1 United States Court of Appeals

Fifth Circuit



## FILED

November 15, 2005

Charles R. Fulbruge III

Clerk UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

No. 04-70009

DONALD ANTHONY MILLER,

Petitioner-Appellee,

versus

DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,

CORRECTIONAL INSTITUTIONS DIVISION

,

Respondent-Appellant

.

Appeal from the United States District Court

for the Southern District of Texas

Before BARKSDALE, GARZA, and DENNIS, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

In 1982, Donald Anthony Miller was convicted in Texas state

court of capital murder and sentenced to death. In 2004, federal

habeas relief was conditionally granted for sentencin g, the

district court concluding that the State violated due process by

withholding evidence, in violation of Brady v. Maryland , 373 U.S.

83 (1963) (due process violation for prosec ution to suppress

favorable material evidence) ( Brady -claim). It denied relief for

the other claims, including the same Brady -claim as applied to

guilt/innocence. For those claims, a certificate of appealability

(COA) was denied by the district court.2

T he State appealed. Seeking leave to cross-appeal, Miller

requested a COA from this court on three claims; it was denied.

Miller v. Dretke , 404 F.3d 908 (5th Cir. 2005).

Therefore, at issue is the State’s appeal from the conditional

relief on sentencing. Any suppressed evidence was n ot material for

sentencing. JUDGMENT VACATED; RELIEF DENIED.

I.

(The following is in large part a repetition of the facts in

our first opinion. I d. at 911-12.) On 2 February 1982, Michael

Mozingo and Kenneth Whitt, travelin g furniture salesmen, were

approached by Miller, Eddie Segura, and Danny Woods, who feigned

intere st in purchasing furniture. After Mozingo and Whitt were

lured to Segura’s house to deliver the furniture, they were robbed,

bound, and gagged. Miller, Segura, and Woods drove Michael Mozingo

and Kenneth Whitt to Lake Houston in Harris County, Texas, where,

with their hands tied, they were murdered by Miller, with a

handgun, and Woods, with a shotgun.

In October 1982, Miller was convicted for capital murder, and

sentenced to death, for murdering Michael Mozingo while in the

course of committing, and attempting to commit, aggravated robbery.

Segura testified against Miller; Woods did n ot testify. (Before

Miller’s trial, Segura pleaded guilty to aggravated robbery; Woods,

t o murder, receiving two life sentences. Post-trial, Segura was

sentenced to 25 years in prison.)3

The Texas Court of Crimina l Appeals affirmed. M iller v.

State

, 741 S.W.2d 382 (Tex. Crim. Ap p. 1987) (en banc). The

Supreme Court denied a writ of certior ari. Miller v. Texas , 486

U.S. 1061 (1988).

Miller requested state habeas relief, presenting numerous

claims, but not the pending Brady -claim

. The state district court

entered findings of fact and conclusions of law and recommended

denial of relief on each claim. E x Parte Miller

, No . 350303-A

(232d Dist. Ct., Harris County, Tex. 7 May 1997). The Court of

Criminal Appeals adopted those findings and conclusions and denied

relief. E

x Parte Miller

, No. 36140-01 (Tex. Crim. App. 1998)

(unpublished order).

In February 1999, Mil ler requested federal habeas relief,

raising five claims, i ncluding a B rady -claim presented for the

fir st time. Following an evidentiary hearing in September 2002,

the district court ruled in February 2004 that the Brady -claim was

not procedurally barred and conditionally granted habeas relief for

it, but only for sentencing. M iller v. Johnson

, H-99-0405, slip

op. at 24 (S.D. Tex. 2 February 2004) ( USDC Opn .). For the other

claims, including the Brady -claim for guilt/innocence, the district

court awarded the State summary judgment and denied, sua sponte

, a

COA for those claims. The court stayed its judgment pending

appeal. In short, 22 years passed between the murders and federal

habeas relief being granted.4

Following our denial of a COA for Miller, Miller

, 404 F.3d at

920-21, oral argument was held on the State’s appeal from the

conditional habeas relief. At argument, we ordered supplemental

briefing on the State’s failure to exhaust claim.

II.

The State maintai ns the district court erred by: (1)

considering Miller’s Brady -claim, because it was not exhausted in

state court; and (2) in the alternative, granting relief on that

claim for his sentence.

Miller’s 28 U.S.C. § 2254 habeas petition is subject to the

Antiterrorism and Effective Death Penalty Act o f 1996 (AEDPA).

See

, e.g.

, Penry v. Johnson

, 532 U.S. 782, 792 (2001). Generally,

a district court is required by AEDPA to defer to the state

court’s: (1) adjudication of claims on questions of law and mixed

questions of law and fact, unless the state court’s “decision ...

was contrary to, or involved an unreaso nable application of,

clearly established Federal law, as determined by the Supreme Court

....” 28 U.S.C. § 2254(d); s ee Hill v. Johnson

, 210 F.3d 481, 488

(5th Cir. 2000), cert. denied

, 532 U.S. 1039 (2001); and (2)

factual findings unless they “resulted in a decision that was based

on an unreasonable determination of the facts in [the] light of the

evidence presented in the State court proceeding”. 28 U.S.C. §

2254(d)(2). Concerning the latter point, the state court’s factual

findings are “presumed to be correct”; the petitioner has “the5

burden of rebutting the presumption of correctness by clear and

convincing evidence”. 28 U.S.C. § 2254(e)(1).

Obviously, because Miller’s Brady -claim was not presented in

state court, such AEDPA deference does not apply in this instance.

