”

The Court of Criminal Appeals in its habeas review, and the

district court below, both concluded that this was a reasonable

tactical decision under the circumstances. We agree. See, e.g.,

May v. Collins

, 904 F.2d 228, 232 (5th Cir. 1990), c ert. denied

,

111 S.Ct. 770 (1991); id

. at 234 (concurring opinion of Judges

Reavley and King). Counsel was not defective for failing to

anticipate Penry

. 14

Gentry has not shown defective performance under Strickland in

this respect.

C. Medical expert

Gentry complains of trial counsel’s failure to ret ain and

present a mental health expert during the sentencing phase because

such an expert could have presented the only scientific testimony

available to the jury on the issue of future dangerousness.

Defense counsel waited until the last day of trial——or perhaps the

last day of the sentencing phase——to have a psychiatrist, Dr.33

Taboada, evaluate Gentry. Dr. Taboada met with Gentry one time,

for no longer than an hour. Counsel did not provide Dr. Taboada

with Gentry’s medical history, school history, psychiatric history,

or family hi story. Gentry argues that he was prejudiced by his

counsel’s failure to provide records and information to Dr. Taboada

because, after having access to the relevant information, Dr.

Taboada (1) was inclined to modify his original diagnosis to

i nclude possible depressive disorder with genetic basis, (2)

explained that Gentry's family environ ment made it difficult to

"break [] through the cell

. . . of this anti-social environment,”

and (3) stated that there was "hope" for Gentry because his

disorder is amenable to treatment. The State responds that

counsel’s failure to provide records to Dr. Taboada is irrelevant

because Dr. Taboada did not change his diagnosis of sociopathy or

his opinion tha t Gentry would be a future danger even after he

viewed all of the records. We agree with the State.

Dr. Taboada clearly stated that he would not alter his

diagnosis of sociopathy and that he still could not diagnose Gentry

with depressive disorder. He did state that, if he had been

provided the information regarding Gentry’s history, he would have

suggested fur ther evaluations of Gentry to determine if he might

have some sort of genetic depressive disorder in addition to his

sociopathy. Dr. Taboada was still satisfied that Gentry is a

sociopath, and he explained that a person can simultaneously have34

sociopathy and a depressive disorder. Dr. Taboada opined that

treatment of a person with both depressive order and sociopathy

might make the pers on feel better, but he would not say, despite

repeated questions, that the sociopathy could be treated.

According to Dr. Taboada, it is difficult to treat sociopathy, and

the treatment experience is largely negative.

Dr. Taboada also stated that, even a fter the information he

had received from habeas counsel about Gentry, he was still

satisfied with his original diagnosis that Gentry would probably

commit violent acts in the future. In response to Gentry's

attorney's question, Dr. Taboada equivocally stated that Gentry

might be less likely to commit violent crimes while in prison with

p roper treatment and supervision, but he added that suc h a

statement was speculation.

Dr. Taboada, desc ribed by Gentry’s counsel as defenseoriented, continues to opine that Gentry will commit violent crimes

in the future, with the caveat that if Gentry is locked up in

prison there is a chance to control his violent behavior

. But even

this chance is mere speculation. Gentry has failed to show that

there is a reasonable probability that, if counsel had given Dr.

Taboada mor e information, his testimony would then have been

helpful an d would have provided a reasonable probability of a

different punishment.

We reject Gentry’s ineffective assistance of counsel claims.35 Conclusion

For the fo regoing reasons, we AFFIRM the district court’s

denial of Gentry’s petition for habeas corpus relief.

AFFIRMED