The district court’s findings of fact are reviewed for clear error;

its rulings of law, de novo. E.g., Fairman v. Anderson , 188 F.3d

635, 640 (5th Cir. 1999).

A.

Claims not raised in state court usually cannot be considered

on federal-habeas because they are not exhausted. S ee 28 U.S.C. §

2254(b)(1)(A). A federal court may consider an otherwise defaulted

claim, however, on a showing of eit her cause for the default and

prejudice or actual innocence. B ousley v. United States , 523 U.S.

614, 622-23 (1998); Teague v. Lane

, 489 U.S. 288, 298 (1989).

(Miller did not attempt to demonstrate actual innocence.)

Follo wing an evidentiary hearing, the district court ruled

Miller’s Brady -claim was not barred because the cause-and-prejudice

exception was satisfied: the suppressed evidence was not

reasonably available to Miller; and the suppression prejudiced him

for sentencing

. USDC Opn. at 20, 24. “Whether a federal habeas

petitioner has exhausted state remedies is a question of law.”

Wilder v. Cockrell , 274 F.3d 255, 259 (5th Cir. 2001).

For its non-exhaustion claim, the State maintains the district

cou rt erred in concluding there is no available state corrective6

process for Miller’s claim and in failing to dismiss the claim

without prejudice to allow him to pursue a successive state habeas

application. On a related point, the State notes that the district

court is barred by AEDPA from granting, but not denying

, habeas

relief on non-exhausted claims. See 28 U.S.C. § 2254(b)(1)(A).

Miller urges the State should be estopped from now asserting

his claim is not procedurally barred in state court because it took

the opp osite position in earlier proceedings in district court.

Miller maintains the State seeks to gain an unfair advantage if the

claimis returned to state court because, if he is denied relief

there, the state court decision will be subject to the abovediscussed AEDPA deference.

As noted, under § 2254(b)(2) we can deny (but not grant)

Miller’s non-exhausted claim. Because we hold Miller is not

entitled to habeas relief on the Brady -claim, we need not decide

whether the district court erred in considering it.7 B.

“[T]he Constitution is not violated every time the government

fails or chooses not to disclose evidence that might prove helpful

to the defense. ” Kyles v. Whitley , 514 U.S. 419, 436-37 (1995)

(addressing factors underlying when suppressed evidence is material

for Brady -claim purposes and manner by which such evidence is to be

considered). Therefore, the well-known elements for a B rady -claim

are: (1) the prosecutor s uppressed evidence, (2) favorable to the

defense, (3) and material to guilt or punishment. B rady, 373 U.S.

at 87. (Accordingly, “the good faith or bad faith of the

prosecution” is not an element. Id. )

Evidence is m aterial if there is “a reasonable probabili t y

that, had the evidence been disclosed to the defense, the result of

the proceeding would have been d ifferent”. U nited States v.

Bagley

, 473 U.S. 667, 682 (1985) (emphasis added). This

reasonable-probab ility standard is met if the suppression is

significant enough to undermine con fidence in the outcome of the

trial. Kyles , 514 U.S. at 433-34.

In determining whether evidence is material for Brady

purposes, we must consider the cumulative effect of all suppressed

evidence, rather than ruling on each item individually. Id. at

436-37. The district court’s rulings on materiality are reviewed

de novo, because they involve mixed questions of law and fact. S ee

Felder v. Johnson

, 180 F.3d 206, 212 (5th Cir.), cert. denied

, 5288

U.S. 1067 (1999); Trevino v. Johnson

, 168 F.3d 173, 184 (5th Cir.),

cert. denied , 527 U.S. 1056 (1999).

The murders occurred in February 1982; Miller was convicted

that Octobe r. During a pre-trial motion, the prosecutor claimed

Brady did not require his disclosing impeachment evidence, but only

evidence exculpatory to Miller’s guilt. The trial court did not

require disclosure of additional evid ence. Miller contends the

State suppressed the fo llowing material evidence that it had

generated: (1) statements by Ray McCall in 5 and 20 May 1982

interviews; (2) statements by Archie Morris in a 5 May 1982

interview; and (3) affidavits of four persons who did not testify.

The district court found investigator’s notes from these two

interviews with McCall were suppressed. At trial, McCall testified

as follows. On the night of the murders, McCall, the brother of

Segura’s then girlfriend, Monica McCa ll, visited Miller’s home

after the murders had been committed. Outside Miller’s presence,

Segura and Woods described the night’s events to McCall. Miller

paid McCall to go to the murder site later that night, to confirm

the bodie s were still there; McCall was unable to find them, but

returned with Miller and did so.

In notes from the 5 May interview

, an investigator

acknowledged McCall’s not having told the truth on prior occasions.

The district court found these notes raised quest ions about

McCall’s credibility and were important because McCall corroborated9

testimony by Segura, who had been present at the murders and was

the State’s key witness. USDC Opn. at 22.

In the 20 May interview, McCall stated: on the night of the

murders, Woods and Segura said nothing about them, but admitted

only to the robbery; and he went home around 9:00 p.m. (mentioning

nothing in the statement about going to look for the bodies either

alone or with Miller). The district court noted McCall’s

statements during this interview differed from his trial testimony

and could have been used for impeachment. Id.

Morris (the grandfather of Ray and Monica McCall, as well as

of Miller’s then girlfriend) was the source for the .38 caliber

handgun used in the murders. The district court found prosecutor’s

notes of Morris’ 5 May statement that he owned only a .22 caliber

handgun had not been given to Miller. At trial, Morris testified:

just prior to the murders (though he could not recall precisely

when), Miller had borrowed from him the .38 caliber handgun used in

the murders ; and McCall returned it to him sometime after the

murders. While not specifically addressing Morris’ contradictory

statements, the dis trict court found the suppressed evidence

undermined Segura’s credibility, as well as the value of McCall and

Morris’ corroborating testimony. Id. at 24.

The State concedes suppression of affidavits from four who did

not testify: Robert White, Tommy Holsinger, Tammie Jones, and

Melissa Spears. They had been in a group with Woods on the evening10

of 2-3 February 1982, after the murders earlier that evening. In

their affidavits, each affiant told police they over heard Woods

brag about the murders. Detective Clampitte was one of the

investigatin g officers; arrested Miller, Segura, and Woods; and

took the four statements. Miller’s counsel asked the Detective

about the affidavits on cross -examination at trial (Miller’s

counsel knew the names of the affiants without the Detective having

named them); and Detective Clampitte testified about them, but the

trial court refused their being then provided to Miller.

Again, Woods did not testify. White’s affidavit stated Woods

told him that, after one of the victims was hit with a shotgun

blast, “[e]ither Danny [Woods] or the guy with Danny then reached

down into his boot and pulled a .38 pistol and shot the other guy

when he started to run”. White’s affidavit also stated that, when

Woods visited White the day after the murders, Woods denied Miller

was one of the shooters. Jones’ affidavit describes Woods having

possibly said a .45 caliber handgun was used in the murders.

Holsinger’s affidavit suggests Woods took full responsibility for

the murders and left Holsinger with the impression “it was an

everyday thing with him”. The district court found the affidavits

indicated Woods

, n ot Miller

, killed both victims and that Segura

was armed. Id

. at 23.

Referring primarily t o McCall and Morris’ statements, and

applying Brady’ s above-described three-part test, the district11

court ruled: (1) the State withheld evidence; (2) it was favorable

to Miller; and (3) it was material, but only for sentencing

. U SDC

Opn. at 26. In ruling earlier on the procedural-bar prejudice

element, the district court held: although Miller’s “ complicity in

the killings is not seriously disputed ”, Miller “ challenge[d] his

portrayal as the ringleader and shooter

, a role that warranted

conviction for capital murder and imposition of the death

sentence”. Id. at 23 (emphasis added). In ruling on the B rady

claim, the district court noted: “The analysis for [ B rad y

- ]

materiality tracks that of [procedural-bar] prejudice”. I d. at 26.

It held: “the newly disclosed evidence raises signific ant doubt

about the outcome of the trial, particularly the punishment

assessed”; and “the State’s refusal to disclose material evidence

... vitiated the sentence imposed”. Id.

Following Miller’s conviction, in order t o sentence him to

death, the jury was required to, and did, unanimously answer two

special issues in the affirmative:

SPECIAL ISSUE NO. 1

Whether the conduct of the defendant that

caused the death of the deceased was committed

d eliberately and with the reasonabl e

expectation that ... death ... would result

.

SPECIAL ISSUE NO. 2

Whether there is a probability that the

defendant would commit criminal acts of

violence that would constitute a continuing

threat to society.12

T EX

. C ODE C RIM

. P ROC

., art 37.071(b) (Vernon 1981) (emphasis added).

(Mil ler’s trial was held before a third special issue for

mitigation was added to the Texas death penalty statute in 1991.

T EX

. C ODE C RIM

. P ROC

., art 37.071, § 2(e)(1), added by 1991 Tex. Sess.

Law Serv. Ch. 838 (S.B. 880) (Vernon).) Therefore, for those two

answers, at issue is whether “there is a reasonable probability

that, had the [suppressed] evidence been disclosed to [Miller], the

result of the [penalty phase] would have been different”. B agley

,

473 U.S. at 682.

The State maintains: the trial transcript demonstrates that

much of the claimed suppressed evidence was disclosed (again, the

State concedes suppression only of the four affidavits of nontestifying witnesses); any suppressed evidence provides only

incremental impeachment value and is, therefore, not material ; and,

in other words, given the comprehensive evidence of Miller’s guilt

and future dangerousness, even if suppressed evidence had been

disclosed, there is not a reasonable probability the sentence would

have been different.

Keying on all three elements for a Brady claim, Miller

responds: the district court’s determination that evidence was

suppressed is reasonable; t he State fails to demonstrate the

suppressed evidence was not favorable; and the district court ruled

correctly that there was a reasonable probability the result of the13

penalty phase would have been different had the suppressed evidence

been disclosed.

1.

The most substantial evidence at issue is McCall’s lengthy 20

May statement, which was recorded and transcribed. As discussed,

McCall stated: on the night of the murders, Woods and Segura said

nothing about them, admitting only to the robbery; and he went home

around 9:00 p.m. He said nothing about going to look for the

bodies.

Regarding that statement, the State acknowledges that Miller’s

state habeas counsel r eceived only one side of the two-sided

interview tape; but, it maintains Miller’s t rial counsel

, Rick

Stover, received the tape-recorde d and transcribed statement in

their entirety and cross-examined McCall about the statement. In

support of this contention, the State points to Stover’s use of the

term “destruction derby”, found on the second side of the tape, in

cross-examining McCall, demonstrating Stover must have listened to

the entire tape. At the district court evidentiary hearing in 2002

(approximately 20 years after the trial), the prosecutor, Olsen,

testified he gave Stover the tape and probably gave him the

transcript. Although Stover testified at the evidentiary hearing

that he did not remember receiving a transcript of the tape, he

admitted that, based on his review of his cross-examination of

McCall, it was obvious he (Stover) must have heard the tape.14

Citing numerous comments in the statement that would have been

damaging to Miller, including, inter alia , McCall’s discussion of

Miller’s previous criminal activity, the State questions whether it

would be favorable to Miller. For example, the statement includes

McCall’s description of Miller’s involvement in numerous automobile

thefts, smoking marijuana, selling methamphetamine, and moving the

stolen furniture out of Segura’s house following the murders. The

State points out: Miller claims McCall, in his 20 May statement,

denie d having viewed the bodies; but, there is no denial – the

topic is simply absent from the statement.

Given the absence of any denial, and use by Stover, in crossexamining McCall, of much of the information in the 20 May

statement, the State contends Miller cannot demonstrate suppressed

portions of the statement, if any, were material. Rather,

according to the State, given the extensive corroborative evidence

against Miller, the statement only provided incremental impeachment

value that is not material for Brady purposes. S ee Edmond v.

Collins

, 8 F.3d 290, 294 (5th Cir. 1993) . In this regard, the

State points to McCall’s acknowledgment at trial that he had

previously been untruthful.

Miller c ounters that McCall’s 20 May statement was at least

partially

suppressed and was favorable and material. Miller

concedes Stover’s cross-examination of McCall at trial and Stover’s

testimony at the d istrict court evidentiary hearing indicate he15

received part of the tape. Miller contends, however, that the

district court reasonably found it was suppressed, given the

State’s on-the-record, pre-trial incorrect position concerning its

obligation to produce impeachment evidence and its failure at the

state habeas proceeding to disclose the transcript of the

interview. In addition, Miller maintains Stover failed to crossexamine McCall about the most damaging portions of the 20 May

interview (McCall’s claim the co-defendants said nothing about the

murders and tha t he left Miller’s house alone an hour and a half

after arriving and did not return until the next day), something

Stover would have asked about had h e received the entire tape or

transcript.

Miller next claims the 20 May interview was favorable because,

as the district court found, it constituted a “hornbook example[]

of impeachment evidence”. USDC Opn. at 26. McCall’s 20 May

statement differed from his trial testimony. Therefore, according

to Miller, it could be used to impeach McCall and was thus

favorable to Miller.

Finally, Miller asserts that the statement is material, based

on several important differences between it and McCall’s trial

testimony and the State’s relia nce on McCall’s testimony,

particularly at sentencing. Miller emphasizes especially McCall’s

failure in the statement to mention searching for the bodies on the

night of the murder, either alone or with Miller; instead, McCall16

claimed he left Miller’s house at approximately 9:00 p.m. Miller

asserts that, according to Stover’s testimony at the district court

evidentiary hearing , McCall’s testimony about seeing the bodies,

inclu ding his detailed description of their position and

appearanc e, was some of the most damning at the trial. Miller

contends the State’s persistent references to McCall’s testimony in

closing argument demonstrates the materiality of any inform ation

that could have been used to impeach him. Given the importance to

the State of McCall’s testimony, Miller contends there is a

reasonable probability that, had it been impeached, at le ast one

juror would have answered one of the special issues differently.

2.

The transcription of Olsen’s notes from 5 May covers several

interviews, including with McCall and Morris. At McCall’s 5 May

interview, he acknowledged having been untruthful previously,

admitted to helping Segura and Miller dispose of the stolen

furniture, but denied any responsibility for disposing of the .38

caliber handgun. At the district court evidentiary hearing, Stover

testified that, although he could not specifically remember, he did

not bel ieve he received the 5 May notes; he testified they were

material because of their usefulness in impeaching McCall and the

extent to which the State relied on McCall’s testimony.

The State maintains the notes were neither suppressed nor

material. They reflect Olsen’s impression that McCall was not

being truthful. According to the State, because the prosecutor17

(Olsen) and Miller’s counsel (Stover) questioned McCall at trial

about his prior inconsistent statements, Miller cannot demonstrate

the 5 May interview notes were either suppressed or material.

Miller maintains the 5 May notes from McCall’s interview

demonstrate, inter alia

, that McCall met with Olsen many more times

than he admitted at trial and contribute to the defense theory that

McCall pandered to prosecutors. Miller contends the district court

did not err in finding the 5 May notes, in conjunction with other

suppressed evidence, material for sentencing. USDC Opn . at 26.

3.

As discussed, at his 5 May interview, Morris denied having a

.38 caliber handgun, stating he had only a .22 caliber handgun that

he never gave to Miller. At trial, Stover did not question Morris

about these denials. At the district court evidentiary hearing,

Stover testified that, had he been provided Morris’ statement, he

would have impeached him with it and perhaps implied that McCall,

not Miller, was the shooter. The district court determined Morris’

statement was “hornbook ... impeachment evidence” and, together

with other suppressed evidence, its suppression resulted in a Brady

violation for sentencing. USDC Opn. at 26.

The State maintains Miller cannot demonstrate the notes were

suppressed. In the alternative, it contends that, even if Stover

did not receive the notes about Morris’ pri or inconsistent

statement, the statement was not material in the light of the18

following evidence corroborating Morris’ trial testimony: Segura

testified he and Miller stopped at Morris’ house prior to the

murders; McCall testified that, after the murders, he received the

.38 caliber handgun from Miller and returned it to Morris; and,

Morris’ neighbor, Tommy Reyes, testifie d Morris gave him the gun

for safe keeping after the mu rders. The gun was found by

investigators at Reyes’ home.

Miller responds that, ha d Morris’ testimony been impeached,

the jury could only connect Miller to the murder weapon through the

testimony of Segura and McCall, both of whom had motivation to

implicate Miller and to satisfy prosecutors. According to Miller,

Morris’ statement leaves open the possibility Segura obtained the

gun from Morris and supports the defense theory that either Segura

or McCall could have shot Michael Mozingo (the murder for which

Miller was tried). Miller maintains it was not error for the

district court to find Morris’ statement material to sentencing.

4.

As discussed, starting with his cross-examination at trial,

the four affidavits of non- testifying witnesses were covered by

Detecti ve Clampitte, who testified to having taken them shortly

after the murders. The Detective had the affidavits when he

testified and, at one p oint, refreshed his recollection by

reviewing them. After the Detective testified to having the

affid avits, Stover asked for them; Olsen objected; and the court

sustained the objection. Stover later asked again for the19

statements, but the trial court again denied his request. The

affidavits were not specifically addresse d at the district court

evidentiary hearing.

While the Sta te concedes the affidavits were suppressed, it

maintains: their substance was disclosed to Stover in the offense

reports; and, even if not so disclosed, they were not material.

The State also maintains: the statements are inadmissible hearsay

and thus cannot be material; even if they were admissible, because

they are not inconsistent with testimony at trial that Miller was

a shooter, they could not affect the outcome of sentencing; and,

portions of the affidavits could have been harmful to Miller at

trial.

Miller counters that the affidavits would have been admissible

under the Texas Rules of Evidence, beca use Detective Clampitte

testified from them and used them to refresh his recollection. S ee

T EXAS C ODE OF C RIMINAL P ROCEDURES

, Art. 38.24, V.A.C.C.P. (1985) (now

T EX

. R. E VID . 106 and 107). The affidavits, according to Miller,

were material, in part due to the manner by which they were

introduced - through the testimony of the homicide detective for

the case: through that testimony, the jury was invited to conclude

Woods had implicated himse lf and Miller to the four affiants.

M iller contends portions of the affidavits, most importan tly

White’s statement that Woods said the other shooter pulled the .38

from his boot

, support a conclusion that someone other than Miller20

was the shooter, because, acc ording to Miller, it was clearly

established at trial that he was not wearing boots at the time of

the murders. Miller also points to White’s statement in his

affidavit that, the day after the murders, Woods denied Miller was

involved. Jones’ affidavit provides Woods m ay have said a .45 was

used in the murders; Miller c laims this supports the possibility

Segura, who was known to have a .45, was also armed. According to

Miller, in evaluating the suppressed affidavits together with the

other suppressed evidence, the district court did not err in

determining at least one juror would ha ve answered the

deliberateness issue differently.

C.

For the three Brady -claim elements, th e State maintains the

evidence in issue is not material; in addition, it claims: it d id

not suppress evidence, other than the four affidavits; and any

suppressed evidence was not favorable to Miller. In the light of

our holding, infra

, that the evidence is not material to the jury’s

answering either of the special issues in the affirmative, we need

not decide whether the evidence was either suppressed or favorable.

(It appears, however, that a substantial portion of it was neither

suppressed nor favorable.)

A gain, evidence is material under Brady if there i s a

re asonable probability the result of the proceeding (here

se ntencing) would have been different had the evidence been21

disclosed; a reasonable probability is one sufficient to undermine

confidence in the outcome. K yles

, 514 U.S. at 433-3 4

. As

discussed, for determining materiality, the evidence is considered

“collect ively, not item by item”. I d. at 436. “We evaluate the

tendency and force of the undisclosed evidence item by item ; there

is no other way. We evaluate its c umulative effect for purposes of

materiality separately ....” I d

. at 437 n.10 (emphasis added). If

the evidence provides only incremental impeachment value, it does

not rise to the level of Brady materiality. See Drew v. Collins

,

964 F.2d 411, 419-420 (5th Cir. 1992), cert. denied , 509 U.S. 925

(1993).

1.

First, the evidence from 5 and 20 May interviews with McCall

lacks force in the light of other, overwhelming evidence presented

at trial. For example: (1) Miller admitted to Jimmy Douglass they

had “ripped off” some furniture; (2) Ronald Theiss testified Miller

brought Segura’s car to his shop for repair and repainting and left

n ew furniture in his front yard at that same time; (3) Segura

testified in great detail about Miller’s shooting both Mozingo and

Whitt; (4) Woods was seen by Robert Fletcher with the victims

immediately before their murders, and Woods was seen in S egura’s

car with two other people around the same time; (5) Miller tried to

sell the stolen furniture soon after the murders; (6) Miller’s

fingerprints were found on a piec e of paper in the back of the22

furniture truck and on one of the stolen tables s tored in a

warehouse; (7) Miller and Segura rented a storage unit to store

furniture in the same facility used by McCall soon after the

murders; (8) Morris testified Miller obtained the .38 caliber

handgun from him; and (9) McCall testified Woods and Segura

admitted to robbing the victims. None of this evidence could be

undermined by either of the May statements given by McCall.

Miller contends Stover could have impeached McCall’s testimony

on the basis of his prior untruthfulness. That McCall had been

untruthful previously, however, was presented to the jury because

McCall admitted it on direct examination. Stover also impeached

McCall with this in formation and questioned McCall’s motivations

for testifying. The jury had the opportunity to weigh McCall’s

credibility and credit his testimony accordingly.

Miller contends McCall’s failure to mention in his 20 May

statement viewing the bodies either alone, or with Miller, on the

night of the murders is particularly probative. However, McCall’s

failure to do so is understandable; and, as the State points out,

it does not make it more or less likely that Miller committed the

crimes for which the death penalty was warranted.

Olsen’s notes of the 5 May interview of McCall are relatively

brief. Most importantly, they contain McCall’s admitting he had

not been truthful previously and his denying having anything to do

with possessing, or disposing of, the .38 caliber handgun after the23

murders. Again, Miller maintains Stover could have used this

evidence to impeach McCall. However, as noted, both Olsen and

Stover questioned McCall about prior inconsistent statements. And,

Stover elicited an admission by McCall that he only told the State

about Miller’s comments to him after McCall entered guilty pleas on

three new charges. A review of all of McCall’s testimony reveals

that he was thoroughly impeached as dishonest and a criminal.

Because McCall was thoroughly impeached at trial, the notes of the

5 and 20 May interviews have only incremental impeachment value.

2.

Likewise, the 5 May notes of the Morris interview lacked force

in the light of trial testimony about his .38 caliber handgun.

Those notes and Morris’ trial testimony were very brief. That

Morris at first denied owning a .38 could not be said to have

affected the outc ome of sentencing, particularly in the light of

evidence corroborating his trial testimony: Segura testified he

and Miller stopped by Morris’ house prior to the murders to obtain

a gun; McCall testified he received the .38 from Miller after the

murders and returned it to Morris at Miller’s request; Morris’

neighbor, Reyes, a witness who had no other connection to Segura,

Miller or McCall, testified Morris gave him the .38 caliber handgun

for safe keeping after the murders; McCall advised inve stigators

they could find the gun at Morris’ house; the gun was recovered

from Reyes’ garage; and bullets recovered from the bodies were24

consistent with the .38 recovered from Reyes’ garage. In addition,

as noted, Miller’s then girlfriend was Morris’ grandchild. In his

statement, Morris also stated: “He [did] not know whether ...

[Miller] was able to get a pistol from his house. Perhaps [Miller]

had left or hidden one there earlier. However, he did not remember

seeing [Miller] get a pistol from his house with his permission.”

Obviously, this indicates Miller was, inter alia , very capable of

obtaining a gun from Morris’ home.

3.

Finally, the four affidavits, in many ways, support Miller’s

guilt and do not contradict Segura and McCall’s testimony. None of

the affiants were witnesses to the robbery and murders; their only

knowledge was from Woods’ statements. Given the circumstances

surrounding Woods’ statement s to the four affiants, their

reliability is hi ghly suspect. White and Holsinger’s affidavits

reflect most of Woods’ statements were made late at night after

they had smoked marijuana. Conversations forming the basis of

Jones and Spears’ affidavits were in the early morning hours after

drinking in a club with them, White, and Holsinger; and both Jones

and Spears stated in their affidavits that Woods appeared to be

high on narcotics. Moreover, the substance of the affidavits was

presented to a substantial degree to the jury by Miller’s crossexamination of Detective Clampitte.

D.25

Having evaluated each item of evidence, we must now evaluate

the cumulative effect for purposes of materiality. Of course, in

doing so, the foregoing discussion of the evidence is in play.

1.

The first special i ssue required the jury to find Miller’s

conduct that caused Michael Mozingo’s death was both deliberate and

with the r easonable expectation death would occur. Miller

repeatedly contends, and the distric t court noted, that the

allegedly suppressed evidence undermines Miller’s role as the ring

leader. However, even if he did n ot have that role, there is

overwhelming evi dence he was deeply involved in the robbery and

murders. In other words, his conduct was deliberate. And, given

the overwhelming evidence of Miller’s involvement in the crimes and

of at least two of the participants being armed, it is completely

implausible Miller could have par ticipated and not anticipated

death would occur.

Accordingly, having reviewed the record, and in the light of

the evidence presented to the jury, the brutal nature of the

crimes, and the callousness with which the victims were treated, we

do not find a reasonable probability any juror would have answered

the deliberateness special issue differently, even if all the

allegedly suppressed evidence had been disclosed.26 2.

The second special issue required the jury to find Miller

would both commit violent crimes and be a continuing threat to

society (future dangerousness). It does n ot appear that Miller

contends the allegedly suppressed evidence is material for this

special issue. In any event, for all of such evidence, only a

small portion of McCall’s 20 May statement could be said to be even

tangentially relevant to this issue

- his s tatements that Miller

was not violent. This statement, made by Miller’s friend and

admitted partner in crime, could hardly be material.

For example, prior to the murders in early 1982, Miller had

pleaded guilty in March 1980 to stealing a truck, for which he was

sentenced to probation. That October, his probation was revoked,

and he was sentenced to three years in prison when he pleaded

guilty to stealing an automobile while on probation. At the

punishment phase, in addition to these two convictions, testimony

was offered that, after Miller was released from the penitentiary,

he had been involved in an armed robbery of illegal drugs and

another planned drug robbery (additional criminal conduct ). The

two convictions and additional crim inal conduct occurred between

when Miller was 18 years of age in 1980 and when he committed the

instant murders in conjunction with armed robbery in ea rly 1982.

Accordingly, the State argued to the jury that Miller’s criminal

c onduct had progressively become more violent. This additional27

criminal conduct provided a further basis on which the jury could

have found against Miller on the future dangerousness special

issue.

In sum, given Miller’s criminal history and the nature of the

murders, there is no reasonable probabi lity any juror would have

answered that special issue differently had all the allegedly

suppressed evidence been disclosed; there is no reasonable

probability that such disclosure of evidence would have resulted in

a different outcome at sentencing. Restated, in the light of the

comprehensive evidence bearing on sentencing, even if the allegedly

suppressed evidence had been disclosed, this does not undermine our

confidence that Miller would have still received the death penalty.

III.

For the foregoing reasons, the conditional habeas relief

granted Miller is VACATED; and habeas relief is DENIED

.

VACATED; DENIEDEMILIO M. GARZA, Circuit Judge, dissenting:

Unlike the majority, I conclude that, although Miller has not

exhausted his state remedies, denial of relief on the merits under

28 U.S.C. § 2254(b)(2) is not appropriate because Miller has at

least made a colorable federal claim for relief. I would remand to

the distr ict court with instructions either to dismiss the

proceedings for failure to exhaust or to stay and abey them while

Miller brings his Brady claim before a state habea s court.

Accordingly, I respectfully dissent.

Miller did not present his Brady claim in his state habeas

application because he did not receive the relevant evidence until

after he had filed his federal habeas petition. Texas permits

sub sequent applications in death penalty cases in three distinct

circumstances: 1) when the factual or legal basis for the new

claims or issues was not av ailable at the time of the original

petition; 2) when the applicant can show by a preponderance of the

evidence that no rational juror would have found the applicant

guilty but for the vi olation of the constitution; or 3) when the

applicant can show by clear and convincing evidence that no

rational juror would have answered affirmatively any of the special

issues submitted in capi tal cases. T E X

. C RIM

. P ROC

. C ODE A NN

. art.

11.071 § 5(a)(1)-(3); see Ex parte Graves 70 S.W.3d 103, 115 & n.49

(Tex. Crim. App. 2002) (stating that Texas has three exceptions to

the general rule agains t successive habeas petitions and listing

those described above).1 Although many years have passed since Miller learned of

the factual basis for his Brady claim, it does not seem that he

would be time barred from bringing it in a subsequent habeas

application. Article 11.071 has detailed scheduling deadlines for

initial habeas applications, but it does not provide such

guidelines for success ive applications. S ee generally T EX

. C RIM

.

P ROC

. C ODE A NN . art. 11.071.

-29- The district court erroneously read the first two exceptions

as two elements of a single exception and therefore incorrectly

determined that Miller would have to demonstrate that he could meet

either t he first and second exceptions or the third. Because it

concluded that he could not satisfy the second or third exception,

the district court held that Miller had no state forum in which to

bring his Brady claim and that he had therefore exhausted his state

law remedies. This holding was in error because Miller would be

able to bring a subsequent application in Texas court under the

first exception. 1

When a federal habeas petitioner brings an unexhausted claim,

the court should either dismiss the proceedings for failure to

exh aust or stay and abey them until a state habeas court has had

the opportunity to hear the claim. R hines v. We ber , __ U.S. __,

125 S.Ct. 1528, 1534 (2005). Under Rhines , stay and abeyance is

appropriate when the district court finds that: 1) there was good

cause for the failure to exhaust the claim; 2) the claim is not

plainly meritless; and 3) there is no indication that the failure

was for purposes of delay. Id. at 1535. The parties have not2 I suspect that the cause for Miller’s failure to exhaust

was Texas’s two-forums rule, which would prevent him from bringing

his Brady claim in state court while his exhausted claims were

pending in federal court. See Ex parte Powers , 487 S.W.2d 101

(Tex. Crim. App. 1972). Because Miller did not discover the

suppressed evidence until after he had filed his petition in

federal court in 1999, he would have had to forego federal habeas

r eview of his exhausted claims if he chose to pursue his B rady

claim in state court. Texas has since lifted its two-forum rule,

which means that the state court could now hear Miller’s claim if

we stayed the proceedings rather than dismiss them. See Ex parte

Soffar , 143 S.W.3d 804, 807 (Tex. Crim. App. 2004).

-30- briefed the first and third elements, so the district court would

need to make the appropriate findings on remand. 2

The second element, however, has been thoroughly briefed, and

I conclude that Miller’s Brady claim is not p lainly meritless

because the various pieces of evidence, taken together, could have

raised a reasonable doubt in a juror as to either special

interrogatory. S ee United States v. Bagley

, 473 U.S. 667, 682

(1985) (holding that evidence is material under Brady if there is

a reasonable probability that, had it been disclosed, the result of

the proceeding would have been different); United States v. Sipe

,

388 F.3d 471, 478 (5th Cir. 2004) (holding that w hen there are

multiple Brady violations, the court mus t analyze the cumulative

effect of the suppressed evidence).

The first piece of evidence at issue is notes and transcripts

from interv iews with McCall. Effectively impeaching McCall was

crucial to the defense given the weight the prosecution asked the

jury to place on McCall’s testimony. As the majority points out,-31-

McCall was generally impeached on cross-examination as a dishonest

criminal who was not always truthful with the police during the

course of the investigation. Nevertheless, there is a significant

qualitative difference between evidence that a witness is generally

not truthful and specific evidence that he gave inconsistent

statements with r espect to the subject of his crucial testimony.

I disagree with the majority’s position that specific impeachment

material is only of incremental value in light of abundant general

impeachment mat erial. The defense was not able to cross-examine

McCall about his s tatements in the May 20 interview in which he

specifically denied that Woods and Segura had confessed the murders

to him and made no mention of going to the crime scene with Miller.

Those statements specifically contradicted his trial testimony.

Had the jury been able to hear that in addition to being generally

dishonest, McCall had made specific statements inconsistent with

the heart of his trial testimony, it might have given his testimony

less weight. McCall provided important corroboration of Segura’s

account of the crime, which portrayed Miller as a leader in the

killings, so weakening his testimony could hav e cast doubt on

whether Miller planned the killings and was an actual shooter.

The second piece of allegedly suppressed evidence was police

notes from interviews with Morris. Morris, who testified that he

had given his .38 caliber handgun to Miller in the days before the

murde rs, was not impeached with prior inconsistent statements at

all. His testimony provided critical corroboration from someone-32-

uninvolved with the crime linking Miller to one of the murder

weapons, which showed at sentencing that Miller had orchestrated

the murders in advance. The majority notes that Reyes, Segura and

McCall could corroborate Morris’s testimony. Reyes, however, could

only corroborate Morris’s account of what h appened after the

murders, not before, so he could not bolster that part of Morris’s

testimony that was most important at sentencing, i.e. that Miller

procured a weapon days in advance of the murders. Moreover, Segura

and McCall’s co rroboration was of limited value because of their

limited credibility. Indeed, Morris’s testimony functioned at

trial to provide credible, disinterested corroboration of their

account of the crime. The majority’s reliance on Segura and McCall

to bolster Morris’s account therefore begs the question.

The third group of evidence at issue consists of affidavits of

four non-testifying witnesses. One affiant, Robert White, stated

that Woods had confessed to the murders and implied that Miller was

not a shooter. Another affiant stated that Woods might have said

that a .45 caliber gun was used. That statement is significant

because McCall testified that Segura kept a .45 in his car, which

was used to transport the victims. The majority concludes that the

affidavits are not material because they are unrel iable in that

they were based on conversations that occurred either late at night

or early in the morning after the declarants and Woods had either smoked

marijuana or drank alcohol. I am unconvinced that jurors would necessarily find unreliable a person’s3 Admittedly, the jury also heard evidence that Miller

planned to kill Segura for testifying in this case, but that

evidence came from McCall. The exculpatory evidence, as discussed

above, would have allowed the defense to better impeach McCall.

-33- recollection of statements heard while intoxicated. In addition, if they focused on Woods’s

intoxication, rather than the affiants’, jur o rs might find the evidence quite reliable, as intoxication

often makes one less reticent to speak the truth.

The majo rity correctly points out that the jury did not need to believe that Miller was the

ringleader or a shooter to find that he acted deliberately and with the reasonable expectation that the

victim would die, the question of the first interrogatory. On the other hand, a juror could believe that

Miller was complicit in the robberies and also have a reasonable doubt that Miller expected Mozingo

to die during their course. The strongest evidence of Miller’s expectation that Mozingo would die

was: 1) that he procured the gun from Morris, showing that he had planned the murder; 2) McCall’s

testimony portraying Miller as a ringleader in the crime; and 3) Segura’s account of the crime, which

pointed to Miller as a shooter. The suppressed evidence casts doubt on each of these.

Undermining the portrayal of Miller as the ring leader and shooter could have also affected

the jury’s finding that Mi ller po sed a future danger of violent crime, the question of the second

interrogatory. The majority concludes that the exculpatory evidence is not material to this inquiry

given Miller’s criminal history. That history alone, however, does not necessarily suggest that Miller

would go on to co mmit violent crime in the future. While Miller’s criminal history was becoming

increasingly serious, it did not include episodes of actual violence. Testimony that Miller had a

central role in planing and carrying out the murders, t herefore, was by far the best evidence of his

future dangerousness. 3 Because the suppressed evidence would have undermined the strongest-34-

indicators of Miller’s future dangerousness, it might have caused a juror to find reasonable doubt that

Miller would commit violent crimes in the future.

Based on the above, I find the materiality que st io n t o be close. At the very least, Miller’s

Brady claim is not plainly meri tless. For that reason, I woul d rem and to the di stri ct court wi th

instructions to determine if the first and third prongs of Rhines v. Webber are satisfied and to stay and

abey the proceedings if they are.

The majority dismisses the petition on the merits rather than for failure to exhaust. S ee 28

U.S.C. § 2254(b)(2) (“An application for a writ of habeas corpus may be denied on the merits,

notwith s tanding the failure of the applicant to exhaust the remedies available in the courts of the

State.”). Denial of relief under § 2254(b)(2), however, is “inappropriate” unless “it is perfectly clear

that the applicant does not even raise a colorable federal claim.” Mercadel v. Cain , 179 F.3d 271,

276 n.4 (5th

Cir. 1999) (quoti ng G ranberry v. Green

, 481 U.S. 129, 135 (1987) and collecting

cases). As demonstrated above, Miller’s B rady claim is at least colorable, so dismissal under §

2254(b)(2) is inappropriate.

Under the AEDPA, our task is to review the state habeas court’s findings and conclusions,

not to make those determinations ourselves. S ee 28 U.S.C. § 2254(d). In keeping with that scheme,

I would fo llo w Mercadel and allow the state court an opportuni ty to resolve the factual and legal

issues in dispute. I would further instruct the district court to determine, under R hines

, whether to

dismiss the proceedings or stay and abey them until the state court has had such an opportunity.